" ! HOUSE OF REPRESENTATIVES 109TH CONGRESS

2d Session 

REPT. 109–664 

Part 2 

MILITARY COMMISSIONS ACT OF 2006 

R E P O R T 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

TO ACCOMPANY

H.R. 6054 

together with 

DISSENTING VIEWS 

SEPTEMBER 25, 2006.—Ordered to be printed. 


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MILITARY COMMISSIONS ACT OF 2006 


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109TH CONGRESS REPT. 109–664 " ! HOUSE OF REPRESENTATIVES 2d Session Part 2 

MILITARY COMMISSIONS ACT OF 2006 

SEPTEMBER 25, 2006.—Ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 6054] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 6054) to amend title 10, United States Code, to authorize 

trial by military commission for violations of the law of war, and 

for other purposes, having considered the same, report favorably 

thereon with amendments and recommend that the bill as amended do pass. 

The amendments (stated in terms of the page and line numbers 

of the introduced bill) are as follows: 

Page 4, after line 18, insert the following new paragraph (and redesignate the succeeding paragraphs accordingly): 

‘‘(2) LAWFUL ENEMY COMBATANT.—The term ‘lawful 

enemy combatant’ means an individual determined by 

or under the authority of the President or Secretary of 

Defense (whether on an individualized or collective 

basis) to be—

‘‘(A) a member of the regular forces of a State 

party engaged in hostilities against the United 

States or its co-belligerents; 

‘‘(B) a member of a militia, volunteer corps, or 

organized resistance movement belonging to a 

State party engaged in such hostilities, which are 

under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their 

arms openly, and abide by the law of war; or 

‘‘(C) a member of a regular armed force who 

professes allegiance to a government engaged in 


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1 18 U.S.C. § 2441 (2006). 

such hostilities, but not recognized by the United 

States. 

Page 6, after line 15, insert the following new subsection (and redesignate the succeeding subsection accordingly): 

‘‘(b) LAWFUL ENEMY COMBATANTS.—Military commissions under this chapter shall not have jurisdiction over 

lawful enemy combatants. Lawful enemy combatants who 

violate the law of war are subject to chapter 47 of this 

title. Courts martial established under that chapter shall 

have jurisdiction to try a lawful enemy combatant for any 

offense made punishable under this chapter. 

Page 34, line 15, insert ‘‘classified’’ after ‘‘who receives’’. 

Page 80, after line 24, add the following new section: 

SEC. 9. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE. 

(a) APPLICABILITY TO LAWFUL ENEMY COMBATANTS.—

Section 802(a) of title 10, United States Code (article 2(a) 

of the Uniform Code of Military Justice), is amended by 

adding at the end the following new paragraph: 

‘‘(13) Lawful enemy combatants who violate the law 

of war.’’. 

(b) EXCLUSION OF CHAPTER 47A COMMISSIONS.—Section 

821 of such title (article 21 of such Code) is amended by 

adding at the end the following new sentence: ‘‘This section does not apply to military commissions established 

under chapter 47A of this title.’’. 

(c) INAPPLICABILITY OF REQUIREMENT FOR UNIFORM REGULATIONS.—Section 36(b) of such title (article (36) of such 

Code) is amended by inserting before the period at the end 

‘‘, except insofar as applicable to military commissions established under chapter 47A of this title’’. 

PURPOSE AND SUMMARY

H.R. 6054, the ‘‘Military Commissions Act of 2006’’ amends title 

10, United States Code, to authorize military commissions for violations of the law of war by alien unlawful enemy combatants. H.R. 

6054 would establish procedural rules governing the conduct of 

military commissions, including the use of sensitive classified evidence, admissibility of hearsay evidence, and the rights afforded 

detainees before, during and after trial. The bill would also make 

changes to the War Crimes Act 1 to enumerate specific ‘‘serious violations’’ of Common Article 3 of the Geneva Conventions which 

would be subject to prosecution as war crimes under our domestic 

criminal code. 

H.R. 6054 limits judicial review of causes of action relating to 

any aspect of the alien’s detention, transfer, treatment, or conditions of confinement, including habeas corpus applications, by unlawful enemy combatants pending on, or filed after, the date of enactment of this Act. The bill also declares prohibitions against 

cruel, inhuman and degrading treatment in the Detainee Treatment Act of 2005 (DTA) fully satisfies the United States’ obligaVerDate Aug 31 2005 11:25 Sep 26, 2006 Jkt 049006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR664P2.XXX HR664P2

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2Military Order, 66 FR 57,833–57,836 (November 13, 2001). 3 Id. 

4 Hamdi v. Rumsfeld, 542 U.S. 507 (2004). 5 U.S. Dep’t of Def., Fact Sheet, Combatant Status Review Tribunals Update (Jul. 7, 2004), 

available at http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf [hereinafter DOD 

Fact Sheet]; Memorandum from the Deputy Secretary of Defense, for the Secretary of the Navy, 

Order Establishing Combatant Status Review Tribunal (Jul. 7, 2004), available at http:// 

www.defenselink.mil/news/jul2004/d20040707review.pdf [hereinafter DOD Order]. See also 

Memorandum from the Secretary of the Navy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants detained at Guantanamo Bay Naval Base, Cuba (Jul. 

29, 2004), available at http://www.defenselink.mil/news/jul2004/d20040730comb.pdf (providing 

implementation guidance of the combatant status review tribunal). 6Deputy Secretary of Defense Paul Wolfowitz, Order OSD 06942–04 Administrative Review 

Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo 

Bay Naval Base, Cuba (May 11, 2004), available at: http://www.globalsecurity.org/security/library/policy/dod/d20040518gtmoreview.pdf 7 Rasul v. Bush 542 U.S. 466 (2004). 

tions with respect to the standards for detention and treatment established by the relevant sections of Common Article 3 of the Geneva Conventions. H.R. 6054 additionally would overturn a portion of 

the Supreme Court’s decision in Hamdan v. Rumsfeld and clarify 

that the Geneva Conventions are not judicially enforceable in 

United States courts. Finally, the bill expands the right to counsel 

for United States government personnel established in the DTA. 

BACKGROUND AND NEED FOR THE LEGISLATION

On November 13, 2001, President George W. Bush issued a military order regarding ‘‘Detention, Treatment, and Trial of Certain 

Non-Citizens in the War Against Terrorism.’’ 2 One purpose of this 

order was to authorize the Secretary of Defense to establish military commissions that would provide full and fair trials to foreign 

individuals who were members of the al Qaeda terrorist organization or who engaged in, aided or abetted, or conspired to commit, 

the attacks against the United States on September 11, 2001.3

In January 2002, the United States began detaining foreign individuals captured in the global war on terror as ‘enemy combatants’ at United States military facilities at Guantanamo Bay, Cuba. 

Upon an individual’s arrival at Guantanamo, United States officials assess whether that individual should be released or transferred to the custody of his government. After Supreme Court decisions providing individuals with a method to contest their detention,4 the United States established the combatant Status Review 

Tribunal (‘‘CSRT’’) procedures in 2004.5 These procedures provide 

for a one-time review of an individual’s combatant status. The 

United States also created an Administrative Review Board 

(‘‘ARB’’) procedure to consider each individual’s status on an annual basis.6 Finally, United States courts have held that each individual must have access to counsel in the United States judicial 

system, and in 2004, the United States Supreme Court ruled that 

the United States District Court for the District of Columbia Circuit has jurisdiction to consider habeas corpus challenges to the legality of the detention of foreign nationals at Guantanamo.7 That 

ruling, in concert with other related rulings, has resulted in further 

litigation at the Federal trial and appellate court levels. 

Aside from establishing procedures to address individuals’ status 

as ‘‘enemy combatants’’, the United States has noted that other nations have traditionally used military commissions, which are recognized by the Geneva Conventions, to prosecute violations of the 

law of war. The United States chose to prosecute certain foreign inVerDate Aug 31 2005 11:25 Sep 26, 2006 Jkt 049006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR664P2.XXX HR664P2

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8See Hamdan v. Rumsfeld, 548 U.S.lll; 165 L. Ed. 723 (2006). 9 Id. at 2. 10 Id. at 1 (Breyer, J., concurring)(‘‘nothing prevents the President from returning to Congress 

to seek the authority he believes necessary.’’) 11Pub. L. No. 109–148, 119 Stat. 2739 (2005). 12 548 U.S. l at 7–20. 13See Hallowell v. Commons, 239 U.S. 506 (1916); Bruner v. United States, 343 U.S. 112 

(1952); Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994); Republic of Austria v. Altmann, 541 U.S. 677, 693 (2004). 14 548 U.S. l at 1 (Scalia, J. dissenting). 15 Id at 5. 16 Id. 

dividuals for such violations using military commission procedures 

established by the Secretary of Defense as authorized by Executive 

Order in November 2001. Some defendants in these cases chose to 

sue United States officials to challenge these procedures.8

On June 29, 2006, the United States Supreme Court ruled 5–3 

in Hamdan v. Rumsfeld, that the President’s military commissions 

could not proceed because they did not comply with the Uniform 

Code of Military Justice (UCMJ) and Common Article 3.9 The 

Court’s essential holdings were that: (1) military commissions require specific congressional authorization; (2) the structure and 

procedures of the Hamdan military commission violated the UCMJ; 

(3) the mandates of Common Article 3 of the Geneva Conventions 

are judicially enforceable in United States courts; and (4) the procedures adopted to try Hamdan did not meet the Common Article 3 

requirement that sanctions must be pronounced by ‘a regularly constituted court affording all judicial guarantees which are recognized as indispensable by civilized peoples.’ Although the Court declared the military commissions as constituted to be illegal, it left open the possibility that changes to 

commission rules or new legislation could bring the commissions 

within the law of war and conform with the UCMJ. The Court also 

suggested that the President could ask Congress to authorize commission rules that diverge from the UCMJ, provided that they were 

consistent with the Constitution and other laws.10

In Hamdan, the Court also found that section 1005 of the Detainee Treatment Act of 2005,11 which prohibited any court, justice 

or judge from considering statutory habeas corpus claims and other 

lawsuits by aliens, including those held at Guantanamo Bay, Cuba, 

did not apply to cases pending on the date of enactment of the 

DTA.12 Section 1005 also gave the Court of Appeals for the District 

of Columbia Circuit exclusive jurisdiction to determine the validity 

of any final decision of a Combatant Status Review Tribunal 

(CSRT). In failing to hold that the DTA’s jurisdictional bar applied 

to pending cases, the Court ignored decades of its own precedents 

applying intervening statutes conferring or eliminating Federal 

court jurisdiction to cases pending on the date of enactment.13 At 

least three members of the Court believed that this conclusion was 

‘‘patently erroneous.’’ 14 In his dissent, Justice Scalia also reminded 

the majority that they failed to cite a single case where such a jurisdiction limitation provision was denied immediate effect in pending cases.15 We agree with his opinion that ‘‘the cases granting 

such immediate effect are legion.’’ 16

The Committee strongly believes that the Constitution gives Congress the power to determine whether the Federal courts have jurisdiction over applications for a writ of habeas corpus pursuant to 

28 U.S.C. § 2241 filed by or on behalf of an alien detained by the 


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17 339 U.S. 763 (1950). 18 Id at 784–85. 19 494 U.S. 259 (1990). 20 Id at 269. 21 Id at 271. 

Department of Defense at Guantanamo Bay, Cuba. In the view of 

the Committee, the Supreme Court had no authority to hear the 

Hamdan case after enactment of the DTA. The plain language of 

this statute clearly applies to cases pending at the date of enactment. The Committee believes that the Supreme Court should have 

reached this conclusion by relying on its own precedents, but it 

failed to do so. In response, H.R. 6054 has been carefully drafted 

so that the Court can fully understand that it applies to both pending and later-filed cases. It was not necessary for Congress to be 

so specific, but in order to be sure that the Court will not make 

the same mistake twice, the Committee has carefully chosen the 

words ‘‘pending on or filed after the date of the enactment’’ in section 5 of this legislation. 

Opponents of the bill may claim that it impermissibly ‘‘suspends’’

or limits the right of habeas corpus for individuals held as enemy 

combatants at Guantanamo Bay or elsewhere. This argument ignores decades of Supreme Court precedent to the contrary. In fact, 

the case of Johnson v. Eisentrager 17 held that United States constitutional protections do not apply to alien prisoners of war held 

outside of our borders. The Court in Eisentrager noted that ‘‘[n]o 

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.’’ 18

More recently, the Supreme Court reaffirmed this view in the 

case of United States v. Verdugo-Urquidez 19 when it found that 

‘‘we have rejected the claim that aliens are entitled to Fifth 

Amendment rights outside of the sovereign territory of the United 

States.’’ 20 Verdugo also makes it clear that aliens receive constitutional protections when they have come within the territory of the 

United States ‘‘and developed substantial connections with this 

country.’’ 21 The Committee believes that terrorists and other detainees suspected of planning, supporting or otherwise participating in attacks against the United States and its citizens have 

not developed the type of substantial connections with the United 

States sufficient to justify extending to them all of the protections 

of our Constitution. Nonetheless, this legislation provides a full and 

fair process for the review by the D.C. Circuit of enemy combatant 

determinations by a CSRT and for review of the decisions of military commissions. The Committee believes the judicial review authorized in this bill provides more than ample protections for the 

rights of the detainees. 

In response to the Hamdan decision and legislation proposed by 

the President, the Judiciary Committee considered H.R. 6054 in 

open session on September 20, 2006. The legislation addresses the 

scope, jurisdiction, and procedures of military commissions in 

which the United States could prosecute alien unlawful enemy 

combatants for violations of the law of war and other offenses, 

makes changes to the War Crimes Act, clarifies the intent of Congress that statutory habeas corpus relief is not available to alien 


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unlawful enemy combatants held outside of the United States, and 

that such jurisdictional bar applies to pending and future claims. 

HEARINGS

The Committee on the Judiciary held no hearings on H.R. 6054. 

COMMITTEE CONSIDERATION

On September 20, 2006, the Judiciary Committee met in open 

session and ordered favorably reported the bill, H.R. 6054, by a 

vote of 20–19, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that the following 

roll call vote occurred during the Committee’s consideration of H.R. 

6054. 

ROLLCALL NO. 1—DATE: 9–20–06

SUBJECT: Schiff/Flake amendment to H.R. 6054 to strike section 4 of the bill and insert an alternative amendment to the War 

Crimes Act, which was not agreed to by a rollcall vote of 17 ayes 

to 18 nays. 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .................................................................................................................................... x 

MR. SMITH ..................................................................................................................................... x 

MR. GALLEGLY ............................................................................................................................... x 

MR. GOODLATTE ............................................................................................................................ x 

MR. CHABOT .................................................................................................................................. x 

MR. LUNGREN ............................................................................................................................... x 

MR. JENKINS .................................................................................................................................. x 

MR. CANNON ................................................................................................................................. x 

MR. BACHUS.

MR. INGLIS .................................................................................................................................... x 

MR. HOSTETTLER ........................................................................................................................... x 

MR. GREEN .................................................................................................................................... x 

MR. KELLER.

MR. ISSA ....................................................................................................................................... x 

MR. FLAKE ..................................................................................................................................... x 

MR. PENCE .................................................................................................................................... x 

MR. FORBES .................................................................................................................................. x 

MR. KING ....................................................................................................................................... x 

MR. FEENEY .................................................................................................................................. x 

MR. FRANKS .................................................................................................................................. x 

MR. GOHMERT ............................................................................................................................... x 

MR. CONYERS ............................................................................................................................... x 

MR. BERMAN ................................................................................................................................. x 

MR. BOUCHER ............................................................................................................................... x 

MR. NADLER .................................................................................................................................. x 

MR. SCOTT .................................................................................................................................... x 

MR. WATT ...................................................................................................................................... x 

MS. LOFGREN ................................................................................................................................ x 

MS. JACKSON LEE ......................................................................................................................... x 

MS. WATERS .................................................................................................................................. x 

MR. MEEHAN ................................................................................................................................. x 

MR. DELAHUNT .............................................................................................................................. x 

MR. WEXLER.

MR. WEINER .................................................................................................................................. x 

MR. SCHIFF ................................................................................................................................... x 

MS. SANCHEZ ................................................................................................................................ x 


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Ayes Nays Present 

MR. VAN HOLLEN .......................................................................................................................... x 

MRS. WASSERMAN SCHULTZ.

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... x 

TOTAL ................................................................................................................................... 17 18 

ROLLCALL NO. 2—DATE: 9–20–06

SUBJECT: Meehan amendment to H.R. 6054, to strike section 5 

(related to judicial review), which was not agreed to by a rollcall 

vote of 12 ayes to 15 nays. 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .................................................................................................................................... x 

MR. SMITH ..................................................................................................................................... x 

MR. GALLEGLY.

MR. GOODLATTE ............................................................................................................................ x 

MR. CHABOT .................................................................................................................................. x 

MR. LUNGREN ............................................................................................................................... x 

MR. JENKINS .................................................................................................................................. x 

MR. CANNON ................................................................................................................................. x 

MR. BACHUS.

MR. INGLIS .................................................................................................................................... x 

MR. HOSTETTLER.

MR. GREEN .................................................................................................................................... x 

MR. KELLER.

MR. ISSA.

MR. FLAKE ..................................................................................................................................... x 

MR. PENCE.

MR. FORBES .................................................................................................................................. x 

MR. KING.

MR. FEENEY .................................................................................................................................. x 

MR. FRANKS .................................................................................................................................. x 

MR. GOHMERT ............................................................................................................................... x 

MR. CONYERS ............................................................................................................................... x 

MR. BERMAN ................................................................................................................................. x 

MR. BOUCHER ............................................................................................................................... x 

MR. NADLER .................................................................................................................................. x 

MR. SCOTT .................................................................................................................................... x 

MR. WATT.

MS. LOFGREN.

MS. JACKSON LEE ......................................................................................................................... x 

MS. WATERS.

MR. MEEHAN ................................................................................................................................. x 

MR. DELAHUNT .............................................................................................................................. x 

MR. WEXLER.

MR. WEINER .................................................................................................................................. x 

MR. SCHIFF ................................................................................................................................... x 

MS. SANCHEZ.

MR. VAN HOLLEN .......................................................................................................................... x 

MRS. WASSERMAN SCHULTZ ......................................................................................................... x 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... x 

TOTAL ................................................................................................................................... 12 15 

ROLLCALL NO. 3—DATE: 9–20–06

SUBJECT: Jackson Lee amendment to H.R. 6054 to strike section 6(b), which was not agreed to by a rollcall vote of 17 ayes to 

18 nays. 


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Ayes Nays Present 

MR. HYDE.

MR. COBLE .................................................................................................................................... x 

MR. SMITH ..................................................................................................................................... x 

MR. GALLEGLY.

MR. GOODLATTE ............................................................................................................................ x 

MR. CHABOT .................................................................................................................................. x 

MR. LUNGREN ............................................................................................................................... x 

MR. JENKINS .................................................................................................................................. x 

MR. CANNON ................................................................................................................................. x 

MR. BACHUS ................................................................................................................................. x 

MR. INGLIS .................................................................................................................................... x 

MR. HOSTETTLER ........................................................................................................................... x 

MR. GREEN.

MR. KELLER.

MR. ISSA ....................................................................................................................................... x 

MR. FLAKE ..................................................................................................................................... x 

MR. PENCE.

MR. FORBES .................................................................................................................................. x 

MR. KING ....................................................................................................................................... x 

MR. FEENEY .................................................................................................................................. x 

MR. FRANKS .................................................................................................................................. x 

MR. GOHMERT ............................................................................................................................... x 

MR. CONYERS ............................................................................................................................... x 

MR. BERMAN ................................................................................................................................. x 

MR. BOUCHER ............................................................................................................................... x 

MR. NADLER .................................................................................................................................. x 

MR. SCOTT .................................................................................................................................... x 

MR. WATT ...................................................................................................................................... x 

MS. LOFGREN ................................................................................................................................ x 

MS. JACKSON-LEE ......................................................................................................................... x 

MS. WATERS .................................................................................................................................. x 

MR. MEEHAN ................................................................................................................................. x 

MR. DELAHUNT .............................................................................................................................. x 

MR. WEXLER .................................................................................................................................. x 

MR. WEINER .................................................................................................................................. x 

MR. SCHIFF ................................................................................................................................... x 

MS. SANCHEZ ................................................................................................................................ x 

MR. VAN HOLLEN .......................................................................................................................... x 

MRS. WASSERMAN SCHULTZ ......................................................................................................... x 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... x 

TOTAL ................................................................................................................................... 17 18 

ROLLCALL NO. 4—DATE: 9–20–06

SUBJECT: Motion to report H.R. 6054 favorably, which was not 

agreed to by a rollcall vote of 17 ayes to 20 nays. 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .................................................................................................................................... x 

MR. SMITH ..................................................................................................................................... x 

MR. GALLEGLY.

MR. GOODLATTE ............................................................................................................................ x 

MR. CHABOT .................................................................................................................................. x 

MR. LUNGREN ............................................................................................................................... x 

MR. JENKINS .................................................................................................................................. x 

MR. CANNON ................................................................................................................................. x 

MR. BACHUS ................................................................................................................................. x 

MR. INGLIS .................................................................................................................................... x 

MR. HOSTETTLER ........................................................................................................................... x 

MR. GREEN .................................................................................................................................... x 

MR. KELLER.

MR. ISSA ....................................................................................................................................... x 

MR. FLAKE ..................................................................................................................................... x 


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Ayes Nays Present 

MR. PENCE .................................................................................................................................... x 

MR. FORBES .................................................................................................................................. x 

MR. KING ....................................................................................................................................... x 

MR. FEENEY .................................................................................................................................. x 

MR. FRANKS .................................................................................................................................. x 

MR. GOHMERT ............................................................................................................................... x 

MR. CONYERS ............................................................................................................................... x 

MR. BERMAN ................................................................................................................................. x 

MR. BOUCHER ............................................................................................................................... x 

MR. NADLER .................................................................................................................................. x 

MR. SCOTT .................................................................................................................................... x 

MR. WATT ...................................................................................................................................... x 

MS. LOFGREN ................................................................................................................................ x 

MS. JACKSON LEE ......................................................................................................................... x 

MS. WATERS .................................................................................................................................. x 

MR. MEEHAN ................................................................................................................................. x 

MR. DELAHUNT .............................................................................................................................. x 

MR. WEXLER .................................................................................................................................. x 

MR. WEINER .................................................................................................................................. x 

MR. SCHIFF ................................................................................................................................... x 

MS. SANCHEZ ................................................................................................................................ x 

MR. VAN HOLLEN .......................................................................................................................... x 

MRS. WASSERMAN SCHULTZ ......................................................................................................... x 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... x 

TOTAL ................................................................................................................................... 17 20 

ROLLCALL NO. 5—DATE: 9–20–06

SUBJECT: Nadler motion to adjourn, which was not agreed to by 

a rollcall vote of 14 ayes to 17 nays. 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .................................................................................................................................... x 

MR. SMITH ..................................................................................................................................... x 

MR. GALLEGLY.

MR. GOODLATTE.

MR. CHABOT .................................................................................................................................. x 

MR. LUNGREN ............................................................................................................................... x 

MR. JENKINS .................................................................................................................................. x 

MR. CANNON ................................................................................................................................. x 

MR. BACHUS ................................................................................................................................. x 

MR. INGLIS .................................................................................................................................... x 

MR. HOSTETTLER.

MR. GREEN .................................................................................................................................... x 

MR. KELLER.

MR. ISSA.

MR. FLAKE ..................................................................................................................................... x 

MR. PENCE .................................................................................................................................... x 

MR. FORBES .................................................................................................................................. x 

MR. KING ....................................................................................................................................... x 

MR. FEENEY .................................................................................................................................. x 

MR. FRANKS .................................................................................................................................. x 

MR. GOHMERT ............................................................................................................................... x 

MR. CONYERS ............................................................................................................................... x 

MR. BERMAN ................................................................................................................................. x 

MR. BOUCHER.

MR. NADLER .................................................................................................................................. x 

MR. SCOTT .................................................................................................................................... x 

MR. WATT ...................................................................................................................................... x 

MS. LOFGREN ................................................................................................................................ x 

MS. JACKSON LEE.

MS. WATERS .................................................................................................................................. x 


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Ayes Nays Present 

MR. MEEHAN ................................................................................................................................. x 

MR. DELAHUNT.

MR. WEXLER .................................................................................................................................. x 

MR. WEINER .................................................................................................................................. x 

MR. SCHIFF ................................................................................................................................... x 

MS. SANCHEZ ................................................................................................................................ x 

MR. VAN HOLLEN .......................................................................................................................... x 

MRS. WASSERMAN SCHULTZ ......................................................................................................... x 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... x 

TOTAL ................................................................................................................................... 14 17 

ROLLCALL NO. 9—DATE: 9–20–06

SUBJECT: Gohmert motion to reconsider H.R. 6054, which was 

agreed to by a rollcall vote of 20 ayes to 19 nays. 

Ayes Nays Present 

MR. HYDE ...................................................................................................................................... x 

MR. COBLE .................................................................................................................................... x 

MR. SMITH ..................................................................................................................................... x 

MR. GALLEGLY ............................................................................................................................... x 

MR. GOODLATTE ............................................................................................................................ x 

MR. CHABOT .................................................................................................................................. x 

MR. LUNGREN ............................................................................................................................... x 

MR. JENKINS .................................................................................................................................. x 

MR. CANNON ................................................................................................................................. x 

MR. BACHUS ................................................................................................................................. x 

MR. INGLIS .................................................................................................................................... x 

MR. HOSTETTLER ........................................................................................................................... x 

MR. GREEN .................................................................................................................................... x 

MR. KELLER.

MR. ISSA ....................................................................................................................................... x 

MR. FLAKE ..................................................................................................................................... x 

MR. PENCE .................................................................................................................................... x 

MR. FORBES .................................................................................................................................. x 

MR. KING ....................................................................................................................................... x 

MR. FEENEY .................................................................................................................................. x 

MR. FRANKS .................................................................................................................................. x 

MR. GOHMERT ............................................................................................................................... x 

MR. CONYERS ............................................................................................................................... x 

MR. BERMAN ................................................................................................................................. x 

MR. BOUCHER ............................................................................................................................... x 

MR. NADLER .................................................................................................................................. x 

MR. SCOTT .................................................................................................................................... x 

MR. WATT ...................................................................................................................................... x 

MS. LOFGREN ................................................................................................................................ x 

MS. JACKSON LEE ......................................................................................................................... x 

MS. WATERS .................................................................................................................................. x 

MR. MEEHAN ................................................................................................................................. x 

MR. DELAHUNT .............................................................................................................................. x 

MR. WEXLER .................................................................................................................................. x 

MR. WEINER .................................................................................................................................. x 

MR. SCHIFF ................................................................................................................................... x 

MS. SANCHEZ ................................................................................................................................ x 

MR. VAN HOLLEN .......................................................................................................................... x 

MRS. WASSERMAN SCHULTZ ......................................................................................................... x 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... x 

TOTAL ................................................................................................................................... 20 19 


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ROLLCALL NO. 10—DATE: 9–20–06

SUBJECT: Motion to report H.R. 6054 adversely, which was not 

agreed to by a rollcall vote of 19 ayes to 20 nays. 

Ayes Nays Present 

MR. HYDE ...................................................................................................................................... x 

MR. COBLE .................................................................................................................................... x 

MR. SMITH ..................................................................................................................................... x 

MR. GALLEGLY ............................................................................................................................... x 

MR. GOODLATTE ............................................................................................................................ x 

MR. CHABOT .................................................................................................................................. x 

MR. LUNGREN ............................................................................................................................... x 

MR. JENKINS .................................................................................................................................. x 

MR. CANNON ................................................................................................................................. x 

MR. BACHUS ................................................................................................................................. x 

MR. INGLIS .................................................................................................................................... x 

MR. HOSTETTLER ........................................................................................................................... x 

MR. GREEN .................................................................................................................................... x 

MR. KELLER.

MR. ISSA ....................................................................................................................................... x 

MR. FLAKE ..................................................................................................................................... x 

MR. PENCE .................................................................................................................................... x 

MR. FORBES .................................................................................................................................. x 

MR. KING ....................................................................................................................................... x 

MR. FEENEY .................................................................................................................................. x 

MR. FRANKS .................................................................................................................................. x 

MR. GOHMERT ............................................................................................................................... x 

MR. CONYERS ............................................................................................................................... x 

MR. BERMAN ................................................................................................................................. x 

MR. BOUCHER ............................................................................................................................... x 

MR. NADLER .................................................................................................................................. x 

MR. SCOTT .................................................................................................................................... x 

MR. WATT ...................................................................................................................................... x 

MS. LOFGREN ................................................................................................................................ x 

MS. JACKSON-LEE ......................................................................................................................... x 

MS. WATERS .................................................................................................................................. x 

MR. MEEHAN ................................................................................................................................. x 

MR. DELAHUNT .............................................................................................................................. x 

MR. WEXLER .................................................................................................................................. x 

MR. WEINER .................................................................................................................................. x 

MR. SCHIFF ................................................................................................................................... x 

MS. SANCHEZ ................................................................................................................................ x 

MR. VAN HOLLEN .......................................................................................................................... x 

MRS. WASSERMAN SCHULTZ ......................................................................................................... x 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... x 

TOTAL ................................................................................................................................... 19 20 

ROLLCALL NO. 11—DATE: 9–20–06

SUBJECT: Gohmert motion to reconsider the vote to report H.R. 

6054 favorably, which was agreed to by a rollcall vote of 20 ayes 

to 19 nays. 

Ayes Nays Present 

MR. HYDE ...................................................................................................................................... x 

MR. COBLE .................................................................................................................................... x 

MR. SMITH ..................................................................................................................................... x 

MR. GALLEGLY ............................................................................................................................... x 

MR. GOODLATTE ............................................................................................................................ x 

MR. CHABOT .................................................................................................................................. x 

MR. LUNGREN ............................................................................................................................... x 

MR. JENKINS .................................................................................................................................. x 

MR. CANNON ................................................................................................................................. x 


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Ayes Nays Present 

MR. BACHUS ................................................................................................................................. x 

MR. INGLIS .................................................................................................................................... x 

MR. HOSTETTLER ........................................................................................................................... x 

MR. GREEN .................................................................................................................................... x 

MR. KELLER.

MR. ISSA ....................................................................................................................................... x 

MR. FLAKE ..................................................................................................................................... x 

MR. PENCE .................................................................................................................................... x 

MR. FORBES .................................................................................................................................. x 

MR. KING ....................................................................................................................................... x 

MR. FEENEY .................................................................................................................................. x 

MR. FRANKS .................................................................................................................................. x 

MR. GOHMERT ............................................................................................................................... x 

MR. CONYERS ............................................................................................................................... x 

MR. BERMAN ................................................................................................................................. x 

MR. BOUCHER ............................................................................................................................... x 

MR. NADLER .................................................................................................................................. x 

MR. SCOTT .................................................................................................................................... x 

MR. WATT ...................................................................................................................................... x 

MS. LOFGREN ................................................................................................................................ x 

MS. JACKSON LEE ......................................................................................................................... x 

MS. WATERS .................................................................................................................................. x 

MR. MEEHAN ................................................................................................................................. x 

MR. DELAHUNT .............................................................................................................................. x 

MR. WEXLER .................................................................................................................................. x 

MR. WEINER .................................................................................................................................. x 

MR. SCHIFF ................................................................................................................................... x 

MS. SANCHEZ ................................................................................................................................ x 

MR. VAN HOLLEN .......................................................................................................................... x 

MRS. WASSERMAN SCHULTZ ......................................................................................................... x 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... x 

TOTAL ................................................................................................................................... 20 19 

ROLLCALL NO. 12—DATE: 9–20–06

SUBJECT: Motion to report H.R. 6054 favorably, which was 

agreed to by a rollcall vote of 20 ayes to 19 nays. 

Ayes Nays Present 

MR. HYDE ...................................................................................................................................... X 

MR. COBLE .................................................................................................................................... X 

MR. SMITH ..................................................................................................................................... X 

MR. GALLEGLY ............................................................................................................................... X 

MR. GOODLATTE ............................................................................................................................ X 

MR. CHABOT .................................................................................................................................. X 

MR. LUNGREN ............................................................................................................................... X 

MR. JENKINS .................................................................................................................................. X 

MR. CANNON ................................................................................................................................. X 

MR. BACHUS ................................................................................................................................. X 

MR. INGLIS .................................................................................................................................... X 

MR. HOSTETTLER ........................................................................................................................... X 

MR. GREEN .................................................................................................................................... X 

MR. KELLER.

MR. ISSA ....................................................................................................................................... X 

MR. FLAKE ..................................................................................................................................... X 

MR. PENCE .................................................................................................................................... X 

MR. FORBES .................................................................................................................................. X 

MR. KING ....................................................................................................................................... X 

MR. FEENEY .................................................................................................................................. X 

MR. FRANKS .................................................................................................................................. X 

MR. GOHMERT ............................................................................................................................... X 

MR. CONYERS ............................................................................................................................... X 

MR. BERMAN ................................................................................................................................. X 


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Ayes Nays Present 

MR. BOUCHER ............................................................................................................................... X 

MR. NADLER .................................................................................................................................. X 

MR. SCOTT .................................................................................................................................... X 

MR. WATT ...................................................................................................................................... X 

MS. LOFGREN ................................................................................................................................ X 

MS. JACKSON-LEE ......................................................................................................................... X 

MS. WATERS .................................................................................................................................. X 

MR. MEEHAN ................................................................................................................................. X 

MR. DELAHUNT .............................................................................................................................. X 

MR. WEXLER .................................................................................................................................. X 

MR. WEINER .................................................................................................................................. X 

MR. SCHIFF ................................................................................................................................... X 

MS. SANCHEZ ................................................................................................................................ X 

MR. VAN HOLLEN .......................................................................................................................... X 

MRS. WASSERMAN SCHULTZ ......................................................................................................... X 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... X 

TOTAL ................................................................................................................................... 20 19 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 6054, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

H.R. 6054—Military Commissions Act of 2006 

Summary: H.R. 6054 would authorize the President to establish 

military commissions to try unlawful combatants for a number of 

offenses including terrorism, hijacking, and the murder of non-combatants. The bill would set out the rules and procedures for such 

trials, including the process for assigning counsel and compelling 

witnesses and evidence, the rules of evidence, and post-trial reviews and appeals. H.R. 6054 also would amend the U.S. criminal 

code to retroactively specify which actions under the Geneva Convention would be considered criminal acts for which the U.S. 

Armed Forces or other U.S. nationals could be prosecuted. The bill 

would apply to detention, treatment, or trial of any person detained 

since September 11, 2001. 

CBO estimates that implementing H.R. 6054 would cost $21 million in 2007 and $141 million over the 2007–2011 period, assuming 


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the appropriation of necessary funds. Enacting H.R. 6054 would 

not affect direct spending or revenues. 

H.R. 6054 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would not affect the budgets of state, local, or tribal governments. 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 6054 is shown in the following table. The costs 

of this legislation fall within budget function 050 (national defense). 

By fiscal year, in millions of dollars— 

2007 2008 2009 2010 2011 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Estimated Authorization Level ...................................................................... 29 30 31 31 32 

Estimated Outlays ......................................................................................... 21 28 29 31 32 

Basis of estimate: Pursuant to the President’s Military Order on 

November 21, 2001, the Secretary of Defense established the Office 

of Military Commissions (OMC) within the Defense Legal Services 

Agency of the Department of Defense (DoD). Prior to the U.S. Supreme Court’s decision on June 29, 2006, that prohibited the use 

of military commissions to try unlawful combatants, the OMC was 

responsible for trying unlawful combatants detained by DoD. 

To date in fiscal year 2006, the OMC has received approximately 

$27 million in appropriations from the fiscal year 2006 Defense Appropriations Act (Public Law 109–148) and the 2006 Emergency 

Supplemental for Defense, the Global War on Terror, and Hurricane Recovery (Public Law 109–234). Those amounts cover expenses for salaries and benefits of civilian personnel, travel, contractual services, equipment and supplies. In addition, the OMC 

has also used 10 to 15 reserve Judge Advocates to assist the OMC 

in preparing and trying cases. Based upon prior costs and staffing 

levels, CBO estimates that implementing H.R. 6054 would cost $21 

million in 2007 and $141 million over the 2007–2011 period, assuming the appropriation of necessary funds. 

CBO assumes for the purposes of this estimate that, if legislation 

is not enacted authorizing the use of military commissions to try 

unlawful combatants detained by the United States, the OMC will 

be dissolved and the United States would continue to hold those 

detainees who would have been tried. Thus, the estimated costs of 

the bill reflect only the incremental costs for conducting such trials. 

Section 4 of H.R. 6054 would change the U.S. criminal code to 

specify which actions under the Geneva Convention would be considered criminal acts for which the U.S. Armed Forces or other 

U.S. nationals could be prosecuted. We expect that section 4 would 

apply to a relatively small number of cases. Thus, any resulting 

change in costs for law enforcement, court proceedings, or prison 

operations would not be significant. 

Section 6 would specify that section 1003 of the Detainee Treatment Act of 2005 would satisfy U.S. obligations with respect to the 

standards for treatment under Common Article 3 under the Geneva 

Conventions. If enacted, this section may provide more latitude to 

the United States in the treatment and interrogation of detainees. 

Section 7 of the bill would expand the conditions under which the 


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22See H.R. Rep. No. 109–664 (2006). 

government would provide funds and personnel to defend certain 

government employees who are being investigated or prosecuted in 

matters related to the detention and interrogation of certain detainees. CBO has no basis for estimating the potential cost of those 

sections. 

Intergovernmental and Private-Sector Impact: H.R. 6054 contains no intergovernmental or private-sector mandates as defined 

in UMRA and would not affect the budgets of state, local, or tribal 

governments. 

Previous CBO Estimate: On September 15, 2006, CBO transmitted a cost estimate for H.R. 6054 as ordered reported by the 

House Committee on the Armed Services on September 13, 2006. 

The two versions of the bill are identical, as are CBO’s estimates. 

Estimate prepared by: Federal Costs; Jason Wheelock. Impact on 

State, Local, and Tribal Governments: Melissa Merrell. Impact on 

the Private Sector: Victoria Liu. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 6054 authorizes 

trial by military commission for violations of the law of war, 

amends the War Crimes Act to specify particular crimes constituting ‘‘serious violations’’ of Common Article 3 of the Geneva Conventions, and overturns certain holdings in the recent Supreme 

Court case of Hamdan v. Rumsfeld. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article 1, section 8 of the Constitution, including clauses 

10, 11, 14 and 18. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following section-by-section analysis describes the sections of 

H.R. 6054 as reported that fall within the Rule X jurisdiction of the 

Committee on the Judiciary. For a description of the other sections 

of the bill, please refer to the report of the Committee on Armed 

Services.22

Section 4—Clarification of conduct constituting a war crimes offense 

under Federal Criminal Code 

Section 4 amends 18 U.S.C. § 2441(c) (the War Crimes Act of 

1996) to clarify that the United States will prosecute as war crimes 

conduct which constitutes a ‘‘serious violation’’ of Common Article 

3 of the Geneva Conventions. Common Article 3 prohibits certain 

conduct, including ‘‘outrages upon personal dignity,’’ a vague 

phrase virtually impossible to define in the context of a criminal 

statute. See Connally v. General Constr. Co., 269 U.S. 385, 391, 70 

L. Ed. 322, 46 S. Ct. 126 (1926) (‘‘a statute which either forbids or 

requires the doing of an act in terms so vague that men of common 


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intelligence must necessarily guess at its meaning and differ as to 

its application, violates the first essential of due process of law.’’) 

Section 4 instead enumerates specific, definable conduct which 

will be prosecuted as a war crime: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or 

maiming, intentionally causing great suffering or serious injury, 

rape, sexual assault or abuse, and taking hostages are codified and 

defined in this section as conduct which constitutes a war crime. 

The section would also make the amendment apply retroactively to 

the date of the last amendment of the War Crimes Act (November 

26, 1997). Retroactivity will not affect any pending case, since no 

person has been prosecuted for violations of the War Crimes Act 

since its initial enactment. 

Section 5—Judicial review 

Section 5 would amend 28 U.S.C. § 2241 to prohibit any court, 

justice, or judge (except the United States Court of Appeals for the 

District of Columbia Circuit) from hearing or considering any claim 

or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of H.R. 6054, 

against the United States or its agents, brought by or on behalf of 

any alien detained by the United States as an unlawful enemy 

combatant, relating to any aspect of the alien’s detention, transfer, 

treatment, or conditions of confinement. Section 5 would permit the 

D.C. Circuit to review two causes of action for these aliens: (1) exclusive jurisdiction to determine the validity of any final decision 

of a Combatant Status Review Tribunal (CSRT); and (2) final judgments of military commissions as provided for pursuant to section 

950g of Section 3 of H.R. 6054. Finally, this section would provide 

that the D.C. Circuit may consider classified information submitted 

in camera and ex parte in making any determination under this 

section. 

This section would correct the Supreme Court’s erroneous interpretation of the Detainee Treatment Act of 2005 (DTA) in Hamdan 

v. Rumsfeld, in which the Court found that the DTA’s habeas corpus limitations did not apply retroactively to cases pending on the 

date of enactment. The DTA amended the Federal habeas corpus 

statute (28 U.S.C. § 2241) to provide that the D.C. Circuit would 

have jurisdiction over determinations of CSRTs for enemy combatants detained at the U.S. Naval Base, Guantanamo Bay, Cuba and 

final judgments of military commissions, and that all other courts 

would be foreclosed from hearing habeas corpus petitions or any 

other civil actions brought by enemy combatants in United States 

custody. This section forecloses any legal claim, including applications for the writ of habeas corpus, brought on by or on behalf of 

these detainees, since judicial review of detention and military 

commission decisions is channeled through the adequate alternative procedures provided by this Act and the DTA. The Committee notes that the use of the phrase ‘‘pending on or filed after 

the date of enactment’’ is in response to the Supreme Court’s incorrect holding in Hamdan, but should not be construed by the courts 

to require the use of such terms in any future legislation where 

Congress removes any court’s jurisdiction over a class of cases. Absent an express reservation by Congress to the contrary, any Act 

removing courts’ jurisdiction over a class of cases should apply to 


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cases pending on or after the date of the enactment of the Act, regardless of whether Congress uses the phrase ‘‘pending on or filed 

after the date of enactment.’’

Section 6(b)—Rights not judicially enforceable 

Section 6(b) would prohibit any court from treating the Geneva 

Conventions as a source of rights, directly or indirectly, making 

clear that the Geneva Conventions are not judicially enforceable in 

any court of the United States. 

Until the Hamdan decision, the prohibitions contained in Common Article 3 were not considered enforceable in United States 

courts. This section demonstrates Congress’ intent to return to that 

original understanding of Common Article 3. Instead, the United 

States Constitution, which provides the fundamental, underlying 

protections for the rights and liberties of all American citizens, will 

be used as a familiar standard to provide sufficient rights for detainees, especially unlawful enemy combatants. 

Section 6(c)—Geneva Convention defined 

This section defines the ‘‘Geneva Convention’’ as the international conventions signed at Geneva on August 12, 1949, including Common Article 3. 

Section 7—Revisions to Detainee Treatment Act of 2005 relating to 

protection of certain United States Government personnel 

Section 7 would amend section 1004(b) of the Detainee Treatment Act (DTA) of 2005 to enhance the protection of U.S. government personnel engaged in authorized interrogations. Section 

1004(b) of the DTA provides counsel in any civil action or criminal 

prosecution against a member of the armed forces or other agent 

of the United States government in cases involving certain interrogation procedures of aliens determined by the government to be 

international terrorists. This section would provide that the provision of counsel under section 1004(b) is mandatory, that the right 

to counsel includes investigations, and that the right applies to foreign and international courts or agencies. This section would further provide that the affirmative defense provided in section 

1004(a) of the DTA and the right to counsel provided in section 

1004(b) of the DTA applies to any criminal prosecution that: (1) related to the detention and interrogation of aliens described in such 

section, (2) is grounded in section 2441(c)(3) of title 18, United 

States Code (as amended by section 4 of this Act), and (3) relates 

to actions occurring between September 11, 2001, and December 

30, 2005. 

Section 8—Retroactive applicability 

Section 8 would clarify that the Act retroactively applies ‘to any 

aspect of detention, treatment or trial of any alien detained at any 

time since September 11, 2001.’ This section further states that the 

Act applies to any case, pending or not, whether filed before or 

after the effective date of the Act. 

CHANGES IN EXISTING LAW BY THE BILL, AS REPORTED

The bill was referred to this Committee for consideration of such 

provisions of the bill as fall within the jurisdiction of this ComVerDate Aug 31 2005 11:25 Sep 26, 2006 Jkt 049006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\HR664P2.XXX HR664P2

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mittee pursuant to clause 1(1) of rule X of the Rules of the House 

of Representatives. The changes made to existing law as reported 

by the Committee on Armed Services are shown in the report filed 

by that committee (Rept. 109–664, Part 1). The amendments made 

by this Committee to existing law within its jurisdiction are identical to those shown in such part 1. 


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MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, SEPTEMBER 20, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:10 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. (chairman of the committee) presiding. 

Chairman SENSENBRENNER. The committee will be in order. A 

working quorum is present. Pursuant to notice I now call up the 

bill H.R. 6054, the Military Commissions Act of 2006, for purposes 

of markup and move its favorable recommendation to the House. 

Without objection, the bill will be considered as read and open for 

amendment at any point and the text as reported by the Committee on Armed Services which the members have before them 

will be considered as read, be considered as the original text for the 

purposes of amendment and open for amendment at any point, and 

the Chair recognizes himself for 5 minutes to explain the bill. 

[The bill, H.R. 6054, follows:] 


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Chairman SENSENBRENNER. This bill, the Military Commissions 

Act of 2006, authorizes trials by military commissions of alien unlawful enemy combatants for violation of the laws of war. Provisions of this legislation that are within the jurisdiction of the Judiciary Committee make changes to the Federal habeas corpus and 

war crime statutes. 

In the aftermath of September 11, President Bush authorized the 

Secretary of Defense to establish military commissions to provide 

full and fair trials for members of al-Qaeda who engaged in, aided, 

abetted or conspired to commit the attacks against the United 

States. 

In January 2002, the administration began detaining foreign terrorists as enemy combatants at U.S. facilities at Guantanamo Bay 

and instituted procedures to review the detainees’ enemy combatant status. DOD began prosecuting certain detainees using military 

commissions as authorized by the President. During this time, detainees brought lawsuits in Federal courts that challenged the legality of their detention and the legality of the President’s military 

commissions. 

Partially in response to these lawsuits, Congress passed the Detainee Treatment Act of 2005, which provided for limited judicial 

review of DOD detention decisions and barred other lawsuits by 

the detainees in U.S. custody. 

On June 29th, 2006, the Supreme Court held in Hamdan v. 

Rumsfeld that the President’s military commissions were unlawful 

because they did not comply with Uniform Code of Military Justice 

and Common Article 3 of the Geneva Conventions. The Court also 

found the DTA did not bar habeas petitions in other lawsuits by 

detainees pending on the date of enactment despite clear statutory 

language to the contrary. 

In response to the Supreme Court’s decision in Hamden and this 

acknowledgment that Congress could authorize military commissions as long as they complied with the Constitution, Chairman 

Hunter, several other members and I introduced H.R. 6054. Last 

week the Armed Services Committee favorably reported this legislation by an overwhelming bipartisan vote of 52 to 8. 

The portions of the bill that fall within the Judiciary Committee’s 

jurisdiction are as follows: 

Section 4 of the bill amends the War Crimes Act of 1996 to clarify what conduct the United States will prosecute under Common 

Article 3 of the Geneva Conventions as a war crime. 

Section 5 of the bill amends the Federal habeas corpus statute 

to prohibit any lawsuits pending or filed after enactment brought 

by unlawful alien combatants relating to detention, transfer, treatment or conditions of confinement. 

This change is in response to the Supreme Court’s erroneous determination in Hamden that the DTA’s habeas corpus limitations 

did not apply retroactively to cases pending on the date of enactment. It is important to note that this provision will allow the D.C. 

Circuit to review the validity of enemy combatant determinations 

by DOD and any final judgments of the military commissions created under this bill. 

Section 6 of the bill pertains to U.S. obligations under the Geneva Conventions. Only sections 6B and C are within this commitVerDate Aug 31 2005 11:25 Sep 26, 2006 Jkt 049006 PO 00000 Frm 00105 Fmt 6602 Sfmt 6602 E:\HR\OC\HR664P2.XXX HR664P2

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tee’s jurisdiction. 6B overturns a portion of the Hamden decision 

and declares that the Geneva Conventions are not the source of 

any judicially enforceable rights in U.S. courts. Section 6C is a 

housekeeping provision that defines the term ‘‘Geneva Conventions.’’ Section 7 provides that the DTA’s access to counsel provision for 

U.S. personnel is mandatory. It further provides that the right of 

counsel includes investigation and the right to counsel applies in 

cases before international and foreign courts and agencies. 

Section 8 clarifies the entire act applies retroactively to any aspect of detention, treatment or trial of any alien detained at any 

time since September 11th and to any case whether pending or 

filed after the date of enactment. 

While this committee’s jurisdiction is broad, rule X of the rules 

of the House places a germaneness limitation on amendments that 

can be considered as markup. Therefore, the Chair would advise 

members to limit amendments to the aforementioned sections of 

the bill. 

As a final note, I hope that my colleagues will remain mindful 

that the purpose of this legislation is to provide congressional authorization to establish a fair and effective procedure to prosecute 

dangerous terrorists. In taking this action we provide terrorists, 

such as Khalid Shaikh Mohammed, the mastermind of the 9/11 attacks, the fairness and legal protections that none of their innocent 

victims ever enjoyed. 

I urge my colleagues to support this legislation and in the absence of Mr. Conyers, who wishes to give the Democratic opening 

statement? The gentleman from New York, Mr. Nadler, is recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. I move to strike the last 

word. 

Chairman SENSENBRENNER. The gentleman is recognized. 

Mr. NADLER. Mr. Chairman, this is how a nation loses its moral 

compass, its identity, its values and ultimately its freedom. It is 

ironic that the people who use the word ‘‘freedom’’ with reckless 

abandon in everything from freedom fries to a global vision should 

come before the American people advocating torture. I know we 

have been told it is not really torture, but I am sickened by the 

quibbling, legalistic hair splitting on something so basic to our Nation’s fundamental values. We seem to have forgotten that this is 

the United States of America and that we stand for certain inalienable propositions. 

Let me say that again, we are the United States of America and 

we ought to behave that way. We have stood as a beacon to the 

world. People have aspired to our way of life, our values, our example, our leadership. Now, with scant deliberation, with no hearing 

in this committee, in an election eve stampede, we are urged to 

throw it away like yesterday’s newspaper. 

The honor and values of our Nation would be permanently 

stained by this detestable legislation. It is beneath us. It should not 

be what we stand for. 

Perhaps if this were necessary for our safety, perhaps if, as military leaders have told us, it would not place our men and women 

in jeopardy, perhaps if it would not guarantee that our allies would 


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simply stop cooperating with us on intelligence matters vital to our 

security, we might have something to discuss. But that is not the 

case. We do not need to do this and it will make us less safe if we 

do. 

Who does this sort of thing? I ask unanimous consent to place 

into the record an article by Vladimir Bukosy, who was a guest of 

the KGB for 12 years in various camps, prisons and psychiatric 

hospitals. 

Chairman SENSENBRENNER. Without objection. 

[The information follows:] 


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Mr. NADLER. He points out that he was subject to many of the 

techniques we are now debating. The techniques he describes, including sleep depravation, have all taken place on our watch. Is 

this the company we now want to keep? Are Stalin’s techniques the 

models that we want to follow? 

There is no ambiguity as to what is prohibited under the treaties 

we have voluntarily agreed to respect and claim to have respected 

for the last 50 years until this bill, at least not until the latest 

crowd of hair splitters found their way into the White House. 

We should not do this. We should not stand up—we should stand 

up for America and American values. We should not stain our Nation’s honor. 

I would point out that even if you object to placing in the record 

a relevant excerpt from the experiences of someone else, we have 

the statement that was in the New York Times 2 days ago, a couple of days ago from a Bubak Irkasim, who was held totally innocently by Americans in prison in Iraq because—in Guantanamo because he was in the wrong place at the wrong time and we finally 

released him after a year and a half of not nice measures. But habeas corpus is what set him free. This bill will eliminate habeas 

corpus. 

Mr. Chairman, no executive authority in an English speaking 

country has claimed the right to eliminate habeas corpus except in 

cases of an imminent insurrection or invasion or when enemy 

troops were on our soil during the Civil War since Magna Carta 

800 years ago. The White House claims that right. Not even George 

III did that. The complaints we leveled against George III in the 

Declaration of Independence were less obnoxious than the things 

that this bill would make legal and that this President claims are 

legal. 

Mr. Chairman, this bill is an insult to all of our traditions and 

should not be adopted. I thank you. I yield back. 

Chairman SENSENBRENNER. Without objection, all members may 

put opening statements in the record at this point. 

Are there any amendments? For what purpose does the gentleman from California, Mr. Schiff, seek recognition? 

Mr. SCHIFF. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

The CLERK. Amendment to H.R. 6054 offered by Mr. Schiff and 

Mr. Flake, strike section 4, insert the following. Section 4, revision 

to war crimes offense under Federal criminal code. Subsection A, 

in general. 

[The amendment follows:] 


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Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read and the gentleman from California is recognized 

for 5 minutes. 

Mr. SCHIFF. Mr. Chairman, I offer this bipartisan amendment 

today with my colleague Representative Flake from Arizona. This 

proposal amends section 4 of the Hunter bill to bring it in line with 

the Warner-McCain-Graham language. After the Supreme Court 

held that Common Article 3 applies to the conflict against al-Qaeda 

the President suggested some of the articles of Common Article 3 

provide U.S. Personnel with inadequate notice as to what interrogation methods can permissibly be used against detained al-Qaeda 

suspects and requested legislation listing specific recognizable offenses that would be considered crimes under the War Crimes Act. 

Therefore, both the Warner-McCain-Graham as well as the 

Hunter bill amend the War Crimes Act provision concerning Common Article 3, specifying the serious grave violations that would be 

punishable. These include a number of serious offenses, including 

torture and cruel treatment. 

The key difference between Warner-McCain-Graham legislation 

and the Hunter bill in this section is the definition of cruel treatment. The Hunter bill defines cruel treatment as treatment arising 

to the level of torture. This effectively removes cruel, inhuman, degrading treatment from the list of prohibited conduct, merely reiterating that torture is a prosecutable offense. 

The Warner-McCain-Graham bill on the other hand addresses 

this issue squarely by defining cruel, inhuman or degrading treatment as conduct that would be unconstitutional under the 5th, 8th 

and 14th amendments if it occurred in the United States. This language is entirely consistent with the McCain amendment language 

that Congress passed last year. 

The Warner-McCain-Graham approach provides needed clarity, 

ensuring that interrogators and officials have sufficient notice of 

what conduct could subject them to liability while ensuring that 

Congress does not implicitly endorse any future abuse. This I believe is also critical to protecting our own troops that we observe 

these standards in dealing with those that we hold in custody. 

Senators Warner, McCain, and Graham I believe have the right 

approach. I commend my colleague Mr. Flake for also seeking to 

address this issue and I urge members of the committee to support 

our bipartisan amendment. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. SCHIFF. Mr. Chairman, I yield back. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Forbes. 

Mr. FORBES. Yes, sir. Thank you, Mr. Chairman. Mr. Chairman, 

I hope that we will——

Chairman SENSENBRENNER. Does the gentleman move to strike 

the last word? 

Mr. FORBES. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. FORBES. Mr. Chairman, I hope that we will oppose this 

amendment. While I am sure its intention is good, the purpose of 

this legislation is to bring clarity to the provisions which were not 


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there before. There is particular language in the amendment that 

I think would offer us even more unclarity as we move, especially 

the provisions which require the amendment to make cruel, unusual and inhumane treatment or punishment that violates the 

5th, 8th and 14th amendments a war crime, and I am hoping that 

we will defeat this amendment and pass the bill. 

Mr. CHABOT. Would the gentleman yield? 

Mr. FORBES. I yield. 

Mr. CHABOT. I want to make a point. My colleague Mr. Nadler, 

who I have the greatest respect for and actually accompanied on 

a trip down to Guantanamo Bay earlier this year, I just wanted— and the gentleman talked—it is the second time I have been to 

Guantanamo Bay. And the gentleman talked about the KGB and 

sleep deprivation and the Soviet gulags, and not necessarily a direct analogy between that and what is going on in Guantanamo, 

but I would refer to a Washington Times article. A reporter from 

the New York Post, Richard Minter, was down there, according to 

this, last week, and talks about the atmosphere down there in 

which the detainees are entitled to a full 8 hours of sleep and cannot be awakened for interrogation. So that is the situation down in 

Guantanamo Bay right now, and so I think to maybe leave that impression out there hanging, that the way these people are being 

treated down at Guantanamo Bay is in any way similar to the 

gulags, Soviet gulag, is just not accurate. 

Other things—there is a misimpression I think out there in the 

world about how these people are being treated down there, that 

there is rampant torture and abuses and the people are just being 

treated in the most miserable fashion. I would just note a couple 

of things. The nutrition, for example, they get there compared to 

the way before they came there from Afghanistan or wherever they 

came from, the average inmate gained about 15 pounds, was receiving better medical care by far, dental care, you name it, being 

given a Koran. 

They pray five times a day. There is an arrow on the floor in 

each of the rooms and out in the hallways so that they know which 

way Mecca is so they can pray accordingly. 

Clearly I wouldn’t want to be an inmate in Guantanamo Bay and 

I don’t think anything in this room would want to be there, but I 

think you have to remember where these people came from and the 

circumstances that resulted in their being at Guantanamo Bay. 

Mr. DELAHUNT. Would the gentleman yield? 

Mr. CHABOT. It is his time. 

I have heard from constituents in my area and a lot of other people that the terrorists and especially the higher al-Qaeda individuals that are being housed there are being treated far better than 

most of them deserve when you consider the circumstances that 

they were involved in which resulted in them being at Guantanamo 

Bay. It really depends on whether or not we are serious about this 

battle against international terrorism or whether we are not. I am 

not for torturing anybody and that is not what is happening down 

there and I would defy anybody to prove the opposite. 

I thank the gentleman for yielding. 

Mr. DELAHUNT. Would the gentleman yield? 

Mr. FORBES. Reclaiming my time. 


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One of the things the gentleman from Ohio makes clear too is 

the importance for us reaching a balance here. Congressman Nadler talked about American values but we can’t forget one of the 

major American values is the right for our citizens to be able to live 

and to continue to be free from the terrorist attacks that are out 

there. 

I think the amendment that is before us, while again good intentioned, certainly brings a lack of clarity to the primary piece of legislation that is before this committee which I think strikes a good 

balance, and I hope that we will defeat the amendment. I yield 

back the balance of my time. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Michigan, Mr. Conyers, seek recognition? 

Mr. CONYERS. I rise in support of the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CONYERS. I do so because I had a similar amendment, but 

in the interest of time I want to make it clear that the Schiff 

amendment is right on point and is absolutely necessary. We are 

trying to correct legislation that endangers our troops because it 

lowers the standards set forth in the Geneva Convention which 

were agreed to by all the nations of the civilized world after World 

War II and have been honored ever since. 

When our troops are captured in combat we expect every nation 

and every person to abide by the letter and spirit of the law. When 

a public official as respected as Colin Powell writes the administration’s proposal would put our troops at risk, we should take him 

seriously. 

And so what we are trying to do is correct a serious mistake in 

this legislation because by defining cruel or inhuman treatment on 

par with torture, we would immunize civilians and CIA interrogators who engage in abuse of detainees. In other words, what we are 

being asked to do is to authorize CIA and civilian interrogators to 

use practices that amount to torture. 

And so my friend from Ohio, the Chabot relativity theory that 

you are better off in Guantanamo than where you came from so 

let’s get on with it is totally unacceptable from my analysis. 

The amendment correctly defines the domestic war crime of cruel 

or inhuman torture and treatment by using the standards of the 

5th, 8th and 14th amendments in our own Constitution, similar to 

the Warner bill in the Senate and the Detainee Treatment Act already passed by Congress. This category of conduct is broader in 

scope, as there are many practices that while unconstitutionally 

cruel or inhuman, may not rise to the level of torture. 

Ladies and gentlemen of the committee, this is an incredibly important consideration that we are examining today, and I regret 

very much that we haven’t had hearings on it. I know we are facing the clock now but it is very important that this amendment, 

which is constructive and helpful, the least we could do is add the 

Schiff amendment to a very questionable proposition that is before 

us today. 

I return my unused time. 

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Mr. FLAKE. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. FLAKE. I commend Mr. Schiff for working so hard on this 

and other issues that we will deal with today and I am proud to 

stand with him in offering this amendment. 

My understanding is, if you read the press reports today, that 

the White House is coming a little closer to the Warner-McCainGraham position with regard to the Hamden case. I think that this 

is where we are going to end up with this language or something 

very similar and gratefully so. We believe amending the War 

Crimes Act to cover specific acts without addressing cruel, inhuman or degrading treatment, as the Hunter language does, would 

overly restrict the act’s scope, making certain unspecified conduct 

legally permissible even though it is as severe as conduct expressly 

prohibited by the act. That is what this is about. 

We are simply taking a standard that we can all understand, I 

believe; conduct that would be unconstitutional under the 5th, 8th 

or 14th amendment if it had occurred in the U.S. This I might 

point out as well is consistent with the McCain amendment that 

passed last year. 

Again, I think this is where we are going to end up. I commend 

the gentleman from California for offering this. 

Mr. FEENEY. Will the gentleman yield? 

Mr. FLAKE. Yes. 

Mr. FEENEY. I want to commend the gentleman from California 

and Arizona and I know that they do this in good faith and I have 

some concern about this treatment as well. The problem is the actual language. The bill in front of us actually talks about inflicting 

severe physical pain or suffering or mental pain or suffering. I 

think the intelligence community can decide what that means. 

On the other hand, the language in the Schiff-Flake amendment 

talks about inhumane treatment. We just heard that not guaranteeing 8 hours of sleep at Guantanamo has been interpreted by 

some as inhumane. There is not an American mom that is guaranteed 8 hours of sleep every night. There are very few people in the 

business world, there are very few employees that are guaranteed 

8 hours of sleep. 

There are suggestions that playing loud music is inhumane treatment. By the way, there are trial lawyers in America prepared to 

try to prove that case every day. I guarantee you every major city 

in America has trial lawyers that will try to prove that playing 

loud music is inhumane if they think they can make a buck out of 

it. The bottom line is virtually every teenager I know is torturing 

mom and dad. 

I have a definitional problem. I really do share the concerns and 

I have talked to the gentleman from Arizona, but maybe there is 

better language that is in the bill. But given the state of where we 

are and what some people have interpreted inhumane treatment, 

I suggest the definitional problem is the key to giving Americans 

comfort that we are maintaining our moral standards but also 

guaranteeing every intelligence officer can do what he needs to do 

to find out when that nuclear bomb, when that chemical bomb, 


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when that biological bomb is going to hit ahead of time and not 

after. 

I would yield back to the gentleman from Arizona for comment. 

Mr. FLAKE. Before yielding to the gentleman from California the 

remainder of the time, I would state if you have the definitional 

problems that we have, you will have them to a similar degree with 

the Hunter language. It is difficult, it is difficult to define. We feel 

this is a better standard. 

I yield to the gentleman from California. 

Mr. SCHIFF. I thank the gentleman for yielding. I would add to 

that we do give content to those terms and we give content to it 

by saying that cruel and inhuman treatment is conduct that would 

be considered cruel and inhuman treatment and unconstitutional 

under our 5th, 8th and 14th amendments. Now I don’t think the 

court has ever interpreted the 5th, 8th or 14th amendment to say 

if you don’t get 8 hours of sleep—— Mr. FEENEY. Would the gentleman yield on that? In fairness 

what you are suggesting is that known terrorists that have information about a potential nuclear weapon are entitled to the protections of the Bill of Rights and I don’t know that I am prepared to 

say that. 

Mr. SCHIFF. If the gentleman will yield again. What I am saying 

is you probably remember, as I do, during the opening days of the 

Iraq war when American troops are captured and how we lamented 

the terrible treatment of those American troops. And when American troops are captured on the battlefield I am very concerned 

about how they are treated and I don’t know how we can avoid a 

situation where if we are willing to under the guise of clarifying 

the Geneva Convention, really amend the Geneva Convention and 

adopt our own standard, a looser standard, how that will give us 

any confidence that when American troops are captured that they 

will be well treated, not treated inhumanely, cruelly, or tortured. 

This is to protect our troops as much as anything, and I have 

never seen any court interpret the Constitution in the manner in 

which the gentleman has suggested, although I am sure parents 

who feel tortured by their teenagers, I don’t think that is in the 

Constitution. 

Moreover, as my other colleague pointed out in terms of the conditions at Guantanamo, again, whether the conditions at Guantanamo are better or worse than where the people came from, the important thing is how are our troops going to be treated, how can 

we insist upon their fair treatment and prohibit torture of own 

troops without adopting standards as clearly as we can, and I think 

our Constitution is about as clear as we can get in an otherwise 

murky area. I think this is necessary for the protection of our own 

troops, and I yield back to the gentleman. 

Chairman SENSENBRENNER. The time of the gentleman has expired. For what purpose does the gentleman from Massachusetts 

seek recognition? 

Mr. DELAHUNT. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. DELAHUNT. I think on this occasion we ought to give deference to the overwhelming opinion of our military leaders. Yes, 


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this is about fighting terrorism, and I think it is interesting to note 

that in testimony before the Senate, and I would have welcomed 

hearing the senior-serving Judge Advocates General testify in this 

matter but we won’t have that opportunity. 

But before the Senate the Judge Advocates indicated that our 

Armed Forces have been trained to Common Article 3, which is the 

core of what we are talking about, and can live within its requirements while waging the war on terror effectively. That was their 

opinion. So any suggestion that this would limit or inhibit the 

United States in terms of dealing with those that would destroy us, 

according to our military, has no substance. 

To the contrary, some 40 retired generals, admirals, senior military, and I am not referring specifically to the former Secretary of 

State Colin Powell who made that rather dramatic observation 

about the moral basis, the erosion of our claim to a moral basis for 

the war on terrorism, but in very practical terms they are imploring that we go in the direction of the Schiff-Flake legislation known 

as the Warner-McCain-Lindsay approach in the Senate. 

There is a letter dated September 12th to Chairman Warner articulating the views of these esteemed retired military. We always 

talk about listening to the military. This is an opportunity to do 

that by adoption of this particular amendment. 

Let me read one excerpt from that letter. We have deployed right 

now in theaters where Common Article 3 is the only source of legal 

protection should they be captured, ‘‘they’’ referring to American 

troops. If we allow that standard to be eroded, we put their safety 

at greater risk. 

This is an opportunity to protect American service personnel, and 

if we fail to adopt this, if we listen to our military, we are putting 

our troops at risk. So understand what this vote is about. It is 

about protecting American military personnel in the war on terror. 

With that I yield back. 

Chairman SENSENBRENNER. For what purpose does the gentleman from California, Mr. Lungren, seek recognition? 

Mr. LUNGREN. Strike the requisite number of words. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. LUNGREN. Mr. Chairman, this is a difficult issue and difficult 

question and I think some of the discussion borders on hyperbole 

here. I think there are well-intentioned people on both sides whose 

main purpose is to make sure that we protect American troops who 

might be captured on the battlefield, but I do have to respond to 

some comments. As much as I respect Colin Powell, to suggest that 

somehow our actions here would change the moral discussion or 

the moral reality that exists between this Nation fighting against 

terrorists who reject every norm under the Geneva Convention I 

think with all due respect to General Powell is absurd. We are 

dealing with an enemy who refuses to wear a uniform, who uses 

as a normal tactic hiding among civilians, whose idea of justice is 

sawing somebody’s head off not only to kill them but to get as 

much pain as possible and to broadcast it such that it sends a message of terror. 

To suggest that as we go through this and attempt to articulate 

the appropriate definition of appropriate activity by those who 


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would seek to gain intelligence, that somehow there is a moral 

equivalence to that is absurd. It is the kind of nonsensical argument that unfortunately diminishes the seriousness of the threat 

that is against us. 

One can take that position; that is, saying that the definition 

contained in the amendment is more appropriate than the definition contained in the bill, without suggesting that men and women 

of good will in this body attempting to find the best solution are 

somehow because of their position undercutting the moral position 

of the United States, number one. 

Number two, I may be one of the few people in this committee 

who voted against that torture resolution that came through on the 

floor of the House of Representatives earlier this year. It is not because I support torture. 

While I was in another position in the State of California I had 

the obligation of attempting to ensure that inappropriate action 

was not taken by authorities and, when we did find that, prosecuting those authorities. But what bothered me in that debate and 

what bothers me here is this. A good friend of mine on the Senate 

side, Senator McCain, with his definition of torture, said when 

posed the question of what we would do if we had one of these terrorists in custody who had the information that could in fact make 

the difference between protecting 3,000 or 30,000 or 300,000 American lives said, well, we would take care of that. We would find a 

way. And the suggestion is that we would find a way that would 

allow us to get that information that might contravene the definition of torture, but we would want that done because under certain 

circumstances we would think that appropriate to gain that information. 

But what that does is it puts at risk those individuals who are 

the professionals who we ask, probably young men and women in 

uniform or young intelligence officers somewhere in the world, we 

put them at risk. It is our obligation and that is what we are pursuing here, to try and define the parameters in which this action 

would take place. 

Hence, my second concern, which is to define this in terms of the 

U.S. Constitution, 5th, 8th and 14th amendments, suddenly confers 

constitutional protections on those who are obviously not citizens 

but, more than that, those who have at least been accused of attempting to kill American citizens in the name of some distorted 

view of a religion. I think that is something we had better very seriously think about, whether we believe we ought to extend the 

constitutional protections in those cases. That doesn’t mean you 

torture people willy nilly, doesn’t mean that you torture people. But 

to extend the notion of the 5th, 8th and 14th amendments with respect to cruel, unusual and inhumane treatment or punishment I 

think goes a little too far. 

Depravation of sleep I think would be seriously considered by 

some courts in this land with respect to that definition under certain circumstances. I just think that we ought to recognize that we 

are men and women of good will trying to figure out a very difficult 

thing, but in addition to trying to say the actions we take here will 

somehow influence an enemy that believes it is important to saw 

peoples’ heads off, that somehow by passing a certain definition 


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here we are going to change their conduct. But that is a legitimate 

concern as to whether or not it could affect the way our men and 

women would be treated, but we also ought to be concerned about 

those men and women for whom we are going to impose an awesome obligation, attempt to try and get this information in a way 

that is not torture but in a way that may be uncomfortable, in a 

way that may be difficult, in a way that may be different than normal interrogation methods in order to protect 3,000, 30,000, 

300,000 American lives. That is our obligation and we should look 

at both sides of this equation. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition? 

Mr. NADLER. Strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Mr. Chairman, I simply want to make several observations. Number one, the Geneva Convention was signed by the 

United States and ratified I believe in 1949. We have lived with 

it and with its definitions for over almost 60 years. We lived with 

these definitions of what are war crimes and what are our obligations through the Korean War, through the Vietnam War, through 

various other actions, Grenada, et cetera. 

The only reason that anybody thinks these definitions—and, 

frankly, the savagery of the terrorists is not relevant. No one is defending their conduct. But why are the standards that the United 

States has followed that almost every country in the world has 

agreed to, if not adhered to, why are we suddenly finding that that 

is not right? For only one reason, because this lawless administration has violated the law in numerous ways and has condoned 

what most people would call torture. Sleep deprivation 8 hours; 

how about 40 hours, how about water boarding, how about holding 

people and subjecting them to hypothermia? That has happened. 

May not have happened at Guantanamo, I don’t know, but it has 

happened, we know that. We have testimony. 

And now people are afraid that under the law that this Congress 

passed in 1996 under the speakership of Newt Gingrich that defined war crimes, that some members of this administration may 

be held liable for violating the laws of the United States. So we 

have to retroactively redefine the laws of the United States so the 

things that were illegal will be retroactively legal so the President 

doesn’t have to issue pardons to himself and half his administration when he departs office. That is what this debate is really 

about. 

We can very well defend our liberty while adhering to civilized 

values and the reason there is a definition of torture here, we can 

let our courts decide what torture is under the 60 years of precedence in court decisions that we have under the Geneva Conventions. We don’t need to invent new definitions that most people 

think will being less severe by claiming that Geneva is too vague. 

It is not vague. We have 60 years of court precedence. We know 

what it means. 


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That is why we have all these generals and admirals who were 

raised in the American tradition, who were taught at West Point 

and Annapolis and taught the codes of honor and also worried 

about the safety of our people, not those who are captured like 

Khalid Shaikh Mohammed, if he were still at large, because he 

won’t abide by any convention. But there are others. It is for future 

wars, God forbid. 

The United States should hold itself to the same standards we 

claim to hold ourselves and did until a few years ago for the last 

60 years. It is the standard we preached, we demanded in the Geneva Conventions, we got other countries to ratify, we ratified, and 

we tried other people for violating. 

What this is about is saying let’s hair split on what torture is because we have engaged and we want to engage in things that most 

people would consider torture but we will define as not torture. 

That is not worthy of this country. I urge the adoption of this 

amendment. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Iowa, Mr. King, seek recognition? 

Mr. KING. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. KING. Thank you, Mr. Chairman. I would submit to this committee that we are here wrestling with this issue unnecessarily 

from the perspective of the Supreme Court, who injected themselves into this decision, even though the Detainee Treatment Act 

clearly specified that that appeals process would go exclusively to 

the U.S. District Court of Appeals, Washington, D.C., and in the 

precedence that had been established about the court were ignored 

by the Supreme Court. Now we are hearing trying to accommodate 

language to a Supreme Court that didn’t have jurisdiction over this 

case in the first place. Additionally, to have this language that 

grants constitutional protection for enemy combatants, for nonAmerican citizens is a precedent that I am unwilling to follow, and 

furthermore I would submit that we are facing sleep deprivation 

here in this Congress at the shutdown of every single session, and 

that part of the discussion seems absurd to me. 

But I would yield the balance of my time to the gentleman from 

Virginia, Mr. Forbes. 

Mr. FORBES. Thank the gentleman for yielding. Mr. Chairman, 

up to a few minutes ago I was going to say that I was very impressed with the debate that we had had because this issue is so 

important. I think all the people have been so well-intentioned. We 

haven’t had the normal beating on the desk and the screaming and 

hyperbole and I wanted to compliment the gentleman from California, the gentleman from Arizona, the gentleman from Florida for 

all of their comments. All of them are well-intentioned. 

But we have had a lot of people talk about the fact that we put 

our troops at risk. That is the whole purpose and that is why we 

are discussing this, because our troops are at risk and our citizens 

are at risk. If anyone kids themselves and believes that the best 

way to protect our troops or to protect our citizens is something we 

decide in this committee today, I would suggest that the best way 

to do it is with good intelligence to protect those troops and protect 


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our citizens. What we are talking about is balance. Both sides in 

this argument, the gentleman from California, the gentleman from 

Arizona, the gentleman from Florida, all have acknowledged none 

of our wording is infallible, none is perfect. What we are trying to 

do is strike a balance, a balance between protecting the safety of 

our troops and the safety of our citizens against an enemy that 

wants to kill them and destroy them and a balance with the rights 

of terrorists or at least alleged terrorists. 

If we have to err, if that wording can’t be perfect and we can’t 

strike that perfect balance, I would rather err on the side of protecting our citizens, and I believe this underlying bill does that. 

The final thing is one of the important things that we have is 

clarity. I think there is no question that the underlying piece of legislation gives this whole issue far more clarity than the amendment. 

Mr. Chairman, I hope we will defeat the amendment and pass 

the underlying legislation. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Massachusetts, Mr. Meehan, seek recognition? 

Mr. MEEHAN. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. MEEHAN. Mr. Chairman, the fundamental issue that we face 

is whether or not we are going to comply with the Geneva Convention. We can have a debate back and forth of whether 8 hours, 4 

hours or 3 hours are appropriate, but this idea that we can just 

throw away the Geneva Convention. 

One of my friends on the other side said how dare Colin Powell 

say that we are losing the moral high ground. He has a right to 

speak out when he sees the United States’ credibility around the 

world threatened by the fact that we seem to act willy nilly when 

we want to take the Geneva Conventions that are so precious to 

international law and toss them aside. He has a right to speak out. 

John McCain has a right to speak out. He was a prisoner of war 

for 5 years. You know what John McCain says about torture, he 

says it doesn’t work. It isn’t effective. There is no evidence to suggest if we torture people we are going to get the information that 

is the accurate information. There is some evidence to suggest that 

we are going to get the information that they think we want to get 

but not that we are going to get accurate information. John 

McCain, when asked to give names, gave the offensive line for the 

Green Bay Packers. He gave it to them. It is not accurate information you necessarily get. 

We are here at this position because the administration put forward a military commissions, military tribunals procedure that 

were unconstitutional. I don’t know how many more appointments 

to the Supreme Court he needs to get, but his Supreme Court said 

it was unconstitutional. 

Now you could say that on the other side the Supreme Court had 

no business in this. The Supreme Court does have business in this. 

And they said it was unconstitutional. And if this Congress drafts 

a piece of legislation that throws out the Geneva Conventions or 

that somehow says torture is okay, we are going to be back here 


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afterwards because the Supreme Court again will say it is unconstitutional, go at it again. 

Now the amendment offered by the gentleman from California is 

a good amendment because it looks to the leadership of the Senate 

to try to devise a piece of legislation that is bipartisan and bicameral that we can get done. Keep in mind the Justice Department has reported that they have had convictions in the American 

system of over 260 terrorism cases. How many terrorists have we 

brought to justice under the military commissions, military tribunals after 5 years of 9/11? How many people have we brought to 

convictions and brought to justice and held accountable? None. Not 

a single one. 

We should have been drafting, this administration should have 

been drafting a legal constitutional military tribunal system years 

ago but instead we are here 5 years after 9/11 and we are having 

to debate about whether 8 hours, loud music. That has nothing to 

do with this. And when a great American like Colin Powell stands 

up and speaks out because he is worried about the United States 

of America having the moral high ground, I think we ought to listen. When we see people like Lindsay Graham, a JAG officer, stand 

up and say hold on here, we have to make sure we maintain our 

credibility around the world, I think we ought to listen. 

So let’s see if we can’t get together and draft something that is 

bipartisan, bicameral. But this idea—and by the way, our military 

spends a lot of time determining what is effective in terms of interrogation. There is a new Army Field Manual that outlines acceptable methods of interrogation. There are 15 techniques. I would 

urge Members to look at it. There are psychological, emotional interrogation techniques that have been worked in the past. They 

also, as tough as they are, comply with the Geneva Convention. 

That is what we ought to be doing here. That is what our responsibility is. But make no mistake, we are here because the administration put in place an unconstitutional military tribunal system. 

If they had done it right the first time, maybe we would have 50 

convictions and we would have eliminated more of al-Qaeda and 

maybe we would have been able to get the convictions that the Justice Department seems to have been able to get utilizing our own 

justice system here in the United States. 

I would like to yield to the gentlelady from California. 

Ms. LOFGREN. Mr. Chairman, I thank the gentleman for yielding. 

I would just note that at the beginning of this whole process Congresswoman Harman and I drafted a bill to create a system of 

courts and told the White House that they lacked the authority; 

only Congress has the authority to establish such——

Chairman SENSENBRENNER. The gentleman’s time has expired. 

For what purpose does the gentleman from Texas, Mr. Gohmert, 

seek recognition? 

Mr. GOHMERT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. This is an excellent 

discussion, but the reason we are here is because this is what we 

do in America. We talk about truthfully what we are going to do 

and how we are going to treat people. I am glad to know that beVerDate Aug 31 2005 11:25 Sep 26, 2006 Jkt 049006 PO 00000 Frm 00128 Fmt 6602 Sfmt 6602 E:\HR\OC\HR664P2.XXX HR664P2

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cause I was a JAG officer you are going to put great faith and stock 

in everything I say as well. I appreciate that. 

But having been a prosecutor, a defense attorney, served in JAG, 

I can also tell you I was stationed at Fort Benning at a time when 

the Judge Advocate General of the Army didn’t even know where 

he was. He was talking about laws that he had never read and 

didn’t have a clue about. So forgive me if I don’t put quite the sacred nature around some of their comments that others do. 

In any event, when we talk about—we have people in the Senate 

and in here talk about the concern about subjecting our troops to 

inhumane treatment. That is all of our concerns on both sides of 

the aisle, I know that. But the fact is in 1949 you know who signed 

onto the Geneva Convention wholeheartedly? Korea. You know who 

didn’t care what it said? Korea. You know else who signed on? Vietnam. You know else who just completely ignored the Geneva Convention? Vietnam. Because they don’t care about signing things 

and ignoring them, just like the people that are at war with us 

right now. They don’t care what they sign and turn around and say 

you violated, and this is on the Internet, been in the news nationally, while they can stick a knife in one of our detainee’s throats 

while he is alive and while he is screaming and brutally cut it off. 

We are beyond talking about them not treating our troops 

inhumanely or people they capture inhumanely. It is what they do. 

It is how we are going to go about preserving this civilization and 

the rights we have. 

As someone who had to issue opinions on 5th and 6th constitutional protections, I appreciate those things, but I am telling you 

when you have Federal judges who are out there who have previously ruled it is a constitutionally protected right under the Constitution written in 1787 that detainees or people in jail have to 

have electric typewriters, it is a constitutional right that they have 

to have a television or they are being mistreated, then it is something we have to really look at closely. 

How many of those rights are going to be applied to people who 

want to destroy our way of life, in areas where it is just impractical? So these are things we need to realistically look at. 

We also, the sacredness of the Supreme Court; I was sitting 

there and heard a Supreme Court Justice during the debate on 10 

Commandments say I went online to look for additional information about the 17 monuments you have around your State Capitol 

and I really didn’t find as much as I was hoping; and I was going 

oh, my goodness, any trial judge knows you don’t go outside the 

record to do your own research. And then we read their opinions 

that cite the evolving international opinion as something to consider and the changing will of the American people. That is going 

outside the record. That is making them their own pollsters, which 

makes them witnesses, which should make them subject to crossexamination to keep from violating the 5th amendment, but they 

don’t seem to grasp that all the time. 

So again pardon me if I don’t apply the sacred nature to the Supreme Court’s pronouncements that others do, but I think it is also 

great we have these kind of discussions. 

Now Common Article 3 for 60 years supposedly it only applied 

in cases of civil war, is what we signed onto, until the Supreme 


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Court of our Nation decided to apply it even further as something 

that this Nation had not signed onto. 

So we are here and having this discussion because we believe in 

openly and honestly discussing how we treat others, unlike many 

of the signatories of the Geneva Convention. That is why I love 

being an American, but let’s be realistic. They are already treating 

our troops inhumanely, as they did Senator McCain, and this is 

something that we should vote for, and so I think the world of my 

friends, both of them, and I appreciate their efforts in this regard 

but I would submit opposition is appropriate here. 

Mr. ISSA. Would the gentleman yield? 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

For what purpose does the gentleman from New York, Mr. 

Weiner, seek recognition? 

Mr. WEINER. Mr. Chairman, I agree with my colleagues——

Chairman SENSENBRENNER. Would you like to move to strike the 

last word or just talk? 

Mr. WEINER. Those are two options I have? I move to strike the 

last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes to talk. 

Mr. WEINER. Mr. Chairman, I agree with those that have articulated their opposition to the Schiff amendment. This is not going 

to be a panacea to stop tyrannical things by our opponents. This 

is not going to be something that is going to make greater humanity on the part of inhumane people. 

But this is an articulation of what our values are. This is an articulation of what we do to honor the 147,000 American men and 

women who are fighting for Iraq and Afghanistan in other places. 

This is how we try to protect them. And I think if there is one 

place that we have found in this Congress and in this country bipartisan agreement, it is we listen to the generals to hear what 

they have to say. 

We listen to those who are truly experts in these matters to hear 

what they have to say. No one is arguing that if you pass the 

Flake-Schiff amendment that suddenly you are going to stop running up against tyrants who pay no attention to the rule of law. 

This can’t be where we vote on whether we approve the methods 

of terrorists. This is where we decide who we are going to be as 

a country. And I think what we found with the Schiff amendment, 

with the Flake amendment with our Republican and Democratic 

colleagues in the Senate, with the generals who have spoken out 

on this issue, is that this is the way we do what we have always 

done in this country is to find a different paradigm. And it is the 

paradigm on who we are, who we think everyone else should be, 

and we try to lead that way. 

We do righteous things around the world. One of the things we 

do is put tens, and in this case, hundreds of thousands of troops 

in harm’s way. We honor them with this debate and we honor them 

by passing the Schiff-Flake amendment because we say these are 

what our ideals are. And I yield the balance of my time to Mr. 

Schiff. 

Mr. SCHIFF. I thank the gentleman for yielding. And I think 

what it all comes down to, and I know that many of my colleagues 


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on the other side are wrestling with this issue, and there are actually other parts of this bill that we don’t have jurisdiction over that 

I think are even a tougher call on both sides of the aisle. But I 

think what it all comes down to is when an American soldier is 

captured, do we, are we prepared to say that any treatment of that 

soldier that is cruel or inhumane or degrading, we cannot complain 

of, because we have defined cruelty, inhuman and degrading treatment out of the Geneva Convention for our purposes. Are we prepared to say that any other country is free to similarly define out 

cruel and inhuman treatment to the ragged edge of torture? Are we 

prepared to countenance that mistreatment of our own troops? 

The Navy JAG Rear Admiral Bruce McDonald testified earlier 

this month on this issue when he said, I go back to the reciprocity 

issue that we raised earlier, that I would be very concerned about 

other nations looking in on the United States and making a determination that if it is good enough for the United States, it is good 

enough for us, and perhaps doing a lot of damage and harm internationally if one of our servicemen or women were taken and held 

as a detainee. 

But I think most eloquently on this is Senator McCain, who 

speaks with a rare moral authority given his personal history, who 

said earlier this year, the protection our personnel require is not 

limited to freedom from lawsuits and unjust criminal prosecutions. 

They also need and deserve the undiluted protections offered since 

1949 by the Geneva Conventions. 

For this reason, I oppose unilaterally re-interpreting in law Geneva Common Article 3. Weakening the Geneva protections is not 

only unnecessary, but would set an example to other countries with 

less respect for human rights that they could issue their own legislative reinterpretations. This puts our military personnel and others directly at risk in this and future wars. I don’t think anyone 

could say it better than that. More recently, Senator McCain said, 

this is a matter of conscience, an American conscience. Are we 

going to be like the enemy or are we going to be like the United 

States of America? We should be very aware that if we engage in 

these activities, the world will condemn us and we will lose the 

high ground. And then what happens to Americans who are captured in future wars? This is, I think, the essential nature of the 

issue we have before us. On the one hand, we have a concern about 

our own personnel who conduct interrogations and what liability 

they may face, and there is a desire to make them immune by saying that anything short of torture, they are protected from. 

On the other hand, we have the men and women in uniform who 

are out there in the field right now, 140,000 of them in Iraq, many 

more in Afghanistan and other places around the world. And we 

have to ask ourselves——

Chairman SENSENBRENNER. The time of the gentleman from New 

York has expired. We have one 15-minute vote on the floor. Again, 

we are going to complete the first two bills on the agenda today, 

come hell or high water or staying here until midnight. So without 

objection, the committee is recessed for the vote. And members are 

instructed to come back immediately after the vote. 

[Recess.] 


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Chairman SENSENBRENNER. The committee will be in order. A 

working quorum is present. When the committee recessed for the 

votes—can we keep the conversation in the back of the room down 

to a dull roar, please. When the committee recessed for votes, pending was a motion by the Chair to report the Armed Services committee bill favorably. The bill was, or the Armed Services committee version, was considered as read, open for amendment at any 

point. And the gentleman from California, Mr. Schiff, had offered 

an amendment which was being debated. 

Ms. LOFGREN. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentlewoman from California seek recognition? 

Ms. LOFGREN. To strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized 5 

minutes. 

Ms. LOFGREN. Mr. Chairman, I want to express my appreciation 

to Mr. Flake and Mr. Schiff for offering this bipartisan amendment 

to really preserve a level of civilization that has served us well for 

half a century. As I mentioned, when my colleague from Massachusetts yielded to me for a few minutes, when this whole thing began, 

Congresswoman Harman and I introduced a bill and had discussions with the White House pointing out that the Executive Branch 

does not have the authority to do what they have done and, in fact, 

it is only the Congress, in Article 1, Section 8, that has the power 

to constitute tribunals inferior to the Supreme Court, to grant letters of mark and reprisal, to make rules concerning captures on 

land and water, and to make the rules for the government in regulation of the land and Naval forces. They said they were fine, that 

we would be happy with what they did. And the result is a mess. 

I think that it is important to just keep a few things in mind. 

First, the Geneva Convention is not confusing. It has served the 

United States and the world community well for over half a century and, to pretend at this point that there is something vague or 

unusual or confusing about it is simply wrong. 

I think it is also worth pointing out that we, our Nation, has 

faced grave challenges and dangers throughout our history, and 

throughout the Cold War, which arguably was a much greater 

threat to the survival of the United States than the current situation we face. The Geneva Convention was fully in play, and something that we never sought to back away from. 

I finally want to say that, as have others on the committee, that 

it is important to listen to General Powell, to the generals, to the 

experts in military affairs and their concern that if we attempt to 

weasel out of the Geneva Convention we are opening the door to 

mistreatment of our own men and women in the Armed Forces. 

Several members have gone on about what, in fact, has occurred 

in various facilities. I, for one, will say I don’t know what has gone 

on in various facilities around the world. I would caution members, 

however, that we are likely to soon find out, because there are individuals who have been held, apparently in secret facilities by the 

CIA, who have now been sent back to Guantanamo. 

Soon the Red Cross will have access to those individuals and the 

world will learn what happened to them in the last several years. 


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I don’t know, and my guess is you don’t know either. It is possible 

we will not be proud of what occurred. 

I finally want to just give a mention to the concept that the 

courts have no business in looking at this situation. In 1803, in the 

case of Marbury vs. Madison basically established the three 

branches of government. The President can’t do only what he 

wants. The Congress can’t do only what it wants, and the courts 

can’t do only what they want. We work as a check and balance 

against each other. 

And to even suggest that the Court didn’t have jurisdiction to do 

what it did is simply wrong and wrongheaded. And with that, I 

would yield to Mr. Van Hollen, if he would like the balance of my 

time. 

Ms. JACKSON LEE. Mr. Chairman. 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. For what purpose does the gentlewoman from Maryland seek 

recognition? 

Mr. VAN HOLLEN. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman. I want to commend 

Mr. Schiff and Mr. Flake for offering this important amendment, 

and to Senators McCain, Warner, Graham and others for pursuing 

a similar path on the Senate side. 

We are in the process of defining a particular provision of the 

bill, but I think in a larger sense, we are defining who we are as 

a country, who we are as a people, and I do think this is a defining 

moment for the nation. And I think it is unfortunate we haven’t 

had hearings to discuss this very important issue before we make 

these very important decisions. I think what we are doing is pretty 

clear. 

We are setting the standard for what we think is the kind of conduct and treatment that should apply to our own troops. Senator 

McCain and others have been clear on that. Secretary Powell has 

been clear on that. No one is so naive to think that all our enemies 

are going to abide by the standards that we set. But we are an example to the world. We are respected for the power of our military, 

but I hope we will continue to be respected for the power of the example we set. And how can we stand on firm ground in condemning the abuses that may happen to American soldiers overseas, if those abuses are being applied to others that are detained 

by the United States? 

So it is not a question about whether everybody’s going to apply 

this standard, but we want to set the standard for the world. It has 

been set in the Geneva Convention. We want to preserve that 

standard, and we want to be on firm ground when we ask others 

to abide by those examples, because if we don’t hold true to those 

goals, we can’t expect others to follow them as well. 

Now, the Army Manual has been very clear. They have set forth 

some clear guidelines and in the guidelines they have set forth, 

they will no longer allow certain practices that went on at Guantanamo. But what the President seeks to do in the legislation he has 

submitted is not provide clearer standards. He wants to create 

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dergo, to use certain practices that do not apply in the Army Manual. He wants to create that ambiguity. And I think that that is 

a very dangerous path to head down. 

It was suggested that Colin Powell, Secretary Powell, former Secretary Powell, in his letter, was somehow applying some kind of 

moral equivalents. I think that is a gross perversion of what General Powell set forth. I think what he wanted to make clear is the 

United States has always stood for human rights, has always stood 

for the kind of standards we hope will be followed through the Geneva Convention, and that we need to make clear that we continue 

to accept that example. 

And finally, I think Secretary Powell should also know the limits 

of the quality of information that can be obtained through practices 

like torture. You may recall that when he was up at the U.N. delivering his speech before going to war, laying out the argument that 

the United States was making, one of the arguments he made, and 

we all heard it, it was there were these mobile bioweapons labs in 

Iraq. 

Well, guess what? It turned out he was wrong. The CIA had interrogated people and they had not used abusive practices at that 

time and they hadn’t found anything with respect to the weapons 

in Iraq. Those individuals were then turned over to the Egyptians, 

who did engage torture, and, in fact, the information that Colin 

Powell used at the U.N. with respect to the mobile weapons labs 

was information obtained through the Egyptians as a result of torture, false information. 

The CIA has later retracted that. We have a Senate Select Committee on Intelligence that has refuted that. That information that 

we, as a Nation, used to make critical decisions about whether or 

not to go to war was false information. That information was obtained through torture. So when Secretary Powell, former head of 

the Joint Chiefs of Staff, and other military leaders, talk about this 

issue, they are not talking only from the moral high ground which 

is critical. They are also talking from the pragmatic military perspective and trying to get the best results for our military. 

So Mr. Chairman, I would urge this committee to adopt the substitute amendment that is being proposed. 

Ms. JACKSON LEE. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentlewoman from Texas, Ms. Jackson-Lee seek recognition? 

Ms. JACKSON LEE. To strike the requisite number of words. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. JACKSON LEE. I thank the chairman. This is reminiscent of 

the urgency and the terror that we experienced after 9/11. This 

committee did its job. It frankly listened to the voices of reason and 

the voices of security. You can do both. You can master the Constitution and provide the constitutional oversight, and you can also 

protect America. But I use that framework because this committee, 

in a bipartisan manner, passed the PATRIOT Act, a working document. But politics became the call of the day. And out of that bipartisan came a PATRIOT bill that stomped on the Constitution. No 

one can say that we have gained more leverage because of the PATRIOT Act that has its failings. 


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We are here with this particular legislation by accident. We were 

not supposed to have the opportunity for oversight. This was supposed to be a presidential action with no lights and no oversight. 

But because there were brave Americans, Members of Congress on 

both sides of the aisles, in fact, a POW who had spent any number 

of years as a prisoner of war, for many of us in our districts, we 

just recently commemorated our prisoners of war and missing in 

action of the United States military to be reminded of their plight, 

but because of that kind of sensitivity to the importance of Geneva 

Convention, we are now here today. 

But unfortunately, the light has been turned on, but the arrogance is still present. We will give Congress the opportunity to review it, but we will put forward the same kind of leadership and 

the same kind of language and it really won’t matter. We are here 

because we have the right to be here because Article I, Section 8 

claims, clause 18, the necessary and proper clause, authorizes Congress regulate authorities entrusted by the Constitution to any 

branch of government or officer. The President is that. The executive is that. 

And what we are doing now in terms of the violation of the Geneva Convention is being corrected by the gentleman from California 

and the gentleman from Arizona’s amendment of which I rise to 

support because it is the right thing to do. 

I wonder whether the Pakistan informant that provided the underlying basis of the British being able to solve the liquid dynamite 

case was tortured. We know that the way to secure America is intelligence and information. Many of us went to Guantanamo Bay 

in the early stages. I had three visits. And we were commended by 

the military that everything was okay. In fact, we were allowed to 

see interrogation, and we saw the ice cream interrogation. But now 

we know there are failures there. And even as we seek to secure 

America, I can venture to say to you that the military have answered our question, does torture secure America or does it jeopardize the lives of young men and women who may be sent to 

places that don’t even begin with I and A, Iraq and Afghanistan. 

Their work is international. Their intelligence work is international. Their ability to be subjected to torture is international. It 

could be in the far hinterlands of any nation, including our friends, 

like the former Soviet Union. 

And so, I can’t imagine why we can’t reject the politics of fear 

and terror and do the right thing for the American people, which 

is to pass this amendment, recognizing that we can, in fact, provide 

the necessary intelligence. And all of us will agree that preventive 

actions are better than the offensive, or having to defend. And 

therefore, knowing information ahead of time is vital. 

I simply commend my colleagues, that inherent presidential powers to gather foreign intelligence without oversight may sound attractive in the backdrop of fear and the fear of terrorism. But I can 

assure you that it does not commend itself to the very words that 

we said after 9/11, let the terrorists not turn us into despots and 

violators of constitutional rights, but let us handle our business in 

the right way. I’d ask my colleagues to support the existing amendment. I yield back. 


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Chairman SENSENBRENNER. For what purpose does the gentleman from California, Mr. Berman, seek recognition? 

Mr. BERMAN. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. BERMAN. I would just like to, this point may have been 

made, but if it, was I didn’t pick it up. The consequence of this bill 

is that it weakens our ability to prosecute those who commit war 

crimes against U.S. persons and U.S. military. And the irony of it 

is that this is a law that was pushed by this majority, and most 

particularly by the chairman of the Armed Services Committee 

back in 1996. I am going to read from an article by Mark Benjamin. Duncan Hunter was one of the 15 Republicans in the House 

who cosponsored the original legislation that is the War Crimes 

Act. And he also cosponsored an expansion of the Act covering even 

more potential transgressors that passed the very next year. Similarly, in the Senate, the man who shepherded the original bill 

through that body in 1996, Oklahoma Republican James Inhofe is 

now a cosponsor of the bill that will gut it. Back in 1996, a vote 

for the War Crimes Act, which passed both Houses with overwhelming support, could have been considered a vote for the U.S. 

to follow the Geneva Conventions to the letter. 

When a House Judiciary Committee panel first considered the 

War Crimes Act in June 1996, John McNeil, then a senior deputy 

counsel of the Department of Defense testified that the bill was an 

opportunity for Members of Congress to endorse the idea that the 

United States, as a political matter, should be seen as fully in conformity with its international obligations in this very sensitive 

area. But at the time, Republicans were really focused on making 

sure U.S. courts would be able to prosecute war crimes committed 

against American citizens, not by them. 

Inhofe took to the Senate Floor that August to say the War 

Crimes Act would protect our young troops in the event a crime is 

perpetrated against them. It was unthinkable back then that it 

might be the U.S. that was systematically violating the Geneva 

Conventions. In other words, without the Schiff-Flake amendment, 

we are faced with a bill which undercuts the law we passed in 1996 

to establish jurisdiction over people who committed war crimes 

against American citizens, against American troops. By definition, 

weakening that law through this base bill, without the Schiff Flake 

amendments, weakens the law that protects American citizens and 

American personnel against war crimes committed by others. I 

don’t want to be a part of that. 

Chairman SENSENBRENNER. Does the gentleman yield back? The 

gentlewoman from California, Ms. Sa ́nchez. 

Ms. LINDA SA ́ NCHEZ. I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. LINDA SA ́ NCHEZ. And I would yield that time to my colleague 

from California, Mr. Schiff. 

Mr. SCHIFF. Mr. Chairman, I won’t consume the time. But I did 

want to just finish the thought I started before we broke for votes. 

And I thank the gentleman from California for shedding more light 

on the effect of the base bill. Plainly, the goal in the base bill is 


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to protect, not those that commit crimes against our citizens and 

our soldiers, although that is an important feature of the law we 

want to preserve, but it is to protect American interrogators. And 

while I share the desire to protect American interrogators, I also 

have the desire to protect our troops. And it seems to me the best 

way to do both, to protect our troops and to protect the interrogators, is to have clearer lines of what is permissible. But not drawing a bright line that says anything to the ragged edge of torture 

is acceptable. That, I think, puts our troops too much at risk. 

By using the jurisprudence of the 5th, 8th and 14th amendments, I think we do give protection to our interrogators, at the 

same time, getting to the point Mr. Berman made, we protect our 

troops from whoever would commit acts of torture or anything approaching torture. And I think it is the best balance we can strike. 

There isn’t going to be a perfect answer. But to preserve the ability 

to go after those that commit war crimes against our troops, as Mr. 

Berman outlined, at the same time, to give a measure of protection 

to those that work in our intelligence and other agencies to gather 

information, I think what Senators McCain and Warner and 

Graham have set out is the best approach, and I would urge my 

colleagues to support it. 

Mr. LUNGREN. Would the gentleman yield on that? 

Mr. SCHIFF. Yes. 

Mr. LUNGREN. Here is my question. This is the conundrum I 

have. And I have discussed this with Senator McCain, and I have 

never resolved it in my own mind, because he has said that we 

ought not to use torture, or as you say, come to the ragged edges 

of torture. But then, when posed with the question, what if you do 

have an individual who has information that could save 3,000, 

30,000, 300,000 American lives, and his response basically is we do 

what is necessary. And when I hear that, it suggests that we believe that there are certain exigent circumstances which would 

allow us to do other things we wouldn’t otherwise allow in interrogation when the stakes are so high. 

And my problem is if that is true, and maybe the gentleman 

doesn’t agree with that, but if that is true, isn’t it our obligation 

to try and refine what that is and if there are exceptions, to articulate what the requirements would be, rather than say that we will 

depend on those interrogators to get us the information? Even 

given the fact that in some cases, it may work and in some cases 

it may not work. That is the problem I have got in this situation, 

because I can’t honestly answer that question when a constituent 

asks me that with the language that we have; frankly, either the 

language present in the bill or in the amendment. 

Mr. SCHIFF. Reclaiming my time. You know, the gentleman asks 

a legitimate question and it is a tough question and I am not sure 

any of us have the answer. I don’t know that that question, though, 

is answered by the base bill or the amendment, because if someone 

knew the whereabouts of an atomic bomb that was about to go off 

in an American city, it wouldn’t be a question of torture or cruel 

and inhumane treatment. It probably would be a question of torture or not torture. 

But this goes to the point that I think Mr. Van Hollen and others 

have made, which is there is no guarantee that that produces a 


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more accurate outcome than by using other interrogation techniques, which are fully permissible under Geneva and under our 

Constitution. So I am not sure what happens in those circumstances. I would imagine that if someone, you know, one thing 

that has been speculated upon is that the President always has the 

power to pardon as backstop and a fail-safe mechanism. But we 

don’t write a system based on who the President would pardon. We 

write a system based on the standards that we would want others 

to apply to our troops. And I think what McCain, Warner and 

Graham have set out is a standard that we can live with and our 

troops are protected by. And with that, Mr. Chairman, I yield back. 

Chairman SENSENBRENNER. Gentlewoman from California yield 

back? 

Ms. LINDA SA ́ NCHEZ. I yield. 

Chairman SENSENBRENNER. For what purpose does the other 

gentlewoman from California, Ms. Waters, seek recognition? 

Ms. WATERS. Thank you very much Mr. Chairman. I move to 

strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. WATERS. I would like to start by entering into the record a 

letter to Senator McCain from General Colin Powell, and I would 

like to point out that this is a letter that does not support what 

is being attempted. The letter basically says, I just returned to 

town and learned about the debate taking place in Congress to redefine Common Article 3 of the Geneva Convention. 

Chairman SENSENBRENNER. Without objection, the letter will be 

entered into the record. 

[The information follows:] 


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Ms. WATERS. Thank you. And I would like to bring to the attention of the committee information that I have gathered talking with 

a number of experts and individuals in academia, who are closely 

watching what is happening. It has been identified that there are 

many hidden problems with this bill and they raise serious potential difficulties. 

For example, the integral paragraph at the very beginning headed Section 2, construction of presidential authority, suggests that 

the President has unfettered authority not to be limited in any way 

by the Uniform Code of Military Justice to establish military commissions. This is not consistent with the underlying principle of the 

UCMJ, that all military tribunals must apply the basic standards 

that are set out in the UCMJ. It is understood that the President 

is looking for congressional authority to escape that requirement. 

However, an example of why this should not take place and why 

the President and the Secretary of Defense should not be given the 

power and authority under section 948 to decide, for example, who 

is an enemy combatant. Under the Geneva Conventions, that decision has to be made by a competent or regularly constituted tribunal. The whole point of the Supreme Court’s Hamden decision 

was that this should not be left to the President, and doing so violates the Geneva Conventions, as well as the UCMJ. This is a back 

door way, along with the Common Article 3 provision to eliminate 

Geneva Convention protections. 

And the question is raised, do we want the President of North 

Korea or the President of Iran to have the power to determine 

whether U.S. captives are unlawful enemy combatants and therefore entitled to far reduced protections? I think it has been said 

here today already. I just wanted to reiterate with these examples 

that we should be very concerned about this attempt by the President of the United States to undermine the Uniform Code of Military Justice. 

Mr. BERMAN. Will the gentlelady yield? 

Ms. WATERS. Yes I will yield to the gentleman from California. 

Mr. BERMAN. I would just like to take what little time the 

gentlelady has remaining to deal with the question Mr. Lungren 

posed because I have been thinking about it. It is a good question. 

And I see three problems with trying to institutionalize legislatively what I think all of us in our gut sort of want to see protected 

somehow. One is if you institutionalize it, it becomes routine. Every 

potential interogee, if that is the right word, person you are questioning, becomes the person who could have that information that 

could save lives. 

Secondly, defining it to go to the ragged edge of torture, but not 

to torture, why there? Why not an exception to the law on torture? 

And third, and this is why the irony of what I, Duncan Hunter’s, 

no other way, but flip flop on this issue is and every enemy of ours 

who wants to do us harm, but claims that martyrdom or some 

cause was so great that this justified will now have an institutionalized defense against our prosecution that we have provided in 

order to protect against the situation. 

That is why I would suggest Mr. Schiff’s response, the notion of 

absorbing the liability or the use of the pardon is a far better approach towards dealing with that exceptional situation than trying 


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to institutionalize it and codify it in a law that will either be misused, will be abused, in some cases, by our folks for, you know, for 

good reasons, because they had a sincere belief there might be 

something there, and more importantly, will be used as a defense 

against war crimes prosecutions by enemies of ours. 

Chairman SENSENBRENNER. The gentlewoman’s time has expired. For what purpose does the gentleman from Virginia Mr. 

Scott seek recognition? 

Mr. SCOTT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Mr. Chairman, the problem with considering the bill, 

this bill, the underlying bill the way we are doing it, it just makes 

it look like we are going to rubber-stamp whatever is put before us. 

We have had no hearings on this very complicated bill. There has 

been no subcommittee mark. The gentleman from California has 

suggested that we are using hyperbole. Well, we don’t have anything else. We don’t have any evidence. What else can we use? We 

have heard about whether or not you need 8 hours of sleep, TVs 

and typewriters and that kind of stuff. 

Let’s get somebody here before us that can explain exactly what 

is going on. We don’t know what they are doing now. We know 

some of what has leaked out. But we have had public statements 

to the effect that the administration might have to stop what it is 

doing now if they don’t get new legislation. 

But that is an interesting comment. We ought to have somebody 

up here to let us know whether they are breaking the law as it is 

now, and what are we going to be approving if we pass this legislation. We do know that they have not denied involvement with the 

torture of an innocent Canadian, as my friend from New York has 

indicated, they haven’t denied involvement with torture of an innocent Canadian. Do they need to torture innocent people? Is that 

part of the process? 

We haven’t had any requests from the military that they need 

this additional torture power. Last year’s bill we passed with overwhelming bipartisan majorities prohibiting torture. This amendment just allows us to join Senators Warner and McCain and 

Graham over in the Senate, and General Powell, who have had 

enough of what is going on now because they recognize that what 

we do to others will set an international standard and that standard will be applied to us. 

So we need to conform our understanding of the Geneva Convention to the rest of the world and defeat the underlying bill, at least 

adopt this amendment. I yield back. 

Mr. LUNGREN. Will the gentleman yield please? 

Mr. SCOTT. I yield to the gentleman from California. 

Mr. LUNGREN. Okay. And I don’t want to overstate this, but this 

is a very serious question, because Alan Dershowitz has suggested 

that it is better for us, as policymakers, to establish the legal parameters under which certain interrogation techniques could be 

used where we otherwise would not allow it. I understand the gentleman from California, Mr. Schiff suggesting the President has the 

power of pardon. I think Alan Dershowitz suggests, and I know 

some will say well you don’t quote Alan Dershowitz very often, and 


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I know that is true. I will concede that on the record. But he suggests that I believe that perhaps you could set up a mechanism 

where certain exigent circumstances, as determined by a President 

in an affirmative finding, would require it. 

Now I know there is objection to that because you say it might 

be misused. But that would require the President to do it before 

the fact rather than after the fact, which would be the situation of 

a pardon. And the only reason I voice this is I am absolutely concerned about what we do to the young men and women in uniform, 

either our Armed Forces or CIA or whatever, if we come upon a 

circumstance in which we have in the balance the lives of 3,000 

Americans versus using different techniques. And I just raise that 

because I think we need to, at some point in time, address it. 

Mr. SCOTT. Reclaiming my time. And I would say to the gentleman that we are weren’t waiting for the President to do the pardoning. We are doing it in the bill because there is a retroactive 

provision in the bill which retroactively applies the new definition 

to whatever has been going on for the last couple of years. I yield 

to the gentleman from North Carolina. 

Mr. WATT. I thank the gentleman for yielding, and I haven’t 

claimed my own time, because I don’t have a lot to say about this. 

It does strike me that this is yet another example of trying to establish trust in a world that is more and more looking at us and 

saying as the United States, it is do as we say rather than do as 

we do. 

And I guess, the only adage I can add is the biblical adage, that 

we should be trying, in this case, to do unto others as we would 

have do them do unto us. So I just think anything that hints of setting a different standard for the United States in a global world, 

than we expect other people to use and apply is going to be misinterpreted and we need to be very careful. And I appreciate the 

gentleman yielding. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. FRANKS. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman from Arizona is recognized for 5 minutes. 

Mr. FRANKS. Thank you, Mr. Chairman. Mr. Chairman, I heard 

the comments a few moments ago from one of the minority party’s 

representatives here. She said that preventive actions are better 

than defensive ones. And I certainly believe that that is true. And 

really, in a great sense, that is why we are all here. That is why 

the President is seeking to see this legislation pass is because he 

seeks to prevent great tragedy in this country before it occurs and 

rather than taking the defensive action afterwards. 

But you see, he has a significant challenge because his greater 

tactical challenge is that he has to find terrorists and bring them 

to justice before they gain weapons of mass destruction or before 

they are able to supercharge their efforts ideologically all over the 

world. The terrorists greatest tactical challenge is to stay hidden 

long enough to do those two things, to gain some type of either nuclear or some other type of weapon of mass destruction long enough 

to do us great, great damage. 


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And the fact is that as we debate this, this notion that these terrorists are covered under our Constitution, would it not then follow 

that our special forces on the field and the battle would have to 

read them their Miranda Rights? I mean, if terrorists are indeed 

covered under our Constitution, then I have to say that we have 

completely missed, the nomenclature is completely wrong to begin 

with. These are unlawful combatants that have no uniform, and 

that hide between and behind innocent men, women and children, 

in order to effect a tragedy against civilization that could be unknowable to this at this point. 

The President has to find a way to protect this country, maintaining the moral high ground of this Nation and still defeating the 

terrorists. I suggest that he has the moral high ground because he 

is trying to defeat terrorists and stop them from killing innocent 

men, women and children in the United States of America. That 

is the purpose for this legislation. 

The Hunter language does great effort to try to find a way to afford those detainees the kinds of rights that can be afforded without sacrificing the national security of the United States of America. And I would suggest that sometimes we just need to get a hold 

of ourselves a little bit. And that notion of torture that somehow 

we are practicing torture, it is against the law for us to torture detainees. If you are convicted of torturing detainees, it is a 20-year 

prison sentence. If you kill a detainee in the process of torture, 

punishable by death. So this notion that we are trying to torture 

detainees is outrageous. We need to help the President defend 

America. And he has the high ground and the real battle here is 

intelligence. 

If we knew where every terrorist was today, in a month this war 

would be over. But we don’t. And unfortunately, some of those in 

Congress seem hell-bent on stopping the President from being able 

to gain the necessary intelligence to fight this war. And I would 

suggest to you that is the crucible. Some don’t want him to listen 

to them on the telephone. He has the right to hunt them down, ferret them out and kill them but not to listen to them on the telephone. 

Some of the opposition doesn’t want him to follow the money. 

Some of them don’t want him to interrogate detainees and in some 

way that might be aggressive. I am astonished that somehow we 

miss the focus here that intelligence is what it is all about in this 

war and if we don’t win on that front, then we will lose on the 

greater front. 

So Mr. Chairman, I just hope that we can defeat this substitute 

motion and that we can get back to the base bill. And I yield back. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from California, Mr. Schiff. Those in favor 

will say aye. Those opposed, no. The noes appear to have it. 

Mr. SCHIFF. Mr. Chairman, on that I request a recorded vote. 

Chairman SENSENBRENNER. A recorded vote is ordered. Those in 

favor of the Schiff amendment will, as your names are called, answer aye. Those opposed, no. The clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK.Mr. Coble. 


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Mr. COBLE. No. 

The CLERK. Mr. Coble votes no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith votes no. 

Mr. Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly votes no. 

Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte votes no. 

The CLERK. Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot votes no. 

Mr. Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren votes no. 

Mr. Jenkins. 

[No response.] 

The CLERK. Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon votes no. 

Mr. Bachus. 

[No response.] 

The CLERK. Mr. Inglis. 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis votes aye. 

Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler votes no. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green votes no. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. No. 

The CLERK. Mr. Issa votes no. 

Mr. Flake. 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake votes aye. 

Mr. Pence. 

Mr. PENCE. No. 

The CLERK. Mr. Pence votes no. 

Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes votes no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King votes no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney votes no. 

Mr. Franks. 


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Mr. FRANKS. No. 

The CLERK. Mr. Franks votes no. 

Mr. Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert votes no. 

Mr. Conyers. 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers votes aye. 

Mr. Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman votes aye. 

Mr. Boucher. 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher votes aye. 

Mr. Nadler. 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler votes aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott votes aye. 

Mr. Watt. 

Mr. WATT. Aye. 

The CLERK. Mr. Watt votes aye. 

Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren votes aye. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee votes aye. 

Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters votes aye. 

Mr. Meehan. 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan votes aye. 

Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

[No response.] 

The CLERK. Mr. Weiner. 

[No response.] 

The CLERK. Mr. Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff votes aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez votes aye. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen votes aye. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz votes aye. 

Mr. Chairman. 


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Chairman SENSENBRENNER. No. Members in the Chamber who 

wish to cast or change their votes? The gentleman from Tennessee, 

Mr. Jenkins. 

The CLERK. Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins votes no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? If not the clerk will report. 

Ms. JACKSON LEE. Mr. Chairman, how am I recorded? 

Chairman SENSENBRENNER. How is the gentlewoman from Texas 

recorded? 

The CLERK. Mr. Chairman, Ms. Jackson Lee is recorded as aye. 

Chairman SENSENBRENNER. Is that correct? 

Ms. JACKSON LEE. Yes, that is correct. Thank you very much, 

Mr. Chairman. 

Chairman SENSENBRENNER. The clerk will report. 

Gentleman from Massachusetts, Mr. Delahunt. 

The CLERK. Mr. Delahunt, aye. 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt votes aye. 

Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition? 

Mr. NADLER. I was wondering how I am recorded. 

The CLERK. Mr. Chairman, Mr. Nadler is recorded as aye. 

The CHAIRMAN. Okay. Clerk will report. 

Ms. WATERS. Mr. Chairman. 

Chairman SENSENBRENNER. Does the democratic side—gentleman from New York, Mr. Weiner. 

Mr. WEINER. Mr. Chairman, how am I recorded? 

The CLERK. Mr. Chairman, Mr. Weiner is not recorded. 

Mr. WEINER. I am an aye, please. 

The CLERK. Mr. Weiner votes aye. 

Chairman SENSENBRENNER. Anybody else need to come in? The 

clerk will try again to report. 

The CLERK. Mr. Chairman, there are 17 ayes and 18 nays. 

Chairman SENSENBRENNER. Then the amendment is not agreed 

to. Are there further amendments? 

Mr. MEEHAN. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The gentleman from Massachusetts 

has an amendment at the desk which the Clerk will report. 

The CLERK. Amendment to H.R. 6504, offered by Mr. Meehan of 

Massachusetts. 

[The amendment follows:] 


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Mr. SMITH. Mr. Chairman, I reserve a point of order. 

Chairman SENSENBRENNER. A point of order is reserved by the 

gentleman from Texas. 

The CLERK. Strike section 5 relating to judicial review. 

The CHAIRMAN. The gentleman from Massachusetts is recognized 

for 5 minutes. 

Mr. MEEHAN. Mr. Chairman, my amendment is simple. It strikes 

section 5 and protects not only the vital right of habeas court reporters, but also preserves the jurisdiction of our courts. Section 5 

strips the Federal courts of jurisdiction over habeas corpus claims 

that are pending, or in the future, and it would not just be limited 

to detainees at Guantanamo. Rather, it would apply to any alien 

detained outside of the United States who is in United States custody, and has been determined to be an enemy combatant. Taking 

away individuals well-established habeas corpus rights and enacting a sweeping jurisdiction stripping provision raises grave constitutional question. It runs contrary to established case law. I believe that this provision leaves the door wide open for a Supreme 

Court ruling that would put us back in the same room debating 

this same issue. 

As the Supreme Court made clear in Lynn versus Murphy, legislative provisions depriving Federal courts of jurisdiction do not 

alter or affect any case in any court at the time of enactment. Lynn 

versus Murphy is solid case law and it has been cited thousands 

of times. If section 5 remains in the bill, it will be challenged, further prolonging the process of justice to detainees that have been 

held for 4 years. 

Mr. Chairman, as one of only three members of this committee 

that also serves on the House Armed Services Committee, I know 

well the balance that we need to strike in regard to justice within 

the military. But no one knows more about military justice than 

judge advocate generals. In a letter to the Senate Armed Services 

Committee, former JAGs John Hudson and John Gerter wrote the 

following and I quote: ‘‘it is critical that Congress not strip the 

courts of jurisdiction to hear their pending habeas cases.’’ It would 

be utterly inconsistent and unworthy of American values to include 

language that would strip the courts of habeas jurisdictions. No one 

in this room disagrees that we need to bring perpetrators of terror 

to justice. But we also need to do it in a way that holds up to the 

Supreme Court challenge, otherwise, we have accomplished nothing. 

I would urge this amendment be adopted so that we aren’t revisiting this same issue after another Supreme Court ruling. And further, Mr. Chairman, I would ask unanimous consent to submit two 

letters, one from a series of U.S. judges here in the United States 

and secondly, from, the letter that I quoted from the JAG officers 

that is I be allowed to them for the record. 

Chairman SENSENBRENNER. Without objection, the letters will be 

put in the record. 

[The information follows:] 


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Mr. MEEHAN. And I yield back the balance of my time. 

Chairman SENSENBRENNER. Does the gentleman from Texas insist on his point of order? 

Mr. SMITH. No, I do not, and I’ll withdraw the point of order. 

Chairman SENSENBRENNER. Reservation is withdrawn. 

Mr. LUNGREN. Mr. Chairman. 

Chairman SENSENBRENNER. Gentleman from California, Mr. 

Lungren, for what purpose does he seek recognition? 

Mr. LUNGREN. I rise in opposition to the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. LUNGREN. Mr. Chairman, the case that the gentleman mentioned where the Court found it unconstitutional was a matter of 

statutory construction. It said that the Congress had not acted. We 

had not stated in both parts of the bill our specific authorization 

of that sort of treatment in litigation. It wasn’t that we were unable to do it. The D.C. court review that’s authorized by the Detainee Treatment Act provides a more than adequate substitute for 

habeas or rather reasonably regulates the use of habeas just as 

past statutes have done. The idea that the Congress is not able to 

regulate habeas is a misnomer. Most of the time when we are talking about habeas, we are talking about statutory habeas, not the 

great writ that is referred to in the Constitution. The Detainee 

Treatment Act allows the D.C. circuit to rule on the constitutional 

questions that were litigated in the case. 

In other words, the Detainee Treatment Act still allows resolution of the same constitutional questions that were being litigated 

under ordinary habeas review prior to the enactment of the Detainee Treatment Act. In 1950, the U.S. Supreme Court ruled in 

Eisentrauger versus Johnson that enemy combatants held by U.S. 

forces overseas are not, I underscore, not entitled to the, quote, 

privilege of litigation, and cannot sue our military and our courts. 

It was the law of the land for over 50 years, until in June 2004, 

Rizal versus Bush created an exception for it for enemy combatants 

held in Guantanamo. Let me make clear that that case did not 

change the constitutional holding of Eizentrager. It merely extend 

the Federal statute to the Guantanamo detainees. And let me 

quote from a key passage in that case that explains why enemy 

combatants outside the U.S. should not have access to U.S. courts. 

As that court began by noting there has been ‘‘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 

no stage of his captivity, has been within its territorial jurisdiction. 

Nothing in the text of the Constitution extends such a right, nor 

does anything in our statutes.’’

Other authorities also have emphasized that the Anglo American 

common law tradition includes no place for habeas petitions filed 

by enemy aliens in military custody outside our territory. Law professor Peter Lushing, in an Internet posting commenting on the 

Graham amendment shortly after it passed the Senate put the 

matter rather colorfully. The guys in the powder wigs would have 

flipped over the idea that habeas extends to foreigners who we are 

in combat with who have been captured and are being held by us 

abroad. 


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He concludes, quote: ‘‘The decision has extended habeas far beyond what anybody alive during the ratification of the Constitution 

would have envisioned.’’ In a 2003 article in George Washington Law Review Law Professor John Yoe notes the special importance of interrogating 

enemy combatants for information about coming attacks in this 

conflict and concludes: De novo judicial review threatens to undermine the very effectiveness of the military effort against al-Qaeda. 

A habeas proceeding would become a forum for recalling commanders and intelligence operatives from the field into open court, 

disrupting overt and covert operations, revealing successful military tactics and methods, enforcing the military to shape its activities to the demands of the judicial process. There is no legal precedent that supports the proposition that foreign persons confronted 

by U.S. troops in the zone of battle have fifth amendment rights 

which can be asserted against the American troops. The Supreme 

Court has consistently held the fifth amendment does not have 

extraterritorial application to foreign persons outside the United 

States.’’ In this regard even Justice Kennedy has observed the Constitution does not create nor do general principles of law create any juridical relation between our country and some undefined limitless 

class of noncitizens who are beyond our territory. 

Perhaps most disturbing, the habeas litigation has imperiled crucial military operations during the time of war. Moreover, habeas 

counsel have frustrated interrogation critical to preventing further 

terrorist attacks on the United States. One of the coordinating 

counsel for the detainees boasted about this in public, quote: The 

litigation is brutal for the United States. It’s huge. We have over 

a hundred lawyers now from big and small firms working to represent the 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 they’re 

going to do now that we’re going to get court orders is to get more 

lawyers down there. What are they going to do? 

Now maybe that is what we want to do here. I don’t think so. 

That is why I would suggest that we reject this amendment. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from Massachusetts. 

Mr. SCOTT. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Virginia, for 

what purpose do you seek recognition? 

Mr. SCOTT. Strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Mr. Chairman, I would hope that we would adopt the 

amendment offered by the gentleman from Massachusetts. We 

don’t know right now what is going on and what is going on in the 

name of the United States. We do know what has been leaked out. 

We do know that there has been no denial of the allegation that 

we were involved in the torturing of an innocent Canadian. This 

amendment would prevent that from even coming to light, and the 

little bit that escapes in the bill for judicial review, you have a provision in there on the top of page 80 that the court may consider 


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classified information submitted in camera and ex parte in making 

determinations. That is in camera, that is not public. Ex parte, 

one-sided. So the defendant never knows what happened. 

We haven’t had any hearings on this. There is no military—we 

haven’t heard from the military that said they need this, whatever 

this section 5. I would hope that we would delete it and if there 

is a need for it, let the military come forward and explain what 

they need it for. But otherwise we would not expect people to be 

doing this to American soldiers overseas, so we shouldn’t have that 

as part of our law. I would hope that we would adopt the amendment, and I yield back. 

Chairman SENSENBRENNER. The question is on——

Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler, for what purpose do you seek recognition? 

Mr. NADLER. I seek recognition to strike the last word, Mr. 

Chairman. 

Chairman SENSENBRENNER. You don’t need permission and you 

are recognized for 5 minutes. 

Mr. NADLER. Thank you. I appreciate the recognition if not the 

permission. 

Mr. Chairman, I rise in support of this amendment. The underlying bill without the amendment would eliminate habeas corpus 

for so-called enemy combatants. Habeas corpus is the rock solid 

foundation of our system of justice for the last 800 years. It is inconceivable to have a fair system of justice without habeas corpus 

or something like it. 

We have—the gentleman from Virginia referred to the torture by 

mistake. We have had—let me read from—we have had many cases 

of people in Guantanamo in secret sites held by the CIA, we don’t 

know where they are, who are held—we haven’t given them the 

right of habeas corpus and we don’t know. 

The President says they are the worst of the worst. The truth is 

some may be and some may be innocent people caught up and sold 

by warlords in Afghanistan or being in the wrong place at the 

wrong time. A fellow named Abu Bakir Qassim wrote an op ed 

piece in the Times the other day. He was held in Guantanamo because Pakistani bounty hunters sold him and 17 others to the 

United States military for $5,000 a head. Turned out he was innocent of anything, but he was only released because of the writ of 

habeas corpus. 

This bill says that no court has jurisdiction of habeas corpus and 

no court except the D.C. Circuit can have any review of these, but 

only for final review of a final decision of a combatant’s status review tribunal or a military court, a military tribunal. 

Very few people are going to get tried by military tribunals. That 

is only for people accused of war crimes. Most people will have 

nothing. There is no guarantee that anybody will ever go before a 

combatant status review tribunal. Under this bill without this 

amendment we could arrest somebody in good faith but by mistake 

and that person could be in jail for life with no opportunity to see 

the evidence against him, to know what he is charged with, or anything else. That is not anything that we can call justice. 


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The New York Times points out the White House wants to strip 

the Federal courts of any power to review the detentions of the 

prisoners in Guantanamo Bay, and I would say anywhere else, too. 

The provision is no real barrier in the handful of genuine terrorists 

recently shipped there from abroad. Their cases are likely to be 

brought before military tribunals, whose judgments could be appealed to higher courts, but it has a profound impact on the hundreds of others at Guantanamo Bay, many, perhaps the majority 

who committed only minor offenses, if any. 

The administration has no intention of trying them, no intention 

of trying them and wants to prevent them from appealing for help 

in court. In other words, these people could be in jail forever with 

no hearing whatsoever. That is not only un-American, it is against 

everything this country stands for, and I would agree with the gentleman from Virginia it is intolerable that we are considering bills 

of this complexity and this importance without hearings, without 

the subcommittee having looked at them, but beyond that, to pass 

a bill which in effect enables people to be held in jail forever with 

no hearing whatsoever of any kind, no showing of guilt. 

The President says they are the worst of the worst but he doesn’t 

know. Some agent decided someone was bad. Some warlord in Afghanistan said the Chinese told me to give this person to you. We 

have no idea. We could be wrong. That is not any kind of civilization. 

I urge my colleagues to vote for this amendment. 

Chairman SENSENBRENNER. Does the gentleman yield back? The 

question is on—— Mr. JENKINS. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Tennessee, Mr. 

Jenkins. 

Mr. JENKINS. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. JENKINS. I yield to the gentleman from California. 

Mr. LUNGREN. I thank the gentleman for yielding. 

Let’s at least get something straight here. This is not the habeas 

provision of the last 800 years. That is the writ of habeas corpus 

in the Constitution. We are talking about statutory habeas, which 

is a very different thing, and people on this panel continue to misstate what the law is. 

We are not talking about the great writ, we are talking about 

statutory habeas, which the Supreme Court has said time and time 

again is under the jurisdiction of the Congress to give or to take 

away, number one. Number two, this decision has already been 

made by this Congress. This decision was made by this Congress 

earlier when we passed the DTA. 

What this is about is whether or not it applies to people already 

in Guantanamo. That is what it applies to. Nothing else. We have 

already made the decision, both the House and the Senate, and the 

law passed by the President which says this is the process that will 

obtain. 

Thirdly, it does not mean you don’t have a right but it is not the 

habeas corpus. We have given you a right of review to the D.C. Circuit, so all of these questions could be handled by one court. 


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Mr. NADLER. Would the gentleman yield for a question? I am 

going to ask a question. The right under habeas. 

Mr. LUNGREN. Fine. 

Mr. NADLER. You just stated that you have the right. You have 

the right to appeal to the D.C. Circuit, yes; from a military tribunal, if they choose to bring you before one, or from a combatant 

status review, CSR, tribunal if they choose to bring you before that. 

There is no guarantee that you go before that. So the fact is that 

you have no rights of anything. 

Mr. LUNGREN. I think the gentleman is mistaken. 

Mr. NADLER. Why? 

Mr. LUNGREN. Because the procedure is automatic. 

Mr. NADLER. The procedure is not automatic. What procedure is 

automatic? 

Mr. LUNGREN. You have——

Chairman SENSENBRENNER. The time belongs to the gentleman 

from Tennessee and only he can yield. 

Mr. JENKINS. Mr. Chairman, I retain my time and yield back the 

balance of my time. 

Chairman SENSENBRENNER. We have three votes on the floor. 

The Chair again requests members to return promptly after the 

votes, more promptly than last time. And without objection the 

committee is recessed until after the three votes. 

[Recess.] 

Chairman SENSENBRENNER. The committee will be in order. A 

working quorum is present. When the committee recessed for the 

votes, pending was the motion by the Chair that the version of the 

bill reported by the Committee on Armed Services be favorably reported. That version was considered as read, open for amendment 

at any point and pending was an amendment by the gentleman 

from Massachusetts, Mr. Meehan. 

The question is on the Meehan amendment. Those in favor will 

say aye. Those opposed, no. The noes appear to have it. 

Mr. MEEHAN. Mr. Chairman, I would like a rollcall vote on that. 

Chairman SENSENBRENNER. Recorded vote will be ordered. Those 

in favor of the Meehan amendment will as your name is called answer aye, those opposed no, and the Clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK.Mr. Coble. 

[No response.] 

The CLERK. Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith votes no. 

Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte votes no. 

Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot votes no. 

Mr. Lungren. 

[No response.] 


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The CLERK. Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins votes no. 

Mr. Cannon. 

[No response.] 

The CLERK. Mr. Bachus. 

[No response.] 

The CLERK. Mr. Inglis. 

[No response.] 

The CLERK. Mr. Hostettler. 

[No response.] 

The CLERK. Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green votes no. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

[No response.] 

The CLERK. Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake votes no. 

Mr. Pence. 

[No response.] 

The CLERK. Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes votes no. 

Mr. King. 

[No response.] 

The CLERK. Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney votes no. 

Mr. Franks. 

[No response.] 

The CLERK. Mr. Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert votes no. 

Mr. Conyers. 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers votes aye. 

Mr. Berman. 

[No response.] 

The CLERK. Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler votes aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott votes aye. 

Mr. Watt. 

[No response.] 

The CLERK. Ms. Lofgren. 

[No response.] 

The CLERK. Ms. Jackson Lee. 


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[No response.] 

The CLERK. Ms. Waters. 

[No response.] 

The CLERK. Mr. Meehan. 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan votes aye. 

Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

[No response.] 

The CLERK. Mr. Weiner. 

[No response.] 

The CLERK.Mr. Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff votes aye. 

Ms. Sa ́nchez. 

[No response.] 

The CLERK. Mr. Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen votes aye. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz votes aye. 

The CLERK. Mr. Chairman. 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman votes no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes. The gentleman from North Carolina, Mr. 

Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Chairman SENSENBRENNER. The gentleman from South Carolina, 

Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes. If not, the Clerk will report. 

The gentleman from New York, Mr. Weiner. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Chairman SENSENBRENNER. The gentleman from Utah, Mr. Cannon. The gentleman from Utah, Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Delahunt. 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 


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Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote. If not, the Clerk will try again to report. 

The gentleman from Arizona, Mr. Franks. 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Chairman SENSENBRENNER. The gentlewoman from Texas, Ms. 

Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Mr. Chairman, 11 ayes and 15 nays. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

The vote has been reported. 

Mr. NADLER. Ask unanimous consent to reopen the votes so Mr. 

Boucher may cast his vote. 

Chairman SENSENBRENNER. Without objection. The gentleman 

from Virginia. 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. 

Chairman SENSENBRENNER. The Clerk will report again. 

The CLERK. Mr. Chairman, there are 12 ayes and 15 nays. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

Are there further amendments? 

Ms. JACKSON LEE. I have an amendment at the desk. 

Chairman SENSENBRENNER. The gentlewoman from Texas has an 

amendment at the desk which the clerk will report. 

The CLERK. Amendment to H.R. 6054 offered by Ms. Jackson Lee 

of Texas and Mr. Nadler of New York. 

[The amendment follows:] 


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[The prepared statement of Ms. Jackson Lee follows:] 

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, COMMITTEE ON THE JUDICIARY


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Mr. SMITH. Mr. Chairman, I reserve a point of order. 

Chairman SENSENBRENNER. Point of order is reserved. 

The CLERK. In section 6 strike subsection (b), page 80, lines 14 

through 23 and redesignate the succeeding sections accordingly. 

Chairman SENSENBRENNER. The gentlewoman from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. To my 

colleagues, I started out this debate by indicating that I hope that 

we will not be gripped by the hands of fear and the hands of politics and the hands of rejection. The hands of rejection are to look 

at our military brass and the men and women on the front lines 

and indicate to them that we only use and employed you during 

times of patriotism and special holidays but when you recommend 

to us that this will jeopardize your actions on the front lines and 

your ability to defend America, we give you little comfort and little 

consequence. 

So on behalf of myself and Mr. Nadler I offer this amendment 

that improves H.R. 6054, the Military Commissions Act, by striking 

6(b) from the bill. It is clear to us, Mr. Chairman, that section 6 

of the bill would redefine Common Article 3 of the Geneva Convention to equate it to the standards set forth in the Detainee Treatment Act and would render those rights judicially unenforceable. 

This interpretation and application violates the core principles of 

the Geneva Conventions and poses a grave threat to American 

services members now and in, heaven forbid, future wars. 

This is not just our view. I think what is important about striking that provision is that it goes to the core of those who pay the 

toll. Our military pay the toll. John McCain paid the toll, and 

many, many others paid the toll. It is the view expressed powerfully and eloquently by General John Vessey, former Chair of the 

Joint Chiefs of Staff, and former Secretary of State Colin Powell 

and the orchestrator of the successful Gulf War I who understood 

that massive numbers of troops could be the victory if you had to 

engage in war, interestingly enough, less casualties and certainly 

less prisoners of war than that we have today. 

Right now in Iraq we have a raving civil war with our troops in 

the middle of it. People are being kidnapped every single day and 

our troops are not immune. Right now as we look at this legislation 

we are putting their lives in jeopardy. We are rejecting the pleas 

of their leadership by ignoring the convention that so aptly and 

ably has protected our soldiers and those around the world. 

Former prisoner of war Senator John McCain, former Navy Secretary and Senate Armed Services Committee Chairman John Warner, and certainly our own former member of this committee who 

was part of the JAG core, Senator Lindsay Graham. I know about 

the JAG obviously because I went to the University of Virginia that 

has one of the premiere JAG schools and as well was a number of 

years a member of the U.S. Military Appeals Court. We know the 

consequences of not having the parameters that will give comfort 

not to the enemy but our captured soldiers. 

With respect to the interpretation and judicial enforceability of 

Common Article 3, Mr. Chairman, the real question to be decided 

is not whether terrorists are bad but whether America will be able 

to maintain its intelligence gathering and protect the United States 


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military. Common Article 3 of the Geneva Convention provides the 

minimum standards for humane treatment and fair justice that 

apply to anyone captured in armed conflict. 

I heard my good friend on the other side of the aisle correct one 

of my colleagues about the tenure of this question dealing with the 

habeas and of course its impact, statutory versus constitutional. I 

would venture to say when torture is being projected on you I don’t 

know whether you decipher as to whether or not your Nation only 

made mockery of the statutory habeas corpus or whether or not 

they made mockery of the 800-year habeas corpus. 

The Geneva Convention is the protection that our soldiers need. 

These standards were specifically designed to ensure that those 

who fall outside the other more extensive protection of the convention are treated in accordance with the values of the civilized nations. The framers of the Convention, including the American representatives in particular, wanted to ensure that Common Article 

3 would apply to situations where a state party to the treaty like 

the United States fights an adversary that is not a party, including 

irregular forces like al-Qaeda. Therefore, if our soldiers are captured in this ongoing new trend of guerilla warfare, we at least 

have the precedent, the precedent of a Nation that abhors tortuous 

treatment and does not adhere to the Geneva Convention. 

So it is not whether or not al-Qaeda or other terrorists adhere 

to it, it is the standards we set so we can make the appropriate 

argument when our troops may be in danger. As General Powell——

Chairman SENSENBRENNER. The time of the gentlewoman has expired. The time of the gentlewoman has expired. 

Does the gentleman from Texas insist on his point of order? 

Mr. SMITH. No, Mr. Chairman, I do not. 

Chairman SENSENBRENNER. A reservation is withdrawn. For 

what purpose does the gentleman from Utah seek recognition? 

Mr. CANNON. To strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CANNON. Let me begin by saying that I agree with the sentiments of the gentlelady from Texas; that is, I agree that we want 

to protect our soldiers and that the Geneva Convention in ordinary 

circumstances does that. I abhor torture. We also agree I think 

that al-Qaeda and other terrorist groups are not constrained by the 

Geneva Conventions and have done awful, horrible and terrible 

things. 

I guess part of the question here is, therefore, how do we protect 

our soldiers. We have a lot of history here. Some of that history 

was reversed in the Supreme Court decision in Hamden, where the 

bill before us, as I understand this amendment, it would strike the 

language in the bill before us that the Geneva Conventions do not 

provide any rights that are enforceable in U.S. courts. 

This amendment would open the door for terrorists and trial lawyers to sue government personnel for things like 

outrages against personal dignity and of course the vagueness of 

the language is always difficult to struggle with here and beauty 

is in the eye of the beholder. But here what we are going to have 

as the definition of outrage is in the eye of the trial lawyers and 


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that is going to result in an onslaught, I believe, of frivolous lawsuits. 

Now if we had some better protections like the Lawsuit Abuse 

Reduction Act, which Mr. Smith has introduced, maybe we could 

live with this kind of vagueness but we don’t have that. So what 

we are left with, our current guidelines, which are essentially advisory in these cases of frivolous lawsuits, and I suspect frivolous 

lawsuits will proliferate and be disruptive to our efforts to prevent 

terrorism. 

This is not just vague talking. Michael Ratner of the Center for 

Constitutional Rights, who is one of the coordinating counsel for 

detainees, boasted, and I am quoting him now: The litigation is 

brutal for the United States. It is huge. We have over 100 lawyers 

now from big and small firms working to represent the 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 are getting court orders is to get more lawyers down there. 

Look, this is a very straightforward, plain issue. If we do what 

the gentlelady desires despite the good sentiments behind it we 

handicap our ability to deal with the kind of information that these 

people have that will inevitably result if we don’t get it in the destruction of schoolchildren or people working in skyscrapers or 

other easy targets that we as an American society provide. 

Ms. JACKSON LEE. Will the gentleman yield? 

Mr. CANNON. I would be happy to yield, yes. 

Ms. JACKSON LEE. I thank the gentleman for at least expressing 

the sympathy or the empathy with the intent of this particular 

amendment and I would only raise this qualification to the rebuttal 

that you have just offered, is that this is a simple amendment that 

allows simply for the Geneva Convention to be raised in a proceeding. It is not a door opener to frivolous lawsuits. 

Mr. CANNON. Reclaiming my time, I understand that is exactly 

what this is, and the problem is we are not a hegemonist society 

where dissidents get killed. We have people who view the world 

from many perspectives and it is absolutely clear that people like 

Michael Ratner want to disturb our process of protecting ourselves 

and your amendment empowers Mr. Ratner and other people like 

him to interfere with our ability to obtain the information that will 

allow us to stop these terrorists. 

I mean it is absolutely amazing to me, astonishing beyond my 

ability to actually state it that we have not had another terrorist 

attack on American soil. We have had other attacks around the 

world, we know these people want to fight and murder, we know 

they want to disturb, destroy and throw into chaos our complex 

systems. The duty of civilization is to civilize. That is our responsibility and part of that means we have to be a little bit tough. Being 

tough means getting the information——

Mr. CONYERS. Would the gentleman from Utah yield? 

Mr. CANNON.—from people that we need to get it from in a timely manner. And we have to do that in a way that our soldiers and 

the people getting that information are clear. If they believe they 

are going to be sued, if they believe they are going to be defendants 


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in lawsuits, it makes it almost infinitely more difficult to do what 

we need to do and what this bill is trying the do. 

Mr. Conyers, I see I only have a little bit of time but I am happy 

to yield what I have. 

Mr. CONYERS. That is good, I only need a little time. 

Chairman SENSENBRENNER. The gentleman from Utah’s time has 

expired. Without objection, he gets an additional minute. 

Mr. CONYERS. Thank you. 

Mr. CANNON. Which I am happy to yield to Mr. Conyers. 

Mr. CONYERS. Thank you. I never thought I would have to choose 

between your rationale and Senator Warner’s rationale, which left 

out section 6. I appeal to you to consider that when we start selectively determining when the Geneva Conventions shall be employed it gets to be pretty risky business. 

Mr. CANNON. Reclaiming my time, the Geneva Conventions on 

their face are clear and we have always had a historic distinction 

between people in uniform who are fighting because they are drafted or otherwise drawn into a conflict and people who choose to be 

part of a conflict using methods that we abhor more than we abhor 

the possibility that some American soldier is going to interrogate 

a detainee too roughly. 

I think my minute has expired, Mr. Chairman. I yield back. 

Mr. BERMAN. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from California, Mr. Berman, seek recognition? 

Mr. BERMAN. Move to strike the last word, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. BERMAN. To my friend from Utah, this is not—the amendment to strike is to strike a provision regarding an argument you 

are making, it is not about whether or not the litigation is allowed, 

whether the writ is allowed, it is about what argument you are 

making. The one thing I would like to hear is why, if you are allowed to bring a habeas action, you cannot in that habeas action 

claim that your rights under the Geneva Convention have been violated. That isn’t about whether you are abusing it through frivolous 

litigation, that is about your right to make and prove one contention, that the Geneva Convention has been violated. 

Why would we want to prohibit that from being part of the action? If you want to get to the issue of abuse of the process, that 

is one thing, but here is simply for some reason in the bill that the 

gentlelady seeks to strike a prohibition on making a specific argument. 

I am curious about and I would be happy to yield for an understanding of why that one argument should not be allowed. 

Mr. CANNON. I understand the gentleman, I believe, and I am 

sympathetic, but my understanding of this amendment and the 

practical effect is that lawyers who bring the habeas action have 

the ability then or will use as a matter of course or try to have access to secret information that will lead us to other information 

that is vitally important or sources of information or methods that 

we use to get information, things that we don’t want to share with 

terrorists. 


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I believe that is the core of the reason that you have this provision in the bill. 

Mr. BERMAN. You can deal with that issue through prohibitions 

on evidence. But someone files a writ and accompanies with that 

writ an affidavit regarding what that person claims to have been 

put through during the interrogation process, that is evidence to 

support a contention. And the person who is giving that affidavit 

was the person involved. So it is firsthand legitimate evidence, it 

is not classified evidence, and why can’t they make that argument? 

In other words, if you want to get at abuse of litigation, or frivolous 

litigation, go after that. If you want to go over restrictions on the 

revelation of classified evidence, go to that. But why outlaw an argument that a fundamental convention that we have signed and 

are signatory to, that the rights under that convention have been 

violated; why prohibit that? 

Mr. CANNON. Would the gentleman yield? 

Mr. BERMAN. Sure. 

Mr. CANNON. Thank you. The answer to that is I am sympathetic 

to everything you say and largely in agreement. I am responding 

to an amendment to the underlying bill that I think would gut the 

bill. If you want to work on other language that would do what you 

have suggested, I am happy to do that. I just think this amendment the way it works now is highly destructive to what we need 

to do overall. 

Mr. BERMAN. I assume the gentlelady’s amendment was simply 

to remove the prohibition on raising this argument. 

Ms. JACKSON LEE. Would the gentleman yield? 

Mr. BERMAN. I would be happy to. 

Ms. JACKSON LEE. Absolutely, Congressman. If you look at the 

language, you are absolutely right in your interpretation. The language of 6(b) says: No person in a proceeding may invoke the Geneva Convention or any protocols. Which means that you just simply 

cannot argue that you were impacted negatively or positively by 

the use or nonuse of the Geneva Convention. It is evidence. I would 

simply argue that a judge or proceedings could confine the proceedings to determine whether the testimony be classified, so it 

could be a closed proceeding, or otherwise. 

And that is all I am attempting to do, is to strike 6(b). 

Mr. BERMAN. And just to reclaim my time, so it is to prohibit an 

argument in an action that we are allowing the individual to bring 

before a Federal judge who is interpreting an international agreement to which we are signatory, not some foreign tribunal or international commission, a Federal judge subject to an appellate review. It is saying, bring the action, but you can’t make this argument. I can’t understand what you are getting at here. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from New York, Mr. Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. 

This is a, as far as I know, unprecedented provision in this bill. 

The United States has been a signatory since 1949 to the Geneva 

Conventions. Geneva Conventions do give people certain rights. We 

are told here that most of those rights are fine. Everybody’s, you 

know, happy with them. But this provision says, no person in any 

habeas action or any other action may invoke the Geneva ConvenVerDate Aug 31 2005 11:25 Sep 26, 2006 Jkt 049006 PO 00000 Frm 00173 Fmt 6602 Sfmt 6601 E:\HR\OC\HR664P2.XXX HR664P2

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tions or any protocols thereto as a source of rights, directly or indirectly, for any purpose, any court of the United States or its States 

or territories. 

What that is saying is that if you are dealt with in a manner 

contrary to the rights given by the Geneva Convention, you can’t 

tell that to a court. You can go to court. It doesn’t stop you from 

going to court, but you have to make some other claim. 

Article VI of the Constitution of the United States reads as follows: This Constitution, and the laws of the United States which 

shall be made in pursuance thereof, and all treaties made, or which 

shall be made, under the authority of United States, shall be the 

supreme law of the land; and the judges in every State shall be 

bound thereby, any thing in the Constitution or laws of any State 

to the contrary notwithstanding. 

This says, in so many words, that the treaties to which the 

United States is a signatory which the Senate has ratified are the 

law of the land, and the judges are bound and the Court shall enforce it. 

Now, it is true that a treaty is a law. We can pass another law, 

and that law can abrogate the treaty. Everybody else in the world 

can say we are faithless. We don’t adhere to our word. They may 

conclude that. But we have the power to pass the law to abrogate 

a treaty which—as we have the power to repeal or supersede any 

law passed previously. 

I don’t doubt the power of this Congress to do that. I doubt the 

rightness of that action. What precedent do we set by saying we 

are not abrogating the treaty? We are simply saying you can’t enforce it in the law. 

In fact, I am not sure you can do that. I am not sure you can 

say we remain signatory to the treaty. We are not repealing the 

treaty, but the courts can’t consider any claim under the treaty. 

But even if we have that power, what purpose does it serve, 

other than to declare to the world we are faithless to the Geneva 

Accord; do to our soldiers whatever you want; and we have no 

standing to claim under the Geneva Conventions because we are 

not going to give that. 

But I know people will say, well, these people do not adhere—

these people, the terrorists—don’t adhere to the Geneva Convention. And the terrorists don’t, but other people do, and not everybody arrested is a terrorist. We may think they are a terrorist. 

One of the parts of this debate that frustrates me from the President on down, he says, they are the worst of the worst. People arrested, people held in Guantanamo, people held in some secret prison in God knows where may be the worst of the worst, or they may 

be innocent, or they may be somewhat guilty, or there may be mistakes. 

We saw that Mr. Hariri was a mistake. We have seen others that 

were mistakes. Hundreds of people we have admitted now were 

mistaken. 

You cannot say that people who are arrested in the belief that 

maybe they are guilty should be treated—they should have no 

rights, because, after all, they are the worst of the worst. Once you 

have determined they are the worst of the worst, then punish 


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them. But first you need some due process. That is what this country stands for. 

And to say that a treaty to which we are a signatory, which we 

hope that other civilized powers will abide by and will treat our 

captured soldiers by in future wars—God forbid there should be 

any—but we are not going to allow our courts to enforce them is 

simply wrong and hypocritical. 

And I will yield to the gentleman. I yield to Mr. Cannon. 

Mr. CANNON. Thank you. 

Let me just say that I wish—it would be interesting if God would 

prohibit wars, but he has been around for a long time, as long as 

man, and hasn’t yet done so. 

Mr. NADLER. He has prohibited them. He just hasn’t enforced it. 

Mr. CANNON. Right. 

We don’t disagree on many things, but there are a couple of distinctions that I think are very important here. In the first place, 

the Geneva Convention makes a distinction between unlawful combatants and uniformed combatants; and that distinction is——

Mr. NADLER. Reclaiming my time for the moment, under the Geneva Convention you are supposed to have a tribunal, an article 5 

tribunal right there, within a very short period of time where you 

have captured somebody, if you claim that he is not a prisoner of 

war, that he is an unlawful combatant. We have chosen—the President declared we are not holding such tribunals. We are declaring 

a whole class of people, whoever we capture, as unlawful. So that 

is a violation right off the bat. 

Mr. CANNON. May I just make one other point? Will the gentleman yield? 

Mr. BERMAN. Just one thing. The irony of this bill, if this amendment were to lose, is that, in a bill that is done in the name of complying with the Supreme Court decision in Hamden, you are taking 

away the way that court decision came about because there could 

have been no effort to raise the issue that caused that issue to be 

made. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. NADLER. Can I have ask for another minute so Mr. Cannon 

and I can clarify? 

Chairman SENSENBRENNER. Without objection, the gentleman is 

recognized for another minute. 

Mr. NADLER. Let Mr. Berman finish then, Mr. Cannon. 

Mr. CANNON. Have you finished, Mr. Berman? Thank you. 

The other point I wish to make is that this is—the effect of what 

we do here is profound, and what I haven’t heard from the other 

side is any repudiation of Mr. Ratner’s statement. In other 

words——

Mr. NADLER. Reclaiming my time, I will repudiate Mr. Ratner’s 

statement if it is quoted correctly. The fact of the matter is that 

one of the prices you sometimes pay for litigation is it takes time. 

Now there are ways under our law, and maybe we should strengthen them, and maybe we should have another amendment or a bill 

to strengthen our defenses against frivolous legislation. Maybe. But 

to simply say that we are not going to allow our treaties to be enforced in our courts is hardly the way to do that. 


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Mr. CANNON. Again, this is—to make—will the gentleman yield? 

Mr. NADLER. I yield, yes. 

Mr. CANNON. I don’t believe this is a matter of not being properly 

supportive of the Geneva Convention. But, that said, if the gentleman is willing to work with me to limit frivolous lawsuits, that 

may give us the ability to come back later. We have guys today in 

the field who don’t know what they can do in interrogation. I think 

we need to send them a very clear signal today. 

And I yield back. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by—— Mr. VAN HOLLEN. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Maryland, Mr. Van Hollen, seek recognition? 

Mr. VAN HOLLEN. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. VAN HOLLEN. Back to this issue of the United States setting 

a standard for others in the world to follow. I think if other countries that have adopted the Geneva Convention, as the United 

States has adopted, were to then pass as a matter of their domestic 

law various provisions that said that they were not going to allow 

provisions to the Geneva Convention to be enforced in their courts, 

we would be screaming bloody murder. Because that would mean 

that our troops would not be entitled to any kind of protection 

under the Geneva Convention as applied to those courts. 

So I really think that we are rushing to judgment here. I do not 

believe these things have been thought through. 

Mr. Cannon, you said that you sort of agreed with the thrust of 

what had been said and yet, you know, you oppose the amendment. 

So I think it would behoove us, Mr. Chairman, to really take that 

provision out; and then, if someone can put forward a good justification for putting it back in, the burden should be on them for 

doing it. And, therefore, I would certainly support this amendment. 

I would yield the balance of my time to Ms. Jackson Lee. 

Ms. JACKSON LEE. Mr. Van Hollen, thank you very much for I 

think what was a very clear and lucid explanation simply of what 

I am attempting to do with Mr. Nadler; and I think it is important 

to refer back to this little document. You cited provisions and certainly provisions and the recognition of our compliance with treaties. But I think here is where my colleagues are going on the other 

side. 

They want to reject the Geneva Convention of the Korean War. 

They want to reject the Geneva Convention of the Vietnam War. 

They want to reject it of Gulf War I. Because they are basically 

saying it is antiquated. We don’t need to adhere to it. And matching frivolous lawsuits with the right of a petitioner to simply raise 

the question of the Convention begs the question of our own understanding of the protection that our soldiers need. 

I can imagine that we have gotten this jurisdiction, as I said, by 

accident, because the Supreme Court said that the President was 

wrong. He was wrong, wrong, wrong. And all we are doing is righting what the President did wrongly and sending it back to the Supreme Court. And then, in addition to accepting the wrongness of 


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the President and the wrongness of the administration, we are 

going to ignore soldiers who have been shot at, soldiers like General Vessey and General Powell, who today have wounds that they 

experienced in battle. 

And they are saying—and because General Powell used the word ‘‘moral,’’ he is now being made mockery of; and I take offense to 

those who would malign his morality statement. All that he said 

was that he wanted to associate himself with the words of General 

Vessey, and General Vessey cited the particular document, considered Americans in combat. Certainly it was a document written in 

World War II; and, of course, there is a great deal of humor saying 

we are in a war of terror now. 

But what we are suggesting is that when you begin to tear up 

the Constitution, tear up provisions that we have used from war 

to war—and Vietnam was a guerilla war if it was anything else— then we begin to jeopardize soldiers wherever they might be all 

over the world. 

As relates to fighting the war on terror, we have convinced the 

American people that you are right and we are wrong, that we are 

weak on terrorism, that we are now not wanting to proceed, not 

wanting to proceed to protect America. 

Intelligence is the offensive. We can get the intelligence. But I 

ask the question again. Do we want the Canadian story of this individual who went all the way to Syria back and we found out that 

we maligned him and he had the wrong information and he was 

tortured wrongly, is there any evidence that the informant in Pakistan that helped bring down the British, the terrorist plan, was 

tortured? Or did we just have an informant? 

There are many ways to fight this war on terror, and I can’t 

imagine that the administration would stand by the sheer lack of 

use of the Geneva Convention in a proceeding. That is all my 

amendment and Mr. Nadler’s amendment does. It strikes section 

6(b) which takes out the right to simply acknowledge in your defense that there was a Geneva Convention problem. So we are tearing up the Constitution and we are shredding the Geneva Convention. 

Mr. LUNGREN. Would the gentlelady yield on that? 

Ms. JACKSON LEE. I’d yield for a moment. I am on Mr. Van 

Hollen’s time. 

Chairman SENSENBRENNER. The time belongs to the gentleman 

from Maryland. 

Ms. JACKSON LEE. So I will continue. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Ms. JACKSON LEE. And I ask my colleagues to support the 

amendment. 

Chairman SENSENBRENNER. The question is on the Jackson Lee 

amendment. Those in favor will say aye. 

Mr. SCOTT. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Virginia seek recognition? 

Mr. SCOTT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 


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Mr. SCOTT. Mr. Chairman, the gentleman from New York has reminded us of the awkward situation we are in when we set up 

criminal laws and procedures and that is that both the guilty and 

the innocent will be tried by the same process. We don’t know at 

the beginning of the process whether the person is innocent or 

guilty, so whatever we do is going to affect both of them. 

Now, we haven’t had any hearings and we haven’t had any subcommittee markup, so it is hard to know the actual effect of section 

6 and how it differs from what we are doing now, what the present 

law has been up to now, whatever the President is doing and how 

it is going to affect us afterwards. But it incredibly just declares 

that what will satisfy all of article 3 of the Geneva Convention— it doesn’t tell us how it changes things. It just says that satisfaction of the provisions of section 1003 of the Detainee Treatment Act 

of 2005 shall fully satisfy the United States’ obligations with respect to the standards for detention and treatment established by 

article 3 of the Geneva Conventions. Just declares it. And then it 

says, whatever rights you have left after that paragraph, you can’t 

enforce them in court. 

We haven’t been requested—it is not apparent to me that we 

have had any request from the military to change, if we are changing, the definition of what constitutes torture. But it would be nice 

to hear from them in some hearings so we know what we are 

doing. 

This is precedence, the United States declaring what we are 

going to consider torture. It doesn’t say what everybody else in the 

world considers torture. We are just going to declare what we think 

it is. This sets a mighty poor precedence for what other countries 

are going to do. 

Suppose Iran or Iraq just decided, well, I think, notwithstanding 

what the rest of the world is doing, we are going to define torture 

this way. We wouldn’t put up with that. And we are setting the 

moral tone for everybody else. We wouldn’t want our soldiers treated by whatever Iran makes up this week for their new definition 

of torture. 

We ought to remove this section till we can put in there something that will withstand international scrutiny, not just something 

that’s made up, no hearings, no subcommittee markup or anything 

else. I would hope that we would adopt the amendment. 

Mr. CHABOT. Would the gentleman yield? 

Mr. SCOTT. I yield to the gentleman from Ohio. 

Mr. CHABOT. I thank the gentleman for yielding. 

I will be very brief. I just wanted to go back to what the gentleman’s colleague, the gentlelady from Texas—before, she talked 

about a man who was tortured wrongly. Our position is there is no 

way to torture rightly. We are talking about more aggressive tactics to get information that will save American lives, sometimes 

thousands of American lives, but none of us condone torture on this 

side of the aisle. 

I thank the gentleman for yielding. 

Mr. SCOTT. Well, reclaiming my time. 

Mr. BACHUS. Will the gentleman yield further? 

Mr. SCOTT. Well, let me just respond. Because if we are just 

going to make up what we think is torture, notwithstanding what 


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everybody else in the world thinks is torture isn’t much of a definition. 

I yield to the gentleman from Alabama. 

Mr. BACHUS. What I am curious about from both you and the 

gentleman from Virginia and the gentlewoman from Texas and the 

Armed Services Committee, who reviewed this and passed it, it 

was—of the Democrats on that committee, 19 voted in favor of this 

legislation, and only 8 opposed it. And all of a sudden we get to 

the Judiciary Committee, and we are tearing up the Constitution. 

I just wonder, the 19 Democrats who voted for this legislation on 

the Armed Services Committee, in other words, probably three out 

of four Democrats on the committee voted in favor of this legislation. 

Ms. JACKSON LEE. Will the gentleman yield? 

Mr. BACHUS. Did they say—I mean, they voted for this legislation, and I would—you have someone on the other side that said 

an intelligent individual would not support this legislation. 

Mr. SCOTT. Reclaiming my time, the Judiciary Committee has a 

different responsibility. The Armed Services Committee is fighting 

the war, and we are trying to put all these things together in some 

fashion that we can defend with the Constitution form of government. 

Mr. BACHUS. Would you yield? 

Mr. SCOTT. As I indicated to the gentleman, John Warner, John 

McCain, Lindsay Graham also reviewed it; and they came up with 

the idea that they want American troops treated the way this 

would allow others to be treated. 

Mr. BACHUS. I am talking about the 19 members, an overwhelming number of Democrats on the Armed Services Committee, 

who voted in favor of this and said it was very necessary. 

Chairman SENSENBRENNER. The time of the gentleman from Virginia has expired. 

Mr. LUNGREN. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. Mr. Chairman, request permission to strike the 

requisite number of words. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. LUNGREN. Mr. Chairman, I have been trying to decipher 

what this section of the bill is and what the amendment seeks to 

do; and I was intrigued by the gentlewoman from Texas’ comments 

on the fact that if we don’t adopt her amendment that somehow 

this bill will abrogate the rights that were enjoyed by American 

troops and our enemy during the Second World War, the Vietnam 

War, the Korean War. 

And unless I am mistaken, during all those periods of time and 

up to the Hamden decision, the understanding of the courts was 

consistent that the Geneva Convention, as a convention, is not enforceable by individuals in terms of court appeal. Rather, the enforcement mechanism was a diplomatic mechanism. 

That is, countries were held to account for either following the 

Geneva Accords or not and that the very existence of the sections 

of the Military Code of Justice that we are talking about, that have 


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been incorporated, or reference to Common Article 3 is incorporated 

into our Criminal Code or our Military Code and that, therefore, 

what this does is bring us back to the common understanding and 

enforcement of that treaty as it was understood prior to the Hamden decision. 

So, if that is the case, I guess we have something—the question 

before us is whether we think that is the appropriate way to do it 

or that we should do it in this new interpretation of enforcement 

of the Geneva Convention. 

I just want to make it clear that that is a policy decision for us 

to make. But to suggest that by maintaining this section in this bill 

we are somehow turning our back and turning the clock back from 

what it was during World War II, the Korean War and the Vietnam War is factually incorrect. 

And I yield to the gentleman from Virginia. 

Mr. GOODLATTE. I thank the gentleman for yielding. 

I thank him for his very cogent observation regarding that. I 

agree with that fully, and I would add to that. 

In response to the comments of the gentleman from Virginia, Mr. 

Scott, who expressed concern that somehow the United States 

would be taking the country in a new direction in terms of interpreting what the Geneva Convention means and we would be taking a different interpretation than other countries who signed it, I 

would point out that on the day we signed it we did that. Because 

we have here a page and a half of reservations that we filed upon 

ratification of the Geneva Convention that sets forth our specific 

definitions of torture, our specific definitions of what is encompassed within the purview of our Constitution as it affects United 

States’ citizens and a whole host of other reservations. And all we 

are doing in this action today is clarifying what we intended at 

that time and restoring that, based upon what I think is a flawed 

Supreme Court decision. 

Mr. LUNGREN. I appreciate the gentleman’s comments. 

The other thing in terms of the Supreme Court decision, if you 

look at the core of it, it is to say that these individuals are accorded 

recognition under the Geneva Accords under a section which specifically says they would not be. 

That section that was referred to by Justice Stevens in his opinion basically talked about these are not international disputes and 

they involve a singular party which is a signatory to the Convention. In other words, it is a singular definition of a civil war within 

a country which is a signatory to the Accords. 

The basis of the Accords or the Convention was a sense of reciprocity. That is, we were attempting to encourage people to join 

into the Convention by virtue of the fact that we would accord certain rights that they would accord. 

Then we have the Supreme Court decision saying, irrespective of 

whether you agree to do that, we are going to bind ourselves to it; 

and that is really the question of, I think, misinterpretation. 

But also, more than that, the question of in the way the real 

world works in international events or affairs, what incentive is 

there for an enemy to agree to the Geneva Convention if, in fact, 

they get all of the benefits from it without any of the responsibilities? 


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And that is separate from the question of how you enforce it. We 

have traditionally enforced the norms of the Geneva Convention to 

which we have agreed through our Military Code of Conduct and 

our criminal laws. This would be—— Chairman SENSENBRENNER. The time of the gentleman from 

California has expired. 

The question is—— Ms. WATERS. Mr. Chairman. 

Chairman SENSENBRENNER. Okay. 

Ms. WATERS. I move to strike the last word. 

Chairman SENSENBRENNER. Okay. And—— Ms. WATERS. I yield to the gentlewoman from Texas. 

Chairman SENSENBRENNER. Just a minute, please. The gentlewoman from California is recognized for 5 minutes and is estopped 

from complaining that we are practicing sleep deprivation when we 

are here at 1:00 this morning. 

Ms. WATERS. I don’t know what you are talking about, but I yield 

to the gentlelady from Texas. 

Ms. JACKSON LEE. Let me welcome all of you to the 1:00 a.m. 

proceedings for the House Judiciary Committee. 

But I thank the distinguished gentlewoman for her yielding. It 

gives me an opportunity to try and correct some of the well-intended but misstatements of my friends on the other side of the 

aisle. 

If we were on the playground, we would say in some kind of confrontation, you started it. It is interesting that my friends are talking about their interpretation of the Geneva Convention, and it is 

not to be interpreted this way. They started it. 

They have in section 6(b) that you cannot use an existing Convention that has been in force since the Korean War, the Vietnam 

War, the Gulf War; and it has been used by the United States military in times of war but also in times of securing necessary intelligence. 

I want to correct my good friend from Ohio in correcting my 

English. It is what I said, that he was wrongly tortured, and 

wrongly tortured means that torture is wrong, though it is utilized, 

but also that he was tortured in that he was innocent. So if we 

were trying to punish someone who we thought was not innocent, 

we have wrongly done it; and we have wrongly done it, in essence, 

if we believe that is the way that we should promote our values. 

We have a war on terror. And our colleagues on the other side, 

again, are using the politics of elections to suggest that we are, on 

this side, weak on the war on terror. So this legislation now having 

to be in place because of the Supreme Court decision, we are not 

doing our oversight job by giving good guidance to the executive, 

good guidance to the interrogators who are out there, who want to 

do the right thing. What we are doing is allowing a free-for-all. 

My only point that I am making is a simple, singular point, and 

that is the point that General Vessey has made, and I ask unanimous consent to submit his statement into the record, the former 

Chairman of the Joint Chiefs of Staff. I ask unanimous consent to 

submit the statement, his letter into the record. 

Chairman SENSENBRENNER. Without objection. 

Ms. JACKSON LEE. Thank you. 


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Ms. JACKSON LEE. General Vessey makes it very clear that every 

battle that we have been in is a battle to the finish for our troops. 

We stand down for no one, and we don’t stand down in the war on 

terror. 

But my amendment simply argues the point that, in the instance 

of our detainees, allow the evidence to be presented. And we would 

hope that the instance of our detainees internationally, that the 

world opinion would come down on those that are not associated 

with a nation state, that they begin to feel the pressure and the 

punishment that would come about through terrorist activities toward our detainees. 

But by giving no comfort to that language in our legislation, we 

throw the whole argument in the wind; and you can be assured 

that it will be a free-for-all for our military personnel on the front 

lines. And why, for the life of me, we want to step on the Constitution and step on the military personnel who not only carry around 

their badges of honor but they carry around wounds that they have 

suffered as members of the United States military. 

So this amendment is simple. The amendment of Mr. Nadler and 

myself, it strikes section 6(b). And if any of you would read section 

6(b) you would find that the interpretation, Mr. Berman, is absolutely correct. It is simply allowing that kind of evidence to be presented. And it could be, in essence, by the Court presiding, dismissed, ruled out of order, not allowed, but in the circumstances 

that is before them, the Court could go into a session that is closed, 

many opportunities. But as long as that is allowed in—— I cannot imagine why my colleagues will not see reason behind 

those who have experienced the military procedures to allow this 

amendment to prevail and for it to be stricken, section 6(b); and I 

ask my colleagues to support this amendment. 

I yield back. 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. 

The question is agreeing to the amendment offered by the gentlewoman from Texas, Ms. Jackson Lee. Those in favor will say aye; 

those opposed, no. 

Ms. JACKSON LEE. rollcall. 

Chairman SENSENBRENNER. The noes appear to have it. The noes 

have it, and the amendment is not agreed to. Are there further 

amendments? 

Ms. JACKSON LEE. I asked for a roll call, Mr. Chairman. 

Mr. DELAHUNT. I ask for a recorded vote, Mr. Chairman. 

Chairman SENSENBRENNER. Okay. Well, the proper time to ask 

for a recorded vote is between the time the Chair says that the 

ayes or the noes appear to have it. 

Ms. JACKSON LEE. I was speaking, Mr. Chairman. You didn’t 

hear me. 

Chairman SENSENBRENNER. No, you spoke too soon. 

But the Chair will order a roll call, without objection. Those in 

favor of the Jackson Lee amendment will, as your names are 

called, answer aye; those opposed, no. And the clerk will call the 

roll. 

The CLERK. Mr. Hyde. 

[No response.] 


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The CLERK.Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble votes no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith votes no. 

Mr. Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly votes no. 

Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte votes no. 

Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot votes no. 

Mr. Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren votes no. 

Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins votes no. 

Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon votes no. 

Mr. Bachus. 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus votes no. 

Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis votes no. 

Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler votes no. 

Mr. Green. 

[No response.] 

The CLERK. Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

[No response.] 

The CLERK. Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake votes no. 

Mr. Pence. 

[No response.] 

The CLERK. Mr. Forbes. 

[No response.] 

The CLERK. Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King votes no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney votes no. 

Mr. Franks. 

Mr. FRANKS. No. 


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The CLERK. Mr. Franks votes no. 

Mr. Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert votes no. 

Mr. Conyers. 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers votes aye. 

Mr. Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman votes aye. 

Mr. Boucher. 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher votes aye. 

Mr. Nadler. 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler votes aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott votes aye. 

Mr. Watt. 

Mr. WATT. Aye. 

The CLERK. Mr. Watt votes aye. 

Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren votes aye. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee votes aye. 

Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters votes aye. 

Mr. Meehan. 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan votes aye. 

Mr. Delahunt. 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt votes aye. 

Mr. Wexler. 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler votes aye. 

Mr. Weiner. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner votes aye. 

Mr. Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff votes aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez votes aye. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen votes aye. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Aye. 


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The CLERK. Ms. Wasserman Schultz votes aye. 

Mr. Chairman. 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman votes no. 

Chairman SENSENBRENNER. Members in the Chamber wish to 

cast or change their votes? 

Gentleman from California, Mr. Issa. 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 

Chairman SENSENBRENNER. Gentleman from Virginia, Mr. 

Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? 

If not, the Clerk will report. 

The CLERK. Mr. Chairman, there are 17 ayes and 18 nays. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

Are there further amendments? 

Ms. LOFGREN. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentlewoman from California seek recognition? 

Ms. LOFGREN. A unanimous consent request. 

I was on the floor when the vote was taken on Mr. Meehan’s 

amendment. Had I been present, I would have voted aye; and I request that that be made a part of the record in the appropriate 

place. 

Chairman SENSENBRENNER. Without objection. 

Are there further amendments? 

If there are no further amendments——

Mr. BACHUS. Mr. Chairman, I have a unanimous consent. 

Chairman SENSENBRENNER. State your request. 

Mr. BACHUS. Mr. Chairman, I would like to introduce a record 

of the Committee on Armed Services vote on this legislation——

Chairman SENSENBRENNER. Without objection. 

Mr. BACHUS.—and remind the members of this committee that 

19 Democratic members supported the President’s efforts to interrogate terror suspects. 

Chairman SENSENBRENNER. Okay. That is not a unanimous consent request. The Armed Services Committee vote will be placed in 

the record by unanimous consent. 

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Chairman SENSENBRENNER. If the gentleman wishes to strike the 

last word—— Mr. BACHUS. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. BACHUS. The five top Democrats—the five senior Democrats 

on the Armed Services Committee supported this legislation. They 

voted—they agreed with the President, and they voted for the legislation. There were only seven Democrats on the entire Armed Services Committee, including Mr. Meehan, who serves on this committee, who voted against it. And I would simply say that to vote 

against this legislation you are not only out of step with the American people, who want something done about these terrorist attacks 

and threat on our national security—and if the anniversary of 9/ 

11 wasn’t enough, I would certainly hope that the exposure of the 

airline plot in London was enough. But I simply say, you know, 

this vote—this vote is about the national security of our country. 

Ms. JACKSON LEE. Will the gentleman yield? 

Mr. BACHUS. And to vote no and to say that Republicans are supporting the President, I would remind you that 19 Democratic 

members of the Armed Services Committee also voted for this legislation; and it is not us who are out of step with the American people. I think it is those who oppose this legislation. 

I will close by saying that Abraham Lincoln said that the Constitution is not a suicide pact, and I think that is very relevant to 

what we are considering today. The Supreme Court actually suggested that this legislation would address their concerns; and, thus, 

this legislation—this legislation is—part of that is in response to 

what the Supreme Court in their opinion suggested that we as a 

Congress do to cure their concerns; and that is what we are doing. 

Mr. BERMAN. Mr. Chairman, I move the previous question. 

Chairman SENSENBRENNER. Without objection, the previous 

question is ordered. A reporting quorum is present. The question 

is on reporting the bill, H.R. 6054, favorably. All in favor will say 

aye; opposed, no. The noes appear to have it. 

Mr. CHABOT. Ask for a recorded vote. 

Chairman SENSENBRENNER. The gentleman from Ohio asks for a 

recorded vote. A recorded vote will be ordered. Those in favor of reporting the bill favorably will, as your names are called, answer 

aye; those opposed, no. 

And the Clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble votes aye. 

Mr. Smith. 

[No response.] 

The CLERK. Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte. 

[No response.] 

The CLERK.Mr. Chabot. 

Mr. CHABOT. Aye. 


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The CLERK. Mr. Chabot votes aye. 

Mr. Lungren. 

[No response.] 

The CLERK. Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins votes aye. 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon votes aye. 

Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus votes aye. 

Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis votes no. 

Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler votes aye. 

Mr. Green. 

[No response.] 

The CLERK. Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa votes aye. 

Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake votes no. 

Mr. Pence. 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence votes aye. 

Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes votes aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King votes aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney votes aye. 

Mr. Franks. 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks votes aye. 

Mr. Gohmert. 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert votes aye. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers votes no. 

Mr. Berman. 

Mr. BERMAN. No. 

The CLERK. Mr. Berman votes no. 

Mr. Boucher. 

Mr. BOUCHER. No. 


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The CLERK. Mr. Boucher votes no. 

Mr. Nadler. 

Mr. NADLER. No. 

The CLERK. Mr. Nadler votes no. 

Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott votes no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt votes no. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren votes no. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee votes no. 

Ms. Waters. 

Ms. WATERS. No. 

The CLERK. Ms. Waters votes no. 

Mr. Meehan. 

Mr. MEEHAN. No. 

The CLERK. Mr. Meehan votes no. 

Mr. Delahunt. 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt votes no. 

Mr. Wexler. 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler votes no. 

Mr. Weiner. 

Mr. WEINER. No. 

The CLERK. Mr. Weiner votes no. 

Mr. Schiff. 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff votes no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez votes no. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen votes no. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz votes no. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman votes aye. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their votes? 

Gentleman from Texas, Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Goodlatte. 

Mr. GOODLATTE. How am I recorded Mr. Chairman? 


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The CLERK. Mr. Chairman, Mr. Goodlatte is not recorded. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Chairman SENSENBRENNER. Gentleman from Wisconsin, Mr. 

Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Chairman SENSENBRENNER. Gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? 

Gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? 

If not, the Clerk will report. 

The CLERK. Mr. Chairman, there are 17 ayes and 20 nays. 

Chairman SENSENBRENNER. The motion to report favorably is not 

agreed to. 

The Chair now moves to report—— Mr. SCOTT. Mr. Chairman, I have a motion to make. 

Chairman SENSENBRENNER. The Chair has recognized himself. 

The Chair now moves to report the bill unfavorably. 

Without objection, the previous question is ordered. Those in 

favor of the Chair’s motion will say aye; those opposed, no. 

The ayes appear to have it. The ayes have it. The bill is reported 

adversely. Without objection, the bill will be reported adversely to 

the House in the form of a single amendment in the nature of a 

substitute incorporating the amendments adopted here today. 

Without objection, the staff is directed to make any technical and 

conforming changes; and all members will be given 2 days, as provided by the House rules, in which to submit additional dissenting 

supplemental or minority views. 

[Intervening business.] 

Chairman SENSENBRENNER. For what purpose does the gentleman from Texas, Mr. Gohmert, seek recognition? 

Mr. GOHMERT. Mr. Chairman, I move to reconsider the vote on 

the motion to report the bill H.R. 6054 adversely on which the ayes 

prevailed by voice vote. 

Chairman SENSENBRENNER. The gentleman qualifies. The motion 

is not debatable because the underlying motion was not debatable. 

Those in favor——

Mr. WEINER. Mr. Chairman, point of order. 

Chairman SENSENBRENNER. State your point of order. 

Mr. WEINER. Mr. Chairman, I make a point of order that once 

a bill is reported out of this committee to the floor, it is no longer 

on our calendar, no longer subject to further amendment without 

being rescheduled or recalendared. 

Chairman SENSENBRENNER. The point of order is not well taken 

because the motion to reconsider lies at any time during the markup at which the vote was taken. 


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The question is on the motion by the gentleman from Texas, Mr. 

Gohmert, to reconsider the vote by which the bill was reported adversely. 

Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it. 

Mr. NADLER. rollcall. 

Chairman SENSENBRENNER. rollcall is ordered. The question is 

shall the vote by which H.R. 6054 was reported adversely be reconsidered. 

Those in favor will, as your names are called, answer aye. Those 

opposed, no. The Clerk will call the roll. 

Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. The Clerk will call the roll. 

The CLERK. Mr. Hyde. 

Chairman SENSENBRENNER. State your parliamentary inquiry. 

Mr. NADLER. My point is, isn’t it the case before we can vote on 

a motion to reconsider the vote by which the motion to report favorably was not passed, we first have to vote to reconsider the vote 

by which the bill that was reported unfavorably was passed? 

Chairman SENSENBRENNER. That is exactly what we are doing. 

The Clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde, aye. 

Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Mr. Gallegly. 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. 

Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Mr. Lungren. 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. 

Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. 

Mr. Inglis. 

Mr. INGLIS. No. 


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The CLERK. Mr. Inglis, no. 

Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. 

Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. 

Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Mr. Pence. 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. 

Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. 

Mr. Franks. 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. 

Mr. Gohmert. 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. 

Mr. Berman. 

Mr. BERMAN. No. 

The CLERK. Mr. Berman, no. 

Mr. Boucher. 

Mr. BOUCHER. No. 

The CLERK. Mr. Boucher, no. 

Mr. Nadler. 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. 

Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. 


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Ms. Jackson Lee. 

Ms. JACKSON LEE. A ‘‘no’’ vote for justice. 

The CLERK. Ms. Jackson Lee, no. 

Ms. Waters. 

Ms. WATERS. No. 

The CLERK. Ms. Waters, no. 

Mr. Meehan. 

Mr. MEEHAN. No. 

The CLERK. Mr. Meehan, no. 

Mr. Delahunt. 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt, no. 

Mr. Wexler. 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler, no. 

Mr. Weiner. 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. 

Mr. Schiff. 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz, no. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Any members who wish to cast or 

change their votes? If not, the Clerk will report. 

The CLERK. Mr. Chairman, there are 20 ayes and 19 nays. 

Chairman SENSENBRENNER. The motion to reconsider is agreed 

to. The question now is—the question is nondebatable. That is 

quite clear under the rules. 

Ms. WASSERMAN SCHULTZ. I don’t wish to debate it, Mr. Chairman, I suggest the absence of a quorum. 

Chairman SENSENBRENNER. The Chair rules that a quorum is 

present. There is one member absent. 

Mrs. WASSERMAN SCHULTZ. Mr. Chairman, can I have a rollcall 

vote on that, please? 

Chairman SENSENBRENNER. The Chair rules that to be dilatory 

because it is obvious that only one member is absent. A recording 

quorum is present. 

The question is shall the bill H.R. 6054 be reported adversely. 

Those in favor will say aye. Opposed, no. 

The noes appear to have it. 

Ms. JACKSON LEE. rollcall. 

Chairman SENSENBRENNER. rollcall is ordered. The question is 

on reporting H.R. 6054 adversely. 


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Those in favor will, as your names are called, answer aye. Those 

opposed no. 

The Clerk will call the roll. 

Mr. SCOTT. Could you restate the motion? 

Chairman SENSENBRENNER. The Chair will restate the question 

once the committee is in order, lest there be any confusion. The 

question is, shall the bill H.R. 6054 be reported adversely? 

Those in favor will, as your names are called, answer aye. Those 

opposed, no. 

And the Clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. 

Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Mr. Bachus. 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Mr. Inglis. 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. 

Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 


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Mr. Flake. 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. 

Mr. Pence. 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Mr. Franks. 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Mr. Conyers. 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. Boucher. 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. 

Mr. Nadler. 

Mr. NADLER. Pass. 

The CLERK. Mr. Nadler, pass. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt. 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Mr. Meehan. 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 


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[No response.] 

The CLERK. Mr. Weiner. 

Mr. WEINER. Pass. 

The CLERK. Mr. Weiner, pass. 

Mr. Schiff. 

Mr. SCHIFF. Pass. 

The CLERK. Mr. Schiff, pass. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Pass. 

The CLERK. Ms. Sa ́nchez, pass. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. 

Mr. Chairman. 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their votes. 

Mr. NADLER. Mr. Chairman. Aye. 

The CLERK. Mr. Nadler, aye. 

Chairman SENSENBRENNER. The gentleman from Florida, Mr. 

Wexler. 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Chairman SENSENBRENNER. The gentlewoman from California. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Weiner. 

Mr. WEINER. Yes. 

The CLERK. Mr. Weiner, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes. If not, the Clerk will report. 

Mr. DELAHUNT. What about me? 

The CLERK. Mr. Delahunt has not recorded. 

Chairman SENSENBRENNER. The gentleman from Massachusetts. 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. 

Chairman SENSENBRENNER. The Clerk will report. 

The CLERK. Mr. Chairman, there are 19 ayes and 20 nays. 

Chairman SENSENBRENNER. The motion to report adversely is 

not agreed to. 

For what purpose does the gentleman from Texas, Mr. Gohmert, 

seek recognition? 

Mr. GOHMERT. Mr. Chairman, I now move to reconsider the vote 

on the motion to report bill H.R. 6054 favorably, in which the noes 

prevailed. 


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Chairman SENSENBRENNER. Did the gentleman vote ‘‘no’’ on the 

rollcall to report favorably? 

Mr. GOHMERT. I voted ‘‘yes’’ before I voted ‘‘no,’’ Chairman. But 

I did vote ‘‘no’’. Yes. 

Chairman SENSENBRENNER. Then the gentlemen qualifies. The 

question is, shall the vote by which the bill H.R. 6054 failed a favorable reporting be reconsidered? 

Those in favor will say aye. Opposed, no. 

The noes appear to have it. 

Mr. LUNGREN. rollcall. 

Chairman SENSENBRENNER. A request for a rollcall has been 

made. Those in favor of reconsidering the vote by which H.R. 6054 

failed at being favorably recorded will, as your names are called, 

answer aye. Those opposed, no. 

The Clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde, aye. 

Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Mr. Gallegly. 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. 

Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Mr. Lungren. 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. 

Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. 

Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. 

Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 


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Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. 

Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Mr. Pence. 

[No response.] 

The CLERK. Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. 

Mr. Franks. 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. 

Mr. Gohmert. 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. 

Mr. Berman. 

Mr. BERMAN. No. 

The CLERK. Mr. Berman, no. 

Mr. Boucher. 

Mr. BOUCHER. No. 

The CLERK. Mr. Boucher, no. 

Mr. Nadler. 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. 

Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee, no. 

Ms. Waters. 

Ms. WATERS. No. 

The CLERK. Ms. Waters, no. 

Mr. Meehan. 

Mr. MEEHAN. No. 


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The CLERK. Mr. Meehan, no. 

Mr. Delahunt. 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt, no. 

Mr. Wexler. 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler, no. 

Mr. Weiner. 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. 

Mr. Schiff. 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz, no. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Members in the Chamber who wish 

to cast or change votes. The gentleman from Indiana, Mr. Pence. 

Mr. PENCE. Yes. 

The CLERK. Mr. Pence, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes. If not, the Clerk will report. 

The CLERK. Mr. Chairman, there are 20 ayes and 19 nays. 

Chairman SENSENBRENNER. The motion to reconsider is agreed 

to. 

The question now is, shall the committee agree to the motion to 

report the bill H.R. 6054 favorably. A reporting quorum is present. 

Those in favor will say aye. Opposed, no. 

The ayes appear to have it. 

Recorded vote is requested. Those in favor of favorably reporting 

the bill 6054 will, as your names are called, answer aye. Those opposed, no. 

The Clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde, aye. 

Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Mr. Gallegly. 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. 


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Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Mr. Lungren. 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. 

Mr. Bachus. 

[No response.] 

The CLERK. Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. 

Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. 

Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Mr. Pence. 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. 

Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. 

Mr. Franks. 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. 

Mr. Gohmert. 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. 

Mr. Conyers. 

Mr. CONYERS. No. 


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The CLERK. Mr. Conyers, no. 

Mr. Berman. 

Mr. BERMAN. No. 

The CLERK. Mr. Berman, no. 

Mr. Boucher. 

Mr. BOUCHER. No. 

The CLERK. Mr. Boucher, no. 

Mr. Nadler. 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. 

Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Pass. 

The CLERK. Ms. Jackson Lee, pass. 

Ms. Waters. 

Ms. WATERS. No. 

The CLERK. Ms. Waters, no. 

Mr. Meehan. 

Mr. MEEHAN. No. 

The CLERK. Mr. Meehan, no. 

Mr. Delahunt. 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt no. 

Mr. Wexler. 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler, no. 

Mr. Weiner. 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. 

Mr. Schiff. 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz, no. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their votes. The gentleman from Alabama, Mr. Bachus. 


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Mr. BACHUS. Yes. 

The CLERK. Mr. Bachus, aye. 

Chairman SENSENBRENNER. The gentlewoman from Texas, Ms. 

Jackson Lee. 

Ms. JACKSON LEE. Mr. Chairman, how am I recorded? 

The CLERK. Mr. Chairman, Ms. Jackson Lee is recorded as a 

pass. 

Ms. JACKSON LEE. No. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes. If not, the Clerk will report. 

The CLERK. Mr. Chairman, there are 20 ayes and 19 nays. 

Chairman SENSENBRENNER. The motion to favorably report is 

agreed to. Without objection, the staff is directed to make any technical conforming changes and all members will be given 2 days, as 

provided by the rules, in which to submit additional dissenting, 

supplemental, or minority views. 

[Intervening business.] 

[Whereupon, at 6:08 p.m., the committee was adjourned.] 


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1Letter from General Colin Powell to the Hon. John McCain (September 13, 2006), available 

at http://www.washingtonpost.com/wp-dyn/content/graphic/ 2006/09/14/GR2006091400728.html. 2Letter from General John Vessey to the Hon. John McCain (September 12, 2006) (on file 

with the House of Representatives Committee on the Judiciary, Democratic Staff). 3Letter from retired Rear Admirals John Hutson and Donald Guter, and retired Brigadier 

General David Brahms to the Hon. John Warner, Chairman of the Senate Committee on Armed 

Services and the Hon. Carl Levin, Ranking Member of the Senate Committee on Armed Services 

(September 12, 2006) (on file with the House of Representatives Committee on the Judiciary, 

Democratic Staff). 4Letter to the Hon. John Warner, Chairman of the Senate Committee on Armed Services and 

the Hon. Carl Levin, Ranking Member of the Senate Committee on Armed Services (September 

12, 2006) (on file with the House of Representatives Committee on the Judiciary, Democratic 

Staff). 5Letter from over 35 family members to the Hon. John Warner, Chairman of the Senate Committee on Armed Services and the Hon. Carl Levin, Ranking Member of the Senate Committee 

on Armed Services (September 14, 2006) (on file with the House of Representatives Committee 

on the Judiciary, Democratic Staff). 6Section 3, H.R. 6054, creating new chapter 47A of Title 10, United States Code. 

7 Id. 

DISSENTING VIEWS 

We dissent from the passage of H.R. 6054, the ‘‘Military Commissions Act of 2006.’’ While we believe it is necessary that Congress 

pass legislation to provide the President with a tough and fair system of military commissions that will ensure swift convictions for 

terrorists, we have serious concerns about the manner in which 

this legislation achieves that vital objective. 

We dissent for several reasons. First, the legislation endangers 

our service members by rewriting and limiting compliance with the 

Geneva Conventions and with U.S. legal norms. Second, the legislation violates separation of powers by stripping federal courts of 

habeas jurisdiction. Finally, the legislation was considered under a 

flawed and unnecessarily truncated process. The legislation is 

strongly opposed by the following wide array of individuals, organizations, and highly respected members of the U.S. military: retired 

General and former Chairman of the Joint Chiefs of Staff Colin 

Powell;1 retired General and former Chairman of the Joint Chiefs 

of Staff John Vessey;2 retired Rear Admirals John Hutson and 

Donald Guter, and retired Brigadier General David Brahms;3 fortyfive retired military leaders;4 and numerous families who lost loved 

ones in the 9/11 attacks.5

DESCRIPTION OF LEGISLATION

H.R. 6054 has, as its stated purpose, ‘‘to authorize trial by military commission for violations of the law of war . . .’’ First, the legislation would authorize standards and procedures for the military 

commissions within the Uniform Code of Military Justice.6 Among 

other things, the bill provides standards for the admission of evidence, including hearsay evidence, and in certain circumstances, allows for the introduction of sensitive classified information into evidence outside the presence of the accused.7


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8 Common Article 3 of the 1949 Geneva Conventions sets out minimum standards for the 

treatment of detainees in armed conflicts of a non-international character. Such persons are to 

be treated humanely and protected from certain treatment, including ‘‘violence to life and per- son’’ ‘‘cruel treatment and torture,’’ and ‘‘outrages upon personal dignity, in particular, 

humiliating and degrading treatment.’’ 9The bill defines cruel and inhuman treatment almost identically with torture, linking it to ‘‘severe physical pain or suffering or severe mental pain or suffering . . . including severe physical abuse . . .’’ It does not further define ‘‘severe physical abuse’’ which distinguishes the offense from torture. 10Public Law 109–148. 11Letter from General Colin Powell to the Hon. John McCain (September 13, 2006), available 

at http://www.washingtonpost.com/wp-dyn/content/graphic/ 2006/09/14/ 

GR2006091400728.html. 

Second, in Section 4, H.R. 6054 would amend title 18, United 

States Code, to redefine a war crime under United States law as 

any ‘‘serious’’ violation of Common Article 3 of the Geneva Conventions (‘‘Common Article 3’’).8 Conduct, which would constitute a serious violation of Common Article 3, would include torture, cruel or 

inhuman treatment, murder, mutilation or maiming, intentionally 

causing great suffering or serious injury, and taking hostages. The 

section narrowly defines cruel or inhuman treatment, in contrast to 

the Common Article 3 standard, making the definition similar to 

the definition of torture.9

Third, in Section 5, the legislation would amend title 28, United 

States Code, to allow for limited appeals of commission and Combatant Status Review Tribunal decisions to the United States 

Court of Appeals for the District of Columbia Circuit. In addition, 

the section strips federal courts of pending or future habeas jurisdiction ‘‘relating to any aspect of the alien’s detention, transfer, 

treatment, or conditions of confinement.’’ Fourth, the legislation, in Section 6, would lower the standards 

of the Geneva Conventions by establishing that compliance with 

section 1003 of the Detainee Treatment Act (‘‘DTA’’) of 2005 10 fully 

satisfies the obligations of the United States with regard to Common Article 3. In addition, the section prohibits individuals from 

invoking the Conventions ‘‘as a source of rights’’ in U.S. courts. 

CONCERNS WITH LEGISLATION

A. H.R. 6054 endangers our troops by lowering U.S. and international standards 

The legislation endangers our troops because it lowers the standards set forth in the Geneva Conventions, treaties this nation led 

the way in establishing and has maintained for over 50 years. In 

fact, the Geneva Conventions have been ratified by 194 countries 

and our own JAGs have testified that the United States military 

has been trained to comply with them for decades. 

Redefining the Geneva Conventions poses a grave threat to our 

troops. Our uniformed military has been among the most vocal in 

their concerns about diluting this standard because they want to 

do everything possible to ensure that American forces would be 

treated with a similarly high standard if captured. Former Secretary of State, retired Gen. Colin Powell has stated that the Administration’s proposal ‘‘would put our own troops at risk.’’ 11 The 

highly respected former Chairman of the Joint Chiefs of Staff, General John Vessey, has said that the change, ‘‘could give opponents 

a legal argument for the mistreatment of Americans being held 


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12Letter from General John Vessey to the Hon. John McCain (September 12, 2006) (on file 

with the House of Representatives Committee on the Judiciary, Democratic Staff). 13 Habeas petitions ‘‘ask whether there is a sufficient factual and legal basis for a prisoner’s detention . . . [habeas] safeguards the most hallowed judicial role in our constitutional democracy—ensuring that no man is imprisoned unlawfully . . . [w]ithout habeas, federal courts will 

lose the power to conduct this inquiry.’’ Letter from nine retired federal judges to Members of 

Congress regarding H.R. 6054 (September 14, 2006) (on file with the House of Representatives 

Committee on the Judiciary, Democratic Staff). 14 Id. 15 126 S. Ct. 2749 (2006). 16The importance of habeas is not a hypothetical concern. This Administration has been flatly 

wrong in its assessments as shown by the example of Maher Arar, who was falsely branded a 

terrorist and rendered to Syria where he tortured for 10 months. See Doug Struck, ‘‘Canadian 

Was Falsely Accused, Panel Says,’’ Washington Post, September 19, 2006, at A01. In fact, if the 

provisions of this bill had been in force, the Hamdan ruling itself would not have been possible. 

Hamdan brought his challenge via a habeas petition. 17Dana Milbank, ‘‘Bush’s Bill Suffers a Torturous Day in Committee,’’ Washington Post, September 21, 2006, at A02. 

prisoner in time of war’’ and would ‘‘undermine the moral basis 

which has . . . guided our conduct in war throughout our history.’’ 12

B. The bill broadly strips courts of habeas jurisdiction 

In a sweeping measure, Section 5 of H.R. 6054 contravenes separation of powers and constitutional guarantees by stripping federal 

courts of habeas review.13 If there is any one principle that has defined our nation, it is the respect for the rule of law and the independence of the courts. As numerous former federal judges, including Reagan FBI Director Sessions wrote, ‘‘[f]or two hundred years, 

the federal judiciary has maintained Chief Justice Marshall’s solemn admonition that ours is a government of laws, and not men. 

The proposed legislation imperils this proud history . . .’’ 14

Moreover, by legislating that all pending and future habeas petitions are not subject to judicial review, the legislation leaves itself 

open to an adverse court ruling that will strike this bill similar to 

how the Supreme Court struck down the President’s use of military 

commissions in Hamdan v. Rumsfeld.15 This would lengthen the 

current delay in the prosecution of terrorists. Not a single trial has 

taken place, or a single criminal convicted, in military commissions 

in the more than five years since September 11, 2001.16

C. Flawed process for committee consideration 

We also express our concerns regarding the Committee process. 

While we support the Committee obtaining jurisdiction to consider 

this important measure, it was also incumbent on the Committee 

to conduct hearings on this critical issue to inform the judgment of 

the Members. Unfortunately, no such hearings were held. 

In addition, we would also note that during the markup, the 

Committee initially voted to defeat reporting the measure. Unfortunately, the Committee then went through a number of tortured exercises to reconsider and ultimately approve the measure, after the 

Majority was able to convince more of its members to attend the 

markup.17 We would note that when the Majority assumed power 

in 1995, one of their first measures was to eliminate proxy voting 

so that only those Members who attended the markups would affect the outcome of bills. By now developing a policy that in essence 

states that if the Majority loses a vote because its Members did not 

bother to show up, they will simply revote when their Members are 


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available or it is convenient for them, they have essentially returned to the functional equivalent of proxy voting. This is unfair 

to the Members who take time out of their day to participate in the 

markup. 

CONCLUSION

We need to come together to develop a fair system of military 

commissions that will swiftly convict terrorists. However, we cannot support legislation that in the name of fighting terrorism endangers our brave troops, undermines our nation’s moral authority, 

and contravenes the principle of separation of powers and rule of 

law that our nation was founded on. The Committee should have 

passed a stronger more intelligent bill, that finally holds terrorists 

accountable but at the same time can withstand judicial scrutiny, 

protect American troops under the Geneva Conventions, and remains true to American values. 

DESCRIPTION OF AMENDMENTS OFFERED BY DEMOCRATIC MEMBERS

During the markup, there were three amendments offered by 

Democratic members. One amendment by Mr. Schiff and Mr. 

Flake, one amendment by Mr. Meehan and one by Ms. Jackson-Lee 

and Mr. Nadler. 

1. Amendment offered by Rep. Schiff and Rep. Flake (#1) 

Description of amendment: The Schiff-Flake amendment sought 

to define the domestic war crime of ‘‘cruel or inhuman treatment’’ by using the standards set out in the 5th, 8th, and 14th Amendments of the U.S. Constitution, similar to the definition in the Warner Bill (S. 3901) and the Detainee Treatment Act. 

The amendment was defeated by a vote of 17 to 18. Ayes: Representatives Conyers, Berman, Boucher, Nadler, Scott, Watt, 

Lofgren, Jackson Lee, Waters, Meehan, Delahunt, Weiner, Schiff, 

Sanchez, Van Hollen, Inglis, and Flake. Nays: Representatives 

Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Hostettler, Green, Issa, Pence, Forbes, King, Feeney, Franks, 

Gohmert, and Sensenbrenner. 

2. Amendment offered by Rep. Martin Meehan (#2) 

Description of amendment: The Meehan amendment sought to 

strike Section 5, thereby exempting the bill’s restrictions on judicial 

review. 

The amendment was defeated by a vote of 12 to 15. Ayes: Representatives Conyers, Berman, Boucher, Nadler, Scott, Jackson 

Lee, Meehan, Delahunt, Weiner, Schiff, Van Hollen, and 

Wasserman Shultz. Nays: Representatives Coble, Smith, Goodlatte, 

Chabot, Lungren, Jenkins, Cannon, Inglis, Green, Flake, Forbes, 

Feeney, Franks, Gohmert, and Sensenbrenner. 

3. Amendment offered by Rep. Jackson Lee and Rep. Nadler (#3) 

Description of amendment: The Jackson Lee-Nadler Amendment 

sought to strike Section 6(b), which reads, ‘‘No person in any habeas action or any other action may invoke the Geneva Conventions or any protocols thereto as a source of rights, whether directly 

or indirectly, for any purpose in any court of the United States or 

its States or territories.’’

The amendment was defeated by a vote of 17 to 18. Ayes: Representatives Conyers, Berman, Boucher, Nadler, Scott, Watt, 


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Lofgren, Jackson Lee, Waters, Meehan, Delahunt, Wexler, Weiner, 

Schiff, Sanchez, Van Hollen, and Wasserman Shultz. Nays: Representatives Coble, Smith, Goodlatte, Chabot, Lungren, Jenkins, 

Cannon, Bachus, Inglis, Hostettler, Issa, Flake, Forbes, King, 

Feeney, Franks, Gohmert, and Sensenbrenner. 

JOHN CONYERS, JR. 

RICK BOUCHER. 

ROBERT SCOTT. 

ZOE LOFGREN. 

MAXINE WATERS. 

WILLIAM DELAHUNT. 

ANTHONY D. WEINER. 

LINDA T. SA ́ NCHEZ. 

DEBBIE WASSERMAN SCHULTZ. 

HOWARD L. BERMAN. 

JERROLD NADLER. 

MELVIN L. WATT. 

SHEILA JACKSON LEE. 

MARTIN MEEHAN. 

ROBERT WEXLER. 

ADAM B. SCHIFF. 

CHRIS VAN HOLLEN. 

Æ 


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