![handle is hein.leghis/mca0008 and id is 1 raw text is: CONGRESSIONAL RECORD- SENATE
September 28, 2006
a moment, against public opinion, to
set the gold standard and set us apart.
We have been known as the nation of
Nuremberg. My fear is now we will be
known as the nation of Guantanamo,
and I worry about that.
Mr. WARNER. We have our dif-
ferences, if I may say, but that was a
war of state-sponsored nations and ag-
gressions, men wearing uniforms, men
acting at the direction of recognized
governments. Today's war is a dis-
parate bunch of terrorists, coming
overnight, no uniforms, no principles,
guided by nothing. We are doing the
best we can as a nation, under the di-
rection of our President, to defend our-
selves.
Mr. DODD. If our colleague would
yield, I do not disagree, but I don't
think there is a choice between uphold-
ing the principles of America and fight-
ing terrorism. Every generation of
Americans will face their own threats.
This is ours. Every previous generation
faced serious threats, and they did not
abandon the principles upon which this
country is founded. I am fearful we are
going to do that today.
Mr. WARNER. I disagree with my
friend, and I yield the floor.
The PRESIDING OFFICER. The
Democratic leader.
Mr. REID. For this little conclusion,
I will use leader time.
I ask unanimous consent that 5 min-
utes from Senator ROCKEFELLER and
Senator KENNEDY they both have a
half hour on their respective amend-
ments be transferred to Senators
CLINTON and JOHN KERRY. They will
each have 5 minutes to speak. And that
I have 12 minutes under my control re-
maining on the bill and that time be
equally divided between Senators FEIN-
STEIN and FEINGOLD. They will each
have 6 minutes to speak on the bill.
Mr. WARNER. Madam President, re-
serving the right to object, and I will
not object, but I listened carefully. You
courteously advised me that this re-
quest works within the confines of the
standing unanimous consent, is my un-
derstanding, in terms of the allocation
of time.
Mr. REID. This adds no time to the
bill.
Mr. WARNER. That is correct. I
wanted to make that clear to my col-
leagues.
Mr. LEAHY. Reserving the right to
object. I shall not, of course. As a mat-
ter of clarification, there is still some
specific time reserved to the Senator
from Vermont: is that correct?
The PRESIDING OFFICER. There re-
mains 23 minutes on the bill.
Mr. REID. That is 23 minutes, plus
the good offices of Senator SPECTER
may give the Senator additional time.
Mr. LEAHY. Thank you.
CONCLUSION OF MORNING
BUSINESS
The PRESIDING OFFICER. Morning
business is now closed.
MILITARY COMMISSIONS ACT OF
2006
The PRESIDING OFFICER. Under
the previous order, the Senate will re-
sume consideration of S. 3930, which
the clerk will report.
The assistant legislative clerk read
as follows:
A bill (S. 3930) to authorize trial by mili-
tary commission for violations of the law of
war, and for other purposes.
Pending:
Specter amendment No. 5087, to strike the
provision regarding habeas review.
The PRESIDING OFFICER. The Sen-
ator from Virginia.
Mr. WARNER. Madam President, just
for purposes of advising colleagues,
there remains on the Specter amend-
ment 16 minutes under the control of
the Senator from Virginia. I desire to
allocate about 4 minutes to Senator
KYL. 2 to 3 minutes to Senator SES-
SIONS, and to wrap it up, 2 to 3 minutes
to Senator GRAHAM. But we will alter-
nate or do as the Senator from Michi-
gan-you have 33 minutes, I believe,
under the control of Senator SPECTER
and those in support of his amendment.
Mr. LEVIN. Madam President, par-
liamentary inquiry: How much time is
remaining to Members on this side, in-
cluding on the bill?
The PRESIDING OFFICER. Senator
SPECTER'S side controls 33 minutes.
Mr. LEVIN. On the Democratic side?
The PRESIDING OFFICER. Senator
WARNER controls 16 minutes, and the
proponent of the amendment controls
33.
Mr. LEVIN. And on the bill itself, is
there time left?
The PRESIDING OFFICER. Senator
REID has allocated the remainder of
the debate time on the bill itself.
Mr. LEVIN. All time is allocated?
The PRESIDING OFFICER. Correct.
Mr. LEVIN. Madam President, I ask
unanimous consent that I be allowed to
proceed for 30 seconds.
The PRESIDING OFFICER. Is there
objection? Without objection, it is so
ordered.
Mr. LEVIN. Madam President, I wish
to thank the Senator from Connecticut
for one of the most passionate state-
ments I have ever heard on this floor-
heartfelt, right on target. The distinc-
tions made in this bill which will allow
statements to be admitted into evi-
dence that were produced by cruel
treatment is unconscionable. It is said
that, well, statements made after De-
cember 30 of 2005 won't be allowed, but
those that are produced by cruel and
inhuman treatment prior to December
30 of 2005 are OK. It is unconscionable.
It is unheard of. It is untenable, and
the Senator from Connecticut has
pointed it out very accurately, bril-
liantly. I thank him for his statement.
Mr. WARNER. Madam President, we
will proceed on Specter's amendment.
In due course, I will find the time to
comment on my colleague's 30 seconds.
I want to keep this thing in an orderly
progression. I would like to add the
Senator from Texas. Mr. CORNYN, in
the unanimous consent agreement to
be recognized as one of the wrap-up
speakers on those in opposition to the
amendment.
I yield the floor.
The PRESIDING OFFICER. The Sen-
ator from Arizona is recognized.
Mr. KYL. Madam President, yester-
day Senator SPECTER argued that one
sentence in the Hamdi opinion that re-
fers to habeas corpus rights as applying
to all individuals inside the United
States indicates that alien enemy com-
batants have constitutional habeas
rights when they are held inside this
country. I believe that Senator SPEC-
TER is incorrect, for the following rea-
sons: (1) The Hamdi plurality repeat-
edly makes clear that the threshold
question before us is whether the Exec-
utive has the authority to detain citi-
zens who qualify as 'enemy combat-
ants.' The plurality expressly frames
the issue before it in terms of the
rights of citizens no fewer than eight
times. It is clear that it is only the
rights of citizens that the Hamdi plu-
rality studied and ruled on. (2) Else-
where the Hamdi plurality criticized a
rule that would make the government's
right to hold someone as an enemy
combatant turn on whether they are
held inside or outside of the United
States. The plurality characterized
such a rule as creating perverse incen-
tives, noted that it would simply en-
courage the military to hold detainees
abroad, and concluded that it should
not create a determinative constitu-
tional difference. The same effect
would, of course, be felt if enemy sol-
diers' habeas rights were made turn on
whether they were held inside or out-
side of the United States. The fact that
the Hamdi plurality rejected this type
of geographical gamesmanship in one
context casts doubt on the theory that
it endorsed it in a closely related con-
text. (3) Had Hamdi extended habeas
rights to alien enemy combatants held
inside the United States, that would
have been a major ruling of tremen-
dous consequence. Because courts typi-
cally do not hide elephants in
mouseholes, cf. Whitman v. ATA, it is
fair to conclude that no such
groundbreaking ruling is squirreled
away in one ambiguous sentence in the
Hamdi plurality opinion on the floor
Wednesday evening, I presented the ar-
gument that the constitutional writ of
habeas corpus does not extend to alien
enemy soldiers held during wartime.
Senator SPECTER responded by quoting
from a passage in Justice O'Connor's
plurality opinion in Hamdi v. Rums-
feld, 542 U.S. 507 (2004), that he believes
establishes that alien combatants are
entitled to habeas rights if they are
held within the United States. That
statement, towards the beginning of
section III.A of the court's opinion, is a
part of a statement of general prin-
ciples noting that [a]ll agree that,
absent suspension, habeas corpus re-
mains available to every individual
within the United States. Senator
S10354](ViewImageLocal?handle=hein.leghis/mca0008&div=1&collection=&method=preview&ext=.png&size=3)
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