Senate Proceeding on Sep 19th, 2007 :: 0:20:00 to 0:40:00
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0:13:38 to 0:24:48( Edit History Discussion )
Speech By: Lindsey Graham

0:19:52 to 0:20:08( Edit History Discussion )

Lindsey Graham: in any other war and it shouldn't be done in this war. judges have a role to play in war but that is not their role. the role of the united states military in this war, as it has been in every other

0:20:08 to 0:20:21( Edit History Discussion )

Lindsey Graham: war, is to capture people and classify them based on their activity within that war. and habeas would undo that. that's why last year congress said no, that's not the way that we should proceed in this

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Lindsey Graham: war. so what -- we have not -- this is not unknown to our courts. in world war ii, there was a habeas petition filed by german and japanese prisoners that were housed overseas asking the federal

0:20:34 to 0:20:48( Edit History Discussion )

Lindsey Graham: courts to hear their case and release them from american military confinement. chief justice jackson said, " would be a -- it would be difficult to devise a more effective fettering of a field commander

0:20:48 to 0:20:59( Edit History Discussion )

Lindsey Graham: than to allow the very enemies he has ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive

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Lindsey Graham: at home." justice jackson was right. and what has happened since these habeas petitions have been filed? hundreds of them have been filed in federal court before congress acted. here's what they're

0:21:11 to 0:21:22( Edit History Discussion )

Lindsey Graham: alleging. a canadian detainee who threw a grenade that killed an american medic in a firefight and who comes from a family of with long-standing al qaeda ties moved for a preliminary injunction forbidding

0:21:22 to 0:21:36( Edit History Discussion )

Lindsey Graham: interrogation of him or engaging in cruel, inhumane or degrading treatment of him. this was a motion made by an enemy prisoner for the judge to send in there and conduct the interrogation or at least

0:21:36 to 0:21:45( Edit History Discussion )

Lindsey Graham: monitor the interrogation. i can't think of anything worse in terms of undermining the war effort. a motion by a high-vel al qaeda detainee complaining about base security procedures, speed of mail delivery,

0:21:45 to 0:21:58( Edit History Discussion )

Lindsey Graham: medical treatment, seeking an order that he be transformed to the least onerous cushions at gitmo, asking the court to order that gitmo allow him to keep any books, reading materials sent to him

0:21:58 to 0:22:11( Edit History Discussion )

Lindsey Graham: and report to the court on his opportunities for exercise, communication, recreation and worship. hundreds of these lawsuits have been filed under the habeas statute. that's why congress said no, dismiss these

0:22:11 to 0:22:24( Edit History Discussion )

Lindsey Graham: cases. because they have no business in federal court. surely to god, al qaeda is not going to get more rights than the nazis. surely to god, the congress six years afte9/11 is going to give -- will

0:22:24 to 0:22:39( Edit History Discussion )

Lindsey Graham: not hopefully give a statutory right to some of the most brutal, vicious people in the world to bring lawsuits against our own troops in a fashion never allowed in any other war. here's what we did

0:22:39 to 0:22:51( Edit History Discussion )

Lindsey Graham: last year. we allowed the military to determine whether or not a person is an enemy combatant, whether or not they were an unlawful enemy combatant through a competent tribunal standard -- a tribunal

0:22:51 to 0:23:05( Edit History Discussion )

Lindsey Graham: called a combat status review tribunal made up of three officers. and the legislation allows every decision by the military to be appealed to the d.c. circuit court of appeals so the court can look

0:23:05 to 0:23:18( Edit History Discussion )

Lindsey Graham: athe quality of the work product and the procedures in place. there is federal court review over activity at guantanamo bay where judges review the work product of the military. to me that is the proper

0:23:18 to 0:23:29( Edit History Discussion )

Lindsey Graham: way to move forward. because some people at guantanamo bay, because they're so dangerous, may never be released any time soon or may never be released. more people have been released at guantanamo

0:23:29 to 0:23:42( Edit History Discussion )

Lindsey Graham: bay than are still at guantanamo bay. they were thought not to be a threat. 30 of them have gone back to the fight. we have released people at guantanamo bay to take up arms against us again. that's

0:23:42 to 0:23:53( Edit History Discussion )

Lindsey Graham: the result of a process where you make a discretionary decision. it would be ill-advised for this congress to confer on american courts the ability to hear a habeas petition from enemy prisoners

0:23:53 to 0:24:03( Edit History Discussion )

Lindsey Graham: housed at guantanamo bay, where they could go judge shopping and sue our own troops for anything they could think of of, including $100 million lawsuit against the secretary of the defense. that

0:24:03 to 0:24:15( Edit History Discussion )

Lindsey Graham: will lead to chaos at the jail t. will undermine the war -- jail. it will undermine the war effort. so i'm urging a "no" to this amendment. we have in place federal court review of every military decision

0:24:15 to 0:24:27( Edit History Discussion )

Lindsey Graham: at guantanamo bay and a way to allow the courts to do what they're best trained to do: review documents, review procedures, review outcomes not to take the place of the united states military. i

0:24:27 to 0:24:39( Edit History Discussion )

Lindsey Graham: cannot think of a more ill-advised effort to undercut what i think is going to be a war of a long-standing nature than to turn it over to judges and take away the ability to define the enemy from the

0:24:39 to 0:24:48( Edit History Discussion )

Lindsey Graham: military, who's trained to make such decision, and give it to whatever judge you can find, wherever you can find him or her and let them have a full-blown trial and our national -- at our national security

0:24:48 to 0:25:01( Edit History Discussion )

Arlen Specter: detriment. i'm urging a "no" vote. and i yield back the balance of my time. the presiding officer: who yields time? mr. specter: mr. presispdent? the presiding officer: the senator from -- mr.

0:24:48 to 0:33:14( Edit History Discussion )
Speech By: Arlen Specter

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Arlen Specter: specter: i believe i have ten minutes reserved at this time. the presiding officer: the time is divided between the leaders or their designees. mr. specter: well, mr. president, i'lmrl act as the the

0:25:09 to 0:25:18( Edit History Discussion )

Arlen Specter: -- since no one is here on this side of the aisle. the presiding officer: i see that the senator from vermont is yielding ten minutes. mr. leahy: yes. the presiding officer: to the senator from pennsylvania.

0:25:18 to 0:25:35( Edit History Discussion )

Arlen Specter: the senator from pennsylvania is recognized. mr. leahy: i do. the senator from pennsylvania is the lead sponsor of this amendment. i proudly yield to him those ten minutes. mr. specter: i thank my

0:25:35 to 0:25:50( Edit History Discussion )

Arlen Specter: distinguished colleague from vermont. and, mr. president, the arguments advanced by the senator from south carolina a few moments are outdated. the supreme court of the united states has held in the rasul case

0:25:50 to 0:26:05( Edit History Discussion )

Arlen Specter: that the guantanamo detainees have rights under the united states constitution to proceed in court, in habeas corpus. and that decision in my view was based on both constitutional and statutory grounds.

0:26:05 to 0:26:26( Edit History Discussion )

Arlen Specter: the court of appeals for the district of columbia has held that it is a matter of statutory interpretation. i believe that will be reversed by the supreme court in a case now pending there. but

0:26:26 to 0:26:43( Edit History Discussion )

Arlen Specter: the existing law is governed by the military commission act. and the question is whether the congress should now correct the provision of the military commission act, which eliminated the right of guantanamo

0:26:43 to 0:27:05( Edit History Discussion )

Arlen Specter: detainees to challenge their detention by habeas corpus proceedings in federal court. the district of columbia circuit has held that the provisions of the combat status review tribunal are adequate.

0:27:05 to 0:27:14( Edit History Discussion )

Arlen Specter: and i believe that an examination of those proceedings will show that they are palpably deficient and obviously inadequate on their face. the constitutional right of habeas corpus is expressly royceed

0:27:14 to 0:27:33( Edit History Discussion )

Arlen Specter: in the constitution with the provision that habeas corpus -- recognized in the constitution with the provision that habeas corpus may be suspended only in time of invasion or insurrection, neither of which

0:27:33 to 0:27:50( Edit History Discussion )

Arlen Specter: situation is present here. that fundamental right has been in existence since the magna charta in 1215. and as noted earlier, , the supreme court in rasul has recently applied that constitutional right to

0:27:50 to 0:28:05( Edit History Discussion )

Arlen Specter: guantanamo detainees. now, congress has acted to legislate to the contrary. of course, congress cannot legislate away a constitutional right. that can be done only by amendment to the constitution. and

0:28:05 to 0:28:23( Edit History Discussion )

Arlen Specter: that matter is now pending before the supreme court, and i believe on the precedence it will be held that it remains a constitutional right. but t issue which we confront today is the statute. the military

0:28:23 to 0:28:40( Edit History Discussion )

Arlen Specter: commission act passed by congress two years ago which eliminates habeas corpus. the supreme court has held in the case of swain vs. pressly that habeas corpus in the federal courts may be eliminated

0:28:40 to 0:28:57( Edit History Discussion )

Arlen Specter: by an adequate substitute. and in that case, the substitute held to be adequate was a proceeding in the district of columbia courts. and the supreme court said that was adequate judicial review to

0:28:57 to 0:29:14( Edit History Discussion )

Arlen Specter: superintend executive detention. but when we take a look at the provisions of the combat status review board as examined by the district court in the district of columbia in the en re. guantanamo

0:29:14 to 0:29:27( Edit History Discussion )

Arlen Specter: cases, this is illustrative. an individual was charged with being a -- an associate of al qaeda individuals. when asked to identify who he was supposed to have associated with, the tribunal could

0:29:27 to 0:29:43( Edit History Discussion )

Arlen Specter: not identify the person. i discussed this case at some length yesterday and the courtroom broke into laughter. it was a laughing matter to be detaining somebody who was allegedly associated with someone

0:29:43 to 0:29:59( Edit History Discussion )

Arlen Specter: from al qaeda when they couldn't even identify who the person was. now, there has been a very revealing declaration filed by lieutenant colonel steven abraham, who is a member of a combat status review

0:29:59 to 0:30:16( Edit History Discussion )

Arlen Specter: tribunal and observed the process. and this is the way lieutenant colonel abrahamson described the process. "those of us on the panel found the information presented to try to uphold detention to 'lack

0:30:16 to 0:30:32( Edit History Discussion )

Arlen Specter: substance.' what were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. statements allegedly made by witnesses lacked detail.

0:30:32 to 0:30:48( Edit History Discussion )

Arlen Specter: reports presented generalized statements in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or credibility of the sources."|

0:30:48 to 0:31:01( Edit History Discussion )

Arlen Specter: i put this int the record yesterday but it shows a proceeding totally dwoid of any sub-devoid of any substance. you don't have to have sufficient evidence to go to court to retain someone at guantanamo

0:31:01 to 0:31:17( Edit History Discussion )

Arlen Specter: but there has to be some basis for the detention. an examination of what is happening with the combat status review board shows they are entirely inadequate under the standards set down by the supreme

0:31:17 to 0:31:33( Edit History Discussion )

Arlen Specter: court in the case of swain vs. pressley. and, therefore, the alternative established by congress in the military commission's act is totally insufficient to provide fair play. and the supreme court of the

0:31:33 to 0:31:49( Edit History Discussion )

Arlen Specter: united states has laid it on the line: even the guantanamo detainees are entitled to fairness. guantanamo has been ridiculed around the world. and guantanamo is not being closed. no alternative has been

0:31:49 to 0:32:04( Edit History Discussion )

Arlen Specter: found for it but at a minimum those who are detained at guantanamo ought to have some proceeding to establish some basis -- however slight -- for their continued detention. when congress established

0:32:04 to 0:32:17( Edit History Discussion )

Arlen Specter: the military commissn's act and provided for combat status review boards we did so with the thought that we could have an alternative to going to federal court which would provide a basic rudimentary

0:32:17 to 0:32:32( Edit History Discussion )

Arlen Specter: element of fairness required by the geneva conventions and required by the supreme court which brushed aside the prior practices from world war ii, overruling the prior precedence. so, now it is up

0:32:32 to 0:32:54( Edit History Discussion )

Arlen Specter: it the congress of the united states to correct that mistake which we made two years ago. i believe that any fair reading of what happens with the combat status review boards would demonstrate that we ought

0:32:54 to 0:33:03( Edit History Discussion )

Arlen Specter: to correct the 2005 legislation. this amendment ought to be adopted. i thank the chair. i yield the floor. the presiding officer: who yields time? mr. leahy: mr. president, i understand the senator

0:33:03 to 0:33:14( Edit History Discussion )

Arlen Specter: from new mexico wants three minutes and i yield three manipulates to the senator from new mexico. the presiding officer: the senator from new mexico is recognized. pentagon binge mr. president, i rise

0:33:14 to 0:33:33( Edit History Discussion )

Patrick Leahy: to support in support of the amendment that he and senator specter are offering to restore the writ of habeas corpus. i'm proud to be a cosponsor of the legislation. it's my hope that it will be

0:33:22 to 0:33:32( Edit History Discussion )
Speech By: Patrick Leahy

0:33:33 to 0:33:45( Edit History Discussion )

Jeff Bingaman: adopted today. one of the most troubling aspects of the administration's onabsolute administration'sonslaught of basic civil rights being carried out with the an question essence of congress, is because

0:33:33 to 0:36:50( Edit History Discussion )
Speech By: Jeff Bingaman

0:33:45 to 0:34:01( Edit History Discussion )

Jeff Bingaman: of a lack of writ habeas corpus. there is a basic right to challenge the legality of one's confinement by the government. mr. president, i would like to take a moment to briefly recount how we helped up

0:34:01 to 0:34:15( Edit History Discussion )

Jeff Bingaman: where we are today. in 2004, in the case of rasul vs. bush the supreme court ruled that individuals held at guantanamo have the right to challenge the legality of their detention by filing a habeas petition

0:34:15 to 0:34:35( Edit History Discussion )

Jeff Bingaman: in a u.s. federal court. in november of 2005, in response to the supreme court decision and at the behest of the bush administration, senator graham offered an amendment to the 2006 defense authorization

0:34:35 to 0:34:48( Edit History Discussion )

Jeff Bingaman: bell that sought to overrule the rasul decision is to strip federal courts of the jurisdiction to hear habeas corpus claims filed by g mow prisoners. i offered an an alternative amendment to retain

0:34:48 to 0:35:03( Edit History Discussion )

Jeff Bingaman: the right of habeas corpus and that was voted on the day before the senate recessed before veterans day and no hearings were held in the yk jack or in -- inthe judiciary committee regarding the

0:35:03 to 0:35:20( Edit History Discussion )

Jeff Bingaman: impact of this right. the amendment i offered was defeated by a vote of 49-42. the next week i offered a second amendment aimed at preserving habeas corpus and it was defeated. after a compromise

0:35:20 to 0:35:35( Edit History Discussion )

Jeff Bingaman: was reached as part of what has become none as the graham-levin compromise, under that compromise which was included in the detainee treatment act of 2005, habeas corpus rights were curtailed by the

0:35:35 to 0:35:50( Edit History Discussion )

Jeff Bingaman: d.c. circuit and the d.c. circuit was granted very limited jurisdiction to review the determination of a combatant status review tribunal. once again, the senate had the opportunity to restore our nation's

0:35:50 to 0:36:02( Edit History Discussion )

Jeff Bingaman: commitment to the rule of law. unfortunately, rather than doing so, the senate passed by a vote of 65-34 the military commission's act that my colleague from pennsylvaa has referred to which explicitly

0:36:02 to 0:36:15( Edit History Discussion )

Jeff Bingaman: eliminated habeas corpus. today, it's almost exactly a year after the senate voted to pass the military commission's act and the senate, once again, has the opportunity to do the right thing. we have the

0:36:15 to 0:36:30( Edit History Discussion )

Jeff Bingaman: chance to restore one of the most fundamental rights guaranteed by our constitution. i hope the senate will take this important step in restoring our nation's commitment to the rule of law. mr.

0:36:30 to 0:36:50( Edit History Discussion )

Jeff Bingaman: president, i'd ask that my full statement be included in the record as if read. the presiding officer: without objection, so ordered. mr. bingaman: mr. president, i yield the floor. mr. kyl: time exists

0:36:50 to 0:36:59( Edit History Discussion )

Jon Kyl: on both sides? the presiding officer: approximately 18 1/2 minutes on both sides. mr. kyl: mr. president, i will request the chair to advise men when i have spoken for -- add slides me when i have

0:36:50 to 0:52:09( Edit History Discussion )
Speech By: Jon Kyl

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Jon Kyl: spoken for 15 minutes. the presiding officer: without objection, so ordered. mr. kyl: let me respond to arguments made in support of this amendment and urge my colleagues, as the have done in the

0:37:21 to 0:37:40( Edit History Discussion )

Jon Kyl: past, to reject this amendment. the first thing that must be clarified is that the writ of habeas corpus is not being restored. it can't be "restored" because it has never existed to question detention.

0:37:40 to 0:37:55( Edit History Discussion )

Jon Kyl: pow-mia's and inmy combat -- and enemy combatants has never in the history of common law have had the constitution writ of habeas corpus to challenge their detention. never. so, it's a mistake for those

0:37:55 to 0:38:10( Edit History Discussion )

Jon Kyl: who support this amendment to claim that somehow we need to "restore" the right. it's never existed for this purpose. no case in the hit of english or american jurisprudence or anywhere where else in the

0:38:10 to 0:38:26( Edit History Discussion )

Jon Kyl: world for that matter. yesterday, our distinguished friend and colleague, senator dodd, praised and upheld the honor and the the wisdom of those like his father who participated in the jurmburg tribunals

0:38:26 to 0:38:45( Edit History Discussion )

Jon Kyl: after world war ii -- in the jurmburg tribunals after world war ii. along with his father, thomas dodd is robert h. jackson who bill a justice of the united states supreme court in 1941. and returned

0:38:45 to 0:39:03( Edit History Discussion )

Jon Kyl: to the court after serving as chief counsel at the nuremberg try biewn am from 1945 to 1946. the heroes of american justice and the lions of nuremberg did not become evil men or ignorant in the law

0:39:03 to 0:39:22( Edit History Discussion )

Jon Kyl: i the period between 1946 and 1950, the year that johnson vs. eisentrager was decided by the united states supreme court. and it is a case in which justice jackson delivered the opinion of the court. that

0:39:22 to 0:39:33( Edit History Discussion )

Jon Kyl: enemy combatants he no constitutional right to habeas corpus. that was the holding in the case. by the very jurist who presighed over the nuremberg -- who presided over the nuremberg trials. he knew

0:39:33 to 0:39:45( Edit History Discussion )

Jon Kyl: what he was talking about. that precedent remains the law of the united states today. my colleague from south carolina quoted justice jackson in that decision in which he said he could think of nothing

0:39:45 to 0:40:05( Edit History Discussion )

Jon Kyl: that woul soviet are our commanders more commanders -- that he could think of nothing that would soviet are our commanders more than a constitutional habeas corpus right to question their detention