John Conyers

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I yield myself as much time as I may consume. I am pleased to join with the chairman in supporting this bipartisan bill. The legislation makes a simple yet extremely important change to current law. It adds the Red Crystal emblem to the list of officially recognized symbols that may be used to denote humanitarian or religious relief efforts. As many know, currently only the Red Cross and Red Crescent emblems are used by humanitarian workers when caring for sick or injured civilians or Armed Forces members overseas. By adding the Red Crystal symbol to the list of officially recognized emblems, humanitarian workers will have at their disposal yet another symbol that is acceptable in those regions of the world where the cross and crescent are viewed with some level of skepticism. I would like to thank Mr. Flake and the countless number of Democratic members of our committee for taking the lead on this issue, and I strongly urge that my colleagues lend their support to this commonsense proposal. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker and members of the various committees that are on the floor, before I begin my comments it is my observation that this may be the last bill that the House Judiciary Committee may be involved in until we adjourn, and so it becomes my responsibility as the ranking member to commend Chairman James Sensenbrenner for his efforts as chairman over almost the last 6 years. He has been on the Committee of Judiciary for many years, and I have had the honor to serve and work with him throughout his career on the House Judiciary Committee. He has worked hard all the way up to the title of chairman. It has than been my pleasure and honor to join with him, and I would like to just take a moment to tell you why I am making this statement. The first thing that comes to my mind is the fact that he has done a stellar job in protecting the jurisdiction of the Judiciary Committee. In doing so, he has brought us more work than anybody ever has. We handled more bills than almost any but one committee. And he has been willing to stand up to special interests wherever his convictions lead him. Secondly, I commend this chairman for his willingness to protect the integrity of our antitrust laws and fight for competition. Time and time again, whether it was in sports, transportation or telecommunication, I have been proud to work with him together to ensure that America's consumers were protected from unfair competition. Finally, I will never forget the unstinting work that he has put in voter rights legislation, starting back in 1982 when we reauthorized it, and certainly in 2006 where, without his strong leadership, we would not have been able to forge a bipartisan coalition to pass the bill, stronger and with greater ease in both bodies, than we have ever been able to do before. There is no doubt in my mind that he has been a leading, stalwart supporter of voting rights and its enforcement for all Americans throughout his career. I salute the chairman of the House Judiciary Committee for his many years of service, particularly his leadership as chairman. Now, Mr. Speaker, if I may return to the measure before us, because I am impressed with the argument that has been propounded by all my friends here, particularly the gentlewoman from Dallas, that there is no intent in this bill's language to provide antitrust immunity. I take everyone at their word, of course, and if that is so, I am disappointed that the antitrust savings clause drafted by the House Judiciary Committee has been eliminated. It has disappeared. We voted this measure out with an antitrust provision. It has come back to us today, just hot off the press from the other body, and there is no antitrust provision. There has not been a sufficient amount of discussion about that. Now, we are all ``anti'' a lot of things, but I want you to know I am not anti-consumer. These things called ``consumers,'' you know, are the people in every district that are the ones called upon to vote and expend their resources on everything, including air travel. Mr. Speaker, I love Dallas, Texas. I don't know much about Fort Worth, but I even get invited there from time to time, and I enjoy it very much. By the way, I want to mention the former Speaker of the House for whom this amendment is named is someone who is remembered for his great work, not only as a leader in the Congress from Texas but as the Speaker of the House himself. So, Mr. Speaker, to me, we have got a bit of difficulty here that may be resolved by restoring the antitrust exemption. We put it in before. Most of the Members that I am looking at have never expressed any hostility toward the antitrust exemption itself. This agreement between private parties missing the antitrust exemption is a very questionable act that we are about to do in the closing hours of this session. We, with the chairman of the Judiciary Committee's leadership, amended the original bill to include the anti-savings clause, but this so-called new bill, hot off the press, doesn't contain such protections. It has never been considered by either the Transportation Committee or the Judiciary Committee. It was drafted, and just recently, I don't know what hour of the day or night, something happened in the other body, but it has not been considered by any committee on either side of the Capitol. This new bill and the agreement preserves the Wright amendment for 8 more years, restricts the number of gates; and, if it weren't for this antitrust scrutiny, it seems to me that we would all be able to agree on supporting this measure. So I rise very reluctantly, but nevertheless I have to do it. As I have said, I am not anti-consumer. The Consumers Union has guided some of my views in this matter. Mr. Speaker, I include for the record a letter from the Consumers Union, Gene Kimmelman, Vice President, as well as an article from the Washington Post, ``Low-Fare, and Now No- Fair.'' Consumer Federation of America, September 29, 2006. Dear Member of Congress: We are writing to urge you to stand with American consumers by voting ``No'' today on H.R. 6228, the ``Wright Amendment'' legislation. This bill codifies a private agreement between American Airlines and Southwest Airlines, along with the cities of Dallas, Ft. Worth and Dallas/Fort Worth Airport, to divide up the airline market for Dallas at the expense of the flying public. The Antitrust Division of the U.S. Department of Justice has called the bill a ``per se'' violation of the antitrust laws. The proponents of H.R. 6228 are employing extraordinary tactics to bring this anti-consumer and anticompetitive legislation to a vote in the final hours prior to adjournment. In fact, the language of H.R. 6228 has never been considered by the Transportation and Infrastructure Committee, nor the Judiciary Committee. Even more objectionable, however, is the fact that H.R. 6228 completely ignores the vital work of the Judiciary Committee to strike the ``deal's'' antitrust immunity provisions. The Judiciary Committee approved an amendment by Chairman Sensenbrenner and Ranking Member Conyers that would at least ensure that the bill comply with the nation's antitrust laws--laws enacted to protect consumers from this very type of special interest legislation. Instead of honoring these important amendments, the bill's proponents now bring this unacceptable version to the House floor under suspension of the rules. Erasing the important work of the committee charged with protecting consumers from anticompetitive behavior would constitute a breakdown of rational governance in the House of Representatives. Passage of H.R. 6228 would not only harm consumers and competition in the Southeast and Southwest, it would be an affront to citizens across the nation. We agree with the attached column from The Washington Post which states, ``The loser (in this deal), of course, was the only party with no seat at the negotiating table--namely, consumers. Any consumer representative would have immediately recognized the deal for what it is--collusion between two dominant competitors to limit supply, carve up a market and keep out other competitors. In other words, a flagrant violation of the antitrust laws.'' As you and your colleagues work to conclude your business before the November elections, please don't forget about American consumers. With this assault on the anti-trust laws, a bad bill that affects an important part of the country has become one of national significance. We urge you to vote ``No'' today on H.R. 6228. Thank you for considering our views. Sincerely, Gene Kimmelman, Vice President, Federal and International Relations, Consumers Union. Mark Cooper, Research Director, Consumer Federation of America.

Mr. CONYERS. Mr. Speaker, I thank the chairman of the Judiciary Committee. Mr. Speaker, I have heard the best arguments presented about why this is a good measure: Safety is increased, noise is decreased, congestion is mitigated, competition is increased. Is there anybody on any of the committees that wants to say something about the consumers? Is that something that hasn't been contemplated up until now? Come on, guys. Give me a break. Consumers consist of everybody in America. They are not just in Texas.

Mr. CONYERS. Mr. Speaker, to my brother from New York, Brother Meeks, this is a pro-consumer compromise that all the consumer organizations that I have consulted and that have consulted me are strenuously opposed to. Can anyone can explain to me how this is a pro-consumer bill?

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I don't want to be controversial, but H.R. 4772 has nothing to do with Kelo. What the chairman said about it, and our agreement about it is correct; but the reason why H.R. 4772 has nothing to do with homeowners like those in Kelo is that the bill has nothing to do with eminent domain abuses. H.R. 4772 has everything to do with land developers and corporations and regulatory takings claims, and I include for the Record four editorials from The Washington Post, the New York Times, the Atlanta Journal Constitution and the Sacramento Bee. [From washingtonpost.com, Sept. 29, 2006] Take It Back The House moves a radical bill to hobble local land-use rules The House of Representatives is scheduled to take up today a terrible piece of legislation designed to strengthen the hands of developers in their battles with government. Congress considered and rejected a similar bill in 1997 and again in 2000. Now it's back--only worse. The bill deals with legal claims under the ``takings'' doctrine--a requirement of the Fifth Amendment under which government has to compensate property holders when it seizes their land. Under current law, landowners must give local governments a chance to resolve such disputes and state courts a fair chance to adjudicate them before bringing the federal courts into the picture. The House bill would let developers make federal courts their first stop. This would give developers a big club to wield over local policymakers, gum up the federal courts with local land-use disputes, and diminish the rightful autonomy of state and local governments on the most local of questions. Then--and here's where this year's bill is even worse than its predecessors--the substantive rules concerning takings and other constitutional challenges to land-use regulations also would be changed in developers' favor. Right now, federal courts are leery of such challenges in land-use cases, generally deferring to local authorities. Under this proposal, however, they would have to invalidate as a violation of due process any local decision that was ``arbitrary, capricious, [or] an abuse of discretion.'' The bill, in short, would make it easier for landowners to get into court and, once there, easier to block regulations or to demand payment for compliance with them. Conservatives often style themselves as champions of federalism, and some conservative judges--including Justice Samuel A. Alito Jr. while he served on the U.S. Court of Appeals for the 3rd Circuit--have taken principled stands on preserving local authority over land use. In 1994, Judge Frank H. Easterbrook of the 7th Circuit wrote in frustration: ``Federal courts are not boards of zoning appeals. This message, oft-repeated, has not penetrated the consciousness of property owners. . . .'' It's time for it to penetrate the consciousness of members of Congress.

Mr. CONYERS

Mr. CONYERS. I thank the gentleman for yielding. He has done great legal work from the Armed Services Committee. I just keep going through my mind, and this is getting to be a night and day job, because I have a Member I respect so much in judiciary, Mr. Lungren, who keeps trying to tell us that there are two writs of habeas corpus. A wonderful idea, if it were only true. The statutory writ of habeas corpus, I say to my colleague from California, is to implement the great writ in the Constitution. So to be telling us repeatedly, repeatedly, and I have got the cases, I have been waiting for this great moment in American judiciary history, that there are two writs and that you have got to know which one you are talking about is absolutely incorrect.

Mr. CONYERS. Mr. Speaker, I yield 15 seconds to my colleague from Oregon (Mr. Wu).

Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I would like to begin by inserting the New York Times editorial of September 28 entitled ``Rushing Off a Cliff.'' [From the New York Times, Sept. 28, 2006] Rushing Off a Cliff Here's what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans' fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws--while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser. Republicans say Congress must act right now to create procedures for charging and trying terrorists--because the men accused of plotting the 9/11 attacks are available for trial. That's pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them. It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush's shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism. Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error. These are some of the bill's biggest flaws: Enemy Combatants: A dangerously broad definition of ``illegal enemy combatant'' in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted. The Geneva Conventions: The bill would repudiate a half- century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret-- there's no requirement that this list be published. Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence. Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial. Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable--already a contradiction in terms--and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses. Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence. Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture. There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it. We don't blame the Democrats for being frightened. The Republicans have made it clear that they'll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won't remember the pragmatic arguments for caving in to the administration. They'll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation's version of the Alien and Sedition Acts. Mr. Speaker, the New York Times editorial summarizes the simple fact that what we are doing is giving the President the power to jail, and I am quoting from the editorial, pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error. I want to repeat that, because I could have taken a lot of time to say the same thing. The President in this measure would be given the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error. Is there anybody that would really want to implement a piece of legislation on this last day before recess that would do that? Well, maybe there is innocent error. I have talked about the very esteemed Attorney General from California who has up until today been arguing that there are two writs of habeas corpus. But then I come to the gentleman from Indiana who says that there is nothing in this bill that relates to who can be detained. He says absolutely nothing. The first page of the bill starts off with ``unlawful enemy combatant.'' The term ``unlawful enemy combatant'' means a person who has engaged in hostilities or who has purposefully or materially supported hostilities against the United States, and they go on to tell you that he can be subjected to a combatant status review tribunal or any other tribunal established under the authority of the President or the Secretary of Defense. That's the first page. Then I get to my esteemed chairman of the committee that the United States has never held that people can be detained outside of the U.S. and have habeas rights. Well, as my colleague, the gentleman from New York (Mr. Nadler), points out, we are talking about being picked up and held indefinitely from Chicago. You don't have to be outside of the U.S. That's the problem. This is the most drastic piece of legislation that has ever come before the House of Representatives dealing with the writ of habeas corpus. Mr. Speaker, I yield 2 minutes to the gentleman from New York (Mr. Nadler).

Mr. CONYERS. Mr. Speaker, I yield 1 minute to the distinguished gentlewoman from Texas (Ms. Jackson-Lee), a superlative member of the committee.

Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from Maryland (Mr. Hoyer), our distinguished whip.

Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time. Mr. Speaker, this has been an exceedingly interesting discussion here today. I only close by reminding the distinguished member of the Judiciary Committee from California that in the opening parts of this law, this bill, there is no word ``alien'' anywhere in it. It is referring to an unlawful enemy combatant. An unlawful enemy combatant could be an American. And so I oppose this legislation, finally, because it endangers our troops because we are lowering the standards set forth in the Geneva Conventions by allowing the President to unilaterally interpret the conventions and that can be operative against our own troops. Don't endanger our own troops.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman from Texas, Ms. Sheila Jackson-Lee, a distinguished member of the Committee on the Judiciary. (Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, ladies and gentlemen of the House, let me state from the outset that we support our government intercepting each and every conversation involving al Qaeda and its supporters. But I cannot support legislation that not only fails to bring the warrantless surveillance program under the law, but dramatically expands the administration's authority to conduct warrantless surveillance on innocent Americans. This is the Bush bill. It is amazing to me that we would even be taking up a law that fails to regulate the present domestic spying program. Nearly 9 months after we first learned from the New York Times that there was a warrantless surveillance program going on, and we did not know it until then, there has been no attempt to conduct an independent inquiry into its legality. Not only has the Congress failed to conduct any sort of investigation, but the administration summarily rejected all requests for a special counsel or Inspector General review, and when the Office of Professional Responsibility finally opened an investigation, the President of the United States himself squashed it by denying the investigators security clearances. Now, since 1978, there have been 12 amendments to this bill, 51 different changes. So let us not start off acting as though there have never been changes here before. What we are doing, instead of restricting the administration and the National Security Agency, this bill grants the administration more and new authority to conduct warrantless surveillance of American citizens. Not only does the bill permit warrantless surveillance of the international communications of any American who is not a target, but it grants the administration new authority to conduct warrantless surveillance on domestic calls in many new circumstances. We do not like this measure before us because, instead of bringing the President's warrantless surveillance program under the law, what has been done, without much finesse, is to dramatically expand his authority and permit even broader and more intrusive warrantless surveillance of the program and the phone calls and the e-mails of innocent Americans. It raises severe constitutional questions, the fourth amendment and the equal protection of agencies and subjects everything in this area to ill-considered and unfair process. But it is not just the law professors and the civil liberty unions that are supporting it. We have here a statement from former national security officials, and I will insert the statement of former national security officials in the Record at this time. Statement of Former National Security Officials The President has spoken repeatedly and emotionally in recent days about the need for intelligence professionals to have clarity in the law. He has emphasized that it is not fair to ask these men and women to operate in an uncertain legal environment and that, in fact, legal uncertainty hampers operational effectiveness and thereby jeopardizes our national security. Yet legal uncertainty is exactly what will result if Congress heeds the President's call to enact legislation that replaces the obligation to use the procedures of the Foreign Intelligence Surveillance Act with broad language about relying upon the President's constitutional authority. Before FISA was enacted, courts addressed the issue of warrantless surveillance for domestic security purposes but did not clearly resolve the scope of the President's authority regarding foreign intelligence surveillance. FISA was enacted in order to clarify this murky legal area by setting forth a clear process for electronic surveillance of foreign powers and agents of foreign powers. The Executive Branch welcomed the clarity and this law has been viewed as an essential national security tool for 28 years. This legislation would return a complex subject to the murky waters from which FISA emerged by making going to the FISA court or applying FISA in any way optional rather than mandatory. It leaves it to the President to decide when he has the authority to conduct warrantless surveillance of Americans or foreigners. Whether he has made the right determination will not be known unless and until it is challenged in court. If advances in technology or other exigencies not contemplated in FISA present the President with a national security emergency, he should have a window in which to act while promptly seeking appropriate amendments to FISA--and this could be provided for in the statute. But this extraordinary emergency authority should not be permitted effectively to repeal FISA. FISA was a political compromise between the Legislative and Executive branches of government; unforeseen exigencies should require those branches of government to continue to coordinate, not condone unilateralism by either branch. Indeed, the world has become so much more complex, both technologically and socially, than it was in 1978, that making FISA optional rather than mandatory would significantly destabilize the balance struck then between law and policy. As individuals with extensive experience in national security and intelligence, we strongly urge that the requirements of FISA remain just that--requirements, not options. Congress should continue to work to get the facts and if, once they are provided, these facts demonstrate the need for changes in the law, amend it only as needed to meet genuine national security imperatives. Legal clarity is just as essential in this context as any other in which intelligence or law enforcement officers are asked to operate. FISA provides that clarity and should not be abandoned or amended in ways that render it irrelevant. Ken Bass Formerly Counsel for Intelligence Policy, Department of Justice Eugene Bowman Formerly Deputy General Counsel, Federal Bureau of Investigation Mary DeRosa Formerly Special Assistant to the President Formerly Legal Advisor, National Security Counsel Juliette Kayyem Formerly Member, National Commission on Terrorism (The Bremer Commission) Formerly Legal Advisor to the Attorney General, Department of Justice Elizabeth Larson Formerly Senior Staff, House Pennanent Select Committee on Intelligence Formerly Senior Executive, Central Intelligence Agency Elizabeth Rindskopf Parker Formerly General Counsel, National Security Agency Formerly General Counsel, Central Intelligence Agency F. Whitten Peters Formerly Secretary of the Air Force Formerly Principal Deputy General Counsel, Department of Defense Stephen Saltzburg Formerly Deputy Assistant Attorney General, Criminal Division, Department of Justice William S. Sessions Formerly Director, Federal Bureau of Investigation Formerly Chief United States District Judge for the Western District of Texas Michael A. Smith Formerly Assistant General Counsel, National Security Agency Brit Snider Formerly General Counsel, Senate Select Committee on Intelligence Formerly Inspector General, Central Intelligence Agency Suzanne E. Spaulding Formerly General Counsel, Senate Select Committee on Intelligence Formerly Assistant General Counsel, Central Intelligence Agency Michael A. Vatis Formerly Director, National Infrastructure Protection Center, Federal Bureau of Investigation Formerly Associate Deputy Attorney General, Department of Justice I lift up the names of two people in particular: William Sessions, the former Director of the Federal Bureau of Investigation, formerly Chief Judge of the Western District of Texas; and William H. Webster, formerly Director of the Federal Bureau of Investigation and former Director of the Central Intelligence Agency. There is a wide agreement that this legislation is not what we should be doing. It should be rejected because we are giving the administration unilateral authority to review the call records and e- mails of millions of Americans and permits the administration to use surveillance devices without cause, thereby reinstituting the discredited ``total information awareness'' program that kept records on hundreds of millions of Americans. Hidden in the fine print are provisions which grant the administration authority to maintain permanent records on innocent American citizens, granting the administration new authority to demand personal records without court review, and terminating any and all legal challenges to unlawful wiretapping. So we are joined in our position by the Computer and Communications Industry Association, including Microsoft, Verizon, Google and Intuit; law school deans, 63 of them; 13 former national security officials; the Center for Democracy and Technology; and the Center for National Security Studies. We must fight terrorism, but we must fight it in the right way, consistent with our Constitution and in a manner that serves as a model for the rest of the world. This bill fails that test. Mr. Speaker, I reserve the balance of my time.

Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from New York (Mr. Nadler), ranking subcommittee member.

Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to a distinguished member of the committee, Mr. Schiff.

Mr. CONYERS. Mr. Speaker, I am pleased to yield 2\1/2\ minutes to the distinguished gentleman from Maryland (Mr. Van Hollen).

Mr. CONYERS. Mr. Speaker, I am pleased to yield 2 minutes to the gentleman from Virginia (Mr. Scott), a member of the Judiciary Committee.

Mr. CONYERS. Mr. Speaker, I am pleased to yield 2\1/2\ minutes to the gentlewoman from California (Ms. Waters), a member of the Judiciary Committee.

Mr. CONYERS. Mr. Speaker, I am pleased now to yield 2 minutes to the distinguished minority whip, the gentleman from Maryland (Mr. Hoyer).

Mr. CONYERS. Mr. Speaker, I yield myself 30 seconds, because it has been stated that we might have been able to prevent the September 11 attack. But a distinguished member of the 9/11 Commission specifically criticized General Hayden for suggesting that the NSA warrantless wiretapping program could have prevented the September 11 attack by stating that it is patently false and an indication that he is willing to politicize intelligence and use false information to help the President. The Administration's claims that the NSA programs could have prevented the September 11 attacks do not appear to comport with the facts. With respect to Nawaf Alhazmi and Khalid Almihdhar, the September 11th Commission found that the Government had already compiled significant information on these individuals prior to the attacks, writing, ``[o]n May 15, [2001], [a CIA official] reexamined many of the old cables from early 2000, including the information that Mihdhar had a U.S. visa, and that Hazmi had come to Los Angeles on January 15, 2000. The CIA official who reviewed the cables took no action regarding them.'' Under FISA, the Administration could have used the information to seek permission to monitor the suspects' phone calls and e-mails without risking any disclosure of the classified information. It is also not at all clear that warrantless surveillance would have been useful in averting the 9/11 attacks, since the Administration was unable to locate where the two suspects were living in the United States and, according to the FBI ``had missed numerous opportunities to track them down in the 20 months before the attacks.'' Senator Bob Kerrey, who was a member of the 9/11 Commission, specifically criticized General Hayden for suggesting that the NSA warrantless wiretapping program could have prevented the September 11 attack stating: ``[t]hat's patently false and an indication that he's willing to politicize intelligence and use false information to help the President.'' I turn now to the gentleman from Virginia (Mr. Moran) who has studied this matter and I yield him 2 minutes.

Mr. CONYERS. Mr. Speaker, I yield to the gentleman from New York (Mr. Hinchey) 2 minutes.

Mr. CONYERS. Mr. Speaker, I now yield the balance of our time to the distinguished gentleman from New Jersey (Mr. Andrews). (Mr. ANDREWS asked and was given permission to revise and extend his remarks.)

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I ask unanimous consent that the gentleman from California (Mr. Schiff) control time on our side.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, over the weekend, the media reported that American intelligence agencies completed a National Intelligence Estimate, NIE, finding that the Iraq war has increased the danger of terrorism against the United States. This is significant because the NIE represents the consensus judgment of the entire United States intelligence community and is approved by John D. Negroponte, the Director of National Intelligence. According to portions of the NIE declassified by the President, the intelligence agencies conclude that Islamic radicalism ``has metastasized and spread across the globe.'' This conclusion raises considerable questions about President Bush's public statements that the war in Iraq has made us safer. Even though President Bush declassified about four pages of the 30-page NIE, the American people are entitled to the full story, not just pieces the President may selectively reveal. Media accounts further indicate that the Administration has an additional classified intelligence community report that gives a grim assessment of the situation in Iraq. Some have expressed concern that release of this second NIE is being slowed by the Administration to avoid discussion before the November elections. If the intelligence estimate is finished, it should not be hidden from the American people. In order to inform the public more fully regarding the impact of the occupation in Iraq on terrorism, I along with 45 of my colleagues am introducing a Resolution of Inquiry that would call for the immediate release of the full unclassified versions of both the April NIE as well as any other pending report on Iraq. While President Bush has released a small part of the April 2006 NIE, it is important that all unclassified materials on these matters be released. The American people deserve to know the whole truth about the impact of the war in Iraq on the global war on terrorism. If what has been reported is correct, these Intelligence Estimates indicate that the Iraq war is part and parcel of this administration's failed national security record, and has made us less safe from terrorist attacks.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, this is a very important discussion today, and we have an opportunity to consider whether we are willing to respect the ideals of law and human dignity in actuality rather than just in rhetoric. This legislation goes to the core of who we are as a nation. So I begin the Judiciary Committee's discussion of this matter on two points simply. The first is the point on habeas corpus. Because, you see, we have determined that detainees will not have the ability to challenge the conditions of their detention in court unless and until the administration decides to try them before a military commission. Those who are not tried will have no recourse to any independent court at any time. So because people have been encouraging each other to read the bill, I want to turn to page 93, line 12, where the habeas corpus matters are included. Here is what it says: ``No court shall hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant.'' There is where 62 law professors from dozens of universities tell us that what we are doing is changing the hallowed writ of habeas corpus so that it will not apply by law. We are by law changing a constitutional provision. The other important part of our discussion on the Judiciary Committee, and, by the way, I hope that the ranking member of the Armed Services Committee can serve on the Judiciary Committee, because he has made some excellent legal arguments today, the other point that I would bring to your attention is that the President will now, under these provisions in the bill, be allowed to interpret the Geneva Conventions, especially common article 3, the way that he wants and to exclude it from other review by the courts. By eliminating the judicial review of executive acts as significant as detention and domestic surveillance, this cannot be squared with the principles of transparency and the rule of law on which our constitutional democracy rests. Congress would gravely disserve our global reputation as a law- abiding country by enacting bills that seek to combat terrorism by stripping judicial review. I refer my colleagues to page 83, section 6, relating to treaty obligations. Here it is. This is the bill: ``(3) Interpretation by the President. As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions. ``The President shall issue interpretations that will be published in the Federal Register.'' So what we have done now is give to the President, and I think it is about time somewhere in the proceedings that this be made public knowledge, give the President exclusive power to interpret the common article 3 of the Geneva Conventions and that it would be unreviewable. It is upon these two points that I would urge that the Members of the House of Representatives on this day go on record as refusing to accede to these onerous provisions of a bill that would change the course of America's relationship, historic relationship, with international treaties. Written Testimony of Jonathan Hafetz Before the U.S. Senate Committee on the Judiciary, September 25, 2006 Dear Senator Specter, Senator Leahy, and Members of the Committee: Thank you for the opportunity to submit this statement in connection with today's hearing. (``Examining Proposals to Limit Guantanamo Detainees Access to Habeas Corpus Review''). My comments focus on the historical foundations of habeas corpus that are relevant to the Committee's consideration of the proposed legislation, S. 3930. As the United States Supreme Court has repeatedly made clear, the Constitution, at a minimum, protects the writ of habeas corpus as it existed in 1789. Eliminating habeas corpus for prisoners held at Guantanamo Bay would be inconsistent with centuries of tradition and would fall below the review required by the Constitution. I am currently Counsel at the Brennan Center for Justice at New York University School of Law. The Brennan Center is a nonpartisan institution dedicated to safeguarding access to justice and the rule of law through scholarship, public education, and legal action. One of the Brennan Center's primary goals is to ensure accountability, transparency, and checks and balances in the formulation and implementation of national security policy. During the past decade, I have focused extensively on the history of habeas corpus. My scholarly articles and amicus curiae briefs on habeas have been cited by the Supreme Court and federal courts of appeals. I hold a J.D. from Yale Law School and a Masters Degree in History from Oxford University. My comments are organized as follows. First, I describe the historical roots of habeas corpus as a check against unlawful executive detention and how those protections are guaranteed under the Constitution and laws of the United States. Second, I explain the writ's broad territorial scope and guarantee of a searching examination of the factual and legal basis for a prisoner's detention. Third, I show that habeas corpus secures another fundamental requirement of the common law and due process--the right to be free of detention based on evidence gained by torture. Finally, I explain why appellate review under the Detainee Treatment Act of 2005 of a Combatant Status Review Tribunal determination does not provide an adequate and effective substitute for constitutionally mandated habeas. To the contrary, such review would foreclose any meaningful inquiry into the factual and legal basis for a prisoner's detention and sanction evidence secured by torture and other coercion. I. Habeas Corpus Provides A Check Against Unlawful Executive Detention For centuries, the writ of habeas corpus has provided the most fundamental safeguard against unlawful executive detention in the Anglo-American legal system. William Blackstone praised habeas as the ``bulwark'' of individual liberty, while Alexander Hamilton called it among the ``greate[st] securities to liberty and republicanism.'' The writ has since been described as ``the most important human right in the Constitution. Today habeas is typically used by convicted prisoners to collaterally attack their criminal sentences. At its historical core, however, the writ provides a check against executive detention without trial, and it is in this context that its protections have always been strongest. Above all, habeas guarantees that no individual will be imprisoned without the most basic requirement of due process--a meaningful opportunity to demonstrate his innocence before a neutral decisionmaker. Habeas corpus was part of colonial law from the establishment of the American colonies, and the common law writ operated in all thirteen British colonies that rebelled in 1776. The Framers enshrined habeas corpus in the Suspension Clause of the Constitution, which states that Congress ``shall not'' suspend the writ of habeas corpus ``unless when in Cases of Rebellion or Invasion the public Safety may require it.'' The First Congress codified this constitutional command in the Judiciary Act of 1789, making the writ available to any individual held by the United States who challenges the lawfulness of his detention. For the Framers of the Constitution, restricting Congress's power to suspend habeas corpus was never controversial: the only debate concerned what conditions, if any, could ever justify suspension of the Great Writ, and the Framers concluded that Congress could exercise its suspension power only under the most exceptional circumstances. The constitutional guarantee of habeas corpus stands apart and perpetually independent from the other guarantees of the Bill of Rights enacted two years later in 1791. Under the influence, if not the command of the Suspension Clause, Congress has always felt itself obligated to provide for the writ in the most ample manner. Since the Nation's founding, the writ has been suspended on only four occasions: during the middle of the Civil War in the United States; during an armed rebellion in several southern States after the Civil War; during an armed rebellion in the Philippines in the early 1990s; and in Hawaii immediately after the attack on Pearl Harbor. Each suspension was not only a response to an ongoing, present emergency, but was limited in duration to the active rebellion or invasion that necessitated it. II. Habeas Corpus Extends To Any Territory Within The Government's Exclusive Jurisdiction And Control And Guarantees A Searching Inquiry Into The Factual And Legal Basis For A Prisoner's Detention As the Supreme Court has recognized, the writ of habeas corpus has an `` `extraordinary territorial ambit.' '' Habeas has always reached any territory over which the government exercised sufficient power and control to compel obedience to the writ's command. As Lord Mansfield wrote in 1759, ``even if a territory was `no part of the realm [of England],' there was `no doubt' as to the court's power to issue writs of habeas corpus if the territory was `under the subjection of the Crown.' '' At common law, therefore, habeas was available not only in territories beyond the borders of England, such as the mainland American colonies and West Indies, but also in territory over which England exercised exclusive control and jurisdiction but lacked sovereignty. The right to habeas corpus has always extended to aliens as well as citizens. The writ has been available in time of peace as well as in time of war. Even alleged enemy aliens have had access to habeas to demonstrate their innocence, including by submitting evidence to a court. Indeed, in one case Chief Justice Marshall, on circuit, required an enemy alien to be produced in court and ordered his release. As the Supreme Court observed in Rasul v. Bush, detainees at Guantanamo have the right to habeas review because they are imprisoned in territory over which the United States has complete jurisdiction and control and because, unlike the World War II-era prisoners in Johnson v. Eisentrager, they have never been convicted of any crime and maintain their innocence. Common law courts did not simply accept the government's factual response to a prisoner's habeas petition; instead, they routinely probed that response and examined additional evidence submitted by both sides to ensure the factual and legal sufficiency of a person's confinement. The writ's guarantee of a searching judicial inquiry crystallized in response to the Crown's efforts to detain individuals indefinitely without due process. In 1592, English judges protested that when they ordered the release of individuals unlawfully imprisoned by the Crown, executive officials transported them to ``secret [prisons]'' to place them beyond judicial review. As a result, the judges issued a resolution affirming their power to release prisoners if a response to the writ was not made. The Crown, nevertheless, continued to avoid a judicial examination into a prisoner's detention by providing a general response (or return) that did not specify the cause of commitment. This issue came to a head in the seminal Darnel's Case. There, the Attorney General asserted that it was the king's prerogative to detain suspected enemies of State by his ``special command,'' without a judicial inquiry into the factual and legal basis for their detention. He emphasized the Crown's overriding interest in national security and insisted that judges defer to the king's judgment. When the court upheld the Crown by finding its response sufficient, it sparked a constitutional crisis that led to the establishment of habeas corpus as the pre-eminent safeguard of common law due process and personal liberty. This was entrenched through the enactment of the Petition of Right or 1628, the Habeas Corpus Act of 1641, and the Habeas Corpus Act of 1679. By the late 1600s habeas corpus had become--and would remain--``the great and efficacious writ, in all manner of illegal confinement'' and the most ``effective remedy for executive detention.'' At common law, courts consistently engaged in searching review on habeas corpus to probe the factual and legal basis for a prisoners commitment, including by conducting hearings and taking evidence. In the United States, courts have exercised the same searching review of executive detention. Indeed, in one its first habeas cases, the Supreme Court affirmed the writ's historic function at common law; to determine whether there was an adequate factual and legal basis for the commitment,'' fully examining and considering the evidence and finding it insufficient to justify the prisoners' detention on allegations of treason. Habeas also has always guaranteed review of the lawfulness of a newfangled tribunal established to try individuals before that trial takes place. This review has been exercised in time of war and in time of peace, and over all categories of alleged offenders. To deny that review would jeopardize a longstanding protection of habeas. By contrast, habeas review has always been more limited in post-conviction cases--which today make up the bread and butter of a federal court's habeas docket. But that is precisely because the prisoner had already been convicted at a trial that provided fundamental due process, including the opportunity to see the government's evidence and to confront and cross-examine its witnesses, a right that Justice Scalia has said is ``founded on natural justice,'' Absent that process, a federal judge with jurisdiction over a habeas corpus petition has the power to examine the factual and legal basis for the prisoner's detention in the first instance, including the power to take evidence and conduct a hearing, where appropriate. At issue in the Guantanamo habeas cases is executive detention without any judicial process-- precisely the situation that lies at the Great Writ's core and that mandates a searching examination of the government's allegations. III. Habeas Corpus Serves As An Essential Check On The Use of Evidence Gained By Torture. Habeas corpus also vindicates another core guarantee of the common law--the categorical prohibition on the use of evidence obtained by torture. During the sixteenth century, crown officials occasionally issued warrants authorizing the torture of prisoners. Pain was inflicted by a variety of ingenious devices, including thumbscrew, pincers, and the infamous rack. The use of torture dec1ined after an investigation showed that a suspected traitor had been ``tortured upon the rack'' based upon false allegations. Shortly thereafter the king asked the common law judges whether another alleged traitor ``might not be racked'' to make him identify accomplices, and ``whether there were any law against it.'' The judges' answer was unanimous: the prisoner could not be tortured because ``no such punishment is known or allowed by our law.'' The Framers of the Constitution also abhorred torture, which they viewed as a mechanism of royal despotism. As the Supreme Court has repeatedly held, reliance on evidence obtained by torture is forbidden not merely because it is inherently unreliable but also because such ``interrogation techniques [are] offensive to a civilized system of justice.'' Without the availability of habeas corpus to provide a searching inquiry into the basis for a prisoner's detention, and to determine whether, in fact, evidence justifying that detention has been obtained by torture or other coercive methods, this fundamental common law protection would be jeopardized. IV. The Proposed Legislation Would Violate the Suspension Clause The proposed legislation would markedly depart from historical precedent and the Constitution's command that the writ be made available. This legislation, moreover, would sweep under the jurisdictional bar only non-citizens, raising serious questions under the Constitution's guarantee of equal protection as well. The Committee may ask whether review by the District of Columbia Circuit established under the Detainee Treatment Act of 2005 (``DTA'') obviates any problem under the Constitution. It does not. Such review falls far short of the minimum review guaranteed under the Suspension Clause because it would deny prisoners any meaningful inquiry into the factual and legal basis for their detention and would sanction the use of evidence secured by torture and other coercion. Since others have explained the flaws of this review scheme in greater detail, I describe them below only briefly. The Guantanamo detainees are all held pursuant to a finding by the Combatant Status Review Tribunal (``CSRT'') that they are ``enemy combatants.'' The CSRT was established by the President only nine days after the Supreme Court's ruling in Rasul that Guantanamo detainees have the right to challenge their executive detention in federal district court by habeas corpus. The order creating the CSRT pre-judged the detainees, declaring that they had already been found to be enemy combatants based on multiple levels of internal review. Rather than affording the detainees a meaningful opportunity to prove their innocence, the CSRT denied them fundamental rights, including the right to counsel; the right to see the evidence against them; and the right to a neutral decisionmaker. Moreover, as the government itself acknowledges, the CSRT permits the use of evidence gained by torture. In short, as District Judge Joyce Hens Green found, the CSRT denies the core protections of elementary due process that habeas provides: a searching factual inquiry to determine whether a prisoner's detention is unlawfu1, including whether it is based on evidence secured by torture. Review of CSRT determinations under the DTA would not provide detainees with any opportunity to challenge the factual and legal basis for their detention. The DTA, on its face, limits review to whether the CSRT followed its own procedures. No detainee, as the government argues, can ever present evidence to a federal court even if that evidence shows he is innocent or that he was tortured. In short, DTA review of a CSRT finding would deny prisoners precisely the meaningful factual inquiry provided by habeas corpus and secured under the Suspension Clause. V. Conclusion Habeas corpus has aptly been described as ``the water of life to revive from the death of imprisonment.'' For centuries, the Great Writ has prevented the Executive from imprisoning individuals based upon mere suspicion and without a meaningful examination of its allegations. Habeas corpus demands that individuals have a fair opportunity to demonstrate their innocence before a neutral decisionmaker. Eliminating habeas at Guantanamo would flout this long tradition and would gut the core protections guaranteed under the Suspension Clause. Thank you for the opportunity to provide this statement. My colleagues and I are happy to provide the Committee with any further information. Jonathan Hafetz, New York, NY, September 25, 2006 Mr. Speaker, I reserve the balance of my time.