Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. Madam President, I really don't have much to add because Senator Kyl has done an outstanding job in explaining our amendment and the benefits to the country if we pass this amendment. To the people in South Carolina who might, by chance, be listening, the reason I am so passionate about trying to extend the tax cuts and making sure this budget does not deal a death blow to tax cuts that have been in place in some form or manner since 2003 is the evidence is overwhelming that they have helped our economy. Just to kind of build on what Senator Kyl has said, my belief is the global economy of the 21st century is going to require America to rethink across the board how we engage our global competitors. Americans have to ask themselves these questions: Is our tax structure going to be globally competitive? Are we going to have a tax structure that will allow capital to be welcome in this country so that people who take risk can be rewarded here or will we drive people somewhere else? The regulatory side of government, the litigation side of our American experience here needs to be looked at anew out of a sense of a need to fit into a global economy and to be fair to all our citizens. In my opinion, the worst thing we can do is to create a tax structure that drives jobs overseas. In this economy, where anyone can do business anywhere in the world, people do look at tax rates in making decisions about whether to invest here or somewhere else. From the Government's point of view, the evidence is overwhelming that the tax reductions in dividends and capital gains, particularly capital gains, have generated revenue to the Federal Government. As we have lowered the rate down to 15 percent, in some cases to zero and other cases 5 and 10 percent, with a maximum capital gains rate of 15 percent, people have generated a lot of capital gains transactions that have been good for the economy and good for the Federal Treasury, and they are due to expire. This budget, the way it is drafted, is going to deal a death blow to tax reductions that have been beneficial to the economy--and without a good reason, in my opinion. There is no good reason. The question is, Does this budget deal a death blow to tax cuts? The answer has to be yes, simply because Senator Baucus is trying to extend tax cuts by an amendment. And I wish to congratulate him. I am not here to play ``gotcha'' politics. What he is trying to do in his amendment is a wonderful thing. He is trying to make sure the 10-percent tax bracket is extended for a couple more years in this budget. He is trying to make sure the $1,000 child tax credit is extended as far as this budget applies and we don't revert back to a $500 per child tax credit. In South Carolina, a $1,000 per child tax credit for the families who have been eligible has made a world of difference to people. My State, like every other State, has great success stories economically and where you have people living paycheck to paycheck. The marriage penalty relief has been good for families in my State. The dependent care credit has been good for people trying to work and raise kids. Adoption credits have been good, helping to create new families. There is nothing more exciting as a lawyer than to be involved in an adoption where you get a child who has no home and you marry them up with a family that wants a child. It is just a wonderful experience. There is combat pay and the EITC exemption. None of us disagrees with those. Why not go forward into the other areas where we have cut taxes that have benefited the Treasury and benefited job creation? The only reason I can think of is there is a view that there are some Americans who are entitled to tax relief and some who are not. The ones to whom we don't want to give tax relief in this budget have been labeled ``the rich'' and are somehow unworthy of being included in this budget. Class warfare is a time-tested political endeavor whose time has passed. We are in this together. There are about 270,000 people in my State who depend on capital gains income and dividend income. Senator Kyl has gone through, in very detailed fashion, who benefits from capital gains and dividend tax reductions, and there are a lot of seniors. At the end of the day, though, we have a choice to make as a Congress. We can do what Senator Baucus wants, which I wholeheartedly support, and we can stop believing that people on the other side of the river, when it comes to taxes, just make too much money or they do not need the help. I would argue that if you are in business today, creating a product for sale in the global economy, you need help when it comes to your taxes because some of your competitors have tax rates a lot lower than the United States. When it comes to lowering dividend tax rates, how does that help America? People will invest in companies that pay dividends, they will buy stock, which helps American corporations capitalize, if the tax rates are lower. It is not just a theory; it is a fact. When you are trying to grow your business, you can get investors from the private sector or you can go to the bank and borrow money. It seems to me we would want to create an environment so that corporate America, whatever the size, could get money from the private sector to grow their businesses without being so debt laden, and the people who are receiving dividends, that would be income to help them in their retired years, which would be a win-win situation. We can't afford to divide America any longer based on how much one makes or this concept that some of us are more worthy of protection from the Tax Code than others. The Tax Code is not going to allow us as a nation, in its current form, to survive in a global economy. But if we extend the tax cuts in this budget, it would be a good signal to the private sector in America that they are going to be able to count on-- for at least a couple more years--some tax cuts that have worked to produce jobs. The real challenge of this Congress lies ahead; that is, trying to find a way to simplify the Tax Code. That is a debate for another day. Our friends on the other side have been in charge of the Congress now for a couple of months, and this is a test, in my opinion, of how the Democratic Congress views the needs of America across the board in a global economy. Again, the evidence is overwhelming. There is overwhelming evidence that the dividend tax reductions and the capital gains tax reductions have been beneficial to the Treasury. The amendment of Senator Baucus to extend tax cuts for working families, to extend marriage penalty relief, and the $1,000 child tax credit, to make sure it doesn't go to $500, should be applauded. I see the need, as a Senator from South Carolina, for what he is doing. It is frustrating that I cannot convince my friends on the other side that the need exists in abundance in South Carolina and everywhere else in the country to keep our tax rates low when it comes to the entrepreneurial spirit that has made us great, that the capital gains rates need not go up. They need to stay where they are, as long as we can keep them that low, until we find a new Tax Code. The dividend tax rates need not go up or double in a few years. They need to stay low because America needs jobs. The way you create jobs is you leave as much money as reasonably possible in the private sector and you have a tax structure that rewards people who decide to take risk and invest. What America needs more than anything else is some certainty as to the death tax dilemma we created. There is a great debate going on in this country about the role of the death tax in the 21st century. It is indefensible, apparently, to say that the current rates and the current exemptions are fair. I think we have won the argument that the death tax, without change, is going to put a lot of people at risk who have made something of their lives, the family farm or the small business. As Senator Kyl said, there is a lot of buy-in with our Democratic colleagues that we need to increase the exemptions fairly dramatically because people can be land-rich and cash-poor. I know in South Carolina there are a lot of people who have inherited tracts of land, and the death tax appraisal requires the family to break up the property and sell it. About 70 percent of small businesses, they tell me, never make it to the third generation--one of the reasons the business has to be bought back from the Government. I think we have all bought into that as a body, that the exemptions need to change. I hope we have bought into the idea that the rates need to be lower because they are oppressively high. But here is the dilemma we have created for the country. It is my understanding, given the tax packages we have passed over the last several years, the death tax exemptions go up over time and eventually go to zero in 2010. In January 2011, unless we do something as a body, they go back to the old system. I have been a lawyer for a long time. There are going to be a lot of mysterious deaths on New Year's Eve 2010 because if you live the next day there is going to be a big hit to the family when it comes to tax rates. It is not right for us to put the American business community and the family in that position. We need to help straighten this mess out. I am very openminded to compromises, but it is not fair for someone, if they live 1 day longer than they should, half of what they have worked for all their life goes to someone they don't know. We can do better than that. That is the place we find ourselves in America. The Congress has created the dilemma that if you die on New Year's Eve 2010--I think that is the correct date--your family has absolutely no estate tax liability. If you die the next day, almost half of what you have worked for in your entire life is gone through taxation. We can do better than that. One way to start doing better is to pass a budget that would include what Senator Kyl has described on the list of Senator Baucus. I do believe the country is dying for us to come up with a rational system of how we tax the American people, including low-income, middle- income, and upper-income Americans. I am trying the best I can to express to a lot of people in South Carolina, who live paycheck to paycheck, that we are all in this together. If I overtax the business owner, your job is threatened because his business may move offshore. People back home in South Carolina very much get that. If you are in a manufacturing State, as I am, like Michigan, one of the reasons our jobs are leaving this country is because you can go to places such as China and other places and not have the burdens you have here. I do not want to chase China to the bottom, don't get me wrong. I want to put a floor on what China does. I think we will make a mistake chasing China to the bottom. But I think we would make an even bigger mistake if we do not address, in this budget, tax relief that has worked for Americans across the board. We have a chance in this amendment to do something about death taxes that is extremely rational and would get America out of the dilemma of dying on the wrong day. We have something in this amendment that would allow the capital gains rate reductions to stay in place a couple of years longer and keep the dividend taxes low because they more than paid for themselves, and we have some education tax relief. If we add this amendment with what Senator Baucus has done, I think we could say this budget does a very good job of trying to extend for the life of this budget tax relief across the board that has worked for all Americans. Finally, if we buy into the idea that there is a certain group of Americans who are not worthy of tax relief, we are going to, over time, make it very difficult for the American economy to survive globally, and we are going to create a dynamic in the 21st century that I think will come back to haunt us over time. With that, I urge my colleagues to vote for the Kyl-Graham amendment because when you marry it up with the Baucus amendment, we have done a pretty good job of extending tax relief across the board in a way that will help the American economy from top to bottom. With that, I yield the floor.

Mr. GRAHAM. If that is acceptable with my colleagues, I will speak now, Madam President.

Mr. GRAHAM. Yes, I am.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I think Senator Specter, has given a good overview of where the Congress finds itself, where it wants to go, and how to get there. What I wish to do is give my view for people back home and my colleagues about how what we do now, for the moment, could affect the overall war on terror, and throw out this proposition: Do we believe the outcome in Iraq affects the overall war on terror? Is Iraq a central battlefront in the global struggle? I believe the answer is clearly yes. You could debate whether going into Iraq was the right thing. Clearly that is a debate that will be resolved by historians. We are there now. What are the consequences of a failed state in Iraq and how likely is that to occur, based on what we do for the moment? I would argue very strongly a failed state in Iraq is a tremendous defeat in the overall war on terror on several fronts. No. 1, it means moderate forces in Iraq were overwhelmed by the extremists. There are basically three groups in Iraq trying to kill this infant democracy. There is a Shia extremist group that has as its goal a theocracy for Iraq where the Shias will dominate the Iraqi landscape and they will have an Iranian style theocracy. It may be different in many ways, but it will be a religious state. The Sunni extremists are trying to seize power and kill this infant democracy and rule by the gun, not by the rule of law. They were in power during the Saddam era and they want to get back in power. These two groups have different views of what to do with a future Iraq, but they both come together believing a democracy hurts their agenda. Then there is the rest of Iraq, the Sunnis, the Shia, and the Kurds, which I think are the overwhelming majority--and they are struggling to create a new democracy out of the ashes of a dictatorship. I want to associate myself with some understanding of the struggle they are going through because our country went through this very same struggle. It is hard to create a democracy, but the benefits are enormous if we can pull this off. The third group is the most dangerous of all. They are in Iraq to kill this infant democracy, not for political power within the border of Iraq as their goal but to create a movement that will sweep the Mideast. This is the al-Qaida organization within Iraq and associated Islamic extremist organizations that have a more regional view of what to do. All three groups, the Shia extremists, the Sunni extremists, and the foreign fighters, namely al-Qaida, are threatened by democracy in different ways. Shaikh Mohammed has just admitted in open session in a military tribunal that he was in fact the mastermind of 9/11. He went on ad nauseam about all the activity he had been involved in for over a decade. The point of his testimony was he believes he is at war with us. We need to understand we are at war with him. I think for years they were fighting us and we did not quite understand they had declared war upon us. But we all agree now that al-Qaida is a force that needs to be dealt with militarily and that there is a global struggle in which they are involved, and that Shaikh Mohammed is a warrior, an illegal warrior but nonetheless a warrior. He doesn't have a criminal agenda, he has a political agenda and religious agenda, and he considers himself a warrior. What I hope we can do in Iraq is defeat extremism on all fronts; that we could, in fact, defeat al-Qaida in Iraq, which would be a blow to their overall regional world agenda. What to do? Senator Specter made a good point. Where do we go? Congress is trying to find its footing. Congress doesn't want to cut off funding. There are different reasons people don't want to cut off funding. The polls clearly show that cutting off funding is not popular, by the American people. There are Members in the body who do want to cut off funding. I respect their point of view because they have concluded Iraq is not part of the war on terror in a traditional sense; that our involvement in Iraq is doing more damage in the war than it is helping. I just disagree. I think a loss in Iraq is a huge event in the war on terror. And they will come and cast a vote. They will vote against Senator Gregg's resolution saying the Congress should cut off funding. I respect them, but I think they are wrong. Now as to Senator Reid. His motion is that we are going to try to send a message to the Maliki Government and other political leaders in Iraq by telling them: At a date certain, we are going to start leaving if certain things are not done. I understand the point, that they are trying to get the moderate forces, the Democratic forces in Iraq, to do better and come together quicker. My concern is pretty simple. I think Senator Specter expressed it very well: The audience of this resolution is not a single audience, that the world will be listening and watching what the Senate does. If the Senate did pass a resolution setting a specific date--March of next year--where we will begin to redeploy if certain things are not done in Iraq, then I am convinced that in the Mideast it will be taken as a sign of weakness, not strength. It will be not a message sent to the moderates alone, it will be a message sent to the enemies of democracy. We would be, no matter how well intentioned, laying out a roadmap as to how to drive the United States out of Iraq. The resolution would have two purposes, one well intended: to get the Iraqi Government to do more to expedite the political decisionmaking that is required to lead to a successful outcome. The other consequence would be, we would be telling our enemies in great detail: Here is what you have to do to make sure we leave at a date certain and that every benchmark we set as to a date becomes a benchmark for the enemy. If you can achieve this benchmark, the United States will leave. To me, if we ever do that, then we have made a huge mistake. Senator Specter mentioned some of the mistakes. I think General Shinseki was right, we never had enough troops to provide security. We planned for the best, never assumed for the worst. On the economic projections, in terms of the cost of the war, the military understanding of what would happen after the fall of Baghdad, we missed it by a mile. We are paying a heavy price for making those mistakes. But the biggest mistake is yet to come. If we pass the Reid resolution, it would trump every mistake President Bush's team has made by a factor of many because it would be, in fact, destroying the last best chance we have to salvage democracy in Iraq. General Petraeus is our best hope. Reinforcements are needed in Iraq: politically, economically, and militarily. Any resolution passed by the Senate declaring this operation lost before it is implemented cuts General Petraeus's legs out from under him. It would be the biggest mistake Congress could make--I would say maybe in American history--to a commander in the field. Eighty-one to zero, we sent the general off to fight in a war anew, and now we are about to send a message to the people he is fighting that on a date certain you win if you do the following things. This resolution empowers our enemies. It gives them a roadmap of how to drive us out of the Mideast. It weakens the ability of General Petraeus to form coalitions to give the Iraqi politicians what they need to do the things they need to do. If you want to empower a moderate, which is key to victory in the Mideast in the war on terrorism, the last thing you need to do, in my opinion, is make a public statement that our commitment ends at a certain date if you do not do certain things, because you are telling the enemy exactly what they have to do to win out over the moderates and the United States. It would be a huge mistake of monumental proportions. I hope this body will not allow that to happen. What happens if we have a failed state in Iraq? Who is the biggest winner if Iraq breaks apart and democracy fails? Iran wins. In the south, the Shia south, a very oil-rich area, that most likely will become a puppet state of Iran. I cannot say for sure it will, but it is the most likely outcome. Let's start, for a change, planning for the worst. I wish people who were introducing these resolutions would understand the consequences of a failed state and ask themselves: Does this resolution help create a democracy? Does it empower the enemy? Does it help create a failed State? What are the consequences? Former Senator Edwards is saying we should draw 50,000 troops down today. They asked him the question: What would that mean for regional stability? I don't know. I am not sure. Well, I can tell you what it means. It would tell the extremists we are leaving, you are winning. Every moderate in the Mideast would start hedging their bets because what kind of political solution are you going to come up with if you believe the American political and economic aid to your young democracy will vanish? You start hedging your bets. The stronger we are, the bolder they become. The weaker we are, the bolder the enemy becomes. The stronger America, in a rational way, stands by moderate forces, the more likely they are to make the hard decisions to bring the country together. The weaker we seem, the weaker we portray ourselves, the stronger the enemy of democracy. That is what I believe this is all about. You cannot kill the terrorists in numbers enough to win the war from an American perspective. This war will never be won by the American military killing terrorists. They are doing a wonderful job, our military. This war will be won when extremism is suppressed within the Mideast by the people who live in the Mideast. So we have to take sides. This war is a war of religion and origin. The origin of this war is not Palestine-Israel, it is bin Laden, Shaikh Mohammed, and others who have a view of religion that has no place on the planet for the State of Israel or moderate Muslims, Christians, Jews. They have said publicly their goal is to drive us out of the Mideast, topple all moderate governments that do business with the West and essentially destroy Israel. I believe them. Iraq is a test of us and our will versus their will. I do hope we understand the vote we are about to take will shape the fortunes in Iraq in the coming months one way or the other. The decision we take in Iraq will shape our national security interests for decades, will change the Mideast for the better or for the worse, and will have monumental consequences on the war on terrorism. This is not about the political moment. This is about the decades to follow. Leaving Iraq, from a national security perspective, is not the question for the country. We all want to leave sooner rather than later for the good of our own troops, and eventually the stability of the world, to allow the Iraqis to take over their own destiny. The question for this country is what do we leave behind? I am convinced if we leave behind a failed State, where moderates are overwhelmed by extremists, the problems in Iraq spill out to the Mideast, and the war does not end when you leave Iraq, it just begins. You need to look at Shaikh Mohammed and what he said a few days ago, and what they are saying now, al-Qaida. Understand that they believe the outcome in Iraq is part of the war on terror. I believe it. These resolutions, in my opinion, do not understand that. As to General Petraeus, I have a lot of confidence in this new plan. It is not more of the same. It is trying to go at the problems in Iraq new and differently. There are early signs of success. There is a long way to go, But please understand the General and those who are under his command are affected by our actions in Washington. The world is watching. Please do not send a message to the wrong people, no matter how well intended. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I appreciate the opportunity to share some thoughts on what is probably the most important decision the Senate will make in the war on terror for decades to come, not just for the next election. I have a framework in my mind about what is going on in Iraq and how it fits into a global struggle. Quite frankly, I think it is unshakeable. I am not pursuadable on this issue. I will put my bias right up front. The outcome of what happens in Iraq is part of an overall global struggle called the war on terror. That is not just my view; it is the view of the al-Qaida members who have gone to Iraq to destabilize this infant democracy. It is being billed all over the Mideast as the struggle between moderation and extremism. We have Sunni extremists trying to get back in power. They reigned during the Saddam era, and some of them do not want to give up power. They want to destroy this democracy so they can rule again as a minority within Iraq because they had a taste of it before--that power--and they do not want to give that up. The Shia extremists, who are a minority of the Shia community, have a hope to create a theocracy in Iraq, not be the dominant political party in a democracy. They have a religious agenda for Iraq very similar to Iran. Then you have foreign fighters, including al-Qaida, who see a democracy in Iraq as the biggest threat to their overall agenda. What we are talking about is withdrawing from a central battlefront in the war on terror. What would be the consequences of redeploying-- whatever word you would like to use--in the overall effort called the war on terrorism? I think it would be the worst signal you could possibly send to the insurgents, to the extremists, and to al-Qaida members who are involved in this fight, who are watching this fight. Redeployment means surrender. If you think we are in the middle of a civil war that is a hopeless endeavor, cut off funding and get the hell out. This idea of trying to go somewhere where it is safe for Americans is folly. If you are in uniform in Iraq, there is no safe place for you. Wherever we move to, they are coming after us. We have this illusion that there is a place we can go inside of Iraq or some other country in the Mideast that will provide safety. I can assure you our enemy is intent on proving to us there is no safe place for us in the Mideast. When I say ``us,'' I mean those men and women wearing the uniform. The goal of the extremists in Iraq--some are limited to the country of Iraq. Other extremist groups within Iraq have a wider goal. Their goal is to drive American forces out of the Mideast. So there is no place, in my opinion, you can redeploy within Iraq that would not be a signal to the people we are fighting that we are surrendering and retreating. This war is about not killing terrorists from an American point of view alone, it is about empowering moderates. The Bush administration has made plenty of mistakes. The biggest mistake we made after the fall of Baghdad was not appreciating how much Saddam Hussein had raped his own country, how hard it would be to build a democracy out of ashes of a dictatorship, doing this on the cheap, assuming the best, never planning for the worst, and not having enough troops on the ground to provide security, which is essential to democracy. It is so easy to beat on the Iraqi political leadership. They deserve to be pushed, and they deserve to be challenged. But one thing I can tell my colleagues, they represent a better Mideast than the groups trying to literally kill them. Our goal is not to just destroy terrorist organizations; it is to empower moderates. The Democratic Congress is about to trump any mistake Bush has made by a factor of many. If they, as a Democratic Congress, set in motion a resolution that would undercut General Petraeus's ability to reinforce Iraq in a way that makes sense, then they have made a much bigger mistake than President Bush has ever made. If my colleagues are trying to pass a resolution that would make it impossible for moderates to reach political consensus because security is no longer certain, then my colleagues have made a much greater mistake than President Bush. Now why not cut off funding? I guess the only reason we are not cutting off funds is because the American people, through polling, say that is a bad idea. But I know there are many on the other side who want to cut funding. To be honest, I respect them immensely; I just disagree with this idea of taking a middle position that has as its basis that there is a safe way to redeploy and not affect the outcome of Iraq. That, to me, is just folly. It is unconstitutionally sound. It destroys the ability of the commander on the ground, General Petraeus, to do the job we sent him over there to do. It will be a sign of weakness to those we are fighting. Moderates will start hedging their bets. My belief is that the stronger we are in Iraq, the bolder the moderates will be. The weaker we become, the more uncertain they will be. It took us from 1776 to 1789 to write our own Constitution. When the product was written, women could not vote, and African Americans had no standing in the law. So I know there are religious problems in Iraq of a longstanding nature. I know this: Before al-Qaida bombed the Samarra mosque, the third most holy Shia holy site in Samarra, there had been generations of Iraqis, Sunnis and Shias, living together, intermarrying. I do not believe Sunnis and Shias are born to kill each other. I do believe, like other places in history, other times in history, and other places on the planet, people are divided--sometimes by race, sometimes by religion--and our country needs to come to the aid of those who want to live together and reject religious bigotry. The idea of dividing the country based on race, not many people in this body would say: Yes, that is a good idea, that will bring about peace, because it is giving in to bigotry. The idea of trying to give in to religious differences is insurmountable, is giving in to religious prejudice. I do believe the Iraqis can overcome their differences because it is in their best interest. But I do believe, if we do not reinforce this infant democracy at a critical time in its formation, we are going to lose in Iraq and the war just begins, it does not end. If you think withdrawing or redeploying ends this war, then I think you are going to be proven wrong in history. I know what awaits those who are involved in the surge: more risk, more blood, and more treasure. On the other end of this surge, my hope is that we will provide enough security--holding areas previously cleared--and the Iraqi Government will step to the plate and start sharing the oil, doing the things politically they need to do to reconcile their country. No one believes 21,500 troops are going to solve the problems of Iraq. Military power has its limitations, but we need to reinforce Iraq politically, economically, and militarily. The general we have sent to do the job has told us what he needs. He has a plan to accomplish his mission. The Congress is undercutting him at every turn. This is the 17th resolution. I do not know what the magic number is to find the resolution that fits the political moment, but I can tell you this: The resolution in Iraq is not about the political moment; it is about decades to come in the Mideast if we can empower the moderates who are fighting and dying for their own freedom. I say firmly and boldly to these Iraqis who have joined the military, who have joined the police, who are wanting to be judges, to those political leaders trying to find common ground between the three factions: You have my admiration and support because I know what it is like to be challenged in politics, when special interest groups try to take your job away from you because you will not do what they tell you. I cannot imagine what it is like to make political decisions knowing they are trying to kill your family. I do believe the outcome in Iraq is part of a global struggle and that we need to reinforce Iraq on all fronts to have a chance, our last best chance to get this country up and running under democratic principles. Talking to the neighbors is a wonderful thing. Somebody needs to be talking to Iran about their nuclear program and deal with this nut who is the President of Iran, who goes into the United Nations and says openly: I would like to wipe Israel off the face of the Earth, and who is challenging the world openly today that he will not give up his nuclear ambitions. It is clear to me, and I think anyone else who has looked at Iran, they are trying to develop a nuclear weapon to change the balance of power in the Mideast, and they are involved deeply in Iraq because their biggest nightmare, from the Iranian point of view, is a stable, functioning democracy. The theocracy in Iran does not have a shared interest with the United States or the Iraqi people when it comes to forming a democracy. If we can get them involved to help us provide security, let's give it a whirl. Let's give it a try. I do not believe they really have that as their goal. Syria is trying to undercut this infant democracy called Lebanon. They are playing hard in Iraq because they are a police state. I believe that the neighbors, Syria and Iran, are part of a global challenge to freedom-loving people. They are not the solution; they are the problem. Where we find moderates in the Mideast, we need to stand boldly with them and give them the ability, the best we can, to change the course of the Mideast. This effort to withdraw and redeploy is the worst possible signal you could send to moderates or extremists. This is a war which has religious components to it. There is one group who has proven they can live together in Iraq in peace, willing to live with us in peace. There are plenty of moderate forces throughout the Mideast who want to live on the planet with the rest of us and have a desire to do so. There is a minority who have hijacked a great religion, who have no place for us--moderate Muslims, Jews, or anybody else who is different. They want to destroy Israel eventually. They are not kidding. I wish we could go back in time--not just to Lebanon, but I wish we could go back into the 1930s and take Hitler for what he was. I wish we would understand who our enemy is and take them for what they are. They are barbarians who kill without conscience. They have an agenda in writing. They are hell-bent on achieving that agenda. That agenda goes like this: Destroy anything or anybody that embraces a concept called democracy or is sympathetic to the West, to moderate governments where they exist in the Mideast; turn your attention toward America, drive us out of the Mideast; establish a religious-dominated Mideast with a view of religion that is harsh to everything and everybody; and destroy Israel. I am not making this up. This is not my theory of what they want to do; this is what they said they will do. Iraq is the chance to turn it around. Iraq is a great opportunity for us, the Iraqi people, and the world at large to stand up to the extremists and beat them politically, militarily, and economically. This resolution we are about to consider or may consider sends the worst possible signal at the most important time in the war on terrorism. Whatever mistakes President Bush has made in his administration--I think they are well documented--the biggest mistake is yet to come, and that would be passing this resolution. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Madam President, if I may, just not being an intelligence expert, when we start naming the people involved around the individual, then we are talking about locations, specific sites. I would be very worried if we started naming in detail al-Qaida operatives, where they were, what they said, because that could set in effect a chain of events that would allow the enemy to understand what happened in that transaction. We may just disagree about this issue, but I do believe that the classified--that Shaikh Mohammed--maybe I can say it this way. I am glad that Shaikh Mohammed's case is classified, and we are not going to reveal to the public how we captured him, all the evidence that led us to find out where he was and what he was doing. I think it would be a nightmare for this country. As to the DC Circuit Court of Appeals opinion, I say to Senator Specter, they said the procedure was constitutional. I agree with them. Whether or not the individual case had sufficient evidence to support a finding is now subject to review by the court. This gentleman will get that review by the court based on what we did last year.

Mr. GRAHAM. I appreciate that. And I will continue. I will say this to my good friend from Pennsylvania. You were reading the transcript of a case that went on appeal. You have determined yourself that an injustice was rendered. You have made an opinion inconsistent with what the court found. You have your own sense of justice. I appreciate it, I admire it, but I do believe the court is right and you are wrong. I do believe there is no constitutional right available to enemy combatant terrorists, noncitizens. I do not believe Rasul decided that, because if they had decided that, all these cases we are talking about would have been dismissed. The circuit court of appeals may not be the--they would have gotten that. We have a case going to the DC Circuit Court of Appeals that either they have no idea of what the law is or Senator Specter is wrong. So I hope my colleagues will understand the DC Circuit Court of Appeals is not blind to the issues in this case, they just did not miss the fact that the Supreme Court, in Rasul, 3 years ago, declared a constitutional right and the DC Circuit Court of Appeals is out to lunch as a group of judges who do not understand one of the biggest decisions in American jurisprudence. If my colleagues believe that Rasul created a constitutional right for an enemy combatant, noncitizen, and everybody in the legal system has missed it, then you should not trust anything coming out of the DC Circuit Court of Appeals, you should not trust any decision coming from district court judges all over the country who are dismissing these cases, and you should not believe a thing I say. But there is a reason the DC Circuit Court of Appeals did not feel bound by a constitutional finding in Rasul--because the court did not find that. There is a reason they upheld the proceedings in the case in question, and some of that reason may be classified. I don't know. But I do know this: It is not good law or public policy to take a transcript released by the defense counsel and read it in isolation and try to use that anecdotal story to say that the whole process is broken, when the court looked at the entire process and found that it was not broken. I can promise my colleagues that if the Rasul case said there was a constitutional right to habeas corpus by a noncitizen enemy combatant, it would have been a major issue in the Al Odah case. The reason Al Odah decided what it did is because it rejected the defense claim there should be, and there is no evidence in the Al Odah case that the DC Circuit Court of Appeals took precedent in the Rasul case and came out with a different finding. Don't my colleagues think there would have been a long discussion in the Al Odah case by the DC Circuit Court of Appeals that here is why the precedent set in Rasul for a constitutional habeas right for an enemy combatant noncitizen is wrong? So please give the DC Circuit Court of Appeals some credit for not missing the biggest issue in military law in 200 years because they didn't miss it. Please give the Department of Defense some credit that when they issued this memo to detainees and their lawyers in July of 2004 indicating there is a habeas petition available to you, that it wasn't the Department of Defense's desire to create that right and that what they were doing was consistent with Rasul in saying that under 2241 you now had this right. For someone to suggest that memo was a conscious decision by the Department of Defense to give a habeas right to detainees I think completely misunderstands what the memo was about, distorts what it was about, and is a complete misunderstanding of what happened in Rasul. The Department of Defense had no other choice but to tell the detainees after the Rasul decision: You can file habeas petitions under 2241. The Supreme Court in three cases has told the Congress: You need to speak here. We found a statutory right because you haven't excluded it. Do you want as a Congress to confer on the Shaikh Mohammeds of the world an ability to go into Federal court of their own choosing, to find the most liberal judge they can find in this country, and take the military and every other intelligence agency to court and have that judge, in a full-blown trial, determine whether this person is an enemy combatant? That would be changing a process on its head. That would be taking away from the military the ability they have under the Law of Armed Conflict to decide who an enemy combatant is and give it to a civilian judge who is not trained in that. It would be a fundamental, far-reaching mistake that would haunt us and undermine our national security, put judges in positions they are not trained for, and take away from our military an obligation and right they have to defend us. There is a place for judges. There is a place for the Congress. There is a place for the President. There is a place for those fighting this war. I have one simple goal. I want to put people in the lanes where they can do the most good and the least harm. I do believe, if we turn this war into a crime and if we take the Shaikh Mohammeds of the world and we let civilian judges have a full-blown trial about how we found out they were the mastermind of 9/11 and if you take away from the military what a military threat is and you give it to civilian judges, you are going to make this war much harder to prosecute, and it will come back to haunt us. It has never been done before for a reason. We never allowed the Nazis, who are on par with al-Qaida, the ability to go into our Federal courts and sue the people who were fighting them--our troops. Because Justice Jackson in 1950 said: You would undermine the commander. They would be fighting the enemy on two fronts: on the battlefield and in the courts of the United States. It would undermine the commander's credibility. It would lead to chaos. There is a reason the Germans and the Japanese never went to Federal court. It would be, in my opinion, dangerous to give to al-Qaida more rights than we gave to the Nazis. This is a great debate to have, but it needs to be based on some sound concepts. I don't think it is a sound concept to say that Rasul gave a constitutional right to noncitizen enemy combatants under our Constitution. I don't think it is a sound concept to say that the DC Circuit Court of Appeals 2 weeks ago missed that. They didn't miss it. That is not what this debate is about. This debate is about whether 2241--something under our control--whether we as a Congress want to give to enemy combatants the ability to sue our own troops. There are over 160 lawsuits filed. It has made a nightmare of Guantanamo Bay. They are suing our own troops for medical malpractice, for DVD access, for better exercise. You name it, they have brought a lawsuit around it and it has clogged our courts and it has impeded the ability to run this jail. Let me tell my colleagues, in a classified and unclassified manner, the intelligence we have received from people housed at Guantanamo Bay has helped this country defend itself. The last thing we should be doing in an ongoing war is hampering our ability to defend ourselves because we are having two fronts--the military front and the legal front--that confers a status on our enemy that will undermine the ability of our military to defend us. This is a statement from one of the lawyers who has filed one of these 160 lawsuits: The litigation is brutal for the United States. Boy, was he right about that. We are having to call people off the battlefield. We are having to bring people off the battlefield into the new battlefield--the courtroom--to explain to some civilian judge why we think they are an enemy prisoner--enemy combatant that threatened the United States. It is huge. We have over 100 lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder for the U.S. military to do what they are doing. Boy, was that right. You can't run an interrogation with attorneys. You better believe that is right. We are interrogating to make sure we find out what the enemy is up to the best we can so they don't kill us. Now, if you want to take the interrogation process at Guantanamo Bay and put a bunch of lawyers in the middle of it, which we have never done in any other war--we never gave to the Nazis--then you are crippling the ability of this country to defend itself. It has nothing to do with fairness. You are creating a right never known in an armed conflict previously, and you will be criminalizing what I think is a war in a dangerous way. What are they going to do now that we are getting court orders to get more lawyers down there? They are going to shut off the interrogation and the information is going to stop. We have made mistakes at Guantanamo Bay. The Bush administration has taken legal positions that I don't think have been sound, but I believe we have finally got this right, and I am going to end now. I think after a lot of give and take and after a lot of court decisions, we are on the road to exactly where we need to be, and we have it right. Here is what we have in place: a system that is Law of Armed Conflict compliant, Geneva Conventions compliant, that realizes that fairness is part of being an American, but we are at war with people who want to kill us, and if they could, they would go back to it, some of them. Some of them are war criminals. Some of them are warriors who are assisting in the effort that had to be kept off the battlefield until they are no longer a threat. The military is doing a darn good job, and I stand by the men and women down there who are carrying out this job at Guantanamo Bay. I stand with you. I am proud to be your advocate in this body. You are getting good intelligence, consistent with lawful interrogation techniques. You are making decisions about who an enemy prisoner is, who a threat is to this country, in a sound way. Keep it up. Your work product will be going to court, so be mindful that what you do will get reviewed, as it should. Some have been let go--about 100-and-something. Most, as far as I know, have gone back and not been a threat. Every year, every person at Guantanamo Bay will get to have their case argued anew. They will get to make a case: I am not an enemy combatant. I am no longer a threat. I have no intelligence value. We do not want to misidentify someone. That has probably happened. This is a confusing war. I am not here to say there has not been someone sent to Guantanamo Bay who was a mistake. That is true of jails in Missouri, and it is true of jails in South Carolina. But you can't say there is no risk involved when you release somebody because I can tell my colleagues with certainty that 12 of the people we thought were no longer a threat, because we wanted to be fair and let them go, have gone back to try to kill Americans. There is no perfect outcome. You try to create a system that models who you are and is as fair as possible, recognizing you are at war. These war crime tribunals and commissions are going on during the war. The enemy combatant determinations are being made during the war. The reason we don't want to disclose how we found Shaikh Mohammed is because the war is going on, and we don't want to help people who are our enemies. So everybody caught and suspected by our military of being an enemy combatant involved in a global war on terror out of uniform supporting al-Qaida, they are going to get to go to Federal court, but we are going to let the military decide if they are a threat first, and the judges of this country can look over the military's shoulder and see if the military got it right in that case and if the procedures are fair. If you are convicted of a war crime at Guantanamo Bay, as Shaikh Mohammed may be or someone like him, you are going to get your day in Federal court because it is an automatic right. Whatever procedures are used by our military, which is modeled after our own process to try our own people, will go through legal scrutiny, the procedures and the outcome. So if you are worried as an American that we are putting people away forever without due process, don't worry about it. That is something to be concerned about. If you are worried that your country has gotten somebody in the global war on terror and we house them and nobody ever gets to look at the work product, don't worry about it. But if you are worried that the Congress is about to confer a right never known in any other war to al-Qaida that will undermine our security, you are right to worry. It is all about judges: What they should do and when they should do it--and I respect judges. It is all about the military: What should they do and when should they do it. God knows I respect them. We have the right balance. The military fights, they kill our enemies, they capture our enemies, and once they are captured, they are going to be treated by this country under the Law of Armed Conflict, consistent with our values and consistent with the Geneva Convention and consistent with the fact that we are at war. Everything they do when it comes to adjudicating these prisoners' status will be reviewed in our Federal courts after the military acts. Every person convicted will have their day in court, and the courts can look and see if they were treated fairly. That is what America should do. That is what we are doing. Please understand this war is different, and we have to make accommodations in a variety of ways, but this is a war. This is not a crime. These people we are rounding up throughout the globe wish to kill us all. Mr. President, I yield the floor and I note the absence of a quorum.

Mr. GRAHAM. Madam President, this is a session worthy of the Senate, worthy of the country, and I think incredibly important. I compliment Senator Kyl for what I thought was an excellent overview of what the law requires in this area, what the Geneva Conventions require, and how our country exceeds the requirement of the Geneva Conventions. To my good friend Senator Specter, there is no better champion of fairness and constitutional causes than Senator Specter. On this we respectfully disagree as to what the courts have said, and as far as the lay of the land of how you do this. I do not come to this body as an expert on the Geneva Conventions. I have had some time in the military as a military lawyer. I have a pretty good understanding of what is going on in some respects. But I ask every Senator to review what is going on and make their own judgments, ask their own legal friends if they are not lawyers, and try to be fair. We will all serve the country well if we will have a process that is constitutionally sound, that meets the test of fairness, and also recognizes we are at war and we are under great threat. So my basic presumption here as a Senator is I want to put infrastructure in place that recognizes the country is in an ongoing global struggle, and that as part of that global struggle we are dealing with people who are out of uniform. This is not a capital to conquer or a navy to sink or an air force to shoot down. This is a unique war in the sense that it is ideologically based, not a particular location we are trying to conquer and not a particular uniform we are trying to suppress. The global war on terrorism is about extreme versus moderation, and it is rearing its head all over the planet. So the battlefield in this war, from my point of view, is the globe itself, just as in World War II--the al-Qaida enemy. That is who we are talking about, people affiliated with al-Qaida, al-Qaida-like operatives who are going throughout the planet trying to kill civilians, rampantly trying to inflict harm on our own troops for an ideological agenda based on religion. They have no boundaries. They are not signatories to the convention. They do not play by the law of armed conflict. But even if they have a status in the law of armed conflict, we are trying to make sure their status is determined in the proper way. We realized in past wars that the Viet Cong and others operated outside of a uniform, in a guerilla-type fashion. Well, the terrorists operate out of uniform with absolutely no respect for any concept of the law of armed conflict. But once they are captured, if they are not killed, then it becomes about us, not about them. What does the United States do when it finds an enemy combatant, someone out of uniform, who is engaged in hostilities? See, I do believe 9/11 was not just a crime; this was an act of war. There are warriors all over this planet involved in a great struggle, in their minds, against moderate Muslims and every other religion, Christian, Jewish faith, and they have no place for the rest of us. If you solved the Jewish-Palestinian problem tomorrow, they would still be coming after us. The people at greatest risk are moderate Muslims in the Middle East who would tolerate different ways of looking at religion. So there is a global struggle, and when we find a person we believe to be an al-Qaida operative or a supplier of materials to al-Qaida, the first thing, if they survive the battle, is that our military must fight the war, and if they are captured, we have to determine their status. If there is a question as to whether the person captured by the American military is a lawful combatant, an enemy combatant, or nonbelligerent, who makes the decision as to what is the proper status for that individual? Well, under the law of armed conflict--and I do believe we are at war--it is the military. Under the Geneva Conventions, it is the military. Article 5 of the Geneva Conventions is very important. Because within that article, it informs the world at large, the signatories of the conventions, that a competent tribunal must be empaneled to determine the status. That competent tribunal panel all over the world is the military. The reason I object so vehemently to allowing habeas petitions to be filed to determine who is a military threat is we would be conferring what is a military decision, historically and under the law of armed conflict, and literally making it a civilian judge's decision where witnesses would be called and the judge would have a full-blown trial, with some very sensitive information. I do respect our judges, but with all due respect to our judges--I think most of them appreciate this--they are not trained as to who a military threat is to the United States. That truly is a military decision, and we are not making that up after 9/11. That has been a military decision under the Geneva Conventions article 5 since the conventions were drafted. So we are doing nothing new because we were attacked by an ``un-uniformed'' enemy. The question as to what Senator Specter has raised: What process do we have in place to determine if a person is truly an enemy combatant, a concept recognized by the Geneva Conventions, the combat status review tribunal to me is not only constitutionally sound, it goes beyond what the Geneva Conventions require. Senator Specter read a transcript of a case that went to the DC Circuit Court of Appeals. I want us to slow down for a moment and think about that. The case as to whether this person was an enemy combatant worked its way up through our Federal judiciary to the second highest court in the land. Under the law we passed last year, we allowed in every decision by the military that results in a finding that a person is an enemy combatant that that individual will be able to go to our court system, which is not required under the Geneva Conventions and is done nowhere else that I know of, and the court will review that case on two grounds: Were the procedures in place constitutional--Senator Specter mentioned this--and do you feel comfortable with the rebuttable presumption? Well, that has already been decided. In the Hamdi case of 2004, they specifically comment on the CSRT procedures. There is a preponderance of the evidence test required. The Government must prove by a preponderance of the evidence that the person in question is an enemy combatant. This is not a judicial proceeding, this is an administrative proceeding. It is like the EPA deciding an administrative question. But it is an important decision, because if you are an enemy combatant, you can be held for an indeterminate period of time. As long as you are a threat, you can be held as long as hostilities exist. The problem with this war is we do not know when the war is going to be over, so we want to build robust due process. Let me tell my colleagues without hesitation: We have let almost 200--I can't remember the number--go from Guantanamo Bay who had been captured and determined to be enemy combatants. Every year their status was reviewed because we do not want to keep people forever unless there is a reason to keep them. Three things are looked at in every person's case administratively: Do you have intelligence value still; are you a threat to the country; and has anything new come into the case file to say you were originally misidentified as an enemy combatant? Twelve of the people released have gone back to the fight, have gone back to trying to kill Americans and civilians. The question for this country and the world is when it comes time to decide to release somebody, there is risk to be had in that decision. Who should share that risk the most? Is it the civilian populations that have been the victims of these ``un-uniformed'' killers who have chosen to join these organizations or support them with no boundaries or should it be the people who take up these causes? I will tell you where I am coming down. If there is a doubt as to whether they continue to be a threat to our country and other peace- loving people, we are not going to turn them loose to fight us again. Every enemy combatant is not a war criminal. There is a separate proceeding at Guantanamo Bay to deal with those people involved in war crimes. If you start mixing the two, it will come back to haunt our country because we do not want to stand for the concept as a nation that every time an American soldier is captured in the battles of the future it would be appropriate to label them a war criminal. War criminals have to do specific things. Being part of an enemy force does not make one a war criminal. So the point I am trying to make is the administrative procedures in place at Guantanamo Bay have been found to be constitutional, but we added a provision last year that allows the court to review whether the tribunal's finding was supported by a preponderance of the evidence, and allowing a rebuttal presumption in favor of the Government's evidence. In other words, the DC Circuit Court of Appeals can look at the military's findings, not just the process, and they can say, as a panel of judges: Wait a minute, there is no competent evidence to support a finding that you are an enemy combatant. The court can say the case file is deficient. Not only was the process deficient--the process could be constitutionally sound--but it could result in an individual case where there was not sufficient evidence in the opinion of the court. The court does this all the time. The court will review administrative bodies' decisionmaking abilities throughout this land. It could be in the EPA, it could be in some other agency of the Government, where the court will be able to look at the hearing officer's findings and determine if there was sufficient evidence to support that hearing officer's finding. So going back to the transcript Senator Specter read, they did not tell him who it was. Well, maybe the reason he was not told who informed is because if we put out in a public setting our informant system, they will wind up getting killed. That is not an unknown concept in criminal law. So I would argue, there is information in these cases that will never be publicly disclosed because if we start publicly disclosing the entire network that led to this capture, we are going to get people killed and we will be less safe. That is why we have a classified portion. Shaikh Mohammed, the mastermind of 9/11, will be going through this process tomorrow, I believe, at Guantanamo Bay. Fourteen other high- value detainees captured in the global war on terror--very significant players in the al-Qaida movement--will be given a hearing at Guantanamo Bay, where the Government will have to prove the person in question-- Shaikh Mohammed--is, in fact, an enemy combatant as defined by our own regulations, consistent with the Geneva Convention. These hearings will be closed. I applaud the fact they are closed. The evidence will be redacted and given to the public and the press. But there will be a transcript available to be reviewed by the DC Circuit Court of Appeals, including the classified portion, in a classified setting. I think it would be a huge mistake to disclose the methods and operations and the sources that led to the capture of Shaikh Mohammed in an administrative proceeding. Our courts will look at that evidence in a classified fashion because Shaikh Mohammed will be allowed to have his case reviewed, after the military makes their decision, in Federal court--something never done in any other war. The reason we did this last year, with Senator Levin's help, was to make sure--because we do not know when this war will be over--there will be a check and balance on a military decision never known in any other war. I support that check and balance. I support the idea that every military decision regarding enemy combatant status will work its way through our court system. I vehemently object to taking what is a military decision and giving it to a civilian judge in a habeas forum, which is a complete Federal trial where the civilian judge makes the decision, not the military. Let the judges review the military work product. Do not give it to the civilian judges. Shaikh Mohammed will be classified one way or the other. I am sure he will be classified as an enemy combatant. But the DC Circuit Court of Appeals will get to review his case. What is likely to happen in his case, if you believe the press reports? If he truly can be proven to be the mastermind of 9/11, he will be tried as a war criminal because the activities he engaged in--of orchestrating a series of attacks on our country, where you hijack civilian aircraft to go into the World Trade Center and to attack Washington, DC--would be a violation of war, as well as a crime. So he could work his way into the military commission trial procedure. ``Enemy combatant'' is an administrative determination. Charging somebody with a war crime is a totally different process. If the Government charges him with a war crime in a military commission setting, in a military commission format at Guantanamo Bay, they will not be allowed to give to the jury classified information proving he is guilty of what we are accusing him of doing, unless they share it with the accused. That was my objection to President Bush's proposal. I do not want to create a precedent where one of our soldiers could be tried in a foreign land, accused of being a war criminal, and never be given the evidence and be able to defend against what would be a criminal proceeding resulting in death or long-term imprisonment. So for Shaikh Mohammed or anyone else, if the Government decides to use classified evidence to find someone guilty, they get a chance to defend themselves because we are talking about a punishment that could include execution. There are two different concepts. The rules are different. What goes on in a military commission trial is consistent with what we do with our own troops under the Uniform Code of Military Justice when we try them for crimes. One is an administrative determination that exceeds the Geneva Convention requirements. The other is a criminal proceeding under the Law of Armed Conflict that I believe will be constitutional and the courts will say is a process worthy of this country. As to what the law is, I say to my good friend, Senator Specter, I believe the Rasul case was based on this concept. The Department of Justice argued that Guantanamo Bay was outside the jurisdiction of the United States. If that were the case, if they won that argument, the constitutional provisions of habeas would not apply, nor would the statutory provisions. But Rasul was about a statute, not about the constitutional provisions, in my opinion. Here is what the court said: They rejected the Bush position that the laws of the United States do not apply to Guantanamo Bay because of the lease and because of the relationship we have to that facility. Do you know what. I think the court was right. I think that was an ill-advised position by the Bush administration. So once Rasul was decided, and they rejected Eisentrager's statutory interpretation test, the Rasul court, in my opinion, said since it is within the United States, and Congress has not spoken to this in 2241-- Congress has never said because you are an alien enemy combatant at Guantanamo Bay you cannot have a 2241 right--we are going to confer that right until Congress decides otherwise.

Mr. GRAHAM. Yes, I will.

Mr. GRAHAM. Will the Senator yield?

Mr. GRAHAM

Mr. GRAHAM. No. This is an administrative hearing. The enemy combatant status determination is not a criminal decision. It is, in an armed conflict, an administrative decision where the procedure is set up. I will get you the regulation and we will introduce it, but it is article 5 on steroids. It has presumptions, rebuttable presumptions, and you have an annual review board on what should be determined to be a enemy combatant. You have a new hearing every year on whether new evidence came in, whether you are still a threat to the country, and whether you have intelligence value. Two hundred people have been released at Guantanamo Bay because they have gone through the process and the military determined they are no longer a threat. Twelve of the two hundred have gone back to killing Americans. There is no perfect system. We are trying to be fair. God knows we want to be fair, but I tell you what, in close calls between letting someone go who the military thinks is a member of al-Qaida and killing other Americans and innocent people, I am going to make sure they stay in jail and let the judges determine if we have done it fairly. I will not sit on the sidelines and open the gates to people who have been caught in the process of aiding the enemy or becoming the enemy just because we are trying to create new rules for this war that we have never had in any other war because some people don't like Bush. Bush made a lot of mistakes, but this war is going to go on long after Bush is gone. If you let these people out of jail, at least 12 of them are going to come back and kill you. With that, I must leave. We will continue the debate.

Mr. GRAHAM. Mr. President, I would like to thank Senator Lieberman for working me into the line here. What I am rising to talk about is a very important issue for how we conduct this war, for how the law works in a time of war, for the values Americans would like to embrace when we are under siege as a nation, and try to give my explanation to what Senator Specter's amendment would do and why I oppose it so vehemently. To give a little background and history of this issue, at least from my perspective--and I would ask every Senator to look at this very closely because this is a very important concept we are talking about-- the Guantanamo military installation to house enemy combatants, people determined by our military to be enemy prisoners of war out of uniform, meeting the Geneva Convention's definition of an enemy combatant--the administration chose Guantanamo as the jailing site. There were prisoners there who brought actions in our Federal court, arguing that their confinement needed to be reviewed by Federal courts. The administration took the position that Guantanamo was outside the United States. They lost. I think the administration should have lost. To me, Guantanamo, because of the lease and the relationship the U.S. military has to that installation, is clearly part of the infrastructure of the United States. The reason they made the argument is it is a long-held concept in law that habeas rights do not apply to people overseas, that our constitutional provisions granting to American citizens the right to bring a habeas petition when they are confined does not apply extraterritorially. The administration lost on the argument that Guantanamo was outside the United States, and the Federal court said: Okay, it is within the United States. What habeas rights would attach to someone at Guantanamo Bay? Here is where Senator Specter and I dramatically differ. Senator Specter reads the Rasul case to say that someone confined at Guantanamo who is a noncitizen enemy combatant has a constitutional right under our Constitution to petition Federal courts, to have a district court judge review their confinement. I think that is completely wrong. The D.C. Court of Appeals recently held in a 2-1 decision that people detained at Guantanamo Bay do not have constitutional rights under our Constitution to petition for habeas. Rasul was about 2241, section 2241 of the U.S. Code, a congressional enactment that creates statutory habeas rights. That statute has been amended in many different forms--restricting habeas, granting habeas, allowing States appellate procedures postconviction relief to be substitutes for habeas. The Supreme Court said: Since Congress has not spoken as to whether detainees at Guantanamo will be covered by 2241, we are going to allow a case to go forward under that statute until Congress tells us otherwise. It was Justice O'Connor who was suggesting to the Congress we need to speak. The administration at the time of the Rasul case had no infrastructure in place to give due process to someone who is accused of being an enemy combatant. Justice O'Connor, in another case--I don't remember the name now--said: What you need to look at is Army Regulation 190-1, which is a procedure to guide military members how to determine who an enemy prisoner may be from a civilian who is an innocent person involved in war. So what the military did, after the second Supreme Court case, was come up with a Combat Status Review Tribunal. Now the Combat Status Review Tribunal is the due process right given to suspected enemy combatants. To me, 9/11 was an act of war. It was also a crime, but it was an act of war. I believe the people housed at Guantanamo Bay are warriors, not common criminals. They will be afforded the due process rights of wartime law of armed conflict, not domestic criminal law. What is the law of armed conflict when it comes to status? Article V of the Geneva Convention says that if there is a question of status, the country which houses the person, is in charge of the person, will conduct a competent tribunal. A ``competent tribunal'' all over the world is a military proceeding where the military of that country will determine if the person in front of them is a civilian, uniformed person, or enemy combatant. The Combat Status Review Tribunal is well beyond the due process requirement of the Geneva Conventions. What happens at the Combat Status Review Tribunal, first of all, is that the enemy suspect prisoner will go before a panel of three military officers trained in who presents a military threat--an intelligence officer, a combat officer, and a legal officer. I think tomorrow or Friday, the 14 high- value detainees who have been in CIA custody will go through this process. The question for this Congress is, Do we want the military to make the initial decision on who an enemy prisoner is based on what a military threat is to our country and the expertise the military has in determining if this person is an enemy prisoner, enemy combatant, or do we want to give that to a district court judge who has absolutely no training? Enemy prisoners during World War II were not allowed to file habeas petitions and come into our Federal courts and sue the military during a time of war to be released. Chief Justice Jackson said: Wait a minute. This is not our job. We are not trained for this. If we allow enemy prisoners detained by our military during a time of war to have access to our Federal courts, Federal judges are taking over a job the military is trained for and we are not trained for. Here is what Justice Jackson said in the Eisentrager case: We are cited to 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 in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of this Constitution extends such a right nor does anything in our statute. So the Eisentrager case in 1950 clearly said habeas does not apply to enemy prisoners. I cannot find the language--it talks about why it is a bad idea--but it is forthcoming. So as early as 1950, the courts rejected enemy prisoner petitions in the Federal court. Now, the question for Congress is, after 9/11--5 years later--do we as a Congress want to confer onto people classified by our military to be enemy combatants a Federal court right never known in the law of armed conflict at any other time in our history? Do we want to be the first Congress in the history of the United States to take away from our military the ability to determine who a military threat is and make literally a Federal court trial out of that decision? There had been 160 habeas petitions filed before we acted last year. Let me tell you, they have sued our own military for everything imaginable: the quality of the food, DVD access, not enough exercise, judge-supervised interrogation. Some of the people who have brought these cases are accused of killing Americans in the most brutal way. One of the lawyers, Mr. Michael Ratner, who filed habeas petitions on behalf of enemy combatants held at Guantanamo Bay, publicly stated: The litigation [for the United States]. . . . It's huge. We have over one hundred lawyers now from big and small firms working to represent these 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're getting court orders to get more lawyers down there? It is clear that it does--according to one of the lawyers representing detainees--make it very difficult for the military to do their job when it comes to intelligence gathering. I will have an unclassified summary to put into the Record at the end of my time that talks about the information gained at Guantanamo Bay. But here is what Justice Jackson said would be the real big mistake for the Federal courts if you start granting habeas petitions and give enemy prisoners a right to sue our own people about their status in a time of war: The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is 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 at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States. Was he prophetic? These 160 cases have created a nightmare for the military at Guantanamo Bay. Medical malpractice suits have been filed, $100 million money-damage lawsuits have been filed. It has been a legal nightmare. So what I am trying to persuade the Congress to do is not grant in statute a right never given to any other enemy prisoner during any other war, because it is dangerous to do so. What did we do to accommodate the unique needs of this war, a war potentially without end? For the first time in the history of our country, we are allowing Federal courts to review whether a person has been properly classified as an enemy prisoner. Once the military decides Shaikh Mohammed's status Friday, the mastermind allegedly of 9/ 11, can you imagine 5 years after 9/11 the Congress would open up any Federal courtroom that a lawyer could shop to find--whatever judge the lawyer could find in the country--and allow Shaikh Mohammed to sue our own military about his status, creating a nightmare zoo courtroom trial, bringing people from all over the world to determine his status, where the judge would have a say, not the military? That would be a mistake of monumental proportions. What will happen is Shaikh Mohammed, in a classified setting, will have evidence presented by the Government to show he is an enemy combatant. He will have a chance to rebut that. When his case has been decided, he will have an automatic right of appeal to the DC Circuit Court of Appeals, where the DC Circuit Court of Appeals will look at the military decision in question and find out whether two things occurred. Were the due process rights given Shaikh Mohammed and other enemy combatant suspects consistent with our own Constitution? Secondly, was the evidence introduced sufficient to support the finding he is an enemy combatant? That is the proper role for a judge. That is what judges are trained to do. It would be a monumental mistake to allow a habeas petition to be filed, where literally you could go to any court in the land and have a full-blown trial, calling people off the battlefield to make the case that this person was an enemy prisoner and give that decisionmaking ability to a judge not trained in who is a military threat to our country and take it away from the military. That is why I am so passionate about this issue. I do believe in due process at a time of war. I have been a military lawyer for well over 20 years. I believe our country should adhere to the Geneva Conventions, that we should be a standard-bearer for what is right. But we should not cripple our military's ability to defend us in a way that makes absolutely no sense. We should not put Federal judges on the frontlines in deciding who is a threat to this country, when the military is trained to do that. Let the judges look over the military's shoulder and in a proper way, consistent with their training. Now, what is going to happen? The case is going to go to the Supreme Court soon. If I am wrong, I will take the floor and say so. Senator Specter has a belief there is a constitutional right to habeas. I do not believe that. But if the Court holds so, then I would be wrong. I would argue that the DC Circuit Court of Appeals is an adequate substitute for habeas, but that will be up to the Court. All I am asking is to allow the work product of last year that has gone before the DC Circuit Court of Appeals that has been upheld to go through the system. I will gladly sit down with Senators Specter and Levin to see if we can work on better due process rights for people accused of being an enemy combatant. I think we can do that as a Congress without turning that decision over to Federal judges. It is a very dangerous thing we are proposing to do, to take away from the military to determine who a threat is and to give it to a Federal judge. Finally, I would like to say: I know this is a war without end. Two hundred-and-something people have been released from Guantanamo Bay because they get an annual review board to look at their status anew. We do not want to keep people who have been misidentified who are not a threat. But we do not have the choice of ``try them or let them go.'' This is a war, and we can keep warriors off the battlefield as long as they are a threat. When it comes time to determine who should bear that risk, who should bear the risk of letting someone go at Guantanamo Bay--the innocent civilian populations of the world who have been a victim of people out of uniform wreaking havoc or the people who started this whole mess to begin with--if you are going to proportion risk, I think it should fall on the people who created the problem to begin with. Twelve people have been released from Guantanamo Bay under the annual review process of the 200-and-something. Twelve have gone back to the battle. Three have been killed. So you make mistakes both ways. I don't want to hold one person down there who should not be held, but I don't want to let anybody go who is a threat to our country because we are at war. Due process rights attach to people in war, but we cannot criminalize what has been an act of war beginning on September 11, 2001. The people down there will have their day in court. They will have a chance to have a say about who they are and what the facts are. But I do believe there are people down at Guantanamo Bay who are warriors. If they ever got out, they would try to kill us again.

Mr. GRAHAM. Yes, sir.

Mr. GRAHAM. The Senator is absolutely right; any American citizen. The Padilla case is the best example you could give. Padilla was charged as an enemy combatant, a U.S. citizen. It is true American citizens in the past have been held indefinitely as enemy combatants. But I do believe they should have access to our courts as a member of citizenship. And they would have a constitutional right to seek relief from a Federal judge to determine whether the military or law enforcement officers make that decision. We are talking about people in the same status as the Germans and the Japanese. There was a reason the thousands of enemy prisoners housed in the United States never had access to our Federal courts. It is what Justice Jackson was saying. The Federal judiciary would make a mockery of the military's ability to run the war if you turned every military decision into a Federal court trial as to who an enemy prisoner is. Justice Jackson, in the most eloquent fashion, told us what could come if you conferred these rights on enemy prisoners. Here is what is odd. If I am a lawful combatant, if I am captured tomorrow as a member of the uniformed services of the United States, I do not have any rights under the Geneva Conventions to go to the host country's judiciary. We are creating, for unlawful combatants, enemy combatants, a right greater than someone who is captured as a lawful combatant. Under the Geneva Conventions, there is no right to go to a court in any land to ask to be released. But in America, if you are an unlawful combatant, we are giving you your day in Federal court, after the military acts, which I think is an accommodation for the fact that this war is different. It is not lost upon this Senator this war is different. There will be no signing on the ``Missouri.'' I do not know when this war is going to end. I do not want an enemy combatant decision to be a de facto life sentence without robust due process. But I do believe, if the choice is between letting them go or having them die in jail, if they are still a threat, let them die in jail. I do believe every enemy prisoner is not a war criminal, and the choice for the country is not ``let them go or try them.'' Because that is a false choice in the law of armed conflict. It would not serve us well to say that every American captured in the next war is a war criminal because they are performing their duties. You only confer war criminal status on someone who goes outside the law of armed conflict. So we are making some decisions for the ages. I am all for due process. I am all for scrutiny and transparency because I want my country to win the war not changing whom we are. But I do not want us to fundamentally change the relationship between the military and military threats. Our judges have a role to play. The Congress has a role to play. The military has a role to play. Keep everybody in their lanes, and this will work.

Mr. GRAHAM. The Senator is correct in two fashions. It says no military commission can try an American citizen. A military commission at Guantanamo Bay cannot, as a matter of law, try an American citizen, even if they are an enemy combatant. Someone from America could join al-Qaida, but they are going to be tried in our Federal courts if they are caught. What we are trying to do is have a military commission consistent with the Uniformed Code of Military Justice to try people. The difference between now and Nuremberg, I say to the Senator, is the war is still ongoing. The reason we are not going to release all the information as to why Shaikh Mohammed is an enemy combatant is because that is very sensitive information. We will give a summary to the public. And the courts will get to review that decision in full in a classified setting. But I cannot stress to you enough we are at war. The last time we had a Federal trial where somebody tried to blow up the World Trade Center in the early 1990s, some of the information in that courtroom setting that had to be released wound up in a cave in Afghanistan. I will talk about that later. We are trying to balance the need to be safe and the obligations we have under the law of armed conflict. I think we have struck a good balance. If I am wrong, the Supreme Court will tell me. Please, just to my fellow Senators, let this case go to the Supreme Court, see what they say, and we can fix it if we need to. That is all I am asking.

Mr. GRAHAM. I am the biggest advocate that an American citizen such as Mr. Padilla should be tried in Federal court. The man who was caught working with the Taliban in Afghanistan was in Federal court. Moussaoui was in Federal court because we didn't have the Military Commissions Act. An American citizen will be tried in Federal court with all the rights of an American citizen available to them.

Mr. GRAHAM. Well, that is a very good question, and I think that is something we actually need to sit down and look at, that situation where you are not a citizen, but you are here on a legal status. I would be, quite frankly, very comfortable to clarify that, if anyone ever finds themselves in that category, to say, no, you are going to have all the rights of an American citizen. What I am trying to do is make sure that we don't change 200 years of history. The people who assassinated President Lincoln, within 30 days they were caught, tried, and executed in a military commission format. We have had American civilians tried in military commissions in times of war, but they were reviewed by our Federal courts. Some of the German saboteurs who landed during World War II, I think one or two of them actually were American citizens who left to go back to Germany to aid the enemy. They got tried by military commissions, and the Supreme Court reviewed their case. What I am saying is that an enemy prisoner, a noncitizen, since time began in our country and in every other country, has been treated under the law of armed conflict, not domestic statutes. That is a distinction of great significance, and we don't need--the due process rights these enemy combatants, noncitizens, have are greater than the Geneva Conventions require, and every enemy combatant had their day in Federal court but in a way consistent with what judges are trained to do. I don't believe it is in our national interests during ongoing hostilities to take away from the military the ability to classify who they believe to be a threat, what status that person has acquired based on their activities. I do believe the courts can look at every case and see: Was due process afforded? Did the evidence support the finding? That, to me, is the magic combination, and habeas destroys that combination.

Mr. GRAHAM. It is a great area to discuss. I thank the Senator. I yield the floor.

Mr. GRAHAM. I would be honored to respond to my friend from Pennsylvania.

Mr. GRAHAM. No, sir, I am not.

Mr. GRAHAM. I have been told that the order the Senator is talking about was implemented in the Rasul decision, and it would be a correct statement of Mr. Wolfowitz to make. Rasul said that habeas rights attached to Guantanamo Bay detainees until Congress says otherwise, and that is the difference we have. I read Rasul to say, since Congress hasn't spoken under 2241, Guantanamo Bay is within U.S. jurisdiction and the statute would apply to anybody held at Guantanamo Bay. It is not an overseas location. Until Congress speaks, under 2241 you will have the right. Congress has spoken. We spoke last year. We took 2241 and changed it. We excluded noncitizens and any prisoners from the habeas rights under 2241 and, quite honestly, that issue has gone to the D.C. Circuit Court of Appeals, and we won last week.

Mr. GRAHAM. OK.

Mr. GRAHAM. If I may respond, I think it is not remotely fair to say that the Department of Defense has conceded that habeas corpus rights should be given to detainees at Guantanamo Bay. Once Rasul was decided and the Government lost, that it was outside the jurisdiction of the United States, the Rasul case said: Until Congress acts, you will have a habeas right. The administration has come to me and other Members of this body since that decision and has been begging us to address 2241. The Supreme Court, in three separate decisions, has said Congress needs to get involved. The administration's theory was, there is no room for Congress in the courts. Here is where the Senator and I have been partners. I have always believed the executive branch has to collaborate with the Congress, and they have been hard-headed about this and they wound up losing in court. They lost on whether it was outside the United States. Once the court ruled 2241 applied, the DOD had no other choice but to tell people: This is a statutory right. They were telling people at Guantanamo Bay: This is your statutory right. They were coming to me and other Senators saying: Please change 2241 because it is hampering the war effort. That is exactly where we find ourselves. We took the input of the administration, we voted last year, we stripped habeas from 2241 where district court judges could make military decisions, and we are replaced in the appeals process where Federal courts do look at what the military does after they have decided. I think not only did the D.C. Circuit Court of Appeals uphold that as a proper thing to do but the Supreme Court will also. So my belief is that it was our decision as Congress as to whether to give these enemy prisoners habeas rights, unlike any other war. We decided with Rasul we didn't want to do that. I think it is the best decision we have ever made. If you had asked this Congress on September 30, 2001: Would you want to create a Federal court action for any al- Qaida member caught to go into Federal court and bring lawsuits against our own troops alleging not enough exercise, bad DVD access, you name it, we would have said no. That would have been crazy. Why would we want to give this group of people who are trying to kill us all rights that we didn't give the Japanese and the Nazis who were trying to kill us all? So now we find ourselves in Congress filling in the gap that the court found. The Congress has spoken. We told the courts, D.C. Circuit Court of Appeals: No habeas rights under 2241. We substituted another procedure that I think makes sense, and the court found out that we did it in a constitutional manner, and I think we are going to win at the Supreme Court. But having said that, if there are other ways to improve due process where the Congress can make this CSRT process better, count me in. But I am not going to sit on the sidelines and watch the Federal courts do something they are not trained to do before Congress blesses it. If the Senator is right that the Supreme Court says apart from 2241 an enemy prisoner, noncitizen, has a constitutional right to habeas, then I would be wrong. I would argue that our procedures under the D.C. Circuit Court of Appeals method of going to challenge the military is an adequate substitute. But I am firmly convinced that our courts are going to say there is no constitutional right for these prisoners, like there was none for Japanese and German prisoners, and that Congress has made a good decision to take the Federal courts and put them behind the military, not in front of the military.

Mr. GRAHAM. All I can tell my colleague is that issue went up to the D.C. Circuit Court of Appeals 2 weeks ago and they said just as clearly as you can say it that there is no constitutional right for a noncitizen enemy prisoner classified as such by our military during hostilities to come into our Federal courts. Just like Justice Jackson said in 1950, that would be a disaster. I just can't believe any Federal court is going to say that Sheikh Mohammed, the mastermind of 9/11, who is an al-Qaida member, gets more rights than the Nazis. I just don't believe they are going to do that. If I am wrong, I will come to the floor of the Senate and say I am wrong. But I think I am right. The D.C. Circuit Court of Appeals agrees with me, and I believe we are going to win at the Supreme Court, if we can let these judges look at something without changing it every 30 days. Let's give this a shot and see what happens. We will know soon. I apologize, but I have to go.

Mr. GRAHAM. I can tell you that the Court will soon tell us. If I can give you what I think is the right answer, the combat status review tribunal, as to whether they provided adequate due process is on appeal now to the Supreme Court. The Supreme Court will soon tell us not just about war crimes legislation but about the CSRT provisions and whether they are constitutional. I argue we are going to win on that one because 190-1 of the Army manual was the model that set up the combat status review tribunal. What right does a person have under the Geneva Conventions, in a time of war, when it comes to the question of status? Article 5 says competent tribunals--and all over the world that competent tribunal is not a Federal judge or the equivalent in another country, it is a military tribunal. If the Court rules the combat status review tribunal doesn't afford due process, I will sit down with you and others to make it comply to the Court's decision. I have no desire to take somebody from any part of the world and put them at Guantanamo Bay if they should not be there. That doesn't make America better or stronger. I do believe, contrary to the laughter in the courtroom, that the people best able to determine whether an enemy prisoner is a threat to our country or, in fact, an enemy prisoner is not some circuit judge or district court judge anywhere in America who was never trained in this, but military officers who are trained in making those decisions. They are the ones I trust. They have done it in every other war; they should do it in this war. I am willing to have their work product looked at by the Federal courts, and that is going on right now. We will soon know the answer to that question. Are CSRTs constitutional? If not, we will fix them. I hate to leave. I have enjoyed this debate.