Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I will be glad to get a letter from the prosecutor at the military commission about the procedures. I will bet $100 he will say they are great. The point is, we are talking about two different things. My amendment is designed to get us back to what we have been doing for a couple hundred years. What I am concerned about is that an enemy prisoner, not someone charged with a crime, is having access to Federal courts to sue our own troops about the food, about the mail, about whether they should have Internet access, about whether they should get DVDs. There are 160 lawsuits now in Federal court suing to stop interrogations unless a Federal judge oversees the interrogation. Never in the history of the law of armed conflict has a military prisoner, an enemy combatant, been granted access to any court system, Federal or otherwise, to have a Federal judge come in and start running the prison and determining what is in bounds and what is out. The military is the proper body to determine who an enemy combatant is and how to run a war and how to interrogate people, not Federal judges who are not trained in the art of military science. Here is what these lawsuits are about. Here is why I am so adamant that we stop it. No. 1, what are we stopping? We are not stopping a constitutional right that exists under our law for an enemy prisoner in our hands to be able to question their detention through Federal court action. There is no constitutional right under habeas corpus in American jurisprudence for an enemy prisoner to go to Federal court and challenge whether they should have Internet access or DVD access, all the other things they are suing the people for, medical malpractice. That has never been the case. None of the Germans in World War II who were housed in the United States, and the Japanese prisoners, were allowed to go to Federal court and get a Federal judge to come in and oversee their treatment. We don't allow that. That is not part of the law of armed conflict. Habeas petitions are not coming from the Constitution. They are coming from an interpretation of section 2241. The Rasul case was a Supreme Court case that said that contrary to the Government's argument, Guantanamo Bay, Cuba is in the effective control of the United States, even though it is not part of our own territories. Because of the lease arrangements and because the Department of Defense is an agency covered by the jurisdiction of the Federal courts, the argument that it is outside the jurisdiction of Federal courts because of its location was defeated. That led to the decision that since you are within the control of our jurisdiction at Guantanamo Bay, section 2241 applies unless Congress says otherwise. Here is the question I will ask every Member of this body: Does the Senate want enemy terrorists, al-Qaida members being detained at Guantanamo Bay, to have unlimited access to our Federal courts to sue our troops about the following: A Canadian detainee, who threw a grenade that killed an American Army medic in a firefight and who comes from a family of longstanding al- Qaida ties, moves for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. That was a lawsuit brought in a Federal court by a person who blew up one of our medics, who wanted a Federal judge to supervise his military interrogation. If we start doing that, we might as well close Guantanamo Bay down. These are not people being charged. They are being kept off the battlefield because they have been captured on the battlefield, and they have been labeled enemy combatants. The procedures I am trying to get in place will comply with the law of armed conflict. Twelve of the people have been let go at Guantanamo Bay. Over 200 in total have been let go. They have been found no longer to have intelligence value or to be a threat to the United States. Once those two determinations are made, they are let go, even if they are an enemy combatant. Twelve of them have been recaptured. A couple of them have been killed. They have gone back to the fight. The people at Guantanamo Bay are captured as part of the war on terror, and some of them may be running. The point is, when you join al-Qaida, whether you stand or fight or run, you have lost your rights to be considered anything other than what you are--an enemy combatant taking up arms against the United States. Here is my message to the terrorists: If you join a terrorist organization taking up arms against the United States and you get involved in combat, you are likely to get killed. If you get captured, you will be taken off the battlefield as long as necessary to make sure our country is protected from you. Under the law of armed conflict, there is no right to try them or let them go. Shaikh Mohammed, the mastermind of 9/11, is in U.S. control right now. He is not a criminal, but you have to charge within 90 days or let go. He is an enemy combatant, the mastermind of 9/11, and 9/11 was an act of war. It was not a crime. The law of war needs to apply. Anybody who suggests that Shaikh Mohammed should have unlimited access to the Federal courts to get a Federal judge to supervise his interrogation is fundamentally changing the law of war and making us less safe. He will not be let go. If you don't want to be captured and detained for a long time, don't join al-Qaida. Listen to this: Kuwaiti detainees seek court orders that they be provided dictionaries in contravention of GTMO's force protection policy and that their counsel be given high-speed Internet access at their lodging on the base and be allowed to use classified DOD telecommunications facilities, all on the theory of the right to counsel. A motion by a high-level al-Qaida detainee complaining about base security procedures, speed of mail delivery, and medical treatment, seeking an order that he be transferred to the least onerous conditions at GTMO and asking the court to order that GTMO allow him to keep any books and reading materials sent to him and to report to the court on his opportunities for exercise, communication, recreation, and worship. A man captured on the battlefield, engaged in a war against the United States, because of 2241's interpretation where Congress hasn't spoken, is petitioning a court to supervise his opportunity to exercise, communicate, recreate, and worship, and where he should be housed. In other words, Federal judges are going to determine how we run the war, not the people fighting the war. Never in the history of warfare has an enemy prisoner been allowed to do such things. It didn't happen in World War II. Why? Because we have a right, as a country capturing enemy prisoners, to take them off the battlefield. They are not common criminals. We have an obligation to treat them humanely under the law of armed conflict. An emergency motion seeking a court order requiring GTMO to set aside its normal security policies and show detainees DVDs that are purported to be family videos. One hundred sixty of these cases, another 40 or 50 suing our own people, one for $100 million, suing the doctor who treated the guy. This is an absurd result. I proudly stand before the Senate asking the Senate to fix this absurd result. The court in Rasul is asking the Senate and the House, do you intend for al-Qaida terrorists, enemy combatants, to have access to Federal courts under habeas rights to challenge their detention as if they were American citizens? The answer should be, no, we never intended that. That is what my amendment does. It says to the courts and to the world that an enemy combatant is not going to have the rights of an American citizen, and we are going to stop all these lawsuits undermining our ability to protect ourselves. What have I done in place? I have stopped a procedure that has never been granted before because it is totally out of bounds of what we need to be doing and have done. I allow Federal courts to review each enemy combatant's determination at the Circuit Court of Appeals for the District of Columbia to look at whether the combat status review tribunal, the group deciding whether you are an enemy combatant, followed the procedures and standards we set up. What do the Geneva Conventions give our own troops, if our own troops fall into enemy hands under the Geneva Conventions? If there is a question about their status, it says a competent tribunal has the ability to challenge. The combat status review tribunal that we have set up at Guantanamo Bay since August of 2004 is Geneva Conventions protection on steroids. They have a full-blown hearing, a right every year to have their status redetermined. And what do you look at? Were they an enemy combatant engaged in armed conflict against the United States? Do they present intelligence value or a continuing threat to the United States? That determination is made every year, a full-blown adversarial process way beyond what the Geneva Conventions require in such situations. We have added to that Federal court oversight to see if the people at Guantanamo Bay are following the rules and procedures set up in accordance with the law of armed conflict. Senator Bingaman is a very fine man, a fine Senator. I deeply disagree with him. And any letter that anybody writes, I have my own letters from JAGs. It is a simple proposition. His amendment allows unlimited habeas petitions regarding detention to come to the Circuit Court of Appeals for the District of Columbia. The type lawsuits that we see now will continue: A motion by Kuwaiti detainees unsatisfied with the Koran they are provided and want another version, a filing by a detainee requesting a stay of litigation pending related appeals, an emergency motion by a detainee accusing military health professionals of gross and intentional malpractice. They are swamping the system. Americans are losing their day in court because somehow we have allowed enemy combatants, people who have signed up to kill us all, to take us into Federal court and sue us about everything. That is not part of the law of armed conflict. Our troops are not going to get that right if they are in the hands of someone else. What I am asking for is for us to treat enemy combatants humanely and in accordance with the law of armed conflict. I am asking for us to provide due process in accordance with the Geneva Conventions and then some. I am even allowing a Federal court review of the process down there. But I will not now or ever sit on the sidelines and give rights to enemy combatants who have been caught on the battlefield in the war of terror the unending, endless right to think of every reason in the world to take our own troops into court. We will keep having this debate and we will keep having this argument until the cows come home because I am not going to sit on the sidelines and watch that happen. There has never been a constitutional right for that to happen. Section 2241 is what we are talking about here. Congress wrote it. Congress has restricted habeas rights for illegal immigrants. Congress has restricted habeas rights of its own citizens numerous times because these petitions can get out of control and take over a courtroom. The question for this Congress is whether you, after 9/11, want to give enemy combatants detained at Guantanamo Bay who have been captured on the battlefield the unlimited right to go into any Federal court in this land and to sue over everything they can think of. If you do, then we have made a huge mistake in the war on terror. I suggest that you say no to Senator Bingaman's amendment and get us back to where we have been for 200 years. Apply the law of armed conflict. Once you have been determined to be an enemy combatant, you get the due process of the Geneva Conventions. We have done that and then some to allow a limited Federal court review, more than anybody has ever gotten in history. We get back on track. And when it comes to military commissions and those who will be charged with the law of armed conflict violations, I am working with Senator Levin and others to try to find a way to get a Federal court appeal right. How much time do I have, Mr. President?

Mr. GRAHAM. I agree.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I send an amendment to the desk.

Mr. GRAHAM. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GRAHAM. Mr. President, at this time I would like to, in conjunction with my colleague Senator Levin, lay down this amendment, give a brief explanation of what it is designed to do, and I think we will vote on it tomorrow after we vote on Senator Bingaman's amendment. No. 1, Senator Levin and his staff have been working on this, along with Senator Kyl and other Senators, for the last couple of days. I do not know how to say it other than it has been a lot of fun. It has been tough at times, but I think we have come out with a product that the Senate can be proud of, and hopefully the country can be proud of when it comes to how to treat detainees at Guantanamo Bay. Here is what we are trying to do. With my amendment, which we voted on last week, the concern I had was we were about to criminalize the war because of the Rasul case. Section 2241 of the habeas statute had been interpreted not to prohibit foreign alien enemy terror suspects from seeking habeas petitions in Federal court about their confinement and detainment as enemy combatants. The Rasul case was the result of the Supreme Court rejecting the Government's argument that Guantanamo Bay was outside the jurisdiction of the Federal court. They ruled that Guantanamo Bay was constructively within the jurisdiction of the Federal court, and in that opinion basically challenged the Congress. Now that we have decided that, since there are no due process rights in place at the time, we are going to provide habeas petitions to these detainees until Congress comes in and says otherwise. My amendment was, Congress being on record that the 2241 habeas statute has been used to provide habeas corpus rights by Congress to American citizens, that we do not intend for an enemy combatant or foreign national--someone captured in conflict against the United States--to have habeas rights before our Federal courts to complain about their confinement and their detention. In other words, we are not going to allow enemy prisoners of war the right to go into civilian court and start challenging their detention. The military commissions are operating at Guantanamo Bay with a different purpose. They are going to try people who are charged with violations of the law. Right now there are about 10 or 15 cases. There are almost 500 people who are being detained as enemy combatants. Last week, when Senator Levin was arguing with me about my amendment, I think he made some very good points. By working with him and others, Senator Kyl and others, we have addressed some of the weaknesses in my original amendment. Senator Bingaman will have another amendment, and I think we deal with some of his concerns, too. I do see this as a win-win. What we are trying to do, instead of changing what has been the rule of law for 200 years in terms of enemy prisoner rights, is create a process that not only mirrors the Geneva Convention but goes well beyond the Geneva Convention. An enemy combatant is a legal term of art. It applies to those people involved in hostilities against the United States but are not part of a Geneva Convention-recognized Army. The Geneva Convention uses the term ``irregular combatant.'' We have case law in the United States talking about enemy combatant. It deals with German saboteurs; those people who commit hostilities are engaged in acts of war but shed the cloak of being part of a uniformed force. So the term ``enemy combatant'' has been well recognized in our law. What we do with an enemy combatant, once a person has been determined to be an enemy combatant, we can detain them similar to a prisoner of war. The Geneva Convention says if there is a question about whether a person's status is rightfully conferred whether you are a prisoner of war, enemy combatant, irregular combatant, or a civilian who has done nothing wrong, the Geneva Convention requires the host country to have a competent tribunal set up to determine status. Since August of 2004, at Guantanamo, the Combatant Status Review Tribunal system has been in place. In my opinion, it is Geneva Convention article 5 tribunals on steroids. It gives a right to confront. It gives adversarial process to the suspected enemy combatant. It also allows a yearly review of an enemy combatant status. What they are looking at, at Guantanamo Bay, is whether a person was engaged in hostile acts against the United States in a regular fashion, whether the person has intelligence value to the United States or poses a threat. If one or two of those three conditions are met, they can be detained at Guantanamo Bay, and every year there is a reevaluation. We have had some people caught up in the net, and we found later probably did not have all three requirements and they have been let go. We have also had about a dozen people caught up in the net in the war on terror who we thought were no longer a threat to the United States. We released them and a dozen at least have gone back to fighting. Some have been killed. Some have been captured yet again. The process we use is important, but no process is perfect. We are trying to come up with a process the country can be proud of that applies the law of armed conflict standard and does not turn the war on terror into a crime. Right now every person sent to Guantanamo Bay will be offered a Combatant Status Review Tribunal hearing, which is well beyond what the Geneva Convention requires, to determine their status. In addition to the yearly review, working with Senator Levin, Senator Kyl, and others, we have come up with a right of every enemy combatant to go to Federal court. Instead of having unlimited habeas corpus opportunities under the Constitution, we give every enemy combatant, all 500, a chance to go to Federal court, the Circuit Court of Appeals for the District of Columbia. On top of everything else we are doing, they can challenge their status determination in a Federal court. The Federal court will look at the process involved in their individual case to see if it complied with the CSRT standards in terms of procedure and the standards that were to be used to determine whether a person was properly detained--the evidentiary standards, all other standards. This will allow a Federal court oversight of any combatant status. It will be a one-time deal. It will not be an opportunity for the enemy prisoner to sue us about everything they can think of. Now, that to me is unprecedented. That is well beyond what the Geneva Convention requires or envisions but is something we ought to do and we can be proud of because it is a Federal court oversight of a military action in a way that doesn't erode the military's ability to conduct a war. We can go to other people in the world and say, Our courts are now involved in looking at what we do. We can also say that Congress is finally involved because in addition to the rights I have described, under our amendment, the person who determines whether an enemy combatant is retained or released will be confirmed by the Senate. That will give the Senate a connection to what is going on in Guantanamo Bay. If you change the CSRT regulations in any way, you have to send those changes to the Congress. That way we are involved. And we have a statement in our bill to make sure you do not use statements that were a result of undue coercion to determine if you are an enemy combatant. So now we have Congress involved in an oversight function. We have the courts involved in oversight function. We have a due process right well beyond the Geneva Convention requirements. That is something we should be proud of. Military commissions. There are 10 or 20 people potentially facing a military commission trial for what are violations of law of armed law conflict. The flaw in my amendment is it did not have a right of appeal from a military commission verdict to a Federal court. In World War II, the enemy saboteurs I described before were all tried by military commissions that President Roosevelt created by Executive order. Four of the six were sentenced to death. The Supreme Court reviewed the military commission process in the Quirin case and found that military commissions were lawful if the person being tried was truly an enemy combatant. So there is a historical precedent in our country for the Federal courts, the Supreme Court, to look at military commission trials to make sure they are lawfully constituted. What we have done, working with Senators Levin, Kyl, and others, we have created that same type appeal process for all military commission decisions. Under the amendment that we have come up with, any case resulting in a capital punishment finding--any person who is given the death penalty by the military commission--has an automatic direct right of appeal to the Circuit Court of Appeals for the District of Columbia and the court will determine if they were tried in a court up to the military commission standards and procedures and whether the military commission was constitutional. Anyone who receives a sentence of 10 years or more will also have an automatic right to appeal the same court. If you receive a sentence less than 10 years, the Circuit Court of Appeals for the District of Columbia will determine whether they want to hear your case based on a petition for certiorari or something akin to it. That, in essence, is what we are trying to do. In both instances, the CSRT procedures and the military commission procedures will be reviewed by Federal courts and the court will have the ability to determine whether they are constitutional and will have an ability in an individual case to determine whether the enemy combatant or the person tried under the military commission procedures will be reviewed by Federal courts to decide whether they are constitutional according to the rules and procedures that have been set up. I defer to my friend and colleague, Senator Levin.

Mr. GRAHAM. Mr. President, my hope is, as Senator Levin indicated, we are all doing this because we believe Congress has a role in this war. The executive branch has the job to lay the battle plans in place and to go after the enemy and be the Commander in Chief. But the Congress regulates captives of land and sea. The Congress is involved in issues about the detention, interrogation, and prosecution of enemy combatants and those who are trying to do harm to the country. My goal over the last week was to do two things: get the Congress involved and for us to start thinking, what do we want, as a nation, to happen in this war now and down the road? What do we want to happen to the Sheik Mohammeds and people such as he? Do we want them to be common criminals? No. We want them to be people considered under the law of armed conflict. My amendment last week was a direct result of what I think was a growing problem for our country. Section 2241 habeas rights were being exercised by noncitizen, foreign terrorist suspects to the point they were flooding our courts. They were bringing lawsuits. I will give you an example. One Canadian detainee, who threw a grenade that killed an Army medic in a firefight and who comes from a family with longstanding al-Qaida ties, moved for a preliminary injunction forbidding the interrogation of him or engaging in ``cruel, inhuman, or degrading'' treatment of him. In other words, he wanted the judge to come in and stop his interrogation before it started and to sit there basically and supervise it. Another al-Qaida detainee complained about basic security procedures, the speed of mail delivery and medical treatment. He was seeking an order that he be transferred to the ``least onerous conditions'' at Gitmo and asking the court to order that Gitmo allow him to keep any books and reading materials sent to him and to ``report to the Court'' on ``his opportunities for exercise, communication, recreation, worship, etc.'' As I said last week, we never allowed enemy prisoners to go into civilian courts and ask judges to come over and take over the military prison in a time of war. The Nazis did not get that right in World War II. We had plenty of Nazi prisoners housed in military prisoners all over the United States. They were not able to go to Federal court and complain about the books and the DVDs--they didn't have DVDs then--whatever they were asking for. There is an ``emergency'' motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos. There is another lawsuit wanting the lawyer to have Internet access at Guantanamo Bay. That is what I objected to. This is not the law of armed conflict being applied. This is giving an enemy prisoner a right that no enemy prisoner has ever enjoyed before in the law of armed conflict. It was creating litigation against our troops. There was one medical malpractice claim. There are over 40 cases suing for monetary damages. Can you imagine, after 9/11, if the Senate were asked the question, Do you want an al-Qaida suspect who is captured to be able to go into Federal court, in unlimited fashion, and bring lawsuits against our own troops for their behavior? The answer is no. But Senator Levin was right. The military commission, part of it is written in a way without a direct appeal to Federal courts. There is historical precedent for doing it in-house, but there is a Supreme Court review precedent. So I am willing to take that part of the amendment that was not really the focus of the lawsuit abuse and come up with a compromise the country should be proud of. Now, as to Senator Bingaman's attempt to strike my language, I will vote against Senator Bingaman's amendment, and I will urge all those who voted for me last time to stand with me. Senator Bingaman is trying to create a right to the DC Circuit Court of Appeals for all enemy combatants to bring habeas petitions similar to an American citizen, not what we have done in our amendment but a true habeas petition under section 2241. The question is, Does the Congress want al-Qaida members to have habeas rights similar to American citizens? I say no. Senator Bingaman allows that right to still exist. He addressed some of the concerns I raised. He says the habeas petition cannot consider claims based on living conditions. Because I have described how outrageous these claims are--about the exercise regime, the reading materials--most Americans would be highly offended to know that terrorists are suing us in our own courts about what they read. He has two exceptions, however. They can still bring habeas lawsuits similar to an American citizen, ``whether such status determination was supported by sufficient evidence and reached in accordance with due process of law, provided that statements obtained through undue coercion, torture, or cruel or inhuman treatment may not be used as a basis for the determination; and (C) the lawfulness of the detention of such alien.'' The reason I am going to vote no on the Bingaman amendment is that these exceptions--the lawfulness of the detention of such alien--would allow a court, if they chose, to look at every condition of the enemy prisoner's life and do, again, what we are trying to prevent, that you could go into Federal court and start asking for a Federal judge to intervene in your interrogation before it even starts. My belief is the military is the best group to run the war, not Federal judges. So I am going to oppose Senator Bingaman's amendment because it preserves habeas rights for noncitizen, foreign terrorists to come into Federal court at the District Court of Appeals, DC Court of Appeals, to put a wide variety of issues on the table. I do not think that is good for us. I do not think it is good for the war. Now, I will vote with Senator Levin on our comprehensive package when it comes to how we are going to conduct the war on terror. I will end with this thought. For the first time I know of, since September 11, 2001, we have sat down as a Congress and an administration to start thinking this thing through. We have come up with, I believe, a darn good package. I say to Senator Levin, I have enjoyed working with him on this. I have been a military lawyer for over 20 years. There are a lot of things that go on in the Senate I do not know as well as I should. But I feel very comfortable that the war on terror is truly a war, that 9/ 11 was an act of war, it was not a crime, and if we will apply the law of armed conflict, we can be proud as a nation. I say to the Senator, your amendment and my amendment together have gotten us back to where we should have been years ago, applying the law of armed conflict to these terror suspects in a way that goes beyond the Geneva Conventions because we are a nation that wants to do it right and then some. But we are also preserving our own ability to defend ourselves. So to the world, if you are wondering what is going on in America now, if anybody goes to Guantanamo Bay, the Congress will be told about what goes on, and we will have a say about what goes on. If anybody at Guantanamo Bay is determined to be an enemy combatant, not only will Congress be involved in how they are kept and how long they are kept, our Federal courts will review the actions of our military to see if they comply with the Constitution of our Nation. And that is a huge change. I say to the Senator, I congratulate you for working with me--working together--to come up with a review process, where the world can know for sure that what we are doing meets our own constitutional standards. Enemy combatants are going to get a chance to go to Federal court. The Federal court is going to look at the big picture and see whether what we have done is constitutional, and when it comes to that individual's case, to look at whether the procedures and standards that were involved were properly applied. The world should respect us for that. I am proud to have been part of that process. To those who go to court and have their liberty interests dealt with, those who are going to be tried for law of armed conflict violations, we can tell the world that those people who will be tried at Guantanamo Bay will not be tried in secret. They will be tried in public to the extent that we can. There is an op-ed piece today in the Washington Post by a defense counsel--and God bless him; I have been a defense counsel, and I want every right I can get as a defense counsel--saying that the trials at Guantanamo Bay are a lot different than the ones at Nuremberg. He is right in this regard. Nuremberg was trying people after the war was over. We will be trying people at Guantanamo Bay while the war is going on. What we want to do is make sure the public knows as much as possible about the process, that the defendants understand the evidence against them, that they have the right to challenge the evidence, call witnesses, and testify. And they are presumed innocent. It is a very good infrastructure. But there may be some evidence down there about a particular defendant that has to be classified because to divulge that evidence would tip our enemy off as to what we are doing and how we are doing it. We are still at war. It is important we understand we are still at war. But we can tell the world that for every person who goes through a military commission trial, we will be as open as we possibly can be without compromising our own security. When that verdict is rendered, the Federal courts of the United States of America will look at the military action to see if it comports with the Constitution of our Nation, the preeminent legal document in the world, and will also review the individual's case. I am proud of that. It is going further than we probably absolutely have to, but it is doing the American thing. It is putting American values on display. Ladies and gentlemen of the Senate, tomorrow is a historic day in the war on terror. You have a chance to put some legal infrastructure in place that will be a model for the world, that will help us win this war on our terms. I am proud to have been part of it. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I rise today to express my concern regarding the Mixed Oxide fuel project. This project is vital to reduce the threat of terrorists or rogue nations obtaining nuclear weapon materials. By resulting in the disposal of 34 metric tons--64 tons in total--of surplus weapon-grade plutonium, enough for thousands of nuclear weapons, the MOX program helps accomplish one of our most important nonproliferation goals. This plutonium, once converted into fuel for commercial nuclear power plants, is a real ``swords into plowshares'' program.

Mr. GRAHAM. Despite this importance, the Department of Energy has not requested full funding for this project in the President's Fiscal Year 2004, Fiscal Year 2005 and Fiscal Year 2006 budget request as originally proposed in the report to Congress entitled ``Disposition of Surplus Defense Plutonium at Savannah River Site, February 2002.'' The funding shortfalls will add to the existing 3-year delay caused by the negotiations between the Russian and U.S. Governments regarding liability for the project. However, with agreement between the U.S. and Russia on liability, the administration has no reason not to request full funding in next year's budget. It is vital that in the next budget the administration proposes fully funding the MOX program at a level that will bring this project closer to its original schedule.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GRAHAM. Mr. President, this whole debate we are having now with Senator Kerry, what we did with Senator McCain's amendment earlier, and what I am trying to do, is a healthy debate about where we are going as a nation, how we prosecute the war on terror, and what kind of value set we are going to adopt. One thing we need to understand as a nation and we need to understand in the Senate, in my opinion, is that the attack of 9/11 was an act of war. It was not a criminal enterprise. That is an important statement to make. Every Senator needs to understand in their own mind: Was 9/11 and were those who planned it and those who blew up the people in Jordan yesterday common criminals or are these people engaged in acts of terrorism and war? Let it be said clearly, in my opinion, that the United States is at war with al-Qaida and associate groups, and we have been since 9/11. When a country such as the United States is at war, we have a rich tradition of following the law of armed conflict, of living up to the Geneva Conventions and all other international treaties that regulate the conduct of war. We have a moral imperative as a nation not to lose our way in fighting this war. Using tactics of one's enemy is no excuse in defeating one's enemy. It is clear to me from Abu Ghraib backward, forward, and other things we know about that at times we have lost our way in fighting this war. What we are trying to do in a series of amendments is recapture the moral high ground and provide guidance to our troops. That is why Senator McCain's amendment, which I cosponsored, is so important, and it passed by voice vote. The McCain amendment requires standardization of interrogation techniques when it comes to people in our charge, not as criminal defendants but as enemy combatants, people detained on the battlefield, POWs. It requires the Army Field Manual, not the United States Code, to be changed in a way to give our troops the guidance they need as to what is in bounds and out of bounds when it comes to interrogating prisoners. It is important that we get good information. It is equally important that we not lose our value set in obtaining that information. Senator McCain has two things in his amendment that we desperately need. It standardizes interrogation techniques for the military, dealing with people who are part of this war, our enemies, and it also makes a statement to every other agency in the Government that you are going to treat people humanely if they are captured under your charge as part of fighting this war. Guantanamo Bay is a place we have designated to take people off the battlefield and hold them, and the determinations that go on at Guantanamo Bay fall into two categories. Some can be prosecuted for violations of the law of war, not criminal violations in terms of domestic criminal law but violations in terms of the law of war. Enemy combatants are being held at Guantanamo Bay like POWs were held in the past. What we have done at Guantanamo Bay is we have set up a procedure that will allow every suspected enemy combatant to be brought to Guantanamo Bay and given due process in terms of whether they should be classified as an enemy combatant. The Geneva Conventions in article V state that if there is a doubt about one's status, the host country, the person who is in charge of the person, the suspected enemy person, that host country will have a competent tribunal to determine the status. What is going on at Guantanamo Bay is called the Combat Status Review Tribunal, which is the Geneva Conventions protections on steroids. It is a process of determining who an enemy combatant is that not only applies with the Geneva Conventions and then some, it also is being modeled based on the O'Connor opinion in Hamdi, a Supreme Court case, where she suggested that Army regulation 190-8, sections 1 through 6, of 1997, would be the proper guide in detaining people as enemy prisoners, enemy combatants. That regulation is ``Enemy Prisoners of War, Retained Personnel, Civilian Internees, and other Detainees.'' We have taken her guidance. We have the Army regulation 190-8, and we have created an enemy combat status review that goes well beyond the Geneva Conventions requirements to detain someone as an enemy combatant. The McCain amendment says if you are an enemy combatant, we will treat you humanely, even though you may be part of the most inhuman group the world has ever known. Senator McCain is right. How we treat detainees in our charge once they are captured is about us, but their legal status is about them. Once they choose to become part of a terrorist organization in an irregular force that blows up people at a wedding, then their legal status is about them and their conduct. I want to make sure we follow the law of armed conflict, that we comply with the spirit of the Geneva Conventions, that we do it right because we are a country that believes in doing it right. I believe the Congress needs to get involved. We have been AWOL. I have enjoyed working with Senator Levin and my Democratic colleagues, Senator Warner, Senator McCain, and others to get the Congress involved. Here is what we have done. The Congress is now setting interrogation standards that have long been overdue and neglected. The Congress is now setting a humane treatment standard that will serve us well in the international community. The Congress, through my amendment, is now getting involved in the enemy combatant detention process. People worry about taking folks to Guantanamo Bay and never hearing from them again. I can assure you they can be heard from. They are being heard from. They are being inspected in terms of their treatment by the International Red Cross. I have been to Guantanamo Bay twice. If you worry about what is going on at Guantanamo Bay, go down there yourself. The press has access to Guantanamo Bay. The International Red Cross has access to Guantanamo Bay. My amendment gets Congress in the ball game. My amendment requires that Combat Status Review Tribunal regulations have to come to the Senate and the House for our review. Congress now is looking over the shoulder of what is going on there. My amendment requires that the person sitting at the top of the pyramid who makes the decision to release or detain has to be confirmed by the Senate so they will be accountable to us. My amendment prohibits the use of undue coerced statements to detain somebody as an enemy combatant. If you are a POW in a war, you are there until the war is over. An enemy combatant falls into that same category, and we are going to make sure they get due process accorded under international law and then some, and the Congress is going to watch what happens. The Congress is going to be involved, and we are going to take a stand. We are going to help straighten out this legal mess we are in. But there is another problem. For those who want to treat people in our charge humanely, sign me up. For those who want to get Congress involved in making sure we have standardized interrogation techniques so our own troops won't get into trouble, sign me up. For those who want to give enemy combatants due process in accordance with the Geneva Conventions, and then some, sign me up. For those who want to turn an enemy combatant into a criminal defendant in U.S. court and give that person the same rights as a U.S. citizen to go into Federal court, count me out. Never in the history of the law of armed conflict has an enemy combatant, irregular combatant, or POW been given access to civilian court systems to question military authority and control, except here. What has happened at Guantanamo Bay that we need to fix? I know what we need to fix in terms of the way we have treated prisoners. We are doing it. We are getting it right. We are making up for our past sins. My request to this body is, let's not go too far and create problems that will come back to haunt us. We are at war; we are not fighting the Mafia. We are fighting an enemy desirous of taking us down as a nation. The Supreme Court decided that the Guantanamo Bay activity was part of the United States, not in its territory so much as under its control. The Supreme Court has been shouting to us in Congress: Get involved. Habeas corpus rights have been given to Guantanamo Bay detainees because the location is under control of the United States, and Congress has been silent on how to treat these people. The Supreme Court has looked at section 2241, the habeas statute, and they are saying to us: Since you haven't spoken, we are going to confer habeas rights until you act. Justice O'Connor said that we will under habeas give due process to enemy combatants, but if you were smart, you would have a process like Army regulation 190-8, and that would be more than enough. Well, we are smart. Here is what has happened. If you want to give a Guantanamo Bay detainee habeas corpus rights as a U.S. citizen, not only have you changed the law of armed conflict like no one else in the history of the world, I think you are undermining our national security because the habeas petitions are flowing out of that place like crazy. There are 500-some people down there, and there are 160 habeas corpus petitions in Federal courts throughout the United States. Three hundred of them have lawyers in Federal court and more to follow. We cannot run the place. They are not entitled to this status. They are not criminal defendants. And here is what they are doing in our courtrooms: A Canadian detainee who threw a grenade that killed an army medic in a firefight and who came from a family of longstanding al-Qaida ties moved for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. It was a motion to a Federal judge to regulate his interrogation in military prison. Another example. A Kuwaiti detainee sought a court order that would provide dictionaries in contradiction of Gitmo's force protection policy and that their counsel be given high-speed Internet access at their lodging on the base and be allowed to use classified DOD telecommunications facilities, all on the theory that otherwise their right to counsel is unduly burdened. This is one of my favorites. There was a motion by a high-level al- Qaida detainee complaining about base security procedures, speed of mail delivery, and he is seeking an order that he be transferred to the least onerous conditions at Gitmo and asking the court to order that Gitmo allow him to keep any books and reading materials sent to him and to report to the court on his opportunities for exercise, communication, recreation, and worship. Can you imagine Nazi prisoners suing us about their reading material? Two medical malpractice claims have come out of this. Here is another great one. There was an emergency motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos. Where does this stop? It is never going to stop. Let me tell you what it is doing. Here is a quote from one of the lawyers representing these detainees in Federal court: 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? Know what. The people at Gitmo are asking that same question: What are we going to do? It is impossible to interrogate people with this much court intervention. We are undermining the role Gitmo plays in helping our own national security. No POW enemy combatant in the history of the world has been given Federal court unlimited access as an American citizen. Here is what I propose we do: that we take the procedures that are in place far beyond what the Geneva Conventions require, that we make the reforms my amendment suggests where Congress is now involved in oversight, and we do one other thing, we allow a detainee to go to Federal court, not anywhere and everywhere, but to one place, the Circuit Court of Appeals for the District of Columbia where they can challenge what the military has done to them in terms of their status. That is a right beyond what any enemy combatant POW has ever had in history. That will make sure two things happen: My amendment will make sure Congress will supervise what goes on and will be notified about what happens at Gitmo. They will be able to hold people off the battlefield as enemy combatants; they will have a process recognized by the Geneva Conventions and then some; and they will also have a right to go to Federal court to challenge their status to make sure we did it right. If we will do these things together, then we can be proud as a nation. They all need to be done together. We need to make sure standardized interrogation techniques exist for the benefit of our own troops in the Army Field Manual to create clarity out of chaos. We need to make a statement as a nation that no matter who you are or where you are, if you are in our charge, you are going to be treated humanely. Shaikh Mohammed, the mastermind of 9/11, is somewhere in our care. He is not a criminal defendant. He is a warrior, the planner of 9/11. It is not a decision we should have to make to try him or let him go. We keep him off the battlefield as we have kept every other POW and enemy combatant off the battlefield. We get good intelligence from him and we treat him humanely. Let us not turn this war into a crime. It would be a crime to do so. I think I have presented what I believe to be as balanced an approach as I know how without giving up our right to defend ourselves. To the human rights activists out there, God bless you. You have helped us in many ways. We are going to make the statements you want us to make about treating people humanely. We are going to have standardized interrogation techniques. Congress is going to provide oversight and we are going to let the courts provide oversight. But in the name of human rights, we are not going to let this jail run amok. We are not going to create a status in international military law that has never been granted before. Of all the people in the world who should enjoy the rights of an American citizen in Federal court, the people at Guantanamo Bay are the last we should confer that status on. We did not do it for the Nazis. We should not do it for these people. I reserve the remainder of my time.

Mr. GRAHAM. Mr. President, will you notify me when I have used 15 minutes of the time?

Mr. GRAHAM. How much time do I have remaining?

Mr. GRAHAM. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. GRAHAM. Mr. President, I call up amendment No. 2515 which is at the desk.

Mr. GRAHAM. Mr. President, I call up my amendment which is at the desk.

Mr. GRAHAM. May I respond?

Mr. GRAHAM. Mr. President, we need to standardize our interrogation techniques because we have lost our way. We need to make a statement we are not going to treat people poorly during our charge. For 200 years in the law of armed conflict, no nation has given an enemy combatant, a terrorist, al-Qaida member the ability to go into every Federal court in the United States and sue the people who are fighting the war for us. There are 160 habeas corpus petitions being filed against Guantanamo Bay detention. Let me read what one of them is saying, a motion by a high-level al- Qaida detainee complaining about basic security procedures: Speed of mail delivery, medical treatment, seek an order to be transferred to the least onerous condition at Gitmo, and asking the court to order Gitmo to allow him to keep any books and reading material sent to him, and report to the court on his opportunities for exercise, communication, recreation, and worship. The Nazis couldn't go to a Federal court when we had them in our charge as prisoners of war. Never in the history of armed conflict has this been allowed. Let us stand up for our troops in a reasonable way, protect them from abuses, and protect them from the court suits filed by the people they are fighting.

Mr. GRAHAM. I defer to my colleague from New Mexico.

Mr. GRAHAM. I ask unanimous consent to add Senator Cornyn as a cosponsor to the amendment.

Mr. GRAHAM. Mr. President, I want to end with this thought. Never in the history of military commissions where we have tried enemy combatants and spies have they appealed those convictions to Federal court. Never.

Mr. GRAHAM. Mr. President, how much time do I have?

Mr. GRAHAM. To my good friend Senator Levin, we fundamentally disagree. There is a principle at stake here that is as old as war itself. Writs of habeas corpus have never been given to enemy combatants or POWs. They have never been allowed access to the Federal court to challenge their enemy combatant status tribunal which is new and different, beyond the Geneva Conventions. The German prisoners were tried by a military commission. Four of them were executed. They were not allowed to go into Federal court under writ of habeas corpus because the Constitution does not confer the right of a writ to a foreign alien involved in combat activities against the United States. The only reason we are talking about this is, the Court is inviting us: As the Senate, do you want al-Qaida members, under 2241, to have the writ of habeas corpus. The military commissions are set up to try these people. My amendment talks about the procedure of keeping them off the battlefield, allows them due process rights beyond Geneva Conventions article 5, allows them now to go to a district court and the Court of Appeals for the District of Columbia beyond what the Geneva Conventions ever envisioned. The military commissions are totally different. No one has been tried yet. Here is the one thing I can tell you for sure as a military lawyer. A POW or an enemy combatant facing law of armed conflict charges has not been given the right of habeas corpus for 200 years because our own people in our own military facing court-martials, who could be sentenced to death, do not have the right of habeas corpus. It is about military law. I am not changing anything. I am getting us back to what we have done for 200 years. If you want to give terrorists habeas corpus rights as if they were American citizens, that they are not part of an outfit trying to wage war on us, fine, vote against me. If you think they are common criminals like American citizens, vote against me. I will be the first to say that if these were criminals, we wouldn't treat them this way. These are not criminals. These are people caught on the battlefield as the Nazis were caught on the battlefield. They need to be held accountable. They need to be treated humanely. Does this body want to be the first Senate in the history of the United States to confer rights on a POW and an enemy combatant to sue the troops who are trying to protect us? There are 160 cases down there. There are going to be 300 cases. They are going to ruin the ability to get intelligence because we in the Senate haven't acted, and we need to act. How are we going to act? Are we going to act in the best tradition of the United States in accordance with the rule of law, or are we going to give terrorist suspects, al-Qaida members, the right to sue our own troops in Federal court? If you want that, vote against me. If you think that is absurd, vote with me.

Mr. GRAHAM. No, sir. That is not accurate. This says that no illegal, no foreign alien who is being detained as an enemy combatant can file a writ of habeas corpus. The reason for that being said is because that has been the law for 200 years. We didn't let German prisoners file writs. Under the Roosevelt administration, these six people were captured. They were tried. Four were executed. A writ of habeas corpus was not available to them. It should not have been available to them. The reason we have a military system and we have a civilian system is because we understand the military is a unique body. We don't try our own people in civilian court. We try them in military court. It has been the history of the law of armed conflict that when you have somebody tried for a violation of law of armed conflict, you don't go to Federal court. You go to a military commission or a military court. That is what happened in World War II. That is what will happen to these people, if they are tried.

Mr. GRAHAM. I yield 6 minutes to my colleague from Arizona.

Mr. GRAHAM. Under the military commission model, there is an appeal to a three-judge panel of civilians appointed to hear appeals. In the military commission model, under World War II, they didn't get that. There is an appeal process for civilian review of the trial of enemy combatants detained at Guantanamo Bay. My amendment doesn't affect that. It doesn't change that at all. My amendment prevents the use of habeas rights for POWs and enemy combatants, something we have never given in the history of the law of armed conflict to people in the military system because we don't want civilian judges coming in here and running the war. I am trying to get us back where we have always been. This is not complicated, but it is very important.