Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. Shall I go first?

Mr. GRAHAM. I say to the Senator, I would be glad to, if I could just wrap up my thoughts. But do you want to do that now? What would you like to do?

Mr. GRAHAM. The military commissions would be the sentencing body, not the CSRTs. I know this is a bit complicated, but the CSRT provision doesn't try people. It determines whether they are enemy combatants.

Mr. GRAHAM. No, sir. That is not correct.

Mr. GRAHAM. May I answer that? I say to the Senator, with all due respect, that is dead wrong. Military commissions that will be trying the people designated by the President, subject to be tried at Guantanamo Bay for violation of the law of armed conflict, do get appeals. They get more appeal rights than the people who were tried as German saboteurs under military commissions. They get a lawyer. They get the right to confront witnesses against them. They get the right to call witnesses. The military commissions are different than the CSRTs. There is a process in the military commissions for people to have every right under the Geneva Conventions and then some, to have more rights than the German saboteurs. The German saboteurs did not have habeas corpus rights. They had an appeal right within the military commission system, as the al-Qaida members do. To say that you can be tried at Guantanamo Bay for a war crime and not have an appeal is not true. It is like we did with the saboteurs. To say that people at Guantanamo Bay should have habeas corpus rights is doing something no one has ever had in the law of armed conflict, Nazi or otherwise.

Mr. GRAHAM. Twelve and a half minutes. Mr. President, one thing I have not done in this whole process is be willy-nilly about this amendment or about this issue. I am deeply concerned as a Senator that we have lost the moral high ground in the war, that we have confused our own troops, that our interrogation techniques have been out of bounds. That is why I support Senator McCain and other Members of this body--90 to 9--to get it right, because we have to maintain the moral high ground. We did not have hearings about that because we do not need hearings. We know that our interrogation techniques have been confusing and sometimes unacceptable. We know it is time for America to say to the world that no matter what agency is involved or where the person is, they are going to be treated humanely. We know that. I have been dealing with this for a year. I have worked with Senator Specter. I have been trying to find some way to get a grip on the legal aspects of this war, as well as the moral aspects of this war. And before I got here--I am still an active member of the Reserves. I have been a judge advocate in the Air Force most of my adult life. Senator Leahy mentioned something: Let's be a nation of the rule of law. I applaud that. The question is, What is the law here? What is the rule of law when you are at war? The rule of law when you are at war is the law of armed conflict. When we were attacked on 9/11, we went to war, ladies and gentlemen. We are not fighting a criminal enterprise. The rule of law in the law of armed conflict says that POWs and enemy combatants and irregular combatants will be detained within the guidelines of the Geneva Conventions. An enemy combatant is not entitled to Geneva Conventions protection because they do not wear a uniform, they do not fight for a nation. But an enemy combatant is entitled to certain things. We as Americans say you are entitled to be treated humanely, interrogated humanely, and you are entitled to due process to be kept off the battlefield. But you are what you are. You are someone who took up arms against our country. Never in the history of the rule of law of armed conflict has an enemy combatant, POW, person who is trying to kill U.S. troops, been given the right to sue those same troops for their medical care, for their exercise programs, or for their reading materials. Do you want to be the Senator who has changed 200 years of law? Do you want to be the Senator who is changing the law of armed conflict to say that an enemy combatant--someone caught on the battlefield, engaged in hostilities against this country--is not a person in a war but a criminal and given the same rights as every other American citizen? Do you want to be the Senator who changes 200 years of that? I do not want to be. This is not complicated. One thing is for sure, this is not complicated. No POW in the history of this country has ever been allowed to sue our own troops in Federal court. Does it matter? The habeas corpus writ that is being exercised does not come from the Constitution. This is not a constitutional right that an enemy combatant has under our law. This is an interpretation of a statute we passed, 2241. The question is, 4 years after 9/11, do we want to change our law and give a terrorist, an al-Qaida member, the ability to sue our own troops in Federal court, all over the country, for anything and everything? I do not. I want to treat them humanely. I want to get good information. And I want to prosecute them within the rule of law. But I do not want to do something that is absurd and is going to hurt our national security; that is, allowing a terrorist the ability to go to Federal court and sue our own troops, who are fighting for our freedom, as if they were an American citizen. Do you know why the Nazis did not get to do that when we had them in our charge? Because that is not the law. It has never been the law. We caught six German saboteurs sneaking into this country, trying to blow up part of America. They were tried. Where? In a military commission, a military tribunal, not in a civilian court. We had German POWs who tried to come into Federal court, and our court said: As a member of an armed force, organized against the United States, you are not entitled to a constitutional right of habeas corpus. Do you want to give these terrorists habeas corpus rights just like an average, everyday American citizen or a common criminal to sue our own troops? Well, if you do, vote against my amendment. If you want to get back to where we have been for 200 years, then you need to support me. This is not complicated. We need to do more than one thing at a time. We need to have interrogation techniques we can be proud of. We need the McCain amendment. We need to standardize interrogation techniques so we do not lose the moral high ground. We need to make a statement that we are going to treat everybody humanely. Enemy combatant, POW--no matter who you are--we are going to treat you humanely. The Congress does not need to give the executive branch a blank check on how to run this war. My amendment requires the executive branch to report to us about what they are doing at Guantanamo Bay. It requires the Senate to confirm the person in charge of releasing or retaining these enemy combats. My amendment gives them every right the Geneva Conventions afford an enemy combatant, and then some. It gives them an adversarial proceeding at Guantanamo Bay, where they can challenge their status. We go further. It gives them a right to go to the District Court of Appeals of the District of Columbia--something never done in the history of warfare--because we want to let the world know we are going to go out of our way to get it right. But, ladies and gentlemen, if we do not rein in prisoner abuse, we are going to lose the war. But if we do not rein in legal abuse by prisoners, we are going to undermine our ability to protect ourselves. I am making one simple request of this body: Do not give the terrorists, the enemy combatants, the people who blow up folks at weddings, who fly airplanes into the Twin Towers, the ability to sue our own troops all over the country for any and everything. Give them due process. Treat them humanely. Try them under the rule of law. But let's not change 200 years of the law of armed conflict. Your vote today matters. Your vote today matters. We are going to make history one way or the other. Does the Senate, honestly to God, want to give terror suspects the same rights as American citizens based on a statute we pass? That is what is at stake here. Our troops are counting on us. They are being taken all over the country, and here is what is going on according to some of the people involved in these habeas petitions: 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? Civilian judges cannot run this war. This is about the rule of law. The rule of law protects people in armed combat. This is about changing our law to give terror suspects rights of U.S. citizens. Shame on us if we do that. I reserve the remainder of my time.

Mr. GRAHAM

Mr. GRAHAM. I echo the general themes of Senator McCain. This is an important event in the war on terror. He described very well that this is about us, not the terrorists. The terrorists are not having this debate in their world. There is not much debate going on about how they should behave toward innocent people, how they should behave toward people under their control. We know how they behave. The war is about, Is that a justified way of doing business? The answer is, No. Everyone condemns what they do, everyone who believes in freedom. This war is about two sets of values, theirs and ours. As we adjust in the war on terror, I think we have to understand that adjustment is necessary, but the adjustments cannot equate to eroding what we are fighting for. I am all for the PATRIOT Act. I think it has been very good that we adjust the way we have electronic surveillance. I think it has been very good that we allow the intelligence community and domestic law enforcement personnel to talk to each other about what is going on in the terrorist world. We are knocking some walls down with the PATRIOT Act that have made us less secure. We are adjusting our military policy. We are adjusting our legal positions to adopt to a war that is new and different. Here is the new and different part about it: The enemy we are fighting is nontraditional in terms of the Geneva Conventions. I think the President instinctively got it right, right after 9/11. He made a declaration that al-Qaida members are not going to be treated under the Geneva Conventions, considered Geneva Conventions qualified. He was right because al-Qaida is not a standing army. It is a group of terrorists who are not fighting for a nation. They don't wear a uniform. They randomly attack civilians. To give them Geneva Conventions protection would be undermining the purpose of the Geneva Conventions that rewards people for playing fair. The Geneva Conventions has within it reporting requirements and other devices that I think would undermine the war on terror. Some people that we catch, senior al-Qaida operatives or associates of al-Qaida, we don't want the world and their fellow terrorists to know we have them. Under the Geneva Conventions it would require reporting. Here is what we are trying to do, with Senator McCain's amendment. Even though they are not Geneva Conventions qualified, the President said they will be treated humanely. We have had interrogation techniques in the past for enemy combatants, people who do not fall under the Geneva Conventions, but they have never been in one source document. The Army Field Manual is an attempt on our part to provide clarity to the troops. I have gone with the chairman to Guantanamo Bay and I asked the question to the interrogators: Is there anything in the Army Field Manual that would prevent you from getting good intelligence, being involved in interrogations that would be fruitful to protect our Nation? They said no. They don't see the Army Field Manual as written or being drafted or revised as an impediment to doing their jobs. So what is the upside? The upside is the people in the Department of Defense--who may find themselves in a situation where they will have a group of prisoners, detainees, some Geneva Conventions qualified, some not--will have a source document. The reason we are doing this amendment is right after 9/11 there was an attempt by the Department of Justice to cut corners, in my opinion, to give strained legal reasoning to the Convention on Torture, trying to define what torture is in a way that would get our own people in trouble. The idea that you could actually break bones and that not be torture under the convention, that it would have to be a near-death experience--that gets us in a very dangerous area about physical abuse. The point we were trying to make, and the uniformed JAGs were trying to make, is when you start that reasoning, you have to understand there are other laws on the books that govern our military. The Uniform Code of Military Justice has a whole section about what is in bounds and out of bounds when it comes to detainees and how you treat detainees. It has an assault provision, making it a crime for a military member to degrade or assault someone in our charge. The concern of the JAGs is that this new interpretation of the Convention on Torture allowing certain activity would put military personnel in jeopardy of being court martialed because of other laws on the books. Now is the time to reconcile this. Now is the time to come up with a standard that looks at every legal source of who we are and how we behave. The Army Field Manual will be one-stop shopping. It will have interrogation techniques classified and unclassified that will be a roadmap of how we handle people at the Department of Defense who are non-Geneva qualified. It is the best thing we can do for the troops. Everybody is for the troops. We should be for the troops. If you are for the troops, I believe the best thing you can for them is to give them clarity so they will not run afoul of our values and our laws. It is the best thing we can do to help them as they execute this war on terror when it comes to interrogating people. The second part of Senator McCain's amendment is equally important but for a different reason. Abu Ghraib happened. Things happen on our watch in war that we are not proud of. But that happens in every war. The fact that some people make mistakes, some people commit crimes, some people go too far, is a part of war. How you deal with it is really about you. What has made us different is that we hold our own people accountable, and we don't let the end justify the means. We have been doing that for a very long time because we are trying to set a value system in place that will be good for the world. And when we take someone who is a member of the military and prosecute them for abusing a prisoner, that is different in a lot of places in this world. If we are prosecuting people for abusing prisoners, the worst thing we could do is confuse people about what is in bounds and what is out of bounds. That is why the Army Field Manual is necessary. But the statement Senator McCain is making about treating people humanely and cruel and unusual punishment interrogation techniques being out of bounds applies to everybody in the Government. I believe we have to make a decision soon that that is what we are going to do for many years to come. The war on terror is going to be a long, hard road. We are going to be constantly asked to adapt to win the war. The question is, Should we sometimes set aside exceptions that are totally different than the way we have lived our lives for 200 years to win this war? My answer is, Absolutely not, because this war is not about taking down a capital, sinking a navy, or capturing an army; this war is about tolerance, values, religion, and respect for human rights. This war is truly about character. I believe with all my heart and all my soul that what happened in Abu Ghraib is an aberration in terms of the men and women in the military. It doesn't reflect on who they are and what they believe. But it has done great damage to this country. To the terrorists, they are not the audience; it is those millions of people out there who are looking at democracy, checking under the hood, and trying to figure out which way to go. As a nation, we need to say as strongly as we can that no terrorist will have a safe haven. We are coming after you. We are going to fight you to the death. But if we capture a terrorist, we will want good information. We want to try them for their crimes, but once we have them in our charge, then it becomes about us because if you do not practice what you preach, your children will go astray if you are a parent. If you do not practice what you preach, your value set that has made you a great nation, standing out in a world in a unique way--you will tarnish who you are. The only way we are going to win this war is to have American values shine brightly. And character is about doing the right thing when nobody watches. I am hopeful that we can have a compromise and accommodation between the executive branch and the legislative branch on this issue; that we can have a policy statement that if you are in the hands of the CIA or a non-DOD agency, you can be interrogated aggressively, but you will be treated with a value set that this country has been fighting for in the past and is fighting for now. As the President reaffirmed just days ago, no matter where the prison is, no matter whether it is a prison known or unknown, American values follow that prisoner. That is what it has to be. Can we do better language? Maybe. I am certainly openminded to working on language that makes who we are crystal clear. But I will not entertain a retreat. I will not entertain an exception that washes away what we have been standing for and fighting for and what over 2,000 young men and women have died for. The courts are confused. The courts are crying out for congressional involvement. The executive branch is trying to adapt. I really do believe that the best thing we could do for this President and all future Presidents is for the Congress to get into the game and be an ally on how you detain, interrogate, and prosecute enemy combatants. That is missing. We have been AWOL. It is now time for us to step up to the plate and exercise our constitutional responsibility--not to weaken the Presidency but to make the executive branch stronger in the eyes of the courts. If you had a policy that was signed off on by the Congress, signed off on by the executive branch, I am totally convinced that the judicial side of our Government would be much more deferential. They are telling us that. What benefit would that be? We could go to the world, and this President and the next could say that America at every level of Government is united. We are going to have aggressive interrogation techniques, we are going to detain people who are enemy combatants, and we are going to take them off the battlefield. And some of them are going to stand trial for their crimes. But we are going to do it together, and we are going to do it within our values. That would be the strongest message we could extend to the world. It would be the right message to send to our own troops. If we do not get this right now, people after us are going to pay a heavy price. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I am expressing my support of an amendment to provide additional funding for the Community Development Block Grants, CDBG, Program. I share the concerns of many of my colleagues that some government programs are overreaching and duplicative. I remain committed to goals of limiting the size and scope of the Federal Government, but as we fulfill this mission, Congress must work to ensure that we continue to support programs that truly serve the needs of our constituents. CDBG grants have benefited almost 130,000 people in South Carolina alone. Further, over ten thousand jobs have been created through CDBG projects. The CDBG program is one of HUD's most successful programs. It should be held up as an example of local communities, coordinating with their state, to using Federal dollars to foster growth and encourage citizen participation. In listening to community leaders across the state of South Carolina, the CDBG program gives them flexibility to execute plans that accurately address their situational needs, which in turn pay great dividends for the community. To put it simply, the CDBG program works and I am a proud to be an original cosponsor of this amendment.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I ask permission to speak in morning business until Senator Brownback arrives.

Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I think it is appropriate this morning that those of us in elected office, and every American, show some appreciation for what is going on in Iraq this morning. I turned on the television and saw a new face of Iraq. I saw a judge schooled in the law, loyal to the law, presiding over a trial of Saddam Hussein, a person who was schooled in thuggery, loyal to himself and his agenda, one of the most brutal murderers the Middle East has known. And I saw an attorney general laying out the case against Saddam Hussein. How did that all happen? It happened through sheer will. First, violence had to replace diplomacy because diplomacy was failing. The effort to contain Saddam Hussein's regime, to rein it in, to clearly understand what his purposes were about weapons of mass destruction, to get him to stay out of the upheaval of the Middle East, to be a productive member of the Middle East society, the world community, in my opinion, failed miserably and we had to resort to force and violence to oust a man who had perpetuated many crimes against his own people and his neighbors. How did it happen, at the end of the day? It happened through the bravery, commitment, and sacrifice of the American military, their coalition partners, and the Iraqi people themselves. We have lost around 2,000 troops since the war began. To those families who have lost loved ones, there is nothing I can say other than I am sorry and, in my opinion, for what it is worth, your loved ones have advanced the cause of freedom by participating in a military operation to take Saddam Hussein off the throne and into the dock as a defendant. To those coalition members who have stood with us and who have sacrificed, thank you. Because of your sacrifice, the cause of freedom has been advanced. We do not appreciate enough, in my opinion, the sacrifice of the Iraqi people. I believe it is the judge or one member of the court whose brother was assassinated. To sit in judgment of Saddam Hussein is no easy thing to do. They are literally risking their lives to be a prosecutor, a policeman, or member of the army. They wear a target on their back. Their families are at risk because the terrorists see it as a risk to their way of life. Those who take up arms against the terrorists in Iraq are literally changing the course of history. To those men and women who have served in the American military, those who have lost life and limb, I hope you take pride in what is happening today. To the families of the loved ones who have been lost, those who have been injured, and those who are still serving, because of your sacrifice and commitment, your willingness to leave your comfort zones, to leave your family and friends, Guard members and Reservists leaving their businesses and loved ones behind, you have changed the course of Middle East history. At the end of the day, we can't kill enough terrorists to win. Terrorism is about hijacking of a great religion. There is no place in the terrorist world for a different faith, people of moderation in the Islamic community, and there is no role for a woman. For that to change, it is going to have to be deeper than force of arms. It is going to have to be a transformation of a culture. The culture of the rule of the gun versus the rule of law is happening before our eyes. What is going on today in Iraq is a sea change in the Middle East. It is about time a dictator in that region answers for his crimes. It is about time people in that region be allowed to live their lives in a normal fashion and raise their kids in peace. That day is still far away, but we are closer than we have ever been. So to those men and women serving in our American military and those who have suffered, congratulations and God bless. Because of your sacrifice and those sacrifices of our coalition partners and the Iraqi people, there has been a sea change in the Middle East and you deserve all the credit. I hope the American people will be patient to see this thing through because what happens in Iraq is directly related to our own security. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. The legal status of military commissions and the combat status review process are in legal limbo unnecessarily. If you read these opinions, they are a hodgepodge of different dissenting and concurring opinions. The one common theme is the courts are suggesting to Congress we get involved. When it comes to combat status review, I am totally convinced, after talking with now Chief Justice Roberts, this would be an area where the courts would welcome congressional involvement. He said to me in the hearings that the President or the executive branch is at its strongest when they have the implied or express support of the Congress. So the purpose of this amendment, if I may say very briefly, is for Congress to legitimize what is going on at Guantanamo Bay about determining enemy combatant status, legitimizing that review process by making some changes. If we would do that, I am convinced the courts would welcome that involvement and a lot of this litigation would end overnight.

Mr. GRAHAM. There was a stay by Federal district judge, staying military commission trials. The DC Circuit Court of Appeals overrode the lower court. That has gone up to the Supreme Court right now. I am confident the Supreme Court will legitimize military commissions, maybe with some changes. This amendment deals with detaining somebody who is not being prosecuted yet, who may be prosecuted, but keeping them off the battlefield because we have determined they are an unlawful enemy combatant. The review process to make that determination I feel very comfortable with. And there are some small changes in the amendment. The courts have told us this is an area where Congress needs to act. The courts have many cases, not just one, challenging the Guantanamo Bay procedures and determining unlawful enemy combatant. Justice Scalia said in the dissenting opinion, if this were an area where Congress spoke, the courts would welcome their involvement.

Mr. GRAHAM. Yes there is.

Mr. GRAHAM. Of all the people we have detained--over 500--no one has been brought to trial yet. Two will be brought to trial in November. One of the reasons that we cannot bring people to trial is because the Federal courts have issued a stay on prosecutions that has now been lifted. We are moving forward. There is another Supreme Court case dealing with the due process rights of determining whether a person is an enemy combatant. The procedure is in place at Guantanamo Bay and has been generally blessed by the Court because they have been stayed on those proceedings, too.

Mr. GRAHAM. Yes.

Mr. GRAHAM. Yes. It is in the Geneva Conventions. There is a section about unlawful enemy combatant, illegal enemy combatant. The conventions are set up to confer status on signatories and to make sure that people who engage in unlawful activity are not covered. The people who wear civilian clothes that go in the population and engage in terrorist activity have never been covered under the convention. Under the convention, that is the definition they are giving. The administration has used the term that has been legitimized by the courts for quite a while now in international law. In the review process at Guantanamo Bay, they will take the person off the battlefield. They have to make a case whether they fit the definition of enemy combatant. Each year they can challenge the designation. What we are doing in this amendment is basically blessing that procedure, requiring two more things. One, the idea that the Senate will confirm the person who will ultimately have the release authority or the appeal authority to enemy combatant status; and two, prohibit the use of a single statement to hold somebody as an enemy combatant who was in a foreign government's hands, unless we can show the statement was not a result of torture. We have learned from our experience at Guantanamo Bay that would be a good change.

Mr. GRAHAM. Madam President, I thank Senator Stevens for allowing me to do this. I appreciate that we have a busy day. I totally understand where he is coming from about the interrogation amendment. I come out on a different side. This amendment deals with the combat status review procedure at Guantanamo Bay. I think it is very necessary. I think it strengthens what the administration is trying to do when it comes to enemy combatants. I think it helps the administration in court and is good policy for the country. No. 1, I totally agree with the President that a member of al-Qaida should not be given Geneva Conventions status. I say to my friend from Alaska that Senator McCain's amendment doesn't confer Geneva Conventions status on enemy combatants. It standardizes the interrogation techniques. The Army Field Manual has a section for lawful combatants, those covered under the Geneva Conventions, and it will have a provision for unlawful combatants. Al-Qaida should not be given Geneva Conventions status. The Geneva Conventions and the signatories to the convention set the rules for the conduct of war. An unlawful enemy combatant is someone who goes around the battlefield without a uniform, doesn't represent a nation--a terrorist, for lack of a better word. They do not deserve the protection of the Geneva Conventions because they are cheating. But they do, in my opinion, deserve what the President said--not so much because they deserve it but because it is about who we are. The President said even enemy combatants--members of al-Qaida--will be treated humanely. When we capture somebody on the battlefield-- throughout the world because the whole world is the battlefield in the war on terror--most of the people we are dealing with are not part of the uniformed force, not like the Iraqi Army. The President said early on these people will be humanely treated but they will not be given Geneva Convention status. He is absolutely right. When we catch someone, say, in Afghanistan, who is a member of al-Qaida or some other terrorist network, certain people, once screened, go to Guantanamo Bay. The people at Guantanamo Bay have been participating in the allegations, or they have been participating in terrorist activities, supporting terrorist organizations as an unlawful enemy combatant. They are not uniformed soldiers. We are reviewing everyone that comes to Guantanamo Bay to see if they deserve the status ``enemy combatant.'' The term ``enemy combatant'' came out of World War II when we had a Supreme Court case recognizing that term for German saboteurs who landed, I think, in Florida and were trying to do sabotage throughout the United States. These six or seven Germans were not in uniform. They were tried by a military commission. We have a military commission at Guantanamo Bay that I totally support. And I think enemy combatant status was a result of that Supreme Court case. They were given that determination. What we are trying to do is streamline interrogation techniques to deal with both lawful and unlawful combatants. That helps our troops, gives them guidance. The second thing we are doing with my amendment is legitimizing, through congressional action, what the administration has done at Guantanamo Bay. The administration, in my opinion, has put together a very good, thorough process to look at each person that comes to Guantanamo Bay to determine whether or not they should be classified as enemy combatants because if they are classified as enemy combatants, they can be detained indefinitely and taken off the battlefield. The due process rights afforded an enemy combatant have been up to the Supreme Court, and the Supreme Court, for the most part, has blessed the procedure. There have been some concerns expressed by the Court. My amendment tries to, one, legitimize what the administration has created at Guantanamo Bay in terms of a review process to determine who is an enemy combatant and who is not. We made two small changes. We have learned in the past that sometimes people have been because of a single statement made, while in the hands of a foreign agency, a foreign country, that was given under duress. The amendment says that if a civilian is to determine enemy combatant status in a statement from a foreign interrogation, you have to prove that the statement was not unnecessarily coerced. Most Americans, I think, agree with that, and the people at Guantanamo Bay agree with that. Second, the civilian who will determine from the appeal process whether or not the enemy combatant status, which is reviewed annually, should be held, would be appointed by the Senate as a Presidential appointment. Gordon England is doing it now, and he is a Presidential appointee. That continues the trend. I think it would be good to have the Senate involved. What does this mean, very briefly? It means we can go to the world and say we have a procedure in place at Guantanamo Bay that will determine who an enemy combatant is and that these procedures are blessed by the courts, they are blessed by the Congress, and they are blessed by the administration. It would be good to be able to say, as a nation, that all three branches of Government--the executive branch, the judicial branch and the legislative branch--have all agreed on procedures to take enemy combatants off the battlefield and give those people who are suspected of being enemy combatants due process rights consistent with whom we are as a people and give enough flexibility to the military to make sure these people do not go back to the fight. The truth is, several hundred have been captured and released. The process is working very well at Guantanamo Bay. I compliment the administration for setting up a combat status review process that has been changed a couple of times. It is eminently fair. This amendment blessed that process. It has two small changes. It would strengthen the process, and it would end this never-ending court debate about what to do. The courts have been telling us, Congress, if you got involved, it would help us figure out what we should be doing. Justice Scalia, as Senator McCain indicated, screamed out, in a dissenting opinion granting habeas corpus rights to enemy combatants, that the courts are ill-equipped to run this war. Now, with this amendment, the Congress will bless what the administration has put in place, making small changes which will strengthen the administration's hands in the court. The courts will feel more comfortable ratifying this process, and we will be a united nation, a united front in all three branches of Government when it comes to dealing with enemy combatants. It is very important that anyone who engages in unlawful enemy combatant activities against this Nation be taken off the battlefield and kept off the battlefield as long as necessary to make us safe. They deserve a certain amount of process because whom we are as a people and the process we are blessing gives them very adequate due process rights. This amendment strengthens those rights. They deserve to be taken off the battlefield, and people engaging in unlawful enemy combatant activities should be taken off the battlefield as long as necessary to protect our country. Second, they deserve to be prosecuted in some instances. There are three things we are trying to accomplish. We are trying to standardize interrogation techniques to protect our own troops and have a one-stop shopping for what the rules are. That is through Senator McCain's amendment. We are trying to keep the moral high ground, as expressed by the President, to say we are not torturing people, we are not going to treat people inhumanely because that weakens us. The bottom line, it is not the right way to get good information and weakens us. The more standardization the better. When it comes time to keep people off the battlefield, with this amendment we are stronger as a nation because Congress will have blessed what the administration has done. In that regard, I offer this amendment as a way to bring clarity to a situation that is very important in the war on terror. We need to keep enemy combatants, once they have been lawfully determined to be an enemy combatant, off the battlefield as long as it takes to secure this Nation. This amendment helps to do that. I ask for the yeas and nays.

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

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

Mr. GRAHAM. Madam President, I ask unanimous consent to set aside the pending amendment.

Mr. GRAHAM. Madam President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. GRAHAM. Mr. President, No. 1, I would like to recognize that Senator Stevens, who has so honorably served our country, is genuinely concerned about the extent of this amendment. For those of you who are listening, Senator Stevens was a World War II pilot. He has gone in harm's way in defending his country. We have in the Chamber his counterpart on the Appropriations Committee, Senator Inouye, a Medal of Honor winner, and the Senator occupying the chair is a former POW. The food chain is going down when I am speaking. But what I want to try to discuss today is from a lawyer's point of view and really from a citizen's point of view. I have had the honor for the last 20-some years to be a member of the Judge Advocate General's Corps of the Air Force, a prosecutor, a defense counsel, and I am now a Reserve military judge. That experience has been a wonderful experience. I have received more out of it than given. Wearing the uniform in any capacity is quite an honor, and to be a military lawyer has been one of the highlights of my life. I have never been shot at. I had some clients who probably wanted to kill me. But other than that, I do understand this debate pretty well. To me, it is not much of a debate. We have as a nation adopted the position that Senator McCain described when it comes to how you handle people in your care and custody. One thing I would respond to Senator Stevens is that the Army Field Manual has sort of been the bible for interrogation for decades. If you are worried, and I think it is a fair question, is there anything in the Army Field Manual that would unfairly restrict the ability of the United States to gain good information and defend ourselves from a bunch of rogue thug murderers, the answer is no. You don't have to trust me there. Go to Gitmo and ask the question of the people who are doing the interrogation of these terrorists: Is there anything in the Army Field Manual as written or being drafted that would impede your ability to gather good information? And the answer they told me was no. So what is the value of having it? The value of having standardization when it comes to interrogation, detention, and prosecution is of immeasurable benefit to the force because, as Senator McCain indicated, a lot of the people implementing these policies when it comes to interrogation, detention, and prosecution are in harm's way themselves. One of the things we have learned in this whole war on terror is that this Nation needs to have effective interrogation techniques, effective detention policies, and effective prosecution tools to hold the terrorists responsible because you have two audiences. No. 1, you have the terrorist community. I want every terrorist to know, if you are not killed on the battlefield and you are captured, things are going to happen to you. You are going to be interrogated aggressively, but we are going to treat you humanely, not because we worry about your sensitivities but because we don't want to become who we are interrogating. So we are going to keep that in place. The President has said whether the Geneva Convention applies or not we are going to treat everybody in our charge humanely, not because of them but because of us. And the debate here is what happens when somebody in your charge is not covered by the Geneva Conventions. It is easy when someone is a legal combatant. We know what the rules are. We have the Geneva Conventions. We have been a signatory for 60 years. The Army Field Manual covers that situation. The war on terror is different. Vietnam was different. We had people who were lawful, whom we were able to interrogate, detain, and prosecute without changing who we were. The Army Field Manual as a one-stop shop to guide the way we handle lawful combatants and enemy combatants is absolutely necessary if for no other reason than to protect our own troops. That is why we are doing this. That is one of the main reasons--to make sure that your own troops don't get in trouble because they are confused. I have been a military lawyer for 20 years. We have confused people about as much as you can possibly confuse them. And this all started with the Bybee memo. I think we need to know the history of where we have been, to find where we are before we take corrective action. Right after 9/11, this Nation was shocked and shaken. We tried to make sure we could secure our freedom and security and do a balancing act, and we have done a pretty good job of it. How can you be secure and still free? How can you fight the worst enemy and still not become the worst of yourself? I think you can. The Bybee memo was an effort by people at the Justice Department to take international torture statutes that we had ratified and been party of and have the most bizarre interpretation basically where anything goes. It was an effort on the part of the Department of Justice lawyers to stretch the law to the point the law meant nothing. And early on in this process, those in uniform who happened to be military lawyers stood up and spoke. I am going to read from General Sandkuhler, Brigadier General of the U.S. Marines, who was one of the judge advocates to review this change in policy, this very liberal interpretation of what torture might be. He said: The common thread among our recommendation is concern for servicemembers. OLC [Office of Legal Counsel] does not represent the services; thus, understandably, concern for servicemembers is not reflected in their opinion. Notably, their opinion is silent on the UCMJ and foreign views of international law. The general is telling the civilians that we live in a different world. This is a complex process, and if we interpret a torture statute in the way you are suggesting, we are going to get our own people in trouble. He says: We nonetheless recommend that the Working Group product accurately portray the services' concerns that the authorization of aggressive counter-resistant techniques by servicemembers will adversely impact the following: a. Treatment of U.S. servicemembers by Captors and Compliance with International Law. We have been the gold standard. We take this moral high ground to make sure if our people fall into enemy hands that we will have the moral force to say, You better treat them right. If you don't practice what you preach, nobody listens. Sometimes that does not happen, but you don't want to erode the principle because it puts people at risk. Criminal and Civil Liability of DOD Military and Civilian Personnel in Domestic, Foreign, and International Forums. All the reasons all the JAGs wanted to push back is that you are going too far if you interpret the statutes as being proposed by the Department of Justice. Some of the techniques violate the Uniform Code of Military Justice. Senator Stevens is concerned about joint operations. Here is the rule: If you are wearing America's uniform, you are going to be judged by American standards. You will never be prosecuted unless you do something inconsistent with our law. If you are part of an international group and wondering what to do with a prisoner in front of you, I suggest we let our troops know there are rules they must follow, and if they see anything they think is out of bounds, report it. The best thing we can do for anybody operating in the war on terror is give them clarity about what to do in very stressful situations. There is the combat role. What do you do with somebody who is captured? You do what the President says: You treat them humanely, you interrogate them by standards we can live by that will not erode our moral authority. Where have those standards been in the last 50 or 60 years? The Army Field Manual. You can change the Army Field Manual to adapt techniques to the war on terror. There is a classified section of the Army Field Manual. There is nothing about its adoption that limits the ability to aggressively interrogate people to get good intelligence. But if you want to torture people, the Army Field Manual says no and the President says no. It is now time for Congress to say no, and that is what this amendment is about. Congress has been AWOL when it comes to the war on terror in terms of interrogation, detention, and prosecution, and we have done it in a way that weakens our Nation. We are the strongest when all three branches are on the same sheet of music. It is important, if we are going to win this war on terror, not to give the moral high ground to your enemy and to have laws that every branch of Government understands and the people implementing these laws are not confused and they will not get in trouble by following what we have said. Congress has been AWOL. It is now time for Congress to step up to the plate and offer assistance in the war on terror to the administration. That is exactly what we are doing. I asked Judge Roberts, during the confirmation process, about this whole line of questioning. I said: Do you believe that the Geneva Convention, as a body of law, that it has been good for America to be part of that convention? ROBERTS: I do, yes. GRAHAM: Why? ROBERTS: Well, my understanding in general is it's an effort to bring civilized standards to conduct of war--a generally uncivilized enterprise throughout history; an effort to bring some protection and regularity to prisoners of war in particular. And I think that's a very important international effort. It is an important international effort, and al-Qaida should not be considered a lawful combatant under Geneva Conventions. But it is about us, as Senator McCain said. When we catch someone who is not under the Geneva Conventions, it is important that our people not only follow the dictates of the President--treat them humanely--but they know what to do. We are giving confusing policies in this new war on terror, this hybrid between a lawful combatant, enemy combatant, and regular combatant. We need to standardize our techniques. How do we do that to make America the strongest? How can we effectively do that? We get the Congress involved, we get the administration involved, and we get the courts involved. Right now we have two court cases that are all over the board. Judges are telling us--Justice Scalia in one of the court cases is screaming out that Congress has been absent here. Congress needs to speak because the courts are not equipped to run Guantanamo Bay. The courts are not well equipped to interpret military policy, and they need guidance from Congress. I asked Justice Roberts about that. One of his favorite Justices is Justice Jackson. Justice Jackson in the Youngstown steel case basically said that the executive branch is at its strongest when it has the expressed or implied consent of Congress. When I met with Judge Roberts on this whole issue about detention, interrogation, and prosecution of enemy combatants, he said this is an area where the courts would welcome congressional involvement. As a result of us being AWOL in Congress, there is a Supreme Court decision, 5 to 4, giving enemy combatants at Guantanamo Bay habeas corpus rights. They are noncitizens, and they are able to go to Federal court because there is no clear direction from Congress about how to treat these people. Mr. President, 185 of them have lawyers, and they are absolutely overrunning the place. To me, it is absurd that an enemy combatant, noncitizen terrorist has habeas corpus rights, and the reason they do is because we are giving no guidance to the courts about how we want these people treated. I believe it is now time to give guidance to the courts, to the country, to the international community, to those in uniform serving us, and to the terrorists about what we are going to do, and Senator McCain's amendment has got it. It is the authority that has been missing in this great effort to win the war on terror. It is now bringing standardization into an area which had been previously chaotic. Every military lawyer who has been looking at the policies proposed has come away confused. Let me tell you unequivocally that the military legal community understands what Senator McCain is doing and wholeheartedly adopts his efforts, that not only would it be good for the Congress to speak with the same authority as the President, but it would help the courts, and it would be good for our troops if they had the protection of standardization. If you want to help our troops who are trying to win this war on terror, give them the cover they need and the guidance they need. Do not throw them to the wolves. We have had people prosecuted because they have been given an impossible task. They have been given the task of interpreting laws that make no sense. And if you really do want to stand by the troops, give them guidance. Give them the guidance and the tools they can use to get good information, not bad information, and get information in a way that does not embarrass our Nation and put us at risk. Abu Ghraib has been a giant step back, a huge step back, and one of the reasons we had Abu Ghraib is because nobody there knew what they were doing. They were not trained. They were overwhelmed. They did not have consistency when it came to interpreting the interrogation policies because the policies made no sense. Some people are in jail now. Most of them are in jail because of their own misconduct. Some people have had their careers ruined because they are trying to interpret policies nobody can understand. That is a huge deviation from the way we conducted war for 50 to 60 years, and we paid the price. We are allowing courts to come in and do things they are not equipped to do because we have been AWOL as Congress. The best thing we can do to win this war is have policies that allow us to effectively interrogate, detain, and prosecute terrorists without ceding the high ground. And this amendment is a start. I am going to introduce every JAG memo written about the original policies. Their concern is we are putting our own people at risk. This is General Rives, my current boss: Should any information concerning the exceptional techniques-- And they were exceptional-- become public, it is likely to be exaggerated/distorted in both the U.S. and international media. This could have a negative impact on international, and perhaps even domestic, support for the war on terrorism. It could likewise have a negative impact on public perception of the U.S. military in general. This was written 6 February 2003. He was foretelling what was going to happen. These are not ACLU lawyers. This is a Marine Corps general and a two-star general in the Air Force who dedicated their lives to defending their country and holding us up to be the great Nation we are. I urge my colleagues to please adopt this amendment overwhelmingly. It will do a great service to future Presidents. It will be a great turning point in the war on terror. It is needed. It is a simple amendment. It uses the Army Field Manual as the bible for interrogation for lawful combatants and enemy combatants. You can write it the way you need to. It does not lock us into a position that would be undermining our efforts to get good intelligence. It simply will be a document that covers how we behave in every known situation from Guantanamo Bay to the battlefield in Afghanistan. It will be something that will help our troops understand what they can and cannot do. It will make us stronger as a nation. The second part of the amendment is the most important. It says that we as a nation will do what the President said: We will treat everybody in our charge humanely whether they deserve it or not because, as Senator McCain said, it is about us, it is not about them. And it is now time for Congress to speak. It will help us in court. When the courts understand that the Congress has come up with a plan in support of the administration to interrogate detainees, they will give great deference to that situation. When Congress is absent, they are going to be confused, and they are going to do some things they really do not want to do. This is a very important moment in the war on terror. This brings us back into the light out of the darkness. It allows us to interrogate enemy combatants, unlawful combatants in a way to get good intelligence without undermining who we are as a people. It is necessary, it is legally necessary. It will strengthen our hand in court. It is very necessary to create certainty out of confusion for our troops. One thing I can say with absolute certainty is that we have let the troops down when it comes to trying to give them guidance about what to do in very stressful situations. We are trying to give them the armor they need to protect themselves from a terrible enemy. We are trying to give them the intelligence they need to get ahead of the enemy. The best thing we can do is give them the guidance they need to make sure we can win this war on terror and never lose the moral high ground. I urge every person to think long and hard about this amendment. To vote no on this amendment, in my opinion, dramatically weakens us as a nation. To vote yes reinforces our values, provides good guidance to make sure we get good intelligence, and protects our own people from being prosecuted. I yield the floor.

Mr. GRAHAM. I was under the assumption the amendment was going to be accepted, as you were, and now I have been told there are some concerns from the minority on the committee. I have talked extensively about these series of amendments. They all work in conjunction with each other. Senator McCain's amendment standardized interrogation techniques and what we as a people want to live by--we do not want to torture people. We are not going to torture people. My amendment standardizes and makes small changes to the determination of who is an enemy combatant and who is not, because you keep people at Guantanamo Bay indefinitely under this procedure. It needs to be blessed by Congress. The third thing we do, later on, is deal with military commissions, actually how you try these people. So I was under the understanding, I say to the Senator, that not only was Senator Warner a cosponsor of these two amendments, but that everybody was on board. The point here is to give the courts some guidance to bring about legal certainty where there is a legal mass, as Senator McCain indicated. So I don't know why anybody is objecting.

Mr. GRAHAM. I have discussed it with one of the cosponsors of the amendment, Senator Warner, yes. I have been to Guantanamo Bay with Senator Warner and others, where we have talked about this. Yes, sir, I am very sure that the chairman knows about this because he is a cosponsor of the amendment.