Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. Reserving the right to object, I would like to be able to state some general areas of agreement and disagreement concerning Senator Sessions' statement. Is that possible when I introduce my amendment?

Mr. GRAHAM. That is acceptable to me.

Mr. GRAHAM. I don't want to stop Senator Sessions from finishing. I can come back.

Mr. GRAHAM. I would like at this time to submit it to the desk if I may.

Mr. GRAHAM. And it will be. There will be a section that is specific for unlawful enemy combatants. That is not a traditional way to deal with them versus POWs.

Mr. GRAHAM. Absolutely.

Mr. GRAHAM. Yes, I yield.

Mr. GRAHAM. Mr. President, I would like to build on what Senator Sessions said. If this amendment did the things suggested, I would support it. One, the Army Field Manual is being revised, as we speak, with two groups in mind--lawful combatants and unlawful combatants. The amendment says that the Army Field Manual be the guide in whatever form it is in. It does not lock in this version. They are going to have a version part of it classified so our enemy does not have a chance to prepare for interrogation techniques that deal with lawful combatants and unlawful combatants. The reason we are doing that is because what the JAGs told us over 2 years ago. The common thread among our recommendations is concern for servicemembers. If we put people on the line in this war in terror, we want to give them everything they need as far as equipment. If we put people on the line in terms of handling detainees, we want to give them everything they need, the tools to get good information, but what we do not want to do is put our own people at risk. We are trying to armor all our vehicles. What we are trying to do with the people who are holding these terrorists and interrogating them is not getting them in trouble. The Office of Legal Counsel, on 27 February 2003, from a Marine general, not exactly the ACLU, said: The common thread among our recommendations is concern for our service members. The Office of Legal Counsel does not represent the services, thus understandably concern for service members does not reflect in their opinion. Notably, their opinion is violent on the foreign views of international law. This is what the judge advocate general of the Army said: I recommend the aggressive counterresistant interrogation techniques under consideration be vetted with the Army intelligence community before a final decision on their use is made. Some of these techniques do not comport with Army doctrine as set forth in the Field Manual, FM 34-52, intelligence interrogation, and may be of questionable practical value in obtaining reliable information of those being interrogated. What we are trying to do is have a guide our troops can understand with two parts--one for lawful combatants and one for unlawful enemy combatants. We will know what the rules of the road will be. We are putting congressional approval on those rules. We have had the White House, Congress, and eventually the courts saying you can aggressively interrogate prisoners not covered by the Geneva Conventions. We have been all over the board for the last couple of years. We are trying to bring it together in symmetry where the military can write the rules. They know better than I do. I am not saying I am an expert on interrogations. They are going to write the rules the way they need to be written, and Congress is going to say you are good to go. These JAGs were telling us you have confused concepts, so we are trying to do away with that confusion to make it stronger, not weaker, to make us better at gathering intelligence and avoid the problems we have had in the last 2 years. I think it is a very smart thing to do. I look forward to trying to help change it if it needs to be changed, but nobody is locking the military into a set of rules that does not allow them to aggressively get what they need to make us safe. We are trying to provide the military and all those in charge of detainees clear guidance so they will have the flexibility they need and we will not get our people in trouble. That is what we have been working on for 2 years. We are at a point where we can actually accomplish something that will be good for this country, good for the military, and help win this war on terror. Part of this war is about image.

Mr. GRAHAM. Now, over time, we are going to learn more about what these memos tell us, but basically these memos are telling us that the proposed interrogation techniques dealing with the war on terror, suggested by the Department of Justice, sent over to Department of Defense, were such a deviation from the normal way of doing business that it would get our own people in trouble. It was such a deviation from the normal way of doing business that we would lose the moral high ground in fighting the war on terror. General Rives sums up: Finally, the use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral ``high-road'' in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty. It should be noted that [the] law of armed conflict and code of conduct training have been mandated by Congress and emphasized since the Viet Nam conflict when our POWs were subjected to torture by their captors. We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful. He talks about a slippery slope that we are about to embark on that will result in some of our own people being subject to being court- martialed because the Uniform Code of Military Justice has many provisions dictating how you will treat someone who is in your custody as a detainee. And they were trying to tell the Department of Justice and the Department of Defense civilian lawyers: Do not go down this road. You are going to bite off more problems than it is worth. Admiral Lohr says that some of the techniques would violate the torture statute. I will read in more detail later what these memos are telling us the rules of the road are. But these are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself. What Senator McCain is trying to do is build upon their advice by putting in place an interrogation technique that this country can be proud of, that we all will understand, and that can be implemented to make us safer without having a black eye throughout the world. I asked the question--when I went to GTMO with the chairman about a week or 2 ago--to all the interrogators there: Is there anything lacking in the Army Field Manual that would inhibit your ability to get good intelligence? And they said no. I asked: Could you live with the Army Field Manual as your guide and do your job? They said yes. The reason the Army Field Manual is a good source is because it has been part of who we are for years. People are trained on it. What was happening is, the Department of Justice, understandably, after September 11, wanted to come up with the most aggressive techniques possible to deal with foreign terrorists. But the JAGS are telling us you cannot look at this one event in isolation. You have to understand what we have been standing for for 60 years and what the law actually says. The DOJ's interpretation of the torture statute from a lawyer's point of view was absurd. And the JAGS were telling the policymakers: If you go down this road, you are going to get your own people in trouble. You are on a slippery slope. You are going to lose the moral high ground. This was 2003. And they were absolutely right. To Secretary Rumsfeld's credit, when he heard about the working group having problems with the DOJ's suggested interpretations of ``interrogation,'' he reconvened and the techniques changed. But as Senator McCain has said very well, we need to bring certainty to this process of interrogating foreign terrorists to make sure we can get good, reliable information. We can do it in a way that people understand, our troops will not get in trouble, and we can show the world we are truly a rule-of-law nation. There is nothing inconsistent with interrogating people to get good information to protect our country and using the Army Field Manual. What has got us in trouble is when we try to make it up as we go, when we forget who we are, when we will not listen to people who have worn the uniform, who are in uniform, telling us: Do not go down this road, our people are trained to do it one way, you are confusing the heck out of them. What have we learned in the last 2 years? If you know what the rules are about interrogating anybody, come tell me because I can't figure it out. I have spent 20 years as an Air Force lawyer myself. There is much confusion, and confusion in war is dangerous. Anyone who misunderstands what we are doing here in terms of our view of terrorists is playing politics. No one supporting this amendment wants a foreign noncitizen terrorist not to be aggressively detained, prosecuted, if appropriate, and interrogated to make our country safer. We can prosecute, we can detain, and we can interrogate aggressively, but we have to have rules that our people can understand and don't deviate from who we are as a Nation. That is why I am supporting this amendment. Everyone who works at GTMO dealing with the 500 foreign noncitizen terrorist suspects, enemy combatants, has told me, because I asked the question, if you use the Army Field Manual, we have everything within that manual we need to do the job right. If you use the Army Field Manual, we will be back in a good place with the law. We will be back in a place where our people can understand what is going on. We will again capture the moral high ground which is the ultimate way to win this war. There is no downside to this. The upside is huge. We are able to get good information, not get our people in trouble, and have a better image in the world. That is why I am supporting this amendment. I have included these memos for the record. It would serve every Senator well to spend 5 or 10 minutes reading through them because these people were telling us in 2003, if you go down this road, the road we chose initially, you are going to get everybody involved in trouble. That is exactly what happened. I yield the floor. Amendment No. 1556, As Modified

Mr. GRAHAM. Mr. President, I rise in support of Senator McCain's amendment. The point that Senator Warner is making, I fully understand. But I think we are at a crossroads in the war on terror. Guantanamo Bay has great potential to make us safer as a nation. But one of the problems we have experienced in this war is a problem of image. It is a new kind of enemy with a lot of nuances. But one thing we cannot do as a nation is forget who we are, what got us here for 200-something years. We can fight this enemy aggressively, no-holds-barred, go after them, and not lose who we are. Senator McCain is addressing one of the problems we have found crop up in different areas of the world when it comes to noncitizen foreign terrorists, and that is how you interrogate and stay within the boundaries of who you are as a people and not getting your own people in trouble by cutting corners. So the reason I am supporting his amendment--and we are not just saying: Secretary of Defense, come up with a solution here--is because, after a lot of thought and study, it is clear to me that the Army Field Manual gives you everything you need to aggressively interrogate and seek good intelligence from foreign noncitizen terrorists held at GTMO and any other place under DOD control. Mr. President, I would like to submit for the Record several memos that have just been recently declassified. They were requested on October 7 of last year by myself, Senator Levin, and Senator McCain. The first one is a 27 February 2003 memo from BG Kevin M. Sandkuhler, U.S. Marine Corps, Staff Judge Advocate to CMC. The next one is from MG Thomas J. Romig, U.S. Army, the Judge Advocate General, dated 3 March 2003. The next is from MG Jack L. Rives, Deputy Judge Advocate General of the U.S. Air Force, dated 6 February 2003. The next is from RADM Michael F. Lohr, Judge Advocate General, U.S. Navy, dated 6 February 2003. The next is Rear Admiral Lohr, dated 13 March 2002. And the final memo is from Major General Rives, Deputy Judge Advocate General, U.S. Air Force, dated 5 February 2003. I ask unanimous consent those memorandums be printed in the Record.

Mr. GRAHAM

Mr. GRAHAM. Absolutely.

Mr. GRAHAM. It is not only my understanding, it is also part of the Uniform Code of Military Justice. There is a specific section that makes it a crime to abuse a detainee or a prisoner.

Mr. GRAHAM. Absolutely.

Mr. GRAHAM. I say to the chairman, he is absolutely correct. It is a very simple concept we are trying to achieve. There are two problems, there are two groups of people we worry about for two different reasons. One group I worry about is the Americans in charge of these detainees because we have all kinds of laws that we have adopted, for 60 years, directing our people in how to treat folks who are captured-- whether they are lawful or unlawful. We have had policy statements and directives that are at best inconsistent, that are all over the board, floating out there in legal cyberspace. We are trying to put into one document, the Army Field Manual, the rules of the road for both groups, lawful combatants and unlawful combatants. We are not writing the field manual, we are not telling the experts what to put in the manual, how to write it, we are saying, for the sake of our own troops, you have one document you can go to now. And we are saying to the world we are going to standardize our techniques. We are not going to have inconsistent messages. The JAG memos we were talking about a while ago that were 2 years old now are telling us if you get too far afield from what we have been doing for 60 years, you are going to get yourself in trouble. So the Army Field Manual will be one-stop shopping for all those responsible for detainees in both categories, and it will standardize procedures that will allow us to get good information, be aggressive, without losing who we are as a people. That is why we need this, in my opinion.

Mr. GRAHAM. The Senator has made my day.

Mr. GRAHAM. The Geneva Convention would govern how we treat the lawful combatant. That is something we all understand and have been working with for 60 years. The unlawful enemy combatant can now be detained for an indeterminate period of time, once that determination has been made, with an annual review required to see if they should be kept based on danger to our country that the person presents, and any intelligence data that they present. So this legitimizes what the courts have been telling us to do. The courts have said that an unlawful enemy combatant status determination is an appropriate legal concept as long as the person is given notice and the right to challenge. So what we are doing in this statute is taking the court's directive and we are giving them notice and we are giving them a right to challenge. A lawful combatant already has that under the Geneva Conventions.

Mr. GRAHAM. That is a very good point. Under the procedure in place now, a military representative is provided to the enemy combatant initially. When the determination is made whether someone is an enemy combatant, our own rules provide a military representative. In an annual review, a military representative is given to the enemy combatant to make their case that they are no longer a danger. What I wanted to do at the annual review is make that person a military lawyer because the potential of keeping these people there for a long period of time is great because unlike other wars dealing with traditional POWs, there is nobody to sign surrender documents. I can understand the Senator's concerns. We can deal with that issue later. So we will go back to the old way of doing business. The lawyer requirement will be taken out and we will go back to the procedures that are in place now. Right now, every unlawful enemy combatant has a military representative to help them make their case about their status. We will not make that person a military judge advocate. I think it would help us in court, but I do not believe it is that important. It will pass muster with the courts in its current form, so that has been changed.

Mr. GRAHAM. That is correct.

Mr. GRAHAM. Very quickly, I appreciate the patience of the Senator from Florida and Chairman Warner. Mr. President, this amendment deals with the concept called unlawful enemy combatant, a concept being used to detain about 500 people at Guantanamo Bay who have been captured throughout the world, many of them on battlefields. It is a concept that goes back to World War II where the Supreme Court, during World War II, coined the phrase ``enemy combatant'' to deal with some German saboteurs who were caught coming into America in civilian clothes, with a plan to disrupt American life in the war operations. These individuals--I think there were seven of them--were tried by military tribunals. A couple of them were put to death. Some were given lengthy prison sentences. Then the Court recognized the concept of enemy combatant. Fast forward 60 years. What do we find? We find ourselves in a war with a group of people who are not part of a state or a nation. They do not wear uniforms. They are terrorists. They hide among civilians. They cheat. They do anything one can imagine to have their way. They do not abide by any international regimes. When we capture these people, we have made a decision as a nation to house them at Guantanamo Bay, a place run by the military. It has three functions: To interrogate foreign terrorists to get good information to make sure that we are safer as a nation. Senator McCain has an amendment to standardize the interrogation techniques. I think the country would be well served to have everything dealing with unlawful and lawful combatants in separate categories. We want the Geneva Conventions to apply to people who are under it. We do not want the Geneva Conventions to apply to terrorists. We want to do it right. We want our troops to not be confused. Senator McCain has an amendment that would basically allow the Army Field Manual to be the one source of law to deal with both categories, which would be a great benefit to the military and the country at large, in my opinion. I have an amendment that gets Congress involved for the first time. In a general way, the Congress authorized the President to go to war after 9/11. A lot has happened since then, some good, some bad. I think it is now time for the Congress to weigh in on the issues that affect this Nation in the war on terror. My amendment allows Congress to define ``unlawful enemy combatant'' in a very flexible way similar to what is being used at Guantanamo Bay now. It incorporates the procedures that are used to classify and review enemy combatant status. The way it works now, if the military or appropriate authority sends someone to Guantanamo Bay, the first thing that happens is there is a review process where a determination will be made as to whether that person fits the definition of ``unlawful enemy combatant.'' We are codifying that procedure. We are accepting most of it. We are tweaking the definition in line with Supreme Court cases that have reviewed this whole subject matter. That is another point I would like to make. There are about five cases in Federal court now dealing with issues like enemy combatant status, military commissions to try noncitizen foreign terrorists. The Government has won on most of these cases. But enemy combatant status needs to be defined, in my opinion, by the Congress working in conjunction with the administration because courts will defer to a statute much quicker than it will defer to anything else. In one of these opinions, Justice Scalia has been telling us that Congress has been AWOL. Congress needs to get involved. So this amendment allows the procedures in place at Guantanamo Bay to make the initial determination, if one is an enemy combatant, to be authorized to be utilized by the President. Every year, a review is made of each person's case. Every year the Government has to come and show that the enemy combatant status is still justified, that the person who is being detained is not dangerous to us or our allies, or they no longer have any intelligence capability or intelligence value. At that point, they can be released. Two hundred and something have been released. What we are trying to do with this amendment is to get Congress involved in that process so that the courts will understand that Congress agrees with the concept of unlawful enemy combatant and that the review process in place is a good process. I have made two changes. One, I have addressed the issue of using statements that are derived from foreign interrogations. I do not think anybody in this country wants our Nation to be using evidence that may be tainted by torture or undue coercion. So I have a provision in there that says if a statement or information is used that comes from a foreign detention or a foreign interrogation, we have to simply prove, where practical, that it is reliable, that it is not as a result of coercion. The courts will appreciate that, and I think the American public would appreciate that. Second, we have a provision that the releasing authority, the person who decides if someone can be released, should be confirmed by the Senate. Under Secretary England performs that function right now, but I think it would be a good relationship to have the Senate involved in picking that person who has the ultimate authority to determine to let these people go because 12 of them have gone back to the fight. Some people who have been released have gone back to the war. Some people who have been picked have probably been misidentified. We are trying to get a procedure that the courts will accept, that will be good for the country, that will keep terrorists off the battlefield, that would withstand legal scrutiny and live up to the ideals of who we are. If Congress will get involved and legitimize unlawful enemy combatant status, it will pay great dividends to the operation at Guantanamo Bay because we will have the administration and the Congress on the same sheet of music and the courts will soon follow. My goal is to strengthen Guantanamo Bay, make sure that abuses in the past never occur again, have standardization of interrogation techniques so our troops will not get in trouble so that we can get good, reliable information. The military commissions are on track to be approved by the Supreme Court. We need a place to try these terrorists for their crimes. If they are not being tried, they need to be kept off the battlefield. Enemy combatant status does that. We need due process rights. We are a nation of laws. This amendment incorporates the due process that already exists with some improvement. If we will do these things, Guantanamo Bay will be more effective in the future. It will be a forward-looking, reform-type process. We will not be captured by the mistakes of the past, and we will be a safer nation. I appreciate Senator Warner's support and leadership on this issue. We are trying in concert to make sure that we are stronger as a nation, not weaker. We learn from our problems. We clean up some of the problems we have had in the past and Congress finally gets involved. I think the courts will appreciate that. I know the American public will. With that, I will yield to Senator Warner.

Mr. GRAHAM

Mr. GRAHAM. At this time, Mr. Chairman, if I may, I yield to Senator Thune, one of our newest members, 3 minutes. He has been a strong advocate of this legislation.

Mr. GRAHAM. Mr. President, I ask unanimous consent to have 15 minutes more because, what I would like to do is give Senator Coleman 4 minutes, Senator Leahy wants 4 minutes, and Senator Allen wants 4 minutes. I am not good at math--whatever we need to get that done.

Mr. GRAHAM. We are building on what we did last year. This fight is going to go on for a long time in Iraq and Afghanistan. We can't leave too soon. The idea of having a smaller involvement by Guard and Reserves is an intriguing idea, but it is not going to happen anytime soon either. This benefit will help immeasurably the quality of life of guardsmen and reservists, take stress off of them and their families, and it is the least we can do as a nation who are being defended by part-time soldiers who are really full in every capacity and die in every bit the same numbers, if not greater, than their Active-Duty counterparts. I will yield the floor to Senator Clinton, who has been with us every step of the way. We have made a great deal of progress. We are not going to stop until this provision becomes law. To my friends in the House, the House Armed Services Committee passed this provision with six Republicans joining with the Democratic side of the aisle to get it out of the committee and, through some maneuvering on the floor, this provision helping the Guard and Reserve families was taken out of the bill. There has been one vote after another in the House where over 350 people have supported the concept. To my friends in the House, I appreciate all you have done to help the troops, but we are going to fight over this issue. This is not going away. We are not quitting until we get it right for the Guard and Reserves. I yield the floor to Senator Clinton.

Mr. GRAHAM. I yield 4 minutes to Senator Leahy, who has been chairman of the Guard caucus, and who has championed this legislation. I am honored to have him as a partner.

Mr. GRAHAM. Thank you, Mr. Chairman, for all our assistance. I now recognize Senator Coleman and yield him 4 minutes.

Mr. GRAHAM. Is 20 minutes OK?