Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the attached editorial by the Arizona Republic, dated January 24, be printed in the Record of this debate on the confirmation of Judge Samuel Alito to the U.S. Supreme Court. The editors' support for Judge Alito is welcome, and their statement that ``Judge Alito is a superior candidate for the high court regardless of his political leanings'' is absolutely true.

Mr. KYL. Mr. President, I rise in support of Judge Alito's nomination to the Supreme Court and urge my colleagues to quickly confirm him. I begin by observing that the party-line vote in the Judiciary Committee yesterday raises a troubling question for the full Senate, and it is basic to our deliberations. What is the proper test for determining whether to confirm a nominee to the Supreme Court? Until very recently, the Senate has evaluated whether the nominee was qualified--that is, whether he or she possessed the requisite experience, integrity, and temperament to serve. But a new test has been proposed by Judiciary Committee Democrats: will the nominee provide assurances that he or she will rule a particular way on cases sure to come before the Court? Before I discuss the ramifications of that troubling question, though, I would like to apply the traditional test--the proper test--to the nominee before us. A Supreme Court Justice should be an experienced judge. Samuel Alito has more Federal judicial experience than all but one nominee in U.S. history, Horace Lurton, who was nominated by President Taft. In 15 years of service, Judge Alito has authored more than 360 opinions and participated in more than 4,800 decisions. It is an extensive record. A Supreme Court Justice should be deeply familiar with American constitutional law. Judge Alito has spent his entire professional life grappling with constitutional jurisprudence--serving as a Federal prosecutor at both the trial and appellate level, as the government's lawyer before the Supreme Court, and as a constitutional lawyer in the Justice Department before becoming a judge. Nobody who watched Judge Alito's testimony would deny that he is a brilliant legal thinker with a deep and textured understanding of our Nation's jurisprudence. A Supreme Court Justice should have unassailable integrity. Here, I look to those who know him best. First, the American Bar Association, in finding him unanimously ``well-qualified'' to serve, conducted more than 300 interviews with people who know Judge Alito on a professional and personal basis. They have reported that the high praise for Judge Alito's integrity was ``consistent and virtually unanimous.'' I repeat, it was ``unanimous.'' Second, let's look at what the judges of the U.S. Court of Appeals for the Third Circuit had to say. Seven current and former judges testified on Judge Alito's behalf--judges who were nominated by Presidents Johnson, Nixon, Reagan, the first President Bush, and Clinton. Collectively, they have served with Judge Alito for more than 75 years. They praised his fairness, his integrity, his open- mindedness, his temperament, his intellect, and his devotion to the rule of law. Finally, a Supreme Court Justice must know the difference between the judicial role and the legislative or executive function. This qualification is sometimes difficult to decipher, but there are several clues that can guide us. First, a long judicial record helps, and Judge Alito gives us that. There is not a trace of judicial activism in his record. Second, a judge cannot have a policy agenda. He or she must defer to the political branches on policy questions. Judge Alito agreed, testifying, ``We [judges] are not policymakers and we shouldn't be implementing any sort of policy agenda or policy preferences that we have.'' Judge Alito's colleagues on the Third Circuit appeals court confirmed this. For example, Judge Aldisert testified that ``at no time during the 15 years that Judge Alito has served with me and with our colleagues on the court, and the countless number of times that we have sat together in private conference after hearing oral argument, has he ever expressed anything that could be described as an agenda.'' Third, a judge must not twist statutes or constitutional provisions to reach a result he favors. As Judge Alito testified, ``Judges don't have the authority to change the Constitution. The whole theory of judicial review . . . is contrary to that notion.'' In other words, a judge must accept that the Constitution will sometimes require him to make rulings that he might disagree with. Politicians are free to vote their convictions; judges must put their personal views aside. I will have more to say about this issue in a few moments. Fourth, the judge must have the right understanding of the ``living Constitution.'' Our Constitution must always remain alive to new situations that the Founders did not contemplate. But the judge must apply the constitutional provisions in the way that most closely approximates the meaning of the text and the underlying principles as understood when drafted. The Constitution is not infinitely malleable. It is not a blank slate for the judicial branch to draw upon. It has no ``trajectory'' or ``evolutionary theme.'' It is a text--words with meanings. If the Constitution can be twisted to mean anything, then it ultimately means nothing, and then we live under the rule of judges, not the rule of law. Judge Alito respects the proper divisions within American constitutional government. As he explained in his testimony, the judiciary ``should always be asking itself whether it is straying over the bounds, whether it's invading the authority of the legislature [or] making policy judgments other than interpreting the law.'' He emphasized that judges have a duty to police themselves through what he called the ``constant process of re-examination on the part of the judges.'' If all judges engaged in this process of re-examination, the quality of justice in this Nation would improve dramatically. Judge Samuel Alito is not going to legislate from the bench or bend the Constitution to suit any political preferences that he might have. He is not going to rely on foreign law, but will look to our American traditions. He is not going to apply the Constitution as he wishes it might be, but as it is written. In exercising this judicial restraint, Judge Alito will protect the people's ability to govern themselves--and that is ultimately what is at stake. That is why I support Judge Alito. Here is a man who is the son of an immigrant, comes from a modest background, and has a keen sense of patriotic duty. He is highly intelligent, undeniably experienced, and imbued with character and personal integrity. He has a low-key, patient, and respectful personality--the model of what we have come to call the ``judicial temperament.'' He believes in judicial restraint and has proven it for the past 15 years. He deserves my vote and I will proudly give it to him. This is the analysis we have applied in the past, and its application has resulted in confirmation for most nominees. It was certainly the analysis used to evaluate President Clinton's nominees to the Supreme Court. So it is in this context that I want to discuss what is evolving as a new test--a ``results-oriented'' test. The minority members of the Judiciary Committee did not question Judge Alito's qualifications. Rather, they tried to get him to commit to certain results in cases that are sure to come before the courts. They want to see certain policy goals enacted into law. Now, we all want our policy goals to become law, but our aim should be enacting constitutional legislation, not relying on the courts to enact our policy preferences. In my September statement supporting Judge Roberts, I explained that this same dynamic had played itself out during his hearings. It is apparent that there is now a fundamental difference between the majority and the minority parties on this matter. We believe the courts should not try to impose policy results in their decisions; they should just decide the questions of statutory interpretation and constitutional meaning. For the Supreme Court, the results are--or should be--simply a function of the proper application of the Constitution and law to the facts of each case. To the minority, however, that's not enough. As many minority Senators have expressed, they are not going to vote for a nominee who will not assure them that he will vote the way they want in future cases. I submit that that is wrong. As Judge Alito testified, ``Results-oriented jurisprudence is never justified because it is not our job to produce particular results.'' Yesterday's meeting of the Judiciary Committee illustrates that many Senators have adopted this results-oriented approach to the confirmation process. The wrong questions are being asked, and the wrong answers are being demanded. The right question is how the nominee will do his job, not what the nominee will decide. This fundamental point is getting more and more lost with each passing confirmation battle. Let me give a few examples. Yesterday a Senator said that it was necessary to vote against Judge Alito because that Senator believes in a right to abortion and there is no guarantee that Judge Alito will agree with that position in a future case dealing with abortion regulations. That Senator took the same approach when discussing the just-decided case of Gonzales v. Oregon, which dealt with the Attorney General's promulgation of regulations in response to a state physician-assisted suicide statute. The Attorney General had said that, despite the Oregon statute, physicians could not use Federally regulated drugs to kill patients. The case, therefore, did not turn on the Court's views on physician- assisted suicide, but, rather, on the interpretation of the underlying statute. The majority made this clear in the first paragraph. Justice Kennedy explained: The dispute before us is in part a product of this political and moral debate, but its resolution requires an inquiry familiar to the courts: interpreting a federal statute to determine whether Executive action is authorized by, or otherwise consistent with, the enactment. The Supreme Court had not ruled on the wisdom or appropriateness or constitutionality of physician-assisted suicide, but the Senator was critical of Chief Justice Roberts because he had not voted to uphold assisted suicide, and the Senator didn't think Sam Alito would either. One could fervently agree with the Senator on the policy issue, yet interpret the statute in a way that requires a different result. But, it appears, results are all that matter. As another example from yesterday's committee meeting, a Senator said that protecting wetlands was very important, and wanted to make sure that Judge Alito would allow the Federal Government to protect them under the Clean Water Act. The Senator acknowledged that the underlying constitutional question was the extent of Congress's power to regulate non-navigable waterways which, arguably, are not in interstate commerce. That is a thorny constitutional question. But, rather than acknowledging that Congress might have gone too far in exercising its power to regulate interstate commerce, the Senator was troubled that Judge Alito's future votes on protecting wetlands could not be predicted. Now, I don't mean to single out any one Senator, because the same thing happened throughout the committee meeting. Senator after Senator would bring up the results of decisions by Judge Alito without any regard as to why he reached a certain result, such as their procedural disposition, the proper standard of review, the governing case law of the Supreme Court or the Third Circuit, or the legal reasoning that Judge Alito used. It was all about results. As a final example, another Senator wanted Judge Alito to tell him that it was unconstitutional for the President to take major military action against Iran or Syria absent prior congressional authorization. He was exasperated that Judge Alito wouldn't just prejudge the question, which the Senator called ``basic,'' and say that the President could not do so. But Judge Alito gave the judge's answer. It was anything but ``basic.'' Judge Alito explained that he needed to consider the political question doctrine first, then to analyze the scope of the President's Article II War Powers, the history of the use of force absent congressional authorization--it's a very complicated history--and then apply it to the facts before him. The Senator wanted a politician's answer, a policymaker's answer. In other words, he wanted to know how that case would turn out, before it was briefed and argued. But all we should be asking, is how he would approach the question. What principles would Sam Alito apply, not what kind of results Sam Alito will deliver. Abortion, executive power in a time of war, congressional power, State sovereign immunity, the 4th amendment, wetlands regulation, the death penalty--many Senators have constructed a confirmation standard that revolves completely around predictions about how cases related to issues such as these will come out. We cannot allow our public policy aspirations to cloud our view of the judicial function. If our process evolves into results-oriented voting, votes will inevitably become partisan. Indeed, it appears that it has already become partisan. The confirmations of Ruth Bader Ginsburg and Stephen Breyer speak volumes about how this results-oriented approach is, in fact, a problem centered within the democratic caucus. Both of these nominees had a long history of liberalism. Both were Democrats with ties to the political left. Ginsburg was the former general counsel to the ACLU who had advocated taxpayer funding of abortion, and Breyer had been Senator Kennedy's chief counsel and an academic promoter of an expansive regulatory state. Yet both received unanimous support from the Judiciary Committee. Justice Ginsburg received 96 votes on the floor, and Justice Breyer received 87 votes. They have served for more than a decade on the left side of the Supreme Court, exactly as Republicans suspected that they would when they voted to confirm them. But Republicans evaluated their judicial qualifications favorably, trusted their commitments to approach cases with an open mind, and gave deference to the President's choice. After all, he had won the election. We haven fallen a long way since Justice Breyer was confirmed in 1994. The Republicans who put aside their policy goals and supported liberal Democratic nominees have been rewarded with unprecedented filibusters of qualified nominees to the lower courts and the adoption of a results-oriented confirmation standard for the Supreme Court. I say to my Democrat colleagues--is this really the path you want to put us on? You have already dramatically increased the chance of future filibusters. Do we really want Senators to vote against any nominee who will not prejudge cases and guarantee results? I know that the most ideological activists on both sides of the spectrum would prefer that path, but do you? Does the Senate? Does the Nation? As I said, for now this is a Democrat problem. But it is naive to think that, someday, Republicans won't decide that what is good for the goose is good for the gander. And while your ``no'' votes on Judge Alito will not keep him from the Supreme Court, I say to my Democratic friends--what if President Bush had lost the 2004 election but there were 55 Republicans in the Senate? If Republicans today were applying your results-oriented, litmus-test-based standard to a Democrat President's nominees, would it be possible to confirm anybody even vaguely as liberal as Ginsburg or Breyer. If we followed your path, the answer would clearly be ``no.'' This is a terribly dangerous road to travel. We all know that the Supreme Court confirmation process has taken on political campaign-like elements, with television advertisements and grass roots activism. That development, plus this results-oriented approach to confirmation, represents the subtle rejection of the very idea of a non-political, independent judiciary. What else can we conclude when Senators won't vote for a nominee who even they say is qualified and has high integrity, just because they want to guarantee certain results out of the Court? That's not law. That's politics. It is the antithesis of the rule of law and constitutional government. Do we really just want policy makers in robes? I remember when President Clinton's former White House Counsel, Lloyd Cutler, testified before the Judiciary Committee. His answer was a resounding ``No.'' In conclusion, I remind the Senate of something Justice O'Connor said last September: the rule of law is ``hard to create and easier than most people imagine to destroy.'' That warning speaks directly to what we face today. If a partisan block of Senators continue down this path of politicization, it cannot be expected to apply to only one party. The ultimate loser will not be Republicans or Democrats, but the rule of law itself. ``Hard to create, and easier than most people imagine to destroy.'' My friends, please--take a step back. The man is qualified. He has high integrity. He is fair. He deserves your vote.

Mr. KYL

Mr. KYL. Mr. President, earlier this week, our Nation celebrated Martin Luther King Day. The Reverend Dr. Martin Luther King, Jr., would have been 77 years old on January 16. It was a day to reflect on the life of a man admired for the dream he dreamed for America, and for his words and deeds in pursuit of it. He dreamed, as he famously said, ``that one day this nation will rise up and live out the true meaning of its creed: `We hold these truths to be self-evident: that all men are created equal.' '' Dr. King argued, in words that stir the heart, that racial segregation must end in the South and that Black Americans must be granted their citizenship rights throughout the land and throughout our institutions: in education, in employment, in housing, and in the voting booth. His role in the push for full voting rights for African Americans is well known but bears repeating. In the spring of 1965, a national television audience was shocked by broadcasts of State troopers and sheriff's deputies brutally repulsing voting rights protesters in Selma, AL. Hours later, Dr. King declared: ``No American is without responsibility.'' He went to Alabama and led a march, under Federal protection, from Selma to the State capital. The event garnered national support and provided momentum for congressional passage of the Voting Rights Act later that year. Dr. King appreciated the blessings of freedom; he wanted them for his people, and for all people. We remember this Protestant minister's eloquence and also his sense of spiritual mission--he was an ecumenical religious leader who brought people of all faiths, all races, together in mutual respect for one another. As Taylor Branch, his biographer, put it: ``His oratory fused the political promise of equal votes with the spiritual doctrine of equal souls.'' His belief in nonviolent protest convinced those who listened to him that here was the high road to vindicating the rights of Black people in this country. It is a bitter fact that he lost his life to violence--he was only 39 when an assassin's bullet cut him down in Memphis--and it makes us understand his great courage in taking on the burden of leadership. In officially celebrating the life of Dr. King, we celebrate the end of legal segregation and the many inroads we have made against racism and discrimination. Of course, there is more we must do to make sure all Americans enjoy the blessings of freedom. He would tell us that, if he were here. He would also insist that we continue on in his way: with passion and with civility, calling on our fellow human beings to act on their best instincts, not their worst. Dr. King, who won the Nobel Peace Prize in 1964, is a model here and around the world--from China, and the 1989 antigovernment protests in Tiananmen Square, to South Africa, where apartheid rule gave way in 1990 without provoking the civil war many had feared. In encouraging the holding of free elections and the formation of institutions of civil society in faraway places today, we promote the idea that Martin Luther King put forward so well: that the nonviolent settling of differences among men is the bedrock of democracy. Let us all take inspiration from the King legacy this week, Mr. President, and every week.

Mr. KYL

Mr. KYL. Mr. President, I see that we are nearing the end of our allotted time. If I could quickly address a few other minor issues and summarize briefly. It is important to note that the limited judicial review authorized by paragraphs 2 and 3 of subsection (e) are not habeas-corpus review. It is a limited judicial review of its own nature. All habeas actions are terminated by this bill. I hope that this change will also put to rest any arguments that extending habeas to prisoners also extends to them some type of substantive rights. I do not believe that supposition is correct because habeas is a vehicle for asserting rights, not a source of rights. The fact that an individual has access to habeas does not mean that he has any of the rights that he asserts. But in any event, because this bill leaves no habeas in place, that debate need not be rejoined. Also, some have suggested that by vesting exclusive jurisdiction in the DC circuit for the paragraph 2 and 3 appeals, this bill bars even Supreme Court appellate review. That was not the drafters' intention, nor do I believe that it is a correct reading of the legislative language. Supreme Court review is implicit, or rather, authorized elsewhere in statute, for all judicial decisions. It is rarely mentioned expressly. In fact, when it is mentioned, it is sometimes to preempt Supreme Court review. Far example, the limit on successive federal habeas petitions for state prisoners in section 2244 bars petitions for certiorari following a three-judge panel's decision on a successive-petition application. The clear implication of these provisions is that Supreme Court review is implicitly allowed except where expressly barred, and thus since it is not barred here, it is allowed. uniform standards of interrogation for detainees

Mr. KYL. Well, that is what I thought before Rasul was decided. But we can cross that bridge if we get to it.

Mr. KYL. Where to even begin? The U.S. has been accused before in its history of imperialistic behavior, but I think that this is the first time ever that a portion of a sovereign nation has been annexed to the United States by the U.S. Supreme Court. Rasul begins with a discussion of two cases that were irrelevant to the question before the court, Ahrens v. Clark and the Braden case. Ahrens had adopted a strict rule that district courts may only hear cases within their territorial jurisdiction. Braden then softened that rule for particular circumstances--for cases where a defendant is in prison in one state but under indictment in another, allowing the defendant to bring a habeas action to challenge the indictment in the latter state's courts. Neither of these cases has anything to do with enemy combatants. From a discussion of these relatively mundane decisions, the Rasul majority adopts a rather stunning non-sequitir: that ``because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager plainly does not preclude the exercise of section 2241 jurisdiction over petitioners' claims.'' It could almost be a rule of construction that when a lawyer says ``plainly'' or ``clearly,'' he usually is identifying the weakest point in his argument. Braden is a case concerned more with the technical aspects of judicial administration than with core questions of the scope of the writ. Eisentrager is different. The Nazi soldiers denied access to the writ in that case did not simply file in the wrong forum--Alabama instead of Kentucky--or at the wrong phase of their sentences. Eisentrager denied review to the Nazi soldiers because they were Nazi soldiers in the custody of the U.S. military in occupied Germany. It is not a case about how we administer the writ of habeas corpus, but about the power and nature of the writ and who may employ it. I doubt that there was any member of the court who participated in Braden who believed that the court in that case was destroying the foundation of Eisentrager. So according to section III of Rasul, Braden killed the ``statutory predicate'' for Eisentrager and that's that. No more territorial jurisdiction requirement for habeas courts. Apparently even the Rasul court itself was unwilling to buy this argument, however, because section IV of the opinion goes on to explain that Guantanamo Bay, Cuba is really part of the territory of the United States--something which section III just told us irrelevant and unnecessary to the court's decision. But territorial jurisdiction does matter--a point that the court seems to concede by attempting to annex Guantanamo Bay to the United States. But Cuba is not the United States. Eisentrager should be restored to its rightful place as the precedent that governs litigation attempted by enemy combatants outside of our territory--even for the special case of Guantanamo Bay. Eisentrager was the law of the land for over 50 years, until Rasul carved a hole into it. Through this act, Congress patches that hole and restores Eisentrager's role as the governing standard. We do this not because, or not just because, Rasul doesn't make sense and is wrong. We do it because Eisentrager's reasoning is compelling, and the rule that is established wards off much mischief. Let me quote two key passages from Eisentrager that explain why enemy combatants outside the United States should not have access to U.S. courts. As that court began by noting, there has been: . . . no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes. Not only has this always been the law, but it should remain so. Eisentrager explains rather clearly and eloquently why we do not let enemy combatants sue our soldiers in our courts: A basic consideration in habeas corpus practice is that the prisoner will be produced before the court. This is the crux of the statutory scheme established by the Congress; indeed, it is inherent in the very term ``habeas corpus.'' And though production of the prisoner may be dispensed with where it appears on the face of the application that no cause for granting the writ exists, Walker v. Johnston, we have consistently adhered to and recognized the general rule. Ahrens v. Clark. To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States. Other authorities also have emphasized that the Anglo-American common law tradition includes no place for habeas petitions filed by enemy aliens in military custody outside our territory. Law Professor Peter Lushing, in an internet posting commenting on the Graham amendment shortly after it passed the Senate, put the matter quite colorfully: ``the guys in the powdered wigs would have flipped over the idea that habeas extends to foreigners we are in combat with who have been captured and are being held by us abroad.'' He concludes: ``the Rasul decision has extended habeas far beyond what anybody alive during the ratification of the Constitution would have envisioned.'' Former U.S. Attorney General William Barr testified on the subject of detainees in the war on terror before the Senate Judiciary Committee on June 15 of this year. His testimony made a considerable impact on members of the committee--it persuaded several of us that something needed to be done legislatively to correct the current situation. Here is what Attorney General Barr had to say about the history of habeas and detainees: The determination that a particular foreign person seized on the battlefield is an enemy combatant has always been recognized as a matter committed to the sound judgment of the Commander in Chief and his military forces. There has never been a requirement that our military engage in evidentiary proceedings to establish that each individual captured is, in fact, an enemy combatant. Attorney General Barr went on to note: World War II provides a dramatic example. During that war, we held hundreds of thousands of German and Italian prisoners in detention camps within the United States. These foreign prisoners were not charged with anything; they were not entitled to lawyers; they were not given access to U.S. courts; and the American military was not required to engage in evidentiary proceedings to establish that each was a combatant. The concerns that were expressed in the passage from Eisentrager that I quoted earlier also have been expressed by other, more recent commentators, with the present conflict against Islamic extremism in mind. For example, in a 2003 article in George Washington Law Review, law professor John C. Yoo notes the special importance of ``interrogating enemy combatants for information about coming attacks'' in this conflict, and concludes: . . . de novo judicial review threatens to undermine the very effectiveness of the military effort against al-Qaeda. A habeas proceeding could become a forum for recalling commanders and intelligence operatives from the field into open court; disrupting overt and covert operations; revealing successful military tactics and methods; and forcing the military to shape its activities to the demands of the judicial process. Similarly, Andrew McCarthy, a former federal prosecutor who led the case against Sheik Omar Abdel Rahman, offered a stinging criticism of Rasual the day after the Supreme Court issued its opinion. He stated that: How can it conceivably be appropriate to impose on our soldiers the burdens of stopping to collect evidence and write incident reports in the middle of fighting a war? Of course they do a measure of that now--after all, it is much in their interest correctly to sort out whom to hold and whom to release. But, until now, that has certainly not been done with the rigor anticipation of litigation will doubtless produce. It is not enough to say, hopefully, that U.S. courts will be indulgent given what's involved. Empirically, judicial demands on governmental procedural compliance become steadily more demanding over time, and government naturally responds by being even more internally exacting to avoid problems. In no time flat, what was once thought a trifling inconvenience becomes a major expenditure--in this case one that will inevitably detract from the military mission which is the bedrock of our safety. McCarthy also summarized why the Rasul decision is at war with the role and duties of the Federal judiciary in our constitutional framework: In the Framers' ingenious construct, the courts of the United States are supposed to be a bulwark protecting members of the uniquely American community--i.e., citizens of the United States and those aliens who, by their lawful participation in our national life, have immersed themselves into the fabric of American society--from the excesses of an oppressive executive or a legislature insufficiently heedful of their fundamental rights. It is the institution that ensures the law and order a free people must have in order to thrive. Nevertheless, as manifested in Rasul, yesterday's case involving claims of foreign enemy combatants captured on faraway battlefields and held by the military in Guantanamo Bay, Cuba--an installation outside the jurisdiction of any U.S. court--the judiciary is no longer a neutral arbiter there to ensure that Americans get a fair shake from their government and its laws. Instead, it is evolving, or morphing, into a sort of United Nations with teeth. It has seized the mantle of international arbiter, ensuring that the world--including that part of it energetically trying to kill Americans--has a forum in which to press its case against the United States. McCarthy went on to conclude: ``Rasul is a dangerous decision. Congress should slam the door on al-Qaeda today.'' And again, former Attorney General Barr also commented on this same question--on the impracticality of applying judicial process and standards to questions of the detention of enemy combatants. Because of his authority and the force of his arguments, I quote from his June 15 testimony at length: There appear to be courts and critics who continue to claim that the Due Process Clause applies and that the CSRT process does not go far enough. I believe these assertions are frivolous. I am aware of no legal precedent that supports the proposition that foreign persons confronted by U.S. troops in the zone of battle have Fifth Amendment rights that they can assert against the American troops. On the contrary, there are at least three reasons why the Fifth Amendment has no applicability to such a situation. First, as the Supreme Court has consistently held, the Fifth Amendment does not have extra-territorial application to foreign persons outside the United States. As Justice Kennedy has observed, ``[T]he Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of non-citizens who are beyond our territory.'' Moreover, as far as I am aware, prior to their capture, none of the detainees had taken any voluntary act to place themselves under the protection of our laws; their only connection with the United States is that they confronted U.S. troops on the battlefield. And finally, the nature of the power being used against these individuals is not the domestic law enforcement power--we are not seeking to subject these individuals to the obligations and sanctions of our domestic laws--rather, we are waging war against them as foreign enemies, a context in which the concept of Due Process is inapposite. In society today, we see a tendency to impose the judicial model on virtually every field of decision-making. The notion is that the propriety of any decision can be judged by determining whether it satisfies some objective standard of proof and that such a judgment must be made by a ``neutral'' arbiter based on an adversarial evidentiary hearing. What we are seeing today is an extreme manifestation of this--an effort to take the judicial rules and standard applicable in the domestic law enforcement context and extend them to the fighting of wars. In my view, nothing could be more farcical, or more dangerous. These efforts flow from a fundamental error--confusion between two very distinct constitutional realms. In the domestic realm of law enforcement, the government's role is disciplinary--sanctioning an errant member of society for transgressing the internal rules of the body politic. The Framers recognized that in the name of maintaining domestic tranquility an overzealous government could oppress the very body politic it is meant to protect. The government itself could become an oppressor of ``the people.'' Thus our Constitution makes the fundamental decision to sacrifice efficiency in the realm of law enforcement by guaranteeing that no punishment can be meted out in the absence of virtual certainty of individual guilt. Both the original Constitution and the Bill of Rights contain a number of specific constraints on the Executive's law enforcement powers, many of which expressly provide for a judicial role as a neutral arbiter or ``check'' on executive power. In this realm, the Executive's subjective judgments are irrelevant; it must gather and present objective evidence of guilt satisfying specific constitutional standards at each stage of a criminal proceeding. The underlying premise in this realm is that it is better for society to suffer the cost of the guilty going free than mistakenly to deprive an innocent person of life or liberty. The situation is entirely different in armed conflict where the entire nation faces an external threat. In armed conflict, the body politic is not using its domestic disciplinary powers to sanction an errant member, rather it is exercising its national defense powers to neutralize the external threat and preserve the very foundation of all our civil liberties. Here the Constitution is not concerned with handicapping the government to preserve other values. Rather it is designed to maximize the government's efficiency to achieve victory--even at the cost of ``collateral damage'' that would be unacceptable in the domestic realm. Attorney General Barr brought these concerns into relief with the following hypothetical example: Let me posit a battlefield scenario. American troops are pinned down by sniper fire from a village. As the troops advance, they see two men running from a building from which the troops believe they had received sniper fire. The troops believe they are probably a sniper team. Is it really being suggested that the Constitution vests these men with due process rights as against the American soldiers? When do these rights arise? If the troops shoot and kill them--i.e., deprive them of life--could it be a violation of due process? Suppose they are wounded and it turns out they were not enemy forces. Does this give rise to Bivens' Constitutional tort actions for violation of due process? Alternatively, suppose the fleeing men are captured and held as enemy combatants. Does the due process clause really mean that they have to be released unless the military can prove they were enemy combatants? Does the Due Process Clause mean that the American military must divert its energies and resources from fighting the war and dedicate them to investigating the claims of innocence of these two men? This illustrates why military decisions are not susceptible to judicial administration and supervision. There are simply no judicially-manageable standards to either govern or evaluate military operational judgments. Such decisions inevitably involve the weighing of risks. One can easily imagine situations in which there is an appreciable risk that someone is an enemy combatant, but significant uncertainty and not a preponderance of evidence. Nevertheless, the circumstances may be such that the President makes a judgment that prudence dictates treating such a person as hostile in order to avoid an unacceptable risk to our military operations. By their nature, these military judgments must rest upon a broad range of information, opinion, prediction, and even surmise. The President's assessment may include reports from his military and diplomatic advisors, field commanders, intelligence sources, or sometimes just the opinion of frontline troops. He must decide what weight to give each of these sources. He must evaluate risks in light of the present state of the conflict and the overall military and political objectives of the campaign. Attorney General Barr goes on to consider the practical consequences of applying civilian due process concepts in the context of military detention of enemy combatants: The imposition of such procedures would fundamentally alter the character and mission of our combat troops. To the extent that the decisions to detain persons as enemy combatants are based in part on the circumstances of the initial encounter on the battlefield, our frontline troops will have to concern themselves with developing and preserving evidence as to each individual they capture, at the same time as they confront enemy forces in the field. They would be diverted from their primary mission--the rapid destruction of the enemy by all means at their disposal--to taking notes on the conduct of particular individuals in the field of battle. Like policeman, they would also face the prospect of removal from the battlefield to give evidence at post-hoc proceedings. Nor would the harm stop there. Under this due process theory, the military would have to take on the further burden of detailed investigation of detainees' factual claims once they are taken to the rear. Again, this would radically change the nature of the military enterprise. To establish the capacity to conduct individualized investigations and adversarial hearings as to every detained combatant would make the conduct of war--especially irregular warfare--vastly more cumbersome and expensive. For every platoon of combat troops, the United States would have to field three platoons of lawyers, investigators, and paralegals. Such a result would inject legal uncertainty into our military operations, divert resources from winning the war into demonstrating the individual ``fault'' of persons confronted in the field of battle, and thereby uniquely disadvantage our military vis-a- vis every other fighting force in the world. Second, the introduction of an ultimate decision maker outside of the normal chain of command, or altogether outside the Executive Branch, would disrupt the unitary chain of command and undermine the confidence of frontline troops in their superior officers. The impartial tribunals could literally overrule command decisions regarding battlefield tactics and set free prisoners of war whom American soldiers have risked or given their lives to capture. The effect of such a prospect on military discipline and morale is impossible to predict. Attorney General Barr also noted that ``Supreme Court's decision in Rasul was a statutory ruling, not a constitutional one.'' He went on to point out: An important consequence follows: Congress remains free to restrict or even to eliminate entirely the ability of enemy aliens at Guantanamo Bay to file habeas petitions. Congress could consider enacting legislation that does so--either by creating special procedural rules for enemy alien detainees, by requiring any such habeas petitions to be filed in a particular court, or by prohibiting enemy aliens from hauling military officials into court altogether. Obviously, the Congress has taken the former Attorney General up on his suggestion, particularly the third variation of it. I should also say a few words about military commissions. The Judiciary Committee also heard enlightening testimony on the history of these commissions. Former Attorney General Barr commented on them as follows: Throughout our history we have used military tribunals to try enemy forces accused of engaging in war crimes. Shortly after the attacks of 9/11, the President established military commissions to address war crimes committed by members of al- Qaeda and their Taliban supporters. Again, our experience in World War II provides a useful analog. While the vast majority of Axis prisoners were simply held as enemy combatants, military commissions were convened at various times during the war, and in its immediate aftermath, to try particular Axis prisoners for war crimes. One notorious example was the massacre of American troops at Malmedy during the Battle of the Bulge. The German troops responsible for these violations were tried before military commissions. As an aside, those disturbed by the tendency of some in the press and politics to take the side of the Guantanamo detainees--of those captured while at war with America--might find it interesting that the same phenomenon developed with regard to the Malmedy detainees. The Malmedy German soldiers were tried and convicted of massacring American POWs near the Belgian village of Malmedy during the Battle of the Bulge. This crime unquestionably occurred--the bodies of over 80 U.S. soldiers were recovered in a field, most of them shot in the head. Members of the German unit responsible for this crime later were captured and tried by a military commission. Over the years, these Nazi soldiers, at least some of whom unquestionably massacred American G.I.s, somehow managed to turn the tables on the U.S. military in the press and in political circles. Senator Joseph McCarthy took up their cause, as did other Senators. The most fanciful allegations of abuse made by these Nazi murderers were indulged by various prominent Americans, and the whole incident became a public relations embarrassment for the U.S. military. Eventually, this pressure campaign succeeded in winning the commutation of all death sentences given to the Malmedy killers, and all of the German soldiers involved--even their commander--were released from prison by the mid-1950s. For those who find it disturbing that the sympathies of the press (especially in Europe) and of various intellectuals have been misplaced on the side of the Guantanamo detainees, at least we can take comfort in the fact the perversions of truth and rank miscarriages of justice that have resulted from such misplaced sympathy so far in this war pale in comparison to those that followed from Malmedy. Perhaps first among those who would object to any sympathizing with the Guantanamo detainees would be Andrew McCarthy, the former Federal antiterror prosecutor. He has written often on this and other war-on- terror topics. I was pleased to see that shortly after the Graham/Kyl amendment first passed the Senate, he wrote a column for National Review Online lauding our efforts. It was titled ``Restoring Law and Order,'' and McCarthy's only complaint was that ``it has taken our national legislature nearly a year-and-a-half--during all of which we have been at war--to stir itself to address this serious national- security problem.'' So you can imagine my disappointment when, just two days later, Mr. McCarthy posted another column commenting on the final Senate language, which include some compromises to ensure bipartisan support. This column was titled ``Snatching Defeat from the Jaws of Victory.'' Some of its language I won't recite here. But its specific complaints bear scrutiny. Mr. McCarthy alleged that ``the senators resolved Tuesday that the ultimate decision about who is properly considered an `enemy combatant,' should rest with federal judges, not our military commanders.'' As he characterized the final Senate language, ``a panel of robed lawyers will second-guess the determination of [our soldiers'] commanders on scene that certain captives warranted detention--that holding them would be beneficial to the war effort.'' Similarly, with regard to military commissions, Mr. McCarthy complained that ``everything that happens in the commission would be reviewed by judges if this measure passes.'' I do not think that these words are an accurate characterization of the Senate-passed language. I think that Mr. McCarthy probably relied on inaccurate characterizations of the language that were published in the press at the time rather than on the language itself. Nevertheless, Mr. McCarthy's complaints did cause me and others to take another look at the language, to make sure that it does what we intended. Limited judicial review of the decisions of the CSRTs and military commissions is authorized by paragraphs 2 and 3 of subsection 1405(e) of the conference report. These paragraphs authorize the same two narrow judicial inquiries into the ``status determinations'' and ``final decisions'' of the CSRTs and military commissions. The difference in language here is not intended to connote any substantive difference in the scope of review--it simply attempts to accurately characterize the work of each entity: ``making status determinations'' for the CSRTs, and ``reaching final decisions'' for the military commissions. The review authorized by each of these paragraphs goes only to the following questions: did the CSRTs and commissions use the standards and procedures identified by the Secretary of Defense, and is the use of these systems to either continue the detention of enemy combatants or try them for war crimes consistent with the Constitution and Federal law? The first inquiry I think is straightforward: did the military follow its own rules? This inquiry does not ask whether the military reached the correct result by applying its rules, or even whether those rules were properly applied to the facts. The inquiry is simply whether the right rule was employed. As to the second inquiry, here the language has been further modified in order to make clear the narrow scope of the inquiry. The original Senate language spoke of whether ``subjecting'' an enemy combatant to the CSRT or commission systems was constitutional and legal. This formulation was somewhat illogical in that the detainee would not complain of the fact that he was forced to go through a CSRT--rather, he would want to challenge its adequacy as a means for justifying his continued detention. And in any event, our concern was to make clear that this language in no way invites a re-evaluation of the correctness of the military's decision, even under a deferential standard of review. Nor does it invite an as-applied challenge. All that this language asks is whether using these systems is good enough for the ends that they serve--to justify continued detention or to try an enemy combatant for war crimes. The only thing that this provision authorizes is, in effect, a facial challenge. In fact, we anticipate that once the District of Columbia Circuit decides these questions in one case, at least so long as military orders do not substantially change, that decision will operate as circuit precedent in all future cases, with no need to relitigate this second inquiry in the future. In effect, the second inquiry--into the constitutionality and lawfulness of the use of CSRTs and commissions--need only be decided once by the court. It bears quoting some of the thinking that undergirds the establishment of these review standards. Attorney General Barr, in his June 5 testimony before the Judiciary Committee, describes the philosophy and approach that paragraph 2's scope of review for CSRTs is designed to reflect: It seems to me that the kinds of military decisions at issue here--namely, what and who poses a threat to our military operations--are quintessentially Executive in nature. They are not amenable to the type of process we employ in the domestic law enforcement arena. They cannot be reduced to neat legal formulas, purely objective tests and evidentiary standards. They necessarily require the exercise of prudential judgment and the weighing of risks. This is one of the reasons why the Constitution vests ultimate military decision-making in the President as Commander-in-Chief. If the concept of Commander-in-Chief means anything, it must mean that the office holds the final authority to direct how, and against whom, military power is to be applied to achieve the military and political objectives of the campaign. I am not speaking here of ``deference'' to Presidential decisions. In some contexts, courts are fond of saying that they ``owe deference'' to some Executive decisions. But this suggests that the court has the ultimate decision-making authority and is only giving weight to the judgment of the Executive. This is not a question of deference--the point here is that the ultimate substantive decision rests with the President and that courts have no authority to substitute their judgments for that of the President. And the thinking that underlies paragraph 3's scope of review for military-commission decisions is well articulated in Johnson v. Eisentrager: It is not for us to say whether these prisoners were or were not guilty of a war crime, or whether if we were to retry the case we would agree to the findings of fact or the application of the laws of war made by the Military Commission. The petition shows that these prisoners were formally accused of violating the laws of war and fully informed of particulars of these charges. As we observed in the Yamashita case, ``If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions.'' ``We consider here only the lawful power of the commission to try the petitioner for the offense charged. There is another matter that I should mention before I yield the floor to my colleague from South Carolina. Some have asked why the jurisdiction-removing language in the bill is limited to Guantanamo. The answer is that Rasul is only about Guantanamo. Although the opinion contains the discussion of Ahrens and Braden that undercuts the ``territorial-jurisdiction'' rule for habeas courts, in the end the decision appears to be based on the unique status of the naval station at Guantanamo Bay--the permanent nature of the lease, for example, which can only be terminated by the United States. Justice Kennedy adopted a similar focus in his concurring opinion. I believe that Justice Kennedy's concurrence goes so far as to declare that Guantanamo is in practical respects a U.S. territory. Some have raised the concern that the logic of Rasul will be extended to U.S. military and intelligence detention facilities in Iraq or Afghanistan. I think that such an extension would be very foolish and I do not think that the court will go there. I do not think that the Supreme Court is going to declare parts of Afghanistan or Iraq to be the territory of the United States. If the court does do so, we can of course legislatively overrule it, as we legislatively overrule Rasul today. But I do not think that it is either necessary, or respectful of the court's capacity for common sense, to preemptively overrule such an outlandish hypothetical decision. Does the Senator from South Carolina agree?

Mr. KYL. Right. It may not be quite right to characterize this bill's provisions as transferring jurisdiction. Rather, they extinguish one type of action--all of the actions now in the courts--and create in their place a very limited judicial review of certain military administrative decisions.

Mr. KYL. The DC Circuit will have to give the petitioner leave to amend his claim, I assume?

Mr. KYL. No one really argued that the McCain amendments do create a private cause of action, except that some groups have suggested that the Graham/Kyl amendment is somehow inconsistent with the McCain amendments, the implication being that the Graham amendment wiped out the forum for bringing some cause of action that otherwise was created. Obviously, if the McCain amendment did create a private right of action, our amendment would bar the courts from entertaining that action. But the fact alone that the same Congress that adopted the McCain amendment also adopted the Graham/Kyl amendment tends to confirm, I would think, that the McCain amendments never were intended to create a private right of action in the first place. As a matter of fact, the Supreme Court recently has tightened the standards for spontaneously recognizing such actions in cases where Congress is silent on the matter--I believe it was in the recent case of Alexander against Sandoval. The McCain amendments do not state that they create a private cause of action. They regulate the conduct our troops rather than creating rights. And we have alternative means of their enforcement--as my colleague mentioned, through the system of military discipline--and thus we do not need a private cause of action to be implemented. I would be pretty surprised if, under those circumstances, anyone were to argue that the McCain amendment created a private right of action. So the senior Senator from South Carolina is correct, the Graham-Levin-Kyl amendment does not take away any cause of action created elsewhere in this bill, because the bill does not create any rights of action. Some members have been arguing that the McCain amendment will establish a standard that perhaps could be employed in another cause of action. That is, of course, true. But if such a cause of action is to exist, Congress will have to create it in the future. No cause of action currently available could serve as a vehicle for enforcing the McCain amendment in a private lawsuit, and I think that all the backers of that amendment consistently agree that the McCain amendments themselves did not create a private right of action. Again, it would be strange to construe this Act as intending such a private action when by the same hand this Congress would take away any forum for asserting such action.

Mr. KYL. We agree on that point. The one thing that critics have said about this bill that is correct is that it is a jurisdiction stripping bill. It strips every court of jurisdiction to hear claims from detainees held in Guantanamo Bay. The courts' rule of construction for these types of statutes is that legislation ousting the courts of jurisdiction is applied to pending cases. It has to. We're not just changing the law governing the action. We are eliminating the forum in which that action can be heard. And there is no exception anywhere in this bill for keeping intact part of that forum to hear the case. The case simply has nowhere to be heard. I have just been handed a memorandum on this subject. The governing cases on this question are the Landraf case, as well as Hallowell v. Commons, 239 U.S. at 506, and Sherman v. Grinnell, 123 U.S. at 679. As the Landraf court noted, these statutes ``speak to the power of the court rather than the rights or obligations of the parties.'' These cases articulate the rule that will govern the detainee habeas actions and other lawsuits that currently are in the courts: legislation removing jurisdiction applies to pending cases and removes those cases from the courts.

Mr. KYL. I would like to say a few words about the now-completed National Defense Authorization Act for fiscal year 2006, and in particular about section 1405 of that act, which expels lawsuits brought by enemy combatants from United States courts. I see that my colleague, the senior Senator from South Carolina, is also on the floor. I would like to begin by commenting on the need for this legislation. This provision originally was added to the bill in an amendment that was offered by Senator Graham and of which I was a cosponsor, as well as Senator Chambliss. Keeping war-on-terror detainees out of the court system is a prerequisite for conducting effective and productive interrogation, and interrogation has proved to be an important source of critical intelligence that has saved American lives. In Rasul v. Bush, the U.S. Supreme Court interpreted section 2241 of title 28 to authorize enemy combatants held outside of the United States to file habeas-corpus petitions challenging their status in federal courts. Such a process is both without precedent and is utterly impractical. Giving detainees access to federal judicial proceedings threatens to seriously undermine vital U.S. intelligence-gathering activities. Under the new Rasul-imposed system, shortly after al-Qaida and Taliban detainees arrive at Guantanamo Bay, they are informed that they have the right to challenge their detention in Federal court and the right to see a lawyer. Detainees overwhelmingly have exercised both rights. The lawyers inevitably tell detainees not to talk to interrogators. Also, mere notice of the availability of these proceedings gives detainees hope that they can win release through adversary litigation-- rather than by cooperating with their captors. Effective interrogation requires the detainee to develop a relationship of trust and dependency with his interrogator. The system imposed last year as a result of Rasul--access to adversary litigation and a lawyer--completely undermines these preconditions for successful interrogation. Navy VADM Lowell Jacoby expounded on the preconditions for effective interrogation in a declaration attached to the United States' brief in the Padilla litigation in the Southern District of New York. Vice Admiral Jacoby at the time was the Director of the Defense Intelligence Agency. He noted in the Declaration that: DIA's approach to interrogation is largely dependent upon creating an atmosphere of dependency and trust between the subject and the interrogator. Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or, even years, after the interrogation process began. Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject- interrogator relationship, for example--even if only for a limited duration or for a specific purpose--can undo months of work and may permanently shut down the interrogation process. Specifically with regard to Jose Padilla, Vice Admiral Jacoby also noted in his Declaration that: Providing [Padilla] access to counsel now would create expectations by Padilla that his ultimate release may be obtained through an adversarial civil litigation process. This would break--probably irreparably--the sense of dependency and trust that the interrogators are attempting to create. The system of litigation that Rasul has wrought is unacceptable.

Mr. KYL. I am glad that we have been able to work together on this issue. I would add that interrogation of these detainees is important. In his Declaration to the Southern District of New York, DIA Director Jacoby described how interrogation has proven to be a critical intelligence tool--indeed, our most important intelligence tool--in past conflicts and in the current war on terror. Interrogation was our most valuable source of information in World War II and the gulf war, and has played a key role in stopping numerous terrorist attacks in the present conflict. Vice Admiral Jacoby stated in that declaration: Interrogations are vital in all combat operations, regardless of the intensity of the conflict. Interrogation permits the collection of information from sources with direct knowledge of, among other things, plans, locations, and persons seeking to do harm to the United States and its citizens. When done effectively, interrogation provides information that likely could not be gained from any other source. The Department of the Army's Field Manual governing Intelligence Interrogation, FM 34-52, dated 28 September 1992, provides several examples of the importance of interrogations in gathering intelligence. The Manual cites, for example, the United States General Board on Intelligence survey of nearly 80 intelligence units after World War II. Based upon those surveys, the Board estimated that 43 percent of all intelligence produced in the European theater of operations was from HUMINT, and 84 percent of the HUMINT was from interrogation. The majority of those surveyed agreed that interrogation was the most valuable of all collection operations. The Army Field Manual also notes that during OPERATION DESERT STORM, DoD interrogators collected information that, among other things, helped to: develop a plan to breach Iraqi defensive belts; confirm Iraqi supply-line interdiction by coalition air strikes; identify diminishing Iraqi troop morale; and identify a United States Prisoner of War captured during the battle of Kafji. Vice Admiral Jacoby also noted that interrogations of enemy combatants captured in the War on Terror have played a vital role in preventing numerous terrorist attacks. Again, quoting from his declaration in the Padilla litigation, Jacoby noted that interrogations of combatants such as those held at Guantanamo Bay have: . . . provided vital information to the President, military commanders, and others involved in the war on Terrorism. It is estimated that more than 100 additional attacks on the United States and its interests have been thwarted since 11 September 2001 by the effective intelligence gathering efforts of the Intelligence Community and others. In fact, Padilla's capture and detention were the direct result of such effective intelligence gathering efforts. The information leading to Padilla's capture came from a variety of sources over time, including the interrogation of other detainees. Knowledge and disruption of Al Qaida's plot to detonate a `dirty bomb' or arrange for other attacks within the United States may not have occurred absent the interrogation techniques described above. There are other examples of the importance of intelligence obtained from interrogation. In a recent new release, the Defense Department described valuable information that was obtained from interrogation of Mohamed al Kahtani, an enemy combatant being held at Guantanamo Bay. The Pentagon release noted that interrogation of Kahtani has yielded information that: Clarified Jose Padilla's and Richard Reid's relationship with al-Qaida and their activities in Afghanistan; provided infiltration routes and methods used by al-Qaida to cross borders undetected; explained how Osama Bin Laden evaded capture by U.S. forces, as well as provided important information on his health; and provided detailed information about 30 of Osama Bin Laden's bodyguards who are also held at Guantanamo. The Pentagon's news release concluded: ``the result of those interrogations [at Guantanamo Bay] has undoubtedly produced information that has saved the lives of U.S. and coalition forces in the field.'' Let me cite another example: a June 27, 2004 Washington Post story notes that on November 11, 2001, Pakistani forces captured Ibn al- Shaykh al-Libi, a Libyan national who ran the Khaldan paramilitary camp in Afghanistan. In January 2002, al-Libi was handed over to U.S. forces and interrogated. According the Post, interrogation of al-Libi: . . . provided the CIA with intelligence about an alleged plot to blow up the U.S. Embassy in Yemen with a truck bomb and pointed officials in the direction of Abu Zubaida, a top al Qaeda leader know to have been involved in the September 11 plot. In March 2002, Abu Zubaida was captured. . . . [Interrogation of Zubaida] led to the apprehension of other al Qaeda members, including Ramzi Binalshibh, also in Pakistan. The capture of Binalshibh and other al Qaeda leaders--Omar al-Faruq in Indonesia, Rahim al-Nashiri in Kuwait, and Muhammad al Darbi in Yemen--were all partly the result of information gained during interrogations, according to U.S. intelligence and national security officials. The bottom line is that keeping detainees out of court makes effective interrogation possible, and interrogation has proved to be an invaluable source of intelligence, allowing the United States to capture important terrorists, prevent future terrorist attacks, and save the lives of American soldiers in the field. I should also say a few words about some of the attacks that have been made against our amendment. For example, some critics have suggested that our amendment is inconsistent with the McCain amendment--that it prevents detainees from suing to enforce the McCain amendment. The response to this criticism is relatively straightforward: our amendment does not take anything away because the McCain amendment does not create a private cause of action in the first place. That amendment directly regulates military officers and is enforced through the usual mechanisms of military discipline.

Mr. KYL. Yes. The Constitution gives Congress the power to make ``exceptions'' and ``regulations'' to the Supreme Court's jurisdiction--or at least, to its appellate jurisdiction. It was Marbury v. Madison that held that Congress could not regulate original jurisdiction, but the court since then has made clear that even habeas actions filed directly in the Supreme Court are regarded as falling within a subspecies of the Supreme Court's appellate jurisdiction. This would be an interesting exam question for a law school class. The Congress's authority to use this power was affirmed by the Supreme Court in the case of Ex Parte McCardle. That case involved, I believe, an even sharper use of this authority than this bill does--I believe that there the Supreme Court had even heard argument in that case before Congress stripped the court's jurisdiction over it. The Supreme Court upheld the statute and dismissed Colonel McCardle's case for want of jurisdiction.

Mr. KYL. To be clear, neither the CSRT nor the ARB process is designed to entertain grievance about the conditions of confinement. Is that your understanding as well?

Mr. KYL. So long as the Constitution still is good law. I am not aware that the clause in Article III allowing Congress to make exceptions and regulations to Supreme Court appellate jurisdiction has been repealed. I suppose that some might argue that stripping the Supreme Court of jurisdiction over a pending case is unconstitutional if it is driven by some impure motive. But I can't imagine that the court would take away an authority clearly granted to Congress by the Constitution, regardless of what motive one might attribute to us. I am a member of this body, and would have great difficulty describing some definitive motive or intent to every law that we enact. I don't know how the Supreme Court or any other court could accurately discern such a motive. The laws that we enact have meanings that can be discerned through ordinary rules of construction. I think the rule of law is much more secure when the meaning of legislation is governed by those universally accessible rules of construction rather than through some attempt to psychoanalyze Congress's motive. And in any event, as I recall, this amendment was filed before the Supreme Court even granted review in the Hamdan case. That makes it a little hard to argue that the amendment was motivated by a desire to strip the court of its jurisdiction in that case. I don't think that the Constitution gives Hamdan a greater right to have his case go forward than it did to Colonel McCardle.

Mr. KYL. Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. That is what they did in Ex Parte McCardle. I assume that we may see an unhappy dissent from the court's order from one or two of the Justices--there may be some members of the court who refuse to accept McCardle and article III. But I think that a majority of the court would do the right thing--to send Hamdan back to the military commission, and then allow him to appeal pursuant to section 1405 of this bill. The court also may well request a round of briefing on the effect of the effect on the Hamdan case. I suppose that a lawyer in the SG's office can look forward to rereading Ex Parte McCardle and the debates on the case in Hart & Wechsler's. But again, I don't think that this will change the result. As for legislative history, I think it usually is regarded as an element of the canons of construction. It gives some indication of what Congress at least understood what it was doing--the context in which a law was enacted. Although, I understand that Justice Scalia does not read legislative history. I suppose that for his sake, we will have to strive to be exceptionally clear in the laws that we write.

Mr. KYL

Mr. KYL. Mr. President, I rise today to call attention to a provision contained in the conference report to H.R. 3010, the fiscal year 2006 appropriations bill for Departments of Labor, HHS, and Education. I am pleased to see that House and Senate conferees were able to provide $100 million for the Teacher Incentive Fund. The Teacher Incentive Fund was first proposed in the President's fiscal year 2006 budget, and will offer an appropriate incentive to States and local education agencies to advance the goals of the No Child Left Behind Act. The No Child Left Behind Act, enacted 4 years ago, raised expectations for students and teachers. Students are expected to raise their achievement level, and teachers are accountable for reaching the specific goals. The Teacher Incentive Fund is an appropriate follow up to the No Child Left Behind Act. It is a pilot program for States and school districts to provide additional compensation to teachers who make a measurable impact on raising student achievement. Under this incentive program, Federal funds would be available to States and local school districts for the purpose of developing new compensation systems to reward teachers who raise achievement and to provide an incentive to attract effective teachers to what the Department of Education calls high-need schools. These are schools with high poverty rates and poor performance on State assessments. The Teacher Incentive Fund provides States and school districts with another tool to raise teacher quality and, thus, close the achievement gap, which, of course is the primary goal of the No Child Left Behind Act. In October, the Senate Republican Policy Committee, of which I am the chairman, released a policy paper in support of merit pay for teachers in general and the Teacher Incentive Fund specifically. The paper, titled ``Teachers Are Key to Success of `No Child Left Behind' Act: Better Pay for Better Teaching,'' discusses research in support of merit pay for teachers, and the success merit pay programs have achieved. Mr. President, I ask unanimous consent that this paper be printed in the Record following my remarks.

Mr. KYL

Mr. KYL. Reserving the right to object to the proposed amendment to the unanimous consent, I believe on our side we would not object to the form of the so-called AMT patch that the Senator from Montana has proposed. Of course, we would object to his counting of that against the reconciliation number, or the so-called pay-go provision. I guess I ask for an amendment to his proposed amendment which would accept the broader AMT patch, as the Senator first described it, but nothing in addition to that.

Mr. KYL

Mr. KYL. Mr. President, I have a unanimous consent request to remake. As my colleagues know, there is one major unfinished piece of business yet that we need to conclude, and it is the action on the tax reconciliation bill. This is a bill which has the section 179, small business expensing, the small savers credit for low-income families, those making under $25,000 a year, above-the-line deduction for college tuition costs, R&D, tax credit, and extension of capital gains and dividends. These are all-important matters that we need to act on. As a result, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 325, H.R. 4297, the House reconciliation bill. I ask unanimous consent that all after the enacting clause be stricken and the text of S. 2020 as passed by the Senate be inserted thereof; that the bill, as amended, be read a third time and passed, the motion to reconsider be laid upon the table, the Senate insist upon its amendment and request a conference with the House and the Chair be authorized to appoint conferees at a ratio of 2 to 1.

Mr. KYL

Mr. KYL. Mr. President, one of the key items of business that we have to do before Christmas is to reauthorize the PATRIOT Act. I know there is some confusion about exactly where we stand on that. Let me clarify that right now. First, where are we with respect to the reauthorization of the PATRIOT Act? Why? And what can we do to move forward? I think most folks by now appreciate the fact that after September 11, we understood there were significant problems with our law and we needed to make some changes to fill in some loopholes and to make changes that would give our law enforcement and intelligence agencies the tools they needed to fight this new enemy, the terrorists. As a result, we passed the PATRIOT Act. But we said we wanted to sunset provisions of the PATRIOT Act so that we would have to revisit them before they would become permanent law. We are now at that point. The law will expire on December 31 unless we reauthorize it. So the Senate worked on it for about 8 months. We passed a version of the PATRIOT Act to be reauthorized. The House of Representatives did the same thing. There were some modest differences between the two bodies. We created a conference committee to iron out the differences, and I served on that committee. The Senate got most of its way in the conference committee. Most people have said about 80 percent of the compromising was done by the House. Nonetheless, the version we have before us is a version that I support. It is a good version, as the House of Representatives found when it passed overwhelmingly before the House recessed and left Washington, DC. In fact, I believe 44 Democrats supported the reauthorization of the PATRIOT Act in the House. Now it is up to us to approve it as well and then send it on to the President for signature. Once a conference report is completed, it is no longer amendable. We all understand that. But some Members of the Senate decided they wanted to amend it, even though there is no procedure for amending it. So they decided to filibuster the bill. When we took a vote on it, it had majority support. There were over 50 Senators who wanted to reauthorize the PATRIOT Act, but the minority of Senators wouldn't let us vote on it. They successfully filibustered it. They said: We are not going to let you vote on reauthorizing the PATRIOT Act because we would like to make some more changes. The time for making changes is up. You can't make any more changes once a conference report has been filed. They know that. So it is a little curious to me why they keep saying, we want to extend it so we can make some more changes. That is not the procedure of the Senate, and it can't be done. The conference has been discharged. The House of Representatives has gone home. Even if we wanted to go back into the conference and make changes, we couldn't do it. There is a way we can accommodate those who wish to make further changes to the PATRIOT Act, but it is not by filibustering. It is by allowing us to have the vote, pass the PATRIOT Act reauthorization, and then introduce those changes you would like to make in it, and we will deal with those in the regular process of hearings and presenting the matter to the floor. As a matter of fact, I would like to do that myself. There are some things I would like to add to the PATRIOT Act, and I fully intend, after we reauthorize it, to introduce that either as an amendment to a bill next year or as a separate bill, and to seek hearings in the Judiciary Committee so we can try to move the additional things I would like to see in the act. My colleagues are certainly welcome to do the exact same thing. We might even get together and try to have one hearing at which that is done. That is the regular order. That is the way we could make the changes they are talking about, if a majority of Senators agree. But I think that is the rub. I suspect they can't get a majority of the Senators to agree to the changes they would like to make. They couldn't get a majority of the conference committee in the House or the Senate to agree. So they would now like to try to use pure force rather than logic to get their changes. If they have the confidence that their changes make sense, then why wouldn't they want to simply offer them next year and let's vote on them? If they have 51 votes, they become law. Instead, they want to somehow pressure us at this point into letting the PATRIOT Act expire, and then everyone feels we have to do something so we accept their unreasonable demands. That is not the way to legislate, and it is not a responsible action. We should defeat the filibuster, not allow the PATRIOT Act to expire but to extend it for the period of time that the conference agreed, which is a period of 4 years. And if additional changes are to be made, they can be made starting as soon as we come back here next January. That is the way to do business. There are those who have said: Let's extend it for a few months. As I said, you can't extend it for a few months. There is no legislative way to do that. It expires December 31. The conference committee is closed down. The House has gone home. We are going to finish up in another day or two here. So you simply can't snap your fingers and extend a law. You have to pass it. It has to be signed into law by the President. He said, no, we are not going to have any short-term extension. We have a long-term extension right in front of us. It is called reauthorization. Allow the Senate to vote. If you do, they will vote with a majority vote to reauthorize the act. Then it is done. If you then want to make changes, you are welcome to do that. What are these big changes that have been talked about? The only ones I have heard about are two that were mentioned by the Senator from California who spoke before I did. I don't understand either one of them. She said we have to make changes, some checks and balances, with regard to these library records or bookstore records. Secondly, if you have your house searched, you need notice within 30 days. That is what the compromise provides. The conference committee provided a 30-day notice if your house is searched, so that instead of the reasonable standard, which is what exists today, you would have to be notified in 30 days. By the way, why aren't you notified immediately? In most cases, you are. But there are some cases where you are not notified of a warrant that has been issued. Why is that so? Suppose you are a couple of gangsters and the prosecutor wants to tap your telephone to find out if you are making illegal deals about drug running. He goes to the court and gets a warrant to tap your phone. Are you told about that? No, of course not. Sometimes a warrant is obtained and you are not told about it. You are not told if your house is searched or if your telephone is tapped because to do so would allow a witness to be compromised or a party of interest to escape the country or the information not to be obtained because you know that you are under the watchful eye of the prosecutor at the time. So sometimes you are not told about a warrant. But there is always a limit on that timewise. In the PATRIOT Act, the House had something like, I believe, 150 days or 180 days. The compromise was 30 days, which is exactly what the Senator from California said we needed. I don't understand what the problem is there. With respect to libraries, this is the section 215 we have talked about forever and ever. This is simply the business records administrative subpoena for which 335 examples exist in our books on the law today. If you are investigating somebody for Medicare fraud, you can get one of these subpoenas. A subpoena is not a warrant. A subpoena is a request for information. If you suspect somebody of fraud on the IRS, the IRS can get one of these administrative subpoenas. It is a request for information. Do you have to have a judge authorize that request? Not for 335 of these. There is only one that you have to have a judge for, and that is if you are investigating terrorism. The one that ought to be the easiest is the hardest because we are so concerned about protecting civil liberties that we say under the PATRIOT Act, you have to go to a judge first, even for a subpoena--not just a warrant, for a subpoena. So it has all the protection I think one would want. But we say we need a standard. So what is the standard the courts have applied? A relevancy standard. We will put that in, too. That is still not enough. We want a three-part test that ties it into international terrorism. Fine, we put that in. And one more thing; we want to make sure any records are destroyed within a reasonable time and that people are not told of this information. We said the Justice Department has to set that up. That is still not good enough. We want to make sure it is not abused. Fine. We will have a report from the executive branch every 6 months to Congress explaining in great detail how many subpoenas were issued, what the problems were with them, if any, and anything else that Congress wants to know about the use of these so we can have oversight. There is not much more you could do and still have an effective section 215. Why is section 215 used? As we know, two of the hijackers, al-Mihdhar and al-Hazmi, the two who were on the plane that came into the Pentagon and killed 125 people there, as well as the people on that flight from Dulles Airport, their airline reservations for September 11 were checked on August 31 on a computer at a library, and had we had the PATRIOT Act library record ability to check that out, and had we known of those two people who I am talking about here, we could possibly have known they were checking reservations for September 11 and intercepted them and prevented them from getting on that airplane. The bottom line is there are circumstances in which you want business records. Libraries have business records the same as any other kinds of entities. There is nothing wrong. This has been the law forever. We have built in a lot of protections. I don't know what more anybody would want with respect to protections for these particular records. So even if you assume that there is more to be done, my question is, how much more? The differences have been characterized from the other side as minuscule. They have said let's extend this and a couple of other changes we want to make. If that is the case, then why is the other side willing to let the entire act expire? We don't have the protections of the PATRIOT Act over provisions that are not that important, especially since they could be offered next year in an amendment to any bill. We could have hearings for them in the Judiciary Committee. There would be no problem considering these kinds of requests. If it expires, the PATRIOT Act's provisions no longer protect us. One of those is to allow the FBI and the CIA to talk to each other. Let me explain why this is important. This wall that used to exist was torn down by the PATRIOT Act. Patrick Fitzgerald, who is the U.S. attorney who is currently a special prosecutor, as we know, looking into another matter, testified how the wall worked in practice. He said: I was on a prosecution team in New York that began a criminal investigation of Osama bin Laden in early 1996. The team . . . had access to a number of sources. We can talk to citizens. We could talk to local police officers. We could talk to other U.S. Government agencies. We could talk to foreign police officers. Even foreign intelligence personnel. And foreign citizens. . . . We could even talk to al-Qaida members--and we did. But there was one group of people we were not permitted to talk to. Who? The FBI agents across the street from us in lower Manhattan assigned to a parallel intelligence investigation of Osama bin Laden and al-Qaida. We could not learn what information they had fathered. That was ``the wall.'' The ``wall'' had deadly consequences. The 9/11 Commission report contained detailed examples of how the wall prevented them from cooperating, the FBI and CIA, prior to 9/11--and perhaps the biggest example is the one I cited in which Khalid al-Midhdar and Nawaf al- Hazmi, two of the hijackers, were known to the CIA and that they were connected to terrorism. They had been connected to the Cole bombing and they were in the United States. The CIA refused to give the FBI the information because of this wall. I mentioned the fact that we later learned they had actually checked their September 11 airline reservations on a library computer. The FBI agent working on the case in Washington, DC, after being unable to communicate with the CIA, said this: Whatever has happened to this--some day someone will die-- and wall or not--the public will not understand why we were not more effective in throwing every resource we had at certain ``problems.'' That agent was right, and thousands did die. That wall is going to go back up if the PATRIOT Act is not reauthorized. So those people who have filibustered the PATRIOT Act and prevented us from voting on it, prevented the will of the majority from prevailing in this body. Since a majority of both House of Representatives and the Senate favors reauthorization of the PATRIOT Act, those people will have prevented us from having in place the PATRIOT Act to protect us from the terrorists. They will have allowed this wall to be resurrected to prevent the FBI and the CIA from talking to each other and we are going to be right back where we were before September 11. Again, I say, as the FBI agent did, what happens if some terrorists should strike us and we could have prevented that had the PATRIOT Act been in effect? Those who filibuster this act had better ask themselves that question. They have a very simple way to get around the answer; that is, allow us to have our vote. It will take 20 minutes. We can reauthorize the PATRIOT Act and it is back in force and then any other little changes you want to make to it, we will consider them next January, next February. What is wrong with that offer, considering what is at stake. I urge my colleagues again that the PATRIOT Act needs to be reauthorized. All it takes is for the other side to stop its filibuster, allow us to take the vote and, by a majority vote, we will reauthorize it, thus giving the American people the protection we deserve from the law enforcement and intelligence agencies who need this vital tool.

Mr. KYL

Mr. KYL. If the leader would like to relinquish the floor to me, I can respond to the Chair rather than going through the minority leader. Otherwise, I will go through the leader and respond to the Senator from Illinois that way.

Mr. KYL. Mr. President, the minority leader has the time right now; is that correct?

Mr. KYL. If I may ask the minority leader----

Mr. KYL. Mr. President, let me respond to the minority leader and to the question asked of me. The words that the minority leader used were ``killed the PATRIOT Act.'' I don't suggest that this reflects his view that the PATRIOT Act should not exist. I want to be very clear about that, just as I am sure the question posed to me by the Senator from Illinois doesn't mean to suggest that my objecting to a 3-month extension means that I don't want the PATRIOT Act to exist. I have made it crystal clear in all of my comments before today that that is precisely what I want to see--if not the PATRIOT Act in its existing form, until December 31, in the modified form as developed in conference between the House and Senate. I think we can both agree that we understand that the PATRIOT Act is a good thing and indeed it is a good thing whether in the existing form or in the form that came out of conference committee. Let me address that for a moment. As we know, in the Senate, we passed it out unanimously--unanimously--and it is difficult for me to see why Members of the other side of the Chamber are proud of having filibustered it so it cannot come up--don't use the word ``killed it''--having prevented it from coming to a vote when, by everyone's agreement, about 80 percent of what the Senate passed unanimously ended up in the final version of the conference committee report. By 80 percent, I mean of the contentious issues. Most of the bill was not contentious. There were a few provisions that were. On those, the House of Representatives in the conference committee conceded most of the ground. So, in other words, the Senate mostly got its way in that discussion. It seems to me that what the other side is basically arguing is, unless we get our way 100 percent, then we are not going to agree to this. The distinguished minority leader pointed out that everybody knows how the filibuster rules work. I think it is also clear everyone knows how the two Chambers work together. We pass our version of the bill, the House passes its version of the bill, there are a few items in disagreement, and those are compromised. It is not that one Chamber gets its way and the other Chamber has to concede to everything. What has been clear from the House of Representatives is that 3 months, 6 months, 1 year is not going to change anything. They have come to the conclusion that they have already conceded more than they should have. Frankly, from my position, I would be of that same view.

Mr. KYL. It seems to me that were there to be additional concessions made, we would no longer have a PATRIOT Act that could easily be used by our law enforcement and intelligence people to protect us. It would make it more and more difficult. As a result, you do have to draw the line somewhere and say: Look, if you try to change this any more, it is not going to protect the American people; in fact, it is going to prevent law enforcement and intelligence people from doing their job of protecting the American people. There does come a point in time when you have to say this is it. Either you are going to be for extending this or not, and that is the position we were in last week when the minority--a majority favored moving forward; I think it was 52, 53 votes. A minority said no, but that minority under our rules had the ability to prevent us from moving forward. I will be happy to yield for a question.