Carl Levin

Mr. LEVIN

Mr. LEVIN. All time is allocated?

Mr. LEVIN. On the Democratic side?

Mr. LEVIN. And on the bill itself, is there time left?

Mr. LEVIN. Madam President, I ask unanimous consent that I be allowed to proceed for 30 seconds.

Mr. LEVIN. I ask unanimous consent that I be added as a cosponsor to the Byrd amendment.

Mr. LEVIN. Mr. President, may I inquire of the Senator from West Virginia as to whether, if he has completed debate on this amendment, he would be willing to yield the balance of his time to the Senator from Michigan for use on the bill?

Mr. LEVIN. Reserving the right to object. No objection.

Mr. LEVIN. Well, Mr. President, just one example here. I have been trying to get a memo called the second Bybee memo now for 2\1/2\ years. I haven't asked once, I haven't asked twice, I have probably asked a dozen times for the Bybee memo, and my good friend, the chairman of the Armed Services Committee, has asked for the Bybee memo, without any luck. So the idea that all we have to do is ask is just simply wrong. Chairman Warner asked on May 13, 2004--2004--that all legal reviews and related documentation concerning approval of interrogation techniques be provided to the committee. It has never been provided. On April 12, 2005, I submitted questions to John Negroponte, who was the nominee for the Director of National Intelligence, requesting to see if the intelligence community has copies of the so-called Bybee memo. In April of 2005, I asked General Hayden, on his nomination to be Deputy National Intelligence Director, to see if he could determine if the intelligence community has a copy of the second Bybee memo and to provide it to the committee. Then on the intelligence budget hearing, April 28, 2005, I asked Secretary Cambone: Can you get us a copy of the second Bybee memo? This has to do with what interrogation techniques are legal. This is written by the Office of Legal Counsel, this memo. He says he will get a reply to me. That was April 2005. In May of 2005, I wrote the Director of Central Intelligence, Porter Goss, requesting the second Bybee memo. Then I get a letter from the Director of Congressional Affairs, Joe Whipple, saying the memorandum can only be released by the Department of Justice. So in July, I write the Department of Justice, the Attorney General: Can we get a copy of the second Bybee memo? Letter after letter after letter. Then there is a hearing by the Senate Intelligence Committee, July 2005. This is a hearing on Benjamin Powell's nomination to be general counsel in the Office of the Director of National Intelligence. I asked Mr. Powell: Can you provide us for the record a copy of that second Bybee memo? That decision, we are told a week later, is not a decision he can make; that is within the Department of Justice's purview, and on it goes. Another year of stonewalling, of denial, of coverup by the Department of Justice of a memo which is so critically important, according to press reports and according now also to the acknowledgment by the Department of Justice. It sets a legal framework for the interrogation of detainees, and the Senate can't get a copy. Apparently, two Members of the Senate, the chairman and vice chairman of the Intelligence Committee, have seen this memo. That is it. Members of the Intelligence Committee can't get it. Members of the Armed Services Committee can't get it. All we have to do is ask? How many times do we have to ask before we get documents? There are 70 documents we still can't get from the Department of Defense relative to the operation of the Feith shop. All we have to do is ask? There are documents we have asked of the Intelligence Committee for years beyond the Bybee amendment without any response.

Mr. LEVIN. Mr. President, I ask unanimous consent that the balance of the time of the Senator from West Virginia minus that 1 minute be assigned to the Senator from Michigan for use or allocation on the bill itself.

Mr. LEVIN. I thank the Chair, and I thank my friend from West Virginia. Mr. President, this amendment just simply requires regular reports on detention and interrogation programs. It will give us access to legal opinions. It is essential that this amendment be adopted. I just want to ask my good friend from West Virginia if he heard the chairman of the Intelligence Committee say that all we have to do is ask for reports and we will get them. Did I hear that right?

Mr. LEVIN. That is not a unanimous consent request, is it?

Mr. LEVIN. If Senator Rockefeller is ready, I understand there is a time agreement of 1 hour equally divided.

Mr. LEVIN. Mr. President, I suggest the absence of a quorum and ask unanimous consent that the time not be charged to either side.

Mr. LEVIN. Mr. President, the Democratic leader has yielded 2 minutes of his leadership time to me. I ask unanimous consent that I be allowed to proceed on that basis.

Mr. LEVIN. Mr. President, I support the Specter-Leahy amendment on the writ of habeas corpus. The habeas corpus language in this bill is as legally abusive of the rights guaranteed in the U.S. Constitution as the actions at Abu Ghraib, Guantanamo, and the CIA's secret prisons were physically abusive of the detainees themselves. The Supreme Court has long held that all persons inside the United States, including lawful permanent residents and other aliens, have a constitutional right to the writ of habeas corpus. Yet, this provision purports to apply even to aliens who are detained inside the United States, including lawful permanent residents. Unlike the provision that was included in the Detainee Treatment Act last year, this court-stripping provision would apply on a world-wide basis, not just at Guantanamo. It would apply to detainees of all Federal agencies, not just the Department of Defense. It would attempt to expressly strip the courts of jurisdiction over all pending cases. This provision goes beyond stripping the courts of habeas corpus jurisdiction. It also prohibits the U.S. courts from hearing or considering ``any other action against the United States or its agents relating to any aspect of the detention, treatment, or trial'' of an alien detainee. As a result, this provision would leave many detainees without any alternative legal remedy at all, even after released, even if there is every reason to believe that the detention was in error, and even if the detainee was tortured or abused while in U.S. custody. For example, the Canadian Government recently concluded, after a comprehensive review, that one of its citizens had been handed over by U.S. authorities to a foreign country which subjected him to torture and cruel and inhuman treatment, without any evidence that he was an enemy combatant or that he supported any terrorist group. Under this habeas corpus court-stripping provision, this individual would have no legal remedy in the U.S. courts even after he was finally released from illegal detention, unless the United States acknowledges that it made a mistake when it determined that he was an enemy combatant. The fundamental premise of last year's Detainee Treatment Act, DTA, was that we could restrict future habeas corpus suits, because we were providing an alternative course of access to the courts. The language in the bill before us would deprive many detainees of the right to file a writ of habeas corpus without providing any alternative form of relief. For example: The provision applies on a worldwide basis, not just at Guantanamo. DOD detainees outside Guantanamo do not have access to Combatant Status Review Tribunals-- CSRTs--so they can't get to court to review CSRTs. Because this bill would deprive them of the writ of habeas corpus or any other legal remedy, they would have no access to the courts at all. The provision applies to detainees of all Federal agencies, not just DOD. Detainees of other Federal agencies do not get CSRTs, so they can't get to court to review CSRTs. Because this bill would deprive them of the writ of habeas corpus or any other legal remedy, they would have no access to the courts at all. The provision even applies to lawful resident aliens who are detained and held inside the United States. Because this bill would deprive them of the writ of habeas corpus or any other legal remedy, they would have no access to the courts at all. Even in cases where DOD regulations provide detainees a right to Combatant Status Review Tribunals--CSRTs--such tribunals may not be an adequate substitute for judicial review under a writ of habeas corpus. CSRTs are permitted to use coerced testimony, hearsay evidence, and evidence that is never disclosed to the accused. Detainees before those status review tribunals are denied access to witnesses and documents needed to rebut allegations made by the government. Courts reviewing CSRT determinations are not authorized to make an independent determination whether there is a lawful basis for the detention. The court stripping provision in the bill does more than just eliminate habeas corpus rights for detainees. It also prohibits the U.S. courts from hearing or considering ``any other action against the United States or its agents relating to any aspect of the detention, treatment, or trial'' of an alien detainee. A separate provision in the bill adds that no person--whether properly held as an alien detainee or not--may invoke the Geneva Conventions as a source of rights in any court of the United States. Other provisions establish new defenses for individuals who may be accused of violating standards for the treatment of detainees under U.S. and international law. Taken together, these provisions do not just deprive detainees of the ability to challenge the basis on which they have been detained--they are an effort to insulate the United States from any judicial review of our treatment detainees, an effort to ensure that there will be no accountability for actions that violate the laws and the standards of the United States. Last year, this Congress took an important stand for the rule of law by enacting the Detainee Treatment Act, which prohibits the cruel, inhuman or degrading treatment of detainees in the custody of any U.S. agency anywhere in the world. That landmark provision is at risk of being rendered meaningless, if we establish rules ensuring that it can never be enforced. Earlier this month, we received a letter from three retired Judge Advocates General, who urged us not to strip the courts of habeas corpus jurisdiction. That letter, signed by Admiral Hutson, Admiral Guter, and General Brahms, stated: We urge you to oppose any further erosion of the proper authority of our courts and to reject any provision that would strip the courts of habeas jurisdiction. As Alexander Hamilton and James Madison emphasized in the Federalist Papers, the writ of habeas corpus embodies principles fundamental to our nation. It is the essence of the rule of law, ensuring that neither king nor executive may deprive a person of liberty without some independent review to ensure that the detention has a reasonable basis in law and fact. That right must be preserved. Fair hearings do not jeopardize our security. They are what our country stands for. We have received similar letters from nine distinguished retired Federal judges, from hundreds of law professors from around the United States, and from many others. If we don't strike this court-stripping language in the bill before us, if instead of Congress being a check on excessive executive power, Congress attempts to write a blank check to the executive branch, our expectation is that the courts will find this provision to be a legislative excess and strike it down as unconstitutional. We have a chance to do the right thing and not just to rely on the courts. This body is the body of last resort legislatively when it comes to protecting that great writ of habeas corpus which is in the Constitution. I hope we live up to that responsibility today.

Mr. LEVIN. I suggest the absence of a quorum, and I ask unanimous consent that the time not be charged to either side or to any party.

Mr. LEVIN. Mr. President, I think the Senator from West Virginia is, more than any other person in the history of this body, the custodian in his person of the Constitution of the United States. The bill that is before us obviously raises a number of very significant issues involving our Constitution. What the amendment of Senator Byrd does very wisely is say that after 5 years, let us double back and doublecheck--double back and doublecheck--so that we can be confident that what we have done comports with the Constitution of the United States. This amendment does it very carefully. It does not disturb any pending proceeding under the commission. The Senator has written this amendment so carefully that he says even though it will sunset, forcing us to go back and doublecheck, to look at our work, that it will not in any way disturb any existing or pending proceeding. I believe this is such an important statement of our determination that we act in a way that is constitutional, not in the heat of a moment which is obviously critical to us, but that we comport in every way with this Constitution. We ought to heed the words of Senator Byrd, who understands the importance of this Constitution and that this body be the guardian of the Constitution. We are the body that must protect this Constitution.

Mr. LEVIN. Senators Warner and McCain, over the last year, you have played an instrumental role in bringing needed clarity to the rules for the treatment of detainees in U.S. custody. I understand that you also played a key role in negotiating the provisions of the military commissions bill regarding the War Crimes Act and Common Article 3 of the Geneva Conventions. As you said last year when the Detainee Treatment Act was adopted, this is not an area in which ambiguity is helpful. For this reason, I hope that you will help me in providing a clear record of our intent on these issues. In particular, section 8(a)(3) of the bill provides that ``the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions'', that these interpretations shall be issued by Executive order, and that such an Executive order ``shall be authoritative (as to non-grave breach provisions of Common Article 3) as a matter of United States law, in the same manner as other administrative regulations.'' Would you agree that nothing in this provision gives the President or could give the President the authority to modify the Geneva Conventions or U.S. obligations under those treaties?

Mr. LEVIN. Will the Senator from West Virginia yield for 3 minutes?

Mr. LEVIN. And this, as he puts it, is an insurance policy that we will do just that.

Mr. LEVIN. Mr. President, I believe I have 4 minutes allocated.

Mr. LEVIN. Mr. President, I am afraid that the way this now is set up, the Senator from Virginia has about six speakers who will have time, and we have on this side, because of the interest in the amendment process, used up our time and had to use time on the bill, so that on our side we only have--how much time left on the bill, if I could inquire of the Chair?

Mr. LEVIN. I don't know if the unanimous consent agreement has been finished yet. That is our hope.

Carl Levin

Speeches

Manage analytics