Carl Levin

Mr. LEVIN

Mr. LEVIN. Mr. President, how much time is remaining on both sides?

Mr. LEVIN. Mr. President, I intend to vote for the Warner amendment because it represents change, not as much change as we would have liked, and we have debated that and argued that. But there are significant changes that are being proposed in this amendment which we have worked very hard to put in our amendment and we think would represent an improvement. We need to have 2006 be a year of transition. We need to have the administration lay out a strategy. We need to state what our military states, which is that the Iraqis have to solve their political problems and come together and unify if that insurgency is going to be defeated. This amendment continues to say to the administration they need to tell that to the Iraqis. This amendment also sets up a schedule for conditions that are goals we hope to be achieved on the ground. That ``schedule,'' which is the word that remains in this amendment, is an important schedule that needs to be retained, and it is retained. It needs to be met, and if it is not met, we need to be told what has changed so that it can be met. I support the Warner amendment as the second-best approach, but it continues to keep the purpose, to clarify and recommend changes to the policy of the United States on Iraq. Keeping that purpose is critical.

Mr. LEVIN. Mr. President, I yield a minute to the Senator from Rhode Island.

Mr. LEVIN. Mr. President, the Graham amendment, which the Senate approved last Thursday, includes a prohibition on Federal courts having jurisdiction to hear habeas petitions brought by aliens outside the United States who are detained by the Defense Department at Guantanamo Bay, Cuba. The Graham-Levin-Kyl amendment would make three significant improvements to the underlying Graham amendment. The habeas prohibition in the Graham amendment applied retroactively to all pending cases--this would have the effect of stripping the Federal courts, including the Supreme Court, of jurisdiction over all pending case, including the Hamdan case. The Graham-Levin-Kyl amendment would not apply the habeas prohibition in paragraph (1) to pending cases. So, although the amendment would change the substantive law applicable to pending cases, it would not strip the courts of jurisdiction to hear them. Under the Graham-Levin-Kyl amendment, the habeas prohibition would take effect on the date of enactment of the legislation. Thus, this prohibition would apply only to new habeas cases filed after the date of enactment. The approach in this amendment preserves comity between the judiciary and legislative branches. It avoids repeating the unfortunate precedent in Ex parte McCardle, in which Congress intervened to strip the Supreme Court of jurisdiction over a case which was pending before that Court. The Graham amendment would provide for direct judicial review only of status determinations by combat status review tribunals, not to convictions by military commissions. The Graham-Levin-Kyl amendment would provide for direct judicial review of both status determinations by CSRTs and convictions by military commissions. The amendment does not affirmatively authorize either CSRTs or military commissions; instead, it establishes a judicial procedure for determining the constitutionality of such processes. The Graham amendment would provide only for review of whether a tribunal complied with its own standards and procedures. The Graham-Levin-Kyl amendment would authorize courts to determine whether tribunals and commissions applied the correct standards, and whether the application of those standards and procedures is consistent with the Constitution and laws of the United States. This amendment is not an authorization of the particular procedures for the military commissions; rather it is intended to set a standard-- consistent with our Constitution and laws--with which any procedures for the military commissions must conform.

Mr. LEVIN. Mr. President, I yield a minute to the Senator from Illinois.

Mr. LEVIN

Mr. LEVIN. Mr. President, I ask unanimous consent that the Senator from Massachusetts be recognized for 30 minutes, the Senator from Connecticut for 10 minutes, and the remainder of the time between now and 4:30 p.m. not be assigned at this time, and we will do our best to accommodate the Republican side should there be speakers after the Senator from Connecticut speaks.

Mr. LEVIN. Mr. President, I yield 6 minutes to the Senator from Wisconsin.

Mr. LEVIN. Mr. President, before the Senator from Florida leaves the floor, I wish to do two things. First, I want to thank him for the energy and the perception he has shown in pointing out some of the problems with this prescription drug benefit which was voted on. He has a lot of seniors in his State, and he is uniquely aware of, sensitive to, and determined to see if we cannot make some changes in this process which will make what we have done a lot more friendly to seniors. I cannot think of anybody in this body who knows more about this subject or is more determined to make the changes necessary for the benefit of our seniors. Because of the confusion out there, the uncertainty is rife. We do not have quite as many seniors in our State as they do in Florida, but our seniors are telling me pretty generally what the seniors down in Florida are saying to the Senator from Florida. I thank him and commend him for the leadership he is taking and for the proposed change he is proposing. Secondly, I thank him for his service on the Armed Services Committee. We have a wonderful committee. It is a bipartisan committee. The Senator from Florida, Mr. Nelson, makes an important contribution to it. He is there all the time with very perceptive questions that are intended to support the men and women in our military. I thank him for his participation. Mr. President, the Senator from New Mexico, I believe, now is ready to offer an amendment which is referred to in the unanimous consent agreement. I will yield to him 15 minutes, should he so need 15 minutes, on our side of the debate for that purpose.

Mr. LEVIN. Mr. President, I ask unanimous consent that in the absence of a speaker on the Republican side, the time between now and 4:30 p.m. be divided as follows: the Senator from Massachusetts be recognized for 30 minutes, then the Senator from Connecticut be recognized for 10 minutes. If, during that period, the floor manager on the Republican side indicates time is required on the Republican side, we would then do our best to make arrangements for that to happen, perhaps delaying the 4:30 p.m. timetable. We are trying to accommodate two Senators, the Senator from Massachusetts, who needs a half hour, and the Senator from Connecticut, who needs 10 minutes.

Mr. LEVIN. We are trying to accommodate colleagues and make sure you are protected. I suggest the following: the Senator from Massachusetts speak for a half hour; the Senator from Connecticut speak for 10 minutes, unless the Senator from South Carolina knows of someone on his side; and then if our people or a person on their side, Mr. President, needs some time, the 4:30 p.m. shift to the appropriations bill be delayed by 5 or 10 minutes to accommodate the Republican side. I can't think of anything better without knowing exactly who wants to speak.

Mr. LEVIN

Mr. LEVIN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. LEVIN. Mr. President, I think we indicated last week that while the time is limited, as it had been prior to this point in terms of debate on the Iraq amendments, there would be time either on the amendments themselves or in morning business tonight after the vote. There is a very limited period of time under the unanimous consent agreement for tomorrow. We had hoped that could have been expended, but apparently there is no agreement to that. I remind colleagues who have not had a chance to speak on the Iraq amendments which are pending that the best time to do that, given the very limited time remaining on tomorrow on these amendments, would be after the vote on the appropriations bill tonight. I suggest the absence of a quorum.

Mr. LEVIN

Mr. LEVIN. Will the Senator yield for a correction? I inadvertently said the report would be every 30 days after the first report. I misspoke. It would be every 90 days, as the Senator from Virginia correctly has stated. It would be every 90 days after the first report.

Mr. LEVIN. My amendment is exactly the same as Senator Warner's amendment in that regard. Senator Warner has adopted my amendment with two minor changes. He has not made any change in terms of the progress that has been made or the reference to the great work of our troops. I thought I heard the Senator from Connecticut--and I have no dearer friend in the Senate--suggest that he had wished that my amendment would be more fulsome relative to progress. I just wanted to assure the Senator that there is no change in that language in the version which was subsequently filed by the Senator from Virginia.

Mr. LEVIN. Would the Senator yield on that point?

Mr. LEVIN. I would agree. Now to the last paragraph, which for reasons beyond me has been stricken. We referred to the campaign plan--without objection. There was a campaign plan we referred to which said, what are the conditions in that plan that must be met in order to provide for the transition of security responsibilities to Iraqi security forces? There is the campaign plan. There are the conditions which have been laid out, which of those conditions must be met in order to achieve the goal which we have agreed on in this document--transition of security responsibility to security forces. Then we have agreed that the report has to contain a schedule for meeting those conditions. What are the conditions? What is the schedule for meeting them? Three times we refer to that schedule in that same paragraph. No objection so far. But now we say that campaign plan should also contain estimated dates for the phased redeployment of the United States Armed Forces from Iraq as each condition is met. The conditions are already laid out. What is the campaign plan with estimated dates for the phased redeployment as those conditions are met? Then we explicitly acknowledge that, with the understanding that unexpected contingencies may arise. We have already made reference to the phased redeployment. That is the first time we have made a reference to phased redeployment. In the sense of the Senate, paragraph (b)(3), we have said: Calendar year 2006 should be a period of significant transition to full Iraqi sovereignty, with Iraqi security forces taking the lead for the security of a free and sovereign Iraq, thereby creating the conditions for the phased redeployment of United States forces from Iraq. So in subparagraph (7), the last paragraph, which makes reference to the campaign plan--we have already described what that is, with no objection to it--are the estimated dates for the phased redeployment of the United States Armed Forces from Iraq--we have already made reference to the goal of phased redeployment of United States Armed Forces--as each condition is met. We already have agreement on everything up to now, talking about all those conditions and the need that they be met, with the understanding that unexpected contingencies may arise, which I can't imagine anybody would object to because there are unexpected contingencies that always arise. We have acknowledged this. But why it is there is objection to acknowledging what is obvious, that a campaign plan needs to have dates, estimated dates for the phased redeployment we have already agreed is desirable, as conditions allow and as each condition is met? Why that would be objectionable is frankly a mystery to me unless there is a reluctance to do what we do in an earlier paragraph, which is to say, folks, we can't stay there forever, we have a plan for success, where there is a takeover of the major security operations by the Iraqis so we can in a phased way redeploy our forces. Eliminating that part of the plan, it seems to me, is eliminating what is essential, what clearly follows from everything that precedes it, which has been agreed to, and I think it would send exactly the wrong message, to agree to all of the pieces that come up to that conclusion, including the conditions which need to be met, the desirability of phased redeployment, the fact that there is a campaign plan, the fact that that campaign plan has conditions in it that need to be met in order to provide for the transition of security responsibility. It is all there. It is all there in the pieces leading right up to paragraph (7). Suddenly in the Warner version, paragraph (7) is stricken. Again, I close with this emphasis. We have not said in this document that there should be a date for withdrawal. We said there should be a plan. What are the conditions for phased redeployment? What would it take for this to happen? What number of battalions need to be brought up to capability on the part of the Iraqis in order for there to be a number of our forces that are reduced and under what conditions? What are those circumstances and conditions which will allow us to reduce our forces? For the administration to resist stating to the American people what are the conditions that need to exist for us to reduce our forces in Iraq it seems to me is wrong. It means there is no plan, there is no strategy that they are willing to lay out for the American people and for the Iraqi people as well so that there is no misunderstanding as to where this responsibility must fall ultimately, which is on the people of Iraq to come together politically and to take over their own military security. I yield the floor.

Mr. LEVIN. The Senator is correct. On the report section, there is a change from 30 days to 90 days, which I will not spend time on. I think it is a fairly technical change, that there is not a particular difference or problem. After that first report, whether it is 30 days or 90 days--30 days in our version, 90 days in Senator Warner's version--every 3 months thereafter, until all U.S. combat brigades have been redeployed from Iraq, the President shall submit to Congress an unclassified report on U.S. policy and military operations in Iraq. In our version we say: Each report shall include the following: What the Warner version adds is ``to the extent practicable, unclassified information.'' And by the way, it is clear that there is classified information that cannot be in a report, and we don't suggest to the contrary. We just want an unclassified report to the extent you can have an unclassified report on each of the following items: . . . The current military mission and the diplomatic, political, economic, and military measures, if any, that are being or have been undertaken to successfully complete that mission. So far, no difference on that one. Efforts to convince Iraq's main communities to make the compromises necessary for a broad-based and sustainable political settlement. That is what I referred to before. It is so critically important that we must convince the communities in Iraq that they must make the compromises necessary for a broad-based, politically acceptable settlement. No difference on that language; no proposed change in that. Next, in our amendment, we need to engage the international community and the region in the effort to stabilize Iraq and to forge a broad-based and sustainable political settlement. No difference on that. We need a report to us every 30 days on what is being done to strengthen the capacity of Iraq's Government ministries; to accelerate the delivery of basic services; to secure the delivery of pledged economic assistance from the international community, and additional pledges of assistance; to train Iraqi security forces and transfer security responsibilities to those forces and the Government of Iraq. No difference on that in terms of what must be in this report. Next, we need in this report to know whether the Iraqis have made the compromises necessary to achieve the broad-based and sustainable political settlement-- We need to keep the pressure on the Iraqis. We need the administration to tell us the Iraqis have made the compromises necessary. Without that kind of keeping the Iraqis' feet to the fire, it is less likely the Iraqis are going to make the kind of broad-based compromises that are necessary--the compromises that are necessary to achieve that broad-based political settlement that is essential, in our words, to defeat the insurgency in Iraq. And now we get down to the heart of the matter where there seems to be a difference, and I want to spend another couple minutes on this. This report, according to our amendment--not disagreed to with the Warner amendment--must include specific conditions that were included in an April 2005 campaign action plan and any subsequent update to that campaign plan that must be met in order to provide for the transition of security responsibility to the Iraqi security forces. There seems to be no objection to that. There is no change in that. So we want that document, that report from the administration to set forth any specific conditions that were in the April 2005 campaign action plan and any updates to that campaign plan that need to be met in order to provide for transition of security responsibility. There is an acknowledgement by no change in our language that there is a report containing conditions, that there is a need for updates to that campaign plan that need to be met in order to provide for the transition of security responsibility to the Iraqi forces. Now we then have language which on this whole next page is not objected to, which is accepted, which is that to the extent these conditions are not covered, as I have just outlined, the following needs to be addressed. We lay out here one, two, three, four conditions: number of battalions of Iraqi Armed Forces that have to operate independently or take the lead in counterinsurgency operations; number of Iraqi police units that have to operate independently or take the lead in maintaining law and order in fighting the insurgency, the number of regular police that must be trained and equipped to maintain law and order; the ability of Iraq's ministries and provincial and local governments to independently sustain, direct, and coordinate Iraq's security forces. Now, so far there is apparently no problem. We have laid out all of those conditions that need to be set forth in the report that has to come every 30 days after that first report. Then in subsection (6) we have a requirement in the report that is also not objected to, which is a schedule for meeting such conditions. There is no objection to that in the Warner amendment. There is no language change in his version. So we require a schedule for meeting those conditions which I have outlined and an assessment of the extent to which such conditions have been met, information regarding variables that could alter that schedule, and the reasons for any subsequent changes to that schedule. So far, so good. No change in the language.

Mr. LEVIN. I know you said there has been no change other than this. I said there was a prior one which we agreed was a change.

Mr. LEVIN. Not quite, because there was that one change which the Senator from Virginia made in the sense-of-the-Senate language.

Mr. LEVIN. I thank my friend from South Carolina for working on this matter as hard as he has. The Senator from Arizona has also worked hard. Many Members on this side have worked on this issue as well as the Republican side. There is a lot of thought that has been given to this matter. The amendment approved last Thursday had some real problems with it, in my judgment, and I voted against it, as did 41 Senators. The amendment which was approved last Thursday, which is the one now awaiting this amendment, would have provided for review only for status determinations and not of convictions by military commissions. As my friend from South Carolina pointed out, that is an omission which he and others acknowledge. It is a real indication of his commitment to try to figure out what the right course of action is, that he does acknowledge that omission. One of the reasons I voted against the amendment last Thursday is that it did not provide for that direct judicial review of convictions by military commissions. That is the major change in the amendment before the Senate, the so-called Graham-Levin-Kyl amendment which is before the Senate. There are a number of other changes as well, but of all the changes, what this amendment does is add to the Graham amendment, which was agreed to last Thursday, adds a direct appeal for convictions by military commissions--not just for status determinations--and that direct appeal would, of course, go to a Federal court. The amendment which we are going to consider tomorrow morning, after we consider the Bingaman amendment, will also provide for review of whether the standards and procedures which are referred to in the amendment are consistent with the Constitution and laws of the United States. Those are important words because all Members believe we must operate according to our Constitution. Our laws and the review which is provided for now, if we agree to this amendment to the adopted Graham amendment, would explicitly make it clear that the review of a court would look at whether standards and procedures that have been agreed to are consistent with our Constitution and our laws. The other problem which I focused on last Thursday with the first Graham amendment was that it would have stripped all the courts, including the Supreme Court, of jurisdiction over pending cases. What we have done in this amendment, we have said that the standards in the amendment will be applied in pending cases, but the amendment will not strip the courts of jurisdiction over those cases. For instance, the Supreme Court jurisdiction in Hamdan is not affected. However, what our amendment does, as soon as it is enacted and the enactment is effective, it provides that the standards we set forth in our amendment will be the substantive standards which we would expect would be applied in all cases, including cases which are pending as of the effective date of this amendment. We will first vote on the Bingaman amendment tomorrow. I will vote for that amendment. It does preserve some habeas corpus review of constitutional issues relative to the detention of enemy combatants at Guantanamo Bay. It avoids habeas corpus review of less consequential issues, while enumerating the important issues which it would provide or permit habeas review of. However, I cosponsored the Graham amendment with Senator Graham because I believe it is a significant improvement over the provision which the Senate approved last Thursday, specifically for the two main reasons I identified. The direct review will provide for convictions by the military commissions, and because it would not strip courts of jurisdiction over these matters where they have taken jurisdiction, it does, again, apply the substantive law and assume that the courts would apply the substantive law if this amendment is agreed to. However, it does not strip the courts of jurisdiction. My friend from South Carolina has pointed out what the scope of the review would be if this amendment was agreed to. I will read something which he made reference to that is important it be very clear as to what this grant of review is on page 6, paragraph B: (i) with respect to a capital case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or (ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit. The scope of review is set forth. It gets the Congress back into the business of laying out the ground rules for these reviews, which has been the main goal of the Senator from South Carolina. It is a goal which I hope all share. We may disagree as to what the ground rules are, but I hope all Members share in that goal that Congress become reinvolved in setting the ground rules for both the commissions and for the tribunals which make the status determinations. Again, it has been a very constructive effort on the part of Senator Graham, myself, Senator Kyl, and others who cosponsored and will vote for this. It makes a significant improvement over what the Senate did last Thursday. Again, I as one Senator will first support the Bingaman amendment, but if it is not agreed to, I will strongly urge our colleagues to vote for the Graham-Kyl amendment. I support my friend from South Carolina.

Mr. LEVIN. Mr. President, I thank my dear friend from Virginia for his positive comments. As always, he seeks to build bridges and to overcome differences and to reach across the aisle. It is typical of him, and it has been that way since the first day I met him many years ago. The Levin-Reid amendment--there are two amendments pending--is an effort to, indeed, try to improve the situation in Iraq, to try to change the course for the better. There is no date for withdrawal in our amendment. It is not saying that we will withdraw troops at any particular specific date. We have done that because we think it would be a mistake to set a specific date, at least most of us do. On the other hand, we believe it is essential that we change course in a number of directions in order to improve the chances of Iraq becoming a success. America is going to be less secure if Iraq is a failed state. Everybody agrees on that. The question is, How can we improve the chances of Iraq not becoming a failed state? What could we do here, carrying out our responsibility, what contribution can we make here to success in Iraq? Things are not working very well in Iraq in many ways. I know there are people who will point to progress in Iraq and, obviously, there are things to which one could point. But on the other hand, there are things that are not working well, and this amendment intends to address those in a constructive and positive way. Staying the course is not a strategy; that is a slogan. How do we improve the chances for success? How do we modify our course so that we can achieve or help the Iraqis achieve--more accurately--a nation? And how can we also look forward to the day when our troops come out sooner rather than later? This amendment looks at the year 2006 as a transition year, with Iraqi forces taking over security functions to a far greater extent. For that to happen, this amendment points out that a number of things need to happen. First, we have to advise the Iraqis that we are not there for an indefinite period of time, that they must take the steps necessary to achieve a broad-based political settlement which is so essential to defeating the insurgency. Our military advisers are unanimous on this point. There is no purely military solution unless the Iraqis come together politically. Unless they unify politically, they will not be able to defeat the insurgents. It is a point which must be made to the Iraqis. They cannot simply continue to squabble over the content of a constitution. They have to come together or else they are not going to succeed, and we are not going to succeed in helping them to achieve the security they want. We need to advise the Iraqis we are not there indefinitely. They have to take the steps necessary to achieve a broad-based political settlement which is critically important to defeating the insurgency. We need a plan for success. We don't have a plan for success. I will speak more about that in a moment. I want to go through the amendment. I want to point out where there is apparently agreement and where there is disagreement and what the significance is of both. The sense of the Senate starts by saying something that I think every Member of this body would agree with: . . . members of the United States Armed Forces who are serving or have served in Iraq and their families deserve the utmost respect and the heartfelt gratitude of the American people for their unwavering devotion to duty, service to the Nation, and selfless sacrifice under the most difficult circumstances. We start with that. Our troops and their families deserve the very best in equipment, training, and support, but also in our thinking. That doesn't mean there is going to be unanimity around. People who disagree on what the next step should be should not be pilloried in any way or criticized as being less American than those who support the administration's policy lock, stock, and barrel. There is a place for constructive criticism, for different points of view in a democracy. That is what our troops have always fought for. That is what men and women have died for, so that we would have an opportunity to have the kind of debate on policy which is going on now. First, our heartfelt gratitude to our troops. Second, the sense of the Senate recognizes that the Iraqi people have made enormous sacrifices and that the overwhelming majority of Iraqis want to live in peace and security. There is no disagreement on that. The alternative amendment that we will be voting on does not differ with that. The next paragraph there is no difference on either. Both amendments have the same language. There is no change in our version from the Frist-Warner version. That is: . . . calendar 2006 should be a period of significant transition to full Iraqi sovereignty, with Iraqi security forces taking the lead for the security of a free and sovereign Iraq, thereby creating the conditions for the phased redeployment of United States forces from Iraq. That is in paragraph 3 of the sense of the Senate. There is no change in that language to the Frist-Warner language. That is paragraph (b)(3). Creating the conditions for the phased redeployment of U.S. forces from Iraq surely ought to be a goal. (4) United States military forces should not stay in Iraq indefinitely and the Iraqi people should be so advised. That is an important statement to the Iraqi people, and it is an important statement to our people. We should not be staying in Iraq indefinitely. That is the wrong message to send for a number of reasons to the Iraqi people. What the Warner version does is, it strikes the word ``indefinitely'' and says: United States military forces should not stay in Iraq any longer than required and the people of Iraq should be so advised. The problem with that is, they could be required forever. That is open-ended. It is unlimited. It is the wrong message. That is a difference, and it is the first difference. The next paragraph, there is no difference on: . . . the Administration should tell the leaders of all groups and political parties in Iraq that they need to make the compromises necessary to achieve the broad-based political settlement that is essential for defeating the insurgency . . . within the schedule that they have set for themselves. By the way, the schedule that they have set for themselves is to appoint a commission when the new assembly takes office in January, to appoint a constitutional commission to review the constitution and make recommendations for changes within 4 months. That is their schedule. They ought to keep that. Next--there is no disagreement on this language-- . . . the Administration needs to explain to Congress and the American people its strategy for successful completion of the mission in Iraq. No difference on that language. Now to paragraph C on the reports.

Mr. LEVIN

Mr. LEVIN. We should again put our colleagues on notice that there is very limited time tomorrow morning under the unanimous consent agreement. There was an effort made to extend that time. The effort did not succeed. So there will literally be 30 minutes tomorrow morning equally divided between both Iraq amendments and the habeas corpus matter, which is a very small window of time tomorrow morning. We would urge, I think my good friend from Virginia would agree, that the Senators who wish to speak on either of those matters should make a real effort to get here tonight.

Mr. LEVIN. I think that is going to be up to the Senator from South Carolina as to what progress he is making on it.

Mr. LEVIN. I ask unanimous consent that the Senator from Hawaii proceed in morning business for 5 minutes and then we would turn to the committee bill pursuant to the unanimous consent agreement.

Mr. LEVIN

Mr. LEVIN. If he is ready, I am happy to proceed.