Carl Levin

Mr. LEVIN

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. 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

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

Mr. LEVIN

Mr. LEVIN. Would the Senator from Florida ask that he be allowed to proceed as in morning business?

Mr. LEVIN. I thank the Senator.

Mr. LEVIN

Mr. LEVIN. Mr. President, I suggest the absence of a quorum.

Mr. LEVIN

Mr. LEVIN. I want an opportunity here. He is on the right track in doing it. The question is whether there will be an appeal. If there is a conviction of those alleged terrorists for committing a war crime, is there any appeal under this language in the amendment? I am afraid there is not. I don't think it is the intention of the amendment, because the Senator says, of course, there is going to be appeal. The trouble is, the language of the amendment, by its own specific terms, says: No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by somebody at Guantanamo. That is the problem here. There would be no appeal. Although the Senator makes a plea for due process for these same terrorists, he would eliminate the appeal of a conviction that led to a capital offense, the death penalty, for these same terrorists. I hope that is not his intent, but it would be the first time that that would ever happen, that we would purport, as the Senate, to strip the court of habeas corpus opportunity to review that kind of a conviction. Since ex parte Quirin, we have never done that.

Mr. LEVIN. My final question, to what court would the conviction of a detainee at Guantanamo for a capital offense subject to death, to what court would that appeal lie, if this language of the Senator is adopted? It is a very specific question, to what court?

Mr. LEVIN. If we are getting back to where we have always been, we don't need this amendment. The Senator just answered my question by not answering it. I asked him what court would an appeal of a death sentence be appealed to? His answer was, a three-judge panel. That three-judge panel is appointed by the Secretary of Defense. I asked specifically to what court would a death sentence be appealed, if this language is adopted. I read the language as to how broad it is. It eliminates explicitly any appeal: No court, justice, or judge shall have jurisdiction to hear or consider an application for writ of habeas corpus, and that is the way an appeal goes to a court from one of these people. It is eliminated. We strip courts of the right to hear a habeas corpus petition on a death sentence. I agree with what the Senator started out to do with his amendment. He was on the right track. But this language goes way beyond it. That is why the chairman of the Judiciary Committee, Senator Specter, and the ranking member of the Judiciary Committee, Senator Leahy, oppose this amendment.

Mr. LEVIN. Reserving the right to object.

Mr. LEVIN. Reserving the right to object--I don't intend to object--I ask a parliamentary inquiry as to whether there is anything in this unanimous consent agreement which would preclude the offering of additional second-degree amendments to the Graham amendment should the Graham amendment 2516 be agreed to and should the Bingaman motion to strike be defeated.

Mr. LEVIN. Or amendments.

Mr. LEVIN. I thank the Presiding Officer.

Mr. LEVIN. Let me read from the opinion in the Hamdan case to see if the Senator would agree with it. Ex parte Quirin, in which captured German saboteurs challenged the lawfulness of the military commission before which they were to be tried, provides a compelling historical precedent for the power of civilian courts to entertain challenges that seek to interrupt the processes of military commissions. The Supreme Court ruled against the petitioners in Quirin but only after considering their arguments on the merits. What the language of the Senator's amendment does--and I hope it is inadvertent--the Senator eliminates court review of the sentences of enemy combatants before these commissions. I understand that he provides a mechanism to review the status of those enemy combatants. That is fine. He sends them all to court. That creates the kind of problem which the Senator from Pennsylvania talked about. But he goes way beyond that. The Senator's language goes way beyond saying that we are substituting court review for habeas corpus relative to status determinations. The Senator's amendment eliminates habeas corpus on all issues for enemy combatants at Guantanamo. That would be a clear repeal of the decision in Quirin and would also do one other thing. In the Rasul case, which has been already decided by the Supreme Court, the Supreme Court concluded that Federal courts have jurisdiction to determine the legality of the executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. This decision of the Supreme Court would be reversed if we adopted this language. Finally, in the moment I have remaining, there is pending a decision at the Supreme Court which would be retroactively prohibited. The Supreme Court has agreed to hear a case recently, about a week ago, in the case of Hamdan v. Rumsfeld to decide whether military commissions established by the President--

Mr. LEVIN. In the Hamdan case, the Supreme Court, a few days ago, agreed to determine the legality of the military commissions established by the President to try enemy combatants and about whether detainees at Guantanamo are entitled to protections under the Geneva Conventions. That case would be wiped out under the language which is retroactive in the Senator's amendment. The Supreme Court, although they have agreed to hear the case, would be stymied in hearing a case they have agreed to hear. This goes way beyond the question of whether we are substituting. I have no great problem in substituting the court review for habeas corpus relative to those determinations of status. I think that is a fair substitute because at least then there is a court review. But this goes way beyond that, because this amendment eliminates habeas corpus for all issues which might be raised by detainees, including a conviction which leads to a death sentence that violates Quirin. It is inconsistent with what the Supreme Court did in the case which I already referred to. It would eliminate the jurisdiction already accepted by the Supreme Court in Hamdan. I urge that we not adopt this amendment. It is far too broad. Senator Specter's argument that the Judiciary Committee should have an opportunity to look at this is an argument to which we ought to listen. Although I disagree with the Senator's modified amendment, I do want to commend Senator Graham because he has at least undertaken to tackle a very difficult issue which this body should tackle.

Mr. LEVIN. Does the Senator from South Carolina want to give those same terrorists due process, for heaven's sake? Of course, he does. He gets up on the floor and says he wants to provide due process. I say--

Mr. LEVIN

Mr. LEVIN. I understand this also is technical?

Mr. LEVIN. Mr. President, if the Senator will yield, I agree with his comments and I reinforce the importance of our colleagues notifying our offices and our cloakrooms if they desire to have time to speak on Monday afternoon so we can schedule that time. It would be very helpful for us to be so informed as early as possible on Monday. I want to reiterate there are two groups of amendments we are talking about here that will need to be debated Monday. One is the Iraqi amendment. The other one is the second-degree amendments to the Graham amendment. We are going to have to fit all that in on Monday afternoon, and possibly, as the Senator from Virginia mentions, after the vote on Monday. So it is important that our colleagues let us, our offices and our cloakrooms, know on Monday morning if they want time on either or both of those subjects. We will try to work the best we can and protect everybody's opportunity to speak.

Mr. LEVIN. Fixed stars. Amendment No. 2485, As Modified

Mr. LEVIN. That is fine.

Mr. LEVIN. I was going to send that up immediately after the Senator sends up his amendment.

Mr. LEVIN. If the Senator will yield, Mr. President, I agree with the description which my dear friend from Virginia has provided, that I did provide him with our amendment. Even though our amendment has a later number, it was the amendment which was first provided. The Senator from Virginia, after consultation with his leader and others, has made some modifications in our amendment and that amendment, under the unanimous consent agreement which will be voted on first, is the amendment basically that we drafted over here with the modifications made by the Senator from Virginia and others. So that is the chronology, that is the history, and that is the order we will be voting on and will be debating these on Monday under the unanimous consent agreement. There are some differences. I would not describe them as major differences but, nonetheless, there are some differences that now exist between the two versions, and we can debate which is the preferable version. But in any event, under either version, it strikes me that there is clearly a call here for some changes in course in policy in Iraq. But that again is something we can debate further on Monday.

Mr. LEVIN. We are almost there. We are going to be there on Monday. We thought we would be there tonight, but we will on Monday.

Mr. LEVIN. If the Senator will yield, also I believe the debate on the second-degree amendments to the Graham amendment would occur on Monday since the only time on Tuesday prior to votes on the amendments would be 30 minutes equally divided and that would be needed, perhaps, for both second degrees to Graham and the Iraqi amendments, all wrapped into that 30 minutes. There may be and I think there probably would be debate on Monday on the second-degree amendments, referred to in this unanimous consent agreement, to the Graham amendment.

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