Carl Levin

Mr. LEVIN

Mr. LEVIN. So it is unlikely between now and when?

Mr. LEVIN

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. 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. 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. 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. I thank the Presiding Officer.

Mr. LEVIN. Mr. President, I wonder if the Senator from New Mexico, then, would like to proceed with his time and then yield to me in a few minutes? And then I could propound that question at a later moment.

Mr. LEVIN. I yield 10 minutes to the Senator from New Mexico.

Mr. LEVIN. Mr. President, I thank the Senator from New Mexico. I do not see the Senator from South Carolina on the floor, and I wanted to propound a question to him. So I will wait until he returns. Mr. President, I wonder if the Senator from South Carolina might make himself available to answer an inquiry by the Senator from Michigan.

Mr. LEVIN. Mr. President, to help clarify the situation: Is it the proposal that there be two amendments voted on?

Mr. LEVIN. That would be better.

Mr. LEVIN. I yield those 2 minutes.

Mr. LEVIN

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. Fixed stars. Amendment No. 2485, As Modified

Mr. LEVIN. That is fine.

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. I understand this also is technical?

Mr. LEVIN

Mr. LEVIN. Mr. President, if the Senator will yield, since Senator Dorgan does have another minute left, I believe, and I want to give him an opportunity to respond, I will use 30 seconds of that time simply to say that Senator Dorgan has, indeed, been tenacious. There has been an absence of oversight in this area which has been glaring. He has almost by himself filled in some of those gaps as he described it. He should not need to do that. We should either have the committees doing that or else we need this special Truman-type committee. I commend him for his tenacity. I am glad he is bringing this to a vote, and maybe one of these days--hopefully today--he will prevail.

Mr. LEVIN. Madam President, is the time between now and 11:30 allocated?

Mr. LEVIN. I thank the Presiding Officer. I know that Senator Dorgan wanted some of this time. I would have a couple comments relative to the Dorgan amendment, first of all. I happen to agree with what has been recently said about the Special Inspector General for Iraq Reconstruction. He, indeed, would be a useful witness for the Senate to call, and I hope that either the Armed Services Committee or the Homeland Security and Governmental Affairs Committee would call that Special Inspector General for Iraq Reconstruction so that he could come and testify before us. That has not been done. The Department of Defense IG has withdrawn his people. These are the people who look at the contracts with the contractors that are supporting our troops. The DOD IG withdrew his people so that there are no longer those folks on the ground who can tell us about those contractors. I do not believe that the Government Accountability Office people have been called to testify before the Senate. There are a lot of issues. There are a lot of issues about the initial contract, why it was awarded on a sole-source basis, whether the CPA, the provisional authority, was overcharged by Halliburton for oil which was purchased. There are serious questions about meals which were served or not served. There are questions about whether Halliburton had the estimating, subcontracting, and financial management systems they needed to run two multibillion dollar contracts. There are a lot of questions which need to be reviewed. They ought to be reviewed. And we ought to have Senate committees that are calling these people to testify in front of us. It seems to me that in the absence of that, what Senator Dorgan is doing is saying: Let's have a Truman-type committee, a special inspector general to look at the contracting issues. Not only do I see nothing wrong with it, it has tremendously powerful precedent. It is named the Truman committee because Harry Truman, in the middle of a war--I emphasize in the middle of a war, World War II--Harry Truman, a Democrat, with a Democratic President, was willing to undertake an investigation of contracting practices and procurement practices because he felt the war was being exploited for profit by certain persons who were trying to profiteer off the bravery of others. There is no disagreement among any Member of this body that I know of about the bravery, the professionalism, the courage of our troops. They deserve everything we can give them, and I believe we are giving them everything they need. There is no disagreement about that here. When Members of this body get up and are critical about the way in which this war has been won, it seems to me that is what we owe our troops. We not only owe them the material and the training and we owe their families everything, but we also owe them our best thinking. And our best thinking is not unanimous. There is not a consensus. There are not 100 people here who are cloned to think the same way. There are different thoughts. We owe our troops our best, honest, conscientious thinking, and when people get up on this floor and provide that thinking, particularly where it is critical, it should not just be characterized as somehow or another undermining our troops. Our troops depend upon us for the equipment, the training, the materiel, morale, for the support of their families. They depend on us for that. They are entitled to that. People who stand up and give their best thinking are supporting our troops in the best sense of the word; they are giving them their best, honest, conscientious thoughts as to how we can succeed in Iraq and make the best of a situation that is not going well, not just stay the course, stay the course, which is a bumper sticker, not a strategy, but how can we modify this course to increase our chances for success. I want to yield the floor. I see Senator Dorgan is in the Chamber. I know he wants to speak on his amendment. I yield to him such time as he needs to speak relative to his amendment.

Mr. LEVIN

Mr. LEVIN. I think that may be better.

Mr. LEVIN. Mr. President, reserving the right to object--I, of course, will not--in terms of sequence, it is possible there may be two amendments relating to the first-degree amendments relating to the same subject. If that were true, it may be wiser that this not intervene those two amendments. Have amendments been scheduled for votes?

Mr. LEVIN

Mr. LEVIN. I do welcome that assurance. It is important for this institution. Whether the President is a Democrat or a Republican makes no difference on this issue. This is a matter of this institution asserting its constitutional responsibility, and I thank my friend from Virginia.