Carl Levin

Mr. LEVIN

Mr. LEVIN. I wouldn't want to try to hold that position.

Mr. LEVIN. It has been made part of the battlefield without any doubt. On September 11, the war was brought here by al-Qaida. How do we suggest that a foreign al-Qaida member should not be subject to an assumption to begin with, if they are determined to be al-Qaida, that they are going to be detained--that we should not start with that assumption--subject to procedures which the administration adopts. It is totally in their hands. It cannot interfere with a civilian interrogation. It cannot interfere with civilian intelligence. We are very specific about it. The procedures are written by the executive branch. They can try them anywhere they want. But if they bring a war here--they bring a war here--we are going to create an assumption that they can be subject, and are going to be subject, to military detention.

Mr. LEVIN. If I can interrupt, we have that right abroad against members of al-Qaida. But under this approach we would not be able to assume that military detention at home, again, subject to waiver and subject to all the other protections we have.

Mr. LEVIN. We could do that if we captured them in Afghanistan, but here we are going to be treating them differently. It ought to probably be worse. In other words, people who bring the war here, it seems to me, at a minimum ought to be subject to the same rules of interrogation as they would be if they were captured and part of al-Qaida in Afghanistan. I don't understand the theory behind this. As a matter of fact, when we adopted the authorization for use of military force, it would seem to me the first people we would want to apply the authority of that authorization to would be al-Qaida members who attack this country.

Mr. LEVIN. The only group that is protected.

Mr. LEVIN. Exactly.

Mr. LEVIN. Mr. President, I understand there are other Senators who may be coming over to speak, and I will be happy to yield the floor whenever that happens because this is the time which is not structured before the scheduled vote at 2 p.m. But if I can continue, then, until another Senator comes to the floor, I want to just expand on this one point which has been made which has to do with whether there is something in this section of ours that would allow our military to patrol our streets. We have heard that. Well, we have a posse comitatus law in this country. That law embodies a very fundamental principle that our military does not patrol our streets. There is nothing in section 1032 or anywhere else in this bill that would permit our military to patrol our streets. I think Senator Graham is probably more familiar with what I am going to say than perhaps any of our colleagues. We have a posse comitatus statute in this country. It makes it a crime for the military to execute law enforcement functions inside the United States. That is unchanged. That law is unchanged by anything in this bill.

Mr. LEVIN. I think we had a fear a couple hundred years ago that that might happen.

Mr. LEVIN. That is why we have very carefully pointed this provision 1032 to a very narrow group of people--people who are determined to be members of or associated with al-Qaida. Then the question becomes, Well, how is that determination made? What are the procedures for that? The answer is it is left up to the executive branch to determine those procedures. Can there be any interference with the civilian law enforcement folks who are interrogating people that they arrest? If someone tries to blow up Times Square and they are being interrogated by the FBI, is there any interference with that interrogation? None. We explicitly say that there is no such interference. What about people who are seeking to observe illegal conduct? Is there any interference with that? There is none. We specifically say those procedures shall not interfere with that kind of observation, seeking intelligence. We are not interfering with the civilian prosecution, with the civilian law enforcement at all. The rules to determine whether someone is a member of al-Qaida are rules which the executive branch is going to write. They can't say, Well, this thing authorizes the interference with civilian interrogation when, as a matter of fact, it specifically says it won't, and the procedures to determine whether somebody is governed by this assumption are going to be written by the FBI and the Justice Department and the executive branch. And, on top of that, there is a waiver.

Mr. LEVIN. That guarantee is called habeas corpus. It has been in our law. It is untouched by anything in this bill. Quite the opposite; we actually enhance the procedures here. The Senator from South Carolina has been very much a part of the effort here.

Mr. LEVIN. With all the risks that are entailed of being misunderstood and all the rest. That is something the Senator from South Carolina has engaged in, to try to see if we can put down what the detention rules are--by the way, ``are''--because as the administration itself said in its statement of administration policy, the authorities codified in this section--authorities codified in section 1031 they are referring to--those authorities already exist.

Mr. LEVIN. Not only is what the Senator said accurate, but we have done something else in this bill. There is an Executive order that was issued some years ago that said there should be a periodic review process for folks who are being detained under the law of war. Because it is so unclear as to when this war ends, there is real concern about that. What do we do about that? So in this bill what we require the executive branch to do--and I am now quoting from section 1035--is to adopt procedures for implementing a periodic review process. Those procedures don't exist now. They are not formalized. So we want to formalize them for the very reason that the Senator from South Carolina addressed: because we want to make sure that since we don't know when this particular war is going to end, it is kind of hard to define it and everyone is concerned about that, you have got to have review procedures. The greatest review procedure of all is habeas corpus. But there are also requirements in the Executive order for a periodic review process of whether somebody is still a threat or not a threat, for instance. The war may still be going on, but the person may no longer be a threat. Should there be an opportunity for the person to say that? Well, there should be. There surely should be a regular review process. The Senator from South Carolina has been very much involved in this kind of due process. But what we put into our bill--which would have been eliminated, by the way, if the Udall amendment had been adopted yesterday--is a requirement that the Executive order's procedures be adopted, because so far we haven't seen that.

Mr. LEVIN. Mr. President, I yield the floor.

Mr. LEVIN. Mr. President, I move to reconsider the vote.

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

Mr. LEVIN. Mr. President, I call for the regular order with respect to the Merkley amendment No. 1174.

Mr. LEVIN. The Senator from California, my great friend, Mrs. Boxer, is correct. We are willing to accept the Boxer-Grassley amendment by voice vote.

Mr. LEVIN. In response to Senator Grassley's question, I am very much aware of what he referred to.

Mr. LEVIN. You do, indeed.

Mr. LEVIN. I thank the Senator from California and the Senator from Iowa for their efforts in this area.

Mr. LEVIN. Madam President, in a few moments, Senator McCain and I will be seeking unanimous consent that the following pending and germane amendments be considered en bloc, that the amendments be modified with the changes that are at the desk where applicable: Begich 1114, as modified; McCain 1220; Reed of Rhode Island 1146, as modified; Levin 1293, as modified; Boxer 1206; Chambliss 1304, as modified; Pryor 1151; Nelson of Florida 1236; Blunt 1133; Murkowski 1287. Further, that the amendments be agreed to en bloc--we are not making that request now. We will be making that request in a few minutes. This is not the so-called managers' package, by the way. These are the pending germane amendments which have been before us for some time but which we believe have now been cleared, and there is no opposition; however, if there is, there is an opportunity for people to come down. I would yield now to my friend from Arizona.

Mr. LEVIN. That was not on my sheet, but that is fine, and that would be added.

Mr. LEVIN. I doublechecked on this. The answer is no, and that is about as directly as I can say it. I checked with staff and the staff says they have been modified--in many cases as I indicated--but none in order to make them germane.

Mr. LEVIN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEVIN. Madam President, I now ask unanimous consent that the following pending germane amendments be considered en bloc; that the amendments be modified with the changes that are at the desk, where applicable: Begich No. 1114, as modified; McCain No. 1220; Reed of Rhode Island No. 1146, as modified; Levin No. 1293, as modified; Boxer No. 1206; Chambliss No. 1304, as modified; Pryor No. 1151; Nelson of Florida No. 1236; Blunt No. 1133, as modified; Murkowski No. 1287, as modified; and Brown of Massachusetts No. 1090, as modified; further, that the amendments be agreed to en bloc.