Carl Levin

Mr. LEVIN

Mr. LEVIN. I ask unanimous consent now that the following two amendments be withdrawn: Collins No. 1105 and Collins No. 1158.

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

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 President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. LEVIN. Mr. President, I ask unanimous consent that upon the conclusion of the postcloture time, the pending germane Feinstein amendment, No. 1126, be the pending business; that the Senate proceed to vote in relation to the following Feinstein amendments in the order listed: Feinstein amendment No. 1126, Feinstein amendment No. 1456; that there be 2 minutes equally divided in the usual form prior to the second vote--there will be more time than that prior to the first vote; that no amendment be in order to either amendment prior to the votes, and that all postcloture time be considered expired at 6 p.m.

Mr. LEVIN. Mr. President, this has not yet been ruled on. I want to modify very slightly what I said in the unanimous consent request. I said that the Senate proceed to votes in relation to the following Feinstein amendments. I should have said the Senate proceed to votes on the Feinstein amendments in the order listed.

Mr. LEVIN. Mr. President, I have two other unanimous consent requests before we turn this over to the Senator from California. I ask unanimous consent that it be in order to make a point of order en bloc against the list of amendments in violation of rule XXII that is at the desk.

Mr. LEVIN. I would hope and I ask the time between now and 6 o'clock be divided between the two sides. We will yield immediately to Senator Feinstein.

Mr. LEVIN. Mr. President, I have one more unanimous consent.

Mr. LEVIN. I ask unanimous consent that the following amendments be withdrawn: Rubio amendment No. 1290 and Merkley amendment No. 1256.

Mr. LEVIN. Mr. President, we are soon going to be voting on two amendments. The first amendment that is proposed, the first Feinstein amendment restricts the authority that was available and is available currently to the President of the United States under the laws of war. That authority is if an American citizen joins a hostile Army against us, takes up arms against us, that person can be determined to be an enemy combatant. That is not me saying that; that is the Constitution. That is the Supreme Court of the United States in the Hamdi case: ``There is no bar to this Nation's holding one of its own citizens as an enemy combatant.'' The problem with the Feinstein amendment is that current authority of the President to find and designate an American citizen who attacks us, who comes to our land and attacks us as an enemy combatant would be restricted. We should not restrict the availability of that power in the President. Now we have an alternative. In the second Feinstein amendment, which I ask unanimous consent to be a cosponsor of--

Mr. LEVIN. In the second amendment, we have an alternative because now it would provide the assurance that we are not adversely affecting the rights of the U.S. citizens in this language. Senator McCain, Senator Graham, and I have argued on this floor that there is nothing in our bill--nothing which changes the rights of the U.S. citizens. There was no intent to do it, and we did not do it. What the second Feinstein amendment provides is that nothing in this section of our bill shall be construed to affect existing law or authorities relating to the detention of the U.S. citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States. It makes clear what we have been saying this language already does, which is that it does not affect existing law relative to the right of the executive branch to capture and detain a citizen. If that law is there allowing it, it remains. If, as some argue, the law does not allow that, then it continues that way. We think the law is clear in Hamdi that there is no bar to this Nation holding one of its own citizens as an enemy combatant, and we make clear whatever the law is. It is unaffected by this language in our bill.

Mr. LEVIN. Our time is yielded back.

Mr. LEVIN. Could I just interrupt with a unanimous consent request that prior to each vote there be 2 minutes of debate equally divided in the usual form and that it start with the vote after this one.

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

Mr. LEVIN. Mr. President, a number of my colleagues have asked where we are. We are going to have probably three or four more rollcall votes, hopefully including final passage. There is also a package--and everyone should listen to this because at least 70 of us are affected. There is a package of about 70 amendments which have been cleared. However, as of the moment, there is an objection to that package being adopted. When I say the package has been cleared, what I am saying is there has been no objection to the substance of any of those 70 amendments. If there was an objection to the substance, they would not be cleared. So there is no objection to the substance of those approximately 70 amendments, but you should be aware, because most of us have amendments in that cleared managers' package, that unless that objection is removed, we cannot get that package adopted tonight.

Mr. LEVIN. Mr. President, I very much support this amendment, I am a cosponsor, and I hope we can all vote for it. This does what we said-- those of us who wrote this bill--the bill does and does not do all along. It does not change current law. This amendment reinforces the point that this bill does not change current law relative to this section of this bill. The section of this bill does not change current law relative to the detention of people in the United States.

Mr. LEVIN. Mr. President, I think this can be accepted on a voice vote. I have great problems with it, but I think there is probably a majority here that will favor it and a distinct minority perhaps that would not. But it is something which basically doesn't add to the existing law, which says this is theoretically possible, and all this does is say it is possible one could be acquitted of a criminal case and still be held as an enemy combatant.

Mr. LEVIN. Mr. President, I ask unanimous consent that the germane Leahy amendment No. 1087 be modified with the changes at the desk; further, that the amendment, as modified, be agreed to.

Mr. LEVIN. Mr. President, I move to reconsider the vote on the Leahy amendment.

Mr. LEVIN. Mr. President, there is a pending amendment which apparently the clerk will need to report at this point.

Mr. LEVIN. Mr. President, I ask unanimous consent that the pending germane Udall of New Mexico amendment No. 1202 be modified with the changes at the desk; further, that the amendment, as modified, be agreed to.

Mr. LEVIN. Mr. President, we are going to be making a unanimous consent request. I am not even going to use my 1 minute on this other than to say thanks to everybody who has been so heavily involved, which is just about everybody in this Senate. I want to particularly thank Senator McCain. His staff and my staff have been utterly incredible. We have had hundreds of amendments we had to get through. We have done the best we can, and I want to tell my friends this so we can prepare a path for a unanimous consent agreement. It is not prepared yet, so I cannot read it, but it is going to be something like this. For those amendments which were germane, not because of modification, but were germane--

Mr. LEVIN. I believe we did.

Mr. LEVIN. Let me describe what this is about so we can be thinking about it before it is offered. There were 71 amendments, approximately, which were cleared. We spoke about those before. If anyone had an objection, they were not cleared. So by definition there is no objection on the substance of these amendments. However, there is objection for other reasons, one of them being that if an amendment was modified to make it germane, there would be an objection on that basis. So what Senator McCain and I are talking about--and we will put it in a unanimous consent proposal and then you all can decide if you want to agree to this--is that we would work--we pass a bill tonight and do all the other things we need to do because that has to be done. We have to get to conference. In the next couple of days Senator McCain and I, working with the Parliamentarian, would go through the 71 amendments, or whatever the number is. The Parliamentarian would then advise us as to which of those amendments is germane and were germane--and these are all cleared amendments. And for that group, whatever the number is, that we are informed by the Parliamentarian is germane and were germane, we would then put in a bill which would be introduced next week. If we can get that done, then the unanimous consent request would have that bill introduced, read a third time, and passed. That would be the most we could ask for. It would seem to me if we could pass this tonight, we could do the same thing with a bill--providing Senator McCain and I agree after talking to the Parliamentarian--that the only amendments that would be in that bill would be amendments which were germane. How do we get that bill into the conference report? We have not figured that out yet, but we are working on that piece as well. At least we can get the bill passed so we can go to conference and show the Senate passed these X number of amendments. This is the best we could do. It is the cleanest we could do. The Parliamentarian did not like the different idea that we proposed, and I don't blame him and her, but that is what we are going to be offering in a few minutes.

Mr. LEVIN. Mr. President, I ask unanimous consent that upon passage of S. 1867, the Armed Services Committee be discharged from further consideration of H.R. 1540 and the Senate proceed to its consideration; that all after the enacting clause be stricken and the text of S. 1867, as amended, and passed by the Senate, be inserted in lieu thereof; that H.R. 1540, as amended, be read a third time, passed, and the motion to reconsider be laid upon the table; that the Senate insist on its amendment, request a conference with the House on the disagreeing votes of the two Houses; and the Chair be authorized to appoint conferees on the part of the Senate, with the Armed Services Committee appointed as conferees; that no points of order be considered waived by virtue of this agreement; and all with no intervening action or debate.