Arlen Specter

Mr. SPECTER

Mr. SPECTER. I direct an inquiry to my colleague from South Carolina. Would the Senator respond to the question?

Mr. SPECTER. Mr. President, I call up amendment No. 5064.

Mr. SPECTER. The amendment which I seek to call up, Mr. President, is one which proposes to strike section 7 of the Military Commission Act entirely.

Mr. SPECTER. If I may respond, Mr. President, I didn't cite Rasul v. Bush for a constitutional proposition. I cited Hamdi v. Rumsfeld, and I cited the opinion of Justice O'Connor. But let me repeat it because it is the core consideration. She said: All agree that absent suspicion the writ of habeas corpus remains available to every individual detained within the United States. Of course, that does include Guantanamo. Then Justice O'Connor goes on to say: United States Constitution, article I, section 9, clause 2, privilege of writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety requires it. Then she says that all agree that suspension of the writ has not occurred here. Then she deals with the statute, 2241, and makes the comment that it sets the procedures, but Justice O'Connor puts detention in the Hamdi case squarely on constitutional grounds.

Mr. SPECTER. If I might be recognized.

Mr. SPECTER. Mr. President, what the distinguished chairman says is accurate about Rasul, but you have Hamdi, which puts it on constitutional grounds. It is that simple. I yield the floor.

Mr. SPECTER. I didn't want you to yield for a question because I didn't want to interrupt your presentation. I begin by complimenting the Senator from South Carolina for his excellent work. He and Senator Warner and Senator McCain have done exemplary work in maintaining the Geneva Conventions and appropriate rules and to classify evidence. When you talk about constitutional issues and you talk about section 2241, I agree with the Senator, but how do you deal with the flat terms of the Constitution, ``the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion public safety may require it''? How do you deal with that if you do not have rebellion?

Mr. SPECTER. Well, Mr. President, the distinguished chairman of the Armed Services Committee says he does not want to come back and legislate again. If this bill is passed, we will be right back here at a later date. When the Senator from South Carolina says it is not on constitutional grounds, the plain English of the decision says it is. But let me ask the Senator one further question; that is, you fought hard to have classified evidence available in the trials, albeit a war crimes trial. And you have Justice O'Connor saying they have to have the opportunity to rebut facts. When these proceedings are handled so much on classified information the detainees cannot see, would it not be consistent with your approach on classified information generally to at least have them know something about the charge so they can rebut the facts?

Mr. SPECTER. Well, Mr. President, there is flexibility, I agree, but the determination as to whether that flexibility is adequate is up to the Court. That is what the Supreme Court has said. I yield the floor.

Mr. SPECTER. Mr. President, I stipulate that Senator Warner is right about Iraq on this point.

Mr. SPECTER. Mr. President, I only need one sentence to refute the arguments of the Senator from Arizona, and it comes back to Justice O'Connor's opinion again. She says: All agree that, absent suspension, the writ of habeas corpus remains available to every individual-- Every individual-- detained within the United States. Guantanamo is held to be within that concept. But she talks about ``every individual.'' That includes citizens and noncitizens. I yield the floor.

Mr. SPECTER. Mr. President, that is satisfactory to me. How much time do I have remaining?

Mr. SPECTER. I thank the Chair.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to recommend to my colleagues the confirmation of Francisco Augusto Besosa to be a district court judge for the District of Puerto Rico. Mr. Besosa comes before the Senate with an impressive record. He received his Bachelor's degree from Brown University in 1971 and his law degree from Georgetown University Law Center in 1979. Prior to attending law school, he served as an intelligence officer in the U.S. Army and was awarded the Meritorious Service Medal. Mr. Besosa has had a distinguished career as a practicing lawyer in Puerto Rico. He has spent 70 percent of his time practicing in the Federal courts, with the balance in the State courts. His principal occupation has been in the civil field, and he has had considerable trial practice. Mr. Besosa is currently a partner in the law firm of Absuar Muniz Goyco and Besosa, a firm he joined in 1994. The American Bar Association has rated Mr. Besosa ``well qualified.'' Mr. Besosa was passed out of the Judiciary Committee unanimously. I am pleased in my capacity as chairman of the committee to recommend him to my colleagues for confirmation.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to discuss the issue of habeas corpus, which is the Latin term used to define the great writ from ancient England to produce the body, to determine if an individual is being lawfully held. The writ of habeas corpus has an illustrious history in common law, in English law, and in American law. It is the focus of attention on issues now being considered relating to detainees in Guantanamo, and was the focus of attention in the Hamdan case, which is now being considered by the Congress of the United States in terms of complying with the order of the Supreme Court of the United States for the Congress to discharge its constitutional duty under Article I, section 8, to establish procedures for military commissions. We have pending at the present time two bills: the Terrorist Tracking, Identification, and Prosecution Act, S. 3886, which has been proposed by the administration; and the Military Commissions Act, S. 3901, which has been reported out by the Armed Services Committee. There have been extended discussions about these bills in terms of compliance with the Geneva Conventions, whether classified information may be used, whether hearsay is appropriate, whether coerced confessions can be used. But there has been relatively little attention--almost none--on the fact that both of these bills eliminate the writ of habeas corpus review. Had this prohibition been in effect earlier, the case of Hamdan v. Rumsfeld, decided in June of this year, might not have been decided. As a matter of law, it is my legal judgment that Congress cannot act to delete the remedy of habeas corpus because the Constitution provides, as follows: Article I, section 9, clause 2: The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Now, we do not have a rebellion and we do not have an invasion. Those are the two circumstances under which the writ of habeas corpus may be suspended. Since neither is present and the Constitution cannot be altered by statute, the pending legislation may be unconstitutional. As a matter of public policy, the writ of habeas corpus is also established as a statutory base in Title 28, United States Code, section 2241. In the case of Rasul v. Bush, in 2004, the U.S. Supreme Court ruled that the detainees at Guantanamo Bay have a right to file petitions for habeas corpus so that a Federal court may review the evidence which justifies their continued detention. Many of the detainees have filed petitions, but only a few have been heard. And most have not yet had a hearing on their habeas petition. Senator Leahy and I have asked for a sequential referral to the Judiciary Committee from the Armed Services Committee because our Judiciary Committee has jurisdiction over habeas corpus and other provisions of the legislation which I have cited. If you take a look at the pending legislation, it is obvious that the enemy combatants who are detained have virtually no rights, very few procedures applicable to them compared to those who may be charged with serious war crimes. And it would, indeed, be anomalous to have greater procedural protection for someone charged with a war crime, where the evidence is present to justify that charge, contrasted with a detainee, where, as the practice has evolved, there is very little information, let alone the absence of evidence, very little data, to warrant detention. The pending legislation endorses as the exclusive review mechanism that the hearings will be held under the so-called Combat Status Review Tribunals. And this is a comparison of what the Combat Status Review Tribunals, called CSRTs, will do in comparison to the military commissions. In the CSRTs, no evidence is presented by the Government. The proceedings are governed by what is called a proffer in criminal courts. The charges are read to the detainees, and they are asked to respond. By contrast, in the military commissions that are parts of both bills, the Government must introduce evidence which support the charges. In the CSRTs, the detainees have no lawyers. Most speak no English and communicate through interpreters. In the military commissions, the accused detainees have the right to be represented by lawyers. In the CSRTs, the detainees have no ability to cross-examine the witnesses against them or to see any physical evidence because none is introduced. In contrast, in the military commissions, the detainees' lawyers will be allowed to cross-examine the Government's witnesses and see the Government's physical evidence, although there may be some limitation as to classified information on a controversy yet to be worked out. In the CSRTs, the detainees have no ability to call their own witnesses to produce evidence. In the military commissions, those rights will be fully protected through the commissions' subpoena power. In the CSRTs, the tribunals are permitted to consider classified evidence, including, apparently, for all we know--although we are not really certain as to what happened in each individual case--there may be information obtained by torture or by means which produced flagrantly coerced confessions. That will not be the case in the military commissions. The bills provide that the rulings of the past CSRTs are final and conclusive, with the only appeal allowed being to the District of Columbia Court of Appeals--and such an appeal would be limited as to whether the CSRTs followed their own procedures. In contrast, a full judicial-like appellate procedure is provided for appeals from military commissions. So from this analysis, it is obvious that the worst of the detainees will be accorded far greater rights--those charged with war crimes-- than all the other detainees, many of whom, according to summaries of proceedings, took no action against the United States or its allies. This habeas corpus legislation, if enacted, will not end the court battle over detention at Guantanamo Bay. If either of these bills becomes law, there will be years of litigation as to whether the U.S. Constitution is violated. If the proposed changes to habeas corpus in these bills are rejected by the courts, we will be back for more legislative fixes and more judicial proceedings. As I have noted, the request has been made for referral to the Judiciary Committee. There are some difficult procedural steps to get that sequential referral. I am, frankly, not optimistic it will occur. The scheduling of the floor action on these bills is uncertain at this time, depending on whether an agreement is worked out. It is my hope we will reach an agreement on the issue of how the Geneva Conventions will apply and whether there ought to be any modifications of it. I believe the committee bill, endorsed by Senator Warner, Senator McCain, and Senator Lindsey Graham, is correct, that we ought not to water down the provisions of Common Article 3 of the Geneva Conventions, that we ought not to modify that or have the appearance of modifying it. It is my legal judgment that what General Hayden is looking for can be accommodated within the existing recognition by the United States. The Geneva Convention on torture was adopted in 1988 and has language which is very similar on indignities or mistreatment. And the Congress filed a reservation as to that 1988 Convention, saying that it would be defined in terms of the provisions of amendments V, VIII, and XIV to the U.S. Constitution. My understanding is that is pretty much what General Hayden is looking for, so that it may be possible to establish the existing position of the U.S. Government on that reservation, which would be consistent with full recognition of Common Article 3, as a stand already taken by the United States, so that we would not be limiting Common Article 3 to something new or we would not be appearing to limit Common Article 3 to something new. With respect to classified information, again, I agree with what Senators Warner, McCain, and Graham have articulated, that it is not appropriate to deny classified evidence to an individual where the death penalty might follow or other serious penalties might be imposed. It is insufficient to give that information to a lawyer. And even if it were given to the lawyer, there is a problem as to whether it might be transmitted, and sources and methods might be revealed to those who could harm the United States. As to coerced confessions, again, I agree with the Warner-McCain- Graham approach, that coerced confessions should not be admitted. They are unfair and unreliable. When it comes to the issue of habeas corpus, I think both the administration's bill and the bill passed out of committee, with the endorsement of Senators Warner, McCain, and Graham eliminating habeas corpus is inappropriate. Depending on when the bill comes to the floor, there may be an opportunity for the Judiciary Committee to hold a hearing and to have an analysis of the constitutional limitation on suspending habeas corpus and the public policy interests that are involved. I, Senators Leahy, Levin, and others will be circulating a ``Dear Colleague'' letter advising that we intend to offer an amendment if these bills come to the floor with the denial of habeas corpus in them.

Mr. SPECTER. Yes.

Mr. SPECTER. Mr. President, in response to the question of the Senator from Illinois, Senator Leahy and I have signed a letter to the majority leader, Senator Frist, and the Democratic leader, Senator Reid, asking for sequential referral.

Mr. SPECTER. The Senator is correct. The Judiciary Committee has jurisdiction over the constitutional issue. In fact, as to the pending legislation, the Judiciary Committee has jurisdiction over Common Article 3, and the committee also has jurisdiction over changes to the war crimes. We have submitted to the Armed Services Committee a sequence of war crimes which have been included in the bill. Regrettably, we didn't have enough time for committee action. Although, as the Senator from Illinois may recollect, I advised the committee of what we were doing and circulated early drafts so people could be in a position to comment. I think it is important that Congress move ahead to comply with Hamdan. Also, we ought to do it right. It requires some analysis. We can do it in a relatively short timeframe. Provided we focus on it and have hearings, it is going to require Senators to become acquainted with what is going on. The fact is, Congress has been derelict in its duty in providing rules for military commissions, and it is our responsibility under article I, section 8. The Senator from Illinois and I filed legislation shortly after 9/11, 2001, to accomplish that, as did other Senators. The Congress did not act because this issue has been too hot to handle, too complicated, too dicey. It is not to the credit of the Congress, which sat back and did nothing. Finally, in June of 2004, the Supreme Court came down with three opinions. We punted to the courts, as we do repeatedly. Thank God for the courts. Thank God for life tenure and the independence of the courts in this country, which come in to act when there has been inertia and inaction by the Congress, or inappropriate contact by the executive branch historically, and not just with this administration. When the Hamdan case came down, the Court ordered the Congress to comply with our duty to legislate. All of this comes about because of habeas corpus. I don't believe the Congress has the authority to take away habeas corpus jurisdiction, especially in light of the specific provisions of habeas corpus, but also generally. When we considered, in a rush, the legislation last year that was passed, I was the sole voice on this side of the aisle objecting to it. It was passed with substantial support on the other side of the aisle because it was thought that at least it would not be applied to pending cases. Then there was a surprise when Justice Scalia said these colloquies were inserted by staff after the fact and there was no matter of congressional intent. He would have disregarded it. The majority opinion did not deal with the issue but just took the jurisdiction and moved ahead to decide the case. This is not an issue which I came to recently. This is an issue that has concerned me for more than two decades. When Chief Justice Rehnquist was up for confirmation, I raised the issue in the confirmation proceedings with him as to whether the Congress had the authority to take away the jurisdiction of the Court on first amendment issues. Chief Justice Rehnquist refused to answer. Overnight we produced an article that he had written criticizing the Congress in the Whitacre proceedings for not asking about due process or equal protection, talking only about matters of lesser concern, such as Whitacre being from Kansas City and it was an honor to both Kansas and Missouri because he lived in one State and worked in the other. Chief Justice Rehnquist, when confronted with the article, answered the question. He said Congress could not take away the jurisdiction of the Court on first amendment issues. Then I asked him about the fourth amendment, search and seizure. He declined to answer. I asked about the fifth amendment, privilege against self incrimination. He declined to answer. On the eighth amendment, crucial and unusual punishment, he declined to answer. It was a significant statement that Chief Justice Rehnquist made. As to the first amendment, the Congress could not take away the jurisdiction of the Supreme Court or the Federal courts. There is a much stronger case that you could take jurisdiction on the first amendment rather than on habeas corpus because the Constitution says habeas corpus is suspended only when there is a case of invasion or rebellion. You don't have either. We better be careful what we do on constitutional rights. We better be careful. We were concerned in the PATRIOT Act to make sure we didn't go too far, that we could pass an act to give law enforcement protection and protect the constitutional rights, and we are struggling with the electronic surveillance issue, where we are trying to accommodate the interests of some Republicans and many Democrats to give appropriate protection to civil rights. I think this Congress has sufficient wisdom and experience to protect America from terrorists and still respect constitutional rights. That was a long answer to a short question, I might say to the Senator from Illinois. I appreciate his coming to lend some emphasis. There are more people who tune up their television sets, watching this lonely discussion, when there is a little colloquy and dialogue as opposed to the monotonous tones of the speaker alone.

Mr. SPECTER. Mr. President, one concluding statement. A group of attorneys who came to see me on this issue have been representing detainees. They produced summaries of proceedings before this body. It is shocking as to how little information there is in these proceedings under the CSRTs. I am trying to find out now if the information I have is not classified and present it in detail to Senators and to Members of the House so you can see how little information there is and how explanations are made and how people are detained without any basis, and on what appears to be a situation where there is no danger. To the credit of the officials in Guantanamo, many have been released. But that is not sufficient. The detention of an individual under our laws is to be made by a court. When challenged, that requires a habeas corpus proceeding. Mr. President, I thank the Chair and my colleague from Illinois. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. SPECTER. Mr. President, I have sought recognition to speak in support of the nomination of Alice Stevens Fisher to be Assistant Attorney General of the Criminal Division of the United States Department of Justice. Ms. Fisher has an outstanding academic record. She received a bachelor's degree from Vanderbilt in 1989. At Vanderbilt, she was a member of the Gamma Beta Phi Honorary Society. She received her law degree from the Catholic University of America's Columbus School of Law in 1992. She served as Note & Comment Editor of the Catholic University Law Review, which was a mark of distinction. After law school, she was an associate with Sullivan & Cromwell from 1992-1996. She served as Deputy Special Counsel to the United States Senate Special Committee to Investigate the Whitewater Development Corporation from 1995 to 1996. She was an associate of the law firm of Latham & Watkins from 1996 to 2000, and was made a partner in 2001. From 2001 until 2003, she served as the Deputy Assistant Attorney General in the Criminal Division of the Department of Justice. She went back to Latham & Watkins from 2003 to 2005. On August 31, 2005, she was appointed as the Assistant Attorney General for the Criminal Division via recess appointment, which is her current position. She is a member of a number of bar associations, and she has extensive writings on a number of subjects. I ask unanimous consent that a full statement of her qualifications be printed in the Record.

Mr. SPECTER. Ms. Fisher's nomination has been delayed for a very long period of time. In the meantime, Ms. Fisher has been serving as Assistant Attorney General for more than a year. She has handled some very high profile investigations and has done an outstanding job. When she appeared before the Judiciary Committee, she presented herself very well. She is extremely well-qualified for the position. Since her nomination, some objections have been raised and her nomination has been delayed because an email memorandum, authored by an FBI agent, lists her as an attendee at a meeting where Department of Defense Guantanamo interrogation techniques were discussed. Ms. Fisher was not responsible for the interrogations conducted at Guantanamo by the Department of Defense or the FBI. She did not approve or direct the interrogation or interrogation techniques, and she was not involved in the approval of the Office of Legal Counsel's memorandum, the so-called Bybee memorandum. Senator Levin, before withdrawing a hold on Ms. Fisher's nomination, wanted to talk to the FBI agent who was identified in the file in connection with Ms. Fisher's nomination. However, when the matter became protracted and delayed, the Attorney General asked me if I would meet with Senator Levin and the FBI agent. It was the practice of the Department of Justice not to make an FBI agent available to Senators but only to the chairman of the Judiciary Committee. I decided to honor that request even though I did not see the connection between Ms. Fisher and either the FBI or the Department of Defense's interrogation techniques. Senator Levin wished to have the FBI agent appear, not with the customary representative from the Department of Justice, Office of Legislative Affairs, but instead with someone from the Department of Justice Inspector General's Office. We accommodated Senator Levin by having a representative from the FBI's General Counsel's office attend the meeting. We also accommodated Senator Levin on the location of the meeting, which was held in his office and I was happy to meet there. The interview with the FBI agent lasted approximately 1 hour, during which we had an extensive discussion about what the FBI agent knew about interrogation techniques. The meeting barely, barely, barely touched on Ms. Fisher. Nothing in the interview showed any misconduct or impropriety on the part of Ms. Fisher. Nothing contradicted her testimony. She was barely involved. Following that meeting, Senator Levin made a request to see two other individuals who had no connection with Ms. Fisher and no connection with her nomination. I am glad we have come to this point. I have included extensive documentation in the record demonstrating the way the Department of Justice responded in honoring Senator Levin's requests. I have worked with Senator Levin for 26 years. He is a very thorough and effective Senator. When he wanted to see this FBI agent, we worked it out so that he saw the FBI agent. I am glad the hold is off. I understand we are going to vote on Ms. Fisher. I believe this comes under Shakespeare's edict: All's well that ends well. And now we will go on to work on some other important matters, such as trying to get habeas corpus in effect on the Guantanamo issue. I yield the floor.

Mr. SPECTER. Mr. President, there are many things I can say in response to what the distinguished Senator from Michigan has said, but silence is the preferable course. Instead, I ask, as the representative of the majority leader, to set the vote at 5:45 with the expectation there will be no other speakers. I ask unanimous consent we set the vote at 5:45.

Mr. SPECTER. People who run the Senate, staffers, have just consented to the request.