Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. I will give my best answer to that. We had the President of the United States and the majority leader in the Senate say we had to have an immigration bill. They tried to pass it right here on the floor of the Senate. They could not pass it. The President could have stood on his head, and that bill would not pass. Just because we think we can order the Iraqi Parliament to vote out some law doesn't mean they can do that. So I am really worried about it, frankly. I am fully willing to acknowledge that it is a very troublesome development that the Iraqi Parliament hasn't been able to pass laws to carry out some of these needed reforms. But I don't think they are going to be more likely to be effective in passing legislation if we precipitously withdraw, allowing violence to increase again and whatever else might happen, with Iran expanding its influence. I have to tell you that the substantial reduction in violence we have seen is not small. This is really large. If you told me when the surge started that we would see a 70-percent reduction in civilian deaths in Baghdad, I would not have believed it. I would have thought that would be more optimistic than I was prepared to be. So whether it will hold, I don't know. We have seen some improvement. I know the Senator from Massachusetts would like to speak. I will just conclude by saying, OK, we have had these reports, we have seen this progress, and we know what the difficulties are. I have decided, based on General Petraeus's testimony, the Crocker testimony, the Jones Commission report, and other information we have, that things are moving in a better direction. I personally believe it is the new tactics, not so much the number of soldiers. I am very happy General Petraeus has concluded he can draw down troops while maintaining this progress of reducing violence. In fact, he has recommended that within the next few weeks, a Marine unit not be replaced. So that represents an initial reduction in our forces within a few weeks. Then the next reduction will come before Christmas will be an Army brigade, and he would have 30,000 troops withdrawn by next summer and would report to us again in March on whether he could continue this rate of reduction or accelerate it. There is not that much difference, I say to my colleagues, in what we want. Senator Levin wants to see troops withdrawn. He wants to see a stable Iraq. The question is, Do we do it with a mandated withdrawal rate dictated by Congress or do we do it in harmony with the situation on the ground that leaves us in the best possible position to allow a stable, peaceful Iraq, an ally to the United States, to exist? I think we should accept the report. We should see this as good news, celebrate that some progress has been made and recognize that serious challenges are out there. I do believe Congress has every right to monitor this situation closely. We have every right to reject the President's recommendation, to reject General Petraeus's recommendation, to cut off funds and order our troops home if we so desire. I think that would not be a good decision. I think it would not be in the long-term interests of the United States of America. Therefore, I oppose the Levin amendment. I yield the floor.

Mr. SESSIONS. Mr. President, I will respond to that. I don't believe that is accurate.

Mr. SESSIONS. The most dramatic reductions in violence occurred in the last months of August and September. Regardless of that, I would say the Senator is making a point I think I can agree to--that it is not just the number of troops that are affected. General Petraeus is executing a strategy utilizing counterinsurgency tactics that are more suited to the problems in Iraq and are proving to be more effective in reducing violence and protecting the civilian people in Iraq.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I appreciate the comments of the Senator from Massachusetts. I believe this matter is an important one. We have troops in the field who are executing the policies we have asked them to execute. We don't need to be using buzz words; we need to be talking about truth and facts and trying to make the right decisions for our country, and for the world for that matter. I detect fundamentally in the Senator's comments and from quite a number of others that they believe, as the Senator said, ``there is no real way out,'' and, in effect, we have a doomed policy that will not be successful. Therefore, we should withdraw now. If that is the fact, I would agree we should withdraw now. So that is why I think we need to analyze this very point. Last fall, a lot of people were worried about what was happening in Iraq. I certainly was. I visited Iraq in October. I visited Al Anbar. It was a very troubling report we received from the marines. It caused me great concern. Remarkably, Al Anbar region has shown, almost overnight, tremendous progress. But let's go to the facts. The Congress asked General Jimmy Jones and his commission in May to independently evaluate Iraq when we did the funding for the surge. General Jimmy Jones's report dealt with the fundamentals we are facing. I asked him did he believe it was realistically possible that we could be successful in Iraq. And he said: Yes, sir. I asked him did a single member of his 20-member commission believe that we were doomed to failure in Iraq, and he looked around and asked his commission members, and none of them said that was their view. They all believed we had a realistic chance of success. I asked General Petraeus did he believe we had a realistic chance of success in Iraq, and he said, yes. So I guess what I would say is, some say we do not. I would say the people--the generals who are leading the effort there--say we have a realistic chance of success. The independent commission we sent over there of 20 members unanimously believes we do. So I think we should base our opinion on the best information we have. As for me, I have to accept that. I also factor into that rather dramatic improvements in the reduction of violence in Iraq, where within Baghdad we have seen a 70-percent reduction of civilian deaths and a 55-percent reduction of civilian deaths across the country of Iraq. That is very significant. It is a product of many different things. It is a product of the new strategy as well as the new troops we sent there. So I have to say to my friends and colleagues in the Senate: Yes, this is a tough vote. Yes, we need to worry and agonize and think carefully about the challenges we are now facing, and we need to make rational decisions. Based on the information I have and the committee hearings I have attended in Armed Services, my 6 visits to Iraq, I think we should not precipitously withdraw. Well, they say, this is not a precipitous withdrawal, it is a deadline, and that is going to make the Iraqis do better. But it is not a deadline; it is a precipitous withdrawal. I mean I just have to tell you, let's deal with facts. The Levin-Reed amendment says the Secretary of Defense shall commence the reduction of the number of U.S. forces in Iraq not later than 90 days after the enactment of this act. And then it says: The Secretary of Defense shall complete the transition of the U.S. forces to a limited presence and missions by not later than 9 months after the enactment of this date. So this is basically a 9-month mandated withdrawal in Iraq, whether it creates instability and problems in places and puts our soldiers at greater risk or not. Unrelated to the facts on the ground, it is an absolute, mandated withdrawal. Now, if we were doomed to failure, maybe this is what we ought to do, but I don't believe we are doomed to failure. I believe, as Senator Lieberman said, there are a number of things that can cause us to feel better, and General Petraeus has certainly infused our effort with more leadership and effectiveness and purpose. His tactics utilizing counterinsurgency principles seem to have made some real progress. For example, he told us he is embedding his soldiers with the local people and the local forces to an extraordinary degree, compared to what we have done before. As a matter of fact, I asked him about that. I said: What are you doing differently? He seemed to, I have to say, appreciate the question because he had been asked so many other things. But he is doing things differently, and he explained some of the things he is doing. We are embedding our soldiers with their soldiers. They are living with them. They are in the neighborhoods. As a result, we are receiving more information, and the number of caches of weapons that have been seized so far this year put us on a pace to double the number of weapons and munitions seizures that we have achieved this year, doubling the previous rate. He said in his mind that may have something to do with the fact that attacks have been down and the number of IED attacks have dropped 37 percent. He didn't overpromise or declare that. He said it might have something to do with that, that we are obtaining twice as many caches of weapons and seizing those as a direct result of more and better information from the people of Iraq. So I would also join my colleague, Senator McCain, who certainly knows something about war firsthand, in concluding that the limited presence mandated in this amendment, the Reed-Levin amendment, that says that the mission of our forces that are left in Iraq can only be for the following purposes: No. 1, protecting U.S. and coalition personnel and infrastructure--base security, defending our bases--No. 2, training, equipping, and providing logistic support to the Iraqi security forces; and No. 3, engaging in targeted--this is a legal mandate--targeted counterterrorism operations against al-Qaida, al- Qaida-affiliated groups, and other international terrorist organizations. That is all they can do. As Senator McCain said, asking this question: Are they going to wear T-shirts that say: I am an al- Qaida, I am a Shia, or a Sunni terrorist; I am a Baathist warrior, and we can only shoot at those--use force against those who wear the al- Qaida T-shirts? This is not a practical, realistic directive to the U.S. military. We are not capable of deciding how to deploy the forces we have there. We are just not capable. This is a bunch of politicians--that is all we are--doing our best effort to serve the people. We don't have to be bound--I certainly agree--by a report from a general or the President. We can act if we choose to act. But we need to ask ourselves, are we going to dismiss the testimony of our top generals and the independent Jones commission about the progress that is being made and the realistic chance of success that exists? In fact, I think it may be a realistic fact that one reason Osama bin Laden is all over the television apparently in the last few days is because he is getting worried. The Sunni support area of Al Anbar in Iraq has turned against him and his people, and they are fighting against him and have devastated much of their capability in the Al Anbar region--a direct change from what I was told last October when that was not occurring. We are working with local police, local mayors, local tribal leaders, and that is yielding progress to a degree we have not seen before in Iraq. It appears to be a model that can lead us more successfully than trying to meet with a bunch of politicians in downtown Baghdad and trying to reach an accord that is going to affect something in Fallujah or Samarra or Mosul. Washington, DC, can't affect Alabama or Nebraska very well. But this country is not capable of issuing orders that can impact successfully the daily lives in these provinces and small towns. That is a product of the new nature of that Government and the lack of maturity it has. So we are using different tactics that seem to be working. Well, we have said our military is being damaged and our morale is bad and we have real problems there. Certainly, we have had a tremendous amount of our military personnel there, and they have performed with the greatest professionalism. They are well trained, well disciplined, well equipped, they know how to use the equipment with which they have trained, and they are performing in a magnificent way. They are at risk every day and they are doing their jobs effectively. For example, a few days ago, a group came to visit my office from Alabama. They were called Veterans for Freedom. It was made up of Alabama Army National Guardsmen and Army Reservists. I had the honor of being an Army Reservist for 10 years. I never served in combat, but I am honored to have been one of them. These are citizen soldiers. They recently returned from being mobilized in Iraq. These soldiers were all senior noncommissioned officers. They had demobilized and were back at their civilian jobs. They asked for a couple days off to visit the offices of Alabama's congressional delegation. They had several messages for me. The first message was: We have to win this battle. The group truly believes the contribution their unit had made in the war effort was measurable and positive. One of the guardsmen had been wounded in an IED attack early in the deployment. Thankfully, he was not seriously wounded and he returned to duty. He noted that by the end of the deployment, IEDs were no longer a threat in his area of operation. The message was simply their service had made a difference. Another message to me was: We cannot afford to lose this fight by simply giving up. I didn't make up that phrase--that a precipitous withdrawal is equivalent to giving up. That is what four veterans of Iraq told me they perceived we were considering doing. They urged us not to do it. Certainly, Iraq cannot be another United States in a short time, they told us. But it can become self-governing and self- sufficient. The group further stated it may be necessary for us to modify our objectives in this fight, but please don't quit. The senior NCOs finished by telling us they had at least one child, or spouse, on active duty or serving as a reservist or Guard member. This was a testimony--a form of saying to me they and their families believed in what they were doing, even if it meant they have to go back to Iraq again. After making this statement, they were quite polite. They thanked my team for the time they had with us and the few minutes they had to be heard. They came all the way up here to share that. I say that because I am not hearing the kind of talk from the people who are in Iraq serving our country now that I am hearing from the politicians in Congress. I am not hearing that. What about Jeff Emanuel, a former special operations veteran of Iraqi Freedom? He wrote an article in the Washington Times recently. He talked about the situation we find ourselves in today. The title of the article is: ``Iraqis show courage. Can Congress do the same?'' My colleague from Massachusetts, I think, was a bit too dismissive of the challenges faced by the Iraqi military police and the Iraqi leaders. They have a very difficult challenge, I admit that. I certainly admit that. I think this Nation cannot pour resources into Iraq if we reach the decision it cannot be successful. We will have to extricate ourselves no matter what. But I have to tell you I don't see it that way right now. This is what Mr. Emanuel said: . . . Iraqis in many locations have shown amazing courage, not only by providing an ever-increasing amount of information on insurgent activity to coalition forces, but also by working to rebuild what the insurgents have destroyed, as well as by putting their lives on the line to drive terrorists out of their own villages. They do this despite the fact that they do not know whether they will wake up the next day to find that the coalition--currently their best source of protection--has succumbed to the calls from home (which are heard here by civilians and terrorists alike) to leave Iraq, and has abandoned them. So they are hearing the talk here. It creates instability and uncertainty for those who want to stand with us and help them to prevail and create a good and decent government in Iraq, if they think we may flee the country the next day. Mr. Emanuel says: In April and May of this year, and again from the beginning of August through the present, I have been embedded [him personally] in some of the most kinetic combat zones in Iraq, observing General Petraeus's strategy from the ground level in several different locations, and have seen clear evidence of the strategy's effects on the situation there. I have personally observed clinics in which coalition medics and doctors provided villagers with a level of care that has long been unheard of in the country. He goes on to say this is still a broken and unstable country. That I do not doubt. Yet progress is inarguably being made, he said. He goes on to note this: A successful counterinsurgency is one thing, with a timeline which is measured not in months, but in years. However, to wage a successful counterinsurgency and then to build a stable, autonomous and secure state, which we can leave behind without risking its imminent collapse, is another matter altogether. He went on to note we must not break faith with those who have stood with us and made their commitment. We all are concerned about the situation in Iraq. The people I talk to--the military people I talk to see us as having a realistic possibility of helping to establish a decent government in Iraq--maybe not the kind of democracy we would like to have seen but something that can work, be a bulwark against an aggressive Iran and be a bulwark in a hostile base against al-Qaida and the terrorists there, who could be an ally to the United States. We have allies in the region. We have a base in Qatar, Bahrain, and we have strong allies in Kuwait and other places in the Middle East. We continue to have those and we will continue to do so. But there is a danger, without a doubt, about an expansive Iran and its leadership who seem to be disconnected from reality in many different ways. Iran's President Ahmadi-Nejad declared a few days ago that U.S. political influence was collapsing rapidly and said Tehran was ready to help fill the power vacuum. He said: Soon, we will see a huge power vacuum in the region. Of course, we are prepared to fill that gap. That is from the Philadelphia Inquirer of August 29. So the consequences of what we are doing are serious. Let me address one more time a rapid precipitous withdrawal and what it means as it is contained in the Levin-Reed amendment. Imagine you are a military commander and you have 160,000 troops in Iraq. You are told you have 9 months to withdraw everything but a token force to train Iraqis and to protect your own bases and to chase individual al- Qaida members and those associated with them. We are talking about more than a brigade of 5,500 troops a month having to be pulled out. When you have an area of responsibility that has been assigned to a military brigade and you draw those down, then somebody has to assume the responsibility for that territory. How do you do that? That takes time, planning, and care. You can get in a withdrawal or a situation that costs lives and will completely destabilize any progress that has been made. The military commanders have told us it cannot be done. You cannot draw down more than a brigade a month. That is a too fast pace. Remember, it is a brigade that has an area of responsibility of interfacing with American and coalition forces all around it, plus it interfaces with local police, mayors, and tribal leaders, plus it interfaces with the Iraqi Army and Iraqi police. All of that is part of the responsibility and the relationship that has built up. To precipitously pull out in 9 months all these forces and draw them back to only a few bases and give them a limited responsibility, is a huge, reckless idea that can only result in chaos, confusion and unnecessary death and will destabilize Iraq, destabilize the region perhaps, and cost more lives. Why don't we listen to what our fabulous general, General Petraeus, has said? He said: I understand we need to draw down these troops. I plan to draw down troops in Iraq. That is certainly my goal. I will say what I have said many times. The surge was a bitter pill for me. I had certainly hoped that in 2006 we would be drawing down troops, not having to increase troop levels. But that is what we voted to do in this Congress by an 80-to-14 vote. We funded that surge, and now we are getting a report on it. He said: I have had success by reducing violence in Baghdad and in the country. I am not going to replace a Marine unit that will be departing within a few weeks. That will reduce the numbers. I will bring a brigade home before Christmas and that will be another 5,000- plus personnel. I will continue to draw down next year according to my plan through the summer, and I believe I can achieve a 30,000 troop reduction by next summer. He said: In March, I will report to the Congress again, and I will tell you what further reductions we can achieve, and I hope to be able to announce further reductions. That is the kind of withdrawal that is consistent with our ultimate goal, to create a stable and decent Iraq in which the Iraqi Army and the Iraqi police can assume more and more responsibility. To me, the stakes are so high, the challenges and threats so great that we ought not be driven by polling data. We ought to ask ourselves: What is right for America? What is right for our soldiers? If they are pulled out and this country falls because we acted recklessly, there are going to be more morale problems than we can imagine in the United States military. There are going to be some angry people. They are going to be very disappointed in the Congress. They put their necks on the line because we asked them to. They lost friends and have wounded friends in this conflict, and then we up and jump away and undermine all that effort. It is not going to be pleasant, either. I say to my colleagues, I understand the purpose of this amendment. It wants reduction in forces. It wants to see us less engaged in the actual military operations in Iraq. We want to see more of that done by the Iraqi Army, the Iraqi police, and that is what General Petraeus wants. He has a plan to achieve that goal. This is a general who has written a manual for the Department of Defense on how to defeat an insurgency, a counterinsurgency manual. Let's give him that opportunity. He is making progress so far. Let's do our duty and watch. We are not bound by everything General Petraeus says. We are not bound by everything President Bush says. Yes, we are an independent body. We have individual responsibilities to make up our own minds. But if we do this, let's do it right. Let's don't be flip-flopping around. That is not worthy of a great nation. We cannot send troops in one day and jerk them out the next. Let's follow through in this difficult period and see if we can achieve that realistic chance of success that all 20 members of the Jones commission reported they believe is possible and as General Petraeus has told us he believes is possible. I believe it is the right thing for America to reject the Levin-Reed amendment. Mr. President, I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Yes.

Mr. SESSIONS. Mr. President, I would utilize that 3 minutes and allow the distinguished chairman of the Judiciary Committee to close with his remarks. First, I express my appreciation to Senator Lindsey Graham and Senator Jon Kyl, who meticulously explained the origin of the situation we find ourselves in today and why we have never provided the writ of habeas corpus to enemy combatants and why we should not do so. Let's back up a little bit and go to the core of it. The Senator from New Mexico, Mr. Bingaman, I think correctly gave us the status of the case. Congress passed section 2241, part of the United States Code, a statutory provision of Congress dealing with habeas. At that time, I suggest, without any doubt in my own mind, Congress had no idea that years later the Supreme Court would conclude that language--and rightly or wrongly on the Supreme Court ruling--that language would provide habeas rights to combatants captured on the battlefield. OK. But the Supreme Court ruled that based on the way the statute was written. It was an unintended consequence. I would note, three members of the Supreme Court dissented and did not think that statute covered that. So after that happened, we had to ask ourselves: Is the Supreme Court saying: You, Congress, provided habeas rights to prisoners. You did it when you passed the statute. We are not saying the Constitution requires it. We are not saying the Supreme Court requires it. What we are saying is you did it when you passed the statute? So Congress said: OK, we did not mean that. Then we passed the amendment last year Senator Graham offered that fixed it, and did not provide, for the first time in the history of American history--or world history, for that matter--enemy prisoners be given the right to sue the generals who have captured them. All right. So we did that, and we passed it. The DC Circuit Court of Appeals, in interpreting that statute, has followed it and concluded that Congress has changed the law and that the prisoners in Guantanamo are not entitled to habeas rights that we provide to every American citizen. Now, that is the right thing. This is exactly what we should do. So I am somewhat taken aback by the suggestion of those who are promoting this amendment that somehow Congress denied the Great Writ and changed the law and they are here to restore it. This is purely a matter of congressional policy and national policy on how we want to conduct warfare now and in the future. How are we going to do that? Are we going to do it in a way that allows those we capture to sue us? Now you can utilize those rights if we choose to try a prisoner of war and to lock them up or to execute them. You can use a lot of legal rights. A prisoner can use those rights, but not in this circumstance. This is merely to restore the historical principles of habeas that already existed. The current law does that. The new amendment would change it.

Mr. SESSIONS. Mr. President, let's see how the time looks. I think perhaps so. How much time is left on this side?

Mr. SESSIONS. Mr. President, I want to----

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I would just say that we have a limited amount of time in this body--and we all know that--before the end of the fiscal year will be coming up on September 30. We have to pass some sort of appropriation to fund our defense and our military by that date. We need to pass the Defense authorization bill, which has been voted out of the Armed Services Committee. Senator Levin, our Democratic chairman, has moved that bill forward, and it had strong bipartisan support. It is on the floor today, and it provides quite a number of valuable and critically important benefits for our defense on which we need to vote. For example, it increases the number of persons in the Army, the end-strength of the Army, by 13,000, and 9,000 for the Marine Corps. We have a lot of people talking about the stress on the military, so we need to authorize the growth of the military. It is something we know we need to do, and I think we have a general agreement on that. It is in this bill. We need to move this bill. It authorizes numerous pay bonuses and benefits for our warfighters and their family members. It allows a reservist to draw retirement before age 60 if they volunteer under certain circumstances for active mobilizations. It directs studies on mental health and well-being for soldiers and marines. It establishes a Family Readiness Council. It authorizes funding for the MRAPs, which are those vehicles which are so much more effective against even the most powerful bombs and IED-type attacks. So this bill, this authorization bill, is not an unimportant matter. Our soldiers are out there now in harm's way, where we sent them, executing the policies we asked them to execute, and we need to support them by doing our job. We complain that Iraq can't pass this bill or that bill; we need to pass our own bill. Not only do we need to get this authorization bill passed, but we have to get on next week to the appropriations bill to actually fund the military because if we do not do so, the funding stops. Under American law, if Congress does not appropriate funds, nobody can spend funds. It is just that simple. We have to do our job, and I hope we will. I am troubled to see a lot of things beginning to occur that indicate there is an agenda afoot here, at least by some, that would make it difficult, if not impossible, for us to get this work done. For example, the first amendment brought up on the Defense bill--not a part of the committee bill but on the floor here--is to provide to enemy terrorists habeas corpus rights they have never been provided by any nation in history during a time of war and certainly not our own Nation. It is frustrating for me to hear people say we want to restore habeas rights to captive enemy combatants. If we did it, we should at least perhaps give priority to lawful enemy combatants. Most of these are unlawful enemy combatants who have not in any way followed the rules of war and therefore are not provided, in normal circumstances, the full protections of the Geneva Convention. So I am worried about that. The President has said if that amendment passes, he will veto the bill. So what will we have done then? Are people in here going to have a good feeling about that--they made the President veto the bill--that we provide unprecedented rights to captives who are setting about to attack and kill Americans? We are releasing people from Guantanamo and have released quite a number of them. Quite a number of them have been recaptured on the battlefield trying to kill our sons and our daughters who are out there because this Congress sent them out there. So I think we need to get our heads straight. Now, in addition to that, we have Senator Durbin offering the DREAM Act amendment, an immigration bill, to this bill. Senator Kennedy says he intends to offer hate crimes legislation. These are controversial pieces of legislation, unrelated, really, to the Defense Department. They ought not be passed. They have been rejected before. Certainly the DREAM Act was. Let me talk about this DREAM Act. It is something Senator Durbin points out that I have objected to before. I have objected to it before when it came up in the Judiciary Committee, not in the Armed Services Committee. The Durbin amendment, as filed as of the end of July, would do a number of things. It will, indeed, provide amnesty, the full panoply of rights we give to any citizen who comes here lawfully. It provides a full citizenship track and full rights for quite a number of illegal aliens, putting them on a direct path to citizenship. A conservative estimate done by the Migration Policy Institute suggests that at least 1.3 million will be eligible for amnesty. It will also allow current illegal aliens, those who would be provided amnesty under this bill, and future illegal aliens who come here after this day, illegally-- hopefully, I thought we decided when the comprehensive bill was voted down, the American people were saying let's end illegal immigration--it would provide for them to be eligible for in-State tuition at public universities, even when the university denies in-State tuition to U.S. citizens and legally present aliens. It would reverse 1996 law that quite rationally said let's not reward people who are here illegally by giving them a discounted rate of tuition. How much more simple is it than that? It would provide Federal financial aid in the form of student loans and work/study programs, subsidized by Federal money. It is unclear, it appears, whether Pell grants, direct Federal grants, are going to be provided to people in our country illegally, with which to go to college, whereas hard-working Americans, many of them, don't qualify for Pell grants--and we need to expand Pell grants. Why would we then be providing them to persons who would come into our country illegally? They say they may have come when they were younger. Maybe they did. But if you have a limited number of persons to whom you can provide Pell grants or subsidized loans, I suggest they should be given to those who are lawfully here, not those who are unlawfully here. There is an old slogan: If you are in a hole, the first thing you should do is stop digging. I suggest if you have a problem with people coming into the country illegally, the first thing you should do is stop subsidizing that illegal behavior by giving them discounted tuition. The DREAM Act establishes a seamless process to take illegal aliens directly from illegal status to conditional permanent resident status, then to legal permanent resident status, and then the next step, of course, is citizenship. First, illegal aliens who came here before age 16 and have been here illegally for the past 5 years will be given ``conditional'' permanent residence, or green cards, if they have been admitted to an institution of higher education or have a GED, or have a high school diploma. The ``conditional'' green card, which is good for 6 years, will be converted to a full green card. A green card means you have a legal permanent residence status in America. In this case it would be a direct result of an illegal entry into the United States, or an illegal overstay. It will be converted to a full green card if the alien completes 2 years of a bachelor's degree or serves 2 years in the uniformed services. This is broader than the term ``military service,'' as people have said. ``Uniformed services,'' as defined by title 10, includes the National Oceanic and Atmospheric Administration Commissioned Corps and the U.S. Public Health Service Commissioned Corps, in addition to the military. Or they would qualify if they can't do those because of hardship. After 5 years of ``conditional,'' or full green card permanent status, the aliens amnestied under the DREAM Act will be eligible for citizenship. We are also expanding, through this amendment, if it is to be adopted, immigration into the country based on an illegal action in a number of ways. There is nothing in the DREAM Act that limits the ability of the illegal aliens who are being provided permanent status and citizenship here to bring in their family members. Once an illegal alien becomes a legal resident under the act, they can immigrate their spouses and their children. As soon as the illegal alien becomes a citizen, he or she will be able to bring in, to immigrate their parents to the country as a matter of right. So there is no numerical limit to the number of parents a citizen can immigrate into the United States. I think that is one of the flaws in our current law. The reason that is important is because we are generous in immigration. We allow a million or more a year to come legally into our country. We do provide quite a number of generous provisions that allow people to come. But if you are allowing those limited number of slots-- in effect, we have only so many that the country does allow and would desire to allow to come--we are providing parents of those who have been illegal to be able to come as a guaranteed right, whereas another who may have a master's degree, may have a high skill, may have learned English in Honduras and is valedictorian of their school or college-- they can't get in. But they have an automatic right for a parent, who may have done far less in the scheme of things to justify taking one of those limited slots the country has to offer. That is why I am concerned about that. We don't think about it in correct terms. We have to understand we cannot accept everybody in the world. We should create a generous system of immigration that allows people to come to America, but we ought to set up a legal system that we are proud of and that sets good standards, that allows a person to have the greatest opportunity to be successful here, to have more precedence in entry--which is exactly what Canada does, and Canada is quite proud of it. In 1996, Congress passed this law: Not withstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration and scope) without regard to whether the citizen or national is such a resident. The DREAM Act eliminates this provision that has been offered on the Defense bill. It would reverse this current Federal law. The result is that States will be able to offer in-State tuition to illegal aliens.

Mr. SESSIONS. I thank the Chair and ask unanimous consent for 1 additional minute.

Mr. SESSIONS. Mr. President, I will conclude by saying there are a host of reasons why we need not, ought not pass the DREAM Act itself. But that is a matter of debate that we have had several different times now. What we need to be doing now is providing support for the soldiers, sailors, airmen, marines, and guardsmen we sent in harm's way by passing the Defense authorization bill and the Defense appropriations bill. We don't need to be talking about the DREAM Act. We don't need to be talking about hate crimes. We don't need to be offering the first amendment out of the chute, an amendment that provides habeas benefits to unlawful combatants, legal rights that have never been given by the United States in the history of the Republic, nor any other nation in the history of the world. We need to get serious and get some work done here that is important and not be distracted with amendments that are going to be politically controversial and can only make it more difficult for us to do our duty as a Congress. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. I thank the Chair.

Mr. SESSIONS. Mr. President, I ask unanimous consent that I be allowed to speak as in morning business.

Mr. SESSIONS

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

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I understand some effort is being made to pursue the amendment offered by Senator Specter, which is very troubling to me because if it were to pass, it would reverse the Military Commissions Act of 2006 that we passed last September on final passage, 65 to 34. Passage of this amendment would result in a veto of the Defense authorization bill by the President of the United States. The first amendment we have up that is being pushed to a vote against the pleas of people on this side would result in a veto of the Defense authorization bill. The second amendment may well raise the same issue, I understand. Not only that, we have very controversial amendments that are being made filed to this bill and that have been offered for a vote on this bill which are very controversial and are not related to the defense of America--for example, the hate crimes amendment. People have differing views on that. They have offered an amendment on hate crimes on this bill. There is also the amendment on the DREAM Act, which is an immigration amendment that would provide citizenship to people who come here in our education system at a certain age, and even though they are illegally in the country, they would be provided in-state tuition and student loans subsidized by the Federal Government. That is a very controversial matter too. So that is all going to be put on this piece of legislation, apparently. It raises questions in my mind whether there is any serious desire on the part of the Democratic leadership to see the Defense authorization bill passed. The bill came out of the Armed Services Committee, of which I am a member, and it didn't have the reversal of the Military Commissions Act of 2006 and the grant of habeas corpus to illegal enemy combatants, noncitizens on foreign soil. It didn't have that or hate crimes or the DREAM Act. I just say to my colleagues that we need to do the right thing for our soldiers, sailors, airmen, marines, and guardsmen who are serving our Nation now. They are in the field this very moment. They are out walking the streets somewhere in Iraq--160,000 of them--executing this very complex and very important and, so far, effective counterinsurgency strategy that was devised by General Petraeus. They are living with Iraqi soldiers and Iraqi police and doing the things they were asked to do. This bill has a pay raise for them and wounded warrior language that provides additional care for those who are wounded while serving our country. We owe them every single benefit we have to give them. We have military construction to make sure we are able to carry through on the BRAC process. It has acquisition reform. We need to do a better job with the money we spend in acquiring new weapons systems and aircraft and ships and all the things that go with it. I just say to my colleagues, let's remember now that everything is not required to be placed on this bill. If we pass this amendment to provide habeas corpus protection to illegal enemy combatants, not citizens, not on American soil, not required by the Constitution of the United States, according to decided case authority of Federal courts, that is going to result in a Presidential veto even if it passes. Hopefully, we won't pass that. Why do we want to do that? We need to be spending our time thinking about how we can help those whom we have sent into harm's way to execute a policy that has been decided upon by the Congress of the United States. That is what we need to be doing-- not creating more and more lawsuits, not engaging in more and more political flapdoodle and emotional arguments about restoring habeas corpus, when we have never provided habeas to prisoners of war in the history of the Republic, nor has any other advanced nation provided those kinds of rights. I urge my colleagues to push back from this brink. Let's don't take action that could result in the failure of a defense authorization bill. It would be the first time we have failed to pass a defense authorization bill since 1961, 46 years ago. Let's don't break that record while we have soldiers in harm's way serving our national interests, attempting to execute the policies and assignments we have given to them. Let's don't do that. Let's don't pass a bill that is going to come back like a ball off of the wall because it will be vetoed by the President. What good is that? Why are we obsessed with this? It wasn't passed in the Armed Services Committee, and it doesn't need to be pushed now. I urge my colleagues to become fully aware of the dangerous territory which we are entering. We are entering a circumstance in which, if we continue to pursue issues unrelated to the core responsibilities of the Congress to deal with the war we are confronting, we will have failed in our responsibilities and actually fail to pass this important legislation. In addition, we need to finish up with the Defense bill and go on to the Defense appropriations bill. The fiscal year ends September 30. We need to pass the Defense authorization bill so that we can get to the Defense appropriations bill by next week. That needs to move. We do not need to still be arguing over the DREAM Act, arguing over hate crimes, arguing over providing habeas corpus rights to illegal enemy combatants held somewhere around the world by the American military, a privilege that has never been provided by any nation to people it captures on the battlefield. That is not the right way for us to go. This Congress, if it is a responsible Congress, should move forward this week on the authorization bill and do the appropriations bill next week. What are the core issues? We have some core issues we ought to debate about the defense of America and our military. Let's stay on those issues, not on extraneous issues. There is no doubt that we have heard the report of GEN Jimmy Jones's commission, the Government Accountability Office report the week before last, and then last week we heard from General Petraeus and Ambassador Crocker. We need to have time to discuss seriously--and this side has certainly agreed to that and it is contemplated that we will have a generous time to discuss our commitment in Iraq, what it is, what our goals are, how we can achieve those goals, what the troop levels should be, how they are going to be drawn down, are they being drawn down fast enough, and what other issues are relevant. Those are legitimate issues on which we should spend time. I am very concerned these other issues will be distracting us from those issues, that we will be utilizing time that ought to be on the core issues of defense of this country, and I hope those leaders, particularly our Democratic leadership, are not going to put us in a position where we will not meet our responsibilities. For the past 46 years, we have passed a Defense authorization bill. At the rate we are headed, even if we pass it, it is going to be vetoed because of amendments wholly unrelated to the Defense of this country. We need to pass a Defense appropriations bill, and we need to get on that quickly because the fiscal year is ending. For my colleagues' information, we are going to have to do something to continue to fund defense because if we do not pass a Defense authorization bill, the fact is that no money can be spent in the whole Department of Defense unless we are being attacked. It is very troubling, and it could have tremendous disruptive impacts throughout the entirety of our defense establishment. Under the Antideficiency Act, if Congress does not appropriate money, the executive branch cannot spend it. It cannot spend what has not been appropriated. That is the Constitution, and that is what the Antideficiency Act says. The budget and last year's appropriations end September 30. We need to pass a new bill so we can go forward into next year. We have a pretty good bill that came out of committee. There will be some disagreement here, there, and on a few other matters. We will bring those up, and good people will disagree. I certainly understand that point. We need to be working on those issues, not being distracted on matters unrelated to the core of defending America in this time of terrorism. I share those thoughts and hopefully our colleagues in the leadership can continue to work and some way we can avoid the end toward which it appears we are heading. I yield the floor and suggest the absence of a quorum.

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

Mr. SESSIONS. Madam President, I wish to thank Senator Kyl for his hard work on these important issues. He is a superb lawyer who is a senior member of the Judiciary Committee, on which I serve, and he has been a member of the Intelligence Committee. He understands these issues and, thanklessly, he devotes hours of his time to try to research and study Supreme Court cases to try to make sure we do the right thing here. The most important thing for us to remember is this, and Senator Kyl just said it, that the refrain we are hearing about restoring habeas rights to prisoners of war, even unlawful combatant detainees, is not so. We have not done that, and it is a matter that is quite clear. The origin of the great writ--the writ of habeas corpus--can be traced back to the Magna Carta in the 13th century. It is truly a great writ. It is truly a powerful tool for any person who is being detained to demand that someone, somewhere come forward and tell the world why they are being detained. That is what totalitarian and Communist governments do all the time. These kinds of dictators and Communists and Nazis go out and grab people and put them in jail and never charge them, never announce where they are, even. So that is not what we want to do here. However, never in the history of the writ's existence has an English or American court granted habeas to enemy combatants held during a time of war. As early as 1793, the American courts--1793-- recognized that foreign prisoners held by the military during armed conflict have no inherent right to judicial review of their detention. They have no inherent right to that. You do have an inherent right by writ of habeas corpus if you qualify and meet the criteria. So that year, in 1793, a district court in Pennsylvania said: Courts will not grant a habeas corpus in the case of a prisoner of war because such a decision on this question is in another place being a part of the rights of sovereignty. In other words, national power. The Supreme Court of the United States reaffirmed that position in 1950 in a case called Johnson v. Eisentrager. In that case, the Supreme Court made expressly clear that U.S. constitutional protections do not apply to aliens who are detained outside the borders. It was the first case to deal with a habeas petition of enemy combatants detained outside the borders of the United States since the statute was originally enacted as part or the Judiciary Act of 1789. It is now codified as 28 U.S.C. Section 2241. In that case, German nationals living in China during World War II, having never lived in the United States, were accused of violating the laws of war. They were tried by a U.S. military tribunal in China, convicted, and sent to Landsberg Prison in Germany, then an occupied sector of Germany, to serve their sentences. Some of the convicts, including Eisentrager, questioned the legality of their trials and filed for a writ of habeas corpus to the United States District Court for the District of Columbia, right here in DC, stating that the military's actions violated their rights as guaranteed by several portions of the U.S. Constitution, including article III of the fifth amendment. In denying habeas to these German nationals, the court expressly rejected the argument that enemy combatants detained overseas have a constitutional right to petition U.S. courts for habeas relief, noting that: Nothing in the text of our constitution extends such a right. It rejected the view that the U.S. Constitution applies to enemy war prisoners held abroad. The court claimed: No decision of this court supports such a view. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it. Where do we keep coming up with this idea that habeas is applicable to prisoners of war? I am baffled. The Court explained emphatically that such a constitutional entitlement would hamper the war effort and bring aid and comfort to the enemy. Habeas proceedings would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. That is a pretty clear statement. How could it be otherwise? Congress authorizes a state of hostilities. We fund it. The President, as the Commander in Chief, the military commanders execute it, and now we have it in our heads somehow that the persons our commanders are charged with reducing to submission have a right to sue us. The Court further held--this is in 1950--that the fifth amendment is inapplicable to aliens abroad and, in reasoning fully applicable to the suspension clause, explained ``extraterritorial application of organic law'' to aliens would be inconceivable. Writing for the majority, Justice Jackson, who was referred to by Senator Dodd and Senator Kyl--a great Justice on the Court--stated: The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States. That is pretty plain language, wouldn't you say? I think that is the plain language of the Constitution. It does not give them immunity from military trial. Even if, as opponents mistakenly argue, this amendment restores a statutory right to habeas, the Supreme Court has also held that Congress may freely repeal habeas jurisdiction if it affords an adequate and effective substitute or remedy. Essentially, if legislation strips habeas, according to the Supreme Court, the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention, does not constitute a suspension of the right of habeas corpus. In other words, if they provide some fair procedure for even prisoners of war that we decide is consistent with our military efforts and consistent with our sense of fairness, that does not confer and give a guaranteed right to a habeas corpus review. The Military Commission Act of 2006 was drafted with these important Supreme Court precedents in mind. After careful negotiation among our Members and careful analysis of the Supreme Court's decision in Hamdan v. Rumsfeld, Congress went above and beyond what was required by the Constitution and the Geneva Conventions to ensure detainees, even terrorists, at Guantanamo Bay, had an adequate and effective substitute method to test the legality of their detention. So we did that. We did not fail to respond. We did that. The MCA provides alien enemy combatants far more legal process than has ever been afforded by any country in the history of armed conflict. I am not aware of a single country in the history of armed conflict that has provided more rights than our procedures that we have established under the Military Act that we passed and the President signed into law last October. The Combatant Status Review Tribunal for detainees is more robust than those to which lawful combatants, honorable soldiers in organized militaries of a foreign nation, are entitled to under the Geneva Conventions. Let me repeat that and drive home the importance of that concept. The Geneva Conventions were decided upon by a group of nations that came together and thought that during the course of military conflicts, too many things happened that are not justified and are not necessary and are damaging to people in ways that could not be justified. We wrote the conventions, the nations did, to try to ameliorate some of the problems in warfare. We said that if you have a lawful combatant, as part of the Geneva Conventions, a person who has signed up for his or her country, fighting for the country, who wears a uniform, who carries his weapons openly and does not act in a surreptitious manner, does not act in a terroristic manner but fight battles according to the laws of war--if captured, must be treated and afforded the protections of the Geneva Conventions. That is a good standard of review and protection. Congress passed a law to provide for the people at Guantanamo, who are not lawful combatants but are unlawful enemy combatants and who have not historically been considered to have been covered by the Geneva Convention. We afforded them privileges that are not required even under the Geneva Conventions on how you handle detainees. Let's talk about our present conflict, the war on terrorism. Former Attorney General John Ashcroft has made this point. If you think about it, it is worthy of our consideration. John Ashcroft is a great believer in American liberty, the rights of liberty, a key characteristic of the American people. But he points out we ought not to think about restraints that occur as some sort of a balancing test between liberty and control and domination. He says, when you engage in an action that is designed to protect us, the test should be not a balancing test, but the test should be: Does it improve liberty? In other words, if you go to the airport and have to go through one of those checking stations as I did today, the question is: Do you feel more free to fly, having had that inspection occur? Is your liberty to travel, is your liberty to fly safely and securely in an aircraft in America, enhanced because you take a couple of minutes to go through that line? Or not? If it is, then that is a protection of liberty. We are indeed in a different world than we used to be, when threats fundamentally came from foreign nations. Now, even a few people with dedicated, malicious intent, with modern weapons of mass destruction and death can have tremendous impact on us. So what we are trying to do is execute lawful actions that improve our liberty, not deny liberty but to enhance liberty for all peace-loving and law-abiding American citizens. I want to talk about Hamdi v. Rumsfeld. As part of the Judiciary Act of 1789, Congress conferred on the Federal courts jurisdiction to hear petitions for habeas corpus. Though the language has gone through minor changes since 1789, current law, now codified at 28 U.S.C. section 2241, is essentially the same grant of habeas corpus as originally enacted. The statutory language has never referred specifically to enemy combatants because such a grant was understood not to apply to those individuals detained during a time of war. Congress understood that detention of enemy combatants during time of war is strictly a military decision, since we do not allow enemy combatants to continue their war against us through the judiciary, through litigation. Though the Supreme Court has repeatedly held that habeas corpus does not extend to alien enemy combatants detained outside the United States, some argue that Justice O'Connor's plurality decision in Hamdi v. Rumsfeld changed this precedent. In that decision, Justice O'Connor said: All agree that, absent suspension, habeas corpus remains available to every individual within the United States. Proponents of this amendment that we are debating cite this statement by Justice O'Connor as proof that habeas relief is available to all those detained within the United States, regardless of whether they are an alien enemy combatant. Let me note that during World War II, there were 425,000 enemy combatants held within the United States, none of who were allowed relief through habeas petitions. Furthermore, reliance on that statement by Justice O'Connor is wrong, since the question in Hamdi was whether the executive had the authority to detain a U.S. citizen as an enemy combatant and whether that citizen detainee had habeas rights. Focusing on that narrow issue, the plurality referred specifically to the rights, in their opinion, the plurality opinion, of citizens, eight times in the opinion; and in the holding of the case-- and the holding of the case is limited to the circumstances of the cases itself--Hamdi was, after all, a U.S. citizen. Regardless, some advocates maintain that Justice O'Connor's otherwise inconsequential statement, too tenuous to constitute dicta, reversed years of settled precedent and for the first time granted habeas rights to illegal enemy combatants detained overseas. That proposition flies in the face of the commonsense interpretive rule that one does not hide elephants in mouseholes. Had the Hamdi Court intended to extend habeas rights to all individuals in the United States, not just citizens, including suspected foreign terrorists detained outside U.S. territory, it most assuredly would have articulated such a consequential ruling with more clarity. But Hamdi did not present that question and the Court did not resolve it. Moreover, as the Court aptly noted, quoting Eisentrager: Such extraterritorial application of organic law would have been so significant an innovation in the practice of government that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Accordingly, had such a consequential holding been made in Eisentrager, it would have been met with prolific commentary from the legal community, from other Justices. It would have been an event, but that event did not occur--because it had no such meaning, of course, as evidenced by the lack of contemporary discussion. No decision subsequent to Eisentrager has reversed its holding that alien enemy combatants have no right to habeas protections guaranteed to American citizens by the U.S. Constitution. Therefore, its holding remains governing law. Moreover, the issue now, if it ever could have been considered ambiguous, has been definitively resolved by the same judge who earlier granted Salim Ahmed Hamdan's habeas petition. Judge James Robertson, of the U.S. District Court for the District of Columbia, issued an opinion on December 13 in which he relied, in large part, on Eisentrager to justify his ruling that enemy alien combatants have no constitutional right to habeas corpus. Judge Robertson, appointed to the bench by President Clinton, dismissed Hamdan's petition for habeas relief on the grounds that the MCA effectively denied his court's jurisdiction to hear the case; recognizing that Congress had removed Hamdan's statutory right to petition the D.C. Circuit Court for habeas relief. Judge Robertson also held: Hamdan's connection to the United States lacked the geographical and volitional predicates necessary to claim a Constitutional right to habeas corpus. Well, then, the Rasul case came along. Proponents of this amendment argue that they seek only to restore the right to habeas corpus as found by the Supreme Court in the 2004 case of Rasul v. Bush. Rasul took great pains to emphasize that its extension of habeas to Guantanamo Bay was based not on the Constitution, which clearly is a historic right we talked about on habeas, but it was based on some statute passed by Congress. Some Justices may have wanted to make Rasul a constitutional holding, but there clearly was no majority for such a position. Supreme Court cases such as Eisentrager are still the governing law on the constitutional reach of habeas and the Congress's ability to limit its statutory application. These precedents hold that aliens who are either held abroad or held here but who have no substantial connection to this country are not entitled to invoke the U.S. Constitution. Rasul was an unprecedented decision which effectively and truthfully seemed to fly in the face of all previous Supreme Court and English case law. Several Justices in this case engaged in what I would submit to my colleagues is activism. The Court extended the reach of the Federal habeas statute to Guantanamo Bay detainees. To my knowledge, this decision was the first time in recorded history that any court of any nation at war held that those whom its military had determined to be enemies had a right of access to its domestic courts and could sue the Commander in Chief to challenge their detention. The Court based its analysis on the phrase, ``within their respective jurisdictions,'' as used in the Federal habeas statute and various decisions construing that particular provision. Moreover, the Court expressly distinguished between the statutory and suspension clause holdings of Eisentrager and limited its analysis to only the statutory grant of habeas. The Court determined that the measure of the Guantanamo lease agreement between the United States and Cuba allows for the jurisdiction of habeas claims since the United States exercises plenary and exclusive jurisdiction over the land on which the naval base is situated, although it does not have ``ultimate authority.'' Furthermore, the majority, I think and others think, mischaracterized the congressional statute as meaning that the writ of habeas corpus could be issued if ``the custodian can be reached by service of process'' and not the detainee. As Justice Scalia accurately pointed out in his dissent, the majority: springs a trap on the executive, subjecting Guantanamo Bay to the oversight of the Federal courts even though it has never before been thought to be within their jurisdictions and thus making it a foolish place to have housed alien wartime detainees.'' Furthermore, the decision opens a veritable Pandora's Box since it ``permits an alien captured in a foreign theater of active combat to bring a section 2241 petition against the Secretary of Defense.'' This case was a clear-cut example of, I believe, Supreme Court overreach. They seemed determined to do something about this. They wanted to do something about it. Apparently, they did not like it. So in straining to grant U.S. courts jurisdiction over terrorists held outside the United States, the Supreme Court determined, for the first time in history, that a simple lease agreement brought Guantanamo Bay within the jurisdiction of the court. Read broadly, the majority opinion could be used to bring U.S. military bases and detention facilities across the world within the jurisdiction of the U.S. courts. Fortunately, in that opinion, Justice Kennedy did limit the application of the holding to Guantanamo Bay, Cuba. Congress, however, addressed the issue because, remember, this was based on the Supreme Court's interpretation of a statute Congress passed and which Congress changed, not on the Constitution ratified by the American people. So less than a year ago, Congress addressed the issue when it passed the Military Commissions Act, which precluded detainees from challenging their detention through habeas petitions. Now, if the Court relied on the statute as we wrote it before, we can change that statute, and we did. In doing so, Congress adhered to Supreme Court precedent and created an effective and adequate substitute in the form of a Combatant Status Review Tribunals and allowing detainees an opportunity to challenge the determinations made by the tribunals, even in the district court in the District of Columbia. So it set up a Combatant Status Review Tribunal so they can bring and make their argument, and if they do not like the military's determination on that, they can get to a Federal court. That is not habeas, but it is a pretty good procedure, more than ever has been given before to prisoners of war. So it seems we finally worked this thing out. On February 20 of this year, the DC Circuit Court dismissed all pending habeas cases from the Guantanamo Bay detainees for lack of jurisdiction. Furthermore, on April 2 of this year, the Supreme Court denied a certiorari petition from the petitioners in Boumediene v. Bush and Al Odah v. United States, refusing to review their claims that the Military Commissions Act--that last year we passed--does not deprive courts of jurisdiction to hear their habeas corpus claims and that it would be unconstitutional to do so, for Congress to pass it. They rejected that. The Court did not find it was unconstitutional, what Congress passed, and, in fact, found that Congress did what Congress intended to do, creating a substitute appellate process so prisoners could have a review of their detention but not give them the full panoply of habeas corpus rights provided to American citizens. The Supreme Court, however, reversed itself on June 29 of this year and agreed to review both the Boumediene and Al Odah cases. This review could very well address the constitutionality of the habeas bars in the Military Commissions Act, and, much like this amendment, further undermine the executive's constitutional authority to detain enemy combatants in a time of war. I hope the Supreme Court will not do that, but they have agreed to hear that case and give it one more final review. Certainly, as of this date, the case authority is clear, that the Constitution does not provide habeas protection to noncitizen enemy combatants on foreign territory not part of the United States. I say that because people have come in on several points along the way and accused President Bush or the Attorney General or others of taking improper positions. In most instances, the courts have ruled in favor of the executive in these cases, on a few cases they found those procedures not to be statutory or pass muster. But what I will say to you is, in these cases, in almost each instance they have reversed previous law. So the executive branch and our military was operating under what they had every right to consider to be the settled law of the land. So the Court comes in and changes that law. I do not believe our military should be condemned or criticized for taking action they felt, and had every right to believe, was legitimate when they took it. Now, it is important to remember that the detainees at Guantanamo Bay are the most dangerous people who we have captured on the battlefield pursuant to executive war-making power. They have been determined to be ``alien enemy combatants'' and the courts have absolutely no role to play, in my view, in trying to second-guess the wartime decisions made by the executive branch, especially where Congress has given their stamp of approval to the process. It is not the Supreme Court's role to micromanage this war by making decisions that fall outside the scope of congressional authority. The decisions made by the Supreme Court have long-lasting effect and are not easily undone. If we are unhappy with present foreign policy, Congress can cut off funds for the war or people can vote the President out of office. I would note President Bush was reelected on a promise to continue to pursue with vigor the war against terrorism and the war in Iraq. Supreme Court Justices are appointed for life and are supposed to adjudicate the constitutionality of laws passed by Congress, not to legislate from the bench or to set foreign policy. This setting of foreign policy and conducting military operations are powers squarely within the purview of the executive branch not nine individuals with lifetime appointments sitting on a Court with black robes. It is not within the court's jurisdiction to decide on war-making decisions but simply the constitutional power. It is important to note the Justices lack the knowledge, in many cases, to address the matter, or have any experience to make these decisions. Have any of them ever served on the frontlines during war, or if they have, have they ever served in a war on terrorism or been a JAG officer or been a company commander, someone who captured enemy prisoners? A Court's opinion or personal views about this are not a matter that is impressive to me. We expect them to rule and to find Congress's statutes--we expect them to enforce the Constitution. But just to flip- flop around and try to decide that they do not like the way something is done at Guantanamo, and to issue an opinion, would be troubling to me. Hopefully, we will not get to that. It has to be clear, as I have shown, that if we apprehend enemy combatants in the theater of war, it is within the executive branch's power to detain them until the hostilities are over. This is a separation of powers issue, and the courts should recognize that. Congress has already addressed what should be done with those detained at Guantanamo Bay. Last October, we granted those detainees unprecedented rights that have never before been provided to prisoners detained during war. Under the current system that we have provided them, detainees have essentially five layers of protection when challenging detention or determinations made by the Government. All of this is already covered by current law. It was never the intent of Congress, however, to endow the statutory guarantee of habeas corpus to alien enemy combatants held during a time of war. So if we proceed with the amendment that is before us, we are not restoring the right of habeas corpus; we are effectively overturning 800 years of legal authority and precedent in this area. To quote the distinguished ranking member of the Judiciary Committee, I submit that 800 years of American and English court history certainly constitutes ``super duper'' precedent. Allowing terrorists to challenge their detention through habeas petitions filed in the DC Circuit courts would undermine military decisions made by the Executive and essentially put wartime decisions regarding the detention of those apprehended while engaged in hostilities toward this country in the hands of judges who are not qualified to make the decisions. They are not empowered to make the decisions. This is exactly why the Founders vested the Executive with this type of decisionmaking authority--decisiveness and ability to act quickly--and to undermine this power would be to trample on the Constitution we are sworn to defend. Voting in favor of this amendment would be undermining the Executive authority in times of war by making it virtually impossible for the military to detain dangerous terrorists affiliated with al-Qaida and with the Taliban during the war on terror and allowing Federal judges to force the release of detainees whom the military have determined to be extremely dangerous. It is just that simple. I am disappointed the Senate is proceeding forward with this amendment. I do not believe it is the right thing. It would result in an unprecedented grant of constitutional protection to those suspected of being terrorists. This further indicates to me that our Congress is not in full comprehension of the seriousness of the war we are engaged in and the determination of those who are determined to kill us. It shows this body is, frankly, often unable to execute a military operation. We cannot get 535 people to execute a military operation and decide who ought to be detained and who ought not to. The military could go out and conduct a raid, and a firefight could break out, and eight people be killed and eight people captured. Thirty seconds before, they could have killed all 16. Now, if we detain them, we have to bring soldiers from the war field, present evidence of some kind, gather evidence to try to justify the detention. We all know quite a large number of those who have been released from Guantanamo have reappeared and been captured again on the battlefield trying to kill us. That is a fact. We are not making that up. I wish these people in Guantanamo were the kind of people who would not go back to the battle. I wish they were all wrongly held so we could let them go home. But what if their determination is to continue to attack American soldiers, and it is your son out there, your daughter out there on the battlefield, and somebody says in the U.S. Congress, ``We don't think you have enough evidence to hold them''? What do we know about what happened? We have given that power to the executive branch to conduct the war. That is who is supposed to be making those decisions. That is who is required to preserve and protect the security of the American people. I do not think that makes sense. It is not a little matter. It will set a precedent for future times. We are eroding the ability of the leadership of this country to execute and carry out a military operation, which by its very nature involves death and destruction of an enemy. So I have to say to my colleagues, we need to think this issue through. This may be a political deal now that we can use to beat up President Bush, but let me say to my colleagues, you had your victory in the last election, if not in 2004. We will have a new President soon. We need to get away from this personal and political perspective. We need to be thinking about the long-term history of the United States. We need to be thinking about other wars we may be involved in in the future. We need to be asking ourselves: Are we creating a circumstance in which a devious, skillful, malicious enemy can utilize our very laws to destroy us, place at risk our own soldiers, place at risk American citizens, place at risk our people serving in military bases around the world? Let's be careful about that. We have provided them, by statute last year, a procedure to contest their detention. Large numbers of those who have been detained have already been released, and quite a number of those have been recaptured on the battlefield attempting to destroy America and what we stand for, attacking our own sons and daughters. I urge my colleagues to be careful. To say we need to restore the right of habeas corpus is not correct. We have never provided habeas corpus to enemies of the United States, for heaven's sake. I share again the overall concept that we are in a difficult new world. The Constitution provides for reasonable searches and seizures and such things as that. Our country is threatened, and our people's liberties are threatened. Liberty is important. Freedom is important. We in Congress do not need to be curtailing significantly liberty in America. We certainly do not need to be eroding constitutional protections that are provided to American citizens. We are not doing that. The Supreme Court has never held the Constitution provides protection in this fashion to enemy combatants. So we are not eroding the Constitution. What we have come up with is a realistic process that will, in the end, provide more liberty, more freedom to American citizens than if we were subjected to a system by which we are releasing terrorists again and again who are out to kill and destroy us. That is all I would say on the fundamental question of liberty and freedom and law. Let's get our thinking straight. Let's look at this issue carefully. Let's be sure we know that no country has ever provided such protections to enemy combatants. The fact that 50 out of 400,000 German prisoners who were tried after the war in Nuremberg had certain legal provisions and rights provided them in no way whatsoever should be construed to say we provided habeas rights to other prisoners during the course of a war. They were not provided to the 400,000 German prisoners held in the United States, that is for sure. Mr. President, I thank the Chair and yield the floor. I suggest the absence of a quorum.

Mr. SESSIONS. Madam President, will the Senator yield for a question?

Mr. SESSIONS. I had the distinct pleasure of visiting Carrollton, AL, in Pickens County, where they have a museum to maintain the history of a large German prisoner of war camp in the United States. The Senator mentioned that certain legal rights were accorded 50 or so prisoners. But those were prisoners tried in Nuremberg after the war--after the war--for war crimes. Now, is the Senator aware of any instance in either the German camps or other prisoners who may have been held in the United States during wartime being provided habeas rights?

Mr. SESSIONS

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

Mr. SESSIONS. Mr. President, I ask unanimous consent to speak as in morning business for up to 7 minutes.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, it is time for us to review our policy in Iraq. We have been aware this day was coming for some time. To recap how things have occurred, we had hearings in the early part of this year to confirm General Petraeus. This has been General Petraeus's third tour in Iraq. I first had the opportunity to meet with him when he commanded the 101st Airborne in Mosul. He was part of the initial invasion--a brilliant combat commander who impressed all of us on our CODEL. I later visited him in Iraq when he was in charge of training the Iraqi military and their police. It was a critical moment in their development. He was asked to go back early to do that, and he agreed to do so. He then returned to the United States and wrote the counterinsurgency manual for the Department of Defense. Before the ink was dry on that manual, the President asked him to go back to Iraq, for the third time, to lead this critical effort at this critical time. So I wish to first say how disappointed I have been that some have seen fit to attack this man, attack what he might say. I am afraid, frankly, the purpose of that was to sort of preemptively smear his testimony. I saw most of his testimony this afternoon. As a member of the Armed Services Committee, I expect to see more of it tomorrow and to be there tomorrow when he testifies before our committee and to hear it all in complete form. So let me say this: It is right and just and appropriate this Congress, which sent him there in January, I believe, which voted on May 24 to fund the surge--we had a lot of debate about this surge, whether we should do it, whether we should increase our troop levels. The situation in Baghdad was not good. The situation in Al Anbar had made some improvement but was not where we wanted it to be. The country was in a difficult time. The President said: Let's step up the troop level. Let's have a surge. We had much debate about it. I know our leader, Harry Reid, went to the White House along with Nancy Pelosi, the Speaker of the House. They came out with an agreement, and only 14 Senators opposed--in a truly bipartisan vote--funding of this effort. So I have been disappointed that some announced it a failure even before it got started good. But we all committed to one thing; and that is that General Petraeus would come back and he would report to us and we would hear from him. Some thought we needed more than that. So we as a Congress included in our funding legislation a requirement that another commission be set up, an independent commission, with retired officers and so forth. GEN Jimmy Jones, former Commandant of the Marine Corps and former Supreme Allied Commander Europe, chaired that commission. He reported last week. Also, we had the Government Accountability Office do an independent analysis of the benchmarks in Iraq. Now we are having General Petraeus and Ambassador Crocker, who is clearly one of the best respected Ambassadors in the State Department with experience in this region of the world. They are giving us their report today and tomorrow. If Congress concludes this effort ought not to go forward, so be it. But we ought to do it after listening to our generals. In fact, I noticed some of the polling data showed more than two-thirds of the American people prefer to have their decision process be informed by the military, and only less than 10 percent, I think, or maybe 20 percent, said the Congress should set the military standards. Here is an article by Bing West I noticed in the National Review in May. He has been to Iraq multiple times. He has written two books on the Iraq war. He said: The new American military team has infused the effort with energy and strategic clarity, and seized the initiative. In this war, the moral/psychological element outweighs the physical by 20 to 1. I think there is a good bit of truth in that. I think we have seen a more coherent, focused strategy under General Petraeus's leadership. With regard to his testimony and its truthfulness, I remember interviewing him before he was to testify in January, before being sent to Iraq, and he said: I will tell you one thing, Senator. I am going to tell you the truth as I see it if you send me there. So the next morning I thought I would ask him that very question before the committee while he was under oath. I said: You've indicated, I think, in your opening statement [General Petraeus] that you would, but I'd like you to say that so the American people would know that a person who knows that country [Iraq], who's written a manual on counterinsurgency--if you believe it can't be successful, you will tell us so we can take a new action. That was my question to him: Will you tell us if you think this will not work? Because he told us and made the public statement our effort in Iraq was difficult, but he did not think it was impossible. He replied to me this way: Sir, I firmly believe that I have an obligation to the great young men and women of our country who are putting themselves in harm's way, and certainly to all Americans, to tell my boss if I believe that the strategy cannot succeed at some point. I believe this man told us the truth today as he saw it and will tell us the truth before the Armed Services Committee tomorrow, as God gives him the ability to do so. He finished near the top of his class at West Point. He was No. 1 in his class at the Command and General Staff College. He has a Ph.D. from Princeton. He has been in combat. He has led one of the Army's finest combat divisions in combat. He has trained the Iraqi Army. He knows most of the Iraqi leaders pretty well because of his time there. We could not have a better person. We need to listen to him and then make our independent judgment after he testifies. So I thank the Chair for this time. I hope all Americans will participate, as Congress should, in evaluating where we are today. Then, once we make a decision about what our next step will be, I would call on my colleagues to not do things that undermine the strategy once we have established it. Don't come up 2 weeks after we have voted on what to do and then say it is a failure. Let's don't do that this time. Let's agree to--no matter what it is, no matter how it comes out--have our debate and then our vote, and let's establish a policy and stick together and work hard to make it a success. I thank the Chair, and I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Yes.

Mr. SESSIONS. I will be pleased.

Mr. SESSIONS. Responding to the question of the Senator, I do know that you, as one of the authors of that bill which I did support, did create provisions to minimize that and deliberately took steps to reduce the amount of crowd-out that would occur.