John Warner

Mr. WARNER

Mr. WARNER. That is my understanding and intent as well, and I agree with the Senator's other clarifying remarks. In the same section, the term ``serious physical pain or suffering'' is defined as a bodily injury that involves one of four characteristics: ``a substantial risk of death,'' ``extreme physical pain,'' ``a burn or physical disfigurement or a serious nature,'' or ``significant loss or impairment of the function of a bodily member, organ or mental faculty.'' I do not believe that the term ``bodily injury'' adds a separate requirement which must be met for an act to constitute serious physical pain or suffering.

Mr. WARNER. I agree with both of my colleagues.

Mr. WARNER. Mr. President, I ask unanimous consent to have printed in the Record a joint statement regarding alleged violations of the Geneva Conventions.

Mr. WARNER. Mr. President, at this point in time I yield to the distinguished Senator from Arizona 14 minutes. I would say that I have been privileged to be a Member of this institution for now 28 years, and I first met John McCain through his father when I was Secretary of the Navy. So that goes back 28 plus another 5 years that I have known of John McCain. This Chamber, and indeed all of America, knows full well about the extraordinary record that this man has in the service of his Nation, showing unselfishness, showing courage, showing foresight. I am proud to have worked with him as a partner in these past weeks, indeed, months now, on this piece of legislation. I just want to express my gratitude, and I think the gratitude of many people across this country, for the service he is rendering the Senate and hopefully will continue to render the Senate in the coming years. When I step down under the caucus, it is my hope that John McCain is elected to succeed me as chairman of the Senate Armed Services Committee. But at this point in time, I am proud to yield, as manager, my time to the Senator from Arizona.

Mr. WARNER. Mr. President, I wish to commend our distinguished colleague on an excellent summary of the bill and his heartfelt expressions and interpretations of this bill, which I share.

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

Mr. WARNER. Mr. President, I thank the Presiding Officer. This matter has now been brought to conclusion. I yield the floor.

Mr. WARNER

Mr. WARNER. Mr. President, might I say that I was privileged not only to serve with the Senator's father but consider him a good personal and professional working partner. He is an extraordinary individual and the citizens of this country are fortunate if his nomination is confirmed and he takes up that service.

Mr. WARNER

Mr. WARNER. Mr. President, I rise today to pay tribute to an outstanding Virginian, and dear friend, the former 10th District Congressman, Joel T. Broyhill, who died this past weekend. Congressman Broyhill was an outstanding public servant. He had a certain ``joie de vivre'' that one does not often find--his presence, his spirit would fill up a whole room. His sense of civic responsibility--both through his service in the U.S. Army and as the Representative to Congress from Virginia's 10th District--was second to none. And his devotion to his three daughters, stepdaughter, grandchildren, and great-grandchildren was unmatched; they were the joys of his life. A native of Hopewell, VA, Congressman Broyhill was born on November 14, 1919. He attended Fork Union Military Academy and George Washington University. In 1942, he enlisted in the Army. He served as an officer in the European Theater in the 106th Infantry Division and was taken prisoner in the Battle of the Bulge. After 6 months in German prison camps, he escaped and rejoined the advancing American forces. On November 1, 1945, after 4 years of service, Congressman Broyhill was released from active duty as a captain. In 1952, at the age of 33, Broyhill was elected as a Republican from Virginia's newly created 10th District to the 83d Congress, by 322 votes. Congressman Broyhill was reelected 10 times, serving 21 years in Congress, until December 1974. Congressman Broyhill's prime source of political success was his dedication to constituent service. At the time of Congressman Broyhill's tenure in Congress, the 10th District contained more Federal employees than any other district in the United States. In 1972, Congressman Broyhill estimated that he had aided more than 100,000 district residents during his 20-plus years in office. According to the 1974 Almanac of American Politics: [t]here are few congressional offices in which the demand for services is so high, given the number of Federal employees in Broyhill's district; and there are few indeed that take care of constituents' needs and complaints with more efficiency. The 10th District of Virginia was shaped and forever changed by Congressman Broyhill's initiatives in Congress. He laid the foundation for major transportation projects, including the construction of Interstate 66, the Metrorail System, the Woodrow Wilson Bridge, and Washington Dulles International Airport. The Almanac also describes Congressman Broyhill as one who ``should be credited with voting his conscience.'' Even after he left Congress, Congressman Broyhill continued serving constituents by maintaining an office to assist those with problems relating to the federal government. In fact, my Senate office would receive a call about once a month from the ``Broyhill Office'' asking us to follow up on a constituent inquiry. In 1978, I was honored and proud to have my longtime friend come out of retirement to serve as General Chairman of my U.S. Senate campaign. It was great to see him back on the political stage in Virginia. Congressman Broyhill's knowledge of the Commonwealth and of campaign strategy were invaluable to me as he introduced a most interesting couple to the political scene. Congressman Broyhill helped me to convince my wife at the time, Elizabeth Taylor, that being a candidate's spouse was the best role she could play. Many times he accompanied Elizabeth to campaign events when I was unable to attend. He was an exemplary ambassador for my 1978 campaign. Congressman Broyhill's ``house by the side of the road'' in Arlington was never without yard signs during any election. As one of the first Republicans elected in Virginia, he was a trailblazer and he helped every Republican member of the Virginia congressional delegation-- including its two current U.S. Senators--to be elected under the Republican banner. Congressman Broyhill was instrumental in building his father's real estate business, M.T. Broyhill & Sons. The company was started in Hopewell, and the family later relocated to northern Virginia when Congressman Broyhill was growing up. Congressman Broyhill and his wife Suzy were stalwarts of charitable giving and have given both their time and resources to many organizations across the Commonwealth, and notably, to the Wolf Trap Foundation for the Performing Arts. It is with a great sense of humility that we pay tribute today to the life of our dear friend and dedicated public servant, Congressman Joel T. Broyhill. We offer our condolences to his three daughters, Nancy, Jeanne and Jane Anne, his stepdaughter, Kimi, and his wife of 25 years, Suzy. He also has four grandchildren: Meredith, Maureen, Lindsay, and Kathleen, and three great-grandchildren: Molly, Jack, and Kara.

Mr. WARNER

Mr. WARNER. Mr. President, I rise again this year to remind my colleagues that October 1 to 7 is Nuclear Medicine Week. Nuclear Medicine Week is the first week in October every year and is an annual celebration initiated by the Society of Nuclear Medicine. Each year, Nuclear Medicine Week is celebrated internationally at hospitals, clinics, imaging centers, educational institutions, corporations, and more. I am particularly proud to note that the Society of Nuclear Medicine is headquartered in Reston, VA. The Society of Nuclear Medicine is an international scientific and professional organization of more than 16,000 members dedicated to promoting the science, technology, and practical applications of nuclear medicine. I commend the society staff and its professional members for their outstanding work in the field of nuclear medicine and for their dedication to caring for people with cancer and other serious and life-threatening illnesses. Some of the more frequently performed nuclear medicine procedures include bone scans to examine orthopedic injuries, fractures, tumors or unexplained bone pain; heart scans to identify normal or abnormal blood flow to the heart muscle, to measure heart function or to determine the existence or extent of damage to the heart muscle after a heart attack; breast scans that are used in conjunction with mammograms to detect and locate cancerous tissue in the breasts; liver and gallbladder scans to evaluate liver and gallbladder function; cancer imaging to detect tumors; treatment of thyroid diseases and certain types of cancer; brain imaging to investigate problems within the brain itself or in blood circulation to the brain; and renal imaging in children to examine kidney function. I thank all of those who serve in this very important medical field and join them in celebrating Nuclear Medicine Week during the first week of October.

Mr. WARNER

Mr. WARNER. Mr. President, it is my privilege today to speak in honor of a longtime servant to the Federal judiciary, the Honorable Glen Morgan Williams, U.S. District Judge for the Western District of Virginia. I have been in the Senate now for 28 years. During that time, I have participated in the Senate's advice and consent process more than 2,000 times with respect to Federal judges. In fact, of all active Federal judges on the district court bench in Virginia, I have had the distinct privilege of voting for every single one. There are two judges whose chambers exist in Abingdon, VA, whose service predates mine: Judge H. Emory Widener, Jr., and Judge Glen Morgan Williams. Judge Widener was confirmed to the district court in 1969, and then to the U.S. Court of Appeals for the Fourth Circuit in 1972. Judge Williams received his first judicial appointment, that of Magistrate Judge for the U.S. District Court for the Western District of Virginia, in 1963. Following 12 years as a magistrate, Judge Williams was nominated to be a district court judge by President Gerald R. Ford in 1976, and he was confirmed for this position by the Senate on September 17, 1976. Both judges are distinguished fixtures in the Virginia legal community, admired and respected by all who are fortunate enough to know them. Because this year marks the thirtieth year that Judge Williams has served as a Federal district judge in the Western District, I join with my colleague from Virginia, Senator George Allen, in commending this exceptional jurist for his efforts. As a young man, Glen Williams answered his Nation's call to duty in World War II. Earning a commander's citation, Mr. Williams served with distinction in the U.S. Navy from 1942 to 1946. Remarkably, his experience included the Atlantic, Pacific, and Mediterranean theaters and the Allies' invasion of southern France. Mr. Williams and I followed similar paths to our respective careers after our naval tours in World War II; like me, he also received his training in law from the University of Virginia. Starting out as a sole practitioner after law school, Mr. Williams began his career in civilian public service as a Commonwealth's Attorney, followed by a term in the Virginia State Senate. During his career in private practice, he established himself as a leading expert on Social Security law, and Mr. Williams' testimony on this subject was sought by the Congress. During his career on the bench, Judge Williams has produced more than 300 published opinions on a number of matters of great importance for our country, and certainly for those who live and work in the coal- mining regions of Virginia's beautiful Western District. In fact, the U.S. Supreme Court cited Judge Williams' opinions with respect to the funding of health care for beneficiaries of the United Mine Workers Health and Retirement Funds in its interpretation of the Coal Act. While Judge Williams assumed senior status in the Western District in 1988, he remains active in both the Abingdon and Big Stone Gap divisions through the present day. In particular, he is to be commended for his diligence in reestablishing the Big Stone Gap division and for the reopening of both the clerk's office and the courthouse in this division. Judge Williams remains an asset for our Federal judicial system, for his knowledge and insight as well as for his mentorship of the many judicial law clerks who have had the opportunity to work with him, including Senator Allen. In honor of his 30 years of service to our Federal judiciary as a Federal district court judge, I simply say to Judge Glen Williams, ``Well done, Your Honor.'' Your longevity and commitment to our Constitution, to our third branch of government, and to those four words that are forever engraved into the marble at the United States Supreme Court--``Equal Justice Under Law''--remain the hallmarks of your remarkable career.

Mr. WARNER

Mr. WARNER. Mr. President, the Senator has recited that our committee had a markup on a bill. That was after receiving from the administration its own bill. So in a sense, the Senate had before it two bills. Perhaps the formalities I will not go into. But the Senate had the administration's bill and the draft of the committee bill at the time we went into the markup. The Senator referred to the administration's huge pressure, but those are matters we can go into at another time. But I want you to know the group I was working with, and other Senators, were working with the administration right up until the hours before the markup started. As the Senator proceeds with his amendment, I am going to ask that the Senator from South Carolina, at the conclusion of your remarks on the amendment, be recognized for the purpose of giving his statement which, indeed, addresses the current bill in the context of the bill that was drafted by the committee, as I understand it from the Senator from South Carolina. And then we will proceed further with discussion on your bill. We have 3 hours to consider matters here. But I point out, we have your substitute bill, which is basically a 60-minute proposition; the Rockefeller congressional oversight, which is 60 minutes; the Kennedy interrogation, which is 60 minutes; the Byrd sunset which is 60 minutes; and the Specter-Leahy habeas corpus--and I expect you might be a part of that habeas corpus amendment--which is 120 minutes.

Mr. WARNER. Yes.

Mr. WARNER. Parliamentary inquiry: At this time the Senate is now proceeding on the Hamdi bill; is that correct?

Mr. WARNER. Mr. President, I rise to speak in support of the Military Commissions Act of 2006 which would authorize military commissions for the trial of an alien enemy unlawful combatant. I take a moment to say my colleagues and others with whom I have served in the Senate the last 28 years stand at a moment of critical importance in the history of our Nation. What we do today will impact how we conduct the war on terror for as long as it lasts. In the estimate of this humble Senator, that could be for decades. It will fundamentally impact our relationships with our allies. It will fundamentally impact the image of the United States of America in the eyes of the world. It is crucial to our ability to keep America safe. It will speak most loudly about the core values, the principles of this great Republic known as the United States of America. From the outset, I make it clear I respect the views of all participants in this dialog, from the President and his team, to those particularly in the Congress, but elsewhere in the Congress, on both sides of the aisle. I have certain core principles I share with several of my colleagues. I have endeavored to see this particular bill reflects those principles to the best of my ability, as have they. Nevertheless, I respect the views of others who may differ. The goal of this legislation, from my point of view, and I think it is shared by others, is first and foremost to meet the challenge for withstanding review by the Supreme Court. Out of respect for that Court, the Hamdi decision, which was quite an interesting decision in many of its findings, divided by different panels within that Court, it is quite likely in one or more instances, if this becomes law, the bill now presently before the Senate, that will likewise be taken to the Supreme Court. That is the way we do things in the United States of America. We hope we who have labored to craft this, and the 100 Senators who will finally cast their votes, together with the other body, will give to the President a bill that will effectively enable him to do those things to keep America free, to fight the war on terrorism and, at the same time, pass the Federal court review--whether it is the district, appellate, or the Supreme Court--such as likely will take place. In late June, the Supreme Court struck down the President's initial plan to try detainees by military commissions. In its opinion, Hamdi v. Rumsfeld, the Court held by a fractured five-Justice panel that the present system for trials by military commission violated both the Uniform Code of Military Justice and particularly Common Article 3 of the 1949 Geneva Conventions. There were some four conventions put together in 1949. In particular, the Common Article 3 was common to all four of those conventions. That historic moment in world history was a culmination from the learning experience of what took place all across our globe during World War II in an effort to see that certain injustices, in terms of the basic core values of the free world, would never occur again. It is my fervent hope and conviction that whatever the Congress does, the legislation we produce must be able to withstand further security review and scrutiny of the Federal court system, particularly the Supreme Court. From my own personal perspective, it would be a very serious blow to the credibility of the United States--and I have said this a number of times in connection with the debate--not only in the international community but also at home, if the legislation as prepared by the Congress now and enacted by the President failed to meet another series of Federal court reviews. To meet the mandate of the Court in its decision, Hamdi v. Rumsfeld, this legislation provides for a military commission that, in the words of Common Article 3, affords ``all the judicial guarantees which are recognized as indispensable by civilized peoples.'' That is what we are striving to obtain. The Military Commissions Act of 2006 provides these essential guarantees in the following ways. The bill generally follows the current military rule on the use of classified information at trial. That has been an area of concern probably to each and every Senator but most particularly to this Senator and others who worked closely in our group. We have, to the satisfaction of all interested parties, resolved that. That is a very fundamental thing we must maintain; that is, the ability of our continued gathering of evidence, the protection of source and methods--nevertheless, to provide, on a real-time basis intelligence for our fighting men and women and, indeed, intelligence to protect us here at home. However, our bill goes further by creating a privilege that protects classified information at all stages of a trial and prohibits disclosure of classified information, including sensitive intelligence sources and methods, to an alleged terrorist accused. As a fundamental matter--and one we feel is crucial for this bill to survive judicial review--the bill would not allow an accused, however, to be tried and sentenced--perhaps even being given the death penalty-- on evidence that the accused has never been allowed to see. That, in my judgment, and I think in the judgment of many, would be establishing a precedent that is without foundation in American jurisprudence or, indeed, the jurisprudence of the vast majority of nations in the world. Further, the bill would prohibit the use of evidence that was allegedly obtained through the use of torture. A statement obtained before the date of enactment of the Detainee Treatment Act of 2005-- December 30, 2005--in which the degree of coercion is in dispute could be used only--and I repeat--only at trial if the military judge finds that it is reliable and tends to prove the point for which it was offered. A statement obtained after the date of enactment of the Detainee Treatment Act of 2005, in which the degree of coercion is in dispute, may only be admitted in evidence if the military judge finds that the first two tests are met and finds that the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by the Detainee Treatment Act of 2005. The bill would generally follow the rules of evidence that apply to courts-martial. However, the Secretary of Defense, in consultation with the Attorney General, would be authorized to make substantial exceptions due to the unique circumstances presented by the conduct of military and intelligence activities so long as those exceptions are not inconsistent with the statutory provisions provided by this new law. Most importantly, this bill achieves the President's benchmark objective by clearly defining those grave breaches of Common Article 3 of the Geneva Conventions that would be a criminal offense under the U.S. domestic law in the War Crimes Act. That term, ``grave breaches,'' is set forth in that Convention of 1949. And in conjunction with working on this, we extensively examined the legislative history. Doing so allows our military and intelligence interrogators to know what conduct is prohibited under U.S. law. Moreover, this bill provides that no foreign sources of law may be used to define or interpret U.S. domestic criminal law implementing Common Article 3. This bill does not provide as a matter of law that this legislation fully satisfies Common Article 3 of the Geneva Conventions. My colleagues and I feel that to make such a statement a matter of statute would amount to a reinterpretation of our obligations under the Geneva Conventions some 57 years after the United States signed those treaties. Such an action could open the door to statutory reinterpretation by a host of other nations with less regard for human rights than the United States, and would result in possibly our U.S. troops being put at greater risk should they become captives in a future conflict. However, in addition to clearly defining grave breaches of Common Article 3 that are war crimes under the War Crimes Act, this bill acknowledges the President's authority under the Constitution to interpret the meaning and application of the Geneva Conventions, and to promulgate administrative regulations for violations of our broader treaty obligations which are not grave breaches of the Geneva Conventions. To ensure transparency, such interpretations are required to be published in the Federal Register and are subject to congressional and judicial oversight. We have had a robust discussion of these issues among Members and with administration officials for some several months, most particularly the last few weeks. I strongly believe this bill achieves the best balance for our country. It will allow terrorists to be brought to justice in accordance with the founding principles and values that have made our Nation the greatest democracy in the world. This bill will also provide the clarity needed to allow our essential intelligence activities to go forward--I repeat: go forward--under the law. And this bill is consistent with the Geneva Conventions, which have helped protect our own forces in conflicts over the past 57 years. I thank my colleagues for their support. I wish at this time to thank the many staff members who have worked on this thing tirelessly. And I might add, in my 28 years here I have never known the legislative counsel's office to literally work 24 hours around the clock. Perhaps they have, but certainly they did in this instance. I want to give a special recognition and thanks to that office for assisting the Senate in preparing this bill. Now, Mr. President, my understanding is the Senator from Michigan may well have an amendment he would like to bring forward.

Mr. WARNER. Mr. President, will the Senator kindly yield for me to address his comments?

Mr. WARNER. Yes, correct. I don't know if I stated that, but it should be here as a part of it.

Mr. WARNER. Yes.

Mr. WARNER. Mr. President, I would have to inquire of the Chair if the Chair has knowledge of that.

Mr. WARNER. Does the Senator from Michigan wish to address that request?

Mr. WARNER. Mr. President, I was particularly taken by Senator Levin's reference to General Washington and what General Washington said with regard to prisoners. But we must be mindful that General Washington was facing the King's Army. Those were uniformed individuals. Those were individuals acting on behalf of the Crown. That is totally different--totally different--from what we as a nation and many other nations today are facing with these terrorists. Consequently, as a part of the evolution of this extraordinary proliferation of terrorism across the world has come the definitions and terms relating to the unlawful enemy combatant--I repeat, unlawful--because those individuals are not wearing uniforms, they are not following any code of laws or conduct that has overseen much of warfare in the history of the world. They are not affiliated with any state. They are driven, in my judgment, by convictions, much of it religious convictions which are totally antithetical to their own religion, and willing to sacrifice their own lives to foster their ambitions and goals. We expanded this definition of ``unlawful enemy combatant'' when we went from the committee bill to a bill that was worked on by, again, Senator McCain, Senator Graham, and myself, and in conjunction with the White House and our leadership and other colleagues. It was pointed out to us that perhaps our bill is drawn so narrowly that we would not be able to get evidence and support convictions from those who are involved in hiding in the safe houses, wherever they are in the world, including here in the United States. It is wrong to say that this provision captures any U.S. citizens. It does not. It is only directed at aliens--aliens, not U.S. citizens-- bomb-makers, wherever they are in the world; those who provide the money to carry out the terrorism, wherever they are--again, only aliens and those who are preparing and using so many false documents. There were a lot of categories which we, with the best of intentions, perhaps did not fully comprehend when we were working through that markup session. So at this time, I yield the floor because I see my distinguished colleague from South Carolina. I thank the Senator. He is recognized for his knowledge as an officer in the U.S. Air Force, a colonel who has practiced and studied military law for many years, and we are fortunate to have had his services and continue to have them in addressing this legislation. I would also point out to my colleagues that Senator McCain, who worked with us throughout this process, is away attending a funeral of a very dear and valued colleague, and he will be returning later this afternoon and will be fully engaged from that point on. I yield the floor.

Mr. WARNER. Mr. President, I yield such time as he may consume to the Senator from South Carolina.

Mr. WARNER. Mr. President, I inquire of our distinguished colleague, is he now drawing time on the Levin amendment?

Mr. WARNER. Mr. President, we are anxious to go on with the matters before the Senate this afternoon in connection with this pending bill. As I understand it, the amount of time remaining on the Levin substitute amendment is how much?

Mr. WARNER. Mr. President, we are prepared to yield back the time on this side. First, I simply say to my colleagues that this has been a good debate. But I assure colleagues that the bill now before them has been very carefully reviewed by the Department of Justice, and I have even reached out to scholars--lawyers who I know have a considerable depth of knowledge about international matters as well as our own fabric of law as it relates to criminal prosecution. I myself served as assistant U.S. attorney for close to 5 years. We bring before this Chamber a work product which we believe is consistent with international as well as domestic law. It strikes a balance. We have no intention to try to accord aliens engaged as unlawful combatants with all the rights and privileges of American citizens, but we recognize that they are human beings, and this country has standards that respect life and human beings. But at the same time, we are engaged in a war on terror. Let there be no mistake about that. One of the challenges in this war on terror is with these individuals who are willing to act as human bombs. It doesn't have a lot of precedent. We have been very careful to try to strike a balance between the standards and principles that guide this Nation, at the same time recognizing that we need the tools to fight this war on terror-- fighting it in a way that not only enables our men and women in the Armed Forces in forward deployments to carry out their missions but to preserve and protect us here at home from tragic incidents like we experienced on 9/11. As I have worked through each of these provisions and consulted with my colleagues, I always bring up the images of 9/11. I think our President has done his best to try to prepare this Nation, in many ways, to protect ourselves from the repetition of that or any incident like it--a lesser incident or a greater incident. It is a constant challenge. But the bill before this body represents our best product that we could achieve, working together and in consultation with a wide range of individuals who have an expertise in these complicated legal matters and can provide to us their own corroboration of our judgments as to how best to structure this legal document and strike the balance that we must between our standards of law and our recognition of international law. I think that is the hallmark of what Senators McCain, Graham, and myself set out to do--to make sure this Nation cannot be perceived as trying to rewrite in any way Common Article 3, which is the law of our land, I remind citizens who are following this debate. It is the international treaties to which we, with the advice and consent of the Senate and that of the President, acceded and signed, and it has become part of the law of the land. I am proud of the work we have done, certainly, in that complicated area, as well as others. Mr. President, at this time, I am prepared to yield back all the time on this side and ask for the yeas and nays.