September 27, 2006

On a bright and sunny September morning five years ago, history changed in
an instant. Our nation was attacked, nearly 3,000 of our citizens were
murdered, and our lives as we knew them were changed forever.

The family members of those who died that day -- and we, their fellow
Americans -- have been waiting five years for those who masterminded that
outrageous terrorist attack to be brought to justice.

Osama bin-Laden, the man who has been seen on videotape bragging and
laughing about his role in conceiving this deed, remains at large five
years later. The American people are justifiably frustrated that he has
not been caught. And they have a right to ask whether our military and
intelligence resources were unwisely diverted from that solemn task.

But some of bin-Laden’s lieutenants were captured overseas years ago.
There is no disagreement whatsoever between Republicans and Democrats on
the need to bring these people to justice. We all want to make sure the
President has the tools he needs to make this happen.

For five years, Democrats stood ready to work with the President and the
Republican Congress to establish sound procedures for military tribunals.
Senator Patrick Leahy, the top Democrat on the Judiciary Committee,
introduced a bill in 2002 to do just that.

Unfortunately, President Bush chose to ignore the Congress and ignore the
advice of uniformed military professionals. He set up a flawed and
imbalanced military tribunal system that failed to prosecute a single
terrorist. Not surprisingly, it was ruled unconstitutional by the United
States Supreme Court.

Forced by the Court decision to ask Congress for help, the Bush
administration initially asked us to rubberstamp basically the same system
that the Supreme Court struck down. Their proposal for one-sided trials
and murky interrogation rules was opposed by such well-respected leaders
as General Colin Powell and former Secretary of State George Schultz.

A handful of principled Republican senators forced the White House to back
down from the worst elements of its extreme proposal. I admire the
courage of these senators, and I appreciate the improvements they managed
to make in this bill.

However, since those Senators announced their agreement with the
Administration last Friday, the compromise has become much worse. The
bill before us now looks more and more like the administration bill these
senators fought so hard against.

I believe the bill approved by the Senate Armed Services Committee would
have given the President all necessary authority. It was supported by the
Chairman and by a bipartisan majority of that committee, as well as by our
nation’s uniformed military lawyers.

The bill before us diverges from the Committee bill in at least two
important respects.

First, it makes less clear that the United States will abide by our
obligations under the Geneva Conventions. The President says the United
States does not engage in torture, and there should be no ambiguity on
that point. But this bill gives the president authority to reinterpret
our obligations, and limits judicial oversight of that process, putting
our own troops at risk on the battlefield.

As Colin Powell has written:

“The world is beginning to doubt the moral basis of our fight against
terrorism. To redefine Common Article 3 would add to those doubts.
Furthermore, it would put our own troops at risk.”

Second, this bill authorizes a vast expansion of the President’s power to
detain people – even U.S. citizens – indefinitely and without charge. No
procedures for doing so are specified, no due process is provided, and no
time limit on the detention is set.

At the same time, the bill would generally deprive federal judges of the
power to review the legality of many such detentions. This is true even
in the case of a lawful permanent resident arrested and held in the United
States, and even if that person happens to be completely innocent.

The Framers of our Constitution understood the need for checks and
balances, but this bill discards them.

Many of the worst provisions were not in the Committee-reported bill, and
were not in the compromise announced last Friday. They were added over
the weekend after backroom meetings with White House lawyers.

We have tried to improve this legislation. Senator Levin proposed to
substitute the bipartisan bill that was reported by the Armed Services
Committee. That amendment was rejected.

Senators Specter and Leahy offered an amendment to restore the right to
judicial review – that amendment was rejected.

Senator Rockefeller offered an amendment to improve congressional
oversight of CIA programs – that amendment was rejected.

Senator Kennedy offered an amendment to clarify that inhumane
interrogation tactics prohibited by the Army Field manual could not be
used on Americans or on others – that amendment was rejected.

And Senator Byrd offered an amendment to sunset military commissions so
that Congress would simply be required to reconsider this far-reaching
authority after five years of experience. Even that amendment was

I strongly believe this legislation is unconstitutional. It will almost
certainly be struck down by the Supreme Court. And when that happens,
we’ll be back here several years from now debating how to bring terrorists
to justice.

The families of the 9/11 victims and the nation have been waiting five
years for the perpetrators of these attacks to be brought to justice.
They should not have to wait longer. We should get this right now – and
we are not doing so by passing this bill.
The National security policies of this administration and Republican
Congress may have been tough, but they haven’t been smart. The American
people are paying a price for their mistakes.

History will judge our actions here today. I am convinced that future
generations will view passage of this bill as a grave error. I wish to be
recorded as one who voted against taking this step.

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