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109th Congress 2d Session                               Report
                        HOUSE OF REPRESENTATIVES    Rept. 109-664
                                                        Part 2
_______________________________________________________________________
 
                    MILITARY COMMISSIONS ACT OF 2006

                               ----------                              

                              R E P O R T

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                              to accompany

                               H.R. 6054

                             together with

                            DISSENTING VIEWS





              September 25, 2006.--Ordered to be printed.
                    MILITARY COMMISSIONS ACT OF 2006
109th Congress                                            Rept. 109-664
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 2

======================================================================




                    MILITARY COMMISSIONS ACT OF 2006

                                _______
                                

               September 25, 2006.--Ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 6054]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 6054) to amend title 10, United States Code, to authorize 
trial by military commission for violations of the law of war, 
and for other purposes, having considered the same, report 
favorably thereon with amendments and recommend that the bill 
as amended do pass.
  The amendments (stated in terms of the page and line numbers 
of the introduced bill) are as follows:
  Page 4, after line 18, insert the following new paragraph 
(and redesignate the succeeding paragraphs accordingly):

          ``(2) Lawful enemy combatant.--The term `lawful enemy 
        combatant' means an individual determined by or under 
        the authority of the President or Secretary of Defense 
        (whether on an individualized or collective basis) to 
        be--
                  ``(A) a member of the regular forces of a 
                State party engaged in hostilities against the 
                United States or its co-belligerents;
                  ``(B) a member of a militia, volunteer corps, 
                or organized resistance movement belonging to a 
                State party engaged in such hostilities, which 
                are under responsible command, wear a fixed 
                distinctive sign recognizable at a distance, 
                carry their arms openly, and abide by the law 
                of war; or
                  ``(C) a member of a regular armed force who 
                professes allegiance to a government engaged in 
                such hostilities, but not recognized by the 
                United States.
  Page 6, after line 15, insert the following new subsection 
(and redesignate the succeeding subsection accordingly):

  ``(b) Lawful Enemy Combatants.--Military commissions under 
this chapter shall not have jurisdiction over lawful enemy 
combatants. Lawful enemy combatants who violate the law of war 
are subject to chapter 47 of this title. Courts martial 
established under that chapter shall have jurisdiction to try a 
lawful enemy combatant for any offense made punishable under 
this chapter.

  Page 34, line 15, insert ``classified'' after ``who 
receives''.

  Page 80, after line 24, add the following new section:

SEC. 9. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.

  (a) Applicability to Lawful Enemy Combatants.--Section 802(a) 
of title 10, United States Code (article 2(a) of the Uniform 
Code of Military Justice), is amended by adding at the end the 
following new paragraph:
          ``(13) Lawful enemy combatants who violate the law of 
        war.''.
  (b) Exclusion of Chapter 47A Commissions.--Section 821 of 
such title (article 21 of such Code) is amended by adding at 
the end the following new sentence: ``This section does not 
apply to military commissions established under chapter 47A of 
this title.''.
  (c) Inapplicability of Requirement for Uniform Regulations.--
Section 36(b) of such title (article (36) of such Code) is 
amended by inserting before the period at the end ``, except 
insofar as applicable to military commissions established under 
chapter 47A of this title''.

                          Purpose and Summary

    H.R. 6054, the ``Military Commissions Act of 2006'' amends 
title 10, United States Code, to authorize military commissions 
for violations of the law of war by alien unlawful enemy 
combatants. H.R. 6054 would establish procedural rules 
governing the conduct of military commissions, including the 
use of sensitive classified evidence, admissibility of hearsay 
evidence, and the rights afforded detainees before, during and 
after trial. The bill would also make changes to the War Crimes 
Act \1\ to enumerate specific ``serious violations'' of Common 
Article 3 of the Geneva Conventions which would be subject to 
prosecution as war crimes under our domestic criminal code.
---------------------------------------------------------------------------
    \1\ 18 U.S.C. Sec. 2441 (2006).
---------------------------------------------------------------------------
    H.R. 6054 limits judicial review of causes of action 
relating to any aspect of the alien's detention, transfer, 
treatment, or conditions of confinement, including habeas 
corpus applications, by unlawful enemy combatants pending on, 
or filed after, the date of enactment of this Act. The bill 
also declares prohibitions against cruel, inhuman and degrading 
treatment in the Detainee Treatment Act of 2005 (DTA) fully 
satisfies the United States' obligations with respect to the 
standards for detention and treatment established by the 
relevant sections of Common Article 3 of the Geneva 
Conventions. H.R. 6054 additionally would overturn a portion of 
the Supreme Court's decision in Hamdan v. Rumsfeld and clarify 
that the Geneva Conventions are not judicially enforceable in 
United States courts. Finally, the bill expands the right to 
counsel for United States government personnel established in 
the DTA.

                Background and Need for the Legislation

    On November 13, 2001, President George W. Bush issued a 
military order regarding ``Detention, Treatment, and Trial of 
Certain Non-Citizens in the War Against Terrorism.'' \2\ One 
purpose of this order was to authorize the Secretary of Defense 
to establish military commissions that would provide full and 
fair trials to foreign individuals who were members of the al 
Qaeda terrorist organization or who engaged in, aided or 
abetted, or conspired to commit, the attacks against the United 
States on September 11, 2001.\3\
---------------------------------------------------------------------------
    \2\ Military Order, 66 FR 57,833-57,836 (November 13, 2001).
    \3\ Id.
---------------------------------------------------------------------------
    In January 2002, the United States began detaining foreign 
individuals captured in the global war on terror as `enemy 
combatants' at United States military facilities at Guantanamo 
Bay, Cuba. Upon an individual's arrival at Guantanamo, United 
States officials assess whether that individual should be 
released or transferred to the custody of his government. After 
Supreme Court decisions providing individuals with a method to 
contest their detention,\4\ the United States established the 
combatant Status Review Tribunal (``CSRT'') procedures in 
2004.\5\ These procedures provide for a one-time review of an 
individual's combatant status. The United States also created 
an Administrative Review Board (``ARB'') procedure to consider 
each individual's status on an annual basis.\6\ Finally, United 
States courts have held that each individual must have access 
to counsel in the United States judicial system, and in 2004, 
the United States Supreme Court ruled that the United States 
District Court for the District of Columbia Circuit has 
jurisdiction to consider habeas corpus challenges to the 
legality of the detention of foreign nationals at 
Guantanamo.\7\ That ruling, in concert with other related 
rulings, has resulted in further litigation at the Federal 
trial and appellate court levels.
---------------------------------------------------------------------------
    \4\ Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
    \5\ U.S. Dep't of Def., Fact Sheet, Combatant Status Review 
Tribunals Update (Jul. 7, 2004), available at http://
www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf [hereinafter 
DOD Fact Sheet]; Memorandum from the Deputy Secretary of Defense, for 
the Secretary of the Navy, Order Establishing Combatant Status Review 
Tribunal (Jul. 7, 2004), available at http://www.defenselink.mil/news/
jul2004/d20040707review.pdf [hereinafter DOD Order]. See also 
Memorandum from the Secretary of the Navy, Implementation of Combatant 
Status Review Tribunal Procedures for Enemy Combatants detained at 
Guantanamo Bay Naval Base, Cuba (Jul. 29, 2004), available at http://
www.defenselink.mil/news/jul2004/d20040730comb.pdf (providing 
implementation guidance of the combatant status review tribunal).
    \6\ Deputy Secretary of Defense Paul Wolfowitz, Order OSD 06942-04 
Administrative Review Procedures for Enemy Combatants in the Control of 
the Department of Defense at Guantanamo Bay Naval Base, Cuba (May 11, 
2004), available at: http://www.globalsecurity.org/security/library/
policy/dod/d20040518gtmoreview.pdf
    \7\ Rasul v. Bush 542 U.S. 466 (2004).
---------------------------------------------------------------------------
    Aside from establishing procedures to address individuals' 
status as ``enemy combatants'', the United States has noted 
that other nations have traditionally used military 
commissions, which are recognized by the Geneva Conventions, to 
prosecute violations of the law of war. The United States chose 
to prosecute certain foreign individuals for such violations 
using military commission procedures established by the 
Secretary of Defense as authorized by Executive Order in 
November 2001. Some defendants in these cases chose to sue 
United States officials to challenge these procedures.\8\
---------------------------------------------------------------------------
    \8\ See Hamdan v. Rumsfeld, 548 U.S.___; 165 L. Ed. 723 (2006).
---------------------------------------------------------------------------
    On June 29, 2006, the United States Supreme Court ruled 5-3 
in Hamdan v. Rumsfeld, that the President's military 
commissions could not proceed because they did not comply with 
the Uniform Code of Military Justice (UCMJ) and Common Article 
3.\9\ The Court's essential holdings were that: (1) military 
commissions require specific congressional authorization; (2) 
the structure and procedures of the Hamdan military commission 
violated the UCMJ; (3) the mandates of Common Article 3 of the 
Geneva Conventions are judicially enforceable in United States 
courts; and (4) the procedures adopted to try Hamdan did not 
meet the Common Article 3 requirement that sanctions must be 
pronounced by `a regularly constituted court affording all 
judicial guarantees which are recognized as indispensable by 
civilized peoples.'
---------------------------------------------------------------------------
    \9\ Id. at 2.
---------------------------------------------------------------------------
    Although the Court declared the military commissions as 
constituted to be illegal, it left open the possibility that 
changes to commission rules or new legislation could bring the 
commissions within the law of war and conform with the UCMJ. 
The Court also suggested that the President could ask Congress 
to authorize commission rules that diverge from the UCMJ, 
provided that they were consistent with the Constitution and 
other laws.\10\
---------------------------------------------------------------------------
    \10\ Id. at 1 (Breyer, J., concurring)(``nothing prevents the 
President from returning to Congress to seek the authority he believes 
necessary.'')
---------------------------------------------------------------------------
    In Hamdan, the Court also found that section 1005 of the 
Detainee Treatment Act of 2005,\11\ which prohibited any court, 
justice or judge from considering statutory habeas corpus 
claims and other lawsuits by aliens, including those held at 
Guantanamo Bay, Cuba, did not apply to cases pending on the 
date of enactment of the DTA.\12\ Section 1005 also gave the 
Court of Appeals for the District of Columbia Circuit exclusive 
jurisdiction to determine the validity of any final decision of 
a Combatant Status Review Tribunal (CSRT). In failing to hold 
that the DTA's jurisdictional bar applied to pending cases, the 
Court ignored decades of its own precedents applying 
intervening statutes conferring or eliminating Federal court 
jurisdiction to cases pending on the date of enactment.\13\ At 
least three members of the Court believed that this conclusion 
was ``patently erroneous.'' \14\ In his dissent, Justice Scalia 
also reminded the majority that they failed to cite a single 
case where such a jurisdiction limitation provision was denied 
immediate effect in pending cases.\15\ We agree with his 
opinion that ``the cases granting such immediate effect are 
legion.'' \16\
---------------------------------------------------------------------------
    \11\ Pub. L. No. 109-148, 119 Stat. 2739 (2005).
    \12\ 548 U.S. _ at 7-20.
    \13\ See Hallowell v. Commons, 239 U.S. 506 (1916); Bruner v. 
United States, 343 U.S. 112 (1952); Landgraf v. USI Film Products, 511 
U.S. 244, 274 (1994); Republic of Austria v. Altmann, 541 U.S. 677, 693 
(2004).
    \14\ 548 U.S. _ at 1 (Scalia, J. dissenting).
    \15\ Id at 5.
    \16\ Id.
---------------------------------------------------------------------------
    The Committee strongly believes that the Constitution gives 
Congress the power to determine whether the Federal courts have 
jurisdiction over applications for a writ of habeas corpus 
pursuant to 28 U.S.C. Sec. 2241 filed by or on behalf of an 
alien detained by the Department of Defense at Guantanamo Bay, 
Cuba. In the view of the Committee, the Supreme Court had no 
authority to hear the Hamdan case after enactment of the DTA. 
The plain language of this statute clearly applies to cases 
pending at the date of enactment. The Committee believes that 
the Supreme Court should have reached this conclusion by 
relying on its own precedents, but it failed to do so. In 
response, H.R. 6054 has been carefully drafted so that the 
Court can fully understand that it applies to both pending and 
later-filed cases. It was not necessary for Congress to be so 
specific, but in order to be sure that the Court will not make 
the same mistake twice, the Committee has carefully chosen the 
words ``pending on or filed after the date of the enactment'' 
in section 5 of this legislation.
    Opponents of the bill may claim that it impermissibly 
``suspends'' or limits the right of habeas corpus for 
individuals held as enemy combatants at Guantanamo Bay or 
elsewhere. This argument ignores decades of Supreme Court 
precedent to the contrary. In fact, the case of Johnson v. 
Eisentrager \17\ held that United States constitutional 
protections do not apply to alien prisoners of war held outside 
of our borders. The Court in Eisentrager noted that ``[n]o 
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.'' 
\18\
---------------------------------------------------------------------------
    \17\ 339 U.S. 763 (1950).
    \18\ Id at 784-85.
---------------------------------------------------------------------------
    More recently, the Supreme Court reaffirmed this view in 
the case of United States v. Verdugo-Urquidez \19\ when it 
found that ``we have rejected the claim that aliens are 
entitled to Fifth Amendment rights outside of the sovereign 
territory of the United States.'' \20\ Verdugo also makes it 
clear that aliens receive constitutional protections when they 
have come within the territory of the United States ``and 
developed substantial connections with this country.'' \21\ The 
Committee believes that terrorists and other detainees 
suspected of planning, supporting or otherwise participating in 
attacks against the United States and its citizens have not 
developed the type of substantial connections with the United 
States sufficient to justify extending to them all of the 
protections of our Constitution. Nonetheless, this legislation 
provides a full and fair process for the review by the D.C. 
Circuit of enemy combatant determinations by a CSRT and for 
review of the decisions of military commissions. The Committee 
believes the judicial review authorized in this bill provides 
more than ample protections for the rights of the detainees.
---------------------------------------------------------------------------
    \19\ 494 U.S. 259 (1990).
    \20\ Id at 269.
    \21\ Id at 271.
---------------------------------------------------------------------------
    In response to the Hamdan decision and legislation proposed 
by the President, the Judiciary Committee considered H.R. 6054 
in open session on September 20, 2006. The legislation 
addresses the scope, jurisdiction, and procedures of military 
commissions in which the United States could prosecute alien 
unlawful enemy combatants for violations of the law of war and 
other offenses, makes changes to the War Crimes Act, clarifies 
the intent of Congress that statutory habeas corpus relief is 
not available to alien unlawful enemy combatants held outsideof 
the United States, and that such jurisdictional bar applies to pending 
and future claims.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
6054.

                        Committee Consideration

    On September 20, 2006, the Judiciary Committee met in open 
session and ordered favorably reported the bill, H.R. 6054, by 
a vote of 20-19, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following roll call vote occurred during the Committee's 
consideration of H.R. 6054.

                     ROLLCALL NO. 1--DATE: 9-20-06

    SUBJECT: Schiff/Flake amendment to H.R. 6054 to strike 
section 4 of the bill and insert an alternative amendment to 
the War Crimes Act, which was not agreed to by a rollcall vote 
of 17 ayes to 18 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................
MR. COBLE...................................                 x
MR. SMITH...................................                 x
MR. GALLEGLY................................                 x
MR. GOODLATTE...............................                 x
MR. CHABOT..................................                 x
MR. LUNGREN.................................                 x
MR. JENKINS.................................                 x
MR. CANNON..................................                 x
MR. BACHUS..................................
MR. INGLIS..................................        x
MR. HOSTETTLER..............................                 x
MR. GREEN...................................                 x
MR. KELLER..................................
MR. ISSA....................................                 x
MR. FLAKE...................................        x
MR. PENCE...................................                 x
MR. FORBES..................................                 x
MR. KING....................................                 x
MR. FEENEY..................................                 x
MR. FRANKS..................................                 x
MR. GOHMERT.................................                 x

MR. CONYERS.................................        x
MR. BERMAN..................................        x
MR. BOUCHER.................................        x
MR. NADLER..................................        x
MR. SCOTT...................................        x
MR. WATT....................................        x
MS. LOFGREN.................................        x
MS. JACKSON LEE.............................        x
MS. WATERS..................................        x
MR. MEEHAN..................................        x
MR. DELAHUNT................................        x
MR. WEXLER..................................
MR. WEINER..................................        x
MR. SCHIFF..................................        x
MS. SANCHEZ.................................        x
MR. VAN HOLLEN..............................        x
MRS. WASSERMAN SCHULTZ......................

MR. SENSENBRENNER, CHAIRMAN.................                 x
                                             ---------------------------
    TOTAL...................................       17       18
------------------------------------------------------------------------

                     ROLLCALL NO. 2--DATE: 9-20-06

    SUBJECT: Meehan amendment to H.R. 6054, to strike section 5 
(related to judicial review), which was not agreed to by a 
rollcall vote of 12 ayes to 15 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................
MR. COBLE...................................                 x
MR. SMITH...................................                 x
MR. GALLEGLY................................
MR. GOODLATTE...............................                 x
MR. CHABOT..................................                 x
MR. LUNGREN.................................                 x
MR. JENKINS.................................                 x
MR. CANNON..................................                 x
MR. BACHUS..................................
MR. INGLIS..................................                 x
MR. HOSTETTLER..............................
MR. GREEN...................................                 x
MR. KELLER..................................
MR. ISSA....................................
MR. FLAKE...................................                 x
MR. PENCE...................................
MR. FORBES..................................                 x
MR. KING....................................
MR. FEENEY..................................                 x
MR. FRANKS..................................                 x
MR. GOHMERT.................................                 x

MR. CONYERS.................................        x
MR. BERMAN..................................        x
MR. BOUCHER.................................        x
MR. NADLER..................................        x
MR. SCOTT...................................        x
MR. WATT....................................
MS. LOFGREN.................................
MS. JACKSON LEE.............................        x
MS. WATERS..................................
MR. MEEHAN..................................        x
MR. DELAHUNT................................        x
MR. WEXLER..................................
MR. WEINER..................................        x
MR. SCHIFF..................................        x
MS. SANCHEZ.................................
MR. VAN HOLLEN..............................        x
MRS. WASSERMAN SCHULTZ......................        x

MR. SENSENBRENNER, CHAIRMAN.................                 x
                                             ---------------------------
    TOTAL...................................       12       15
------------------------------------------------------------------------

                     ROLLCALL NO. 3--DATE: 9-20-06

    SUBJECT: Jackson Lee amendment to H.R. 6054 to strike 
section 6(b), which was not agreed to by a rollcall vote of 17 
ayes to 18 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................
MR. COBLE...................................                 x
MR. SMITH...................................                 x
MR. GALLEGLY................................
MR. GOODLATTE...............................                 x
MR. CHABOT..................................                 x
MR. LUNGREN.................................                 x
MR. JENKINS.................................                 x
MR. CANNON..................................                 x
MR. BACHUS..................................                 x
MR. INGLIS..................................                 x
MR. HOSTETTLER..............................                 x
MR. GREEN...................................
MR. KELLER..................................
MR. ISSA....................................                 x
MR. FLAKE...................................                 x
MR. PENCE...................................
MR. FORBES..................................                 x
MR. KING....................................                 x
MR. FEENEY..................................                 x
MR. FRANKS..................................                 x
MR. GOHMERT.................................                 x

MR. CONYERS.................................        x
MR. BERMAN..................................        x
MR. BOUCHER.................................        x
MR. NADLER..................................        x
MR. SCOTT...................................        x
MR. WATT....................................        x
MS. LOFGREN.................................        x
MS. JACKSON-LEE.............................        x
MS. WATERS..................................        x
MR. MEEHAN..................................        x
MR. DELAHUNT................................        x
MR. WEXLER..................................        x
MR. WEINER..................................        x
MR. SCHIFF..................................        x
MS. SANCHEZ.................................        x
MR. VAN HOLLEN..............................        x
MRS. WASSERMAN SCHULTZ......................        x

MR. SENSENBRENNER, CHAIRMAN.................                 x
                                             ---------------------------
    TOTAL...................................       17       18
------------------------------------------------------------------------

                     ROLLCALL NO. 4--DATE: 9-20-06

    SUBJECT: Motion to report H.R. 6054 favorably, which was 
not agreed to by a rollcall vote of 17 ayes to 20 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................
MR. COBLE...................................        x
MR. SMITH...................................        x
MR. GALLEGLY................................
MR. GOODLATTE...............................        x
MR. CHABOT..................................        x
MR. LUNGREN.................................        x
MR. JENKINS.................................        x
MR. CANNON..................................        x
MR. BACHUS..................................        x
MR. INGLIS..................................                 x
MR. HOSTETTLER..............................        x
MR. GREEN...................................        x
MR. KELLER..................................
MR. ISSA....................................        x
MR. FLAKE...................................                 x
MR. PENCE...................................        x
MR. FORBES..................................        x
MR. KING....................................        x
MR. FEENEY..................................        x
MR. FRANKS..................................        x
MR. GOHMERT.................................                 x

MR. CONYERS.................................                 x
MR. BERMAN..................................                 x
MR. BOUCHER.................................                 x
MR. NADLER..................................                 x
MR. SCOTT...................................                 x
MR. WATT....................................                 x
MS. LOFGREN.................................                 x
MS. JACKSON LEE.............................                 x
MS. WATERS..................................                 x
MR. MEEHAN..................................                 x
MR. DELAHUNT................................                 x
MR. WEXLER..................................                 x
MR. WEINER..................................                 x
MR. SCHIFF..................................                 x
MS. SANCHEZ.................................                 x
MR. VAN HOLLEN..............................                 x
MRS. WASSERMAN SCHULTZ......................                 x

MR. SENSENBRENNER, CHAIRMAN.................        x
                                             ---------------------------
    TOTAL...................................       17       20
------------------------------------------------------------------------

                     ROLLCALL NO. 5--DATE: 9-20-06

    SUBJECT: Nadler motion to adjourn, which was not agreed to 
by a rollcall vote of 14 ayes to 17 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................
MR. COBLE...................................                 x
MR. SMITH...................................                 x
MR. GALLEGLY................................
MR. GOODLATTE...............................
MR. CHABOT..................................                 x
MR. LUNGREN.................................                 x
MR. JENKINS.................................                 x
MR. CANNON..................................                 x
MR. BACHUS..................................                 x
MR. INGLIS..................................                 x
MR. HOSTETTLER..............................
MR. GREEN...................................                 x
MR. KELLER..................................
MR. ISSA....................................
MR. FLAKE...................................                 x
MR. PENCE...................................                 x
MR. FORBES..................................                 x
MR. KING....................................                 x
MR. FEENEY..................................                 x
MR. FRANKS..................................                 x
MR. GOHMERT.................................                 x

MR. CONYERS.................................        x
MR. BERMAN..................................        x
MR. BOUCHER.................................
MR. NADLER..................................        x
MR. SCOTT...................................        x
MR. WATT....................................        x
MS. LOFGREN.................................        x
MS. JACKSON LEE.............................
MS. WATERS..................................        x
MR. MEEHAN..................................        x
MR. DELAHUNT................................
MR. WEXLER..................................        x
MR. WEINER..................................        x
MR. SCHIFF..................................        x
MS. SANCHEZ.................................        x
MR. VAN HOLLEN..............................        x
MRS. WASSERMAN SCHULTZ......................        x

MR. SENSENBRENNER, CHAIRMAN.................                 x
                                             ---------------------------
    TOTAL...................................       14       17
------------------------------------------------------------------------

                     ROLLCALL NO. 9--DATE: 9-20-06

    SUBJECT: Gohmert motion to reconsider H.R. 6054, which was 
agreed to by a rollcall vote of 20 ayes to 19 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................        x
MR. COBLE...................................        x
MR. SMITH...................................        x
MR. GALLEGLY................................        x
MR. GOODLATTE...............................        x
MR. CHABOT..................................        x
MR. LUNGREN.................................        x
MR. JENKINS.................................        x
MR. CANNON..................................        x
MR. BACHUS..................................        x
MR. INGLIS..................................                 x
MR. HOSTETTLER..............................        x
MR. GREEN...................................        x
MR. KELLER..................................
MR. ISSA....................................        x
MR. FLAKE...................................                 x
MR. PENCE...................................        x
MR. FORBES..................................        x
MR. KING....................................        x
MR. FEENEY..................................        x
MR. FRANKS..................................        x
MR. GOHMERT.................................        x

MR. CONYERS.................................                 x
MR. BERMAN..................................                 x
MR. BOUCHER.................................                 x
MR. NADLER..................................                 x
MR. SCOTT...................................                 x
MR. WATT....................................                 x
MS. LOFGREN.................................                 x
MS. JACKSON LEE.............................                 x
MS. WATERS..................................                 x
MR. MEEHAN..................................                 x
MR. DELAHUNT................................                 x
MR. WEXLER..................................                 x
MR. WEINER..................................                 x
MR. SCHIFF..................................                 x
MS. SANCHEZ.................................                 x
MR. VAN HOLLEN..............................                 x
MRS. WASSERMAN SCHULTZ......................                 x

MR. SENSENBRENNER, CHAIRMAN.................        x
                                             ---------------------------
    TOTAL...................................       20       19
------------------------------------------------------------------------

                     ROLLCALL NO. 10--DATE: 9-20-06

    SUBJECT: Motion to report H.R. 6054 adversely, which was 
not agreed to by a rollcall vote of 19 ayes to 20 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................                 x
MR. COBLE...................................                 x
MR. SMITH...................................                 x
MR. GALLEGLY................................                 x
MR. GOODLATTE...............................                 x
MR. CHABOT..................................                 x
MR. LUNGREN.................................                 x
MR. JENKINS.................................                 x
MR. CANNON..................................                 x
MR. BACHUS..................................                 x
MR. INGLIS..................................        x
MR. HOSTETTLER..............................                 x
MR. GREEN...................................                 x
MR. KELLER..................................
MR. ISSA....................................                 x
MR. FLAKE...................................        x
MR. PENCE...................................                 x
MR. FORBES..................................                 x
MR. KING....................................                 x
MR. FEENEY..................................                 x
MR. FRANKS..................................                 x
MR. GOHMERT.................................                 x

MR. CONYERS.................................        x
MR. BERMAN..................................        x
MR. BOUCHER.................................        x
MR. NADLER..................................        x
MR. SCOTT...................................        x
MR. WATT....................................        x
MS. LOFGREN.................................        x
MS. JACKSON-LEE.............................        x
MS. WATERS..................................        x
MR. MEEHAN..................................        x
MR. DELAHUNT................................        x
MR. WEXLER..................................        x
MR. WEINER..................................        x
MR. SCHIFF..................................        x
MS. SANCHEZ.................................        x
MR. VAN HOLLEN..............................        x
MRS. WASSERMAN SCHULTZ......................        x

MR. SENSENBRENNER, CHAIRMAN.................                 x
                                             ---------------------------
    TOTAL...................................       19       20
------------------------------------------------------------------------

                     ROLLCALL NO. 11--DATE: 9-20-06

    SUBJECT: Gohmert motion to reconsider the vote to report 
H.R. 6054 favorably, which was agreed to by a rollcall vote of 
20 ayes to 19 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................        x
MR. COBLE...................................        x
MR. SMITH...................................        x
MR. GALLEGLY................................        x
MR. GOODLATTE...............................        x
MR. CHABOT..................................        x
MR. LUNGREN.................................        x
MR. JENKINS.................................        x
MR. CANNON..................................        x
MR. BACHUS..................................        x
MR. INGLIS..................................                 x
MR. HOSTETTLER..............................        x
MR. GREEN...................................        x
MR. KELLER..................................
MR. ISSA....................................        x
MR. FLAKE...................................                 x
MR. PENCE...................................        x
MR. FORBES..................................        x
MR. KING....................................        x
MR. FEENEY..................................        x
MR. FRANKS..................................        x
MR. GOHMERT.................................        x

MR. CONYERS.................................                 x
MR. BERMAN..................................                 x
MR. BOUCHER.................................                 x
MR. NADLER..................................                 x
MR. SCOTT...................................                 x
MR. WATT....................................                 x
MS. LOFGREN.................................                 x
MS. JACKSON LEE.............................                 x
MS. WATERS..................................                 x
MR. MEEHAN..................................                 x
MR. DELAHUNT................................                 x
MR. WEXLER..................................                 x
MR. WEINER..................................                 x
MR. SCHIFF..................................                 x
MS. SANCHEZ.................................                 x
MR. VAN HOLLEN..............................                 x
MRS. WASSERMAN SCHULTZ......................                 x

MR. SENSENBRENNER, CHAIRMAN.................        x
                                             ---------------------------
    TOTAL...................................       20       19
------------------------------------------------------------------------

                     ROLLCALL NO. 12--DATE: 9-20-06

    SUBJECT: Motion to report H.R. 6054 favorably, which was 
agreed to by a rollcall vote of 20 ayes to 19 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................        X
MR. COBLE...................................        X
MR. SMITH...................................        X
MR. GALLEGLY................................        X
MR. GOODLATTE...............................        X
MR. CHABOT..................................        X
MR. LUNGREN.................................        X
MR. JENKINS.................................        X
MR. CANNON..................................        X
MR. BACHUS..................................        X
MR. INGLIS..................................                 X
MR. HOSTETTLER..............................        X
MR. GREEN...................................        X
MR. KELLER..................................
MR. ISSA....................................        X
MR. FLAKE...................................                 X
MR. PENCE...................................        X
MR. FORBES..................................        X
MR. KING....................................        X
MR. FEENEY..................................        X
MR. FRANKS..................................        X
MR. GOHMERT.................................        X

MR. CONYERS.................................                 X
MR. BERMAN..................................                 X
MR. BOUCHER.................................                 X
MR. NADLER..................................                 X
MR. SCOTT...................................                 X
MR. WATT....................................                 X
MS. LOFGREN.................................                 X
MS. JACKSON-LEE.............................                 X
MS. WATERS..................................                 X
MR. MEEHAN..................................                 X
MR. DELAHUNT................................                 X
MR. WEXLER..................................                 X
MR. WEINER..................................                 X
MR. SCHIFF..................................                 X
MS. SANCHEZ.................................                 X
MR. VAN HOLLEN..............................                 X
MRS. WASSERMAN SCHULTZ......................                 X

MR. SENSENBRENNER, CHAIRMAN.................        X
                                             ---------------------------
    TOTAL...................................       20       19
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 6054, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

H.R. 6054--Military Commissions Act of 2006

    Summary: H.R. 6054 would authorize the President to 
establish military commissions to try unlawful combatants for a 
number of offenses including terrorism, hijacking, and the 
murder of non-combatants. The bill would set out the rules and 
procedures for such trials, including the process for assigning 
counsel and compelling witnesses and evidence, the rules of 
evidence, and post-trial reviews and appeals. H.R. 6054 also 
would amend the U.S. criminal code to retroactively specify 
which actions under the Geneva Convention would be considered 
criminal acts for which the U.S. Armed Forces or other U.S. 
nationals could be prosecuted. The bill would apply to 
detention, treatment, or trial of any person detained since 
September 11, 2001.
    CBO estimates that implementing H.R. 6054 would cost $21 
million in 2007 and $141 million over the 2007-2011 period, 
assuming the appropriation of necessary funds. Enacting H.R. 
6054 would not affect direct spending or revenues.
    H.R. 6054 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 6054 is shown in the following table. 
The costs of this legislation fall within budget function 050 
(national defense).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2007     2008     2009     2010     2011
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level......................................       29       30       31       31       32
Estimated Outlays..................................................       21       28       29       31       32
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: Pursuant to the President's Military 
Order on November 21, 2001, the Secretary of Defense 
established the Office of Military Commissions (OMC) within the 
Defense Legal Services Agency of the Department of Defense 
(DoD). Prior to the U.S. Supreme Court's decision on June 29, 
2006, that prohibited the use of military commissions to try 
unlawful combatants, the OMC was responsible for trying 
unlawful combatants detained by DoD.
    To date in fiscal year 2006, the OMC has received 
approximately $27 million in appropriations from the fiscal 
year 2006 Defense Appropriations Act (Public Law 109-148) and 
the 2006 Emergency Supplemental for Defense, the Global War on 
Terror, and Hurricane Recovery (Public Law 109-234). Those 
amounts cover expenses for salaries and benefits of civilian 
personnel, travel, contractual services, equipment and 
supplies. In addition, the OMC has also used 10 to 15 reserve 
Judge Advocates to assist the OMC in preparing and trying 
cases. Based upon prior costs and staffing levels, CBO 
estimates that implementing H.R. 6054 would cost $21 million in 
2007 and $141 million over the 2007-2011 period, assuming the 
appropriation of necessary funds.
    CBO assumes for the purposes of this estimate that, if 
legislation is not enacted authorizing the use of military 
commissions to try unlawful combatants detained by the United 
States, the OMC will be dissolved and the United States would 
continue to hold those detainees who would have been tried. 
Thus, the estimated costs of the bill reflect only the 
incremental costs for conducting such trials.
    Section 4 of H.R. 6054 would change the U.S. criminal code 
to specify which actions under the Geneva Convention would be 
considered criminal acts for which the U.S. Armed Forces or 
other U.S. nationals could be prosecuted. We expect that 
section 4 would apply to a relatively small number of cases. 
Thus, any resulting change in costs for law enforcement, court 
proceedings, or prison operations would not be significant.
    Section 6 would specify that section 1003 of the Detainee 
Treatment Act of 2005 would satisfy U.S. obligations with 
respect to the standards for treatment under Common Article 3 
under the Geneva Conventions. If enacted, this section may 
provide more latitude to the United States in the treatment and 
interrogation of detainees. Section 7 of the bill would expand 
the conditions under which the government would provide funds 
and personnel to defend certain government employees who are 
being investigated or prosecuted in matters related to the 
detention and interrogation of certain detainees. CBO has no 
basis for estimating the potential cost of those sections.
    Intergovernmental and Private-Sector Impact: H.R. 6054 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Previous CBO Estimate: On September 15, 2006, CBO 
transmitted a cost estimate for H.R. 6054 as ordered reported 
by the House Committee on the Armed Services on September 13, 
2006. The two versions of the bill are identical, as are CBO's 
estimates.
    Estimate prepared by: Federal Costs; Jason Wheelock. Impact 
on State, Local, and Tribal Governments: Melissa Merrell. 
Impact on the Private Sector: Victoria Liu.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
6054 authorizes trial by military commission for violations of 
the law of war, amends the War Crimes Act to specify particular 
crimes constituting ``serious violations'' of Common Article 3 
of the Geneva Conventions, and overturns certain holdings in 
the recent Supreme Court case of Hamdan v. Rumsfeld.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article 1, section 8 of the Constitution, 
including clauses 10, 11, 14 and 18.

               Section-by-Section Analysis and Discussion

    The following section-by-section analysis describes the 
sections of H.R. 6054 as reported that fall within the Rule X 
jurisdiction of the Committee on the Judiciary. For a 
description of the other sections of the bill, please refer to 
the report of the Committee on Armed Services.\22\
---------------------------------------------------------------------------
    \22\ See H.R. Rep. No. 109-664 (2006).
---------------------------------------------------------------------------

Section 4--Clarification of conduct constituting a war crimes offense 
        under Federal Criminal Code

    Section 4 amends 18 U.S.C. Sec. 2441(c) (the War Crimes Act 
of 1996) to clarify that the United States will prosecute as 
war crimes conduct which constitutes a ``serious violation'' of 
Common Article 3 of the Geneva Conventions. Common Article 3 
prohibits certain conduct, including ``outrages upon personal 
dignity,'' a vague phrase virtually impossible to define in the 
context of a criminal statute. See Connally v. General Constr. 
Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926) 
(``a statute which either forbids or requires the doing of an 
act in terms so vague that men of common intelligence must 
necessarily guess at its meaning and differ as to its 
application, violates the first essential of due process of 
law.'')
    Section 4 instead enumerates specific, definable conduct 
which will be prosecuted as a war crime: torture, cruel or 
inhuman treatment, performing biological experiments, murder, 
mutilation or maiming, intentionally causing great suffering or 
serious injury, rape, sexual assault or abuse, and taking 
hostages are codified and defined in this section as conduct 
which constitutes a war crime. The section would also make the 
amendment apply retroactively to the date of the last amendment 
of the War Crimes Act (November 26, 1997). Retroactivity will 
not affect any pending case, since no person has been 
prosecuted for violations of the War Crimes Act since its 
initial enactment.

Section 5--Judicial review

    Section 5 would amend 28 U.S.C. Sec. 2241 to prohibit any 
court, justice, or judge (except the United States Court of 
Appeals for the District of Columbia Circuit) from hearing or 
considering any claim or cause of action, including an 
application for a writ of habeas corpus, pending on or filed 
after the date of enactment of H.R. 6054, against the United 
States or its agents, brought by or on behalf of any alien 
detained by the United States as an unlawful enemy combatant, 
relating to any aspect of the alien's detention, transfer, 
treatment, or conditions of confinement. Section 5 would permit 
the D.C. Circuit to review two causes of action for these 
aliens: (1) exclusive jurisdiction to determine the validity of 
any final decision of a Combatant Status Review Tribunal 
(CSRT); and (2) final judgments of military commissions as 
provided for pursuant to section 950g of Section 3 of H.R. 
6054. Finally, this section would provide that the D.C. Circuit 
may consider classified information submitted in camera and ex 
parte in making any determination under this section.
    This section would correct the Supreme Court's erroneous 
interpretation of the Detainee Treatment Act of 2005 (DTA) in 
Hamdan v. Rumsfeld, in which the Court found that the DTA's 
habeas corpus limitations did not apply retroactively to cases 
pending on the date of enactment. The DTA amended the Federal 
habeas corpus statute (28 U.S.C. Sec. 2241) to provide that the 
D.C. Circuit would have jurisdiction over determinations of 
CSRTs for enemy combatants detained at the U.S. Naval Base, 
Guantanamo Bay, Cuba and final judgments of military 
commissions, and that all other courts would be foreclosed from 
hearing habeas corpus petitions or any other civil actions 
brought by enemy combatants in United States custody. This 
section forecloses any legal claim, including applications for 
the writ of habeas corpus, brought on by or on behalf of these 
detainees, since judicial review of detention and military 
commission decisions is channeled through the adequate 
alternative procedures provided by this Act and the DTA. The 
Committee notes that the use of the phrase ``pending on or 
filed after the date of enactment'' is in response to the 
Supreme Court's incorrect holding in Hamdan, but should not be 
construed by the courts to require the use of such terms in any 
future legislation where Congress removes any court's 
jurisdiction over a class of cases. Absent an express 
reservation by Congress to the contrary, any Act removing 
courts' jurisdiction over a class of cases should apply to 
cases pending on or afterthe date of the enactment of the Act, 
regardless of whether Congress uses the phrase ``pending on or filed 
after the date of enactment.''

Section 6(b)--Rights not judicially enforceable

    Section 6(b) would prohibit any court from treating the 
Geneva Conventions as a source of rights, directly or 
indirectly, making clear that the Geneva Conventions are not 
judicially enforceable in any court of the United States.
    Until the Hamdan decision, the prohibitions contained in 
Common Article 3 were not considered enforceable in United 
States courts. This section demonstrates Congress' intent to 
return to that original understanding of Common Article 3. 
Instead, the United States Constitution, which provides the 
fundamental, underlying protections for the rights and 
liberties of all American citizens, will be used as a familiar 
standard to provide sufficient rights for detainees, especially 
unlawful enemy combatants.

Section 6(c)--Geneva Convention defined

    This section defines the ``Geneva Convention'' as the 
international conventions signed at Geneva on August 12, 1949, 
including Common Article 3.

Section 7--Revisions to Detainee Treatment Act of 2005 relating to 
        protection of certain United States Government personnel

    Section 7 would amend section 1004(b) of the Detainee 
Treatment Act (DTA) of 2005 to enhance the protection of U.S. 
government personnel engaged in authorized interrogations. 
Section 1004(b) of the DTA provides counsel in any civil action 
or criminal prosecution against a member of the armed forces or 
other agent of the United States government in cases involving 
certain interrogation procedures of aliens determined by the 
government to be international terrorists. This section would 
provide that the provision of counsel under section 1004(b) is 
mandatory, that the right to counsel includes investigations, 
and that the right applies to foreign and international courts 
or agencies. This section would further provide that the 
affirmative defense provided in section 1004(a) of the DTA and 
the right to counsel provided in section 1004(b) of the DTA 
applies to any criminal prosecution that: (1) related to the 
detention and interrogation of aliens described in such 
section, (2) is grounded in section 2441(c)(3) of title 18, 
United States Code (as amended by section 4 of this Act), and 
(3) relates to actions occurring between September 11, 2001, 
and December 30, 2005.

Section 8--Retroactive applicability

    Section 8 would clarify that the Act retroactively applies 
`to any aspect of detention, treatment or trial of any alien 
detained at any time since September 11, 2001.' This section 
further states that the Act applies to any case, pending or 
not, whether filed before or after the effective date of the 
Act.

            Changes in Existing Law by the Bill, as Reported

    The bill was referred to this Committee for consideration 
of such provisions of the bill as fall within the jurisdiction 
of this Committee pursuant to clause 1(1) of rule X of the 
Rules of the House of Representatives. The changes made to 
existing law as reported by the Committee on Armed Services are 
shown in the report filed by that committee (Rept. 109-664, 
Part 1). The amendments made by this Committee to existing law 
within its jurisdiction are identical to those shown in such 
part 1.
                           Markup Transcript




                            BUSINESS MEETING

                     WEDNESDAY, SEPTEMBER 20, 2006

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. (chairman of the committee) presiding.
    Chairman Sensenbrenner. The committee will be in order. A 
working quorum is present. Pursuant to notice I now call up the 
bill H.R. 6054, the Military Commissions Act of 2006, for 
purposes of markup and move its favorable recommendation to the 
House. Without objection, the bill will be considered as read 
and open for amendment at any point and the text as reported by 
the Committee on Armed Services which the members have before 
them will be considered as read, be considered as the original 
text for the purposes of amendment and open for amendment at 
any point, and the Chair recognizes himself for 5 minutes to 
explain the bill.
    [The bill, H.R. 6054, follows:]
    
    
    Chairman Sensenbrenner. This bill, the Military Commissions 
Act of 2006, authorizes trials by military commissions of alien 
unlawful enemy combatants for violation of the laws of war. 
Provisions of this legislation that are within the jurisdiction 
of the Judiciary Committee make changes to the Federal habeas 
corpus and war crime statutes.
    In the aftermath of September 11, President Bush authorized 
the Secretary of Defense to establish military commissions to 
provide full and fair trials for members of al-Qaeda who 
engaged in, aided, abetted or conspired to commit the attacks 
against the United States.
    In January 2002, the administration began detaining foreign 
terrorists as enemy combatants at U.S. facilities at Guantanamo 
Bay and instituted procedures to review the detainees' enemy 
combatant status. DOD began prosecuting certain detainees using 
military commissions as authorized by the President. During 
this time, detainees brought lawsuits in Federal courts that 
challenged the legality of their detention and the legality of 
the President's military commissions.
    Partially in response to these lawsuits, Congress passed 
the Detainee Treatment Act of 2005, which provided for limited 
judicial review of DOD detention decisions and barred other 
lawsuits by the detainees in U.S. custody.
    On June 29th, 2006, the Supreme Court held in Hamdan v. 
Rumsfeld that the President's military commissions were 
unlawful because they did not comply with Uniform Code of 
Military Justice and Common Article 3 of the Geneva 
Conventions. The Court also found the DTA did not bar habeas 
petitions in other lawsuits by detainees pending on the date of 
enactment despite clear statutory language to the contrary.
    In response to the Supreme Court's decision in Hamden and 
this acknowledgment that Congress could authorize military 
commissions as long as they complied with the Constitution, 
Chairman Hunter, several other members and I introduced H.R. 
6054. Last week the Armed Services Committee favorably reported 
this legislation by an overwhelming bipartisan vote of 52 to 8.
    The portions of the bill that fall within the Judiciary 
Committee's jurisdiction are as follows:
    Section 4 of the bill amends the War Crimes Act of 1996 to 
clarify what conduct the United States will prosecute under 
Common Article 3 of the Geneva Conventions as a war crime.
    Section 5 of the bill amends the Federal habeas corpus 
statute to prohibit any lawsuits pending or filed after 
enactment brought by unlawful alien combatants relating to 
detention, transfer, treatment or conditions of confinement.
    This change is in response to the Supreme Court's erroneous 
determination in Hamden that the DTA's habeas corpus 
limitations did not apply retroactively to cases pending on the 
date of enactment. It is important to note that this provision 
will allow the D.C. Circuit to review the validity of enemy 
combatant determinations by DOD and any final judgments of the 
military commissions created under this bill.
    Section 6 of the bill pertains to U.S. obligations under 
the Geneva Conventions. Only sections 6B and C are within this 
committee's jurisdiction. 6B overturns a portion of the Hamden 
decision and declares that the Geneva Conventions are not the 
source of any judicially enforceable rights in U.S. courts. 
Section 6C is a housekeeping provision that defines the term 
``Geneva Conventions.''
    Section 7 provides that the DTA's access to counsel 
provision for U.S. personnel is mandatory. It further provides 
that the right of counsel includes investigation and the right 
to counsel applies in cases before international and foreign 
courts and agencies.
    Section 8 clarifies the entire act applies retroactively to 
any aspect of detention, treatment or trial of any alien 
detained at any time since September 11th and to any case 
whether pending or filed after the date of enactment.
    While this committee's jurisdiction is broad, rule X of the 
rules of the House places a germaneness limitation on 
amendments that can be considered as markup. Therefore, the 
Chair would advise members to limit amendments to the 
aforementioned sections of the bill.
    As a final note, I hope that my colleagues will remain 
mindful that the purpose of this legislation is to provide 
congressional authorization to establish a fair and effective 
procedure to prosecute dangerous terrorists. In taking this 
action we provide terrorists, such as Khalid Shaikh Mohammed, 
the mastermind of the 9/11 attacks, the fairness and legal 
protections that none of their innocent victims ever enjoyed.
    I urge my colleagues to support this legislation and in the 
absence of Mr. Conyers, who wishes to give the Democratic 
opening statement? The gentleman from New York, Mr. Nadler, is 
recognized for 5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized.
    Mr. Nadler. Mr. Chairman, this is how a nation loses its 
moral compass, its identity, its values and ultimately its 
freedom. It is ironic that the people who use the word 
``freedom'' with reckless abandon in everything from freedom 
fries to a global vision should come before the American people 
advocating torture. I know we have been told it is not really 
torture, but I am sickened by the quibbling, legalistic hair 
splitting on something so basic to our Nation's fundamental 
values. We seem to have forgotten that this is the United 
States of America and that we stand for certain inalienable 
propositions.
    Let me say that again, we are the United States of America 
and we ought to behave that way. We have stood as a beacon to 
the world. People have aspired to our way of life, our values, 
our example, our leadership. Now, with scant deliberation, with 
no hearing in this committee, in an election eve stampede, we 
are urged to throw it away like yesterday's newspaper.
    The honor and values of our Nation would be permanently 
stained by this detestable legislation. It is beneath us. It 
should not be what we stand for.
    Perhaps if this were necessary for our safety, perhaps if, 
as military leaders have told us, it would not place our men 
and women in jeopardy, perhaps if it would not guarantee that 
our allies would simply stop cooperating with us on 
intelligence matters vital to our security, we might have 
something to discuss. But that is not the case. We do not need 
to do this and it will make us less safe if we do.
    Who does this sort of thing? I ask unanimous consent to 
place into the record an article by Vladimir Bukosy, who was a 
guest of the KGB for 12 years in various camps, prisons and 
psychiatric hospitals.
    Chairman Sensenbrenner. Without objection.
    [The information follows:]
    
    
    Mr. Nadler. He points out that he was subject to many of 
the techniques we are now debating. The techniques he 
describes, including sleep depravation, have all taken place on 
our watch. Is this the company we now want to keep? Are 
Stalin's techniques the models that we want to follow?
    There is no ambiguity as to what is prohibited under the 
treaties we have voluntarily agreed to respect and claim to 
have respected for the last 50 years until this bill, at least 
not until the latest crowd of hair splitters found their way 
into the White House.
    We should not do this. We should not stand up--we should 
stand up for America and American values. We should not stain 
our Nation's honor.
    I would point out that even if you object to placing in the 
record a relevant excerpt from the experiences of someone else, 
we have the statement that was in the New York Times 2 days 
ago, a couple of days ago from a Bubak Irkasim, who was held 
totally innocently by Americans in prison in Iraq because--in 
Guantanamo because he was in the wrong place at the wrong time 
and we finally released him after a year and a half of not nice 
measures. But habeas corpus is what set him free. This bill 
will eliminate habeas corpus.
    Mr. Chairman, no executive authority in an English speaking 
country has claimed the right to eliminate habeas corpus except 
in cases of an imminent insurrection or invasion or when enemy 
troops were on our soil during the Civil War since Magna Carta 
800 years ago. The White House claims that right. Not even 
George III did that. The complaints we leveled against George 
III in the Declaration of Independence were less obnoxious than 
the things that this bill would make legal and that this 
President claims are legal.
    Mr. Chairman, this bill is an insult to all of our 
traditions and should not be adopted. I thank you. I yield 
back.
    Chairman Sensenbrenner. Without objection, all members may 
put opening statements in the record at this point.
    Are there any amendments? For what purpose does the 
gentleman from California, Mr. Schiff, seek recognition?
    Mr. Schiff. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 6054 offered by Mr. Schiff and 
Mr. Flake, strike section 4, insert the following. Section 4, 
revision to war crimes offense under Federal criminal code. 
Subsection A, in general.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and the gentleman from California is 
recognized for 5 minutes.
    Mr. Schiff. Mr. Chairman, I offer this bipartisan amendment 
today with my colleague Representative Flake from Arizona. This 
proposal amends section 4 of the Hunter bill to bring it in 
line with the Warner-McCain-Graham language. After the Supreme 
Court held that Common Article 3 applies to the conflict 
against al-Qaeda the President suggested some of the articles 
of Common Article 3 provide U.S. Personnel with inadequate 
notice as to what interrogation methods can permissibly be used 
against detained al-Qaeda suspects and requested legislation 
listing specific recognizable offenses that would be considered 
crimes under the War Crimes Act.
    Therefore, both the Warner-McCain-Graham as well as the 
Hunter bill amend the War Crimes Act provision concerning 
Common Article 3, specifying the serious grave violations that 
would be punishable. These include a number of serious 
offenses, including torture and cruel treatment.
    The key difference between Warner-McCain-Graham legislation 
and the Hunter bill in this section is the definition of cruel 
treatment. The Hunter bill defines cruel treatment as treatment 
arising to the level of torture. This effectively removes 
cruel, inhuman, degrading treatment from the list of prohibited 
conduct, merely reiterating that torture is a prosecutable 
offense.
    The Warner-McCain-Graham bill on the other hand addresses 
this issue squarely by defining cruel, inhuman or degrading 
treatment as conduct that would be unconstitutional under the 
5th, 8th and 14th amendments if it occurred in the United 
States. This language is entirely consistent with the McCain 
amendment language that Congress passed last year.
    The Warner-McCain-Graham approach provides needed clarity, 
ensuring that interrogators and officials have sufficient 
notice of what conduct could subject them to liability while 
ensuring that Congress does not implicitly endorse any future 
abuse. This I believe is also critical to protecting our own 
troops that we observe these standards in dealing with those 
that we hold in custody.
    Senators Warner, McCain, and Graham I believe have the 
right approach. I commend my colleague Mr. Flake for also 
seeking to address this issue and I urge members of the 
committee to support our bipartisan amendment.
    Chairman Sensenbrenner. Does the gentleman yield back?
    Mr. Schiff. Mr. Chairman, I yield back.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Forbes.
    Mr. Forbes. Yes, sir. Thank you, Mr. Chairman. Mr. 
Chairman, I hope that we will----
    Chairman Sensenbrenner. Does the gentleman move to strike 
the last word?
    Mr. Forbes. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Forbes. Mr. Chairman, I hope that we will oppose this 
amendment. While I am sure its intention is good, the purpose 
of this legislation is to bring clarity to the provisions which 
were not there before. There is particular language in the 
amendment that I think would offer us even more unclarity as we 
move, especially the provisions which require the amendment to 
make cruel, unusual and inhumane treatment or punishment that 
violates the 5th, 8th and 14th amendments a war crime, and I am 
hoping that we will defeat this amendment and pass the bill.
    Mr. Chabot. Would the gentleman yield?
    Mr. Forbes. I yield.
    Mr. Chabot. I want to make a point. My colleague Mr. 
Nadler, who I have the greatest respect for and actually 
accompanied on a trip down to Guantanamo Bay earlier this year, 
I just wanted--and the gentleman talked--it is the second time 
I have been to Guantanamo Bay. And the gentleman talked about 
the KGB and sleep deprivation and the Soviet gulags, and not 
necessarily a direct analogy between that and what is going on 
in Guantanamo, but I would refer to a Washington Times article. 
A reporter from the New York Post, Richard Minter, was down 
there, according to this, last week, and talks about the 
atmosphere down there in which the detainees are entitled to a 
full 8 hours of sleep and cannot be awakened for interrogation. 
So that is the situation down in Guantanamo Bay right now, and 
so I think to maybe leave that impression out there hanging, 
that the way these people are being treated down at Guantanamo 
Bay is in any way similar to the gulags, Soviet gulag, is just 
not accurate.
    Other things--there is a misimpression I think out there in 
the world about how these people are being treated down there, 
that there is rampant torture and abuses and the people are 
just being treated in the most miserable fashion. I would just 
note a couple of things. The nutrition, for example, they get 
there compared to the way before they came there from 
Afghanistan or wherever they came from, the average inmate 
gained about 15 pounds, was receiving better medical care by 
far, dental care, you name it, being given a Koran.
    They pray five times a day. There is an arrow on the floor 
in each of the rooms and out in the hallways so that they know 
which way Mecca is so they can pray accordingly.
    Clearly I wouldn't want to be an inmate in Guantanamo Bay 
and I don't think anything in this room would want to be there, 
but I think you have to remember where these people came from 
and the circumstances that resulted in their being at 
Guantanamo Bay.
    Mr. Delahunt. Would the gentleman yield?
    Mr. Chabot. It is his time.
    I have heard from constituents in my area and a lot of 
other people that the terrorists and especially the higher al-
Qaeda individuals that are being housed there are being treated 
far better than most of them deserve when you consider the 
circumstances that they were involved in which resulted in them 
being at Guantanamo Bay. It really depends on whether or not we 
are serious about this battle against international terrorism 
or whether we are not. I am not for torturing anybody and that 
is not what is happening down there and I would defy anybody to 
prove the opposite.
    I thank the gentleman for yielding.
    Mr. Delahunt. Would the gentleman yield?
    Mr. Forbes. Reclaiming my time.
    One of the things the gentleman from Ohio makes clear too 
is the importance for us reaching a balance here. Congressman 
Nadler talked about American values but we can't forget one of 
the major American values is the right for our citizens to be 
able to live and to continue to be free from the terrorist 
attacks that are out there.
    I think the amendment that is before us, while again good 
intentioned, certainly brings a lack of clarity to the primary 
piece of legislation that is before this committee which I 
think strikes a good balance, and I hope that we will defeat 
the amendment. I yield back the balance of my time.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Michigan, Mr. Conyers, seek recognition?
    Mr. Conyers. I rise in support of the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Conyers. I do so because I had a similar amendment, but 
in the interest of time I want to make it clear that the Schiff 
amendment is right on point and is absolutely necessary. We are 
trying to correct legislation that endangers our troops because 
it lowers the standards set forth in the Geneva Convention 
which were agreed to by all the nations of the civilized world 
after World War II and have been honored ever since.
    When our troops are captured in combat we expect every 
nation and every person to abide by the letter and spirit of 
the law. When a public official as respected as Colin Powell 
writes the administration's proposal would put our troops at 
risk, we should take him seriously.
    And so what we are trying to do is correct a serious 
mistake in this legislation because by defining cruel or 
inhuman treatment on par with torture, we would immunize 
civilians and CIA interrogators who engage in abuse of 
detainees. In other words, what we are being asked to do is to 
authorize CIA and civilian interrogators to use practices that 
amount to torture.
    And so my friend from Ohio, the Chabot relativity theory 
that you are better off in Guantanamo than where you came from 
so let's get on with it is totally unacceptable from my 
analysis.
    The amendment correctly defines the domestic war crime of 
cruel or inhuman torture and treatment by using the standards 
of the 5th, 8th and 14th amendments in our own Constitution, 
similar to the Warner bill in the Senate and the Detainee 
Treatment Act already passed by Congress. This category of 
conduct is broader in scope, as there are many practices that 
while unconstitutionally cruel or inhuman, may not rise to the 
level of torture.
    Ladies and gentlemen of the committee, this is an 
incredibly important consideration that we are examining today, 
and I regret very much that we haven't had hearings on it. I 
know we are facing the clock now but it is very important that 
this amendment, which is constructive and helpful, the least we 
could do is add the Schiff amendment to a very questionable 
proposition that is before us today.
    I return my unused time.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Arizona seek recognition?
    Mr. Flake. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Flake. I commend Mr. Schiff for working so hard on this 
and other issues that we will deal with today and I am proud to 
stand with him in offering this amendment.
    My understanding is, if you read the press reports today, 
that the White House is coming a little closer to the Warner-
McCain-Graham position with regard to the Hamden case. I think 
that this is where we are going to end up with this language or 
something very similar and gratefully so. We believe amending 
the War Crimes Act to cover specific acts without addressing 
cruel, inhuman or degrading treatment, as the Hunter language 
does, would overly restrict the act's scope, making certain 
unspecified conduct legally permissible even though it is as 
severe as conduct expressly prohibited by the act. That is what 
this is about.
    We are simply taking a standard that we can all understand, 
I believe; conduct that would be unconstitutional under the 
5th, 8th or 14th amendment if it had occurred in the U.S. This 
I might point out as well is consistent with the McCain 
amendment that passed last year.
    Again, I think this is where we are going to end up. I 
commend the gentleman from California for offering this.
    Mr. Feeney. Will the gentleman yield?
    Mr. Flake. Yes.
    Mr. Feeney. I want to commend the gentleman from California 
and Arizona and I know that they do this in good faith and I 
have some concern about this treatment as well. The problem is 
the actual language. The bill in front of us actually talks 
about inflicting severe physical pain or suffering or mental 
pain or suffering. I think the intelligence community can 
decide what that means.
    On the other hand, the language in the Schiff-Flake 
amendment talks about inhumane treatment. We just heard that 
not guaranteeing 8 hours of sleep at Guantanamo has been 
interpreted by some as inhumane. There is not an American mom 
that is guaranteed 8 hours of sleep every night. There are very 
few people in the business world, there are very few employees 
that are guaranteed 8 hours of sleep.
    There are suggestions that playing loud music is inhumane 
treatment. By the way, there are trial lawyers in America 
prepared to try to prove that case every day. I guarantee you 
every major city in America has trial lawyers that will try to 
prove that playing loud music is inhumane if they think they 
can make a buck out of it. The bottom line is virtually every 
teenager I know is torturing mom and dad.
    I have a definitional problem. I really do share the 
concerns and I have talked to the gentleman from Arizona, but 
maybe there is better language that is in the bill. But given 
the state of where we are and what some people have interpreted 
inhumane treatment, I suggest the definitional problem is the 
key to giving Americans comfort that we are maintaining our 
moral standards but also guaranteeing every intelligence 
officer can do what he needs to do to find out when that 
nuclear bomb, when that chemical bomb, when that biological 
bomb is going to hit ahead of time and not after.
    I would yield back to the gentleman from Arizona for 
comment.
    Mr. Flake. Before yielding to the gentleman from California 
the remainder of the time, I would state if you have the 
definitional problems that we have, you will have them to a 
similar degree with the Hunter language. It is difficult, it is 
difficult to define. We feel this is a better standard.
    I yield to the gentleman from California.
    Mr. Schiff. I thank the gentleman for yielding. I would add 
to that we do give content to those terms and we give content 
to it by saying that cruel and inhuman treatment is conduct 
that would be considered cruel and inhuman treatment and 
unconstitutional under our 5th, 8th and 14th amendments. Now I 
don't think the court has ever interpreted the 5th, 8th or 14th 
amendment to say if you don't get 8 hours of sleep----
    Mr. Feeney. Would the gentleman yield on that? In fairness 
what you are suggesting is that known terrorists that have 
information about a potential nuclear weapon are entitled to 
the protections of the Bill of Rights and I don't know that I 
am prepared to say that.
    Mr. Schiff. If the gentleman will yield again. What I am 
saying is you probably remember, as I do, during the opening 
days of the Iraq war when American troops are captured and how 
we lamented the terrible treatment of those American troops. 
And when American troops are captured on the battlefield I am 
very concerned about how they are treated and I don't know how 
we can avoid a situation where if we are willing to under the 
guise of clarifying the Geneva Convention, really amend the 
Geneva Convention and adopt our own standard, a looser 
standard, how that will give us any confidence that when 
American troops are captured that they will be well treated, 
not treated inhumanely, cruelly, or tortured.
    This is to protect our troops as much as anything, and I 
have never seen any court interpret the Constitution in the 
manner in which the gentleman has suggested, although I am sure 
parents who feel tortured by their teenagers, I don't think 
that is in the Constitution.
    Moreover, as my other colleague pointed out in terms of the 
conditions at Guantanamo, again, whether the conditions at 
Guantanamo are better or worse than where the people came from, 
the important thing is how are our troops going to be treated, 
how can we insist upon their fair treatment and prohibit 
torture of own troops without adopting standards as clearly as 
we can, and I think our Constitution is about as clear as we 
can get in an otherwise murky area. I think this is necessary 
for the protection of our own troops, and I yield back to the 
gentleman.
    Chairman Sensenbrenner. The time of the gentleman has 
expired. For what purpose does the gentleman from Massachusetts 
seek recognition?
    Mr. Delahunt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Delahunt. I think on this occasion we ought to give 
deference to the overwhelming opinion of our military leaders. 
Yes, this is about fighting terrorism, and I think it is 
interesting to note that in testimony before the Senate, and I 
would have welcomed hearing the senior-serving Judge Advocates 
General testify in this matter but we won't have that 
opportunity.
    But before the Senate the Judge Advocates indicated that 
our Armed Forces have been trained to Common Article 3, which 
is the core of what we are talking about, and can live within 
its requirements while waging the war on terror effectively. 
That was their opinion. So any suggestion that this would limit 
or inhibit the United States in terms of dealing with those 
that would destroy us, according to our military, has no 
substance.
    To the contrary, some 40 retired generals, admirals, senior 
military, and I am not referring specifically to the former 
Secretary of State Colin Powell who made that rather dramatic 
observation about the moral basis, the erosion of our claim to 
a moral basis for the war on terrorism, but in very practical 
terms they are imploring that we go in the direction of the 
Schiff-Flake legislation known as the Warner-McCain-Lindsay 
approach in the Senate.
    There is a letter dated September 12th to Chairman Warner 
articulating the views of these esteemed retired military. We 
always talk about listening to the military. This is an 
opportunity to do that by adoption of this particular 
amendment.
    Let me read one excerpt from that letter. We have deployed 
right now in theaters where Common Article 3 is the only source 
of legal protection should they be captured, ``they'' referring 
to American troops. If we allow that standard to be eroded, we 
put their safety at greater risk.
    This is an opportunity to protect American service 
personnel, and if we fail to adopt this, if we listen to our 
military, we are putting our troops at risk. So understand what 
this vote is about. It is about protecting American military 
personnel in the war on terror.
    With that I yield back.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California, Mr. Lungren, seek recognition?
    Mr. Lungren. Strike the requisite number of words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Lungren. Mr. Chairman, this is a difficult issue and 
difficult question and I think some of the discussion borders 
on hyperbole here. I think there are well-intentioned people on 
both sides whose main purpose is to make sure that we protect 
American troops who might be captured on the battlefield, but I 
do have to respond to some comments. As much as I respect Colin 
Powell, to suggest that somehow our actions here would change 
the moral discussion or the moral reality that exists between 
this Nation fighting against terrorists who reject every norm 
under the Geneva Convention I think with all due respect to 
General Powell is absurd. We are dealing with an enemy who 
refuses to wear a uniform, who uses as a normal tactic hiding 
among civilians, whose idea of justice is sawing somebody's 
head off not only to kill them but to get as much pain as 
possible and to broadcast it such that it sends a message of 
terror.
    To suggest that as we go through this and attempt to 
articulate the appropriate definition of appropriate activity 
by those who would seek to gain intelligence, that somehow 
there is a moral equivalence to that is absurd. It is the kind 
of nonsensical argument that unfortunately diminishes the 
seriousness of the threat that is against us.
    One can take that position; that is, saying that the 
definition contained in the amendment is more appropriate than 
the definition contained in the bill, without suggesting that 
men and women of good will in this body attempting to find the 
best solution are somehow because of their position 
undercutting the moral position of the United States, number 
one.
    Number two, I may be one of the few people in this 
committee who voted against that torture resolution that came 
through on the floor of the House of Representatives earlier 
this year. It is not because I support torture.
    While I was in another position in the State of California 
I had the obligation of attempting to ensure that inappropriate 
action was not taken by authorities and, when we did find that, 
prosecuting those authorities. But what bothered me in that 
debate and what bothers me here is this. A good friend of mine 
on the Senate side, Senator McCain, with his definition of 
torture, said when posed the question of what we would do if we 
had one of these terrorists in custody who had the information 
that could in fact make the difference between protecting 3,000 
or 30,000 or 300,000 American lives said, well, we would take 
care of that. We would find a way. And the suggestion is that 
we would find a way that would allow us to get that information 
that might contravene the definition of torture, but we would 
want that done because under certain circumstances we would 
think that appropriate to gain that information.
    But what that does is it puts at risk those individuals who 
are the professionals who we ask, probably young men and women 
in uniform or young intelligence officers somewhere in the 
world, we put them at risk. It is our obligation and that is 
what we are pursuing here, to try and define the parameters in 
which this action would take place.
    Hence, my second concern, which is to define this in terms 
of the U.S. Constitution, 5th, 8th and 14th amendments, 
suddenly confers constitutional protections on those who are 
obviously not citizens but, more than that, those who have at 
least been accused of attempting to kill American citizens in 
the name of some distorted view of a religion. I think that is 
something we had better very seriously think about, whether we 
believe we ought to extend the constitutional protections in 
those cases. That doesn't mean you torture people willy nilly, 
doesn't mean that you torture people. But to extend the notion 
of the 5th, 8th and 14th amendments with respect to cruel, 
unusual and inhumane treatment or punishment I think goes a 
little too far.
    Depravation of sleep I think would be seriously considered 
by some courts in this land with respect to that definition 
under certain circumstances. I just think that we ought to 
recognize that we are men and women of good will trying to 
figure out a very difficult thing, but in addition to trying to 
say the actions we take here will somehow influence an enemy 
that believes it is important to saw peoples' heads off, that 
somehow by passing a certain definition here we are going to 
change their conduct. But that is a legitimate concern as to 
whether or not it could affect the way our men and women would 
be treated, but we also ought to be concerned about those men 
and women for whom we are going to impose an awesome 
obligation, attempt to try and get this information in a way 
that is not torture but in a way that may be uncomfortable, in 
a way that may be difficult, in a way that may be different 
than normal interrogation methods in order to protect 3,000, 
30,000, 300,000 American lives. That is our obligation and we 
should look at both sides of this equation.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. Strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, I simply want to make several 
observations. Number one, the Geneva Convention was signed by 
the United States and ratified I believe in 1949. We have lived 
with it and with its definitions for over almost 60 years. We 
lived with these definitions of what are war crimes and what 
are our obligations through the Korean War, through the Vietnam 
War, through various other actions, Grenada, et cetera.
    The only reason that anybody thinks these definitions--and, 
frankly, the savagery of the terrorists is not relevant. No one 
is defending their conduct. But why are the standards that the 
United States has followed that almost every country in the 
world has agreed to, if not adhered to, why are we suddenly 
finding that that is not right? For only one reason, because 
this lawless administration has violated the law in numerous 
ways and has condoned what most people would call torture. 
Sleep deprivation 8 hours; how about 40 hours, how about water 
boarding, how about holding people and subjecting them to 
hypothermia? That has happened. May not have happened at 
Guantanamo, I don't know, but it has happened, we know that. We 
have testimony.
    And now people are afraid that under the law that this 
Congress passed in 1996 under the speakership of Newt Gingrich 
that defined war crimes, that some members of this 
administration may be held liable for violating the laws of the 
United States. So we have to retroactively redefine the laws of 
the United States so the things that were illegal will be 
retroactively legal so the President doesn't have to issue 
pardons to himself and half his administration when he departs 
office. That is what this debate is really about.
    We can very well defend our liberty while adhering to 
civilized values and the reason there is a definition of 
torture here, we can let our courts decide what torture is 
under the 60 years of precedence in court decisions that we 
have under the Geneva Conventions. We don't need to invent new 
definitions that most people think will being less severe by 
claiming that Geneva is too vague. It is not vague. We have 60 
years of court precedence. We know what it means.
    That is why we have all these generals and admirals who 
were raised in the American tradition, who were taught at West 
Point and Annapolis and taught the codes of honor and also 
worried about the safety of our people, not those who are 
captured like Khalid Shaikh Mohammed, if he were still at 
large, because he won't abide by any convention. But there are 
others. It is for future wars, God forbid.
    The United States should hold itself to the same standards 
we claim to hold ourselves and did until a few years ago for 
the last 60 years. It is the standard we preached, we demanded 
in the Geneva Conventions, we got other countries to ratify, we 
ratified, and we tried other people for violating.
    What this is about is saying let's hair split on what 
torture is because we have engaged and we want to engage in 
things that most people would consider torture but we will 
define as not torture. That is not worthy of this country. I 
urge the adoption of this amendment.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Iowa, Mr. King, seek recognition?
    Mr. King. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. King. Thank you, Mr. Chairman. I would submit to this 
committee that we are here wrestling with this issue 
unnecessarily from the perspective of the Supreme Court, who 
injected themselves into this decision, even though the 
Detainee Treatment Act clearly specified that that appeals 
process would go exclusively to the U.S. District Court of 
Appeals, Washington, D.C., and in the precedence that had been 
established about the court were ignored by the Supreme Court. 
Now we are hearing trying to accommodate language to a Supreme 
Court that didn't have jurisdiction over this case in the first 
place. Additionally, to have this language that grants 
constitutional protection for enemy combatants, for non-
American citizens is a precedent that I am unwilling to follow, 
and furthermore I would submit that we are facing sleep 
deprivation here in this Congress at the shutdown of every 
single session, and that part of the discussion seems absurd to 
me.
    But I would yield the balance of my time to the gentleman 
from Virginia, Mr. Forbes.
    Mr. Forbes. Thank the gentleman for yielding. Mr. Chairman, 
up to a few minutes ago I was going to say that I was very 
impressed with the debate that we had had because this issue is 
so important. I think all the people have been so well-
intentioned. We haven't had the normal beating on the desk and 
the screaming and hyperbole and I wanted to compliment the 
gentleman from California, the gentleman from Arizona, the 
gentleman from Florida for all of their comments. All of them 
are well-intentioned.
    But we have had a lot of people talk about the fact that we 
put our troops at risk. That is the whole purpose and that is 
why we are discussing this, because our troops are at risk and 
our citizens are at risk. If anyone kids themselves and 
believes that the best way to protect our troops or to protect 
our citizens is something we decide in this committee today, I 
would suggest that the best way to do it is with good 
intelligence to protect those troops and protect our citizens. 
What we are talking about is balance. Both sides in this 
argument, the gentleman from California, the gentleman from 
Arizona, the gentleman from Florida, all have acknowledged none 
of our wording is infallible, none is perfect. What we are 
trying to do is strike a balance, a balance between protecting 
the safety of our troops and the safety of our citizens against 
an enemy that wants to kill them and destroy them and a balance 
with the rights of terrorists or at least alleged terrorists.
    If we have to err, if that wording can't be perfect and we 
can't strike that perfect balance, I would rather err on the 
side of protecting our citizens, and I believe this underlying 
bill does that.
    The final thing is one of the important things that we have 
is clarity. I think there is no question that the underlying 
piece of legislation gives this whole issue far more clarity 
than the amendment.
    Mr. Chairman, I hope we will defeat the amendment and pass 
the underlying legislation.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts, Mr. Meehan, seek recognition?
    Mr. Meehan. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Meehan. Mr. Chairman, the fundamental issue that we 
face is whether or not we are going to comply with the Geneva 
Convention. We can have a debate back and forth of whether 8 
hours, 4 hours or 3 hours are appropriate, but this idea that 
we can just throw away the Geneva Convention.
    One of my friends on the other side said how dare Colin 
Powell say that we are losing the moral high ground. He has a 
right to speak out when he sees the United States' credibility 
around the world threatened by the fact that we seem to act 
willy nilly when we want to take the Geneva Conventions that 
are so precious to international law and toss them aside. He 
has a right to speak out.
    John McCain has a right to speak out. He was a prisoner of 
war for 5 years. You know what John McCain says about torture, 
he says it doesn't work. It isn't effective. There is no 
evidence to suggest if we torture people we are going to get 
the information that is the accurate information. There is some 
evidence to suggest that we are going to get the information 
that they think we want to get but not that we are going to get 
accurate information. John McCain, when asked to give names, 
gave the offensive line for the Green Bay Packers. He gave it 
to them. It is not accurate information you necessarily get.
    We are here at this position because the administration put 
forward a military commissions, military tribunals procedure 
that were unconstitutional. I don't know how many more 
appointments to the Supreme Court he needs to get, but his 
Supreme Court said it was unconstitutional.
    Now you could say that on the other side the Supreme Court 
had no business in this. The Supreme Court does have business 
in this. And they said it was unconstitutional. And if this 
Congress drafts a piece of legislation that throws out the 
Geneva Conventions or that somehow says torture is okay, we are 
going to be back here afterwards because the Supreme Court 
again will say it is unconstitutional, go at it again.
    Now the amendment offered by the gentleman from California 
is a good amendment because it looks to the leadership of the 
Senate to try to devise a piece of legislation that is 
bipartisan and bicameral that we can get done. Keep in mind the 
Justice Department has reported that they have had convictions 
in the American system of over 260 terrorism cases. How many 
terrorists have we brought to justice under the military 
commissions, military tribunals after 5 years of 9/11? How many 
people have we brought to convictions and brought to justice 
and held accountable? None. Not a single one.
    We should have been drafting, this administration should 
have been drafting a legal constitutional military tribunal 
system years ago but instead we are here 5 years after 9/11 and 
we are having to debate about whether 8 hours, loud music. That 
has nothing to do with this. And when a great American like 
Colin Powell stands up and speaks out because he is worried 
about the United States of America having the moral high 
ground, I think we ought to listen. When we see people like 
Lindsay Graham, a JAG officer, stand up and say hold on here, 
we have to make sure we maintain our credibility around the 
world, I think we ought to listen.
    So let's see if we can't get together and draft something 
that is bipartisan, bicameral. But this idea--and by the way, 
our military spends a lot of time determining what is effective 
in terms of interrogation. There is a new Army Field Manual 
that outlines acceptable methods of interrogation. There are 15 
techniques. I would urge Members to look at it. There are 
psychological, emotional interrogation techniques that have 
been worked in the past. They also, as tough as they are, 
comply with the Geneva Convention. That is what we ought to be 
doing here. That is what our responsibility is. But make no 
mistake, we are here because the administration put in place an 
unconstitutional military tribunal system. If they had done it 
right the first time, maybe we would have 50 convictions and we 
would have eliminated more of al-Qaeda and maybe we would have 
been able to get the convictions that the Justice Department 
seems to have been able to get utilizing our own justice system 
here in the United States.
    I would like to yield to the gentlelady from California.
    Ms. Lofgren. Mr. Chairman, I thank the gentleman for 
yielding. I would just note that at the beginning of this whole 
process Congresswoman Harman and I drafted a bill to create a 
system of courts and told the White House that they lacked the 
authority; only Congress has the authority to establish such--
--
    Chairman Sensenbrenner. The gentleman's time has expired.
    For what purpose does the gentleman from Texas, Mr. 
Gohmert, seek recognition?
    Mr. Gohmert. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Gohmert. Thank you, Mr. Chairman. This is an excellent 
discussion, but the reason we are here is because this is what 
we do in America. We talk about truthfully what we are going to 
do and how we are going to treat people. I am glad to know that 
because I was a JAG officer you are going to put great faith 
and stock in everything I say as well. I appreciate that.
    But having been a prosecutor, a defense attorney, served in 
JAG, I can also tell you I was stationed at Fort Benning at a 
time when the Judge Advocate General of the Army didn't even 
know where he was. He was talking about laws that he had never 
read and didn't have a clue about. So forgive me if I don't put 
quite the sacred nature around some of their comments that 
others do.
    In any event, when we talk about--we have people in the 
Senate and in here talk about the concern about subjecting our 
troops to inhumane treatment. That is all of our concerns on 
both sides of the aisle, I know that. But the fact is in 1949 
you know who signed onto the Geneva Convention wholeheartedly? 
Korea. You know who didn't care what it said? Korea. You know 
else who signed on? Vietnam. You know else who just completely 
ignored the Geneva Convention? Vietnam. Because they don't care 
about signing things and ignoring them, just like the people 
that are at war with us right now. They don't care what they 
sign and turn around and say you violated, and this is on the 
Internet, been in the news nationally, while they can stick a 
knife in one of our detainee's throats while he is alive and 
while he is screaming and brutally cut it off. We are beyond 
talking about them not treating our troops inhumanely or people 
they capture inhumanely. It is what they do. It is how we are 
going to go about preserving this civilization and the rights 
we have.
    As someone who had to issue opinions on 5th and 6th 
constitutional protections, I appreciate those things, but I am 
telling you when you have Federal judges who are out there who 
have previously ruled it is a constitutionally protected right 
under the Constitution written in 1787 that detainees or people 
in jail have to have electric typewriters, it is a 
constitutional right that they have to have a television or 
they are being mistreated, then it is something we have to 
really look at closely.
    How many of those rights are going to be applied to people 
who want to destroy our way of life, in areas where it is just 
impractical? So these are things we need to realistically look 
at.
    We also, the sacredness of the Supreme Court; I was sitting 
there and heard a Supreme Court Justice during the debate on 10 
Commandments say I went online to look for additional 
information about the 17 monuments you have around your State 
Capitol and I really didn't find as much as I was hoping; and I 
was going oh, my goodness, any trial judge knows you don't go 
outside the record to do your own research. And then we read 
their opinions that cite the evolving international opinion as 
something to consider and the changing will of the American 
people. That is going outside the record. That is making them 
their own pollsters, which makes them witnesses, which should 
make them subject to cross-examination to keep from violating 
the 5th amendment, but they don't seem to grasp that all the 
time.
    So again pardon me if I don't apply the sacred nature to 
the Supreme Court's pronouncements that others do, but I think 
it is also great we have these kind of discussions.
    Now Common Article 3 for 60 years supposedly it only 
applied in cases of civil war, is what we signed onto, until 
the Supreme Court of our Nation decided to apply it even 
further as something that this Nation had not signed onto.
    So we are here and having this discussion because we 
believe in openly and honestly discussing how we treat others, 
unlike many of the signatories of the Geneva Convention. That 
is why I love being an American, but let's be realistic. They 
are already treating our troops inhumanely, as they did Senator 
McCain, and this is something that we should vote for, and so I 
think the world of my friends, both of them, and I appreciate 
their efforts in this regard but I would submit opposition is 
appropriate here.
    Mr. Issa. Would the gentleman yield?
    Chairman Sensenbrenner. The gentleman's time has expired.
    For what purpose does the gentleman from New York, Mr. 
Weiner, seek recognition?
    Mr. Weiner. Mr. Chairman, I agree with my colleagues----
    Chairman Sensenbrenner. Would you like to move to strike 
the last word or just talk?
    Mr. Weiner. Those are two options I have? I move to strike 
the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes to talk.
    Mr. Weiner. Mr. Chairman, I agree with those that have 
articulated their opposition to the Schiff amendment. This is 
not going to be a panacea to stop tyrannical things by our 
opponents. This is not going to be something that is going to 
make greater humanity on the part of inhumane people.
    But this is an articulation of what our values are. This is 
an articulation of what we do to honor the 147,000 American men 
and women who are fighting for Iraq and Afghanistan in other 
places. This is how we try to protect them. And I think if 
there is one place that we have found in this Congress and in 
this country bipartisan agreement, it is we listen to the 
generals to hear what they have to say.
    We listen to those who are truly experts in these matters 
to hear what they have to say. No one is arguing that if you 
pass the Flake-Schiff amendment that suddenly you are going to 
stop running up against tyrants who pay no attention to the 
rule of law. This can't be where we vote on whether we approve 
the methods of terrorists. This is where we decide who we are 
going to be as a country. And I think what we found with the 
Schiff amendment, with the Flake amendment with our Republican 
and Democratic colleagues in the Senate, with the generals who 
have spoken out on this issue, is that this is the way we do 
what we have always done in this country is to find a different 
paradigm. And it is the paradigm on who we are, who we think 
everyone else should be, and we try to lead that way.
    We do righteous things around the world. One of the things 
we do is put tens, and in this case, hundreds of thousands of 
troops in harm's way. We honor them with this debate and we 
honor them by passing the Schiff-Flake amendment because we say 
these are what our ideals are. And I yield the balance of my 
time to Mr. Schiff.
    Mr. Schiff. I thank the gentleman for yielding. And I think 
what it all comes down to, and I know that many of my 
colleagues on the other side are wrestling with this issue, and 
there are actually other parts of this bill that we don't have 
jurisdiction over that I think are even a tougher call on both 
sides of the aisle. But I think what it all comes down to is 
when an American soldier is captured, do we, are we prepared to 
say that any treatment of that soldier that is cruel or 
inhumane or degrading, we cannot complain of, because we have 
defined cruelty, inhuman and degrading treatment out of the 
Geneva Convention for our purposes. Are we prepared to say that 
any other country is free to similarly define out cruel and 
inhuman treatment to the ragged edge of torture? Are we 
prepared to countenance that mistreatment of our own troops?
    The Navy JAG Rear Admiral Bruce McDonald testified earlier 
this month on this issue when he said, I go back to the 
reciprocity issue that we raised earlier, that I would be very 
concerned about other nations looking in on the United States 
and making a determination that if it is good enough for the 
United States, it is good enough for us, and perhaps doing a 
lot of damage and harm internationally if one of our servicemen 
or women were taken and held as a detainee.
    But I think most eloquently on this is Senator McCain, who 
speaks with a rare moral authority given his personal history, 
who said earlier this year, the protection our personnel 
require is not limited to freedom from lawsuits and unjust 
criminal prosecutions. They also need and deserve the undiluted 
protections offered since 1949 by the Geneva Conventions.
    For this reason, I oppose unilaterally re-interpreting in 
law Geneva Common Article 3. Weakening the Geneva protections 
is not only unnecessary, but would set an example to other 
countries with less respect for human rights that they could 
issue their own legislative reinterpretations. This puts our 
military personnel and others directly at risk in this and 
future wars. I don't think anyone could say it better than 
that. More recently, Senator McCain said, this is a matter of 
conscience, an American conscience. Are we going to be like the 
enemy or are we going to be like the United States of America? 
We should be very aware that if we engage in these activities, 
the world will condemn us and we will lose the high ground. And 
then what happens to Americans who are captured in future wars? 
This is, I think, the essential nature of the issue we have 
before us. On the one hand, we have a concern about our own 
personnel who conduct interrogations and what liability they 
may face, and there is a desire to make them immune by saying 
that anything short of torture, they are protected from.
    On the other hand, we have the men and women in uniform who 
are out there in the field right now, 140,000 of them in Iraq, 
many more in Afghanistan and other places around the world. And 
we have to ask ourselves----
    Chairman Sensenbrenner. The time of the gentleman from New 
York has expired. We have one 15-minute vote on the floor. 
Again, we are going to complete the first two bills on the 
agenda today, come hell or high water or staying here until 
midnight. So without objection, the committee is recessed for 
the vote. And members are instructed to come back immediately 
after the vote.
    [Recess.]
    Chairman Sensenbrenner. The committee will be in order. A 
working quorum is present. When the committee recessed for the 
votes--can we keep the conversation in the back of the room 
down to a dull roar, please. When the committee recessed for 
votes, pending was a motion by the Chair to report the Armed 
Services committee bill favorably. The bill was, or the Armed 
Services committee version, was considered as read, open for 
amendment at any point. And the gentleman from California, Mr. 
Schiff, had offered an amendment which was being debated.
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California seek recognition?
    Ms. Lofgren. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized 5 
minutes.
    Ms. Lofgren. Mr. Chairman, I want to express my 
appreciation to Mr. Flake and Mr. Schiff for offering this 
bipartisan amendment to really preserve a level of civilization 
that has served us well for half a century. As I mentioned, 
when my colleague from Massachusetts yielded to me for a few 
minutes, when this whole thing began, Congresswoman Harman and 
I introduced a bill and had discussions with the White House 
pointing out that the Executive Branch does not have the 
authority to do what they have done and, in fact, it is only 
the Congress, in Article 1, Section 8, that has the power to 
constitute tribunals inferior to the Supreme Court, to grant 
letters of mark and reprisal, to make rules concerning captures 
on land and water, and to make the rules for the government in 
regulation of the land and Naval forces. They said they were 
fine, that we would be happy with what they did. And the result 
is a mess.
    I think that it is important to just keep a few things in 
mind. First, the Geneva Convention is not confusing. It has 
served the United States and the world community well for over 
half a century and, to pretend at this point that there is 
something vague or unusual or confusing about it is simply 
wrong.
    I think it is also worth pointing out that we, our Nation, 
has faced grave challenges and dangers throughout our history, 
and throughout the Cold War, which arguably was a much greater 
threat to the survival of the United States than the current 
situation we face. The Geneva Convention was fully in play, and 
something that we never sought to back away from.
    I finally want to say that, as have others on the 
committee, that it is important to listen to General Powell, to 
the generals, to the experts in military affairs and their 
concern that if we attempt to weasel out of the Geneva 
Convention we are opening the door to mistreatment of our own 
men and women in the Armed Forces. Several members have gone on 
about what, in fact, has occurred in various facilities. I, for 
one, will say I don't know what has gone on in various 
facilities around the world. I would caution members, however, 
that we are likely to soon find out, because there are 
individuals who have been held, apparently in secret facilities 
by the CIA, who have now been sent back to Guantanamo.
    Soon the Red Cross will have access to those individuals 
and the world will learn what happened to them in the last 
several years. I don't know, and my guess is you don't know 
either. It is possible we will not be proud of what occurred.
    I finally want to just give a mention to the concept that 
the courts have no business in looking at this situation. In 
1803, in the case of Marbury vs. Madison basically established 
the three branches of government. The President can't do only 
what he wants. The Congress can't do only what it wants, and 
the courts can't do only what they want. We work as a check and 
balance against each other.
    And to even suggest that the Court didn't have jurisdiction 
to do what it did is simply wrong and wrongheaded. And with 
that, I would yield to Mr. Van Hollen, if he would like the 
balance of my time.
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired. For what purpose does the gentlewoman from Maryland 
seek recognition?
    Mr. Van Hollen. I move to strike the last word.
    Chairman Sensenbrenner.  The gentleman is recognized for 5 
minutes.
    Mr. Van Hollen. Thank you, Mr. Chairman. I want to commend 
Mr. Schiff and Mr. Flake for offering this important amendment, 
and to Senators McCain, Warner, Graham and others for pursuing 
a similar path on the Senate side.
    We are in the process of defining a particular provision of 
the bill, but I think in a larger sense, we are defining who we 
are as a country, who we are as a people, and I do think this 
is a defining moment for the nation. And I think it is 
unfortunate we haven't had hearings to discuss this very 
important issue before we make these very important decisions. 
I think what we are doing is pretty clear.
    We are setting the standard for what we think is the kind 
of conduct and treatment that should apply to our own troops. 
Senator McCain and others have been clear on that. Secretary 
Powell has been clear on that. No one is so naive to think that 
all our enemies are going to abide by the standards that we 
set. But we are an example to the world. We are respected for 
the power of our military, but I hope we will continue to be 
respected for the power of the example we set. And how can we 
stand on firm ground in condemning the abuses that may happen 
to American soldiers overseas, if those abuses are being 
applied to others that are detained by the United States?
    So it is not a question about whether everybody's going to 
apply this standard, but we want to set the standard for the 
world. It has been set in the Geneva Convention. We want to 
preserve that standard, and we want to be on firm ground when 
we ask others to abide by those examples, because if we don't 
hold true to those goals, we can't expect others to follow them 
as well.
    Now, the Army Manual has been very clear. They have set 
forth some clear guidelines and in the guidelines they have set 
forth, they will no longer allow certain practices that went on 
at Guantanamo. But what the President seeks to do in the 
legislation he has submitted is not provide clearer standards. 
He wants to create greater ambiguity for the CIA, to allow the 
CIA to essentially undergo, to use certain practices that do 
not apply in the Army Manual. He wants to create that 
ambiguity. And I think that that is a very dangerous path to 
head down.
    It was suggested that Colin Powell, Secretary Powell, 
former Secretary Powell, in his letter, was somehow applying 
some kind of moral equivalents. I think that is a gross 
perversion of what General Powell set forth. I think what he 
wanted to make clear is the United States has always stood for 
human rights, has always stood for the kind of standards we 
hope will be followed through the Geneva Convention, and that 
we need to make clear that we continue to accept that example.
    And finally, I think Secretary Powell should also know the 
limits of the quality of information that can be obtained 
through practices like torture. You may recall that when he was 
up at the U.N. delivering his speech before going to war, 
laying out the argument that the United States was making, one 
of the arguments he made, and we all heard it, it was there 
were these mobile bioweapons labs in Iraq.
    Well, guess what? It turned out he was wrong. The CIA had 
interrogated people and they had not used abusive practices at 
that time and they hadn't found anything with respect to the 
weapons in Iraq. Those individuals were then turned over to the 
Egyptians, who did engage torture, and, in fact, the 
information that Colin Powell used at the U.N. with respect to 
the mobile weapons labs was information obtained through the 
Egyptians as a result of torture, false information.
    The CIA has later retracted that. We have a Senate Select 
Committee on Intelligence that has refuted that. That 
information that we, as a Nation, used to make critical 
decisions about whether or not to go to war was false 
information. That information was obtained through torture. So 
when Secretary Powell, former head of the Joint Chiefs of 
Staff, and other military leaders, talk about this issue, they 
are not talking only from the moral high ground which is 
critical. They are also talking from the pragmatic military 
perspective and trying to get the best results for our 
military.
    So Mr. Chairman, I would urge this committee to adopt the 
substitute amendment that is being proposed.
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner.  For what purpose does the 
gentlewoman from Texas, Ms. Jackson-Lee seek recognition?
    Ms. Jackson Lee. To strike the requisite number of words.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. I thank the chairman. This is reminiscent 
of the urgency and the terror that we experienced after 9/11. 
This committee did its job. It frankly listened to the voices 
of reason and the voices of security. You can do both. You can 
master the Constitution and provide the constitutional 
oversight, and you can also protect America. But I use that 
framework because this committee, in a bipartisan manner, 
passed the PATRIOT Act, a working document. But politics became 
the call of the day. And out of that bipartisan came a PATRIOT 
bill that stomped on the Constitution. No one can say that we 
have gained more leverage because of the PATRIOT Act that has 
its failings.
    We are here with this particular legislation by accident. 
We were not supposed to have the opportunity for oversight. 
This was supposed to be a presidential action with no lights 
and no oversight. But because there were brave Americans, 
Members of Congress on both sides of the aisles, in fact, a POW 
who had spent any number of years as a prisoner of war, for 
many of us in our districts, we just recently commemorated our 
prisoners of war and missing in action of the United States 
military to be reminded of their plight, but because of that 
kind of sensitivity to the importance of Geneva Convention, we 
are now here today.
    But unfortunately, the light has been turned on, but the 
arrogance is still present. We will give Congress the 
opportunity to review it, but we will put forward the same kind 
of leadership and the same kind of language and it really won't 
matter. We are here because we have the right to be here 
because Article I, Section 8 claims, clause 18, the necessary 
and proper clause, authorizes Congress regulate authorities 
entrusted by the Constitution to any branch of government or 
officer. The President is that. The executive is that.
    And what we are doing now in terms of the violation of the 
Geneva Convention is being corrected by the gentleman from 
California and the gentleman from Arizona's amendment of which 
I rise to support because it is the right thing to do.
    I wonder whether the Pakistan informant that provided the 
underlying basis of the British being able to solve the liquid 
dynamite case was tortured. We know that the way to secure 
America is intelligence and information. Many of us went to 
Guantanamo Bay in the early stages. I had three visits. And we 
were commended by the military that everything was okay. In 
fact, we were allowed to see interrogation, and we saw the ice 
cream interrogation. But now we know there are failures there. 
And even as we seek to secure America, I can venture to say to 
you that the military have answered our question, does torture 
secure America or does it jeopardize the lives of young men and 
women who may be sent to places that don't even begin with I 
and A, Iraq and Afghanistan. Their work is international. Their 
intelligence work is international. Their ability to be 
subjected to torture is international. It could be in the far 
hinterlands of any nation, including our friends, like the 
former Soviet Union.
    And so, I can't imagine why we can't reject the politics of 
fear and terror and do the right thing for the American people, 
which is to pass this amendment, recognizing that we can, in 
fact, provide the necessary intelligence. And all of us will 
agree that preventive actions are better than the offensive, or 
having to defend. And therefore, knowing information ahead of 
time is vital.
    I simply commend my colleagues, that inherent presidential 
powers to gather foreign intelligence without oversight may 
sound attractive in the backdrop of fear and the fear of 
terrorism. But I can assure you that it does not commend itself 
to the very words that we said after 9/11, let the terrorists 
not turn us into despots and violators of constitutional 
rights, but let us handle our business in the right way. I'd 
ask my colleagues to support the existing amendment. I yield 
back.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California, Mr. Berman, seek recognition?
    Mr. Berman. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Berman. I would just like to, this point may have been 
made, but if it, was I didn't pick it up. The consequence of 
this bill is that it weakens our ability to prosecute those who 
commit war crimes against U.S. persons and U.S. military. And 
the irony of it is that this is a law that was pushed by this 
majority, and most particularly by the chairman of the Armed 
Services Committee back in 1996. I am going to read from an 
article by Mark Benjamin. Duncan Hunter was one of the 15 
Republicans in the House who cosponsored the original 
legislation that is the War Crimes Act. And he also cosponsored 
an expansion of the Act covering even more potential 
transgressors that passed the very next year. Similarly, in the 
Senate, the man who shepherded the original bill through that 
body in 1996, Oklahoma Republican James Inhofe is now a 
cosponsor of the bill that will gut it. Back in 1996, a vote 
for the War Crimes Act, which passed both Houses with 
overwhelming support, could have been considered a vote for the 
U.S. to follow the Geneva Conventions to the letter.
    When a House Judiciary Committee panel first considered the 
War Crimes Act in June 1996, John McNeil, then a senior deputy 
counsel of the Department of Defense testified that the bill 
was an opportunity for Members of Congress to endorse the idea 
that the United States, as a political matter, should be seen 
as fully in conformity with its international obligations in 
this very sensitive area. But at the time, Republicans were 
really focused on making sure U.S. courts would be able to 
prosecute war crimes committed against American citizens, not 
by them.
    Inhofe took to the Senate Floor that August to say the War 
Crimes Act would protect our young troops in the event a crime 
is perpetrated against them. It was unthinkable back then that 
it might be the U.S. that was systematically violating the 
Geneva Conventions. In other words, without the Schiff-Flake 
amendment, we are faced with a bill which undercuts the law we 
passed in 1996 to establish jurisdiction over people who 
committed war crimes against American citizens, against 
American troops. By definition, weakening that law through this 
base bill, without the Schiff Flake amendments, weakens the law 
that protects American citizens and American personnel against 
war crimes committed by others. I don't want to be a part of 
that.
    Chairman Sensenbrenner. Does the gentleman yield back? The 
gentlewoman from California, Ms. Sanchez.
    Ms. Linda Sanchez. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Linda Sanchez. And I would yield that time to my 
colleague from California, Mr. Schiff.
    Mr. Schiff. Mr. Chairman, I won't consume the time. But I 
did want to just finish the thought I started before we broke 
for votes. And I thank the gentleman from California for 
shedding more light on the effect of the base bill. Plainly, 
the goal in the base bill is to protect, not those that commit 
crimes against our citizens and our soldiers, although that is 
an important feature of the law we want to preserve, but it is 
to protect American interrogators. And while I share the desire 
to protect American interrogators, I also have the desire to 
protect our troops. And it seems to me the best way to do both, 
to protect our troops and to protect the interrogators, is to 
have clearer lines of what is permissible. But not drawing a 
bright line that says anything to the ragged edge of torture is 
acceptable. That, I think, puts our troops too much at risk.
    By using the jurisprudence of the 5th, 8th and 14th 
amendments, I think we do give protection to our interrogators, 
at the same time, getting to the point Mr. Berman made, we 
protect our troops from whoever would commit acts of torture or 
anything approaching torture. And I think it is the best 
balance we can strike. There isn't going to be a perfect 
answer. But to preserve the ability to go after those that 
commit war crimes against our troops, as Mr. Berman outlined, 
at the same time, to give a measure of protection to those that 
work in our intelligence and other agencies to gather 
information, I think what Senators McCain and Warner and Graham 
have set out is the best approach, and I would urge my 
colleagues to support it.
    Mr. Lungren. Would the gentleman yield on that?
    Mr. Schiff. Yes.
    Mr. Lungren.  Here is my question. This is the conundrum I 
have. And I have discussed this with Senator McCain, and I have 
never resolved it in my own mind, because he has said that we 
ought not to use torture, or as you say, come to the ragged 
edges of torture. But then, when posed with the question, what 
if you do have an individual who has information that could 
save 3,000, 30,000, 300,000 American lives, and his response 
basically is we do what is necessary. And when I hear that, it 
suggests that we believe that there are certain exigent 
circumstances which would allow us to do other things we 
wouldn't otherwise allow in interrogation when the stakes are 
so high.
    And my problem is if that is true, and maybe the gentleman 
doesn't agree with that, but if that is true, isn't it our 
obligation to try and refine what that is and if there are 
exceptions, to articulate what the requirements would be, 
rather than say that we will depend on those interrogators to 
get us the information? Even given the fact that in some cases, 
it may work and in some cases it may not work. That is the 
problem I have got in this situation, because I can't honestly 
answer that question when a constituent asks me that with the 
language that we have; frankly, either the language present in 
the bill or in the amendment.
    Mr. Schiff. Reclaiming my time. You know, the gentleman 
asks a legitimate question and it is a tough question and I am 
not sure any of us have the answer. I don't know that that 
question, though, is answered by the base bill or the 
amendment, because if someone knew the whereabouts of an atomic 
bomb that was about to go off in an American city, it wouldn't 
be a question of torture or cruel and inhumane treatment. It 
probably would be a question of torture or not torture.
    But this goes to the point that I think Mr. Van Hollen and 
others have made, which is there is no guarantee that that 
produces a more accurate outcome than by using other 
interrogation techniques, which are fully permissible under 
Geneva and under our Constitution. So I am not sure what 
happens in those circumstances. I would imagine that if 
someone, you know, one thing that has been speculated upon is 
that the President always has the power to pardon as backstop 
and a fail-safe mechanism. But we don't write a system based on 
who the President would pardon. We write a system based on the 
standards that we would want others to apply to our troops. And 
I think what McCain, Warner and Graham have set out is a 
standard that we can live with and our troops are protected by. 
And with that, Mr. Chairman, I yield back.
    Chairman Sensenbrenner. Gentlewoman from California yield 
back?
    Ms. Linda Sanchez. I yield.
    Chairman Sensenbrenner. For what purpose does the other 
gentlewoman from California, Ms. Waters, seek recognition?
    Ms. Waters. Thank you very much Mr. Chairman. I move to 
strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. I would like to start by entering into the 
record a letter to Senator McCain from General Colin Powell, 
and I would like to point out that this is a letter that does 
not support what is being attempted. The letter basically says, 
I just returned to town and learned about the debate taking 
place in Congress to redefine Common Article 3 of the Geneva 
Convention.
    Chairman Sensenbrenner. Without objection, the letter will 
be entered into the record.
    [The information follows:]
    
    
    Ms. Waters. Thank you. And I would like to bring to the 
attention of the committee information that I have gathered 
talking with a number of experts and individuals in academia, 
who are closely watching what is happening. It has been 
identified that there are many hidden problems with this bill 
and they raise serious potential difficulties.
    For example, the integral paragraph at the very beginning 
headed Section 2, construction of presidential authority, 
suggests that the President has unfettered authority not to be 
limited in any way by the Uniform Code of Military Justice to 
establish military commissions. This is not consistent with the 
underlying principle of the UCMJ, that all military tribunals 
must apply the basic standards that are set out in the UCMJ. It 
is understood that the President is looking for congressional 
authority to escape that requirement.
    However, an example of why this should not take place and 
why the President and the Secretary of Defense should not be 
given the power and authority under section 948 to decide, for 
example, who is an enemy combatant. Under the Geneva 
Conventions, that decision has to be made by a competent or 
regularly constituted tribunal. The whole point of the Supreme 
Court's Hamden decision was that this should not be left to the 
President, and doing so violates the Geneva Conventions, as 
well as the UCMJ. This is a back door way, along with the 
Common Article 3 provision to eliminate Geneva Convention 
protections.
    And the question is raised, do we want the President of 
North Korea or the President of Iran to have the power to 
determine whether U.S. captives are unlawful enemy combatants 
and therefore entitled to far reduced protections? I think it 
has been said here today already. I just wanted to reiterate 
with these examples that we should be very concerned about this 
attempt by the President of the United States to undermine the 
Uniform Code of Military Justice.
    Mr. Berman. Will the gentlelady yield?
    Ms. Waters. Yes I will yield to the gentleman from 
California.
    Mr. Berman. I would just like to take what little time the 
gentlelady has remaining to deal with the question Mr. Lungren 
posed because I have been thinking about it. It is a good 
question. And I see three problems with trying to 
institutionalize legislatively what I think all of us in our 
gut sort of want to see protected somehow. One is if you 
institutionalize it, it becomes routine. Every potential 
interogee, if that is the right word, person you are 
questioning, becomes the person who could have that information 
that could save lives.
    Secondly, defining it to go to the ragged edge of torture, 
but not to torture, why there? Why not an exception to the law 
on torture? And third, and this is why the irony of what I, 
Duncan Hunter's, no other way, but flip flop on this issue is 
and every enemy of ours who wants to do us harm, but claims 
that martyrdom or some cause was so great that this justified 
will now have an institutionalized defense against our 
prosecution that we have provided in order to protect against 
the situation.
    That is why I would suggest Mr. Schiff's response, the 
notion of absorbing the liability or the use of the pardon is a 
far better approach towards dealing with that exceptional 
situation than trying to institutionalize it and codify it in a 
law that will either be misused, will be abused, in some cases, 
by our folks for, you know, for good reasons, because they had 
a sincere belief there might be something there, and more 
importantly, will be used as a defense against war crimes 
prosecutions by enemies of ours.
    Chairman Sensenbrenner. The gentlewoman's time has expired. 
For what purpose does the gentleman from Virginia Mr. Scott 
seek recognition?
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner.  The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, the problem with considering the 
bill, this bill, the underlying bill the way we are doing it, 
it just makes it look like we are going to rubber-stamp 
whatever is put before us. We have had no hearings on this very 
complicated bill. There has been no subcommittee mark. The 
gentleman from California has suggested that we are using 
hyperbole. Well, we don't have anything else. We don't have any 
evidence. What else can we use? We have heard about whether or 
not you need 8 hours of sleep, TVs and typewriters and that 
kind of stuff.
    Let's get somebody here before us that can explain exactly 
what is going on. We don't know what they are doing now. We 
know some of what has leaked out. But we have had public 
statements to the effect that the administration might have to 
stop what it is doing now if they don't get new legislation.
    But that is an interesting comment. We ought to have 
somebody up here to let us know whether they are breaking the 
law as it is now, and what are we going to be approving if we 
pass this legislation. We do know that they have not denied 
involvement with the torture of an innocent Canadian, as my 
friend from New York has indicated, they haven't denied 
involvement with torture of an innocent Canadian. Do they need 
to torture innocent people? Is that part of the process?
    We haven't had any requests from the military that they 
need this additional torture power. Last year's bill we passed 
with overwhelming bipartisan majorities prohibiting torture. 
This amendment just allows us to join Senators Warner and 
McCain and Graham over in the Senate, and General Powell, who 
have had enough of what is going on now because they recognize 
that what we do to others will set an international standard 
and that standard will be applied to us.
    So we need to conform our understanding of the Geneva 
Convention to the rest of the world and defeat the underlying 
bill, at least adopt this amendment. I yield back.
    Mr. Lungren.  Will the gentleman yield please?
    Mr. Scott. I yield to the gentleman from California.
    Mr. Lungren.  Okay. And I don't want to overstate this, but 
this is a very serious question, because Alan Dershowitz has 
suggested that it is better for us, as policymakers, to 
establish the legal parameters under which certain 
interrogation techniques could be used where we otherwise would 
not allow it. I understand the gentleman from California, Mr. 
Schiff suggesting the President has the power of pardon. I 
think Alan Dershowitz suggests, and I know some will say well 
you don't quote Alan Dershowitz very often, and I know that is 
true. I will concede that on the record. But he suggests that I 
believe that perhaps you could set up a mechanism where certain 
exigent circumstances, as determined by a President in an 
affirmative finding, would require it.
    Now I know there is objection to that because you say it 
might be misused. But that would require the President to do it 
before the fact rather than after the fact, which would be the 
situation of a pardon. And the only reason I voice this is I am 
absolutely concerned about what we do to the young men and 
women in uniform, either our Armed Forces or CIA or whatever, 
if we come upon a circumstance in which we have in the balance 
the lives of 3,000 Americans versus using different techniques. 
And I just raise that because I think we need to, at some point 
in time, address it.
    Mr. Scott. Reclaiming my time. And I would say to the 
gentleman that we are weren't waiting for the President to do 
the pardoning. We are doing it in the bill because there is a 
retroactive provision in the bill which retroactively applies 
the new definition to whatever has been going on for the last 
couple of years. I yield to the gentleman from North Carolina.
    Mr. Watt. I thank the gentleman for yielding, and I haven't 
claimed my own time, because I don't have a lot to say about 
this. It does strike me that this is yet another example of 
trying to establish trust in a world that is more and more 
looking at us and saying as the United States, it is do as we 
say rather than do as we do.
    And I guess, the only adage I can add is the biblical 
adage, that we should be trying, in this case, to do unto 
others as we would have do them do unto us. So I just think 
anything that hints of setting a different standard for the 
United States in a global world, than we expect other people to 
use and apply is going to be misinterpreted and we need to be 
very careful. And I appreciate the gentleman yielding.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Franks. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner.  The gentleman from Arizona is 
recognized for 5 minutes.
    Mr. Franks. Thank you, Mr. Chairman. Mr. Chairman, I heard 
the comments a few moments ago from one of the minority party's 
representatives here. She said that preventive actions are 
better than defensive ones. And I certainly believe that that 
is true. And really, in a great sense, that is why we are all 
here. That is why the President is seeking to see this 
legislation pass is because he seeks to prevent great tragedy 
in this country before it occurs and rather than taking the 
defensive action afterwards.
    But you see, he has a significant challenge because his 
greater tactical challenge is that he has to find terrorists 
and bring them to justice before they gain weapons of mass 
destruction or before they are able to supercharge their 
efforts ideologically all over the world. The terrorists 
greatest tactical challenge is to stay hidden long enough to do 
those two things, to gain some type of either nuclear or some 
other type of weapon of mass destruction long enough to do us 
great, great damage.
    And the fact is that as we debate this, this notion that 
these terrorists are covered under our Constitution, would it 
not then follow that our special forces on the field and the 
battle would have to read them their Miranda Rights? I mean, if 
terrorists are indeed covered under our Constitution, then I 
have to say that we have completely missed, the nomenclature is 
completely wrong to begin with. These are unlawful combatants 
that have no uniform, and that hide between and behind innocent 
men, women and children, in order to effect a tragedy against 
civilization that could be unknowable to this at this point.
    The President has to find a way to protect this country, 
maintaining the moral high ground of this Nation and still 
defeating the terrorists. I suggest that he has the moral high 
ground because he is trying to defeat terrorists and stop them 
from killing innocent men, women and children in the United 
States of America. That is the purpose for this legislation.
    The Hunter language does great effort to try to find a way 
to afford those detainees the kinds of rights that can be 
afforded without sacrificing the national security of the 
United States of America. And I would suggest that sometimes we 
just need to get a hold of ourselves a little bit. And that 
notion of torture that somehow we are practicing torture, it is 
against the law for us to torture detainees. If you are 
convicted of torturing detainees, it is a 20-year prison 
sentence. If you kill a detainee in the process of torture, 
punishable by death. So this notion that we are trying to 
torture detainees is outrageous. We need to help the President 
defend America. And he has the high ground and the real battle 
here is intelligence.
    If we knew where every terrorist was today, in a month this 
war would be over. But we don't. And unfortunately, some of 
those in Congress seem hell-bent on stopping the President from 
being able to gain the necessary intelligence to fight this 
war. And I would suggest to you that is the crucible. Some 
don't want him to listen to them on the telephone. He has the 
right to hunt them down, ferret them out and kill them but not 
to listen to them on the telephone.
    Some of the opposition doesn't want him to follow the 
money. Some of them don't want him to interrogate detainees and 
in some way that might be aggressive. I am astonished that 
somehow we miss the focus here that intelligence is what it is 
all about in this war and if we don't win on that front, then 
we will lose on the greater front.
    So Mr. Chairman, I just hope that we can defeat this 
substitute motion and that we can get back to the base bill. 
And I yield back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from California, Mr. Schiff. Those in 
favor will say aye. Those opposed, no. The noes appear to have 
it.
    Mr. Schiff. Mr. Chairman, on that I request a recorded 
vote.
    Chairman Sensenbrenner. A recorded vote is ordered. Those 
in favor of the Schiff amendment will, as your names are 
called, answer aye. Those opposed, no. The clerk will call the 
roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk.Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble votes no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith votes no.
    Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly votes no.
    Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte votes no.
    The Clerk. Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot votes no.
    Mr. Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren votes no.
    Mr. Jenkins.
    [No response.]
    The Clerk. Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon votes no.
    Mr. Bachus.
    [No response.]
    The Clerk. Mr. Inglis.
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis votes aye.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler votes no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green votes no.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. No.
    The Clerk. Mr. Issa votes no.
    Mr. Flake.
    Mr. Flake. Aye.
    The Clerk. Mr. Flake votes aye.
    Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence votes no.
    Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes votes no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King votes no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney votes no.
    Mr. Franks.
    Mr. Franks. No.
    The Clerk. Mr. Franks votes no.
    Mr. Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert votes no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers votes aye.
    Mr. Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman votes aye.
    Mr. Boucher.
    Mr. Boucher. Aye.
    The Clerk. Mr. Boucher votes aye.
    Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler votes aye.
    Mr. Scott. 
    Mr. Scott. Aye.
    The Clerk. Mr. Scott votes aye.
    Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt votes aye.
    Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren votes aye.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee votes aye.
    Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters votes aye.
    Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan votes aye.
    Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    [No response.]
    The Clerk. Mr. Weiner.
    [No response.]
    The Clerk. Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff votes aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez votes aye.
    Mr. Van Hollen.
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen votes aye.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz votes aye.
    Mr. Chairman.
    Chairman Sensenbrenner. No. Members in the Chamber who wish 
to cast or change their votes? The gentleman from Tennessee, 
Mr. Jenkins.
    The Clerk. Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins votes no.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes? If not the clerk will report.
    Ms. Jackson Lee. Mr. Chairman, how am I recorded?
    Chairman Sensenbrenner. How is the gentlewoman from Texas 
recorded?
    The Clerk. Mr. Chairman, Ms. Jackson Lee is recorded as 
aye.
    Chairman Sensenbrenner. Is that correct?
    Ms. Jackson Lee. Yes, that is correct. Thank you very much, 
Mr. Chairman.
    Chairman Sensenbrenner. The clerk will report.
    Gentleman from Massachusetts, Mr. Delahunt.
    The Clerk. Mr. Delahunt, aye.
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt votes aye.
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. I was wondering how I am recorded.
    The Clerk. Mr. Chairman, Mr. Nadler is recorded as aye.
    The Chairman. Okay. Clerk will report.
    Ms. Waters. Mr. Chairman.
    Chairman Sensenbrenner. Does the democratic side--gentleman 
from New York, Mr. Weiner.
    Mr. Weiner. Mr. Chairman, how am I recorded?
    The Clerk. Mr. Chairman, Mr. Weiner is not recorded.
    Mr. Weiner. I am an aye, please.
    The Clerk. Mr. Weiner votes aye.
    Chairman Sensenbrenner. Anybody else need to come in? The 
clerk will try again to report.
    The Clerk. Mr. Chairman, there are 17 ayes and 18 nays.
    Chairman Sensenbrenner. Then the amendment is not agreed 
to. Are there further amendments?
    Mr. Meehan. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The gentleman from Massachusetts 
has an amendment at the desk which the Clerk will report.
    The Clerk. Amendment to H.R. 6504, offered by Mr. Meehan of 
Massachusetts.
    [The amendment follows:]
    
    
    Mr. Smith. Mr. Chairman, I reserve a point of order.
    Chairman Sensenbrenner. A point of order is reserved by the 
gentleman from Texas.
    The Clerk. Strike section 5 relating to judicial review.
    The Chairman. The gentleman from Massachusetts is 
recognized for 5 minutes.
    Mr. Meehan. Mr. Chairman, my amendment is simple. It 
strikes section 5 and protects not only the vital right of 
habeas court reporters, but also preserves the jurisdiction of 
our courts. Section 5 strips the Federal courts of jurisdiction 
over habeas corpus claims that are pending, or in the future, 
and it would not just be limited to detainees at Guantanamo. 
Rather, it would apply to any alien detained outside of the 
United States who is in United States custody, and has been 
determined to be an enemy combatant. Taking away individuals 
well-established habeas corpus rights and enacting a sweeping 
jurisdiction stripping provision raises grave constitutional 
question. It runs contrary to established case law. I believe 
that this provision leaves the door wide open for a Supreme 
Court ruling that would put us back in the same room debating 
this same issue.
    As the Supreme Court made clear in Lynn versus Murphy, 
legislative provisions depriving Federal courts of jurisdiction 
do not alter or affect any case in any court at the time of 
enactment. Lynn versus Murphy is solid case law and it has been 
cited thousands of times. If section 5 remains in the bill, it 
will be challenged, further prolonging the process of justice 
to detainees that have been held for 4 years.
    Mr. Chairman, as one of only three members of this 
committee that also serves on the House Armed Services 
Committee, I know well the balance that we need to strike in 
regard to justice within the military. But no one knows more 
about military justice than judge advocate generals. In a 
letter to the Senate Armed Services Committee, former JAGs John 
Hudson and John Gerter wrote the following and I quote: ``it is 
critical that Congress not strip the courts of jurisdiction to 
hear their pending habeas cases.'' It would be utterly 
inconsistent and unworthy of American values to include 
language that would strip the courts of habeas jurisdictions. 
No one in this room disagrees that we need to bring 
perpetrators of terror to justice. But we also need to do it in 
a way that holds up to the Supreme Court challenge, otherwise, 
we have accomplished nothing.
    I would urge this amendment be adopted so that we aren't 
revisiting this same issue after another Supreme Court ruling. 
And further, Mr. Chairman, I would ask unanimous consent to 
submit two letters, one from a series of U.S. judges here in 
the United States and secondly, from, the letter that I quoted 
from the JAG officers that is I be allowed to them for the 
record.
    Chairman Sensenbrenner. Without objection, the letters will 
be put in the record.
    [The information follows:]
    
    
    Mr. Meehan. And I yield back the balance of my time.
    Chairman Sensenbrenner. Does the gentleman from Texas 
insist on his point of order?
    Mr. Smith. No, I do not, and I'll withdraw the point of 
order.
    Chairman Sensenbrenner. Reservation is withdrawn.
    Mr. Lungren.  Mr. Chairman.
    Chairman Sensenbrenner. Gentleman from California, Mr. 
Lungren, for what purpose does he seek recognition?
    Mr. Lungren. I rise in opposition to the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Lungren.  Mr. Chairman, the case that the gentleman 
mentioned where the Court found it unconstitutional was a 
matter of statutory construction. It said that the Congress had 
not acted. We had not stated in both parts of the bill our 
specific authorization of that sort of treatment in litigation. 
It wasn't that we were unable to do it. The D.C. court review 
that's authorized by the Detainee Treatment Act provides a more 
than adequate substitute for habeas or rather reasonably 
regulates the use of habeas just as past statutes have done. 
The idea that the Congress is not able to regulate habeas is a 
misnomer. Most of the time when we are talking about habeas, we 
are talking about statutory habeas, not the great writ that is 
referred to in the Constitution. The Detainee Treatment Act 
allows the D.C. circuit to rule on the constitutional questions 
that were litigated in the case.
    In other words, the Detainee Treatment Act still allows 
resolution of the same constitutional questions that were being 
litigated under ordinary habeas review prior to the enactment 
of the Detainee Treatment Act. In 1950, the U.S. Supreme Court 
ruled in Eisentrauger versus Johnson that enemy combatants held 
by U.S. forces overseas are not, I underscore, not entitled to 
the, quote, privilege of litigation, and cannot sue our 
military and our courts.
    It was the law of the land for over 50 years, until in June 
2004, Rizal versus Bush created an exception for it for enemy 
combatants held in Guantanamo. Let me make clear that that case 
did not change the constitutional holding of Eizentrager. It 
merely extend the Federal statute to the Guantanamo detainees. 
And let me quote from a key passage in that case that explains 
why enemy combatants outside the U.S. should not have access to 
U.S. courts.
    As that court began by noting there has been ``no instance 
where a court in this or any other country, where the writ is 
known, has issued it on behalf of an alien enemy who, at no 
relevant time, and no stage of his captivity, has been within 
its territorial jurisdiction. Nothing in the text of the 
Constitution extends such a right, nor does anything in our 
statutes.''
    Other authorities also have emphasized that the Anglo 
American common law tradition includes no place for habeas 
petitions filed by enemy aliens in military custody outside our 
territory. Law professor Peter Lushing, in an Internet posting 
commenting on the Graham amendment shortly after it passed the 
Senate put the matter rather colorfully. The guys in the powder 
wigs would have flipped over the idea that habeas extends to 
foreigners who we are in combat with who have been captured and 
are being held by us abroad.
    He concludes, quote: ``The decision has extended habeas far 
beyond what anybody alive during the ratification of the 
Constitution would have envisioned.''
    In a 2003 article in George Washington Law Review Law 
Professor John Yoe notes the special importance of 
interrogating enemy combatants for information about coming 
attacks in this conflict and concludes: De novo judicial review 
threatens to undermine the very effectiveness of the military 
effort against al-Qaeda. A habeas proceeding would become a 
forum for recalling commanders and intelligence operatives from 
the field into open court, disrupting overt and covert 
operations, revealing successful military tactics and methods, 
enforcing the military to shape its activities to the demands 
of the judicial process. There is no legal precedent that 
supports the proposition that foreign persons confronted by 
U.S. troops in the zone of battle have fifth amendment rights 
which can be asserted against the American troops. The Supreme 
Court has consistently held the fifth amendment does not have 
extraterritorial application to foreign persons outside the 
United States.''
    In this regard even Justice Kennedy has observed the 
Constitution does not create nor do general principles of law 
create any juridical relation between our country and some 
undefined limitless class of noncitizens who are beyond our 
territory.
    Perhaps most disturbing, the habeas litigation has 
imperiled crucial military operations during the time of war. 
Moreover, habeas counsel have frustrated interrogation critical 
to preventing further terrorist attacks on the United States. 
One of the coordinating counsel for the detainees boasted about 
this in public, quote: The litigation is brutal for the United 
States. It's huge. We have over a hundred lawyers now from big 
and small firms working to represent the detainees. Every time 
an attorney goes down there it makes it that much harder for 
the U.S. military to do what they're doing. You can't run an 
interrogation with attorneys. What they're going to do now that 
we're going to get court orders is to get more lawyers down 
there. What are they going to do?
    Now maybe that is what we want to do here. I don't think 
so. That is why I would suggest that we reject this amendment.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Massachusetts.
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia, for 
what purpose do you seek recognition?
    Mr. Scott. Strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I would hope that we would adopt 
the amendment offered by the gentleman from Massachusetts. We 
don't know right now what is going on and what is going on in 
the name of the United States. We do know what has been leaked 
out. We do know that there has been no denial of the allegation 
that we were involved in the torturing of an innocent Canadian. 
This amendment would prevent that from even coming to light, 
and the little bit that escapes in the bill for judicial 
review, you have a provision in there on the top of page 80 
that the court may consider classified information submitted in 
camera and ex parte in making determinations. That is in 
camera, that is not public. Ex parte, one-sided. So the 
defendant never knows what happened.
    We haven't had any hearings on this. There is no military--
we haven't heard from the military that said they need this, 
whatever this section 5. I would hope that we would delete it 
and if there is a need for it, let the military come forward 
and explain what they need it for. But otherwise we would not 
expect people to be doing this to American soldiers overseas, 
so we shouldn't have that as part of our law. I would hope that 
we would adopt the amendment, and I yield back.
    Chairman Sensenbrenner. The question is on----
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler, for what purpose do you seek recognition?
    Mr. Nadler. I seek recognition to strike the last word, Mr. 
Chairman.
    Chairman Sensenbrenner. You don't need permission and you 
are recognized for 5 minutes.
    Mr. Nadler. Thank you. I appreciate the recognition if not 
the permission.
    Mr. Chairman, I rise in support of this amendment. The 
underlying bill without the amendment would eliminate habeas 
corpus for so-called enemy combatants. Habeas corpus is the 
rock solid foundation of our system of justice for the last 800 
years. It is inconceivable to have a fair system of justice 
without habeas corpus or something like it.
    We have--the gentleman from Virginia referred to the 
torture by mistake. We have had--let me read from--we have had 
many cases of people in Guantanamo in secret sites held by the 
CIA, we don't know where they are, who are held--we haven't 
given them the right of habeas corpus and we don't know.
    The President says they are the worst of the worst. The 
truth is some may be and some may be innocent people caught up 
and sold by warlords in Afghanistan or being in the wrong place 
at the wrong time. A fellow named Abu Bakir Qassim wrote an op 
ed piece in the Times the other day. He was held in Guantanamo 
because Pakistani bounty hunters sold him and 17 others to the 
United States military for $5,000 a head. Turned out he was 
innocent of anything, but he was only released because of the 
writ of habeas corpus.
    This bill says that no court has jurisdiction of habeas 
corpus and no court except the D.C. Circuit can have any review 
of these, but only for final review of a final decision of a 
combatant's status review tribunal or a military court, a 
military tribunal.
    Very few people are going to get tried by military 
tribunals. That is only for people accused of war crimes. Most 
people will have nothing. There is no guarantee that anybody 
will ever go before a combatant status review tribunal. Under 
this bill without this amendment we could arrest somebody in 
good faith but by mistake and that person could be in jail for 
life with no opportunity to see the evidence against him, to 
know what he is charged with, or anything else. That is not 
anything that we can call justice.
    The New York Times points out the White House wants to 
strip the Federal courts of any power to review the detentions 
of the prisoners in Guantanamo Bay, and I would say anywhere 
else, too. The provision is no real barrier in the handful of 
genuine terrorists recently shipped there from abroad. Their 
cases are likely to be brought before military tribunals, whose 
judgments could be appealed to higher courts, but it has a 
profound impact on the hundreds of others at Guantanamo Bay, 
many, perhaps the majority who committed only minor offenses, 
if any.
    The administration has no intention of trying them, no 
intention of trying them and wants to prevent them from 
appealing for help in court. In other words, these people could 
be in jail forever with no hearing whatsoever. That is not only 
un-American, it is against everything this country stands for, 
and I would agree with the gentleman from Virginia it is 
intolerable that we are considering bills of this complexity 
and this importance without hearings, without the subcommittee 
having looked at them, but beyond that, to pass a bill which in 
effect enables people to be held in jail forever with no 
hearing whatsoever of any kind, no showing of guilt.
    The President says they are the worst of the worst but he 
doesn't know. Some agent decided someone was bad. Some warlord 
in Afghanistan said the Chinese told me to give this person to 
you. We have no idea. We could be wrong. That is not any kind 
of civilization.
    I urge my colleagues to vote for this amendment.
    Chairman Sensenbrenner. Does the gentleman yield back? The 
question is on----
    Mr. Jenkins. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Tennessee, Mr. 
Jenkins.
    Mr. Jenkins. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Jenkins. I yield to the gentleman from California.
    Mr. Lungren. I thank the gentleman for yielding.
    Let's at least get something straight here. This is not the 
habeas provision of the last 800 years. That is the writ of 
habeas corpus in the Constitution. We are talking about 
statutory habeas, which is a very different thing, and people 
on this panel continue to misstate what the law is.
    We are not talking about the great writ, we are talking 
about statutory habeas, which the Supreme Court has said time 
and time again is under the jurisdiction of the Congress to 
give or to take away, number one. Number two, this decision has 
already been made by this Congress. This decision was made by 
this Congress earlier when we passed the DTA.
    What this is about is whether or not it applies to people 
already in Guantanamo. That is what it applies to. Nothing 
else. We have already made the decision, both the House and the 
Senate, and the law passed by the President which says this is 
the process that will obtain.
    Thirdly, it does not mean you don't have a right but it is 
not the habeas corpus. We have given you a right of review to 
the D.C. Circuit, so all of these questions could be handled by 
one court.
    Mr. Nadler. Would the gentleman yield for a question? I am 
going to ask a question. The right under habeas.
    Mr. Lungren. Fine.
    Mr. Nadler. You just stated that you have the right. You 
have the right to appeal to the D.C. Circuit, yes; from a 
military tribunal, if they choose to bring you before one, or 
from a combatant status review, CSR, tribunal if they choose to 
bring you before that. There is no guarantee that you go before 
that. So the fact is that you have no rights of anything.
    Mr. Lungren. I think the gentleman is mistaken.
    Mr. Nadler. Why?
    Mr. Lungren. Because the procedure is automatic.
    Mr. Nadler. The procedure is not automatic. What procedure 
is automatic?
    Mr. Lungren. You have----
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Tennessee and only he can yield.
    Mr. Jenkins. Mr. Chairman, I retain my time and yield back 
the balance of my time.
    Chairman Sensenbrenner. We have three votes on the floor. 
The Chair again requests members to return promptly after the 
votes, more promptly than last time. And without objection the 
committee is recessed until after the three votes.
    [Recess.]
    Chairman Sensenbrenner. The committee will be in order. A 
working quorum is present. When the committee recessed for the 
votes, pending was the motion by the Chair that the version of 
the bill reported by the Committee on Armed Services be 
favorably reported. That version was considered as read, open 
for amendment at any point and pending was an amendment by the 
gentleman from Massachusetts, Mr. Meehan.
    The question is on the Meehan amendment. Those in favor 
will say aye. Those opposed, no. The noes appear to have it.
    Mr. Meehan. Mr. Chairman, I would like a rollcall vote on 
that.
    Chairman Sensenbrenner. Recorded vote will be ordered. 
Those in favor of the Meehan amendment will as your name is 
called answer aye, those opposed no, and the Clerk will call 
the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk.Mr. Coble.
    [No response.]
    The Clerk. Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith votes no.
    Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte votes no.
    Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot votes no.
    Mr. Lungren.
    [No response.]
    The Clerk. Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins votes no.
    Mr. Cannon.
    [No response.]
    The Clerk. Mr. Bachus.
    [No response.]
    The Clerk. Mr. Inglis.
    [No response.]
    The Clerk. Mr. Hostettler.
    [No response.]
    The Clerk. Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green votes no.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    [No response.]
    The Clerk. Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake votes no.
    Mr. Pence.
    [No response.]
    The Clerk. Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes votes no.
    Mr. King.
    [No response.]
    The Clerk. Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney votes no.
    Mr. Franks.
    [No response.]
    The Clerk. Mr. Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert votes no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers votes aye.
    Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler votes aye.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott votes aye.
    Mr. Watt.
    [No response.]
    The Clerk. Ms. Lofgren.
    [No response.]
    The Clerk. Ms. Jackson Lee.
    [No response.]
    The Clerk. Ms. Waters.
    [No response.]
    The Clerk. Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan votes aye.
    Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    [No response.]
    The Clerk. Mr. Weiner.
    [No response.]
    The Clerk.Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff votes aye.
    Ms. Sanchez.
    [No response.]
    The Clerk. Mr. Van Hollen.
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen votes aye.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz votes aye.
    The Clerk. Mr. Chairman.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman votes no.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes. The gentleman from North Carolina, Mr. 
Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Chairman Sensenbrenner. The gentleman from South Carolina, 
Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes. If not, the Clerk will report.
    The gentleman from New York, Mr. Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon. The gentleman from Utah, Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Delahunt.
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt, aye.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their vote. If not, the Clerk will try again to report.
    The gentleman from Arizona, Mr. Franks.
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Mr. Chairman, 11 ayes and 15 nays.
    Chairman Sensenbrenner. The amendment is not agreed to.
    The vote has been reported.
    Mr. Nadler. Ask unanimous consent to reopen the votes so 
Mr. Boucher may cast his vote.
    Chairman Sensenbrenner. Without objection. The gentleman 
from Virginia.
    Mr. Boucher. Aye.
    The Clerk. Mr. Boucher, aye.
    Chairman Sensenbrenner. The Clerk will report again.
    The Clerk. Mr. Chairman, there are 12 ayes and 15 nays.
    Chairman Sensenbrenner. The amendment is not agreed to. Are 
there further amendments?
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. The gentlewoman from Texas has an 
amendment at the desk which the clerk will report.
    The Clerk. Amendment to H.R. 6054 offered by Ms. Jackson 
Lee of Texas and Mr. Nadler of New York.
    [The amendment follows:]
    
    
    [The prepared statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
                       Committee on the Judiciary


    Mr. Smith. Mr. Chairman, I reserve a point of order.
    Chairman Sensenbrenner. Point of order is reserved.
    The Clerk. In section 6 strike subsection (b), page 80, 
lines 14 through 23 and redesignate the succeeding sections 
accordingly.
    Chairman Sensenbrenner. The gentlewoman from Texas is 
recognized for 5 minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. To my 
colleagues, I started out this debate by indicating that I hope 
that we will not be gripped by the hands of fear and the hands 
of politics and the hands of rejection. The hands of rejection 
are to look at our military brass and the men and women on the 
front lines and indicate to them that we only use and employed 
you during times of patriotism and special holidays but when 
you recommend to us that this will jeopardize your actions on 
the front lines and your ability to defend America, we give you 
little comfort and little consequence.
    So on behalf of myself and Mr. Nadler I offer this 
amendment that improves H.R. 6054, the Military Commissions 
Act, by striking 6(b) from the bill. It is clear to us, Mr. 
Chairman, that section 6 of the bill would redefine Common 
Article 3 of the Geneva Convention to equate it to the 
standards set forth in the Detainee Treatment Act and would 
render those rights judicially unenforceable. This 
interpretation and application violates the core principles of 
the Geneva Conventions and poses a grave threat to American 
services members now and in, heaven forbid, future wars.
    This is not just our view. I think what is important about 
striking that provision is that it goes to the core of those 
who pay the toll. Our military pay the toll. John McCain paid 
the toll, and many, many others paid the toll. It is the view 
expressed powerfully and eloquently by General John Vessey, 
former Chair of the Joint Chiefs of Staff, and former Secretary 
of State Colin Powell and the orchestrator of the successful 
Gulf War I who understood that massive numbers of troops could 
be the victory if you had to engage in war, interestingly 
enough, less casualties and certainly less prisoners of war 
than that we have today.
    Right now in Iraq we have a raving civil war with our 
troops in the middle of it. People are being kidnapped every 
single day and our troops are not immune. Right now as we look 
at this legislation we are putting their lives in jeopardy. We 
are rejecting the pleas of their leadership by ignoring the 
convention that so aptly and ably has protected our soldiers 
and those around the world.
    Former prisoner of war Senator John McCain, former Navy 
Secretary and Senate Armed Services Committee Chairman John 
Warner, and certainly our own former member of this committee 
who was part of the JAG core, Senator Lindsay Graham. I know 
about the JAG obviously because I went to the University of 
Virginia that has one of the premiere JAG schools and as well 
was a number of years a member of the U.S. Military Appeals 
Court. We know the consequences of not having the parameters 
that will give comfort not to the enemy but our captured 
soldiers.
    With respect to the interpretation and judicial 
enforceability of Common Article 3, Mr. Chairman, the real 
question to be decided is not whether terrorists are bad but 
whether America will be able to maintain its intelligence 
gathering and protect the United States military. Common 
Article 3 of the Geneva Convention provides the minimum 
standards for humane treatment and fair justice that apply to 
anyone captured in armed conflict.
    I heard my good friend on the other side of the aisle 
correct one of my colleagues about the tenure of this question 
dealing with the habeas and of course its impact, statutory 
versus constitutional. I would venture to say when torture is 
being projected on you I don't know whether you decipher as to 
whether or not your Nation only made mockery of the statutory 
habeas corpus or whether or not they made mockery of the 800-
year habeas corpus.
    The Geneva Convention is the protection that our soldiers 
need. These standards were specifically designed to ensure that 
those who fall outside the other more extensive protection of 
the convention are treated in accordance with the values of the 
civilized nations. The framers of the Convention, including the 
American representatives in particular, wanted to ensure that 
Common Article 3 would apply to situations where a state party 
to the treaty like the United States fights an adversary that 
is not a party, including irregular forces like al-Qaeda. 
Therefore, if our soldiers are captured in this ongoing new 
trend of guerilla warfare, we at least have the precedent, the 
precedent of a Nation that abhors tortuous treatment and does 
not adhere to the Geneva Convention.
    So it is not whether or not al-Qaeda or other terrorists 
adhere to it, it is the standards we set so we can make the 
appropriate argument when our troops may be in danger. As 
General Powell----
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired. The time of the gentlewoman has expired.
    Does the gentleman from Texas insist on his point of order?
    Mr. Smith. No, Mr. Chairman, I do not.
    Chairman Sensenbrenner. A reservation is withdrawn. For 
what purpose does the gentleman from Utah seek recognition?
    Mr. Cannon. To strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Cannon. Let me begin by saying that I agree with the 
sentiments of the gentlelady from Texas; that is, I agree that 
we want to protect our soldiers and that the Geneva Convention 
in ordinary circumstances does that. I abhor torture. We also 
agree I think that al-Qaeda and other terrorist groups are not 
constrained by the Geneva Conventions and have done awful, 
horrible and terrible things.
    I guess part of the question here is, therefore, how do we 
protect our soldiers. We have a lot of history here. Some of 
that history was reversed in the Supreme Court decision in 
Hamden, where the bill before us, as I understand this 
amendment, it would strike the language in the bill before us 
that the Geneva Conventions do not provide any rights that are 
enforceable in U.S. courts.
    This amendment would open the door for terrorists and trial 
lawyers to sue government personnel for things like
    outrages against personal dignity and of course the 
vagueness of the language is always difficult to struggle with 
here and beauty is in the eye of the beholder. But here what we 
are going to have as the definition of outrage is in the eye of 
the trial lawyers and that is going to result in an onslaught, 
I believe, of frivolous lawsuits.
    Now if we had some better protections like the Lawsuit 
Abuse Reduction Act, which Mr. Smith has introduced, maybe we 
could live with this kind of vagueness but we don't have that. 
So what we are left with, our current guidelines, which are 
essentially advisory in these cases of frivolous lawsuits, and 
I suspect frivolous lawsuits will proliferate and be disruptive 
to our efforts to prevent terrorism.
    This is not just vague talking. Michael Ratner of the 
Center for Constitutional Rights, who is one of the 
coordinating counsel for detainees, boasted, and I am quoting 
him now: The litigation is brutal for the United States. It is 
huge. We have over 100 lawyers now from big and small firms 
working to represent the detainees. Every time an attorney goes 
down there it makes it that much harder for the U.S. Military 
to do what they're doing. You can't run an interrogation with 
attorneys. What are they going to do now that we are getting 
court orders is to get more lawyers down there.
    Look, this is a very straightforward, plain issue. If we do 
what the gentlelady desires despite the good sentiments behind 
it we handicap our ability to deal with the kind of information 
that these people have that will inevitably result if we don't 
get it in the destruction of schoolchildren or people working 
in skyscrapers or other easy targets that we as an American 
society provide.
    Ms. Jackson Lee. Will the gentleman yield?
    Mr. Cannon. I would be happy to yield, yes.
    Ms. Jackson Lee. I thank the gentleman for at least 
expressing the sympathy or the empathy with the intent of this 
particular amendment and I would only raise this qualification 
to the rebuttal that you have just offered, is that this is a 
simple amendment that allows simply for the Geneva Convention 
to be raised in a proceeding. It is not a door opener to 
frivolous lawsuits.
    Mr. Cannon. Reclaiming my time, I understand that is 
exactly what this is, and the problem is we are not a 
hegemonist society where dissidents get killed. We have people 
who view the world from many perspectives and it is absolutely 
clear that people like Michael Ratner want to disturb our 
process of protecting ourselves and your amendment empowers Mr. 
Ratner and other people like him to interfere with our ability 
to obtain the information that will allow us to stop these 
terrorists.
    I mean it is absolutely amazing to me, astonishing beyond 
my ability to actually state it that we have not had another 
terrorist attack on American soil. We have had other attacks 
around the world, we know these people want to fight and 
murder, we know they want to disturb, destroy and throw into 
chaos our complex systems. The duty of civilization is to 
civilize. That is our responsibility and part of that means we 
have to be a little bit tough. Being tough means getting the 
information----
    Mr. Conyers. Would the gentleman from Utah yield?
    Mr. Cannon.--from people that we need to get it from in a 
timely manner. And we have to do that in a way that our 
soldiers and the people getting that information are clear. If 
they believe they are going to be sued, if they believe they 
are going to be defendants in lawsuits, it makes it almost 
infinitely more difficult to do what we need to do and what 
this bill is trying the do.
    Mr. Conyers, I see I only have a little bit of time but I 
am happy to yield what I have.
    Mr. Conyers. That is good, I only need a little time.
    Chairman Sensenbrenner. The gentleman from Utah's time has 
expired. Without objection, he gets an additional minute.
    Mr. Conyers. Thank you.
    Mr. Cannon. Which I am happy to yield to Mr. Conyers.
    Mr. Conyers. Thank you. I never thought I would have to 
choose between your rationale and Senator Warner's rationale, 
which left out section 6. I appeal to you to consider that when 
we start selectively determining when the Geneva Conventions 
shall be employed it gets to be pretty risky business.
    Mr. Cannon. Reclaiming my time, the Geneva Conventions on 
their face are clear and we have always had a historic 
distinction between people in uniform who are fighting because 
they are drafted or otherwise drawn into a conflict and people 
who choose to be part of a conflict using methods that we abhor 
more than we abhor the possibility that some American soldier 
is going to interrogate a detainee too roughly.
    I think my minute has expired, Mr. Chairman. I yield back.
    Mr. Berman. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California, Mr. Berman, seek recognition?
    Mr. Berman. Move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Berman. To my friend from Utah, this is not--the 
amendment to strike is to strike a provision regarding an 
argument you are making, it is not about whether or not the 
litigation is allowed, whether the writ is allowed, it is about 
what argument you are making. The one thing I would like to 
hear is why, if you are allowed to bring a habeas action, you 
cannot in that habeas action claim that your rights under the 
Geneva Convention have been violated. That isn't about whether 
you are abusing it through frivolous litigation, that is about 
your right to make and prove one contention, that the Geneva 
Convention has been violated.
    Why would we want to prohibit that from being part of the 
action? If you want to get to the issue of abuse of the 
process, that is one thing, but here is simply for some reason 
in the bill that the gentlelady seeks to strike a prohibition 
on making a specific argument.
    I am curious about and I would be happy to yield for an 
understanding of why that one argument should not be allowed.
    Mr. Cannon. I understand the gentleman, I believe, and I am 
sympathetic, but my understanding of this amendment and the 
practical effect is that lawyers who bring the habeas action 
have the ability then or will use as a matter of course or try 
to have access to secret information that will lead us to other 
information that is vitally important or sources of information 
or methods that we use to get information, things that we don't 
want to share with terrorists.
    I believe that is the core of the reason that you have this 
provision in the bill.
    Mr. Berman. You can deal with that issue through 
prohibitions on evidence. But someone files a writ and 
accompanies with that writ an affidavit regarding what that 
person claims to have been put through during the interrogation 
process, that is evidence to support a contention. And the 
person who is giving that affidavit was the person involved. So 
it is firsthand legitimate evidence, it is not classified 
evidence, and why can't they make that argument? In other 
words, if you want to get at abuse of litigation, or frivolous 
litigation, go after that. If you want to go over restrictions 
on the revelation of classified evidence, go to that. But why 
outlaw an argument that a fundamental convention that we have 
signed and are signatory to, that the rights under that 
convention have been violated; why prohibit that?
    Mr. Cannon. Would the gentleman yield?
    Mr. Berman. Sure.
    Mr. Cannon. Thank you. The answer to that is I am 
sympathetic to everything you say and largely in agreement. I 
am responding to an amendment to the underlying bill that I 
think would gut the bill. If you want to work on other language 
that would do what you have suggested, I am happy to do that. I 
just think this amendment the way it works now is highly 
destructive to what we need to do overall.
    Mr. Berman. I assume the gentlelady's amendment was simply 
to remove the prohibition on raising this argument.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Berman. I would be happy to.
    Ms. Jackson Lee. Absolutely, Congressman. If you look at 
the language, you are absolutely right in your interpretation. 
The language of 6(b) says: No person in a proceeding may invoke 
the Geneva Convention or any protocols. Which means that you 
just simply cannot argue that you were impacted negatively or 
positively by the use or nonuse of the Geneva Convention. It is 
evidence. I would simply argue that a judge or proceedings 
could confine the proceedings to determine whether the 
testimony be classified, so it could be a closed proceeding, or 
otherwise.
    And that is all I am attempting to do, is to strike 6(b).
    Mr. Berman. And just to reclaim my time, so it is to 
prohibit an argument in an action that we are allowing the 
individual to bring before a Federal judge who is interpreting 
an international agreement to which we are signatory, not some 
foreign tribunal or international commission, a Federal judge 
subject to an appellate review. It is saying, bring the action, 
but you can't make this argument. I can't understand what you 
are getting at here.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman.
    This is a, as far as I know, unprecedented provision in 
this bill. The United States has been a signatory since 1949 to 
the Geneva Conventions. Geneva Conventions do give people 
certain rights. We are told here that most of those rights are 
fine. Everybody's, you know, happy with them. But this 
provision says, no person in any habeas action or any other 
action may invoke the Geneva Conventions or any protocols 
thereto as a source of rights, directly or indirectly, for any 
purpose, any court of the United States or its States or 
territories.
    What that is saying is that if you are dealt with in a 
manner contrary to the rights given by the Geneva Convention, 
you can't tell that to a court. You can go to court. It doesn't 
stop you from going to court, but you have to make some other 
claim.
    Article VI of the Constitution of the United States reads 
as follows: This Constitution, and the laws of the United 
States which shall be made in pursuance thereof, and all 
treaties made, or which shall be made, under the authority of 
United States, shall be the supreme law of the land; and the 
judges in every State shall be bound thereby, any thing in the 
Constitution or laws of any State to the contrary 
notwithstanding.
    This says, in so many words, that the treaties to which the 
United States is a signatory which the Senate has ratified are 
the law of the land, and the judges are bound and the Court 
shall enforce it.
    Now, it is true that a treaty is a law. We can pass another 
law, and that law can abrogate the treaty. Everybody else in 
the world can say we are faithless. We don't adhere to our 
word. They may conclude that. But we have the power to pass the 
law to abrogate a treaty which--as we have the power to repeal 
or supersede any law passed previously.
    I don't doubt the power of this Congress to do that. I 
doubt the rightness of that action. What precedent do we set by 
saying we are not abrogating the treaty? We are simply saying 
you can't enforce it in the law.
    In fact, I am not sure you can do that. I am not sure you 
can say we remain signatory to the treaty. We are not repealing 
the treaty, but the courts can't consider any claim under the 
treaty.
    But even if we have that power, what purpose does it serve, 
other than to declare to the world we are faithless to the 
Geneva Accord; do to our soldiers whatever you want; and we 
have no standing to claim under the Geneva Conventions because 
we are not going to give that.
    But I know people will say, well, these people do not 
adhere--these people, the terrorists--don't adhere to the 
Geneva Convention. And the terrorists don't, but other people 
do, and not everybody arrested is a terrorist. We may think 
they are a terrorist.
    One of the parts of this debate that frustrates me from the 
President on down, he says, they are the worst of the worst. 
People arrested, people held in Guantanamo, people held in some 
secret prison in God knows where may be the worst of the worst, 
or they may be innocent, or they may be somewhat guilty, or 
there may be mistakes.
    We saw that Mr. Hariri was a mistake. We have seen others 
that were mistakes. Hundreds of people we have admitted now 
were mistaken.
    You cannot say that people who are arrested in the belief 
that maybe they are guilty should be treated--they should have 
no rights, because, after all, they are the worst of the worst. 
Once you have determined they are the worst of the worst, then 
punish them. But first you need some due process. That is what 
this country stands for.
    And to say that a treaty to which we are a signatory, which 
we hope that other civilized powers will abide by and will 
treat our captured soldiers by in future wars--God forbid there 
should be any--but we are not going to allow our courts to 
enforce them is simply wrong and hypocritical.
    And I will yield to the gentleman. I yield to Mr. Cannon.
    Mr. Cannon. Thank you.
    Let me just say that I wish--it would be interesting if God 
would prohibit wars, but he has been around for a long time, as 
long as man, and hasn't yet done so.
    Mr. Nadler. He has prohibited them. He just hasn't enforced 
it.
    Mr. Cannon. Right.
    We don't disagree on many things, but there are a couple of 
distinctions that I think are very important here. In the first 
place, the Geneva Convention makes a distinction between 
unlawful combatants and uniformed combatants; and that 
distinction is----
    Mr. Nadler. Reclaiming my time for the moment, under the 
Geneva Convention you are supposed to have a tribunal, an 
article 5 tribunal right there, within a very short period of 
time where you have captured somebody, if you claim that he is 
not a prisoner of war, that he is an unlawful combatant. We 
have chosen--the President declared we are not holding such 
tribunals. We are declaring a whole class of people, whoever we 
capture, as unlawful. So that is a violation right off the bat.
    Mr. Cannon. May I just make one other point? Will the 
gentleman yield?
    Mr. Berman. Just one thing. The irony of this bill, if this 
amendment were to lose, is that, in a bill that is done in the 
name of complying with the Supreme Court decision in Hamden, 
you are taking away the way that court decision came about 
because there could have been no effort to raise the issue that 
caused that issue to be made.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Nadler. Can I have ask for another minute so Mr. Cannon 
and I can clarify?
    Chairman Sensenbrenner. Without objection, the gentleman is 
recognized for another minute.
    Mr. Nadler. Let Mr. Berman finish then, Mr. Cannon.
    Mr. Cannon. Have you finished, Mr. Berman? Thank you.
    The other point I wish to make is that this is--the effect 
of what we do here is profound, and what I haven't heard from 
the other side is any repudiation of Mr. Ratner's statement. In 
other words----
    Mr. Nadler. Reclaiming my time, I will repudiate Mr. 
Ratner's statement if it is quoted correctly. The fact of the 
matter is that one of the prices you sometimes pay for 
litigation is it takes time. Now there are ways under our law, 
and maybe we should strengthen them, and maybe we should have 
another amendment or a bill to strengthen our defenses against 
frivolous legislation. Maybe. But to simply say that we are not 
going to allow our treaties to be enforced in our courts is 
hardly the way to do that.
    Mr. Cannon. Again, this is--to make--will the gentleman 
yield?
    Mr. Nadler. I yield, yes.
    Mr. Cannon. I don't believe this is a matter of not being 
properly supportive of the Geneva Convention. But, that said, 
if the gentleman is willing to work with me to limit frivolous 
lawsuits, that may give us the ability to come back later. We 
have guys today in the field who don't know what they can do in 
interrogation. I think we need to send them a very clear signal 
today.
    And I yield back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by----
    Mr. Van Hollen. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Maryland, Mr. Van Hollen, seek recognition?
    Mr. Van Hollen. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Van Hollen. Back to this issue of the United States 
setting a standard for others in the world to follow. I think 
if other countries that have adopted the Geneva Convention, as 
the United States has adopted, were to then pass as a matter of 
their domestic law various provisions that said that they were 
not going to allow provisions to the Geneva Convention to be 
enforced in their courts, we would be screaming bloody murder. 
Because that would mean that our troops would not be entitled 
to any kind of protection under the Geneva Convention as 
applied to those courts.
    So I really think that we are rushing to judgment here. I 
do not believe these things have been thought through.
    Mr. Cannon, you said that you sort of agreed with the 
thrust of what had been said and yet, you know, you oppose the 
amendment. So I think it would behoove us, Mr. Chairman, to 
really take that provision out; and then, if someone can put 
forward a good justification for putting it back in, the burden 
should be on them for doing it. And, therefore, I would 
certainly support this amendment.
    I would yield the balance of my time to Ms. Jackson Lee.
    Ms. Jackson Lee. Mr. Van Hollen, thank you very much for I 
think what was a very clear and lucid explanation simply of 
what I am attempting to do with Mr. Nadler; and I think it is 
important to refer back to this little document. You cited 
provisions and certainly provisions and the recognition of our 
compliance with treaties. But I think here is where my 
colleagues are going on the other side.
    They want to reject the Geneva Convention of the Korean 
War. They want to reject the Geneva Convention of the Vietnam 
War. They want to reject it of Gulf War I. Because they are 
basically saying it is antiquated. We don't need to adhere to 
it. And matching frivolous lawsuits with the right of a 
petitioner to simply raise the question of the Convention begs 
the question of our own understanding of the protection that 
our soldiers need.
    I can imagine that we have gotten this jurisdiction, as I 
said, by accident, because the Supreme Court said that the 
President was wrong. He was wrong, wrong, wrong. And all we are 
doing is righting what the President did wrongly and sending it 
back to the Supreme Court. And then, in addition to accepting 
the wrongness of the President and the wrongness of the 
administration, we are going to ignore soldiers who have been 
shot at, soldiers like General Vessey and General Powell, who 
today have wounds that they experienced in battle.
    And they are saying--and because General Powell used the 
word ``moral,'' he is now being made mockery of; and I take 
offense to those who would malign his morality statement. All 
that he said was that he wanted to associate himself with the 
words of General Vessey, and General Vessey cited the 
particular document, considered Americans in combat. Certainly 
it was a document written in World War II; and, of course, 
there is a great deal of humor saying we are in a war of terror 
now.
    But what we are suggesting is that when you begin to tear 
up the Constitution, tear up provisions that we have used from 
war to war--and Vietnam was a guerilla war if it was anything 
else--then we begin to jeopardize soldiers wherever they might 
be all over the world.
    As relates to fighting the war on terror, we have convinced 
the American people that you are right and we are wrong, that 
we are weak on terrorism, that we are now not wanting to 
proceed, not wanting to proceed to protect America.
    Intelligence is the offensive. We can get the intelligence. 
But I ask the question again. Do we want the Canadian story of 
this individual who went all the way to Syria back and we found 
out that we maligned him and he had the wrong information and 
he was tortured wrongly, is there any evidence that the 
informant in Pakistan that helped bring down the British, the 
terrorist plan, was tortured? Or did we just have an informant?
    There are many ways to fight this war on terror, and I 
can't imagine that the administration would stand by the sheer 
lack of use of the Geneva Convention in a proceeding. That is 
all my amendment and Mr. Nadler's amendment does. It strikes 
section 6(b) which takes out the right to simply acknowledge in 
your defense that there was a Geneva Convention problem. So we 
are tearing up the Constitution and we are shredding the Geneva 
Convention.
    Mr. Lungren.  Would the gentlelady yield on that?
    Ms. Jackson Lee. I'd yield for a moment. I am on Mr. Van 
Hollen's time.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Maryland.
    Ms. Jackson Lee. So I will continue.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Ms. Jackson Lee. And I ask my colleagues to support the 
amendment.
    Chairman Sensenbrenner. The question is on the Jackson Lee 
amendment. Those in favor will say aye.
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Virginia seek recognition?
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner.  The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, the gentleman from New York has 
reminded us of the awkward situation we are in when we set up 
criminal laws and procedures and that is that both the guilty 
and the innocent will be tried by the same process. We don't 
know at the beginning of the process whether the person is 
innocent or guilty, so whatever we do is going to affect both 
of them.
    Now, we haven't had any hearings and we haven't had any 
subcommittee markup, so it is hard to know the actual effect of 
section 6 and how it differs from what we are doing now, what 
the present law has been up to now, whatever the President is 
doing and how it is going to affect us afterwards. But it 
incredibly just declares that what will satisfy all of article 
3 of the Geneva Convention--it doesn't tell us how it changes 
things. It just says that satisfaction of the provisions of 
section 1003 of the Detainee Treatment Act of 2005 shall fully 
satisfy the United States' obligations with respect to the 
standards for detention and treatment established by article 3 
of the Geneva Conventions. Just declares it. And then it says, 
whatever rights you have left after that paragraph, you can't 
enforce them in court.
    We haven't been requested--it is not apparent to me that we 
have had any request from the military to change, if we are 
changing, the definition of what constitutes torture. But it 
would be nice to hear from them in some hearings so we know 
what we are doing.
    This is precedence, the United States declaring what we are 
going to consider torture. It doesn't say what everybody else 
in the world considers torture. We are just going to declare 
what we think it is. This sets a mighty poor precedence for 
what other countries are going to do.
    Suppose Iran or Iraq just decided, well, I think, 
notwithstanding what the rest of the world is doing, we are 
going to define torture this way. We wouldn't put up with that. 
And we are setting the moral tone for everybody else. We 
wouldn't want our soldiers treated by whatever Iran makes up 
this week for their new definition of torture.
    We ought to remove this section till we can put in there 
something that will withstand international scrutiny, not just 
something that's made up, no hearings, no subcommittee markup 
or anything else. I would hope that we would adopt the 
amendment.
    Mr. Chabot. Would the gentleman yield?
    Mr. Scott. I yield to the gentleman from Ohio.
    Mr. Chabot. I thank the gentleman for yielding.
    I will be very brief. I just wanted to go back to what the 
gentleman's colleague, the gentlelady from Texas--before, she 
talked about a man who was tortured wrongly. Our position is 
there is no way to torture rightly. We are talking about more 
aggressive tactics to get information that will save American 
lives, sometimes thousands of American lives, but none of us 
condone torture on this side of the aisle.
    I thank the gentleman for yielding.
    Mr. Scott. Well, reclaiming my time.
    Mr. Bachus. Will the gentleman yield further?
    Mr. Scott. Well, let me just respond. Because if we are 
just going to make up what we think is torture, notwithstanding 
what everybody else in the world thinks is torture isn't much 
of a definition.
    I yield to the gentleman from Alabama.
    Mr. Bachus. What I am curious about from both you and the 
gentleman from Virginia and the gentlewoman from Texas and the 
Armed Services Committee, who reviewed this and passed it, it 
was--of the Democrats on that committee, 19 voted in favor of 
this legislation, and only 8 opposed it. And all of a sudden we 
get to the Judiciary Committee, and we are tearing up the 
Constitution. I just wonder, the 19 Democrats who voted for 
this legislation on the Armed Services Committee, in other 
words, probably three out of four Democrats on the committee 
voted in favor of this legislation.
    Ms. Jackson Lee. Will the gentleman yield?
    Mr. Bachus. Did they say--I mean, they voted for this 
legislation, and I would--you have someone on the other side 
that said an intelligent individual would not support this 
legislation.
    Mr. Scott. Reclaiming my time, the Judiciary Committee has 
a different responsibility. The Armed Services Committee is 
fighting the war, and we are trying to put all these things 
together in some fashion that we can defend with the 
Constitution form of government.
    Mr. Bachus. Would you yield?
    Mr. Scott. As I indicated to the gentleman, John Warner, 
John McCain, Lindsay Graham also reviewed it; and they came up 
with the idea that they want American troops treated the way 
this would allow others to be treated.
    Mr. Bachus. I am talking about the 19 members, an 
overwhelming number of Democrats on the Armed Services 
Committee, who voted in favor of this and said it was very 
necessary.
    Chairman Sensenbrenner. The time of the gentleman from 
Virginia has expired.
    Mr. Lungren.  Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Lungren.
    Mr. Lungren.  Mr. Chairman, request permission to strike 
the requisite number of words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Lungren.  Mr. Chairman, I have been trying to decipher 
what this section of the bill is and what the amendment seeks 
to do; and I was intrigued by the gentlewoman from Texas' 
comments on the fact that if we don't adopt her amendment that 
somehow this bill will abrogate the rights that were enjoyed by 
American troops and our enemy during the Second World War, the 
Vietnam War, the Korean War.
    And unless I am mistaken, during all those periods of time 
and up to the Hamden decision, the understanding of the courts 
was consistent that the Geneva Convention, as a convention, is 
not enforceable by individuals in terms of court appeal. 
Rather, the enforcement mechanism was a diplomatic mechanism.
    That is, countries were held to account for either 
following the Geneva Accords or not and that the very existence 
of the sections of the Military Code of Justice that we are 
talking about, that have been incorporated, or reference to 
Common Article 3 is incorporated into our Criminal Code or our 
Military Code and that, therefore, what this does is bring us 
back to the common understanding and enforcement of that treaty 
as it was understood prior to the Hamden decision.
    So, if that is the case, I guess we have something--the 
question before us is whether we think that is the appropriate 
way to do it or that we should do it in this new interpretation 
of enforcement of the Geneva Convention.
    I just want to make it clear that that is a policy decision 
for us to make. But to suggest that by maintaining this section 
in this bill we are somehow turning our back and turning the 
clock back from what it was during World War II, the Korean War 
and the Vietnam War is factually incorrect.
    And I yield to the gentleman from Virginia.
    Mr. Goodlatte. I thank the gentleman for yielding.
    I thank him for his very cogent observation regarding that. 
I agree with that fully, and I would add to that.
    In response to the comments of the gentleman from Virginia, 
Mr. Scott, who expressed concern that somehow the United States 
would be taking the country in a new direction in terms of 
interpreting what the Geneva Convention means and we would be 
taking a different interpretation than other countries who 
signed it, I would point out that on the day we signed it we 
did that. Because we have here a page and a half of 
reservations that we filed upon ratification of the Geneva 
Convention that sets forth our specific definitions of torture, 
our specific definitions of what is encompassed within the 
purview of our Constitution as it affects United States' 
citizens and a whole host of other reservations. And all we are 
doing in this action today is clarifying what we intended at 
that time and restoring that, based upon what I think is a 
flawed Supreme Court decision.
    Mr. Lungren.  I appreciate the gentleman's comments.
    The other thing in terms of the Supreme Court decision, if 
you look at the core of it, it is to say that these individuals 
are accorded recognition under the Geneva Accords under a 
section which specifically says they would not be.
    That section that was referred to by Justice Stevens in his 
opinion basically talked about these are not international 
disputes and they involve a singular party which is a signatory 
to the Convention. In other words, it is a singular definition 
of a civil war within a country which is a signatory to the 
Accords.
    The basis of the Accords or the Convention was a sense of 
reciprocity. That is, we were attempting to encourage people to 
join into the Convention by virtue of the fact that we would 
accord certain rights that they would accord.
    Then we have the Supreme Court decision saying, 
irrespective of whether you agree to do that, we are going to 
bind ourselves to it; and that is really the question of, I 
think, misinterpretation.
    But also, more than that, the question of in the way the 
real world works in international events or affairs, what 
incentive is there for an enemy to agree to the Geneva 
Convention if, in fact, they get all of the benefits from it 
without any of the responsibilities?
    And that is separate from the question of how you enforce 
it. We have traditionally enforced the norms of the Geneva 
Convention to which we have agreed through our Military Code of 
Conduct and our criminal laws. This would be----
    Chairman Sensenbrenner. The time of the gentleman from 
California has expired.
    The question is----
    Ms. Waters. Mr. Chairman.
    Chairman Sensenbrenner. Okay.
    Ms. Waters. I move to strike the last word.
    Chairman Sensenbrenner. Okay. And----
    Ms. Waters. I yield to the gentlewoman from Texas.
    Chairman Sensenbrenner. Just a minute, please. The 
gentlewoman from California is recognized for 5 minutes and is 
estopped from complaining that we are practicing sleep 
deprivation when we are here at 1:00 this morning.
    Ms. Waters. I don't know what you are talking about, but I 
yield to the gentlelady from Texas.
    Ms. Jackson Lee. Let me welcome all of you to the 1:00 a.m. 
proceedings for the House Judiciary Committee.
    But I thank the distinguished gentlewoman for her yielding. 
It gives me an opportunity to try and correct some of the well-
intended but misstatements of my friends on the other side of 
the aisle.
    If we were on the playground, we would say in some kind of 
confrontation, you started it. It is interesting that my 
friends are talking about their interpretation of the Geneva 
Convention, and it is not to be interpreted this way. They 
started it.
    They have in section 6(b) that you cannot use an existing 
Convention that has been in force since the Korean War, the 
Vietnam War, the Gulf War; and it has been used by the United 
States military in times of war but also in times of securing 
necessary intelligence.
    I want to correct my good friend from Ohio in correcting my 
English. It is what I said, that he was wrongly tortured, and 
wrongly tortured means that torture is wrong, though it is 
utilized, but also that he was tortured in that he was 
innocent. So if we were trying to punish someone who we thought 
was not innocent, we have wrongly done it; and we have wrongly 
done it, in essence, if we believe that is the way that we 
should promote our values.
    We have a war on terror. And our colleagues on the other 
side, again, are using the politics of elections to suggest 
that we are, on this side, weak on the war on terror. So this 
legislation now having to be in place because of the Supreme 
Court decision, we are not doing our oversight job by giving 
good guidance to the executive, good guidance to the 
interrogators who are out there, who want to do the right 
thing. What we are doing is allowing a free-for-all.
    My only point that I am making is a simple, singular point, 
and that is the point that General Vessey has made, and I ask 
unanimous consent to submit his statement into the record, the 
former Chairman of the Joint Chiefs of Staff. I ask unanimous 
consent to submit the statement, his letter into the record.
    Chairman Sensenbrenner. Without objection.
    Ms. Jackson Lee. Thank you.
    [The information follows:]
    
    
    Ms. Jackson Lee. General Vessey makes it very clear that 
every battle that we have been in is a battle to the finish for 
our troops. We stand down for no one, and we don't stand down 
in the war on terror.
    But my amendment simply argues the point that, in the 
instance of our detainees, allow the evidence to be presented. 
And we would hope that the instance of our detainees 
internationally, that the world opinion would come down on 
those that are not associated with a nation state, that they 
begin to feel the pressure and the punishment that would come 
about through terrorist activities toward our detainees.
    But by giving no comfort to that language in our 
legislation, we throw the whole argument in the wind; and you 
can be assured that it will be a free-for-all for our military 
personnel on the front lines. And why, for the life of me, we 
want to step on the Constitution and step on the military 
personnel who not only carry around their badges of honor but 
they carry around wounds that they have suffered as members of 
the United States military.
    So this amendment is simple. The amendment of Mr. Nadler 
and myself, it strikes section 6(b). And if any of you would 
read section 6(b) you would find that the interpretation, Mr. 
Berman, is absolutely correct. It is simply allowing that kind 
of evidence to be presented. And it could be, in essence, by 
the Court presiding, dismissed, ruled out of order, not 
allowed, but in the circumstances that is before them, the 
Court could go into a session that is closed, many 
opportunities. But as long as that is allowed in----
    I cannot imagine why my colleagues will not see reason 
behind those who have experienced the military procedures to 
allow this amendment to prevail and for it to be stricken, 
section 6(b); and I ask my colleagues to support this 
amendment.
    I yield back.
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    The question is agreeing to the amendment offered by the 
gentlewoman from Texas, Ms. Jackson Lee. Those in favor will 
say aye; those opposed, no.
    Ms. Jackson Lee. rollcall.
    Chairman Sensenbrenner. The noes appear to have it. The 
noes have it, and the amendment is not agreed to. Are there 
further amendments?
    Ms. Jackson Lee. I asked for a roll call, Mr. Chairman.
    Mr. Delahunt. I ask for a recorded vote, Mr. Chairman.
    Chairman Sensenbrenner. Okay. Well, the proper time to ask 
for a recorded vote is between the time the Chair says that the 
ayes or the noes appear to have it.
    Ms. Jackson Lee. I was speaking, Mr. Chairman. You didn't 
hear me.
    Chairman Sensenbrenner. No, you spoke too soon.
    But the Chair will order a roll call, without objection. 
Those in favor of the Jackson Lee amendment will, as your names 
are called, answer aye; those opposed, no. And the clerk will 
call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk.Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble votes no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith votes no.
    Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly votes no.
    Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte votes no.
    Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot votes no.
    Mr. Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren votes no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins votes no.
    Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon votes no.
    Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus votes no.
    Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis votes no.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler votes no.
    Mr. Green.
    [No response.]
    The Clerk. Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    [No response.]
    The Clerk. Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake votes no.
    Mr. Pence.
    [No response.]
    The Clerk. Mr. Forbes.
    [No response.]
    The Clerk. Mr. King.
    Mr. King. No.
    The Clerk. Mr. King votes no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney votes no.
    Mr. Franks.
    Mr. Franks. No.
    The Clerk. Mr. Franks votes no.
    Mr. Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert votes no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers votes aye.
    Mr. Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman votes aye.
    Mr. Boucher.
    Mr. Boucher. Aye.
    The Clerk. Mr. Boucher votes aye.
    Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler votes aye.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott votes aye.
    Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt votes aye.
    Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren votes aye.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee votes aye.
    Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters votes aye.
    Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan votes aye.
    Mr. Delahunt.
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt votes aye.
    Mr. Wexler.
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler votes aye.
    Mr. Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner votes aye.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff votes aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez votes aye.
    Mr. Van Hollen.
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen votes aye.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz votes aye.
    Mr. Chairman.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman votes no.
    Chairman Sensenbrenner. Members in the Chamber wish to cast 
or change their votes?
    Gentleman from California, Mr. Issa.
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Chairman Sensenbrenner. Gentleman from Virginia, Mr. 
Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes?
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 17 ayes and 18 nays.
    Chairman Sensenbrenner. The amendment is not agreed to.
    Are there further amendments?
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California seek recognition?
    Ms. Lofgren. A unanimous consent request.
    I was on the floor when the vote was taken on Mr. Meehan's 
amendment. Had I been present, I would have voted aye; and I 
request that that be made a part of the record in the 
appropriate place.
    Chairman Sensenbrenner. Without objection.
    Are there further amendments?
    If there are no further amendments----
    Mr. Bachus. Mr. Chairman, I have a unanimous consent.
    Chairman Sensenbrenner. State your request.
    Mr. Bachus. Mr. Chairman, I would like to introduce a 
record of the Committee on Armed Services vote on this 
legislation----
    Chairman Sensenbrenner. Without objection.
    Mr. Bachus.--and remind the members of this committee that 
19 Democratic members supported the President's efforts to 
interrogate terror suspects.
    Chairman Sensenbrenner. Okay. That is not a unanimous 
consent request. The Armed Services Committee vote will be 
placed in the record by unanimous consent.
    [The information follows:]
    
    
    Chairman Sensenbrenner. If the gentleman wishes to strike 
the last word----
    Mr. Bachus. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Bachus. The five top Democrats--the five senior 
Democrats on the Armed Services Committee supported this 
legislation. They voted--they agreed with the President, and 
they voted for the legislation. There were only seven Democrats 
on the entire Armed Services Committee, including Mr. Meehan, 
who serves on this committee, who voted against it. And I would 
simply say that to vote against this legislation you are not 
only out of step with the American people, who want something 
done about these terrorist attacks and threat on our national 
security--and if the anniversary of 9/11 wasn't enough, I would 
certainly hope that the exposure of the airline plot in London 
was enough. But I simply say, you know, this vote--this vote is 
about the national security of our country.
    Ms. Jackson Lee. Will the gentleman yield?
    Mr. Bachus. And to vote no and to say that Republicans are 
supporting the President, I would remind you that 19 Democratic 
members of the Armed Services Committee also voted for this 
legislation; and it is not us who are out of step with the 
American people. I think it is those who oppose this 
legislation.
    I will close by saying that Abraham Lincoln said that the 
Constitution is not a suicide pact, and I think that is very 
relevant to what we are considering today. The Supreme Court 
actually suggested that this legislation would address their 
concerns; and, thus, this legislation--this legislation is--
part of that is in response to what the Supreme Court in their 
opinion suggested that we as a Congress do to cure their 
concerns; and that is what we are doing.
    Mr. Berman. Mr. Chairman, I move the previous question.
    Chairman Sensenbrenner. Without objection, the previous 
question is ordered. A reporting quorum is present. The 
question is on reporting the bill, H.R. 6054, favorably. All in 
favor will say aye; opposed, no. The noes appear to have it.
    Mr. Chabot. Ask for a recorded vote.
    Chairman Sensenbrenner. The gentleman from Ohio asks for a 
recorded vote. A recorded vote will be ordered. Those in favor 
of reporting the bill favorably will, as your names are called, 
answer aye; those opposed, no.
    And the Clerk will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble votes aye.
    Mr. Smith.
    [No response.]
    The Clerk. Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte.
    [No response.]
    The Clerk.Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot votes aye.
    Mr. Lungren.
    [No response.]
    The Clerk. Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins votes aye.
    Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon votes aye.
    Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus votes aye.
    Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis votes no.
    Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler votes aye.
    Mr. Green.
    [No response.]
    The Clerk. Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. Aye.
    The Clerk. Mr. Issa votes aye.
    Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake votes no.
    Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence votes aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes votes aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King votes aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney votes aye.
    Mr. Franks.
    Mr. Franks. Aye.
    The Clerk. Mr. Franks votes aye.
    Mr. Gohmert.
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert votes aye.
    Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers votes no.
    Mr. Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman votes no.
    Mr. Boucher.
    Mr. Boucher. No.
    The Clerk. Mr. Boucher votes no.
    Mr. Nadler.
    Mr. Nadler. No.
    The Clerk. Mr. Nadler votes no.
    Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott votes no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt votes no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren votes no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee votes no.
    Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters votes no.
    Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan votes no.
    Mr. Delahunt.
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt votes no.
    Mr. Wexler.
    Mr. Wexler. No.
    The Clerk. Mr. Wexler votes no.
    Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner votes no.
    Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff votes no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez votes no.
    Mr. Van Hollen.
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen votes no.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. No.
    The Clerk. Ms. Wasserman Schultz votes no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman votes aye.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes?
    Gentleman from Texas, Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. How am I recorded Mr. Chairman?
    The Clerk. Mr. Chairman, Mr. Goodlatte is not recorded.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Chairman Sensenbrenner. Gentleman from Wisconsin, Mr. 
Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Chairman Sensenbrenner. Gentleman from California, Mr. 
Lungren.
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their vote?
    Gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their vote?
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 17 ayes and 20 nays.
    Chairman Sensenbrenner. The motion to report favorably is 
not agreed to.
    The Chair now moves to report----
    Mr. Scott. Mr. Chairman, I have a motion to make.
    Chairman Sensenbrenner. The Chair has recognized himself.
    The Chair now moves to report the bill unfavorably.
    Without objection, the previous question is ordered. Those 
in favor of the Chair's motion will say aye; those opposed, no.
    The ayes appear to have it. The ayes have it. The bill is 
reported adversely. Without objection, the bill will be 
reported adversely to the House in the form of a single 
amendment in the nature of a substitute incorporating the 
amendments adopted here today. Without objection, the staff is 
directed to make any technical and conforming changes; and all 
members will be given 2 days, as provided by the House rules, 
in which to submit additional dissenting supplemental or 
minority views.
    [Intervening business.]
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Texas, Mr. Gohmert, seek recognition?
    Mr. Gohmert. Mr. Chairman, I move to reconsider the vote on 
the motion to report the bill H.R. 6054 adversely on which the 
ayes prevailed by voice vote.
    Chairman Sensenbrenner. The gentleman qualifies. The motion 
is not debatable because the underlying motion was not 
debatable. Those in favor----
    Mr. Weiner. Mr. Chairman, point of order.
    Chairman Sensenbrenner. State your point of order.
    Mr. Weiner. Mr. Chairman, I make a point of order that once 
a bill is reported out of this committee to the floor, it is no 
longer on our calendar, no longer subject to further amendment 
without being rescheduled or recalendared.
    Chairman Sensenbrenner. The point of order is not well 
taken because the motion to reconsider lies at any time during 
the markup at which the vote was taken.
    The question is on the motion by the gentleman from Texas, 
Mr. Gohmert, to reconsider the vote by which the bill was 
reported adversely.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it.
    Mr. Nadler. rollcall.
    Chairman Sensenbrenner. rollcall is ordered. The question 
is shall the vote by which H.R. 6054 was reported adversely be 
reconsidered.
    Those in favor will, as your names are called, answer aye. 
Those opposed, no. The Clerk will call the roll.
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The Clerk will call the roll.
    The Clerk. Mr. Hyde.
    Chairman Sensenbrenner. State your parliamentary inquiry.
    Mr. Nadler. My point is, isn't it the case before we can 
vote on a motion to reconsider the vote by which the motion to 
report favorably was not passed, we first have to vote to 
reconsider the vote by which the bill that was reported 
unfavorably was passed?
    Chairman Sensenbrenner. That is exactly what we are doing. 
The Clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye.
    Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye.
    Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Lungren.
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye.
    Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye.
    Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye.
    Mr. Franks.
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye.
    Mr. Gohmert.
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye.
    Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no.
    Mr. Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman, no.
    Mr. Boucher.
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no.
    Mr. Nadler.
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no.
    Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. A ``no'' vote for justice.
    The Clerk. Ms. Jackson Lee, no.
    Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters, no.
    Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Mr. Delahunt.
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt, no.
    Mr. Wexler.
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no.
    Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no.
    Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no.
    Mr. Van Hollen.
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. No.
    The Clerk. Ms. Wasserman Schultz, no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Any members who wish to cast or 
change their votes? If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 20 ayes and 19 nays.
    Chairman Sensenbrenner. The motion to reconsider is agreed 
to. The question now is--the question is nondebatable. That is 
quite clear under the rules.
    Ms. Wasserman Schultz. I don't wish to debate it, Mr. 
Chairman, I suggest the absence of a quorum.
    Chairman Sensenbrenner. The Chair rules that a quorum is 
present. There is one member absent.
    Mrs. Wasserman Schultz. Mr. Chairman, can I have a rollcall 
vote on that, please?
    Chairman Sensenbrenner. The Chair rules that to be dilatory 
because it is obvious that only one member is absent. A 
recording quorum is present.
    The question is shall the bill H.R. 6054 be reported 
adversely.
    Those in favor will say aye. Opposed, no.
    The noes appear to have it.
    Ms. Jackson Lee. rollcall.
    Chairman Sensenbrenner. rollcall is ordered. The question 
is on reporting H.R. 6054 adversely.
    Those in favor will, as your names are called, answer aye. 
Those opposed no.
    The Clerk will call the roll.
    Mr. Scott. Could you restate the motion?
    Chairman Sensenbrenner. The Chair will restate the question 
once the committee is in order, lest there be any confusion. 
The question is, shall the bill H.R. 6054 be reported 
adversely?
    Those in favor will, as your names are called, answer aye. 
Those opposed, no.
    And the Clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no.
    Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis.
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Mr. Flake.
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye.
    Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Franks.
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher.
    Mr. Boucher. Aye.
    The Clerk. Mr. Boucher, aye.
    Mr. Nadler.
    Mr. Nadler. Pass.
    The Clerk. Mr. Nadler, pass.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    [No response.]
    The Clerk. Mr. Weiner.
    Mr. Weiner. Pass.
    The Clerk. Mr. Weiner, pass.
    Mr. Schiff.
    Mr. Schiff. Pass.
    The Clerk. Mr. Schiff, pass.
    Ms. Sanchez.
    Ms. Sanchez. Pass.
    The Clerk. Ms. Sanchez, pass.
    Mr. Van Hollen.
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye.
    Mr. Chairman.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes.
    Mr. Nadler. Mr. Chairman. Aye.
    The Clerk. Mr. Nadler, aye.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Wexler.
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Chairman Sensenbrenner. The gentlewoman from California.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner.
    Mr. Weiner. Yes.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes. If not, the Clerk will report.
    Mr. Delahunt. What about me?
    The Clerk. Mr. Delahunt has not recorded.
    Chairman Sensenbrenner. The gentleman from Massachusetts.
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt, aye.
    Chairman Sensenbrenner. The Clerk will report.
    The Clerk. Mr. Chairman, there are 19 ayes and 20 nays.
    Chairman Sensenbrenner. The motion to report adversely is 
not agreed to.
    For what purpose does the gentleman from Texas, Mr. 
Gohmert, seek recognition?
    Mr. Gohmert. Mr. Chairman, I now move to reconsider the 
vote on the motion to report bill H.R. 6054 favorably, in which 
the noes prevailed.
    Chairman Sensenbrenner. Did the gentleman vote ``no'' on 
the rollcall to report favorably?
    Mr. Gohmert. I voted ``yes'' before I voted ``no,'' 
Chairman. But I did vote ``no''. Yes.
    Chairman Sensenbrenner. Then the gentlemen qualifies. The 
question is, shall the vote by which the bill H.R. 6054 failed 
a favorable reporting be reconsidered?
    Those in favor will say aye. Opposed, no.
    The noes appear to have it.
    Mr. Lungren. rollcall.
    Chairman Sensenbrenner. A request for a rollcall has been 
made. Those in favor of reconsidering the vote by which H.R. 
6054 failed at being favorably recorded will, as your names are 
called, answer aye. Those opposed, no.
    The Clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye.
    Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye.
    Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Lungren.
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye.
    Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye.
    Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Mr. Pence.
    [No response.]
    The Clerk. Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye.
    Mr. Franks.
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye.
    Mr. Gohmert.
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye.
    Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no.
    Mr. Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman, no.
    Mr. Boucher.
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no.
    Mr. Nadler.
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no.
    Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no.
    Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters, no.
    Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Mr. Delahunt.
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt, no.
    Mr. Wexler.
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no.
    Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no.
    Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no.
    Mr. Van Hollen.
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. No.
    The Clerk. Ms. Wasserman Schultz, no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members in the Chamber who wish to 
cast or change votes. The gentleman from Indiana, Mr. Pence.
    Mr. Pence. Yes.
    The Clerk. Mr. Pence, aye.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes. If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 20 ayes and 19 nays.
    Chairman Sensenbrenner. The motion to reconsider is agreed 
to.
    The question now is, shall the committee agree to the 
motion to report the bill H.R. 6054 favorably. A reporting 
quorum is present.
    Those in favor will say aye. Opposed, no.
    The ayes appear to have it.
    Recorded vote is requested. Those in favor of favorably 
reporting the bill 6054 will, as your names are called, answer 
aye. Those opposed, no.
    The Clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye.
    Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye.
    Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Lungren.
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye.
    Mr. Bachus.
    [No response.]
    The Clerk. Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye.
    Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye.
    Mr. Franks.
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye.
    Mr. Gohmert.
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye.
    Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no.
    Mr. Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman, no.
    Mr. Boucher.
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no.
    Mr. Nadler.
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no.
    Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Pass.
    The Clerk. Ms. Jackson Lee, pass.
    Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters, no.
    Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Mr. Delahunt.
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt no.
    Mr. Wexler.
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no.
    Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no.
    Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no.
    Mr. Van Hollen.
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. No.
    The Clerk. Ms. Wasserman Schultz, no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes. The gentleman from Alabama, Mr. Bachus.
    Mr. Bachus. Yes.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. Mr. Chairman, how am I recorded?
    The Clerk. Mr. Chairman, Ms. Jackson Lee is recorded as a 
pass.
    Ms. Jackson Lee. No.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes. If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 20 ayes and 19 nays.
    Chairman Sensenbrenner. The motion to favorably report is 
agreed to. Without objection, the staff is directed to make any 
technical conforming changes and all members will be given 2 
days, as provided by the rules, in which to submit additional 
dissenting, supplemental, or minority views.
    [Intervening business.]
    [Whereupon, at 6:08 p.m., the committee was adjourned.]

                            DISSENTING VIEWS

    We dissent from the passage of H.R. 6054, the ``Military 
Commissions Act of 2006.'' While we believe it is necessary 
that Congress pass legislation to provide the President with a 
tough and fair system of military commissions that will ensure 
swift convictions for terrorists, we have serious concerns 
about the manner in which this legislation achieves that vital 
objective.
    We dissent for several reasons. First, the legislation 
endangers our service members by rewriting and limiting 
compliance with the Geneva Conventions and with U.S. legal 
norms. Second, the legislation violates separation of powers by 
stripping federal courts of habeas jurisdiction. Finally, the 
legislation was considered under a flawed and unnecessarily 
truncated process. The legislation is strongly opposed by the 
following wide array of individuals, organizations, and highly 
respected members of the U.S. military: retired General and 
former Chairman of the Joint Chiefs of Staff Colin Powell;\1\ 
retired General and former Chairman of the Joint Chiefs of 
Staff John Vessey;\2\ retired Rear Admirals John Hutson and 
Donald Guter, and retired Brigadier General David Brahms;\3\ 
forty-five retired military leaders;\4\ and numerous families 
who lost loved ones in the 9/11 attacks.\5\
---------------------------------------------------------------------------
    \1\ Letter from General Colin Powell to the Hon. John McCain 
(September 13, 2006), available at http://www.washingtonpost.com/wp-
dyn/content/graphic/ 2006/09/14/GR2006091400728.html.
    \2\ Letter from General John Vessey to the Hon. John McCain 
(September 12, 2006) (on file with the House of Representatives 
Committee on the Judiciary, Democratic Staff).
    \3\ Letter from retired Rear Admirals John Hutson and Donald Guter, 
and retired Brigadier General David Brahms to the Hon. John Warner, 
Chairman of the Senate Committee on Armed Services and the Hon. Carl 
Levin, Ranking Member of the Senate Committee on Armed Services 
(September 12, 2006) (on file with the House of Representatives 
Committee on the Judiciary, Democratic Staff).
    \4\ Letter to the Hon. John Warner, Chairman of the Senate 
Committee on Armed Services and the Hon. Carl Levin, Ranking Member of 
the Senate Committee on Armed Services (September 12, 2006) (on file 
with the House of Representatives Committee on the Judiciary, 
Democratic Staff).
    \5\ Letter from over 35 family members to the Hon. John Warner, 
Chairman of the Senate Committee on Armed Services and the Hon. Carl 
Levin, Ranking Member of the Senate Committee on Armed Services 
(September 14, 2006) (on file with the House of Representatives 
Committee on the Judiciary, Democratic Staff).
---------------------------------------------------------------------------

                       DESCRIPTION OF LEGISLATION

    H.R. 6054 has, as its stated purpose, ``to authorize trial 
by military commission for violations of the law of war . . .'' 
First, the legislation would authorize standards and procedures 
for the military commissions within the Uniform Code of 
Military Justice.\6\ Among other things, the bill provides 
standards for the admission of evidence, including hearsay 
evidence, and in certain circumstances, allows for the 
introduction of sensitive classified information into evidence 
outside the presence of the accused.\7\
---------------------------------------------------------------------------
    \6\ Section 3, H.R. 6054, creating new chapter 47A of Title 10, 
United States Code.
    \7\ Id.
---------------------------------------------------------------------------
    Second, in Section 4, H.R. 6054 would amend title 18, 
United States Code, to redefine a war crime under United States 
law as any ``serious'' violation of Common Article 3 of the 
Geneva Conventions (``Common Article 3'').\8\ Conduct, which 
would constitute a serious violation of Common Article 3, would 
include torture, cruel or inhuman treatment, murder, mutilation 
or maiming, intentionally causing great suffering or serious 
injury, and taking hostages. The section narrowly defines cruel 
or inhuman treatment, in contrast to the Common Article 3 
standard, making the definition similar to the definition of 
torture.\9\
---------------------------------------------------------------------------
    \8\ Common Article 3 of the 1949 Geneva Conventions sets out 
minimum standards for the treatment of detainees in armed conflicts of 
a non-international character. Such persons are to be treated humanely 
and protected from certain treatment, including ``violence to life and 
person'' ``cruel treatment and torture,'' and ``outrages upon personal 
dignity, in particular, humiliating and degrading treatment.''
    \9\ The bill defines cruel and inhuman treatment almost identically 
with torture, linking it to ``severe physical pain or suffering or 
severe mental pain or suffering . . . including severe physical abuse . 
. .'' It does not further define ``severe physical abuse'' which 
distinguishes the offense from torture.
---------------------------------------------------------------------------
    Third, in Section 5, the legislation would amend title 28, 
United States Code, to allow for limited appeals of commission 
and Combatant Status Review Tribunal decisions to the United 
States Court of Appeals for the District of Columbia Circuit. 
In addition, the section strips federal courts of pending or 
future habeas jurisdiction ``relating to any aspect of the 
alien's detention, transfer, treatment, or conditions of 
confinement.''
    Fourth, the legislation, in Section 6, would lower the 
standards of the Geneva Conventions by establishing that 
compliance with section 1003 of the Detainee Treatment Act 
(``DTA'') of 2005 \10\ fully satisfies the obligations of the 
United States with regard to Common Article 3. In addition, the 
section prohibits individuals from invoking the Conventions 
``as a source of rights'' in U.S. courts.
---------------------------------------------------------------------------
    \10\ Public Law 109-148.
---------------------------------------------------------------------------

                       CONCERNS WITH LEGISLATION

A. H.R. 6054 endangers our troops by lowering U.S. and international 
        standards

    The legislation endangers our troops because it lowers the 
standards set forth in the Geneva Conventions, treaties this 
nation led the way in establishing and has maintained for over 
50 years. In fact, the Geneva Conventions have been ratified by 
194 countries and our own JAGs have testified that the United 
States military has been trained to comply with them for 
decades.
    Redefining the Geneva Conventions poses a grave threat to 
our troops. Our uniformed military has been among the most 
vocal in their concerns about diluting this standard because 
they want to do everything possible to ensure that American 
forces would be treated with a similarly high standard if 
captured. Former Secretary of State, retired Gen. Colin Powell 
has stated that the Administration's proposal ``would put our 
own troops at risk.'' \11\ The highly respected former Chairman 
of the Joint Chiefs of Staff, General John Vessey, has said 
that the change, ``could give opponents a legal argument for 
the mistreatment of Americans being held prisoner in time of 
war'' and would ``undermine the moral basis which has . . . 
guided our conduct in war throughout our history.'' \12\
---------------------------------------------------------------------------
    \11\ Letter from General Colin Powell to the Hon. John McCain 
(September 13, 2006), available at http://www.washingtonpost.com/wp-
dyn/content/graphic/ 2006/09/14/GR2006091400728.html.
    \12\ Letter from General John Vessey to the Hon. John McCain 
(September 12, 2006) (on file with the House of Representatives 
Committee on the Judiciary, Democratic Staff).
---------------------------------------------------------------------------

B. The bill broadly strips courts of habeas jurisdiction

    In a sweeping measure, Section 5 of H.R. 6054 contravenes 
separation of powers and constitutional guarantees by stripping 
federal courts of habeas review.\13\ If there is any one 
principle that has defined our nation, it is the respect for 
the rule of law and the independence of the courts. As numerous 
former federal judges, including Reagan FBI Director Sessions 
wrote, ``[f]or two hundred years, the federal judiciary has 
maintained Chief Justice Marshall's solemn admonition that ours 
is a government of laws, and not men. The proposed legislation 
imperils this proud history . . .'' \14\
---------------------------------------------------------------------------
    \13\ Habeas petitions ``ask whether there is a sufficient factual 
and legal basis for a prisoner's detention . . . [habeas] safeguards 
the most hallowed judicial role in our constitutional democracy--
ensuring that no man is imprisoned unlawfully . . . [w]ithout habeas, 
federal courts will lose the power to conduct this inquiry.'' Letter 
from nine retired federal judges to Members of Congress regarding H.R. 
6054 (September 14, 2006) (on file with the House of Representatives 
Committee on the Judiciary, Democratic Staff).
    \14\ Id.
---------------------------------------------------------------------------
    Moreover, by legislating that all pending and future habeas 
petitions are not subject to judicial review, the legislation 
leaves itself open to an adverse court ruling that will strike 
this bill similar to how the Supreme Court struck down the 
President's use of military commissions in Hamdan v. 
Rumsfeld.\15\ This would lengthen the current delay in the 
prosecution of terrorists. Not a single trial has taken place, 
or a single criminal convicted, in military commissions in the 
more than five years since September 11, 2001.\16\
---------------------------------------------------------------------------
    \15\ 126 S. Ct. 2749 (2006).
    \16\ The importance of habeas is not a hypothetical concern. This 
Administration has been flatly wrong in its assessments as shown by the 
example of Maher Arar, who was falsely branded a terrorist and rendered 
to Syria where he tortured for 10 months. See Doug Struck, ``Canadian 
Was Falsely Accused, Panel Says,'' Washington Post, September 19, 2006, 
at A01. In fact, if the provisions of this bill had been in force, the 
Hamdan ruling itself would not have been possible. Hamdan brought his 
challenge via a habeas petition.
---------------------------------------------------------------------------

C. Flawed process for committee consideration

    We also express our concerns regarding the Committee 
process. While we support the Committee obtaining jurisdiction 
to consider this important measure, it was also incumbent on 
the Committee to conduct hearings on this critical issue to 
inform the judgment of the Members. Unfortunately, no such 
hearings were held.
    In addition, we would also note that during the markup, the 
Committee initially voted to defeat reporting the measure. 
Unfortunately, the Committee then went through a number of 
tortured exercises to reconsider and ultimately approve the 
measure, after the Majority was able to convince more of its 
members to attend the markup.\17\ We would note that when the 
Majority assumed power in 1995, one of their first measures was 
to eliminate proxy voting so that only those Members who 
attended the markups would affect the outcome of bills. By now 
developing a policy that in essence states that if the Majority 
loses a vote because its Members did not bother to show up, 
they will simply revote when their Members are available or it 
is convenient for them, they have essentially returned to the 
functional equivalent of proxy voting. This is unfair to the 
Members who take time out of their day to participate in the 
markup.
---------------------------------------------------------------------------
    \17\ Dana Milbank, ``Bush's Bill Suffers a Torturous Day in 
Committee,'' Washington Post, September 21, 2006, at A02.
---------------------------------------------------------------------------

                               CONCLUSION

    We need to come together to develop a fair system of 
military commissions that will swiftly convict terrorists. 
However, we cannot support legislation that in the name of 
fighting terrorism endangers our brave troops, undermines our 
nation's moral authority, and contravenes the principle of 
separation of powers and rule of law that our nation was 
founded on. The Committee should have passed a stronger more 
intelligent bill, that finally holds terrorists accountable but 
at the same time can withstand judicial scrutiny, protect 
American troops under the Geneva Conventions, and remains true 
to American values.

        DESCRIPTION OF AMENDMENTS OFFERED BY DEMOCRATIC MEMBERS

    During the markup, there were three amendments offered by 
Democratic members. One amendment by Mr. Schiff and Mr. Flake, 
one amendment by Mr. Meehan and one by Ms. Jackson-Lee and Mr. 
Nadler.
    1. Amendment offered by Rep. Schiff and Rep. Flake (#1)
    Description of amendment: The Schiff-Flake amendment sought 
to define the domestic war crime of ``cruel or inhuman 
treatment'' by using the standards set out in the 5th, 8th, and 
14th Amendments of the U.S. Constitution, similar to the 
definition in the Warner Bill (S. 3901) and the Detainee 
Treatment Act.
    The amendment was defeated by a vote of 17 to 18. Ayes: 
Representatives Conyers, Berman, Boucher, Nadler, Scott, Watt, 
Lofgren, Jackson Lee, Waters, Meehan, Delahunt, Weiner, Schiff, 
Sanchez, Van Hollen, Inglis, and Flake. Nays: Representatives 
Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, 
Cannon, Hostettler, Green, Issa, Pence, Forbes, King, Feeney, 
Franks, Gohmert, and Sensenbrenner.
    2. Amendment offered by Rep. Martin Meehan (#2)
    Description of amendment: The Meehan amendment sought to 
strike Section 5, thereby exempting the bill's restrictions on 
judicial review.
    The amendment was defeated by a vote of 12 to 15. Ayes: 
Representatives Conyers, Berman, Boucher, Nadler, Scott, 
Jackson Lee, Meehan, Delahunt, Weiner, Schiff, Van Hollen, and 
Wasserman Shultz. Nays: Representatives Coble, Smith, 
Goodlatte, Chabot, Lungren, Jenkins, Cannon, Inglis, Green, 
Flake, Forbes, Feeney, Franks, Gohmert, and Sensenbrenner.
    3. Amendment offered by Rep. Jackson Lee and Rep. Nadler 
(#3)
    Description of amendment: The Jackson Lee-Nadler Amendment 
sought to strike Section 6(b), which reads, ``No person in any 
habeas action or any other action may invoke the Geneva 
Conventions or any protocols thereto as a source of rights, 
whether directly or indirectly, for any purpose in any court of 
the United States or its States or territories.''
    The amendment was defeated by a vote of 17 to 18. Ayes: 
Representatives Conyers, Berman, Boucher, Nadler, Scott, Watt, 
Lofgren, Jackson Lee, Waters, Meehan, Delahunt, Wexler, Weiner, 
Schiff, Sanchez, Van Hollen, and Wasserman Shultz. Nays: 
Representatives Coble, Smith, Goodlatte, Chabot, Lungren, 
Jenkins, Cannon, Bachus, Inglis, Hostettler, Issa, Flake, 
Forbes, King, Feeney, Franks, Gohmert, and Sensenbrenner.

                                   John Conyers, Jr.
                                   Rick Boucher.
                                   Robert Scott.
                                   Zoe Lofgren.
                                   Maxine Waters.
                                   William Delahunt.
                                   Anthony D. Weiner.
                                   Linda T. Sanchez.
                                   Debbie Wasserman Schultz.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Martin Meehan.
                                   Robert Wexler.
                                   Adam B. Schiff.
                                   Chris Van Hollen.