Friday, September 29, 2006

Senate Preview - Week of September 25, 2006

STATUS as of 8:10 AM, Oct 2

Added reference to passage of the Online Gambling Prohibition Act under H.R.4954. Corrections and additions, H.R.5122 and H.R.6198 shifted from "not yet passed" to "passed."


Returned COA judicial nominees: Boyle, Haynes, Myers, Smith, Wallace, KEISLER
Also returned was BOLTON, to be Ambassador to the UN.
Also returned was Stickler, to be Assistant Secretary of Labor for Mine Safety & Health.


H.Con.Res.483 Senate adjourned at 2:30 AM, Saturday, September 30.

Signing Statement by the President on H.R. 5631, DoD Appropriations Act, 2007, is quite interesting. I linked to it in my summary of Senate action on the bill and interspersed statutory language with the paragraphs of the signing statement. Just raw material, no analysis or commentary.

Sept 25 - 15:30

According to Tim Curran of Roll Call, Senate leadership (Frist) plans to finish work on the following measures this week. Note absence of fence-only bill.

Senator Sessions discussed the fence-only bill, and most of my running commentary on the fence-only bill will be at the end of this post. But I can't resist making a prediction here. I predict confusion in the nature of "What's with two cloture motions? The first one passed!" if a cloture motion is filed to vote on the underlying bill.

  • Conference report on H.R.5122 (S.2766) - National Defense Authorization Act for Fiscal Year 2007 (House-Senate Disagreement Could Halt Defense Bill - 060925. The House is insisting on adding the language of its H.R.6094 - The Community Protection Act) (Senate Agreed with Conference Report 109-702 - without the language of H.R.6094 - The Community Protection Act)
    PASSED by unanimous consent early morning of Sept 30
  • H.R.6198 - Iran Freedom Support Act
    PASSED by unanimous consent early morning of Sept 30
  • Conference Report on H.R.4954 - [Sea]Port Security Improvement Act of 2006
    PASSED by unanimous consent early morning of Sept 30
  • Conference report on H.R.5441 - Department of Homeland Security Appropriations Act, 2007 (See Senate Live July 13, 2006 and earlier for summary of debate and issues - July 10 includes discussion of legislation for military tribunals)
    PASSED by voice vote after 11:15 PM Sept 29
  • S.403 - to prohibit taking minors across State lines in circumvention of laws requiring the involvement of parents in abortion decisions (returned from House, cloture motion to vote on concur with the house filed 9/27, cloture vote on 9/29)
    CLOTURE MOTION REJECTED 57-42 at 10:20 PM Sept 29
  • H.R.6061 - The Secure Fence Act of 2006 - was temporarily hijacked to be a vehicle for military tribunals. Military tribunals was later taken off this bill. Cloture motion for voting on the fence bill passed on 9/28
    PASSED 80-19 at 9:59 PM Sept 29
  • Conference Report on H.R.5631 - Department of Defense Appropriations Act, 2007
    PASSED 100-0 at 10:41 AM Sept 29
  • S.3930 - Military Commissions Act of 2006 [McConnell, Frist, Warner] (consideration was initially undertaken via S.Amdt.5036 to H.R.6061 - The Secure Fence Act of 2006, then moved to this bill on 9/27)
    PASSED 65-34 at 7:04 PM Sept 28


The military commissions and NSA wiretapping may be taken up "in combination," in the form of S.3929, which is exactly the concatenation of S.3930 and S.3931.

I plan to prepare separate posts for some of the major bills above.

My running commentary has been tacked to each of the following:

H.R.6061 - The Secure Fence Act of 2006
Senator Specter on Legal Process for Detainees (habeas)
Interrogation Techniques : S.3861 vs. S.3901
Establishing Military Commissions

This week promises to be an exciting whirlwind. You'll pardon me if I pause just to marvel at the intensity of it all.

UPDATE @ 18:18

The nomination of Francisco Besosa to be a United States District Judge for the District of Puerto Rico was
PASSED on a 87 - 0 vote.

Frist calls for a time of morning business, then makes a quorum call.

UPDATE @ 19:10

Senator Frist filed cloture motions on H.R.6061 - fence only, and on "the Hamdan Language," a reference to either S.3929 or S.3930, I don't know which because I was outdoors playing.

1st degree amendments can be filed until 1PM tomorrow. Cloture votes Wednesday morning, or earlier if unanimous consent can be reached.

UPDATE @ Sep 26

Turns out that what I missed last evening was the wholesale importation of the Military Commissions Bill to the fence-only bill as an amendment, so the two matters are now co-pending under the same bill number!

Another tidbit that may or may not be on the calendar for this week (I don't know whether or not negotiations with the People's Republic of China regarding China's undervalued currency have been successful), here is a months-old unanimous consent agreement:

6.--Ordered, That the Majority Leader, after consultation with the Democratic Leader, shall no later than September 29, 2006, or the last day of the second session of the 109th Congress, whichever is earliest, call up S. 295, a bill to authorize appropriate action if the negotiations with the People's Republic of China regarding China's undervalued currency are not successful; provided that if the bill has not been reported by then by the Committee on Finance it be discharged at that time and the Senate proceed to the consideration thereof; that there be 2 hours for debate equally divided between the Senator from Iowa (Mr. Grassley) and the Democratic Leader, or his designee, that no amendments or motions be in order, including committee amendments, that after the use or yielding back of time, the bill be read a third time and the Senate proceed to a vote on passage of the bill, with no intervening action or debate. (July 1, 2005, Mar. 29, 2006.)


September 28 Action
A unanimous-consent agreement was reached providing that the orders of July 1, 2005 and March 29, 2006, with respect to S.295, to authorize appropriate action in the negotiations with the People's Republic of China regarding China's undervalued currency are not successful, be vitiated.

UPDATE @ 11:20

Miscellaneous stuff coming up, Enzi's health care insurance bill, S.1955 for example, and H.R.5970 - Minimum Wage and Estate Tax Act of 2006 (trifecta - Family Prosperity Act) DEMs objected to passing this - but they did call for further debate, having rejected the cloture motion at 22:08 on Aug 3rd. I predict the AMT extender part of this bill will pass this week. The GOP will sacrifice the estate tax and minimum wage aspects, because the AMT extenders are important not only to the DEM constituency, but also to a significant fraction of the GOP constituency.

UPDATE @ 11:50

Senator Landrieu's pet project of the day is drilling in the Gulf of Mexico. Note that a contentious part of the proposed legislation involves royalties payable directly to the states that border the Gulf of Mexico.

UPDATE @ 16:20

AP reports Congress Unlikely to Pass Wiretapping and Part of Bush's Anti-Terror Plan Stalled. Carry one of the items from the original list over to the lame-duck session?

UPDATE @ Sep 27

Military Tribunals shifted to a stand-alone proposition under S.3930, which will pass on a fundamentally partisan basis. The fence-only bill has been set aside.

S.403 - Child Custody Protection Act, is the subject of a cloture motion. I'm not clear on whether the cloture motion is to "take up," or to "vote on passage." [Page S10346: move to bring to a close debate on the motion to concur in the House amendment to S. 403:]

UPDATE @ Sept 28, 20:19

Senator Enzi discloses that 5 Senators, from NY, NJ and California, are blocking S.2823 - Ryan White HIV/AIDS Treatment Modernization Act. He brought this up at 16:55 on Tuesday, September 26. Hmmm. Clinton, Schumer, Lautenberg, Menendez, Boxer and Feinstein. Which one to strike?

At 20:28, objection is heard. Dayton supports the legislation, notes that 14 states would lose funding - but he doesn't object because his state doesn't lose funding. He also raises the question of the need for additional funding. Senator Enzi addresses the question of payment to states by reference to "Older Americans Act" which has a similar formula. He also asserts that NJ, NY and California are presently being grossly overpaid.

Funny exchange between Allen (in the chair) who wants an answer to "is their objection" and Enzi, who is properly saying he is answering questions and thereby keeps the (foregone) objection from maturing.

Senator/Doctor Coburn says that objecting to this bill, because your state is getting an overpayment that it wants to keep, while people are dying because the bill isn't being passed, is "obscene." It is "unconscionable" that the objecting Senators won't step up and publicly defend their objections. He points out that 4 conservative Senators are the biggest defenders of getting funding for HIV/Aids patients.

Transcript of the debate

Thursday the 28th - 21:40
My massaged notes of the schedule according to Senator Frist ...

 - H.R.5631 conference report vote at 10:00 Friday
 - H.R.6198 ILSA - will ask for UC to consider and vote on Friday (Iran)
 - H.R.6061 border fence 71-28 cloture vote, indicates a level of support 
            that justifies expediting vote on border fence bill
            (he wants agreement to limit debate to less than 30 hours and 
            is grinning like cat who ate canary - he knows there won't be 
 - S.403 cloture vote on accepting the House amendment
 - H.R.4959 seaport security
 - nominations
 - US UK extradition treaty
 - energy package 
 - can expect a Saturday session if required to complete the above

UPDATE @ Sept 29

I'll make occasional comments here and maintain the punchlist at the top as I (sort of) track action as the Senate closes down for re-election recess.

UPDATE @ 10:41

Senator Frist tried to get a unanimous consent agreement for time for specified Senators to speak in morning business, a time filler to 12:30 so he and Reid can negotiate the balance of the day. Senator Landrieu asked to be added, and eventually objected to Frist's proposed order. The deal finally struck:

- Byrd 20 minutes [Senate has neglected appropriations bills]
- Santorum 20 minutes [Fence, immigration, and Iran freedom act]
- Feinstein 15 minutes [Push AgJobs amendment to fence bill]
- DeMint 10 minutes [Education Opportunity Act]
- Enzi/Burr 20 Minutes [urgent passage of Bioterroism legislation]
- Landrieu 10 minutes [offshore drilling - lease Area 81]
- Boxer 10 minutes [opposes border fence bill, for AgJobs]
- Craig 10 minutes [Push AgJobs and other immigration amendments]

No Senate Judiciary Committee Action
[Ed Whelan 09/29 11:35 AM]

Unbelievable but true: Today's Senate Judiciary Committee executive session failed to result in any action on the pending circuit-court nominees. ... [lots more, worth a read]

UPDATE @ 12:10

Another bill to add to the "must pass before recess" list. I haven't heard Senator Frist pick this one up yet. Senators Enzi and Burr promoted S.3678 - Pandemic and All-Hazards Preparedness Act [Burr] (or S.2564 Biodefense and Pandemic Vaccine and Drug Development Act of 2006 [Burr]), and indicated that Senator Frist might offer it later today. He further said that he anticipated the offer would be met with objection.

Senators Gregg and Coburn each obtain 5 minutes to speak on the same issue, inserting their time between the time allocated to Enzi, and the time allocated to Landrieu.

List of bills held up? Ryan White HIV/AIDS, Pandemic Preparedness Act, "Trifecta," Drought David Relief, AgJobs ... it's a long list.

Senator Landrieu is the one who insisted on getting a speaking spot - and she was late for her own speech. Should have been there at 12:15, showed up at 12:22.

Senator Burr makes a UC request to pass S.2564 - Biodefense and Pandemic Vaccine and Drug Development Act of 2006, and Senator Murray makes a counteroffer UC request on the same subject, using S.3678 - Pandemic and All-Hazards Preparedness Act as the starting point, then adding quite a few named amendments, followed by 6 hours of debate. After a brief parliamentary debate (can a UC request be made while another UC request is pending? No. Can a UC request be phrased as a request to modify the pending request? Yes) Murry's counteroffer was rejected, Murry rejected Burr's request. The sides are at loggerheads.

UPDATE @ 12:36

Senator Landrieu pushing the development of oil extraction in the Gulf of Mexico, and she explains why she objects to the House version, which includes drilling off the cost of Virginia. Another time filler that may result in a UC request to pass her preferred bill, which (if offered) will be objected to.

Ms. LANDRIEU. ... My bill gives everybody gas.

Added a couple more speakers. Frist and Reid must be having a hard time developing agreement as to how to finish the hours before recess.

- Murray 15 minutes [Senate has neglected appropriations bills]
- Kennedy 15 minutes [various criticism, immigration, Iraq]

UPDATE @ 13:55

Senator Murray says not bringing up the appropriations bills is a failure attributable to Senator Frist. It is, but it's not significant except for the politics that it facilitates. I hold that not bringing up judicial nominees that were on the Executive Calendar was a significant failure.

Senator Craig asks for unanimous consent to extend morning business to 3:30 PM. Yep, trouble in paradise. Lots of things to pass, the clock is ticking. On the upside, more "action" will occur during television prime time.

Senator Hutchison asks to bring up S.3661 - A bill to amend section 29 of the International Air Transportation Competition Act of 1979 relating to air transportation to and from Love Field, Texas. - passed

S.4001 - a bill to designate some New England land as wilderness. - passed

She brings up a batch of [forty-one] bills to pass en bloc, and Coburn rises to complain, but not lodge a formal objection. This is 4.5 billion dollars that tried to pass in May and July, which Coburn blocked. These are Energy Committee measures. Coburn's objections were reduced to writing then, and are reprinted in the record.

A bit of parliamentary maneuvering relating to the process of "reserving objection" and continuing to speak, with Senator Conrad objecting to Coburn's "reserving the right to object and then talking. Conrad wants to speak. Conrad says either object, or not - the question was "is there objection?"

- Cornyn / Leahy colloquy 5 minutes [Love Field/Wright Amendment]
- Coburn 15 minutes [Pork buried in energy bills]
- Chambliss 10 minutes
- Conrad 30 minutes
- Gregg 10 minutes [progressive tax - DEM v. GOP]
- Dorgan 20 minutes [Iraq]
- Hutchison 15 minutes [Love Field/Wright Amendment]
- Clinton 15 minutes [Ryan White Care Act]
- Chafee 5 minutes [breast cancer]
- Kyl 15 minutes [fence bill]
- Coburn [Rebuts Clinton]
- Byrd [Sarbanes, Jeffords retirement]
- Enzi 45 minutes [Rebuts Clinton in spades]
- Hatch [Rebuts Clinton in spades]
- Hatch [notes willful misinterpretation of the leaked NIE]
- Burr [Rebuts Clinton]

The batch of [forty one] energy bills were passed, and the Senate moves to speeches in the order listed.

UPDATE @ 16:00

Senator Clinton got all defensive about the criticism she's getting over her hold against the Ryan White HIV/AIDs bill. Says her state has been impugned by comments made last night. As a logical or intellectual matter, her defense is not responsive to the criticism.

She goes on to suggest revisions, which are substantively sound propositions (not that I agree with her proposed solutions, but they aren't wacky) - but her delivery sounds so much of anger that most listeners will overlook her words. She's a true shrew.

16:13 - She moved, prompted by Senator Chafee's speech, for unanimous consent to pass S.757 - Breast Cancer and Environmental Research Act. Objection is heard from the GOP. Hillary! turned up the shrill effect in response.

16:29 - Coburn speaks in direct rebuttal to Hillary!s assertions.

16:42 - Byrd more or less gives a thumbs up to the Sarbanes-Oxley Act, in his testimonial on the occasion of the retirement of Paul Sarbanes.

17:12 - Byrd/Dayton mutual admiration society is tendering a performance.

17:25 - Coleman says that Dayton's heart is pure, that we live in a time of polarized partisan politics ... golly, I generally appreciate recognition of a separation between honest difference of opinion and argument based on hate; but I wish these jokers put more effort into logically sound debate, and would skip the public displays of affection.

17:28 - Enzi has 45 minutes. He enters a number of items into the record, including a colloquy between himself, Boxer and Kennedy on the Ryan White AIDS/HIV bill, and he proceeds to deconstruct Hillary!s crappy argument for maintaining a hold.

17:54 - Off topic, but I'm compelled to share this ...

Belgian privacy commission finds against SWIFT

Belgium's Commission for the Protection of Privacy has concluded that SWIFT's transfer of data to the U.S. Treasury - a terrorism-related program brought to widespread public attention by a New York Times article in June 2006 (there is a debate about the extent to which the program previously had been disclosed publicly) - violated Belgian privacy law.

So the NYT article disclosed (and effectively shut down the usefulness of) a secret data sharing activity that was later found to be illegal. Quite the conundrum between "useful" and "illegal," and who gets to assign the labels - as well as how attaching the label "illegal" to the data sharing might affect prosecution of the "illegal leaker" and the NYT for publishing the fact that the secret program exist(s/ed).

18:02 - Senator Hatch is unloading on the Senators who are blocking the Ryan White bill.

18:06 - Senator Hatch is now unloading on the recent leak of a NIE, and the resulting politicization via cherry-picking statements in that NIE.

18:25 - an extension of morning business. Agreed speeches:

- Dayton [rejects the fence-only bill, but thinks it will pass]
- Lautenberg [supports Clinton's position on Ryan White Act]
- Hutchison 15 minutes [didn't speak - bubu in UC agreement]
- Grassley 20 minutes [Tax "trailer" and estate tax]
- Baucus 15 minutes [AMT extension - tax "trailers"]
- Murray [veterans care]
- Chambliss 10 [agricultural disaster relief]
- Harkin 10 [criticizing Dept. of Education]
- Craig 10 [WWII - memorials to Glenn Ford and Joe Rosenthal]
- Menendez 15 [Ryan White - send $$$ to NJ]
- Enzi 15 [Ryan White redeaux]
- Landrieu 15 [Levees, locks, "water resources"/drilling]
- GOP 15 [time yielded back]
- Salazar 15 [urges opposition to the fence bill]
- GOP 15 [time yielded back]
- Lautenberg

18:40 - I'm getting the feeling that S.2823 - Ryan White HIV/AIDS Treatment Modernization Act, is the pending business of the Senate. It's not, but the speeches seem focused on it.

18:47 - Grassley will explain why AMT tax relief and estate tax are DOA. He blames political calculations on both sides - failure of leadership - the better obstructer wins! Vote for the guy who hurts you the least! And watch out as both sides ratchet up the hurt.

I've predicted a GOP cave on the AMT extenders - will the GOP stand firm on keeping the taxes high on all taxpayers, because they couldn't get relief on the estate tax end? The usefulness, as Grassley points out, is to paint the DEMs as obstructers. But the GOP could reduce taxes by taking the AMT and other extenders - it's there for the taking. It the GOP obstructing that tax reduction.

This Grassley speech is surprisingly candid on the matter of political calculation.

19:44 - It appears Frist is determined to have a vote on the fence-only bill, and will let the clock run as needed to get to that point. A couple other vote are locked in, cloture on S.403 for example, and DHS appropriations on "political necessity of both parties, plus necessity of appropriations."

Senate leadership is letting speeches run as long as the speakers want. There is no urgency to get to any particular vote.

A Saturday session is given at this point, but not announced. A roll-call vote at 3 AM would expose night-time condition of all the Senators, and is a generally inconsiderate timing plan.

20:12 - Enzi indicates that he will again make a UC request to pass the Ryan White bill. Recalcitrance on display (the objector/obstructers), as a matter of substance. Time filler, as a matter of parliamentary procedure.

20:25 - Enzi propounds a UC request to take up the Ryan White bill while admitting the Lautenberg amendment with 30 minutes equally divided for debate, then a vote on the Ryan White bill. Objection is heard.

Landrieu says Water and OCS bills are "must pass" for Louisiana before the end of the 109th Congress. This demand may preview the last hurried days before the close of the Congress in November.


20:55 - closing established, following the speeches in morning business. So soon after I say "Saturday is a given," I have to eat crow.

Roll call vote on fence bill, H.R.6061, following agreed time for about 20 minutes of debate, specifically allocated.

Then cloture vote on agreeing to the House amendment and passage of S.403, the child across state lines for abortion act. If cloture fails, go directly to a vote on Conference report on H.R.5441 - Department of Homeland Security Appropriations Act, 2007, with some modest closing debate.

If cloture passes, go directly to vote on S.403 as amended.

Following whichever path that took, vote on Conference Report on H.R.4954 - [Sea]Port Security Improvement Act of 2006

Then to H.Con.Res.483 - adjourn


21:08 - Senator Coburn gently chides Senator Durbin for casting a mental illness compensation bill as "in memory of Paul Wellstone," so that objectors don't respect Wellstone.

21:10 - commentary on H.R.6061 action is here, it passed 80-19.

22:04 - Senator Levin tried to pull a fast one by asking for consent to pass H.R.5122

22:05 - The motion to invoke cloture on S.403 - Child Custody Protection Act was
REJECTED (at 22:30) on a 57 - 42 vote.
GOP NAY Vote: Chafee, Collins, Snowe, Specter
DEM AYE Votes: Byrd, Johnson, Landrieu, Nelson (NE), Pryor and Reid (!!)

A shame. Really a shame. Check the history on this bill. This should have passed tonight.

23:10 - Senator Sessions is talking about border security and immigration. He says, in general, that granting amnesty has a corrosive effect on the law. He's right, and it's obvious.

23:25 or so ... quorum call? All that remains "on the surface" is a couple of non-controversial roll-call votes and whatever bulk of unanimous material that typically passes just before a recess. Must be some horse trading behind closed doors.

UPDATE @ Sept 30

I fell asleep well before the Senate closed.

The Conference report on H.R.5441 - Department of Homeland Security Appropriations Act, 2007, passed on a voice vote, before midnight.

The Conference Report on H.R.4954 - [Sea]Port Security Improvement Act of 2006, passed by unanimous consent, sometime after midnight if the bill summary date of 9/30 is to be taken literally.

Conference Report 109-711 Passed on September 29, and news reports that it contains the language of H.R.4777 - Internet Gambling Prohibition Act or H.R.4411 - Internet Gambling Prohibition and Enforcement Act.

PartyGaming, Sportingbet Plunge on U.S. Gambling Law
FOCUS Sector stunned by US Senate approval for anti-online gaming legislation

The Conference report on H.R.5122 (S.2766) - National Defense Authorization Act for Fiscal Year 2007, passed by unanimous consent. The language of H.R.6094 - The Community Protection Act (to H.R.5122) does not appear in John Warner National Defense Authorization Act for Fiscal Year 2007 (Engrossed Amendment as Agreed to by Senate) [H.R.5122.EAS].

H.R.6198 - Iran Freedom Support Act, passed by unanimous consent.

Norm Minetta's replacement, Mary Peters as Secretary of Transportation, was confirmed.

I notice that Jordan's nomination to the 3rd Circuit is on the Senate's Executive Calendar for November 7, meaning it wasn't returned to the president. I await publication of the Daily Digest to see whether any judicial nominations were returned, particularly Haynes, Myers, Boyle, Smith and Wallace. I think they weren't returned, as all nominations naturally expire at the conclusion of the 109th Congress, and the contentious nominations won't be handled in the lame duck session(s). Bobo at points out that Smith, who had been on the Executive Calendar, is no longer on the Executive Calendar. So it appears they were returned, with the Senate keeping Jordan and others deemed non-contentious.

UPDATE @ 9:55 AM Oct 1

I just found this. Should have remembered it sooner, as Bashman of HowAppealing cited to this reference in August ...

Returned COA judicial nominees: Boyle, Haynes, Myers, Smith, Wallace, KEISLER

Also returned was BOLTON, to be Ambassador to the UN.

Also returned was Stickler, to be Assistant Secretary of Labor for Mine Safety & Health.


Signing Statement by the President on H.R. 5631, DoD Appropriations Act, 2007, is quite interesting. I linked to it in my summary of Senate action on the bill and interspersed statutory language with the paragraphs of the signing statement. Just raw material, no analysis or commentary.

Tuesday, September 26, 2006

Establishing Military Commissions

The bill passed the Senate at 19:04 on September 28
It passed the House, unamended, on September 29
As of October 9, the bill has not been presented to the President
9/29/2006: Cleared for White House.
10/10/2006: Presented to President.
10/17/2006: Signed into law

S.3930 - Military Commissions Act of 2006
S.Amdt.5085 in the nature of a substitute
President Bush Signs Military Commissions Act of 2006
Alberto Gonzales / Ask the White House - October 18

Amendments 5075-5088 - September 27
Amendments 5095, 5104 - September 28

Debate of Sept 27: Part I - Part II - Part III - Part IV
Debate of Sept 28: Part I - Part II - Part III

As of Tuesday, September 26, this debate is occurring in the context of H.R.6061 - The Secure Fence Act of 2006. The present statutory text under consideration is S.Amdt.5036, which supposedly represents the same system and process as described in the language of S.3930 - Military Commissions Act of 2006.

The condition of the statutory language is very fluid, with the White House version being the subject of a GOP split last week, supposedly successful negotiations culminating with the filing of S.3930 on Friday, and now a new presentation, S.Amdt.5036, said to be "the same" as the negotiated language in S.3930.

[SECURE FENCE ACT OF 2006: Page S10098]

Mr. REID. ... We have been alerted by one of my Senators that the rule XIV legislation [S.3929/S.3930] that was brought to the Senate late last week is different from the amendment that was filed tonight. So some of my folks are trying to figure out what has happened. We thought what was going to be filed as an amendment to this fence bill was the same piece of legislation that was rule XIVed. So we have now a rule XIV that has been sent up, and now we have this amendment [S.Amdt.5036]. So that has created a little bit of confusion on our side. ...

[PROGRAM: Page: S10105]

Mr. LEVIN. Is the Hamdan language which has been filed in the amendment the same as the Hamdan language that was agreed upon by the three Republican Senators with the administration?

Mr. FRIST. Yes. Yes, it is. I think what the Democratic leader said is that there are some changes, but as to what was introduced--Friday, I believe? Friday--so there are some small changes in that, but it has been agreed to by all the parties concerned.

Let's compare the statutory language that establishes jurisdiction over the person:

Language in S.3930 ...

     Sec. 948a. Definitions
     In this chapter:

     (4) UNLAWFUL ENEMY COMBATANT- The term `unlawful enemy combatant' 
         means an individual engaged in hostilities against the United 
         States who is not a lawful enemy combatant.

compared with the Language in S.Amdt.5036 ...

     Sec. 948a. Definitions
     In this chapter:

            (1) UNLAWFUL ENEMY COMBATANT.--(A) The term 'unlawful 
     enemy combatant' means--

            (i) a person who has engaged in hostilities or who has 
     purposefully and materially supported hostilities against the 
     United States or its co-belligerents who is not a lawful enemy 
     combatant (including a person who is part of the Taliban, al 
     Qaeda, or associated forces); or

            (ii) a person who, before, on, or after the date of the 
     enactment of the Military Commissions Act of 2006, has been 
     determined to be an unlawful enemy combatant by a Combatant 
     Status Review Tribunal or another competent tribunal established 
     under the authority of the President or the Secretary of Defense.

            (B) CO-BELLIGERENT.--In this paragraph, the term 
     'co-belligerent', with respect to the United States, means any 
     State or armed force joining and directly engaged with the United 
     States in hostilities or directly supporting hostilities against 
     a common enemy.

Just some "small changes ... been agreed to by all the parties concerned." You be the judge. It doesn't engender a sense of "trust" in my mind. Just the opposite. Not a big deal, with politicians one must always read their fine print. Sometimes, what at first appears to be a radical change amounts to very little in practice and fact. The major difference here is that the sole authority for determination of UEC status is a CSRT.

Keep in mind that S.3930 is the administration's language, not the language proposed by Warner/McCain/Graham. The administration is revising its own proposal for statutory language.

The same subject, and more, is discussed at Marty Lederman's It Gets Worse, posted earlier this morning.

Commentary between the above horizontal bar and the next is unrelated to the military commissions debate. Skip to the next horizontal bar for military commissions debate ...

12:30 - The Senate stands in recess until 14:15. Zero substantive discussion of the fence aspect of the pending legislation, zero substantive discussion of the military commissions aspect of the legislation. At some point I think it will be necessary to divorce the fence language from the bill, just to permit a Senator who is for the military commissions but against the fence (or the reverse) to be able to make principled votes.

14:30 - Senators Domenici, Bingaman and Craig talk for half an hour to talk about legislation to be introduced this evening, by Senators Frist and Reid. S.3946 - National Competitiveness Investment Act.

15:30 - Senator Kennedy took some time talking about the cloture vote, as though it relates only to the fence and immigration, and expresses that he wishes the bill could be amended to be comprehensive immigration.

Morning business expired at 15:25

16:17 - Still little discussion (virtually none) on the fence aspect of H.R.6061. Senator Durbin is presently talking about minimum wage.

16:55 - Senator Enzi is working to advance S.2823 - Ryan White HIV/AIDS Treatment Modernization Act to a vote. If the bill doesn't pass by September 30, some states will lose funding. Some Senators object as a matter of getting more funding for their states, and the request for agreement to vote is shot down with an objection from the DEM side of the aisle (doesn't mean all the holds are DEM, just at least one).

Senator Coburn rises to emphasize that this objection causes real harm to real people whose treatment depends on this source of funding. Senator Burr points out that the radical proposal is to have funding follow the patient (which has the effect of states losing funding if covered patients leave), and chastises the holds.

17:38 - Senator Enzi still going strong on a range of subjects, such as S.1955 - Health Care Insurance, but not on anything relating to border fence or military commissions.

Meanwhile, read the text of the April National Intelligence Estimate, this is the one that was declassified earlier today, and that was the subject of news reports over the weekend.

18:00 - Quorum call for the last 10 - 15 minutes. Lovely music.

18:15 - Senator Harkin - resolution in memory of Paul Wellstone, joined by Senators Durbin, Coleman and Dayton. Mental Health Parity(?) to be taken up in the 110th Congress.

18:24 - Harkin done, resume quorum call.

18:28 - McConnell closes down the Senate

First and second reading of S.3946 - National Competitiveness Investment Act
Passed H.R.5574 - Children's Hospital GME Support Reauthorization Act of 2006
Passed S.3421 - A bill to authorize major medical facility projects and major medical facility leases for the Department of Veterans Affairs for fiscal years 2006 and 2007
Passed H.R.5187 - To amend the John F. Kennedy Center Act to authorize additional appropriations for the John F. Kennedy Center for the Performing Arts for fiscal year 2007
Passed H.C.Res.480 - To correct the enrollment of the bill H.R. 3127

Treaty moved to the Executive Calendar, relating to the adoption of an additional distinctive emblem under the Geneva Conventions (this is use of Red Cross, Red Crescent, etc., and is totally unrelated to the military tribunals debate).

18:33 - the Senate stands in adjournment until 9:30 Wednesday morning.

Morning business until 10:30
One hour of debate before taking the cloture vote on limiting debate on S.Amdt.5036, the military tribunals amendment to H.R.6061.

Still considering handling the Military Tribunal legislation on a stand-alone basis, depending on negotiations between the majority and minority leaders. If this is done, the cloture vote to proceed to the vote on H.R.6061 would be vitiated (tribunals would be divorced from fence - fence bill fate uncertain, tribunal fate uncertain, but the fate of each would be independent of the fate of the other)

September 27 - 10:59 AM
Senator Rockefeller's kudo's to Jeffords are over the top syrupy. Still no substantive debate on the military tribunals proposal. Jeffords notes the absence of a quorum. Cochran announces that conference reports for DoD and Homeland Security appropriations, and says he expects at least one of them to be called up later today.

11:26 - Senator Hutchison spent 20 minutes or so talking abut the war in Iraq, the leaking of intelligence information, and the war on terror.

11:40 AM - The time for starting the cloture vote has arrived, and still no debate on the subject at hand, the one hour pre-cloture debate time was used by talking about "other stuff." I'm sure the objectors don't mind the clock ticking, but it must be giving Senator Frist and the administration some heartburn.

The action in the House is presently on the military tribunals bill. They are at least debating the measure. C-SPAN2's screen says the Senate is today on the U.S-Mexico border fence.

12:07 PM - Durbin is done. Senator Domenici fills time with a discussion introducing legislation that relates to nuclear waste disposal, which he says will be debated over a time spanning the next several months, at least.

12:13 PM - Domenici is done. His bill will be referred. Senator Lott asks about the time agreement, and is told the time until 12:30 is available for morning business. So, morning business and then policy luncheon recess. I'll go twiddle my thumbs for a bit.

12:33 - Senator Murray speaks to criticize Iraq, veterans care, the Republicans, etc.

13:03 - Senator Murry is done, on with a quorum call.

September 27 - 9:35 AM

A "hot" opening to the day. Subtle, but informative

Senator Frist -
Still working toward an agreement to consider the tribunal bill separately from the current arrangement (tribunal being tacked on to the fence bill) under a stand-alone time and amendment agreement. He hopes to have a time and amendment agreement worked out before the cloture vote. If agreement is reached, the cloture vote on limiting debate on the tribunal bill as an amendment will be vitiated, and the Senate would move directly to the tribunals matter.

Other action this week:
- defense appropriations conference report (maybe today)
- Homeland Security appropriations conference report
- seaport security conference report

Senator Reid -
The time agreement that Frist is working on includes taking the final vote on the military tribunals legislation ("Hamdan") sometime this evening. Amendments allowed to be offered on that and Reid is working on obtaining agreement, but has a couple of senators on the Judiciary Committee who are not yet in agreement with the proposed time and amendment allowance.

If the time agreement is not reached, cloture will (probably) be invoked on Hamdan, then 30 hours of time for debate on the amendment, then vote on the amendment, then another cloture vote for limiting debate on the underlying bill.

A "cloture on top of cloture" process with the first vote done at 1 PM on Wednesday could be used to run the clock until 1 AM Saturday morning.

Senator Leahy -
Commends the two leaders for trying to get lots done before the end of the session, and then asserts that it is he who is not agreeing to the time agreement for handling the tribunal legislation. He says he is standing in the way of the Hamdan bill as a matter of upholding the Constitution. He also says that Congressionally-proposed legislation for tribunals has been available for 5 years, and that he has a problem with the rush job represented by the current bill - sent to Congress by the administration with an order to consider and pass it in a too-compressed timeframe. He needs some amendments. He wants more time for substantive debate.

9:45 AM - That's that, until the one hour of pre-cloture debate. The Senators are giving kudos and accolades to Senator Jeffords on the occasion of his retirement.

11:41 AM - Finally! Senator Durbin talks about the military commissions bill. The tenor of his objection is "rush job" and "why do we have to do this today?" I think that's a fair question. The detainees have been there for years, what's another month of delay? The answer, of course, is the need to aggressively interrogate fresh captures in order to protect the country from terrorist attacks. But that is only one facet of the bill, the only facet that the administration says it must have "now" - is there any chance of peeling that part off for separate debate? I doubt it.

11:45 AM - Senator Durbin veers off into talking about the fence, but by 11:52 is back to the question of detainee interrogation. He inserts Haynes to his argument against the bill as proposed.

12:16 - Senator Lott speaks in support of the military tribunal bill, by pointing to the fact that terrorism exists. He's going to side with whatever the administration offers. His speech is time filler that justifies his position based on a belief that the lawyers and administration worked up the language in good faith. He disagrees with pairing the tribunals issue with the fence bill, and blames the Democrats. "Why have we gone a day and a half of no debate?" Now that is funny.

12:29 - Senator Lott ridicules concern over habeas changes with "bring on the lawyers." I have the impression that he used to be a trial lawyer himself, this is a smooth delivery.


13:15 - UC Agreement reached to set aside S.6061, and take up S.3930. Five amendments will be entertained, each with a time limit. Levin, Rockefeller Kennedy, Byrd and Specter. After debate and vote on each amendment, debate on the bill and vote on the bill. Reid does not object.

So, S.6061, the fence bill, is set aside, and Senator Frist makes opening remarks relating to S.3930.


Time agreement

Levin: substitute bill - 120 minutes
Rockefeller: congressional oversight - 60 minutes
Kennedy: interrogation - 60 minutes
Byrd: sunset - 60 minutes
Specter/Leahy: habeas - 120 minutes
General debate: 180 minutes


Ten hours total, not counting time for each vote. I doubt this will be finished today.

13:24 - Senator Levin discusses the recent legislative history; the GOP/administration split, the McCain/Warner committee bill, and now facing "the administration's bill."

The Levin amendment is a substitute, it is the McCain/Warner bill as reported out of Committee, and before the negotiated agreement between Warner/McCain and the White House, refer to S.3901 - Military Commissions Act of 2006 [Warner] for likely text of the Levin amendment.

13:40 - quorum call, time to be charged equally to both sides.

Associated Press report at 13:46

Path Cleared for Detainee Legislation

... House Republicans succeeded on a vote in blocking any Democratic amendments to the legislation. In the Senate, GOP leaders won an agreement from Democrats to debate the bill for less than a dozen hours and then vote on it.

Four Democrats and Republican Sen. Arlen Specter of Pennsylvania are being given opportunities to offer amendments in the Senate, but all were expected to fail with lawmakers eager to adjourn this weekend ...

Passage is a good prediction. With agreement to move to the vote on the bill, cloture isn't a hurdle. With the majority of the Senate being GOP, each amendment will fail - each amendment is a deal breaker for getting the bill through House/Senate conference.

I expect there will also be a manager's amendment (making a total of 6 amendments) that transforms the language of S.3930 (Friday's version from the administration) into the language of S.Amdt.5036 (Monday's version from the administration). That amendment will also pass.

14:08 - Senator Warner rises in support of S.3930, distancing himself from the very bill that emerged under his name from the committee that he chairs.

14:22 - Levin Amendment No. 5086 introduced, a substitute for the pending bill S.3930, where the substitute is or resembles S.3901, the Warner/McCain language before negotiations with the administration.

16:21 - Obviously I'm not blogging the debate in detail, and don't plan to in realtime for the balance of this debate. I will endeavor to post the results of roll-call votes, should I be near the keyboard. The only interesting unknowns that will emerge are the exact margins of rejection of each amendment, who votes "against the war on terror," and the time of day for each of the votes. Roll call vote on the Levin amendment started at 16:33.

16:33 - [My PREDICTION was 35-60]
LEVIN Amendment No. 5086, a substitute for the pending bill S.3930, where the substitute is or resembles S.3901, the Warner/McCain language before negotiations with the administration, was
REJECTED on a 43 - 54 vote.
GOP YEA Vote: Chafee
DEM NAY Vote: Nelson (NE)

18:12 - Debate is underway on the Specter Amendment No. 5087 introduced, to modify the application of habeas

I haven't seen the language of the pending amendment. C-SPAN2 says the pending amendment "strikes the language giving habeas," and the language from S.Amdt. 5063/5065 was

            On page 94, line 2, strike the quotation marks and the 
     second period and insert the following:

            ``(3)(A) Paragraph (1) shall not apply to an application 
     for a writ of habeas corpus challenging the legality of the 
     detention of an alien described in paragraph (1), including a 
     claim of innocence, filed by or on behalf of such an alien who 
     has been detained by the United States for longer than 1 year.

            ``(B) No second or successive application for a writ of 
     habeas corpus may be filed by or on behalf of an alien described 
     in paragraph (1).''.

18:18 - Senator Warner says the vote on the Specter amendment will occur tomorrow, as will the vote on the other two(?) pending amendments. He takes the Senate off the bill, and onto morning business.

The language of Specter's S.Amdt.5087 is

      On page 93, strike line 9 and all that follows through page 94, line 13.

September 28

The Levin amendment (to pass the original Warner/McCain language) was defeated on a party-line vote, with Chafee and Nelson (NE) crossing over. Debate on the Specter amendment, to provide some habeas corpus rights, is all but complete. A vote on it is planned for this morning.

I predict that the Specter amendment, and the two or three others that remain to be debated, will be defeated on nominally party-line votes, and the bill will pass also on a nominally party-line vote.

[PREDICTION - 45-54, party line, except Specter, Chafee and Nelson (NE)]
SPECTER Amendment No. 5087 to strike the new language that modified 28 USC 2441, i.e., habeas corpus, was
REJECTED on a 48 - 51 vote.
GOP AYE Votes: Chafee, Smith, Specter, Sununu
DEM NAY Votes: Nelson (NE)

UPDATE @ 16:27

I'm back. Will fill in subject of votes, actual results, etc. as time permits.

[PREDICTION - 45-54, party line, except Specter, Chafee and Nelson (NE)]
ROCKEFELLER Amendment No. 5095 provide for congressional oversight of certain Central Intelligence Agency programs, was
REJECTED (at 16:51) on a 46 - 53 vote.
GOP AYE Vote: Chafee


[PREDICTION - 45-54, party line, except Chafee and Nelson (NE)]
BYRD Amendment No. 5104 to sunset the military tribunals on a date certain, was
REJECTED (at 17:15) on a 47 - 52 vote.
GOP AYE Votes: Chafee, Specter [Nelson (NE) voted AYE]


Such acts, each of which is prohibited by the Army Field Manual include forcing the person to be naked, perform sexual acts, or pose in a sexual manner; applying beatings, electric shocks, burns, or other forms of physical pain to the person; waterboarding the person; using dogs on the person; inducing hypothermia or heat injury in the person; conducting a mock execution of the person; and depriving the person of necessary food, water, or medical care.
The legislation being passed does not prohibit SOME of these techniques. Contrary to McCain's prevaricating, waterboarding and stress positions are permitted. Read the statute, it's in there in relatively plain language. Interrogation is permitted to the extent it does not violate 18 USC 2340(2) or 18 USC 113.

Kennedy's amendment is tactically stupid. He should have just enumerated waterboarding, which McCain says shouldn't be done. How could McCain turn an express forbidding of waterboarding down, if McCain wants to prohibit waterboarding?

[PREDICTION - 45-54, party line, except Chafee and Nelson (NE)]
KENNEDY Amendment No. 5088 to enumerate certain practices as forbidden interrogation methods, was
REJECTED on a 46 - 53 vote.
GOP AYE Votes: Chafee, Specter
DEM NAY Vote: Nelson (NE)


McCain is not accurately describing the limits of interrogation according to the bill he supports, and he knows it. His speech is pure ass covering. Read the statute.

Leahy gets his licks in. Focuses on the habeas corpus provision. He veers off into an accusatory argument, that the bill is politically motivated to get votes and donations. The finger pointing continues - but I strongly prefer argument on the merits.

Levin points out the recent history, i.e., the Warner, McCain, Graham bill, S.3901, was rejected by the very same Senators who insisted on it. The President's mojo is stronger than the Senators'. Simple as that. History will record this bill as "President Bush's Bill," and I think will judge Congress as abdicating their duty. That is, historically, a repeating pattern.

Senator Reid reiterates that the Warner, McCain, Graham bill, S.3901, was rejected by the very same Senators who insisted on it, and in gentle words, says that they got rolled by the White House - perhaps willingly.

It's funny as hell that Reid says the amendments were rejected "on a straight party-line vote." He's inviting Chafee in, and kicking Nelson (NE) out.

Frist delivers the last remarks before the vote. He blames SCOTUS for the Hamdan decision. But I'm thinking military trials and executions could have happened by now, what, 5 years? Hamdan wasn't challenging his conviction. Quirin was.

Voting on the bill started at 18:37

[PREDICTION - 51-48, party line, except Chafee, Specter, Smith, and Sununu]
S.3930 - Military Commissions Act of 2006 was
PASSED (at 19:04) on a 65 - 34 vote.
GOP NAY Vote: Chafee
DEM AYE Votes: Carper, Johnson, Landrieu, Lautenberg, Lieberman, Menendez, Nelson (FL), Nelson (NE), Pryor, Rockefeller, Salazar and Stabenow

I really blew the prediction. Crossovers verified. Probably Senators up for election this cycle.

Interesting. Specter voted AYE. He's not as attached to the habeas provision as I thought.

I think this bill will bite us in the ass. I think the Republicans engaged in sloppy rhetoric and logic (not that the DEMs did any better), and in some cases, outright misrepresentation (not that the DEMs did any better). There were many many straw men set up and knocked down, many invalid comparisons and parallels, godawful implicit assumptions that "took" the final question as answered (everyone we are talking about is the worst of the worst, therefore I'll talk about something other than how the United States will determine who is the worst of the worst), and in general an absence of serious debate.

Something as important as this, that's been kicked around for 5 years, should not result in a bright-line party-line vote. As for Congress, each side will blame the other for the split being partisan. I have a sense that the GOP just gave the president what he asked for, and the Congress as a whole punted the details to the lawyers and the courts, to be sorted out later. In other words (pick your preferred acronym), "situation normal, all f'd up [SNAFU]", or "f'd up beyond all repair [FUBAR]."

History will record this bill as "President Bush's Bill."
I sincerely hope it works out for the best.

Action and debate have moved over to S.6061 - The Secure Fence Act of 2006, where the Senate will take a cloture vote to vote on the underlying bill, with the cloture vote following passage of the military tribunals bill, and just a few minutes of debate. I think that cloture vote will fail to get the 60 votes necessary - the DEMs (and some Republicans) want more debate, or the right to amend the house bill.

Follow up links, news reports, articles, etc.

[Sept 29] 08:15 AM by Howard Bashman - List of articles
[Sept 28] 10:44 AM by Howard Bashman - ethical fight over the right of detainees to self-representation and to refuse appointed counsel.

UPDATE @ October 9

The bill is still in Congress, not yet being presented to the President for signature. It has been "Cleared for the White House," meaning, I think, that the text of the House-passed and Senate-passed bills is in every respect the same.

UPDATE @ October 10

10/10/2006: Presented to President.

Specter's Role in Passage Of Detainee Bill Disputed
By R. Jeffrey Smith - Washington Post Staff Writer
Monday, October 16, 2006; Page A19

The more extreme version would have deleted the bill's suspension of habeas corpus rights. The less extreme alternative, which Specter co-sponsored with Sens. Patrick J. Leahy (D-Vt.) and Gordon Smith (R.-N.H.), would have allowed detainees to file a single habeas corpus petition after a year of detention.

The above article is discussing the difference between S.Amdts. 5082 and 5087, and claims that a compromise amendment (5082) was not offered, because it had a chance of passing. Instead, a more extreme version was offered and defeated.

Same idea I noted in above regarding Kennedy's tactical stupidity. The power lies in the hands of Senate leadership, which has control over which amendments are permitted to come up for debate. The "debate" on the floor of the Senate is mostly orchestrated in advance.

UPDATE @ October 17

President Bush Signs Military Commissions Act of 2006

Monday, September 25, 2006

Senator Specter on Legal Process for Detainees

Commentary at Bottom as late as Sept 25

I noted the occurrence of Senator Specter's speech on Thursday, here (at "UPDATE @ 16:30") and here (also at "UPDATE @ 16:30"). The Congressional Record of that speech is now available. Some excerpts, starting at page S9767 of the Senate's Congressional Record ...


... There have been extended discussions about these bills in terms of compliance with the Geneva Conventions, whether classified information may be used, whether hearsay is appropriate, whether coerced confessions can be used. But there has been relatively little attention--almost none--on the fact that both of these bills eliminate the writ of habeas corpus review.

Had this prohibition been in effect earlier, the case of Hamdan v. Rumsfeld, decided in June of this year, might not have been decided. As a matter of law, it is my legal judgment that Congress cannot act to delete the remedy of habeas corpus because the Constitution provides, as follows: Article I, section 9, clause 2:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Now, we do not have a rebellion and we do not have an invasion. Those are the two circumstances under which the writ of habeas corpus may be suspended. Since neither is present and the Constitution cannot be altered by statute, the pending legislation may be unconstitutional.

As a matter of public policy, the writ of habeas corpus is also established as a statutory base in Title 28, United States Code, section 2241. In the case of Rasul v. Bush, in 2004, the U.S. Supreme Court ruled that the detainees at Guantanamo Bay have a right to file petitions for habeas corpus so that a Federal court may review the evidence which justifies their continued detention. ...

If you take a look at the pending legislation, it is obvious that the enemy combatants who are detained have virtually no rights, very few procedures applicable to them compared to those who may be charged with serious war crimes. And it would, indeed, be anomalous to have greater procedural protection for someone charged with a war crime, where the evidence is present to justify that charge, contrasted with a detainee, where, as the practice has evolved, there is very little information, let alone the absence of evidence, very little data, to warrant detention.

Senator Specter is saying that it's good that SCOTUS had an opportunity to hear Hamdan, that is, to have the case of the prisoner brought before it. And that if the provisions of habeas corpus review are eliminated, then prisoner Hamdan might not have been able to bring his case before any but the executive's court. Some say that's would be a good thing, in the back of my mind I'm thinking "President Hillary!", exclamation point being part of her moniker, not an expression of my surprise.

He also says, and this may be a point of argument, that we are not under invasion. I happen to agree, we are not under invasion. But I am sure that some people will use the phrase "invasion" as easily as they use the term "treason" (to describe any conduct that tends to undermine the administration's efforts - for example, my piece that accuses the administration); or the term "war." Fine for casual conversation, but I think Senator Specter's speech is away from the "casual" end of the rhetoric spectrum. The country is not under invasion.

He then points out that the power of the courts to issue writs of habeas corpus are also properly limited by statute. That is, Specter's opponent in this argument can correctly say the writ is not suspended, as closing the courts might happen during internal rebellion or invasion, rather that access to the writ is subjected to a reasonable set of limitations. This argument was held over Section 1005 of the Detainee Treatment Act, which is a revision to the habeas statute 18 USC 2241) made by Graham's amendment 2524, passed on November 15, 2005 in reaction to the Supreme Court's Rasul decision. There are many links in this set of posts that track parts of Hamdan's case, in case you want to visit that argument.

And this argument is going to be held again, signals Senator Specter, as the primary objection that Senator Specter raised in his speech is the proposed further modification to 28 USC 2241 that is embodied in each of the proposed packages of legislation.

With regard to the schedule for taking up the proposed legislation, be it the administration's S.3861 - Bringing Terrorists to Justice Act of 2006 or S.3886 - Terrorist Tracking, Identification, and Prosecution Act of 2006; or Warner/McCain's S.3901 - Military Commissions Act of 2006, Senator Specter said that he and Senator Leahy have asked for the legislation to be referred to the Judiciary Committee.

Senator Leahy and I have asked for a sequential referral to the Judiciary Committee from the Armed Services Committee because our Judiciary Committee has jurisdiction over habeas corpus and other provisions of the legislation which I have cited. ...

As I have noted, the request has been made for referral to the Judiciary Committee. There are some difficult procedural steps to get that sequential referral. I am, frankly, not optimistic it will occur. The scheduling of the floor action on these bills is uncertain at this time, depending on whether an agreement is worked out. ...

When it comes to the issue of habeas corpus, I think both the administration's bill and the bill passed out of committee, with the endorsement of Senators Warner, McCain, and Graham eliminating habeas corpus is inappropriate. Depending on when the bill comes to the floor, there may be an opportunity for the Judiciary Committee to hold a hearing and to have an analysis of the constitutional limitation on suspending habeas corpus and the public policy interests that are involved.

I, Senators Leahy, Levin, and others will be circulating a ``Dear Colleague'' letter advising that we intend to offer an amendment if these bills come to the floor with the denial of habeas corpus in them.

If he doesn't get the referral (he figures he won't), it appears he intends to belay agreement to take a bill up until he has at least an opportunity to schedule and hold a hearing.

Given the habeas corpus issue, in combination with other substantial issues in these proposals, I seriously doubt that Congress will pass the administration's proposed bill (S.3886) or a negotiated substitute, before the reelection campaign recess. There are simply too many substantial issues:

  • Removing the right of detainees to challenge their detention. Nearly all legislators agree with revising 28 USC 2241, the statute that circumscribes the limits of the courts' power to issue writs of habeas corpus
  • Definition of acceptable interrogation practices to avoid breaching common Article 3. The administration proposal limits the interrogation techniques by referencing 18 USC 2340 and 18 USC 113 (this issue appears to be settled in the administration's favor)
  • The rules of military trial, including the use of classified information, the admissibility of evidence obtained via harsh interrogation (it's one thing to use this evidence to stop an attack, it's another to rely on [only] this type of evidence to obtain a conviction), etc.
  • Revision to FISA to "resolve" questions of constitutionality of the NSA terrorist surveillance program
Mr. DURBIN. First, I thank my colleague for coming to the floor. I heard him open his remarks while I was in my office, and I salute him. I don't think many colleagues are aware of the seriousness of the habeas corpus provision that is in the detainee bill coming out of the Armed Services Committee. I ask my colleague--and I only caught part of his remarks--are you going to ask that this bill be referred to our Senate Judiciary Committee for hearings on this question of habeas corpus?

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

The Judiciary Committee has jurisdiction over the constitutional issue. In fact, as to the pending legislation, the Judiciary Committee has jurisdiction over Common Article 3, and the committee also has jurisdiction over changes to the war crimes.

We have submitted to the Armed Services Committee a sequence of war crimes which have been included in the bill. Regrettably, we didn't have enough time for committee action. Although, as the Senator from Illinois may recollect, I advised the committee of what we were doing and circulated early drafts so people could be in a position to comment. I think it is important that Congress move ahead to comply with Hamdan. Also, we ought to do it right. It requires some analysis. We can do it in a relatively short timeframe. Provided we focus on it and have hearings, it is going to require Senators to become acquainted with what is going on.

The fact is, Congress has been derelict in its duty in providing rules for military commissions, and it is our responsibility under article I, section 8. The Senator from Illinois and I filed legislation shortly after 9/11, 2001, to accomplish that, as did other Senators. [Bills were offered in 2001, 2002, 2003, 2004, 2005 and now in 2006] The Congress did not act because this issue has been too hot to handle, too complicated, too dicey. It is not to the credit of the Congress, which sat back and did nothing.

... Mr. SPECTER. Mr. President, one concluding statement. A group of attorneys who came to see me on this issue have been representing detainees. They produced summaries of proceedings before this body. It is shocking as to how little information there is in these proceedings under the CSRTs. I am trying to find out now if the information I have is not classified and present it in detail to Senators and to Members of the House so you can see how little information there is and how explanations are made and how people are detained without any basis, and on what appears to be a situation where there is no danger.

To the credit of the officials in Guantanamo, many have been released. But that is not sufficient. The detention of an individual under our laws is to be made by a court. When challenged, that requires a habeas corpus proceeding.

The Associated Press is catching on to the ramifications of the material disclosed in Senator Specter's speech. Hat tip to HowAppealing.Com for the lead.

Democrats Sit Out Detainee Debate

One result of the political maneuvering is that at least one major issue has been omitted from congressional debate. The president's proposal would allow suspects to be held indefinitely without "habeas corpus," the right to protest one's detention in court.

Under the president's plan and agreed to by McCain and other GOP senators, only detainees selected by the Pentagon for prosecution are granted legal counsel and a day in court.

"If this legislation passes, people like Khaled Sheik Mohammed will get a full trial, while hundreds of detainees who are not charged with any crime will be denied even a hearing to test whether there is any basis to hold them," said Joshua Colangelo-Bryan, a human rights lawyer.

"This is truly a bizarre result considering that ... the military does not even accuse a majority of the detainees of any involvement in violence," Colangelo-Bryan said.

Sen. Carl Levin of Michigan, top Democrat on the Senate Armed Services Committee, said he wants to amend the habeas corpus provision but his office declined to provide details. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, asked leadership Wednesday to allow his panel to review it.

UPDATE @ Sept 21

The Senate Committee on the Judiciary has scheduled a hearing on "Examining Proposals to Limit Guantanamo Detainees' Access to Habeas Corpus Review" for Monday, September 25, 2006 at 10:30 a.m. in Room 226 of the Senate Dirksen Office Building.

UPDATE @ Sept 24

Senator Specter on CNN Late Edition (scroll down - it's there)

KING [the host]: ... Does the deal, as it now stands, give terror suspects a fair trial?

SPECTER: Most of it is a big improvement. I think Senator McCain, Senator Warner and Senator Graham did a good job in preserving the Geneva Convention -- indispensable that those standards be maintained.

They did a good job, too, on having classified information made available to the defendant on a reasonable basis.

But there's one part that I vigorously disagree with, and that is taking away the jurisdiction of the federal courts on what we call habeas corpus, which is the great writ that goes all the way back to 1215.

And tomorrow, the Judiciary Committee, at 9:30, is going to have hearings on that point.

KING: What's wrong with it, Senator?

SPECTER: Well, what is wrong with it is that the federal courts have been the only instrumentality to deal with the problem. Congress has a constitutional responsibility to deal with it, and Congress punts it. It was too hot to handle.

And in June of 2005, the Supreme Court came down with three opinions; last June, another opinion. And the federal courts just have to be open.

This legislation is very complicated. As a matter of fact, so far, there have been many conflicting reports about what the legislation does.

And the courts have traditionally been open to make sure that individual rights are protected. And that is fundamental.

And the Constitution says when you can suspend the writ of habeas corpus, in time of rebellion or invasion. And we don't have either. So that has to be changed, in my opinion.

Totally different subject, and this caught me off guard -- you can tell I haven't been doing my reading on details of proposals to modify the FISA statute ...

SPECTER: ... We've also added considerable resources to the NSA, and we are now going to be able to have individualized warrants for calls originating in the United States. And we're also opening up the foreign intelligence surveillance appellate court to make it public with a mandate that the case goes to the Supreme Court of the United States.

"Talk amongst yourselves."

UPDATE @ Sept 25


The Senate Committee on the Judiciary has scheduled a hearing on "Examining Proposals to Limit Guantanamo Detainees' Access to Habeas Corpus Review" for Monday, September 25, 2006 at 10:30 10:00 a.m. in Room 226 of the Senate Dirksen Office Building.

As of 10:04 AM, the hearing isn't on C-SPAN, C-SPAN2, C-SPAN3, or C-SPAN Radio.

10:21 AM - Found it ..., just in time for the first witness. I should read the bold print at the Judiciary Committee announcement.

Sounds as though most witnesses have written statements, which will be part of the record. Rear Admiral John D. Hutson, Ret. agrees with Senator Specter's general take, and goes a bit farther. Most of the witnesses will, the list seems to be cherry-picked. I'm more interested in comments from Senators other than Specter, e.g., Senator Cornyn, and in any back-and-forth.

Thomas P. Sullivan rebuts opening comments of Cornyn (I missed Cornyn's comments), primarily by saying the question is whether or not the detainees are in fact enemy combatants. They were not "taken from the battlefield," contrary to common belief. He asks Cornyn to read pages 3 through 7 in his written submission, and if that comports with "due process," then he (Cornyn) should by all means vote for the bill. His oral remarks deviate completely from his written material.

The audience issues applause at the conclusion of Sullivan's remarks, and Senator Specter admonishes the gathering.

Bruce Fein speaking at 10:35 -- I disregard his testimony out of hand, based on my opinion of him based on a review of his testimony relating to immigration. He might be right on this issue, but his testimony carries no weight with me.

10:46 - Lieutenant Commander Charles Swift has concluded his testimony.

10:51 - Rivkin's oral delivery was hard to follow. He supports the proposed legislation.

10:52 - Mr. Bradford Berenson begins his testimony. He says the habeas decision in the proposed bill is basically a policy choice, and not a Constitutional issue. I agree, Congress is not deciding to "suspend habeas corpus" in the constitutional sense, which I take as imposing a "global" suspension. He points to the Supreme Court's Eisentrager and Rasul decisions. Whatever is going on in DTA Sec.1005 is not a "suspension."

10:58 - Senator Specter is challenging Berenson's "this isn't a constitutional issue" on the basis of whether of not an invasion is going on, today.

Specter asks Rivkin how he squares his previous opinion of the DTA (against) with his testimony today? Rivkin says he was answering two different questions, the first where all judicial review was stripped. [I hope there is a transcript of the entire hearing at some point, my note taking skills are not very good - prone to error, etc.]

Decent back and forth. Berenson starts "if I was captured bearing arms ...", which is the very testimonial evidence that is missing. The "bearing arms" circumstance is absent from some (a significant fraction) of the detainees.

11:07 Senator Leahy starts his turn at the witnesses. Cites what is probably an anomalous case, the Canadian who was deported to Syria (name escapes my mind).

11:15 - Senator Cornyn says the testimony of anybody who would compare Gitmo with Auschwitz is suspect. He asks Berenson to confirm that the scope of appellate review in the proposed revision to the DTA (the pending legislation) comports with the Constitution. I think this is a different question from having initial access to a habeas writ. He goes on to ask about the legal workload caused by existing habeas cases. Berenson says it is huge. He goes on to say that giving rights to detainees is similar to giving rights to people who have suffered collateral damage in a war zone. Huh? They aren't detained! And the ones who are detained form the battlefield, who are captured directly by US military, are clearly POW-like. No issue with those, I don't think, and a heavy workload can be caused by making tons of unlawful arrests.

11:24 - Senator Cornyn revisits the DTA of 2005, and says that the new language here is intended to clarify what was passed in November/December last year. Senator Specter back to ask questions. Only three Senators in the hearing?

11:30 - Senator Cornyn adds material to the record that shows mistaken releases, where the released people returned to the battlefield against the US; and other material that justifies status quo.

11:34 - Sullivan says again that this is legislation of momentous import, and he predicts that in the future, a decision to suspend habeas for all the Gitmo detainees will eventually result in an apology similar to what was delivered in the wake of internment of Japanese aliens in WWII, because a number of them are in fact innocent. In any event, he says, the matter deserves more discussion than it will get if it is passed this week.

Senator Specter admonishes the members of the audience who are advocating his position in a disrespectful fashion, and says he will ignore them.

11:37 - hearing concluded.

Testimony of Rear Admiral John Hutson, Ret.
Testimony of Thomas P. Sullivan
Testimony of Bruce Fein
Testimony of Lieutenant Commander Charles Swift
Testimony of David Rivkin
Testimony of Bradford Berenson

Statement of Senator Leahy

Senator Cornyn followed up with a speech from the floor of the Senate. His speech was about 20 minutes long and concluded at about 17:10.

Senator Specter's apparent insistence on visiting the habeas issue is getting more and more ink. His restatement on a Sunday shout show resulted in some press, and reporters following the hearing this morning are adding to the volume.

Jurist: Judiciary Committee leaders put brakes on military commissions bill ... The proposed Military Commissions Act of 2006, however, deprives the courts of habeas jurisdiction over detained alien enemy combatants, giving judicial recourse only to those actually charged by military commissions. "If the courts are not open to decide constitutional issues," Specter said today, "how is constitutionality going to be tested?"

The summary in Jurist cites a New York Times article, Senate Panel Debates Bill on Treatment of Detainees, and separately, the AP report Detainee Legislation Deal Draws Protests states that "[Former diplomats, lawyers and a GOP committee chairman] oppose a provision that would strip federal courts of jurisdiction over cases in which detainees have not been charged with war crimes."

The AP story says that the White House doesn't see the difference of opinion as a deal breaker, but it isn't clear if that is because they are willing to negotiate on the issue, or if they believe that so few Senators will object to the habeas revisions, therefore posing no threat to passage of the bill. As always, the statutory language and votes will "tell the story" of which side prevailed.

UPDATE @ Sep 26

This report hints that the habeas provision will comport with the administration's version, because Senator Specter lacks the horsepower to derail the provision.

Detainee Measure to Have Fewer Restrictions
By R. Jeffrey Smith - Washington Post Staff Writer
Tuesday, September 26, 2006; Page A01

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) yesterday assailed the provision as an unconstitutional suspension of habeas corpus, which he said was allowable only "in time of rebellion or in time of invasion. And neither is present here." ...

Congressional sources said Specter is unlikely to derail the compromise legislation over those objections.

The primary subject of the above quoted article is not the habeas issue, however. The story is mostly about revising the definition of who is a proper subject of military trial. The definition in the statute proposed in the Senate on Friday appears in Section 103 of S.3929. The article asserts that the definition will be broadened from " alien unlawful enemy combatants engaged in hostilities," to "[anybody who] has engaged in hostilities or who has purposefully and materially supported hostilities against the United States." The article misconstrues the breadth of the personal jurisdiction of these military tribunals to include non-aliens.

House Report 109-664, issued on September 15, reissued as amended on the 25th (I don't know the details of report amendment) has the following in the comments:


The committee notes that the most significant definition here is that of `unlawful enemy combatants,' which identifies those alien enemy combatants subject to prosecution by military commissions. This definition, which is similar to the definition employed in the context of Combatant Status Review Tribunals, is broader in that it includes not only al Qaeda members, but also those who are part of or associated with any force or organization (including an international terrorist organization) engaged in hostilities against the United States in violation of the laws of war. The committee does not believe that the United States must be engaged in armed conflict to try an alien unlawful enemy combatant engaged in hostilities against the United States. At the same time, the definition would expressly exclude those who abide by the laws of war, such as members of legitimate armed forces, as well as non-combatants under the Geneva Conventions. ...


This section would authorize use of military commissions created under this chapter to only those individuals who are alien unlawful enemy combatants.

And this in the statutory text ...

Sec. 948a. Definitions

      In this chapter:

            (1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful 
enemy combatant' means an individual determined by or under the 
authority of the President or the Secretary of Defense--

                  (i) to be part of or affiliated with a force or 
organization (including al Qaeda, the Taliban, any international 
terrorist organization, or associated forces) that is engaged in 
hostilities against the United States or its co-belligerents in 
violation of the law of war;

                  (ii) to have committed a hostile act in aid of 
such a force or organization so engaged; or

                  (iii) to have supported hostilities in aid of 
such a force or organization so engaged.

            (B) Such term includes any individual determined by a 
Combatant Status Review Tribunal before the date of the enactment 
of the Military Commissions Act of 2006 to have been properly 
detained as an enemy combatant.

            (C) Such term does not include any alien determined 
by the President or the Secretary of Defense (whether on an 
individualized or collective basis), or by any competent tribunal 
established under their authority, to be--

                  (i) a lawful enemy combatant (including a 
prisoner of war); or

                  (ii) a protected person whose trial by a 
military commission under this chapter would be inconsistent with 
Articles 64 through 76 of the Geneva Convention Relative to the 
Protection of Civilian Persons in Time of War of August 12, 1949.

            (D) For purposes of subparagraph (C)(ii), the term 
`protected person' refers to the category of persons described in 
Article 4 of the Geneva Convention Relative to the Protection of 
Civilian Persons in Time of War of August 12, 1949.

Sec. 948c. Persons subject to military commissions

      Any alien unlawful enemy combatant is subject to trial by 
military commission under this chapter.
As I watch this debate unfold, I am struck at the similarity between this debate, and the debate over the nomination of Harriett Miers to sit on the Supreme Court. On one side, if you trust -this- president, then the proposed legislation is good, there is no need to look farther.

If one dares to probe or question the effect of the proposed legislation, then one is suspected of being being deranged, harboring paranoia over -this- president, or being "soft on terror," or prospectively blamed for future terrorism, "your fault when we get hit again," or met with a different form of diversion that is not on the substance of the proposed legislation.

You want to be safe, don't you? Then stay in your house and stay away from the bathtub. I sense the same sort of disconnect going on with the debate over military tribunals. And that observation is not directed just at the administration - the opponents of the administration's proposals are also engaging in misdirection, oversimplification, and other forms of obfuscation.

Sunday, September 17, 2006

Interrogation Techniques : S.3861 vs. S.3901

Sept 22
Negotiated proposal discussed at bottom of post

Andy McCarthy's Hamdan and the Sunset of Sovereignty suggests that veering into a debate on interrogation techniques for military conflict, in the context of beating terrorism, has some profound unintended consequences. I hadn't considered the issue from the same perspective that he provides - but I agree the debate is on the wrong track.

A good analysis by Bobby Chesney at READ IT. That's an order!

And at Kenneth Anderson's Law of War and Just War Theory Blog, a more detailed fleshing out of ...

A question that is nagging at me involves the definition of a "protected person" under the Geneva Conventions. The history and development of law inclines me to the belief that common pirates and terrorists, who operate outside of the open sanction of a recognized government and have no inclination of forming a nation-state, are completely outside of the scope of protection afforded by the Geneva Conventions.

... with follow-up comments at Did Hamdan actually resolve the status of the US-AQ conflict?. this has developed into an exceptional discussion. Read it, too.

Senator Specter's floor speech of 4:30 PM or so, Wednesday, September 20, referred to the administration's bill as S.3886 - Terrorist Tracking, Identification, and Prosecution Act of 2006, rather than the S.3861 that forms the basis for the below discussion. The discussion stands because S.3886 has exactly the same references (to 18 USC 2430(2) and 18 USC 113) that S.3861 does. At a quick glance, the only difference is that S.3886 has the language under a "Subchapter VII : SEC. 107. WAR CRIMES ACT AMENDMENT," where S.3861 language is under "Sec. 7 WAR CRIMES ACT AMENDMENT."

S.3886 is comprehensive, in that it also provides revised statutory language for FISA, that is, language to support the administration's Terrorist Surveillance Program.

The administration bills as of September 22 (S.3929 and S.3930) contain the same language, but in a rearranged form.


Most of the below expounds on the debate over supporting language for common Article 3 of the Geneva Conventions. It concludes that the administration is engaging in obfuscation by saying "the McCain language is enough" on one hand, and "the McCain language isn't enough" on the other - that last position by rejecting the bill voted out with the help of Warner/McCain/Goober/Collins. Both bills have the McCain language, and if that's enough, well, it's enough.

But I think the administration is making an error on a much more profound level, by appearing to concede that terrorist suspects are per se entitled to common Article 3 protection. In fact, some people are not entitled to the protection of common Article 3. The Geneva Conventions say "1. A mercenary shall not have the right to be a combatant or a prisoner of war," which is a concrete example of a class of person not entitled to common Article 3 protection.

And if we're talking about dealing with those people who engage in terrorism, then better to make it abundantly clear that we don't treat known terrorists under the Geneva protocol, and neither should any other government. Adjusting Article 3 so that it's suitable for dealing with the worst of the worst exposes lawful combatants and POWs to the same treatment. Whatever the interpretation of common Article 3 becomes, it "swings both ways."

It's awful to be caught on the wrong field for argument - and I blame the administration for advocating the approach of "S.3861 vs. S.3901," without explaining (if it believes so) that known terrorists don't deserve, and won't get that protection. I also blame the Senate, the House and the legal scholars - all of whom seem to have lost a view of history.

As for being stuck with the Supreme Court, that "co-equal" argument goes all directions. The President is not duty-bound to enforce an error by the Supreme Court. Sure, he would have to explain how he reaches the conclusion that applying common Article 3 to known terrorists is not what the Geneva Conventions expect - but he's not doing that. He just says "it's the Court's decision, and I'll abide by it." Of course he is free to concede the point, but I question his judgement and wisdom in doing so.

Perhaps it was inevitable that this Supreme Court decision would wander into Article 3 rights, as Mr. Hamdan isn't a known terrorist to the same degree that Osama bin Laden is. But I marvel at the idiocy of arguing that common Article 3 doesn't apply "because the conflict is not (in the words of common Article 3) 'an armed conflict not of an international character'." How about arguing instead that common Article 3 doesn't apply to THIS detainee, because of the nature of the detainee?

As you read the below, bear in mind that some detainees are known terrorists, others we have a strong suspicion, and others we have a weak suspicion. Should all people be subjected to the same rules of handling? I think not, and the authors and signatories to the Geneva Conventions agree. Why then is the debate framed as "how should we treat all detainees?" Maybe (I hope not) it's because the administration wants the power to treat all detainees the same way.


Where the question is "should common Article 3 apply?", I conclude that it shouldn't. But the argument isn't over that question. It is about crafting US statutory language to reflect the application of common Article 3. As I say later, "I didn't pick THIS argument, I'm just trying to follow it intelligently."

The major focus of today's Sunday shout shows was the "break" between President Bush and several prominent Republicans on the matter of interrogation methods. By interrogation methods, I mean to draw the reader to the methods used to elicit information from detainees. What is the boundary between permissible and impermissible? President Bush and Senators Warner, McCain and Graham have proposed answers, and neither side accepts the other's answer.

Of course, an argument can be made that there is no such thing as an impermissible interrogation technique when it comes to terrorists, but so far no official has advocated that position.

Certainly, the terrorists respect no boundary between permissible and impermissible, as they target pure innocents for death, dismemberment, terror and torture. One argument is that if our moral standard amounts to "turnabout is fair play," then the legal rhetoric and debate amounts to subterfuge. The terrorists follow no law, and if we are to use that "technique" against them, then we follow no law either. We might say we do, but (goes the argument) the reality would bear out differently. The moral calculus here operates outside of the law.

There is a counterargument to the above, "moral calculus here operates outside of the law."

A question that is nagging at me involves the definition of a "protected person" under the Geneva Conventions. The history and development of law inclines me to the belief that common pirates and terrorists, who operate outside of the open sanction of a recognized government and have no inclination of forming a nation-state, are completely outside of the scope of protection afforded by the Geneva Conventions.

This belief is reflected in commentary by Blackstone ...

William Blackstone, Commentaries 1:249--51

III. Upon the same principle the king has also the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power: and this right is given up not only by individuals, but even by the intire body of people, that are under the dominion of a sovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. Whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. Such unauthorized voluntiers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law; hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones sunt.

... and is fleshed out in more modern detail in The Dread Pirate Bin Laden - How thinking of terrorists as pirates can help win the war on terror, by Douglas R. Burgess Jr.

But I am a babe in the woods when it comes to the details of the Geneva Conventions, and prefer to obtain source material that supports or that demolishes my belief -- that countries may treat pirates and terrorists any way they please without risking a charge of being in violation of the Geneva Conventions. My current reading includes the following:

Commentary to common Article 3 of Geneva Conventions

Convention I - Armed Forces on the Battlefield
Convention II - Armed Forces at Sea
Convention III - Prisoners of War
Convention IV - Civilians

See also Commentary to common Article 2 of Convention IV.

If terrorists and pirates are expected to be outside of the scope of protection afforded by common Article 3 of the Geneva Conventions, I'd much prefer to have THAT argument in the open, than have a surrogate argument between the relative merits of S.3861 and S.3901.

In fact, I see nothing good coming from an attempt (and no reason) to transform or apply the rules for war between nation-states into limits on conduct for removing the scourge of stateless terrorists and pirates from the face of the earth.

The issue would change from "what is the definition of permissible conduct under common Article 3?" into "how does a nation-state know that the person it does not extend common Article 3 protection to, is in fact not entitled to its protection?"

Is it possible that the Senate and administration are having the wrong argument on a subject this serious? You better believe it. Did the Supreme Court in Hamdan really insist that ALL people of the earth are entitled to the protection of common Article 3? Not really, but it's analysis ignored the possibility of pirate-like entities. Are we completely invested in the cause "we do not torture?" Or would it be reasonable to say [and act], "call it what you want, but stateless terrorists get no quarter?"

What exactly is the "GOP Split"?

As interesting as they are, it's time to cast those questions aside. The circumstances where common Article 3 is held to be inapplicable are irrelevant to a S.3861 v. S.3901 comparison.

The analysis below compares the legal boundary between permissible and impermissible treatment of a detainee on the assumption that common Article 3 applies (or wherever common Article 3 applies), as expressed in competing proposals for legislation. One proposal being offered by the administration, the other by "maverick GOP Senators." They picked THIS argument, I'm just trying to follow it intelligently.

My analysis of the differences between (for shorthand) the administration's point of view and McCain's point of view began with a look at the language in the competing legislative proposals. One assertion that caught my attention was that the administration's proposal tracks the language of McCain's Detainee Treatment Act. That's as good a place as any to start.

WH Press Release - September 15, 2006

However, The President's Proposed Legislation Clarifies Common Article 3 By Applying The McCain Amendment Prohibiting Torture To The War On Terror. The proposal clarifies our obligations under Common Article 3 by reference to the U.S. Constitutional standard already adopted in the McCain Amendment and in the U.S. Reservation to the Convention Against Torture. The McCain Amendment - which is part of the Detainee Treatment Act (DTA) - prohibits "cruel, inhuman, or degrading treatment or punishment," as defined by reference to the Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution, for all detainees held by the United States, regardless of nationality or geographic location.

A direct assertion, and easily shown to be true by reading the relevant clause in the Senate bill that the administration favors, S. 3861 - Bringing Terrorists to Justice Act of 2006


(a) IN GENERAL.--Satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in Section 1003 of the Detainee Treatment Act of 2005 (title X of Public Law 109-148; 119 Stat. 2739; 42 U.S.C. 2000dd) shall fully satisfy United States obligations with respect to the standards for detention and treatment established by section 1 of common Article 3 of the Geneva Conventions, with the exception of the obligations imposed by subsections 1 (b) and 1 (d) of such Article.

But I must say, after "reading on," that I find the press release to be far less than full disclosure. Again, I'm not complaining. I expect all sides to advocate powerfully for the outcome they desire. At any rate, my impression that this release is more self-serving than illuminating is in part because Sections 6 and 7 of S. 3861 - Bringing Terrorists to Justice Act of 2006 approach the inquiry of limits on detainee interrogation treatment from opposite directions.

Section 6 of the administration's proposal says that meeting Section 1003 of the DTA fully satisfies United States obligations with respect to the relevant parts of common Article 3 of the Geneva Conventions. Well, providing all detainees with swimming pools, servants and gourmet eating fare would also fully satisfy United States obligations with respect to the standards for detention and treatment. But the point of interest is to find the boundary that separates the sort of conduct that doesn't satisfy common Article 3 from the sort of treatment that does satisfy it.

To be fair, Section 6 does in fact provide a means of defining the boundary of "too far." That boundary is found in the language of the White House press release, which mirrors the language in Section 1003 of the DTA, which mirrors the terms of US agreement to abide by various international treaties.


(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined- In this section, the term `cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

Okay - Section 6 says no cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments. Is that clarity enough? To read the press release, one would be lead to that impression. The press release says "The President's Proposed Legislation Clarifies Common Article 3 By Applying The McCain Amendment ..."

My suspicion is that if Congress passed a statute with only the equivalent of the administration's Section 6 (we can't engage in interrogations techniques that would violate the Constitution if applied to citizens), the administration would object, "Section 6 isn't specific enough." Or said another way, I think that the administration would object if there was no "Section 7 of S.3861" (or equivalent) in the proposed legislation. In fact, the administration HAS objected to S.3901, on the grounds that it lacks the requisite specificity that our interrogation professionals deserve. It may also object on the grounds that "Constitutional" interrogation techniques aren't effective.

Section 7 of the administration's proposed legislation is the part that clarifies the barrier between permissible and impermissible interrogation techniques. It is what clarifies the boundary between "lawful" and "unlawful" in a way that removes the uncertainty that the administration says is keeping it from continuing the CIA interrogations under the same "rules" that were successful in getting information in the past. Section 7 is intended to clarify the meaning of "outrages upon human dignity." Section 7 provides the "clarity in the law" (or at least an example of clarity) that the administration says it needs.

Pardon the long blockquote, but it's really the only way to accurately display exactly what the proposed legislation says.


Section 2441 of title 18, United States Code is amended by replacing subsection (c)(3) with the following:

Oops, hang on just a second. This is a good time to introduce the language of ...

18 USC § 2441. War crimes

(c) Definition.-- As used in this section the term "war crime" means any conduct--
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Most of that is superfluous to the analysis, but it's worth seeing the full definition of "war crime," in order to see what is proposed to be substituted for section (c)(3). The administration's objection to (c)(3), as it stands, is that the language of Geneva common Article 3 is too vague and our interrogators are thereby opened up to being charged with war crimes. The administration's proposed replacement to (c)(3) (in Section 7 of S.3861) continues:

`(3) which constitutes any of the following serious violations of common Article 3 of the international conventions signed at Geneva 12 August 1949, when committed in the context of and in association with an armed conflict not of an international character--

`(A) TORTURE- Any person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be guilty of a violation of this subsection. `Severe mental pain or suffering' has the meaning provided in 18 U.S.C. 2340(2).

This is another logical place to break, but only to note the reference to statute. 18 USC 2340(2) defines "severe mental pain or suffering," and later in the proposed statute is a reference to 18 USC 113(b)(2), which points to 18 USC 1365 for a definition of "serious bodily injury." These statutes contain the specificity that the administration is seeking, and are the basis for the assertion that the administration is asking for permission to conduct interrogation in conformity with existing US law. But before reading the definitions of "severe mental pain and suffering" and "serious bodily injury," and in the interest of seeing the administration's proposal, Section 7 of S.3861, with less interruption, here are all of the additional violations of common Article 3 that the administration proposes to constitute war crimes ...

`(B) CRUEL OR INHUMAN TREATMENT- Any person who commits, or conspires or attempts to commit, an act intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including severe physical abuse, upon another person within his custody or physical control shall be guilty of a violation of this subsection. `Severe mental pain or suffering' has the meaning provided in 18 U.S.C. 2340(2).

`(D) MURDER- ...

`(F) INTENTIONALLY CAUSING GREAT SUFFERING OR SERIOUS INJURY- Any person who intentionally causes, or conspires or attempts to cause, serious, bodily injury to one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. `Serious bodily injury' has the meaning provided in 18 U.S.C. 113(b)(2).

`(G) RAPE- ...

One more section of proposed law to present before looking at 18 USC 2430 and 18 USC 113, and it's also worth noting that the "interrogation/war crimes" part of the competing legislative proposals is only one part. The proposals also cover the creation of and rules for conducting trials.


This Act shall take effect on the date of the enactment of this Act and shall apply retroactively, including to any aspect of the detention, treatment, or trial of any person detained at any time since September 11, 2001, and to any claim or cause of action pending on or after the date of the enactment of this Act.

That's a whole different argument, and you'll find no shortage of writing that plays off this "retroactivity" clause. For this analysis, the point is that the specificity in interrogation techniques sought by the administration is embodied in the definition of "severe mental pain or suffering" in 18 USC 2340(2) and the definition of "serious bodily injury" derived by referring to 18 USC 1365, being pointed to from 18 USC 113(b)(2).

The specificity desired by the administration is obtained by defining acceptable treatment as inflicting "bodily injury" up to the limit of "serious" expressed in 18 USC 1365, and "mental pain or suffering" up to the limit of "severe" as expressed in 18 USC 2340(2).

18 USC § 113. Assaults within maritime and territorial jurisdiction

... (b) As used in this subsection--
... (2) the term "serious bodily injury" has the meaning given that term in section 1365 of this title.


18 USC § 1365. Tampering with consumer products

... (3) the term "serious bodily injury" means bodily injury which involves--
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty


18 USC § 2340. Definitions

As used in this chapter--
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from--
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

As noted in my opening, my objective is to understand the argument by first understanding the positions advocated by opposing sides. Not by sound bite, not by news report, but starting with the words they offer for legislation. On this subject, politicians will try to gloss over their policy differences by saying "we all want the same thing," I aim to focus (and maybe exaggerate) the differences, since I don't have to worry about damaging my personal political fortune.

With S.3861 being what the administration wants, what is different about S.3901, the proposal of Warner and McCain, that causes the administration to brand it as unacceptable? What are the specific terms of the argument between them? Those who don't understand the veiled references and technical terms that politicians use for debate will be bamboozled as negotiations progress.

The language of Warner's proposed legislation, just that part that deals with the limits of treatment associated with interrogation, as passed out of committee, is quite different from the administration's proposal. But it has what may appear to be a "weasel" way around status quo, that being the introduction of the notion of a "grave breach" vs. all the other breaches of common Article 3.

However, the notes associated with 18 USC 2441 describe a bit of dithering, including "1997 -- Subsec. (a). Pub. L. 105-118, Sec. 583(1), as amended by Pub. L. 107-273 substituted 'war crime' for 'grave breach of the Geneva Conventions'." The point being that "grave breach" may not be useful as a "weasel" phrase.


(a) In General- Section 2441 of title 18, United States Code, is amended--

(1) in subsection (c), by striking paragraph (3) and inserting the following new paragraph (3):

`(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or'; and

(2) by adding at the end the following new subsection:

`(d) Common Article 3 Violations-

`(1) GRAVE BREACH OF COMMON ARTICLE 3- In subsection (c)(3), the term `grave breach of common Article 3' means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:

`(A) TORTURE- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

`(B) CRUEL, UNUSUAL, OR INHUMANE TREATMENT OR PUNISHMENT- The act of a person who subjects another person in the custody or under the physical control of the United States Government, regardless of nationality or physical location, to cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the Constitution of the United States.

`(D) MURDER- ...

`(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.

`(G) RAPE- ...

And that concludes my presentation of the framework of this argument, hopefully providing the reader with tools to better appreciate part of the debate that will soon unfold in the Senate. You can bet there will be plenty of obfuscation on this subject. It's politically charged in addition to being vitally important - not just to today's "war against terror," but also as we enter wars with other nation states.

Oh, one parting shot, unrelated to interrogation. The Supreme Court, in its Hamdan decision, said something to the effect that Conspiracy is not a recognized offense to be tried by military tribunals. Both the administration's and Warner's proposed legislation deal with that by enumerating conspiracy as an offense.

UPDATE @ Sept 19

Bush offers concession on terror suspects' rights

White House deputy press secretary Dana Perino said the administration would send new language to the Hill in hopes of reaching an agreement and quell a Republican revolt. ...

An administration official said last night that the new language offered by the White House pertains only to U.S. obligations under the Geneva Conventions ...

A week after the Senate committee defied Mr. Bush, three more Republican senators said they oppose the administration's version, joining the four committee Republicans who voted against it. Republican Sens. Chuck Hagel of Nebraska, Lincoln Chafee of Rhode Island and Olympia J. Snowe of Maine said they favor Mr. Warner's bill.

In a further setback for the White House, the House announced yesterday that it would postpone a vote planned for tomorrow on a bill mirroring Mr. Bush's proposal. [H.R.6054]


According to Roll Call (sub. required), 8 Republicans join the trio in opposing the White House: Susan Collins, Olymia Snowe, Richard Lugar, Mike DeWine, Gordon Smith, John Sununu, Lincoln Chafee (natch), and Chuck Hagel.


White House Offers New Proposal on Interrogations
By Jonathan Weisman and Peter Baker - Washington Post

Senate aides and White House officials did not divulge the changes to the initial proposal, but they made it clear that negotiations were restarting after days of heated charges and countercharges. Sen. Lindsey O. Graham (R-S.C.), a central figure in the dispute, said there is now a "50-50 chance" of a deal being struck by week's end. ...

More troubling to the White House and GOP leaders, Henry J. Hyde (R-Ill.), chairman of the House International Relations Committee, indicated he may ask to examine portions of the bill pertaining to international treaties, leadership aides acknowledged.

GOP leaders are concerned that would open a second front on the debate over the Geneva Conventions. Hyde would also like to examine a section of the bill suspending detainees' right of habeas corpus, a provision that civil libertarians strongly criticize but that so far has not been controversial in Congress.

So, revised statutory language to add to the mix at some point, and some light on the parts of the bill other than interrogation techniques. I'll be on the lookout. More news stories and editorials on the tough interrogations subject can be read by clicking through this summary and this piece, both at

"Ask the White House" - Sept 18 Transcript

Erik, from Miami, Florida writes:
If the interrogations of US detainees is and always has been legal, why are legislative changes necessary to continue 'interrogating' detainees? If our 'interrogators' have been doing this for five years, and it was legal, why do we need changes now?

Steven G. Bradbury
The short answer is because of the Hamdan case. There, the Supreme Court has now told us for the first time, contrary to the determination made by the President in February 2002, that our armed conflict with the international terrorist organization al Qaeda is actually not an "international" conflict and therefore that Common Article 3 of the Geneva Conventions applies to protect captured al Qaeda terrorists.

Yep - accepting the wrong premise, "international character of the conflict," instead of getting to the relevant argument, which is that certain personal actors are expected to be outside of the protections afforded by the Geneva Conventions. It's like arguing over the penalty for violating the speed limit, when the offenders are drivers deliberately leaving the road to attack pedestrians on the sidewalks.

UPDATE @ 18:30

U.S. Senate's Republican Policy Committee policy paper

The above was issued on September 19. Hat tip to for the lead. Reading the policy paper, I notice that it never mentions 18 USC 2340(2), 18 USC 113, or 18 USC 1365. Not once. In my book, this smells like a deliberate game of "hide the ball." What's the big deal about those particular statutory references anyway? Why avoid them?

From page 14 of the policy paper ...

SASC bill [S.3901] supporters contend that amending Title 18 provides the protection necessary for the CIA program to continue. U.S. personnel who act in compliance with the DTA and U.S. laws need not fear prosecution under Common Article 3, they argue. They also believe that the program can continue if the Department of Justice issues opinions that certain interrogation tactics are permissible, even if they may not appear permissible based on foreign interpretations of Common Article 3. Supporters of the Administration position [S.3861] contend that Justice Department lawyers will be unwilling to issue opinions validating interrogation tactics given the political repercussions over the past several years when other such opinions were issued by other government attorneys. 78 Also of concern is whether the Supreme Court would find an executive branch interpretation adequate, in light of the Court's dismissal of the executive branch's traditional role in interpreting treaties in the Hamdan case.

78 In particular, former Assistant Attorney General Jay Bybee and Deputy Assistant Attorney General John Yoo have faced substantial political attacks and accusations due to their efforts to determine what interrogation techniques should be permissible. Related attacks have been leveled against Department of Defense General Counsel William J. Haynes.

Senator Kennedy's Press Release of March 7, 2005 is as good an introduction as any to the roles of those players. A quick aside, the "Haynes" referred to in Kennedy's press release is the same Haynes that Goober Graham has (allegedly) been holding up for appointment to a Circuit Court assignment.

I found this Human Rights Watch: List of and links to documents to be a handy historical reference. An analysis of some of the Bybee memo is at, and while I shouldn't need to, I remind readers that I don't much care what the advocate says in argument, I want to see the source material so I can make up my own mind, thank you very much, and the "lawofwar" site contains references and links not present at the hrw site.

Items to read include:

  • The so-called "Bybee Torture Memorandum". Read it.
  • The 71 page "Haynes Working Group" report (caution, 6.6 Mb PDF at the link), which describes interrogation techniques in some detail, and which also has a comprehensive discussion of relevant statutory, international law and treaty factors.
  • Bybee Treaty Memorandum (caution, 3 Mb PDF at the link), which has the primary conclusion that some fighters are outside of the protection of the Geneva Conventions. I happen to agree with that conclusion as a general proposition - some fighters are and should be outside of the protection of international treaty. See Blackstone. I don't however, agree with the breadth of application suggested in the Bybee Treaty memo.

UPDATE @ Sep 20

Set of articles from September 20

The situation appears very much up in the air. It's smart that present negotiations relating to specific statutory language are happening out of the public eye. It's amazing to me that this subject is accompanied by this degree of political posturing and obfuscation.

UPDATE @ 16:30

Senator Specter pokes a different hole in the proposed military tribunal bills, both the administration's version (S.3886) and the Warner/McCain version (S.3901). This "new hole" relates to habeas corpus. Some discussion at this article at balkin.blogspot.

He also expresses that he sides with the Warner, McCain and Graham position regarding the administration's initial proposed clarification of Geneva Convention common Article 3.

I think the administration's plans for having military tribunal legislation completed before October have just been shot down, hard. Senator Specter asserted that the Judiciary Committee has jurisdiction over at least some of the substantial law contained in the proposed legislation, and to this date, the Judiciary Committee has not handled the proposed legislation. Senator Specter said he has asked Frist to submit the proposed legislation to the Judiciary Committee.

UPDATE @ Sept. 21

Democrats Sit Out Detainee Debate

... One result of the political maneuvering is that at least one major issue has been omitted from congressional debate. The president's proposal would allow suspects to be held indefinitely without "habeas corpus," the right to protest one's detention in court.

... Sen. Carl Levin of Michigan, top Democrat on the Senate Armed Services Committee, said he wants to amend the habeas corpus provision but his office declined to provide details. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, asked leadership Wednesday to allow his panel to review it.

A Deal is Announced

UPDATE @ 16:32

Senator Frist announcing a deal between WH and the objecting Senators. Senators Graham and McConnell can be seen in the background, grinning. House and Senate folks haven't yet seen the language of the agreement.

Senator Warner: Thanks Frist & McConnell. With the Committee structure, Armed Services Committee has a service and a duty, which it performed. He wants to thank McCain and Graham as well, and the President and his team, who made themselves available throughout negotiations. The matter has to be carefully considered by both chambers (Senate and House), and it's not a deal until signed into law by the President.

Hadley: Have a framework for how to move ahead ...

Networks cut away. It sounds as though the specific language won't be available to the public today.


Bush, GOP reach agreement on tribunal laws MSNBC

Bush, GOP Rebels Agree on Detainee Bill

Statement by the President

5:04 P.M. EDT

THE PRESIDENT: I want to thank the members of the United States Senate for working with my administration to meet our top legislative priority, and that is a law that will help us crack the terror network and to save American lives.

I had a single test for the pending legislation, and that's this: Would the CIA operators tell me whether they could go forward with the program, that is a program to question detainees to be able to get information to protect the American people. I'm pleased to say that this agreement preserves the most single -- most potent tool we have in protecting America and foiling terrorist attacks, and that is the CIA program to question the world's most dangerous terrorists and to get their secrets.

The measure also creates military commissions that will bring these ruthless killers to justice. In short, the agreement clears the way to do what the American people expect us to do, to capture terrorists, to detain terrorists, to question terrorists, and then to try them. I hope the Congress will send me legislation before it wraps up their business next week.

Thank you.

END 5:06 P.M. EDT


Critical National Security Program Will Continue
from the Office of Senator Mitch McConnell

"The President was very clear that any legislation on terrorist detainees must ensure that our intelligence-gathering interrogation program can continue. As the President said, this valuable program has saved innocent American lives and is preventing future terrorist attacks. The legislation we will soon consider on the Senate floor meets the President's criteria. This is a big win in the continuing war on terror."

Contents of the Revised Proposal

UPDATE @ Sept 22

Hat tip to for a link to the agreed statutory language relating to the treatment of detainees under interrogation. The post there also contains a link to the agreement pertaining to the trial process (handling of classified information), but that's not the subject of -THIS- post.

In short, the agreed language modifies 18 USC 2441, the War Crimes Act, by defining grave breaches of common Article 3 of the Geneva Conventions in the following fashion ...

In new section 18 USC 2441(d)(1), list prohibited conduct, including:

  • (A) TORTURE - recites "severe physical or mental pain or suffering"
  • (B) CRUEL OR INHUMAN TREATMENT - recites "severe or serious physical or mental pain or suffering"
  • (F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY - recites "serious bodily injury"
Notice the differentiation between "severe" and "serious"? I'm not clear on the significance of this, if any, but some of the Senators are pointing to this as having some effect. Anyway ...

In new section 18 USC 2441(d)(2), define:

"(A) the term `severe mental pain or suffering' shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title.

"(B) the term `serious bodily injury' shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title.

Without having taken the time to parse the balance of the language, my first reaction is that it is a combination of meaningless smoke and a shifting of some power to the executive to define some offenses short of war crimes under the War Crimes Act.

The bottom line is that Warner, McCain and Graham did not get what they wanted, which was to avoid the creation of specific limits of conduct that constitute a violation of common Article 3, more particularly, to avoid making conduct short of 18 USC 2340(2) and 18 USC 113 as NOT against common Article 3. All they got was political cover in the form of doublespeak and smoke.

UPDATE @ Sept 23

At 8:38 AM, I'm still waiting for the Congressional Record to be updated, so the bill numbers (if not the text) can be obtained. Meanwhile ...

Hat tip to Marty Lederman at "Balkinize," the article Oh, Well, That Explains It links to a NYT Graphic illustrating 18 USC 2340(2) and 18 USC 113.

Arguably a simpler presentation than my nearly week-old shout-out that the bottom line of this debate is over referring to 18 USC 2430(2) and 18 USC 113 or not, and the NYT graphic has the benefit of illustrating the "severe vs. serious" language - where the only new legal phrase involves application of the word "serious" to modify "mental pain or suffering."

UPDATE @ Sept 24

Senator McCain on CBS Face the Nation. Notes scribbled as he answered questions.

Schieffer: "Is it a done deal? Will Congress go along? And the even larger question, has the war in Iraq increased the risk of terrorism?"

McCain is in the studio. John Harris of Washington Post is also in the studio. First question is based on the (false) premise that action in Iraq has hurt the war on terror. McCain says he doesn't know anything about it because he's not on the Intelligence Committee. He says that we need to prevail in Iraq, if we fail, our problems become more complicated. If not Iraq, some other object would be used to recruit terrorists.

What to "Iraq has made us safer?" which the President has said - it seems opposite of what the intelligence agencies have concluded. He won't speak for the President, but this is a war of ideology and the best long term solution is to give them an open and free society. Schieffer says the WH has replied that the leak is not representative of the contents of the document, to which Schieffer asks "the leaker must have been motivated because the WH was not being truthful."

McCain says he thinks the tactics in Iraq were flawed. Not enough troops to begin, etc. But this is not reason to leave, we should fix mistakes and stay the course. Bottom line is a need to expand the Army and Marine Corps - to relieve pressure on the National Guard.

McCain notes that Afghanistan is not going easy, North Korea is also looming. Now they go to the negotiated agreement on the interrogation.

What's the difference between serious and severe pain? This is a smoke screen, see the statutes. The fact that the President may publish interrogation techniques (presumably these being some that are NOT the most extreme permitted under the law) does not preclude the application of unpublished techniques that are less than what is permitted under the proposed law, i.e., short of the definitions of 18 USC 2340(2) and 18 USC 113.


My comments - an aside from McCain's dissembling.

Read the statute to see the difference between "Torture" and "Cruel and Inhuman Treatment," which boils down to adding two elements and creating a new legal standard of "serious" (vs. severe) harm. Torture requires (and cruel and unusual does not):

  • the specific intent of the actor to cause damage to the subject
  • for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind

Before the new legal standard of "serious harm" was negotiated, the harm to the subject had to be "severe," which roughly translates to PROLONGED mental or PERMANENT physical damage.

Under the proposed new legal standard, "cruel and inhuman" is less than torture not just because of the "intent" and "for the purpose" elements listed above, but also because the eventual MENTAL harm must rise to the level of "serious," which means it:

  • must be serious [circular] and non-transitory (which need not be prolonged)

What's the difference between "prolonged" and "non-transitory (which need not be prolonged)"? Remember, this language is touted as adding the clarity and precision necessary to permit the CIA interrogation program to go forward.


Will the proposed legislation prohibit the interrogation technique of "long standing"? McCain says it's hard for him to get into the specific techniques, but he objects to extreme stress positions (and he specifically objects to waterboarding). He points out that he is also opposed to severe mental and physical pain, and says that a technique that causes an instantaneous occurrence of excruciating pain is prohibited. [Read the statute - there must be bodily injury in combination with extreme physical pain to find the occurrence of "serious physical pain" under the statute. No bodily injury, no illegal serious physical pain].

McCain is asked about the signing statement associated with the DTA, McCain says he knows of no violation by the administration. "We all understand the need to collect intelligence, and I believe the administration is working in good faith."

UPDATE @ 13:55

Shameless lifting from National Security Advisors - A national security law blog ...

From CQ Today, a preview of the legislative agenda this week with respect to the detainee and surveillance bills (including links to both the separate bills and the combo package):
Buoyed by the breakthrough on terrorist tribunal legislation, Senate GOP leaders will try to combine the detainee agreement with a bill on warrantless eavesdropping for a floor vote this week -- a move that could burnish the Republicans' national security credentials as they hit the campaign trail for the Nov. 7 midterm elections.

But with no agreement from Democrats -- much less from Republicans -- on a combined measure, Senate Majority Leader Bill Frist, R-Tenn., has hedged his bets by introducing three bills: one (S 3930) that reflects the detainees agreement, a second (S 3931) that would authorize judicial review of the surveillance program by a special court, and a third (S 3929) that combines the two. All the bills were introduced Sept. 22 using a Senate rule that allows leaders to bypass committees and bring bills directly to the floor.

"The goal is to get one of these bills on the president's desk by the end of the week," Senate Majority Whip Mitch McConnell, R-Ky., said after the bills were introduced. "But we want to maximize the possibility of having a package agreement."