国会记录：2006年9月14日（参议院）第S9586-S9588页恐怖分子监视斯佩克特先生。总统先生，我已寻求承认，对两个问题作了简要评论：一是规定对总统的恐怖主义监视计划进行司法审查的立法；第二，我们将要做什么来遵守Hamdan v。拉姆斯菲尔德。司法委员会昨天公布了三项法案。我的法案是S.2453，它规定监视计划将提交给外国情报监视法庭。毫无疑问，总统的计划违反了据称是排他性的《外国情报监视法》。但是，如果第2条规定了宪法权力，那么宪法权力将凌驾于法案之上。唯一能对此做出决定的方法是让法庭权衡威胁的严重性，而不是侵犯隐私。与许多人的主张相反，这项法律，即第2453条，并未授权总统的计划。它所做的是让总统的计划接受司法审查。它并不要求进行审查，因为可以理解，总统不想削弱他的机构权威。我所追求的是完成这个项目的审查；总统已经做出承诺，并得到白宫的确认，这项计划将提交司法审查。有一种观点认为，范斯坦参议员的法案s.3001和我的法案s.2453之间存在矛盾，这是不正确的。费恩斯坦参议员法案中的条款说，FISA是窃听的唯一手段。这是事实，除非该法令被宪法条款取代。我的法案，S.2453，说法案中没有任何内容限制总统的宪法权力，因为法令不能限制总统的宪法权力。我希望很快，我们将继续向前推进，领导人将该法案付诸表决，以便我们能够就司法审查作出决定，确保正在进行的任何窃听都得到司法批准。可能会有一些案例会附带出现。地区法院有许多案件。波特兰的那个可能有地位。在我的立法中，我不建议剥夺任何已经开始并正在审理案件的法院的管辖权。我认为，在业务过程中，这些问题应该提交给FISA法院，但不应在法院进行的任何司法管辖权剥夺。关于国会寻求遵守美国最高法院在Hamdan v.案中的裁决的活动。拉姆斯菲尔德，主要责任归于武装部队委员会。司法委员会确实拥有管辖权，因为涉及《刑法典》第18编，我们对日内瓦四公约的解释拥有管辖权。有人提出了一些有争议的问题，我想就此发表评论。一项规定涉及机密信息。我认为，让证人与原告对质并了解证据是必不可少的。日内瓦四公约共同第3条规定，必须提供文明人认为不可或缺的一切司法保障。我认为这将包括在某人被判处包括死刑在内的重大刑罚之前告诉他证据是什么。我们有一个《保密信息保护法》，其中规定了我认为应该适用于这里的准则。其结果是，如果你不能拿出证据让被告听，案件可能会被驳回。但这不会影响政府，因为这些人可以作为敌方战斗人员被无限期拘留。因此，我们不会披露来源和方法；我们不会释放任何人；如果我们不能提供证据，我们可能不会将他们定罪，但他们将被拘留，不会构成威胁。有人提出了一个关于强迫供认的问题。我认为我们不能容忍这种情况，也不能遵守美国法律或日内瓦四公约。逼供是不公平的，也是不可靠的。关于共同第3条，司法委员会已提交对关于战争罪的第303条的修正案，以供审议并纳入武装部队委员会正在审议的立法。我请求全体一致同意，在我的发言结束时，将其记录在案。主持会议的官员。无异议，就这样命令。（见附件1）斯佩克特先生。主席先生，关于是否应该列入《被拘留者待遇法》条款的争议，我认为应该列入，因为这些条款进一步界定了什么将构成违反共同第3条的行为。但我不相信他们会生气金博宝正规网址ht to be exclusive or foreclose other considerations under Common Article 3. In addition to the specification of the crimes under the War Crimes Act, which I have submitted, it would be useful to have the provisions of the Detainee Treatment Act included, which are the fifth amendment, the eighth amendment and the 14th amendment, where there has been considerable judicial interpretation as to what are prohibited acts. General Hayden, Director of the CIA, thinks that is necessary in order to be able to give comprehensive advice. I personally do not know that the interrogation has to go beyond what is in the Army Field Manual. In a visit to Guantanamo, the chief interrogator handling some 32 interrogators and thousands of interrogations thinks that the Army Field Manual is sufficient. It may or may not be. The CIA wants greater latitude, but there is some assurance of congressional oversight because the interrogation tactics have to be submitted to the Intelligence Committee. One other point that I want to comment on is my concern about the inclusion of habeas corpus relief. I believe that it is important to retain jurisdiction of the Federal courts on habeas corpus. This was a contested issue under the Detainee Treatment Act, but we have seen that the only real firm guidance has come from the Supreme Court of the United States. In three cases regarding detainees from June of 2005, Jose Padilla, Hamdi, and the Hamdan v. Rumsfeld decision, the Congress has been unwilling or unable to act. I introduced legislation for military commissions shortly after September 11 as did other Senators. We didn't act. We punted to the Supreme Court. These issues, regrettably, experience has shown, are just too hot to handle by the Congress. The Supreme Court of the United States under the rule of law has enforced compliance of detainees, and now compliance for those who are to be tried for war crimes under the Geneva Conventions' terms as well as under title 18. It is simply insufficient to limit the great rift which seems embodied in our habeas corpus statute. I have had some discussion with Senator Levin, who is on the floor at the present time, about offering an amendment if in fact the bill comes from the Armed Services cutting out habeas corpus. It is my hope that we can move reasonably promptly to S. 2453 so that there may be set in motion the procedures to have the Federal courts rule on the constitutionality of the President's electronic surveillance program. It would be highly desirable to bring the entire program under the Foreign Intelligence Surveillance Act. There are provisions in Senator Feinstein's bill, S. 3001, which I have cosponsored, that I believe would enable us to bring individual live warrants for causes which originated in the United States and go overseas. I have been advised that the calls which originate overseas are so numerous that it is not possible to have individual live warrants. So that under these circumstances the most that can be accomplished is to have the program submitted to the Foreign Intelligence Surveillance Court. In one of the four hearings on this bill, four former judges of the FISA Court appeared and testified and commented that the bill was practical, that there was sufficient standing, that there were litigable issues and that the Foreign Intelligence Surveillance Court can handle it. They can handle it as a matter of expertise because of their extensive experience, and they can handle it because their proceedings are closed so that there is not a public disclosure of state secrets. [[Page S9588]] It may be, as I said very briefly earlier, that one of the cases coming out of Federal courts--there has been a decision from Detroit, and there is a case pending in San Francisco--my review of those cases suggests to me that the case which is coming out of Portland I think would have standing. The PRESIDING OFFICER. The Senator's time has expired. Mr. SPECTER. Mr. President, I thank the distinguished chairperson of the Homeland Security Committee for yielding me the time. I yield the floor. Exhibit 1 SEC. 303. WAR CRIMES ACT AMENDMENT. Section 2441 of title 18, United States Code is amended by replacing subsection (c)(3) with the following: ``(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: ``(1) 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). ``(2) 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). ``(3) Performing biological experiments.--Any person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical purpose and in so doing endangers the body or health of such person or persons shall be guilty of a violation of this subsection. ``(4) Murder.--Any person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed out of active 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. ``(5) Mutilation or maiming.--Any person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed out of active combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, or burning any individual without any legitimate medical or dental purpose, 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. ``(6) 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 out of active 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). ``(6) Rape.--Any person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused or with any foreign object shall be guilty of a violation of this subsection. ``(7) Sexual assault or abuse.--Any person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact, shall be guilty of a violation of this subsection. For purposes of this offense, `sexual contact' has the meaning provided in 18 U.S.C. 2246(3). Sexual assault or abuse may also include, but is not limited to forcing any person to engage in simulated sexual acts or to pose in an overtly sexual manner. ``(8) Taking hostages.--Any person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be guilty of a violation of this subsection. This provision shall not apply to prisoner exchanges during wartime. Any person who attempts to engage or conspires to engage in this offense shall also be guilty under this subsection;'' Section 2441 of title 18, United States Code is amended by replacing the period at the end of subsection (c)(4) and adding the following new subsections: ``(5) involving `genocide' as defined in title 18, United States Code, section 1091; ``(6) involving `sabotage' as defined in title 18, United States Code, section 2151 et seq.; or ``(7) involving forced oaths, conversions, or renouncements of one's allegiance to a nation or religion. Section 2441 of title 18, United States Code is amended in subsection (a) by adding ``attempts to commit a war crime, or conspires to commit a war crime,'' after ``commits a war crime.'' Section 2441 of title 18, United States Code is amended by adding the following sentence at the end of subsection (b): The circumstances referred to in subsection (a) shall also include unprovoked attacks on American citizens on domestic or foreign soil by any private army, terrorist organization, or other ideological combination or alliance where such an attack would otherwise be considered a war crime if committed by a nation state or military force. CHAPTER 3--JUDICIAL REVIEW; MISCELLANEOUS. SEC. 301. JUDICIAL REVIEW. Combatant Status Review Tribunals.--The United States Court of Appeals for the Armed Forces shall, with the United States Supreme Court upon a petition for certiorari, have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal. The scope of such review is defined in section 1005(e)(2) of the Detainee Treatment Act of 2005. If the Court grants a detainee's petition for review, the Department of Defense may conduct a new Combatant Status Review Tribunal. (1) Military commission.--Review shall be had only of final judgments of military commissions as provided for pursuant to section 247 of the Military Commissions Act of 2006.