May 20 2009
Floor of the United States Senate
Mr. President, I rise to give some views on Guantanamo. I have had the privilege of serving with the distinguished Senator, who has just concluded his remarks, on the Intelligence Committee of the Senate. But I strongly disagree with him. I would like to have the opportunity to make the case.
First of all, Guantanamo is not sovereign territory of the United States. Under a 1903 lease, however, the United States exercises complete jurisdiction and control over this naval base.
In December 2001, the administration decided to bring detainees captured overseas in connection with the war in Afghanistan and hold them there outside of our legal system. That was the point: To hold these detainees outside of the U.S. legal system.
This was revealed in a December 2001 Office of Legal Council memorandum by John Yoo of the Justice Department. He wrote this:
‘Finally, the Executive Branch has repeatedly taken the position under various statutes that [Guantanamo] is neither part of the United States nor a possession or territory of the United States. For example, this Office [Justice] has opined that [Guantanamo] is not part of the "United States" for purposes of the Immigration and Naturalization Act...Similarly, in 1929, the Attorney General opined that [Guantanamo] was not a "possession" of the United States within the meaning of certain tariff acts.’
The memo concludes with this statement:
‘For the foregoing reasons, we conclude that a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantanamo Bay Naval Base, Cuba. Because the issue has not yet definitively been resolved by the courts, however, we caution that there is some possibility that a district court would entertain such an application.’
This set the predicate for Guantanamo: Keep these individuals outside of the reach of U.S. law, and set up a separate legal system to deal with them.
Now, was this right or wrong? It was definitively wrong, because since then the Supreme Court has rejected this position in four separate cases.
First, in Rasul v. Bush in 2004, the court ruled that American courts, in fact, do have jurisdiction to hear habeas and other claims from detainees held at Guantanamo.
Second, in Hamdi v. Rumsfeld, also in 2004, the Court upheld the President's authority to detain unlawful combatants, but stated that this authority was not ‘a blank check.’ In particular, the Court ruled that detainees who were U.S. citizens, such as Yasser Hamdi, had the rights that all Americans are guaranteed under the Constitution.
Third, in Hamdan v. Rumsfeld in 2006, the Court declared invalid the Pentagon's process for adjudicating detainees and extended to Guantanamo detainees the protection from cruel, inhuman, and degrading treatment found in Common Article Three of the Geneva Conventions.
The administration responded by pushing through Congress the Military Commissions Act. This legislation expressly eliminated habeas corpus rights and limited other appeals to procedure and constitutionality, leaving questions of fact or violations of law unresolvable by all Federal courts. This happens nowhere else in American law. But this Military Commissions Act was enacted in the fall of 2006.
That law was then challenged through the courts and overturned in the final Supreme Court decision in this area -- Boumediene v. Bush -- decided in 2008.
In Boumediene, the Supreme Court stated that the writ of habeas corpus applied to detainees even when Congress had sought to take away jurisdiction. It stated that detainees must be allowed access to Federal courts so that a judicial ruling on the lawfulness of their detention could be made. Writing for the majority in the Boumediene decision, Justice Kennedy wrote the following:
‘The laws and the Constitution are designed to survive, and to remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.’
Several habeas petitions have been filed and reviewed in the DC Circuit since the Boumediene decision, and that process is ongoing today.
In sum, these four Supreme Court rulings make one thing exceedingly clear: The legal rights of these detainees are the same under the Constitution, whether they are kept on American soil or elsewhere.
Attempts to diminish or deny these legal rights have only served to delay the legal process at Guantanamo Bay.
In fact, only three of the roughly 750 detainees held at Guantanamo have been held to account for their actions.
One is David Hicks, an Australian. He pled guilty to charges and has since been released by the Australian Government.
Salim Hamdan, Bin Laden's driver, was found guilty of providing material support for terrorism by his military commission. He was sentenced to five and a half years, but having already served five years in Guantanamo, he was released to Yemen in November of 2007.
Ali Hamza al Bahlul, a Yemeni who was al-Qaida's media chief, was found guilty of conspiracy and providing material support for terrorism in November of 2008. He refused to mount a defense on his own behalf and was given a life sentence.
Today, there are approximately 240 detainees incarcerated at Guantanamo.
In 2007, nearly two years ago, I introduced an amendment to the Defense Authorization Bill to close Guantanamo Bay within one year and transition all detainees out of that facility.
The amendment was cosponsored by 15 Senators. Unfortunately, it was not allowed to come up for debate.
Within two days of his inauguration, President Obama issued an Executive Order announcing the closure of Guantanamo within one year and ordering a review of each detainee.
Let me say this: I believe closing Guantanamo is in our Nation's national security interest. Guantanamo is used not only by al-Qaida, but also by other nations, governments, and individuals -- people good and bad -- as a symbol of America's abuse of Muslims, and it is fanning the flames of anti-Americanism around the world.
As former Navy General Counsel Alberto Mora said in 2008:
‘Serving U.S. flag-rank officers...maintain that the first and second identifiable cause of U.S. combat deaths in Iraq -- as judged by their effectiveness in recruiting insurgent fighters into combat -- are, respectively the symbols of Abu Ghraib and Guantanamo.’
I deeply believe closing Guantanamo is a very important part of the larger effort against terror and extremism. It is a part of the effort to show that Americans are not hypocritical, that we do not pass laws and then say that there is a certain group of people who are exempt from these laws.
Detentions at Guantanamo have caused tension between the United States and our allies - the allies we try to get to contribute more forces and other support for the war in Afghanistan, and they are a rallying point for the recruitment of terrorists.
So, closing it is a critical step in restoring America's credibility abroad, as well as restoring the value of the American judicial system.
The executive branch task force responsible for ensuring that Guantanamo closes within the year is reviewing the evidence on each of the roughly 240 detainees to determine the following:
- Who can be charged with a crime and be prosecuted;
- Who can be transferred to the custody of another country, like the 500 or so detainees who have already left Guantanamo;
- Who poses no threat to the United States but cannot be sent to another nation; and, finally,
- Who cannot be released because they do pose a threat but cannot be prosecuted, perhaps because the evidence against them is the inadmissible product of coercive interrogations.
Let me be clear: No one is talking about releasing dangerous individuals into our communities or neighborhoods, as some would have us believe.
The best option is to prosecute the terrorists who plotted, facilitated, and carried out attacks against the United States.
Let's look at the record for a moment:
The United States has prosecuted individuals in Federal court for the bombings of U.S. Embassies and the 1993 World Trade Center attack. It has prosecuted individuals plotting to bomb airplanes, for attending terrorist training camps, and for inciting violent acts against the United States.
According to a report, "In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts," issued in May of last year, more than 100 terrorism cases since the beginning of 2001 have resulted in convictions.
The individuals held at Guantanamo pose no greater threat to our security than these individuals convicted of these crimes, who are currently held in prison in the United States and are no danger to our neighbors, to our communities.
The Bush Administration had estimated that out of the 240 detainees at Guantanamo, 60 to 80 could be prosecuted for crimes against the United States or its allies. Current efforts to try these cases are ongoing.
In the event that detainees cannot be tried in Federal court or in standard courts martial, the Obama Administration has recently proposed revisions to military commissions. This is an issue we are going to have to look at very closely in the coming weeks.
Our system of justice is more than capable of prosecuting terrorists and housing detainees before, during, and after trial. We have the facilities to keep convicted terrorists behind bars indefinitely and keep them away from American citizens.
The Obama Administration will determine which civilian and military facilities are best to accomplish these goals. One example is the ‘supermax’ facility in Florence, Colorado.
It is not in a neighborhood or community. It is an isolated supermax facility. It has 490 beds. They are reserved for the worst of the worst. This facility houses not only drug kingpins, serial murderers, and gang leaders, but also terrorists who have already been convicted of crimes in the United States.
There have been no escapes, and it is far, as I said, from America's communities and neighborhoods, as are just about all the maximum and supermax facilities.
This facility has housed terrorists such as:
- Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, and at least six of his accomplices;
- Omar Abdel-Rahman, known as the "Blind Sheikh," who was behind a plot to blow up New York City landmarks, including the United Nations;
- Richard Reid, the al-Qaida "shoe bomber," who tried to blow up an airliner in flight;
- Four individuals involved in the 1998 bombings of Embassies of the United States in Kenya and Tanzania;
- Ahmed Ressam, the "Millennium Bomber," who was detained at the Canadian border with explosives in his car as he was headed to the Los Angeles airport;
- Iyman Faris, the al-Qaida operative who plotted to blow up bridges in New York City;
- Jose Padilla, the US citizen held for three and a half years as an enemy combatant based on allegations that he had wanted to detonate a dirty bomb inside the United States and was later convicted of material support to terrorism;
- 9/11 conspirator Zacarias Moussaoui;
- The "Unabomber," Theodore Kaczynski; and
- Oklahoma City bombers, one of whom is now deceased, Timothy McVeigh, and Terry Nichols.
These 20 are just an example of terrorists who have been or are being held inside the United States.
So there is ample evidence that the United States can and, in fact, does hold dangerous convicts securely and without incident.
As I said earlier, I believe that not all detainees can be prosecuted.
The Bush Administration had identified a second group of 60 to 80 who could be transferred out of Guantanamo, if another nation could be found that would accept them.
Again, the Obama Administration is finding some success in moving these detainees abroad.
Since January of this year, there have been stories indicating that certain European nations may accept some of the detainees. A few days ago, France accepted an Algerian detainee from Guantanamo. These countries recognize that closing Guantanamo is in the best interests of everyone, and are willing to be part of the solution. We sincerely thank them.
Finally, let me address the third category of detainees, which presents the thorniest problem.
The Executive Order Task Force will likely determine that there are some detainees who can neither be tried, nor transferred, nor released. Secretary Gates recently testified that there were 50 to 100 of these detainees.
The President has the authority to detain such people under the laws of armed conflict, and he very well may need to exercise that authority. I would support his doing so.
In my view, this authority should be constrained and in keeping with the Geneva Conventions. Detainees should only be held following a finding by the executive branch that this action is legal under international law.
These detainees should have the right to have a U.S. court review this determination, much as the Boumediene decision guaranteed that habeas petitions of detainees will, in fact, be heard. That judicial determination should be reviewed periodically to determine whether the detainee remains a threat to national security and should continue to be detained.
In this, there is a protocol that I believe will stand court scrutiny and enable the President to continue the detention of everyone who remains a national security threat to the United States.
Guantanamo, despite all the rhetoric on this floor, has been a symbol of abuse and disregard for the rule of law for too long. Four Supreme Court decisions should convince even the most recalcitrant of those among us. It is in our own national security interests that Guantanamo be closed as quickly and as carefully as possible.
The fact is, no Member of Congress wants to see, or advocates, the reckless release of terrorists, or anyone who is a threat to our national security, into our communities. It does not have to, and it will not be done that way.
Of the 240 detainees at Guantanamo right now, some can be tried. Some have been declared not to be enemy combatants. Others may need to be detained in the future, but only in a way that is consistent with our laws and our national security interests.
I believe we should close Guantanamo. I support the President in this regard. This is a very important decision we are going to make.
I very much regret that this amount was in the supplemental bill without a plan, and I think that is the key. The plan was not there. How would the money be used? Nobody knew. So it fell smack-dab into the trap that some want to spring throughout the United States: That this administration or this Senate would release detainees into the neighborhoods and communities of the United States.
As shown on this chart, this supermax facility is not in a neighborhood or a community. Yes, we have maximum security prisons in California eminently capable of holding these individuals as well, and from which people do not escape.
I believe this has been an exercise in fear-baiting. I hope it is not going to be successful because I believe American justice is what makes this country strong in the eyes of the world. American justice is what people believe separates the United States from other countries. American justice has to be applied to everyone because, if it is not, we then become hypocrites in the eyes of the world.
We should return to our values. One of the largest symbols of returning to these values is, in fact, the closure of the facility at Guantanamo Bay.
“Prosecuting and Detaining Terror Suspects in the U.S. Criminal Justice System.”