-Feinstein remarks on Senate floor follow Supreme Court ruling on rights of detainees -
Jun 12 2008
Washington, DC – In remarks delivered on the floor of the Senate today, U.S. Senator Dianne Feinstein (D-Calif.) called for shutting down the detention facility at Guantanamo Bay, Cuba.
Senator Feinstein’s remarks came on the heels of the Supreme Court’s ruling that Guantanamo Bay detainees have a constitutional right to challenge their incarceration in U.S. courts.
It was the fourth time that the Supreme Court has ruled against the Bush Administration over its treatment of detainees, who are being held indefinitely at Guantanamo Bay.
Senator Feinstein has led efforts in the Senate to require President Bush to close the Guantanamo Bay detention facility.
Last year, Senator Feinstein offered an amendment to the Fiscal 2008 Defense Authorization Bill that would have required President Bush to close the Guantanamo Bay detention center within one year. Senate Republicans prevented the measure from being debated in July 2007. Senator Feinstein has vowed to continue pressing to close the facility.
The following are Senator Feinstein’s remarks on the Senate floor:
“Thank you very much. This morning, the Supreme Court struck down as unconstitutional the portion of the Military Commissions Act of 2006 which denied habeas corpus rights to detainees at Guantanamo Bay. In making its decision, the Supreme Court has recognized that detainees at Guantanamo cannot be denied the fundamental legal right to habeas corpus, enshrined in the Constitution.
Writing for the majority, Justice Kennedy wrote:
‘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.’
I think that is a very important statement. I think it crystallizes a lot of the debates this Senate has been having over the past five to six years. It recognizes the importance of the rule of law, one of the most fundamental values our country was founded upon.
Detainees at Guantanamo have been in a legal quagmire since 2002. As the Court recognized, some have been held without court review for more than six years – six years -- many in isolation for long periods of time.
The Court specifically stated it was not ruling on the issue of whether the writ of habeas corpus should be issued or whether detainees should be released. Rather, the decision focused on the fact that the detainees are entitled to the fundamental right of habeas corpus as a means to review whether they are being properly held.
Four times now the Supreme Court has stepped in and struck down the Bush Administration's policies at Guantanamo. Four times. In the Hamdi and Rasul decisions, the Court stated that U.S. law applied to Guantanamo and that detainees had to be determined enemy combatants before they could be held.
In the Hamdan decision, the Court struck down the Administration's claim that the Geneva Conventions did not apply to the detainees at Guantanamo and repudiated the legal framework the Bush Administration tried to construct to handle the trials of detainees.
In today's decision, the Supreme Court has once and for all made it clear that even at Guantanamo our constitutional principles remain sound. It also recognizes that President Bush's repeated assertion that he has essentially unchecked powers in the war on terror is simply wrong.
Guantanamo Bay has been a case study in what not to do in the war on terror. Consider all the early choices this Administration has made: to deny the protections of the Geneva Conventions, to establish military tribunals based on the theory of unchecked Presidential power, to deny habeas corpus and, finally, to reverse decades of old precedent and authorized the use of coercive interrogation and torture.
These decisions by the Bush administration and its operation of Guantanamo will go down in history as a black mark on the United States, decisions where this Administration and this President simply forgot -- or worse, ignored -- our own values and laws.
Today's decision provides another reason why Guantanamo should be closed. Closing this facility is critical to our Nation's credibility and stature and our ability to conduct foreign policy and counterterrorism operations worldwide.
If there is one thing that is very clear, the credibility of the United States as a bastion of law, of constitutional rights, and of human rights has gone downhill all over the world.
As I have said on this floor before, I have never seen a time in my lifetime where Americans are thought so poorly of by citizens of countries that are our firm allies as well as our adversaries.
Let me be clear: I have no sympathy for al-Qaida terrorists, Taliban fighters or anyone else around the world who wishes to harm Americans at home or abroad.
But I strongly believe that continuing to operate Guantanamo, in the face of repeated reprimands from the Supreme Court, the stated wishes of senior Administration officials, and a tidal wave of congressional and international condemnation weakens the United States in its effort to fight the war on terror.
Last July, I submitted an amendment to the fiscal year 2008 Defense Authorization Bill to close Guantanamo. I was joined in that amendment by 15 cosponsors: Senators Harkin, Hagel, Dodd, Clinton, Brown, Bingaman, Kennedy, Whitehouse, Obama, Salazar, Durbin, Byrd, Biden, Boxer, and Feingold. I intend to offer this amendment again this year.
President Bush, Secretary Gates, Secretary Rice, Colin Powell, 9/11 Commission heads Tom Kean and Lee Hamilton, numerous retired four-star generals and admirals, as well as Senator Obama and Senator McCain, have all expressed their support for closing Guantanamo.
It kind of boggles my mind. I was sitting in the Defense Appropriations Subcommittee, when I asked the question of Secretary Gates, and he said: ‘Yes, I am for closing Guantanamo.’ I have heard Colin Powell say: ‘Yes, I am for closing Guantanamo. I would do it right now.’ I have heard generals and admirals say: ‘Guantanamo does this Nation no good.’ Yet nothing changes.
So the question of closing the facility is when and not if.
Guantanamo, as I have said, is a lightning rod of condemnation around the world, and not just because of a lack of adequate legal rights and remedies. It has also drawn criticism for the treatment of detainees that violates both American and international standards, laws and values. And coercive interrogation techniques undertaken there have failed to yield reliable and usable intelligence.
Both the Presiding Officer and I sit on the Senate Intelligence Committee. We hear the classified data which obviously cannot be discussed here. We know there are bad people in Guantanamo, but we also know there are people who are hapless victims, who may have been picked up just because they were in a certain place at a certain time.
This week I held a hearing on coercive interrogation techniques being used at Guantanamo. Glenn Fine, the inspector general of the Department of Justice, testified about his report that concluded that over 200 FBI agents observed or heard about military interrogators using a variety of harsh interrogation techniques.
These include but are not limited to stress positions and short shackling, in which a detainee's hands are shackled close to his feet to prevent him from standing or sitting; isolation, sometimes for periods of 30 days or more; use of growling military dogs; twisting a detainee's thumbs back; using a female interrogator to touch or provoke a detainee in a sexual manner.
Mr. Fine also argued these techniques are not only shocking but they are less effective and they produce less reliable intelligence than non-coercive means. Experienced FBI interrogators agree.
It was kind of interesting because the minority apparently exercised a rule that would prevent the hearing from continuing. When I asked the question – ‘Why?’ -- I found it was because of my hearing, which was to elucidate some valuable facts and timelines of how all this happened. Fortunately, and thanks to the majority leader, who came to the floor and recessed the Senate, we were able to conclude our hearing.
One of the people testifying was a former FBI agent by the name of Jack Cloonan. Now, Jack Cloonan has interrogated at least six members of al-Qaida. He testified under oath that he was able to get convictions for three of them and was able to get actionable intelligence for every one of them using non-coercive techniques.
As a matter of fact, he said these al-Qaida members were so struck by the process he used, the fairness of the process, they not only gave him information that was valuable, they are now in witness protection programs. I thought that is very relevant information.
The conditions at Guantanamo have led to at least four documented detainee suicides and another 41 attempted suicides, according to media reports from 2006 and 2007. More recent press accounts discuss how detainees have gone mad during extensive periods of isolation, sleep deprivation, and degrading treatment.
Finally, I ask unanimous consent to have printed in the Record following my statement an article from The New York Times, dated April 26, 2008, entitled, ‘Detainees' Mental Health is Latest Legal Battle.’
Mr. President, the article describes how Salim Hamdan ‘has essentially been driven crazy by solitary confinement in an 8-foot-by-12-foot cell, where he spent 22 hours a day, goes to the bathroom, and eats all his meals.’
This is not about abuses from 2002 and 2003, like al-Qahtani and the Abu Ghraib scandal. This is 2008, and I fear it is going to continue as long as Guantanamo is able to operate in its isolated setting, in a highly confined environment, with no visitors and nobody able to go in and talk with inmates.
Let me say a little about the status of Guantanamo today.
There are approximately 260 detainees being held. They can be divided into roughly three equal groups: those the Administration intends on charging with a crime and prosecuting; those the Administration says can be transferred to another country, if another country is willing to take custody -- and I will admit there are problems there. There are detainees, I know, who are awaiting repatriation to their own country, if they will take them back.
In many cases, they will not take them, and that is a problem. We on the Intelligence Committee need to pay attention to this and find a solution to it.
Third are those who can't be tried for a crime but who are deemed too dangerous to transfer and who, presumably, will be held indefinitely without charge.
I think we need to provide a legal framework for that kind of administrative detention so that the detainees in administrative detention have certain due process rights to ensure they can know why they are there, that they can have an opportunity to rebut the charges, and that they can have access to counsel.
Since the end of 2001, nearly 500 detainees have been transferred back to the custody of their home nations. A group of seven Chinese Uighers, who had committed no crime, were sent to Albania, where they are now held as refugees in poor conditions.
Exactly one man, in the six years Guantanamo has existed as a detention facility, has been convicted of a crime. He, of course, is David Hicks, a kangaroo skinner from Australia, who pled guilty in order to get out of Guantanamo. He has since been released by the Australian Government.
I believe there are 19 more detainees against whom charges have been brought. The Military Commissions process is in turmoil. It is my hope that with today's ruling these cases will be moved to the district and circuit courts rather than the deeply flawed and separate system of justice set up in the Military Commissions Act, which I voted against, and I am very pleased I did so.
Guantanamo began in the Bush administration, and it should end in the Bush administration. At every turn, the Supreme Court has struck down President Bush's policies with respect to Guantanamo.
John Adams said that "we are a Nation of laws, not men."
This Administration has turned that concept on its head, with President Bush deciding that he alone should make the legal and policy decisions in the fight against terrorism, and that the rule of law does not apply.
In rejecting this notion, the Supreme Court's decision today once again reiterated that it would be wrong "to hold that the political branches may switch the Constitution on or off at will."
I hope the Administration hears that. To me, this clearly indicates that the President's Article II powers are limited, that his powers as Commander-in-Chief are limited, and that his powers under the War Resolution and the Authorization for Use of Military Force in Afghanistan are limited, and he must follow the Constitution of the United States. That is what this decision says to me.
So I commend the Court for its decision. I hope the President will recognize this. I suggest that he should. I suggest that after being repeatedly rebuffed by the Supreme Court, the Administration come to us and say that the time has come to close Guantanamo.
I would expect, now that we have both potential presidential nominees supporting closure of Guantanamo, we will close it. The Secretary of Defense, the former Secretary of State, the present Secretary of State, the co-chairs of the 9/11 Commission, Governor Kean and Representative Hamilton, and dozens of admirals and generals, recommend the closure of Guantanamo.
When I present this amendment on the Defense authorization bill, I hope I will be able to press this toward a successful vote.”