[Congressional Record Volume 155, Number 86 (Wednesday, June 10, 2009)]
[Senate]
[Pages S6432-S6441]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LEGISLATIVE SESSION
The PRESIDING OFFICER. The Senate will now return to legislative
session.
The Senator from Illinois.
Guantanamo
Mr. DURBIN. Mr. President, I want to make my comments about the
minority leader's statement on the floor while he is still here. If he
is willing to stay, we can engage in a dialog on this issue. I think it
is time we do come to the floor together, along with the Republican
whip, and at least make it clear what our positions are on some of
these issues related to Guantanamo because it has been a matter of
concern and a lot of comment on the floor of the Senate over the last
several weeks.
I was going to ask the Senator from Kentucky, the minority leader,
whether I understood him correctly when he said he believed that this
individual, Ahmed Ghailani, if found not guilty in a court in the
United States, would be released in the United States to stay here in a
legal status. I wish to ask the Senator, if that is what he said, what
is the basis for that statement?
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, I can only repeat what the President's
spokesman himself said. I am responding to the question propounded to
me by the Senator from Illinois. It is my understanding the President's
spokesman yesterday refused to say what would happen to Ghailani if he
were found not guilty. So there is some confusion about that.
Mr. DURBIN. There is no confusion. This is such a leap to argue that
if this man, who is not a resident of the United States--if I am not
mistaken, he is Tanzanian--that somehow if he is found not guilty in
the courts of the United States, he is qualified to be released into
our population. That is a statement--I don't know anyone could draw
that conclusion. He would have no legal status to stay in the United
States unless we gave him one.
By what basis does the Senator from Kentucky suggest that this man,
who may have been involved in the killing of 12 Americans among 224
other people, is going to be released by President Obama into our
communities and neighborhoods?
Mr. McCONNELL. Is the Senator asking me a question?
Mr. DURBIN. I am.
Mr. McCONNELL. Let me say I am only quoting the President's
spokesman. He says he doesn't know what would happen if Ghailani is
released.
Let me say to the Senator from Illinois, let's assume that he is sent
back to the country from which he came. I ask, in what way is America
safer if this terrorist subsequently, under this hypothetical release
in the United States, goes back to his native country from which he
potentially could launch another attack on the United States?
Mr. DURBIN. I say in response, my colleague from Kentucky is gifted
at the political craft. He has decided not to answer my question but to
ask a question of me.
I say first that his assertion that this man, Ahmed Ghailani, if
found not guilty would be released in the communities and neighborhoods
of America cannot be sustained in law or in fact. He made that
statement on the floor. That is the kind of statement that has been
made about these Guantanamo detainees.
I don't know what will happen to Mr. Ghailani if he is found not
guilty. It is conceivable that he could be charged with other things.
It is conceivable he could face a military tribunal. It is conceivable
he may be subject to detention.
I will say this with certainty. President Obama will not allow
dangerous terrorists to be released in the United States in our
communities and neighborhoods. I hope everyone on both sides of the
aisle would agree with that.
I also wish to ask, if the Senator from Kentucky is critical of
President Obama for announcing that he was going to close Guantanamo
before he had a plan, why didn't we hear the same complaint when
President George W. Bush announced he was going to close Guantanamo
before he had a plan? Is the difference partisan?
Mr. McCONNELL. I say to my friend from Illinois, he has made this
point before, and I answered it before. I will answer it again.
I was against it when President Bush was in favor of it. I have been
consistently against closing Guantanamo all along the way, no matter
who the President was. At least you could say this about President
Bush: He didn't put a date on it before he had an idea what he was
going to do with them. And that is the core issue here.
Mr. DURBIN. The core issue is for 7 long years, the Bush
administration failed to convict the terrorists who planned the 9/11
terrorist attacks--for 7 years. And for 7 long years, only three
individuals were convicted by military commissions at Guantanamo, and
two of them have been released. So to argue that the Guantanamo model
is one that ought to be protected and maintained, notwithstanding all
of the danger it creates for our servicemen overseas to keep Guantanamo
open, is to argue for a plan under the Bush administration that failed
to convict terrorists, failed with military tribunals and through the
courts of this land.
I have to say that as I listen to the argument of the Senator from
Kentucky, it is an argument based on fear--fear--fear that if we try
someone in a court in America, while they are incarcerated during
trial, we need to be afraid. There was no fear in New York for more
than 2 years while Ramzi Yousef was held in preparation for trial and
during trial because he was held in a secure facility.
Today we are told by the Department of Justice that there are 355
convicted terrorists in American prisons. I ask the Senator from
Kentucky, does he believe we should remove them from our prisons, those
already convicted, currently serving, such as Ramzi Yousef?
Mr. McCONNELL. I say to my friend from Illinois, maybe we found an
area of agreement. He is critical of the Bush administration for not
conducting military tribunals more rapidly. I agree with him. I think
they should have been tried more rapidly. But that
[[Page S6433]]
is the place to try them, right down there in Guantanamo.
If my friend is suggesting it is a good idea to bring these
terrorists into the United States and, if convicted, put them in U.S.
facilities, the supermax facility has basically no room. There may be
one bed. As far as I know, there is no room at supermax.
Not only do we have, if we bring them into the United States--I don't
know why I am smiling. This is not a laughing matter. Say what you will
about the previous administration, but we were not attacked again after
9/11.
Mr. KYL. Mr. President, will--
Mr. McCONNELL. I don't have the floor, I say to my friend from
Arizona. Maybe he can get the Senator from Illinois to yield for a
question as well.
I don't think we want to complain about the fact we haven't been
attacked again since 9/11, I say to my friend from Illinois. Containing
terrorists at Guantanamo, going after terrorists in Iraq and
Afghanistan, clearly something worked. And to argue we would somehow be
made more safe in this country by closing down Guantanamo I find
borders almost on the absurd.
Mr. DURBIN. With all due respect, the Senator failed to answer my
question. I asked him this question: If it is a danger to America that
if we put a convicted terrorist in our country, if that creates a
danger, as he said repeatedly, in our communities and neighborhoods
near this prison or in other places, then I asked the Senator from
Kentucky, What would you do with the 355 convicted terrorists currently
in prison, and the Senator didn't answer. He said: We haven't been
attacked since 9/11. That is unresponsive.
We know there are facilities where these convicted terrorists can be
held safely and securely. Marion Federal Penitentiary in my home State
has 33 convicted terrorists. I just spent a week down there, not far
from the Senator's home State. There was not fear among the people
living in that area because 33 terrorists are being held at Marion. You
know why? Because our corrections officers there are the best.
I went in to see them, and I sat down with them. They are concerned,
angry, even insulted at the suggestion that they cannot safely hold
dangerous people. One of the guards said to me: We held John Gotti. He
was convicted of being involved in gangland activity. We are holding
terrorists from Colombia in drug gangs. We are holding them safely. We
are holding serial murderers safely. We know how to do this, Senator.
And if your colleagues in the Senate don't believe it, have them come
and visit Marion Federal Penitentiary.
They are doing their job and doing it well. To come to the floor of
the Senate repeatedly and to suggest we are in danger as a nation
because convicted terrorists are being held in our prisons I don't
think adequately reflects the reality of what we have today.
Let me also say, I respect the Senator from Kentucky for saying he
has always been in favor of keeping Guantanamo open. I respect him for
being consistent in his viewpoint. I disagree with that viewpoint.
Among those who also disagree with his viewpoint is GEN Colin Powell,
the former Chairman of the Joint Chiefs of Staff and former Secretary
of State under President Bush. He believes it should be closed. General
Petraeus, someone I know the Senator from Kentucky has praised on the
floor of the Senate, believes Guantanamo should be closed. They are not
alone. Robert Gates, Secretary of Defense under President Bush and now
under President Obama, believes it should be closed. Senator McCain on
your side of the aisle stated publicly that Guantanamo should be
closed. Senator Lindsey Graham, on your side of the aisle, has stated
publicly it should be closed. Former Secretaries of State have made the
same statements.
He is entitled to his point of view. I respect him for holding that
point of view even if he doesn't have the support from the security and
military leaders I mentioned. But to come to the floor and repeatedly
say to the American people that we are in danger because we are trying
terrorists in the courts of America I think goes too far.
I think the President has done the right thing. I think this man
Ahmed Ghailani should stand trial. If 12 innocent Americans died, and
they did, among 224 people, this man should be on trial, and I think
the President was right to bring him to the court for trial. To suggest
that he shouldn't be, that he should be put in a military tribunal
which has had a record, incidentally, over the last 7 years--military
commissions at Guantanamo, in 7 years tried three individuals and two
have been released--it doesn't tell me that it is a good batting record
when it comes to dealing with war criminals.
I trust the courts of our land, the same courts that convicted Ramzi
Yousef. I trust those courts to give Ghailani a fair trial under
American law. I trust at the end of the day that a jury, if it is a
jury, will reach its decision.
I can tell you this for certain. The suggestion by the minority
leader that at some point after this trial Ghailani is going to be
turned loose in the communities and neighborhoods of America, I don't
understand where that is coming from. That is the kind of statement
that I think goes to the extreme. I wish my colleague would reflect on
that. We are not going to turn loose this man who is not a resident of
the United States, not a citizen of the United States if he is found
not guilty. The President would never allow it. Our judicial system
would never allow it.
Do you think the Department of Homeland Security is going to clear
this man to move to Louisville, KY, if he is found not guilty, or
Springfield, IL? I don't think so. In fact, I think it is beyond the
realm of possibility.
I also want to make it clear that we have before us an important
decision to make. Are we going to deal with Guantanamo because it is a
threat to the safety of our servicemen or are we going to keep it open
so that some people who believe in it can have their political bragging
rights?
I would rather side with those who believe closing Guantanamo brings
safety to our men and women in uniform. Guantanamo is a recruiting tool
for terrorists. That is not my conclusion alone. It is a conclusion
that has been reached by many, as I look back and see those who have
said it. For example, Chairman of the Joint Chiefs of Staff Mike
Mullen:
The concern I've had about Guantanamo . . . is it has been
a recruiting symbol for those extremists and jihadists who
would fight us. . . . That's the heart of the concern for
Guantanamo's continued existence. . . .
Same statement from General Petraeus, same statement from Defense
Secretary Gates, same statement from RADM Mark Buzby and others. We
have a situation with Guantanamo where it is not making us safer. The
President has made the right decision, hard decision to deal with the
240 detainees he inherited. I think we should do this in a calm,
rational, and not fearful way.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Republican leader.
Mr. McCONNELL. Mr. President, let me say Senator McCain and Senator
Graham can speak for themselves, but neither of them has ever been in
favor of closing Guantanamo without a plan to do something. They want
to see what the plan is to deal with these terrorists. Beyond that,
they can speak for themselves. But they are not in favor of closing
Guantanamo without a plan.
With regard to the suggestion that we should bring these prisoners to
the United States and try them, my good friend from Illinois has
suggested there is no down side to that. Why not do it? We could. But
the question is, Should we? We should not because we passed the
military commissions for the purpose of trying these very detainees.
There are courtrooms and a $200 million state-of-the-art facility at
Guantanamo to both incarcerate them and to try them. We know no one has
ever escaped there, and we know we haven't been attacked again since 9/
11.
But let's assume we did bring them up here for trial. My good friend
has suggested no harm done. During the Ramzi Yousef trial, he tipped
off terrorists to a communications link. During the Zacarias Moussaoui
trial, there was inadvertently leaked sensitive material. The east
Africa Embassy bombing trials aided Osama bin Laden. The blind Sheikh
Abdel-Rahman trial provided intel to Osama bin Laden. When you have
these kinds of trials in a regular American criminal setting, there are
down sides to it.
In terms of community disruption, I would cite the mayor of
Alexandria, VA, right across the river. Ask him
[[Page S6434]]
how he felt about the impact of the Moussaoui trial on their community.
So I think the suggestion that somehow it is a good solution to bring
these terrorists to the United States and to mainstream them into the
U.S. criminal justice system is simply misplaced. If they are
convicted, we don't have a good place for them. Everybody cited the
supermax facility. Well, there is no room there. It is quite full. We
have the perfect place for these detainees, for them to be detained and
to be tried and ultimate decisions made.
I share the view of the Senator from Illinois that the previous
administration did not engage in those military tribunals as rapidly as
we all would like. They had a lot of disruptions from lawsuits and
other things, and I expect they would argue that slowed them down. But
I think they are in the right place--the right place to be incarcerated
and the right place to have their cases disposed of.
Mr. President, my friend from Arizona is here and wants to address
this, or another issue, and so I yield the floor.
The PRESIDING OFFICER (Mr. Bennet). The Senator from Illinois.
Mr. DURBIN. Mr. President, I will speak briefly, then yield to the
Senator from Arizona. I will be happy, if he wants to ask a question or
maintain a dialogue, but I will make this very brief.
I have confidence in the courts of America. If I had to pick one
place on Earth to have a trial and to be assured it would be a fair
trial with a fair outcome, it would be right here in the United States
of America. Maybe I have gone too far. Maybe I am showing my
patriotism, or whatever it is, but I believe that.
If you said to me: We captured a terrorist somewhere in the world,
where would you like to have them tried? It would be right here because
I believe in our system of justice. I believe in the integrity of our
judiciary. I believe in our Department of Justice prosecutors. I
believe in our defense system, our jury system. I believe we have the
capacity and the resources to try someone fairly better than anyplace
in the world.
The Senator from Kentucky may not agree with that conclusion. He
obviously thinks there is too much danger to have a trial of a
terrorist in the United States. How then does he explain 355 convicted
terrorists now sitting in American prisons, tried in our courts, sent
to our prisons, safely incarcerated for years? That is proof positive
this system works.
The Senator from Kentucky, the Republican leader, is afraid. He is
not only afraid of terrorism--and we all should be because we suffered
grievously on 9/11--but he is afraid our Constitution is not strong
enough to deal with that threat. He is afraid the guarantees and rights
under our Constitution may go too far when it comes to keeping America
safe. He is afraid of using our court system for fear it will make us
less safe, that it would be dangerous. He is afraid the values we have
stood for and the Geneva Conventions and other agreements over the
years may not be applicable to this situation.
I disagree. I have faith in this country, in its Constitution, its
laws, and the people who are sworn to uphold them at every level. I
believe Mr. Ghailani will get a fairer trial in the United States than
anyplace on Earth, and that if he is found guilty in being complicit in
the killing of over 200 innocent people and innocent Americans, he will
pay the price he should pay, and he will be incarcerated safely.
This notion that we have run out of supermax beds and that is the end
of the story--and the State of Colorado is the home State of the
Presiding Officer, where the Florence facility is located--I would say
to the Senator from Kentucky that may be true for the supermax facility
at the Federal level, but there are many other supermax facilities
across America that can safely incarcerate convicted terrorists or
serial murderers or whomever. We can take care of these people.
If there is one thing America knows how to do--and some may question
whether we should brag about it--we know how to incarcerate people. We
do it more than any other place on Earth, and we do it safely. The
notion there is only one place--Guantanamo--where these detainees can
be safely held defies logic and human experience.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, first of all, I was going to interrupt and
ask a question, but I simply conferred with Senator McConnell--and I
will state and the Record can reflect the fact--that I believe Senator
McConnell asked the question of where he would be released if he were
acquitted. I don't believe he asserted that he would be released in the
United States. I just wanted to clear that up. Obviously, we can check
the transcript and determine it. I think that was his intent because of
the question that Robert Gibbs had posed. At least that is my
understanding of it. We can resolve that.
But I would like to say a couple of other things. First of all, it is
important to have this debate. The Senate had a debate some weeks ago,
and it is true 90 Senators voted against funding a program to close the
prison at Guantanamo Bay. Six Senators voted in favor of moving forward
with that.
I appreciate the Senator from Illinois staunchly defending the lonely
six, but they represented also a minority of American public opinion,
which has said, by 2 to 1, according to the USA Gallop poll, that it is
against closing the Guantanamo prison, and by 3 to 1 they do not want
the prisoners released in the United States.
Both sides have engaged in a little bit of rhetoric. For example, I
would respectfully request my colleague from Illinois go back over what
he said a moment ago and perhaps come back tomorrow and think about
rephrasing it. I don't think it is fair to characterize the position of
the Senator from Kentucky as being fearful of trying people in the
United States; fearful, for example, that terrorists--or afraid of
giving terrorists rights and so on. I don't think that is the issue. I
think what is the issue is the question of whether, as a general rule,
it is better to keep prisoners in Guantanamo prison than to put them
somewhere else.
I, for one, don't fear trying some of these people who are
appropriately charged and tried in Federal court in the United States.
But I would also say it is loaded with problems and headaches, and I
think my colleague from Illinois would have to acknowledge that the
trials that have occurred here have produced some real problems. These
are hard cases to try in the United States. You start with the
proposition that there are huge security concerns.
Now, it can be done. There will be huge security concerns with this
alleged terrorist from Tanzania, and it will cost a lot of money in the
place where he is tried. It will pose very difficult questions for the
judge, for the people within the courtroom, the parties to the case,
the lawyers in the case. There are evidentiary questions and other
questions that are illustrated by the case of Zacarias Moussaoui, who
was tried in Alexandria. I think we can all acknowledge the government
would certainly say that was a huge problem for them because it was
difficult to use evidence in the case that had been acquired through
confidential or classified methods. The case was ping-ponged back and
forth several times between the District Court and the court of
appeals. It was a difficult, hard thing to do.
Then there are the situations where cases have been tried in American
courts and classified information has inadvertently--and in some cases
not inadvertently--been released, gotten into the hands of terrorists.
Let me just cite a few of these, and not to make the case that it is
impossible or a terrible idea but also to refute the notion that it is
a piece of cake. It is not. It is really hard. If you could avoid doing
this, I think the better practice would be to try to do so. But on an
occasional basis, when we have a good Federal charge, we have the
evidence that can back it up, and we think we can get a conviction,
there is nothing wrong in those few selected cases with doing it. But
we can't say all 240 of the terrorists at Guantanamo qualify for that.
Very few of them do, as the President said in his remarks.
Let me note some of these cases. The famous trial of Ramzi Yousef.
Here is a statement by Michael Mukasey, the former Attorney General.
This is a quotation from the Wall Street Journal, again, during the
trial of Ramzi
[[Page S6435]]
Yousef, the mastermind of the 1993 World Trade Center bombing:
Apparently, an innocuous bit of testimony . . . about
delivery of a cell phone battery was enough to tip off
terrorists still at large that one of their communication
links had been compromised. That link, which in fact had been
monitored by the government and had provided enormously
invaluable intelligence, was immediately shut down, and
further information lost.
I am not going to read the entire quotations but just some headlines.
I mentioned the trial of Zacarias Moussaoui. That was a case also in
which sensitive material was inadvertently leaked. Here is the headline
from a CNBC story:
The Government Went To The Judge And Said, ``Oops, We Gave
Moussaoui Some Documents He Shouldn't Have.'' . . . Documents
That The Government Says Should Have Been Classified.
There is a whole story about how that happened. The East Africa
Embassy bombing trials, which occurred after 2001, September 26 is the
Star-Ledger story.
The cost of disclosing information unwisely became clear
after the New York trials of bin Laden associates for the
1998 bombings of U.S. embassies in Africa. Some of the
evidence indicated that the National Security Agency, the
U.S. foreign eavesdropping organization, had intercepted cell
phone conversations. Shortly thereafter, bin Laden's
organization stopped using cell phones to discuss sensitive
operational details, U.S. intelligence sources said.
There is another story about the same thing, with a headline in the
New York Times. There is another quotation about the trial of the blind
sheik, a story we are all familiar with, of Michael Mukasey, the former
Attorney General, saying this in the Wall Street Journal:
In the course of prosecuting Omar Abdel Rahman . . . the
government was compelled--as in all cases that charge
conspiracy--to turn over a list of unindicted coconspirators
to the defendants. Within ten days, a copy of that list
reached bin Laden in Khartoum.
There are other cases. Mr. President, I ask unanimous consent to have
these articles printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From FOX NEWS.com, Feb. 11, 2005]
N.Y. Lawyer Convicted of Aiding Terrorists
(By Associated Press)
New York.--A veteran civil rights lawyer was convicted
Thursday of crossing the line by smuggling messages of
violence from one of her jailed clients--a radical Egyptian
sheik--to his terrorist disciples on the outside.
The jury deliberated 13 days over the past month before
convicting Lynne Stewart, 65, a firebrand, left-wing activist
known for representing radicals and revolutionaries in her 30
years on the New York legal scene.
The trial, which began last June, focused attention on the
line between zealous advocacy and criminal behavior by a
lawyer. Some defense lawyers saw the case as a government
warning to attorneys to tread carefully in terrorism cases.
Stewart slumped in her chair as the verdict was read,
shaking her head and later wiping tears from her eyes.
Her supporters gasped upon hearing the conviction, and
about two dozen of them followed her out of court, chanting,
``Hands off Lynne Stewart!''
She vowed to appeal and blamed the conviction on evidence
that included videotape of Usama bin Laden urging support for
her client. The defense protested the bin Laden evidence, and
the judge warned jurors that the case did not involve the
events of Sept. 11.
``When you put Usama bin Laden in a courtroom and ask the
jury to ignore it, you're asking a lot,'' she said. ``I know
I committed no crime. I know what I did was right.''
Lawyers have said Stewart most likely would face a sentence
of about 20 years on charges that include conspiracy,
providing material support to terrorists, defrauding the
government and making false statements.
She will remain free on bail but must stay in New York
until her July 15 sentencing.
The anonymous jury also convicted a U.S. postal worker,
Ahmed Abdel Sattar, of plotting to ``kill and kidnap persons
in a foreign country'' by publishing an edict urging the
killing of Jews and their supporters.
A third defendant, Arabic interpreter Mohamed Yousry, was
convicted of providing material support to terrorists. Sattar
could face life in prison and Yousry up to 20 years.
Attorney General Alberto Gonzales called the verdict ``an
important step'' in the war on terrorism.
``The convictions handed down by a federal jury in New York
today send a clear, unmistakable message that this department
will pursue both those who carry out acts of terrorism and
those who assist them with their murderous goals,'' Gonzales
said.
Stewart was the lawyer for Omar Abdel-Rahman, a blind sheik
sentenced to life in prison in 1996 for conspiring to
assassinate Egyptian President Hosni Mubarak and destroy
several New York landmarks, including the U.N. building and
the Lincoln and Holland Tunnels. Stewart's co-defendants also
had close ties to Abdel-Rahman.
Prosecutors said Stewart and the others carried messages
between the sheik and senior members of an Egyptian-based
terrorist organization, helping spread Abdel-Rahman's
venomous call to kill those who did not subscribe to his
extremist interpretation of Islamic law.
Prosecutor Andrew Dember argued that Stewart and her co-
defendants essentially ``broke Abdel-Rahman out of jail, made
him available to the worst kind of criminal we find in this
world--terrorists.''
At the time, the sheik was in solitary confinement in
Minnesota under special prison rules to keep him from
communicating with anyone except his wife and his lawyers.
Michael Ratner, president of the Center for Constitutional
Rights, said the purpose of the prosecution of Stewart ``was
to send a message to lawyers who represent alleged terrorists
that it's dangerous to do so.''
But Peter Margulies, a law professor at Roger Williams
University in Rhode Island who conducted a panel on lawyers
and terrorism recently, called the verdict reasonable.
``I think lawyers need to be advocates, but they don't need
to be accomplices,'' he said. ``I think the evidence
suggested that Lynne Stewart had crossed the line.''
Stewart, who once represented Weather Underground radicals
and mob turncoat Sammy ``The Bull'' Gravano, repeatedly
declared her innocence, maintaining she was unfairly targeted
by overzealous prosecutors.
But she also testified that she believed violence was
sometimes necessary to achieve justice: ``To rid ourselves of
the entrenched, voracious type of capitalism that is in this
country that perpetuates sexism and racism, I don't think
that can come nonviolently.''
A major part of the prosecution's case was Stewart's 2000
release of a statement withdrawing the sheik's support for a
cease-fire in Egypt by his militant followers.
Prosecutors, though, could point to no violence that
resulted from the statement.
____
[From nytimes.com, Dec. 20, 2005]
Bush Account of a Leak's Impact Has Support
(By David E. Rosenbaum)
Washington.--As an example of the damage caused by
unauthorized disclosures to reporters, President Bush said at
his news conference on Monday that Osama bin Laden had been
tipped by a leak that the United States was tracking his
location through his telephone. After this information was
published, Mr. Bush said, Mr. bin Laden stopped using the
phone.
The president was apparently referring to an article in The
Washington Times in August 1998.
Toward the end of a profile of Mr. bin Laden on the day
after American cruise missiles struck targets in Afghanistan
and Sudan, that newspaper, without identifying a source,
reported that ``he keeps in touch with the world via
computers and satellite phones.''
The article drew little attention at the time in the United
States. But last year, the Sept. 11 commission declared in
its final report: ``Al Qaeda's senior leadership had stopped
using a particular means of communication almost immediately
after a leak to The Washington Times. This made it much more
difficult for the National Security Agency to intercept his
conversations.'' There was a footnote to the newspaper
article.
Lee H. Hamilton, the vice chairman of the commission,
mentioned the consequences of the article in a speech last
month. He said: ``Leaks, for instance, can be terribly
damaging. In the late 90's, it leaked out in The Washington
Times that the U.S. was using Osama bin Laden's satellite
phone to track his whereabouts. Bin Laden stopped using that
phone; we lost his trail.''
In their 2002 book, ``The Age of Sacred Terror'' (Random
House), Steven Simon and Daniel Benjamin, who worked at the
National Security Council under President Bill Clinton, also
mentioned the incident. They wrote, ``When bin Laden stopped
using the phone and let his aides do the calling, the United
States lost its best chance to find him.''
More details about the use of satellite phones by Mr. bin
Laden and his lieutenants were revealed by federal
prosecutors in the 2001 trial in Federal District Court in
Manhattan of four men charged with conspiring to bomb two
American embassies in East Africa in 1998.
Asked at the outset of his news conference about
unauthorized disclosures like the one last week that the
National Security Agency had conducted surveillance of
American citizens, Mr. Bush declared: ``Let me give you an
example about my concerns about letting the enemy know what
may or may not be happening. In the late 1990's, our
government was following Osama bin Laden because he was using
a certain type of telephone. And the fact that we were
following Osama bin Laden because he was using a certain type
of telephone made it into the press as the result of a leak.
And guess what happened? Osama bin Laden changed his
behavior. He began to change how he communicated.''
[[Page S6436]]
Toward the end of the news conference, Mr. Bush referred
again to this incident to illustrate the damage caused by
leaks.
____
[From the Wall Street Journal, Aug. 22, 2007]
Jose Padilla Makes Bad Law--Terror Trials Hurt the Nation Even When
They Lead to Convictions
(By Michael B. Mukasey)
The apparently conventional ending to Jose Padilla's trial
last week--conviction on charges of conspiring to commit
violence abroad and providing material assistance to a
terrorist organization--gives only the coldest of comfort to
anyone concerned about how our legal system deals with the
threat he and his co-conspirators represent. He will be
sentenced--likely to a long if not a life-long term of
imprisonment. He will appeal. By the time his appeals run out
he will have engaged the attention of three federal district
courts, three courts of appeal and on at least one occasion
the Supreme Court of the United States.
It may be claimed that Padilla's odyssey is a triumph for
due process and the rule of law in wartime. Instead, when it
is examined closely, this case shows why current institutions
and statutes are not well suited to even the limited task of
supplementing what became, after Sept. 11, 2001, principally
a military effort to combat Islamic terrorism.
Padilla's current journey through the legal system began on
May 8, 2002, when a federal district court in New York
issued, and FBI agents in Chicago executed, a warrant to
arrest him when he landed at O'Hare Airport after a trip that
started in Pakistan. His prior history included a murder
charge in Chicago before his 18th birthday, and a firearms
possession offense in Florida shortly after his release on
the murder charge.
Padilla then journeyed to Egypt, where, as a convert to
Islam, he took the name Abdullah al Muhajir, and traveled to
Saudi Arabia, Afghanistan and Pakistan. He eventually came to
the attention of Abu Zubaydeh, a lieutenant of Osama bin
Laden. The information underlying the warrant issued for
Padilla indicated that he had returned to America to explore
the possibility of locating radioactive material that could
be dispersed with a conventional explosive--a device known as
a dirty bomb.
However, Padilla was not detained on a criminal charge.
Rather, he was arrested on a material witness warrant, issued
under a statute (more than a century old) that authorizes the
arrest of someone who has information likely to be of
interest to a grand jury investigating crime, but whose
presence to testify cannot be assured. A federal grand jury
in New York was then investigating the activities of al
Qaeda.
The statute was used frequently after 9/11, when the
government tried to investigate numerous leads and people to
determine whether follow-on attacks were planned--but found
itself without a statute that authorized investigative
detention on reasonable suspicion, of the sort available to
authorities in Britain and France, among other countries. And
so, the U.S. government subpoenaed and arrested on a material
witness warrant those like Padilla who seemed likely to have
information.
Next the government took one of several courses: it
released the person whose detention appeared on a second look
to have been a mistake; or obtained the information he was
thought to have, and his cooperation, and released him; or
placed him before a grand jury with a grant of immunity under
a compulsion to testify truthfully and, if he testified
falsely, charge him with perjury; or developed independent
evidence of criminality sufficiently reliable and admissible
to warrant charging him.
Each individual so arrested was brought immediately before
a federal judge where he was assigned counsel, had a bail
hearing, and was permitted to challenge the basis for his
detention, just as a criminal defendant would be.
The material witness statute has its perils. Because the
law does not authorize investigative detention, the
government had only a limited time in which to let Padilla
testify, prosecute him or let him go. As that limited time
drew to a close, the government changed course. It withdrew
the grand jury subpoena that had triggered his designation as
a material witness, designated Padilla instead as an unlawful
combatant, and transferred him to military custody.
The reason? Perhaps it was because the initial claim, that
Padilla was involved in a dirty bomb plot, could not be
proved with evidence admissible in an ordinary criminal
trial. Perhaps it was because to try him in open court
potentially would compromise sources and methods of
intelligence gathering. Or perhaps it was because Padilla's
apparent contact with higher-ups in al Qaeda made him more
valuable as a potential intelligence source than as a
defendant.
The government's quandary here was real. The evidence that
brought Padilla to the government's attention may have been
compelling, but inadmissible. Hearsay is the most obvious
reason why that could be so; or the source may have been such
that to disclose it in a criminal trial could harm the
government's overall effort.
In fact, terrorism prosecutions in this country have
unintentionally provided terrorists with a rich source of
intelligence. For example, in the course of prosecuting Omar
Abdel Rahman (the so-called ``blind sheik'') and others for
their role in the 1993 World Trade Center bombing and other
crimes, the government was compelled--as it is in all cases
that charge conspiracy--to turn over a list of unindicted co-
conspirators to the defendants.
That list included the name of Osama bin Laden. As was
learned later, within 10 days a copy of that list reached bin
Laden in Khartoum, letting him know that his connection to
that case had been discovered.
Again, during the trial of Ramzi Yousef, the mastermind of
the 1993 World Trade Center bombing, an apparently innocuous
bit of testimony in a public courtroom about delivery of a
cell phone battery was enough to tip off terrorists still at
large that one of their communication links had been
compromised. That link, which in fact had been monitored by
the government and had provided enormously valuable
intelligence, was immediately shut down, and further
information lost.
The unlawful combatant designation affixed to Padilla
certainly was not unprecedented. In June 1942, German
saboteurs landed from submarines off the coasts of Florida
and Long Island and were eventually apprehended. Because they
were not acting as ordinary soldiers fighting in uniform
and carrying arms openly, they were in violation of the
laws of war and not entitled to Geneva Conventions
protections.
Indeed, at the direction of President Roosevelt they were
not only not held as prisoners of war but were tried before a
military court in Washington, D.C., convicted, and--except
for two who had cooperated--executed, notwithstanding the
contention by one of them that he was an American citizen, as
is Padilla, and thus entitled to constitutional protections.
The Supreme Court dismissed that contention as irrelevant.
In any event, Padilla was transferred to a brig in South
Carolina, and the Supreme Court eventually held that he had
the right to file a habeas corpus petition. His case wound
its way back up the appellate chain, and after the government
secured a favorable ruling from the Fourth Circuit, it
changed course again.
Now, Padilla was transferred back to the civilian justice
system. Although he reportedly confessed to the dirty bomb
plot while in military custody, that statement--made without
benefit of legal counsel--could not be used. He was instead
indicted on other charges in the Florida case that took three
months to try and ended with last week's convictions.
The history of Padilla's case helps illustrate in miniature
the inadequacy of the current approach to terrorism
prosecutions.
First, consider the overall record. Despite the growing
threat from al Qaeda and its affiliates--beginning with the
1993 World Trade Center bombing and continuing through later
plots including inter alia the conspiracy to blow up
airliners over the Pacific in 1994, the attack on the
American barracks at Khobar Towers in 1996, the bombing of
U.S. embassies in Kenya and Tanzania in 1998, the bombing of
the Cole in Aden in 2000, and the attack on Sept. 11, 2001--
criminal prosecutions have yielded about three dozen
convictions, and even those have strained the financial and
security resources of the federal courts near to the limit.
Second, consider that such prosecutions risk disclosure to
our enemies of methods and sources of intelligence that can
then be neutralized. Disclosure not only puts our secrets at
risk, but also discourages allies abroad from sharing
information with us lest it wind up in hostile hands.
And third, consider the distortions that arise from
applying to national security cases generally the rules that
apply to ordinary criminal cases.
On one end of the spectrum, the rules that apply to routine
criminals who pursue finite goals are skewed, and properly
so, to assure that only the highest level of proof will
result in a conviction. But those rules do not protect a
society that must gather information about, and at least
incapacitate, people who have cosmic goals that they are
intent on achieving by cataclysmic means.
Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks,
is said to have told his American captors that he wanted a
lawyer and would see them in court. If the Supreme Court
rules--in a case it has agreed to hear relating to Guantanamo
detainees--that foreigners in U.S. custody enjoy the
protection of our Constitution regardless of the place or
circumstances of their apprehension, this bold joke could
become a reality.
The director of an organization purporting to protect
constitutional rights has announced that his goal is to
unleash a flood of lawyers on Guantanamo so as to paralyze
interrogation of detainees. Perhaps it bears mention that one
unintended outcome of a Supreme Court ruling exercising
jurisdiction over Guantanamo detainees may be that, in the
future, capture of terrorism suspects will be forgone in
favor of killing them. Or they may be put in the custody of
other countries like Egypt or Pakistan that are famously not
squeamish in their approach to interrogation--a practice,
known as rendition, followed during the Clinton
administration.
At the other end of the spectrum, if conventional legal
rules are adapted to deal with a terrorist threat, whether by
relaxed standards for conviction, searches, the admissibility
of evidence or otherwise, those adaptations will infect and
change the standards in ordinary cases with ordinary
defendants in ordinary courts of law.
What is to be done? The Military Commissions Act of 2006
and the Detainee Treatment Act of 2005 appear to address
principally the
[[Page S6437]]
detainees at Guantanamo. In any event, the Supreme Court's
recently announced determination to review cases involving
the Guantanamo detainees may end up making commissions, which
the administration delayed in convening, no longer possible.
There have been several proposals for a new adjudicatory
framework, notably by Andrew C. McCarthy and Alykhan Velshi
of the Center for Law & Counterterrorism, and by former
Deputy Attorney General George J. Terwilliger. Messrs.
McCarthy and Velshi have urged the creation of a separate
national security court staffed by independent, life-tenured
judges to deal with the full gamut of national security
issues, from intelligence gathering to prosecution. Mr.
Terwilliger's more limited proposals address principally the
need to incapacitate dangerous people, by using legal
standards akin to those developed to handle civil commitment
of the mentally ill.
These proposals deserve careful scrutiny by the public, and
particularly by the U.S. Congress. It is Congress that
authorized the use of armed force after Sept. 11--and it is
Congress that has the constitutional authority to establish
additional inferior courts as the need may be, or even to
modify the Supreme Court's appellate jurisdiction.
Perhaps the world's greatest deliberative body (the Senate)
and the people's house (the House of Representatives) could,
while we still have the leisure, turn their considerable
talents to deliberating how to fix a strained and mismatched
legal system, before another cataclysm calls forth from the
people demands for hastier and harsher results.
Mr. KYL. Mr. President, the only point I am making is that while it
is possible to try these people in Federal court, it is very difficult.
It frequently results in the disclosure of information that we don't
want disclosed. I think it would be far better, if we can, to try these
people in military commissions. The President has now said he would go
forward with military commissions--modified to some extent--and I think
that is a good thing for the trial of those who are suitable for that
action.
The President also noted, of course, that there are going to be a lot
of these terrorists who cannot be tried but are dangerous and need to
be held, and the U.S. Supreme Court has affirmed the appropriateness of
holding such people until the end of hostilities. The President has
indicated that he would, in fact, do that.
I think there is no question, therefore, that we will be holding some
of these people. The question is where best to do it. This is the nub
of the argument that my colleague and fellow whip, the Senator from
Illinois, and I have been having long distance. I relish the
opportunity when we can both get our schedules straight to literally
have a debate back and forth. I think it is an important topic.
I see now other colleagues are here, and so I will make one final
point, and then I hope we can continue in this debate because I think
it is a better policy to keep Guantanamo open and keep these prisoners
there than to try to find some alternative.
Let me cite one statistic, and then make my primary point. According
to the numbers I have--and I would be happy to share these with my
colleague from Illinois with respect to the slots available in our
supermax facilities, if I can find it--there are about 15 high security
facilities which were built to hold 13,448 prisoners. Those facilities
currently house more than 20,000 inmates.
The bottom line is that is not necessarily a supersolution either.
Did my colleague have a quick comment? I want to make my main point.
OK, thank you.
Here is my main point. There are those very credible people who say:
Well, this is a recruitment symbol. Guantanamo prison is a recruitment
symbol. I have no doubt they are right, it is a recruitment symbol.
Several questions, however, are raised by that observation.
The first question is, even if it is false that there has been
torture at Guantanamo prison--obviously, terrorists can believe
falsehoods--should we take action based upon that falsehood?
The next question I think has to be asked is, does this mean, then,
that other terrorist recruiting symbols need to be eliminated by the
United States?
The third question is, would that eliminate their terrorism?
What is it exactly that animates these terrorists? Gitmo didn't even
exist before some of the worst--in fact, before all of the worst
terrorist attacks on the United States or U.S. facilities abroad. There
was no Gitmo prior to 9/11. Yet we had all of the various attacks that
occurred throughout the world leading up to 9/11 and 9/11 itself. They
didn't need another reason to hate America. They didn't need another
reason to be able to recruit people. They have all the reasons they can
dream up.
I think the key reasons are that they fundamentally disagree with our
way of life, and they believe they have an obligation, through jihad,
to either get the infidels--that is all of us who don't agree with
them--to bend to their will or to do away with us because they don't
like our way of life. They do not like the fact that we have the
culture we have. They do not like the fact that we give equal rights to
women or that we have a democracy. There are a lot of things they hate
about the Western World generally and about our society in particular.
These are obviously recruiting symbols and recruiting tools. Are we
to do away with these things in order to please them? And even if we
did, what effect would it have on their recruiting? Do you think they
would then say: OK, great. You have closed Guantanamo prison, you have
taken away women's rights, you are halfway home to us not recruiting
anybody or terrorizing you anymore. If you will only get rid of the
vote and institute Sharia law, we can start talking here.
I don't think that is the way they are going to act. They are going
to have grievances against us no matter what. For us to assume we have
to change our policies, to change what we think is in our best
interests, simply to assuage their concerns because maybe they do use
this as a recruiting tool, I think is to, in effect, hold our hands up
and say: In the war against these Islamist terrorists, we have no real
defenses because anything we do is going to make them unhappy. It is
going to be a recruiting tool. After all, we wouldn't want to give them
a recruiting tool.
I do not think it is too much of an exaggeration to make the point I
made. One might say: Obviously, we are not going to give up our way of
life. They are going to have to deal with that. Well, then they are
going to keep recruiting. But we could at least get rid of Guantanamo
prison. That would at least get rid of one thorn. Would it make a
difference? Nobody believes it would make a difference.
The key point I make is--and this is just a disagreement reasonable
people are going to have, I guess--I think Guantanamo is the best place
to keep these people. My friend from Illinois thinks there are
alternatives that are better and that, under the circumstances, we
should make the change. Again, I observe that the American people seem
to be on the side of not closing it down, and I do not think it all has
to do with fear. I think it has to do with the commonsense notion that
this is not going to remove terrorist recruiting. If it is better for
us to keep them there, we might as well do that.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. DURBIN. Mr. President, I ask consent to speak in morning business
for 5 minutes. I see other Members are on the floor and I will finish
after 5 minutes and yield the floor on this issue we have debated.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. I respect my colleague from Arizona and I respect the
fact that we are on the floor together. This is a rarity in the Senate,
where people with opposing viewpoints actually arrive at the same
moment and have a chance at least to exchange points of view if not
have more direct communication. I would say, as follows: I don't know
what motivates the mind of a terrorist. I think I have some ideas and
my colleague does as well. I do not know that we will ever be able to
save every soul when it comes to those who are inclined toward
terrorism. Let's face reality, it is like crime in this country. We all
would like to see it go away, but we know, intuitively, there are some
people who are bad people and do bad things and need to pay the price,
and I think the same is true for terrorism.
But when President Obama goes to Cairo, Egypt, and appears to speak
to the Islamic world about this new administration and its new approach
when it comes to dealing with Islam and says as part of it that the
United
[[Page S6438]]
States has forsworn torture in Guantanamo, he has said to the world: We
are telling you this is a different day. It is a new day. For those who
are not convinced in terrorism and extremism, at least understand that
America is now ready to deal with you in an honest way, in a different
way. What message does it send if the Congress turns around and says to
the President: No, you can't say that to the Islamic world. We are
going to keep Guantanamo open. We are going to keep this open, even if
it is an irritant.
Don't take my word for it because I am not an expert in this field
but those who are, many of them, believe Guantanamo should be closed. I
would never question the sincerity or the resume of GEN Colin Powell,
who has said close Guantanamo; GEN David Petraeus: Close Guantanamo;
the Secretary of Defense: Close Guantanamo; President George W. Bush:
Close Guantanamo.
All of these people who have seen the intelligence and have the
background believe it is time to close that facility. This President is
trying to make good on that promise by President Bush and turn the page
when it comes to Guantanamo and its future. I think that is critical to
bringing about a more peaceful world and reaching out and saying to
this world: Things have changed.
I bet the Senator from Arizona joined me when we went upstairs to 407
and saw the photographs from Abu Ghraib. It is a moment none of us will
ever forget as long as we live. Some of the things we saw there were
gut-wrenching. I stood there with my colleagues, women and men,
embarrassed at the things I looked at.
Some of those images are going to be with us for a long time, images
that the people of the world have seen. We have to overcome them by
saying it is a new day, and the clearest way to do that is to close
Guantanamo in an orderly way, not to release any terrorists in the
United States. On the question about whether we can incarcerate them--
even if our prison population is as large as it is, there are
facilities available. Once this President is given this option to reach
out to States and this Nation, I am confident he will find
accommodations in Federal prisons and supermax State prisons to deal
with 240 people who are now left at Guantanamo. I think that is
something we can expect to happen, and it will happen.
I will close by saying this: I asked the Senator from Kentucky twice
if he would comment on what I heard to be his statement about whether
this gentleman, Ahmed Ghailani, if found not guilty, would be released
into the United States. He said Mr. Gibbs, the White House Press
Secretary, had led him to that conclusion. I think, in fairness, Mr.
Gibbs would say, clearly, he had no intention that this President or
anyone in this administration would ever release this man, and there is
no right under the law that he be released, even if he is found not
guilty, into the U.S. population. It is not going to happen. I think
raising that specter, raising that question, is raising that level of
fear.
I do not think fear should guide us. America is not a strong nation
cowering in the shadows in fear. America is a strong nation when we
realize our challenge, stand together united, don't abandon our
principles, and use the resources we have around the world to make
certain we are safer.
The last point I will make is I have the greatest confidence in our
system of justice, more than any in the world. I hope all my colleagues
will have that same sense of confidence, that if the President sends a
case to our courts of law, it will be handled professionally and fairly
in the best possible manner.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Mr. President, I have enjoyed this debate between these
two great Senators. It is an interesting debate. I come down on the
fact, if they are moved into any of our facilities in this country--and
there are very few that could take them; in fact, I do not know of any
that can take them that are not overcrowded right now--there will be
the same screaming and shouting because they will not be treated
anywhere near as well as they are treated down there at Guantanamo. No
matter what we do that new day is not going to be a very happy day. It
is far better to have this $200 million state-of-the-art facility that
has been approved by international organizations as being better than
expected, better than average facilities that would be acceptable--it
is better to acknowledge that and keep treating them as decently and
with as much dignity as we can, which is more than they will get in a
supermax facility in this country or any other facility.
The supermax facilities are loaded with prisoners. They have more
than they can handle now. Why would we put terrorists in among them,
and why would we put them in this country where they can influence
other people who are dissatisfied with life and have been discontented
and have committed very serious crimes and allow them the recruitment
possibilities they would have in our country? It doesn't make sense.
Why would we blow $200 million on state-of-the-art facilities and
then spend another $80 million to shut it down? It seems like it is
going a little bit too far because of the attempt of this
administration to please, basically, people who support terrorists and
the rest of the world.
Admittedly, there have been some outstanding people in our country
who have come to the conclusion they should shut Guantanamo down, but
they did so without having a real, viable alternative to Guantanamo.
That is the issue that bothers me. I don't know of any State in the
Union that wants these people within their prison system, assuming they
could handle them. It means a lot more expense, a lot more problems. It
means the possibility that they will be recruiting terrorists and
helping criminals to become terrorists in our country. I can't begin to
tell you the cost to this society if we do that. Be that as it may, the
President seems to want to do that in spite of the fact that
overwhelmingly the American people don't want him to do that.
state secret protection act
Mr. HATCH. Mr. President, I rise today to express my reservations
regarding the State Secrets Protection Act. Since one of the purposes
of government is to provide a strong national defense, there are
methods and sources that should never be disclosed for fear of
irreparable damage to national security. The judicial branch has a
long-documented history in addressing the state secrets privilege.
Through the years, courts have affirmed time and again the privilege of
the government to withhold information that would damage national
security programs.
The modern origin of this doctrine was established in United States
v. Reynolds. The Supreme Court created the Reynolds compromise, which
stated that the privilege applies when the court is satisfied ``from
all circumstances of the case, that there is a reasonable danger that
compulsion of the evidence will expose military matters which, in the
interest of national security, should not be divulged.'' That is what
the Supreme Court has held, and it has continued to affirm this
position with the utmost deference to the executive branch. Under
Reynolds, the state secrets privilege cannot--and has not--been lightly
invoked. The pending bill before the Judiciary Committee, known as the
State Secrets Protection Act, would negate the Reynolds compromise and
create a higher standard of proof for the government to assert the
privilege.
My analysis of the legislation before us leads me to conclude that
this bill will bring chaos to the balance struck by Reynolds. This bill
lowers the deference that courts give to the executive branch in its
assertion of the state secrets privilege. It raises the burden of proof
that the government must meet to protect state secrets. The courts have
built great flexibility into the state secrets doctrine to allow
themselves the latitude to reach an effective compromise between the
rights of litigants and the needs of national security. This is
conducted on a case-by-case basis.
The writers of this bill want to redefine the standard to only afford
protection under the state secrets privilege only when the disclosure
of evidence is ``reasonably likely to cause significant harm'' to
national security. This is a serious departure from the long
established precedent of Reynolds. This has ramifications that would
severely impede the protection of national security secrets. It is
preposterous to abandon a standard that has more than 55
[[Page S6439]]
years of jurisprudential evolution and case law to support it. The
Reynolds compromise says if there is reasonable danger then we secure
the information. S. 417 says if it is reasonably likely, you can
compromise the information.
S. 417 fails to protect state secrets.
This state secrets privilege is never lightly used and never used
with impunity. The assertion of this right must be made in writing by
the head of the executive agency invoking the state secrets privilege.
In recent cases this has sometimes been the Director of National
Intelligence. Courts may conduct their own probe to ensure that the
privilege has been invoke correctly. This probe will include an
examination as to why the information being sought is needed to prove a
plaintiff's case. Conversely, courts will examine as to why the
information is critical to national security. After thoughtful review,
a judge makes the determination on the production of evidence alleged
to have been covered by the privilege. Not a law passed by politicians.
There is a myth that the Bush administration invoked the state
secrets privilege more than any other previous administration. Rooted
in this fallacy is the idea that the administration overreached in
asserting the privilege to protect information not previously thought
to be within its scope. This erroneous notion was propagated by not
only the media, but by Members of this body. Most legal experts in the
field of national security law have stated that it is not possible to
collect accurate annual statistics for year-to-year comparisons. There
is no ``batting average'' that can be empirically compared from one
presidential administration to another.
To do so would incorrectly operate under the assumption that the
government is presented with the same amount of cases each year in
which the privilege can be asserted. It makes absolutely no sense to me
to compare the administrations and judge them based on the total number
of times they asserted the privilege.
The flow of litigation changes from year to year and varies from each
administration, as does the invocation of the privilege. It varies
because of the times and circumstances. We have been living in very
difficult times and circumstances where we have to protect this
country; circumstances we have never had to face before. Therefore, it
is ludicrous that attempts to compare the rate of assertions of this
privilege and arrive at the incorrect conclusion that because the Bush
administration used this privilege it must be changed.
Unfortunately, for the authors of this bill, the data does not
support the hypothesis that the Bush administration ever used the state
secrets privilege in an attempt to dismiss complaints. Published
opinions have revealed in the 1970s the government filed five motions.
In the 1980s the government filed motions nine times. In the 1990s the
government filed motions 13 times. Preliminary data available for the
Bush administration indicate that the privilege was used 14 times.
Therefore, the impetus for the State Secrets Protection Act does not
support the conclusion that the Bush administration blazed a new trial
in national security law. On the contrary, the authors of this bill are
the ones attempting to alter national security law. Keep in mind, we
have been going through an extended war on terrorism, and, frankly,
there is a need to protect national security. That is why we have the
state secrets law.
In the first 100 days of the Obama administration--get that now--in
the first 100 days of the Obama administration, the Department of
Justice has invoked this privilege three times--in the first 100 days.
This is the administration that was complaining about this. Now they
found, when they faced reality and how important this privilege is,
they changed their tune, and they should. I commend the administration
and specifically the President for recognizing this.
The administration has picked up where the Bush administration left
off in three pending cases: Al Haramain Islamic Foundation v. Obama,
Mohammed v. Jepperson Data Plan, and Jewell v. NSA. During an interview
of a widely revered liberal journalist, Attorney General Eric Holder
stated that in his opinion the Bush administration--get this word--
``correctly'' applied the state secrets privilege in these cases.
If this legislation is passed in its present form, private attorneys
would be given access to highly classified declarations before a judge
rules on whether the state secrets privilege should prevent such a
disclosure. Can you imagine the harm that could come to our country? It
is hard to believe that anybody would be advocating this in the Senate
with what we have been going through and the special wars that we have
been going through and the special type of terrorists that we have been
having to put up with.
This legislation--lousy legislation--will have the effect of
incentivizing lawsuits by rewarding attorneys who file lawsuits with a
security clearance. I remember one case in New York where the attorney
herself was convicted because she was passing on information.
Now this clearance will grant these attorneys access to classified
information that if divulged could reasonably harm our national
security interests. It is bad enough trying to keep secrets around
here, let alone with people who really should not be qualified for that
type of classification. Does an attorney need absolute proof of some
violation of law to file a lawsuit to learn details about classified
programs? No, under this bill, they simply need to make an accusation.
Any accusation will do.
Ensuring national security programs stay classified is critical to
our citizens' continued safety. Under this legislation, private
attorneys, regardless of the merits of their lawsuits, will be given
access to our Nation's secrets, secrets that are critical to the
protection of our country. It is not hard to see how this legislation
could seriously harm national security.
It is hard for me to see why anybody would be arguing for this
legislation. It is a legitimate concern that ideological attorneys
would be willing to compromise national security interests and secrets
and disclose classified information. There are at least two recent
instances involving the disclosure of classified information. These are
recent. I am just talking about the recent ones, and then only two of
them. There may be more.
In May 2007, a Navy JAG lawyer leaked classified information
pertaining to Guantanamo detainees to a human rights lawyer. I find it
disturbing that a U.S. military officer who is sworn to protect this
Nation would disseminate classified information. But an even more
troubling scenario is posed by private attorneys. In 2005, a more
alarming case came to light when a civilian defense counsel was
convicted of providing material support for a terrorist conspiracy by
smuggling messages from her client, a Muslim cleric convicted of
terrorism, to his Islamic fundamentalist followers in Egypt.
Do you know how difficult it was to convict an Islamic fundamentalist
religious leader? Yet this man was convicted, and rightly so. His
attorney compromised these matters. In press interviews after the
attorney was convicted, she said, ``I would do it again--it's the way
lawyers are supposed to behave.''
She also said that ``you can't lock up the lawyers. You cannot tell
the lawyers how to do their job.''
I am not implying that all lawyers would act so egregiously. What I
am saying is there is a profound reason why the government has
classifications for categorizing the sensitivity of information that is
vital to national security. Providing top secret clearances to persons
outside the employment of the United States is a colossal blunder. This
bill will allow that.
The courts recognize the executive branch's superior knowledge on
military, diplomatic, and national security matters. Judges do not
relish the thought of second-guessing decisions made by officials who
are better versed on matters that may be jeopardized by allowing
attorneys access to classified materials. Similarly, Congress should
not relish the thought of second-guessing the judgment of courts that
have given careful consideration regarding the appropriate legal
standards to balance the interests of judges and national security
programs.
The State Securities Protection Act does not protect state secrets.
This bill upsets the judicially developed balance between protection of
national security and private litigants' access to secret
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documents. The judicial branch has crafted a state secrets doctrine to
give judges the flexibility to weigh these interests with appropriate
deference to the executive branch. This judicially crafted doctrine is
more than sufficient and has evolved from the 1912 case of Firth
Sterling to Reynolds to current cases such as Hepting and Al Masri.
The State Secrets Protection Act is unnecessary and potentially
harmful to national security. Unless serious changes are made to this
legislation and the amendments offered by myself and my Republican
colleagues are adopted, I cannot in good conscience vote this bill out
of committee. I do not know how any Senator sitting in this body can do
so.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. INHOFE. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. INHOFE. Mr. President, I ask unanimous consent to speak as in
morning business for 12 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Guantanamo
Mr. INHOFE. Mr. President, I have come to the floor over the past
several years, countless times, talking about a resource we have called
Guantanamo Bay. People refer to it as Gitmo.
I was distressed about some of the statements our President made when
he made the comment that we are going to close Gitmo and make sure
there is no more torture. I have to say, there has never been one
documented case of torture in Guantanamo Bay. It is ludicrous that
people would say this. Every time I talk to someone who says we have to
close Guantanamo Bay and you ask them what the reason for that is, they
turn around and they say: It is because the people in the Middle East
and some people in Europe think there is torture that has been going
on. It goes back to the Abu Ghraib thing. This had nothing to do with
Abu Ghraib. There has never been a documented case of torture.
Let's look at this resource. We got Gitmo in 1903. It is one of the
best bargains we have had in government because we only paid $4,000 a
year for this. It is a state-of-the-art prison. We don't have anything
in the United States that is as secure and as humane as Gitmo. They
have a ratio of doctors to detainees of two to one, the same with legal
help. I have been down there several times. If you talk to the ones who
won't be throwing something at you, they will tell you they have never
had food and treatment as good as they have had down there. I can't
imagine we would take a resource such as that and close it down and
bring some 200 or 240 terrorists to the United States. Yet that is
exactly what the President is talking about doing.
I was shocked when I picked up the newspaper on Monday morning and
saw that Ahmed Ghailani, who was the terrorist who bombed the embassies
in Tanzania and Kenya, was actually brought to the United States. He is
in New York today. I didn't know about it until I read it in the
newspaper. He is going to be adjudicated or go to trial in our court
system.
Here is the problem we have with that. These people in Guantanamo Bay
are terrorists, detainees. These are not criminals. These are not
people who committed a crime. They are not people to whom the normal
rules of evidence would apply. In fact, most of the rules of evidence,
it was assumed, would be in the form of military tribunals. Of course,
those rules are different than they are in the court system. What will
happen when you have some of the worst terrorists in the world coming
up and getting tried in our system and we find out they have to be
acquitted because the rules of evidence are not what they were during
the time they were brought into custody?
We have this resource we have used since 1903. It is the only place
in the world we can actually put detainees. The President has said
there are some 17 prisons in the United States where we can incarcerate
these people. I suggest--and I don't think anyone will refute this--if
you did that, you would have 17 magnets for terrorism.
One of the places they suggested happened to be Fort Sill in
Oklahoma. I went down to Fort Sill. There is a young lady there who is
a sergeant major in charge of our prison. She said: What is wrong with
those people in Washington? What is wrong with the President, thinking
that we can incarcerate terrorists here in Oklahoma?
This young lady was also a sergeant major at Guantanamo just a few
months ago. She went back and she said: That is the greatest facility.
There is no place where we can replicate that thing.
She said: On top of that, we have the courtroom that was built.
We spent 12 months and $12 million on a courtroom where we could have
military tribunals, and they were going on. And President Obama ordered
them to stop, and he wanted to bring them to the United States to be
adjudicated here. This is outrageous.
I have heard people on the Senate floor talk about how bad Guantanamo
Bay is. They will never be specific. They will never talk about what is
wrong with Guantanamo Bay. What are they doing? Are they torturing
people? No. Are they being mistreated? No. There are six levels of
security. When you are dealing with terrorist detainees, you have to
put them in areas where the level of their activity is greater and
requires more or less security, and we have that opportunity to do it
there. No place else in America, no place else in the world can they do
that.
By the way, it is not just 245 detainees whom we have to deal with.
It is worse than that because in Afghanistan, with the surge taking
place right now, there will be more detainees. There are two major
prisons: Bagram--and I can't remember the other one in Afghanistan.
They will say they could be incarcerated there. No, they won't, because
they won't accept any detainees who are not from Afghanistan. So if
they are from Djibouti or from Saudi Arabia or someplace else, we have
to have a place to put them or else you turn them loose or else you
execute them.
A lot of these people who think they should not be incarcerated in
any prison at all, you have to keep in mind, you can't turn them loose
on society. These are people who are not normal, people like normal
criminals. First of all, they have no fear of death. It is just
ingrained in them. These are people who want to kill all of us. So we
are talking about very dangerous people.
I am very much concerned. I did not believe President Obama would go
through with bringing terrorists to the United States. I didn't think
that would happen. Yet I picked up the paper Monday morning and there
it is. Ahmed Ghailani, one of the worst terrorists around, killed 244
people, many Americans, in Tanzania and Kenya. This is something that I
know the American people don't want. I would hope many of my good
Democratic friends are not going to line up and support President Obama
in bringing these terrorists to the United States.
I guess I am prejudiced. I have 20 kids and grandkids. I don't want a
bunch of terrorists in this country where they are subjected to that
type of thing. The fact is, they would be magnets; there is no doubt in
my mind. This Sergeant Major Carter at Fort Sill said that if we put
them down there, they would be in a position where it would draw
terrorist activity to my State of Oklahoma.
By the way, I think there are 27 State legislatures that have passed
resolutions saying they don't want any of the detainees located in
their States. I can assure my colleagues that every one of the 17
proposed sites that would house these people is a site where they have
passed resolutions saying: We don't want them here.
The liberal press is always talking about how bad things are and we
have to close Gitmo. If you go down there, you find that those people
have never been there. Almost without exception--I don't know of one
exception where if they have gone down there and they have seen how
humanely people are treated, they have seen a resource down there that
we can't replicate any place in the United States, they come back
shaking their heads saying: What is wrong with keeping Gitmo open? Even
Al Jazeera went down there. That is a Middle Eastern network. They went
down and had to admit publicly that the treatment was better there
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than it is in any of the prisons they are familiar with.
Abu Ghraib was a different situation. Yes, some of our troops were
involved in that. Most people wouldn't call it torture. It is more
humiliation than anything else. But nonetheless, they did that. But the
interesting thing about Abu Ghraib is, prior to the time that the
public was aware that was going on, the Army had already come in and
started their discipline, and it stopped that type of thing from taking
place. But even if it weren't, for people to think just because there
was something in their minds that was torture that was going on in Abu
Ghraib, to even suggest that was going on in Guantanamo Bay is totally
fictitious.
I have been privileged to take several Members down with me to see
this firsthand. I think every Member of the Senate should have to go
down and see for himself or herself what is really going on down there.
We can't afford to take a chance on turning terrorists loose in the
United States. The polling that came out just this morning showed that
by a margin of 3 to 1, people do not want to close Guantanamo Bay. We
have to keep Gitmo open.
I was in a state of shock when I found out that one of the worst
terrorists incarcerated down there was brought back to face justice in
our court system in New York.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BEGICH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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