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Improving America's Security Act--Continued

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Location: Washington, DC


IMPROVING AMERICA'S SECURITY ACT--Continued -- (Senate - March 07, 2007)

BREAK IN TRANSCRIPT

AMENDMENT NO. 286

Mr. GRAHAM. Mr. President, I would like to thank Senator Lieberman for working me into the line here. What I am rising to talk about is a very important issue for how we conduct this war, for how the law works in a time of war, for the values Americans would like to embrace when we are under siege as a nation, and try to give my explanation to what Senator Specter's amendment would do and why I oppose it so vehemently.

To give a little background and history of this issue, at least from my perspective--and I would ask every Senator to look at this very closely because this is a very important concept we are talking about--the Guantanamo military installation to house enemy combatants, people determined by our military to be enemy prisoners of war out of uniform, meeting the Geneva Convention's definition of an enemy combatant--the administration chose Guantanamo as the jailing site. There were prisoners there who brought actions in our Federal court, arguing that their confinement needed to be reviewed by Federal courts. The administration took the position that Guantanamo was outside the United States. They lost. I think the administration should have lost. To me, Guantanamo, because of the lease and the relationship the U.S. military has to that installation, is clearly part of the infrastructure of the United States.

The reason they made the argument is it is a long-held concept in law that habeas rights do not apply to people overseas, that our constitutional provisions granting to American citizens the right to bring a habeas petition when they are confined does not apply extraterritorially. The administration lost on the argument that Guantanamo was outside the United States, and the Federal court said: Okay, it is within the United States.

What habeas rights would attach to someone at Guantanamo Bay? Here is where Senator Specter and I dramatically differ. Senator Specter reads the Rasul case to say that someone confined at Guantanamo who is a noncitizen enemy combatant has a constitutional right under our Constitution to petition Federal courts, to have a district court judge review their confinement. I think that is completely wrong.

The D.C. Court of Appeals recently held in a 2-1 decision that people detained at Guantanamo Bay do not have constitutional rights under our Constitution to petition for habeas.

Rasul was about 2241, section 2241 of the U.S. Code, a congressional enactment that creates statutory habeas rights. That statute has been amended in many different forms--restricting habeas, granting habeas, allowing States appellate procedures postconviction relief to be substitutes for habeas.

The Supreme Court said: Since Congress has not spoken as to whether detainees at Guantanamo will be covered by 2241, we are going to allow a case to go forward under that statute until Congress tells us otherwise.

It was Justice O'Connor who was suggesting to the Congress we need to speak. The administration at the time of the Rasul case had no infrastructure in place to give due process to someone who is accused of being an enemy combatant. Justice O'Connor, in another case--I don't remember the name now--said: What you need to look at is Army Regulation 190-1, which is a procedure to guide military members how to determine who an enemy prisoner may be from a civilian who is an innocent person involved in war. So what the military did, after the second Supreme Court case, was come up with a Combat Status Review Tribunal. Now the Combat Status Review Tribunal is the due process right given to suspected enemy combatants.

To me, 9/11 was an act of war. It was also a crime, but it was an act of war. I believe the people housed at Guantanamo Bay are warriors, not common criminals. They will be afforded the due process rights of wartime law of armed conflict, not domestic criminal law.

What is the law of armed conflict when it comes to status? Article V of the Geneva Convention says that if there is a question of status, the country which houses the person, is in charge of the person, will conduct a competent tribunal. A ``competent tribunal' all over the world is a military proceeding where the military of that country will determine if the person in front of them is a civilian, uniformed person, or enemy combatant.

The Combat Status Review Tribunal is well beyond the due process requirement of the Geneva Conventions. What happens at the Combat Status Review Tribunal, first of all, is that the enemy suspect prisoner will go before a panel of three military officers trained in who presents a military threat--an intelligence officer, a combat officer, and a legal officer. I think tomorrow or Friday, the 14 high-value detainees who have been in CIA custody will go through this process.

The question for this Congress is, Do we want the military to make the initial decision on who an enemy prisoner is based on what a military threat is to our country and the expertise the military has in determining if this person is an enemy prisoner, enemy combatant, or do we want to give that to a district court judge who has absolutely no training?

Enemy prisoners during World War II were not allowed to file habeas petitions and come into our Federal courts and sue the military during a time of war to be released. Chief Justice Jackson said: Wait a minute. This is not our job. We are not trained for this. If we allow enemy prisoners detained by our military during a time of war to have access to our Federal courts, Federal judges are taking over a job the military is trained for and we are not trained for.

Here is what Justice Jackson said in the Eisentrager case:

We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.

Nothing in the text of this Constitution extends such a right nor does anything in our statute.

So the Eisentrager case in 1950 clearly said habeas does not apply to enemy prisoners. I cannot find the language--it talks about why it is a bad idea--but it is forthcoming. So as early as 1950, the courts rejected enemy prisoner petitions in the Federal court.

Now, the question for Congress is, after 9/11--5 years later--do we as a Congress want to confer onto people classified by our military to be enemy combatants a Federal court right never known in the law of armed conflict at any other time in our history? Do we want to be the first Congress in the history of the United States to take away from our military the ability to determine who a military threat is and make literally a Federal court trial out of that decision?

There had been 160 habeas petitions filed before we acted last year. Let me tell you, they have sued our own military for everything imaginable: the quality of the food, DVD access, not enough exercise, judge-supervised interrogation. Some of the people who have brought these cases are accused of killing Americans in the most brutal way.

One of the lawyers, Mr. Michael Ratner, who filed habeas petitions on behalf of enemy combatants held at Guantanamo Bay, publicly stated:

The litigation [for the United States]. ..... It's huge. We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they're doing. You can't run an interrogation ..... with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?

It is clear that it does--according to one of the lawyers representing detainees--make it very difficult for the military to do their job when it comes to intelligence gathering. I will have an unclassified summary to put into the Record at the end of my time that talks about the information gained at Guantanamo Bay.

But here is what Justice Jackson said would be the real big mistake for the Federal courts if you start granting habeas petitions and give enemy prisoners a right to sue our own people about their status in a time of war:

The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Was he prophetic? These 160 cases have created a nightmare for the military at Guantanamo Bay. Medical malpractice suits have been filed, $100 million money-damage lawsuits have been filed. It has been a legal nightmare.

So what I am trying to persuade the Congress to do is not grant in statute a right never given to any other enemy prisoner during any other war, because it is dangerous to do so.

What did we do to accommodate the unique needs of this war, a war potentially without end? For the first time in the history of our country, we are allowing Federal courts to review whether a person has been properly classified as an enemy prisoner. Once the military decides Shaikh Mohammed's status Friday, the mastermind allegedly of 9/11, can you imagine 5 years after 9/11 the Congress would open up any Federal courtroom that a lawyer could shop to find--whatever judge the lawyer could find in the country--and allow Shaikh Mohammed to sue our own military about his status, creating a nightmare zoo courtroom trial, bringing people from all over the world to determine his status, where the judge would have a say, not the military? That would be a mistake of monumental proportions.

What will happen is Shaikh Mohammed, in a classified setting, will have evidence presented by the Government to show he is an enemy combatant. He will have a chance to rebut that. When his case has been decided, he will have an automatic right of appeal to the DC Circuit Court of Appeals, where the DC Circuit Court of Appeals will look at the military decision in question and find out whether two things occurred. Were the due process rights given Shaikh Mohammed and other enemy combatant suspects consistent with our own Constitution? Secondly, was the evidence introduced sufficient to support the finding he is an enemy combatant?

That is the proper role for a judge. That is what judges are trained to do. It would be a monumental mistake to allow a habeas petition to be filed, where literally you could go to any court in the land and have a full-blown trial, calling people off the battlefield to make the case that this person was an enemy prisoner and give that decisionmaking ability to a judge not trained in who is a military threat to our country and take it away from the military.

That is why I am so passionate about this issue. I do believe in due process at a time of war. I have been a military lawyer for well over 20 years. I believe our country should adhere to the Geneva Conventions, that we should be a standard-bearer for what is right. But we should not cripple our military's ability to defend us in a way that makes absolutely no sense.

We should not put Federal judges on the frontlines in deciding who is a threat to this country, when the military is trained to do that. Let the judges look over the military's shoulder and in a proper way, consistent with their training.

Now, what is going to happen? The case is going to go to the Supreme Court soon. If I am wrong, I will take the floor and say so. Senator Specter has a belief there is a constitutional right to habeas. I do not believe that. But if the Court holds so, then I would be wrong. I would argue that the DC Circuit Court of Appeals is an adequate substitute for habeas, but that will be up to the Court.

All I am asking is to allow the work product of last year that has gone before the DC Circuit Court of Appeals that has been upheld to go through the system. I will gladly sit down with Senators SPECTER and LEVIN to see if we can work on better due process rights for people accused of being an enemy combatant. I think we can do that as a Congress without turning that decision over to Federal judges. It is a very dangerous thing we are proposing to do, to take away from the military to determine who a threat is and to give it to a Federal judge.

Finally, I would like to say: I know this is a war without end. Two hundred-and-something people have been released from Guantanamo Bay because they get an annual review board to look at their status anew. We do not want to keep people who have been misidentified who are not a threat. But we do not have the choice of ``try them or let them go.' This is a war, and we can keep warriors off the battlefield as long as they are a threat. When it comes time to determine who should bear that risk, who should bear the risk of letting someone go at Guantanamo Bay--the innocent civilian populations of the world who have been a victim of people out of uniform wreaking havoc or the people who started this whole mess to begin with--if you are going to proportion risk, I think it should fall on the people who created the problem to begin with.

Twelve people have been released from Guantanamo Bay under the annual review process of the 200-and-something. Twelve have gone back to the battle. Three have been killed. So you make mistakes both ways. I don't want to hold one person down there who should not be held, but I don't want to let anybody go who is a threat to our country because we are at war.

Due process rights attach to people in war, but we cannot criminalize what has been an act of war beginning on September 11, 2001. The people down there will have their day in court. They will have a chance to have a say about who they are and what the facts are. But I do believe there are people down at Guantanamo Bay who are warriors. If they ever got out, they would try to kill us again.

Mr. LIEBERMAN. Mr. President, will my friend from South Carolina yield for a question?

Mr. GRAHAM. Yes, sir.

Mr. LIEBERMAN. I appreciate the Senator's remarks. I know the Senator from South Carolina has a background in military law, so he speaks with some authority on these questions.

What interests me in this discussion is the rights of citizens as opposed to noncitizens. I wanted to ask my friend, first, am I right that you are not arguing against the principle that an American citizen, even one alleged to be an enemy combatant, does have habeas corpus rights?

Mr. GRAHAM. The Senator is absolutely right; any American citizen. The Padilla case is the best example you could give. Padilla was charged as an enemy combatant, a U.S. citizen. It is true American citizens in the past have been held indefinitely as enemy combatants. But I do believe they should have access to our courts as a member of citizenship. And they would have a constitutional right to seek relief from a Federal judge to determine whether the military or law enforcement officers make that decision. We are talking about people in the same status as the Germans and the Japanese. There was a reason the thousands of enemy prisoners housed in the United States never had access to our Federal courts. It is what Justice Jackson was saying. The Federal judiciary would make a mockery of the military's ability to run the war if you turned every military decision into a Federal court trial as to who an enemy prisoner is. Justice Jackson, in the most eloquent fashion, told us what could come if you conferred these rights on enemy prisoners.

Here is what is odd. If I am a lawful combatant, if I am captured tomorrow as a member of the uniformed services of the United States, I do not have any rights under the Geneva Conventions to go to the host country's judiciary. We are creating, for unlawful combatants, enemy combatants, a right greater than someone who is captured as a lawful combatant.

Under the Geneva Conventions, there is no right to go to a court in any land to ask to be released. But in America, if you are an unlawful combatant, we are giving you your day in Federal court, after the military acts, which I think is an accommodation for the fact that this war is different. It is not lost upon this Senator this war is different. There will be no signing on the ``Missouri.' I do not know when this war is going to end. I do not want an enemy combatant decision to be a de facto life sentence without robust due process. But I do believe, if the choice is between letting them go or having them die in jail, if they are still a threat, let them die in jail.

I do believe every enemy prisoner is not a war criminal, and the choice for the country is not ``let them go or try them.' Because that is a false choice in the law of armed conflict. It would not serve us well to say that every American captured in the next war is a war criminal because they are performing their duties. You only confer war criminal status on someone who goes outside the law of armed conflict. So we are making some decisions for the ages.

I am all for due process. I am all for scrutiny and transparency because I want my country to win the war not changing whom we are. But I do not want us to fundamentally change the relationship between the military and military threats. Our judges have a role to play. The Congress has a role to play. The military has a role to play. Keep everybody in their lanes, and this will work.

Mr. LIEBERMAN. I thank my friend.

So I take his answer to say also--correct me if I am wrong--that the existing statute, including the MCA--which is the subject of the lawsuits we have been describing that are pending--the existing statute does not alter the right of American citizens who are alleged to be enemy combatants to use habeas corpus rights?

Mr. GRAHAM. The Senator is correct in two fashions. It says no military commission can try an American citizen. A military commission at Guantanamo Bay cannot, as a matter of law, try an American citizen, even if they are an enemy combatant. Someone from America could join al-Qaida, but they are going to be tried in our Federal courts if they are caught.

What we are trying to do is have a military commission consistent with the Uniformed Code of Military Justice to try people. The difference between now and Nuremberg, I say to the Senator, is the war is still ongoing. The reason we are not going to release all the information as to why Shaikh Mohammed is an enemy combatant is because that is very sensitive information. We will give a summary to the public. And the courts will get to review that decision in full in a classified setting. But I cannot stress to you enough we are at war.

The last time we had a Federal trial where somebody tried to blow up the World Trade Center in the early 1990s, some of the information in that courtroom setting that had to be released wound up in a cave in Afghanistan. I will talk about that later. We are trying to balance the need to be safe and the obligations we have under the law of armed conflict.

I think we have struck a good balance. If I am wrong, the Supreme Court will tell me. Please, just to my fellow Senators, let this case go to the Supreme Court, see what they say, and we can fix it if we need to. That is all I am asking.

Mr. LIEBERMAN. Again, I thank my friend. So in furthering what this discussion is about, it is whether non-American citizens seized in the war on terrorism and alleged to be enemy combatants should have habeas corpus rights under our Constitution?

Mr. GRAHAM. I am the biggest advocate that an American citizen such as Mr. Padilla should be tried in Federal court. The man who was caught working with the Taliban in Afghanistan was in Federal court. Moussaoui was in Federal court because we didn't have the Military Commissions Act. An American citizen will be tried in Federal court with all the rights of an American citizen available to them.

Mr. LIEBERMAN. Let me ask this final question. This is the part of this discussion that I struggle with, which is what is the appropriate status in the context in which we are talking about permanent lawful residents of the United States.

In other words, if I understand what the Military Commissions Act--again, correct me if I am wrong--says, is that a permanent, lawful resident of the United States who is apprehended as part of the war on terrorism and alleged to be an enemy combatant does not have a right of habeas, or a right to have a case heard in Federal court. That concerns me. This is what I want to ask my friend from South Carolina who has had experience with this to clarify, as to whether that may be--if I can use the term a ``denial' of equal protection--to say a permanent, lawful resident of the United States cannot have the same rights in these cases that a citizen of the United States has.

Mr. GRAHAM. Well, that is a very good question, and I think that is something we actually need to sit down and look at, that situation where you are not a citizen, but you are here on a legal status. I would be, quite frankly, very comfortable to clarify that, if anyone ever finds themselves in that category, to say, no, you are going to have all the rights of an American citizen.

What I am trying to do is make sure that we don't change 200 years of history. The people who assassinated President Lincoln, within 30 days they were caught, tried, and executed in a military commission format. We have had American civilians tried in military commissions in times of war, but they were reviewed by our Federal courts. Some of the German saboteurs who landed during World War II, I think one or two of them actually were American citizens who left to go back to Germany to aid the enemy. They got tried by military commissions, and the Supreme Court reviewed their case.

What I am saying is that an enemy prisoner, a noncitizen, since time began in our country and in every other country, has been treated under the law of armed conflict, not domestic statutes. That is a distinction of great significance, and we don't need--the due process rights these enemy combatants, noncitizens, have are greater than the Geneva Conventions require, and every enemy combatant had their day in Federal court but in a way consistent with what judges are trained to do.

I don't believe it is in our national interests during ongoing hostilities to take away from the military the ability to classify who they believe to be a threat, what status that person has acquired based on their activities. I do believe the courts can look at every case and see: Was due process afforded? Did the evidence support the finding? That, to me, is the magic combination, and habeas destroys that combination.

Mr. LIEBERMAN. I thank the Senator from South Carolina. This, to me, has been a very helpful exchange. I would like to continue the discussion on the distinct question of what the habeas rights of permanent lawful residents of the United States should be.

Mr. GRAHAM. It is a great area to discuss. I thank the Senator. I yield the floor.

Mr. LIEBERMAN. I thank the Chair, and I yield the floor.

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Mr. GRAHAM. I would be honored to respond to my friend from Pennsylvania.

Mr. SPECTER. I will begin with the subject matter brought up by the Senator from Connecticut about the status of aliens. I would note that in the Rasul case, the Supreme Court, Justice Stevens speaking for a majority, answered this categorically:

Aliens held at the base, like American citizens, are entitled to invoke the Federal courts' section 2241 authority--

Which is the habeas corpus statute.

So the court has dealt with that conclusively in Rasul much the same way that Justice O'Connor did speaking for plurality in an earlier case.

Addressing the question to the Senator from South Carolina, earlier today I noted the order establishing Combat Status Review Tribunals, and it provided that:

All detainees shall be notified--

Leaving out some irrelevant material-- of the right to seek a writ of habeas corpus in the courts of the United States.

Is the Senator familiar with that provision?

Mr. GRAHAM. No, sir, I am not.

Mr. SPECTER. Well, I hadn't been until a few days ago. But this is the Deputy Secretary of Defense, Paul Wolfowitz, in a memorandum dated July 7, 2004, to the Secretary of the Navy.

The Senator from South Carolina made the argument that the judges were not appropriate to make determinations of reviewing the orders or the conclusions of the Combat Status Review Tribunal. How would the Senator from South Carolina account for the acquiescence by the--

Mr. GRAHAM. I have been told that the order the Senator is talking about was implemented in the Rasul decision, and it would be a correct statement of Mr. Wolfowitz to make.

Rasul said that habeas rights attached to Guantanamo Bay detainees until Congress says otherwise, and that is the difference we have. I read Rasul to say, since Congress hasn't spoken under 2241, Guantanamo Bay is within U.S. jurisdiction and the statute would apply to anybody held at Guantanamo Bay. It is not an overseas location. Until Congress speaks, under 2241 you will have the right.

Congress has spoken. We spoke last year. We took 2241 and changed it. We excluded noncitizens and any prisoners from the habeas rights under 2241 and, quite honestly, that issue has gone to the D.C. Circuit Court of Appeals, and we won last week.

Mr. SPECTER. Well, the question about the Department of Defense agreeing to allow habeas corpus rights was not taken up by the Circuit Court for the District of Columbia and the Detainee Treatment Act. Congress gave the Department of Defense the right to establish the rules, and that is one of the rules. Wait a minute. The question hasn't come yet.

Mr. GRAHAM. OK.

Mr. SPECTER. Is it fair to change the rules in the middle of the process after the Department of Defense has stated that they think it is appropriate for a Federal court--they specifically talk about courts of the United States--to make a determination under habeas corpus to see if the definition which they set for enemy combatants has been followed. They have specified that there has to be evidence. To the definition of what or who is an enemy combatant:

An individual who was part of or supporting the Taliban or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Now, the Department of Defense who promulgated this order concluded that it was within the purview of the Federal courts, and that is really a judicial function to determine whether the definition for enemy combatant has been achieved, isn't it?

Mr. GRAHAM. If I may respond, I think it is not remotely fair to say that the Department of Defense has conceded that habeas corpus rights should be given to detainees at Guantanamo Bay. Once Rasul was decided and the Government lost, that it was outside the jurisdiction of the United States, the Rasul case said: Until Congress acts, you will have a habeas right. The administration has come to me and other Members of this body since that decision and has been begging us to address 2241. The Supreme Court, in three separate decisions, has said Congress needs to get involved. The administration's theory was, there is no room for Congress in the courts.

Here is where the Senator and I have been partners. I have always believed the executive branch has to collaborate with the Congress, and they have been hard-headed about this and they wound up losing in court. They lost on whether it was outside the United States. Once the court ruled 2241 applied, the DOD had no other choice but to tell people: This is a statutory right. They were telling people at Guantanamo Bay: This is your statutory right. They were coming to me and other Senators saying: Please change 2241 because it is hampering the war effort.

That is exactly where we find ourselves. We took the input of the administration, we voted last year, we stripped habeas from 2241 where district court judges could make military decisions, and we are replaced in the appeals process where Federal courts do look at what the military does after they have decided. I think not only did the D.C. Circuit Court of Appeals uphold that as a proper thing to do but the Supreme Court will also.

So my belief is that it was our decision as Congress as to whether to give these enemy prisoners habeas rights, unlike any other war. We decided with Rasul we didn't want to do that. I think it is the best decision we have ever made. If you had asked this Congress on September 30, 2001: Would you want to create a Federal court action for any al-Qaida member caught to go into Federal court and bring lawsuits against our own troops alleging not enough exercise, bad DVD access, you name it, we would have said no. That would have been crazy. Why would we want to give this group of people who are trying to kill us all rights that we didn't give the Japanese and the Nazis who were trying to kill us all?

So now we find ourselves in Congress filling in the gap that the court found. The Congress has spoken. We told the courts, D.C. Circuit Court of Appeals: No habeas rights under 2241. We substituted another procedure that I think makes sense, and the court found out that we did it in a constitutional manner, and I think we are going to win at the Supreme Court.

But having said that, if there are other ways to improve due process where the Congress can make this CSRT process better, count me in. But I am not going to sit on the sidelines and watch the Federal courts do something they are not trained to do before Congress blesses it. If the Senator is right that the Supreme Court says apart from 2241 an enemy prisoner, noncitizen, has a constitutional right to habeas, then I would be wrong. I would argue that our procedures under the D.C. Circuit Court of Appeals method of going to challenge the military is an adequate substitute. But I am firmly convinced that our courts are going to say there is no constitutional right for these prisoners, like there was none for Japanese and German prisoners, and that Congress has made a good decision to take the Federal courts and put them behind the military, not in front of the military.

Mr. SPECTER. Well, if I may respond, when the Supreme Court said Congress should act, they were saying that Congress should legislate on how a military commission should be tried. But moving to your argument about the issue of constitutional right, how could it be that if the Constitution says that the right of habeas corpus can be suspended only in the event of invasion or insurrection? How can it be argued that there is no constitutional right?

That is the argument that the Attorney General made in the Judiciary Committee hearing. Where the Constitution explicitly says the constitutional right of habeas corpus can be suspended only in invasion or insurrection, and no one says that either of those factors is present here, isn't that a flat-out statement that there is a constitutional right?

Mr. GRAHAM. All I can tell my colleague is that issue went up to the D.C. Circuit Court of Appeals 2 weeks ago and they said just as clearly as you can say it that there is no constitutional right for a noncitizen enemy prisoner classified as such by our military during hostilities to come into our Federal courts. Just like Justice Jackson said in 1950, that would be a disaster. I just can't believe any Federal court is going to say that Sheikh Mohammed, the mastermind of 9/11, who is an al-Qaida member, gets more rights than the Nazis. I just don't believe they are going to do that. If I am wrong, I will come to the floor of the Senate and say I am wrong. But I think I am right. The D.C. Circuit Court of Appeals agrees with me, and I believe we are going to win at the Supreme Court, if we can let these judges look at something without changing it every 30 days.

Let's give this a shot and see what happens. We will know soon. I apologize, but I have to go.

Mr. SPECTER. Wait just a minute. Make your answers a little more responsive and brief, and I won't keep you too long. I will keep you just a few more minutes.

The Court of Appeals for the District of Columbia said that the Supreme Court, speaking explicitly through Justice Stevens, only dealt with a holding on the statute.

They classified it as dictum when they said there was a constitutional right. Let me move on quickly to a couple of other points.

As to the adequacy of proceedings in the combat status review tribunals, you have the case involving In re: Guantanamo, which I cited this morning, where Judge Green dealt with the precise case in the District of Columbia Circuit Court, the Boumediene case, which had a procedure where the detainee was charged with talking to somebody who was from al-Qaida, and he asked who it was and they could not identify the person. There was laughter in the courtroom, and Judge Green said it is understandable that there was laughter in the courtroom because nothing had been established.

I ask a very simple, direct question, and maybe you can even answer it yes or no. Was that a fair proceeding?

Mr. GRAHAM. I can tell you that the Court will soon tell us. If I can give you what I think is the right answer, the combat status review tribunal, as to whether they provided adequate due process is on appeal now to the Supreme Court. The Supreme Court will soon tell us not just about war crimes legislation but about the CSRT provisions and whether they are constitutional.

I argue we are going to win on that one because 190-1 of the Army manual was the model that set up the combat status review tribunal. What right does a person have under the Geneva Conventions, in a time of war, when it comes to the question of status? Article 5 says competent tribunals--and all over the world that competent tribunal is not a Federal judge or the equivalent in another country, it is a military tribunal. If the Court rules the combat status review tribunal doesn't afford due process, I will sit down with you and others to make it comply to the Court's decision. I have no desire to take somebody from any part of the world and put them at Guantanamo Bay if they should not be there. That doesn't make America better or stronger. I do believe, contrary to the laughter in the courtroom, that the people best able to determine whether an enemy prisoner is a threat to our country or, in fact, an enemy prisoner is not some circuit judge or district court judge anywhere in America who was never trained in this, but military officers who are trained in making those decisions. They are the ones I trust. They have done it in every other war; they should do it in this war. I am willing to have their work product looked at by the Federal courts, and that is going on right now. We will soon know the answer to that question. Are CSRTs constitutional? If not, we will fix them.

I hate to leave. I have enjoyed this debate.

Mr. SPECTER. I have one more thing. I take your last extended statement to be a ``no,' am I right?

Mr. GRAHAM. I believe they will be constitutional. If you think there has been a miscarriage of justice in any case, that will go to court. If you think something happened in the CSRT that is laughable, then the Federal court is going to get to look at every case. I can assure you and every other American that every decision made by the military on Guantanamo Bay will work its way to the Federal court, and our judges will look at the record and the process, and they will tell us in individual cases and as a group whether this works. Give them a chance to do it.

With that, I have to leave.

Mr. SPECTER. One last question. I still take that to be a ``no.' It was not a complex question. Do you think it is fair where the Department of Defense sets the rules, contrary to your assertion, that they think Federal judges can decide whether the evidence establishes the standard for an enemy combatant, do you think it is as fair under American justice to have a presumption of guilt?

Mr. GRAHAM. No. This is an administrative hearing. The enemy combatant status determination is not a criminal decision. It is, in an armed conflict, an administrative decision where the procedure is set up. I will get you the regulation and we will introduce it, but it is article 5 on steroids. It has presumptions, rebuttable presumptions, and you have an annual review board on what should be determined to be a enemy combatant. You have a new hearing every year on whether new evidence came in, whether you are still a threat to the country, and whether you have intelligence value. Two hundred people have been released at Guantanamo Bay because they have gone through the process and the military determined they are no longer a threat. Twelve of the two hundred have gone back to killing Americans.

There is no perfect system. We are trying to be fair. God knows we want to be fair, but I tell you what, in close calls between letting someone go who the military thinks is a member of al-Qaida and killing other Americans and innocent people, I am going to make sure they stay in jail and let the judges determine if we have done it fairly. I will not sit on the sidelines and open the gates to people who have been caught in the process of aiding the enemy or becoming the enemy just because we are trying to create new rules for this war that we have never had in any other war because some people don't like Bush. Bush made a lot of mistakes, but this war is going to go on long after Bush is gone.

If you let these people out of jail, at least 12 of them are going to come back and kill you.

With that, I must leave. We will continue the debate.

http://thomas.loc.gov/

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