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Mr. GRAHAM. Madam President, I appreciate what the Senator from Texas has been saying. This issue of what to do with the Guantanamo Bay detainees is a central issue for the Nation and the overall war on terror, because the President is looking for partners. He keeps saying that. I stand ready to be a partner. The best-run jail in the world where they are now is Guantanamo Bay. I have been there many times. The men and women who are working in that prison are doing an outstanding job. They follow the rules. It is a model military prison. It is tough duty. What they go through every day you probably don't realize, and we can't tell you at all, but it is tough duty. Anyone serving down there is doing the country a great service.
Having said that, I understand the need to change the image of the country. I have been one of the Republicans--a military lawyer for 25 years--who understands the way we conduct this war determines whether we will win it. The high ground in military operations is usually a physical location. When you are in a battle or a war, you try to get the high ground, because that is the best place to fight the enemy from. In this war, it is an ideological struggle, so the high ground is the moral high ground. It does matter what we do.
My goal for America is to be the best we can be. Our enemies--al-Qaida and other groups--are some of the most barbaric people in the history of the world. But here is what it comes down to. When we capture one of them, it becomes about us. They will cut people's heads off in the most brutal fashion, abuse and humiliate people.
They don't give trials. They are not reasoned. They are barbarians. The fact that we choose a different way is not a weakness, it is a strength. Trust me, if we are going to lead the world to a better way, we need to show the world a better way. And there is a better way.
In World War II, we had thousands--350,000, I think--of German and Japanese prisoners housed in the United States, Nazis and Japanese prisoners committed to our destruction. We held them here under our value system, under the Geneva Conventions, in communities all over America. The Nazis and the Japanese were a tough crowd. When those prisoners were released, those who were released, they went back to their country with a view of America that helped us form the modern Japan and Germany.
Some of the people we are talking about at Guantanamo Bay are subject to war crimes trials. So I am urging the President to leave on the table the military commission option. We can reform it, but let's not criminalize this war. They are not accused of robbing a liquor store. These are not common criminals.
Under domestic criminal law, you cannot hold someone forever without a trial, nor should you. But under the law of armed conflict, if you catch a member of the enemy force, you can keep them off the battlefield as long as they present a danger. That has been military law forever.
I believe we would be better off if we look at the people who are members of al-Qaida at Guantanamo Bay as enemy combatants, part of an unorganized militia, military organization bent on our destruction, and they are a part of the enemy force, not some common criminal. We can keep them off the battlefield as long as necessary, but we have to do it within our value system.
I am urging the President that if someone at Guantanamo Bay is subject to a war crimes trial, let's don't go to Federal court, as we did with the blind sheik trial in the nineties, which was a disaster. Let's put them in a military tribunal and give them justice through the military legal system of which I have been a part for 25 years.
I can tell America one thing: The judges, the lawyers, and the jurors who wear the uniform of the United States are the best among us. These are the same people who administer justice to our own troops. It is a great place to conduct a trial because we can do things for national security in a military setting that we cannot do in Federal court. But I can assure you, justice will be rendered and people will be treated fairly. The courts-martial we have had, the commission trials we have had at Guantanamo Bay, we have seen sentences that make sense.
I have been a part of the military all my adult life. The jurors take their responsibilities extremely seriously. They hold the Government to their burden of proof. And the judges and the lawyers are outstanding.
There will be a group of people who will not be subject to war crimes trials because of the nature of the evidence, because of the unique relationship we may have between the evidence and an ally, that we are not going to subject that evidence to a beyond-a-reasonable-doubt standard, but we know with certainty, beyond a preponderance of the evidence, that this person is a member of a terrorist organization and is engaged in dangerous activities and likely to do that in the future.
What I am arguing to the administration, proposing to them, is those people we think are too dangerous to let go, let's create a national security court made up of Federal judges, somebody out of the military, who will look over the military shoulder and see if the evidence warrants an enemy combatant designation. That way, we will have an independent judiciary validating the fact that the person in custody is part of an enemy force, a danger to this country, and then have a periodic review of that person's status so they are not left in legal limbo. They will have a chance every year to make their case anew.
We have to realize that we have released more people from Guantanamo Bay than we have in detention and we have put people in Guantanamo Bay who were there by mistake. That is a fact. We threw the net too large. That happened.
Let me tell you what else has happened. Mr. President, 1 in 10 we let go has gone back to the fight. The No. 2 al-Qaida operative in Somalia was a detainee at Guantanamo Bay. We had a suicide bomber in Iraq blow himself up who was at Guantanamo Bay. We are going to make mistakes, but I want a process to limit those mistakes as much as possible.
I end with this thought. How we do this is important. We can close Guantanamo Bay and repair our image, but we have to have a legal system that has robust due process, that is transparent, that is independent, but recognizes we are at war. And that takes us to the Uyghurs.
There is a group of people in our custody whom we caught in Afghanistan who are part of a separatist movement in China. They are Muslims. They were training in Afghanistan to go back to China to take on the Chinese Government. They have been determined to no longer be enemy combatants in terms of a threat from the al-Qaida perspective, but what to do with the Uyghurs.
One thing I suggest to the President is that you cannot change immigration law. Our laws prevent a known terrorist from being released in our country. These people have engaged in terrorist activities. Their goal was to go back to China, not to come here. But there are press reports that one of the Uyghurs was allowed to look at TV and saw a woman not properly clothed and destroyed the television. We have to make sure that, one, we follow our own laws, and the fact they were going to go back to China does not mean they are safe to release here because they have been radicalized.
We have to make some hard decisions as a nation. I stand ready with the President and my Democratic colleagues to close Guantanamo Bay, but we do need a plan. We need a legal system of which we can be proud that will protect us.
The final comment is that the idea of releasing more photos showing detainee abuse is not in our national interest. We have men and women serving overseas. It will inflame the populations. It will be used by our enemies. I urge the administration to take that case all the way to the Supreme Court and protect our troops in the field.
I understand the President's dilemma and challenge. Harsh interrogation techniques have hurt this country more than they have helped. We can be a nation that abides by the Geneva Conventions, rule of law--we have been that way for a long time--and still defend ourselves. I agree with the President there. But I do believe we need a detainee policy that understands that the people we are talking about are not run-of-the-mill criminals. They are committed terrorists, and I don't say that lightly. The only way that label should stick under the system I am proposing is if an independent judiciary validates that decision. That is the best we can do.
This decision we are going to make as a nation is important. I tried to speak my mind and be balanced. There is a way for us to work together to get this right. I look forward to working with the administration to make some of the most difficult decisions in American history. I am confident we can do it if we work together.
I yield the floor.