Supplemental Appropriations Act, 2009

Floor Speech

By:  Lindsey Graham
Date: May 20, 2009
Location: Washington, DC

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Mr. GRAHAM. Thank you, Mr. President.

No. 1, I would like to associate myself with the comments of the minority leader about Guantanamo Bay. It is a location that does protect our national interests in terms of a location. It is probably the best run military prison in the world. I have been there several times.

To the guard force and those who are serving at Guantanamo Bay, in many ways, you are the unsung heroes in this war because it is tough duty. You have to go through a lot to be a member of the Guantanamo Bay guard team.

They do a wonderful job. It is a very Geneva Conventions-compliant jail, and there are some pretty bad characters down there who make life miserable for our guard force. But those who serve at Guantanamo Bay do so with dignity and professionalism. Their motto, I believe, is ``honor bound.''

That certainly reflects upon them well.

The idea of the Congress saying we want to plan before we appropriate money to close Guantanamo Bay makes a lot of sense to me. We see a bipartisan movement here to make sure we know what we are going to do with the detainees who are housed at Guantanamo Bay. The American people should be rightly concerned about how we dispose of these prisoners. Quite frankly, they are not common criminals accused of robbing a liquor store; they are accused of being a member of al-Qaida or allied groups that have taken up arms against the United States. Their mission and their purpose is to destroy our way of life and to put our allies and friends in the Mideast into the dark ages. So if you do not want to go back to the dark ages in terms of humanity; if you want young girls to grow up without having acid thrown in their face; if you want a young woman to be able to have a say about the future of her children in the Mideast, then we need to come up with a rational policy regarding fighting al-Qaida and, once we catch them, how to dispose of their cases and make sure they are not only fairly treated but their mission and their goals are defeated and they do not return to the fight.

We have seen in Iraq that there are Muslim populations that do not want to be part of the al-Qaida agenda. Al-Qaida followed us to Iraq because they understood if we were successful there in creating a democracy in the heart of the Mideast, it would be a threat to their agenda. Iraq has a way to go, but I am very proud of the Iraqi people. They have come together. They are making political reconciliations. Their army and police forces are getting stronger. The story of the surge is that the Iraqi people joined with our forces and coalition forces and delivered a mighty blow against al-Qaida. Al-Qaida is, quite frankly, in the process of being defeated by the Iraqi people with our help. Now the fight goes to Pakistan and Afghanistan. I cannot think of a more noble cause than to take up arms and fight back against these terrorists who wish the world ill, who will do anything in the name of their religion to have their way, and who would make life miserable for parts of this world and eventually make life miserable for us.

Imagine a caliphate being established in Baghdad, which was their plan, to put the Mideast in constant turmoil. We would not be able to travel freely in this world. We could not interact or do business with the people in the Mideast. It is a very oil-rich region, so it is in our national security interests to stand with moderate people in the Mideast and other places where al-Qaida attempts to take over, and fight back. But when we fight back, we don't have to be like them. Quite frankly, if we are like them when we fight back, we will lose.

This is an ideological struggle. There is no capital to conquer. There is no navy to sink or air force to shoot down. We cannot kill enough of the terrorists to win the war. What we have to do is contain them, fight them, and empower those who live in the region who want to live in a different way, give them the capacity to defend themselves and bring about a stable life in their countries. That is what we are trying to do in Iraq. If we win in Iraq, we will have a democracy in the heart of the Arab world that will be an ally to this country in perpetuity. We will have replaced a dictator named Saddam Hussein, and we will have a place where we can show the world that there are Muslims who do not want to be governed by the al-Qaida agenda, and to me that is a major win in the war on terror. Now we are in Afghanistan. We have lost ground, but we are about to recapture that ground from the Taliban, which are al-Qaida sympathizers and, quite frankly, allowed them to operate in Afghanistan late in the last century and early in this century to plan the attacks of 9/11.

So that is why we are fighting. That is why we are in this discussion. That is why we are concerned about releasing these prisoners within the United States, and that is why we are concerned about Guantanamo Bay. We have every right and reason to be concerned as to how we move forward.

I want to move forward. We need a plan to move forward. We should not close Guantanamo Bay until we have a comprehensive, detailed, legal strategy as to what we will do with these prisoners. Where we put them is only possible if people know what we will do with them. So we have to explain to the American people and our allies the disposition plan. What are we going to do with these detainees? Then where you put them becomes possible. Without what to do, we are never going to find where to put them.

I do believe the President and our military commanders are right when they say it is time to start over. It is a shame we are having to start over, because Guantanamo Bay is a well-run jail. But as I mentioned before, this ideological struggle we are engaged in, the enemy has seized upon the abuses at Abu Ghraib, the mistakes at Guantanamo Bay, and they use that to our detriment. They inflame populations in the Mideast based on our past mistakes. Our commanders have told me to a person that if we could start over with detention policy and show the world that we have a new way of doing business--a better way of doing business--it would improve the ability of our troops to operate in the regions in question where the conflict exists; it would undercut the enemy; it would help our allies be more helpful to us. Our British friends are the best friends we could hope to have, and they have had a hard time with our detainee policy. So we have every reason in the world to want to start over, but the Congress is right not to allow us to start over until we have a plan. The Congress, in a bipartisan fashion, is absolutely right to keep Guantanamo Bay open until we have a complete plan. I do believe this President understands how to move forward with Guantanamo Bay.

The best way to move forward, in my opinion, is to collaborate with the Congress, to look at the military commission system, which I think is the proper venue to dispose of any war crimes trials. Remember, these people we are talking about have been accused of taking up arms against the United States. They are noncitizen, enemy combatants who represent a military threat. Military commissions have been used to try people such as this for hundreds of years. We did trials with German saboteurs who landed on the east coast of the United States for the purpose of sabotaging our industries. They were captured and tried in military commissions. So there is nothing new about the idea of a military commission being used against an enemy force.

I do think the President is right to reform the current commission. I, along with Senator McCain, Senator Warner, and others--Senator Levin particularly--had a bill that set up a military commission process that received complete Democratic support on the Armed Services Committee, and four Republicans. I think that document is worth going back to. The ideas the President has put on the table about reforming the commission, quite frankly, make a lot of sense to me.

So we do need to move forward. We do need to start over. If we could start over with a new detention policy that is comprehensive, it would help our war effort, it would help operations in the countries in question and in the
Mideast at large, and it would repair damage with our allies. Quite frankly, we have lost a lot of court decisions. It would give us a better chance to win in court.

What do I mean by starting over? Come up with a disposition plan that understands that the detainees at Guantanamo Bay represent a military threat and apply the law of armed conflict in their cases. That means we have to treat them humanely. The Geneva Conventions now apply to detainees under Common Article 3 held at Guantanamo Bay based on a 2006 Supreme Court decision. We are bound by that convention because we are the leader of the convention. We have signed up to the convention. As a military lawyer for 25 years, I hold the Geneva Conventions near and dear to my heart, as every military member does, because it will provide protections to our troops in future wars. Yes, I know al-Qaida will not abide by the conventions but, quite frankly, that is no excuse for us to abandon what we believe in. When you capture an enemy prisoner, it becomes about you, not them. They don't deserve much, but we have to be Americans to win this war. There are plenty people in this world who would cut your head off without a trial. I want to show the world a better way. How we dispose of these prisoners can help us in the overall ideological struggle.

What I am proposing is that we come up with a comprehensive plan that will reform the military commissions and that the President come back to the Congress and we have another shot at the commissions to make them more due process friendly but we realize that the people we are trying are accused of war crimes and we apply the law of armed conflict.

I have been a military lawyer, as I said, for 25 years. The judges and the jurors and the lawyers who administer justice in a military commission setting are the same people who administer justice to our own troops. It is a great legal forum. You have rights in the military legal system. You get free legal counsel. Usually cost is not an object. The men and women who wear the uniform who serve as judge advocates take a lot of pride in their job. They are great Americans. They are great officers. They believe in justice. We have seen verdicts, and the few verdicts we have had at Guantanamo Bay indicate that our juries are rational. Our military jurors do hold the prosecution to the standards of proof and they balance the interests of all parties. As I say, I have never been more impressed with the legal system than within our military justice system. Military commissions need to be as much like a court-martial as possible, but practicality dictates some differences.

The one thing this body needs to understand is that it is illegal under the Geneva Conventions to try an enemy prisoner in civilian court. Why is that? You are afraid that civilian justice, jurors and judges, will have revenge on their mind. They are not covered by the Geneva Conventions. Participants in a military commission are covered by the convention--every lawyer, every judge, every juror. They have an obligation to hold to the tenets of the convention and any misconduct on their part in a trial could actually result in prosecution to them or disciplinary action, and that would not be true in the legal world. So having these trials in a military commission setting is the proper venue because they are accused of war crimes. Having the trials in military commissions is consistent with the Geneva Conventions. It is a world-class justice system. Quite frankly, it is the best place to balance our national security interests.

But to the hard part. We can do that. We can reform the commissions. Some of these detainees can be repatriated back to third countries in a way I think is rational and will not hurt our national security interests. But there is going to be a group of detainees--maybe half or more--where the evidence is sound and certain that they are a member of al-Qaida, but it is not of the type that you would want to go to a criminal trial with. It may have third country intelligence service information where the third country would not participate in a criminal trial because it would compromise their operations. Some type of evidence would be such that you would not disclose it in a criminal trial because it would compromise national security. You have to remember, when you try someone criminally, you have to prove the case beyond a reasonable doubt. You have to share the evidence with the defendant. You have to go through the rigors of a criminal prosecution. Under a military commission people are presumed innocent, and that is the way it should be. But I want America to understand that we are not charging everyone as a war criminal; we are making the accusation that you are a member of al-Qaida. In military law what you have to do if you are accusing someone of being part of the enemy force is prove by a preponderance of the evidence that you are, in fact, a part of the enemy force.

So what I would propose is to set up a hybrid system. For every detainee once determined to be an enemy combatant by our military or CIA, there will be a process to do that, a combat status review tribunal, and we need to improve that process--but you run each detainee through that process and if the military labels them as an unlawful enemy combatant, a member of al-Qaida, then we will do something we have never done in any other war, and that is allow that detainee to go into Federal court.

Under article 5 of the Geneva Conventions, status decisions are made by the military, not by civilian judges. It is usually done by an independent member of the military in an administrative setting. These are administrative hearings. But this war is different. There will never be an end to this war. We will never have a signing on the Missouri as we did in World War II. I realize that. An enemy combatant determination could be a de facto life sentence. So I am willing to build in more due process to accommodate the nature of this war.

What I have proposed is that every detainee determined to be an enemy combatant by our military would go to a group of military judges with uniform standards where the Government would have to prove to an independent judiciary by a preponderance of the evidence that the person is, in fact, an enemy combatant, and if our civilian judges who are trained in reviewing evidence agree with the military, that person can be kept off the battlefield as long as there is a military threat. About 12 percent of the detainees released from Guantanamo Bay have gone back to the fight. The No. 2 al-Qaida operative in Somalia is a former Gitmo detainee. It is true we put people in Gitmo, in my opinion, where the net was cast too large and they were not properly identified. You are going to make mistakes. What I want to do is have a process that our Nation can be proud of: transparent, robust due process, an independent judiciary checking and balancing the military, but never losing sight that the goal is to make sure that the determination of enemy combatant is well founded and, if it is, not to release people back to the fight knowing they are going to go back and kill Americans. That doesn't make us a better nation, to have a process where you have to let people go when the evidence is sound and clear they are going to go back to the fight. That does not make us a better people.

You do not have to do that under the law of armed conflict. Let's come up with a new system that will give every detainee a full and fair hearing in Federal court. If they are tried for war crimes, put them in a new military commission, and every verdict would be appealed to civilian judges. Let the trials be transparent. Balance national security against due process. But never lose sight of the fact that we are dealing with people who have taken up arms against the United States. Some of them are so radical and their hearts have been hardened so much, they are so hate-filled, it would be a disaster to this country and the world at large to let them go in the condition that exists today.

Where to put them. Mr. President, 400,000 German and Japanese prisoners were housed in the United States during World War II, and 15 to 20 percent, according to the historical record, were hardened Nazis. A hardened Nazi is at the top of the pecking order when it comes to mass murder. The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational. We have done this before. They are not 10 feet tall.

It is my belief that you need a plan before you close Gitmo, and when you look at a new facility, it needs to be run by the military because under the Geneva Conventions you cannot house enemy prisoners in civilian jails.

I look forward to working with the President of the United States to start over, but we need a plan to start over--a plan to try these people, consistent with the law of armed conflict, in a military commission that is reformed, that will administer justice fairly and balanced and will realize that these people present a military threat. We need a system to allow for keeping the detainees off of the battlefield--who are committed jihadists--that will allow them to have their day in court with an independent judiciary but also will allow a process that will keep them off the battlefield as long as they are dangerous. If the judges agree with the military on the enemy combatant, you should have an annual review process to determine whether they present a military threat. No one should be held without a pathway forward, but no one should be released because you think this is a crime we are dealing with.

If you criminalize this war and do not use the law of armed conflict, you are going to make a huge mistake. There are countries that have terror suspects in jail right now that are about to have to release them because under criminal law you cannot hold them indefinitely. Under military law, you can hold the enemy force off the battlefield if they are properly identified as part of that force, as part of the military threat. That has been the law for hundreds of years, and it ought to be the law we apply. Where we put them is important, but what we do with them is more important, how we try them and detain them.

We have a chance to show the world that there is a better way, a chance to showcase our values. Yes, give them lawyers and put the evidence against them under scrutiny. Put burdens on ourselves, make us prove the case--not just say it is so, prove it in a court that is appropriate for the venue we are talking about, appropriate for the decisions we are about to make. Put that burden on us, and treat them humanely because that is the way we are. That may not be the way they are, but that is the way we are. That makes us better than they. The fact that we will do all these things and they won't is a strength of this Nation, not a weakness. Some people in the past have lost sight of that. The fact that we give them lawyers and a trial based on the evidence, not prejudice and passion, makes us stronger.

We will find a better way to do what we have been doing in the past. We will find a way to close Gitmo, and we will come up with a new plan because we are Americans and we are committed to our value system and committed to beating this enemy.

I look forward to working with the Members of this body to come up with a comprehensive disposition plan that will find a new way to try these people, a new process to hold them off the battlefield, and always operating within our values, which will allow our commanders the chance to start over in the region. Every military commander I have talked to said it would be beneficial to this country to start over with detainee policy. They also understand that we are at war and we need to have a national security system.

As to where we put them, there were six prison camps in South Carolina during World War II. There is a brig near the city of Charleston, a naval brig. It is not the location, because it is near a population center. The place I have in mind is an isolated part of the United States--if necessary--that will be run by the military, with a secure perimeter, that will be operating within the Geneva Conventions requirement, that will have a justice system attached to it, that will be transparent and open where we can administer justice and reattach our Nation to the values we hold so dear.

Part of war is capturing prisoners. That is part of war. We know what the other side does when they capture a prisoner. Let the world know that America has a better way, a way that will not only make us safe but help us win this war.

In conclusion, the goal of this effort to start over is to undermine the enemy's propaganda that has been used against us because of our past mistakes, allow our allies to come join us in a new way forward, and protect us against a vicious enemy that needs to be held off the battlefield, maybe forever. Some of these people are literally going to die in jail, and that is OK with me because I think the evidence suggests that if we ever let them out, they would go back to killing Americans, our friends, and our allies. I will not shed a tear. The way to avoid getting killed or going to jail forever is, not to join al-Qaida. If you have made that decision to do so, let it be said that this Nation is going to stand up to you and fight back, within our value system. Some of these people will never see the light of day, and that is the right decision. Some of them can be released.

Let's have a process that understands what we are trying to do as a nation. Make sure it is national security oriented, make sure it is within our value system but also that everything we do is as a result of a nation that has been attacked by these people. They have not robbed a liquor store; they have tried to destroy our way of life. The legal system I am proposing recognizes that distinction.

I yield the floor.

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Mr. GRAHAM. Madam President, I wished to thank Senator Lieberman for his leadership on this issue. We have been working together on what I think is a very big deal for the American people in the overall war effort. As many of you know, particularly our colleagues and the public at large, we have had a discussion in this Nation about whether we should release more photos showing detainee abuse in the past.

The President of the United States has decided to stand for the proposition that releasing these photos would jeopardize the safety of our men and women serving overseas and Americans abroad, as well as civilians serving in the war zones. He has indicated the photos don't add anything to the past debate about detainee abuse. They are more of the same. No new person is implicated. These photos, again, were taken by our own folks, detailing abuse, and a lot of that has been dealt with already and prosecuted.

The President, I think rightfully, has determined, after consulting with his combat commanders, that if we release these photos, it would not help us understand any more about detainee problems in the past than we already know. But it would be a tremendous benefit to the enemy. The enemy used these photos in the past to generate resentment against our troops. It has been a propaganda tool. The President is rightfully concerned that to release more photos would add nothing to the overall knowledge base we have regarding detainee abuse, and it is simply going to put American lives in jeopardy. I applaud the President, who stood for our troops and men and women and the civil servants overseas.

There are a lot of mysteries in this world, but there is no mystery on what would happen if we release those photos. I can tell you, beyond a shadow of a doubt, that if these photos get into the public domain, they will inflame populations where our troops are serving overseas and increase violence against our troops.

What we have done--Senator Lieberman and myself--is we came up with an amendment that addresses the lawsuit before our judicial system about the photos. This amendment says any detainee photos that are certified by the Secretary of Defense, in consultation with others, that would result in harm to our men and women serving overseas, jeopardize the war effort, and put our troops in harm's way, with Presidential approval, those photos cannot be released for a 5-year period of time. To me, that is a reasonable compromise. It doesn't change FOIA, in its basic construct, but it provides congressional support to the President's decision that we should not release these photos.

Senator Lieberman and myself have been to the theater of operations many times. We have met with al-Qaida operatives who have switched sides, basically, and they have told us firsthand how at prison camps in Iraq, the Abu Ghraib photos were used in the past to recruit new members to al-Qaida and generate resentment against our troops.

I applaud the President. This legislation will help the administration in court. I thank Senator Lieberman, who, above all else, puts his country and the security of our men and women ahead of any political calculation. For that, I very much appreciate his leadership and his friendship. I wish to recognize what he did.

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Mr. GRAHAM. Madam President, here is a closing thought. The President understands very well, and I know Senator Lieberman does, and I think we all understand we have some damage to repair. We have made mistakes in this war. Detainee operations are essential in every war. Part of war is to capture prisoners and how you dispose of them can help or hurt the war effort. There have been times in the past where detainee operations have hurt the war effort. We need to start over. That is why we need to look at a new system to replace the one we have regarding military commissions--but keep it in the military setting--and a way to start over with basic detainee operations in a comprehensive manner. But in repairing the damage of the past, you have to make sure you are not creating future damage. If you release these photos, you will not repair damage from the past, and you will not bring somebody to justice that is in these photos whom we already don't know about. There will not be a new person named. It is more of the same. So it doesn't contribute to repairing the damage of the past, but it sure does create damage for the future.

The one fact I am very aware of is that the young men and women serving overseas today--soldiers, military members, and civilians--have done nothing wrong. They should not pay a price for the people who did something wrong in the past whom we already know about.

If you release these photos, Americans are going to get killed for no good reason. That is why we need to pass this amendment--to help the President defeat this lawsuit that would lead to violence against Americans who are doing their job and have done nothing wrong. They should not be punished for something somebody has done in the past, which has already been addressed.

I suggest the absence of a quorum.

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Mr. GRAHAM. Madam President, Senator Lieberman and I have already explained the need for this amendment. It will help the President win a lawsuit that is moving through our legal system regarding the release of photos of past detainee abuse. As I said, that will not help us to learn more, and it will only put American lives at risk, as the commanders have told the President. The Senate can avoid that by passing this targeted amendment.

I hope we can get a large vote for this amendment.

I suggest the absence of a quorum.

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