Military Commissions Amendment

Floor Speech

By:  Mitch McConnell
Date: Oct. 14, 2009
Location: Washington, DC

Mr. McCONNELL. Mr. President, most Americans recognize that our continued success in preventing another terrorist attack on U.S. soil depends on our ability as a nation to remain vigilant and clear-eyed about the nature of the threats we face at home and abroad. Some threats come in the form of terror cells in distant countries, others come from people plotting attacks within our own borders, and still others can come from a failure to recognize that distinction between everyday crimes--everyday crimes--and war crimes.

This last category of threat is extremely serious but sometimes overlooked, and that is why Senators GRAHAM, LIEBERMAN, and MCCAIN have offered an amendment to the Commerce, Justice, and Science appropriations bill that would reassure the American people the Senate has not taken its eye off the ball.

The amendment is simple and straightforward. It explicitly prohibits any of the terrorists who were involved in the September 11, 2001, attacks from appearing for trial in a conventional U.S. courtroom. Instead, it would require the government to use military commissions; that is, the courts proper to war for trying these men.

By requiring the government to use military commissions, the supporters of this amendment are reaffirming two things: first, that these men should have a fair trial; and, second, we are reaffirming what American history has always shown; namely, that war crimes and common crimes are to be tried differently and that military courts are the proper forum for prosecuting terrorists who violate the laws of war.

Some might argue that terrorists such as Zacarias Moussaoui, one of the 9/11 coconspirators, are not enemy combatants, that they are somehow on the same level as a convenience store stickup man. But listen to the words of Moussaoui himself. He disagrees.

Asked if he regretted his part in the 9/11 attacks, Moussaoui said:

I just wish it will happen on the 12th, the 13th, the 14th, the 15th, the 16th, the 17th, and [on and on].

He went on to explain how happy he was to learn of the death of American servicemen in the Pentagon on 9/11. Then he mocked an officer for weeping about the loss of men under her command, saying:

I think it was disgusting for a military person to pretend that they should not be killed as an act of war. She is military. She should expect that people who are at war with her will try to kill her. I will never cry because an American bombed my camp.

There is no question Moussaoui believes he is an enemy combatant engaged in a war against us.

The Senate has also made itself clear on this question. Congress created the military commissions system 3 years ago, on a bipartisan basis, precisely to deal with prosecutions of al-Qaida terrorists consistent with U.S. national security, with the expectation that they would be used for that purpose. The Senate reaffirmed this view 2 years ago when it voted 94 to 3 against transferring detainees from Guantanamo stateside, including 9/11 coconspirators.

We reaffirmed it, again, earlier this year when we voted 90 to 6 against using any funds--any funds--from the war supplemental to transfer any of the Guantanamo detainees to the United States. Just this summer, the Senate reaffirmed the view that military commissions are the proper forum for bringing enemy combatants to justice when we approved, without objection, an amendment to that effect as part of the Defense authorization bill.

Sometimes it seems like the only people who do not believe that men such as 9/11 mastermind Khalid Shaikh Mohammed should be treated as enemy combatants are working in the administration. How else can we explain the fact that over the summer the administration flew Guantanamo detainee Ahmed Ghailani to New York to face trial for bombing Embassies of the United States in Kenya and Tanzania, an attack that killed more than 200 people, including 12 Americans? This was an act of war. Ghailani does not belong in civilian court alongside con men and stickup artists.

Our past experiences with terror trials in civilian courts have clearly been shown to undermine our national security. During the trial of the mastermind of the first Trade Center bombing, we saw how a small bit of testimony about a cell phone battery was enough to tip off terrorists that one of their key communication links had been compromised.

We saw how the public prosecution of the Blind Sheik, Abdel Rahman, inadvertently provided a rich source of intelligence to Osama bin Laden ahead of the 9/11 attacks. We remember that Rahman's lawyer was convicted of smuggling orders to his terrorist disciples. These are just some of the concerns that arise from bringing terror suspects to the United States.

Trying terror suspects in civilian courts is also a giant headache for local communities, as evidenced by the experience over here in Alexandria, VA, during the Moussaoui trial. As I have pointed out in previous floor statements, parts of Alexandria became a virtual encampment every time Moussaoui was moved to the courthouse. Those were the problems we saw in Northern Virginia, when just one terrorist was tried in civilian court. What will happen to Alexandria or other cities if several men who describe themselves as ``terrorists to the bone'' are tried in civilian courts there?

It is because of dangers and difficulties such as these that we established the military commissions in the first place. If we cannot expect the very people who masterminded the 9/11 attacks to fall within the jurisdiction of these military courts, then whom can we?

Democratic leaders, including the President, assure us they would never release terror suspects into the United States. But lawyers have repeatedly
warned about our inability to control the process once the suspects are given civilian trials. Once you bring them here, you cannot control the process.

To illustrate the point, last year a Federal judge ordered the Uighurs, a group of men detained at Guantanamo, including some who received combat training in Afghanistan, to be released into the United States. Fortunately, the DC Circuit reversed this order. Why? Because the Uighurs had not been brought to the United States and, therefore, did not have a right to be released here. We do not know what would have happened if they had been transferred here already. But we do know that because they were not, they remain outside our borders, safely away from our communities.

The American people have made themselves clear on this issue. They do not want Gitmo terrorists brought into the United States, and they certainly do not want the men who conspired to commit the 9/11 attack on America tried in civilian courts--risking national security, their potential release, and civic disruption in the process.

Congress created military commissions for a reason. But if the administration fails to use military commissions for self-avowed combatants such as Khalid Shaikh Mohammed, then it is wasting this time-honored and essential tool in the war on terror.

The amendment by Senators GRAHAM, LIEBERMAN, and MCCAIN gives us all an opportunity to express ourselves, once again, on this vital issue. The question is not whether terror suspects should be brought to justice. The question is where and how. The answer is perfectly clear: The right forum is military commissions at the secure facility we already have at Guantanamo, not in civilian courts in the United States.