National Defense Authorization Act for Fiscal Year 2006

By:  Lindsey Graham
Date: Nov. 14, 2005
Location: Washington, DC



Mr. GRAHAM. Mr. President, I will be glad to get a letter from the prosecutor at the military commission about the procedures. I will bet $100 he will say they are great. The point is, we are talking about two different things. My amendment is designed to get us back to what we have been doing for a couple hundred years. What I am concerned about is that an enemy prisoner, not someone charged with a crime, is having access to Federal courts to sue our own troops about the food, about the mail, about whether they should have Internet access, about whether they should get DVDs. There are 160 lawsuits now in Federal court suing to stop interrogations unless a Federal judge oversees the interrogation.

Never in the history of the law of armed conflict has a military prisoner, an enemy combatant, been granted access to any court system, Federal or otherwise, to have a Federal judge come in and start running the prison and determining what is in bounds and what is out. The military is the proper body to determine who an enemy combatant is and how to run a war and how to interrogate people, not Federal judges who are not trained in the art of military science.

Here is what these lawsuits are about. Here is why I am so adamant that we stop it. No. 1, what are we stopping? We are not stopping a constitutional right that exists under our law for an enemy prisoner in our hands to be able to question their detention through Federal court action. There is no constitutional right under habeas corpus in American jurisprudence for an enemy prisoner to go to Federal court and challenge whether they should have Internet access or DVD access, all the other things they are suing the people for, medical malpractice. That has never been the case. None of the Germans in World War II who were housed in the United States, and the Japanese prisoners, were allowed to go to Federal court and get a Federal judge to come in and oversee their treatment. We don't allow that. That is not part of the law of armed conflict.

Habeas petitions are not coming from the Constitution. They are coming from an interpretation of section 2241. The Rasul case was a Supreme Court case that said that contrary to the Government's argument, Guantanamo Bay, Cuba is in the effective control of the United States, even though it is not part of our own territories. Because of the lease arrangements and because the Department of Defense is an agency covered by the jurisdiction of the Federal courts, the argument that it is outside the jurisdiction of Federal courts because of its location was defeated. That led to the decision that since you are within the control of our jurisdiction at Guantanamo Bay, section 2241 applies unless Congress says otherwise.

Here is the question I will ask every Member of this body: Does the Senate want enemy terrorists, al-Qaida members being detained at Guantanamo Bay, to have unlimited access to our Federal courts to sue our troops about the following:

A Canadian detainee, who threw a grenade that killed an American Army medic in a firefight and who comes from a family of longstanding al-Qaida ties, moves for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. That was a lawsuit brought in a Federal court by a person who blew up one of our medics, who wanted a Federal judge to supervise his military interrogation. If we start doing that, we might as well close Guantanamo Bay down.

These are not people being charged. They are being kept off the battlefield because they have been captured on the battlefield, and they have been labeled enemy combatants. The procedures I am trying to get in place will comply with the law of armed conflict. Twelve of the people have been let go at Guantanamo Bay. Over 200 in total have been let go. They have been found no longer to have intelligence value or to be a threat to the United States. Once those two determinations are made, they are let go, even if they are an enemy combatant. Twelve of them have been recaptured. A couple of them have been killed. They have gone back to the fight.

The people at Guantanamo Bay are captured as part of the war on terror, and some of them may be running. The point is, when you join al-Qaida, whether you stand or fight or run, you have lost your rights to be considered anything other than what you are--an enemy combatant taking up arms against the United States.

Here is my message to the terrorists: If you join a terrorist organization taking up arms against the United States and you get involved in combat, you are likely to get killed. If you get captured, you will be taken off the battlefield as long as necessary to make sure our country is protected from you.

Under the law of armed conflict, there is no right to try them or let them go. Shaikh Mohammed, the mastermind of 9/11, is in U.S. control right now. He is not a criminal, but you have to charge within 90 days or let go. He is an enemy combatant, the mastermind of 9/11, and 9/11 was an act of war. It was not a crime. The law of war needs to apply.

Anybody who suggests that Shaikh Mohammed should have unlimited access to the Federal courts to get a Federal judge to supervise his interrogation is fundamentally changing the law of war and making us less safe. He will not be let go. If you don't want to be captured and detained for a long time, don't join al-Qaida.

Listen to this: Kuwaiti detainees seek court orders that they be provided dictionaries in contravention of GTMO's force protection policy and that their counsel be given high-speed Internet access at their lodging on the base and be allowed to use classified DOD telecommunications facilities, all on the theory of the right to counsel. A motion by a high-level al-Qaida detainee complaining about base security procedures, speed of mail delivery, and medical treatment, seeking an order that he be transferred to the least onerous conditions at GTMO and asking the court to order that GTMO allow him to keep any books and reading materials sent to him and to report to the court on his opportunities for exercise, communication, recreation, and worship. A man captured on the battlefield, engaged in a war against the United States, because of 2241's interpretation where Congress hasn't spoken, is petitioning a court to supervise his opportunity to exercise, communicate, recreate, and worship, and where he should be housed.

In other words, Federal judges are going to determine how we run the war, not the people fighting the war. Never in the history of warfare has an enemy prisoner been allowed to do such things. It didn't happen in World War II. Why? Because we have a right, as a country capturing enemy prisoners, to take them off the battlefield. They are not common criminals. We have an obligation to treat them humanely under the law of armed conflict.

An emergency motion seeking a court order requiring GTMO to set aside its normal security policies and show detainees DVDs that are purported to be family videos. One hundred sixty of these cases, another 40 or 50 suing our own people, one for $100 million, suing the doctor who treated the guy. This is an absurd result.

I proudly stand before the Senate asking the Senate to fix this absurd result. The court in Rasul is asking the Senate and the House, do you intend for al-Qaida terrorists, enemy combatants, to have access to Federal courts under habeas rights to challenge their detention as if they were American citizens? The answer should be, no, we never intended that. That is what my amendment does. It says to the courts and to the world that an enemy combatant is not going to have the rights of an American citizen, and we are going to stop all these lawsuits undermining our ability to protect ourselves.

What have I done in place? I have stopped a procedure that has never been granted before because it is totally out of bounds of what we need to be doing and have done. I allow Federal courts to review each enemy combatant's determination at the Circuit Court of Appeals for the District of Columbia to look at whether the combat status review tribunal, the group deciding whether you are an enemy combatant, followed the procedures and standards we set up.

What do the Geneva Conventions give our own troops, if our own troops fall into enemy hands under the Geneva Conventions? If there is a question about their status, it says a competent tribunal has the ability to challenge. The combat status review tribunal that we have set up at Guantanamo Bay since August of 2004 is Geneva Conventions protection on steroids. They have a full-blown hearing, a right every year to have their status redetermined. And what do you look at? Were they an enemy combatant engaged in armed conflict against the United States? Do they present intelligence value or a continuing threat to the United States? That determination is made every year, a full-blown adversarial process way beyond what the Geneva Conventions require in such situations.

We have added to that Federal court oversight to see if the people at Guantanamo Bay are following the rules and procedures set up in accordance with the law of armed conflict.

Senator Bingaman is a very fine man, a fine Senator. I deeply disagree with him. And any letter that anybody writes, I have my own letters from JAGs.

It is a simple proposition. His amendment allows unlimited habeas petitions regarding detention to come to the Circuit Court of Appeals for the District of Columbia. The type lawsuits that we see now will continue: A motion by Kuwaiti detainees unsatisfied with the Koran they are provided and want another version,

a filing by a detainee requesting a stay of litigation pending related appeals, an emergency motion by a detainee accusing military health professionals of gross and intentional malpractice.

They are swamping the system. Americans are losing their day in court because somehow we have allowed enemy combatants, people who have signed up to kill us all, to take us into Federal court and sue us about everything.

That is not part of the law of armed conflict. Our troops are not going to get that right if they are in the hands of someone else. What I am asking for is for us to treat enemy combatants humanely and in accordance with the law of armed conflict. I am asking for us to provide due process in accordance with the Geneva Conventions and then some. I am even allowing a Federal court review of the process down there. But I will not now or ever sit on the sidelines and give rights to enemy combatants who have been caught on the battlefield in the war of terror the unending, endless right to think of every reason in the world to take our own troops into court. We will keep having this debate and we will keep having this argument until the cows come home because I am not going to sit on the sidelines and watch that happen.

There has never been a constitutional right for that to happen. Section 2241 is what we are talking about here. Congress wrote it. Congress has restricted habeas rights for illegal immigrants. Congress has restricted habeas rights of its own citizens numerous times because these petitions can get out of control and take over a courtroom.

The question for this Congress is whether you, after 9/11, want to give enemy combatants detained at Guantanamo Bay who have been captured on the battlefield the unlimited right to go into any Federal court in this land and to sue over everything they can think of. If you do, then we have made a huge mistake in the war on terror. I suggest that you say no to Senator Bingaman's amendment and get us back to where we have been for 200 years. Apply the law of armed conflict. Once you have been determined to be an enemy combatant, you get the due process of the Geneva Conventions. We have done that and then some to allow a limited Federal court review, more than anybody has ever gotten in history. We get back on track. And when it comes to military commissions and those who will be charged with the law of armed conflict violations, I am working with Senator Levin and others to try to find a way to get a Federal court appeal right.

How much time do I have, Mr. President?


Mr. GRAHAM. I will try to retain 1 minute.

Let it be said that the people who attacked us on 9/11 committed an act of war, not a crime, and they are going to be tried under military commissions, not in our Federal courts, because they are engaged in a war and they are violating the law of armed conflict. They will get their day in court and we will come up with a fair process to make sure they have their day in court, but we are not going to take a war and turn it into a crime.

I reserve the remainder of my time.


Mr. GRAHAM. No. 1, we have a fundamental difference. I do not want everyone to have habeas rights. I do not want the enemy combatant al-Qaida terrorist to be able to go in our courts and start to sue our own troops. I don't want it. I don't think people in this body want it. I do not think the American people want it. I want al-Qaida members to be detained in armed conflict. They should not have due process rights beyond what the Geneva Conventions ever envisioned.

As to Senator Bingaman's amendment, he talks about they can't base claims on living conditions, but listen to this: Whether the status determination was supported by sufficient evidence and reached in accordance with due process of law, provided that statements obtained through undue coercion, torture, or cruel or inhuman treatment may not be used as a basis for the determination, and consideration of lawfulness of the detention of such alien. You could drive an army of trucks through those legal exceptions. What it would do is legitimize this request by a Canadian detainee, who threw a grenade and killed an American medic, in moving for a preliminary injunction forbidding the interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. In other words, under this amendment, that claim stands. He could come in and ask a Federal judge: I want you sitting there while they interrogate me. And we are turning the war away from military people to Federal judges. We can't do that. We will compromise our own defense, our own freedom.

As to the people at Guantanamo Bay who are going to be charged with a crime, I am working with Senator Levin to come up with a military commission model we all can be proud of. There are 490 enemy combatants down there who are not going to be charged with crimes, and if we allowed them unfettered freedom to have courts, to have judges control military interrogation and get into the bowels of running this war--not only has it never been done, but I challenge anybody to bring one case down here where an enemy prisoner has been able to go into Federal court and complain about their detention. Once you have a combatant charged with a crime, you are working with 490 of them who are going to have unfettered access under 2241 unless Congress acts. If you want to stop this kind of litigation and not turn over the war to Federal judges, then you need to tell the courts that 2241 does not apply. No law in the history of armed conflict has allowed this to happen and it needs to not happen now. Twelve people have been released down there under the procedures we already have, and they have gone back to try to kill us.

Nothing is perfect. Nothing is perfect. We may let some people go who go back to the fight, but what we are going to do is we are going to have a process we can be proud of that fairly determines who an enemy combatant is and who is not following the Geneva Conventions law of armed conflict. We are not going, with my amendment, to turn the al-Qaida member into an American citizen suing us for anything they can think of about due process of law and as to where they have been detained.

This is a fundamental moment in terms of values in the law of armed conflict. The American value system is being maintained by due process and then some. The American value system that you can allow people who are trying to kill you unfettered access to the Federal courts to sue your own troops--if that becomes our value, we are going to lose this war.

I thank the Chair.


Mr. GRAHAM. Mr. President, I ask unanimous consent to have letters in support of my amendment printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:


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