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National Defense Authorization Act for Fiscal Year 2007--Continued

Location: Washington, DC

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2007--Continued -- (Senate - June 20, 2006)


Mr. GRAHAM. Mr. President, I want to speak, if I may, regarding a proposal by Senator Bingaman concerning Guantanamo Bay and the disposition of detainees. I understand he introduced an amendment yesterday. I have the summary of it. If I mischaracterize it or if it is changed in any way, I apologize. I will try to give an overview based on what I know, with the understanding that if it changed, I stand corrected.

Senator Bingaman, from what I understand, has an amendment that would require the United States to either charge, repatriate or release individuals held at Guantanamo Bay within 180 days of the enactment of the Defense authorization bill, and if for some reason the Government fails to comply within that timeframe, the Department of Defense would have to report back to Congress to tell us why. It provides further that charges could be filed in U.S. District Court, a military tribunal court or military commission or an international tribunal against detainees.

If I may, I will express my concerns about this amendment. No. 1, the detainees at Guantanamo Bay are being held as enemy combatants. That is a concept that has been part of our law for quite a while. The Supreme Court has several enemy combatant case holdings. That is someone who is involved in hostilities but not in the normal course of combat. They don't wear uniforms. They are not supported by a particular State. They are fighting, in this case, for a terrorism cause that doesn't have a country of origin. They are irregular combatants.

For many years in the military law, a regular combatant or enemy combatant has been considered a person outside of the protection of the Geneva Convention because that is an international treaty designed to protect lawful combatants and have procedures that every signatory country will abide by. A lawful combatant is someone who represents a State, wears a uniform, and operates within the rules of international military law.

Al-Qaida, by their very definition, because they don't wear uniforms and represent a particular country, are irregular enemy combatants. The people at Guantanamo Bay have been captured in various parts of the world by the U.S. military or were turned over to them as being suspected of being involved in the war on terror. There are 500-something people down there now; over 200 have been released. Senator Bingaman's amendment would require the Government to release them all or charge them.

The reason I believe that is not good public policy is because enemy combatants--you don't have to choose between trying them and letting them go. A prisoner of war is not required to be released until the hostilities are over. We have had Members of the Congress who were enemy prisoners during Vietnam and were incarcerated 5, 6 or 7 years, until the Vietnam war came to an end.

This amendment, in an odd way, would allow enemy combatants to be released before hostilities are over, which is something not afforded to a prisoner of war. But a traditional prisoner of war is not subject to being tried as a war criminal for the mere status of being involved with the opposing force.

I believe strongly that it is not advisable for this country to say as a matter of policy that every enemy combatant or unlawful combatant per se is a war criminal. Military trials or commissions should be conducted for people who are part of the enemy force who have violated the law of armed conflict. There are about 20-something people, I believe, facing military commission charges at Guantanamo Bay and haven't been tried yet because of Federal court proceedings affecting the outcome of the military commission status. This amendment would require the United States to make a choice that no other country has ever had to make: try them or let them go.

The truth is that some of them deserve to be tried as war criminals. Some of them deserve to be taken off the battlefield until they are no longer a threat to our country and our coalition forces. And to have to let them go or try them is a choice the country should not have to make.

Who is at Guantanamo Bay? There have been some high-profile stories about individuals who were sent there who may not have been involved in enemy combatant activities. Unfortunately, those things happen. You can get someone in your custody based on some bad information and, over time, find out you made a mistake. And 200-something people have been released under the current procedure. What is that procedure? The Geneva Convention says if there is a question as to whether a person is a POW, a prisoner of war, or an unlawful enemy combatant, the host country, the country in custody of that individual, must have a competent tribunal to make that decision.

As far as I know--and correct me if I am wrong--the decision as to whether a person is an enemy combatant is a military decision. We don't have civilian trials. The Geneva Convention doesn't require a civilian judicial determination to be made. The determination of whether you are a POW who is entitled to the Geneva Convention protection, an enemy combatant or an innocent individual, is left up to the military. I argue that that is the way it should be, with due process rights.

The problem with this war is that we don't know when it is going to be over because there will be no surrender ceremony. I am sensitive to that. I understand the Senator's concerns, and that is legitimate. The process at Guantanamo Bay now, as I understand it, is when somebody is sent there, a combat status review tribunal will review their case, a military intelligence officer, and a military lawyer will look at the case and determine if the individual before them is an enemy combatant or meets the definition of an unlawful irregular enemy combatant. The host country where the person comes from can intervene on their behalf. Evidence is collected. They don't have a lawyer, but they have a representative. Every year, that person's status is reviewed. An annual review looks at whether the person still has intelligence value, whether they are a threat to the United States or has anything changed about their initial status determination.

Under an amendment passed that was authored by Senator Levin and myself, every Guantanamo Bay detainee now will have a chance to appeal their case to the Court of Appeals for the District of Columbia, and a Federal court of appeals at the District of Columbia will review the combat status review tribunal's action in that case to see if it was proper. So now we have civilian courts looking over the initial military determination. When it comes to military commissions and people being tried as war criminals, we have the presumption of innocence and the right to a lawyer, which is a very similar tribunal to international tribunals, very similar to the UCMJ but different in some regards.

So the idea that we need to let the prisoners go or try them all, I think it would be a very bad policy decision to make because some of them can be dangerous, can be a threat to our country if released or they could have intelligence value but don't fall within the definition of war criminal. To say that every enemy combatant is going to be tried as a war criminal is not good policy because you are beginning to change the way the rules have worked for a very long time.

We have had 200-something people released. About a dozen of them have gone back to the fight, unfortunately. So there have been mistakes at Guantanamo Bay by putting people in prison that were not properly classified. There have been mistakes about releasing people that we thought were not dangerous but turned out to be so.

I have a summary of statements made by individuals who have been released from Guantanamo Bay but went back to the fight. I ask unanimous consent that it be printed in the RECORD.

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


Statements made by detainees provide valuable insights into the mindset of these terrorists and the continuing threat they pose to the United States and the rest of the world.

A detainee who has assaulted GTMO guards on numerous occasions and crafted a weapon in his cell, stated that he can either go back home and kill as many Americans as he possibly can, or he can leave here in a box; either way it's the same to him.

A detainee with ties to UBL, the Taliban, and Chechen mujahideen leadership figures told another detainee, ``Their day is coming. One day I will enjoy sucking their blood, although their blood is bitter, undrinkable .....''

During an interview with U.S. military interrogators this same detainee then stated that he would lead his tribe in exacting revenge against the Saudi Arabian and U.S. governments. ``I will arrange for the kidnapping and execution of U.S. citizens living in Saudi Arabia. Small groups of four or five U.S. citizens will be kidnapped, held, and executed. They will have their heads cut off.''

After being informed of the Tribunal process, the detainee replied, ``Not only am I thinking about threatening the American public, but the whole world.''

A detainee who has been identified as a UBL bodyguard, stated, ``It would be okay for UBL to kill Jewish persons. There is no need to ask for forgiveness for killing a Jew. The Jewish people kill Muslims in Palestine so it's okay to kill Jews. Israel should not exist and be removed from Palestine.''

A detainee who has been identified as UBL's ``spiritual advisor'' and a relative of a fighter who attacked U.S. Marines on Failaka Island, Kuwait on October 8, 2002, stated, ``I pray everyday against the United States.'' This detainee repeatedly stated, ``The United States government is criminals.''

A detainee and self-confessed al Qaida member who produced an al Qaida recruitment video stated, ``..... the people who died on 9/11/2001 were not innocent because they paid taxes and participated in the government that fosters repression of Palestinians.'' He also stated, ``..... his group will shake up the U.S. and countries who follow the U.S.'' and that, ``it is not the quantity of power, but the quality of power, that will win in the end.''

A detainee who has assaulted GTMO guards on over 30 occasions, has made gestures of killing a guard and threatened to break a guard's arm.
* * * * * *

Mr. GRAHAM. Mr. President, one of them is Mullah Shazada who was released from Guantanamo Bay on May 8, 2003. He assumed control of Taliban operations in southern Afghanistan. His activities reported including the organization and execution of a jail break in Kandahar.

Abdullah Mahsud was released in 2004. He became the militant leader of the Mahsud tribe in southern Waziristan. We learned he had been associated with the Taliban since his teens and has been described as an al-Qaida facilitator. In mid-October 2004, he directed the kidnapping of two Chinese engineers in Pakistan. During a Pakistani rescue attempt, the kidnappers shot one of the hostages.

Mohammed Ismail was one of two juveniles held at Guantanamo Bay. He was released in 2004. During a press interview after his release, he thanked the United States for providing him education opportunities in Guantanamo Bay and stated he would look for work after visiting his relatives. He was recaptured 4 months later in May 2004 participating in an attack on U.S. forces near Kandahar. At the time of his recapture, Ismail carried a letter confirming his status as a Taliban member in good standing.

Abdul Rahman Noor, after being released in July 2003, has participated in hostile actions against U.S. forces near Kandahar. He was later identified as the person in a 2001 al-Jazerra interview described a mujhadeen defensive position claiming to have downed an airplane.

The reason I mention these individuals is that mistakes have been made in letting people go. Once the military tribunal reviewed these individual cases, they made a determination the person was no longer a danger to the United States and possessed no additional intelligence value. They were wrong.

These people and several others went back to the fight, and at least one of the people involved killed an American medic.

The process we have at Guantanamo Bay is reform in a manner that I think is consistent with American values. This body, in an overwhelming vote, indicated to the Department of Defense that their interrogation techniques needed to be standardized and put in the Army Field Manual. That is a work in process.

This body, in an overwhelming vote, gave every detainee at Guantanamo Bay a right to petition their status to Federal court for Federal court review.

We have due process rights in place for detainees at Guantanamo Bay that I think are unprecedented in the rules of armed conflict and are based on the fact that this is a war without a definable end.

But the amendment before us by my good friend from New Mexico would require this country to release the detainees en masse or repatriate them or charge them. The problem with repatriation is that one of the problems with closing Guantanamo Bay is, where do we put these people?

We have had case after case where the detainee was eligible to be released but did not want to go back to their host country for fear of reprisal. The idea that we can take the 460 prisoners and open the gates of the prison and say, Go back, is going to be a problem because a lot of them have no place to go or won't be taken back.

Another problem is that if we release these people en masse, some of them will become our worst nightmare. Information about statements made by detainees--I have another document here, where they openly avow a desire to get back into the fight and to kill Americans and to continue the war on terrorism.

Simply stated, the people at Guantanamo Bay, in my opinion, are people who need to be looked at every year in terms of their status and whether they have intelligence value and whether they present a danger. And that decision can be reviewed by civilian authorities.

They are not people for whom we should open the door and say, Leave or be charged, because the truth of the matter is that there are people down there who are enemy combatants who have not engaged in conduct that would fit a traditional definition of a war crime.

I just don't think we need to make that choice. We need to make sure that every detainee has adequately been processed, that our country is accountable for their treatment, that our country is accountable for their legal status, and that we have a way to prove to the world and to our own public that the detainees are being confined within the rules of armed conflict and treated properly.

This amendment would set in motion, I believe, forces that would come back to haunt us. Mr. President, I say to my good friend from New Mexico, I understand his concerns about Guantanamo Bay and the image problems that it has created, but I would argue that the reforms in which we have engaged have been real. We are not getting much credit for those reforms, but we are just going to have to understand as a nation that every critic of this country's policy doesn't have to make the decisions we do.

The criticism coming from abroad about Guantanamo Bay is part of democracies being able to speak openly, but they are not coming to South Carolina. If we let them go, they are not coming to South Carolina. I will do everything I can to keep these people from coming into my home State. And I doubt we want them to go to Mexico, and I doubt they are going to go to Connecticut.

I do not want to intermingle them with our military prison population because these people represent the hardest of the hard.

I hope we can reform Guantanamo Bay and that one day it will be closed because the needs of the war on terrorism have been met. And I do hope that those who are war criminals in the truest fashion will be tried at Guantanamo Bay by military commission and those who are not war criminals will be held until they are no longer a danger. I do not believe it is advisable for this country to make a choice as a nation that no other nation has ever had to make before, and that is turning loose someone who is caught on a battlefield engaged in hostilities against our own people or try them all as war criminals. That has never happened before, and it shouldn't happen here.

I yield the floor.

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