Improving America's Security Act of 2007--Resumed

By:  Lindsey Graham
Date: March 8, 2007
Location: Washington, DC

IMPROVING AMERICA'S SECURITY ACT OF 2007--Resumed -- (Senate - March 08, 2007)


Mr. GRAHAM. Madam President, this is a session worthy of the Senate, worthy of the country, and I think incredibly important. I compliment Senator Kyl for what I thought was an excellent overview of what the law requires in this area, what the Geneva Conventions require, and how our country exceeds the requirement of the Geneva Conventions.

To my good friend Senator Specter, there is no better champion of fairness and constitutional causes than Senator Specter. On this we respectfully disagree as to what the courts have said, and as far as the lay of the land of how you do this.

I do not come to this body as an expert on the Geneva Conventions. I have had some time in the military as a military lawyer. I have a pretty good understanding of what is going on in some respects. But I ask every Senator to review what is going on and make their own judgments, ask their own legal friends if they are not lawyers, and try to be fair.

We will all serve the country well if we will have a process that is constitutionally sound, that meets the test of fairness, and also recognizes we are at war and we are under great threat. So my basic presumption here as a Senator is I want to put infrastructure in place that recognizes the country is in an ongoing global struggle, and that as part of that global struggle we are dealing with people who are out of uniform.

This is not a capital to conquer or a navy to sink or an air force to shoot down. This is a unique war in the sense that it is ideologically based, not a particular location we are trying to conquer and not a particular uniform we are trying to suppress. The global war on terrorism is about extreme versus moderation, and it is rearing its head all over the planet.

So the battlefield in this war, from my point of view, is the globe itself, just as in World War II--the al-Qaida enemy. That is who we are talking about, people affiliated with al-Qaida, al-Qaida-like operatives who are going throughout the planet trying to kill civilians, rampantly trying to inflict harm on our own troops for an ideological agenda based on religion. They have no boundaries. They are not signatories to the convention. They do not play by the law of armed conflict.

But even if they have a status in the law of armed conflict, we are trying to make sure their status is determined in the proper way. We realized in past wars that the Viet Cong and others operated outside of a uniform, in a guerilla-type fashion. Well, the terrorists operate out of uniform with absolutely no respect for any concept of the law of armed conflict. But once they are captured, if they are not killed, then it becomes about us, not about them.

What does the United States do when it finds an enemy combatant, someone out of uniform, who is engaged in hostilities? See, I do believe 9/11 was not just a crime; this was an act of war. There are warriors all over this planet involved in a great struggle, in their minds, against moderate Muslims and every other religion, Christian, Jewish faith, and they have no place for the rest of us. If you solved the Jewish-Palestinian problem tomorrow, they would still be coming after us.

The people at greatest risk are moderate Muslims in the Middle East who would tolerate different ways of looking at religion. So there is a global struggle, and when we find a person we believe to be an al-Qaida operative or a supplier of materials to al-Qaida, the first thing, if they survive the battle, is that our military must fight the war, and if they are captured, we have to determine their status.

If there is a question as to whether the person captured by the American military is a lawful combatant, an enemy combatant, or nonbelligerent, who makes the decision as to what is the proper status for that individual?

Well, under the law of armed conflict--and I do believe we are at war--it is the military. Under the Geneva Conventions, it is the military. Article 5 of the Geneva Conventions is very important. Because within that article, it informs the world at large, the signatories of the conventions, that a competent tribunal must be empaneled to determine the status. That competent tribunal panel all over the world is the military.

The reason I object so vehemently to allowing habeas petitions to be filed to determine who is a military threat is we would be conferring what is a military decision, historically and under the law of armed conflict, and literally making it a civilian judge's decision where witnesses would be called and the judge would have a full-blown trial, with some very sensitive information.

I do respect our judges, but with all due respect to our judges--I think most of them appreciate this--they are not trained as to who a military threat is to the United States. That truly is a military decision, and we are not making that up after 9/11. That has been a military decision under the Geneva Conventions article 5 since the conventions were drafted. So we are doing nothing new because we were attacked by an ``un-uniformed' enemy.

The question as to what Senator Specter has raised: What process do we have in place to determine if a person is truly an enemy combatant, a concept recognized by the Geneva Conventions, the combat status review tribunal to me is not only constitutionally sound, it goes beyond what the Geneva Conventions require. Senator Specter read a transcript of a case that went to the DC Circuit Court of Appeals. I want us to slow down for a moment and think about that. The case as to whether this person was an enemy combatant worked its way up through our Federal judiciary to the second highest court in the land.

Under the law we passed last year, we allowed in every decision by the military that results in a finding that a person is an enemy combatant that that individual will be able to go to our court system, which is not required under the Geneva Conventions and is done nowhere else that I know of, and the court will review that case on two grounds: Were the procedures in place constitutional--Senator Specter mentioned this--and do you feel comfortable with the rebuttable presumption? Well, that has already been decided. In the Hamdi case of 2004, they specifically comment on the CSRT procedures. There is a preponderance of the evidence test required. The Government must prove by a preponderance of the evidence that the person in question is an enemy combatant.

This is not a judicial proceeding, this is an administrative proceeding. It is like the EPA deciding an administrative question. But it is an important decision, because if you are an enemy combatant, you can be held for an indeterminate period of time. As long as you are a threat, you can be held as long as hostilities exist.

The problem with this war is we do not know when the war is going to be over, so we want to build robust due process.

Let me tell my colleagues without hesitation: We have let almost 200--I can't remember the number--go from Guantanamo Bay who had been captured and determined to be enemy combatants. Every year their status was reviewed because we do not want to keep people forever unless there is a reason to keep them. Three things are looked at in every person's case administratively: Do you have intelligence value still; are you a threat to the country; and has anything new come into the case file to say you were originally misidentified as an enemy combatant? Twelve of the people released have gone back to the fight, have gone back to trying to kill Americans and civilians.

The question for this country and the world is when it comes time to decide to release somebody, there is risk to be had in that decision. Who should share that risk the most? Is it the civilian populations that have been the victims of these ``un-uniformed' killers who have chosen to join these organizations or support them with no boundaries or should it be the people who take up these causes?

I will tell you where I am coming down. If there is a doubt as to whether they continue to be a threat to our country and other peace-loving people, we are not going to turn them loose to fight us again. Every enemy combatant is not a war criminal. There is a separate proceeding at Guantanamo Bay to deal with those people involved in war crimes. If you start mixing the two, it will come back to haunt our country because we do not want to stand for the concept as a nation that every time an American soldier is captured in the battles of the future it would be appropriate to label them a war criminal. War criminals have to do specific things. Being part of an enemy force does not make one a war criminal.

So the point I am trying to make is the administrative procedures in place at Guantanamo Bay have been found to be constitutional, but we added a provision last year that allows the court to review whether the tribunal's finding was supported by a preponderance of the evidence, and allowing a rebuttal presumption in favor of the Government's evidence.

In other words, the DC Circuit Court of Appeals can look at the military's findings, not just the process, and they can say, as a panel of judges: Wait a minute, there is no competent evidence to support a finding that you are an enemy combatant. The court can say the case file is deficient. Not only was the process deficient--the process could be constitutionally sound--but it could result in an individual case where there was not sufficient evidence in the opinion of the court. The court does this all the time.

The court will review administrative bodies' decisionmaking abilities throughout this land. It could be in the EPA, it could be in some other agency of the Government, where the court will be able to look at the hearing officer's findings and determine if there was sufficient evidence to support that hearing officer's finding.

So going back to the transcript Senator Specter read, they did not tell him who it was. Well, maybe the reason he was not told who informed is because if we put out in a public setting our informant system, they will wind up getting killed. That is not an unknown concept in criminal law.

So I would argue, there is information in these cases that will never be publicly disclosed because if we start publicly disclosing the entire network that led to this capture, we are going to get people killed and we will be less safe. That is why we have a classified portion.

Shaikh Mohammed, the mastermind of 9/11, will be going through this process tomorrow, I believe, at Guantanamo Bay. Fourteen other high-value detainees captured in the global war on terror--very significant players in the al-Qaida movement--will be given a hearing at Guantanamo Bay, where the Government will have to prove the person in question--Shaikh Mohammed--is, in fact, an enemy combatant as defined by our own regulations, consistent with the Geneva Convention.

These hearings will be closed. I applaud the fact they are closed. The evidence will be redacted and given to the public and the press. But there will be a transcript available to be reviewed by the DC Circuit Court of Appeals, including the classified portion, in a classified setting.

I think it would be a huge mistake to disclose the methods and operations and the sources that led to the capture of Shaikh Mohammed in an administrative proceeding. Our courts will look at that evidence in a classified fashion because Shaikh Mohammed will be allowed to have his case reviewed, after the military makes their decision, in Federal court--something never done in any other war. The reason we did this last year, with Senator Levin's help, was to make sure--because we do not know when this war will be over--there will be a check and balance on a military decision never known in any other war.

I support that check and balance. I support the idea that every military decision regarding enemy combatant status will work its way through our court system. I vehemently object to taking what is a military decision and giving it to a civilian judge in a habeas forum, which is a complete Federal trial where the civilian judge makes the decision, not the military. Let the judges review the military work product. Do not give it to the civilian judges.

Shaikh Mohammed will be classified one way or the other. I am sure he will be classified as an enemy combatant. But the DC Circuit Court of Appeals will get to review his case. What is likely to happen in his case, if you believe the press reports? If he truly can be proven to be the mastermind of 9/11, he will be tried as a war criminal because the activities he engaged in--of orchestrating a series of attacks on our country, where you hijack civilian aircraft to go into the World Trade Center and to attack Washington, DC--would be a violation of war, as well as a crime.

So he could work his way into the military commission trial procedure. ``Enemy combatant' is an administrative determination. Charging somebody with a war crime is a totally different process. If the Government charges him with a war crime in a military commission setting, in a military commission format at Guantanamo Bay, they will not be allowed to give to the jury classified information proving he is guilty of what we are accusing him of doing, unless they share it with the accused. That was my objection to President Bush's proposal. I do not want to create a precedent where one of our soldiers could be tried in a foreign land, accused of being a war criminal, and never be given the evidence and be able to defend against what would be a criminal proceeding resulting in death or long-term imprisonment.

So for Shaikh Mohammed or anyone else, if the Government decides to use classified evidence to find someone guilty, they get a chance to defend themselves because we are talking about a punishment that could include execution.

There are two different concepts. The rules are different. What goes on in a military commission trial is consistent with what we do with our own troops under the Uniform Code of Military Justice when we try them for crimes. One is an administrative determination that exceeds the Geneva Convention requirements. The other is a criminal proceeding under the Law of Armed Conflict that I believe will be constitutional and the courts will say is a process worthy of this country.

As to what the law is, I say to my good friend, Senator Specter, I believe the Rasul case was based on this concept. The Department of Justice argued that Guantanamo Bay was outside the jurisdiction of the United States. If that were the case, if they won that argument, the constitutional provisions of habeas would not apply, nor would the statutory provisions. But Rasul was about a statute, not about the constitutional provisions, in my opinion.

Here is what the court said: They rejected the Bush position that the laws of the United States do not apply to Guantanamo Bay because of the lease and because of the relationship we have to that facility.

Do you know what. I think the court was right. I think that was an ill-advised position by the Bush administration.

So once Rasul was decided, and they rejected Eisentrager's statutory interpretation test, the Rasul court, in my opinion, said since it is within the United States, and Congress has not spoken to this in 2241--Congress has never said because you are an alien enemy combatant at Guantanamo Bay you cannot have a 2241 right--we are going to confer that right until Congress decides otherwise.

Mr. SPECTER. Madam President, will the Senator from South Carolina yield for one question?

Mr. GRAHAM. Yes, I will.

Mr. SPECTER. Madam President, when the Senator from South Carolina says, in the case cited that got to the Court of Appeals for the District of Columbia, where the charge was he had talked to an al-Qaida person, but they could not give the name--and the Senator from South Carolina seeks to justify that on the ground there might be some circumstance where disclosing the name would reveal a confidential source--can the Senator from South Carolina give any conceivable way there would be a disclosure of a source simply by identifying the al-Qaida person this detainee was supposed to have talked to?

Mr. GRAHAM. Madam President, if I may, just not being an intelligence expert, when we start naming the people involved around the individual, then we are talking about locations, specific sites. I would be very worried if we started naming in detail al-Qaida operatives, where they were, what they said, because that could set in effect a chain of events that would allow the enemy to understand what happened in that transaction.

We may just disagree about this issue, but I do believe that the classified--that Shaikh Mohammed--maybe I can say it this way. I am glad that Shaikh Mohammed's case is classified, and we are not going to reveal to the public how we captured him, all the evidence that led us to find out where he was and what he was doing. I think it would be a nightmare for this country.

As to the DC Circuit Court of Appeals opinion, I say to Senator Specter, they said the procedure was constitutional. I agree with them. Whether or not the individual case had sufficient evidence to support a finding is now subject to review by the court. This gentleman will get that review by the court based on what we did last year.

Mr. SPECTER. Madam President, I find it very hard--really impossible--to follow that answer. I cannot conceive of what the Shaikh Mohammed case has to do with my question or has to do with the proceeding before the Combat Status Review Tribunal for the detainee whose case got to the court of appeals, where he was accused of talking to an al-Qaida person, and they could not even identify the name of the person. That is not asking any places and times and whatever other activity was taken. I would rest my case, contrary to the arguments by the Senator from South Carolina, on that point.

If anybody thinks the Senator from South Carolina has given any reason that they could not identify the identity of the al-Qaida person without disclosing a confidential source--not talking about when, where, and under what circumstances--if my colleagues who will vote on this ultimately are satisfied with the answer by the Senator from South Carolina, then I will accept their judgment.

Mr. GRAHAM. I appreciate that. And I will continue. I will say this to my good friend from Pennsylvania. You were reading the transcript of a case that went on appeal. You have determined yourself that an injustice was rendered. You have made an opinion inconsistent with what the court found. You have your own sense of justice. I appreciate it, I admire it, but I do believe the court is right and you are wrong.

I do believe there is no constitutional right available to enemy combatant terrorists, noncitizens. I do not believe Rasul decided that, because if they had decided that, all these cases we are talking about would have been dismissed.

The circuit court of appeals may not be the--they would have gotten that. We have a case going to the DC Circuit Court of Appeals that either they have no idea of what the law is or Senator Specter is wrong.

So I hope my colleagues will understand the DC Circuit Court of Appeals is not blind to the issues in this case, they just did not miss the fact that the Supreme Court, in Rasul, 3 years ago, declared a constitutional right and the DC Circuit Court of Appeals is out to lunch as a group of judges who do not understand one of the biggest decisions in American jurisprudence. If my colleagues believe that Rasul created a constitutional right for an enemy combatant, noncitizen, and everybody in the legal system has missed it, then you should not trust anything coming out of the DC Circuit Court of Appeals, you should not trust any decision coming from district court judges all over the country who are dismissing these cases, and you should not believe a thing I say.

But there is a reason the DC Circuit Court of Appeals did not feel bound by a constitutional finding in Rasul--because the court did not find that.

There is a reason they upheld the proceedings in the case in question, and some of that reason may be classified. I don't know. But I do know this: It is not good law or public policy to take a transcript released by the defense counsel and read it in isolation and try to use that anecdotal story to say that the whole process is broken, when the court looked at the entire process and found that it was not broken. I can promise my colleagues that if the Rasul case said there was a constitutional right to habeas corpus by a noncitizen enemy combatant, it would have been a major issue in the Al Odah case. The reason Al Odah decided what it did is because it rejected the defense claim there should be, and there is no evidence in the Al Odah case that the DC Circuit Court of Appeals took precedent in the Rasul case and came out with a different finding. Don't my colleagues think there would have been a long discussion in the Al Odah case by the DC Circuit Court of Appeals that here is why the precedent set in Rasul for a constitutional habeas right for an enemy combatant noncitizen is wrong?

So please give the DC Circuit Court of Appeals some credit for not missing the biggest issue in military law in 200 years because they didn't miss it. Please give the Department of Defense some credit that when they issued this memo to detainees and their lawyers in July of 2004 indicating there is a habeas petition available to you, that it wasn't the Department of Defense's desire to create that right and that what they were doing was consistent with Rasul in saying that under 2241 you now had this right. For someone to suggest that memo was a conscious decision by the Department of Defense to give a habeas right to detainees I think completely misunderstands what the memo was about, distorts what it was about, and is a complete misunderstanding of what happened in Rasul. The Department of Defense had no other choice but to tell the detainees after the Rasul decision: You can file habeas petitions under 2241.

The Supreme Court in three cases has told the Congress: You need to speak here. We found a statutory right because you haven't excluded it. Do you want as a Congress to confer on the Shaikh Mohammeds of the world an ability to go into Federal court of their own choosing, to find the most liberal judge they can find in this country, and take the military and every other intelligence agency to court and have that judge, in a full-blown trial, determine whether this person is an enemy combatant? That would be changing a process on its head. That would be taking away from the military the ability they have under the Law of Armed Conflict to decide who an enemy combatant is and give it to a civilian judge who is not trained in that. It would be a fundamental, far-reaching mistake that would haunt us and undermine our national security, put judges in positions they are not trained for, and take away from our military an obligation and right they have to defend us. There is a place for judges. There is a place for the Congress. There is a place for the President. There is a place for those fighting this war.

I have one simple goal. I want to put people in the lanes where they can do the most good and the least harm. I do believe, if we turn this war into a crime and if we take the Shaikh Mohammeds of the world and we let civilian judges have a full-blown trial about how we found out they were the mastermind of 9/11 and if you take away from the military what a military threat is and you give it to civilian judges, you are going to make this war much harder to prosecute, and it will come back to haunt us. It has never been done before for a reason. We never allowed the Nazis, who are on par with al-Qaida, the ability to go into our Federal courts and sue the people who were fighting them--our troops. Because Justice Jackson in 1950 said: You would undermine the commander. They would be fighting the enemy on two fronts: on the battlefield and in the courts of the United States. It would undermine the commander's credibility. It would lead to chaos. There is a reason the Germans and the Japanese never went to Federal court. It would be, in my opinion, dangerous to give to al-Qaida more rights than we gave to the Nazis.

This is a great debate to have, but it needs to be based on some sound concepts. I don't think it is a sound concept to say that Rasul gave a constitutional right to noncitizen enemy combatants under our Constitution. I don't think it is a sound concept to say that the DC Circuit Court of Appeals 2 weeks ago missed that. They didn't miss it. That is not what this debate is about. This debate is about whether 2241--something under our control--whether we as a Congress want to give to enemy combatants the ability to sue our own troops. There are over 160 lawsuits filed. It has made a nightmare of Guantanamo Bay. They are suing our own troops for medical malpractice, for DVD access, for better exercise. You name it, they have brought a lawsuit around it and it has clogged our courts and it has impeded the ability to run this jail.

Let me tell my colleagues, in a classified and unclassified manner, the intelligence we have received from people housed at Guantanamo Bay has helped this country defend itself. The last thing we should be doing in an ongoing war is hampering our ability to defend ourselves because we are having two fronts--the military front and the legal front--that confers a status on our enemy that will undermine the ability of our military to defend us.

This is a statement from one of the lawyers who has filed one of these 160 lawsuits:

The litigation is brutal for the United States. Boy, was he right about that.

We are having to call people off the battlefield. We are having to bring people off the battlefield into the new battlefield--the courtroom--to explain to some civilian judge why we think they are an enemy prisoner--enemy combatant that threatened the United States.

It is huge. We have over 100 lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder for the U.S. military to do what they are doing.

Boy, was that right.

You can't run an interrogation with attorneys.

You better believe that is right. We are interrogating to make sure we find out what the enemy is up to the best we can so they don't kill us. Now, if you want to take the interrogation process at Guantanamo Bay and put a bunch of lawyers in the middle of it, which we have never done in any other war--we never gave to the Nazis--then you are crippling the ability of this country to defend itself. It has nothing to do with fairness. You are creating a right never known in an armed conflict previously, and you will be criminalizing what I think is a war in a dangerous way.

What are they going to do now that we are getting court orders to get more lawyers down there? They are going to shut off the interrogation and the information is going to stop.

We have made mistakes at Guantanamo Bay. The Bush administration has taken legal positions that I don't think have been sound, but I believe we have finally got this right, and I am going to end now.

I think after a lot of give and take and after a lot of court decisions, we are on the road to exactly where we need to be, and we have it right. Here is what we have in place: a system that is Law of Armed Conflict compliant, Geneva Conventions compliant, that realizes that fairness is part of being an American, but we are at war with people who want to kill us, and if they could, they would go back to it, some of them. Some of them are war criminals. Some of them are warriors who are assisting in the effort that had to be kept off the battlefield until they are no longer a threat. The military is doing a darn good job, and I stand by the men and women down there who are carrying out this job at Guantanamo Bay. I stand with you. I am proud to be your advocate in this body. You are getting good intelligence, consistent with lawful interrogation techniques. You are making decisions about who an enemy prisoner is, who a threat is to this country, in a sound way. Keep it up. Your work product will be going to court, so be mindful that what you do will get reviewed, as it should. Some have been let go--about 100-and-something. Most, as far as I know, have gone back and not been a threat. Every year, every person at Guantanamo Bay will get to have their case argued anew. They will get to make a case: I am not an enemy combatant. I am no longer a threat. I have no intelligence value.

We do not want to misidentify someone. That has probably happened. This is a confusing war. I am not here to say there has not been someone sent to Guantanamo Bay who was a mistake. That is true of jails in Missouri, and it is true of jails in South Carolina. But you can't say there is no risk involved when you release somebody because I can tell my colleagues with certainty that 12 of the people we thought were no longer a threat, because we wanted to be fair and let them go, have gone back to try to kill Americans.

There is no perfect outcome. You try to create a system that models who you are and is as fair as possible, recognizing you are at war. These war crime tribunals and commissions are going on during the war. The enemy combatant determinations are being made during the war. The reason we don't want to disclose how we found Shaikh Mohammed is because the war is going on, and we don't want to help people who are our enemies. So everybody caught and suspected by our military of being an enemy combatant involved in a global war on terror out of uniform supporting al-Qaida, they are going to get to go to Federal court, but we are going to let the military decide if they are a threat first, and the judges of this country can look over the military's shoulder and see if the military got it right in that case and if the procedures are fair. If you are convicted of a war crime at Guantanamo Bay, as Shaikh Mohammed may be or someone like him, you are going to get your day in Federal court because it is an automatic right. Whatever procedures are used by our military, which is modeled after our own process to try our own people, will go through legal scrutiny, the procedures and the outcome.

So if you are worried as an American that we are putting people away forever without due process, don't worry about it. That is something to be concerned about. If you are worried that your country has gotten somebody in the global war on terror and we house them and nobody ever gets to look at the work product, don't worry about it. But if you are worried that the Congress is about to confer a right never known in any other war to al-Qaida that will undermine our security, you are right to worry. It is all about judges: What they should do and when they should do it--and I respect judges. It is all about the military: What should they do and when should they do it. God knows I respect them.

We have the right balance. The military fights, they kill our enemies, they capture our enemies, and once they are captured, they are going to be treated by this country under the Law of Armed Conflict, consistent with our values and consistent with the Geneva Convention and consistent with the fact that we are at war. Everything they do when it comes to adjudicating these prisoners' status will be reviewed in our Federal courts after the military acts. Every person convicted will have their day in court, and the courts can look and see if they were treated fairly. That is what America should do. That is what we are doing.

Please understand this war is different, and we have to make accommodations in a variety of ways, but this is a war. This is not a crime. These people we are rounding up throughout the globe wish to kill us all.

Mr. President, I yield the floor and I note the absence of a quorum.

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