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National Defense Authorization Act for Fiscal Year 2008

Floor Speech

Location: Washington, DC



Mr. GRAHAM. Mr. President, I compliment Senator Inhofe in that moving tribute to a fallen marine.

The issue we have before the Senate is one of great importance to the country. It will affect the future of this bill. It will affect the national security needs of our Nation for a long time to come. It is a bit complicated, but at the end of the day, I don't think it is that difficult to get your hands around.

We are talking about a habeas corpus amendment to the Defense authorization bill that will confer upon any combatants housed at Guantanamo Bay, and maybe other places, the ability, as an enemy prisoner, to go to a Federal court of their choosing to bring lawsuits against the Government, against the military--something never granted to any other prisoner in any other war.

We had thousands of Japanese and German prisoners housed on American territory during World War II and not one of those Germans or Japanese prisoners were allowed to go to Federal court to sue the troops who had caught them on the battlefield or the Government holding them in detention as a prisoner of war.

To start that process now would be an absolute disaster for this country and has never been done before and should not be done now.

Now, the history of this issue: Guantanamo Bay is the place where international terrorists are sent, people suspected of being involved in the war on terror. Shaikh Mohammed is there, some very high-value targets are there, bin Ladin's driver. People who have been involved with al-Qaida activity and other terrorist groups are housed at Guantanamo Bay under the theory that they are unlawful enemy combatants. They do not wear a uniform as did the Germans and the Japanese, but they are very much at war with this country. They attack civilians randomly. Nothing is out of bounds in terms of their conduct. So they fit the definition, if there ever was one, of an unlawful enemy combatant. What they do in the law of war is unlawful. They certainly are enemies of this country. Shaikh Mohammed's transcript regarding his Combatant Status Review Tribunal--take time to read it. I can assure you he is at war with us. We need to be at war with him.

The basic premise I have been pushing now for years is that the attacks of 9/11 against the World Trade Center, against the Pentagon, the hijacking of the airplanes were an act of war. It would be a huge mistake for this country to look at the attacks of 9/11 as criminal activity. We are at war, and we should be applying the law of armed conflict.

The people whom we are fighting very much fall into the category of ``warriors'' based on their actions and their own words. What is the law of armed conflict? The law of armed conflict is governed by a lot of international treaties, the Uniform Code of Military Justice, and American case law.

What rights does an unlawful enemy combatant have? Well, our court looked at Guantanamo Bay. Habeas petitions were filed by detainees at Guantanamo Bay alleging that they were improperly held. The U.S. Supreme Court in the Rasul v. Bush decision in 2004 said: There is a congressional statute, 2241, that deals with habeas rights created by statute.

The Government argued that Guantanamo Bay was outside the jurisdiction of Federal courts; it was not part of the United States. The Supreme Court said: No, wait a minute. Guantanamo Bay is effectively controlled by the Navy; it is part of the United States.

The question for the court is, Did the Congress, under 2241, intend to exclude al-Qaida from the statute? And the answer was that Congress had taken no action. So the issue, 6 years after the war started here: Does the Congress wish to confer upon enemy combatant terrorists housed at Guantanamo Bay habeas corpus rights under section 2241, a statute we wrote? That is the issue.

Now, imagine after 9/11 if someone had come to the floor of the Senate and made the proposal: In case we catch anybody who attacked us on 9/11, I want to make sure they have the right of habeas corpus under 2241 because I want to make sure their rights exceed any other prisoner in any other war. I think you would have gotten zero votes.

Well, that is the issue.

Now, last year, Congress spoke to the courts, and the DC Circuit Court of Appeals understood what we were saying. Congress affirmatively struck from 2241 the ability of a noncitizen alien enemy combatant to have access to Federal court under the habeas statute. Why is that so important? From a military point of view, it is hugely important. Under the law of armed conflict, if there is a question of status--is the person a civilian? Are they part of an organized group? Are they an unlawful combatant? There are many different categories that can be conferred upon someone captured on a battlefield.

Under Geneva Conventions article 5, a competent tribunal should be impaneled--usually one person--to determine questions of status, and the only requirement is they be impartial. The question of who an enemy combatant is is a military decision. We should not allow Federal judges, through habeas petitions, to take away from the U.S. military what is effectively a military function of labeling who the enemies of America are. They are not trained for that. Our judges do not have the military background to make decisions as to who the enemy force is and how they operate.

So a habeas petition would really intrude into the military's ability to manage this war because if habeas rights were granted by statute to the prisoners at Guantanamo Bay, they could pick, through their lawyers, any district court in this country. They could go judge shopping and find any judge in this country they believed would be sympathetic and have a full-blown trial, calling people off the battlefield, having a complete trial as to whether this person is an enemy combatant in Federal court and let the judge make that decision. Well, that has never been done in any other war, and it should not be done in this war. Judges have a role to play in war, but that is not their role. The role of the U.S. military in this war, as it has been in every other war, is to capture people and classify them based on their activity within that war, and habeas would undo that. That is why last year Congress said: No, that is not the way we should proceed in this war.

This is not unknown to our courts. In World War II, there was a habeas petition filed by German and Japanese prisoners who were housed overseas asking the Federal courts to hear their case and release them from American military confinement. Chief Justice Jackson said:

It would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he has ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.

Justice Jackson was right. And what has happened since these habeas petitions have been filed? Hundreds of them have been filed in Federal court before Congress acted. Here is what they are alleging:

A Canadian detainee who threw a grenade that killed an American medic in a firefight and who comes from a family with long-standing al-Qaida ties moved for a preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. This was a motion made by an enemy prisoner for the judge to sit in there and conduct the interrogation or at least monitor the interrogation. I cannot think of anything worse in terms of undermining the war effort.

A motion by a high-level al-Qaida detainee complaining about base security procedures, speed of mail delivery, medical treatment, seeking an order that he be transferred to the least onerous conditions at GITMO, asking the court to order that GITMO allow him to keep any books, reading materials sent to him, and report to the court on his opportunities for exercise, communications, recreation, and worship.

Hundreds of these lawsuits have been filed under the habeas statute. That is why Congress said: No, dismiss these cases because they have no business in Federal court.

Surely to God, al-Qaida is not going to get more rights than the Nazis. Surely to God, the Congress, 6 years after 9/11, will not, hopefully, give a statutory right to some of the most brutal, vicious people in the world to bring lawsuits against our own troops in a fashion never allowed in any other war.

Here is what we did last year: We allowed the military to determine whether a person is an enemy combatant, whether they were an unlawful enemy combatant through a competent tribunal called a Combatant Status Review Tribunal made up of three officers. The legislation allows every decision by the military to be appealed to the D.C. Circuit Court of Appeals so the court can look at the quality of the work product and the procedures in place.

There is Federal court review over activity at Guantanamo Bay where judges review the work product of the military. To me, that is the proper way to move forward because some people at Guantanamo Bay, because they are so dangerous, may not be released anytime soon or may never be released. More people have been released at Guantanamo Bay than are still at Guantanamo Bay. They were thought not to be a threat. Thirty of them have gone back to the fight. We have released people at Guantanamo Bay to take up arms against us again. That is the result of a process where you make a discretionary decision.

It would be ill-advised for this Congress to confer on American courts the ability to hear a habeas petition from enemy prisoners housed at Guantanamo Bay where they could go judge shopping and sue our own troops for anything they could think of, including a $100 million lawsuit against the Secretary of Defense. That will lead to chaos at the jail. It will undermine the war effort.

I am urging a ``no'' vote to this amendment. We have in place Federal court review of every military decision at Guantanamo Bay and a way to allow the courts to do what they are best trained to do--review documents, review procedures, review outcomes--not to take the place of the U.S. military. I cannot think of a more ill-advised effort to undercut what I think is going to be a war of a long-standing nature than to turn it over to the judges and to take away the ability to define the enemy from the military, which is trained to make such decisions, and give it to whatever judge you can find, wherever you can find him or her, and let them have a full-blown trial at our national security detriment.

I urge a ``no'' vote.

I yield back the remainder of my time.


Mr. GRAHAM. Mr. President, I rise in opposition to the Webb amendment. I guess if I can pick up where my colleague from New Jersey left off, what is the best thing for the Congress to do in terms of supporting our troops? What are our duties? What are our obligations? I would argue the worst thing the Congress can do at a time of war is to start taking over operational control of deployments.

Many of us are up for reelection next year. This Iraq war has become one big political commercial. There are commercials being run out there--I don't know if they are on the air right at this moment, but every time there is a vote in this body, a Republican in a tough State will have an ad run in their State saying: Senator so-and-so has voted six times not to withdraw from Iraq. There are political commercials being run around every policy debate we have regarding this war. This is a political consultant's dream, this war.

Well, this war is not about the next election; this war is about generations to come. The commercials will keep coming. Every time we have a vote like this, somebody is going to take a work product, turn it into a political ad, and try to get some political momentum from the dialog we have on the floor.

None of us question each other's patriotism. That is great. To those who have served in combat, my hat is off to you. But we all have our independent obligation to make our own decisions here, and those who have never worn the uniform, you are just as capable of understanding this issue as I think anybody else. If you have been to Iraq, you understand how tired people are. They are tired. If you visit the military on a regular basis, you know they are stressed.

Let me give my colleagues some numbers here. The 1st Cavalry Division, their retention rates are 135 percent; The 25th ID, 202 percent; the 82nd Airborne, 121 percent retention rates. Recruiting and retention is very good because people who are in the fight now understand the consequences of the fight and they don't want to lose. I was in Baghdad on July 4. We had 680-something people reenlist in theater.

The troops are tired. That is not the problem. They understand the war. They understand the enemy because they deal with the enemy face-to-face, day-to-day. They realize that if we don't get this right--and in spite of the mistakes we have made, we can still get it right--if at the end of the day we don't get it right in Iraq, their kids are going to go back. The No. 1 comment I get from the troops after having been there many times is: I want to do this, Senator Graham, so that my children do not have to come over here and fight this war. Let's get it right now.

Well, let's help them get it right. I think we are not helping them if the Congress mandates troop rotations that will undercut the ability for the surge to continue.

Everyone cares about the troops, but the politics of this amendment are such that it would get--the bill would be vetoed. The President has said that if this amendment gets to be part of the underlying Defense authorization bill, he would veto it. I think any President would veto this bill. The Secretary of Defense's letter to me is a chilling rendition of what would happen to the force if this amendment was adopted. So we know the Defense authorization bill would get vetoed, and all the good things in it we do agree on--about MRAPs, support for the troops, better health care--all that gets lost.

Now, why are we doing this? Some people have a very serious concern that the force is stressed, and they want to take pressure off the force by giving them as much time at home as they have in the theater. Some people want to use this amendment to make sure the surge can't go forward because that would be the effect of it. People are all over the board. The consequence to the Defense authorization bill is it would get vetoed over this provision. Now, if that is what my colleagues want to happen, this is a way to make sure it happens.

The idea of telling the Department of Defense how long someone can stay in combat once they are trained and ready to go to the fight is probably the most ill-advised thing any Congress could do in any war. The Congress is a political body that is driven, appropriately, by the moment, by the next election, the voices of constituents, concerns of the public. Wars are not fought that way. Decisions in wars are not poll-driven--I hope. Decisions of politicians appropriately incorporate political consequences to the Member. Let's not make military policy based on the political consequence to the Member of Congress. That is what you would be opening a can of worms to.

If we take on this responsibility of managing troops from a congressional point of view, setting their rotation schedules, how many can go and how long they can go, then their presence in whatever battlefield or theater we are talking about in the future is very much tied to the political moment back home. Think about that. If we begin to adopt this way of managing a war where the Congress takes this bold, unknown step of saying: You can only go in theater this long and you can't do A and you can't do B, but you can do C, what happens in the next war? Is it wise for political people who worry about their own reelection--which is an appropriate, rightful thing to be worried about if you are in politics--to have this much power? Is it good for the military for the Congress--535 people--to have this much power over military deployments? Our Constitution gives them a political Commander in Chief--a single person--who has to answer to the public at the ballot box.

The Congress can, as part of our constitutional responsibilities, terminate any war because our constitutional role allows us to fund wars. So to my colleagues on the other side and those on this side who want to support this amendment, you would be doing the country a service and eventually, I think, the troops a service by trying to stop this war by cutting off funding, if that is your goal. If you think the war is lost and you believe it is the biggest foreign policy mistake in a generation and that it is a hopeless endeavor and that Iraq will never get any better, then just come to the floor and offer an amendment on the appropriations bill to say we will not continue to fund this war and create an orderly withdrawal. If you do that, I will disagree with you, but you will have followed a constitutional path that is well charted, and if you believe all the things I have just said, you will be doing the troops a great service because you will not create a precedent in the future where some other politician may take up your model and use it in a way you never envisioned.

Once we legitimize politicians being able to make rotation deployment schedule decisions, once we go down that road, we have opened up Pandora's box where the politics of the next war could dramatically affect the ability to operate on the battlefield. If we limit our actions to cutting off funding, that will be a sustainable way for Congress to engage in terms of wars they believe have been lost.

Now, the majority leader, HARRY REID, said the war was lost in April and the surge has failed. If you really believe that, let's have a debate not about micromanaging troop schedules and deployment schedules; let's have a debate that would be worthy of this Congress and this Nation. Let's come back onto the floor and put an amendment on the desk to be considered that would end the war by stopping funding for the war. That is not going to happen. The reason that is not going to happen is because the surge has been somewhat successful and the politics of ending this war--everybody is trying to hedge their bet a little bit now. The politics of the next election are affecting the politics of this body when it comes to war policy in a very unhealthy way.

We have a side-by-side alternative to Senator Webb that puts congressional voice behind the idea that we would like the policy of Secretary Gates to be implemented of ensuring the dwell time at home is consistent with the amount of time one is in theater. It is a sense-of-the-Senate that gives voice to Secretary Gates's goal and policy of dwell time without retreating into the Commander in Chief's functions, without getting out of our constitutional lane. Senator McCain has introduced this side-by-side. It will be called up at an appropriate time, and I can talk about it later on. It is a sense-of-the-Congress where we all agree that it would be a great policy to have if the conditions on the ground would warrant it, to give our troops a little bit of rest.

But what our troops need more than anything else is a commander who knows what he is doing and who can carry out his mission unimpeded by a bunch of politicians who are scrambling to get an advantage over each other. This whole debate is unseemly. It is destructive to our constitutional system. It brings out the worst in American politics. You have an ad being run against the very general in charge of our troops that is sickening and disgusting, and we are just absolutely going to a new low as a nation over this war.

So if you think all the things I said before--the war is lost, hopeless, stupid; the worst decision ever made in terms of U.S. foreign policy--end the thing. End it. Cut off funding. Don't play this game of having 535 people become generals who have no clue of what they are talking about. I respect everybody in this body, and those who have served, I respect you, but there is not one person here who I think has anywhere close to the knowledge of General Petraeus in how to fight a war. You could dig up Audie Murphy, and he could come back and tell me to vote for this amendment, and I would respectfully disagree. To those who have been in battle: God bless you. You deserve all the credit and honor that comes your way.

This is about winning a war we can't afford to lose. This is about who should run this war--a group of politicians who are scared to death of the electorate and who will embrace almost anything to get an advantage over the other, who is at 14 percent approval rating in the eyes of their fellow citizens? You want to scare the military? You want to give them something to be afraid of? Let them read in the paper Congress takes over operational control of Iraq. We would have some retention problems then. Anybody in their right mind would get out.

There are a lot of choices to be made in our constitutional democracy about war and peace. The one choice we have never made before is to allow the Congress to set rotation schedules, deployment schedules, and if we do it now, not only will we hurt this war effort, we will make it impossible for future commanders and future Presidents to protect us.

Mr. McCAIN. Mr. President, will the Senator yield for a question?

Mr. GRAHAM. Yes.

Mr. McCAIN. It is my understanding that Senator Graham, the senior Senator from South Carolina, is a member of the Air Force Reserve and the JAG Corps; is that correct?

Mr. GRAHAM. Yes, sir.

Mr. McCAIN. I understand you just spent a couple of weeks in Iraq serving in active duty and in your capacity as an Air Force colonel?

Mr. GRAHAM. Yes, sir.

Mr. McCAIN. And despite the mistake that was made in the promotion system, you did form impressions over there from the day-to-day interface with the men and women who are serving there?

Mr. GRAHAM. Yes.

Mr. McCAIN. I think it might be appropriate, given the Senator's recent probably longer stay than any Member of Congress has ever had in Iraq, maybe he can talk to us a bit on the record not only about where the troops' morale is, what they believe in, and about the issue that was the reason he went there, and that is this enormous challenge of the rule of law, and whether we are making progress in that area, and what he expects, particularly in the area of the prisoner situation.

Mr. GRAHAM. Mr. President, I will try my best. No. 1, my time in the service has been as a military lawyer. I am not a combat operational guy. If you want to talk about my experiences in the military, I am glad to talk about them, but they are limited, and I know how far they should go--not very. As a JAG colonel, I cannot tell you how to deploy troops. I don't know. That is out of my line. I have to make a decision as a Senator when the general comes, as Senator McCain says, as to whether it makes sense to me. I would not advise any Member of this body to follow a four star general's recommendation just because of the number of stars.

Here is what I would advise the Members of this body to do. Listen to what the general says. Use your own common sense. Go in theater and see if it makes sense. For 3 1/2 years, we went to Iraq and we were told by the generals in the old strategy that things were fine. On about the third trip with Senator McCain, I would say we were in a tank. I am a lawyer, so I don't understand military deployments and how to deploy combat troops. But I can tell you this from a lawyer's perspective and from good old South Carolina common sense: After the third visit to Iraq, if you thought things were getting better, you were crazy. We blamed it on the Republican side. The media doesn't tell the story right. It wasn't the media's fault. We were losing operational control of Iraq because we didn't have enough troops. You could see it if you wanted to look. If you were blinded by the partisanship that exists in this building, you will find some other group to blame it on. But it was there to be seen.

I have been seven times--twice in uniform--working on issues where I think I have a little bit to offer. My contribution is insignificant, inconsequential, but I am honored to have been able to be allowed to go, because I am cheering on people over there and I am still in uniform and I am the only one left, and I wish I could stay over there longer because I feel an obligation to do so.

Here is the morale as I see it this time around. A year ago, I was in Iraq--maybe a little bit longer--sitting at lunch across the table with a sergeant. I asked him: Sergeant, how is it going? He said: Senator, I feel like I am driving around waiting to get shot. Not going very well.

This last tour, when I was there for 11 days, I got to have three meals a day with them in Baghdad and meet folks with different missions and responsibilities, including combat guys coming in from the field. I sat down with them every night and I asked: How is it going? I was told: Colonel, we are kicking their ass.

Morale is high because of the new strategy. They are fighting and living with the Iraqi troops out in the field. Their army is getting better. When you talk to the marines in Anbar, they will tell you with pride: Look at what we did here.

For us politicians to deny what they did is an insult to their hard work. They liberated Anbar Province because there were enough of them this time around to join up with the Sunnis in Anbar to make a difference and drive out al-Qaida. This new strategy--and everybody has been asking for something new for a long time--is working. It is working. There are areas in Iraq, as Senator McCain described, that are liberated from a vicious enemy.

On the rule-of-law front, judges have a new level of security because of the surge that they have never known before. The first thing General Petraeus did when he went in theater was create a rule-of-law green zone for judges. We have taken an old Iraqi base and built housing for judges and created a perimeter of security. We have a jail inside the complex, judge housing, a police station, and a brandnew courtroom, so that the judges can implement the law without fear of assassination. I have never seen such growth in an area as I have in the rule of law since the surge began. The judges now are able to do their job without their families being assassinated, and we have seen dramatic improvements.

I will give you two examples. There was a Shia police captain accused of torturing Sunnis at the police station he was in charge of. He is now facing a long-term prison sentence because the Iraqi legal system didn't listen to the fact that he was a Shia and the people he abused were Sunni. They gave a verdict based on what he did, not who he did it to. It is sweeping the whole legal system.

Judges are going into areas that al-Qaida operated from just months ago
and they are rendering justice, but not based on what sect you come from; it is based on what the person was accused of. I witnessed a trial downtown Baghdad where two people of the three were Shia police officers in the Iraqi police force. There was a raid on the house they were living in by the American forces. Coalition troops were the only witnesses and these two defendants who were in a house full of IED material, rocket-propelled grenades, explosive devices that were meant to kill Americans. The defense said: Who are you going to believe, us or the invader? The lawyers in the trial looked the judge in the eye and started citing one verse of the Koran after another to tell the judge he had a duty to stand beside his Muslim brothers and reject the testimony of the infidels. I was there; I saw it.

The three judges conducted a trial that everybody who witnessed that trial would have been proud of. They asked hard questions. They separated the defendants, and rather than listening to dictates from the Koran coming out of the mouth of their lawyer, they asked questions such as how were they in the house, and how could they not have known the weapons were there? They did a great job proving these guys were lying through their teeth. When they reconvened, they got convicted, getting 6 years in jail.

There is progress going on in Iraq. There are people in Iraq who are bigger than sectarian differences. There are judges, lawyers, and average, everyday people who are risking their lives to make their country better. One of the biggest problems they have had is that we screwed up early on and let security get out of hand. With better security, people are beginning to engage in a way I have never seen before.

This idea of pulling back now, reducing our military footprint, at a time when we have made a real difference, is too disheartening to the troops. They are watching what we are doing. I was stopped every 30 feet with questions such as: What are we going to do? Is the war going to go on? Are they going to cut it short? The people fighting want one thing, and that is the ability to finish the job. Do they want to come home? Yes, God knows they want to be home. Are they tired of going over? Yes. But above all others, they want to win.

Senator McCain said he met people for the third and fourth time. Well, nobody stays in this military unless they volunteer, to begin with, and when their enlistment is up, there are stop-loss problems, but there is an end to this war for them; it is an end of their choosing. This force, unlike others, chooses when to end the war for them when their enlistment comes. What they are choosing to do we need to understand. They are choosing to reenlist at numbers greater than any other area of the military. Why can't this body sit down and think for a moment; what do they see about this war that I don't see? Why do they keep leaving their families and going to a dangerous place time and time again, in numbers larger than any other group in the military? Do you know why they do it? I think they do it because they interact with the judges I have just described to you. They see hope. They understand the enemy. They know an enemy that will take a 5-year-old child and put that child in front of their parents, douse him with gasoline and set him on fire, is an enemy to their family. They understand that Iran is trying to drive us out of Iraq because they want to be stronger. And they understand that will mean they are likely to have to fight a bigger war.

From the troops' perspective, from my view, they want to come home, and they want a lot of things; but they want, above all others, the chance to win a war they believe they can win and one we cannot afford to lose.

I yield the floor.

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