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Public Statements

Supplemental Appropriations Act, 2009

Floor Speech

Location: Washington, DC


Mr. CHAMBLISS. Mr. President, I rise to speak about amendment No. 1144, the Protecting America's Communities Act, which I am offering to H.R. 2346, the supplemental appropriation bill.

Before I begin my comments, I ask unanimous consent to add Senator Coburn as an original cosponsor of S. 1071, which is a collateral stand-alone bill, as well as a cosponsor to amendment No. 1144.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. CHAMBLISS. Mr. President, this amendment amends immigration law to prohibit any detainee held at Guantanamo Bay Naval Facility from being transferred or released into the United States. It is a little bit different from the vote we are going to be taking at 11:30.

There are over 240 terrorists in U.S. custody at the military detention facility in Guantanamo Bay, Cuba. Let me just describe some of the individuals who reside at Guantanamo. Khalid Sheikh Mohammed--or KSM--is the self-proclaimed, and quite unapologetic, mastermind of the 9/11 attacks. KSM admitted he was the planner of 9/11 and other planned, but foiled attacks against the U.S. In his combatant status review board, he admitted he swore allegiance to Osama bin Ladin, was a member of al-Qaida, was the military operational commander for all foreign al-Qaida operations, and much more. KSM and four other detainees, who are charged with conspiring to commit the terrible 9/11 attacks, remain at Guantanamo.

In addition, Gitmo uses Abd al-Rahim al-Nashiri who was responsible for the October 2000 USS Cole bombing which murdered 17 U.S. sailors and injured 37 others. Also residing a Gitmo are Osama bin Ladin's personal bodyguards, al-Qaida terrorist camp trainers, al-Qaida bombmakers, and individuals picked up on the battlefield with weapons trying to kill American soldiers--our young men and women who patriotically serve their country. The detainees at Guantanamo are some of the most senior, hardened, and dangerous al-Qaida figures we have captured.

These are exactly the type of individuals we hope never get past our front lines and enter into the United States. However, as one of his very first acts in January, President Obama ordered the closure of Guantanamo, but 4 months later he still does not have a plan to accomplish this. Officials in his administration have stated publicly that some of these detainees could be brought to the U.S., and some could even be freed into the United States.

The disposition of the detainees at Gitmo is not a new issue. Over the past several years, the military has transferred the majority of detainees held at Gitmo to other countries. However, the success of these transfers is mixed at best. According to a Defense Intelligence Agency report from December 2008, 18 former detainees are confirmed and 43 are suspected of returning to the fight after being released from Guantanamo. This represents a recidivism rate of over 11 percent. Just two months later this rate rose to 12 percent. These individuals do not even represent the most serious and dangerous terrorists we have captured. The most dangerous detainees remain at Gitmo. This data has likely risen since December, but the Department of Defense refuses to release the information under instructions from the administration. If we start to release or transfer the most hardened terrorists left at Gitmo, these numbers will only increase further.

One thing that is clear: we know that these detainees have remained loyal to al-Qaida and Osama bin Ladin despite being captured and remain a danger to our national security. We have statements from detainees avowing it is their goal to kill Americans, claiming that they ``pray every day against the United States.'' Al-Qaida searches every day for operatives who can evade our enhanced security mechanisms in its quest to commit another attack against our homeland. It is important to remember that most detainees held at Guantanamo were captured on the battlefields in Afghanistan or Iraq and were determined to be a threat to our Nation's security. Whatever their ties to terrorists groups or activities, these individuals should never be given the privilege of crossing our borders, even if incarcerated. To do so would be nothing short of an invitation for al-Qaida to operate inside our homeland. KSM and other high value detainees at Gitmo are no different, and do not conceal their intent to harm Americans if given the chance.

My amendment would prevent those terrorists at Gitmo from having that chance. Article I, section 8 of the Constitution grants Congress the right to ``establish a uniform rule of naturalization.'' The Supreme Court has determined that the power of Congress ``to exclude aliens from the United States and to prescribe the terms and conditions on which they come in'' is absolute. My legislation capitalizes on the clear and absolute authority of Congress to determine who enters our borders by first adding to the list of those inadmissible to the United States those detained at Gitmo as of January 1 of this year.

However, because Congress delegates to the executive branch parole authority, this administration could still bring those terrorists detained at Gitmo into the United States. Parole authority is granted to the Attorney General to allow aliens, who are otherwise not qualified for admission to the U.S., permission to enter our country on a case-by-case basis--essentially a waiver for those otherwise inadmissible. Although aliens paroled into the U.S. are not considered ``admitted'' for purposes of our immigration laws, they are within the borders of our country and therefore become eligible to apply for asylum or seek other legal protections.

To deal with this, my legislation also eliminates parole authority for the executive branch as it pertains to those individuals detained at Gitmo as of January 1, 2009. As such, there is no basis for President Obama to allow these detainees to be transferred to U.S. soil.

The Protecting America's Communities Act also provides protections for American citizens in the event President Obama decides to try to exercise some other authority to bring these Gitmo detainees to the U.S., such as the authority granted to him via Article II of our Constitution. Again, we know that if the detainees were transferred to the U.S., they would seek legal protection under the generous legal rights our Constitution grants our citizens. However, our courts and our legal system were not established to try individuals detained on the battlefield. Because of the nature of the global war on terror and evidence gathered against them from the battlefield or through intelligence, the detainees are unlikely to be suitable for prosecution within the U.S. criminal courts. There is no ``CSI Kandahar'' in which evidence picked up off the battlefield is carefully marked and the chain of custody is observed.

There is too much at stake to grant the unprecedented benefit of our legal system's complex procedural safeguards to foreign nationals who were captured outside the United States during a time of war. Allowing these terrorists to escape conviction--or worse yet, to be freed into the U.S. by our courts--because of legal technicalities would tarnish the reputation of our legal system as one that is fair and just. Prohibiting the detainees from entering into the U.S., as the Protecting America's Communities Act does, is one small step in the right direction.

Further, if these individuals were to be brought to the U.S. by President Obama to be tried on our Article III courts and not convicted, the only mechanism available to our Government to continue to detain these individuals would be via immigration law. However, the current immigration laws on our books are insufficient to ensure that these detainees would be mandatorily detained and continued to be detained until they can successfully be removed from our borders.

Although I am adamantly opposed to bringing any of these detainees to the U.S., and I do not believe the President has independent authority to do so, I believe we need legislation to safeguard our citizens and our communities in the event they are brought here. To that end, my legislation makes mandatory the detention of any Gitmo detainees brought to the U.S.

It also strengthens and clarifies the authority of the Secretary of the Department of Homeland Security to detain any of the Gitmo detainees until they can be removed. This statutory fix is needed because in 2001, the Supreme Court decided the case of Zadvydas v. Davis, holding that unless there is a reasonable likelihood that an alien being held by the Government will actually be repatriated to their government within a given period of time, that alien must be released and cannot be detained by the U.S. Government for more than 6 months.

We all know a major issue facing our country in dealing with those folks detained at Gitmo is finding a country to take them. For example, there are 17 Chinese Uighurs being held at Gitmo who have been cleared for transfer to another country. However, the United States will not send them back to China for fear they might be treated unfairly by the Chinese Government. No other country to date is willing to take them. Therefore, my legislation provides authority to the Secretary of Homeland Security to continue to detain these individuals and provides for a periodic review of their continued detention until they can safely be removed to a third country.

In addition, my legislation prohibits any of those individuals detained at Gitmo from applying for asylum in the event they are brought here. Now, there are a number of other proposals to prohibit funding from being used to transfer to or detain the Gitmo terrorists in the United States--I am going to support those provisions--but those are not permanent. Those will have to be renewed annually. Congress would have to maintain this prohibition in all future spending bills.

Although I do believe this is a good short-term solution, and I support those measures, I want to be confident that Congress does not drop the ball in the future. We need a more permanent solution to this problem, and the Protect America's Communities Act provides exactly that.

I urge the President to develop a policy that would allow closure for the families of the victims of 9/11 that will prevent terrorists from stepping foot on U.S. soil and will keep them off the battlefield where they will attempt to kill our men and women in future combats.

However, we cannot wait for the President to assure us that none of these detainees will be brought to America. The stakes are too high, and in order to maintain the highest degree of security and safety in our country, we need to adopt the Protect America's Communities Act to ensure that they never step foot inside of our Nation.

I yield the floor.


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