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SEN. LIEBERMAN: Thanks very much for coming today.
Senator Graham and I have returned here to discuss this ongoing battle over the release of -- of photos of treatment of detainees. As you know, President Obama overturned a decision of some of the attorneys in the Justice Department not to appeal from a lower court decision in an ACLU lawsuit that would have compelled the release of these photos.
President Obama did the right thing. He did the right thing because he knows that the release of these photos will achieve no good and will do great harm.
They will achieve no good because the behavior, the worst behavior that may be portrayed in these photos, has already been prohibited by acts of Congress -- the Detainee Treatment Act, the Military Commission Act -- and indeed, by executive orders of President Obama. So to release the photos is, to me, sheer voyeurism. It's a disclosure without a purpose, and it's disclosure that brings great risk.
And of course, what's the risk? The risk is really a certainty, which we know from the past, particularly after the photos of horrid behavior at Abu Ghraib were made public, which is that those photos will go up on violent Islamist extremist websites. They will be put in al Qaeda and other recruiting videos. They will lead to people entering the war against the United States, the West. And in our opinion, the release of these photos, for no purpose at all -- no good purpose -- will lead to the death of Americans, including particularly those brave Americans who serve us in the military.
That's why Senator Graham and I introduced the Detainee Photographic Records Protection Act, to back up President Obama's commander-in-chief decision not to release these photos. It's why we were very pleased to introduce it as an amendment to the Supplemental Appropriations Act, which was adopted unanimously, and then the supplemental bill itself passed by a vote of 86 to three in the Senate.
The Senate and House are now in conference on the supplemental appropriations bill. And Lindsey and I are very troubled by reports that some in the House of Representatives are pressuring their colleagues to drop our amendment in conference. If this amendment is dropped, Senator Graham and I will not go quietly into the night. And we will not do so because the safety of our troops and our nation, of the American people, is on the line. We'll use all of the legislative tools at our disposal to see to it that this amendment prohibiting the release of these photographs of detainees will be adopted.
Transparency in government is an American value, but it is not without limits, no more than any of the values embraced in our Constitution. The behavior depicted in these photos, as I've said, has already been prohibited. The photos do not depict anything that is not already known, so that transparency in this case is needless and dangerous transparency. It is transparency that would be paid for with the lives of American citizens, including the lives of men and women in uniform fighting on our behalf in Iraq, Afghanistan and elsewhere.
So we are here to say that we cannot in good conscience allow business as usual to be done in Washington on this matter. This is not just a case where we're prepared to say, "Well, we made a good fight for an amendment we believed in and it got dropped in conference and that's that," because there's too much at stake here, namely the lives of Americans.
And that's why we're here today to say that we're going to take every action and any action we can to make sure that this amendment is adopted. We begin -- I begin by saying now that I will vote against the supplemental appropriations bill if the conference report returns to the Senate without this amendment prohibiting the release of these photographs.
SEN. GRAHAM: Thank you.
And I'd like to just underscore, this is just not two senators feeling this way. The United States Senate allowed this amendment to go through -- go forward without objection. We negotiated some changes to the amendment with Senator Leahy and Senator Levin that I thought would allow us to accomplish our goal. And our goal is to make sure that Congress speaks in a way that these photos never see the light of day.
I think everyone agrees the most effective way to stop the photos from being released is congressional enactment of a law telling the courts we do not want these photos released. Now, there may be other ways to achieve that goal, but they're secondary in terms of effect. And I am very concerned that unless someone acts, the courts are going to require these photos to be released. A Second District Court -- Second Circuit Court of Appeals has already issued a ruling requiring their releasing.
And quite frankly, my beef is not with the court. This is a chance to take a statute that the courts have interpreted and for the Congress, the elected representatives of the people, to weigh in and give courts guidance as to what we think would be best for this nation. And the Senate has spoken. This is what Senator Inouye said, and I -- what better person could you have speaking than a Medal of Honor winner? "We have enough pictures. I've seen some of the pictures that they want to publish. They don't add anything to debate" -- to the debate. "The worst ones have been seen already." This is Daniel Inouye, who supported our efforts to have legislation in the supplemental to prevent the release of these photos.
The legislation would be outcome-determinative in court. The Senate has jumped on board with President Obama.
The focus today is the House. What is compelling the House to do this? he Congress has spoken through the Senate. The commander in chief has spoken loud and clear. The only body that is off-script, in my opinion, is the House. If they drop this in conference, it will be one of the most outrageous and irresponsible acts in the history of the Congress.
Why do I say that? Because it would mean that members of Congress will dismiss advice from commanders in the field at a time of war. And these are not just any commanders; these commanders have been at war for years. They know what they're talking about, Generals Petraeus and Odierno. They told us without any hesitation that if these photos are released, our enemies will use it to incite violence against our troops. If these photos see the light of day, it will be a death sentence to some serving abroad.
And I just cannot imagine the House doing this. What is driving them? Who is running the House? Is the ACLU now in charge of the House of Representatives?
The Senate is very clear as to what we think should happen. The president is correct in arguing against the release of these photos. But here we stand, a nation at war, receiving input -- the United States Congress being told by commanders in the field that if you release these photos, you're going to jeopardize the safety of our troops, who are already in harm's way, unnecessarily.
What good is it to pass a supplemental giving our troops new weapons if also in the supplemental you give a weapon to the enemy to use against our own troops? I just got back from Morocco and Algeria, and the embassy officials there were preparing a plan to protect the embassy and American people in Algeria and Morocco from violent action if these photos were ever released. They were dreading this. They were coming up with a game plan to fortify the embassy.
To those who believe this is not a real problem, leave the safety of Washington. Go to Baghdad. Sit down across the table from General Odierno. Spend some time with General Petraeus. Go to Kabul. Go to Helmand province. Go to the embassies that are on the frontlines of this war and listen to their story. And if you can tell them no, I'm just dumbfounded how you could.
So what we're about to do today, in stripping this language from the supplemental, is give in to people who I believe have a very naive sense of what the world is really about; that have no real understanding that this is a war where people are getting killed every day trying to protect us against a vicious enemy. They are absolutely, completely out of touch with reality -- the reality that our men and women face every day when they walk down a street in Afghanistan or Iraq.
These photos, if they're released, will be used by the enemy to incite violence as they walk down these streets. The reality is that our diplomatic corps that goes around the communities doing business on behalf of this country, when they leave the compound will be at risk. I cannot believe that we're about to do this, that we're going to dismiss the advice of our commanders who are leading our troops at the time of war to give into a fringe element in American politics. And make no doubt about it, this is a fringe element.
We're talking about supporting the commander in chief, who happens to be a Democrat. President Obama is right, and I'm here to help him. They helped -- they helped us write the amendment.
This man here is truly representing the best in America, an independent Democrat who understands what this war is really about and has risked his own career in the past. But we're standing with our president today, the secretary of Defense, the Senate as a whole. We're standing with our commanders. We're standing with our troops and with our diplomats.
And if this is taken out -- if this amendment is taken out of the supplemental, we're going to do everything in our power to highlight this to the American people and hopefully change the behavior of the House because this is the first shot in a long war. There are other lawsuits pending out there that want to compromise our national security in the name of freedom of information and transparency. There's more to come. Let us fight this battle today. Let us win today, so we don't have to fight it tomorrow.
SEN. LIEBERMAN: Thank you.
Q Senator, what are you talking about when you say you're willing to use all -- everything at your disposal, that we hit every bill that comes --
SEN. LIEBERMAN: Yeah.
Q -- to the floor from now on is going to be -- you're going to put a hold on, you're going to make Senator Reid file cloture and --
SEN. LIEBERMAN: Right. Well, we already actually added our original legislation as an amendment to the FDA regulation of tobacco bill that's on the floor right now. But the most direct and important thing we're saying today is that -- of course, the two of us would normally vote for a supplemental appropriations bill for war funding, but we think this is so important, and because we think the prohibition on the release of the photos is an act of protecting the lives of the American military -- and I think of the American people, because every time these photos help al Qaeda recruit another terrorist, that terrorist can be the one that attacks the United States of America.
So we're going to vote against cloture on the bill, and I'm going to do everything I can to see if I can convince other Democrats to do that. We're just not going to roll over because some folks in the House don't like this amendment. We're just not going to say we made a nice try and, you know, that's the Congress, and we'll fight again another day. This is too important. So we're going to do everything we can to hold up the supplemental appropriations bill until we're sure that this amendment prohibiting the release of these dangerous photographs is on that bill.
And then we'll continue to do everything we can to attach it to other legislation, to slow up the process. Nothing's more important than the protection of our security, and particularly the lives of the American men and women in uniform.
SEN. GRAHAM: Well, let me just say this. I want to compliment the Senate leadership to allow the amendment to go forward. We had -- we were able to get a compromise that the White House agreed with, that we agreed with, that the Senate as a whole agreed with. The Senate is not the problem, but the Senate is the only vehicle available to us. We're not members of the House.
And I think most Americans would not agree with this fringe element here; that most Americans understand that we're a unique free country, that freedom of information, how your government works is an important value, but they also understand what Senator Inouye said. We've had enough of these pictures. Nothing new is added.
So I think this is the ultimate mainstream position we're taking. It's the position that our commander in chief has taken. It's the position that most Americans would like us to take. And quite frankly, the House is doing something incredibly irresponsible, and I am not going to sit on the sidelines and watch this go forward.
I believe the commanders. I think they're right. I believe the diplomatic corps. I talked to Secretary Clinton. She's very concerned about this.
So we're not going to let this lay. We're going to get a resolution. And make no doubt about it, the clearest way to resolve this is for Congress to pass our amendment. Everyone says, if you do that, then you're going to get the outcome you desire. Anything short of that I worry about. Doing nothing is going to result in the photos being released. Something has to be done, and we're going to make sure that something is done before any more business is done.
Q Senator Graham, two questions.
The release -- the opponents of your amendment say that the release of the initial -- (inaudible) -- photos played a very significant role in galvanizing public opinion against, quote/unquote, "torture" and abuse, the harsh methods at Abu Ghraib.
SEN. GRAHAM: Yeah.
Q First question: Do you think that the release of the initial photos has a salutary effect in terms of the overall debate?
And secondly, can you -- you used a very strong term, "death sentence."
SEN. GRAHAM: Yes.
Q Do you have any examples in the past during the first photo batch of U.S. personnel -- (inaudible) -- directly as a result of that?
SEN. GRAHAM: Yes, we do, and I'll share it with you. Attacks went up by a factor of many after the photos were released. We know, from our personal experience, in Iraq that one al Qaeda member who flipped to come on our side said that two thing happened to help their cause: the abuse at Guantanamo Bay, that these photos were used by them to recruit people, to incite the civilian population against us; and the second was we didn't have enough troops.
As to your question --
SEN. LIEBERMAN: Let me just add (this ?) together.
SEN. GRAHAM: Yeah, please.
SEN. LIEBERMAN: We were together at a detention facility in Iraq, and they brought in this guy who was there who had been recruited by al Qaeda in Iraq. So we asked him -- this is a year or two ago --
SEN. GRAHAM: Mm-hmm.
SEN. LIEBERMAN: -- "What led you to join al Qaeda?" And he said, "t was the pictures that I saw of Abu Ghraib and Guantanamo." Well, that's very -- nobody prompted him to say that. That wasn't particularly the answer we were looking for. And I think it's just evidence.
Of course, let me just add -- I'm sorry to interrupt.
SEN. GRAHAM: Please. No, no, please.
SEN. LIEBERMAN: I'm here as chairman of -- I am the chairman of the Homeland Security Committee. We've now had a series of homegrown terrorist acts in the United States. These people, some of whom have contact with overseas terrorist groups, but were brought to terrorism by recruitment, including recruiting videos and Internet -- jihadist websites. And they feature pictures like this. This is the main way to portray the U.S. as the devil.
SEN. GRAHAM: But it's a very good question. I think the initial approach we took to Abu Ghraib overall has been helpful. We had to get this out. We got it out. People have been court martialed. People have lost their jobs. The public had a chance to understand how badly we mismanaged Abu Ghraib, and quite frankly, the war.
But to release additional photographs I think -- the commander in chief is right -- doesn't add anything to the debate. I would quote again Senator Inouye, "We have enough pictures. I've seen some of the pictures they want to publish. They don't add anything to the debate."
That is my view, that to go forward and to release more photographs will result into the attacks that I -- this is not something I am saying by myself. This is something I've been told by people in the field, in combat theater, by Secretary Clinton. And my comments since and my experience in theater leads me to believe that they're right. I can't understand the argument as to why you would believe they would be wrong. These people literally know what they're talking about.
And it is a strong statement to make, but it's meant to be strong. I want the American people to know that if this batch of photos sees the light of day, some American soldier or diplomat is going to lose their life directly related to the violence that would be incited by our enemies from the release of these photos. That's why we're not going to do any more business in the Senate. I've been there 12 or 13 times. I've seen these young men and women, those in the diplomatic corps. They've got enough to do without the Congress adding to their burdens. So nothing's going forward until we get this right.
Q Senator, you say that these photos add nothing new. Why, then, would they be such an incitement if they're nothing new from what was released before?
SEN. GRAHAM: Because if you've been in theater, you understand how our enemy operates. There are a lot of populations over there that are on the fence. Some of them are very illiterate. And these photos are used by our enemy to incite violence. It happened when they were first released, and you need to ask that question to General Petraeus and Odierno. They're over there. Ask it to Secretary Clinton. Ask it to our commander in chief. Ask it to Secretary Gates.
The overwhelming body of evidence, giving -- given our past -- the result of the past, lead us to one conclusion: Americans will be put in harm's way unnecessarily. Violence will increase. These photos will be used by our enemy. And that's where the big disconnect is. There are people in this town who don't believe we have an enemy. You cannot honestly believe we're at war if you're willing to drop this amendment. You must have a view of the world that I don't share. And I don't know where you're getting your view from, because if you go to Baghdad and you go to Afghanistan, and you talk to our men and women who are serving abroad, you would not have this view.
This is a fringe view. This is life and death. And we're not going to let the fringe of American politics get young men and women killed who have done nothing wrong. They weren't part of these photos. They weren't part of these abuse(s). They're volunteers serving abroad. They've done nothing wrong, and we're not going to put them in harm's way unnecessarily because of a fringe element in American politics.
SEN. LIEBERMAN: Let me just add real briefly, which is the release of the initial photographs was -- it was unsettling, to put it mildly. And we saw behavior there that was unacceptable. I want to repeat that that led to law -- the passage of law prohibiting treatment of detainees such as we saw there.
That's why I say that -- and Senator Inouye has said -- that the release of these photos will do nothing positive. It's disclosure for the -- for the sake of disclosure, and it will have all the negative effects that Lindsey and I have talked about.
I'll add one more. As has been reported in the press secondhand, Prime Minister Maliki told our military leadership in Iraq that the release of these photos will set back the tremendous progress we, together with the Iraqis, have made in building a better U.S.-Iraqi relationship and creating stability in Iraq. And it will also undercut the extraordinary efforts that President Obama has made to rebuild our ties with the Muslim world. All for what? For nothing, really.
Q (Off mike.) I mean, should you be enlisting the president to help you make the case -- (off mike)? (Off mike.) Is that right?
SEN. LIEBERMAN: Well, we certainly drafted the amendment together with people in the White House.
And my understanding has been that the White House has been attempting in the conference committee to keep this language in because the president does not want these photos to see the light of day, and we're here to say that in the Senate as much as we can with regard to a conference report, we're going to stand with President Obama.
SEN. GRAHAM: I think it's important to understand President Obama's decision and how he arrived at the decision he did. Initially, the administration was not going to fill the 2nd Circuit's court decision to require release of the photos. We wrote a letter to the president asking him to reconsider, but more importantly, our commanders called the president. They didn't call him. He called the commanders. He sat down with Secretary Gates. He listened to General Odierno and it's our belief that General Odierno told him, Mr. President, if you release those photos, you're going to create a lot of chaos here in Iraq and Prime Minister Maliki said, Baghdad will burn and it will put in jeopardy the approval of the SOFA agreement and he listened to all the input from our commanders and our diplomatic corps, Senator Clinton, excuse me, Secretary Clinton and he changed his position.
And I want to say that's what I want in a commander in chief. I think that is an asset. That shows good leadership to evaluate the situation anew and reach a different conclusion. I just wish the House would listen to him, not just to me, not to the president, but our commanders. It's one thing to dismiss another politician. You can question my motives all day long. I am just repeating what I've been told by people who are actually in the fight and I've been there enough to know that they're right.
Q Have you taken your case directly to Speaker Pelosi and the House Democratic leadership or spoken to Senator Reid about this?
SEN. LIEBERMAN: Well, I've told my leadership that I in good conscience can't vote for the supplemental appropriations bill unless this amendment prohibiting release of the photographs is part of it.
SEN. GRAHAM: And if I can just add? If Lindsey Graham went to the Speaker of the House and said, you must agree with me, it would make it impossible for her to agree with me. We've been pretty low key about this. We passed this thing without a voice vote. The administration helped write the bill. We compromised in the Senate and we've been very quiet thinking this thing was put to bed.
The last thing I wanted to do is make a big issue about this. I didn't ask for a recorded vote and we could have, and I know politics well enough to understand that if I go over to the House and say you need to do this, it's going to make it impossible.
I was hoping that reason would prevail. I was hoping -- well, let me tell you what Nancy Pelosi said when she returned from her trip, "If that's what the president supports, then that's what we support, adding, I haven't heard anything controversial associated with that. I will support the supplemental." She was asked about this photo amendment and when she got back from her trip abroad, she said that if the president wants it, that's fine. Something has happened and what's happened is the fringe element of the Democratic Caucus has taken this issue over and they're really, quite frankly, being very irresponsible because all the evidence apart from what Joe and I are telling you is strong and mounting that these photos will put our troops in jeopardy and our civilian population in harm's way and I don't know why we're doing this.
Q (Off mike.)
SEN. LIEBERMAN: No. I haven't specifically -- no, I haven't. As you know, put this on the tobacco regulation bill. I think the immediate strength that we have here is to try to -- a conference report coming back can be filibustered and what we're saying here is that we're going to filibuster this. It's that important.
Q (Off mike.)
SEN. GRAHAM: Listen. The Republican Conference, I think, will not be a problem here. This shouldn't be a Republican-Democratic deal. It's obviously not. You've got Senator Inouye, a Medal of Honor winner saying, additional release of photos will do no good; it will do harm. You've got the President of the United States --
SEN. LIEBERMAN: Right.
SEN. GRAHAM: The commander in chief, the head of the Democratic Party. I think the Republican Conference will support the president. If you're looking for a time when the Republican Conference can help the Democratic leadership and the president, that day has arrived. I think our conference will do everything possible to support the president and those of us who believe that this is an unwise decision to make sure it stays -- (inaudible) --
Q Chairman Frank was saying last night that you wanted to -- (inaudible) --
SEN. LIEBERMAN: No. And the reason is that the appeal of the 2nd Circuit decision is happening right now. So there's an urgency to this. There's been a lot of testimony publicly about this, I mean, honestly, Congressman Frank should call General Odierno or General Petraeus or Secretary Gates or President Obama about why President Obama decided to appeal this and I think the case is really clear. I understand the principle, the appeal of the principle of disclosure and transparency, but you've got to then apply that principle to the reality. What do you gain? And what do you lose? You gain nothing and you lose a lot by this disclosure.
Q If the appeal goes in your favor, will you back off -- (inaudible) --
SEN. LIEBERMAN: If the court appeal goes in our favor? I don't think that's going to happen quickly enough. The other thing is that we have set up a procedure in this amendment, not just for this case, but for a series of cases, ongoing, where the Secretary of Defense can certify that the release of photographs will be harmful to the safety of our nation and particularly the safety of the troops serving under the Secretary and that would last for three years when it would be subject to review.
SEN. GRAHAM: I just want to be assured that the photos are not going to be released and the legislation is the best way to do that. It does create a process that the courts will respect, but at the end of the day the goal is to make sure these photos do not see the light of day and the legislation is the best way to fix that problem.
Q (Off mike.)
SEN. LIEBERMAN: Well, I'll just say briefly, I'll try to do this real briefly. I believe we're in a war and it's a war on terrorism, and personally, I believe that people apprehended in that war ought not to have access to the federal courts of the United States. They ought to be tried according to the Geneva Convention or international rules of war and military commissions and the like. The Ghailani case is different and that's why I wanted to make that first statement. The behavior for which Ghailani has been arrested, apprehended and is now being tried occurred prior to the authorization for the use of military force following the al Qaeda attack on the United States of 9/11/01. The behavior that Ghailani is charged with occurred prior to the attack against the United States of 9/11/01, prior to the adoption of the authorization of use of military force, the declaration that we were at war, which is the way I take it.
So I think this is an exception to the general rule, and therefore, seems appropriate to me that he would be tried in federal court, but it's not a precedent in my opinion for others apprehended after 9/11/01.
SEN. GRAHAM: And let me tell you why I believe that is so important. The only way we're going to get this right long-term is to have a consistent theory of what we're dealing with here. If we criminalize the war, we've made a huge mistake because under domestic criminal law, you cannot hold someone without trial indefinitely. You have to try them or literally let them go. Under the law of armed conflict, you have two options; you can try people for war crimes.
In the history of this nation, we've used military commissions to try enemy combatants, foreign fighters who've taken up arms against the United States. We haven't gone to civilian court. But I agree with Senator Lieberman. This is a unique case as long as it does become precedent for what we're going to do with the other detainees, I'm okay with it. But here's what I said to the administration and to the public at large is I think the trials that we engage in should be conducted by military commissions and if we can reform the commissions to make them better, count me in. But I think anybody at Guantanamo Bay that's going to be tried in the future should go through the military commission process because that keeps us thematically consistent.
Half the people there are going to come down in this bucket of where the evidence is strong and solid that they're a member of al Qaeda, but it may not pass the scrutiny of a criminal trial.
We will have a procedure in place where federal courts can review every detainee's case, but some of them are going to be held indefinitely if I have anything to say about it without criminal process because the issue before the country is, are you a military threat? And we're accusing these people of not only of war crimes, but of being members of al Qaeda.
So we need a legal system that would allow federal courts to pass judgment over the military's decision as to whether or not they're a member of al Qaeda, an enemy force taking up arms against the United States and if the court agrees with the military that the evidence supports that decision, there is no requirement to try them or let them go. That is the big issue in front of the country, no this case.
What do you do with those cases that are not subject to criminal trial that the evidence according to our intelligence officials and the Department of Defense leads us to believe this person is part of an enemy force and presents an ongoing threat?
You've got to remember that 12 percent according to some estimates who have been released by Guantanamo Bay have gone back to the fight. You also need to understand this. There are some people at Guantanamo Bay originally captured that should never have been there.
What we're trying to do is create the best process possible so that the world will know that if anyone is in our jails, in our military prisons here, it's not because someone like Dick Cheney said so. It's because we've got a process where the detainee will have their day in court, represented by counsel and an independent judiciary will buy into the decision they're part of an enemy force and not create a threat.
That's my goal, not just a way to try some of these folks. The goal is to be able to keep them off the battlefield if they're truly dangerous.
SEN. LIEBERMAN: Thank you very much.