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National Defense Authorization Act For Fiscal Year 2010 - Conference Report - Resumed

Floor Speech

Location: Washington, D.C.

Mr. McCONNELL. Mr. President, yesterday the Supreme Court announced it would hear a case that has critical ramifications for our ability to detain foreign nationals safely outside our borders during wartime at the U.S. naval station at Guantanamo Bay, Cuba. The case also provides insight into the question of the best place to detain and try foreign terrorists.

The case involves a group of ethnic Chinese Uighurs who are detained at Guantanamo Bay. The Uighurs won their habeas corpus petition to be released from custody. Many of these Uighurs, however, had received terrorist training in the Tora Bora Mountains of Afghanistan, including weapons training on AK-47 assault rifles at a camp run by the head of a group that our State Department has designated a terrorist organization and that the United Nations has listed as a group associated with Osama bin Laden, al-Qaida, or the Taliban.

Not surprisingly, it has not been easy to find countries eager to accept the Uighurs into their civilian populations. So the Uighurs sued to be released into the United States. Federal District Court Judge Ricardo Urbina granted the Uighurs' request and ordered them released in our country. It did not matter to Judge Urbina that the Uighurs did not have an immigration status or that they had received military-style weapons training or that they had associated with a terrorist group. He was persuaded by their argument that justice required that they be released right here in the United States.

Fortunately, the DC Circuit Court reversed Judge Urbina. It ruled that even though the Uighurs had won their habeas corpus petition, they did not have a right to be released into the United States. In other words, it ruled that even if the government had to release them, it did not have to release them into Alexandria or Annandale or Falls Church or anywhere else in Northern Virginia that the Uighurs might like to go.

The DC Circuit's ruling is important to national security in general and to the debate over where we should try foreign terrorists in particular. The DC Circuit noted that the Supreme Court has held that foreign nationals, without property or presence in the United States, have fewer legal rights than foreign nationals who are present on American soil.

The DC Circuit also noted that the Supreme Court has repeatedly ruled that a sovereign has a right to control its borders, and that means it has a right to bar from being released into its territory foreign nationals whom it has not admitted onto its soil.

In short, because these detainees remain at Guantanamo outside our borders, they have fewer legal rights than they would have if they were brought within our borders, including the right to be released into our civilian population.

We don't know how the DC Circuit would have ruled if the Uighurs had been present on U.S. soil. But we do know a couple of things. First, the DC
Circuit's reason for not releasing them into the United States was that they had not been brought into the United States. Let me say that again. The DC Circuit's reason for not releasing them in the United States was that they had not been brought here. Second, other foreign nationals who have committed murder and other serious crimes who were in the United States have been released here when our government could not transfer them to another country, either because they did not want to go to another country or because other countries did not want to take them.

The administration and its defenders in the Senate say that because we have tried terrorists in civilian courts before, we should do so again. They say there is no problem with us doing so because the administration would never release detainees into the United States, by which they really mean to say the administration would not intentionally release detainees into the United States. Both assertions miss the mark.

First, whether we can try terrorists here is not the issue. The issue is whether we should try terrorists here. We can try them here, but should we? Before he became Attorney General, Michael Mukasey was a noted Federal trial judge who presided over civilian trials of terrorists such as the trial of the so-called Blind Sheik, Omar Abdel Rahman, for the 1993 World Trade Center bombing. He has written that there are very good reasons we should not try terrorists in a civilian court. This is a judge who presided over a terrorist trial in a U.S. civilian court, and this is what he says: We should not try terrorists in civilian court, including the additional legal rights terrorists will receive if they are brought here.

I ask unanimous consent to have printed in the Record at the conclusion of my remarks General Mukasey's recent op-ed on the topic.

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

(See Exhibit 1.)

Mr. McCONNELL. Mr. President, second, once the administration brings detainees into the United States--right here in our country--it is no longer simply a matter for the administration. In other words, once they get here, the administration cannot entirely control the issue of whether they are going to be released. It is no longer about what it will or will not do. It is also about what a Federal judge will or will not do.

As we saw with Judge Urbina and the Uighurs, a judge may very well agree with the legal arguments of Guantanamo detainees and order them released right here in the United States. In other words, no matter what the administration's intention may be, once we bring them here, they do not control the situation; the courts do.

Those risks do not exist if the Obama administration does not bring the Guantanamo detainees into the United States. That risk does not exist if it leaves them at Guantanamo and tries them at the modern, multimillion-dollar courtroom at Guantanamo Bay under the very military commission rules it has now rewritten to its liking and which we will soon vote on when we consider the Defense authorization conference report.

The Supreme Court should affirm the DC Circuit Court's decision and let the political branches maintain control over our borders, including deciding whether and how foreign nationals outside our borders may be admitted within them.

If it does, it will bring clarity to the debate over whether terrorist detainees at Guantanamo Bay ought to be transferred to the United States. That clarity is this: If we want certitude that foreign terrorists detained at Guantanamo Bay are not released into the United States, then do not bring them here in the first place.

Mr. President, I repeat. We could try terrorists in the United States--we could do that--but the issue is should we do that. The answer is no.

I yield the floor.


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