National Defense Authorization Act for Fiscal Year 2014

Floor Speech

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Mr. CHAMBLISS. Madam President, first of all, let me say to my friend from West Virginia--I happen to serve on that subcommittee and I was in the hearing the other day when he asked a question of General Dempsey, a very appropriate question. We thought a very strong answer was going to be given by Senator Dempsey to the question of the Senator from West Virginia regarding weapons systems and other expenditures that are mandated by Congress that the chiefs and other folks at the Pentagon have said they don't need. As he and I were just discussing, we finally got that letter yesterday, and it was somewhat of a very tepid response rather than the strong response we had hoped for.

In any event, the Senator from West Virginia, along with Senator Coburn and myself, are going to work together to develop a list of expenditures that are either unwanted by the Pentagon that Congress has mandated or expenditures that ought to be spent in some other agency but, unfortunately, are being charged to the Pentagon. So I look forward to working with the chairman on that issue, and I thank him and Senator Wicker for their leadership on the subcommittee.

I rise principally today in support of the Ayotte-Chambliss-Inhofe amendment No. 2255, which would restore many of the legislative limits and requirements Congress has placed in recent years on the transfer of Guantanamo Bay detainees and prevent medical-related transfers to the United States. I believe these legislative safeguards are vital to our national security and essential to good intelligence collection.

For several years now we have been debating the status of Guantanamo Bay and the detainees who remain there. Time and time again, during the course of these debates, I have asked this administration to come up with a viable, long-term detention and interrogation policy. Frankly, they have failed to do so because of a stubborn commitment to a poorly thought out campaign promise to close Guantanamo.

The call to close Guantanamo may sound like a good campaign sound bite to some people but, frankly, in the real world of national security it undermines good intelligence collection and increases the risks that dangerous detainees will be back on the streets where they can continue, as they have, to kill and harm Americans. These are not abstract theories; they are facts. The recidivism rate is nearly 29 percent and has been climbing steadily since detainees began being released from Guantanamo. This includes nearly 10 percent of detainees who have returned to the fight after being transferred by the current administration following the administration's extensive review of each detainee.

Al Qaeda in the Arabian Peninsula counts former Guantanamo detainees not just among its members but among its leaders. A former Guantanamo detainee is believed to have been involved in last year's Benghazi attacks that killed our ambassador and three other Americans.

The administration's stubborn refusal to add even one more terrorist to the Gitmo detainee population has forced the executive branch back into the pre-9/11 mindset of treating terrorists as ordinary criminals--a mindset we know doesn't work. A lot of people will come to this floor on the other side of the aisle and say: Well, we have tried all of these terrorists in article III courts in the United States and it has worked. For the most part, they have been convicted, and they are now serving time. That is a fairly accurate statement. However, what they fail to say is that these article III trials of terrorists who have been arrested inside the United States are nowhere near the caliber of those who planned and carried out the attacks of 9/11 as well as those who were captured on the battlefield seeking to kill and harm Americans and, in a lot of instances, did kill Americans and maim Americans, and they are now housed at Guantanamo. That is a very, very distinct difference, and those prisoners should not be treated the same as an ordinary common burglar is treated in an article III court here in the United States.

In response to criticisms of the approach that the mindset of 9/11 is being returned to, the administration now seems to favor interrogations on board naval vessels. The end result, however, has been no different. At the end of these brief interrogations, those individuals have been transferred to Federal courts here in the United States where they are unlikely to provide any more intelligence information because they have been Mirandized and are now awaiting trial.

From the Christmas Day bomber to the Boston bomber to the East Africa embassies bomber, this preference for criminal prosecution at the expense of intelligence collection has become the administration's standard operating procedure. This is no way to defend our Nation, and it sends a message of weakness to terrorists and our allies alike.

This amendment Senator Ayotte, Senator Inhofe, and I are putting forward sends the right message to the American people. It ensures that our detention practices have clarity for the next year and that on a permanent basis no detainee will be transferred overseas unless there is a clear certification that the transfer is in the best interests of the United States. This also sends a very clear message to the terrorists at Guantanamo Bay: You are not coming to the United States where you will have the advantage of article III courts.

This amendment includes five provisions.

No. 1, it imposes a 1-year ban on transfers to the United States of Guantanamo detainees, except in cases after the date of enactment where the detainee is sent to Guantanamo for purposes of interrogation.

No. 2, it imposes a 1-year ban on transfers of detainees to Yemen--and I will speak more about that in a minute.

No. 3, it imposes a 1-year ban on building or modifying facilities inside the U.S. to house

Guantanamo detainees.

No. 4, it makes permanent the certification requirements needed before any transfer of a detainee overseas.

Lastly, it strikes the provision in the bill that allows transfers of detainees to the United States purely for medical care.

Let me address each provision very briefly. First, I have yet to hear why it is a good idea to bring Guantanamo detainees to the United States. While the President made a promise to close Guantanamo, the American people seem unified against bringing these detainees to the U.S. for any reason, and I believe we should listen to the American people.

It is clear that giving the Secretary of Defense the authority to decide to bring detainees here for detention, trial, and incarceration will have the same impact as Congress lifting the prohibition outright. But the same issues we have been talking about for several years and that GAO identified in its 2012 report on detention options inside of the United States still exists. These include cost considerations, questions about the legal status of the detainees, and concerns about protecting the general public and personnel at these facilities or during trial.

Let's look at who these 164 individuals are that remain at Guantanamo. We started out with about 860-something, as I recall, give or take a few. So we have already released both to other countries and, in some cases where we frankly made a mistake, individuals who should not have been there, or it has been determined by the appropriate reviewing committees that these detainees were OK to be sent back to their country of origin or to some other host country that was willing to take them and supervise them or keep them in detention but to get them out of Guantanamo. Now, the 164 who are remaining are the meanest, nastiest terrorists in the world, frankly. They are the ones nobody is going to want. So if nobody else wants them, why should we allow them to come to the United States?

These are the individuals who either planned and masterminded the attack on the United States on September 11, 2001, such as Khalid Shaikh Mohammed, or they are individuals we picked up on the battlefield who were actively engaged in fighting and killing Americans, as well as engaged in building bombs that were intended to--and in a lot of instances did--explode and kill or injure Americans.

Some of these folks range from KSM to the USS Cole bomber who are awaiting trial and, frankly, should be tried at Guantanamo. In other words, they are dangerous detainees who should not and cannot be sent, as I said, to any other country.

Many of us have been calling on the administration to send new detainees to Guantanamo simply for interrogation. Detainees such as al-Shabaab leader Ahmed Abdulkadir Warsame, East Africa Embassies bombing suspect Abu Anas al-Libi, who was arrested in Libya recently, and suspects in the Benghazi attacks all belong at Guantanamo where they can be interrogated for a long time under the rules and articles of war, without Miranda rights or criminal defense lawyers.

But this administration has consistently refused to even consider Guantanamo for interrogation of the meanest folks who still remain at large.

It is off the table, as they tell us. Some have used the excuse that it is off the table because of this restriction in previous Defense authorization acts. In other words, the administration could not put any new detainees at Guantanamo for interrogation because they could not send them to Federal court for trial.

If this administration had made any effort at all, even just once, over the past 4 years to interrogate detainees at Guantanamo rather than holding them on a ship, this excuse would have much more merit. But to make sure there are no excuses anymore, our amendment makes clear that detainees who are sent to Guantanamo specifically for the purposes of interrogation after the date of enactment may still be transferred to the United States for trial in article III courts or before military tribunals. That means there is absolutely no need to hold another detainee on board a ship just to interrogate him. And there is absolutely no excuse for not putting new detainees at Guantanamo Bay. This provision makes sense for the security of this country, and it makes sense for good intelligence collection.

The ban on transfers to Yemen is a very critical aspect of this amendment. The amendment bans any detainee transfers to Yemen until December 31, 2014. It has been 4 years since the President imposed a moratorium on transfers to Yemen from Guantanamo following the failed airplane bombing attempt on Christmas Day 2009 by Umar Farouk Abdulmutallab. At that time, Yemen was viewed as a hotspot for terrorists, especially with the rise of Al Qaeda in the Arabian Peninsula. Now, 4 years later, not much has really changed except for the rising recidivism rate. We know that former detainees have rejoined AQAP both as leaders and as members. We know Yemen continues to struggle with terrorist groups who are trying to make sure it remains an AQAP stronghold. And we know AQAP continues to look for ways, like the 2009 failed Christmas Day bombing, to attack this country.

We have all seen the reports that the administration wants to transfer detainees to Yemen and is working with the Yemeni Government to set up a detention or rehabilitation facility inside Yemen to house these prisoners. We learned from the Saudi rehabilitation program that rehabilitating hardened terrorists simply does not always work. The recidivism rate for the Saudi program is at least 20 percent. Many of these detainees, such as AQAP leader Said al-Shihri, ended up in Yemen fighting as terrorists again. Yemen, as one senior administration official described it, is like the Wild West. It is the last place we should send dangerous detainees. In other words, now is not the time to experiment with our national security.

Our amendment ensures that no detainee can be sent to Yemen over the next year. I recognize that there are Yemeni detainees who have been cleared for transfer, so we do not permanently prohibit those transfers. But just because a detainee is eligible for transfer from Guantanamo does not mean he no longer poses any threat at all. We have to remember that the easiest transfers have already been done, and even among those easy transfers, over a quarter of them have been known to be reengaged in the fight against Americans.

So our amendment imposes a reasonable time period on this prohibition: No transfers can occur until at least December 31, 2014. Over the next year we should have a better sense of how well the Yemeni Government is combating terrorists within its borders. Once we see their track record, we can decide whether it makes sense to send them any new detainees.

In the past, under the previous Government of Yemen, the detainees who were transferred from Guantanamo to Yemen simply were allowed to wander around in Yemen with no supervision whatsoever, and I daresay that we now do not have any idea where most of those detainees are inside of Yemen or, more significantly, whether they are still in Yemen, whether they are reengaged in the fight, whether they are in Syria fighting on one side or the other, or what has gone on with those detainees.

Al Qaeda and its affiliates look up to Guantanamo detainees. They have immediate street credibility among terrorists, which makes it more tempting for them to rejoin the fight. We should not make it easier to transfer detainees anywhere, much less places where there are confirmed recidivists or a real threat from AQAP. The detainees, including many of the Yemenis, who remain at Guantanamo are among the worst offenders.

We should want all future transfers to be done wisely and fully in line with our national security interests. This amendment accomplishes those objectives.

Third, this amendment continues the ban on building or modifying facilities inside the United States to hold those detainees. It does not prohibit any changes to the facilities at Guantanamo Bay, so those facilities will continue to be state-of-the-art.

I understand that this administration wants to close Guantanamo and that the Justice Department has already purchased the correctional facility in Thomson, IL, to house them. But there is still overwhelming consensus here in Congress and among the American people that Guantanamo detainees should never set foot inside the United States. We need to listen to that consensus.

With that in mind, our amendment ensures that not one penny of American taxpayer dollars will be spent on the Thomson facility or to build or modify any other facility inside the United States to house Guantanamo detainees. Our amendment applies not just to Defense Department funding but to all U.S. Government funds. That way, no other Department, including the Justice Department, can try to circumvent the will of the American people and bring Guantanamo detainees to our homeland.

Many of us have been to Guantanamo. I have been there several times to see for myself how the detainees live and are treated. It is a first-rate prison facility. I have been to many prison facilities in my State as well as other parts of the country. It is one that would probably make most inmates at prisons here inside the United States very envious.

We should not forget that many of the detainees at Guantanamo are some of the most dangerous terrorists in the world. If they cannot be transferred to other countries, they do not belong in the United States.

This amendment also makes permanent the certification requirements that are needed before any detainee can be transferred outside of Guantanamo Bay. As I mentioned, the recidivism rate today is almost 29 percent and growing, so we should not make it easier to transfer detainees anywhere, much less to places where there are recidivists or real terrorist threats. The certification requirements and the ban on transfer if there is a confirmed recidivist in a host country were designed to lessen the likelihood that detainees would reengage.

I understand that some people want Guantanamo closed, but eliminating commonsense measures that are there to protect American citizens is not the way to do it. These measures give Congress and the American people confidence that the Defense Secretary has fully considered all aspects of the transfer, especially the host country's past record and current capabilities.

As the rising recidivism rate tells us, even detainees who have been cleared for transfer--through a very rigorous process, I might add--can still pose a threat. We have to remember that the easiest transfers have already been done, and even among those over a quarter have reengaged. The detainees who remain are among the worst offenders. We should want all future transfers to be done wisely and fully in line with our national security interests.

I do not find persuasive the argument that these certification requirements are so burdensome that detainees cannot be transferred. In fact, this year alone detainees have been transferred to Algeria, and we continue to get notices of other proposed transfers.

Not every detainee needs to stay at Guantanamo Bay. I recognize that, as do the other authors of this amendment. But not one should be released until we are absolutely certain that everything is being done to prevent new terrorist activity on the part of those individuals who are, in fact, released. These certification requirements give us that certainty. Making these requirements permanent is the only sure way to guarantee that each and every transfer is best for the national security of the United States.

Finally, this amendment restores the status quo by striking section 1032 in the bill, which allows the transfer of detainees into the United States for medical care. We need to remember that Guantanamo is a first-class facility, operated by dedicated military personnel who put up with an awful lot from detainees. I remember the first time I went to Guantanamo, they were housed in a facility that is not the facility they are in today. It was much more of an open facility where the guards simply would walk back and forth in very close range to the actual prisoners themselves. Those guards were subjected to being spit upon, having human waste thrown at them as well as food or anything the detainees could get their hands on. Needless to say, it was not a very nice place to be.

But we need to remember also that Guantanamo possesses not only first-class medical facilities but also first-class judicial facilities for the trial of these individuals. There is a state-of-the-art courtroom down there, which is being virtually unused today, that ought to be used to try these individuals before a military tribunal.

Section 1032 seems to be a solution in search of a problem. Guantanamo Bay has the facilities from a medical standpoint and the doctors within the military to treat these prisoners. And I am not aware of any instance in which a detainee has died or suffered further injury because of our inability to treat them at Guantanamo.

Aside from being unnecessary, this provision does not make good policy. Over the past several years detainees at Guantanamo have waged repeated hunger strikes in an effort to gain sympathy so the United States will release them from prison. When inmates in our prisons here engage in such tactics, we do not reward them, but that is exactly what section 1032 would do. If we give detainees the ability to be brought to the United States even for what is supposed to be temporary treatment, that is a powerful incentive for a detainee to injure himself or go on a hunger strike.

I am also concerned about how this provision would even be implemented. It is unclear whether we will have to modify military hospitals so they can handle high-value terrorist detainees. At what cost and at what risk to the safety of others, including the towns in which these facilities are located?

I appreciate that the provision tries to limit the rights of detainees when they are brought here, but we have been down this road before with habeas corpus rights. Once a detainee is physically inside the United States, it becomes much more difficult to argue against any change in immigration or legal status.

In my view, section 1032 is simply in this bill to further reduce the population at Guantanamo. This is not a goal I can support. Our amendment keeps the status quo and keeps these terrorist detainees where they belong--at Guantanamo Bay.

It is time for this administration to provide real leadership on detention and interrogation issues instead of trying to keep ill-conceived campaign promises that run contrary to the established facts and known threats to our national security. Keeping this country safe demands real-time intelligence--the kind we have gotten in the past from interrogating detainees for long periods of time, including those detainees at Guantanamo. It is time for us to end this dangerous practice of treating terrorists first and foremost like criminals who deserve Miranda warnings, attorneys, and court appearances.

It is time for us to stop pretending that the detainees at Guantanamo are no different from common ordinary criminals. Our amendment ensures that the balance remains on the side of our national security and good intelligence collection. It ensures that common sense, not politics, will determine the future of Guantanamo detainees and the effectiveness of our intelligence collection.

I am pleased to turn to the Senator from New Hampshire, Senator Ayotte, who has been such a champion on this issue. She and I have worked very closely, as well as any number of other national security issues, since she came to the Senate. She has been a tremendous asset. As a former prosecutor, she understands how serious these individuals are from a criminal standpoint.

I commend her for the great work she has done, and I certainly look forward to hearing her comments.

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Mr. CHAMBLISS. The very best tool we have been able to utilize from an intelligence-gathering standpoint is the information we gather from individuals who were involved in the crime or involved in the planning of the crime. That is the case whether it is an ordinary burglary, bank robbery or in the case that we are talking about today, the planning and the scheming of the carrying out of what happened on September 11, as well as terrorist activity prior to that, such as the USS Cole bombing and others, as well as terrorist activity against the United States subsequent to September 11, as well as the detainees who are at Guantanamo today who were captured on the battlefield in Afghanistan.

We have gone through each one of the detainees who were involved in specific incidents or who are battlefield-captured detainees and we have been able to gather intelligence from them that we simply would not have been able to get from anyone else. Many times what we have when we interrogate the detainees, we will know the answer to the question we are going to ask them. Sometimes it is information that was gleaned from detainee X, who was with detainee Y whom we are now interrogating. By virtue of the fact that we know information that we have already gleaned from detainee X, we can ask terrorist Y about it or detainee Y.

And you are going to get not only verification of what the first interrogated detainee tells you, but all of a sudden you are going to have an expanded story because this guy says, well, he knows this, and that is the case, so I may as well go ahead and tell him the rest of this.

That is kind of the way the interrogation process goes. What has happened at Guantanamo is that it has been there for a number of years now. September 11 is now 12 years behind us, but we are still gathering information from detainees at Guantanamo who have been there from the very first day it opened. We are gathering information on acts of violence that have occurred, but more significantly on the makeup of Al Qaeda, on who the members are, where they are located, where their headquarters were versus where they think the headquarters might be. There is such a valuable source of information to be gleaned from individuals one on one in the interrogation process that we simply can't get otherwise.

Let me refer a question to the Senator from New Hampshire. She was a prosecutor. She was the attorney general of New Hampshire and she prosecuted any number of criminal cases over the years as attorney general, including some very violent cases. She is familiar with the criminal process, obviously. She is familiar with individuals who have been convicted of crimes, and who, in some instances, were let out of jail when their time was up or whatever and those individuals reengaged in criminal activity, much like what we are seeing at Guantanamo today. The Senator and I have both talked about the recidivism rate being very high.

What is the Senator's opinion, as a long-time prosecutor, relative to these 164 individuals who remain at Guantanamo Bay today with regard to what she thinks is the possibility or the probability of their reengaging in the fight because of their long-term detention at Guantanamo?

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Mr. CHAMBLISS. Well, it certainly is. I think the Senator and I need to be very clear with our colleagues here as well as the American public. When it comes to the cost of detaining terrorists who carried out the horrific attacks of September 11, I think the American people are well prepared to use their taxpayer dollars to house guys such as Khalid Shaikh Mohammed, who has admitted to planning the September 11 attacks. If we house him in a prison here inside the United States and he gets Mirandized, I am sure the first thing he is going to do is to get a lawyer. The Senator and I are both lawyers, and we would be foolish not to tell our client to hush up, don't talk anymore. And that is exactly what he would do.

So the cost of detaining individuals who ripped this country apart on September 11, 2001, is not a consideration, in my mind, from the standpoint of whether we should house those folks for the rest of their lives.

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Mr. CHAMBLISS. Absolutely. No question about it. And if you do bring them to the United States, I guarantee that is the last bit of interrogation of any of those individuals that we will ever see.

The Senator mentioned bin Laden. I remember at a hearing in the Senate Armed Services Committee where the issue of bin Laden came up during a presentation by the current administration's Secretary of Defense. I asked the question with regard to Guantanamo Bay, and said: If you captured bin Laden tomorrow, what would you do with him? And to his credit, the Secretary of Defense looked me straight in the eye and said: Gee, Senator, I guess we would have to send him to Guantanamo. And he was right. There is nowhere in America where bin Laden would have been welcomed in the county jail or some Federal institution. I don't think there is any question about that. The 164 who are there today, in my mind, fit in that same category. Some of these individuals have never said one word to an interrogator since they have been there. Some of them--most of them, in fact--have been very open, and we still are gathering intelligence from them. But if we transfer them to the United States, that is the last we will hear from them.

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