[Congressional Record Volume 149, Number 174 (Tuesday, November 25, 2003)]
[Senate]
[Pages S16008-S16010]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BINGAMAN:
  S. 1966. A bill to require a report on the detainees held at 
Guantanamo Bay, Cuba; to the Committee on Armed Services.
  Mr. BINGAMAN. Mr. President, I want to speak for just a few minutes 
today on an issue on which I have introduced a bill. The bill is S. 
1966. It is a bill to require a report on the detainees being held at 
Guantanamo Bay, Cuba.
  The purpose of this legislation is to shed some light on the process 
that is being used by this administration to determine the status of 
so-called enemy combatants who are held by our Government at Guantanamo 
Bay Naval Base. It has now been nearly 2 years since the first 
detainees arrived at Guantanamo as prisoners of the United States. Yet 
these individuals are still being held in what most would refer to as 
legal limbo.
  My colleagues will recall that on July 16, I urged the Senate to 
adopt an amendment to the Defense appropriations bill. That amendment 
was tabled 52 to 42. It is essentially the same provision--it contained 
the same provisions I have now put into S. 1966, this freestanding 
legislation I have introduced.
  The day after that amendment was defeated I sent a letter to 
Secretary Rumsfeld expressing my concern over the apparent lack of any 
kind of legal process being extended to the detainees being held at 
Guantanamo. Only recently I received a reply from the Department of 
Defense. In that letter, the Department of Defense maintains that it:

       . . . reviews on a regular basis the continued detention of 
     each enemy combatant and assesses the appropriate disposition 
     of each individual case.

  According to the Defense Department, at the time they wrote back to 
me, they said that the review had resulted in the release of 64 
detainees who were determined to no longer pose a threat to the United 
States, and more releases were expected.
  However, the letter fails to address the more important question, 
which is whether the Department's review of these detainees is being 
done in accordance with any recognized civilian or military legal 
process.
  I ask unanimous consent to have the letter printed in the Record at 
the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. BINGAMAN. What prompted me to come to the floor of the Senate 
today was an article I saw in the morning paper. This appeared in 
various papers around the country, but the one I have here in front of 
me is from the Boston Globe. It says:

       The U.S. military sent home 20 ``enemy combatants'' last 
     weekend who were being held without trial at Guantanamo Bay 
     Naval Base in Cuba, only to replace them with the same number 
     of new prisoners.
  It has a quotation from a spokesperson for the military saying:

       We cannot talk about any of the individuals that may have 
     departed the island due to security concerns.

  According to this article, all those transferred last week have been 
returned, many of them to Pakistan, and all of those transferred last 
weekend, according to representatives from the countries they are 
citizens of, said they will be released once they have arrived in those 
countries.
  The figure now, as I understand it, is there are 88 suspects who have 
been transferred out of Guantanamo Bay. Four were released, 4 were 
handed over to Saudi Arabia, and the remaining 650 or 700 are still 
there. As this article indicated, we continue to add additional people 
to this prison we are operating there at Guantanamo.
  There are various complaints described in the article by foreign 
diplomats about the process we are following. There is a statement by 
the attorney for one of the human rights organizations that has 
complained bitterly about the improvisational policy decisions and the 
arbitrary power over prisoners at the base.
  My motives for offering this legislation are very simple. While I 
obviously have concerns about judicial treatment and the failure of any 
kind of legal process being followed in the treatment of these 
detainees in Guantanamo, I am even more concerned about the 
implications of this treatment we are affording these individuals for 
our own fighting forces as well as our international reputation.
  The bill I filed here in the Senate today requires the Secretary of 
Defense to report on the status of these detainees, including the 
process that was utilized to determine that status for those who have 
already been released from Guantanamo. The bill requires the Secretary 
to provide information related to this release, how long they were 
detained, the conditions of their release, if any, the explanations of 
why the Department of Defense has now determined these individuals 
could be released after what has in many cases been a very long 
detention.
  For the remaining detainees--those who are still at Guantanamo--the 
administration has still refused to provide ``access to an impartial 
tribunal to review whether any basis exists for [detainees] continued 
detention.'' The detainees have not been allowed to speak with their 
families or their counsel, nor have they been informed of any charges 
against them, as far as I am informed.
  The bill I filed requires that within 90 days of its enactment the 
Secretary of Defense provide the Senate with information related to the 
process used to categorize and hold these detainees. It does not call 
for release of the detainees. It does not in any way, shape, or form 
require the release of any classified information other than to the 
chairman and vice chairman of the Senate and House committees. The 
amendment merely seeks to clarify for the Senate and for the Congress 
the process by which the detainees' status is determined.
  Like most Americans, I have always thought that what distinguished 
our country in the history of the world was our commitment to 
individual freedom and to the rule of law; that the bedrock of a free 
society is the obligation taken by the Government to afford individuals 
with certain legal protections, and as a Nation committed to these 
principles we have been instrumental in the formulation and enforcement 
of international law, particularly when it came to the treatment of 
prisoners of war. For over 75 years, the United States has adhered to 
the Geneva Convention. Even during conflicts with insurgents and 
irregular forces, we have adhered to the Geneva Convention. Whenever 
our Nation has gone to war, we have taken pride in going above and 
beyond the requirements of international law as set out in the third 
Geneva Convention of 1929. In fact, the Department of Defense has 
adopted its own detailed regulations and doctrine and field manuals 
built on the provisions of the Geneva Convention which have guided our 
military through many conflicts regardless of size and scope and 
duration.

  These regulations we have in our own military, like international 
law, do not contemplate the legal limbo we are holding these detainees 
in at Guantanamo. Neither the Geneva Convention nor the established 
military regulations define or use the term the President is using 
here. This term, unlawful combatant, is a new term which has come up in 
order to sidestep the requirements both of the Geneva Convention and of 
our own military regulations. Army Regulation 190-8 provides an 
effective and efficient process to

[[Page S16009]]

categorize the detainees on the battlefield. According to that 
provision, detainees must be classified either as an enemy prisoner of 
war, a recommended retained person entitled to enemy prisoner-of-war 
protections, an innocent civilian who should be immediately returned to 
his or her home or released, or a civilian internee who, for reasons of 
operational security, or probable cause incident to criminal 
investigation, should be retained. Such internees have the right to 
appeal the order directing their internment by challenging the 
existence of imperative security reasons that led to their detention.
  The President's unilateral determination of the detainee's status at 
Guantanamo Bay signals a significant departure from the spirit of the 
Geneva Convention and a significant departure from the letter of 
established military regulations. In stark contrast to our Government's 
previous commitment to adherence to the rule of law and human rights, 
this administration has adopted a position that once the President 
designates that a person is a so-called enemy combatant or unlawful 
combatant, a term created by the administration, that person can be 
locked up and held incommunicado as long as the President desires, with 
absolutely no legal rights; no right to review of that decision. This 
means even if the administration makes a mistake or is given faulty 
information, it is virtually impossible for the person involved to 
prove his or her innocence because not only can they not talk to a 
lawyer or to family members, but they do not have the right even to 
know what they are being charged with.
  The U.S. Supreme Court has agreed to consider the narrow question of 
whether the Federal courts have the power to hear challenges to the 
detainees' imprisonment. This is a significant move towards restoring 
the system of checks and balances, which needs to be restored--the 
system of checks and balances our Founders felt was essential to 
preserving liberty in the country. Similarly, the bill I have filed 
begins to fulfill Congress's constitutional responsibility to oversee 
what the executive branch does. It calls on the administration to tell 
us whether its actions are in accordance with military regulations and 
doctrine.
  Our goal is to bring transparency to the issue and to fulfill 
Congress's constitutional role of oversight of the executive. We should 
know what process the administration is using to determine the status 
of these detainees.
  My concern is much broader than what happens to these particular 
detainees. I am concerned about the impact of our treatment of these 
detainees on the treatment of our own military personnel who are 
captured in future conflicts. Former U.S. diplomats and judge advocate 
generals and even former U.S. prisoners of war filed ``friend of the 
court'' briefs in the Supreme Court questioning the legality and wisdom 
of the administration's policy of open-ended detentions at Guantanamo. 
Some of those briefs were extremely thoughtful, in my view. One former 
diplomat wrote:

       It has been the experience of each of us that our most 
     important diplomatic asset has been this Nation's values. . . 
     . The hint that America is not all that it claims, that it . 
     . . can accept that the Executive Branch may imprison whom it 
     will and do so beyond the reach of due process of law demeans 
     and weakens this Nation's voice abroad.

  In their brief, former judge advocate generals, the military's legal 
prosecutors and those most familiar with the law as it applies to enemy 
prisoners of war, strongly argue:

       To be sure, this is a perilous time, as the President has 
     stated. But that does not justify indefinite confinement 
     without any type of hearing or judicial review. The United 
     States played a major role in the development and adoption of 
     the Geneva Conventions. The requirements of those 
     Conventions. The requirements of those Conventions are 
     incorporated directly into American Military Regulations. 
     American failure to provide foreign prisoners with the 
     protections of the Geneva Conventions may well provide 
     foreign authorities, in current or future conflicts, with an 
     excuse not to comply with the Geneva Conventions with respect 
     to captured American military forces.

   Just as compelling are the stories told in the ``friends of the 
court'' brief filed by former prisoners of war. They argue that as a 
result of their own experience as prisoners of war, the United States 
has an interest ``in fostering the development, acceptance and 
enforcement of international norms pursuant to which prisoners of war 
and others captured during armed conflicts will be treated humanely and 
in accordance with the rule of law.'' They emphasize, that in 
particular, they ``wish to ensure that the treatment by the Untied 
States of foreign detainees . . . is such that the United States and 
former American POWs retain the moral authority to demand fair and 
humane treatment for any future Americans detained by foreign 
governments.''

  However, nothing more clearly demonstrates this point than the actual 
stories themselves. Leslie H. Jackson, Edward Jackfert, and Neal 
Harrington are former prisoners of war. Mr. Jackson was captured by the 
Germans, who adhered to the Geneva Conventions. Mr. Jackfert and Mr. 
Harrington were held by Japan, which had not ratified and did not 
purport to follow international law.
  If you will allow me to read them their brief:

       Mr. Jackson was captured by the German Army on April 24, 
     1944, when his B-17 bomber crashed. Jailed and interrogated 
     for approximately one week, he was then transported to Stalag 
     17, a converted concentration camp. In his 13 months of 
     captivity, Mr. Jackson was granted the bare necessities: 
     shelter, minimal food, and the ability to socialize with 
     other American POWs. While the experience was harsh and 
     unpleasant, Mr. Jackson was never tortured or otherwise hurt 
     by the German guards. To follow the terms of the Geneva 
     Conventions of 1929, to which Germany was a party, Mr. 
     Jackson's German captors placed the appropriate Geneva 
     Convention signage in the barracks, permitted the 
     international Red Cross to ship basic necessities to POWs, 
     and allowed a Geneva inspector to survey the premises. Mr. 
     Jackson believes that his survival and relatively good health 
     while in captivity are the result of the German Army's 
     adherence to the 1929 Geneva Conventions.
       The experiences of Mr. Jackfert and Mr. Harrington in the 
     custody of Japan, which had not ratified and did not purport 
     to follow the 1929 Geneva Conventions, offer a sharp 
     contrast. Both men were serving with the U.S. Army in the 
     Philippines when it surrendered to the Japanese in 1942, and 
     both subsequently served several years of hard captivity 
     beyond the reach of any Geneva Convention protections. Both 
     were part of the Bataan Death March and its well-documented 
     horrors. Mr. Harrington was forced into slave labor in a 
     Japanese coalmine, and saw his compatriots starved, beaten 
     and killed. Mr. Jackfert was also forced into slave labor 
     and suffered the extreme effects of heavy labor, cruelty 
     and inadequate nourishment, going from 125 pounds to 90 
     pounds in a matter of months. There was no Geneva signage, 
     no recognition of prisoner rights, and virtually no Red 
     Cross access.
       Nor were the experiences of Mr. Harrington and Mr. Jackfert 
     atypical. Studies have determined that the death rate of U.S. 
     Military personnel interned by Japan was as high as 40 
     percent while the death rate of personnel captured and 
     interned by Germany was little more than 1 percent. . . . 
     Moreover, while it was rare for American POWs detained in 
     Germany to be tortured, the opposite was true for American 
     POWs in Japan. No one can adequately impart the suffering 
     most allied prisoners endured [in Japan]. . . . They were 
     beaten, kicked, robbed . . . and were buried alive. . . . 
     [T]he overwhelming majority endured ``hell on earth.''

  Again, let me say, I am in no way suggesting that the detainees are 
not being treated humanely. In fact, from all information I have 
received, they are being treated humanely. But what I and these briefs 
that were filed in the Supreme Court are suggesting is that our failure 
to adhere to some recognized legal process in determining the status of 
these detainees opens the door for other countries to refuse to adhere 
to any legal process as well. It may very well result in arbitrary 
confinement and harsh treatment or other inhumane practices applied to 
our own citizens.
  This bill will help Congress fulfill its duties and obligations as 
outlined in the Constitution and in U.S. law and regulation.
  I hope we can quickly pass this legislation when we return for the 
second session of the Congress in January.
  I yield the floor.

                               Exhibit 1

                 [From the Boston Globe, Nov. 25, 2003]

          US Releases 20 Detainees, Transfers 20 More to Cuba

                          (By Charlie Savage)

       Washington.--The U.S. military sent home 20 ``enemy 
     combatants'' last weekend who were being held without trial 
     at Guantanamo Bay naval base in Cuba--only to replace them 
     with the same number of new prisoners.
       The prisoner transfer, the first such movement since mid-
     July, followed a determination by senior military and 
     intelligence officials that the outgoing group ``either no

[[Page S16010]]

     longer posed a threat to U.S. security or no longer required 
     detention by the United States,'' according to a statement 
     the Department of Defense released yesterday.
       ``We can't talk about any of the individuals that may have 
     departed the island due to security concerns,'' said 
     Lieutenant Colonel Pamela Hart, a spokeswoman for the 
     isolated facility at which the United States detains and 
     interrogates suspected terrorists.
       But a high-ranking Pakistani official, who said yesterday 
     that at least five of the outgoing transferees were Pakistani 
     citizens, offered a chilly reaction to the Pentagon's news.
       ``The government is happy, but this is too damn late,'' 
     said Imran Ali, second secretary of the Pakistan Embassy, 
     adding that 21 Pakistanis have been released from Guantanamo, 
     but another 37 are still there.
       ``Their lives have been destroyed. Their families have gone 
     through psychological trauma, since they were not terrorists; 
     they were just low-level Taliban fighters.''
       The Pakistani official's reaction illustrated the pressure 
     on the United States to resolve the situation--especially 
     from allies in the war on terrorism who have expressed 
     concern for their citizens who are among the 660 prisoners 
     from 42 countries being held at the base.
       Although the State Department has been negotiating with a 
     number of countries to continue the detention of some, all 
     those transferred last weekend will be released by their 
     countries, U.S. officials said.
       The Pentagon statement said that ``at the time of their 
     detention, these enemy combatants posed a threat to U.S. 
     security.'' It offered little information about the new 
     arrivals, except that they were transferred from U.S. Central 
     Command in the Middle East.
       Navy Lieutenant Commander Barbara Burfeind, a Pentagon 
     spokeswoman, said none of the new detainees were captured in 
     Iraq.
       The weekend transfers of the detainees bring to 88 the 
     number of Al Qaeda or Taliban suspects who have been 
     transferred out. Of those, 84 were released and four were 
     handed over to Saudi Arabia.
       Ruth Wedgwood, an international law professor at Johns 
     Hopkins University, said the arrival of the 20 new detainees 
     follows a flare-up of fighting by Taliban insurgents in 
     Afghanistan.
       Wedgwood has defended the Bush administration's position 
     that the rules of the Geneva Conventions do not apply to the 
     detainees because they were not soldiers of a regular Afghan 
     army.
       ``Dismayingly, the Taliban have become very active again in 
     the southern area, so really . . . the war isn't over in that 
     area,'' she said.
       Not among those who were transferred for release, according 
     to a senior Pentagon official, were the three ``juvenile 
     enemy combatants''--Afghans ages 13 to 15 who were captured 
     fighting alongside the Taliban and whose detention at the 
     prison has attracted particularly intense international 
     criticism. The commander of Guantanamo operations, Major 
     General Geoffrey Miller, had recommended that they be sent 
     home in August.
       U.S. officials say they have been coordinating with UNICEF 
     in the event that the young fighters are released. UNICEF, a 
     United Nations agency that has offered to handle the juvenile 
     combatants, runs a program to ease the reintegration of 
     former child soldiers back into their home societies.
       ``The State Department and UNICEF will make sure that if 
     they're returned to Afghanistan, they won't just be plopped 
     down,'' a Pentagon official told The Boston Globe last week.
       Ken Hurwitz of the Lawyers Committee for Human Rights, a 
     New York-based organization, said that the surprise release 
     reflected the military's ``improvisational'' policy decisions 
     and its arbitrary power over the prisoners at the base.
       ``It's the rule of law that's the point,'' he said. 
     ``They're saying, `Trust us, and we'll do the right thing.' 
     But there is no right thing unless it's pursuant to some kind 
     of ordered, lawful proceeding.''
       Challenges to the detentions that have been filed in 
     federal court have so far been dismissed because the base is 
     located on Cuban soil--it has been leased and controlled by 
     the United States for a century--and outside the jurisdiction 
     of U.S. sovereignty. Two weeks ago, the Supreme Court said it 
     would review the question of whether federal court 
     jurisdiction may extend there.
       In a related development, the lawyer for Army Captain James 
     ``Yousef'' Yee, the former Muslim chaplain at Guantanamo who 
     was arrested in September in the alleged mishandling of 
     classified material, sent a letter to President Bush 
     yesterday asking that his client be released from pretrial 
     detention for Thanksgiving and his daughter's birthday.
       ``These charges do not warrant pretrial confinement of any 
     kind,'' Eugene Fidell wrote in the letter. ``While military 
     sources initially reported a wild laundry list of suspected 
     offenses, such as spying or aiding the enemy, these have now 
     been reduced to two relatively minor [charges]. . . . 
     Nonetheless, he is being treated as if the original laundry 
     list of charges was the legal basis for his confinement. This 
     is totally wrong and unfair.''
       Sean McCormack, a spokesman for the National Security 
     Council, said he would look into the letter, but had no 
     comment on the president's behalf.

                                 ______