[Congressional Record Volume 150, Number 117 (Friday, September 24, 2004)]
[Senate]
[Pages S9671-S9673]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RELEASE OF YASER HAMDI
Mr. LEAHY. Mr. President, at a hearing Wednesday before the Judiciary
Committee, I asked some tough questions about the record of the
Department of Justice in prosecuting terrorism cases. Later that day,
the Department announced the imminent release of Yaser Esam Hamdi, the
so-called ``enemy combatant'' who has been held for nearly 3 years
without being formally charged with any crime. During this period, the
Bush administration argued that it could deny Hamdi, a U.S. citizen,
due process and detain him indefinitely. In June, the Supreme Court
struck down the administration's assertion of unchecked executive
power, ruling that Hamdi had the right to challenge his detention.
Rather than proceed in court, the Justice Department now says that it
will release Hamdi, who will renounce his U.S. citizenship and join his
family in Saudi Arabia.
The Justice Department has claimed that Hamdi fought with the Taliban
and posed a threat to our national security. Hamdi claimed that he was
an innocent captured in Afghanistan by the Northern Alliance. We simply
do not know the truth. But, as the Rutland Herald correctly points out
in its editorial Thursday, that is what trials are for. If Hamdi was a
combatant, or a civilian caught up in a combat zone, he should have
been treated in accordance with the Geneva Conventions, which provide
for the treatment of soldiers and civilians in wartime. If Hamdi
committed a crime, he should have been charged and tried. The timing of
his release is curious. Three months after the Supreme Court rejected
the administration's refusal to grant Hamdi due process, the Justice
Department suddenly determined that Hamdi no longer posed a threat. Now
it will release a person it previously claimed was so dangerous that he
had to be held for years in a military brig, mainly in solitary
confinement.
The Attorney General relied on powerful rhetoric to defend the
Department's record. He liked to say that no one had successfully
challenged the Government's use of authority under the PATRIOT Act and
that no court had found the Government had overreached. Since the
Supreme Court decisions on Hamdi and related cases last summer, it has
become harder for him to make such claims. Those Court decisions do not
stand alone in defining the Department's level of success, however. The
list of reversals of this Administration's policies and practices has
become extensive. From the Department's involvement in rewriting our
country's adherence to the Geneva Convention and the Convention Against
Torture, which contributed to the breakdown at the Abu Ghraib prison
and elsewhere, to the Supreme Court's rejection of the administration's
Guantanamo practices, there is much that needs attention and
correction.
Indeed, the Justice Department has accumulated one loss after another
in terrorism cases. In recent weeks, we have witnessed the unraveling
of the Department's first post-September 11 prosecution of a terrorist
sleeper cell in Detroit. This followed on the heels of a growing list
of losses and questionable cases, including the wrongful arrest of a
Portland attorney based on a fingerprint mismatch; the acquittal of
[[Page S9672]]
a Saudi college student who was charged with providing material support
to terrorists; the release on bail of two defendants in Albany, NY,
after the Government admitted having mistranslated a key piece of
evidence--the evidence referred to one defendant as ``brother,'' not
``commander,'' as originally represented; the collapse of all charges
against Muslim chaplain, James Yee, an Army Captain who served at
Guantanamo and was originally accused of espionage; and the Supreme
Court's repudiation of the administration's claim that it can hold
citizens indefinitely as ``unlawful combatants,'' without access to
counsel or family. In addition to announcing its decision to release
Hamdi 2 days ago, the Government also folded its case against Ahmad al
Halabi, a Senior Airman who served as a translator at Guantanamo Bay.
Al Halabi once faced the death penalty for spying. He ultimately pled
guilty to four minor charges, such as photographing a guard tower and
taking a classified document to his quarters; other charges were
dropped.
The fact is, there have been only a few real victories in cases that
have brought terrorism charges since 9/11, and these have been
overshadowed by seemingly half-hearted prosecutions. We all remember
the antiterrorism sweeps that occurred after 9/11. The Justice
Department detained over 5,000 foreign nationals in those sweeps, but,
as law professor David Cole points out in an article in the October 4,
2004, edition of The Nation, not a single one of them was charged with
terrorism.
Department officials say their record since the 2001 attacks reflects
a successful strategy of catching suspected terrorists before they can
launch deadly plots, even if that involves charging them with lesser
crimes. I certainly will not contest that lesser crimes are being
charged. According to the Transactional Records Access Clearinghouse
(TRAC), of the approximately 184 cases disclosed as ``international
terrorism'' matters, 171 received a sentence of one year or less. But
is that making us safer? What exactly happens to a suspected terrorist
who spends 6 months in prison and then is deported to his country of
origin in the midst of a war that has no end in sight? Does it really
squelch deadly plots?
The administration has yet to answer pointed questions about the
deportation of Nabil al-Marabh to Syria, a nation that is a state
sponsor of terrorism. Al-Marabh was at one time Number 27 on the FBI's
list of Most Wanted Terrorists, and experienced prosecutors wanted to
indict him. Why was he released? According to court records, Al-Marabh
shared an address with defendants in the Detroit case who are now
facing only document fraud charges. What is going on here?
We still await the resolution of the case against Jose Padilla. The
Attorney General made a frightening announcement from Moscow when Jose
Padilla was arrested--as if the Government had miraculously averted a
radioactive ``dirty bomb'' from being detonated in our heartland. As
Deputy Attorney General James Comey represented to the Federal courts a
few months ago, the Government no longer even contends that Mr. Padilla
was engaged in a ``dirty bomb'' plot. We have yet to see criminal
charges against him, but I hope that we will. The Attorney General
always finds time to announce allegations and dangers to frighten the
American people but never seems to have time to be accountable when
those specters prove false, when criminal cases can not be made, or
when the Government has overreached or when innocent Americans have
been unfairly accused.
We will soon be asked to give the Government more tools, more powers,
and even greater authorities. I hope that we will not be asked to add
PATRIOT Act-related powers to legislation to implement 9/11 Commission
recommendations. The families of 9/11 victims have asked us to focus
only on those actions endorsed by the Commission. We should honor this
request. Before Congress considers granting the Government more powers
to add to the Federal arsenal, we must determine which tools are
actually being used, and how are they working? Which tools are subject
to abuse, and which need to be modified? I hope that we can start
getting some of those answers.
I ask unanimous consent to print in the Record the Rutland Herald
editorial and The Nation article I mentioned earlier.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Rutland Herald, Sept. 23, 2004]
Constitutional Victory
One of the most alarming abuses in President Bush's war on
terrorism has come to a peculiar resolution. On Wednesday the
government announced it would release Yaser Hamdi from
custody.
Hamdi is an American citizen, born in Louisiana, and an
Arab whose family lives in Saudi Arabia. U.S. forces gained
custody of Hamdi when Northern Alliance officials handed him
over during the war in Afghanistan. The U.S. military was
rounding up Taliban fighters, and Hamdi ended up in
Guantanamo, Cuba.
Hamdi said he was wrongfully captured by the Northern
Alliance in northern Afghanistan and was wrongfully
imprisoned by the U.S. military. But the Bush administration
viewed him as an ``enemy combatant,'' a designation that led
to the government's asserted claim that it had the power to
rob Hamdi of all his rights.
It is unknown whether Hamdi is telling the truth when he
says he had nothing to do with the Taliban and was not
involved in the Afghan war. In America that is what trials
are for. Until found guilty of a crime, suspects are presumed
innocent and are protected by an array of constitutional
rights.
These rights ought to be cherished by every American.
Otherwise each person is vulnerable to government abuse.
These include the right to legal representation, the right to
know the charges one is facing, the right to bail, and the
right to a speedy and fair trial. Unrestrained by these
rights, the government could jail any one of us on the
flimsiest of excuses--or with no excuses.
It was a shocking event when the Bush administration
claimed it had the power to deny Hamdi all of those rights.
The claim was not made on the basis of any evidence or
charge. Bush was asserting he had the right to declare anyone
he saw fit to be an enemy combatant and to lock him or her up
with no trial, no charges, no legal representation.
Hamdi was just one man; there is one other, Jose Padilla,
who is being held on similar charges. But the power arrayed
against him was the power of a police state--until the
Supreme Court stepped in.
In June, the court ruled, 8-1, that Bush did not have the
power to discard the Constitution and that Hamdi had the
right to contest his detention. It was a victory celebrated
by civil libertarians of the left and the right. Then on
Wednesday the government announced it would release Hamdi to
Saudi Arabia, where he would rejoin his family, and he would
renounce his U.S. citizenship.
So for nearly three years the U.S. government, on the say
of President Bush, held a U.S. citizen in solitary
confinement on no charges. The Supreme Court has shown that,
in our constitutional system, the judiciary remains an
essential line to protect us against governmental abuse.
Authoritarian regimes frequently cite dangers to civil order
as an excuse to round up and jail people who are out of
favor. In Bush's hands the war on terrorism had become a war
on the Constitution. It appears that, fortunately, this time
the Constitution has won.
____
[From the Nation]
Taking Liberties
(By David Cole)
On September 2, a federal judge in Detroit threw out the
only jury conviction the Justice Department has obtained on a
terrorism charge since 9/11. In October 2001, shortly after
the men were initially arrested, Attorney General John
Ashcroft heralded the case in a national press conference as
evidence of the success of his anti-terror campaign. The
indictment alleged that the defendants were associated with
Al Qaeda and planning terrorist attacks. But Ashcroft held no
news conference in September when the case was dismissed, nor
did he offer any apologies to the defendants who had spent
nearly three years in jail. That wouldn't be good for his
boss's campaign, which rests on the ``war on terrorism.''
Here, as in Iraq, Bush's war is not going a well as he
pretends.
The Detroit case was extremely weak from the outset. The
government could never specify exactly what terrorist
activity was allegedly being planned and never offered any
evidence linking the defendants to Al Qaeda. Its case
consisted almost entirely of a pair of sketches and a
videotape, described by an FBI agent as ``casing materials''
for a terrorist plot, and the testimony of a witness of
highly dubious reliability seeking a generous plea deal. It
now turns out that the prosecution failed to disclose to the
defense evidence that other government experts did not
consider the sketches and videotape to be terrorist casing
materials at all and that the government's key witness had
admitted to lying.
Until that reversal, the Detroit case had marked the only
terrorist conviction obtained from the Justice Department's
detention of more than 5,000 foreign national in
antiterrorism sweeps since 9/11. So Ashcroft's record is 0
for 5,000. When the Attorney General was locking these men up
in the immediate wake of the attacks, he held almost daily
press conferences to announce how many ``suspected
terrorists'' had been
[[Page S9673]]
detained. No press conference has been forthcoming to
announce that exactly none of them have turned out be actual
terrorists.
Meanwhile, despite widespread recognition that Abu Ghraib
has done untold damage worldwide to the legitimacy of the
fight against terrorism, the military has still not charged
any higher-ups in the Pentagon, and the Administration has
shown no inclination to appoint an independent commission to
investigate. It prefers to leave the investigation to the
Justice Department and the Pentagon, the two entities that
drafted secret legal memos defending torture.
And in late July, resurrecting the ideological exclusion
practices so familiar form the cold war, the Department of
Homeland Security revoked a work visa for a prominent Swiss
Islamic scholar who had been hired by Notre Dame for an
endowed chair in its International Peace Studies Institute,
DHS invoked a Patriot Act provision that, like the McCarran-
Walter Act of the cold war, authorizes exclusion based purely
on speech. If a person uses his position of prominence to
``endorse'' terrorism or terrorist organization, the Patriot
Act says, he may not enter the United States. The McCarran-
Walter Act, on the books until its repeal in 1990, was used
to exclude such ``subversives'' as Czeslaw Milosz and Graham
Greene. This time the man whose views are too dangerous for
Americans to hear firsthand is Tariq Ramadan, a highly
respected intellectual and author of more than twenty books
who was named by Time magazine as one of the hundred most
likely innovators of the twenty-first century.
Notre Dame is not known as a hotbed of Islamic extremism--
and Ramadan is no extremist. He argues for a modernized
version of Islam that promotes tolerance and women's rights.
Two days after 9/11 he called on fellow Muslims to condemn
the attacks. In short, Ramadan is precisely the kind of
moderate voice in Islam that the United States should be
courting if it hopes to isolate Al Qaeda. The barring of
Ramadan reinforces the sense that the Administration cannot
or will not distinguish between moderates and extremists and
is simply anti-Muslim.
What is most troubling is that none of these developments--
the revelation of prosecutorial abuse in the interest of
obtaining a ``win'' in the war on terrorism; the continuing
failure to hold accountable those most responsible for the
torture at Abu Ghraib; and the exclusion of a moderate Muslin
as too dangerous for Americans to hear--is an isolated
mistake. Rather, they are symptoms of a deeper problem. The
President thinks he can win this war by ``acting tough'' and
treating the rule of law and constitutional freedoms as
optional. With enough fearmongering, that attitude may win
him the election. But it will lose the war. Bush is playing
right into Al Qaeda's hands by further alienating those we
most need on our side.
____________________