[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.

                          ____________________