[Congressional Record Volume 151, Number 167 (Wednesday, December 21, 2005)]
[Senate]
[Pages S14309-S14311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
GUANTANAMO PRISONERS
Mr. BINGAMAN. Mr. President, I rise today to express my strong
disagreement with the language in the Defense appropriations and
Defense authorization conference reports concerning the treatment of
prisoners being held in Guantanamo Bay, Cuba.
Under the McCain amendment, U.S. personnel are prohibited from
engaging in torture or cruel, inhuman, or degrading treatment. I
strongly support this. This ban applies to all military and
intelligence personnel regardless of where they are located throughout
the world. This is a clear statement that the United States will abide
by its obligation to follow the law, and it is a step forward in
reinstating our Nation's moral authority.
However, the Graham amendment would undercut much of what we are
accomplishing with the McCain amendment in two respects. First, it
would undercut our commitment to prohibiting the use of torture by
allowing evidence produced as a result of torture to be used in
military legal proceedings. Second, it would undercut any enforcement
of this prohibition by barring individuals from seeking judicial review
of the legality of their detention or bringing a suit to stop unlawful
treatment.
When the Graham-Levin compromise passed the Senate, it had some good
language in it, and it had some very troubling language.
On the good side, the amendment provided that the Combatant Status
Review Tribunals at Guantanamo, which are charged with determining
whether individuals should be classified as so called enemy combatants,
are not allowed to use evidence that is derived through ``undue
coercion,'' such as torture. This was an important step forward. We
should not be relying on information that is inherently unreliable in
deciding whether to indefinitely detain a person. Unfortunately, this
provision is now gone.
In the conference report the outright prohibition on using evidence
derived through torture was replaced with a mere assessment of whether
the evidence has been derived through coercive means, such as torture,
and whether the evidence has any probative value. I would hope that a
military tribunal assessing such evidence would realize that evidence
derived through torture is not reliable. However, as drafted, this bill
would allow a Combatant Status Review Tribunal to use evidence derived
through torture if the tribunal finds that the evidence is helpful.
To the best of my knowledge this would be the first time in U.S.
history that the United States would be on record as allowing this type
of evidence in any type of legal proceeding. This is wrong and a huge
step backwards.
Furthermore, from a practical standpoint the assessment with regard
to whether the evidence is derived though torture is essentially
pointless. The conference report states that this assessment is only
applicable prospectively. The problem is that of the over 500 prisoners
being held at Guantanamo, every single one has already undergone a
status hearing to determine whether or not they are an ``enemy
combatant.'' Under the existing procedures, there is no exclusionary
rule prohibiting the use of evidence derived through torture.
Therefore, the Government may be basing its finding that some of these
prisoners are ``enemy combatants'' on faulty evidence that is
completely unreliable.
Let me provide an example of why this language is so problematic.
Suppose a person is detained by the U.S. Government and handed over to
a foreign intelligence service for interrogation. While U.S. personnel
are prohibited from using interrogation techniques that amount to
torture or cruel, inhuman, or degrading treatment, other countries use
interrogation techniques, such as electric shock or pulling off a
person's fingernails, which do not comply with this standard. If a
person is tortured while in the custody of one of these intelligence
services, any statements that the person makes, either incriminating
himself or another person, could be admissible in the Combatant Status
Tribunal Review, or CSRT, process. Frankly, I, and most people, would
confess to nearly anything to avoid the harshest forms of torture. We
should not be permitting the use of this type of evidence in any legal
proceeding.
It is inconsistent to say that we will prohibit the use of torture by
our military and intelligence personnel because it is legally and
morally repugnant, but we will allow evidence derived in this manner to
be used in our military proceedings. ``We don't do it, but if you do it
we will use it,'' is hardly a position of clarity with regard to our
commitment to uphold the prohibition on torture, or cruel, inhuman, or
degrading treatment.
The conference report also limits the ability of a prisoner at
Guantanamo to file a writ of habeas corpus. This fundamental right has
its foundation in the Magna Carta and is enshrined in our Constitution.
Simply, it is the right to go to court when a person is detained by the
Government and ask whether or not one's detention is justified.
Contrary to how this right was characterized during debate on this
bill, this is not about prisoners suing to get access to DVD movies or
because they are unhappy with the type of peanut butter that they are
being served--the Great Writ, as habeas is known, is meant to provide a
basic check in preventing the Executive Branch from exercising
unfettered authority in imprisoning individuals without judicial
review.
The fact is that mistakes happen. For example, take the recent case
of the innocent German citizen who was picked up by the CIA in
Macedonia and flown to a prison in Afghanistan where he was held in a
secret facility for over 5 months because he was thought to be involved
in terrorism--he wasn't. We made a mistake. Judicial review is
important in reducing the likelihood that we are wrongfully imprisoning
people, and we should have a viable process for weeding out these
mistakes.
According to news reports, commanders in Guantanamo have estimated
that 70 percent of the individuals imprisoned there may be no threat at
all. Whether this number is correct or not, it is reasonable to require
that there be some meaningful judicial review in place to make sure
that we are not indefinitely imprisoning people who pose no threat. If
you are going to hold someone indefinitely for years on end without
affording them a trial, I think it is fair to allow a person to
challenge the basic legality of their detention.
The Graham amendment, as it passed the Senate, restricted habeas
corpus.
Unfortunately, the conference report goes much further. It also
prohibits a prisoner from bringing ``any other action'' against the
Government regarding ``any aspect'' of their detention. This is an
excessively broad restriction. It seems to eliminate all other causes
of action, including the ability of a person to bring a suit to stop
ongoing torture. This significantly undermines the McCain amendment.
Ultimately, I have confidence that a court will hold that this
provision is overly broad and unconstitutional.
In addition, it is also important to note what the conference report
does not do. The language contained in the conference report limits
access to U.S. courts. But the conference report does not provide an
exception for people who have been found not to be a threat and have
been determined to be ``non-enemy combatants.''
Recently, the Washington Post has done a series of articles
highlighting the plight of the ethnic Uighurs, who are Chinese Muslims
opposed to the Communist government in China and who are seeking their
own homeland in northwestern China. Mr. President, I ask unanimous
consent that these Washington Post articles be inserted into the Record
at the end of my statement.
The Department of Defense has been holding a group of Uighurs in
Guantanamo for the last 4 years. CSRT hearings have been held for these
individuals, and the Department of Defense has determined that they are
``non-enemy combatants.'' They are not a threat to our country and are
not part of the al Qaida terrorist organization. The problem is that
despite the finding
[[Page S14310]]
that they are not ``enemy combatants,'' the Defense Department has
refused to release them from Guantanamo because it can't find a country
to take them--if they are sent to China they will likely be arrested
and tortured, and countries such as Saudi Arabia, where many have lived
previously, won't take them back. And the United States will not allow
them to enter our country because it does not want them to apply for
asylum.
In essence, we are taking away the right of a person who is being
held without charge, indefinitely, to go to court and ask for their
release after the Department of Defense has said that they are
essentially innocent. Not only is this repugnant to our Nation's
values, it is also blatantly unconstitutional.
Mr. President, over the last several years this administration has
diminished our standing in the world by backing away from our
longstanding commitment to human rights and the rule of law. I look
forward to the day when the United States is once again viewed as a
leader in this regard.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Dec. 15, 2005]
Detainee Cleared for Release is in Limbo at Guantanamo
(By Josh White and Robin Wright)
When U.S. forces freed Saddiq Ahmad Turkistani from a
Taliban prison in Kandahar, Afghanistan, in late 2001, the
detainee met with reporters at a news conference and told
U.S. officials that he had been wrongly imprisoned for
allegedly plotting to kill Osama bin Laden.
An ethnic Uighur who was born and raised in Saudi Arabia,
Turkistani said he believed in the U.S. campaign against
terrorism. He professed hatred for al Qaeda and the Taliban--
groups he said tortured him in prison--and offered to help
the United States. Intelligence officials and U.N.
representatives told Turkistani they would seek to find him
refuge, possibly in Pakistan, according to accounts he later
gave his lawyers.
Instead, Turkistani was taken to a U.S. military base in
Afghanistan, where he was stripped, bound and thrown behind
bars. U.S. officials then strapped him into an airplane,
fitted him with dark goggles and sent him to the U.S.
detention facility at Guantanamo Bay, Cuba, in January 2002,
according to U.S. lawyers who represent him.
Nearly four years later, Turkistani remains there, despite
being cleared for release early this year after a government
review concluded he is ``no longer an enemy combatant.'' It
is unclear exactly when that determination was made, but
Justice Department lawyers gave notice of it in an Oct. 11
court filing.
Turkistani wrote a letter to his lawyers in recent months,
in which he asked about the welfare of his family, whom he
has not heard from in eight years: ``Now, I have been under
the control of the Americans for the past three years and
eight months. Six months ago, I was told by the Americans
that I am innocent and I am not an enemy combatant.''
It remains a mystery why Turkistani was sent to Guantanamo
Bay at all. Some officials and his lawyers speculate that he
has been held by mistake. Or, they say, some officials may
have believed he had intelligence value because bin Laden
accused him of trying to plot his killing in 1998. U.S.
officials have offered no public explanation.
Like a group of five Chinese Uighurs (pronounced wee-gurs),
Turkistani remains incarcerated because the United States
simply does not know what to do with him. He does not have
Saudi citizenship, and U.S. officials are having trouble
getting his home country to take him back. U.S. officials do
not want to send him to China, where Uighurs are seeking a
separate homeland, saying he is likely to be tortured.
But unlike many detainees at Guantanamo Bay, Turkistani was
not captured on the battlefield, nor was he a suspected
terrorist. Instead, he was swept up in the confusion that
marked the early days of the U.S. war in Afghanistan, and
even as a potential ally found himself with no recourse to
challenge his detention.
``The crowning irony is that he is an enemy of bin Laden,
who was charged with conspiring to kill him, and we hold him
prisoner today,'' said Sabin Willett, a lawyer who has filed
a petition with the U.S. District Court in Washington on
Turkistani's behalf. ``It's heartbreaking that we throw
people into jail to rot.''
Turkistani is one of nine detainees who live at Guantanamo
Bay's Camp Iguana, a less restrictive area of the prison
where detainees have limited privileges including access to
television and a few DVDs. Besides five Chinese Uighurs who
have not been accepted by any country, there is a Russian, an
Algerian and an Egyptian. All have been cleared for release
but have not been given their freedom.
A former U.S. official familiar with detention operations
said mistakes were made in Afghanistan, when some detainees
were shipped to Cuba because space at the U.S. facility in
Bagram was limited and there was no clear plan on where to
house suspected enemy combatants.
``It's possible to get stuck there if you don't have a
state,'' the former official said. ``Particularly at that
time, when there were a lot of people getting picked up in
Afghanistan, cases people were unsure about tended to end up
in Cuba. People did get caught up in the situation.''
Another U.S. official familiar with Guantanamo Bay said it
is likely that other ``stateless'' people will surface as the
military prepares to release more detainees.
The Defense and State departments are working to return
such people to their home countries, if possible, and have
unsuccessfully tried to persuade at least 20 nations to take
in the Uighurs--including Sweden, Finland, Switzerland and
Turkey.
``The government is serious about finding a place for
resettlement for the Uighurs and will continue diplomatic
efforts to accomplish that goal,'' said Lt. Col. Mark
Ballesteros, a Pentagon spokesman. ``The United States has
made it clear that it does not expel, return or extradite
individuals to other countries where it believes it is more
likely than not they will be tortured.''
Turkistani is one of more than 200 Guantanamo Bay detainees
who have filed habeas corpus petitions in U.S. District Court
in Washington, arguing that they are being held unlawfully
and asking the court to order their release.
Turkistani told his lawyers that he was deported to
Afghanistan from Saudi Arabia sometime in 1997, after he was
jailed for alleged possession of hashish. Turkistani said he
was given fake Afghan identification and put on a plane from
Jeddah to Kabul because the Saudi government did not
recognize him as a citizen. He said that Afghan officials
detained him for six days before releasing him.
He said he made his way to Khost, Afghanistan, and
befriended an Iraqi man. Before long, he and his friend were
arrested by four Arab al Qaeda members. Turkistani said he
was accused of being a Saudi spy, interrogated and tortured.
Fearing for his life, after 20 days of severe beatings and
sleep deprivation, Turkistani said he ultimately gave what he
called a ``lengthy story'' about how the Saudis had sent him
there to kill bin Laden. He was turned over to the Taliban
and held in Kandahar for more than four years.
Susan Baker Manning, another lawyer representing Turkistani
who met with him last month, said he denies allegations that
he tried to kill bin Laden and confessed only under torture.
Bin Laden, however, asserted in a statement in December 1998
that Turkistani and two accomplices had been hired by Saudi
Arabian officials to kill him and failed.
Foreign news reports have indicated that the attack,
allegedly by poison, caused bin Laden's kidneys to fail and
netted Turkistani and his alleged accomplices hundreds of
thousands of dollars.
Manning said that the government has been challenging
lawyers' efforts to represent Turkistani, and that he has
become intensely frustrated by his lengthy confinement.
``It's entirely possible that it's just a mistake,''
Manning said. ``The enemy took away his life for 4\1/2\
years, and we reward him for that by taking away his life for
another four years. He clearly opposed al Qaeda and the
Taliban, and he still feels that way. He's not a huge fan of
the U.S. anymore.''
____
[From the Washington Post, Dec. 13, 2005]
Court May Hear Chinese (Uyghur) Detainees
(By Josh White)
A federal judge in Washington said yesterday that he will
consider allowing two detainees in the military prison at
Guantanamo Bay, Cuba, to appear before him in court to
challenge their confinement, telling lawyers that the ethnic
Uighurs who have been cleared for release have been held too
long.
U.S. District Judge James Robertson said he believes the
case of the Uighurs (pronounced wee-gurs ) presents ``a
genuine dilemma'' because the government has determined they
are not enemy combatants but has not found a country to
accept them. U.S. officials are not willing to send the
Uighurs--Muslims who are seeking their own homeland on what
is now part of northwestern China--to their native country
for fear that they would be tortured or killed.
U.S. authorities have tried to persuade nearly two dozen
nations to provide refuge for the Uighurs but have refused to
allow them into the United States.
No Guantanamo Bay detainee has been allowed to travel to
the United States and appear before a federal judge. The
government has fought efforts at judicial review after a 2004
Supreme Court ruling entitling detainees to a ``competent
tribunal'' to determine whether they are enemy combatants.
The issue is currently before the appellate court for the
District of Columbia Circuit.
Government lawyers are concerned that such a move could
allow the Uighurs to immediately apply for asylum when they
arrive on U.S. soil.
But Sabin Willett, an attorney for the detainees, said his
clients are essentially on U.S. soil already and asked the
judge to consider granting them a provisional ``parole'' that
would allow them to live with ethnic Uighurs in the
Washington area while their cases are considered.
Robertson, who in August sought more time to consider the
cases, said yesterday that he is frustrated by the
government's inability to move forward, essentially stranding
five Uighurs who have been housed in a
[[Page S14311]]
part of the detention facility known as Camp Iguana, which is
less restrictive than the rest of the prison. The five
Uighurs are living with four others at the camp as they await
a country to accept them.
The Uighur detainees have been held, without charges, for
more than four years since their arrests in the Middle East.
The judge said he had three options: deny the detainees'
motion and allow the case to go to an appellate court; order
them to appear before him for a hearing on their immediate
release; or order the government to release them outright
``and see what happens, see how the government responds.''
``As far as I can tell, nothing is happening,'' Robertson
said, adding that he doesn't believe diplomatic progress has
been made. ``The time has stretched out to the point where
indefinite is not an inappropriate word to describe what is
happening.''
Terry Henry, a Justice Department lawyer, said that
government officials have been working on a diplomatic
solution but that he could discuss it only in private.
Robertson declined to hear the information off the record.
``The government is serious about finding a place for
resettlement for the petitioners,'' Henry said.
The Uighurs, through their lawyers, have argued that
because they are not a threat they should be moved to more
hospitable living conditions and have asked to be released to
live in the Washington area. Willett said his clients have
gone from elation in August--when they were moved to Camp
Iguana and given hope of release--to frustration as their
cases have dragged on.
``I am deeply concerned about the human impact of the
indefinite nature of this,'' Willett said.
Rabiya Kadeer, president of the Washington-based
International Uyghur Human Rights and Democracy Foundation,
attended the brief hearing yesterday and pledged to provide
homes and jobs for the Uighurs should they be released to the
United States.
____________________