[Congressional Record Volume 152, Number 121 (Monday, September 25, 2006)]
[Senate]
[Pages S10064-S10066]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TERRORIST TRIBUNALS
Mr. CORNYN. Mr. President, one of the lessons America learned after
the tragic events of September 11, 2001, is the danger of treating our
fight against global terrorism as a law enforcement function alone.
This was documented time and time again, whether it is the wall that
was erected that prevented intelligence authorities from getting access
to important information and sharing it with law enforcement
authorities, and vice versa, or whether it was waiting until a
terrorist attack occurred and then merely investigating in the rubble
and the destruction left behind, and then prosecuting the person, if,
in fact, he could be prosecuted and brought to justice.
It concerns me a great deal that we have seemed to lapse once again
into a pre-September 11 mindset where some of our colleagues, as we
debate the use of terrorist tribunals and the access to our court
system those convicted of war crimes should have, seem to have
forgotten some of those lessons learned from September 11. It is
important we not fight this global war on terrorism strictly as a law
enforcement matter, punishing conduct after the fact rather than
gaining intelligence we need in order to detect, deter, and disrupt
terrorist attacks from occurring in the first place. Specifically, I
will address what sort of avenues of appeal detainees at Guantanamo Bay
should have regarding their convictions and their status review.
Members may recall late last year the Congress passed something
called the Detainee Treatment Act in which we thought we had dealt
comprehensively with the issue of how detainees, unlawful combatants,
should be treated. Of course, we reiterated our commitment, the ban
against torture, cruel and inhumane and degrading conduct, but in that
important piece of legislation, Congress also said that detainees,
these unlawful combatants, people who do not observe the laws of war,
who target innocent civilian populations, are not entitled to receive
the full panoply of rights accorded to American citizens when tried in
an Article III court of law.
Specifically, we said that for the writ of habeas corpus that
otherwise might be available to them, we would substitute an
alternative procedure composed of three different things. We created
the combat status review tribunal, first, which was designed to make
sure the individuals who are actually detained at Guantanamo Bay were,
in fact, enemy combatants, and to make sure we did not in the course of
or in the fog of war sweep up innocent bystanders who were not actually
a threat to the United States. These combat status review tribunals
have very important procedures I will mention in a moment.
However, we also saw the use of administrative review boards that on
an annual basis review the status of a particular detainee at
Guantanamo Bay to determine, No. 1, whether they were a continuing
threat to the American people or our allies, and, No. 2, whether
additional actionable intelligence could be obtained from them during
the interrogation process.
This administrative review board is an annual process and has
resulted in the release of many of the detainees who were at Guantanamo
Bay who had been determined to no longer be a danger to the American
people or our allies.
The fact is these two procedures--the combatant status review
tribunal and the administrative review board--are coupled together with
an additional right of appellate review provided under the Detainee
Treatment Act which is full review of a conviction by a military
commission by the District of Columbia Court of Appeals in the Nation's
capital. That court is not restricted in any way to review any and all
errors they believe are material to the outcome of the case, and I
believe, combined with the combatant status review tribunal and the
administrative review board, does provide a due process for these
detainees in a way that does not jeopardize this legislation, should it
be ultimately reviewed by the U.S. Supreme Court.
Actually, I think it might surprise some of our colleagues to be
talking about this issue because they may well have thought we
addressed this issue late last year when we passed the Detainee
Treatment Act. The fact is, in the Hamden case, handed down in June,
the U.S. Supreme Court said Congress had not made sufficiently clear
its intention to apply the Detainee Treatment Act to pending cases.
Therefore, it went on to decide the Hamden case, refused to throw out
the appeal based on a lack of jurisdiction, and, in fact, left us with
a situation where about 300 of the detainees at Guantanamo Bay have
about 600 applications for writs of habeas corpus pending in American
courts.
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The United States provides adequate evidentiary hearings to ensure
that detainees held at Guantanamo Bay are, in fact, unlawful
combatants, and, No. 2, pose a threat to the United States national
security interests. These detainee status hearings and other procedures
provided by the United States to terrorist detainees at Guantanamo Bay
meet, and in many ways exceed, the requirements for prisoners of war
under article V of the Geneva Conventions.
As I mentioned, on top of these status hearings, meaningful judicial
review is provided by the U.S. Federal Court of Appeals. Final judicial
review is provided of those decisions. These status hearings and
judicial review mechanisms were codified as part of that Detainee
Treatment Act.
The District of Columbia Circuit Court of Appeals--which many in this
Chamber have referred to as the second highest court in the land--has
the power to review not only whether the Department of Defense
faithfully followed the procedures prescribed by Congress but also
whether those procedures comport with the U.S. Constitution.
For some to say, as I actually heard this morning in a hearing we had
before the Senate Judiciary Committee, that ``no meaningful judicial
review'' is provided to unlawful combatants is, I claim, inaccurate and
misleading.
While providing these judicial procedures, Congress saw fit to
foreclose the possibility of a flood of habeas corpus petitions
overwhelming the Federal courts and distracting our men and women in
uniform from prosecuting the war effort. The status hearings and
judicial review mechanisms are intended to satisfy the meaningful
review requirement in the absence of the ability to file a petition for
writ of habeas corpus. Alien enemy combatants, whether lawful or
unlawful under the Geneva Conventions, have never been found by the
U.S. Supreme Court to have a right to file a habeas corpus petition in
American Federal courts.
In 1950, the U.S. Supreme Court ruled in a case called Eisentrager v.
Johnson that enemy combatants held by U.S. forces overseas are not
entitled to the ``privilege of litigation'' and cannot sue our military
in our courts.
Beyond the constitutional arguments for removing habeas jurisdiction,
there are important practical considerations, as well, as explained in
the Eisentrager decision. The Supreme Court explained clearly and
eloquently why we cannot let enemy combatants sue the U.S. military and
our soldiers in American Federal courts. It said:
Such trials would hamper the war effort and bring aid and
comfort to the enemy . . . It would be difficult to devise a
more effective fettering of a field commander than to allow
the very enemies he is ordered to reduce to submission to
call him to account in his own civil courts and divert his
efforts and attention from the military offensive abroad to
the legal defensive at home. Nor is it unlikely that the
result of such enemy litigation would be a conflict between
judicial and military opinion highly comforting to enemies of
the United States.
These burdens, as identified by the U.S. Supreme Court placed on our
military by enemy combatant litigation, persist today.
The Department of Justice has detailed the significant burdens. It
has said:
The detainees have urged habeas courts to dictate
conditions on [Guantanamo Naval] Base ranging from the speed
of Internet access afforded their lawyers to the extent of
mail delivered to the detainees.
More than 200 cases have been filed on behalf of 600 purported
detainees. Curiously, this number exceeds the number of detainees
actually held at Guantanamo Bay, which is closer to 500.
Also, according to the Department of Justice:
This habeas litigation has consumed enormous resources and
disrupted the day-to-day operation of Guantanamo Naval Base.
The United States also notes that this litigation has had a serious
negative impact on our war against al-Qaida. According to the U.S.
brief, in the al-Qaida case:
Perhaps most disturbing, the habeas litigation has
imperiled crucial military operations during a time of war.
In some instances, habeas counsel have violated protective
orders and jeopardized the security of the base by giving
detainees information likely to cause unrest. Moreover,
habeas counsel have frustrated interrogation critical to
preventing further terrorist attacks on the United States.
Michael Ratner, a lawyer who has filed lawsuits on behalf of numerous
enemy combatants held at GTMO, boasted about disrupting U.S. war
efforts to a magazine--Mother Earth magazine. He said:
The litigation is brutal for [the United States]. It's
huge. We have over one hundred lawyers now from big and small
firms working to represent the detainees. Every time an
attorney goes down there, it makes it that much harder [for
the U.S. military] to do what they're doing. You can't run an
interrogation . . . with attorneys. What are they going to do
now that we're getting court orders to get more lawyers down
there?
Former Attorney General Bill Barr explained the folly of applying
American criminal procedure and judicial process and standards to
questions of the enemy combatants. He said:
In armed conflict, the body politic is not using its
domestic disciplinary powers to sanction an errant member,
rather it is exercising its national defense powers to
neutralize the external threat and preserve the very
foundation of all our civil liberties. Here the Constitution
is not concerned with handicapping the government to preserve
other values. Rather it is designed to maximize the
government's efficiency to achieve victory--even at the cost
of ``collateral damage'' that would be unacceptable in the
domestic realm.
Attorney General Barr brought these concerns into relief with the
very telling hypothetical example. He said:
Let me posit a battlefield scenario. American troops are
pinned down by sniper fire from a village. As the troops
advance, they see two men running from a building from which
the troops believe they had received sniper fire. The troops
believe they are probably a sniper team. Is it really being
suggested that the Constitution vests these men with due
process rights as against the American soldiers? When do
these rights arise? If the troops shoot and kill them--i.e.,
deprive them of life--could it be a violation of [their] due
process [rights]? Suppose they are wounded and it turns out
they were not enemy forces. Does this give rise to Bivens'
Constitutional tort actions for violation of due process?
Alternatively, suppose the fleeing men are captured and held
as enemy combatants. Does the Due Process Clause really mean
that they have to be released unless the military can prove
they were enemy combatants? Does the Due Process Clause mean
that the American military must divert its energies and
resources from fighting the war and dedicate them to
investigating the claims of innocence of these two men?
This [simply] illustrates why military decisions are not
susceptible to judicial administration and supervision. There
are simply no judicially-manageable standards to either
govern or evaluate military operational judgments. Such
decisions invariably involve the weighing of risks. One can
easily imagine situations in which there is an appreciable
risk that someone is an enemy combatant, but significant
uncertainty and not a preponderance of evidence.
Nevertheless, the circumstances may be such that the
President makes a judgment that prudence dictates treating
such a person as hostile in order to avoid an unacceptable
risk to our military operations. By their nature, these
military judgments must rest upon a broad range of
information, opinion, prediction, and even surmise. The
President's assessment may include reports from his military
and diplomatic advisers, field commanders, intelligence
sources, or sometimes just the opinion of front line troops.
He must decide what weight to give each of these sources. He
must evaluate risks in light of the present state of the
conflict and the overall military and political objectives of
the campaign.
So as we take up this important issue of terrorist tribunals, and
reaffirming our commitment in the Detainee Treatment Act, which we
passed just last year, these unlawful and lawful combatants--the enemy
captured on the battlefield--are entitled to process, but they are not
entitled to all of the rights and privileges of an American citizen in
a court of law.
It is only just and fitting we do provide this alternative process
through reviewing the combat status tribunal decisions to make sure we
are accurate as a matter of fact in detaining enemy combatants of the
United States. It is entirely appropriate that we have an annual
administrative review board to look at and determine whether these
individuals should continue to be detained in light of additional
information and in light of changing circumstances. And it is entirely
appropriate that they be provided an appellate review in the District
of Columbia Court of Appeals on all bases of decision in the combat
status review tribunal and the administrative review process and also
that they be provided an appeal following any conviction of a war crime
by a military tribunal. But it is not appropriate to lapse into a
[[Page S10066]]
pre-9/11 mentality of treating the war on terror as simply another law
enforcement action, treating it as another criminal prosecution just
such as any other criminal prosecution that occurs on a regular basis
in our State and Federal courts. The dangers of doing so mean we will
have lapsed back into those perhaps happier times but the blissful
ignorance those happier times produced.
We are at war. We have an enemy that continues to try to explore our
vulnerabilities. And as we know from the recently disrupted plot
emanating out of London, al-Qaida and our enemies continue to try to
find vulnerabilities that will allow them to hit us here at home. It is
absolutely essential that we live up to our responsibilities as elected
representatives of the American people to maintain the safety and
security of those people by making sure we meet the obligations imposed
upon Congress and the Federal Government by the U.S. Supreme Court and
that we provide basic rights as dictated by the Court in the Hamdan
decision. But it is not appropriate that we tie the hands of our
military commanders, that we perhaps undermine our ability to prosecute
and win this war on terror and keep America safe by treating this war
on terror and the appellate rights of detainees in a way that makes it
harder for us to keep America safe.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Chambliss). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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