[Congressional Record Volume 153, Number 85 (Wednesday, May 23, 2007)]
[Senate]
[Pages S6560-S6561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN:
  S. 1469. A bill to require the closure of the Department of Defense 
detention facility at Guantanamo Bay, Cuba, and for other purposes; to 
the Committee on Armed Services.
  Mr. HARKIN. Mr. President, today I am offering legislation to close 
the U.S. military presence at Guantanamo Bay, Cuba. There is remarkable 
agreement on the need to find a way to close this prison. Our closest 
allies have all urged that Guantanamo be closed, as have many leaders 
from across the political spectrum in the United States.
  Last June, after three detainees committed suicide in a single day, 
President Bush acknowledged that the prison has damaged America's 
reputation abroad. The President said:

       No question, Guantanamo sends a signal to some of our 
     friends--provides an excuse, for example, to say that the 
     United States is not upholding the values that they're trying 
     to encourage other countries to adhere to.

  The President said:

       I'd like to close Guantanamo.

  More recently, Secretary of Defense Gates and Secretary of State Rice 
have urged that the prison be shut down. On March 23, the Washington 
Post, citing ``senior administration officials,'' reported Secretary 
Gates had ``repeatedly argued that the detention facility at Guantanamo 
Bay, Cuba, had become so tainted abroad that legal proceedings at 
Guantanamo would be viewed as illegitimate.'' According to the Post, 
Secretary Gates ``told President Bush and others that it should be shut 
down as quickly as possible.''
  Make no mistake, current detainees at Guantanamo include a number of 
extremely dangerous terrorists with the determination and the ability--
if they are given the opportunity--to inflict grave harm on the United 
States and its citizens. Among the detainees are 14 senior leaders of 
al-Qaida, including Khalid Sheikh Mohammed, who has confessed to being 
one of the masterminds of the September 11 attacks, plus others. We 
must, and we can, hold these enemy combatants in maximum security 
confinement elsewhere.
  But the critics are right. The 5-year-old prison at Guantanamo is a 
stain on the honor of this country. By holding people at Guantanamo 
without charge, without judicial review, without appropriate legal 
counsel, and--in the past--subjecting many of them to torture, we have 
forfeited the moral high ground and we stand as hypocrites in the eyes 
of the world.
  Perhaps most seriously, from a pragmatic standpoint, maintaining the 
prison at Guantanamo is simply counterproductive. It has become a 
propaganda bonanza and recruitment tool for terrorists. It alienates 
our friends and allies. It detracts from our ability to regain the 
moral high ground, and rally the world against the terrorists who 
threaten us.
  The administration has repeatedly described detainees at Guantanamo 
as ``the worst of the worst'' or, as former Secretary of Defense 
Rumsfeld once described them, the ``most dangerous, best-trained, 
vicious killers on the face of the earth.'' Unquestionably, some of the 
detainees fit these descriptions. However, an exhaustive study of 
Guantanamo detainees conducted by the nonpartisan, highly respected 
National Journal last year came to the following conclusions: A large 
percentage, perhaps the majority, of the detainees were not captured on 
any battlefield, let alone on ``the battlefield in Afghanistan,'' as 
the President once asserted. Fewer than 20 percent of the detainees 
have ever been al-Qaida members. Many scores, and perhaps hundreds, of 
the detainees were not even Taliban foot soldiers, let alone al-Qaida 
members. The majority were not captured by U.S. forces but, rather, 
handed over by reward-seeking Pakistanis, Afghan warlords, and by 
villagers of highly dubious reliability. For example, one of the 
detainees is a man who was conscripted by the Taliban to work as an 
assistant cook. The U.S. Government's ``evidence'' against this 
detainee consists in its entirety of the following:
  One, the detainee admits he was a cook's assistant for Taliban forces 
in Narim, Afghanistan, under the command of Haji Mullah Baki.
  Two, the detainee fled from Narim to Kabul during the Northern 
Alliance attack and surrendered to the Northern Alliance.
  This person is still sitting in Guantanamo.
  The situation at Guantanamo, I must add, reminds me of an earlier 
episode in this Senator's life. In July of 1970, I was a staff 
assistant to a House committee in the House of Representatives. I was 
working with a congressional delegation on a factfinding trip to 
Vietnam. I brought back photographs of the so-called tiger cages at Con 
Son Island, off the coast of Vietnam, where Viet Cong and some North 
Vietnamese prisoners, as well as civilian opponents of the war, were 
all being held together, held incommunicado, tortured and killed, with 
the full knowledge, support, and sanction of the United States 
Government. We had heard reports about the possible existence of these 
tiger cages. But our State Department vehemently denied their 
existence. They dismissed all of these claims as communist propaganda.

  Well, I looked into this and believed the reports were credible. I 
was determined to investigate further to see if they did exist. Thanks 
to the courage of Congressman William Anderson of Tennessee, 
Congressman Augustus Hawkins of California, Don Luce, an American 
working for a nongovernmental organization, and a brave, young 
Vietnamese man who risked his life and his brother's life, who was 
still held on Con Son in the tiger cages, who drew us the maps and 
showed us how to find the tiger cages at these prisons--Nguyen Caoli 
was the young man's name. He risked it all by trusting us. Thanks to 
his maps and telling us how to find them, we were able to expose the 
tiger cages on Con Son Island in July of 1970.
  Supporters of the war claimed the tiger cages were not all that bad. 
But then Life Magazine and other magazines around the world published 
the pictures I had surreptitiously taken on Con Son, and the world saw 
the horrific conditions, as I said, with Vietnamese guerrillas, as well 
as civilian opponents

[[Page S6561]]

of the war, all crowded together in these cages, in clear violation of 
the Geneva Conventions, and in violation of the most fundamental 
principles of human rights.
  At the time, the United States Government had been insisting the 
North Vietnamese abide by the Geneva Conventions in their treatment of 
United States prisoners in North Vietnam. Yet, here we were condoning, 
funding, and even supervising the torture of Vietnamese prisoners and 
civilians, whose only crime was protesting the war, all in clear 
violation of the Geneva Conventions.
  There are disturbing parallels between what transpired on Con Son 
Island nearly four decades ago and what happened at Guantanamo in 
recent years. In both cases, prisons were deliberately set up on remote 
islands, clearly with the intention of limiting scrutiny and 
restricting access. In both cases, detainees were not classified as 
prisoners of war, expressly to deny them the protections of the Geneva 
Conventions. In both cases, detainees were deprived of any right of due 
process, judicial review, or a fair trial.
  They were simply held indefinitely in isolation, in limbo. In both 
cases, when the mistreatment of detainees was exposed, the United 
States stood accused of hypocrisy, of betraying its most sacred values, 
and of violating international law.
  So you can see why I have watched what has transpired at Guantanamo, 
and I have thought back to that episode in my life when all of this 
came out about the tiger cages and the inhumane treatment of these 
several hundred prisoners who were there at the time. There was a happy 
ending to that event. Because of the international outcry, the tiger 
cages were closed down, the prisoners were released, and people went 
back to their homes.
  Many of them who were in the tiger cages I met later on in life. One 
became the mayor of Saigon, several became successful businesspeople, 
and others went on with their lives. But watching what happened at 
Guantanamo and seeing that many of these people were swept up in a war 
which some of them--many of them--well, the National Journal says a 
majority of them were not even engaged.
  So it is time to close it down. We need to reverse the damage 
Guantanamo has done to America's reputation and to our ability to wage 
an effective fight against the terrorists who attacked us on September 
11, and the essential first step must be to close the prison at 
Guantanamo as expeditiously as possible. The bill I am introducing 
today offers a practical approach to accomplishing this within 120 days 
of enactment of the law.
  As I said, there are known hardcore terrorists at Guantanamo, such as 
Khalid Shaikh Mohammed, who must continue to be held in maximum-
security conditions. Under my bill, these prisoners will be transferred 
to the U.S. detention base at Fort Leavenworth, KS. This is a state-of-
the-art maximum-security facility just opened in 2002. It has adequate 
capacity to receive these prisoners from Guantanamo. Under my bill, the 
remaining prisoners, some 365 in number, would have their legal status 
resolved. In each case, the administration will determine whether the 
prisoner planned or committed hostile acts against the United States. 
Those who did plan or commit hostile acts would be charged and 
transferred to Fort Leavenworth. Those who did not would be released to 
the custody of their home country or, where necessary, to a country 
where they would not face torture.
  There is a pending bill, S. 1249, to close the prison at Guantanamo. 
However, that bill gives the administration too much leeway to maintain 
the status quo in terms of the detainees' legal status. It allows an 
enemy combatant to be detained indefinitely without charge--that is 
what is getting us into trouble in the first place--and it does not 
require that the administration abide by the Convention Against 
Torture, nor does it give detainees a forum in which to lodge credible 
claims of torture or abuse. The bill I am introducing does all of that.
  The United States has lost its way, both in Iraq and at Guantanamo. 
We need to wage a smarter, more focused, and more effective fight 
against the terrorists who threaten us, and we must do so in ways that 
do not give credence to their anti-American propaganda and do not rally 
more recruits to their cause. To that end, we must close the prison at 
Guantanamo as soon as possible. The legislation I am offering today 
will accomplish this.
  This legislation has the enthusiastic endorsement of Human Rights 
Watch, Human Rights First, Amnesty International, and the American 
Civil Liberties Union. I urge my colleagues to support the bill.
  Mr. President, I ask unamimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text was ordered to be printed in the 
Record, as follows:

                                S. 1469

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Guantanamo Bay Detention 
     Facility Closure Act of 2007''.

     SEC. 2. CLOSURE OF GUANTANAMO BAY DETENTION FACILITY AND 
                   DISPOSITION OF DETAINEES.

       (a) Closure of Facility.--Not later than 120 days after the 
     date of the enactment of this Act, the President shall close 
     the Department of Defense detention facility at Guantanamo 
     Bay Cuba.
       (b) Restriction on Use of Funds.--
       (1) Restriction.--Except as provided in paragraph (2), no 
     amounts appropriated or otherwise made available for fiscal 
     year 2007 or fiscal year 2008 may be used for the Guantanamo 
     Bay detention facility or for detention at the Guantanamo Bay 
     detention facility of any foreign national who was detained 
     at such facility on or after Marach 31, 2007.
       (2) Exceptions.--Amounts appropriated or otherwise made 
     available for fiscal year 2007 or fiscal year 2008 may be 
     used for the following purposes related to the detention of 
     foreign nationals who were detained at the Guantanamo Bay 
     detention facility on any date between March 31, 2007 and the 
     date of enactment:
       (A) Transfer to the United States Disciplinary Barracks at 
     Fort Leavenworth, Kansas, for purposes of pretrial detention 
     or detention during a trial or while serving a sentence, of 
     any such person who, not later than 120 days after the date 
     of the enactment of this Act, is charged with an offense 
     under chapter 47A of title 10, United States Code, as added 
     by section 3 of the Military Commissions Act of 2006 (Public 
     Law 109-366), or with a felony offense under title 18, United 
     States Code, or chapter 47 of title 10, United States Code 
     (the Uniform Code of Military Justice); or
       (B) Continued detention at the Guantanamo Bay detention 
     facility for an additional 120 day period, not to continue 
     more than 240 days after the date of the enactment of this 
     Act, upon written certification by the Secretary of Defense 
     to the Chairmen and Ranking Members of the Committees on 
     Armed Services of the Senate and the House of Representatives 
     that additional time is needed to complete the investigation 
     and preparation of charges, including a detailed factual 
     explanation of the specific reasons why the additional time 
     is needed.
       (C) Transfer of any such person to another country, 
     provided that--
       (i) the transfer complies with the Convention Relating to 
     the Status of Refugees, done at Geneva July 28, 1951, the 
     United Nations Convention Against Torture and Other Forms of 
     Cruel, Inhuman or Degrading Treatment or Punishment, done at 
     New York December 10, 1984, and Federal law; and
       (ii) an individual being so transferred who is asserting a 
     well founded fear of torture, abuse, or persecution has an 
     opportunity to have the claim heard by the Executive Office 
     for Immigration Review, subject to the same judicial review 
     provided for in section 242(a)(4) of the Immigration and 
     Nationality Act (8 U.S.C. 1252(a)(4)).
       (c) Immigration Status.--The transfer of an individual 
     under subsection (b)(2)(A) shall not be considered an entry 
     into the United States for purposes of immigration status.
       (d) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to carry out 
     activities under this Act related to the investigation, 
     prosecution, and defense of cases and claims relating to 
     foreign nationals who were detained at the Guantanamo Bay 
     detention facility on or after March 31, 2007, and the 
     transfer of such persons, including for the reimbursement of 
     costs incurred by local communities.
                                 ______