[Congressional Record Volume 153, Number 113 (Monday, July 16, 2007)]
[Senate]
[Pages S9233-S9235]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             GUANTANAMO BAY

  Mrs. FEINSTEIN. Mr. President, many in this body and people all over 
the world watched as America, 5\1/2\ years ago, began to arrest, 
apprehend, and incarcerate detainees. Some were real terrorists, some 
were conspirators, and some were simply in the wrong place at the wrong 
time. We watched as Camp X-Ray was built at the naval base at 
Guantanamo, and we have seen the development of a different and lesser 
standard of American justice developed for proceedings at that base. 
Since that time, Guantanamo has been derided as a blight on human 
rights values and as a stain on American justice worldwide.
  I believe the time has come to close Guantanamo. An amendment I have 
filed with Senator Harkin--Senator Harkin is my main cosponsor--and 
Senator Hagel would do exactly that. It is cosponsored by Senators 
Dodd, Clinton, Brown, Bingaman, Kennedy, Whitehouse, Obama, Durbin, 
Byrd, yourself, Mr. President, Senator Salazar, Senators Feingold, 
Boxer, and Biden.
  It is my understanding that the Republican side has refused us a time 
agreement, which means we will not be allowed a vote. The amendment is 
not germane postcloture. So if the Republican side will not allow us a 
time agreement, we have, unfortunately, no way of getting a vote on 
this amendment.
  The fact is that yesterday's New York Times editorialized that 
Guantanamo should be closed. That is what many people believe, and yet 
we cannot fully debate that issue and vote on it here. I think that is 
truly a shame.
  I very much regret this, but Senator Harkin, Senator Hagel, and I 
wish to take some time to address this issue. I assure this body that 
we will not stop here, but we will find another venue in which to 
debate and vote on this matter.
  The amendment we have proposed would require the President to close 
the Guantanamo detention facility within 1 year, and it provides the 
administration flexibility to choose the venue in which to try 
detainees--in military proceedings, Federal district courts, or both. 
The administration would choose which maximum security facilities in 
which to house them.
  Why should we close the Guantanamo detention facility? First and 
foremost, this administration's decision to create Guantanamo appears 
to have been part of a plan to create a

[[Page S9234]]

sphere of limited law outside the scrutiny of American courts that 
would result in a lesser standard of justice.
  Guantanamo is unique. It is not sovereign territory of the United 
States; however, under a 1903 lease, the United States exercises 
complete jurisdiction and control over this naval base. I believe the 
administration hoped to use this distinction to operate without 
accountability at Guantanamo.
  This is revealed in a December 2001 Office of Legal Counsel memo by 
John Yoo of the Justice Department, who later authored the infamous 
torture memo. Yoo knew there was a risk that courts would reject the 
legal theory of unaccountability at Guantanamo, but, just as he did 
with his torture memo, he laid out the various arguments why his 
extreme views might prevail.
  Let me point this out. In his memo, he says:

       Finally, the executive branch has repeatedly taken the 
     position under various statutes that [Guantanamo] is neither 
     part of the United States nor a possession or territory of 
     the United States. For example, this Office [Justice] has 
     opined that [Guantanamo] is not part of the ``United States'' 
     for purposes of the Immigration and Naturalization Act. . . 
     .Similarly, in 1929, the Attorney General opined that 
     [Guantanamo] was not a ``possession'' of the United States 
     within the meaning of certain tariff acts.

  The memo concludes with this statement:

       For the foregoing reasons, we conclude that a district 
     court cannot properly entertain an application for a writ of 
     habeas corpus by an enemy alien detained at Guantanamo Bay 
     Naval Base, Cuba. Because the issue has not yet been 
     definitively resolved by the courts, however, we caution that 
     there is some possibility that a district court would 
     entertain such an application.

  So here the administration apparently hoped to turn Guantanamo into a 
legal hybrid wholly under U.S. control but beyond the reach of U.S. 
courts.
  What has happened since then? The Supreme Court rejected the 
administration's position in Rasul v. Bush in a 2004 ruling that 
American courts do have jurisdiction to hear habeas and other claims 
from detainees held at Guantanamo.
  Following another defeat in the Supreme Court, in Hamdan v. Rumsfeld 
in 2006, which declared invalid the Pentagon's process for adjudicating 
detainees, the administration responded by pushing the passage of a new 
Military Commissions Act. This expressly eliminated habeas corpus 
rights and limited other appeals to procedure and constitutionality, 
leaving questions of fact or violation of law unresolvable by all 
Federal courts. This happens nowhere else in American law. But this 
Military Commissions Act went through.
  There are serious questions about whether this provision will 
withstand a court test. On June 29, just 2 weeks ago, the U.S. Supreme 
Court agreed to hear two additional cases which go right to this point: 
Boumediene v. Bush and Al Odah v. the United States. The High Court 
declined to hear these cases in April but has reversed itself and 
granted certiorari--the first time in 60 years that it agreed to take a 
case after previously refusing it. From this case, we will find out 
whether the military commissions law, which prevents full appeals, in 
fact, can stand the court test.
  What is the administration arguing in that case? Once again, they are 
trying to argue that the Constitution's protection of habeas corpus 
does not extend to detainees at Guantanamo because it is outside of 
U.S. jurisdiction.
  I believe it is time to put an end to these efforts to use a legal 
maneuver to create a law-free zone at Guantanamo.
  As Justice Kennedy emphasized in his concurring opinion in Rasul:

       Guantanamo is in every practical respect a United States 
     territory.

  So U.S. law would apply at Guantanamo whether this administration 
likes that or not.
  The administration's efforts to create a land without law at 
Guantanamo has been a moral and a strategic catastrophe for the United 
States. The bad decision to create a separate system of justice at 
Guantanamo led to another mistake, and I mentioned this briefly: the 
Military Commissions Act. In retrospect, let's look at what that act 
has done:
  It expands Presidential authority by giving the White House broad 
latitude to interpret the meaning and authority of the Geneva 
Conventions.
  It presents vague and ambiguous definitions of torture and cruel and 
inhumane treatment that fail to establish clear guidelines for what is 
a permissible interrogation technique.
  It abandons the independent judicial review process by establishing a 
new Court of Military Commission Review with members appointed by the 
Pentagon. This court has yet to be established.
  It limits appeals to the U.S. Court of Appeals for the District of 
Columbia Circuit, which is given limited review authority. This is what 
will most likely be before the court very shortly.
  For the first time in U.S. history, it allows coerced evidence--
obtained prior to December 30, 2005--to be entered into a court record, 
and it revokes habeas corpus rights that allowed detainees to appeal 
their status before the Federal court.
  Direct review is limited and habeas is eliminated by this military 
commissions bill.
  Clearly, the military commissions bill, which passed by a vote of 65 
to 34 in this House, seeks to once again set up a separate and lesser 
standard of justice.
  Senator Specter and Senator Leahy have introduced a bill to restore 
habeas rights to Guantanamo detainees. I hope that bill is allowed to 
be presented as an amendment to this bill. It is timely, it is 
important, and the world is watching. It should happen, and finally, it 
is the right thing to do.
  So what have been all the consequences of this? The detention center 
at Guantanamo Bay has become a lightning rod for international 
condemnation. It draws sharp criticism from our allies and hands our 
enemies a potent recruiting tool. It weakens our standing in the world 
and makes the world a more dangerous place for our troops, who may be 
captured on foreign battlefields in the future.
  Yet the administration fails to act, despite public comments from 
President Bush and top advisers that the facility should be closed. 
Recent news reports say there is renewed debate inside the White House 
over closing Guantanamo, but still nothing happens. So I believe it is 
up to Congress to act.
  What would this amendment do? In addition to requiring the President 
to close Guantanamo within a year, it would prohibit the administration 
from transferring detainees at Guantanamo to other U.S.-controlled 
facilities outside the United States. It also requires the President to 
keep Congress informed of efforts to close the facility and transfer 
the detainees, and includes the specific requirement that the President 
report to Congress in writing within 3 months of the bill's enactment.
  I believe it is critical that we act. To do nothing, to leave 
Guantanamo open, as some in the administration would like, is to invite 
further condemnation and further risk. It will weaken our efforts to 
fight terrorism and it will continue to erode our standing in the 
world.
  I recently heard Peter Bergen, a terrorism expert, on CNN. I have 
read his books and listened to him throughout the years. He said he and 
his colleagues had taken a good look at the increase in terror and he 
believed it would be fair to assert that our presence in Iraq has 
served to increase terrorists by sevenfold--by 700 percent over what 
the world of terrorists was before Iraq and today.
  The simple fact remains that Guantanamo violates our values and our 
traditions, including respect for the rule of law and for human rights.
  In avoiding the full weight of American justice, Guantanamo has 
shocked the conscience of the world. It has led the men and women who 
have worn the uniform, including many retired flag officers, to speak 
out. A dozen former generals and admirals warned in January of 2005 
that the interrogation techniques allowed at Guantanamo and elsewhere 
had:

        . . . fostered greater animosity toward the United States, 
     undermined our intelligence gathering efforts, and added to 
     the risks facing our troops around the world.

  Among those who commented were GEN John Shalikashvili, former 
Chairman of the Joint Chiefs; GEN Merrill McPeak, former Air Force 
Chief of Staff; Marine GEN Joseph Hoar, a former commander of the U.S. 
Central Command; and RADM Dan Guter, a former Navy judge advocate 
general.
  Earlier this year, a very respected retired Marine Corps general, by 
the

[[Page S9235]]

name of James Jones, the former Supreme Allied Commander in Europe, 
said:

       I would close the prison tomorrow. I would do it 
     immediately. Just the images alone have hurt our national 
     reputation. I don't know how you fix that without closing it.

  I agree with him. I don't know how you begin to fix the damage 
brought by Guantanamo without closing it. A military commissions bill 
couldn't do it. We can't do it, and that is the fact.
  Former Secretary of State Colin Powell said it succinctly:

       I would close it not tomorrow, but this afternoon.

  But importantly, the sense of conscience, as well as a measure of the 
international reaction to Guantanamo, came in a statement by Archbishop 
Desmond Tutu. Here is what he said:

       I never imagined I would live to see the day when the 
     United States and its satellites would use precisely the same 
     arguments that the apartheid government used for detention 
     without trial. It is disgraceful.

  In May of 2006, President Bush told German television:

       I would very much like to end Guantanamo. I would very much 
     like to get people to a court.

  Earlier this year, Defense Secretary Bob Gates, new to his job, made 
clear that he also wanted Guantanamo closed. He said:

       There is no question in my mind that Guantanamo and some of 
     the abuses that have taken place in Iraq have negatively 
     impacted the reputation of the United States.

  He said that at the Munich Conference on Security Policy earlier this 
year. On February 27, following an Appropriations Committee meeting, I 
personally asked him what he thought, and he said, equally as 
succinctly as General Powell, that he thought it should be closed.
  The following month Secretary Gates told the House Defense 
Appropriations Subcommittee that trials at Guantanamo would lack 
credibility in the eyes of the world. In March, Secretary of State 
Condoleezza Rice said:

       The President has been very clear, and he is clear to us 
     all the time. He would like to see it closed. We all would.

  Well, then why is the Republican side preventing us from having a 
vote today or tomorrow or the next day that would say that Guantanamo 
should be closed within a year? How can the Secretary of Defense, the 
President of the United States, the Secretary of State make these 
comments that they want Guantanamo closed and the Republican side of 
the aisle prevent us from taking a vote in the Congress? I don't 
understand this.
  Additional fallout from the Military Commissions Act is that it has 
stymied further trials under its auspices. Two military judges recently 
found that the detainees have been incorrectly classified as ``enemy 
combatants'' rather than as ``unlawful enemy combatants.'' So that is 
another hitch in this. They have classified people wrongly so they 
can't be tried.

  Recently, a lieutenant colonel, who was part of this process from an 
intelligence point of view, in an affidavit has stated that even this 
classification was based on vague and incomplete intelligence. 
Lieutenant Colonel Abraham also said tribunal members were pressured by 
their superiors to rule against detainees, often without specific 
evidence, and that military prosecutors were given ``generic'' material 
that did not hold up in the face of the most basic legal challenges.
  Now, let me be clear: I have no sympathy for Taliban fighters, al-
Qaida terrorists, or anyone else out to hurt the United States, or 
commit cowardly and despicable acts of terror. There is nothing in this 
amendment that puts terrorists back on the street. That is not the 
goal. Any argument that this amendment would harm national security is 
flat out false.
  I believe what harms national security is sacrificing our Nation's 
values--which have made us rightly the greatest democracy in the 
world--by setting up a hybrid system of justice, by not following the 
Uniform Code of Military Justice, but by creating this hybrid system, 
which has failed court tests now and will quite possibly fail another 
one shortly.
  Now, how do you stop all this? As long as you have this 
extraterritorial facility out there, without the light of day shining 
on it, you can't. Today, two of our colleagues are visiting Guantanamo. 
Unfortunately, I couldn't go with them. The last time I visited 
Guantanamo was with Secretary Rumsfeld, rather early on, and I suspect 
what they will find is a rather well-run, strong, staunch military 
prison. But that doesn't mean the justice that is dispensed there is 
correct if it is secondary justice, if it is sublevel justice, if there 
is limited right of appeal, if you don't have access to an attorney 
easily, if you can't see evidence against you.
  One can say, well, Guantanamo is no Abu Ghraib, and I would most 
likely agree with that--today. There have been allegations of 
inappropriate behavior in terms of interrogation techniques, no 
question about that. I assume that is corrected now. But it still looms 
out there as a way the United States has of not allowing these 
prisoners to face justice. It is one thing if you are a terrorist; it 
is another thing if you are in the wrong place at the wrong time, if 
you are swept up, if you are put in either a cage or a cell at 
Guantanamo, and if you stay there year after year after year with no 
recourse. That is a stain on American justice. We criticize the Chinese 
for their form of administrative detention, and yet here we practice a 
similar thing.
  We face a serious, long-term terrorist threat. It may well go on for 
the next 10 or even 20 years. We must track down, punish, and prosecute 
those who seek to hurt this country and hurt our people. At the same 
time, we need national policies that are both tough and smart, and this 
isn't smart. We will fight terror with vigor and drive and purpose, but 
we must not forget who we are. We are a nation of laws. We are a nation 
of value and tradition. These values have been admired throughout the 
decades all over the world.
  The world has looked at Guantanamo and made the judgment that it is 
wrong. I think it is time for the Senate to do something about it. The 
Senate has borne the burden of Guantanamo for too long. The time has 
come to close it down. I appeal to the other side to allow the debate 
on the floor and to give us a unanimous consent time agreement so that 
there might be a vote in this body.
  Mr. President, I yield the floor.

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