[Congressional Record Volume 155, Number 79 (Thursday, May 21, 2009)]
[Senate]
[Pages S5769-S5770]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           ORDER OF PROCEDURE

  Mr. CHAMBLISS. Madam President, I ask unanimous consent that Senate 
amendment No. 1144 be considered in order postcloture in addition to 
the requirements under rule XVI, rule XXII, and the adoption of the 
Inouye amendment.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. DURBIN. Reserving the right to object, this amendment from my 
friend, Senator Chambliss, would preclude the U.S. Attorney General 
from allowing detainees at Guantanamo to even be tried for crimes in 
the United States. I think it goes too far, and I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mr. CHAMBLISS. Madam President, the assistant majority leader is 
exactly right. My amendment is going to prohibit any Guantanamo 
detainee from being brought to the United States. The assistant 
majority leader made a comment yesterday that he thought it was 
somewhat foolish on the part of the minority to think this President 
would even allow terrorists to be brought into the United States. The 
fact is, this administration is already proposing that some of the 
terrorists who are held at Guantanamo be brought into the United States 
and be freed because the court has determined that 17 Uyghurs ought to 
be free. The administration is talking about freeing those Uyghurs 
inside the United States.
  The press reported this morning that President Obama intends to bring 
a Gitmo detainee, Ahmed Ghailani, to New York to be tried in our 
criminal courts. I fear this is the start of a long process of 
transferring detainees to the United States where, I believe, legal 
technicalities will ultimately allow some of them to be freed into the 
United States.
  The Senate voted yesterday to prevent any detainees from being 
brought here and has been very outspoken on this issue this week. 
Despite this, the President has chosen to ignore the will of Congress 
and bring Ghailani to the United States. Instead, he is acting quickly 
to bring him here before he signs the supplemental bill into law.
  I don't know how the President thinks he can try this detainee in our 
courts. Ghailani is not just any terrorist. He was a high-value 
detainee in the CIA's detention. Bringing him into a U.S. courtroom 
will open a floodgate to challenges on his detention, his treatment, 
and any evidence obtained from him.
  Additionally, if we were able to obtain any evidence on Ghailani from 
any other terrorists, that information would likely not be admitted in 
U.S. courts because it would be considered hearsay. If not, the 
prosecution would be required to bring additional terrorists to New 
York just to testify in Ghailani's trial. This alone will make a 
conviction much more difficult.
  There is too much at stake to grant the unprecedented benefit of our 
legal system's complex procedural safeguards to foreign nationals who 
were captured outside the United States during a time of war. Allowing 
these terrorists to escape conviction or, worse yet, to be freed into 
the United States by our courts because of legal technicalities would 
tarnish the reputation of our legal system as one that is fair and 
just.
  Prohibiting the detainees from entering the United States, as my 
amendment does--the assistant majority leader is exactly right--is one 
small step in the right direction.
  Further, if these individuals, such as Ghailani, were to be brought 
to the United States by President Obama to be tried in our article III 
courts and not convicted, the only mechanism available to our 
Government to continue to detain these individuals would be via 
immigration law. However, current immigration laws on our books are 
insufficient to ensure these detainees would be mandatorily detained 
and continue to be detained until they can successfully be removed from 
our borders.
  Although I am adamantly opposed to bringing any of these detainees to 
the United States, and I do not believe the President has independent 
authority to do so, I do believe we need legislation to safeguard our 
citizens and our communities in the event they are brought here. To 
that end, my amendment makes mandatory the detention of any Gitmo 
detainees brought to the United States.
  It is imperative the Senate consider my amendment before the final 
adoption of this supplemental bill.
  The ACTING PRESIDENT pro tempore. The assistant majority leader.
  Mr. DURBIN. Madam President, in response to my friend, the Senator 
from Georgia, he has obviously forgotten the name Zacarias Moussaoui. 
He was accused of being the 19th or 20th

[[Page S5770]]

hijacker on 9/11. He was successfully prosecuted in the courts of the 
United States. He has been convicted, is serving time in a prison of 
the United States, and we are not less safe because of it. Our system 
of justice worked.
  The Senator from Georgia and many on his side of the aisle have no 
confidence in our system of justice. They do not want to even consider 
the possibility that people could be charged with a crime and 
successfully prosecuted here. We have proven otherwise.
  There are 347 convicted terrorists now serving time in U.S. prisons. 
I have not heard a hue and cry from anyone saying let's get them all 
out of the country, because we know they are being safely and securely 
held.
  America is not at risk. For the Senator to argue that once they are 
tried they have to be released as American citizens or in the general 
population defies logic. If these people are brought in for the purpose 
of trial and found not guilty, they are certainly not going to be 
allowed to stay in the United States. There is no requirement for that. 
There is no way they could ask for citizenship, having just been found 
not guilty, being a resident of another country. That is not even in 
the realm of possibility.
  What the Senator is arguing is about a possibility that I think is 
farfetched, and he ignores the obvious. Madam President, 347 terrorists 
convicted in American courts are currently serving time in American 
prisons right now.
  I might also add that at the end of the day, it will be the President 
of the United States who will propose what we do, and the President 
will make his recommendations soon. I am anxious to hear them. But for 
us to foreclose the possibility of bringing a detainee to justice for 
crimes committed, for acts of terrorism, by saying we would not 
consider ever trying them in the United States, what would we do with 
them? Hold them indefinitely without charges? Export them to some other 
country?
  If they can be charged and prosecuted successfully in our courts, 
they should be. They should be held securely until they are resolved in 
court, and if they are resolved in a guilty fashion, they could be 
incarcerated as the other 347 terrorists in our prisons. If found not 
guilty, they can leave the country, as they should not be welcomed as 
citizens.
  The President will be making an announcement today. I am anxious to 
hear it. For us to anticipate what that is and foreclose possibilities 
I don't think is a wise policy for keeping this country safe.
  The bottom line is this President--no President--is going to release 
terrorists into Georgia, Mississippi, Illinois, or New York. It is not 
going to happen. Presidents accept their responsibility to keep our 
country safe, and to suggest otherwise I don't think is consistent with 
our experience.
  The ACTING PRESIDENT pro tempore. The Senator from Georgia.
  Mr. CHAMBLISS. Madam President, what the Senator from Illinois, who 
is a lawyer, neglects to mention is the fact that all 347 of the 
current incarcerated people who have been tried for terrorist acts were 
arrested under U.S. law. They were investigated by the FBI. They were 
prosecuted because they were arrested and investigated with that end in 
mind. Not one single one of those 347 individuals was arrested on the 
battlefield.
  What the Senator is now proposing is that we take all 240 of the 
confined detainees at Gitmo and give them all of the rights that are 
guaranteed to every criminal who is investigated and arrested inside 
the United States as opposed to being arrested on the battlefield. That 
has never happened before in the history of the United States, and we 
have had an awful lot of captives on the battlefield.
  For there to be any correlation between the 240 detainees at 
Guantanamo who are the meanest, nastiest killers in the world, getting 
up every day thinking of ways to kill and harm Americans, and to 
compare them to the 347 who are now confined after being arrested 
inside the United States is somewhat ludicrous.
  Again, I regret the Senator is objecting to my amendment which would 
keep those 240 individuals at Guantanamo outside the United States and 
would ensure that forever and ever they could never be released into 
the United States. I simply regret he sees fit to object to it.
  The ACTING PRESIDENT pro tempore. The assistant majority leader.
  Mr. DURBIN. Madam President, I am not suggesting that the detainees 
at Guantanamo all be tried. I know of one, for example, who has been 
held for 7 years and was notified a year ago there are no charges 
against him. The question is where he will be sent. He still languishes 
in prison because of that. It would be unjust for us to continue to 
keep him in Guantanamo without any charges against him beyond 7 years. 
I don't think he needs to be tried. We need to find a safe place to put 
him once we are certain he is not going to engage in acts of terrorism.
  This morning, President Obama is going to make a statement on this 
issue. The statement by the White House in advance of his speech at the 
National Archives--I think part of this press announcement bears 
repeating into the Record. It says:

       The President also ordered a review of all pending cases at 
     Guantanamo. In dealing with the situation, we do not have the 
     luxury of starting from scratch. We are cleaning up something 
     that is--quite frankly--a mess that has left in its wake a 
     flood of legal challenges that we are forced to deal with on 
     a constant basis and that consumes the time of government 
     officials whose time would be better spent protecting the 
     country. To take care of the remaining cases at Guantanamo 
     Bay, the President will, when feasible, try those who have 
     violated American criminal laws in Federal courts; when 
     necessary, try those who violate the rules of war through 
     military commissions; when possible, transfer to third 
     countries those detainees who can be safely transferred.

  President Obama is calling for an orderly, sensible review of cases 
at Guantanamo. For us to continue to keep voting on ways to foreclose 
the possibilities of bringing Guantanamo to a close in a responsible 
fashion I don't think is responsible conduct. I hope we will stop this 
and allow the President to show his leadership. He inherited this mess 
at Guantanamo. He is doing his best to find solutions in keeping with 
our values and keeping in mind his primary responsibility to keep us 
safe.
  I yield the floor.
  Mr. CHAMBLISS. Madam President, I simply close by saying the Senator 
is exactly right. There are military tribunals set up in Guantanamo 
today. In fact, those military tribunals had convicted three separate 
detainees, and the current administration, when they came into office, 
dropped the pending charges of twenty-some others awaiting trial, thus 
suspending the military commissions. These individuals can be tried by 
military tribunals at Guantanamo. They are in place and ready to go. I 
would simply urge that is the way these individuals need to be 
prosecuted and not to be brought to the United States and tried here.

  I yield the floor.

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