[Congressional Record Volume 155, Number 86 (Wednesday, June 10, 2009)]
[Senate]
[Pages S6432-S6441]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          LEGISLATIVE SESSION

  The PRESIDING OFFICER. The Senate will now return to legislative 
session.
  The Senator from Illinois.


                               Guantanamo

  Mr. DURBIN. Mr. President, I want to make my comments about the 
minority leader's statement on the floor while he is still here. If he 
is willing to stay, we can engage in a dialog on this issue. I think it 
is time we do come to the floor together, along with the Republican 
whip, and at least make it clear what our positions are on some of 
these issues related to Guantanamo because it has been a matter of 
concern and a lot of comment on the floor of the Senate over the last 
several weeks.
  I was going to ask the Senator from Kentucky, the minority leader, 
whether I understood him correctly when he said he believed that this 
individual, Ahmed Ghailani, if found not guilty in a court in the 
United States, would be released in the United States to stay here in a 
legal status. I wish to ask the Senator, if that is what he said, what 
is the basis for that statement?
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I can only repeat what the President's 
spokesman himself said. I am responding to the question propounded to 
me by the Senator from Illinois. It is my understanding the President's 
spokesman yesterday refused to say what would happen to Ghailani if he 
were found not guilty. So there is some confusion about that.
  Mr. DURBIN. There is no confusion. This is such a leap to argue that 
if this man, who is not a resident of the United States--if I am not 
mistaken, he is Tanzanian--that somehow if he is found not guilty in 
the courts of the United States, he is qualified to be released into 
our population. That is a statement--I don't know anyone could draw 
that conclusion. He would have no legal status to stay in the United 
States unless we gave him one.
  By what basis does the Senator from Kentucky suggest that this man, 
who may have been involved in the killing of 12 Americans among 224 
other people, is going to be released by President Obama into our 
communities and neighborhoods?
  Mr. McCONNELL. Is the Senator asking me a question?
  Mr. DURBIN. I am.
  Mr. McCONNELL. Let me say I am only quoting the President's 
spokesman. He says he doesn't know what would happen if Ghailani is 
released.
  Let me say to the Senator from Illinois, let's assume that he is sent 
back to the country from which he came. I ask, in what way is America 
safer if this terrorist subsequently, under this hypothetical release 
in the United States, goes back to his native country from which he 
potentially could launch another attack on the United States?
  Mr. DURBIN. I say in response, my colleague from Kentucky is gifted 
at the political craft. He has decided not to answer my question but to 
ask a question of me.
  I say first that his assertion that this man, Ahmed Ghailani, if 
found not guilty would be released in the communities and neighborhoods 
of America cannot be sustained in law or in fact. He made that 
statement on the floor. That is the kind of statement that has been 
made about these Guantanamo detainees.
  I don't know what will happen to Mr. Ghailani if he is found not 
guilty. It is conceivable that he could be charged with other things. 
It is conceivable he could face a military tribunal. It is conceivable 
he may be subject to detention.
  I will say this with certainty. President Obama will not allow 
dangerous terrorists to be released in the United States in our 
communities and neighborhoods. I hope everyone on both sides of the 
aisle would agree with that.
  I also wish to ask, if the Senator from Kentucky is critical of 
President Obama for announcing that he was going to close Guantanamo 
before he had a plan, why didn't we hear the same complaint when 
President George W. Bush announced he was going to close Guantanamo 
before he had a plan? Is the difference partisan?
  Mr. McCONNELL. I say to my friend from Illinois, he has made this 
point before, and I answered it before. I will answer it again.
  I was against it when President Bush was in favor of it. I have been 
consistently against closing Guantanamo all along the way, no matter 
who the President was. At least you could say this about President 
Bush: He didn't put a date on it before he had an idea what he was 
going to do with them. And that is the core issue here.
  Mr. DURBIN. The core issue is for 7 long years, the Bush 
administration failed to convict the terrorists who planned the 9/11 
terrorist attacks--for 7 years. And for 7 long years, only three 
individuals were convicted by military commissions at Guantanamo, and 
two of them have been released. So to argue that the Guantanamo model 
is one that ought to be protected and maintained, notwithstanding all 
of the danger it creates for our servicemen overseas to keep Guantanamo 
open, is to argue for a plan under the Bush administration that failed 
to convict terrorists, failed with military tribunals and through the 
courts of this land.
  I have to say that as I listen to the argument of the Senator from 
Kentucky, it is an argument based on fear--fear--fear that if we try 
someone in a court in America, while they are incarcerated during 
trial, we need to be afraid. There was no fear in New York for more 
than 2 years while Ramzi Yousef was held in preparation for trial and 
during trial because he was held in a secure facility.
  Today we are told by the Department of Justice that there are 355 
convicted terrorists in American prisons. I ask the Senator from 
Kentucky, does he believe we should remove them from our prisons, those 
already convicted, currently serving, such as Ramzi Yousef?
  Mr. McCONNELL. I say to my friend from Illinois, maybe we found an 
area of agreement. He is critical of the Bush administration for not 
conducting military tribunals more rapidly. I agree with him. I think 
they should have been tried more rapidly. But that

[[Page S6433]]

is the place to try them, right down there in Guantanamo.
  If my friend is suggesting it is a good idea to bring these 
terrorists into the United States and, if convicted, put them in U.S. 
facilities, the supermax facility has basically no room. There may be 
one bed. As far as I know, there is no room at supermax.
  Not only do we have, if we bring them into the United States--I don't 
know why I am smiling. This is not a laughing matter. Say what you will 
about the previous administration, but we were not attacked again after 
9/11.
  Mr. KYL. Mr. President, will--
  Mr. McCONNELL. I don't have the floor, I say to my friend from 
Arizona. Maybe he can get the Senator from Illinois to yield for a 
question as well.
  I don't think we want to complain about the fact we haven't been 
attacked again since 9/11, I say to my friend from Illinois. Containing 
terrorists at Guantanamo, going after terrorists in Iraq and 
Afghanistan, clearly something worked. And to argue we would somehow be 
made more safe in this country by closing down Guantanamo I find 
borders almost on the absurd.
  Mr. DURBIN. With all due respect, the Senator failed to answer my 
question. I asked him this question: If it is a danger to America that 
if we put a convicted terrorist in our country, if that creates a 
danger, as he said repeatedly, in our communities and neighborhoods 
near this prison or in other places, then I asked the Senator from 
Kentucky, What would you do with the 355 convicted terrorists currently 
in prison, and the Senator didn't answer. He said: We haven't been 
attacked since 9/11. That is unresponsive.
  We know there are facilities where these convicted terrorists can be 
held safely and securely. Marion Federal Penitentiary in my home State 
has 33 convicted terrorists. I just spent a week down there, not far 
from the Senator's home State. There was not fear among the people 
living in that area because 33 terrorists are being held at Marion. You 
know why? Because our corrections officers there are the best.
  I went in to see them, and I sat down with them. They are concerned, 
angry, even insulted at the suggestion that they cannot safely hold 
dangerous people. One of the guards said to me: We held John Gotti. He 
was convicted of being involved in gangland activity. We are holding 
terrorists from Colombia in drug gangs. We are holding them safely. We 
are holding serial murderers safely. We know how to do this, Senator. 
And if your colleagues in the Senate don't believe it, have them come 
and visit Marion Federal Penitentiary.

  They are doing their job and doing it well. To come to the floor of 
the Senate repeatedly and to suggest we are in danger as a nation 
because convicted terrorists are being held in our prisons I don't 
think adequately reflects the reality of what we have today.
  Let me also say, I respect the Senator from Kentucky for saying he 
has always been in favor of keeping Guantanamo open. I respect him for 
being consistent in his viewpoint. I disagree with that viewpoint. 
Among those who also disagree with his viewpoint is GEN Colin Powell, 
the former Chairman of the Joint Chiefs of Staff and former Secretary 
of State under President Bush. He believes it should be closed. General 
Petraeus, someone I know the Senator from Kentucky has praised on the 
floor of the Senate, believes Guantanamo should be closed. They are not 
alone. Robert Gates, Secretary of Defense under President Bush and now 
under President Obama, believes it should be closed. Senator McCain on 
your side of the aisle stated publicly that Guantanamo should be 
closed. Senator Lindsey Graham, on your side of the aisle, has stated 
publicly it should be closed. Former Secretaries of State have made the 
same statements.
  He is entitled to his point of view. I respect him for holding that 
point of view even if he doesn't have the support from the security and 
military leaders I mentioned. But to come to the floor and repeatedly 
say to the American people that we are in danger because we are trying 
terrorists in the courts of America I think goes too far.
  I think the President has done the right thing. I think this man 
Ahmed Ghailani should stand trial. If 12 innocent Americans died, and 
they did, among 224 people, this man should be on trial, and I think 
the President was right to bring him to the court for trial. To suggest 
that he shouldn't be, that he should be put in a military tribunal 
which has had a record, incidentally, over the last 7 years--military 
commissions at Guantanamo, in 7 years tried three individuals and two 
have been released--it doesn't tell me that it is a good batting record 
when it comes to dealing with war criminals.
  I trust the courts of our land, the same courts that convicted Ramzi 
Yousef. I trust those courts to give Ghailani a fair trial under 
American law. I trust at the end of the day that a jury, if it is a 
jury, will reach its decision.
  I can tell you this for certain. The suggestion by the minority 
leader that at some point after this trial Ghailani is going to be 
turned loose in the communities and neighborhoods of America, I don't 
understand where that is coming from. That is the kind of statement 
that I think goes to the extreme. I wish my colleague would reflect on 
that. We are not going to turn loose this man who is not a resident of 
the United States, not a citizen of the United States if he is found 
not guilty. The President would never allow it. Our judicial system 
would never allow it.
  Do you think the Department of Homeland Security is going to clear 
this man to move to Louisville, KY, if he is found not guilty, or 
Springfield, IL? I don't think so. In fact, I think it is beyond the 
realm of possibility.
  I also want to make it clear that we have before us an important 
decision to make. Are we going to deal with Guantanamo because it is a 
threat to the safety of our servicemen or are we going to keep it open 
so that some people who believe in it can have their political bragging 
rights?
  I would rather side with those who believe closing Guantanamo brings 
safety to our men and women in uniform. Guantanamo is a recruiting tool 
for terrorists. That is not my conclusion alone. It is a conclusion 
that has been reached by many, as I look back and see those who have 
said it. For example, Chairman of the Joint Chiefs of Staff Mike 
Mullen:

       The concern I've had about Guantanamo . . . is it has been 
     a recruiting symbol for those extremists and jihadists who 
     would fight us. . . . That's the heart of the concern for 
     Guantanamo's continued existence. . . .

  Same statement from General Petraeus, same statement from Defense 
Secretary Gates, same statement from RADM Mark Buzby and others. We 
have a situation with Guantanamo where it is not making us safer. The 
President has made the right decision, hard decision to deal with the 
240 detainees he inherited. I think we should do this in a calm, 
rational, and not fearful way.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. Mr. President, let me say Senator McCain and Senator 
Graham can speak for themselves, but neither of them has ever been in 
favor of closing Guantanamo without a plan to do something. They want 
to see what the plan is to deal with these terrorists. Beyond that, 
they can speak for themselves. But they are not in favor of closing 
Guantanamo without a plan.
  With regard to the suggestion that we should bring these prisoners to 
the United States and try them, my good friend from Illinois has 
suggested there is no down side to that. Why not do it? We could. But 
the question is, Should we? We should not because we passed the 
military commissions for the purpose of trying these very detainees. 
There are courtrooms and a $200 million state-of-the-art facility at 
Guantanamo to both incarcerate them and to try them. We know no one has 
ever escaped there, and we know we haven't been attacked again since 9/
11.
  But let's assume we did bring them up here for trial. My good friend 
has suggested no harm done. During the Ramzi Yousef trial, he tipped 
off terrorists to a communications link. During the Zacarias Moussaoui 
trial, there was inadvertently leaked sensitive material. The east 
Africa Embassy bombing trials aided Osama bin Laden. The blind Sheikh 
Abdel-Rahman trial provided intel to Osama bin Laden. When you have 
these kinds of trials in a regular American criminal setting, there are 
down sides to it.
  In terms of community disruption, I would cite the mayor of 
Alexandria, VA, right across the river. Ask him

[[Page S6434]]

how he felt about the impact of the Moussaoui trial on their community.
  So I think the suggestion that somehow it is a good solution to bring 
these terrorists to the United States and to mainstream them into the 
U.S. criminal justice system is simply misplaced. If they are 
convicted, we don't have a good place for them. Everybody cited the 
supermax facility. Well, there is no room there. It is quite full. We 
have the perfect place for these detainees, for them to be detained and 
to be tried and ultimate decisions made.
  I share the view of the Senator from Illinois that the previous 
administration did not engage in those military tribunals as rapidly as 
we all would like. They had a lot of disruptions from lawsuits and 
other things, and I expect they would argue that slowed them down. But 
I think they are in the right place--the right place to be incarcerated 
and the right place to have their cases disposed of.

  Mr. President, my friend from Arizona is here and wants to address 
this, or another issue, and so I yield the floor.
  The PRESIDING OFFICER (Mr. Bennet). The Senator from Illinois.
  Mr. DURBIN. Mr. President, I will speak briefly, then yield to the 
Senator from Arizona. I will be happy, if he wants to ask a question or 
maintain a dialogue, but I will make this very brief.
  I have confidence in the courts of America. If I had to pick one 
place on Earth to have a trial and to be assured it would be a fair 
trial with a fair outcome, it would be right here in the United States 
of America. Maybe I have gone too far. Maybe I am showing my 
patriotism, or whatever it is, but I believe that.
  If you said to me: We captured a terrorist somewhere in the world, 
where would you like to have them tried? It would be right here because 
I believe in our system of justice. I believe in the integrity of our 
judiciary. I believe in our Department of Justice prosecutors. I 
believe in our defense system, our jury system. I believe we have the 
capacity and the resources to try someone fairly better than anyplace 
in the world.
  The Senator from Kentucky may not agree with that conclusion. He 
obviously thinks there is too much danger to have a trial of a 
terrorist in the United States. How then does he explain 355 convicted 
terrorists now sitting in American prisons, tried in our courts, sent 
to our prisons, safely incarcerated for years? That is proof positive 
this system works.
  The Senator from Kentucky, the Republican leader, is afraid. He is 
not only afraid of terrorism--and we all should be because we suffered 
grievously on 9/11--but he is afraid our Constitution is not strong 
enough to deal with that threat. He is afraid the guarantees and rights 
under our Constitution may go too far when it comes to keeping America 
safe. He is afraid of using our court system for fear it will make us 
less safe, that it would be dangerous. He is afraid the values we have 
stood for and the Geneva Conventions and other agreements over the 
years may not be applicable to this situation.
  I disagree. I have faith in this country, in its Constitution, its 
laws, and the people who are sworn to uphold them at every level. I 
believe Mr. Ghailani will get a fairer trial in the United States than 
anyplace on Earth, and that if he is found guilty in being complicit in 
the killing of over 200 innocent people and innocent Americans, he will 
pay the price he should pay, and he will be incarcerated safely.
  This notion that we have run out of supermax beds and that is the end 
of the story--and the State of Colorado is the home State of the 
Presiding Officer, where the Florence facility is located--I would say 
to the Senator from Kentucky that may be true for the supermax facility 
at the Federal level, but there are many other supermax facilities 
across America that can safely incarcerate convicted terrorists or 
serial murderers or whomever. We can take care of these people.
  If there is one thing America knows how to do--and some may question 
whether we should brag about it--we know how to incarcerate people. We 
do it more than any other place on Earth, and we do it safely. The 
notion there is only one place--Guantanamo--where these detainees can 
be safely held defies logic and human experience.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, first of all, I was going to interrupt and 
ask a question, but I simply conferred with Senator McConnell--and I 
will state and the Record can reflect the fact--that I believe Senator 
McConnell asked the question of where he would be released if he were 
acquitted. I don't believe he asserted that he would be released in the 
United States. I just wanted to clear that up. Obviously, we can check 
the transcript and determine it. I think that was his intent because of 
the question that Robert Gibbs had posed. At least that is my 
understanding of it. We can resolve that.
  But I would like to say a couple of other things. First of all, it is 
important to have this debate. The Senate had a debate some weeks ago, 
and it is true 90 Senators voted against funding a program to close the 
prison at Guantanamo Bay. Six Senators voted in favor of moving forward 
with that.
  I appreciate the Senator from Illinois staunchly defending the lonely 
six, but they represented also a minority of American public opinion, 
which has said, by 2 to 1, according to the USA Gallop poll, that it is 
against closing the Guantanamo prison, and by 3 to 1 they do not want 
the prisoners released in the United States.
  Both sides have engaged in a little bit of rhetoric. For example, I 
would respectfully request my colleague from Illinois go back over what 
he said a moment ago and perhaps come back tomorrow and think about 
rephrasing it. I don't think it is fair to characterize the position of 
the Senator from Kentucky as being fearful of trying people in the 
United States; fearful, for example, that terrorists--or afraid of 
giving terrorists rights and so on. I don't think that is the issue. I 
think what is the issue is the question of whether, as a general rule, 
it is better to keep prisoners in Guantanamo prison than to put them 
somewhere else.
  I, for one, don't fear trying some of these people who are 
appropriately charged and tried in Federal court in the United States. 
But I would also say it is loaded with problems and headaches, and I 
think my colleague from Illinois would have to acknowledge that the 
trials that have occurred here have produced some real problems. These 
are hard cases to try in the United States. You start with the 
proposition that there are huge security concerns.
  Now, it can be done. There will be huge security concerns with this 
alleged terrorist from Tanzania, and it will cost a lot of money in the 
place where he is tried. It will pose very difficult questions for the 
judge, for the people within the courtroom, the parties to the case, 
the lawyers in the case. There are evidentiary questions and other 
questions that are illustrated by the case of Zacarias Moussaoui, who 
was tried in Alexandria. I think we can all acknowledge the government 
would certainly say that was a huge problem for them because it was 
difficult to use evidence in the case that had been acquired through 
confidential or classified methods. The case was ping-ponged back and 
forth several times between the District Court and the court of 
appeals. It was a difficult, hard thing to do.
  Then there are the situations where cases have been tried in American 
courts and classified information has inadvertently--and in some cases 
not inadvertently--been released, gotten into the hands of terrorists. 
Let me just cite a few of these, and not to make the case that it is 
impossible or a terrible idea but also to refute the notion that it is 
a piece of cake. It is not. It is really hard. If you could avoid doing 
this, I think the better practice would be to try to do so. But on an 
occasional basis, when we have a good Federal charge, we have the 
evidence that can back it up, and we think we can get a conviction, 
there is nothing wrong in those few selected cases with doing it. But 
we can't say all 240 of the terrorists at Guantanamo qualify for that. 
Very few of them do, as the President said in his remarks.
  Let me note some of these cases. The famous trial of Ramzi Yousef. 
Here is a statement by Michael Mukasey, the former Attorney General. 
This is a quotation from the Wall Street Journal, again, during the 
trial of Ramzi

[[Page S6435]]

Yousef, the mastermind of the 1993 World Trade Center bombing:

       Apparently, an innocuous bit of testimony . . . about 
     delivery of a cell phone battery was enough to tip off 
     terrorists still at large that one of their communication 
     links had been compromised. That link, which in fact had been 
     monitored by the government and had provided enormously 
     invaluable intelligence, was immediately shut down, and 
     further information lost.

  I am not going to read the entire quotations but just some headlines. 
I mentioned the trial of Zacarias Moussaoui. That was a case also in 
which sensitive material was inadvertently leaked. Here is the headline 
from a CNBC story:

       The Government Went To The Judge And Said, ``Oops, We Gave 
     Moussaoui Some Documents He Shouldn't Have.'' . . . Documents 
     That The Government Says Should Have Been Classified.

  There is a whole story about how that happened. The East Africa 
Embassy bombing trials, which occurred after 2001, September 26 is the 
Star-Ledger story.

       The cost of disclosing information unwisely became clear 
     after the New York trials of bin Laden associates for the 
     1998 bombings of U.S. embassies in Africa. Some of the 
     evidence indicated that the National Security Agency, the 
     U.S. foreign eavesdropping organization, had intercepted cell 
     phone conversations. Shortly thereafter, bin Laden's 
     organization stopped using cell phones to discuss sensitive 
     operational details, U.S. intelligence sources said.

  There is another story about the same thing, with a headline in the 
New York Times. There is another quotation about the trial of the blind 
sheik, a story we are all familiar with, of Michael Mukasey, the former 
Attorney General, saying this in the Wall Street Journal:

       In the course of prosecuting Omar Abdel Rahman . . . the 
     government was compelled--as in all cases that charge 
     conspiracy--to turn over a list of unindicted coconspirators 
     to the defendants. Within ten days, a copy of that list 
     reached bin Laden in Khartoum.

  There are other cases. Mr. President, I ask unanimous consent to have 
these articles printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   [From FOX NEWS.com, Feb. 11, 2005]

               N.Y. Lawyer Convicted of Aiding Terrorists

                         (By Associated Press)

       New York.--A veteran civil rights lawyer was convicted 
     Thursday of crossing the line by smuggling messages of 
     violence from one of her jailed clients--a radical Egyptian 
     sheik--to his terrorist disciples on the outside.
       The jury deliberated 13 days over the past month before 
     convicting Lynne Stewart, 65, a firebrand, left-wing activist 
     known for representing radicals and revolutionaries in her 30 
     years on the New York legal scene.
       The trial, which began last June, focused attention on the 
     line between zealous advocacy and criminal behavior by a 
     lawyer. Some defense lawyers saw the case as a government 
     warning to attorneys to tread carefully in terrorism cases.
       Stewart slumped in her chair as the verdict was read, 
     shaking her head and later wiping tears from her eyes.
       Her supporters gasped upon hearing the conviction, and 
     about two dozen of them followed her out of court, chanting, 
     ``Hands off Lynne Stewart!''
       She vowed to appeal and blamed the conviction on evidence 
     that included videotape of Usama bin Laden urging support for 
     her client. The defense protested the bin Laden evidence, and 
     the judge warned jurors that the case did not involve the 
     events of Sept. 11.
       ``When you put Usama bin Laden in a courtroom and ask the 
     jury to ignore it, you're asking a lot,'' she said. ``I know 
     I committed no crime. I know what I did was right.''
       Lawyers have said Stewart most likely would face a sentence 
     of about 20 years on charges that include conspiracy, 
     providing material support to terrorists, defrauding the 
     government and making false statements.
       She will remain free on bail but must stay in New York 
     until her July 15 sentencing.
       The anonymous jury also convicted a U.S. postal worker, 
     Ahmed Abdel Sattar, of plotting to ``kill and kidnap persons 
     in a foreign country'' by publishing an edict urging the 
     killing of Jews and their supporters.
       A third defendant, Arabic interpreter Mohamed Yousry, was 
     convicted of providing material support to terrorists. Sattar 
     could face life in prison and Yousry up to 20 years.
       Attorney General Alberto Gonzales called the verdict ``an 
     important step'' in the war on terrorism.
       ``The convictions handed down by a federal jury in New York 
     today send a clear, unmistakable message that this department 
     will pursue both those who carry out acts of terrorism and 
     those who assist them with their murderous goals,'' Gonzales 
     said.
       Stewart was the lawyer for Omar Abdel-Rahman, a blind sheik 
     sentenced to life in prison in 1996 for conspiring to 
     assassinate Egyptian President Hosni Mubarak and destroy 
     several New York landmarks, including the U.N. building and 
     the Lincoln and Holland Tunnels. Stewart's co-defendants also 
     had close ties to Abdel-Rahman.
       Prosecutors said Stewart and the others carried messages 
     between the sheik and senior members of an Egyptian-based 
     terrorist organization, helping spread Abdel-Rahman's 
     venomous call to kill those who did not subscribe to his 
     extremist interpretation of Islamic law.
       Prosecutor Andrew Dember argued that Stewart and her co-
     defendants essentially ``broke Abdel-Rahman out of jail, made 
     him available to the worst kind of criminal we find in this 
     world--terrorists.''
       At the time, the sheik was in solitary confinement in 
     Minnesota under special prison rules to keep him from 
     communicating with anyone except his wife and his lawyers.
       Michael Ratner, president of the Center for Constitutional 
     Rights, said the purpose of the prosecution of Stewart ``was 
     to send a message to lawyers who represent alleged terrorists 
     that it's dangerous to do so.''
       But Peter Margulies, a law professor at Roger Williams 
     University in Rhode Island who conducted a panel on lawyers 
     and terrorism recently, called the verdict reasonable.
       ``I think lawyers need to be advocates, but they don't need 
     to be accomplices,'' he said. ``I think the evidence 
     suggested that Lynne Stewart had crossed the line.''
       Stewart, who once represented Weather Underground radicals 
     and mob turncoat Sammy ``The Bull'' Gravano, repeatedly 
     declared her innocence, maintaining she was unfairly targeted 
     by overzealous prosecutors.
       But she also testified that she believed violence was 
     sometimes necessary to achieve justice: ``To rid ourselves of 
     the entrenched, voracious type of capitalism that is in this 
     country that perpetuates sexism and racism, I don't think 
     that can come nonviolently.''
       A major part of the prosecution's case was Stewart's 2000 
     release of a statement withdrawing the sheik's support for a 
     cease-fire in Egypt by his militant followers.
       Prosecutors, though, could point to no violence that 
     resulted from the statement.
                                  ____


                   [From nytimes.com, Dec. 20, 2005]

              Bush Account of a Leak's Impact Has Support

                        (By David E. Rosenbaum)

       Washington.--As an example of the damage caused by 
     unauthorized disclosures to reporters, President Bush said at 
     his news conference on Monday that Osama bin Laden had been 
     tipped by a leak that the United States was tracking his 
     location through his telephone. After this information was 
     published, Mr. Bush said, Mr. bin Laden stopped using the 
     phone.
       The president was apparently referring to an article in The 
     Washington Times in August 1998.
       Toward the end of a profile of Mr. bin Laden on the day 
     after American cruise missiles struck targets in Afghanistan 
     and Sudan, that newspaper, without identifying a source, 
     reported that ``he keeps in touch with the world via 
     computers and satellite phones.''
       The article drew little attention at the time in the United 
     States. But last year, the Sept. 11 commission declared in 
     its final report: ``Al Qaeda's senior leadership had stopped 
     using a particular means of communication almost immediately 
     after a leak to The Washington Times. This made it much more 
     difficult for the National Security Agency to intercept his 
     conversations.'' There was a footnote to the newspaper 
     article.
       Lee H. Hamilton, the vice chairman of the commission, 
     mentioned the consequences of the article in a speech last 
     month. He said: ``Leaks, for instance, can be terribly 
     damaging. In the late 90's, it leaked out in The Washington 
     Times that the U.S. was using Osama bin Laden's satellite 
     phone to track his whereabouts. Bin Laden stopped using that 
     phone; we lost his trail.''
       In their 2002 book, ``The Age of Sacred Terror'' (Random 
     House), Steven Simon and Daniel Benjamin, who worked at the 
     National Security Council under President Bill Clinton, also 
     mentioned the incident. They wrote, ``When bin Laden stopped 
     using the phone and let his aides do the calling, the United 
     States lost its best chance to find him.''
       More details about the use of satellite phones by Mr. bin 
     Laden and his lieutenants were revealed by federal 
     prosecutors in the 2001 trial in Federal District Court in 
     Manhattan of four men charged with conspiring to bomb two 
     American embassies in East Africa in 1998.
       Asked at the outset of his news conference about 
     unauthorized disclosures like the one last week that the 
     National Security Agency had conducted surveillance of 
     American citizens, Mr. Bush declared: ``Let me give you an 
     example about my concerns about letting the enemy know what 
     may or may not be happening. In the late 1990's, our 
     government was following Osama bin Laden because he was using 
     a certain type of telephone. And the fact that we were 
     following Osama bin Laden because he was using a certain type 
     of telephone made it into the press as the result of a leak. 
     And guess what happened? Osama bin Laden changed his 
     behavior. He began to change how he communicated.''

[[Page S6436]]

       Toward the end of the news conference, Mr. Bush referred 
     again to this incident to illustrate the damage caused by 
     leaks.
                                  ____


             [From the Wall Street Journal, Aug. 22, 2007]

  Jose Padilla Makes Bad Law--Terror Trials Hurt the Nation Even When 
                        They Lead to Convictions

                        (By Michael B. Mukasey)

       The apparently conventional ending to Jose Padilla's trial 
     last week--conviction on charges of conspiring to commit 
     violence abroad and providing material assistance to a 
     terrorist organization--gives only the coldest of comfort to 
     anyone concerned about how our legal system deals with the 
     threat he and his co-conspirators represent. He will be 
     sentenced--likely to a long if not a life-long term of 
     imprisonment. He will appeal. By the time his appeals run out 
     he will have engaged the attention of three federal district 
     courts, three courts of appeal and on at least one occasion 
     the Supreme Court of the United States.
       It may be claimed that Padilla's odyssey is a triumph for 
     due process and the rule of law in wartime. Instead, when it 
     is examined closely, this case shows why current institutions 
     and statutes are not well suited to even the limited task of 
     supplementing what became, after Sept. 11, 2001, principally 
     a military effort to combat Islamic terrorism.
       Padilla's current journey through the legal system began on 
     May 8, 2002, when a federal district court in New York 
     issued, and FBI agents in Chicago executed, a warrant to 
     arrest him when he landed at O'Hare Airport after a trip that 
     started in Pakistan. His prior history included a murder 
     charge in Chicago before his 18th birthday, and a firearms 
     possession offense in Florida shortly after his release on 
     the murder charge.
       Padilla then journeyed to Egypt, where, as a convert to 
     Islam, he took the name Abdullah al Muhajir, and traveled to 
     Saudi Arabia, Afghanistan and Pakistan. He eventually came to 
     the attention of Abu Zubaydeh, a lieutenant of Osama bin 
     Laden. The information underlying the warrant issued for 
     Padilla indicated that he had returned to America to explore 
     the possibility of locating radioactive material that could 
     be dispersed with a conventional explosive--a device known as 
     a dirty bomb.
       However, Padilla was not detained on a criminal charge. 
     Rather, he was arrested on a material witness warrant, issued 
     under a statute (more than a century old) that authorizes the 
     arrest of someone who has information likely to be of 
     interest to a grand jury investigating crime, but whose 
     presence to testify cannot be assured. A federal grand jury 
     in New York was then investigating the activities of al 
     Qaeda.
       The statute was used frequently after 9/11, when the 
     government tried to investigate numerous leads and people to 
     determine whether follow-on attacks were planned--but found 
     itself without a statute that authorized investigative 
     detention on reasonable suspicion, of the sort available to 
     authorities in Britain and France, among other countries. And 
     so, the U.S. government subpoenaed and arrested on a material 
     witness warrant those like Padilla who seemed likely to have 
     information.
       Next the government took one of several courses: it 
     released the person whose detention appeared on a second look 
     to have been a mistake; or obtained the information he was 
     thought to have, and his cooperation, and released him; or 
     placed him before a grand jury with a grant of immunity under 
     a compulsion to testify truthfully and, if he testified 
     falsely, charge him with perjury; or developed independent 
     evidence of criminality sufficiently reliable and admissible 
     to warrant charging him.
       Each individual so arrested was brought immediately before 
     a federal judge where he was assigned counsel, had a bail 
     hearing, and was permitted to challenge the basis for his 
     detention, just as a criminal defendant would be.
       The material witness statute has its perils. Because the 
     law does not authorize investigative detention, the 
     government had only a limited time in which to let Padilla 
     testify, prosecute him or let him go. As that limited time 
     drew to a close, the government changed course. It withdrew 
     the grand jury subpoena that had triggered his designation as 
     a material witness, designated Padilla instead as an unlawful 
     combatant, and transferred him to military custody.
       The reason? Perhaps it was because the initial claim, that 
     Padilla was involved in a dirty bomb plot, could not be 
     proved with evidence admissible in an ordinary criminal 
     trial. Perhaps it was because to try him in open court 
     potentially would compromise sources and methods of 
     intelligence gathering. Or perhaps it was because Padilla's 
     apparent contact with higher-ups in al Qaeda made him more 
     valuable as a potential intelligence source than as a 
     defendant.
       The government's quandary here was real. The evidence that 
     brought Padilla to the government's attention may have been 
     compelling, but inadmissible. Hearsay is the most obvious 
     reason why that could be so; or the source may have been such 
     that to disclose it in a criminal trial could harm the 
     government's overall effort.
       In fact, terrorism prosecutions in this country have 
     unintentionally provided terrorists with a rich source of 
     intelligence. For example, in the course of prosecuting Omar 
     Abdel Rahman (the so-called ``blind sheik'') and others for 
     their role in the 1993 World Trade Center bombing and other 
     crimes, the government was compelled--as it is in all cases 
     that charge conspiracy--to turn over a list of unindicted co-
     conspirators to the defendants.
       That list included the name of Osama bin Laden. As was 
     learned later, within 10 days a copy of that list reached bin 
     Laden in Khartoum, letting him know that his connection to 
     that case had been discovered.
       Again, during the trial of Ramzi Yousef, the mastermind of 
     the 1993 World Trade Center bombing, an apparently innocuous 
     bit of testimony in a public courtroom about delivery of a 
     cell phone battery was enough to tip off terrorists still at 
     large that one of their communication links had been 
     compromised. That link, which in fact had been monitored by 
     the government and had provided enormously valuable 
     intelligence, was immediately shut down, and further 
     information lost.
       The unlawful combatant designation affixed to Padilla 
     certainly was not unprecedented. In June 1942, German 
     saboteurs landed from submarines off the coasts of Florida 
     and Long Island and were eventually apprehended. Because they 
     were not acting as ordinary soldiers fighting in uniform 
     and carrying arms openly, they were in violation of the 
     laws of war and not entitled to Geneva Conventions 
     protections.
       Indeed, at the direction of President Roosevelt they were 
     not only not held as prisoners of war but were tried before a 
     military court in Washington, D.C., convicted, and--except 
     for two who had cooperated--executed, notwithstanding the 
     contention by one of them that he was an American citizen, as 
     is Padilla, and thus entitled to constitutional protections. 
     The Supreme Court dismissed that contention as irrelevant.
       In any event, Padilla was transferred to a brig in South 
     Carolina, and the Supreme Court eventually held that he had 
     the right to file a habeas corpus petition. His case wound 
     its way back up the appellate chain, and after the government 
     secured a favorable ruling from the Fourth Circuit, it 
     changed course again.
       Now, Padilla was transferred back to the civilian justice 
     system. Although he reportedly confessed to the dirty bomb 
     plot while in military custody, that statement--made without 
     benefit of legal counsel--could not be used. He was instead 
     indicted on other charges in the Florida case that took three 
     months to try and ended with last week's convictions.
       The history of Padilla's case helps illustrate in miniature 
     the inadequacy of the current approach to terrorism 
     prosecutions.
       First, consider the overall record. Despite the growing 
     threat from al Qaeda and its affiliates--beginning with the 
     1993 World Trade Center bombing and continuing through later 
     plots including inter alia the conspiracy to blow up 
     airliners over the Pacific in 1994, the attack on the 
     American barracks at Khobar Towers in 1996, the bombing of 
     U.S. embassies in Kenya and Tanzania in 1998, the bombing of 
     the Cole in Aden in 2000, and the attack on Sept. 11, 2001--
     criminal prosecutions have yielded about three dozen 
     convictions, and even those have strained the financial and 
     security resources of the federal courts near to the limit.
       Second, consider that such prosecutions risk disclosure to 
     our enemies of methods and sources of intelligence that can 
     then be neutralized. Disclosure not only puts our secrets at 
     risk, but also discourages allies abroad from sharing 
     information with us lest it wind up in hostile hands.
       And third, consider the distortions that arise from 
     applying to national security cases generally the rules that 
     apply to ordinary criminal cases.
       On one end of the spectrum, the rules that apply to routine 
     criminals who pursue finite goals are skewed, and properly 
     so, to assure that only the highest level of proof will 
     result in a conviction. But those rules do not protect a 
     society that must gather information about, and at least 
     incapacitate, people who have cosmic goals that they are 
     intent on achieving by cataclysmic means.
       Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, 
     is said to have told his American captors that he wanted a 
     lawyer and would see them in court. If the Supreme Court 
     rules--in a case it has agreed to hear relating to Guantanamo 
     detainees--that foreigners in U.S. custody enjoy the 
     protection of our Constitution regardless of the place or 
     circumstances of their apprehension, this bold joke could 
     become a reality.
       The director of an organization purporting to protect 
     constitutional rights has announced that his goal is to 
     unleash a flood of lawyers on Guantanamo so as to paralyze 
     interrogation of detainees. Perhaps it bears mention that one 
     unintended outcome of a Supreme Court ruling exercising 
     jurisdiction over Guantanamo detainees may be that, in the 
     future, capture of terrorism suspects will be forgone in 
     favor of killing them. Or they may be put in the custody of 
     other countries like Egypt or Pakistan that are famously not 
     squeamish in their approach to interrogation--a practice, 
     known as rendition, followed during the Clinton 
     administration.
       At the other end of the spectrum, if conventional legal 
     rules are adapted to deal with a terrorist threat, whether by 
     relaxed standards for conviction, searches, the admissibility 
     of evidence or otherwise, those adaptations will infect and 
     change the standards in ordinary cases with ordinary 
     defendants in ordinary courts of law.
       What is to be done? The Military Commissions Act of 2006 
     and the Detainee Treatment Act of 2005 appear to address 
     principally the

[[Page S6437]]

     detainees at Guantanamo. In any event, the Supreme Court's 
     recently announced determination to review cases involving 
     the Guantanamo detainees may end up making commissions, which 
     the administration delayed in convening, no longer possible.
       There have been several proposals for a new adjudicatory 
     framework, notably by Andrew C. McCarthy and Alykhan Velshi 
     of the Center for Law & Counterterrorism, and by former 
     Deputy Attorney General George J. Terwilliger. Messrs. 
     McCarthy and Velshi have urged the creation of a separate 
     national security court staffed by independent, life-tenured 
     judges to deal with the full gamut of national security 
     issues, from intelligence gathering to prosecution. Mr. 
     Terwilliger's more limited proposals address principally the 
     need to incapacitate dangerous people, by using legal 
     standards akin to those developed to handle civil commitment 
     of the mentally ill.
       These proposals deserve careful scrutiny by the public, and 
     particularly by the U.S. Congress. It is Congress that 
     authorized the use of armed force after Sept. 11--and it is 
     Congress that has the constitutional authority to establish 
     additional inferior courts as the need may be, or even to 
     modify the Supreme Court's appellate jurisdiction.
       Perhaps the world's greatest deliberative body (the Senate) 
     and the people's house (the House of Representatives) could, 
     while we still have the leisure, turn their considerable 
     talents to deliberating how to fix a strained and mismatched 
     legal system, before another cataclysm calls forth from the 
     people demands for hastier and harsher results.

  Mr. KYL. Mr. President, the only point I am making is that while it 
is possible to try these people in Federal court, it is very difficult. 
It frequently results in the disclosure of information that we don't 
want disclosed. I think it would be far better, if we can, to try these 
people in military commissions. The President has now said he would go 
forward with military commissions--modified to some extent--and I think 
that is a good thing for the trial of those who are suitable for that 
action.
  The President also noted, of course, that there are going to be a lot 
of these terrorists who cannot be tried but are dangerous and need to 
be held, and the U.S. Supreme Court has affirmed the appropriateness of 
holding such people until the end of hostilities. The President has 
indicated that he would, in fact, do that.
  I think there is no question, therefore, that we will be holding some 
of these people. The question is where best to do it. This is the nub 
of the argument that my colleague and fellow whip, the Senator from 
Illinois, and I have been having long distance. I relish the 
opportunity when we can both get our schedules straight to literally 
have a debate back and forth. I think it is an important topic.
  I see now other colleagues are here, and so I will make one final 
point, and then I hope we can continue in this debate because I think 
it is a better policy to keep Guantanamo open and keep these prisoners 
there than to try to find some alternative.
  Let me cite one statistic, and then make my primary point. According 
to the numbers I have--and I would be happy to share these with my 
colleague from Illinois with respect to the slots available in our 
supermax facilities, if I can find it--there are about 15 high security 
facilities which were built to hold 13,448 prisoners. Those facilities 
currently house more than 20,000 inmates.
  The bottom line is that is not necessarily a supersolution either.
  Did my colleague have a quick comment? I want to make my main point.
  OK, thank you.
  Here is my main point. There are those very credible people who say: 
Well, this is a recruitment symbol. Guantanamo prison is a recruitment 
symbol. I have no doubt they are right, it is a recruitment symbol. 
Several questions, however, are raised by that observation.
  The first question is, even if it is false that there has been 
torture at Guantanamo prison--obviously, terrorists can believe 
falsehoods--should we take action based upon that falsehood?
  The next question I think has to be asked is, does this mean, then, 
that other terrorist recruiting symbols need to be eliminated by the 
United States?
  The third question is, would that eliminate their terrorism?
  What is it exactly that animates these terrorists? Gitmo didn't even 
exist before some of the worst--in fact, before all of the worst 
terrorist attacks on the United States or U.S. facilities abroad. There 
was no Gitmo prior to 9/11. Yet we had all of the various attacks that 
occurred throughout the world leading up to 9/11 and 9/11 itself. They 
didn't need another reason to hate America. They didn't need another 
reason to be able to recruit people. They have all the reasons they can 
dream up.
  I think the key reasons are that they fundamentally disagree with our 
way of life, and they believe they have an obligation, through jihad, 
to either get the infidels--that is all of us who don't agree with 
them--to bend to their will or to do away with us because they don't 
like our way of life. They do not like the fact that we have the 
culture we have. They do not like the fact that we give equal rights to 
women or that we have a democracy. There are a lot of things they hate 
about the Western World generally and about our society in particular.
  These are obviously recruiting symbols and recruiting tools. Are we 
to do away with these things in order to please them? And even if we 
did, what effect would it have on their recruiting? Do you think they 
would then say: OK, great. You have closed Guantanamo prison, you have 
taken away women's rights, you are halfway home to us not recruiting 
anybody or terrorizing you anymore. If you will only get rid of the 
vote and institute Sharia law, we can start talking here.
  I don't think that is the way they are going to act. They are going 
to have grievances against us no matter what. For us to assume we have 
to change our policies, to change what we think is in our best 
interests, simply to assuage their concerns because maybe they do use 
this as a recruiting tool, I think is to, in effect, hold our hands up 
and say: In the war against these Islamist terrorists, we have no real 
defenses because anything we do is going to make them unhappy. It is 
going to be a recruiting tool. After all, we wouldn't want to give them 
a recruiting tool.
  I do not think it is too much of an exaggeration to make the point I 
made. One might say: Obviously, we are not going to give up our way of 
life. They are going to have to deal with that. Well, then they are 
going to keep recruiting. But we could at least get rid of Guantanamo 
prison. That would at least get rid of one thorn. Would it make a 
difference? Nobody believes it would make a difference.
  The key point I make is--and this is just a disagreement reasonable 
people are going to have, I guess--I think Guantanamo is the best place 
to keep these people. My friend from Illinois thinks there are 
alternatives that are better and that, under the circumstances, we 
should make the change. Again, I observe that the American people seem 
to be on the side of not closing it down, and I do not think it all has 
to do with fear. I think it has to do with the commonsense notion that 
this is not going to remove terrorist recruiting. If it is better for 
us to keep them there, we might as well do that.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, I ask consent to speak in morning business 
for 5 minutes. I see other Members are on the floor and I will finish 
after 5 minutes and yield the floor on this issue we have debated.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I respect my colleague from Arizona and I respect the 
fact that we are on the floor together. This is a rarity in the Senate, 
where people with opposing viewpoints actually arrive at the same 
moment and have a chance at least to exchange points of view if not 
have more direct communication. I would say, as follows: I don't know 
what motivates the mind of a terrorist. I think I have some ideas and 
my colleague does as well. I do not know that we will ever be able to 
save every soul when it comes to those who are inclined toward 
terrorism. Let's face reality, it is like crime in this country. We all 
would like to see it go away, but we know, intuitively, there are some 
people who are bad people and do bad things and need to pay the price, 
and I think the same is true for terrorism.
  But when President Obama goes to Cairo, Egypt, and appears to speak 
to the Islamic world about this new administration and its new approach 
when it comes to dealing with Islam and says as part of it that the 
United

[[Page S6438]]

States has forsworn torture in Guantanamo, he has said to the world: We 
are telling you this is a different day. It is a new day. For those who 
are not convinced in terrorism and extremism, at least understand that 
America is now ready to deal with you in an honest way, in a different 
way. What message does it send if the Congress turns around and says to 
the President: No, you can't say that to the Islamic world. We are 
going to keep Guantanamo open. We are going to keep this open, even if 
it is an irritant.
  Don't take my word for it because I am not an expert in this field 
but those who are, many of them, believe Guantanamo should be closed. I 
would never question the sincerity or the resume of GEN Colin Powell, 
who has said close Guantanamo; GEN David Petraeus: Close Guantanamo; 
the Secretary of Defense: Close Guantanamo; President George W. Bush: 
Close Guantanamo.
  All of these people who have seen the intelligence and have the 
background believe it is time to close that facility. This President is 
trying to make good on that promise by President Bush and turn the page 
when it comes to Guantanamo and its future. I think that is critical to 
bringing about a more peaceful world and reaching out and saying to 
this world: Things have changed.
  I bet the Senator from Arizona joined me when we went upstairs to 407 
and saw the photographs from Abu Ghraib. It is a moment none of us will 
ever forget as long as we live. Some of the things we saw there were 
gut-wrenching. I stood there with my colleagues, women and men, 
embarrassed at the things I looked at.
  Some of those images are going to be with us for a long time, images 
that the people of the world have seen. We have to overcome them by 
saying it is a new day, and the clearest way to do that is to close 
Guantanamo in an orderly way, not to release any terrorists in the 
United States. On the question about whether we can incarcerate them--
even if our prison population is as large as it is, there are 
facilities available. Once this President is given this option to reach 
out to States and this Nation, I am confident he will find 
accommodations in Federal prisons and supermax State prisons to deal 
with 240 people who are now left at Guantanamo. I think that is 
something we can expect to happen, and it will happen.
  I will close by saying this: I asked the Senator from Kentucky twice 
if he would comment on what I heard to be his statement about whether 
this gentleman, Ahmed Ghailani, if found not guilty, would be released 
into the United States. He said Mr. Gibbs, the White House Press 
Secretary, had led him to that conclusion. I think, in fairness, Mr. 
Gibbs would say, clearly, he had no intention that this President or 
anyone in this administration would ever release this man, and there is 
no right under the law that he be released, even if he is found not 
guilty, into the U.S. population. It is not going to happen. I think 
raising that specter, raising that question, is raising that level of 
fear.
  I do not think fear should guide us. America is not a strong nation 
cowering in the shadows in fear. America is a strong nation when we 
realize our challenge, stand together united, don't abandon our 
principles, and use the resources we have around the world to make 
certain we are safer.
  The last point I will make is I have the greatest confidence in our 
system of justice, more than any in the world. I hope all my colleagues 
will have that same sense of confidence, that if the President sends a 
case to our courts of law, it will be handled professionally and fairly 
in the best possible manner.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I have enjoyed this debate between these 
two great Senators. It is an interesting debate. I come down on the 
fact, if they are moved into any of our facilities in this country--and 
there are very few that could take them; in fact, I do not know of any 
that can take them that are not overcrowded right now--there will be 
the same screaming and shouting because they will not be treated 
anywhere near as well as they are treated down there at Guantanamo. No 
matter what we do that new day is not going to be a very happy day. It 
is far better to have this $200 million state-of-the-art facility that 
has been approved by international organizations as being better than 
expected, better than average facilities that would be acceptable--it 
is better to acknowledge that and keep treating them as decently and 
with as much dignity as we can, which is more than they will get in a 
supermax facility in this country or any other facility.
  The supermax facilities are loaded with prisoners. They have more 
than they can handle now. Why would we put terrorists in among them, 
and why would we put them in this country where they can influence 
other people who are dissatisfied with life and have been discontented 
and have committed very serious crimes and allow them the recruitment 
possibilities they would have in our country? It doesn't make sense.
  Why would we blow $200 million on state-of-the-art facilities and 
then spend another $80 million to shut it down? It seems like it is 
going a little bit too far because of the attempt of this 
administration to please, basically, people who support terrorists and 
the rest of the world.
  Admittedly, there have been some outstanding people in our country 
who have come to the conclusion they should shut Guantanamo down, but 
they did so without having a real, viable alternative to Guantanamo. 
That is the issue that bothers me. I don't know of any State in the 
Union that wants these people within their prison system, assuming they 
could handle them. It means a lot more expense, a lot more problems. It 
means the possibility that they will be recruiting terrorists and 
helping criminals to become terrorists in our country. I can't begin to 
tell you the cost to this society if we do that. Be that as it may, the 
President seems to want to do that in spite of the fact that 
overwhelmingly the American people don't want him to do that.


                      state secret protection act

  Mr. HATCH. Mr. President, I rise today to express my reservations 
regarding the State Secrets Protection Act. Since one of the purposes 
of government is to provide a strong national defense, there are 
methods and sources that should never be disclosed for fear of 
irreparable damage to national security. The judicial branch has a 
long-documented history in addressing the state secrets privilege. 
Through the years, courts have affirmed time and again the privilege of 
the government to withhold information that would damage national 
security programs.
  The modern origin of this doctrine was established in United States 
v. Reynolds. The Supreme Court created the Reynolds compromise, which 
stated that the privilege applies when the court is satisfied ``from 
all circumstances of the case, that there is a reasonable danger that 
compulsion of the evidence will expose military matters which, in the 
interest of national security, should not be divulged.'' That is what 
the Supreme Court has held, and it has continued to affirm this 
position with the utmost deference to the executive branch. Under 
Reynolds, the state secrets privilege cannot--and has not--been lightly 
invoked. The pending bill before the Judiciary Committee, known as the 
State Secrets Protection Act, would negate the Reynolds compromise and 
create a higher standard of proof for the government to assert the 
privilege.
  My analysis of the legislation before us leads me to conclude that 
this bill will bring chaos to the balance struck by Reynolds. This bill 
lowers the deference that courts give to the executive branch in its 
assertion of the state secrets privilege. It raises the burden of proof 
that the government must meet to protect state secrets. The courts have 
built great flexibility into the state secrets doctrine to allow 
themselves the latitude to reach an effective compromise between the 
rights of litigants and the needs of national security. This is 
conducted on a case-by-case basis.
  The writers of this bill want to redefine the standard to only afford 
protection under the state secrets privilege only when the disclosure 
of evidence is ``reasonably likely to cause significant harm'' to 
national security. This is a serious departure from the long 
established precedent of Reynolds. This has ramifications that would 
severely impede the protection of national security secrets. It is 
preposterous to abandon a standard that has more than 55

[[Page S6439]]

years of jurisprudential evolution and case law to support it. The 
Reynolds compromise says if there is reasonable danger then we secure 
the information. S. 417 says if it is reasonably likely, you can 
compromise the information. 
S. 417 fails to protect state secrets.
  This state secrets privilege is never lightly used and never used 
with impunity. The assertion of this right must be made in writing by 
the head of the executive agency invoking the state secrets privilege. 
In recent cases this has sometimes been the Director of National 
Intelligence. Courts may conduct their own probe to ensure that the 
privilege has been invoke correctly. This probe will include an 
examination as to why the information being sought is needed to prove a 
plaintiff's case. Conversely, courts will examine as to why the 
information is critical to national security. After thoughtful review, 
a judge makes the determination on the production of evidence alleged 
to have been covered by the privilege. Not a law passed by politicians.
  There is a myth that the Bush administration invoked the state 
secrets privilege more than any other previous administration. Rooted 
in this fallacy is the idea that the administration overreached in 
asserting the privilege to protect information not previously thought 
to be within its scope. This erroneous notion was propagated by not 
only the media, but by Members of this body. Most legal experts in the 
field of national security law have stated that it is not possible to 
collect accurate annual statistics for year-to-year comparisons. There 
is no ``batting average'' that can be empirically compared from one 
presidential administration to another.
  To do so would incorrectly operate under the assumption that the 
government is presented with the same amount of cases each year in 
which the privilege can be asserted. It makes absolutely no sense to me 
to compare the administrations and judge them based on the total number 
of times they asserted the privilege.
  The flow of litigation changes from year to year and varies from each 
administration, as does the invocation of the privilege. It varies 
because of the times and circumstances. We have been living in very 
difficult times and circumstances where we have to protect this 
country; circumstances we have never had to face before. Therefore, it 
is ludicrous that attempts to compare the rate of assertions of this 
privilege and arrive at the incorrect conclusion that because the Bush 
administration used this privilege it must be changed.
  Unfortunately, for the authors of this bill, the data does not 
support the hypothesis that the Bush administration ever used the state 
secrets privilege in an attempt to dismiss complaints. Published 
opinions have revealed in the 1970s the government filed five motions. 
In the 1980s the government filed motions nine times. In the 1990s the 
government filed motions 13 times. Preliminary data available for the 
Bush administration indicate that the privilege was used 14 times.
  Therefore, the impetus for the State Secrets Protection Act does not 
support the conclusion that the Bush administration blazed a new trial 
in national security law. On the contrary, the authors of this bill are 
the ones attempting to alter national security law. Keep in mind, we 
have been going through an extended war on terrorism, and, frankly, 
there is a need to protect national security. That is why we have the 
state secrets law.
  In the first 100 days of the Obama administration--get that now--in 
the first 100 days of the Obama administration, the Department of 
Justice has invoked this privilege three times--in the first 100 days. 
This is the administration that was complaining about this. Now they 
found, when they faced reality and how important this privilege is, 
they changed their tune, and they should. I commend the administration 
and specifically the President for recognizing this.
  The administration has picked up where the Bush administration left 
off in three pending cases: Al Haramain Islamic Foundation v. Obama, 
Mohammed v. Jepperson Data Plan, and Jewell v. NSA. During an interview 
of a widely revered liberal journalist, Attorney General Eric Holder 
stated that in his opinion the Bush administration--get this word--
``correctly'' applied the state secrets privilege in these cases.
  If this legislation is passed in its present form, private attorneys 
would be given access to highly classified declarations before a judge 
rules on whether the state secrets privilege should prevent such a 
disclosure. Can you imagine the harm that could come to our country? It 
is hard to believe that anybody would be advocating this in the Senate 
with what we have been going through and the special wars that we have 
been going through and the special type of terrorists that we have been 
having to put up with.
  This legislation--lousy legislation--will have the effect of 
incentivizing lawsuits by rewarding attorneys who file lawsuits with a 
security clearance. I remember one case in New York where the attorney 
herself was convicted because she was passing on information.
  Now this clearance will grant these attorneys access to classified 
information that if divulged could reasonably harm our national 
security interests. It is bad enough trying to keep secrets around 
here, let alone with people who really should not be qualified for that 
type of classification. Does an attorney need absolute proof of some 
violation of law to file a lawsuit to learn details about classified 
programs? No, under this bill, they simply need to make an accusation. 
Any accusation will do.
  Ensuring national security programs stay classified is critical to 
our citizens' continued safety. Under this legislation, private 
attorneys, regardless of the merits of their lawsuits, will be given 
access to our Nation's secrets, secrets that are critical to the 
protection of our country. It is not hard to see how this legislation 
could seriously harm national security.
  It is hard for me to see why anybody would be arguing for this 
legislation. It is a legitimate concern that ideological attorneys 
would be willing to compromise national security interests and secrets 
and disclose classified information. There are at least two recent 
instances involving the disclosure of classified information. These are 
recent. I am just talking about the recent ones, and then only two of 
them. There may be more.
  In May 2007, a Navy JAG lawyer leaked classified information 
pertaining to Guantanamo detainees to a human rights lawyer. I find it 
disturbing that a U.S. military officer who is sworn to protect this 
Nation would disseminate classified information. But an even more 
troubling scenario is posed by private attorneys. In 2005, a more 
alarming case came to light when a civilian defense counsel was 
convicted of providing material support for a terrorist conspiracy by 
smuggling messages from her client, a Muslim cleric convicted of 
terrorism, to his Islamic fundamentalist followers in Egypt.
  Do you know how difficult it was to convict an Islamic fundamentalist 
religious leader? Yet this man was convicted, and rightly so. His 
attorney compromised these matters. In press interviews after the 
attorney was convicted, she said, ``I would do it again--it's the way 
lawyers are supposed to behave.''
  She also said that ``you can't lock up the lawyers. You cannot tell 
the lawyers how to do their job.''
  I am not implying that all lawyers would act so egregiously. What I 
am saying is there is a profound reason why the government has 
classifications for categorizing the sensitivity of information that is 
vital to national security. Providing top secret clearances to persons 
outside the employment of the United States is a colossal blunder. This 
bill will allow that.
  The courts recognize the executive branch's superior knowledge on 
military, diplomatic, and national security matters. Judges do not 
relish the thought of second-guessing decisions made by officials who 
are better versed on matters that may be jeopardized by allowing 
attorneys access to classified materials. Similarly, Congress should 
not relish the thought of second-guessing the judgment of courts that 
have given careful consideration regarding the appropriate legal 
standards to balance the interests of judges and national security 
programs.
  The State Securities Protection Act does not protect state secrets. 
This bill upsets the judicially developed balance between protection of 
national security and private litigants' access to secret

[[Page S6440]]

documents. The judicial branch has crafted a state secrets doctrine to 
give judges the flexibility to weigh these interests with appropriate 
deference to the executive branch. This judicially crafted doctrine is 
more than sufficient and has evolved from the 1912 case of Firth 
Sterling to Reynolds to current cases such as Hepting and Al Masri.
  The State Secrets Protection Act is unnecessary and potentially 
harmful to national security. Unless serious changes are made to this 
legislation and the amendments offered by myself and my Republican 
colleagues are adopted, I cannot in good conscience vote this bill out 
of committee. I do not know how any Senator sitting in this body can do 
so.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INHOFE. Mr. President, I ask unanimous consent to speak as in 
morning business for 12 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                               Guantanamo

  Mr. INHOFE. Mr. President, I have come to the floor over the past 
several years, countless times, talking about a resource we have called 
Guantanamo Bay. People refer to it as Gitmo.
  I was distressed about some of the statements our President made when 
he made the comment that we are going to close Gitmo and make sure 
there is no more torture. I have to say, there has never been one 
documented case of torture in Guantanamo Bay. It is ludicrous that 
people would say this. Every time I talk to someone who says we have to 
close Guantanamo Bay and you ask them what the reason for that is, they 
turn around and they say: It is because the people in the Middle East 
and some people in Europe think there is torture that has been going 
on. It goes back to the Abu Ghraib thing. This had nothing to do with 
Abu Ghraib. There has never been a documented case of torture.
  Let's look at this resource. We got Gitmo in 1903. It is one of the 
best bargains we have had in government because we only paid $4,000 a 
year for this. It is a state-of-the-art prison. We don't have anything 
in the United States that is as secure and as humane as Gitmo. They 
have a ratio of doctors to detainees of two to one, the same with legal 
help. I have been down there several times. If you talk to the ones who 
won't be throwing something at you, they will tell you they have never 
had food and treatment as good as they have had down there. I can't 
imagine we would take a resource such as that and close it down and 
bring some 200 or 240 terrorists to the United States. Yet that is 
exactly what the President is talking about doing.
  I was shocked when I picked up the newspaper on Monday morning and 
saw that Ahmed Ghailani, who was the terrorist who bombed the embassies 
in Tanzania and Kenya, was actually brought to the United States. He is 
in New York today. I didn't know about it until I read it in the 
newspaper. He is going to be adjudicated or go to trial in our court 
system.
  Here is the problem we have with that. These people in Guantanamo Bay 
are terrorists, detainees. These are not criminals. These are not 
people who committed a crime. They are not people to whom the normal 
rules of evidence would apply. In fact, most of the rules of evidence, 
it was assumed, would be in the form of military tribunals. Of course, 
those rules are different than they are in the court system. What will 
happen when you have some of the worst terrorists in the world coming 
up and getting tried in our system and we find out they have to be 
acquitted because the rules of evidence are not what they were during 
the time they were brought into custody?
  We have this resource we have used since 1903. It is the only place 
in the world we can actually put detainees. The President has said 
there are some 17 prisons in the United States where we can incarcerate 
these people. I suggest--and I don't think anyone will refute this--if 
you did that, you would have 17 magnets for terrorism.
  One of the places they suggested happened to be Fort Sill in 
Oklahoma. I went down to Fort Sill. There is a young lady there who is 
a sergeant major in charge of our prison. She said: What is wrong with 
those people in Washington? What is wrong with the President, thinking 
that we can incarcerate terrorists here in Oklahoma?
  This young lady was also a sergeant major at Guantanamo just a few 
months ago. She went back and she said: That is the greatest facility. 
There is no place where we can replicate that thing.
  She said: On top of that, we have the courtroom that was built.
  We spent 12 months and $12 million on a courtroom where we could have 
military tribunals, and they were going on. And President Obama ordered 
them to stop, and he wanted to bring them to the United States to be 
adjudicated here. This is outrageous.
  I have heard people on the Senate floor talk about how bad Guantanamo 
Bay is. They will never be specific. They will never talk about what is 
wrong with Guantanamo Bay. What are they doing? Are they torturing 
people? No. Are they being mistreated? No. There are six levels of 
security. When you are dealing with terrorist detainees, you have to 
put them in areas where the level of their activity is greater and 
requires more or less security, and we have that opportunity to do it 
there. No place else in America, no place else in the world can they do 
that.
  By the way, it is not just 245 detainees whom we have to deal with. 
It is worse than that because in Afghanistan, with the surge taking 
place right now, there will be more detainees. There are two major 
prisons: Bagram--and I can't remember the other one in Afghanistan. 
They will say they could be incarcerated there. No, they won't, because 
they won't accept any detainees who are not from Afghanistan. So if 
they are from Djibouti or from Saudi Arabia or someplace else, we have 
to have a place to put them or else you turn them loose or else you 
execute them.
  A lot of these people who think they should not be incarcerated in 
any prison at all, you have to keep in mind, you can't turn them loose 
on society. These are people who are not normal, people like normal 
criminals. First of all, they have no fear of death. It is just 
ingrained in them. These are people who want to kill all of us. So we 
are talking about very dangerous people.
  I am very much concerned. I did not believe President Obama would go 
through with bringing terrorists to the United States. I didn't think 
that would happen. Yet I picked up the paper Monday morning and there 
it is. Ahmed Ghailani, one of the worst terrorists around, killed 244 
people, many Americans, in Tanzania and Kenya. This is something that I 
know the American people don't want. I would hope many of my good 
Democratic friends are not going to line up and support President Obama 
in bringing these terrorists to the United States.
  I guess I am prejudiced. I have 20 kids and grandkids. I don't want a 
bunch of terrorists in this country where they are subjected to that 
type of thing. The fact is, they would be magnets; there is no doubt in 
my mind. This Sergeant Major Carter at Fort Sill said that if we put 
them down there, they would be in a position where it would draw 
terrorist activity to my State of Oklahoma.
  By the way, I think there are 27 State legislatures that have passed 
resolutions saying they don't want any of the detainees located in 
their States. I can assure my colleagues that every one of the 17 
proposed sites that would house these people is a site where they have 
passed resolutions saying: We don't want them here.
  The liberal press is always talking about how bad things are and we 
have to close Gitmo. If you go down there, you find that those people 
have never been there. Almost without exception--I don't know of one 
exception where if they have gone down there and they have seen how 
humanely people are treated, they have seen a resource down there that 
we can't replicate any place in the United States, they come back 
shaking their heads saying: What is wrong with keeping Gitmo open? Even 
Al Jazeera went down there. That is a Middle Eastern network. They went 
down and had to admit publicly that the treatment was better there

[[Page S6441]]

than it is in any of the prisons they are familiar with.

  Abu Ghraib was a different situation. Yes, some of our troops were 
involved in that. Most people wouldn't call it torture. It is more 
humiliation than anything else. But nonetheless, they did that. But the 
interesting thing about Abu Ghraib is, prior to the time that the 
public was aware that was going on, the Army had already come in and 
started their discipline, and it stopped that type of thing from taking 
place. But even if it weren't, for people to think just because there 
was something in their minds that was torture that was going on in Abu 
Ghraib, to even suggest that was going on in Guantanamo Bay is totally 
fictitious.
  I have been privileged to take several Members down with me to see 
this firsthand. I think every Member of the Senate should have to go 
down and see for himself or herself what is really going on down there.
  We can't afford to take a chance on turning terrorists loose in the 
United States. The polling that came out just this morning showed that 
by a margin of 3 to 1, people do not want to close Guantanamo Bay. We 
have to keep Gitmo open.
  I was in a state of shock when I found out that one of the worst 
terrorists incarcerated down there was brought back to face justice in 
our court system in New York.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BEGICH. 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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