[Congressional Record Volume 155, Number 113 (Friday, July 24, 2009)]
[Senate]
[Pages S8085-S8086]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NATIONAL DEFENSE AUTHORIZATION ACT

  Mr. SESSIONS. Mr. President, I want to make a few comments on the 
Defense bill that passed late last night. Senator Levin and Senator 
McCain did a very fine job in working through all the difficulties we 
faced and tried to put together a bill that would support our troops. 
Indeed, I was on a video conference this at noon with a group of 
Alabama National Guardsmen and their families, an MP company from 
Prattville, AL, that is undertaking its third deployment. The company 
was last deployed to Guantanamo and now they will be going to Iraq. We 
owe a great deal to these people who put their lives on the line for 
us. They leave their families and loved ones and go into harm's way to 
execute the policies that we have set. As a result, we must never 
forget what we owe them. I hope we never do.
  I think the bill we passed has some good things in it. Some are 
troubling to me. I did not speak last night, in the late evening, about 
section 1031 of the National Defense Authorization Act entitled 
``Military Commissions and al-Qaida.'' It was an important little 
amendment and I want to share a few thoughts about it.
  What we discovered was in the Defense authorization bill, al-Qaida 
was removed from the unlawful enemy combatant definition. My amendment 
put that back into the bill. If you are a member of al-Qaida, you have 
earned the designation of an unlawful enemy combatant, or belligerent. 
We are now using the words unlawful enemy belligerent. Those 
individuals are people who operate outside the rules of warfare. They 
do not wear uniforms. They deliberately and systematically target women 
and children and innocents. They do not comply with the rule of law, 
the Geneva Conventions, and they, therefore, are not given the normal 
and full protections of the Geneva Conventions.
  A person who is at war with the United States, as al-Qaida has 
repeatedly announced that it is, who does their military activities 
without complying with the Geneva Conventions, deserves to be attacked. 
They deserve to be killed or captured by the U.S. military. If 
captured, they deserve either to be prosecuted or held until the 
hostilities are over. That is what the

[[Page S8086]]

historic rules of warfare are, it is what we have always done, and we 
need not be confused in this war and start treating it as if it were 
some sort of criminal activity. Doing so would compromise our ability 
to be effective and place at greater risk those individuals whom we 
send in harm's way, such as the 217th Military Police troop from 
Prattville, AL, which is going to Iraq. We don't need to be confused 
about what this is. It is not a law enforcement operation.
  We also adopted an amendment last night that prohibited the 
intelligence communities of the United States, our agencies or our 
military, from giving Miranda warnings to people captured on the 
battlefield. Giving Miranda warnings to unlawful enemy combatants is 
unthinkable. It is a confusing thing. What you are basically telling 
these people that we capture is: Don't talk, we will give you a lawyer.
  In fact, some of the NGOs, were telling Americans not to talk to them 
and ask for lawyers, because we were beginning to give Miranda 
warnings.
  The premise of this amendment is not an overreach. It is consistent 
with our law.
  Make no mistake, al-Qaida has announced it is and continues to be at 
war with the United States. We are at war with them. We cannot mince 
words. We cannot lead the world to believe that we have softened our 
resolve to defeat this enemy that threatens us.
  According to a CNN report from July 15, 2009, al Zawahiri, bin 
Laden's deputy, called on Muslims to join in a jihad against the United 
States. I wish that were not so but that is what it is. Last week a 
terrorist group affiliated with al-Qaida targeted two American-owned 
hotels in Jakarta, Indonesia. On July 21, just a few days ago, a Wall 
Street Journal article pointed out last week's hotel bombings were not 
some isolated event:

       In the 19 months leading up to the Jakarta attacks, Islamic 
     terrorists have brought their holy war to upscale properties 
     in Kabul, Afghanistan; Islamabad, Pakistan; Mumbai, India; 
     and Peshawar, Pakistan. The casualties thus far number 116 
     people killed and hundreds more injured.

  I ask my colleagues, in the middle of the war against al-Qaida, is it 
wise to remove al-Qaida from the definition of unlawful enemy 
combatant, or even the new form ``unprivileged enemy belligerent''? 
That is the new word we are using and perhaps it is all right. I don't 
know why we changed. But we have to be careful the words we use.
  Can anyone imagine the Congress removing ``Nazi'' from the wartime 
definitions in the middle of the Second World War? What do we hope to 
achieve by taking al-Qaida's name out?
  Fortunately, last night it was put back in. But what would have been 
achieved by removing their name from that list of organizations against 
which we are at war?
  The original Military Commissions Act passed in 2006 made it clear 
that the unlawful enemy combatant definition covered hostile groups 
``including a person who is part of . . . al-Qaida, or associated 
forces.''
  Let's be clear about what removing al-Qaida from the definition would 
have meant in the legal proceedings related to detainees. It will cloud 
them under uncertainty and ambiguity. Judges, whether military or 
civilian, will have to second guess whether al-Qaida members are truly 
eligible to be held as enemy combatants.
  This is not an unjustified concern. Let me tell you about one case 
where a Federal judge questioned whether an al-Qaida member who fought 
in the jihad could still be held as an enemy combatant. On April 15 of 
this year, Judge Huvelle of the U.S. District Court for the District of 
Columbia granted the habeas corpus petition of Yasin Muhammed Basardh, 
over the objections of the Obama administration.
  Habeas corpus petition is a right of a person in the United States 
who is held by the Government to ask why they are being held. It is 
referred to in the Constitution. Many of my colleagues have said you 
are denying these prisoners habeas corpus petitions--denying them, 
taking away something to which they are entitled.
  I would point out that is not correct. Nobody ever understood habeas 
corpus, as referred to at the founding of our Republic, as something 
applied to people captured in war against the United States. That was 
never what it meant. It is only a most recent incorrect definition of 
habeas that applied it to people who are trying to kill Americans and 
are at war against Americans. Some of the courts are confused on this, 
in my view. Congress has been a bit confused about it also.
  But Judge Huvelle, unwisely, I think, concluded that the United 
States could no longer hold Mr. Basardh because he no longer posed a 
realistic risk of joining the enemy--in his opinion. Judge Huvelle is 
not involved in the war. He is sitting safe and comfortable here in the 
District of Columbia. The execution of a war is placed in the hands of 
the men and women in the military to protect our country, whose lives 
are on the line.
  So this judge reached this conclusion because Basardh was cooperative 
while in custody at Guantanamo Bay. In her decision in 2009, Judge 
Huvelle failed to mention the many salient facts that showed why the 
Obama administration and the Bush administration before it opposed this 
man's release. According to unclassified Administrative Review Board 
records, Basardh was closely associated with al-Qaida, and directly 
linked to Osama bin Laden. He admitted to:
  No. 1, traveling from Yemen to Afghanistan to join the jihad, saying, 
``Yes, I did go to Afghanistan for the Jihad.''
  No. 2, training at the al-Qaida-run al Farouq camp near Kandahar in 
Afghanistan;
  No. 3, staying at Osama bin Laden's house in Kabul when the U.S. 
bombing began. ``It was Osama bin Laden's private house,'' he said.
  No. 4, meeting with bin Laden himself on numerous occasions.
  No. 5, responding to Osama bin Laden's call for all fighters to 
retreat and assemble at Tora Bora and,
  No. 6, being in the cave with Osama bin Laden at Tora Bora.
  If Federal courts are going to second guess the military on cases 
like Basardh under the current Military Commissions Act, Congress 
certainly should not weaken this act any more and give them any more 
ability to undermine our efforts.
  To the contrary, Congress should be crystal clear that membership in 
al-Qaida qualifies a detainee for unprivileged enemy belligerent 
status. My amendment removed any doubt over the detention of anyone who 
is a member of al-Qaida or served in its aid. My amendment will make 
clear that cases like this should not happen again. Simply put, if you 
are a member of al-Qaida you are going to be detained and held until 
the war is over, in the same way Nazi army prisoners of war treated 
during World War II.
  I urge my colleagues to think about this, to make sure we are fully 
cognizant of the dangers our country faces, and retain this language 
that was initially omitted, keeping al-Qaida by name as a group which 
we are at war against. It is important that doesn't get removed by the 
conference committee. I am going to be watching. I think it is a big 
deal.
  Oftentimes when the conference committee meets, they make substantive 
changes in the bill. Following conference, it will come back to the 
floor, and at that time we will be unable to amend it. I am going to 
watch. I think the American people need to know we are not confused in 
our thinking. We know against whom we are at war and we are committed 
to this effort and we are supporting our fabulous men and women who 
place their lives at risk for us. We must not undermine their efforts 
by creating circumstances in which Federal judges can treat military 
captives as ordinary criminals with all the rights pertaining thereto.
  I yield the floor.

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