[Congressional Record Volume 155, Number 148 (Wednesday, October 14, 2009)]
[Senate]
[Pages S10386-S10387]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     MILITARY COMMISSIONS AMENDMENT

  Mr. McCONNELL. Mr. President, most Americans recognize that our 
continued success in preventing another terrorist attack on U.S. soil 
depends on our ability as a nation to remain vigilant and clear-eyed 
about the nature of the threats we face at home and abroad. Some 
threats come in the form of terror cells in distant countries, others 
come from people plotting attacks within our own borders, and still 
others can come from a failure to recognize that distinction between 
everyday crimes--everyday crimes--and war crimes.
  This last category of threat is extremely serious but sometimes 
overlooked, and that is why Senators Graham, Lieberman, and McCain have 
offered an amendment to the Commerce, Justice, and Science 
appropriations bill that would reassure the American people the Senate 
has not taken its eye off the ball.
  The amendment is simple and straightforward. It explicitly prohibits 
any of the terrorists who were involved in the September 11, 2001, 
attacks from appearing for trial in a conventional U.S. courtroom. 
Instead, it would require the government to use military commissions; 
that is, the courts proper to war for trying these men.
  By requiring the government to use military commissions, the 
supporters of this amendment are reaffirming two things: first, that 
these men should have a fair trial; and, second, we are reaffirming 
what American history has always shown; namely, that war crimes and 
common crimes are to be tried differently and that military courts are 
the proper forum for prosecuting terrorists who violate the laws of 
war.
  Some might argue that terrorists such as Zacarias Moussaoui, one of 
the 9/11 coconspirators, are not enemy combatants, that they are 
somehow on the same level as a convenience store stickup man. But 
listen to the words of Moussaoui himself. He disagrees.
  Asked if he regretted his part in the 9/11 attacks, Moussaoui said:

       I just wish it will happen on the 12th, the 13th, the 14th, 
     the 15th, the 16th, the 17th, and [on and on].

  He went on to explain how happy he was to learn of the death of 
American servicemen in the Pentagon on 9/11. Then he mocked an officer 
for weeping about the loss of men under her command, saying:

       I think it was disgusting for a military person to pretend 
     that they should not be killed as an act of war. She is 
     military. She should expect that people who are at war with 
     her will try to kill her. I will never cry because an 
     American bombed my camp.

  There is no question Moussaoui believes he is an enemy combatant 
engaged in a war against us.
  The Senate has also made itself clear on this question. Congress 
created the military commissions system 3 years ago, on a bipartisan 
basis, precisely to deal with prosecutions of al-Qaida terrorists 
consistent with U.S. national security, with the expectation that they 
would be used for that purpose. The Senate reaffirmed this view 2 years 
ago when it voted 94 to 3 against transferring detainees from 
Guantanamo stateside, including 9/11 coconspirators.
  We reaffirmed it, again, earlier this year when we voted 90 to 6 
against using any funds--any funds--from the war supplemental to 
transfer any of the Guantanamo detainees to the United States. Just 
this summer, the Senate reaffirmed the view that military commissions 
are the proper forum for bringing enemy combatants to justice when we 
approved, without objection, an amendment to that effect as part of the 
Defense authorization bill.
  Sometimes it seems like the only people who do not believe that men 
such as 9/11 mastermind Khalid Shaikh Mohammed should be treated as 
enemy combatants are working in the administration. How else can we 
explain the fact that over the summer the administration flew 
Guantanamo detainee Ahmed Ghailani to New York to face trial for 
bombing Embassies of the United States in Kenya and Tanzania, an attack 
that killed more than 200 people, including 12 Americans? This was an 
act of war. Ghailani does not belong in civilian court alongside con 
men and stickup artists.
  Our past experiences with terror trials in civilian courts have 
clearly been shown to undermine our national security. During the trial 
of the mastermind of the first Trade Center bombing, we saw how a small 
bit of testimony about a cell phone battery was enough to tip off 
terrorists that one of their key communication links had been 
compromised.
  We saw how the public prosecution of the Blind Sheik, Abdel Rahman, 
inadvertently provided a rich source of intelligence to Osama bin Laden 
ahead of the 9/11 attacks. We remember that Rahman's lawyer was 
convicted of smuggling orders to his terrorist disciples. These are 
just some of the concerns that arise from bringing terror suspects to 
the United States.
  Trying terror suspects in civilian courts is also a giant headache 
for local communities, as evidenced by the experience over here in 
Alexandria, VA, during the Moussaoui trial. As I have pointed out in 
previous floor statements, parts of Alexandria became a virtual 
encampment every time Moussaoui was moved to the courthouse. Those were 
the problems we saw in Northern Virginia, when just one terrorist was 
tried in civilian court. What will happen to Alexandria or other cities 
if several men who describe themselves as ``terrorists to the bone'' 
are tried in civilian courts there?
  It is because of dangers and difficulties such as these that we 
established the military commissions in the first place. If we cannot 
expect the very people who masterminded the 9/11 attacks to fall within 
the jurisdiction of these military courts, then whom can we?
  Democratic leaders, including the President, assure us they would 
never release terror suspects into the United States. But lawyers have 
repeatedly

[[Page S10387]]

warned about our inability to control the process once the suspects are 
given civilian trials. Once you bring them here, you cannot control the 
process.
  To illustrate the point, last year a Federal judge ordered the 
Uighurs, a group of men detained at Guantanamo, including some who 
received combat training in Afghanistan, to be released into the United 
States. Fortunately, the DC Circuit reversed this order. Why? Because 
the Uighurs had not been brought to the United States and, therefore, 
did not have a right to be released here. We do not know what would 
have happened if they had been transferred here already. But we do know 
that because they were not, they remain outside our borders, safely 
away from our communities.
  The American people have made themselves clear on this issue. They do 
not want Gitmo terrorists brought into the United States, and they 
certainly do not want the men who conspired to commit the 9/11 attack 
on America tried in civilian courts--risking national security, their 
potential release, and civic disruption in the process.
  Congress created military commissions for a reason. But if the 
administration fails to use military commissions for self-avowed 
combatants such as Khalid Shaikh Mohammed, then it is wasting this 
time-honored and essential tool in the war on terror.
  The amendment by Senators Graham, Lieberman, and McCain gives us all 
an opportunity to express ourselves, once again, on this vital issue. 
The question is not whether terror suspects should be brought to 
justice. The question is where and how. The answer is perfectly clear: 
The right forum is military commissions at the secure facility we 
already have at Guantanamo, not in civilian courts in the United 
States.

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