[Congressional Record Volume 155, Number 165 (Friday, November 6, 2009)]
[Senate]
[Pages S11248-S11249]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    TRIALS OF THE 9/11 PERPETRATORS

  Mr. WEBB. Mr. President, last night this body voted by a margin of 55 
to 45 against an amendment I cosponsored, which had been offered by 
Senator Graham, the purpose of which would be to prohibit the use of 
funds from the Commerce, Justice, Science appropriations bill to 
transfer individuals from Guantanamo and conduct trials of the alleged 
9/11 perpetrators in the United States domestic court system.
  The key argument in favor of tabling that amendment was that the 
President should be allowed discretion between using article III 
Federal courts and the military commissions that had been set up in 
Guantanamo.
  First, I was clear to the President, and to others, that I recognize 
his constitutional authority to use article III courts in that type of 
situation. But, again, I want to express my deep concern that, as we 
proceed forward with examining the cases of those detainees who are at 
Guantanamo, this issue is actually going to get more complicated, and 
we should hope that the discretion the President uses is very narrowly 
applied.
  The amendment Senator Graham offered addresses only the six alleged 
perpetrators in the 9/11 situation. A number of my colleagues came up 
to me and said: If you have an individual who is conducting an act of 
terror on American soil, shouldn't the President be authorized the 
discretion to try them in a Federal court?
  My personal view is, it is perhaps constitutionally permissible but 
inappropriate, in the same sense as on December 7, 1941, when Japanese 
bombers attacked Pearl Harbor. This was a foreign entity killing 
Americans, including American civilians, on American soil. It was not 
considered appropriate at that time, say, if we had a prisoner of war, 
if we shot a pilot down, that we would have brought them into the 
American court system and given them all due process rights, tried them 
for homicides, et cetera. They were combatants. They committed an act 
of war, and they should have been--and they were in the past--treated 
in that way.
  My belief is, even with the 9/11 perpetrators conducting such acts on 
our soil, there should be a different way, a more proper way to address 
these situations that involve enemy combatants.
  This issue is only going to get more complicated. We have a second 
increment of people who are at Guantanamo who are foreign nationals, 
not American citizens, who were apprehended on foreign soil--
Afghanistan being a classic example--for acts of war that were 
conducted not in this country but, again, on foreign soil. They are in 
Guantanamo. One would question the logic of whether they should be 
brought on American soil to be examined by an American court system and 
then apprehended in American prisons. I strongly believe this is not 
the appropriate way to deal with these individuals and particularly 
since, with the national Defense authorization bill that was just 
signed by the President, we have built in appropriate procedural 
protections in the Military Commissions Act.
  Then we have a third increment of people who are in Guantanamo who, 
we are told, because of either tainted evidence or the lack of 
sufficient evidence, may never be tried at all, nor will they be 
released because they are considered to be threats to our future at a 
time when we have ongoing, basically, combat relations against the 
international forces of terrorism, of which they are a part.
  This third increment which, as I said, will probably never be tried, 
is also being considered relevant to move into the United States. Here 
is the question we are going to have to answer: If you bring these 
people into the United States, our Constitution provides that 
individuals tried in article III courts should have a right--or an 
individual subject to article III courts should be tried in a speedy 
manner. We all have a right to a speedy trial if you are in the United 
States. We are not going to do that. So then the question is: What are 
we going to do with them?
  If you read the Supreme Court cases--and, again, as I said yesterday 
during the debate, I read in detail the Hamdi case which deals in part 
with this situation--if this individual is deemed an enemy combatant, 
they can be held for the duration of what we call the hostilities, 
until hostilities cease. That is a huge conundrum in terms of dealing 
with people who are not going to be charged, who are not American 
citizens, who are apprehended for acts outside our country and yet are 
going to be put into our prison system potentially indefinitely. I 
don't think it is going to reduce the situation we have had in 
Guantanamo in terms of the way a lot of people have viewed the 
processes that were in place there. I think it is only going to 
transfer that concern into the United States because these people will 
be detained in U.S. prisons, and I don't think that is going to be 
mitigated if these U.S. prisons happen to be military prisons.
  I wished to come to the floor to express my concern that the 
President, who has been given the discretion through the vote yesterday 
which tabled the Graham amendment, should be using it very narrowly, 
should not be in a rush to shut down the Guantanamo

[[Page S11249]]

facility in a manner that brings us the second and third increment of 
problems.
  I ask that the Members of this body join me in expressing their 
concern about a proper way to address this very complicated situation.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Virginia.
  Mr. DORGAN. Mr. President, will the Senator from Virginia yield for a 
unanimous consent request?
  Mr. WARNER. Yes.
  Mr. DORGAN. I ask unanimous consent that I be recognized following 
the presentation by the Senator from Virginia.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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