[Congressional Record (Bound Edition), Volume 149 (2003), Part 13]
[Senate]
[Pages 17791-17793]
[From the U.S. Government Publishing Office, www.gpo.gov]




           ADMINISTRATIVE DETENTIONS AND RIGHT TO DUE PROCESS

  Mr. BINGAMAN. Mr. President, we in America firmly believe that what 
distinguishes our country in the history of the world is our commitment 
to individual liberty and freedom. At the bedrock of a free society is 
the obligation that the Government takes on to afford individuals 
certain legal protections, the most basic of which is the freedom from 
incarceration unless the Government can prove that you have committed a 
crime.
  Today we are witnessing the abandonment by this current 
administration of our historic commitment to this most basic legal 
protection. The core element of due process law is the requirement that 
if individuals are taken into custody by the Government, then within 
some reasonable time, they will be advised of the crimes of which they 
are accused. They will be charged with those crimes and they will be 
prosecuted.
  This administration, working through the Justice Department, headed 
by Attorney General Ashcroft, and the Pentagon, headed by Secretary of 
Defense Rumsfeld, has taken the position that as to many individuals it 
now has in custody, no such legal requirements attach.
  It is my view that regardless of whether the person in custody is an 
American citizen or a foreigner, regardless of where he or she is 
apprehended, and regardless of the Government's preconceptions about 
his or her guilt, that person should be entitled to some reasonable 
standard of due process. Secrecy and disregard for the rule of law are 
not the ideals upon which a free and open society are based.
  To demonstrate the basis for my concern, I would like to describe to 
the Senate some of the actions that have

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been taken in recent months by the administration. These actions fall 
into three different categories. There are those that affect 
immigrants. There are those that affect so-called material witnesses. 
There are those that affect so-called enemy combatants.
  Let me start first with immigrants. In the case of immigrants, the 
inspector general in the Department of Justice has recently documented 
the abusive treatment of many immigrants by the FBI and the Justice 
Department in the period since 9/11. According to the IG's recent 
report, many immigrants were detained following 9/11 even though the 
FBI had no evidence that they were connected to terrorism. The report 
states that some detainees did not receive their so-called charging 
documents for more than 9 months after they were arrested. Even after 
they were charged, many detainees were held in ``extremely restrictive 
conditions of confinement'' for ``weeks and months with no clearance 
investigation being conducted.''
  The Attorney General would have us accept with no dissent that 
extraordinary times require extraordinary measures, even if it is at 
the expense of individual civil liberties. In my view, the fact that 
these immigrants were detained on alleged immigration violations does 
not permit the Government to totally disregard their rights. While the 
9/11 detainees were entitled to be represented by an attorney at their 
own expense, the inspector general found in many cases that the 
Government made it very difficult for detainees to obtain an attorney 
or to speak with that attorney on a regular basis.
  I hope the newly established Department of Homeland Security, which 
now has jurisdiction over immigration violators, will follow the 
inspector general's recommendation that it ensure that ``detainees have 
reasonable access to counsel, legal telephone calls, and visitation 
privileges consistent with their classification.''
  I am also troubled by the veil of secrecy which the administration 
has drawn around these detainees. The public and the Congress have a 
right to know the names of individuals detained in connection with the 
September 11 investigation. If we had had timely knowledge of the names 
of people discussed in the inspector general's report, we might have 
been able to shine some light on the process to ensure those 
individuals' rights were not violated.
  Unfortunately, a recent circuit court of appeals decision allows the 
Department of Justice to continue circumventing the Freedom of 
Information Act. The decision is likely to be appealed, and I hope that 
the earlier court decision ordering the release of the names will be 
upheld. In the meantime, however, I hope the Attorney General will do 
the right thing and voluntarily release the names of the September 11 
detainees. I was pleased to join Senators Feingold, Kennedy, Durbin, 
and Corzine last week in formally making that request. I hope the 
Attorney General will agree.
  Now let me speak about material witnesses.
  The second way in which the administration has been detaining people 
is under the authority of the material witness statute. This little-
known statute permits the Government to arrest and detain a potential 
witness whose testimony is material in a criminal proceeding and who is 
likely to flee. The statute says:

       Release of a material witness may be delayed for a 
     reasonable period of time until the deposition of the witness 
     can be taken pursuant to the Federal Rules of Criminal 
     Procedure.

  The issue here is the manner in which the statute has been applied 
and, in addition, the unreasonable length of time the administration 
has detained some individuals under this statute.
  On the first point, the administration appears to be using the 
material witness statute to detain some individuals without any 
intention of ever calling them to testify before a grand jury. In fact, 
a Washington Post article published last November reviewed 44 material 
witness cases. In 20 of the 44, the material witnesses were never 
called to testify.
  I share the concern of those who believe the administration is 
misapplying the statute in order to hold individuals without due 
process while those individuals themselves are being investigated. I 
would like to give the administration the benefit of the doubt, but 
their answers to a recent House Judiciary Committee inquiry shed little 
light on their intentions. In those answers, they stated:

       We can only provide information about those material 
     witnesses whose status has been made public in court 
     proceedings.

  The administration also refuses to provide the public with the 
specific number of people who have been detained, saying only that:

       As of January 2003, the total number of material witnesses 
     detained in the course of the September 11 investigation was 
     fewer than 50.

  Again, the public and the Congress are faced with the veil of 
secrecy. Tell me, Mr. President, what is the harm to national security 
in revealing the specific number of people who have been detained under 
the material witness statute or the list of charges that have been 
brought against such people? The public and the Congress have a right 
and an obligation to know.
  One last troubling point is the unreasonable length of time many 
material witnesses have been held. Again, the Justice Department 
refuses to provide any specific information. I know Senator Leahy has 
written to the Attorney General for more information on actions that 
have been taken under the material witness statute. He has requested a 
response by the end of this week. I very much hope that that response 
will be forthcoming. We need to know more about the Justice 
Department's use of the material witness statute, and the Congress 
needs to study whether changes should be made to ensure that due 
process is followed for individuals who are detained under this 
statute.
  Finally, we come to the third category of individuals who have been 
detained; that is, individuals the administration deems to be ``enemy 
combatants.''
  To date, the administration is holding three individuals within the 
United States as enemy combatants, and close to 700 are being held at 
the United States military base at Guantanamo Bay, Cuba. In all cases, 
these individuals are being held incommunicado, with no access to 
counsel and no opportunity for judicial review.
  It is not unreasonable to ask who qualifies as an ``enemy 
combatant.'' Since the Justice Department will not reveal the 
identities of many of the people it is holding, it is very difficult to 
tell. Most of these individuals were taken into custody in Afghanistan 
or Pakistan and are alleged to have been engaged in action against 
United States troops. At least a few of those held as enemy combatants 
are citizens of allied countries. According to the Financial Times, 
nine of those being held in Guantanamo are British citizens. At least 
one, Jose Padilla, is a U.S. citizen being held in South Carolina. 
Another, Ali Saleh Kahlah Al-Marri, is a citizen of Qatar and had been 
scheduled to go on trial this month in Illinois on charges of lying to 
the FBI. With the trial date approaching last month, the Justice 
Department removed him from the court system and jailed him in a Navy 
brig in South Carolina. Now that he is an enemy combatant and is 
classified as such, our Government takes the position that he need not 
be charged with any crime, he need not be given a hearing, his attorney 
is denied the right to see him, and he can be jailed indefinitely by 
the military in this condition.
  President Bush has announced that 6 of the 700 or so ``enemy 
combatants'' will be tried by a military tribunal. There are serious 
questions about the procedures intended to be used in those trials. But 
even more serious questions relate to those who remain in jail without 
any prospect of charges being brought or trials being conducted.
  The obvious question is: Where do we go from here with regard to 
these individuals?
  The administration has labeled these people ``enemy combatants'' and 
has asserted the right to keep them incarcerated, presumably until our 
enemies

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are vanquished. But the President has made it clear that the ``war on 
terrorism'' in which we are engaged is of indefinite duration.
  Is it the President's view that we can keep these individuals in 
prison in Guantanamo from now on without revealing who they are, 
without charging them with crimes, without affording them a hearing at 
which they can protest their innocence?
  This is not a tenable position. This is not consistent with the 
commitment to liberty and the rule of law on which this country was 
founded. We demand that other governments show greater respect for 
human rights than this, and we should demand better from our own 
Government as well.
  Let me say what I hope is obvious; that is, I am not advocating the 
release of these individuals. What I am advocating is that we afford 
them the right to be charged and to be tried for their alleged crimes. 
Most of those designated as enemy combatants have been in custody for 
more than 18 months without being charged.
  The Bush administration takes the position that they are not 
prisoners of war and, therefore, do not enjoy the protections of the 
Geneva Convention. Our Federal courts take the position that these 
individuals are in Guantanamo, not within territory controlled by the 
United States, and therefore the courts have no authority to ensure 
that basic rights are protected.
  In the case of Al Odah, et al, v. United States, the U.S. Court of 
Appeals for the District of Columbia sidestepped any responsibility for 
the enforcement of the Constitution by deciding that it had no 
jurisdiction over the detainees at Guantanamo. The argument used was 
that since the United States only occupies Guantanamo Naval Base under 
a lease it signed with Cuba in 1903, therefore, the court reasoned that 
Cuba is the sovereign nation with jurisdiction in Guantanamo and 
presumably the detainees should look to Castro for a remedy.
  The end result of all this legal maneuvering and sidestepping is that 
with regard to these individuals, our own Government has successfully 
managed to avoid and evade any obligation to abide by procedural due 
process.
  In the view of our Attorney General and the Secretary of Defense, 
there is no obligation to bring charges, there is no obligation to 
afford a hearing within a reasonable period of time, there is no 
obligation to permit legal counsel, and, in fact, there is no 
obligation to reveal who is being held in this enemy combatant status.
  The Attorney General further asserts that if a prosecution in the 
court system is not proceeding in a promising manner, he has the 
prerogative of unilaterally removing the defendant from the court 
system and jailing him for an indefinite period without the need to 
prove the individual's guilt.
  The administration's treatment of immigrants, material witnesses, and 
persons labeled as ``enemy combatants'' makes a mockery of our 
professed commitment to individual rights. Our great Nation does not 
have to abandon its Constitution and trample on the individual rights 
we hold dear to deal with the threats of a modern world. Terrorism is a 
threat to our Nation, but the undermining of our constitutional rights 
is also a threat.
  The idea of America is admired and emulated all over the world, in 
large part because we believe that the right to liberty is fundamental. 
In those circumstances when the State has reason to deprive a person of 
liberty, that individual should have the right to know what he or she 
is charged with and to have access to meaningful review of those 
charges.
  I urge the President, the Attorney General, and the Secretary of 
Defense to advise the Congress and the American people of the steps 
they will take to afford basic procedural rights to all those I have 
discussed here. Too many generations of Americans have fought to 
protect these rights for us to look the other way as they are being 
denied and disregarded. Our children and grandchildren would expect 
better of us, and we should expect better of ourselves.
  Mr. President, I yield the floor.

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