[Congressional Record (Bound Edition), Volume 151 (2005), Part 22]
[Senate]
[Pages 30799-30801]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          GUANTANAMO PRISONERS

  Mr. BINGAMAN. Mr. President, I rise today to express my strong 
disagreement with the language in the Defense appropriations and 
Defense authorization conference reports concerning the treatment of 
prisoners being held in Guantanamo Bay, Cuba.
  Under the McCain amendment, U.S. personnel are prohibited from 
engaging in torture or cruel, inhuman, or degrading treatment. I 
strongly support this. This ban applies to all military and 
intelligence personnel regardless of where they are located throughout 
the world. This is a clear statement that the United States will abide 
by its obligation to follow the law, and it is a step forward in 
reinstating our Nation's moral authority.
  However, the Graham amendment would undercut much of what we are 
accomplishing with the McCain amendment in two respects. First, it 
would undercut our commitment to prohibiting the use of torture by 
allowing evidence produced as a result of torture to be used in 
military legal proceedings. Second, it would undercut any enforcement 
of this prohibition by barring individuals from seeking judicial review 
of the legality of their detention or bringing a suit to stop unlawful 
treatment.
  When the Graham-Levin compromise passed the Senate, it had some good 
language in it, and it had some very troubling language.
  On the good side, the amendment provided that the Combatant Status 
Review Tribunals at Guantanamo, which are charged with determining 
whether individuals should be classified as so called enemy combatants, 
are not allowed to use evidence that is derived through ``undue 
coercion,'' such as torture. This was an important step forward. We 
should not be relying on information that is inherently unreliable in 
deciding whether to indefinitely detain a person. Unfortunately, this 
provision is now gone.
  In the conference report the outright prohibition on using evidence 
derived through torture was replaced with a mere assessment of whether 
the evidence has been derived through coercive means, such as torture, 
and whether the evidence has any probative value. I would hope that a 
military tribunal assessing such evidence would realize that evidence 
derived through torture is not reliable. However, as drafted, this bill 
would allow a Combatant Status Review Tribunal to use evidence derived 
through torture if the tribunal finds that the evidence is helpful.
  To the best of my knowledge this would be the first time in U.S. 
history that the United States would be on record as allowing this type 
of evidence in any type of legal proceeding. This is wrong and a huge 
step backwards.
  Furthermore, from a practical standpoint the assessment with regard 
to whether the evidence is derived though torture is essentially 
pointless. The conference report states that this assessment is only 
applicable prospectively. The problem is that of the over 500 prisoners 
being held at Guantanamo, every single one has already undergone a 
status hearing to determine whether or not they are an ``enemy 
combatant.'' Under the existing procedures, there is no exclusionary 
rule prohibiting the use of evidence derived through torture. 
Therefore, the Government may be basing its finding that some of these 
prisoners are ``enemy combatants'' on faulty evidence that is 
completely unreliable.
  Let me provide an example of why this language is so problematic. 
Suppose a person is detained by the U.S. Government and handed over to 
a foreign intelligence service for interrogation. While U.S. personnel 
are prohibited from using interrogation techniques that amount to 
torture or cruel, inhuman, or degrading treatment, other countries use 
interrogation techniques, such as electric shock or pulling off a 
person's fingernails, which do not comply with this standard. If a 
person is tortured while in the custody of one of these intelligence 
services, any statements that the person makes, either incriminating 
himself or another person, could be admissible in the Combatant Status 
Tribunal Review, or CSRT, process. Frankly, I, and most people, would 
confess to nearly anything to avoid the harshest forms of torture. We 
should not be permitting the use of this type of evidence in any legal 
proceeding.
  It is inconsistent to say that we will prohibit the use of torture by 
our military and intelligence personnel because it is legally and 
morally repugnant, but we will allow evidence derived in this manner to 
be used in our military proceedings. ``We don't do it, but if you do it 
we will use it,'' is hardly a position of clarity with regard to our 
commitment to uphold the prohibition on torture, or cruel, inhuman, or 
degrading treatment.
  The conference report also limits the ability of a prisoner at 
Guantanamo to file a writ of habeas corpus. This fundamental right has 
its foundation in the Magna Carta and is enshrined in our Constitution. 
Simply, it is the right to go to court when a person is detained by the 
Government and ask whether or not one's detention is justified. 
Contrary to how this right was characterized during debate on this 
bill, this is not about prisoners suing to get access to DVD movies or 
because they are unhappy with the type of peanut butter that they are 
being served--the Great Writ, as habeas is known, is meant to provide a 
basic check in preventing the Executive Branch from exercising 
unfettered authority in imprisoning individuals without judicial 
review.
  The fact is that mistakes happen. For example, take the recent case 
of the innocent German citizen who was picked up by the CIA in 
Macedonia and flown to a prison in Afghanistan where he was held in a 
secret facility for over 5 months because he was thought to be involved 
in terrorism--he wasn't. We made a mistake. Judicial review is 
important in reducing the likelihood that we are wrongfully imprisoning 
people, and we should have a viable process for weeding out these 
mistakes.
  According to news reports, commanders in Guantanamo have estimated 
that 70 percent of the individuals imprisoned there may be no threat at 
all. Whether this number is correct or not, it is reasonable to require 
that there be some meaningful judicial review in place to make sure 
that we are not indefinitely imprisoning people who pose no threat. If 
you are going to hold someone indefinitely for years on end without 
affording them a trial, I think it is fair to allow a person to 
challenge the basic legality of their detention.
  The Graham amendment, as it passed the Senate, restricted habeas 
corpus.
  Unfortunately, the conference report goes much further. It also 
prohibits a prisoner from bringing ``any other action'' against the 
Government regarding ``any aspect'' of their detention. This is an 
excessively broad restriction. It seems to eliminate all other causes 
of action, including the ability of a person to bring a suit to stop 
ongoing torture. This significantly undermines the McCain amendment. 
Ultimately, I have confidence that a court

[[Page 30800]]

will hold that this provision is overly broad and unconstitutional.
  In addition, it is also important to note what the conference report 
does not do. The language contained in the conference report limits 
access to U.S. courts. But the conference report does not provide an 
exception for people who have been found not to be a threat and have 
been determined to be ``non-enemy combatants.''
  Recently, the Washington Post has done a series of articles 
highlighting the plight of the ethnic Uighurs, who are Chinese Muslims 
opposed to the Communist government in China and who are seeking their 
own homeland in northwestern China. Mr. President, I ask unanimous 
consent that these Washington Post articles be inserted into the Record 
at the end of my statement.
  The Department of Defense has been holding a group of Uighurs in 
Guantanamo for the last 4 years. CSRT hearings have been held for these 
individuals, and the Department of Defense has determined that they are 
``non-enemy combatants.'' They are not a threat to our country and are 
not part of the al Qaida terrorist organization. The problem is that 
despite the finding that they are not ``enemy combatants,'' the Defense 
Department has refused to release them from Guantanamo because it can't 
find a country to take them--if they are sent to China they will likely 
be arrested and tortured, and countries such as Saudi Arabia, where 
many have lived previously, won't take them back. And the United States 
will not allow them to enter our country because it does not want them 
to apply for asylum.
  In essence, we are taking away the right of a person who is being 
held without charge, indefinitely, to go to court and ask for their 
release after the Department of Defense has said that they are 
essentially innocent. Not only is this repugnant to our Nation's 
values, it is also blatantly unconstitutional.
  Mr. President, over the last several years this administration has 
diminished our standing in the world by backing away from our 
longstanding commitment to human rights and the rule of law. I look 
forward to the day when the United States is once again viewed as a 
leader in this regard.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Dec. 15, 2005]

         Detainee Cleared for Release is in Limbo at Guantanamo

                    (By Josh White and Robin Wright)

       When U.S. forces freed Saddiq Ahmad Turkistani from a 
     Taliban prison in Kandahar, Afghanistan, in late 2001, the 
     detainee met with reporters at a news conference and told 
     U.S. officials that he had been wrongly imprisoned for 
     allegedly plotting to kill Osama bin Laden.
       An ethnic Uighur who was born and raised in Saudi Arabia, 
     Turkistani said he believed in the U.S. campaign against 
     terrorism. He professed hatred for al Qaeda and the Taliban--
     groups he said tortured him in prison--and offered to help 
     the United States. Intelligence officials and U.N. 
     representatives told Turkistani they would seek to find him 
     refuge, possibly in Pakistan, according to accounts he later 
     gave his lawyers.
       Instead, Turkistani was taken to a U.S. military base in 
     Afghanistan, where he was stripped, bound and thrown behind 
     bars. U.S. officials then strapped him into an airplane, 
     fitted him with dark goggles and sent him to the U.S. 
     detention facility at Guantanamo Bay, Cuba, in January 2002, 
     according to U.S. lawyers who represent him.
       Nearly four years later, Turkistani remains there, despite 
     being cleared for release early this year after a government 
     review concluded he is ``no longer an enemy combatant.'' It 
     is unclear exactly when that determination was made, but 
     Justice Department lawyers gave notice of it in an Oct. 11 
     court filing.
       Turkistani wrote a letter to his lawyers in recent months, 
     in which he asked about the welfare of his family, whom he 
     has not heard from in eight years: ``Now, I have been under 
     the control of the Americans for the past three years and 
     eight months. Six months ago, I was told by the Americans 
     that I am innocent and I am not an enemy combatant.''
       It remains a mystery why Turkistani was sent to Guantanamo 
     Bay at all. Some officials and his lawyers speculate that he 
     has been held by mistake. Or, they say, some officials may 
     have believed he had intelligence value because bin Laden 
     accused him of trying to plot his killing in 1998. U.S. 
     officials have offered no public explanation.
       Like a group of five Chinese Uighurs (pronounced wee-gurs), 
     Turkistani remains incarcerated because the United States 
     simply does not know what to do with him. He does not have 
     Saudi citizenship, and U.S. officials are having trouble 
     getting his home country to take him back. U.S. officials do 
     not want to send him to China, where Uighurs are seeking a 
     separate homeland, saying he is likely to be tortured.
       But unlike many detainees at Guantanamo Bay, Turkistani was 
     not captured on the battlefield, nor was he a suspected 
     terrorist. Instead, he was swept up in the confusion that 
     marked the early days of the U.S. war in Afghanistan, and 
     even as a potential ally found himself with no recourse to 
     challenge his detention.
       ``The crowning irony is that he is an enemy of bin Laden, 
     who was charged with conspiring to kill him, and we hold him 
     prisoner today,'' said Sabin Willett, a lawyer who has filed 
     a petition with the U.S. District Court in Washington on 
     Turkistani's behalf. ``It's heartbreaking that we throw 
     people into jail to rot.''
       Turkistani is one of nine detainees who live at Guantanamo 
     Bay's Camp Iguana, a less restrictive area of the prison 
     where detainees have limited privileges including access to 
     television and a few DVDs. Besides five Chinese Uighurs who 
     have not been accepted by any country, there is a Russian, an 
     Algerian and an Egyptian. All have been cleared for release 
     but have not been given their freedom.
       A former U.S. official familiar with detention operations 
     said mistakes were made in Afghanistan, when some detainees 
     were shipped to Cuba because space at the U.S. facility in 
     Bagram was limited and there was no clear plan on where to 
     house suspected enemy combatants.
       ``It's possible to get stuck there if you don't have a 
     state,'' the former official said. ``Particularly at that 
     time, when there were a lot of people getting picked up in 
     Afghanistan, cases people were unsure about tended to end up 
     in Cuba. People did get caught up in the situation.''
       Another U.S. official familiar with Guantanamo Bay said it 
     is likely that other ``stateless'' people will surface as the 
     military prepares to release more detainees.
       The Defense and State departments are working to return 
     such people to their home countries, if possible, and have 
     unsuccessfully tried to persuade at least 20 nations to take 
     in the Uighurs--including Sweden, Finland, Switzerland and 
     Turkey.
       ``The government is serious about finding a place for 
     resettlement for the Uighurs and will continue diplomatic 
     efforts to accomplish that goal,'' said Lt. Col. Mark 
     Ballesteros, a Pentagon spokesman. ``The United States has 
     made it clear that it does not expel, return or extradite 
     individuals to other countries where it believes it is more 
     likely than not they will be tortured.''
       Turkistani is one of more than 200 Guantanamo Bay detainees 
     who have filed habeas corpus petitions in U.S. District Court 
     in Washington, arguing that they are being held unlawfully 
     and asking the court to order their release.
       Turkistani told his lawyers that he was deported to 
     Afghanistan from Saudi Arabia sometime in 1997, after he was 
     jailed for alleged possession of hashish. Turkistani said he 
     was given fake Afghan identification and put on a plane from 
     Jeddah to Kabul because the Saudi government did not 
     recognize him as a citizen. He said that Afghan officials 
     detained him for six days before releasing him.
       He said he made his way to Khost, Afghanistan, and 
     befriended an Iraqi man. Before long, he and his friend were 
     arrested by four Arab al Qaeda members. Turkistani said he 
     was accused of being a Saudi spy, interrogated and tortured.
       Fearing for his life, after 20 days of severe beatings and 
     sleep deprivation, Turkistani said he ultimately gave what he 
     called a ``lengthy story'' about how the Saudis had sent him 
     there to kill bin Laden. He was turned over to the Taliban 
     and held in Kandahar for more than four years.
       Susan Baker Manning, another lawyer representing Turkistani 
     who met with him last month, said he denies allegations that 
     he tried to kill bin Laden and confessed only under torture. 
     Bin Laden, however, asserted in a statement in December 1998 
     that Turkistani and two accomplices had been hired by Saudi 
     Arabian officials to kill him and failed.
       Foreign news reports have indicated that the attack, 
     allegedly by poison, caused bin Laden's kidneys to fail and 
     netted Turkistani and his alleged accomplices hundreds of 
     thousands of dollars.
       Manning said that the government has been challenging 
     lawyers' efforts to represent Turkistani, and that he has 
     become intensely frustrated by his lengthy confinement.
       ``It's entirely possible that it's just a mistake,'' 
     Manning said. ``The enemy took away his life for 4\1/2\ 
     years, and we reward him for that by taking away his life for 
     another four years. He clearly opposed al Qaeda and the 
     Taliban, and he still feels that way. He's not a huge fan of 
     the U.S. anymore.''

[[Page 30801]]

     
                                  ____
               [From the Washington Post, Dec. 13, 2005]

               Court May Hear Chinese (Uighur) Detainees

                            (By Josh White)

       A federal judge in Washington said yesterday that he will 
     consider allowing two detainees in the military prison at 
     Guantanamo Bay, Cuba, to appear before him in court to 
     challenge their confinement, telling lawyers that the ethnic 
     Uighurs who have been cleared for release have been held too 
     long.
       U.S. District Judge James Robertson said he believes the 
     case of the Uighurs (pronounced wee-gurs ) presents ``a 
     genuine dilemma'' because the government has determined they 
     are not enemy combatants but has not found a country to 
     accept them. U.S. officials are not willing to send the 
     Uighurs--Muslims who are seeking their own homeland on what 
     is now part of northwestern China--to their native country 
     for fear that they would be tortured or killed.
       U.S. authorities have tried to persuade nearly two dozen 
     nations to provide refuge for the Uighurs but have refused to 
     allow them into the United States.
       No Guantanamo Bay detainee has been allowed to travel to 
     the United States and appear before a federal judge. The 
     government has fought efforts at judicial review after a 2004 
     Supreme Court ruling entitling detainees to a ``competent 
     tribunal'' to determine whether they are enemy combatants. 
     The issue is currently before the appellate court for the 
     District of Columbia Circuit.
       Government lawyers are concerned that such a move could 
     allow the Uighurs to immediately apply for asylum when they 
     arrive on U.S. soil.
       But Sabin Willett, an attorney for the detainees, said his 
     clients are essentially on U.S. soil already and asked the 
     judge to consider granting them a provisional ``parole'' that 
     would allow them to live with ethnic Uighurs in the 
     Washington area while their cases are considered.
       Robertson, who in August sought more time to consider the 
     cases, said yesterday that he is frustrated by the 
     government's inability to move forward, essentially stranding 
     five Uighurs who have been housed in a part of the detention 
     facility known as Camp Iguana, which is less restrictive than 
     the rest of the prison. The five Uighurs are living with four 
     others at the camp as they await a country to accept them.
       The Uighur detainees have been held, without charges, for 
     more than four years since their arrests in the Middle East.
       The judge said he had three options: deny the detainees' 
     motion and allow the case to go to an appellate court; order 
     them to appear before him for a hearing on their immediate 
     release; or order the government to release them outright 
     ``and see what happens, see how the government responds.''
       ``As far as I can tell, nothing is happening,'' Robertson 
     said, adding that he doesn't believe diplomatic progress has 
     been made. ``The time has stretched out to the point where 
     indefinite is not an inappropriate word to describe what is 
     happening.''
       Terry Henry, a Justice Department lawyer, said that 
     government officials have been working on a diplomatic 
     solution but that he could discuss it only in private. 
     Robertson declined to hear the information off the record.
       ``The government is serious about finding a place for 
     resettlement for the petitioners,'' Henry said.
       The Uighurs, through their lawyers, have argued that 
     because they are not a threat they should be moved to more 
     hospitable living conditions and have asked to be released to 
     live in the Washington area. Willett said his clients have 
     gone from elation in August--when they were moved to Camp 
     Iguana and given hope of release--to frustration as their 
     cases have dragged on.
       ``I am deeply concerned about the human impact of the 
     indefinite nature of this,'' Willett said.
       Rabiya Kadeer, president of the Washington-based 
     International Uyghur Human Rights and Democracy Foundation, 
     attended the brief hearing yesterday and pledged to provide 
     homes and jobs for the Uighurs should they be released to the 
     United States.

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