[Congressional Record (Bound Edition), Volume 152 (2006), Part 14]
[Senate]
[Pages 19162-19164]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          TERRORIST TRIBUNALS

  Mr. CORNYN. Mr. President, one of the lessons America learned after 
the tragic events of September 11, 2001, is the danger of treating our 
fight against global terrorism as a law enforcement function alone. 
This was documented time and time again, whether it is the wall that 
was erected that prevented intelligence authorities from getting access 
to important information and sharing it with law enforcement 
authorities, and vice versa, or whether it was waiting until a 
terrorist attack occurred and then merely investigating in the rubble 
and the destruction left behind, and then prosecuting the person, if, 
in fact, he could be prosecuted and brought to justice.
  It concerns me a great deal that we have seemed to lapse once again 
into a pre-September 11 mindset where some of our colleagues, as we 
debate the use of terrorist tribunals and the access to our court 
system those convicted of war crimes should have, seem to have 
forgotten some of those lessons learned from September 11. It is 
important we not fight this global war on terrorism strictly as a law 
enforcement matter, punishing conduct after the fact rather than 
gaining intelligence we need in order to detect, deter, and disrupt 
terrorist attacks from occurring in the first place. Specifically, I 
will address what sort of avenues of appeal detainees at Guantanamo Bay 
should have regarding their convictions and their status review.
  Members may recall late last year the Congress passed something 
called the Detainee Treatment Act in which we thought we had dealt 
comprehensively with the issue of how detainees, unlawful combatants, 
should be treated. Of course, we reiterated our commitment, the ban 
against torture, cruel and inhumane and degrading conduct, but in that 
important piece of legislation, Congress also said that detainees, 
these unlawful combatants, people who do not observe the laws of war, 
who target innocent civilian populations, are not entitled to receive 
the full panoply of rights accorded to American citizens when tried in 
an Article III court of law.
  Specifically, we said that for the writ of habeas corpus that 
otherwise might be available to them, we would substitute an 
alternative procedure composed of three different things. We created 
the combat status review tribunal, first, which was designed to make 
sure the individuals who are actually detained at Guantanamo Bay

[[Page 19163]]

were, in fact, enemy combatants, and to make sure we did not in the 
course of or in the fog of war sweep up innocent bystanders who were 
not actually a threat to the United States. These combat status review 
tribunals have very important procedures I will mention in a moment.
  However, we also saw the use of administrative review boards that on 
an annual basis review the status of a particular detainee at 
Guantanamo Bay to determine, No. 1, whether they were a continuing 
threat to the American people or our allies, and, No. 2, whether 
additional actionable intelligence could be obtained from them during 
the interrogation process.
  This administrative review board is an annual process and has 
resulted in the release of many of the detainees who were at Guantanamo 
Bay who had been determined to no longer be a danger to the American 
people or our allies.
  The fact is these two procedures--the combatant status review 
tribunal and the administrative review board--are coupled together with 
an additional right of appellate review provided under the Detainee 
Treatment Act which is full review of a conviction by a military 
commission by the District of Columbia Court of Appeals in the Nation's 
capital. That court is not restricted in any way to review any and all 
errors they believe are material to the outcome of the case, and I 
believe, combined with the combatant status review tribunal and the 
administrative review board, does provide a due process for these 
detainees in a way that does not jeopardize this legislation, should it 
be ultimately reviewed by the U.S. Supreme Court.
  Actually, I think it might surprise some of our colleagues to be 
talking about this issue because they may well have thought we 
addressed this issue late last year when we passed the Detainee 
Treatment Act. The fact is, in the Hamden case, handed down in June, 
the U.S. Supreme Court said Congress had not made sufficiently clear 
its intention to apply the Detainee Treatment Act to pending cases. 
Therefore, it went on to decide the Hamden case, refused to throw out 
the appeal based on a lack of jurisdiction, and, in fact, left us with 
a situation where about 300 of the detainees at Guantanamo Bay have 
about 600 applications for writs of habeas corpus pending in American 
courts.
  The United States provides adequate evidentiary hearings to ensure 
that detainees held at Guantanamo Bay are, in fact, unlawful 
combatants, and, No. 2, pose a threat to the United States national 
security interests. These detainee status hearings and other procedures 
provided by the United States to terrorist detainees at Guantanamo Bay 
meet, and in many ways exceed, the requirements for prisoners of war 
under article V of the Geneva Conventions.
  As I mentioned, on top of these status hearings, meaningful judicial 
review is provided by the U.S. Federal Court of Appeals. Final judicial 
review is provided of those decisions. These status hearings and 
judicial review mechanisms were codified as part of that Detainee 
Treatment Act.
  The District of Columbia Circuit Court of Appeals--which many in this 
Chamber have referred to as the second highest court in the land--has 
the power to review not only whether the Department of Defense 
faithfully followed the procedures prescribed by Congress but also 
whether those procedures comport with the U.S. Constitution.
  For some to say, as I actually heard this morning in a hearing we had 
before the Senate Judiciary Committee, that ``no meaningful judicial 
review'' is provided to unlawful combatants is, I claim, inaccurate and 
misleading.
  While providing these judicial procedures, Congress saw fit to 
foreclose the possibility of a flood of habeas corpus petitions 
overwhelming the Federal courts and distracting our men and women in 
uniform from prosecuting the war effort. The status hearings and 
judicial review mechanisms are intended to satisfy the meaningful 
review requirement in the absence of the ability to file a petition for 
writ of habeas corpus. Alien enemy combatants, whether lawful or 
unlawful under the Geneva Conventions, have never been found by the 
U.S. Supreme Court to have a right to file a habeas corpus petition in 
American Federal courts.
  In 1950, the U.S. Supreme Court ruled in a case called Eisentrager v. 
Johnson that enemy combatants held by U.S. forces overseas are not 
entitled to the ``privilege of litigation'' and cannot sue our military 
in our courts.
  Beyond the constitutional arguments for removing habeas jurisdiction, 
there are important practical considerations, as well, as explained in 
the Eisentrager decision. The Supreme Court explained clearly and 
eloquently why we cannot let enemy combatants sue the U.S. military and 
our soldiers in American Federal courts. It said:

       Such trials would hamper the war effort and bring aid and 
     comfort to the enemy . . . It would be difficult to devise a 
     more effective fettering of a field commander than to allow 
     the very enemies he is ordered to reduce to submission to 
     call him to account in his own civil courts and divert his 
     efforts and attention from the military offensive abroad to 
     the legal defensive at home. Nor is it unlikely that the 
     result of such enemy litigation would be a conflict between 
     judicial and military opinion highly comforting to enemies of 
     the United States.

  These burdens, as identified by the U.S. Supreme Court placed on our 
military by enemy combatant litigation, persist today.
  The Department of Justice has detailed the significant burdens. It 
has said:

       The detainees have urged habeas courts to dictate 
     conditions on [Guantanamo Naval] Base ranging from the speed 
     of Internet access afforded their lawyers to the extent of 
     mail delivered to the detainees.

  More than 200 cases have been filed on behalf of 600 purported 
detainees. Curiously, this number exceeds the number of detainees 
actually held at Guantanamo Bay, which is closer to 500.
  Also, according to the Department of Justice:

       This habeas litigation has consumed enormous resources and 
     disrupted the day-to-day operation of Guantanamo Naval Base.

  The United States also notes that this litigation has had a serious 
negative impact on our war against al-Qaida. According to the U.S. 
brief, in the al-Qaida case:

       Perhaps most disturbing, the habeas litigation has 
     imperiled crucial military operations during a time of war. 
     In some instances, habeas counsel have violated protective 
     orders and jeopardized the security of the base by giving 
     detainees information likely to cause unrest. Moreover, 
     habeas counsel have frustrated interrogation critical to 
     preventing further terrorist attacks on the United States.

  Michael Ratner, a lawyer who has filed lawsuits on behalf of numerous 
enemy combatants held at GTMO, boasted about disrupting U.S. war 
efforts to a magazine--Mother Earth magazine. He said:

       The litigation is brutal for [the United States]. It's 
     huge. We have over one hundred lawyers now from big and small 
     firms working to represent the detainees. Every time an 
     attorney goes down there, it makes it that much harder [for 
     the U.S. military] to do what they're doing. You can't run an 
     interrogation . . . with attorneys. What are they going to do 
     now that we're getting court orders to get more lawyers down 
     there?

  Former Attorney General Bill Barr explained the folly of applying 
American criminal procedure and judicial process and standards to 
questions of the enemy combatants. He said:

       In armed conflict, the body politic is not using its 
     domestic disciplinary powers to sanction an errant member, 
     rather it is exercising its national defense powers to 
     neutralize the external threat and preserve the very 
     foundation of all our civil liberties. Here the Constitution 
     is not concerned with handicapping the government to preserve 
     other values. Rather it is designed to maximize the 
     government's efficiency to achieve victory--even at the cost 
     of ``collateral damage'' that would be unacceptable in the 
     domestic realm.

  Attorney General Barr brought these concerns into relief with the 
very telling hypothetical example. He said:

       Let me posit a battlefield scenario. American troops are 
     pinned down by sniper fire from a village. As the troops 
     advance, they see two men running from a building from which 
     the troops believe they had received sniper fire. The troops 
     believe they are probably a sniper team. Is it really being 
     suggested that the Constitution vests these men with due 
     process rights as against the American soldiers? When do 
     these rights arise? If the troops shoot and kill them--i.e., 
     deprive

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     them of life--could it be a violation of [their] due process 
     [rights]? Suppose they are wounded and it turns out they were 
     not enemy forces. Does this give rise to Bivens' 
     Constitutional tort actions for violation of due process? 
     Alternatively, suppose the fleeing men are captured and held 
     as enemy combatants. Does the Due Process Clause really mean 
     that they have to be released unless the military can prove 
     they were enemy combatants? Does the Due Process Clause mean 
     that the American military must divert its energies and 
     resources from fighting the war and dedicate them to 
     investigating the claims of innocence of these two men?
       This [simply] illustrates why military decisions are not 
     susceptible to judicial administration and supervision. There 
     are simply no judicially-manageable standards to either 
     govern or evaluate military operational judgments. Such 
     decisions invariably involve the weighing of risks. One can 
     easily imagine situations in which there is an appreciable 
     risk that someone is an enemy combatant, but significant 
     uncertainty and not a preponderance of evidence. 
     Nevertheless, the circumstances may be such that the 
     President makes a judgment that prudence dictates treating 
     such a person as hostile in order to avoid an unacceptable 
     risk to our military operations. By their nature, these 
     military judgments must rest upon a broad range of 
     information, opinion, prediction, and even surmise. The 
     President's assessment may include reports from his military 
     and diplomatic advisers, field commanders, intelligence 
     sources, or sometimes just the opinion of front line troops. 
     He must decide what weight to give each of these sources. He 
     must evaluate risks in light of the present state of the 
     conflict and the overall military and political objectives of 
     the campaign.

  So as we take up this important issue of terrorist tribunals, and 
reaffirming our commitment in the Detainee Treatment Act, which we 
passed just last year, these unlawful and lawful combatants--the enemy 
captured on the battlefield--are entitled to process, but they are not 
entitled to all of the rights and privileges of an American citizen in 
a court of law.
  It is only just and fitting we do provide this alternative process 
through reviewing the combat status tribunal decisions to make sure we 
are accurate as a matter of fact in detaining enemy combatants of the 
United States. It is entirely appropriate that we have an annual 
administrative review board to look at and determine whether these 
individuals should continue to be detained in light of additional 
information and in light of changing circumstances. And it is entirely 
appropriate that they be provided an appellate review in the District 
of Columbia Court of Appeals on all bases of decision in the combat 
status review tribunal and the administrative review process and also 
that they be provided an appeal following any conviction of a war crime 
by a military tribunal. But it is not appropriate to lapse into a pre-
9/11 mentality of treating the war on terror as simply another law 
enforcement action, treating it as another criminal prosecution just 
such as any other criminal prosecution that occurs on a regular basis 
in our State and Federal courts. The dangers of doing so mean we will 
have lapsed back into those perhaps happier times but the blissful 
ignorance those happier times produced.
  We are at war. We have an enemy that continues to try to explore our 
vulnerabilities. And as we know from the recently disrupted plot 
emanating out of London, al-Qaida and our enemies continue to try to 
find vulnerabilities that will allow them to hit us here at home. It is 
absolutely essential that we live up to our responsibilities as elected 
representatives of the American people to maintain the safety and 
security of those people by making sure we meet the obligations imposed 
upon Congress and the Federal Government by the U.S. Supreme Court and 
that we provide basic rights as dictated by the Court in the Hamdan 
decision. But it is not appropriate that we tie the hands of our 
military commanders, that we perhaps undermine our ability to prosecute 
and win this war on terror and keep America safe by treating this war 
on terror and the appellate rights of detainees in a way that makes it 
harder for us to keep America safe.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Chambliss). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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