[Congressional Record (Bound Edition), Volume 152 (2006), Part 9]
[Senate]
[Pages 11684-11686]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          GUANTANAMO PRISONERS

  Mr. BINGAMAN. Mr. President, when it is appropriate, I would like to 
offer an amendment to the Defense authorization bill, and I have 
provided that amendment to the chairman of the committee and to the 
ranking member. I would like, obviously, to get a vote on that at 
whatever time is convenient to them and the orderly processing of that 
legislation. I am told that right now is not the right time, and that I 
should go ahead and speak as in morning business and explain the 
amendment, which I am glad to do.
  This is amendment No. 4317. It has been filed. It is at the desk. I 
would just explain to people this is an amendment that would propose to 
expedite the processing of individuals who are being held in 
Guantanamo.
  Let me take a brief moment and describe more specifically what the 
amendment does. With respect to individuals currently held at 
Guantanamo, the amendment would require that the Government charge, 
repatriate, or release those prisoners within 180 days of the enactment 
of this legislation; that is, the completion of the signing by the 
President of the Defense authorization bill. However, if for any reason 
the Government has not charged or repatriated or released the 
individuals within that timeframe provided in the amendment, then the 
Department of Defense would be required to provide a report regarding 
why they have not done so to the appropriate committees of the 
Congress, and this report could be submitted in classified form, if 
necessary, or in unclassified form.
  Nothing in the amendment would require the Department of Defense to 
release any individual who is a threat to the security of the United 
States. Also, to make it perfectly clear, this amendment does not state 
that the Guantanamo facility would be closed within 180 days. The 
amendment merely provides that within that period, which I believe to 
be a reasonable timeframe, the United States will make a determination 
regarding what it intends to do with the individuals currently being 
held there. For example, if an individual is charged and tried before a 
military tribunal, there is nothing in the amendment that prevents the 
Government from continuing to detain that person at Guantanamo, either 
while they are awaiting trial or after they are sentenced, if a 
sentence is imposed and they are found guilty. My amendment is simply 
aimed at moving this process along, not at closing the facility.
  The amendment also provides the Government with flexibility regarding 
the appropriate venue if it decides to bring charges against an 
individual. The Government could file charges in a United States 
district court, in a military tribunal, or in an international criminal 
tribunal. On June 9, President Bush stated that he believes that those 
held at Guantanamo ``ought to be tried in courts here in the United 
States.''
  Several days later, on June 14, he said that the best way to ``handle 
these types of people is through our military courts.''
  Frankly, whether they are tried in our military courts or in domestic 
courts is not of great consequence, as long as the trial is conducted 
in accordance with due process. What is important is that the 
individuals whom

[[Page 11685]]

we believe have committed a crime are brought to justice and those who 
are not a threat to this Nation are released. This is one of the 
fundamental premises of our traditional notion of justice, and it is 
time that we restore our adherence to this important principle.
  Serious questions have been raised with respect to the military 
commissions that are currently being used in the few cases where 
individuals have been charged. In fact, the Supreme Court is expected 
to rule within the next week or so regarding the legality of such 
commissions. However, the amendment that I am offering does not favor 
any one venue over any other venue, should the United States decide to 
try an individual. The amendment simply states that a person may be 
charged in a ``military tribunal.'' This could include court martial 
proceedings under the Uniform Code of Military Justice or military 
commissions.
  The amendment does not provide the Government with any new authority, 
nor does it restrict the ability of the Government to bring charges in 
an appropriate military tribunal. Regardless of what the Supreme Court 
rules in the Hamdan case, the amendment still maintains flexibility 
with regard to such decisions.
  Some may assert that under the laws of war there is no requirement 
that a person be charged with a crime and that individuals can be held 
until the end of hostilities. While I understand this argument, we have 
not applied traditional laws of war with respect to these people. 
Neither have we applied traditional notions of domestic criminal law.
  Over the last several years the administration has been adamant that 
it would not apply the requirements of the Geneva Convention to these 
prisoners and that Federal courts have no role in providing judicial 
oversight of the detention of these individuals. The fact is that the 
administration has made up the rules that apply to these persons as 
they have gone along.
  In addition, as the President likes to say, we are fighting an 
unconventional war of an indefinite duration. The threat of terrorism 
is not going to be resolved with some formal peace treaty. It is and 
will remain for some time one of the most significant challenges that 
you or our Nation will face.
  It is time that we begin to close the legal black hole that has 
existed with respect to these individuals and begin to deal with them 
within some recognized legal framework. As the President stated on June 
14 of this year, ``We better have a plan to deal with them in our 
courts.'' I agree with that. The amendment I am offering would help 
expedite this process and would ensure that the United States has such 
a plan. It would also reassert congressional oversight of the process.
  Under the amendment I am offering, the Government could also send an 
individual back to his home country, so long as there are not 
substantial grounds to believe that the individual would be subjected 
to torture or, if appropriate, the Government could release the 
individual to a third party country. Nothing in my amendment biases 
what is done with these individuals. As I have said, the decision of 
whether a person is charged or repatriated or released is in the 
discretion of the Government and would be made in a manner consistent 
with our national security.
  Some may argue that the 180 days provided under the amendment is not 
enough time to make such a determination. First, let's remember that 
many of the people we are talking about have been at Guantanamo for 
over 4 years. It is my understanding that no new prisoners have been 
sent to Guantanamo for over 21 months. Every person held at Guantanamo 
has already gone before a Combatant Status Review Tribunal to determine 
whether they are so-called enemy combatants.
  As part of this process, the Department of Defense presents the 
evidence that it believes provides a basis for the continued detention 
of the individual. All of the prisoners have been interrogated 
repeatedly and the intelligence regarding their alleged wrongdoing has 
been thoroughly vetted. As such, the 6 months provided under this 
amendment is more than sufficient time to make a decision of what to do 
with these individuals. There has been plenty of time to gather the 
information necessary to make a determination of whether or not they 
should be tried for committing a crime or whether they should be sent 
to their home country or whether they should be released if they are 
not in fact a threat to the United States. But, as I mentioned before, 
if the Government is unable to comply or chooses not to comply, it is 
simply required at that point--the Secretary of Defense is required--to 
provide the relevant congressional committees with information 
regarding why this deadline was not met.
  These are not earth-shattering proposals that are contained in my 
amendment. These are all options on which the President has said that 
he is moving forward. President Bush has stated on several occasions 
recently that he would like to close Guantanamo and that the 
individuals being held there should be tried in a court and repatriated 
or released.
  This last May, while on a trip to Germany, the President said, ``I 
would like to close the camp and put the prisoners on trial.'' He has 
reiterated this position twice this month. He has also stated that the 
Government is in the process of repatriating certain individuals. 
According to the Department of Defense, there are about 120 prisoners 
who have been determined to be eligible for transfer or release.
  Unfortunately, despite the statements that progress is being made in 
processing these individuals, the facts are clear. There are currently 
approximately 460 prisoners that remain in a state of indefinite 
imprisonment with little prospect of either being held accountable for 
their actions or being allowed to prove their innocence. Since the 
United States began sending people to Guantanamo in 2002, only 10 
individuals have ever been formally charged with any wrongdoing.
  From a diplomatic standpoint, the continued indefinite detention of 
individuals at Guantanamo has damaged our own country. As President 
Bush said on June 14:

       No question, Guantanamo sends a signal to some of our 
     friends--provides an excuse, for example, to say the United 
     States is not upholding the values that they are trying to 
     encourage other countries to adhere to.

  The President is right. I strongly believe that the prolonged 
indefinite imprisonment of persons without charges is inconsistent with 
the traditions and values of the United States and that it will 
continue to cause difficulty in our relations with other nations, 
including the allies that we rely upon in confronting the threat of 
terrorism. Frankly, it is embarrassing that when our leaders travel the 
world they have to constantly respond to questions about why the United 
States is indefinitely imprisoning people and whether it is engaging in 
interrogation methods that amount to torture.
  Where the United States was once a champion of due process and an 
advocate for the humane treatment of prisoners, we are now subjected to 
almost universal criticism throughout the world community over our 
violation of these principles. Our handling of these individuals has 
not only resulted in serious doubts by our allies about whether we are 
a nation that respects the rule of law, but they have also given the 
terrorists around the world an opportunity to use this resentment to 
advance their goals.
  In July 2003, almost 3 years ago and over a year and a half after the 
first person was sent to Guantanamo, I introduced a similar amendment 
to the Defense Appropriations bill that would have required the 
Secretary of Defense to simply report to Congress regarding the status 
of individuals held at Guantanamo and whether it intended to charge or 
repatriate or release such individuals.
  The amendment was aimed at encouraging the Department of Defense to 
make decisions as to what it intended to do with the individuals and to 
provide for basic congressional oversight. Opponents of the measure 
argued that even a report on the administration's intentions placed 
unwarranted pressure on the administration to

[[Page 11686]]

make decisions and that additional time was needed to investigate those 
individuals and to exploit useful intelligence. Since that time, these 
persons have been interrogated, have been investigated at length, and 
any useful intelligence information has been gathered.
  Once again, I anticipate there will be those who say that we need to 
wait, we need to do nothing, we need to let the process work itself out 
in the courts or within whatever timeframe the executive branch 
believes is proper. As Senators, I believe our responsibility is not to 
sit back and watch as another several years roll by. The time to act is 
now. Reasserting congressional oversight of this process is long 
overdue.
  We have been holding people at Guantanamo for over 4\1/2\ years. The 
time has come to begin to close this chapter in our Nation's history. 
It is time for the Senate to provide a clear message that the United 
States takes seriously its obligation to uphold the rule of law.
  I have no doubt that we will look back at the Guantanamo experience 
as an aberration, as a mistaken endeavor that has taken us away from 
our historic commitment to the rule of law and respect for basic human 
rights. However, I also believe that we are at a transition period. We 
have before us an opportunity to change course. I hope my colleagues 
will support this important measure when I do offer it as an amendment 
to the Defense authorization bill.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Allen). The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank my colleague for his cooperation 
on the procedure this afternoon. This is a very significant and 
important amendment. In due course we will have comments from our side 
with regard to the amendment. I am certain the distinguished ranking 
member and I will work out a timely schedule for you to bring it up 
again, take such time as you need for further debate, be followed by a 
debate on this side and then a vote, because it certainly is one that 
deserves the attention of the Senate.
  Mr. President, I see my distinguished ranking member here. We are in 
morning business, I say to my colleague.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, first let me commend the Senator from New 
Mexico for his amendment. It is a very significant amendment. It is 
carefully worked out. It is very much worthy of the Senate's 
consideration.
  I know we are in morning business. I simply want at this point to 
inform the body that an amendment which I have now filed on behalf of 
myself, Senator Jack Reed, Senators Feinstein and Salazar, is now at 
the desk. Its number is 4320. Its purpose is to state the sense of 
Congress on the United States policy on Iraq.
  I am not going to speak on the amendment at this time.
  Mr. WARNER. Why don't you go ahead and speak on it?
  Mr. LEVIN. No, I would rather save my remarks for a time when it 
relates more to the issue at hand, when we call up this amendment. I 
thank my good friend from Virginia for that suggestion, but I think I 
would rather, at the time I call up the amendment, make the remarks.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, in his usual courtesy, the Senator from 
Michigan handed me, a few moments ago, this amendment. I glanced over 
it. It is, indeed, I think, a very serious-minded approach. I am not 
sure at this point in time I am ready to say that I concur in all 
provisions. But it is reminiscent of the initiative taken last year by 
the distinguished Senator from Michigan when he put in an amendment 
with regard to the situation in Iraq. I recall very well having taken 
that amendment and reworked it in some several ways, and eventually the 
Senate adopted that amendment. So I will, accordingly, give it very 
serious consideration, and at an appropriate time I look forward to 
engaging him in debate on this amendment.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Let me again thank my good friend from Virginia. I, too, 
indeed, remember that debate last year on that amendment. The Senator 
from Virginia made a very constructive contribution to the debate. The 
final outcome was not the original amendment that I filed, but what 
remained of the amendment was significant and I think had an impact on 
the policy of this country. I commended him then and I commend him now 
for that effort on his part. I look forward to a discussion about this 
amendment, No. 4320.
  Mr. WARNER. Mr. President, I thank my colleague. I notice in this 
amendment, though, language quite similar to what we had last year in 
one provision on this amendment.
  At this time, unless the Senator from New Mexico desires to further 
address the Senate, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. STEVENS. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Alaska is recognized.

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