[Congressional Record (Bound Edition), Volume 153 (2007), Part 14]
[Senate]
[Pages 18985-18987]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   DETAINEES IN IRAQ AND AFGHANISTAN

  Mr. KYL. Mr. President, I wish to address a subject that I hope we 
will be

[[Page 18986]]

able to address soon and that is an amendment that Senator Graham of 
South Carolina has filed and, hopefully, we will debate soon. It 
relates to conditions that have been placed in the underlying bill, 
relating to the treatment of detainees captured in Afghanistan and 
Iraq.
  I urge my colleagues to think very carefully about the damage that 
would be brought on the global war against terrorists and future wars 
that we may have to fight if we go forward with the language that is in 
the bill, specifically in section 1023 of the bill. That essentially 
would return us to a law enforcement approach to terrorists that, 
frankly, failed us before 9/11 and, once Osama bin Laden and others 
declared war on us, would obviously not work in the post-9/11 context.
  Senator Graham's amendment strikes these harmful provisions in the 
bill and would replace them with commonsense measures to provide a more 
fair process in dealing with detainees at Guantanamo. I remind my 
colleagues for a moment about the nature of these terrorists whom we 
are talking about, and then I will go through specific provisions of 
the bill that need to be removed--specifically three: A requirement 
that al-Qaida terrorists held in Iraq and Afghanistan be given lawyers; 
the authorization to demands discovery and compel testimony from 
servicemembers; and the requirement that al-Qaida and Taliban detainees 
be provided access to classified evidence.
  To review the nature of the detainees that we are holding, not just 
at Guantanamo Bay but also in Iraq and Afghanistan, these are not nice 
people. At least 30 of the detainees released from Guantanamo Bay have 
since returned to waging war against the United States and our allies; 
12 of these released detainees have been killed in battle by U.S. 
forces and others have been recaptured; two released detainees became 
regional commanders for Taliban forces; one released detainee attacked 
U.S. and allied soldiers in Afghanistan, killing three Afghan soldiers; 
one released detainee killed an Afghan judge; one released detainee led 
a terrorist attack on a hotel in Pakistan and a kidnapping raid that 
resulted in the death of a Chinese civilian, and this former detainee 
recently told Pakistani journalists he planned to ``fight America and 
its allies until the very end.''
  The provisions of section 1023 would make it very difficult, if not 
impossible, for the United States to detain these committed terrorists 
who have been captured while waging war against us. No nation has, in 
the history of armed conflict, imposed the kinds of limits that the 
bill would impose on its ability to detain enemy war prisoners. War 
prisoners released in the middle of an ongoing conflict, such as 
members of al-Qaida, will return to waging war. We have already seen 
this happen 30 times with detainees released from Guantanamo Bay. If 
section 1023 of the bill is enacted into law, we could expect that 
number to increase sharply. If section 1023 is enacted, we should 
expect that more civilians and Afghans and Iraqi soldiers will be 
killed, and it may be inevitable that our own soldiers will be injured 
or killed by such released terrorists. This is a price our Nation 
should not be forced to bear.
  Let me talk first about the requirement in the bill that al-Qaida 
terrorists held in Iraq and Afghanistan must be provided with lawyers. 
This cannot be executed. It would require the release of detainees. 
Here is why: The Defense bill requires that counsel be provided and 
trials be conducted for all unlawful enemy combatants held by the 
United States, including, for example, al-Qaida members captured and 
detained in Iraq and Afghanistan if they are held for 2 years. We hold 
approximately 800 prisoners in Afghanistan and tens of thousands in 
Iraq. None of them are lawful combatants and all would arguably be 
entitled to a trial and a lawyer under the bill. Such a provision would 
at least require a military judge, a prosecutor, and a defense 
attorney, as well as other legal professionals.
  That scheme is not realistic. The entire Army JAG Corps only consists 
of approximately 1,500 officers, and each is busy with their current 
duties. Moreover, under the bill, each detainee would be permitted to 
retain a private or volunteer counsel. Our agreements with the Iraqi 
Government bar the United States from transferring Iraqi detainees out 
of Iraq. As a result, the bill would require the United States to train 
and transport and house and protect potentially thousands, or even tens 
of thousands, of private lawyers in the middle of a war zone during 
ongoing hostilities. That is impossible.
  That proposal is half baked at best. It would likely force the United 
States to release thousands of enemy combatants in Iraq, giving them 
the ability to resume waging war against the United States. Obviously, 
this would tie up our military. By requiring a trial for each detainee, 
this provision would also require U.S. soldiers to offer statements to 
criminal investigators, needing later to prove their case after they 
captured someone. They would need to carry some kind of evidence kits 
or combat cameras or some other method of preserving the evidence and 
to establish its chain of custody. They would need to spend hours after 
each trial writing afteraction reports, which would need to be reviewed 
by commanders. Valuable time would be taken away from combat operations 
and soldiers' rest.
  It would be a bad precedent for the future. Aside from the war in 
Iraq, this provision would make fighting a major war in the future 
simply impossible. Consider this: During World War II, the United 
States detained over 2 million enemy war prisoners. It would have been 
impossible for the United States to have conducted a trial and provided 
counsel to 2 million captured enemy combatants. So the bottom line is 
that the bill, as written, would likely be impossible to implement in 
Iraq and, in the context of past wars, it is patently absurd.
  The second point is authorizing al-Qaida detainees to demand 
discovery and compel testimony from American soldiers. The underlying 
bill would actually authorize unlawful enemy combatants, including al-
Qaida detained in Iraq and Afghanistan, to demand discovery and could 
compel testimony from witnesses as we do in our criminal courts in the 
United States. The witnesses would be the U.S. soldiers who captured 
the prisoner. Under this bill, an American soldier could literally be 
recalled from his unit at the whim of an al-Qaida terrorist in order to 
be cross-examined by a judge or that terrorist.
  Newspaper columnist Stewart Taylor describes the questions that such 
a right would raise:

       Should a Marine sergeant be pulled out of combat in 
     Afghanistan to testify at a detention hearing about when, 
     where, how, and why he had captured the detainee? What if the 
     northern alliance or some other ally made the capture? Should 
     the military be ordered to deliver high-level al-Qaida 
     prisoners to be cross-examined by other detainees and their 
     lawyers?

  The questions abound. As the Supreme Court observed in Johnson v. 
Eisenstrager, which is the law on this subject:

       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 court and divert his efforts and attention from the 
     military offensive abroad to the legal defensive at home.

  That is what the U.S. Supreme Court said in World War II when a 
similar issue was raised. It would be difficult to conceive of a 
process that would be more insulting to our soldiers. In addition, many 
al-Qaida members who were captured in Afghanistan were captured by 
special operators whose identities are kept secret for obvious reasons. 
This would force them to reveal themselves to al-Qaida members, 
therefore exposing themselves or to simply forgo the prosecution of the 
individual, which is more likely what would happen.
  Clearly, Americans should not be subject to subpoena by al-Qaida. 
That brings me to the last point--the requirement that al-Qaida and 
Taliban detainees be provided with access to classified evidence. The 
bill requires

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that detainees be provided with ``a sufficiently specific substitute of 
classified evidence'' and that detainees' private lawyers be given 
access to all relevant classified evidence.
  Foreign and domestic intelligence agencies are already very hesitant 
to divulge classified evidence to the CSRT hearings we currently 
conduct. These are part of the internal and nonadversarial military 
process today. Intelligence agencies will inevitably refuse to provide 
sensitive evidence to detainees and their lawyers. They will not risk 
compromising such information for the sake of detaining an individual 
terrorist.
  In addition, the United States already has tenuous relations with 
some of the foreign governments, particularly in the Middle East, that 
have been our best sources of intelligence about al-Qaida. If we give 
detainees a legal right to access such information, these foreign 
governments may simply shut off all further supply of information to 
the United States. These governments will not want to compromise their 
evidence or expose the fact that they cooperated with the United 
States. By exposing our cooperation with these governments, the bill 
perversely applies a sort of ``stop snitching'' policy toward our 
Middle Eastern allies, which is likely to be as effective as when 
applied to criminal street gangs in the United States.
  A final point on this: We already know from hard experience that 
providing classified and other sensitive information to al-Qaida 
members is a bad idea. During the 1995 Federal prosecution in New York 
of the ``Blind Sheikh,'' Omar Rahman, prosecutors turned over the names 
of 200 unindicted coconspirators to the defense. The prosecutors were 
required to do so under the civilian criminal justice system of 
discovery rules, which require that large amounts of evidence be turned 
over to the defense. The judge warned the defense that the information 
could only be used to prepare for trial and not for other purposes. 
Nevertheless, within 10 days of being turned over to the defense, the 
information found its way to Sudan and into the hands of Osama bin 
Laden. U.S. District Judge Michael Mukasey, who presided over the case, 
explained, ``That list was in downtown Khartoum within 10 days, and bin 
Laden was aware within 10 days that the Government was on his trail.''
  That is what happens when you provide classified information in this 
context.
  In another case tried in the civilian criminal justice system, 
testimony about the use of cell phones tipped off terrorists as to how 
the Government was monitoring their networks. According to the judge, 
``There was a piece of innocuous testimony about the delivery of a 
battery for a cell phone.'' This testimony alerted terrorists to 
Government surveillance and, as a result, their communication network 
shut down within days and intelligence was lost to the Government 
forever--intelligence that might have prevented who knows what.
  This bill--this particular section of the bill repeats the mistakes 
of the past. Treating the war with al-Qaida similar to a criminal 
justice investigation would force the United States to choose between 
compromising information that could be used to prevent future terrorist 
attacks and letting captured terrorists go free. This is not a choice 
that our Nation should be required to make.
  I will talk more about some provisions that Senator Graham would like 
to substitute for these provisions that provide a more fair process for 
detainees held at Guantanamo Bay--a process that would enable them to 
have greater benefit of the use of counsel and of evidence in their 
CSRT hearings.
  I will wait until he actually offers that amendment to get into 
detail. But the point is, we have bent over backward to provide the 
detainees at Guantanamo the ability to contest their detention and to 
have that detention reviewed and eventually have it reviewed in U.S. 
courts. That is a very fair system, more fair than has ever been 
provided by any other nation under similar circumstances and more than 
the Constitution requires. So we are treating the people we captured 
and are holding at Guantanamo in a very fair way.
  What we cannot do is take those same kinds of protections and apply 
them to anybody we capture in a foreign theater who is held in a 
foreign theater and therefore is not, under current circumstances--and 
never has been in the history of warfare--subject to the criminal 
justice system of our country. To take that system and try to transport 
it to the fields of Afghanistan or Iraq would obviously be not only a 
breaking of historical precedent but a very bad idea for all of the 
reasons I just indicated.
  I ask my colleagues to give very careful consideration to the 
dangerous return to the pre-9/11 notion of terrorism as a law 
enforcement problem that is inherent in section 1023 of the bill. The 
terrorists have made no secret that they are actually at war with us, 
and we ignore this point at our peril.
  I conclude by reminding my colleagues that the Statement of 
Administration Policy on this bill indicates that the President would 
be advised to veto it if these provisions remained. Therefore, I urge 
my colleagues, when the opportunity is presented, to join me in 
striking the provisions of the bill, not only as representing good 
policy but to help us ensure that at the end of the day, there will be 
a bill signed by the President called the Defense authorization bill.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I believe I have a half hour to speak 
in morning business. Prior to doing so, I wish to give a brief 
rejoinder to my colleague from Arizona on some of the comments he just 
made.
  It is my understanding that the underlying Defense Authorization Act 
has several provisions that are necessary to address shortcomings in 
the legal process for individuals detained on the battlefield. One of 
these provisions limits the use of coerced testimony obtained through 
cruel, inhumane, or degrading treatment. Such testimony is immoral, and 
this provision is necessary if we are to obtain and use accurate 
information.
  Another provision provides for reasonable counsel and the ability to 
present relevant information to detainees who have been held for 2 or 
more years. This is necessary in a war of undetermined duration.
  Finally, the bill does not provide classified information to a 
detainee. It provides for a summary that is intended to be unclassified 
to the counsel for detainees.
  One of the things that might help is if, on line 16, page 305, 
subsection II, the word ``unclassified'' was added before the word 
``summary'' on that line. I believe that is the intent.

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