[Congressional Record (Bound Edition), Volume 155 (2009), Part 19]
[Senate]
[Pages 26333-26334]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     FAILURE IN THE JUSTICE SYSTEM

  Mr. SESSIONS. Mr. President, I rise to discuss a serious failure in 
our justice system, something we are going to need to talk and think 
about. It has been talked about before, but the matter drives home the 
issue in a specific way.
  Ali Saleh Kahlah al-Marri--al-Marri, as he is now usually referred 
to--is a terrorist who entered the country under the instructions of 9/
11 mastermind Khalid Shaikh Mohammed. While here, he researched 
hazardous chemicals and his potential targets included dams and 
reservoirs. He was apprehended in 2001. In 2003, he was held as an 
enemy combatant under the orders of the Bush administration. He was 
seen at that time as an individual at war with the United States since 
he was associated with al-Qaida and al-Qaida had declared war on the 
United States.
  The Nation made a firm decision that these kinds of cases should not 
be handled in the normal course of prosecutions of crimes but should be 
treated under the historic and well-established rules of war for these 
individuals.
  The Obama administration has moved him into a civilian justice system 
and decided they would try him for this offense as a crime. He ended up 
pleading guilty, which seemed dubious as a plea by the Department of 
Justice, but they chose to allow him to plead guilty to the charge of 
conspiring to support terrorists. He was sentenced yesterday. How much 
time will this terrorist be spending in jail? How long before he is 
released and then could reassume his mission of waging jihad against 
America? Five years. That is right, 5 years. The judge in Peoria, IL, 
sentenced him to only 8 years and gave him credit for time served in 
military prisons, apparently, and he is expected to be released in 5 
years. This is an outrage. Our brave soldiers and intelligence agents 
risk their lives every day to find and capture these terrorists.
  I received a phone call from a friend I have known for a number of 
years whose son is in Iraq now as a marine. He wants to talk about what 
we are doing there. We have American soldiers, some of the finest 
people this country has ever produced, at risk at this moment fighting 
against these kinds of terrorists who are committed to attacking us. In 
recent days, we have seen plot after plot, fortunately being frustrated 
by good investigative agents. We have investigators and our military 
out there at risk today. We capture terrorists. What do we do? Do we 
put them in jail a few years and then let them go?
  Not only did the Justice Department pursue a lesser charge against 
al-Marri, but the judge only sentenced him to 8 of the possible 15 
years he could have served on that charge.
  Without doubt, as a former Federal prosecutor--and the Presiding 
Officer is a former U.S. attorney--there are real procedures every 
American is provided under our legal system for trials in Federal 
courts. We are proud of those, and we adhere to them. But there is a 
danger of trying people who are at war with us, who want to destroy us 
and the government this Nation possesses, in civilian courts. They are 
not common criminals; they are members of global terror networks, bent 
on waging war against America, its allies, and our vital interests. Yet 
the administration has announced plans to begin trying more and more 
terrorists and enemy combatants through our normal Federal criminal 
justice system.
  Our court system was never designed to prosecute terrorists and enemy 
combatants and soldiers attacking this country. Such trials turn the 
courthouse and the jury system into targets. They rely on evidence that 
may not be admissible, evidence seized by the military in defending the 
country. That

[[Page 26334]]

evidence may not be admissible in court under our normal rules of 
evidence. They risk bringing confidential information to public light, 
including the identity of informants or even undercover agents. And it 
means, ultimately, that more terrorists bent on taking innocent 
American lives will be released to return to the battlefield--abroad or 
right here in cities and towns across America. I ask, is this a risk we 
can afford? Is it a risk we are required to take under our laws and 
Constitution?
  The proper setting for these prosecutions is military commissions, 
military tribunals. These terrorists are the most violent and dangerous 
killers in the world. They are not criminals; they are on an unswerving 
mission to spill American blood. I wish it were not so. Overwhelmingly, 
the Muslim community does not believe in this kind of activity. It is 
only a small group, but it is a very effective group because they have 
learned how to utilize modern capabilities, such as airplanes and 
poisons and explosives, to wreak untold damage, especially when they 
are prepared to martyr themselves.
  We need to use all lawful resources at our disposal to combat and 
dismantle this threat. We cannot and we must not allow more enemy 
combatants like Ali Kahlah to use our justice system against us. We 
cannot and we must not be naive and think our good will and kindness 
will shield us from these kinds of forces, this kind of evil in the 
world. We cannot and we must not forget the danger we face or the 
imperative to use every last resource at our disposal to keep this 
country, its liberties, and its people safe.
  There was an article in the Washington Post of today that raises an 
important issue about sentencing. It quotes Kirk Lippold, the commander 
of the USS Cole, where 17 of our sailors were murdered by an Islamic 
attack in the Persian Gulf in Yemen in the harbor in the year 2000. 
This is what he said about the verdict: The sentence was ``appalling'' 
and ``grossly inadequate.'' He said that if prosecutors move other 
defendants from the military prison at Guantanamo Bay, Cuba, for trials 
in regular U.S. Federal courts, it could ``create an era of 
unacceptable compromise to our national security.''
  I have a vivid memory from several years ago, maybe 5 or 6, 7 years 
ago, of being at the commissioning of the Ronald Reagan aircraft 
carrier at Newport News as a member of the Armed Services Committee, 
walking out of that ceremony, not too long after the Cole was attacked 
and those sailors killed. And a sailor screamed out--and the hair still 
stands on my neck when I think about it--``Remember the Cole.''
  The United States has a responsibility to defend our men and women 
abroad. U.S. warships ought to be able to move in peaceful commerce 
around the world and not be subject to attack. When they are attacked, 
it is the responsibility of this Nation to act against it. Commander 
Lippold has expressed some concern in times past about how that has 
been handled.
  They also quote Robert Chesney, a law professor at the University of 
Texas at Austin who studies sentencing in terrorism cases. He said that 
the Marri sentence ``probably comes with the territory in switching 
somebody out of military detention and into the criminal justice 
system.'' It comes with the territory. That is exactly right. That is 
what a number of us have been saying for some time, why this is not a 
wise policy.
  The article goes on to say:

       The case is one of the few concrete examples, Chesney said, 
     of the ongoing debate over whether the U.S. criminal justice 
     system is ``up to the task'' of trying and convicting 
     terrorist suspects.

  I absolutely agree with that. It is not equipped to do it. The 
American criminal justice system assumes that a person commits some 
sort of crime. They give a certain sentence, and there is a reasonable 
prospect that they won't commit crimes again. But when we are dealing 
with people who are committed to martyrdom, if we are dealing with a 
person who has made a lifetime oath to fight to the death to destroy 
Americans and who has the capability to kill not only one person in 
some sort of assault or fight but thousands of Americans and who is at 
war with the United States, we need to utilize the great and historic 
principles of military commissions to try them as we always have. We 
didn't try German prisoners of war in Federal courts. We didn't try 
Japanese or North Vietnamese or North Koreans in Federal court when 
they were captured. They were treated as they were, as prisoners of 
war, and detained as long as they represented a threat to the United 
States. That is the way this should be. Military commissions are 
referred to in the Constitution.
  In World War II, in the famous case of Ex parte Quirin--Franklin 
Roosevelt was President--a submarine appeared off the Atlantic Coast, 
and a group of people got out who were saboteurs. They were sent by 
Nazi Germany to blow up places in the United States, kill Americans, 
and sabotage our war efforts.
  That was a serious matter. They were caught. Were they tried as 
common criminals? No, they were not. How were they tried? They were 
tried by a military commission. They were tried under the laws of war 
that have been longstanding for quite a number of years. They were 
convicted within a matter of a few months, and they were executed 
because they were clearly in violation of the laws of warfare. They 
were not normal prisoners of war acting in uniform. They were acting 
contrary to the Geneva Conventions, contrary to the rules of warfare. 
They were acting in a way--they did not wear uniforms. They did not go 
openly about. They were targeting innocent civilians. So they violated 
the rules of war. They were tried and executed. The Supreme Court 
upheld that. This is what other nations do also. They do not try people 
with whom they are at war in civilian courts.
  I am worried about this. I do not think it is a little bitty matter. 
I do not think this is the first time we are going to see this or the 
only time we are going to see it. I think we are going to see it more 
and more often. I call it to the attention of my colleagues.
  One other thing I think we should point out: that unclassified 
declaration by Jeffrey N. Rapp, the Director of the Joint Intelligence 
Task Force for Combating Terrorism. This is what he said about this 
matter:

       Multiple intelligence sources confirm that Al-Marri is an 
     al Qaeda ``sleeper'' agent sent to the United States for the 
     purpose of engaging in and facilitating terrorist activities 
     subsequent to September 11, 2001, and exploring ways to hack 
     into the computer systems of U.S. banks and otherwise disrupt 
     the U.S. financial system. Prior to arriving in the United 
     States on September 10, 2001--

  Not the 11th: September 10, 2001--

       Al-Marri was trained at an al-Qaida terror camp. He met 
     personally with Osama bin Laden and other known al Qaeda 
     members and volunteered for a martyr mission or to do 
     anything else that al Qaeda requested. Al-Marri was assisted 
     in his al Qaeda assignment to the United States by known al 
     Qaeda members and traveled to the United States with money 
     provided for him by al Qaeda. Al-Marri currently possesses 
     information of high intelligence value, including information 
     about personnel and activities of al Qaeda.

  He goes on to say:

       Al-Marri was trained by al Qaeda in the use of poisons. In 
     the hard drive of Al-Marri's laptop, FBI agents discovered a 
     folder entitled ``chem,'' which contained bookmarked Internet 
     sites of industrial chemical distributors. Analysis revealed 
     that Al-Marri had visited a number of sites related to the 
     manufacture, use and procurement of hydrogen cyanide.

  So I do not think this is an itty-bitty matter. We have normal drug 
dealers going to jail every day for 10, 12, 15 years. We have somebody 
who is plotting to kill American citizens, who came here the day before 
9/11, is part of an al-Qaida plot--and he gets 5 years? I think it is 
unacceptable, and it is also an indication to us in Congress we cannot 
proceed further with this idea that we are going to try terrorists in 
Federal criminal courts.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.

                          ____________________