[Congressional Record (Bound Edition), Volume 155 (2009), Part 9]
[Senate]
[Pages 11235-11237]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             GUANTANAMO BAY

  Mrs. HUTCHISON. Madam President, I wish to be notified at 10 minutes 
so I can assure that Senator Graham of South Carolina can also speak.
  We are speaking today on a very important subject. We are urging 
President Obama today to reconsider the decision to close Guantanamo 
Bay until he can reassure the American people that there is a viable 
alternative for detaining terrorist combatants.
  Let there be no mistake. We are fighting a war on terror. This is a 
war that is just as important as any we have ever fought. Every war 
that we have fought for almost two centuries in this country has been a 
fight for freedom, and this is a fight for freedom too.
  When President Obama announced by Executive order that he would close 
Guantanamo Bay, my initial reaction was, What are we going to do with 
these prisoners? What is the plan? We have not seen a plan, yet we have 
an order that says we are going to execute a closing of Guantanamo Bay 
with no plan for what we do with them.
  I have been to Guantanamo Bay. I have visited that prison. I can tell 
my colleagues that in my observation and

[[Page 11236]]

everything that we have learned since, the prisoners are being treated 
with respect. They are being well fed. They get health care coverage 
they have never had in their lives. Yet President Obama is saying we 
are going to close it even though we don't know what we are going to do 
with those prisoners.
  What kind of precautions would be necessary to transfer these 
suspected terrorists? Well, we know that American prisons are simply 
not experienced in handling this unique and unprecedented brand of 
prisoner. In the United States, even petty and unsophisticated 
criminals find ways to plot behind prison walls.
  For example, there was a recent news release about prisoners 
smuggling cell phones behind bars. The problem is so widespread that I 
have introduced, along with Congressman Kevin Brady on the House side, 
legislation to prevent prison inmates from using smuggled cell phones. 
In Texas, authorities say a death row inmate, Richard Tabler, used a 
smuggled cell phone to make threatening calls to a State Senator. 
Tabler's phone was found in the ceiling above a shower, and when they 
found it, they also found 11 more phones belonging to other death row 
inmates while they were looking for Mr. Tabler's. Do we want to take 
the risk that key al-Qaida terrorists, including Khalid Sheikh 
Mohammed, the confessed mastermind of the attacks on 9/11, won't be 
able to do what Richard Tabler and so many other prisoners have done--
get a cell phone and plot attacks or escapes?
  I think many of my colleagues understand the stakes here. On July 19 
of 2007, the Senate voted 94 to 3 that detainees housed at Guantanamo 
Bay should not be released into American society, nor should they be 
transferred stateside into facilities in American communities and 
neighborhoods. So what is the alternative? There is another 
alternative. We could let them go. We could release them back to their 
home country or to some other foreign country, but let's look at the 
risks of that.
  We now know that as many as 61 detainees previously released from 
Guantanamo Bay have returned to the battlefield, many of whom are now 
waging war against Americans. The prisoners already released were 
believed to be the least dangerous and yet many have returned to the 
battlefield. The ones remaining are considered the most dangerous and 
the most likely to kill again or plot to kill again.
  Earlier this year, we learned that one former Guantanamo Bay 
detainee, Said Ali al-Shihri, is currently serving as the deputy leader 
of al-Qaida in Yemen. Those terrorists are directly responsible for the 
2008 bombing of the U.S. Embassy in Yemen in which 10 people were 
murdered. Even though Al-Shihri was transferred from Guantanamo Bay to 
Saudi Arabia for a period of rehabilitation, he rejoined al-Qaida and 
assumed a leadership role in the planning and execution of terrorist 
acts. With this knowledge, can we be serious that we would abandon the 
security of Guantanamo Bay for an alternative of foreign transfers that 
could pose harm to ourselves and our allies, and especially to our 
young men and women serving right now in the military in the Middle 
East?
  Without a viable option--and I do not consider it viable to let them 
go, because we have a history of what happened with that, nor do I 
think it is a viable option to transfer them to a prison in the United 
States until we know how we are going to secure that prison from any 
visitors, any capability of getting cell phones or, worse yet, weapons, 
so that we can assure there will not be plots from an American prison 
to kill Americans who are innocent anywhere in our country. Unless we 
have a viable option, I urge the President not to set a deadline for 
closing Guantanamo Bay until the American people are assured that there 
is a safe place for them to go. I believe the safest place for them is 
right where they are. Guantanamo Bay is secure. There have been no 
escapes from Guantanamo Bay, and they are getting treated very well. I 
have witnessed that, and many others of my colleagues who have taken 
the time to visit know they are being treated well. In many cases they 
are getting better care than they have had in their lifetimes.
  I implore the President to change this order. Let's have a plan 
before we release these people out into the world to plot against 
Americans or bring them onto our soil before we know that we have a 
safe, secure environment, and where communities are willing, able, and 
encouraging that they be there in their midst.
  Madam President, thank you. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
  Mr. GRAHAM. Madam President, I appreciate what the Senator from Texas 
has been saying. This issue of what to do with the Guantanamo Bay 
detainees is a central issue for the Nation and the overall war on 
terror, because the President is looking for partners. He keeps saying 
that. I stand ready to be a partner. The best-run jail in the world 
where they are now is Guantanamo Bay. I have been there many times. The 
men and women who are working in that prison are doing an outstanding 
job. They follow the rules. It is a model military prison. It is tough 
duty. What they go through every day you probably don't realize, and we 
can't tell you at all, but it is tough duty. Anyone serving down there 
is doing the country a great service.
  Having said that, I understand the need to change the image of the 
country. I have been one of the Republicans--a military lawyer for 25 
years--who understands the way we conduct this war determines whether 
we will win it. The high ground in military operations is usually a 
physical location. When you are in a battle or a war, you try to get 
the high ground, because that is the best place to fight the enemy 
from. In this war, it is an ideological struggle, so the high ground is 
the moral high ground. It does matter what we do.
  My goal for America is to be the best we can be. Our enemies--al-
Qaida and other groups--are some of the most barbaric people in the 
history of the world. But here is what it comes down to. When we 
capture one of them, it becomes about us. They will cut people's heads 
off in the most brutal fashion, abuse and humiliate people. They don't 
give trials. They are not reasoned. They are barbarians. The fact that 
we choose a different way is not a weakness, it is a strength. Trust 
me, if we are going to lead the world to a better way, we need to show 
the world a better way. And there is a better way.
  In World War II, we had thousands--350,000, I think--of German and 
Japanese prisoners housed in the United States, Nazis and Japanese 
prisoners committed to our destruction. We held them here under our 
value system, under the Geneva Conventions, in communities all over 
America. The Nazis and the Japanese were a tough crowd. When those 
prisoners were released, those who were released, they went back to 
their country with a view of America that helped us form the modern 
Japan and Germany.
  Some of the people we are talking about at Guantanamo Bay are subject 
to war crimes trials. So I am urging the President to leave on the 
table the military commission option. We can reform it, but let's not 
criminalize this war. They are not accused of robbing a liquor store. 
These are not common criminals.
  Under domestic criminal law, you cannot hold someone forever without 
a trial, nor should you. But under the law of armed conflict, if you 
catch a member of the enemy force, you can keep them off the 
battlefield as long as they present a danger. That has been military 
law forever.
  I believe we would be better off if we look at the people who are 
members of al-Qaida at Guantanamo Bay as enemy combatants, part of an 
unorganized militia, military organization bent on our destruction, and 
they are a part of the enemy force, not some common criminal. We can 
keep them off the battlefield as long as necessary, but we have to do 
it within our value system.
  I am urging the President that if someone at Guantanamo Bay is 
subject to a war crimes trial, let's don't go to Federal court, as we 
did with the blind sheik trial in the nineties, which was a

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disaster. Let's put them in a military tribunal and give them justice 
through the military legal system of which I have been a part for 25 
years.
  I can tell America one thing: The judges, the lawyers, and the jurors 
who wear the uniform of the United States are the best among us. These 
are the same people who administer justice to our own troops. It is a 
great place to conduct a trial because we can do things for national 
security in a military setting that we cannot do in Federal court. But 
I can assure you, justice will be rendered and people will be treated 
fairly. The courts-martial we have had, the commission trials we have 
had at Guantanamo Bay, we have seen sentences that make sense.
  I have been a part of the military all my adult life. The jurors take 
their responsibilities extremely seriously. They hold the Government to 
their burden of proof. And the judges and the lawyers are outstanding.
  There will be a group of people who will not be subject to war crimes 
trials because of the nature of the evidence, because of the unique 
relationship we may have between the evidence and an ally, that we are 
not going to subject that evidence to a beyond-a-reasonable-doubt 
standard, but we know with certainty, beyond a preponderance of the 
evidence, that this person is a member of a terrorist organization and 
is engaged in dangerous activities and likely to do that in the future.
  What I am arguing to the administration, proposing to them, is those 
people we think are too dangerous to let go, let's create a national 
security court made up of Federal judges, somebody out of the military, 
who will look over the military shoulder and see if the evidence 
warrants an enemy combatant designation. That way, we will have an 
independent judiciary validating the fact that the person in custody is 
part of an enemy force, a danger to this country, and then have a 
periodic review of that person's status so they are not left in legal 
limbo. They will have a chance every year to make their case anew.
  We have to realize that we have released more people from Guantanamo 
Bay than we have in detention and we have put people in Guantanamo Bay 
who were there by mistake. That is a fact. We threw the net too large. 
That happened.
  Let me tell you what else has happened. Mr. President, 1 in 10 we let 
go has gone back to the fight. The No. 2 al-Qaida operative in Somalia 
was a detainee at Guantanamo Bay. We had a suicide bomber in Iraq blow 
himself up who was at Guantanamo Bay. We are going to make mistakes, 
but I want a process to limit those mistakes as much as possible.
  I end with this thought. How we do this is important. We can close 
Guantanamo Bay and repair our image, but we have to have a legal system 
that has robust due process, that is transparent, that is independent, 
but recognizes we are at war. And that takes us to the Uyghurs.
  There is a group of people in our custody whom we caught in 
Afghanistan who are part of a separatist movement in China. They are 
Muslims. They were training in Afghanistan to go back to China to take 
on the Chinese Government. They have been determined to no longer be 
enemy combatants in terms of a threat from the al-Qaida perspective, 
but what to do with the Uyghurs.
  One thing I suggest to the President is that you cannot change 
immigration law. Our laws prevent a known terrorist from being released 
in our country. These people have engaged in terrorist activities. 
Their goal was to go back to China, not to come here. But there are 
press reports that one of the Uyghurs was allowed to look at TV and saw 
a woman not properly clothed and destroyed the television. We have to 
make sure that, one, we follow our own laws, and the fact they were 
going to go back to China does not mean they are safe to release here 
because they have been radicalized.
  We have to make some hard decisions as a nation. I stand ready with 
the President and my Democratic colleagues to close Guantanamo Bay, but 
we do need a plan. We need a legal system of which we can be proud that 
will protect us.
  The final comment is that the idea of releasing more photos showing 
detainee abuse is not in our national interest. We have men and women 
serving overseas. It will inflame the populations. It will be used by 
our enemies. I urge the administration to take that case all the way to 
the Supreme Court and protect our troops in the field.
  I understand the President's dilemma and challenge. Harsh 
interrogation techniques have hurt this country more than they have 
helped. We can be a nation that abides by the Geneva Conventions, rule 
of law--we have been that way for a long time--and still defend 
ourselves. I agree with the President there. But I do believe we need a 
detainee policy that understands that the people we are talking about 
are not run-of-the-mill criminals. They are committed terrorists, and I 
don't say that lightly. The only way that label should stick under the 
system I am proposing is if an independent judiciary validates that 
decision. That is the best we can do.
  This decision we are going to make as a nation is important. I tried 
to speak my mind and be balanced. There is a way for us to work 
together to get this right. I look forward to working with the 
administration to make some of the most difficult decisions in American 
history. I am confident we can do it if we work together.
  I yield the floor.

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