Improving America's Security Act--Continued
IMPROVING AMERICA'S SECURITY ACT--Continued -- (Senate - March 07, 2007)
BREAK IN TRANSCRIPT
Mr. DURBIN. Madam President, I come to the floor this afternoon to rise in support of the Specter-Leahy amendment, No. 286, which I hope we will have an opportunity to consider very shortly.
This amendment, which Senator Specter has addressed on the floor during the course of the day, is long overdue.
Last fall, Congress enacted a deeply flawed law called the Military Commissions Act. The law gives any President the power to imprison people indefinitely without charging them with any crime. It takes away fundamental due process as protected by the Constitutionally-protected right of habeas corpus. It allows our Government to continue to hold hundreds of prisoners for years without ever charging them with any wrongdoing.
I was one of 34 Senators who voted against the creation of this Military Commissions Act. I hope this year that Congress will begin to undo the damage to fundamental American values that was done by this legislation.
The amendment offered by the Senator from Pennsylvania and the Senator from Vermont, the Specter-Leahy amendment, is an excellent place to start. This amendment would repeal the provision of the Military Commissions Act that eliminated habeas corpus for detainees.
Habeas corpus is the legal name for a procedure that allows a prisoner to challenge their detention in court. It is a basic protection against unlawful imprisonment. It is one of the bedrock principles that separates America from many other countries around the world.
Over 700 lawyers from the Chicago area sent me a letter last year strongly opposing the elimination of habeas corpus for detainees. Here is how they explained the importance of this basic fundamental right, and I quote:
The right of habeas corpus was enshrined in the Constitution by our Founding Fathers as the means by which anyone who is detained by the Executive may challenge the lawfulness of his detention. It is a vital part of our system of checks and balances and an important safeguard against mistakes which can be made even by the best intentioned government officials.
Why is this administration so interested in protecting itself from the judicial review of our courts? Because the courts have repeatedly ruled that the administration's policies have violated the law and our constitution.
After the September 11 terrorist attacks, the administration unilaterally created a new detention policy for America. They claimed the right to seize anyone, including an American citizen in the United States, and to hold them until the end of the war on terrorism, whenever that might be.
They claimed that even an American citizen who is detained has no rights. That means no right to challenge their detention, no right to see the evidence against them, no right to even know why they are being held. In fact, an administration lawyer claimed in court that detainees would have no right to challenge their detention even if they were being tortured or summarily executed.
Using their new detention policy, the administration has detained thousands of individuals in secret detention centers around the world. Only time will lead to the complete disclosure of what they have done. The most well-known, Guantanamo Bay, is only one of those centers. Many have been captured in Afghanistan and Iraq, and people who never raised arms against us have been taken prisoner far from the battlefield, in places such as Bosnia and Thailand.
Who are the detainees in Guantanamo Bay? Well, back in 2002 then Defense Secretary Rumsfeld described them, and I use his words, ``the hardest of the hard core.' He went on to call them, ``among the most dangerous, best trained, vicious killers on the face of the earth.' Those are the words of Secretary Rumsfeld.
Well, I went to Guantanamo last July. There were some 400 detainees being held. There have been many others who have gone through that camp. Hundreds of people have been detained at Guantanamo, many for years, without ever being charged, and then were released.
Imagine, if you will, that you were scooped up by some government official, transported a thousand miles away to this rock in the middle of the Caribbean, this high-temperature, high-pressure location, and then held literally for years without ever being charged with any wrongdoing.
Every American would agree with what I am about to say. Every dangerous person should be arrested and detained to protect America from terrorism. When we have good cause to believe that a person threatens our country, I believe it is our right, when it comes to our basic security, to detain that person and to hold that person as long as they are a threat to our country. In this case, however, hundreds of individuals were taken from their homes, their businesses, their families, their countries, and transported to Guantanamo, and held without charges, sometimes for years, before they were released.
According to media reports, military sources indicate that many of the detainees had no connection to al-Qaida or the Taliban and were sent to Guantanamo over the objections of intelligence personnel who ultimately recommended they be released. It was a mistake. They never should have been held. They should not have been detained. Years were taken off their lives, while the image of Guantanamo has been created across the world.
One military officer said:
We are basically condemning these guys to long-term imprisonment. If they weren't terrorists before, they certainly could be now.
That quote comes from one of our military officials.
Based on a review of the Defense Department's own documents, Seton Hall University Law School reported that only 5 percent, 1 out of 20, of the detainees at Guantanamo were captured by U.S. forces, while 86 percent were taken into custody by Pakistani or Northern Alliance forces at a time when the United States was paying huge amounts of money for the capture of any suspected Arab terrorist.
The Defense Department's own documents revealed that the large majority of detainees never participated in any combat against the United States on a battlefield, and only 8 percent, that is fewer than 1 out of 10, of those being detained were even classified as al-Qaida fighters.
In 2004, in the landmark decision of Rasul v. Bush, the Supreme Court rejected this administration's indefinite detention policy. The Court held that detainees at Guantanamo have the right to habeas corpus to challenge their detentions in Federal court. The Court held that the detainees' claims that they were detained for over 2 years without any charge against them and without any access to counsel, and I quote the Court, ``unquestionably described custody in violation of the Constitution, or laws or treaties of the United States.'
That is why the amendment being offered by the Senator from Pennsylvania and the Senator from Vermont is so critically important. What we have enshrined in the Military Commissions Act is a violation of the fundamental values of our country.
As I have said before, and will repeat, anyone who is a danger to this country should be stopped, detained, arrested, and imprisoned, if necessary, before they harm anyone in our country. Those who are detained should be detained for cause. There should be a reason. There should be a charge against them. They should have the most fundamental access to justice, which we preach around the world; that they can defend themselves, know what they are being charged with, see the evidence being used against them, and have the right to counsel so that they can express their innocence in the most effective way.
How did the administration react to the Supreme Court decision in 2004? Instead of changing its policies to comply with the Constitution, the law, they came to the Republican-controlled Congress at that time and demanded that habeas corpus for detainees be eliminated.
This isn't about the rights of suspected terrorists. It is about who we are as Americans. Eliminating habeas corpus is not true to our values. Sadly, it creates an image of America that causes problems even for our troops in the field.
Recently, I went on a trip to South America with Senator HARRY REID, our majority leader in the Senate, and we talked to leaders in countries in South America. I can recall one leader saying that he wanted the United States to remove a base from his country. He said: We don't want to have another Guantanamo here in our sovereign country.
Guantanamo has become an image which needs to change. Even the President has called for the closing of Guantanamo. Yet what the Congress has done is to not only keep Guantanamo in business but to keep it in business with rules that are inconsistent with our Constitution and our fundamental values.
Tom Sullivan is a friend of mine and a prominent attorney in Chicago. He was a former U.S. attorney, a lead prosecutor for our Government in that area. He served in the Army during the Korean war.
For nothing, on a pro bono basis, Tom Sullivan has taken on cases of several Guantanamo detainees. He has practiced law for more than 50 years. He believes, even as a former professional prosecutor, that habeas corpus is a fundamental bedrock of America's legal system because it represents the only recourse available when the Government has made a mistake, detained a person and charged them with something of which they are not guilty.
ADM John Hutson, another man I have come to know and respect, was a Navy Judge Advocate for 28 years. Last year, he testified in the Senate Judiciary Committee hearing on the Military Commissions Act. Here is what Admiral Hutson, former Navy Judge Advocate, had to say about eliminating habeas corpus, and I quote:
It is inconsistent with our own history and tradition to take this action. If we diminish or tarnish our values, those values that the Founders fought for and memorialized in the Constitution and have been carefully preserved in the blood and honor of succeeding generations, then we will have lost a major battle in the war on terror.
Admiral Hutson concluded:
We don't need to do this. America is too strong. Our system of justice is too sacred to tinker with in this way.
He also testified that eliminating habeas corpus really puts our own soldiers at risk. Remember, John Hutson has given his life to our country's military, and here is what he said:
If we fail to provide a reasonable judicial avenue to consider detention, other countries will feel justified in doing exactly the same thing. It is our troops who are in harm's way and deserve judicial protections. In future wars, we will want to ensure that our troops or those of our allies are treated in a manner similar to how we treat our enemies. We are now setting the standard for that treatment.
I have heard arguments on the Senate floor: Oh, it is going to glut the courts of America if the 400 detainees at Guantanamo have some rights, if they have an opportunity to question the charges that have been brought against them, if they can use habeas corpus. I do not believe that is true and even if it was it is a small price to pay, a small price for America to pay to respect the most fundamental right that we believe to be part of our system of justice.
Will there be abuses? Well, I am sure there will be. There have been in virtually all the laws we have enacted. But we will be able to say at the end of the day that even in the midst of a war on terror, even as we feared what might happen tomorrow in the wake of 9/11, that America never lost its way in terms of its fundamental values and principles.
The Military Commissions Act, which passed this Senate, unfortunately is a step in the wrong direction. I fully support the Specter-Leahy amendment. We should honor American values and protect our brave men and women in uniform by restoring the right of habeas corpus, and I urge my colleagues to support this amendment.
Madam President, I ask unanimous consent that my name be added as a cosponsor to that amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. I thank the Chair, and I yield the floor.
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