National Defense Authorization Act For Fiscal Year 2017
Floor Speech
BREAK IN TRANSCRIPT
Mr. GRASSLEY. Mr. President, I am proud to stand once again with Senator Gillibrand in support of the Military Justice Improvement Act.
Two years ago, Congress enacted a number of commonsense reforms as part of the National Defense Authorization Act. These changes were mostly good, commonsense measures, and I supported them; however, they were not sufficient.
As I said at that time a year ago, we are past the point of tinkering with the current system and hoping that does the trick. I urged the Senate at that time to support bold actions that would make sexual assault in the military a thing of the past.
Unfortunately, those of us arguing for the Military Justice Improvement Act did not prevail. We were told to wait and see if the reforms that were included would work, while leaving in place the current military justice system. Well, we have had time to see if things have really changed. They have not. The rate of sexual assault in the military is unchanged.
Forty-two percent of servicemember survivors who reported retaliation were actually encouraged to drop the issue by their supervisor or someone else in the chain of command. That means a crime was committed, and you shouldn't bother to report the crime.
A majority of servicemember survivors indicated that they were not satisfied with the official actions taken against the alleged perpetrator.
Three out of four survivors lacked sufficient confidence in the military justice system to report the crime. Isn't that awful. If we didn't have confidence in the local police to report a crime, we know just how high the crime rate would go. I suppose somebody is going to tell me that can't apply to the military, but it does. In fact, there has been a decrease in the percentage of survivors willing to make an unrestricted report of sexual assault.
Two years ago, when military leaders were arguing against the reforms Senator Gillibrand and I and others were advocating, Congress was provided with data from military sexual assault cases that we now know was very misleading. But those statistics and data, quite frankly, carried great weight with a lot of our colleagues here in the Senate. We were told at that time that military commanders were taking cases that were ``declined'' by civilian prosecutors. The implication was very clear, as we were told that things will be all right; the military system results in prosecutions that civilian prosecutors turn down.
An independent report by Protect Our Defenders and reported by the Associated Press shows that there was no evidence that the military was taking cases that civilian prosecutors would not take.
When Senator Gillibrand and I wrote to the President asking for an independent investigation of how this misleading information was allowed to be presented to Congress, guess what. We received a response from Secretary Carter, and that response said it was all a misunderstanding. The Secretary's response went into a semantic discussion of the meaning of certain terms.
Apparently, in the military justice system, when a civilian prosecutor agrees to defer to the jurisdiction of the military to prosecute a case, it is listed as a ``declination.'' Such a situation is very different--very different--from a civilian prosecutor refusing to prosecute a case. If the military asks the civilian prosecutor to defer to the military's jurisdiction or if it is done by mutual agreement, it is not a case of a civilian prosecutor turning down a prosecution.
As I said, a review of the cases used to back up the Department of Defense's claims last year found no evidence that civilian prosecutors had refused those same prosecutions. Nevertheless, that was the clear implication of the statistics supplied to Congress by the Pentagon last year, and we were all sucked into that.
The response to our letter to President Obama claimed that the authors of that review just didn't understand the meaning of the term ``declined'' as it is used in the military justice system. The reality is that the information the Pentagon provided to Congress was obviously presented in a very misleading way.
So this question: When military leaders claimed that civilian prosecutors had declined to prosecute cases that the military then prosecuted, would it have had the same impact if they added a footnote saying that, in this context, ``declined'' doesn't really mean declined?
To summarize, the reforms we were told would reduce military sexual assaults haven't worked. And, folks, a rape is a rape, and a rape is a crime, and it needs to be reported, and it needs to be prosecuted. And, of course, a chief rationale for opposing our reform of the military justice system was based on very misleading data, as I hope I have made very clear.
So how many more lives need to be ruined before we are ready to take bold action? If a sexual assault isn't prosecuted, predators will remain in the military, and that results in a perception that sexual assault is actually tolerated in the military culture. That destroys morale, and it also destroys lives. The men and women who have volunteered to place their lives on the line deserve better.
Taking prosecutions out of the hands of commanders and giving them to professional prosecutors, who are independent of the chain of command, will help ensure impartial justice for the men and women of our armed services. That is what Senator Gillibrand's and my amendment is all about.
Let's not wait any longer. Let's not be sucked into certain arguments that we have been sucked into in the past. Let's stand up and change the culture of the military so that people are prosecuted when they do wrongdoing. Let's get it done, and get it done on this reauthorization bill.
BREAK IN TRANSCRIPT
Mr. GRASSLEY. Mr. President, one of the issues being discussed this week is the restrictions on the transfer of Guantanamo detainees to the United States. In November 2015 and in previous years, President Obama has signed annual defense bills that include a prohibition on the use of Federal funds to close Guantanamo. The National Defense Authorization Act, NDAA, for 2017 keeps this crucial prohibition.
Today I want to discuss one of the often-overlooked reasons why that prohibition should continue: the troubling immigration implications of transferring dangerous terrorist detainees from Guantanamo to the United States.
This is a serious issue with serious consequences, and it is one that hasn't always been considered as prominently as it should be. A March 2016 report by the Center for Immigration Studies highlighted this problem, and I will mention that report again in a moment.
About 80 detainees remain at Guantanamo today. In April of this year, nine detainees were released and returned to Saudi Arabia. According to media reports, one of the most dangerous terror suspects at Guantanamo was among those released, and he was still committed to jihad and killing Americans. He and the rest of the nine released terrorists could very well return to the battlefield after their so-called rehabilitation program in Saudi Arabia.
Rowan Scarborough of the Washington Times writes that this is exactly what has happened with about 30 percent of the detainees that were released from Guantanamo: they have resumed or are suspected of restarting, terrorist activity.
In fact, Obama administration officials have admitted that these detainees are killing Americans. As the Washington Post reported earlier this week, ``at least 12 detainees released from the prison at Guantanamo Bay, Cuba, have launched attacks against U.S. or allied forces in Afghanistan, killing about a half-dozen Americans.'' These numbers will likely increase as our intelligence agencies continue to obtain information. Clearly, these detainees are a deadly group who should be held in Guantanamo for as long as necessary.
Fortunately, right now the NDAA specifically forbids spending taxpayer funds to transfer any of these detainees to the United States. That is why, in a CNN interview earlier this year, Secretary of Defense Ash Carter stated that transferring Guantanamo prisoners to the United States is against the law.
But Secretary Carter also said ``there are people in Gitmo who are so dangerous we cannot transfer them to the custody of another government no matter how much we trust that government . . . we need to find another place and it would have to be the United States.'' But if these individuals are too dangerous for any other country, aren't they too dangerous to bring to the U.S. as well? Why would we bring these jihadist terrorist detainees into the United States when this would pose significant national security risks to the American people?
What particularly worries me about Secretary Carter's statement is that any transfer of Guantanamo detainees to the United States would apply highly ambiguous legal doctrines that could mean these terrorists would eventually be released on the streets in our homeland.
Very serious questions arise from this proposition, as the immigration implications of such a potential transfer are far from clear. Some of those questions include: What sort of immigration status would the Guantanamo detainees have? May Guantanamo detainees be detained indefinitely? Could Guantanamo detainees apply for asylum? What immigration benefits would the Guantanamo detainees be eligible for? Perhaps most important, how would U.S. courts rule on these issues, particularly if a future court decides that the war on terror has ceased? We've seen Federal courts in the past grant Guantanamo detainees greater rights than Congress intended.
It is my understanding that if these detainees were to be transferred to the United States, it would likely be done by granting them ``parole'' status. Immigration parole does not constitute an admission to the United States, but provides permission to enter the United States. It is supposed to be provided on a case-by-case basis, based on ``urgent humanitarian reasons'' or ``significant public benefit.''
As an initial matter, I don't see how paroling any of these terrorists into the country could be said to be either a humanitarian gesture or one that constituted a ``significant public benefit.'' But in addition to that concern, there is almost no precedent for immigration parole being used as a means of indefinite detention of aliens on U.S. territory. It should be used as a means to an end, such as bringing a criminal to the U.S. to serve as witness in a trial or allowing certain individuals in the U.S. to obtain emergency medical care.
Consequently, as the Center for Immigration Studies report I mentioned before recently put it, ``If the Guantanamo detainees are transferred to the United States, we are faced with the very real likelihood of open-ended immigration paroles, which rely on indefinite imprisonment under undefined, little-understood rules and protocols.''
Given these legal uncertainties, the most likely results for detainees brought to the United States who will not be tried for their terrorist activities, or who the administration otherwise intends to hold indefinitely, are writs of habeas corpus and complaints of violations of the Immigration and Nationality Act.
The war on terror has no end in sight, so these legal actions would inevitably arise as a result of the detainees' newly established presence on American soil and the indefinite nature of their detention.
I would further expect Federal courts to be particularly willing to entertain such writs or other legal actions if any of the detainees are tried for their crimes but not found guilty. And the risk of finding sympathetic, activist judges surely is heightened in the cases of the 28 detainees already cleared for transfer but who have not yet been released.
Even if some detainees are prosecuted and found guilty, they would serve a sentence, be ordered removed from the United States, and, ideally, be removed from our country upon the sentence's completion. But what happens if no other country--particularly their home country-- is willing to take them? This would be very likely, as statistics provided by the Department of Homeland Security show there are many countries who will simply not allow the hardcore terrorist Guantanamo detainees back into their country. Countries like Iran, Pakistan, China, Somalia and Liberia, just to mention a few, won't take custody of these enemy combatants. Alternatively, what if their home country, or another country, is willing to take them but that country is also likely to mistreat them to gain information about their terrorist activities? In that case, our obligations under the Convention Against Torture would prohibit us from returning the detainees to those countries.
If any of those removable detainees do remain in the United States, we won't be able to keep them detained for very long. The U.S. Supreme Court ruled in Zadvydas v. Davis that the United States may not indefinitely detain removable aliens just because no other country would accept them. In order for the U.S. Government to justify the detention of foreign nationals longer than six months, the basic rule is that the government must show that there is a ``significant likelihood of removal in the reasonably foreseeable future.'' The Zadvydas decision has thus set a precedent that dangerous, deportable, convicted criminal aliens who have completed their sentences, but who cannot be deported to other countries, cannot continue to be indefinitely detained and must be released.
Equally concerning, if a trial were to take place that resulted in a sentence of anything other than capital punishment or life in prison, then the Zadvydas precedent would most likely require the release of the terrorist within 6 months of the completion of his or her sentence. The danger any such releases could present has unfortunately already been illustrated. The Zadvydas decision has already resulted in extraordinary violence against Americans and threats to public safety.
In the last 3 years alone, almost 10,000 criminal aliens have been released from U.S. Immigration and Customs Enforcement custody because of Zadvydas. Too many of these aliens are released because the U.S. cannot obtain travel documents from home countries. This has real consequences.
For example, in Hillsdale, NY, a criminal alien who had been convicted of sexually abusing a 12-year-old girl was released onto American streets when his home country of Bangladesh refused to take him back after he had served his sentence. After his release, he proceeded to go on a rampage of theft and violence culminating in the brutal murder of a 73-year-old woman.
Given that the Obama administration already allows the release of convicted, dangerous, criminal aliens into our communities, I am deeply concerned that a similar situation would arise from transferring the terror suspects from Guantanamo to the United States. Bringing these hardcore terrorists to the United States would be tantamount to injecting a disease into our society.
As you can see, the potential transfer of these detainees presents a real problem with serious consequences. Many decisions will have to be made and discussions had regarding the viability of transferring these hardcore terrorist detainees to the United States.
If the Obama administration decides to transfer these detainees to the continental United States, this illegal action would force serious constitutional issues that could lead to an impasse. The matter of bringing hardcore terrorists into the United States would undoubtedly go before the Supreme Court. Pushing to close Guantanamo and bringing these hardcore terrorists to the United States without exhausting all alternative options is especially risky to the American people as it pertains to national security and public safety.
BREAK IN TRANSCRIPT
Source