Prohibiting the Transfer of Any Detainee At United States Naval Station, Guantanamo Bay, Cuba

Floor Speech

The gentleman from Virginia described very well the process that the Obama administration put in place in 2009. It was a significant improvement.

The real problem that we had with Guantanamo was, when it was originally conceived as a place to hold detainees under the law of war, there were, at one point, nearly 800 detainees there.

A lot of them were brought there without much in the way of vetting or assurances that they were, in fact, threats. In fact, under the Bush administration, well over 500 of those detainees were released, and there really wasn't much of a process. Somewhere in the neighborhood of over 20 percent of those detainees did return to the battlefield and did present a threat to the country. There simply wasn't a process.

So, as Mr. Forbes described quite well, in 2009, the Obama administration put in place a process. At the time, there were 242 detainees remaining in Guantanamo Bay. The process they put in place was to go through every single one of them and say: Who are these people? What is their threat level? They evaluated all of them and put them into different categories. They determined that some were not a threat and could be released.

Regrettably, something we don't like to talk about, as I sort of alluded to earlier, is that a number of these people were picked up erroneously, either with the wrong name or the wrong information, and we really didn't have any evidence on them, or the evidence we thought we had turned out to be wrong. A fair number of these detainees were being held really for no good reason, so they tried to determine who those were.

Now, there are also some very, very bad people at Guantanamo Bay. As Mr. Forbes also indicated, the President reaffirmed our right under the law of war to hold those people, and I support that very strongly. But what the Obama administration has done to get that number down to 61 is they have transferred the ones that a board of defense, intelligence, security, and Justice Department experts had determined were not a threat to the United States and were transferable. The problem that came up was: Transferable, but to where? Who would take these people?

Then, there was the last provision that Mr. Forbes also mentioned. Wherever they were transferred to, the Obama administration wanted to make sure that there were some assurances from those countries that they would look after those folks, hold them securely, and make sure that they were not a threat.

So that is what has got us down to the 61 number is the release of detainees that this board, again, of defense, intelligence, Justice Department, and security experts determined were not a threat to the United States and were transferable.

Now, of that number, since 2009, that returned--at this point, I think just this morning, two more detainees were determined to have returned to the battlefield; for the most part, this is return to fighting with the Taliban in Afghanistan--is still a number around 6 percent of all folks that have been released from Guantanamo Bay, under the Obama administration, that have been deemed to have returned to the battlefield. The previous group, under the Bush administration, was somewhere between 20 and 30 percent, depending on how it was calculated. So, they have done a very careful job of who should be vetted and where they should be transferred to.

Of the 61 that are left, there are 20 that are currently eligible for transfer. There are 10 in the military commission system and 31 others that are reserved for continued law of war detention.

The Obama administration is of the opinion that there are only 20 of the remaining 61 that are potentially transferable. They have been vetted through this very lengthy process that I have described that has been successful to the point that, again, only 6 percent have been deemed to have returned to the battlefield.

What this bill would do is stop this President, frankly, from being President on this issue for the last however many months there are left in his administration. If, in fact, we can find secure places to transfer these 20, then it is the right thing to do, and the President ought to be allowed to do it. There is no reason to stop him from doing it.

Now, the argument that you will hear repeatedly from the other side is: we can't take the chance. Yes, they have been vetted; yes, the percentage is low; but this person might do something bad if we release them.

I would suggest that that turns the American justice system on its head. There are a whole lot of people walking the streets in this country who might do something bad. You do all kinds of analyses to determine that they might. Maybe we should lock them up, no trial, no process, no nothing, and say: look, better safe than sorry. But that is not the way we do things.

Now, we do have a process here. And there are some that, under the law of war, are determined to be dangerous.

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Mr. SMITH of Washington. I yield myself an additional 1 minute.

Once we have determined that they are not a threat, under our opinion, and are transferable, to say, look, sorry, we are just going to hold you because we want to, is really a violation of the U.S. Constitution and due process of law.

To hold this process up even for a few months is not necessary. As I said, we are talking about 20 people that the Obama administration is trying to determine if they can find a safe place to send them.

This is not about closing Guantanamo. I strongly support closing Guantanamo. I will skip that argument for the purpose of this debate. That is not going to happen. We have had votes on the House floor. There is not support in Congress for it. There is a prohibition in law that continues to be in law on transferring any of those detainees to the United States or spending any money to detain them in the United States. So it is not going to happen.

The question really is about the 20 people who have been deemed not to be security threats to the U.S., who have been deemed to be transferable, and whether or not we can transfer them. This bill would say ``no'' and would hold those 20 people for the next 5 or 6 months, regardless of the evidence and regardless of the vetting process.

Now, it is possible these 20 people won't be transferred, that we won't find a country for them, but there is no reason to strip the President of his lawful authority to do that.

Again, I want to emphasize that the Obama administration has gone through a careful vetting process, unlike the Bush administration, so I don't think we should interfere with that vetting process.

In the prime sponsor of this bill's remarks, there are a whole lot of sort of half-truths and assumptions that got jammed together that don't actually make sense and are not actually the facts that are before us to paint a very dark picture that isn't what we are dealing with. Let me just run through those.

We heard that 30 percent of the people have returned to the battlefield or are suspected to have returned to the battlefield. That 30 percent figure relies, again, on the folks that were released before the Obama administration when, again, quite frankly, people were picked up in a very haphazard manner and released in a very haphazard manner.

Since 2009, since the Obama administration did the vetting process of all of these people, the actual rate of people who have been deemed to have returned to the battlefield, even with the two that were counted this morning, is 5.6 percent. So when you hear 30 percent--oh my gosh, 30 percent of these people are returning to the battlefield; how can we release them--that is not the number. Okay?

Now, you can argue about the 5.6 if you want, but let's at least get the number right. Since the Obama administration did the proper vetting process, the number is 5.6 percent to have been confirmed to have returned to the battlefield, including the two that were added this morning.

It is also worth noting that when we say the ones that are left are the worst of the worst, there is truth in that. Obviously, Khalid Sheikh Mohammed would fall right up at the top of that; and 41 of the folks who are there do fall into that category of the worst of the worst. None of those 41 have been cleared for transfer.

What we are talking about is the 20 who have been cleared for transfer, and the President--those are the people that President Obama has released and repatriated to other countries over the course of the last 7 years, are people who have been cleared for transfer; with one exception, which I am sure will come up at some point, and that was in the prisoner swap for Bowe Bergdahl. And we can relitigate that argument as well, but that has really got nothing to do with what is going on here.

There, the President made a decision to transfer five people that had not been cleared for transfer in exchange for our captured member of the military. So except for that situation, all of these people who have been released have been vetted and cleared.

Lastly, I just want to--well, not lastly, actually two more things. The most disturbing thing that was said was that these people who have been released are people who, at one time, were suspected of being dangerous, and that is true. They wouldn't have been there if they weren't suspected of being dangerous. But it turns out in these cases we were wrong. And you can go back through the history of post-9/11, you can find a number of instances when we were wrong.

I remember right after 9/11 there was a doctor in San Antonio who had done a whole bunch of suspicious things, and everybody was absolutely convinced that this guy was tied in with al Qaeda. He was held for an extended period of time, and then people looked into it and they said: Oops, sorry, we got the wrong guy. We are going to let you go.

That happens, and I don't blame law enforcement in the least bit for that. It is a difficult job.

In this case, when you are talking about terrorists, you should err on the side of caution. If you have probable cause, you should pick somebody up and you should be sure.

But now what this side is saying, once you have been suspected, even if it turns out that you were completely wrong in that suspicion: Sorry, we are just going to lock you up for the rest of your life without due process or a possibility of trial.

That is unbelievably unconstitutional and just flat wrong.

Yes, these people were suspected. They wouldn't be in Guantanamo if they weren't. But what was determined was that, of those people who were suspected, a number of them turned out we were wrong. And of the ones that are left, there are 20 out of the 61 that are eligible for transfer.

Now, again, finding the right country to send them to, it might not happen. All right. So no one is talking about releasing the worst of the worst. The President has made it clear those 41 are not transferrable.

We are talking about the 20 that have been deemed to be transferrable. Just because you were suspected at one point, I would hate to think that we would have a country that says: If you are suspected of a crime, sorry, we are going to lock you up and that is it, even if evidence later shows that we were wrong.

That is not the way we should do things in law enforcement.

Lastly, we have heard that this is all about a campaign promise to close Guantanamo. Again, this has nothing to do with closing Guantanamo.

Now, the President and the Vice President are reluctant to give up on what they think is the right policy, closing Guantanamo Bay. So until they leave office, they are not just going to say: We are not going to do it.

They think it is important. Again, I won't relitigate that argument, but there are people who feel passionately that it is the right thing to do. But that is not what we are talking about doing here.

We are talking about 20 people who have been deemed not to be a threat to the United States that we are, nonetheless, incarcerating, and the President is talking about transferring them.

We are not talking about transferring the 41, not talking about closing Guantanamo. It is still in law that we can't close Guantanamo. So it is not about a campaign promise. It is about upholding the values in the Constitution of the United States of America that says that if we have you incarcerated and it turns out that our evidence was wrong and you are not guilty of what we thought you were guilty of or, in this case, not a threat to us in the way that we thought you were, then we should release you, not hold you.

We are not a dictatorship. We are not a country like Saddam Hussein used to run, where he just locked people up because he wanted to. That is not who we should be.

This bill takes away the ability of this President to transfer those 20 people who have been clearly deemed transferrable by the Defense Department, the Justice Department, Homeland Security Department, Intelligence Community experts.

They want to stop, as Mr. Nadler said, this President from being President. Now, they never wanted him to be President in the first place, and it is incredibly inconvenient that he got elected twice, from their perspective. But he is the President and he should have the authority to exercise the Office of the Presidency until January 20 of next year, when he is done.

This bill unfairly strips him of that right. Again, we are talking about 20 people who have been deemed to be transferable. So let's get the facts straight and then argue based on those facts. It is not 30 percent; it is 5.6. We are not talking about releasing the worst of the worst. We are not talking about closing Guantanamo Bay.

The Obama administration is not determined to clear the facility before they leave office. They want to close the facility. But, again, those 41 that have been deemed dangerous, it is the Obama administration's position that they shouldn't be held in Guantanamo Bay, that they should be held in secure prisons in the United States, not to let them go.

I think that is one of the most misleading things about this argument that is being made by the other side repeatedly that they simply want to let them all go. It is not their goal to empty GTMO before January 20. It is their goal to still try to close the prison so that they can be held here in the U.S.

Again, that is a separate argument, but I just want to make sure that it is clear it is not the goal of the administration to simply empty out the prison and send all 61 wherever. We are talking about 20 that have been deemed eligible for transfer.

I want to make clear; I represented Joint Base Lewis-McChord for 16 years, until 2012, and wrote hundreds of sympathy cards to family members who lost loved ones from that base in Afghanistan and Iraq, and I will take the backseat to no one in terms of respecting what they did, how they fought, and what they sacrificed, making sure that we do everything we can to protect them and give them the tools they need to protect our country and protect themselves. I thank the Republicans for working in a bipartisan manner on that issue.

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Mr. SMITH of Washington. He said that America would not arrest as a terrorist someone who turned out not to be a terrorist. The facts are simply clear that that is just not the case. It is not that we are doing anything malicious. It is a complicated and difficult job. As Mr. Nadler pointed out, there is a lot to sort out.

It is not even in dispute that we have arrested and incarcerated people because we thought they were terrorists and found out that we were wrong. That is not debated. A number of them have been released.

So to say that, well, if we arrested them and put them in there, they must be bad and they can't be sent out is precisely what is wrong with the thinking behind this piece of legislation.

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Mr. SMITH of Washington. Mr. Speaker, I have no further speakers, and I yield myself the balance of my time.

Mr. Speaker, the most interesting thing about this debate is that, as we have moved on from speaker to speaker, the proponents of this legislation keep saying the same things over and over again that simply are not true. Again, I just want to close by saying I wish we could debate this on the actual facts, on what is in front of us.

There certainly is an argument to be made that we should err on the side of just locking them up no matter what. I think that is the wrong argument. I think Mr. Nadler has very clearly articulated why, as a country, we shouldn't do that, we shouldn't pick people up and say, if there is any possibility we might be wrong, we are just going to take away your freedom and lock you up without due process. It is a violation of the fundamental principles of our country. We could at least have that debate.

But we keep hearing a number of things that simply are not correct. Number one, this is just the President trying to fulfill a campaign promise to close down Guantanamo Bay and get everybody out of there before he leaves office. That is completely wrong. There are 41 people at Guantanamo Bay who this administration has said under no circumstances are they transferable. Those are the worst of the worst, and they are not talking about transferring them. What we are talking about are the 20 people who have been deemed transferable.

Then we have the argument, well, gosh, they wouldn't be in there if they hadn't done something wrong. As we all know, law enforcement occasionally makes mistakes. So that is not correct either. These 20 people have been examined and deemed to be transferable, and we should not hold them because the 41 other people who happen to be there are really bad people. That is not, again, according to the way that we should do justice in our country.

So this is not about closing Guantanamo. We have had that debate numerous times, and I have lost that debate on the House floor. I understand that. This is about the Obama administration doing what the Bush administration should have done in the first place, which was to be a lot more careful about whom you put in there; and then once they are in there, examine it, make sure you actually have sufficient evidence and these are people you need to hold.

That is what the Obama administration did in 2009 with the 242 inmates who were being detained at Guantanamo. They determined that some of them were there incorrectly and were transferable. That is what we are talking about.

This bill would stop that. This bill would say basically that President Obama is not actually President in this area for the rest of his term. That is wrong. He got elected and he ought to be able to make those decisions.

I will also say in this area, he has proven to be vastly more careful than his predecessor. Again, the recidivism rate of those released in 2009 is 5.6 percent. Prior to that, that number was closer to 30. So a process was put in place that actually did work, and we ought to respect that process and not restrict the President's ability to basically do justice.

Finally, I just want to say, as has been noted a couple of times, Mr. Forbes will be leaving our committee. I have enjoyed serving with him during my time. He is--as Stephen Colbert would say--a worthy opponent, and I enjoy that. We have had a lot of great debates on the committee. I am very, very sorry to see him go. I thank him also for his service. We have worked in a very bipartisan fashion on a number of issues and upheld, I think very, very well, the bipartisan tradition of the House Armed Services Committee. So I have enjoyed serving with him. I appreciate that service. I wish him the best of luck in the future.

I yield back the balance of my time.

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