National Defense Authorization Act for Fiscal Year 2022

Floor Speech

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Mr. DURBIN. Mr. President, earlier this month, while we were all home for the Thanksgiving recess, an American patriot passed away. His name was MAJ Ian Fishback.

During his life, Major Fishback defended our Nation during four tours of duty in Iraq and Afghanistan. He was an accomplished scholar, with degrees from both West Point and the University of Michigan, and a lifelong champion of justice.

Tragically, like too many of our Nation's veterans, Major Fishback's life ended far too soon. He died at the age of 42. Though his time on Earth was short, he left behind a legacy. He changed our Nation for the better. He inspired the Members of the Senate to make a historic stand against injustice.

You see, in 2005, while Major Fishback was serving as captain in the U.S. Army infantry, he spoke out against America's inhumane treatment of detainees after 9/11. In a letter to then-Senators John McCain and John Warner, Major Fishback wrote: ``I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.''

Major Fishback's courageous letter shed light on the atrocities that were being committed shamefully in the name of our Nation, and he felt that he had ``failed'' the servicemembers under his command. The reality is, our leaders failed Major Fishback.

In the wake of 9/11, the Bush administration tossed aside our constitutional principles as well as the Geneva Conventions. By condoning torture, they dishonored our Nation and actually endangered our servicemembers.

After reports emerged about horrific abuses at Abu Ghraib in Iraq, I tried for a year and a half to pass legislation to make it clear that cruel, inhuman, and degrading treatment of detainees was illegal. Two military heroes, my former colleague Senator John McCain and Major Fishback, turned the tide in this effort.

In speaking out, Major Fishback rallied the Members of this Chamber to support a torture amendment authored by Senator McCain and myself, which was added to the defense spending package for that year over a veto threat from the George W. Bush administration. That provision explicitly banned inhumane treatment of any prisoner held by the American Government--on American soil or overseas. It set us on a course to restoring American values that were cast aside after 9/11-- work that is still ongoing 20 years later.

We have a defense bill before us on the floor with many things in it that are positive, and I will vote for it. But it is a moment to also reflect that this bill does more than protect our Nation and help our troops; it also protects our values.

Since the first group of detainees was brought to Guantanamo in January of 2002, four different Presidents have presided over the facility. In that time, the Iraq war has begun and ended, and the war in Afghanistan, our Nation's longest war, has come to a close. A generation of conflict has come and gone. Yet the Guantanamo detention facility is still open, and every day it remains open is an affront to our system of justice and the rule of law. It is where due process goes to die. That is precisely why military officials, national security experts, and leaders on both sides of the aisle have demanded its closure for years.

The facility was virtually designed to be a legal black hole where detainees can be held incommunicado--beyond the reach of law--and subjected to unspeakable torture and abuse. In the words of a former senior official in the Bush administration, Guantanamo existed in ``the legal equivalent of outer space.''

It was created to circumvent the Geneva Conventions. What are those conventions? We know. They were the internationally accepted standard of humane treatment for detainees and prisoners. Guantanamo was designed to circumvent it and other longstanding treaties. This subversion of justice has harmed detainees, it has undermined our moral standing, and it has failed to deliver justice, which it promised.

For two decades, the families of Americans who died on 9/11 have waited for the alleged conspirators, who are being detained in Guantanamo, to be brought to justice. For 20 years, they have been waiting, but the case still hasn't come to trial. Imagine. If justice delayed is justice denied, how can this be justice at Guantanamo? Instead, the facility has become a symbol for human rights abuse, lawlessness, and everything Major Fishback decried in his letter to Senator McCain.

The stories out of Guantanamo and CIA black sites are shocking. Let me tell you one of them.

Last month, Guantanamo detainee Majid Khan testified before a military jury about the abuse he suffered in the facility and in CIA black sites. It was the first time a detainee has described his torture at a CIA black site.

Let's be clear. Majid Khan is a former member of al-Qaida who should be held accountable for his actions, but there is no justification for torture.

Mr. Khan recounted being abused in unspeakable, unthinkable ways by our government, including being waterboarded and shackled to a ceiling until his ankles swelled with blood. In one part of his testimony, he described a CIA medic sexually violating him with a garden hose.

As Mr. Khan shared the excruciating details of his torture, the members of the jury listened closely. But pay heed: These weren't average citizens sitting on the jury; they were Active-Duty, senior military U.S. officials on the jury. When the hearing concluded, these high-ranking military leaders did something unheard of. Seven of the eight jurors signed a handwritten letter recommending clemency for Majid Khan. This is what they concluded, and I want to quote it word for word: ``Mr. Khan has been held without the basic due process under the U.S. Constitution. . . . [He] was subjected to physical and psychological abuse well beyond approved enhanced interrogation techniques, instead being closer to torture performed by the most abusive regimes in modern history. . . . [T]his abuse was of no practical value in terms of intelligence or any other tangible benefits to U.S. interests.''

Remember, I have just quoted these senior U.S. military officials who sat on a jury where this man was being tried, and they, in a handwritten letter, wrote what I just read.

Now, that last point is crucial. The human rights abuses committed in Guantanamo and CIA black sites are not merely inhumane; they don't work. They are ineffective.

Khan testified: ``I lied just to make the abuse stop.''

Torturing him brought us no clarity, brought us no truth, and brought us no closer to eradicating terrorism. Instead, stories about the torture of prisoners at Guantanamo have only galvanized America's enemies. They have been packaged into propaganda and recruitment tools for terrorism, which in turn endangers our service men and women as well as our allies.

These accounts of abuse have also diminished our international standing. How can we claim credibility as a nation? How can we hold authoritarian dictators accountable if they can point to our own legacy of cruelty and indefinite detention? The man was held for 20 years, and others are still being held without being brought to trial.

Worse yet, the degrading conditions at Guantanamo are being funded by American taxpayers. How much is the cost of Guantanamo? Astronomic, that is how high it is. We spend more than $500 million a year to keep Guantanamo open--$500 million. Half a billion dollars a year American taxpayers are wasting to detain how many people for half a billion dollars? Thirty-nine. Thirty-nine prisoners, $500 million, and 13 have already been approved for transfer. That works out to nearly $14 million a year on each prisoner like Majid Khan--$14 million a year. Let me put that in perspective for a moment. That is enough money to expand Medicaid coverage to 1.5 million Americans over 10 years.

Setting aside the cost, we have to acknowledge the larger truth. Guantanamo does not reflect who we are or should be. Indefinite detention without charge or trial is antithetical to America's values. Yet more than two-thirds of the people detained in Guantanamo today have never been charged with a crime. How can that be any form of justice?

With or without the amendment I have introduced to this year's Defense authorization, we must accelerate the timeline to finally close Guantanamo. As I mentioned, 39 prisoners, $500 million a year?

President Biden transferred his first detainee earlier this summer, but that pace--one every 6 months--is not going to set us on course to finally close Guantanamo. Like the war in Afghanistan, America's failures in Guantanamo must not be passed on to another administration or to another Congress. Can this Senate summon the courage to finally close this detention facility? I would like to test it on the floor of the Senate. As a matter of fact, isn't that why we are elected--to test a basic question like that?

Next week, the Judiciary Committee is going to hold a hearing on how we can close Guantanamo once and for all. There are more steps the Biden administration can take to accelerate this closure. One is by appointing a special envoy to the State Department to negotiate transfer agreements for those inmates who are scheduled to be transferred--13 of the 39--to transfer them to other nations.

We must also reach swift resolution in the remaining cases where charges have been brought, instead of moving forward with military commissions. Let's finally accept the obvious: Military commissions are not the answer in Guantanamo and have not been for 20 years. If there is one lesson we can learn from the shameful legacy of Guantanamo, it is that we need to trust our system of justice. The use of torture and military commissions that deny due process have hindered our ability to bring terrorists to justice. Going forward, we should adhere to the long-held values of humane treatment and the rule of law.

Our Federal courts have proven more than capable of handling even the most serious, complex terrorism cases. Since 9/11, hundreds of terrorism suspects have been tried and convicted in our Federal courts, and many are now being safely held in Federal prisons. Compare that to the military commission case against the alleged conspirators behind 9/ 11. It still hasn't come to trial more than two decades after that horrendous attack. The families who lost loved ones on that day deserve better. America deserves better. And American patriots like Major Fishback deserve better as well.

We all deserve better than these black holes that violate our national values and make true legal accountability impossible.

As Major Fishback wrote to Senator McCain all those years ago, ``If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession.''

It is time to live up to those ideals that our troops have risked their lives to defend.

It is time, at long last, to face reality and honestly say, Close the detention facility in Guantanamo. Let's put this dark chapter behind us once and for all.

And in the memory of Major Fishback and the U.S. officials on that jury who spoke out, I thank them. I know it wasn't easy. It is far easier to remain silent and to avoid the obvious. But they showed courage in disclosing to the American people what occurred at Guantanamo.

Now, do we even have the courage to even debate this issue and vote on it on the floor of the Senate?

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