Secure Fence Act of 2006--Motion to Proceed

SECURE FENCE ACT OF 2006--MOTION TO PROCEED -- (Senate - September 20, 2006)

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Mr. DURBIN. Will the Senator yield for a question?

Mr. SPECTER. Yes.

Mr. DURBIN. First, I thank my colleague for coming to the floor. I heard him open his remarks while I was in my office, and I salute him. I don't think many colleagues are aware of the seriousness of the habeas corpus provision that is in the detainee bill coming out of the Armed Services Committee. I ask my colleague--and I only caught part of his remarks--are you going to ask that this bill be referred to our Senate Judiciary Committee for hearings on this question of habeas corpus?

Mr. SPECTER. Mr. President, in response to the question of the Senator from Illinois, Senator Leahy and I have signed a letter to the majority leader, Senator Frist, and the Democratic leader, Senator Reid, asking for sequential referral.

Mr. DURBIN. One further question. I ask of the Senator from Pennsylvania, we understand the Armed Services Committee's jurisdiction on treatment of detainees, military commissions, and the like. If I am not mistaken, I ask the Senator from Pennsylvania, when we discuss a fundamental constitutional question, it seems to me that is an appropriate area for the Judiciary Committee to consider the merits of the question. I think I know the answer from what I have already heard in the Senator's previous statements. I hope I can join the Senators in making this request.

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Mr. DURBIN. I thank the Senator. If I might, I say to the Senator, I recently joined Senator Allen of Virginia on a trip to Guantanamo. We were met by the admiral in charge of the facility. He made it very clear in one of his opening remarks that Guantanamo is not there for punishment, but it is there for detention. He said punishment, of course, would be meted out to those found guilty of crime and wrongdoing. But the people being held there are being detained until we can determine their status. If they are, in fact, guilty of terrorism or war crimes, I think the Senator from Pennsylvania and I would quickly agree that they should be held responsible for those activities and punished to the full extent of the law. But, in most cases, for the hundreds of people in detention there, no charges have ever been leveled against them.

The writ of habeas, which basically is asking the Government to give cause why they are detaining a person, is the way to determine whether this person is being held justly and fairly. I think to eliminate that right, which is fundamental in our western civilization, raises a question as to the outcome for the lives of hundreds of people still in Guantanamo in this uncertain situation where they are not charged with any crime at all: not charged with terrorism, not charged with a war crime, but being held in indefinite status, many of them, for many years.

So I thank the Senator from Pennsylvania for raising this important issue. It is one that needs to be debated on this floor on a bipartisan basis.

Mr. SPECTER. Mr. President, one concluding statement. A group of attorneys who came to see me on this issue have been representing detainees. They produced summaries of proceedings before this body. It is shocking as to how little information there is in these proceedings under the CSRTs. I am trying to find out now if the information I have is not classified and present it in detail to Senators and to Members of the House so you can see how little information there is and how explanations are made and how people are detained without any basis, and on what appears to be a situation where there is no danger.

To the credit of the officials in Guantanamo, many have been released. But that is not sufficient. The detention of an individual under our laws is to be made by a court. When challenged, that requires a habeas corpus proceeding.

Mr. President, I thank the Chair and my colleague from Illinois.

I yield the floor.

The PRESIDING OFFICER. The Senator from Illinois is recognized.

Mr. DURBIN. Mr. President, I thank my colleague again for coming to the floor and raising this issue. For most people, it is a very complicated constitutional issue. I think it can be reduced to very understandable principles and values that we share as Americans. When you think back to the earliest founding of the United States, we valued so much our personal freedom, our personal liberty, and our rights as individuals, and we created within our Constitution a means to ask a basic question. By the filing of a writ of habeas corpus, we ask this question, by what right does the Government hold this person? Habeas--holding; corpus--body. One of the few words that I remember from the Latin I took many years ago. By what right does the Government hold this body, this person?

That has been a writ, as they call it, a law that has been recognized and respected for generations. It is part of our American body of law. We don't want a circumstance where the Government is wholesale arresting individuals and detaining them without charging them. There was a time, of course, during our Civil War when President Abraham Lincoln suspended the writ of habeas corpus; arrested, detained, and jailed many people without charging them. It was then an extremely controversial decision. In fact, if you read the history of the time, there were even people in the President's own political party who thought he had gone too far. President Lincoln argued that he had to do it in the midst of a civil war.

We look back on it now and wonder if perhaps this was excessive conduct in the name of security. We ask the same questions today. Are we doing things in America today that are going too far, things that infringe on our basic values and how we define ourselves as Americans in this diverse world? Are we doing things which, on reflection, history will not judge in a positive way? I think, unfortunately, the answer is, yes.

The issue of torture is one such issue. We, for decades and generations, had held to the standards of the Geneva Conventions. We basically said that civilized countries in the world act differently than those that are not civilized. Civilized countries, even in time of war, will not engage in torture, cruel, inhumane, or degrading treatment of prisoners.

That has been a standard which we have lived by for more than a century in the United States, a standard we have proudly proclaimed as our own, and a standard by which we have judged other nations which we believe have crossed that line.

After 9/11, there were serious questions raised by this administration as to whether we could continue to live under the principles, the standards of the Geneva Conventions. For a period of time, there were memos that circulated at the highest levels of our Government which tried to redefine torture and redefine treatment of prisoners. Those memos, sadly, were distributed. It appears that in some isolated cases, they were followed. It also appears that they were discredited and have been rejected after they had been used as a basis for American treatment of prisoners. We know that now. The facts have come out. Some of the people who were engaged in the preparation of those memos are at the highest levels of our Government today.

Those memos, so-called torture memos, suggested things such as one very noteworthy example: the use of guard dogs, turning dogs loose on prisoners to frighten them into submission or cooperation. That was a departure from what the United States had ever done in the past. That was part of a memo which was prepared at the highest levels of the White House and Department of Defense, a memo which has been acknowledged by the Administration, but which is now being repudiated by them. They are saying it is no longer being followed.

One of the architects of one of those memos is a man named William Haynes. Mr. Haynes recommended things we could do to prisoners to try to get more information. That was distributed, and not long thereafter, we had the Abu Ghraib prison scandal. One of the photographic images we can all recall is the picture of a guard holding a dog on a leash threatening a prisoner. That guard, an American soldier, was charged with violation of the law and has been imprisoned for that conduct.

The irony is that Mr. Haynes, one of the authors of this memo which suggested the use of these dogs, not only was never charged with a crime and was never imprisoned as this soldier was, who was working at the Abu Ghraib prison, but this individual is now being proposed for a Federal judgeship, a lifetime appointment to the second highest court in the land. So, at one level, we are sending soldiers, privates, corporals, and sergeants to prison, and at the highest levels where these memos were being written, we are rewarding the conduct of those who wrote them and suggesting they deserve a lifetime appointment to the Federal judiciary. I believe that is inconsistent and unfair, and if we are going to have a standard and a rule of law, it has to apply at the highest levels as well as to our soldiers. In this case, it did not.

Now we have before us the question raised by the Senator from Pennsylvania which we may face in the next few days. The question is this: Of the hundreds of people who are now being held in Guantanamo without any specific charges, what will happen to them? Will we ever have to charge them with wrongdoing? At this point in time, few, if any, of them have been charged. Over 100 have been released, incidentally, after being incarcerated there for long periods of time. The writ of habeas corpus is the means by which that detainee in Guantanamo and in other settings raises the question: By what right do you hold me in this prison? What crime do you charge me with? What is my wrongdoing? That is the writ of habeas corpus. The bill that is proposed from the Armed Services Committee would eliminate the right of habeas corpus for those who are currently being detained.

I raise this because I have visited this Guantanamo facility, and was told that we are not punishing anyone there because we don't know that they have committed a crime, they haven't been convicted of a crime, and we are only detaining them. But, by eliminating the writ of habeas corpus, we are eliminating that prisoner's right to step up and explain what happened, to tell their side of the story. There is no guarantee we will believe their side of the story. There is no guarantee they will be released. But our basic constitutional principles, the principles we have followed, have given individuals that right to question the Government.

Earlier today, I was visited by three attorneys from the city of Chicago, which I am honored to represent. Thomas Sullivan is a former U.S. attorney, Jeffrey Colman is active in the practice of law in that town, and Gary Isaac is another lawyer. They came to me because they have been involved in representing the detainees at Guantanamo.

Mr. Sullivan, a former U.S. attorney, a former prosecutor, well respected not only in Chicago but around the United States, has raised questions about the treatment of these Guantanamo prisoners. He left with me a description of one of his clients in Guantanamo, a client he represented pro bono, for nothing. The client's name is Mr. Abdul Hadi Al-Siba'i, who was taken into custody in Pakistan in December of 2001. Mr. Sullivan became his lawyer in 2005. After speaking with him and his family through interpreters and visiting him at Guantanamo, he learned the story.

It turns out Mr. Al-Siba'i had been employed for 20 years as an officer in the police department in Riyadh, Saudi Arabia. He took a two months leave of absence in August 2001 to go to Afghanistan to build schools and a mosque. He was captured, first by forces in Afghanistan and then turned over to the United States. He presented his airline tickets to show the journey he had made from Saudi Arabia to Afghanistan. The passport showed where he had been. The tickets showed the dates he was required to return, and he requested that the people who were detaining him in the United States verify the information. If they had a question, call the Riyadh, Saudi Arabia, police department and they would explain who he was, what his background was, and why he was given this two months leave of absence to go into Pakistan.

He was denied that request. The person presiding over his tribunal said:

I denied that request because an employer has no knowledge of what their employees do when they are on leave.

I can't quarrel with that statement, but any good lawyer would tell you that you try to sift through the evidence and testimony to come out with what you consider to be the truth, and that would mean at least taking the time to ask the question: Was this man a police officer in Saudi Arabia? Did he notify them he was taking a two months leave to work among the poor in Afghanistan? Those are simple questions which one would expect to be asked. They weren't.

Mr. Al-Siba'i explained what occurred when he arrived in Pakistan, was taken into custody by the Pakistani Army, and turned over to the U.S. forces. He said he joined the army in Saudi Arabia when he was 17, got married at 18, and has had a wife and stable job for almost 20 years. He talked about his trip to Sudan during a time of floods when he worked with poor people. He explained what he tried to do--charitable work for those he thought were in need. He went through the long description of the time he spent traveling. He was very open in the course of this tribunal, but at the end of the day, they said: The information is not good enough; you are going to be detained as a prisoner in Guantanamo. That was in 2001.

In 2006, 5 years later, without ever facing a formal charge of any wrongdoing, without any clear investigation into the circumstances he described, he was released from Guantanamo and returned to Saudi Arabia without any explanation whatsoever.

I suggest to those who are following the comments being made on the floor that if an American employee, an American citizen, or an American soldier was held under similar circumstances, we would have a right to be upset. It is one thing for us to acknowledge wrongdoing by an American--it can happen--but it is another thing to expect simple justice. And simple justice requires that someone be charged with a crime.

Just a few hours ago, I was in my office and met with a reporter for the Chicago Tribune named Paul Salopek. Just a few weeks ago, Paul Salopek was in Africa doing a story for National Geographic. He wandered across the border from Chad to Sudan and was arrested and charged with espionage. He was writing a story for the National Geographic about local African tribes. The charge, of course, was not well-founded. Many people came to his assistance, not the least of which was Gov. Bill Richardson of New Mexico, who traveled to Sudan and persuaded the President to release him. But here was an American citizen, and many of us were concerned about his safety and future when we knew that the charges against him were preposterous and they didn't make sense.

Imagine an American citizen being held, as this Saudi was, for 5 years without a charge. The reason he was finally released was that a writ of habeas corpus was filed to ask whether a charge was going to be leveled.

So now we have this debate going on in the Armed Services Committee. I salute my colleagues, Senator Warner, who was on the floor a few moments ago, as well as Senator McCain, Senator Graham, Senator Collins, and many others who have said they agree with the approach that has come out of the Armed Services Committee. It establishes a standard for military commissions so that the 14 or so individuals who are going to be tried will be tried under standards that are consistent with American values and American justice. That speaks well of our Nation. To do otherwise would raise the same questions raised by General Colin Powell just a week ago. It would raise a question about our moral standing in this world if we don't live by the same standards we preach day in and day out. I think it is a good thing and consistent to have those judicial standards and principles of justice in these military tribunals.

But the same bill coming out of the Armed Services Committee removes the writ of habeas corpus for all of these other detainees, the hundreds who are being held. So while this bill would hold people charged with crimes to a higher standard of treatment consistent with American law, the bill would completely eliminate the most fundamental principle of law--the writ of habeas corpus--when it comes to these other detainees who may never be charged. That is inconsistent, and it is wrong.

We should trust our system of government despite our fear of terror, despite our experience on 9/11. We shouldn't lose our way and abandon the most basic principles and values which guide our country. Those constitutional principles have weathered many storms, including a civil war which claimed more lives than any war in the history of the United States. Even now in this age of terror, even now living in a dangerous world, let's not abandon these most fundamental principles.

I thank the Senator from Pennsylvania for his earlier comments. I hope we have a chance to debate this issue at length on the floor.

Mr. President, I yield the floor.

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