Commerce, Justice, Science, And Related Agencies Appropriations Act, 2010--Resumed

Floor Speech

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Mr. WHITEHOUSE. Madam President, I will be speaking for only 4 or 5 minutes. I see Senator DeMint. I ask unanimous consent that I follow him. But I will be considerably briefer than Senator Webb.

Mr. DeMINT. I would be happy to let the Senator from Rhode Island go first, as long as I can follow him.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senator from Rhode Island is recognized.

Mr. WHITEHOUSE. I appreciate the Senator's courtesy. I wish to take a different view than our distinguished colleague from Virginia. He comes from a military background and he views this from that lens. I come from a prosecutor's and lawyer's background. I see it through a different lens.

I take exception to a number of the concerns the distinguished Senator from Virginia elucidated. My concern is, the balancing of those concerns and the determination as to on which side, military commissions or traditional law enforcement prosecution, the government should come down on is one that should not be a legislative determination.

We have executive officials who are very capable of making this determination. It is at the soul of prosecutorial discretion to decide whom to charge, what to charge, and in what forum to bring the charge. I think we are in the wrong location, trying to inject ourselves as the legislative branch of government into the executive determination as to where a case should be brought.

It may very well be that a great number of these cases should indeed be brought in military commissions. But I do not think it is up to us as Members of the Senate to force the executive branch's hands.

A second point is, we have had very bad luck with these military commissions so far. Many believe the procedures for those commissions did not afford adequate process to the accused, and, as a result, the perceived legitimacy of the commissions was undermined. That is the finding of the Detention Policy Task Force.

Some of those shortcomings have been improved upon recently. But we are in a stage, at this point, in which article III courts--the Federal American courts--have handled 119 terrorism cases with 289 defendants. Of those, 75 cases are still pending in our courts, but 195 defendants have been convicted. Our conviction rate has been 91 percent.

Our Bureau of Prisons currently holds 355 terrorists in its facilities, by it is own estimation, 216 international terrorists, and 139 domestic terrorists. So regular, traditional American law enforcement, prosecution by the Department of Justice, is a tried-and-true vehicle for prosecuting and punishing terrorists.

By contrast, the Gitmo military tribunals have convicted three detainees. After all those years of trouble and effort, 289 defendants convicted in our criminal courts, three in our military commissions.

So I submit there may be very good logic for those military commissions, but it is not a wise decision and not properly our decision to force the hand of the executive branch of government and close down the side of the war on terrorism that has been most effective at incarcerating and punishing our terrorist enemies.

I yield the floor and, again, thank the Senator for his courtesy.

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