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

Floor Speech

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Mr. DURBIN. Mr. President, I have great respect for my colleagues from Arizona and Connecticut, but I respectfully disagree with them on this amendment.

If this amendment passes, it will say that the only people in the world who cannot be tried in the courts of America for crimes of terrorism are those who are accused of terrorism on 9/11. Think about that for a moment. The argument is being made that we should say to the President and Attorney General that when they plot their strategy to go after the men and women responsible for 9/11, we will prohibit them, by the language of this amendment, from considering the prosecution of these terrorists in the courts of America.

What are the odds of prosecuting a terrorist successfully in the courts of America, our criminal courts, as opposed to military commissions, commissions that have been created by law, argued before the Supreme Court, debated at great length? What are the odds of a successful prosecution of a terrorist in the courts of our land as opposed to a military commission? I can tell you what the odds are. They are 65 to 1 in favor of prosecution in our courts. Mr. President, 195 terrorists have been prosecuted in our courts since 9/11. Three have been prosecuted by military commissions. But the offerers of this amendment want to tie the hands of our Department of Justice and tell them: You cannot spend a penny, not one cent, to pursue the prosecution of a terrorist in an American court.

Who disagrees with this amendment? It is not just this Senator from Illinois. It would be our Secretary of Defense, Robert Gates, and our Attorney General, Eric Holder. Here is what they said in a letter to all Members of the Senate about this amendment:

We write to oppose the amendment proposed by Senator Graham (on behalf of himself and Senators McCain and Lieberman). ..... This amendment would prohibit the use of Department of Justice funds ``to commence or continue the prosecution in an Article III court of the United States of an individual suspected of planning, authorizing, organizing, committing, or aiding the attacks on the United States and its citizens that occurred on September 11, 2001.''

They go on to say:

As you know, both the Department of Justice and the Department of Defense have responsibility for prosecuting alleged terrorists. Pursuant to a joint prosecution protocol, our departments are currently engaged in a careful case-by-case evaluation of the cases of Guantanamo detainees who have been referred for possible prosecution, to determine whether they should be prosecuted in an Article III, court or by military commission. We are confident that the forum selection decisions that are made pursuant to this process will best serve our national security interests.

We believe it would be unwise, and would set a dangerous precedent, for Congress to restrict the discretion of either department to fund particular prosecutions. The exercise of prosecutorial discretion has always been and should remain an Executive Branch function. We must be in a position to use every lawful instrument of national power--including both courts and military commissions--to ensure that terrorists are brought to justice and can no longer threaten American lives.

For these reasons, we respectfully request that you oppose this amendment.

This amendment would hinder President Obama's efforts to combat terrorism. That is why the Secretary of Defense and the Attorney General have written to each one of us urging us to vote no.

The Graham amendment would be an unprecedented intrusion into the authority of the executive branch of our government to combat terrorism.

There is a great argument. For 8 long years, Republicans argued it was inappropriate to interfere in any way with President Bush's Commander in Chief authority. Time and again, we were told by our Republican colleagues that it is inappropriate and even unconstitutional for Congress to ask basic questions about the Bush administration's policies on issues such as Iraq, Guantanamo, torture, or warrantless wiretapping. Time and again, we were told that Congress should defer to the Defense Department's expertise.

Let me give one example. On September 19, 2007, the author of this amendment, Senator Graham, said, and I quote:

The last thing we need in any war is to have the ability of 535 people who are worried about the next election to be able to micromanage how you fight the war. This is not only micromanagement, this is a constitutional shift of power.

Just 2 years later, a different President of a different party, and my Republican colleagues have a different view. My colleagues think Congress should not defer to that very same Defense Secretary, Robert Gates, and they think it is not only appropriate but urgent for Congress to tie the hands of this administration, making it more difficult to bring terrorists to justice. Clearly, there is a double standard at work.

Some of my Republican colleagues argue that Federal courts are not well suited to prosecute terrorists, and terrorists should only be prosecuted by military commissions. But look at the facts. Since 9/11, 195 terrorists have been convicted in Federal courts. Three have been convicted by military commissions. Again, the odds are 65 to 1 that if we want to find a terrorist guilty and be incarcerated for endangering or killing Americans, it is better to go to a regular court in America than to a military commission. That is the record since 9/11.

According to the Justice Department, since January 1 of this year, more than 30 terrorists have been successfully prosecuted or sentenced in Federal courts. I would like to ask my colleagues behind this amendment and their inspiration, the Wall Street Journal: Was this a mistake, taking accused terrorists into our courts and successfully prosecuting them under the laws of America?

Clearly, it was not. The Department of Justice made the right decision effectively prosecuting these individuals and, equally important, showing to the world we would take these people accused of terrorism into the very same system of justice that applies to every one of us as American citizens, hold them to the same standards of proof, give them the rights that are accorded to them in our court system, and come to a just verdict.

That is an important message. It is a message which says we can treat these individuals in our judicial system in a fair way and come to a fair conclusion and find justice, and we did--195 times since 9/11, 30 times just this year.

Recently, the administration transferred Ahmed Ghailani to the United States to prosecute him for involvement in the 1998 bombings of our Embassies in Kenya and Tanzania. Those bombings killed 224 people, including 12 Americans. My colleagues on the other side of the aisle have been very critical of this administration's decision to bring this man to justice in the courts of America. One of them, a House Republican Member from Virginia, Eric Cantor, said, and I quote:

We have no judicial precedence for the conviction of someone like this.

That is from Congressman Cantor. Unfortunately, the Congressman is wrong. There are many precedents for convicting terrorists in U.S. courts. I will name a few: Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing; Omar Abdel Rahman, the so-called Blind Sheikh; Richard Reid, the Shoe Bomber; Zacarias Moussaoui; Ted Kaczynski, the Unabomber; and Terry Nichols, the Oklahoma City coconspirator. They were all accused of terrorism. Some were citizens of the United States, some not. All were tried in the same article III courts which this amendment would prohibit--would prohibit--our President and Attorney General from using.

In fact, there is precedent for convicting terrorists who were involved in the bombing of U.S. Embassies in Tanzania and Kenya, the same attack in which Ahmed Ghailani was allegedly involved. In 2001, four men were sentenced to life without parole at the Federal courthouse in Lower Manhattan, the same court in which Mr. Ghailani will be tried. To argue that we cannot successfully prosecute a terrorist in American courts is to ignore the truth and ignore history.

Susan Hirsch lost her husband in the Kenya Embassy bombing. She testified at the sentencing hearing for the four terrorists who were convicted in 2001. Mrs. Hirsch said she supports the Obama administration's decision to prosecute Ahmed Ghailani for that same bombing that took the life of her husband. She said, and I quote:

I am relieved we are finally moving forward. It is really, really important to me that anyone we have in custody accused of acts related to the deaths of my husband and others be held accountable for what they have done.

Mrs. Hirsch also said she believes it is safe to try Ahmed Ghailani in a Federal court. I quote her again: ``I have some trust in the New York Police Department'' based on her experience at the 2001 trial.

Listen to what she said about the critics of this administration: ``They're just raising fear and alarm.'' This is from the widow of a terrorist bombing where the terrorists have been brought to justice in the courts of our land.

I agree with Susan Hirsch. I have faith in the New York Police Department. I have faith in our law enforcement agencies, I have faith in our courts, and I have faith in our system of justice.

We know how to prosecute terrorists, and we know how to hold them safely. We have living proof in 195 prosecutions since 9/11 and 350 convicted terrorists being held today in America's jails across the United States.

The Graham amendment is not about whether military commissions are superior to Federal courts. The amendment doesn't just express a preference for one over the other. The amendment expressly prohibits this administration and the Department of Justice from trying a terrorist in a Federal court.

The truth is, President Obama may choose to try the 9/11 terrorists in military commissions. That should be the President's decision. If it is his decision that it is in the interests of the security of the United States or in a successful prosecution to turn to a military commission over a regular Federal court in America, that should be the President's decision, the decision of his Attorney General, the decision of the prosecutors, not the decision of Members of the Senate who do not know the facts of the case and don't know the likelihood of prosecution.

Defense Secretary Gates and Attorney General Holder have developed a joint protocol to determine whether individual cases should be tried in Federal courts or commissions. The President worked closely with Congress to reform the military commissions so he would have another lawful tool to use in the fight against terrorism. The two lead cosponsors of the amendment before us, Senator McCain and Senator Graham, who is on the Senate floor, were very involved in that effort, as was Senator Levin of Michigan, the chairman of our Armed Services Committee. They sat down to rewrite the rules for military commissions because, frankly, we haven't had a great deal of success with prosecutions of terrorists with military commissions. Only three cases have gone before the Supreme Court, raising issues about military commissions, the standard of justice, due process, and fairness.

Now there is a new effort by President Obama, with the bipartisan help of Members of the Senate. So I am not standing here in criticism of the use of military commissions, but I am standing here taking exception to the point of view that we should preclude prosecutions in any other forum than military commissions of the terrorists of Ð9/11. President Obama may very well choose to try Khalid Sheikh Mohammad and other terrorists in military commissions. That should be his choice. Let him choose the forum, the most effective forum to pursue justice and to protect America from future acts of terrorism.

In their letter to Senators Reid and McConnell, Secretary Gates and Attorney General Holder said it well, and I quote them again:

We must be in a position to use every lawful instrument of national power, including both courts and military commissions, to ensure that terrorists are brought to justice and can no longer threaten American lives.

The decision may be reached at some future date by the administration, with the concurrence of the Secretary of Defense and the Attorney General, that it is a better forum to move to military commissions for a variety of reasons. They could be issues of national security. They could be issues of evidence.

But do we want to take away from them with this pending amendment the right to make that decision? Why would Congress choose to take away one of these lawful instruments from the President, our Commander in Chief? Don't we want the President to have the use of every lawful tool to bring these terrorists to justice?

One word in closing. I have the greatest respect for the families of 9/11.
Those who have spoken out on behalf of this amendment, I respect them greatly. They have been a force in America since the untimely and tragic deaths of members of their families. They forced on the previous administration a dramatic investigation of 9/11 and where our government had failed and what we could do to improve things. They have become a voice and a force in so many other respects since that awful day of 9/11. But they don't speak with one voice on this issue. Many support the pending amendment; others see it differently.

Susan Hirsch, whose husband was lost in a terrorism bombing in Africa, clearly sees it differently than these survivors of 9/11. With the greatest respect for those who support this amendment, I would say there are others who see this in a much different light.

I urge my colleagues to reject the Graham amendment. It is an unprecedented effort to interfere with the executive branch's prosecutorial discretion and President Obama's genuine efforts to combat terrorism.

I yield the floor.

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