National Defense Authorization Act for Fiscal Year 2014

Floor Speech

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Mr. DURBIN. Mr. President, first, let me thank my colleague and friend from the State of Oklahoma for yielding time and the Senator from Michigan for manufacturing this close so both sides will be heard as we come to this important vote.

For 11 years now--for 11 years--I have been coming to the Senate floor giving speeches about closing Guantanamo. This is my 66th speech calling for the closure of Guantanamo. This year I held a hearing in the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights. I brought in military experts, and I asked them: Do we need Guantanamo? Here is what they said. In fact, here is what we heard from Retired MG Paul Eaton, who served for 30 years in the Army and was the commanding general of the Coalition Military Assistance Training Team in Iraq. He said:

Guantanamo is a terrorist creating institution and is a direct facilitator in filling out the ranks of Al Qaeda and other terror organizations that would attack the U.S. or our interests.

General Eaton said:

Guantanamo, in military terms, is a recruitment tool of the first order.

Then I went down to the Southern Command in Miami, FL, and I met with the generals there who have the responsibility of running Guantanamo. When I asked them about Guantanamo, there was a sadness that came over the conversation, and they talked about how difficult it was--with about 160 or 165 detainees remaining down there--how difficult and how expensive it was for them to maintain that facility. They accepted it. It was part of their responsibility being in our military. But they basically said to me: When is Congress going to accept its responsibility?

The Levin-McCain amendment before us accepts our responsibility.

Let's get down to the bottom line. Whether you think these terrorists should be at Guantanamo or not in Guantanamo, let's talk about something very basic and very simple. How much does it cost for us to keep in prison one person in Guantanamo for 1 year? It is $2.7 million--$2.7 million per prisoner per year.

How much does it cost the Federal taxpayers to take the most dangerous, blood-thirsty, deadly individual we convict in our criminal courts and put them in the Florence supermax facility in Colorado, where no prisoner has ever escaped? Mr. President, $70,000 a year.

What are we trying to prove? Are we trying to prove in Guantanamo how much money we can spend--let me add waste--on a facility that is totally unnecessary?

I asked the Director of the U.S. Bureau of Prisons a very basic question: If we sent the most dangerous terrorist at Guantanamo to Florence, CO, what is the likelihood that person would escape? He said: Zero. They do not escape from our supermax facilities.

So we are not keeping America safe by wasting--wasting--$450 million a year in Guantanamo. We know that roughly half of those who are being held at Guantanamo should be released. They are not going to be tried for a crime at this point. They should be released. What the Levin-McCain amendment does is to set up an orderly, thoughtful, sensible way for the transfer of these prisoners.

Why do we keep this Guantanamo open? What is the point? It is as if some lobbyist has us enthralled that we have to keep Guantanamo open. It is not about national security anymore. It is not about the cost of incarceration anymore. It is about something else that I cannot even define.

So what we need to do is to take those remaining in Guantanamo who can be charged, charge them, try them, incarcerate them. Those who are going to be a danger to the United States should never see the light of day. But why would we continue to waste $2.7 million per year per prisoner to keep Guantanamo open?

Throughout its history, Guantanamo has had a checkered past. It is part of Cuba. We send the Cuban Government each year a rental check for the Guantanamo facility. They never cash it. They may tear them up. They do maintain the minefield between Guantanamo and the rest of the Island of Cuba to make sure there is no travel between the two, not that anyone would try. That is it. We maintain this facility because in the earliest days of our fight against terrorism after 9/11, there were legal counsels in the White House, such as John Yoo, who said that Guantanamo Bay was the ``legal equivalent of outer space.'' We could put people there. They will have no rights and no one will ever know. How wrong he was.

Guantanamo has become such a sad symbol that it is time for it to be closed, and it is time for us to do it in a thoughtful, sensible, honorable way, as every great nation should. To maintain Guantanamo for some bragging right that I cannot even describe on the floor is simply unacceptable.

I am going to be opposing the amendment that is offered by the Senator from New Hampshire and supporting the Levin-McCain bipartisan amendment, which I think deals with this issue in a thoughtful and reasonable way.

Do you want to keep America safe? Take those prisoners, those convicted terrorists, and put them in a supermax facility. If you say to yourself, oh, we don't put known terrorists and convicted terrorists in our Federal prison system, how wrong you are. They are all over our Federal prison system. We have convicted terrorists who are incarcerated in Marion, IL. Drive down to southern Illinois and no one even knows it because they will never see the light of day--never.

So in terms of safety in America, we know how to keep America safe. We also know when we are wasting money. At this point in time, we are wasting money with this Guantanamo facility.

Let's transfer those for detention and trial into the appropriate places and have them tried successfully. I think we have had perhaps six or seven tried by military commissions--only six or seven--since 9/11, and two of those were reversed. Most of them go into our court system. Even when they read them Miranda rights, it does not stop the convictions. The convictions come through regularly because our people know how to convict those who would threaten the United States and make it dangerous.

It is worth taking a moment to recall the history of Guantanamo Bay.

After 9/11, the Bush administration decided to set aside the Geneva Conventions, which have served us well in past conflicts, and set up an offshore prison in Guantanamo in order to evade the requirements of our Constitution.

General Colin Powell, who was then the Secretary of State, objected. He said disregarding our treaty obligations, ``will undermine the protections of the law of war for our own troops ..... It will undermine public support among critical allies, making military cooperation more difficult to sustain.''

At the hearing that I held in the Constitution Subcommittee, we received testimony from Retired MG Michael Lehnert, who served in the Marine Corps for 37 years. General Lehnert led the first Joint Task Force Guantanamo, which established the detention facility in 2002. General Lehnert testified that he tried to comply with the Geneva Conventions, but he was rebuked by civilian political appointees in the Bush administration. General Lehnert testified:

``We squandered the good will of the world after we were attacked by our actions in Guantanamo. ..... Our decision to keep Guantanamo open has actually helped our enemies because it validated every negative perception of the United States. ..... To argue that we cannot transfer detainees to a secure facility in the United States because it would be a threat to public security is ludicrous.

Instead of taking the advice of General Powell and General Lehnert, Defense Secretary Donald Rumsfeld approved the use of abusive interrogation techniques at Guantanamo.

Guantanamo became an international embarrassment, and the Supreme Court repeatedly struck down the Bush administration's detention policies.

Let's be clear, conditions at Guantanamo Bay have improved dramatically since the detainee abuses of the previous administration.

But we cannot continue the indefinite detention of dozens of detainees in an offshore island prison. Gen. Paul Eaton said it well when he testified to my subcommittee:

Guantanamo cannot be buffed enough to shine again after the sins of the past. ..... Guantanamo's reputation for torture and lack of due process of law cannot be rectified.

Every day, the soldiers and sailors serving at Guantanamo Bay are doing a magnificent job under difficult circumstances.

But these fine young men and women are being asked to carry out an unsustainable policy of indefinite detention because we--their political leaders--have failed to close Guantanamo prison.

The President's authority has been limited by Congress. We have enacted restrictions on detainee transfers that make it nearly impossible to close the facility.

During his two terms in office, Congress never once restricted President Bush's authority to transfer Guantanamo detainees.

Congress did not start micromanaging the Commander in Chief's authority to transfer detainees until 2009, after President Obama took office.

The Obama administration believes that Congress should completely lift the restrictions on the President's authority to close Guantanamo detention facility. I agree.

But I will support the Levin-McCain amendment, which is a constructive step in the right direction. The Levin-McCain amendment would give the President more flexibility to move forward with closing Guantanamo, while still imposing significant restrictions on the administration's authority to transfer detainees.

Under the Levin-McCain amendment, the Secretary of Defense may transfer a Guantanamo detainee to the United States, but only for the purpose of detention, trial, and incarceration. The Secretary of Defense must ``determine that the transfer is in the national security interest of the United States.'' And he must ensure that appropriate steps have been taken to eliminate any risk to public safety while the detainee is in the United States. The McCain-Levin amendment also specifically prohibits any detainee who is transferred to the U.S. for detention or trial from applying for asylum or from being released into the United States.

Before the administration would be permitted to transfer any detainees to the U.S., they would have to produce a detailed report on the plans for each and every detainee who is currently held at Guantanamo Bay.

The Defense Authorization Act also would allow the Secretary of Defense to temporarily transfer a detainee to a military medical facility in the United States, if the detainee needs critical, emergency care in order to prevent death or an imminent significant injury.

The Secretary of Defense would only be authorized to make such transfers if the required medical care cannot be provided at Guantanamo Bay ``without incurring excessive and unreasonable costs.''

Moreover, the Defense Department would have complete responsibility for the custody and control of any detainee during their transfer and temporary hospitalization at a military medical facility.

Detainees receiving temporary emergency medical care would not remain in the United States. The bill specifically requires that they be returned to Guantanamo as soon as they are medically cleared to travel.

Under the Defense authorization bill, the administration could only transfer detainees to foreign countries in limited circumstances. Specifically, first, the Secretary of Defense must determine that it is in the national security interest of the United States to transfer a particular detainee to a given country. Second, the Secretary of Defense must determine that sufficient steps have been taken that will substantially mitigate the risk of recidivism.

But that is not all. The bill requires the Secretary to consider six factors when determining whether a transfer is in the national security interest of the United States, including: No. 1, actions taken by the United States or the host country to reduce the risk of recidivism; No. 2, the host country's control over any facility where the detainee may be held; No. 3, an assessment of the capacity and willingness of the host country to meet its assurances to help mitigate recidivism; and No. 4, the detainee's cooperation with U.S. intelligence and law enforcement forces.

These provisions would ensure that--before any detainee is transferred to a foreign country--the administration would conduct a thorough review of all relevant factors, with a primary focus on preserving our national security.

In contrast to the McCain-Levin amendment, the Ayotte amendment would continue and expand the existing detainee transfer restrictions, which would micromanage the Commander in Chief's national security decisions and make it impossible to close Guantanamo.

It is time to move forward with shutting down Guantanamo prison. We can transfer most of the detainees to foreign countries. And we can bring the others to the United States for detention and trial.

Look at the track record. Since 9/11, nearly 500 terrorists have been tried and convicted in Federal courts and are now being safely held in Federal prisons. And no one has ever escaped from a Federal supermax prison or a military prison.

In contrast, only six individuals have been convicted by military commissions, and two of these convictions have been overturned by the courts. And today, nearly 12 years after the 9/11 attacks, the architects of the 9/11 attacks are still awaiting trial at Guantanamo.

During his confirmation hearing, I discussed this with FBI Director Jim Comey, who was Deputy Attorney General in the Bush administration. Mr. Comey told me:

We have about a 20-year track record in handling particularly Al Qaeda cases in federal courts..... the federal courts and federal prosecutors are effective at accomplishing two goals in every one of these situations: getting information and incapacitating the terrorists.

I have heard some of my Republican colleagues argue that we cannot close Guantanamo because of the risk that some detainees may engage in terrorist activities.

The irony is that due to steps taken by President Obama, recidivism rates for the detainees transferred during the Obama administration are far lower than they were during the Bush administration.

Only 4.2 percent of former detainees transferred since January 22, 2009, when President Obama took office, are confirmed recidivists. In contrast, 18.2 percent of the detainees released during the Bush administration are confirmed recidivists.

That is because the Obama administration put in place a strict process for detainee transfers. According to the Director of National Intelligence, of the 174 former detainees who are confirmed or suspected recidivists, only 7 have been transferred during the Obama administration.

No one is suggesting that closing Guantanamo is risk free or that no detainees will ever engage in terrorist activities if they are transferred.

But our national security and military leaders have concluded that the risk of keeping Guantanamo open far outweighs the risk of closing it because the facility continues to harm our alliances and serve as a recruitment tool for terrorists.

And before any detainees are transferred, they are extensively screened, steps are taken to mitigate any risks, and then detainees are monitored after they are transferred. Detainees who pose a risk that cannot be mitigated will not be transferred.

Detainees who pose a risk that cannot be mitigated will not be transferred. And if a former detainee does return to terrorism, he will likely meet the fate of Said al-Shihri, No. 2 official in Al Qaeda in the Arabian Peninsula, who was recently killed in a drone strike.

I stand with Gen. Colin Powell, Gen. Paul Eaton, Gen. Michael Lehnert and countless other national security and military leaders.

It is time to end this sad chapter of our history. Eleven years is far too long. We need to close Guantanamo.

I thank Senator Levin and Senator McCain for bringing this issue before us. We can no longer ignore it. We cannot afford to ignore it. As General Eaton says, we cannot afford to keep this recruiting tool open for Al Qaeda. We cannot afford to continue to tell American taxpayers they need to pay $2.7 million a year for every prisoner in Guantanamo. Transfer them to a supermax prison for $70,000. America will be just as safe. It will have money in the bank to use to fight terrorism in more effective ways.

I urge my colleagues to support the Levin-McCain amendment and oppose the Ayotte amendment.

I yield the floor.

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