[Congressional Record: July 16, 2007 (Senate)]
[Page S9231-S9233]


                   DETAINEES IN IRAQ AND AFGHANISTAN

  Mr. KYL. Mr. President, I wish to address a subject that I hope we
will be able to address soon and that is an amendment that Senator
Graham of South Carolina has filed and, hopefully, we will debate soon.
It relates to conditions that have been placed in the underlying bill,
relating to the treatment of detainees captured in Afghanistan and
Iraq.
  I urge my colleagues to think very carefully about the damage that
would

[[Page S9232]]

be brought on the global war against terrorists and future wars that we
may have to fight if we go forward with the language that is in the
bill, specifically in section 1023 of the bill. That essentially would
return us to a law enforcement approach to terrorists that, frankly,
failed us before 9/11 and, once Osama bin Laden and others declared war
on us, would obviously not work in the post-9/11 context.
  Senator Graham's amendment strikes these harmful provisions in the
bill and would replace them with commonsense measures to provide a more
fair process in dealing with detainees at Guantanamo. I remind my
colleagues for a moment about the nature of these terrorists whom we
are talking about, and then I will go through specific provisions of
the bill that need to be removed--specifically three: a requirement
that al-Qaida terrorists held in Iraq and Afghanistan be given lawyers;
the authorization to demands discovery and compel testimony from
servicemembers; and the requirement that al-Qaida and Taliban detainees
be provided access to classified evidence.
  To review the nature of the detainees that we are holding, not just
at Guantanamo Bay but also in Iraq and Afghanistan, these are not nice
people. At least 30 of the detainees released from Guantanamo Bay have
since returned to waging war against the United States and our allies;
12 of these released detainees have been killed in battle by U.S.
forces and others have been recaptured; two released detainees became
regional commanders for Taliban forces; one released detainee attacked
U.S. and allied soldiers in Afghanistan, killing three Afghan soldiers;
one released detainee killed an Afghan judge; one released detainee led
a terrorist attack on a hotel in Pakistan and a kidnapping raid that
resulted in the death of a Chinese civilian, and this former detainee
recently told Pakistani journalists he planned to ``fight America and
its allies until the very end.''
  The provisions of section 1023 would make it very difficult, if not
impossible, for the United States to detain these committed terrorists
who have been captured while waging war against us. No nation has, in
the history of armed conflict, imposed the kinds of limits that the
bill would impose on its ability to detain enemy war prisoners. War
prisoners released in the middle of an ongoing conflict, such as
members of al-Qaida, will return to waging war. We have already seen
this happen 30 times with detainees released from Guantanamo Bay. If
section 1023 of the bill is enacted into law, we could expect that
number to increase sharply. If section 1023 is enacted, we should
expect that more civilians and Afghans and Iraqi soldiers will be
killed, and it may be inevitable that our own soldiers will be injured
or killed by such released terrorists. This is a price our Nation
should not be forced to bear.
  Let me talk first about the requirement in the bill that al-Qaida
terrorists held in Iraq and Afghanistan must be provided with lawyers.
This cannot be executed. It would require the release of detainees.
Here is why: The Defense bill requires that counsel be provided and
trials be conducted for all unlawful enemy combatants held by the
United States, including, for example, al-Qaida members captured and
detained in Iraq and Afghanistan if they are held for 2 years. We hold
approximately 800 prisoners in Afghanistan and tens of thousands in
Iraq. None of them are lawful combatants and all would arguably be
entitled to a trial and a lawyer under the bill. Such a provision would
at least require a military judge, a prosecutor, and a defense
attorney, as well as other legal professionals.
  That scheme is not realistic. The entire Army JAG Corps only consists
of approximately 1,500 officers, and each is busy with their current
duties. Moreover, under the bill, each detainee would be permitted to
retain a private or volunteer counsel. Our agreements with the Iraqi
Government bar the United States from transferring Iraqi detainees out
of Iraq. As a result, the bill would require the United States to train
and transport and house and protect potentially thousands, or even tens
of thousands, of private lawyers in the middle of a war zone during
ongoing hostilities. That is impossible.
  That proposal is half baked at best. It would likely force the United
States to release thousands of enemy combatants in Iraq, giving them
the ability to resume waging war against the United States. Obviously,
this would tie up our military. By requiring a trial for each detainee,
this provision would also require U.S. soldiers to offer statements to
criminal investigators, needing later to prove their case after they
captured someone. They would need to carry some kind of evidence kits
or combat cameras or some other method of preserving the evidence and
to establish its chain of custody. They would need to spend hours after
each trial writing afteraction reports, which would need to be reviewed
by commanders. Valuable time would be taken away from combat operations
and soldiers' rest.

  It would be a bad precedent for the future. Aside from the war in
Iraq, this provision would make fighting a major war in the future
simply impossible. Consider this: During World War II, the United
States detained over 2 million enemy war prisoners. It would have been
impossible for the United States to have conducted a trial and provided
counsel to 2 million captured enemy combatants. So the bottom line is
that the bill, as written, would likely be impossible to implement in
Iraq and, in the context of past wars, it is patently absurd.
  The second point is authorizing al-Qaida detainees to demand
discovery and compel testimony from American soldiers. The underlying
bill would actually authorize unlawful enemy combatants, including al-
Qaida detained in Iraq and Afghanistan, to demand discovery and could
compel testimony from witnesses as we do in our criminal courts in the
United States. The witnesses would be the U.S. soldiers who captured
the prisoner. Under this bill, an American soldier could literally be
recalled from his unit at the whim of an al-Qaida terrorist in order to
be cross-examined by a judge or that terrorist.
  Newspaper columnist Stewart Taylor describes the questions that such
a right would raise:

       Should a Marine sergeant be pulled out of combat in
     Afghanistan to testify at a detention hearing about when,
     where, how, and why he had captured the detainee? What if the
     northern alliance or some other ally made the capture? Should
     the military be ordered to deliver high-level al-Qaida
     prisoners to be cross-examined by other detainees and their
     lawyers?

  The questions abound. As the Supreme Court observed in Johnson v.
Eisenstrager, which is the law on this subject:

       It would be difficult to devise a more effective fettering
     of a field commander than to allow the very enemies he is
     ordered to reduce to submission to call him to account in his
     own civil court and divert his efforts and attention from the
     military offensive abroad to the legal defensive at home.

  That is what the U.S. Supreme Court said in World War II when a
similar issue was raised. It would be difficult to conceive of a
process that would be more insulting to our soldiers. In addition, many
al-Qaida members who were captured in Afghanistan were captured by
special operators whose identities are kept secret for obvious reasons.
This would force them to reveal themselves to al-Qaida members,
therefore exposing themselves or to simply forgo the prosecution of the
individual, which is more likely what would happen.
  Clearly, Americans should not be subject to subpoena by al-Qaida.
That brings me to the last point--the requirement that al-Qaida and
Taliban detainees be provided with access to classified evidence. The
bill requires that detainees be provided with ``a sufficiently specific
substitute of classified evidence'' and that detainees' private lawyers
be given access to all relevant classified evidence.
  Foreign and domestic intelligence agencies are already very hesitant
to divulge classified evidence to the CSRT hearings we currently
conduct. These are part of the internal and nonadversarial military
process today. Intelligence agencies will inevitably refuse to provide
sensitive evidence to detainees and their lawyers. They will not risk
compromising such information for the sake of detaining an individual
terrorist.
  In addition, the United States already has tenuous relations with
some of the foreign governments, particularly in the Middle East, that
have

[[Page S9233]]

been our best sources of intelligence about al-Qaida. If we give
detainees a legal right to access such information, these foreign
governments may simply shut off all further supply of information to
the United States. These governments will not want to compromise their
evidence or expose the fact that they cooperated with the United
States. By exposing our cooperation with these governments, the bill
perversely applies a sort of ``stop snitching'' policy toward our
Middle Eastern allies, which is likely to be as effective as when
applied to criminal street gangs in the United States.
  A final point on this: We already know from hard experience that
providing classified and other sensitive information to al-Qaida
members is a bad idea. During the 1995 Federal prosecution in New York
of the ``Blind Sheikh,'' Omar Rahman, prosecutors turned over the names
of 200 unindicted coconspirators to the defense. The prosecutors were
required to do so under the civilian criminal justice system of
discovery rules, which require that large amounts of evidence be turned
over to the defense. The judge warned the defense that the information
could only be used to prepare for trial and not for other purposes.
Nevertheless, within 10 days of being turned over to the defense, the
information found its way to Sudan and into the hands of Osama bin
Laden. U.S. District Judge Michael Mukasey, who presided over the case,
explained, ``That list was in downtown Khartoum within 10 days, and bin
Laden was aware within 10 days that the Government was on his trail.''
  That is what happens when you provide classified information in this
context.
  In another case tried in the civilian criminal justice system,
testimony about the use of cell phones tipped off terrorists as to how
the Government was monitoring their networks. According to the judge,
``There was a piece of innocuous testimony about the delivery of a
battery for a cell phone.'' This testimony alerted terrorists to
Government surveillance and, as a result, their communication network
shut down within days and intelligence was lost to the Government
forever--intelligence that might have prevented who knows what.
  This bill--this particular section of the bill repeats the mistakes
of the past. Treating the war with al-Qaida similar to a criminal
justice investigation would force the United States to choose between
compromising information that could be used to prevent future terrorist
attacks and letting captured terrorists go free. This is not a choice
that our Nation should be required to make.
  I will talk more about some provisions that Senator Graham would like
to substitute for these provisions that provide a more fair process for
detainees held at Guantanamo Bay--a process that would enable them to
have greater benefit of the use of counsel and of evidence in their
CSRT hearings.
  I will wait until he actually offers that amendment to get into
detail. But the point is, we have bent over backward to provide the
detainees at Guantanamo the ability to contest their detention and to
have that detention reviewed and eventually have it reviewed in U.S.
courts. That is a very fair system, more fair than has ever been
provided by any other nation under similar circumstances and more than
the Constitution requires. So we are treating the people we captured
and are holding at Guantanamo in a very fair way.
  What we cannot do is take those same kinds of protections and apply
them to anybody we capture in a foreign theater who is held in a
foreign theater and therefore is not, under current circumstances--and
never has been in the history of warfare--subject to the criminal
justice system of our country. To take that system and try to transport
it to the fields of Afghanistan or Iraq would obviously be not only a
breaking of historical precedent but a very bad idea for all of the
reasons I just indicated.
  I ask my colleagues to give very careful consideration to the
dangerous return to the pre-9/11 notion of terrorism as a law
enforcement problem that is inherent in section 1023 of the bill. The
terrorists have made no secret that they are actually at war with us,
and we ignore this point at our peril.
  I conclude by reminding my colleagues that the Statement of
Administration Policy on this bill indicates that the President would
be advised to veto it if these provisions remained. Therefore, I urge
my colleagues, when the opportunity is presented, to join me in
striking the provisions of the bill, not only as representing good
policy but to help us ensure that at the end of the day, there will be
a bill signed by the President called the Defense authorization bill.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I believe I have a half hour to speak
in morning business. Prior to doing so, I wish to give a brief
rejoinder to my colleague from Arizona on some of the comments he just
made.
  It is my understanding that the underlying Defense Authorization Act
has several provisions that are necessary to address shortcomings in
the legal process for individuals detained on the battlefield. One of
these provisions limits the use of coerced testimony obtained through
cruel, inhumane, or degrading treatment. Such testimony is immoral, and
this provision is necessary if we are to obtain and use accurate
information.
  Another provision provides for reasonable counsel and the ability to
present relevant information to detainees who have been held for 2 or
more years. This is necessary in a war of undetermined duration.
  Finally, the bill does not provide classified information to a
detainee. It provides for a summary that is intended to be unclassified
to the counsel for detainees.
  One of the things that might help is if, on line 16, page 305,
subsection II, the word ``unclassified'' was added before the word
``summary'' on that line. I believe that is the intent.

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