Military Commission Legislation Statement

September 28, 2006

Mr. President, I am proud to be sponsoring this amendment with the senior senator from West Virginia. He's absolutely right that Congress has abrogated its oversight responsibilities, and one way to reverse that troubling trend is to adopt a sunset provision in this bill. We did that in the Patriot Act, and that allowed us to make important revisions to the bill that reflected our experience about what worked and didn't work during the previous 5 years. We should do that again with this important piece of legislation.

But I want to take a few minutes to speak more broadly about the bill before us.

I may have only been in this body for a short while, but I am not naive to the political considerations that go along with many of the decisions we make here. I realize that soon, we will adjourn for the fall, and the campaigning will begin in earnest. And there will be 30-second attack ads and negative mail pieces, and we will be criticized as caring more about the rights of terrorists than the protection of Americans. And I know that the vote before us was specifically designed and timed to add more fuel to that fire.

And yet, while I know all of this, I'm still disappointed. Because what we're doing here today - a debate over the fundamental human rights of the accused - should be bigger than politics. This is serious.

If this was a debate with obvious ideological differences - heartfelt convictions that couldn't be settled by compromise - I would understand. But it's not.

All of us - Democrats and Republicans - want to do whatever it takes to track down terrorists and bring them to justice as swiftly as possible. All of us want to give our President every tool necessary to do this. And all of us were willing to do that in this bill. Anyone who says otherwise is lying to the American people.

In the five years that the President's system of military tribunals has existed, not one terrorist has been tried. Not one has been convicted. And in the end, the Supreme Court of the United found the whole thing unconstitutional, which is why we're here today.

We could have fixed all of this in a way that allows us to detain and interrogate and try suspected terrorists while still protecting the accidentally accused from spending their lives locked away in Guantanamo Bay. Easily. This was not an either-or question.

Instead of allowing this President - or any President - to decide what does and does not constitute torture, we could have left the definition up to our own laws and to the Geneva Conventions, as we would have if we passed the bill that the Armed Services committee originally offered.

Instead of detainees arriving at Guantanamo and facing a Combatant Status Review Tribunal that allows them no real chance to prove their innocence with evidence or a lawyer, we could have developed a real military system of justice that would sort out the suspected terrorists from the accidentally accused.

And instead of not just suspending, but eliminating, the right of habeas corpus - the seven century-old right of individuals to challenge the terms of their own detention, we could have given the accused one chance - one single chance - to ask the government why they are being held and what they are being charged with.

But politics won today. Politics won. The Administration got its vote, and now it will have its victory lap, and now they will be able to go out on the campaign trail and tell the American people that they were the ones who were tough on the terrorists.

And yet, we have a bill that gives the terrorist mastermind of 9/11 his day in court, but not the innocent people we may have accidentally rounded up and mistaken for terrorists - people who may stay in prison for the rest of their lives.

And yet, we have a report authored by sixteen of our own government's intelligence agencies, a previous draft of which described, and I quote, "...actions by the United States government that were determined to have stoked the jihad movement, like the indefinite detention of prisoners at Guantanamo Bay..."

And yet, we have Al Qaeda and the Taliban regrouping in Afghanistan while we look the other way. We have a war in Iraq that our own government's intelligence says is serving as Al Qaeda's best recruitment tool. And we have recommendations from the bipartisan 9/11 commission that we still refuse to implement five years after the fact.

The problem with this bill is not that it's too tough on terrorists. The problem with this bill is that it's sloppy. And the reason it's sloppy is because we rushed it to serve political purposes instead of taking the time to do the job right.

I've heard, for example, the argument that it should be military courts, and not federal judges, who should make decisions on these detainees. I actually agree with that. The problem is that the structure of the military proceedings has been poorly thought through. Indeed, the regulations that are supposed to be governing administrative hearings for these detainees, which should have been issued months ago, still haven't been issued. Instead, we have rushed through a bill that stands a good chance of being challenged once again in the Supreme Court.

This is not how a serious Administration would approach the problem of terrorism. I know the President came here today and was insisting that this is supposed to be our primary concern. He's absolutely right it should be our primary concern - which is why we should be approaching this with a somberness and seriousness that this Administration has not displayed with this legislation.

Now, let me be clear - for those who plot terror against the United States, I hope God has mercy on their soul, because I certainly do not. And for those who our government suspects of terror, I support whatever tools are necessary to try them and uncover their plot.

But we also know that some have been detained who have no connection to terror whatsoever. We've already had reports from the CIA and various generals over the last few years saying that many of the detainees at Guantanamo shouldn't have been there - as one U.S. commander of Guantanamo told the Wall Street Journal, "Sometimes, we just didn't get the right folks." And we all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria, and tortured, only to find out later that it was all a case of mistaken identity and poor information.

In the future, people like this may never have a chance to prove their innocence. They may remain locked away forever.

And the sad part about all of this is that this betrayal of American values is unnecessary. We could've drafted a bipartisan, well-structured bill that provided adequate due process through the military courts, had an effective review process that would've prevented frivolous lawsuits being filed and kept lawyers from clogging our courts, but upheld the basic ideals that have made this country great.

Instead, what we have is a flawed document that in fact betrays the best instincts of some of my colleagues on both sides of the aisle - those who worked in a bipartisan fashion in the Armed Services Committee to craft a bill that we could have been proud of. And they essentially got steamrolled by this Administration and by the imperatives of November 7th.

That is not how we should be doing business in the U.S. Senate, and that's not how we should be prosecuting this war on terrorism. When we're sloppy and cut corners, we are undermining those very virtues of America that will lead us to success in winning this war. At bare minimum, I hope we can at least pass this provision so that cooler heads can prevail after the silly season of politics is over. Thank you.