Senate Floor Speech on the NDAA for FY 2014 - 11/19/2013 3:40 p.m.

Levin-McCain-Feinstein amendment on Guantanamo

Tuesday, November 19, 2013

The Presiding Officer: The senator from Michigan.

Mr. Levin: Mr. President, I support the provisions in this bill relating to the Guantanamo Detention Facility or Gitmo and oppose the amendment to strike those provisions and reinstate existing restrictions on the transfer of Gitmo detainees. Gitmo is expensive, inefficient, damaging to the U.S. international standing, harmful to our allies' ability to cooperate with us, and serves as a recruiting tool for extremists.

It is not needed to secure people who should be detained and tried. There are other places for detention and trial in front of a military tribunal. We don't need Gitmo to stay open at huge expense in order to do that. The bill before us makes long-overdue fixes to our ability to transfer detainees out of Gitmo to provide our military with needed flexibility to determine how long we need to detain individuals now held at the Guantanamo facility and where we should hold them.

For a number of years now, Congress has enacted legislation eliminating that flexibility and requiring that we continue to hold all Gitmo detainees at Guantanamo, whether or not it is in our national security interest to do so. The current law establishes an absolute ban on bringing any Gitmo detainee to the United States for any purpose, including detention, trial, incarceration, or even medical treatment. And it replaces the best judgment of our military and intelligence experts on the risk posed by an individual Gitmo detainee with a cumbersome check list of requirements that must be certified before any detainee may be transferred overseas. The current law makes it more difficult to try detainees for their crimes and nearly impossible to return them to their home countries.

For example, even if we have a strong case that a detainee has committed crimes for which he could be indicted and convicted in federal court, the current law makes it impossible to try him there. This is true even in cases where similar charges are not available before a military commission, making it impossible to try the detainee at Guantanamo. And it is true even in cases where the security risk in bringing the detainee to the United States would be non-existent.

In 2010, the detainee task force recommended 44 detainees for possible prosecution. As a result, in significant part because of the legislative restrictions on transferring detainees to the United States for trial, however, we have had only four of the 44 plea bargains and no other successful prosecutions of those detainees.

Similarly, even if we have determined that a detainee poses no ongoing security threat to the United States, we cannot send them back to his home country unless the Secretary of Defense certifies to six conditions addressing issues such as the country's control over their own territory and detention facilities and so forth. And even if the individual is likely to die without advanced medical treatment, we cannot remove him from Gitmo for the purpose of receiving such treatment.

In 2010, the Guantanamo detainee review task force conducted a rigorous interagency review and determined that more than half of the Gitmo population, including 84 of the 164 detainees currently at Gitmo, could be safely transferred overseas without posing a significant security threat. However, only two Gitmo detainees have actually been transferred using the certification provision since it was enacted at the end of 2010.

Under the current law, even if a detainee has been convicted or pled guilty and served his sentence, even if he has cooperated with us and provided us with useful intelligence, even if he has renounced all ties to al Qaeda or the Taliban, even if he has been determined to no longer pose a threat to our national security, it is still extremely difficult to transfer or release a Gitmo detainee. That is why we still have detainees sitting at Guantanamo who have been cleared for transfer or release on multiple occasions by two different administrations over a period of almost a decade.

The current law has reinforced as a result the impression held by many around the world that Guantanamo is a legal black hole where we hold detainees without recourse. This perception has been used by our enemies to recruit jihadists to attack us. It has made our friends less willing to cooperate with us in our efforts to fight terrorism around the world. And for this reason, many of our top national security leaders spanning the Bush and Obama administrations have repeatedly told us of the harm Gitmo causes to our national security.

The provisions of this bill would change current law and provide needed flexibility to our military in two key ways.

First, with respect to transfers of Gitmo detainees overseas to their home countries or other countries, the bill would streamline the onerous certification provisions or procedures imposed by Congress and restore the ability of our military leaders to exercise their best judgment in determining whether detainees could be transferred abroad consistent with our national security. This provision would allow the Department of Defense to handle GTMO detainees in the same way that it has handled other detainees in the course of the conflicts in Iraq and Afghanistan - by making case-by-case determinations whether it is in our national security interests to continue holding an individual.

Second, with respect to transfers of Gitmo detainees into the United States, the bill would reverse the one-size-fits-all ban that Congress has imposed on such transfers and permit case-by-case determinations of whether it is in our national security interest to transfer Gitmo detainees into custody inside the United States for detention and trial. This provision would restore our nation's ability to use a key tool in the fight against the terrorist threat. That tool is prosecution of Gitmo detainees in federal courts.

I've offered a side-by-side amendment with Senator McCain which requires the administration to develop a comprehensive plan and submit it to Congress before it could transfer any detainees to the United States under this provision. This plan would include a case-by-case determination where each individual held at Guantanamo, where the individual is intended to be held, including the specific facility or facilities inside the United States that would be used, and the estimated costs of any modification needed at those facilities.

The side-by-side amendment would also clarify that Gitmo detainees would not gain any additional legal rights as a result of their transfer to the United States for detention and trial. In particular, detainees who are transferred to the United States would not gain any additional rights, would not be permitted to be released inside the United States, would not lose their status as unprivileged enemy belligerents eligible for detention and trial under the law of war, would not gain any right, any additional right, to challenge his or her detention beyond the right to habeas corpus, which they already have at Guantanamo, as the Supreme Court has decided.

I would ask unanimous consent, Mr. President, that Senator Feinstein be added as a cosponsor to our side-by-side amendment, the Levin-McCain amendment.

The Presiding Officer: Without objection.

Mr. Levin: Guantanamo continues to be a damaging reminder of a failed strategy that sought to put captured terrorists beyond the reach of the law and U.S. courts. A dozen years ago, the Bush administration started sending detainees to Gitmo in large part out of a desire to avoid the jurisdiction of United States courts and ensure that detainees would have no legal avenue to appeal their convictions. Now, whether or not one supported that approach, that argument ended in 2008 when the Supreme Court in the Boumediene case ruled that Gitmo detainees would be treated as being inside the United States for the purpose of habeas corpus appeals.

Instead of recognizing the problems with maintaining the Gitmo facility, the problems of extreme cost and that it adds no additional security to what exists if these people are brought to the United States for military trial, for – as being held as prisoners under the laws of war, or for federal court trial. Even though all of that is still possible inside the United States, we've enacted legislation which makes it virtually impossible to move detainees anywhere else, ensuring that the facility's going to remain open whether we need it or not.

Now, the result is that we're stuck with an expensive facility. And make no mistake; the costs of the Guantanamo detention facility are exorbitant. The Department of Defense has put the cost associated with Gitmo at over $400 million a year. That's more than $2.5 million per detainee. If we had any additional security as a result, it would be worth it, but we don't need Gitmo for additional security. Detainees can be held in the United States, they can be held for trial, they can be held according to the rule of law, they can be held under the military – as military detainees. Now, $2.5 million per detainee. By some estimates, that is 35 times the annual cost of housing a prisoner at a super max security prison inside the United States. And that does not include the more than $200 million in additional military construction requests that the department believes it needs to spend to keep Guantanamo running in the coming years.

And, you know, Mr. President, again, I want to repeat this. If this added to our security, it would be worth it but it doesn't. If we can bring these same people to the United States to be held as prisoners of war the way we did Italians and others during World War II -  I had hundreds of them in my own home state - if we added to our security by keeping Guantanamo open instead of just having a place which is used as a training ground and used as an argument for jihad, we can keep these people in the United States safely, just as safely as Guantanamo, and maximum security prisons or turn the military jurisdiction with the same amount of security for the people of the United States at far less cost.

Now, we are all facing sequestration. It's undermining the readiness of our armed forces and requires risky reductions in force structure, makes it likely we're going to have to cancel or severely curtail vital modernization programs. We cannot afford to spend a half a billion dollars a year on a program that doesn't make us more safe.

The basis for the legislative obstacles to moving detainees out of Guantanamo appears to be the fear that returning Gitmo detainees to their home countries or transferring them to the United States would pose unacceptable threat to our national security.

But history has shown that we bring numerous terrorists to the United States for trial, for incarceration. It's had no adverse effect on our national security. These prosecutions have resulted in hundreds of convictions on terrorism-related charges without apparent adverse effect to our national security. The Attorney General wrote the Judiciary Committee, wrote Chairman Leahy last week, that terrorist prosecutions in federal courts have been – quote – "an essential element of our counterterrorism efforts" and "a powerful tool of proven effectiveness."

In the last three years, Mr. President, we brought three foreign terrorists to the United States for trial. We brought Abu Ghaith, Osama bin Laden's son-in-law. He's been convicted in a federal court, remains in federal custody without incident. The second is Ahmed Warsame who pled guilty in federal court, remains in federal custody without incident. The third is Ahmed Ghailani, received a life sentence, remains in federal custody without incident.

And again, there have been hundreds of convictions in this country of persons connected to terrorism in federal courts. And our military, Mr. President, has routinely detained individuals on the battlefield, in Afghanistan, and then exercised their discretion to transfer them to local jurisdiction or to release them. We can trust our military to make these determinations on a day-to-day basis for detainees in Afghanistan, we should trust our military to make the same determination for detainees at Gitmo.

The rigorous review process which is codified by our bill’s provisions requires the Secretary of Defense to determine, prior to transferring a Gitmo detainee, that the transfer is in our national security interest and that actions have been taken to mitigate any risk that the detainee could again engage in any activity that threatens United States persons or interests. A provision in this bill will get us past our fear that we cannot securely handle Gitmo detainees in this country. It would allow the Secretary of Defense to authorize Gitmo transfers to the United States for detention and trial if doing so is in the United States security interest.

This bill will restore the President's ability to choose the most effective tool, whether that's military commissions or federal courts, to bring these Gitmo detainees to justice.

And so I would urge, in conclusion, Mr. President, that our colleagues support the Guantanamo provisions in the bill, vote for the Levin-McCain-Feinstein side-by-side amendment and oppose the effort to reinstate the counterproductive and costly restrictions in current law.

And I yield the floor.