Senate Floor Speech Opposing the Graham Amendment, S.A. 2669

Madam President, I very much oppose the Graham amendment, and I want to take a few moments to explain why.

It has been argued that we are at war. Indeed, we are. I can't think of anything clearer, that any of us in this country understands than we are at war. And being at war, it totally mystifies me why we would deny ourselves one of the tools that we could use against people who are attacking us, who have attacked us, who will attack us, who will kill us, who kill innocent people. Why would we deny ourselves one of the tools which are available to try these people, to lock them up, or execute them and throw away the key? Why we would, by law, say this particular group of people can't be tried in a Federal court, that they can only be tried in a military commission, when we have tried so many terrorists in court, convicted them and executed them, is something I do not understand.

I believe we ought to not only throw the book at these people, but I think we ought to throw both books at these people. Why limit ourselves to one book--the book that sets the procedures for military commissions? Why do we deny ourselves the opportunity, if it is more effective--for whatever reasons the Justice Department determines it is more effective--to prosecute in a Federal court? Why would we deny them that?

In fact, under this amendment, they could not even continue the prosecution they had begun. The language of the amendment says either "to commence or continue the prosecution in an Article III court." So the question isn't whether these are the most dangerous people around--they are.

I also went down to Guantanamo. I went with Senator Graham, and we watched the proceeding against Khalid Shaikh Mohammed. I want us to use all of the tools. I want them all to be available. I want the Justice Department to be able to determine which is more effective, and not for us to decide in a political setting, in a legislative setting, that they cannot use one of the tools which has been proven to be effective against dozens of terrorists.

What about the law of war? What about war crimes? The argument is these are war crimes. As far as I am concerned, they are crimes; they are war crimes--both. War crimes can be prosecuted in an article III court. Let me repeat that because the argument is these are war crimes. War crimes can be prosecuted in an article III court under our laws that we adopted about 10 or 15 years ago. So Khalid Shaikh Mohammed needs to be given justice. He needs to be dealt with as strongly as we possibly can and as effectively as we possibly can. I believe he was the mastermind of 9/11. I don't think there is a Member of this body that would not want to see him dealt with as strongly as can possibly be done. But I don't know why we would tell the Justice Department that they only can consider one of the two tools that they could use against him; that they only can consider the military commissions but they can't consider article III courts.

I have been deeply involved in rewriting the military commissions law. That law, when we first wrote it, was defective, and I argued against it because it was defective. This body adopted it. That is the way things work. The majority decided to go with it. It was not usable. So we took a major step in the last few months to revise the military commissions law. I helped to lead that effort, and I know how important it is. But it was never our intent to make that the exclusive remedy for people who would attack us or attack this country. We want that remedy to be available if that is the most effective remedy. But there is nothing in that law that we wrote, or intended, that said this would displace article III courts if the Justice Department decided the most effective place to try an alleged terrorist was an article III court.

Are we actually, on the floor of the Senate, going to decide which terrorists should be tried in article III courts and which ones should be tried in military commission courts? Why would we tie the hands of the Justice Department in that way?

I know Senator Graham feels very strongly these should be tried in front of military commissions, and if he were the Justice Department, or if he were the Attorney General, he may make that decision, assuming he knows all the facts that go into the decision. He may make that decision, and he could strongly recommend it to the Justice Department. But why would we decide to displace the discretion of the Justice Department is a mystery to me. I find it unacceptable.

More importantly, the Attorney General and the Secretary of Defense find it unacceptable. They have urged us not to do this. They have written our leaders--Senator Reid and Senator McConnell--opposing the Graham amendment.

They say in their letter that there is a joint prosecution protocol, and the 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."

That is the Attorney General of the United States and the Secretary of Defense. Can we truly say in the Senate that we are going to displace that process which will determine what is the most effective way to prosecute these people? Can we and should we do that? I hope not.

They end their letter of October 30 by saying the following:

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.

If we adopt the Graham amendment, we are saying no; we are only going to use one instrument of national power. We are not going to consider both instruments of national power, and that is truly not only limiting our options but tying one of our hands behind our back in the essential prosecution of these people.

Madam President, Zacarias Moussaoui, the so-called 20th hijacker, was convicted in Federal court in May of 2006 for conspiring to hijack aircraft and crash them into the World Trade Center. He was quoted by Senator Graham as saying that "we are at war with you people." I don't have the slightest doubt that he means it and if he were ever released he would go back to war.

But I also have no doubt about something else. He was saying this in a Federal court, after being convicted in a Federal court of the terrorist acts that he perpetrated. He is now in a supermax facility in Florence, CO. He is serving life imprisonment without parole. If the Graham amendment had been in place at the time that Moussaoui was being prosecuted--indeed, if the Graham amendment had come in the middle of that prosecution--the prosecution would have had to have been suspended.

This amendment, if it is adopted, is going to make it more difficult to bring some of the 9/11 terrorists to justice. Let me share some of the reasons this possibility exists.

A court could decide that one of the 9/11 detainees does not meet the test, under the military commissions law, of being an "unprivileged enemy belligerent." In particular, a court could decide that one of the 9/11 alleged terrorists did not participate in a "hostility" and therefore was not subject--a belligerent subject to the laws of war. So we are saying to the Justice Department: If you see the possibility that someone could be let out or somebody could be found not guilty based on that kind of a technicality, we are not going to let you go and try that person in a Federal court. You must try that person where that person could escape justice based on a technicality.

Why would we want to do that? How can we possibly sit here and reach a judgment on all of the possible factual situations which might allow one of these people to escape justice? We cannot do that. That is what prosecutors are for. That is what a Justice Department is for. We should be giving them tools, not denying them tools. We should be handing them every possible tool we can give them to prosecute these people instead of saying you can't use this tool or you can't use that tool.

A court could decide that the crimes committed by one of the 9/11 detainees is not justiciable under the Military Commissions Act. So therefore we are going to say you have to prosecute him there anyway? A court could decide that an offense under the Military Commissions Act cannot be retroactively applied to an offense that took place before the enactment of the act. In our language, they can be tried even though it is a retroactive application. What happens if that occurs and then a court comes along, a court of appeals following a military commission, and says: No, you can't do that. Why would we not want the Justice Department to be able to weigh all of these possible escape loopholes that a defendant could use and decide that they have a better chance of convicting somebody and making that conviction stick if they proceed in an article III court?

Maybe the procedural rights which we have written into our Military Commissions Act, which is now law--maybe a court will determine they are not adequate. Maybe they will throw out the entire process despite our best efforts to correct what we had previously done. We should not presume the outcome of the judicial process and throw away legal tools that may be needed to bring the 9/11 terrorists to justice. We should not be tying the hands of our prosecutors against these people.

Prosecutorial discretion is one of the cornerstones of the American judicial system. It is wrong for us to be limiting that discretion by directing cases to a particular forum. It denies our prosecutors the ability to choose the forum that is best suited to a successful outcome in the case. The mechanism of cutting off funds for a prosecution, which is what this amendment does because Congress believes that a prosecution should take place in one forum or another, would set a terrible precedent. We should not be intervening in that kind of decision through the appropriations act.

The determination of the proper forum for the trial of 9/11 terrorists should be made by the professional prosecutors based on the circumstances of the case and their judgment as to where is the best chance to gain a successful prosecution. We should not decide where these cases are going to be tried. I don't believe we should presume they will be tried in one place or another.

There is a process underway, including both the Defense Department and the Justice Department, to make a determination as to which will be the most effective place to try these terrorists. So that is the appropriate process, and we ought to let it continue without this kind of intervention by the Senate.

Before I yield the floor and suggest the absence of a quorum, I ask unanimous consent to have printed in the Record the letter from the Attorney General and the Secretary of Defense to Senators REID and MCCONNELL.

There being no objection, the material was ordered to be printed in the Record, as follows:

Dear Senators Reid and McConnell:

We write to oppose the amendment proposed by Senator Graham (on behalf of himself and Senators McCain and Lieberman) to H.R. 2847, the Commerce, Justice, Science, and Related Agencies Appropriations Act of 2010. 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."

As you know, both the Department of Justice (in Article III courts) and the Department of Defense (in military commissions, reformed under the 2010 National Defense Authorization Act) 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 Guantánamo 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 that 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.

ROBERT M. GATES
Secretary of Defense

ERIC H. HOLDER, JR.
Attorney General

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