Statement Of Senator Patrick Leahy,
Ranking Member, Committee On The Judiciary
Hearing On Detainees
June 15, 2005

It has been well over three years since the Administration began to hold detainees at the U.S. Naval Base in Guantanamo Bay, Cuba.  The first batch of 20 detainees arrived in January 2002.  There are now more than 500 detainees at Guantanamo, although the exact number remains unclear. 

Today’s hearing is a welcome, if long overdue, opportunity to discuss what we should do with the Guantanamo detainees and what role Congress should take in developing long-term policies for detaining and trying terrorism suspects.  I commend the Chairman for taking the initiative to confront these important and difficult issues.

No Coherent Process

The Administration’s policies on detainees are clearly not working, and the Administration does not have a coherent theory for how to proceed.  Late in 2001, military commissions were defended by our current Attorney General as tribunals that “can dispense justice swiftly, close to where our forces may be fighting, without years of pretrial proceedings or post-trial appeals.”  That was more than three years ago.  But far from assuring swift justice, there has been no justice at all.  We have yet to see a single military commission complete a hearing or convict a suspected terrorist, and the whole process is now hopelessly tied up in litigation.

Until a year ago, the Administration seemed to hold tight to the notion that by detaining prisoners at Guantanamo Bay -- a location where it asserted prisoners had no right of access to the courts -- it could shield itself from judicial challenge.  But the Supreme Court decision in Rasul v. Bush rejected this flawed legal theory.  Now it seems that all the Administration has left to cling to is the amorphous notion of a “war on terror” that has no end. 

If the Administration had applied the Geneva Conventions from the start, as former Secretary of State Powell strongly urged it to do, we would not be in the mess we are in today.  Combatants who merited POW status could have been held for the duration of active hostilities.  Those who did not meet the POW standards could be prosecuted under our existing criminal laws, or for violating the laws of war.  These standards and procedures were used for decades by our military, including in the first Gulf War.  Unfortunately, the Administration made its determination on the basis of flawed understandings of the Geneva Conventions and against the advice of military and State Department attorneys.  We now see the repercussions of those poorly conceived policies.

Alternatively, if the Administration had made better use of the Federal courts, we would not be in this mess.  The handful of suspected terrorists who were indicted for their crimes have been severely punished.  Shoe bomber Richard Reid was sentenced to life in prison.  John Walker Lindh, the so-called “American Taliban,” was sentenced to 20 years, as was the Ohio truck driver who plotted to destroy the Brooklyn Bridge.  Even Zacharias Moussoui, whose case has been complex and challenging for all involved, has now pleaded guilty; the only question remaining is whether he faces life in prison or death.

The Fruits Of Unilateralism

What has become clear over the past three years is that the Administration’s policies were poorly reasoned and extremely shortsighted.  The Administration’s insistence on unilateralism – a tendency and a problem that has colored and undermined so many of the Administration’s policies – has led to poor decisions and poor practices in detention policies, as well.  From the start, the Administration’s answer to every question about our detention policies has been, “Trust us.”  Trust us that we know the law, and that we will comply with it.  Trust us to treat detainees humanely and in accordance with our laws and treaties.  Trust us that Guantanamo will make Americans safer.  More than three years later, the one thing we know for certain is that any trust we may have had was misplaced.

First, the Administration did not know or follow the law.  The list of Federal court reversals of this Administration’s policies and practices is long.  From the Supreme Court’s rejection of the claim that Guantanamo Bay is a land of legal limbo – or, as one Administration official has said, “the legal equivalent of outer space” – to a recent district court holding that the current military commission regulations are unlawful, there is much that needs attention and correction.  The Administration has also flagrantly violated our international treaty obligations.  International law, not to mention the Defense Department’s own policies, requires the registration and accounting of all detainees.  Yet we know that senior Administration officials approved a policy of keeping detainees off of the official roles in order to hide them from the International Committee of the Red Cross.  The Administration also continues to defend its use of extraordinary rendition to transfer terrorism suspects in U.S. custody to the custody of countries where they are likely to be tortured, a patent violation of the Convention Against Torture. 

Second, the Administration has not lived up to its promise to treat detainees humanely.  Even with the Administration’s continued stonewalling against any independent investigation into the mistreatment of detainees, we continue to learn of more abuses on almost a daily basis.  If American POWs were treated in this way, the Administration would be up in arms.  Yet when these actions take place in Iraq, Afghanistan, or Guantanamo, the Administration refuses to acknowledge any wrongdoing.  The dangerous implications that this posture has for our own troops and citizens are obvious.

Third, and this brings us to the bottom line:  The net effect of all of these problems is that Guantanamo has not made our country safer.  It is increasingly clear that the Administration’s policies have seriously damaged our reputation in the world and that they are making us less safe.  The stain of Guantanamo has become the primary recruiting tool for our enemies.  President Bush often speaks of spreading democratic values across the Middle East, but Guantanamo is not a reflection of the values that he encourages other nations to adopt.  The United States has often criticized other nations for operating secret prisons, where detainees are hidden away and denied any meaningful opportunity to contest their detention.  Now we have our own such prisons.  Even if the Administration fails to see the hypocrisy in this situation, the rest of the world does not.

A Festering Threat

Guantanamo Bay – along with Abu Ghraib – is an international embarrassment to our nation and to our ideals, and it remains a festering threat to our security.  America was once viewed as a leader in human rights and the rule of law, but Guantanamo has undermined our leadership, damaged our credibility and drained the world’s goodwill for America at alarming rates.  Even our closest allies cannot condone the policies embraced by this government, not to mention the significant damage that has been caused by allegations and proven incidents of detainee abuse in Iraq, Afghanistan, and Guantanamo.  These are not the policies of a great and just nation like ours, and this is not the American system of justice.

The 9/11 Commission understood that military strength alone is not sufficient to defend our nation against terrorism; there must also be a role for working cooperatively with the rest of the world.  In its report, the Commission stated that “the U.S. government must define what the message is, what it stands for.  We should offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors.”  Our current detention policies fall woefully short of this ideal.

The Administration got itself into this mess because it refused to accept Congress as a partner in the war on terror and insisted on acting unilaterally.  Following the start of combat in Afghanistan in October 2001, I urged President Bush to work with Congress to fashion appropriate rules and procedures for detaining and punishing suspected terrorists.  Our current Chairman, Senator Specter, did the same.  We both noted at the time that our government is at its strongest when the Executive and Legislative branches of government act in concert.  Unfortunately, the President was determined to go it alone.

Up until now, this Republican-led Congress has been content to go along for the ride.  As the Administration dug itself deeper and deeper into a hole, we stood idly by.  Instead of providing checks and balances, we wrote one blank check after another.

Congress’s Constitutional Role

This must change.  The Constitution provides that Congress, not the President, has the power to “make Rules concerning Captures on Land and Water.”  Congress, not the President, has the power to “define and punish Offenses against the Law of Nations.”  And Congress, not the President, has the power of the purse.

What is the Administration’s plan for Guantanamo Bay, assuming there is one?  What does the Administration intend to do with the more than 500 detainees still imprisoned there?  How many will be released, and when?  How many will be charged and tried, and when?

Chicken Dinners And Other Diversions

The Administration consistently insists that these detainees pose a threat to the safety of Americans. Vice President Cheney said that just the other day.  If that is true, there must be evidence to support it.  If there is evidence, then they should prosecute these people. 

But we also know that some of the detainees have been wrongly detained.  And I suspect there are others who have not yet been released, against whom the evidence is weak at best.  It is one thing if they are being detained in accordance with the Geneva Conventions.  But if not, they do not belong there. 

This week the Administration and its defenders have been trying to change the subject from the legal morass that Guantanamo has become, by producing props of chicken dinners and such, seeming to argue that it is more Club Med than prison.  Let’s get real.  People have been kept in cages for three years, with no end in sight and no workable process to lead us there.

Guantanamo Bay is causing immeasurable damage to our reputation as a defender of democracy and a beacon of human rights around the world.  The Administration has yet to articulate a coherent plan to repair the damage.  The Congress has abdicated its oversight responsibilities for far too long.  The Administration has placed this nation in an untenable situation, and it is time for Congress to demand a way out. 

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