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Congressional Record—Senate S8086 S8086 CONGRESSIONAL RECORD — SENATE July 24, 2009 historic rules of warfare are, it is what the unlawful enemy combatant defini- No. 3, staying at Osama bin Laden’s we have always done, and we need not tion covered hostile groups ‘‘including house in Kabul when the U.S. bombing be confused in this war and start treat- a person who is part of . al-Qaida, or began. ‘‘It was Osama bin Laden’s pri- ing it as if it were some sort of crimi- associated forces.’’ vate house,’’ he said. nal activity. Doing so would com- Let’s be clear about what removing No. 4, meeting with bin Laden him- promise our ability to be effective and al-Qaida from the definition would self on numerous occasions. place at greater risk those individuals have meant in the legal proceedings re- No. 5, responding to Osama bin whom we send in harm’s way, such as lated to detainees. It will cloud them Laden’s call for all fighters to retreat the 217th Military Police troop from under uncertainty and ambiguity. and assemble at Tora Bora and, Prattville, AL, which is going to Iraq. Judges, whether military or civilian, No. 6, being in the cave with Osama We don’t need to be confused about will have to second guess whether al- bin Laden at Tora Bora. what this is. It is not a law enforce- Qaida members are truly eligible to be If Federal courts are going to second ment operation. held as enemy combatants. guess the military on cases like We also adopted an amendment last This is not an unjustified concern. Basardh under the current Military Commissions Act, Congress certainly night that prohibited the intelligence Let me tell you about one case where a should not weaken this act any more communities of the United States, our Federal judge questioned whether an and give them any more ability to un- agencies or our military, from giving al-Qaida member who fought in the jihad could still be held as an enemy dermine our efforts. Miranda warnings to people captured To the contrary, Congress should be on the battlefield. Giving Miranda combatant. On April 15 of this year, Judge Huvelle of the U.S. District crystal clear that membership in al- warnings to unlawful enemy combat- Qaida qualifies a detainee for ants is unthinkable. It is a confusing Court for the District of Columbia granted the habeas corpus petition of unprivileged enemy belligerent status. thing. What you are basically telling My amendment removed any doubt these people that we capture is: Don’t Yasin Muhammed Basardh, over the objections of the Obama administra- over the detention of anyone who is a talk, we will give you a lawyer. member of al-Qaida or served in its aid. In fact, some of the NGOs, were tell- tion. Habeas corpus petition is a right of a My amendment will make clear that ing Americans not to talk to them and person in the United States who is held cases like this should not happen ask for lawyers, because we were begin- by the Government to ask why they again. Simply put, if you are a member ning to give Miranda warnings. are being held. It is referred to in the of al-Qaida you are going to be de- The premise of this amendment is Constitution. Many of my colleagues tained and held until the war is over, not an overreach. It is consistent with have said you are denying these pris- in the same way Nazi army prisoners of our law. oners habeas corpus petitions—denying war treated during World War II. Make no mistake, al-Qaida has an- them, taking away something to which I urge my colleagues to think about nounced it is and continues to be at they are entitled. this, to make sure we are fully cog- war with the United States. We are at I would point out that is not correct. nizant of the dangers our country war with them. We cannot mince Nobody ever understood habeas corpus, faces, and retain this language that words. We cannot lead the world to be- as referred to at the founding of our was initially omitted, keeping al-Qaida lieve that we have softened our resolve Republic, as something applied to peo- by name as a group which we are at to defeat this enemy that threatens us. ple captured in war against the United war against. It is important that According to a CNN report from July States. That was never what it meant. doesn’t get removed by the conference 15, 2009, al Zawahiri, bin Laden’s dep- It is only a most recent incorrect defi- committee. I am going to be watching. uty, called on Muslims to join in a nition of habeas that applied it to peo- I think it is a big deal. jihad against the United States. I wish ple who are trying to kill Americans Oftentimes when the conference com- that were not so but that is what it is. and are at war against Americans. mittee meets, they make substantive Last week a terrorist group affiliated Some of the courts are confused on changes in the bill. Following con- with al-Qaida targeted two American- this, in my view. Congress has been a ference, it will come back to the floor, owned hotels in Jakarta, Indonesia. On bit confused about it also. and at that time we will be unable to July 21, just a few days ago, a Wall But Judge Huvelle, unwisely, I think, amend it. I am going to watch. I think Street Journal article pointed out last concluded that the United States could the American people need to know we week’s hotel bombings were not some no longer hold Mr. Basardh because he are not confused in our thinking. We isolated event: no longer posed a realistic risk of join- know against whom we are at war and In the 19 months leading up to the Jakarta ing the enemy—in his opinion. Judge we are committed to this effort and we attacks, Islamic terrorists have brought Huvelle is not involved in the war. He are supporting our fabulous men and their holy war to upscale properties in is sitting safe and comfortable here in women who place their lives at risk for Kabul, Afghanistan; Islamabad, Pakistan; the District of Columbia. The execu- us. We must not undermine their ef- Mumbai, India; and Peshawar, Pakistan. The tion of a war is placed in the hands of forts by creating circumstances in casualties thus far number 116 people killed which Federal judges can treat mili- and hundreds more injured. the men and women in the military to protect our country, whose lives are on tary captives as ordinary criminals I ask my colleagues, in the middle of the line. with all the rights pertaining thereto. the war against al-Qaida, is it wise to So this judge reached this conclusion I yield the floor. remove al-Qaida from the definition of because Basardh was cooperative while f unlawful enemy combatant, or even in custody at Guantanamo Bay. In her DEFENSE AUTHORIZATION the new form ‘‘unprivileged enemy bel- decision in 2009, Judge Huvelle failed to ligerent’’? That is the new word we are mention the many salient facts that Mr. KYL. Mr. President, I rise today using and perhaps it is all right. I don’t showed why the Obama administration to discuss an amendment I submitted know why we changed. But we have to and the Bush administration before it with 12 cosponsors that the Senate be careful the words we use. opposed this man’s release. According adopted yesterday by voice vote. My Can anyone imagine the Congress re- to unclassified Administrative Review amendment, No. 1760, as modified by a moving ‘‘Nazi’’ from the wartime defi- Board records, Basardh was closely as- second-degree amendment I offered, nitions in the middle of the Second sociated with al-Qaida, and directly No. 1807, sets some important bench- World War? What do we hope to linked to Osama bin Laden. He admit- marks for the President to meet as his achieve by taking al-Qaida’s name out? ted to: administration negotiates and prepares Fortunately, last night it was put No. 1, traveling from Yemen to Af- for Senate ratification of a follow-on to back in. But what would have been ghanistan to join the jihad, saying, the 1991 START agreement, which ex- achieved by removing their name from ‘‘Yes, I did go to Afghanistan for the pires this December 5. that list of organizations against which Jihad.’’ As my colleagues know, the Con- we are at war? No. 2, training at the al-Qaida-run al stitution entrusts the Senate with the The original Military Commissions Farouq camp near Kandahar in Afghan- responsibility of advice and consent on Act passed in 2006 made it clear that istan; treaties. VerDate Nov 24 2008 01:30 Jul 25, 2009 Jkt 079060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G24JY6.016 S24JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 24, 2009 CONGRESSIONAL RECORD — SENATE S8087 It is entirely within the Senate’s pre- these matters, the amendment makes tions called for in the treaty until the rogative—in fact, it is the Senate’s re- clear the Senate expects the adminis- modernization plan, at least the fiscal sponsibility—to consult with the ad- tration will not change its position by year 2011 elements of it, are submitted ministration at the beginning of a trea- including any of these limitations in by the President and funded by the ty negotiation, during the process, and the follow-on treaty, no matter how Congress.
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