Congressional Record: April 30, 2007 (Senate)
Page S5307-S5308                


      By Mrs. FEINSTEIN:
  S. 1249. A bill to require the President to close the Department of 
Defense detention facility at Guantanamo Bay, Cuba, and for other 
purposes; to the Committee on Armed Services.
  Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation 
to close the U.S. detention facilities at Guantanamo Bay, Cuba.
  Guantanamo has become a lightning rod for international condemnation. 
Both allies and enemies have decried the stories of detainee abuse and 
the U.S. refusal to acknowledge that the individuals held at Guantanamo 
are legally entitled to be treated in accord with the Geneva 
Conventions. In short, the continued use of Guantanamo is causing more 
damage than benefit in our war on terrorism.
  The Supreme Court determined last summer that the Geneva Conventions 
applies to Guantanamo detainees, and Congress passed the Military 
Commissions Act in response. There remain court challenges and policy 
questions as to whether the proceedings at Guantanamo are now legal. 
What is clear, however, is that, whether legal or not, Guantanamo is 
harming our national interests.
  This is not solely my view.
  Secretary of Defense Gates testified recently before the House 
Defense Appropriations Subcommittee. He said, ``I came to this position 
believing that Guantanamo should be closed. I know that people have 
expressed that as a wish. The president has expressed it as a wish.'' 
The Secretary remarked that Guantanamo has ``a taint about it.''
  According to media accounts, the current and former Secretaries of 
State, Condoleezza Rice and Colin Powell, share this view.
  Unfortunately, these expressions will not necessarily lead to 
concrete action. On March 23, White House Press Secretary Tony Snow 
stated that it was unlikely that the Guantanamo detention facility 
would close during the Bush Presidency.
  That is unfortunate, but I think the way forward is now clear. It is 
time to close the detention facilities at Guantanamo, and it is time 
for the Congress to act. And so today I am proud to offer legislation 
to end detention operations at Guantanamo within a year.
  Approximately 750 enemy combatants--including individuals believed to 
be Taliban fighters or al-Qaida irregulars have been sent to Guantanamo 
since January 11, 2002. Roughly 385 are there today, and it is 
estimated that only 60 to 80 of them will ever be charged. According to 
a Pentagon spokesman last month, another 80 detainees remain at 
Guantanamo despite having been cleared for transfer or release.
  This is an untenable situation.
  Let me be clear. I have no room in my heart for al-Qaida members or 
affiliates. I know full well that they would kill innocent Americans 
given half the chance. But the people in this administration who have 
made these decisions have never recognized that it is not just for the 
detainees' sake that we comply with U.S. and international law, it is 
to our benefit as well.
  As Senator McCain and GEN Colin Powell have forcefully argued, we 
treat individuals in accordance with international law to ensure that 
Americans captured in battle are treated likewise.
  Unfortunately, due to the administration's decision not to apply 
Article 3 of the Geneva Conventions and to allow new interrogation 
techniques, there have been abuses. These have been documented, among 
other places, in the official report by Air Force LTG Randall Schmidt 
on June 9, 2005.
  Ironically, use of these techniques not only turned the tide of world 
opinion and shocked our consciences, but they are inconsistent with 
producing accurate intelligence.
  The second major result from mistaken administration policies has 
been our fall from the world's leader in the realm of ideals, not just 
in power.
  The detentions at Guantanamo have been decried, from moral leaders 
such as Archbishop Desmond Tutu to political leaders like Tony Blair.

[[Page S5308]]

  Archbishop Tutu said, ``I never imagined I would live to see the day 
when the United States and its satellites would use precisely the same 
arguments that the apartheid government used for detention without 
trial. It is disgraceful.''
  Prime Minister Blair commented that Guantanamo Bay is an ``anomaly 
that at some point has to be brought to an end.''
  While world leaders and various offices of the United Nations have 
criticized Guantanamo, terrorists around the world have used it to 
rally new recruits. Just like the horrible scenes from Abu Ghraib, we 
have found evidence that the disrespect for Islam and the Koran at 
Guantanamo has helped breed a new generation of terrorists.
  The legislation that I introduce today would close the Guantanamo 
detention facilities within a year of enactment.
  Everyone being held at that time would have to be transitioned to an 
alternative legal status. There are five major options. Detainees could 
be transferred to a civilian or military facility in the United States 
and charged with a violation of U.S. or international law for 
prosecution in a civilian or military proceeding; transferred to a 
facility in the United States for continued detention, for individuals 
judged to be enemy combatants; transferred to any international legal 
tribunal that may be authorized for this purpose; transferred to their 
home nation or a third-party government for further processing. This 
would require that the Government obtain the required assurances that 
the detainee will not be tortured or otherwise handled in a matter 
against international law; or for detainees judged to pose no 
continuing security threat to the United States or our allies, 

  What would this accomplish?
  First, and most importantly, it would end the stain on America's 
reputation and reiterate that we are a nation of laws and justice.
  Second, moving trials to the United States, whether under the 
military commission process or otherwise, would enhance the credibility 
of those proceedings. As Secretary Gates testified, ``no matter how 
transparent, no matter how open the trials, if they took place at 
Guantanamo in the international community, they would lack 
  Finally, moving detainees to the mainland would ease the logistics of 
trials and oversight. It would obviate the need for the government to 
run its own airline business shuttling Members of Congress, lawyers, 
reporters, and military police to Guantanamo.
  Some will argue that closing Guantanamo will damage our security. Let 
me make clear: I am not for releasing any terrorist, any Taliban 
fighter, or anyone that we will have to face again on the battlefield.
  We have high-security prisons and military brigs around the nation 
and know how to keep prisoners from harming the local population. In 
fact, the Justice Department has successfully convicted Sheikh Omar 
Abdel-Rahman and Ramzi Yousef for their roles in the first World Trade 
Center bombing. Jose Padilla was held in a naval brig, and is currently 
awaiting a trial in the United States. Our military and criminal 
justice systems are up to this task.
  Nor is it the case that moving detainees from Guantanamo will hinder 
our ability to gain intelligence from them. In fact, the majority of 
detainees are not being interrogated at Guantanamo, and almost none of 
them have any actionable intelligence left after imprisonment for 
  Finally, I am aware that legislation has been introduced to amend the 
Military Commissions Act, especially with regard to its habeas corpus 
provisions. I support these efforts. But legal experts have testified 
that moving detainees to the United States would have little impact on 
the Government's ability to prosecute them. The procedures of the 
Military Commissions Act, or any other court martial or criminal 
proceeding, do not depend on the location of the trial. Indeed, the 
Supreme Court has already held that legal process at Guantanamo is 
subject to U.S. law.
  As I said at the beginning of my remarks, it is our responsibility to 
ensure that the war on terror is being fought in a way that maximizes 
our ability to prevail. The situation at Guantanamo has impeded our 
success. It has strained our relations with key allies. It has provided 
fodder to our detractors. And it has dampened the national support we 
need to keep fighting our enemies.
  After more than 5 years, it is time to close this prison. I urge my 
colleagues to support this legislation.
  I ask that the text of the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1249

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       (a) Closure of Detention Facility.--Not later than one year 
     after the date of the enactment of this Act--
       (1) the President shall close the Department of Defense 
     detention facility at Guantanamo Bay, Cuba; and
       (2) all detainees detained at such facility shall be 
     removed from the facility and--
       (A) transferred to a military or civilian detention 
     facility in the United States and charged with a violation of 
     United States or international law and tried in an Article 
     III court or military legal proceeding before a regularly-
     constituted court;
       (B) transferred to a military or civilian detention 
     facility in the United States without being charged with a 
     violation of law if the detainee may be held as an enemy 
     combatant or detained pursuant to other legal authority as 
     Congress may authorize;
       (C) transferred to an international tribunal operating 
     under the authority of the United Nations with jurisdiction 
     to hold trials of such individuals;
       (D) transferred to their country of citizenship or a 
     different country for further legal process, provided that 
     such country provides adequate assurances that the individual 
     will not be subject to torture or cruel, inhuman, or 
     degrading treatment; or
       (E) released from any further detention.
       (b) Immigration Status.--The transfer of an individual 
     under subsection (a) shall not be considered an entry into 
     the United States for purposes of immigration status.