[Congressional Record: March 12, 2009 (Senate)]
[Page S3054-S3057]

                             GUANTANAMO BAY

  Mr. HATCH. Mr. President, I rise today to express my apprehension
regarding the closure of the Guantanamo Bay Detention Center in Cuba. I
have several concerns regarding the transfer and disposition of the
enemy combatants detained there in response to the attacks of September
11, 2001.
  Here we are, almost 8 years removed from that fateful Tuesday morning
when terrorists murdered 3,000 of our citizens at the Pentagon, the
World Trade Center complex, and on hijacked flights. On that day, we
were caught flatfooted and hit with a right cross. Many of us who were
here in Congress in the days that followed 9/11 swore we would provide
the President and the Nation with whatever tools were necessary to
ensure that we would never be caught by surprise again.
  So on September 18, 2001, Congress sent to President Bush the
Authorization to Use Military Force. This was signed into law. Twenty-
six days after the attacks on New York and Washington, we commenced
military operations in Afghanistan. We had identified our enemy and
determined the location of his base of operation and where this
treacherous plot had been devised. We took the fight to the Taliban and
al-Qaida and engaged them in Afghanistan. In the course of those
engagements, U.S. and coalition forces captured enemy combatants.
  Early in 2002, enemy combatants who were seized on the battlefield
began arriving at Guantanamo for detention. In 2004, the Supreme Court
issued an opinion in Hamdi v. Rumsfeld that, as a necessary incident to
the AUMF, the President is authorized to detain persons captured while
fighting U.S. forces in Afghanistan until the cessation of hostilities.
At one time, nearly 800 detainees were housed at Guantanamo.
Approximately 525 detainees have been transferred to other countries
for detention or released outright and returned to their country of
residence. Approximately 60 detainees who were released were later
recaptured on the field of battle in Afghanistan or have again taken up
arms against the United States on other fronts.
  Recently, as reported this year in the January 23 edition of the New
York Times, a former Guantanamo detainee from Saudi Arabia has
resurfaced as No. 2 in charge of al-Qaida in Yemen.
  There he is, as shown in this picture: Said Ali al-Shihiri, deputy
leader for al-Qaida in Yemen; also known as Abu Sayyaf al-Shihiri and
also as Abu-Sufyan al-Azidi; and also known as Guantanamo detainee No.
372. He was released from Guantanamo in November 2007. He planned the
U.S. Embassy attack in Yemen in September 2008.
  Furthermore, it is believed this man was involved in the planning of
an attack on the American Embassy in Yemen last September. This
terrorist assisted in the murder of 10 Yemeni citizens and 1 American--
former Guantanamo detainee No. 372.
  The Washington Post recently ran a 2-day installment profiling a
Guantanamo detainee from Kuwait: Abdullah Saleh al-Ajmi, also known as
Guantanamo detainee No. 220, released from Guantanamo in November 2006,
and detonated a truck bomb in Mosul, Iraq, in March 2008.
  He was released and subsequently traveled to Syria and snuck into
Iraq. Ultimately, this terrorist drove a truck packed with explosives
into a joint American and Iraqi military training camp and blew himself
up, taking 13 Iraqi soldiers with him--former Guantanamo detainee No.
  In March of 2004, a released detainee returned to Pakistan to again
take up the fight against coalition forces as an insurgent. His name is
Abdullah Mehsud. This former detainee, in July 2007, killed himself in
engagement. He was responsible for the kidnapping of Chinese nationals
in Pakistan. After Pakistani forces began to close in on him, he blew
himself up with a grenade.
  These are just a few of the examples that illustrate how precarious
it can be to release these detainees to other nations. We are
outsourcing the security of our Nation to other countries. Shouldn't we
be cautious and examine who we are letting free? Who is taking custody
of these detainees? What security precautions and monitoring measures
are in place to ensure they stay incarcerated or remain accountable?
  If we shelve the only DOD strategic interrogation facility we have
and cannot place these detainees with confidence in other countries,
will we be forced to transfer these enemy combatants to the United
States? Removing these detainees from a secure military facility with
an airport, a highly trained security force, a secure infrastructure,
and located on an island outside the continental United States is, in
my opinion, reckless. Bringing these detainees to the continental
United States is tantamount to injecting a virus into a healthy body.
  On January 22, 2009, President Obama signed three Executive orders
pertaining to Guantanamo and the enemy combatants detained there. He
has ordered the closure of the detention facility within 12 months. He
has also required that any detainees presently in custody be treated
humanely and in accordance with the Army Field Manual. In fact, this
order references the Detainee Treatment Act of 2005, an act passed by
Congress that required that the treatment of the detainees comply with
the Army Field Manual. The objective of this order was already
fulfilled by the passing of that law.
  The third order commissioned a task force to conduct a comprehensive
review of options available that will provide a solution and final
disposition for the detainees at Guantanamo. The Executive order
closing Guantanamo states:

       Prompt and appropriate disposition of individuals currently
     detained at Guantanamo and closure of the facilities in which
     they are detained would further the national security and
     foreign policy interests of the United States.

  Now, presently, approximately 245 detainees designated as ``enemy
combatants'' are housed at Guantanamo. The possibility of returning a
majority of these detainees to their home country or a third country so
that we can rid ourselves of this issue troubles me, nor does it strike
me as particularly sophisticated in the analysis of how other countries
see us. There is no doubt that among some European elites, their
opinions on the previous administration became more negative as the
years went by. There is no doubt that this was also reflected amongst

[[Page S3055]]

the broader populations who have tended toward liberalism for decades.
Opinions from other parts of the world are harder to measure, of
course, as it is difficult to measure the views of populations living
under various types of autocratic government.
  Negative international opinion should not be exaggerated for a number
of reasons. First and most obvious, leadership, particularly in
difficult times, should not be directed by polls. This is true
domestically, and it certainly is true of foreign polls. It is neither
our job nor the administration's job to represent foreign populations.
Decisions in Government should not be made by leaders sticking their
fingers in the air to see which way the wind is blowing.
  Second, appealing to foreign popularity completely disregards the
unique role this Nation has played in advancing global security. It
also disregards the historic debates in which leftwing parties have
advanced their ideology. But we should not ignore that there has been
unprecedented--unprecedented--cooperation from the same Democratic
governments whose liberal disdain so succors some in the opposition
here on all matters of national security. Cooperation from these
governments on diplomatic, military, intelligence, law enforcement, and
humanitarian assistance has been the norm, not the exception,
regardless of disputes on Iraq policy and on those governments' views
on Guantanamo.
  In terms of foreign policy, I would much rather have the cooperation
of a government than its approval, although I recognize that in some
cases the approval facilitates the cooperation. But realistically
speaking--and this is a subject that ought to be steeped in realism--
popularity is not a prerequisite for hard-headed cooperation against a
common threat.
  I wish to quote what columnist Tom Friedman--who is certainly not a
cheerleader for the Republican Party--said about foreign policy thinker
Michael Mandelbaum, who is usually associated with Democratic policies:

       When it comes to the way other countries view America's
     preeminent role in the world--

  Writes Friedman, who then quotes Mandelbaum--

     whatever its lifespan, three things can be safely predicted:
     The other countries will not pay for it; they will continue
     to criticize it; and they will miss it when it is gone.

  I would urge the policymakers in this administration, as well as my
colleagues in the majority party, to consider this wisdom expressed by
Democratic thinkers the next time they engage in the canard that we
need to change our policy to improve our standing with other nations.
Let's hope this is not the main reason to shutter Guantanamo because,
if it is, it is a slim and irresponsible reason.
  Prior to the issuance of the Executive order, I received a briefing
on the President's intention to close Guantanamo. I would endorse an
approach that would have commissioned a 1-year review process rather
than coming out and declaring closure within a year. It strikes me that
the study should come before the decision, not accompany it.
  On his second full day in office, the President, without his Attorney
General in place, issued this order, and I fear he painted himself into
a corner. Two weeks ago, Attorney General Holder visited Guantanamo
Bay. His public comment on his visit was the following:

       I think it is going to take us a good portion of that time
     to really get our hands around what Guantanamo is and what
     Guantanamo was.

  I am sure Attorney General Holder saw what I saw at Guantanamo when I
visited there. I am sure he saw the impressive infrastructure, with
medical, recreational, and legal facilities. Attorney General Holder is
a good man, and I am glad the President has made him the point man on
this issue, but his comments are indicative of the fact that the
complexities surrounding Guantanamo cannot be solved by the stroke of a
pen on an Executive order.
  On February 23, 2009, the Department of Defense submitted a report to
the White House titled ``Compliance With the President's Executive
Order on Detainee Conditions of Confinement at Guantanamo Bay.'' The
Secretary of Defense tasked a special team to review the treatment of
detainees and the conditions at Guantanamo in response to the
President's order of January 22, 2009. The review team focused on
myriad issues, especially housing, medical treatment, food services,
religious freedom, access to attorneys, mail, security, use of force,
interrogation, discipline, and intellectual stimulation.
  During its 13-day investigation, the review team reviewed hours upon
hours of videotapes, reports, and important records. Team members also
conducted more than 100 interviews of base leadership, support staff,
interrogators, and guards. Moreover, they conducted unannounced spot
checks both day and night.
  In the end, the review team concluded that the detention facility and
the treatment of detainees at Guantanamo are in compliance with common
article III of the Geneva Convention. What I found especially pleasing
is that the review team concluded that Guantanamo interrogation
protocols exceed the Army Field Manual and that cells at Guantanamo
from maximum and high security cell blocks--I am quoting from the
report--``exceed those typical of medium and maximum security detention
facilities throughout the United States.''
  I wish to quote other excerpts:

       Interrogations of Guantanamo detainees are all voluntary.
     Approximately one-third of all interrogations take place at
     the request of the detainee. Detainees are permitted to
     decline participation in interrogations at any time with no
     negative disciplinary consequences.

  Unfortunately, our own Washington Post chose only to run a small
article on this report. It was buried on page 3. This is in sharp
contrast to the multiday, multipage, above-the-fold story about the
released detainee who blew himself up in Mosul in March of 2008. I
suppose the media was hoping this review of operations at Guantanamo
would reveal that the present conditions of the detainees would be in
violation of the Geneva Convention. Therein lays the problem. Somewhere
along the way politicians, nominees, and the media all started to label
the present conditions at Guantanamo as intolerable and substandard.

  This report shows that conditions mirror or exceed any current prison
in the Federal system. I encourage every Member to read the report and
learn for themselves the facts about Guantanamo.
  Some of the administration's proposals--ones endorsed by my Senate
colleagues in the majority--involve bringing the detainees to the
United States. I have given this issue serious consideration and am
unable to find one good reason why our Government would want to do
this. We have legally detained enemy combatants on the field of battle.
We have categorized them into three classifications: First, detainees
who no longer pose a threat and need to be returned to their country or
a third country; secondly, enemy detainees who are too dangerous to
release and must be incarcerated until the cessation of hostilities;
and, third, detainees against whom we will present admissible evidence
and adjudicate within the parameters of a fair and constitutionally
guaranteed process.
  There is no reason this court proceeding cannot be carried out at
Guantanamo or satellite facilities outside the United States. The
transfer of the detainees to the United States will undoubtedly present
a wide array of complex legal issues that, in my estimation, will take
longer than 1 year to solve. Mechanisms at Guantanamo that ensure a
fair adversarial judicial proceeding, with all the applicable rights,
is feasible and can be carried out and has been carried out previously
at Guantanamo.
  If we close this facility and are unable to place some of these
detainees into the custody of third countries, what then? The Bureau of
Prisons has previously stated that they consider these prisoners a
``high security risk.'' As such, these prisoners would need to be
housed in a maximum security prison. According to the Bureau of
Prisons, it does not have enough space in maximum security facilities
to house these detainees. However, one idea offered by my colleagues in
the majority party for holding the detainees would be to transfer them
to the Federal Supermax Prison in Florence, CO.
  Now, this facility holds the worst criminal elements our country has.
The maximum security institution, Supermax, ADX, Florence, CO. The

[[Page S3056]]

rated capacity is 490 prisoners. The current level is 471. The Bureau
tries to ensure that this facility is never at full capacity in case of
emergency transfers. In reality, the Federal Bureau of Prisons doesn't
have the room required to hold these very dangerous prisoners in high
security facilities.
  As an alternative to the Supermax at Florence, CO, another idea
offered by the majority would be to sprinkle the detainees throughout
the Federal Prison System. Just look at this chart of the Federal
Bureau of Prisons: We have 15 high-security prisons. The maximum beds
in those 15 high-security prisons happen to be 13,448. The current
population of those prisons is 20,291. It doesn't take too many brains
to realize we can't solve it that way.
  Mr. INHOFE. Mr. President, would the Senator yield for a question?
  Mr. HATCH. I would be happy to.
  Mr. INHOFE. It happens that I have been down there inspecting, maybe
more than any other Member. The first time was right after 9/11; the
last time was a couple of weeks ago.
  One of the interesting things is, if you talk to anyone who has been
there and served there, you find this is above the standards of any of
our Federal prisons. At the current time, the population down there is
245, of which 170 cannot be repatriated; their countries would not take
them back.
  Out of the 170, 110 are the real hardened ones. When the Senator from
Utah talks about they would put them in 15 prisons, they identified my
State of Oklahoma, Forest Hill. I went there to see the facility only
to find it would not work. But the sergeant major in charge of that
facility served a year at Guantanamo Bay and said that of all the
prisons she has been in, or worked in, that is the one that has the
most humane treatment and is best suited for this kind of detainee. I
agree with the Senator and ask if he has given thought as to where
these 15 prisons are as alternatives and would they not become magnets
for terrorist activity in the United States?
  Mr. HATCH. That is a good question. I think I am making an
overwhelming case that it is ridiculous to not use that facility, which
is perfectly capable, offshore, on an island, where we have all the
security we need and we don't have the capacity to take care of them in
this country and we should not want to anyway. I have also made the
point that sending them to other countries is not the answer either.
They don't want them either.
  Mr. INHOFE. I ask the Senator from Utah, if you stop and think, can
you think of a better deal that America has had? We have had that
facility since 1903, and the rent is still the same, $4,000 a year. Can
you find a better deal than that anywhere in Government?
  Mr. HATCH. You can't. To have to bring these prisoners here, we don't
have room, and the cost would be astronomical. Thirdly, we are going to
have real big problems that we will have a difficult time handling,
assuming we can find places to put them. I have been down there, too,
and I have been involved in this for a long time. The Federal Bureau of
Prisons cannot receive these detainees. We are already overcrowded in
high-security facilities by almost 7,000 prisoners.
  What is our next option? Military custody? These detainees are
already held in military custody. Why are we bringing them from one
military installation to another? Some ideas regarding military custody
and presented by the majority include the transfer of the detainees to
Fort Leavenworth, KS. My esteemed colleague from Kansas, Senator
Brownback, already pointed out this idea would have dire consequences
for the Army's Command and General Staff College. This is a course run
by the Army and open to foreign students from our military partners.
Some of these foreign officers are from Islamic nations that have
supported us in our ongoing efforts against terrorism. The governments
of these nations have publicly declared that they will withdraw their
personnel from the course if enemy combatants are transferred to the
Military Discipline Barracks at Fort Leavenworth. What a loss that
would be.
  I know mistakes were made in the early days of Guantanamo. There may
have been some isolated cases where the treatment of some of these
detainees there could be construed as not being in accordance with the
Geneva Convention. In response to these deficiencies, the Supreme
Court, Congress, the Department of Defense, and Justice have
implemented protections and mechanisms to ensure that this will not
happen again. The U.S. Supreme Court has issued decisions ensuring that
constitutionally guaranteed rights apply to these men. Military
prosecutors and FBI agents are conducting reviews of evidence held
against detainees to ensure their admissibility. Military leaders in
charge of Guantanamo have taken measures to ensure that humane
standards and treatment of detainees and their religion exceeds not
only the Geneva Convention but most prison standards found in the
United States. Whatever problems there were at Guantanamo have been
addressed and corrected.
  I also remind my distinguished colleagues that our war against
terrorism will not end with the signing of a treaty. The cessation of
hostilities in Afghanistan is far from over. We are now shifting our
focus and additional troops back to that theater of operation. This
will increase the likelihood of contact with the enemy, which may
require additional detentions. In the days ahead, I hope Congress will
play a part in the disposition of detainees and the future of
Guantanamo Bay. A well-thought-out and properly executed plan offered
by the President would easily garner bipartisan support. I ask the
President to rethink his deadline of closing Guantanamo less than 12
months from now. This is a useable facility that has merit and
operational worthiness.
  In closing, I will quote the 34th President of the United States,
Dwight D. Eisenhower, who said the following: ``Peace and justice are
two sides of the same coin.''
  I commend the President for wanting to conduct a thorough review of
the operations at Guantanamo. My assessment is, this was completed 2
weeks ago with the Defense Department's report and the Attorney
General's visit. What else is there to do? Let's get back to the task
at hand of resuming military commissions and the humane detention of
enemy combatants.
  I am very concerned about this. So far, I have not seen a
conscientious, let alone remarkably worthwhile or worthy, plan that
would exceed what we are already doing in Guantanamo or that would be
as good as what we are already doing there.
  Mr. President, I ask unanimous consent that the letter from the
Department of Justice, Federal Bureau of Prisons, dated September 10,
2007, be printed in the Record at this point.
  There being no objection, the material was ordered to be printed in
the Record, as follows:

                                            Department of Justice,

                                    Federal Bureau of Prisons,

                               Washington, DC, September 10, 2007.
     Hon. Trent Franks,
     House of Representatives,
     Washington, DC.
       Dear Congressman Franks: This is in response to the letter
     signed by you and several other Members of Congress
     requesting a description of the impact of transporting and
     incarcerating in the Bureau of Prisons (BOP) the
     approximately 500 enemy combatants currently being held in
     the detention facility in Guantanamo Bay, Cuba.
       We have provided estimates of the costs you identify, and
     we also mention some of the challenges we would encounter if
     we were responsible for taking these enemy combatants into
     BOP custody. We must emphasize, however, that we would hope
     to learn more about this unique population and what would be
     required of our agency if we were required to assume custody
     of them. This would allow us to undertake a more complete and
     comprehensive impact assessment.
       We would consider the individuals confined in Guantanamo
     Bay, Cuba, to be high security; therefore, they would require
     the highest level of escort staff, type of restraints, and
     other security measures if they were to be transferred into
     BOP custody. The transportation of Federal inmates and
     detainees is coordinated through the Justice Prisoner and
     Alien Transportation System (JPATS) within the United States
     Marshals Service. JPATS is a nationwide network of aircraft
     and ground transportation vehicles. The BOP assists JPATS by
     transporting Federal inmates from the airfields used by the
     U.S. Marshals Service aircraft to our institutions.
       We estimate that it would cost approximately $455,000 for
     the JPATS air travel of 500 detainees from Cuba to any of our
     United States penitentiaries. This air travel includes
     flights from Cuba to the Federal Detention Center (FDC) in
     Miami, Florida, from FDC Miami to the Federal Transportation
     Center in Oklahoma City, Oklahoma, and a third flight to a
     high-security United States penitentiary. Costs of

[[Page S3057]]

     would also include BOP buses to move the detainees from
     the airfields to our facilities (a cost of approximately
     $1,300 per bus trip). Thus, the total cost could reach
     approximately $500,000.
       Currently, there is not sufficient bedspace at any high-
     security Federal prison to confine these individuals. Our
     high-security institutions are operating at 55 percent above
     capacity. There are approximately 199,700 Federal inmates at
     present, and we are expecting the inmate population to
     increase to over 221,000 by the end of fiscal year 2011. The
     average yearly cost of confining a high-security inmate in
     the BOP is approximately $25,400.
       We would most likely confine these detainees in one or two
     penitentiaries. This would require us to transfer a
     sufficient number of inmates to other penitentiaries in order
     to create the necessary bedspace. Such transfers would add to
     the cost of confining the enemy combatants and would impose
     significant additional challenges on our agency (based the
     level of crowding in all high-security BOP institutions).
       Due to the unique status of enemy combatants and the
     probable lack of information about these individuals'
     histories of violent behavior or disruptive activities, it is
     unlikely that we would house these detainees with inmates in
     the general population of high-security institutions (with
     inmates serving sentences for Federal crimes and District of
     Columbia code offenses). Therefore, if transferred to BOP
     custody, these enemy combatants would most likely be confined
     in special units, segregated from the general inmate
     population. It is also likely that many of these individuals
     require separation from other enemy combatants. This kind of
     confinement is comparable to special housing units in BOP
     institutions (which are used for administrative detention and
     disciplinary segregation). These units are more costly to
     operate than general population units due to the increased
     staffing and enhanced security procedures needed for inmates
     who have separation requirements and/or who are potentially
     violent or dangerous.
       The management of inmates in special housing units presents
     additional challenges due to the increased security required
     for these individuals. It would be even more challenging to
     confine enemy combatants who would likely have additional
     restrictions or requirements dictated by the Department of
     Defense. We are unsure how our inmate management principles,
     which focus on constructive staff-inmate interaction, maximum
     program involvement, and due process discipline would fit
     into the Department of Defense's requirements for the enemy
       While it is not entirely clear where the BOP's obligations
     would begin and end with regard to the provision of basic
     inmate programs and services, we foresee the need for some
     special or enhanced services in order to provide the basic
     necessities to these enemy combatants. We would need to
     acquire translation services or transfer appropriate
     bilingual staff for us to communicate our expectations to
     these individuals and to allow these detainees to communicate
     their needs and concerns to us. We would need these
     translation services in order to provide appropriate
     visiting, telephone, and correspondence privileges to the
     detainees and, if required, to monitor these communications.
     We also would likely need to make accommodations with regard
     to our food service and religious programs to meet the
     cultural and religious requirements of these detainees.
       I hope this helps you understand our concerns regarding the
     confinement of enemy combatants. Please contact me if I can
     be of any further assistance.
                                                 Harley G. Lappin,
  Mr. HATCH. Mr. President, I point out also that in a recent report,
U.S. officials said the Taliban's new top operations officer in
southern Afghanistan is a former prisoner at the Guantanamo detention
  Pentagon and CIA officials said Abdullah Ghulam Rasoul was among 13
prisoners released to the Afghan Government in December 2007. He is now
known as Mullah Abdullah Zakir, a name officials say is used by the
Taliban leader in charge of operations against United States and Afghan
forces in southern Afghanistan.
  One intelligence official told the Associated Press that Rasoul's
stated mission is to counter the growing U.S. troop surge. I wished to
put that in the Record.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. INHOFE. Mr. President, I inquire of the Chair, I was scheduled to
speak after the Senator from Ohio. I understand he is not ready to
speak yet and that it is permissible if I take some time now.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. INHOFE. First of all, before I get into what I want to talk
about, I have been listening to the Senator from Utah. I find it to be
very interesting because his subject matter is also a mission of mine.
I think a lot of people have not realized the problem we have with the
bum raps given to Guantanamo Bay, and almost all of them are by people
who have not been there. To my knowledge, almost without exception,
those people who have gone down there--newspapers and publications
making accusations of torture and human rights violations--once they go
there and see it, you never hear from them again, and that includes Al-
Jazeera and some of the Middle Eastern publications. I believe we have
a problem with people who have somehow brought forth this idea that
there have been abuses that haven't taken place. I think probably the
most important part of the argument is that there is not another
Guantanamo Bay; there is no place you can put these detainees.
  As I said in my question to the Senator from Utah, what are we going
to do with these some 245 detainees if they are not there? Also, with
the escalation of activity in Afghanistan, what will we do with those
detainees whom we will capture? The problem is, some people say they
will be put in prisons in Afghanistan. There are two prisons there;
however, they have said they will only take Afghans. If the terrorist
who is caught is from Djibouti or Yemen or Saudi Arabia, there is no
place else to put them other than Guantanamo Bay. It is a resource we
need to have. We don't have a choice.
  I believe our President was responding to a lot of activists who were
upset because during his inaugural address he didn't say anything about
this, so they are making demands that he stop any kind of legal
activity that is going on in the way of trials or tribunals and then
close it in 12 months. You cannot do that until you determine how you
are going to take care of the detainees who are currently there and
those who will be there.
  I feel strongly we are going to have to look out after the interests
of the United States. Nothing could be worse than to take 15 to 17
installations within the continental United States and put terrorists
there, only to serve as magnets for terrorist activity.
  Mr. President, I ask unanimous consent to speak as in morning
business for as much time as I may consume.
  The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.