Mr. OBAMA. Mr. President,
I would like to address the habeas corpus amendment that is on the
floor and that we just heard a lengthy debate about between Senator
Specter and Senator Warner.
A few years ago, I gave
a speech in Boston that people talk about from time to time. In
that speech, I spoke about why I love this country, why I love America,
and what I believe sets this country apart from so many other nations
in so many areas. I said:
That is the true genius of America--a faith in simple dreams, an
insistence on small miracles; that we can tuck in our children at
night and know that they are fed and clothed and safe from harm;
that we can say what we think, write what we think, without hearing
a sudden knock on the door. .....
Without hearing a sudden
knock on the door. I bring this up because what is at stake in this
bill, and in the amendment that is currently being debated, is the
right, in some sense, for people who hear that knock on the door
and are placed in detention because the Government suspects them
of terrorist activity to effectively challenge their detention by
Now, under the existing
rules of the Detainee Treatment Act, court review of anyone's detention
is severely restricted. Fortunately, the Supreme Court in Hamdan
ensured that some meaningful review would take place. But in the
absence of Senator Specter's amendment that is currently pending,
we will essentially be going back to the same situation as if the
Supreme Court had never ruled in Hamdan, a situation in which detainees
effectively have no access to anything other than the Combatant
Status Review Tribunal, or the CSRT.
Now, I think it is important
for all of us to understand exactly the procedures that are currently
provided for under the CSRT. I have actually read a few of the transcripts
of proceedings under the CSRT. And I can tell you that oftentimes
they provide detainees no meaningful recourse if the Government
has the wrong guy.
Essentially, reading these
transcripts, they proceed as follows: The Government says: You are
a member of the Taliban. And the detainee will say: No, I'm not.
And then the Government will not ask for proof from the detainee
that he is not. There is no evidence that the detainee can offer
to rebut the Government's charge.
The Government then moves
on and says: And on such and such a date, you perpetrated such and
such terrorist crime. And the detainee says: No, I didn't. You have
the wrong guy. But again, he has no capacity to place into evidence
anything that would rebut the Government's charge. And there is
no effort to find out whether or not what he is saying is true.
And it proceeds like that
until effectively the Government says, OK, that is the end of the
tribunal, and he goes back to detention. Even if there is evidence
that he was not involved in any terrorist activity, he may not have
any mechanism to introduce that evidence into the hearing.
Now, the vast majority
of the folks in Guantanamo, I suspect, are there for a reason. There
are a lot of dangerous people. Particularly dangerous are people
like Khalid Shaikh Mohammed. Ironically, those are the guys who
are going to get real military procedures because they are going
to be charged by the Government. But detainees who have not committed
war crimes--or where the Government's case is not strong--may not
have any recourse whatsoever.
The bottom line is this:
Current procedures under the CSRT are such that a perfectly innocent
individual could be held and could not rebut the Government's case
and has no way of proving his innocence.
I would like somebody in
this Chamber, somebody in this Government, to tell me why this is
necessary. I do not want to hear that this is a new world and we
face a new kind of enemy. I know that. I know that every time I
think about my two little girls and worry for their safety--when
I wonder if I really can tuck them in at night and know that they
are safe from harm. I have as big of a stake as anybody on the other
side of the aisle and anybody in this administration in capturing
terrorists and incapacitating them. I would gladly take up arms
myself against any terrorist threat to make sure my family is protected.
But as a parent, I can
also imagine the terror I would feel if one of my family members
were rounded up in the middle of the night and sent to Guantanamo
without even getting one chance to ask why they were being held
and being able to prove their innocence.
This is not just an entirely
fictional scenario, by the way. We have already had reports by the
CIA and various generals over the last few years saying that many
of the detainees at Guantanamo should not have been there. As one
U.S. commander of Guantanamo told the Wall Street Journal:
Sometimes, we just didn't
get the right folks.
We all know about the recent
case of the Canadian man who was suspected of terrorist connections,
detained in New York, sent to Syria--through a rendition agreement--tortured,
only to find out later it was all a case of mistaken identity and
In this war, where terrorists
can plot undetected from within our borders, it is absolutely vital
that our law enforcement agencies are able to detain and interrogate
whoever they believe to be a suspect,
and so it is understandable
that mistakes will be made and identities will be confused. I don't
blame the Government for that. This is an extraordinarily difficult
war we are prosecuting against terrorists. There are going to be
situations in which we cast too wide a net and capture the wrong
But what is avoidable is
refusing to ever allow our legal system to correct these mistakes.
By giving suspects a chance--even one chance--to challenge the terms
of their detention in court, to have a judge confirm that the Government
has detained the right person for the right suspicions, we could
solve this problem without harming our efforts in the war on terror
Let me respond to a couple
of points that have been made on the other side. You will hear opponents
of this amendment say it will give all kinds of rights to terrorist
masterminds, such as Khalid Shaikh Mohammed. But that is not true.
The irony of the underlying bill as it is written is that someone
like Khalid Shaikh Mohammed is going to get basically a full military
trial, with all of the bells and whistles. He will have counsel,
he will be able to present evidence, and he will be able to rebut
the Government's case. The feeling is that he is guilty of a war
crime and to do otherwise might violate some of our agreements under
the Geneva Conventions. I think that is good, that we are going
to provide him with some procedure and process. I think we will
convict him, and I think he will be brought to justice. I think
justice will be carried out in his case.
But that won't be true
for the detainees who are never charged with a terrorist crime,
who have not committed a war crime. Under this bill, people who
may have been simply at the wrong place at the wrong time--and there
may be just a few--will never get a chance to appeal their detention.
So, essentially, the weaker the Government's case is against you,
the fewer rights you have. Senator Specter's amendment would fix
that, while still ensuring that terrorists like Mohammed are swiftly
brought to justice.
You are also going to hear
a lot about how lawyers are going to file all kinds of frivolous
lawsuits on behalf of detainees if habeas corpus is in place. This
is a cynical argument because I think we could get overwhelming
support in this Chamber right now for a measure that would restrict
habeas to a one-shot appeal that would be limited solely to whether
someone was legally detained or not. I am not interested in allowing
folks at Guantanamo to complain about whether their cell is too
small or whether the food they get is sufficiently edible or to
their tastes. That is not what this is about. We can craft a habeas
bill that says the only question before the court is whether there
is sufficient evidence to find that this person is truly an unlawful
enemy combatant and belongs in this detention center. We can restrict
it to that. And although I have seen some of those amendments floating
around, those were not amendments that were admitted during this
debate. It is a problem that is easily addressed. It is not a reason
for us to wholesale eliminate habeas corpus.
Finally, you will hear
some Senators argue that if habeas is allowed, it renders the CSRT
process irrelevant because the courts will embark on de novo review,
meaning they will completely retry these cases, take new evidence.
So whatever findings were made in the CSRT are not really relevant
because the court is essentially going to start all over again.
I actually think some of
these Senators are right on this point. I believe we could actually
set up a system in which a military tribunal is sufficient to make
a determination as to whether someone is an enemy combatant and
would not require the sort of traditional habeas corpus that is
called for as a consequence of this amendment, where the court's
role is simply to see whether proper procedures were met. The problem
is that the way the CSRT is currently designed is so insufficient
that we can anticipate the Supreme Court overturning this underlying
once again, in the absence
of habeas corpus review.
I have had conversations
with some of the sponsors of the underlying bill who say they agree
that we have to beef up the CSRT procedures. Well, if we are going
to revisit the CSRT procedures to make them stronger and make sure
they comport with basic due process, why not leave habeas corpus
in place until we have actually fixed it up to our satisfaction?
Why rush through it 2 days before we are supposed to adjourn? Because
some on the other side of the aisle want to go campaign on the issue
of who is tougher on terrorism and national security.
Since 9/11, Americans have
been asked to give up certain conveniences and civil liberties--long
waits in airport security lines, random questioning because of a
foreign-sounding last name--so that the Government can defeat terrorism
wherever it may exist. It is a tough balance to strike. I think
we have to acknowledge that whoever was in power right now, whoever
was in the White House, whichever party was in control, that we
would have to do some balancing between civil liberties and our
need for security and to get tough on those who would do us harm.
Most of us have been willing
to make some sacrifices because we know that, in the end, it helps
to make us safer. But restricting somebody's right to challenge
their imprisonment indefinitely is not going to make us safer. In
fact, recent evidence shows it is probably making us less safe.
In Sunday's New York Times,
it was reported that previous drafts of the recently released National
Intelligence Estimate, a report of 16 different Government intelligence
..... actions by the United
States Government that were determined to have stoked the jihad
movement, like the indefinite detention of prisoners at Guantanamo
This is not just unhelpful
in our fight against terror, it is unnecessary. We don't need to
imprison innocent people to win this war. For people who are guilty,
we have the procedures in place to lock them up. That is who we
are as a people. We do things right, and we do things fair.
Two days ago, every Member
of this body received a letter, signed by 35 U.S. diplomats, many
of whom served under Republican Presidents. They urged us to reconsider
eliminating the rights of habeas corpus from this bill, saying:
To deny habeas corpus to
our detainees can be seen as a prescription for how the captured
members of our own military, diplomatic, and NGO personnel stationed
abroad may be treated. ..... The Congress has every duty to insure
their protection, and to avoid anything which will be taken as a
justification, even by the most disturbed minds, that arbitrary
arrest is the acceptable norm of the day in the relations between
nations, and that judicial inquiry is an antique, trivial and dispensable
The world is watching what
we do today in America. They will know what we do here today, and
they will treat all of us accordingly in the future--our soldiers,
our diplomats, our journalists, anybody who travels beyond these
borders. I hope we remember this as we go forward. I sincerely hope
we can protect what has been called the ``great writ''--a writ that
has been in place in the Anglo-American legal system for over 700
Mr. President, this should
not be a difficult vote. I hope we pass this amendment because I
think it is the only way to make sure this underlying bill preserves
all the great traditions of our legal system and our way of life.
I yield the floor.