Enemy Combatantsby Senator Lindsey Graham
Posted on 2013-03-12
GRAHAM. Madam President, I wish to bring the body's attention to
a recent decision by the Obama administration to place the son-in-law
of Osama bin Laden, Mr. Abu Ghaith--I think I am pronouncing the name
correctly--into Federal district court in New York charged with
conspiracy to kill American citizens. He has been presented to our
criminal justice system. He is, in my view, the classic example of an
I will be, along with Senator Ayotte, writing the Attorney General asking for a rundown of how long he was interrogated before he was read his Miranda rights. I believe this is a classic example of a person of great intelligence value who should have been held as an enemy combatant at Guantanamo Bay for intelligence-gathering purposes as long as it took to get good intelligence. He, in my view, is a treasure trove of information about not only al-Qaida but maybe things going on in Iran. There is an allegation of his being held in Iran for a very long time as their houseguest, for lack of a better word.
I fear greatly we are beginning to go back to the criminal justice model that [[Page S1682]] preceded 9/11. The first time the World Trade Center was attacked, we had the Blind Sheik case and the prosecutors did a wonderful job of prosecuting the Blind Sheik and his conspirators in Federal court. But everybody at that time treated al-Qaida and terrorism as a criminal threat.
After 9/11, we changed our model. The attacks of 9/11 were viewed as an act of war and we authorized military force to go after al-Qaida and affiliates by allowing us to use the law of war model regarding al- Qaida operatives. From 9/11 forward, we can now hold them as enemy combatants.
Under the law of war--I have been a military lawyer for 30 years-- there is no Miranda right component. If a person is captured as an enemy prisoner, he or she is not read their rights or provided a lawyer. When a commander hears we have a highly valued member of the enemy in our custody, the first thing the commander wants to know is what intelligence have we gathered. The last thing on the commander's mind is where we are going to prosecute them.
So when we are fighting a war, the purpose of interrogating an enemy prisoner is to find out information about enemy activity so we can win the war and protect our troops. In criminal law, the purpose is to convict somebody for a crime. Under criminal law--domestic criminal law--we cannot hold someone for interrogation purposes. We can't ask them about what they have been up to, what they know, and I don't suggest we should. They are entitled to a lawyer and Miranda rights and that is the way it should be.
But we are fighting a war, at least in my view we are fighting a war. I wish to remind the Nation--I doubt if we need a whole lot of reminding but every now and then apparently we do--this is the Twin Towers on fire, beginning to crumble from an attack on 9/11. This is the Pentagon, the damage done to the Pentagon, and 300 people lost their lives there, and this is the Shanksville, PA, site of Flight 93.
To those who suggest we are not in a war, I could not disagree more. I would say the single biggest loss of life in the war on terror was the first day; the very first day the war began, September 11, 2001. Do my colleagues remember where they were? Do they remember their reaction? The first three battles in this war cost us the most lives of any day in the war. We have lost a lot of soldiers, and our hearts go out to them, but there has never been a day when Americans bled more than 9/11 itself.
There are three battlefields in this war: New York, over 2,000 people killed; the Pentagon, around 300 killed; Shanksville, PA, the entire membership of that airplane was killed. To the people of flight 93: You fought back. You weren't fighting against a bunch of criminals. You fought back against a bunch of terrorists who were trying to take the last airplane and crash it into this building or some other building in Washington. To those who died on that flight, you are the first line of defense. You, above all others, were the first ones to fight back. I will not let your fight go unnoticed. You were not fighting a bunch of criminals. You were fighting people who are at war with us.
I wish we had understood in 1998 we were at war and not used a criminal model. If we had kept the Blind Sheik in military custody, interrogated him for a very long time, lawfully and humanely--because I believe that as a military lawyer--maybe we could have gotten information that would have prevented 9/11.
Here is why I am so upset. The person in custody in New York is the son-in-law of Osama bin Laden. Again, I remind my colleagues, this is the bloodiest day in the war on terror. These are three battlefields that cost us 2,900 lives. Over 2,900 American citizens died on the first day of the war.
Now, years later, we are still capturing people. The person we captured--and I congratulate all those who were involved in bringing this man into our custody. This person over here to the left sitting by Osama bin Laden is his son-in-law. He left Kuwait in 2000 and went to Afghanistan. He pledged allegiance to bin Laden. He was the spokesperson for al-Qaida. He was one of the key guys trying to get other people to pledge allegiance to al-Qaida and bin Laden.
So in 2000 he went to Afghanistan and he joined with bin Laden and became his son-in-law. He founded a charity that was used to support terrorist organizations.
On 9/11, after the attacks, he was one of the first people to speak and to glorify the attacks about how they attacked our homeland. I will get that quote later; I don't have it with me. He said: My brothers, we finally hit the homeland. We finally hit them in the heart of where they live.
On October 10 in a video he said: Americans should know the storm of planes will not stop. There are thousands of the Islamic nation's youth who are eager to die, just as the Americans are eager to live.
All I can say is if this man was interrogated by our intelligence officials and the FBI for hours, not days, before he was read his Miranda rights--under the law of war, we have the opportunity available to us to hold them indefinitely as a prisoner, an enemy combatant, a member of the enemy force, and to lawfully interrogate him without a lawyer, without reading him his Miranda rights because we are trying to gather intelligence and make sure we can prevent future attacks and to find out what this vicious enemy is up to. We did not take that opportunity.
This administration is refusing to use Guantanamo Bay, one of the best military jails in the history of the world--very transparent, well run, and it is the place he should be today, not in New York City awaiting trial in Federal court.
It is not about Federal court not being available in the war on terror. Article III courts have done a good job in many cases of prosecuting terrorists but so have military commission tribunals at Guantanamo Bay, where KSM, the architect of 9/11, is being prosecuted under the Military Commissions Act.
My complaint is that this man was, within hours, read his Miranda rights and given a lawyer and cut off the ability of our government to find out what he knew about the war on terror, current operations, and future operations. He should have been at Guantanamo Bay, interrogated by our military for as long as it took to find out what he knew. If the administration is telling me we got all we needed from this man in 1 day, they are offending my intelligence. I have been a military lawyer for 30 years. I understand what is going on at Guantanamo Bay, the information we have received over years. In some cases, it took months, if not years, to get the total picture of what a detainee knew. So if the administration is telling me and the American public the time they had with this man before they read him his Miranda rights was enough, then they are offending my intelligence.
They are making a huge mistake. The decision not to treat him as an enemy combatant and putting him at Guantanamo Bay for interrogation purposes under the law of the war is one of the most serious mistakes we have made since 9/11. We are beginning to criminalize the war.
This was not an intelligence decision or a military decision; it was a political decision, because they will never convince me or almost anybody else in America that interrogating him for hours was enough. The reason he was interrogated for hours and not days is that they did not want to take him to Guantanamo Bay. The reason he was read his Miranda rights is they are pushing everybody back into the criminal justice system.
All I can say is that Guantanamo Bay has been reformed. It should be the place we take people such as he, as an enemy combatant, to be interrogated under the law of war, and we are using the criminal justice model in a way that will come back to haunt our Nation. We are beginning to criminalize the war. I want my colleagues to know we are going down a very dangerous path, and I will do everything in my power to get this administration and future administrations back in the game when it comes to fighting a war because I believe very much, I say to my colleagues, that we are in a state of war with an enemy who does not wear a uniform, who has no capital to conquer, no Air Force to shoot down, and no Navy to sink. The only thing between them and us is our brave men and women in the military and good information. This man was interrogated for hours when he should have been interrogated for months.
[[Page S1683]] We are beginning to do what got us into this mess to begin with, looking at al-Qaida as a group of common criminal thugs rather than the warriors they are. These people right here mean to kill us all. They are at war with us. I intend to be at war with them.
I yield the floor.
The PRESIDING OFFICER. The Senator from Delaware.