Statement Of Senator Patrick Leahy On Prohibition On The Transfer Of Terrorism Suspects In The National Defense Authorization Act For Fiscal Year 2011

I am deeply disappointed that H.R. 6523, the National Defense Authorization Act for Fiscal Year 2011, includes a section to prohibit the transfer of terrorism suspects at Guantanamo Bay to the United States to face prosecution.  This section takes away one of the greatest tools we have to protect our national security -- our ability to prosecute terrorism defendants in Federal courts.  The result is to make it more likely that terrorists will not be brought to justice.

Current law allows for the transfer of these terrorist suspects for prosecution in the Federal courts.  This is a policy that I strongly support.  I want to see those who have committed acts of terrorism convicted in our justice system and sentenced to long terms in prison. 

Our Federal judges and Federal prosecutors have extraordinary experience dealing with complex terrorism and conspiracy cases.  The record speaks for itself.  Since September 11, 2001, over 425 persons have been convicted on terrorism related charges in the Federal courts – including more than 70 defendants since President Obama took office in January 2009.  

And yet, despite this strong record, Congress continues to try to tie the hands of law enforcement and other security agencies.  The prohibition contained in section 1032 of H.R.6523 is a complete bar on transfers of terrorism suspects at Guantanamo Bay to the United States.  There are no exceptions to this prohibition for Federal prosecutions.  Rather than addressing the question of how to close the prison facility at Guantanamo Bay once and for all, Congress is obstructing efforts to bring these criminals to justice. 

In a letter to the Senate leadership dated December 9, 2010, Attorney General Eric Holder warned that this provision would “set a dangerous precedent with serious implications for the impartial administration of justice.”  The Attorney General further stated that, by restricting the discretion of the executive branch to prosecute terrorists in Article III courts, Congress would “tie the hands of the President and his national security advisers” and would be “taking away one of our most potent weapons in the fight against terrorism,”  Accordingly, this provision is short-sighted and unwise.

This prohibition language also sets a dangerous political precedent.  Once the Senate votes in favor of a total bar to transfers, even for criminal trial, we will see it offered again and again.  This is a door that, once opened, will not easily be closed.    

I can think of only two possible motivations for including this ban of all transfers to the United States.  One is to ensure that the detainees being held at Guantanamo Bay, some for years without charge, can only be tried by military commissions. The other is to ensure that these suspects are simply held in military detention at Guantanamo Bay indefinitely.  The very strict restrictions on transfers of suspects from Guantanamo Bay to other nations in section 1033 of H.R.6523 suggests that indefinite detention is, in fact, the goal of these provisions.

For those who wish to see terrorism suspects tried only in military commissions, I urge them to study the record.  The military commissions devised by the prior administration were plagued with problems and repeatedly overturned by the U.S. Supreme Court.  The Obama administration has worked hard to revise the military commissions to make sure they meet constitutional standards.  However, the new system is still largely untested, and the rules for these commissions were only just released earlier this year. 

Military commissions have achieved only five convictions since the September 11, 2001, attacks.  Four of the five resulted from pleas.  The sentences handed down in these five cases have been much shorter than those meted out in Federal court convictions.  In contrast, our Federal courts have a long and distinguished history of successfully prosecuting even the most atrocious violent acts, and our judicial system is respected throughout the world.

The vital role of the rule of law and our judicial system in the fight against terrorism is also strongly supported by leaders of our military who served honorably to protect our nation and uphold the Constitution.  On December 10, 2010, a group of retired generals and admirals voiced their opposition against restricting law enforcement’s ability to try terrorists in Federal criminal courts, and wrote that, “By trying terrorist suspects in civilian courts we deprive them of the warrior status they crave and treat them as the criminals and thugs they are. As long as Guantánamo is open it offers America’s enemies a propaganda tool that is being used effectively to recruit others to their cause and undermines U.S. efforts to win support in the communities where our troops most need local cooperation to succeed.”

I believe strongly, as all Americans do, that we must do everything we can to prevent terrorism, and we must ensure severe punishment is imposed upon those who do us harm.  As a former prosecutor, I have made certain that perpetrators of violent crimes receive serious punishment.  I also believe strongly that we can ensure our safety and security, and bring terrorists to justice, in ways that are consistent with our laws and values.  Congress should not limit law enforcement’s ability to do just that.

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