Mr. President, I rise today in strong opposition to several sections of the fiscal year 2012 Department of Defense authorization bill relating to detainees. I have serious concerns regarding the detention provisions included in the final…
Mr. President, I rise today in strong opposition to several sections of the fiscal year 2012 Department of Defense authorization bill relating to detainees.
I have serious concerns regarding the detention provisions included in the final conference report. When this legislation was being discussed in the Senate, the Secretary of Defense, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation clearly stated that these provisions would undermine the ability of the government to bring suspected terrorists to justice. The language in the bill also raises significant issues regarding civil liberties, including the applicability of the indefinite detention provision to American citizens.
Section 1021 of the conference report provides the U.S. military with the authority to indefinitely detain, without trial, an individual suspected of involvement in hostilities against the United States. The ability to detain the person without charges could last until the ``end of hostilities''--a completely undefined period of time considering that we are confronting a long-term conflict with groups, such as al- Qaida, who will never sign a peace treaty ending the hostilities.
The final language does include an amendment offered by Senator Feinstein that states that the provision should not be construed as affecting existing law with respect to the detention of U.S. citizens, but this language simply restates that the law is what the law is. The problem is that the law is unsettled. If Congress is going to enact provisions authorizing the indefinite detention of a person without a trial, frankly, I believe the sensible approach is to be very clear about whether or not it is the intent of Congress to include American citizens within this category.
Another problematic provision is section 1022, which mandates that the military detain suspected members of al-Qaida, including those captured within the United States. As I previously mentioned, military and Federal law enforcement officials have argued that this provision will hamper their ability to bring suspected terrorists to justice by limiting the flexibility of civilian law enforcement and creating a completely new and untested framework for dealing with suspected terrorists.
Proponents of this provision have argued that this section will not interfere with the ability of civilian law enforcement to do their job. They point to the fact that the President may waive the requirement and that the President must draft procedures within 60 days to mitigate any problems associated with implementing this section.
First, with regard to the waiver, if civilian law enforcement agents capture a suspected terrorist, the need to obtain a Presidential waiver for continued civilian detention could disrupt interrogations and intelligence gathering. Second, if there is an acknowledgement that the statute could interfere with Federal law enforcement's ability to interrogate and prosecute a suspected terrorist, it would seem more appropriate to just address the underlying problems with the statute rather than task the administration with coming up with procedures to deal with these shortfalls.
Just yesterday, the Director of the FBI, Robert Mueller, in testimony before the Senate Judiciary Committee, stated that the revised language did not fully address his concerns about the negative impact the military detention provision would have in interfering with the work of investigators.
The bottom line is that this section muddies the water and is completely unnecessary. The administration already has the discretion to prosecute foreign terrorists in civilian court or in military tribunals. We should maintain this flexibility to ensure the government is able to aggressively pursue terrorists in the forum that is the most effective in each specific case.
Lastly, I would like to briefly comment on the various provisions in the conference report aimed at limiting the ability of the administration to close the detention facility in Guantanamo Bay. It has been about 10 years since the Bush administration established the facility and its closure is long overdue.
As a recent article by Scott Shane of the New York Times pointed out, the government spends around $800,000 a year to house each of the 171 remaining prisoners at the military facility at Guantanamo. This is despite the fact that our Federal prison system has a strong record of safely holding individuals convicted of terrorism-related offenses-- there are currently 362 of these individuals within the custody of the Bureau of Prisons.
Mr. President, I ask unanimous consent that the article be printed in the Congressional Record following my remarks.
It is unfortunate that Congress continues to put in place restrictions preventing the transfer of inmates and the closure of the facility. I believe our Nation's handling of detainees will not be viewed kindly by history, and I look forward to the day we are able to close this regrettable chapter.
I supported an amendment offered by Senator Mark Udall to remove all of the detainee provisions from the Senate bill. Unfortunately, the measure was not adopted. It was my hope that these matters would be dealt with as the legislative process moved forward, and I am disappointed that efforts to adequately address these concerns were unsuccessful. I will continue to support efforts to revise these provisions as Congress discusses detainee matters in the future.
Exhibit 1
[From the New York Times, Dec. 10, 2011]
Beyond Guantanamo, a Web of Prisons for Terrorism Inmates
(By Scott Shane)
Washington.--It is the other Guantanamo, an archipelago of
federal prisons that stretches across the country, hidden
away on back roads. Today, it houses far more men convicted
in terrorism cases than the shrunken population of the prison
in Cuba that has generated so much debate.
An aggressive prosecution strategy, aimed at prevention as
much as punishment, has sent away scores of people. They
serve long sentences, often in restrictive, Muslim-majority
units, under intensive monitoring by prison officers. Their
world is spare.
Among them is Ismail Royer, serving 20 years for helping
friends go to an extremist training camp in Pakistan. In a
letter from the highest-security prison in the United States,
Mr. Royer describes his remarkable neighbors at twice-a-week
outdoor exercise sessions, each prisoner alone in his own
wire cage under the Colorado sky. ``That's really the only
interaction I have with other inmates,'' he wrote from the
federal Supermax, 100 miles south of Denver.
There is Richard Reid, the shoe bomber, Mr. Royer wrote.
Terry Nichols, who conspired to blow up the Oklahoma City
federal building. Ahmed Ressam, the would-be ``millennium
bomber,'' who plotted to attack Los Angeles International
Airport. And Eric Rudolph, who bombed abortion clinics and
the 1996 Summer Olympics in Atlanta.
In recent weeks, Congress has reignited an old debate, with
some arguing that only military justice is appropriate for
terrorist suspects. But military tribunals have proved
excruciatingly slow and imprisonment at Guantanamo hugely
costly--$800,000 per inmate a year, compared with $25,000 in
federal prison.
The criminal justice system, meanwhile, has absorbed the
surge of terrorism cases since 2001 without calamity, and
without the international criticism that Guantanamo has
attracted for holding prisoners without trial. A decade after
the Sept. 11 attacks, an examination of how the prisons have
handled the challenge of extremist violence reveals some
striking facts:
--Big numbers. Today, 171 prisoners remain at Guantanamo.
As of Oct. 1, the federal Bureau of Prisons reported that it
was holding 362 people convicted in terrorism-related cases,
269 with what the bureau calls a
connection to international terrorism--up from just 50 in
2000. An additional 93 inmates have a connection to domestic
terrorism.
--Lengthy sentences. Terrorists who plotted to massacre
Americans are likely to die in prison. Faisal Shahzad, who
tried to set off a car bomb in Times Square in 2010, is
serving a sentence of life without parole at the Supermax, as
are Zacarias Moussaoui, a Qaeda operative arrested in 2001,
and Mr. Reid, the shoe bomber, among others. But many inmates
whose conduct fell far short of outright terrorism are
serving sentences of a decade or more, the result of a
calculated prevention strategy to sideline radicals well
before they could initiate deadly plots.
--Special units. Since 2006, the Bureau of Prisons has
moved many of those convicted in terrorism cases to two
special units that severely restrict visits and phone calls.
But in creating what are Muslim-dominated units, prison
officials have inadvertently fostered a sense of solidarity
and defiance, and set off a long-running legal dispute over
limits on group prayer. Officials have warned in court
filings about the danger of radicalization, but the Bureau of
Prisons has nothing comparable to the deradicalization
programs instituted in many countries.
--Quiet releases. More than 300 prisoners have completed
their sentences and been freed since 2001. Their convictions
involved not outright violence but ``material support'' for a
terrorist group; financial or document fraud; weapons
violations; and a range of other crimes. About half are
foreign citizens and were deported; the Americans have
blended into communities around the country, refusing news
media interviews and avoiding attention.
--Rare recidivism. By contrast with the record at
Guantanamo, where the Defense Department says that about 25
percent of those released are known or suspected of
subsequently joining militant groups, it appears
extraordinarily rare for the federal prison inmates with past
terrorist ties to plot violence after their release. The
government keeps a close eye on them: prison intelligence
officers report regularly to the Justice Department on
visitors, letters and phone calls of inmates linked to
terrorism. Before the prisoners are freed, F.B.I. agents
typically interview them, and probation officers track them
for years.
Both the Obama administration and Republicans in Congress
often cite the threat of homegrown terrorism. But the Bureau
of Prisons has proven remarkably resistant to outside
scrutiny of the inmates it houses, who might offer a unique
window on the problem.
In 2009, a group of scholars proposed interviewing people
imprisoned in terrorism cases about how they took that path.
The Department of Homeland Security approved the proposal and
offered financing. But the Bureau of Prisons refused to grant
access, saying the project would require too much staff time.
``There's a huge national debate about how dangerous these
people are,'' said Gary LaFree, director of a national
terrorism study center at the University of Maryland, who was
lead author of the proposal. ``I just think, as a citizen,
somebody ought to be studying this.''
The Bureau of Prisons would not make any officials
available for an interview with The New York Times, and
wardens at three prisons refused to permit a reporter to
visit inmates. But e-mails and letters from inmates give a
rare, if narrow, look at their hidden world.
Paying the Price
Consider the case of Randall Todd Royer, 38, a Missouri-
born Muslim convert who goes by Ismail. Before 9/11, he was a
young Islamic activist with the Council on American-Islamic
Relations and the Muslim American Society, meeting with
members of Congress and visiting the Clinton White House.
Today he is nearly eight years into a 20-year prison
sentence. He pleaded guilty in 2004 to helping several
American friends go to a training camp for Lashkar-e-Taiba,
an extremist group fighting Indian rule in Kashmir. The
organization was later designated a terrorist group by the
United States--and is blamed for the Mumbai massacre in
2008--but prosecutors maintained in 2004 that the friends
intended to go on to Afghanistan and fight American troops
alongside the Taliban.
Mr. Royer had fought briefly with the Bosnian Muslims
against their Serbian neighbors in the mid-1990s, when NATO,
too, backed the Bosnians. He trained at a Lashkar-e-Taiba
camp himself. And in 2001, he was stopped by Virginia police
with an AK-47 and ammunition in his car.
But he adamantly denies that he would ever scheme to kill
Americans, and there is no evidence that he did so. Before
sentencing, he wrote the judge a 30-page letter admitting,
``I crossed the line and, in my ignorance and phenomenally
poor judgment, broke the law.'' In grand jury testimony, he
expressed regret about not objecting during a meeting, just
after the Sept. 11 attacks, in which his friends discussed
joining the Taliban.
``Unfortunately, I didn't come out and clearly say that's
not what any of us should be about,'' he said.
Prosecutors call Mr. Royer ``an inveterate liar'' in court
papers in another case, asserting that he has given
contradictory accounts of the meeting after Sept. 11. Mr.
Royer says he has been truthful.
Whatever the facts, he is paying the price. His 20-year
sentence was the statutory minimum under a 2004 plea deal he
reluctantly took, fearing that a trial might end in a life
term. His wife divorced him and remarried; he has seen his
four young children only through glass since 2006, when the
Bureau of Prisons moved him to a restrictive new unit in
Indiana for inmates with the terrorism label. After an
altercation with another inmate who he said was bullying
others, he was moved in 2010 to the Supermax in Colorado.
He is barred from using e-mail and permitted only three 15-
minute phone calls a month--recently increased from two, a
move that Mr. Royer hopes may portend his being moved to a
prison closer to his children. His letters are reflective,
sometimes self-critical, frequently dropping allusions to his
omnivorous reading. His flirtation with violent Islam and his
incarceration, he says, have not poisoned him against his own
country.
``You asked what I think of the U.S.; that is an
extraordinarily complex question,'' Mr. Royer wrote in one
letter consisting of 27 pages of neat handwriting. ``I can
say I was born in Missouri, I love that land and its people,
I love the Mississippi, I love my family and my cousins, I
love my Germanic ethnic heritage and people, I love the
English language, I love the American people--my people.
He said he believed some American foreign policy positions
had been ``needlessly antagonistic'' but added, ``Nothing the
U.S. did justified the 9/11 attacks.''
Mr. Royer rejected the notion that the United States was at
war with Islam. ``Conflict between the U.S. and Muslims is
neither inevitable nor beneficial or in anyone's interest,''
he wrote. ``Actually, I suppose it is in the interest of
fanatics on both sides, but their interests run counter to
everyone else's.'' He added an erudite footnote: `` `Les
extremites se touchent' (the extremes meet)--Blaise Pascal.''
He expressed frustration that the Bureau of Prisons appears
to view him as an extremist, despite what he describes as his
campaign against extremism in discussions with other inmates
and prison sermons at Friday Prayer, ``which they surely have
recordings of.''
``I have gotten into vehement debates, not to mention civil
conversations, with other inmates from the day I was arrested
until today, about the dangers and evils of extremism and
terrorism,'' Mr. Royer wrote in a yearlong correspondence
with a reporter. ``Can they not figure out who I am?''
A Scorched-Earth Approach
In 2004, prosecutors believed they knew who Mr. Royer was:
one of a group of young Virginians under the influence of a
radical cleric, Ali al-Timimi, whose members played paintball
to practice for jihad and were on a path toward extremist
violence. After Sept. 11, federal prosecutors took a
scorched-earth approach to any crime with even a hint of a
terrorism connection, and judges and juries went along.
In the Virginia jihad case, for instance, prosecutors used
the Neutrality Act, a little-used law dating to 1794 that
prohibits Americans from fighting against a nation at peace
with the United States. Prosecutors combined that law with
weapons statutes that impose a mandatory minimum sentence in
a strategy to get the longest prison terms, with breaks for
some defendants who cooperated, said Paul J. McNulty, then
the United States attorney overseeing the case.
``We were doing all we could to prevent the next attack,''
Mr. McNulty said.
``It was a deterrence strategy and a show of strength,''
said Karen J. Greenberg, a law professor at Fordham
University who has overseen the most thorough independent
analysis of terrorism prosecutions. ``The attitude of the
government was: Every step you take toward terrorism, no
matter how small, will be punished severely.''
About 40 percent of terrorism cases since the Sept. 11
attacks have relied on informants, by the count of the Center
on Law and Security at New York University, which Ms.
Greenberg headed until earlier this year. In such cases, the
F.B.I. has trolled for radicals and then tested whether they
were willing to plot mayhem--again, a preemptive strategy
intended to ferret out potential terrorists. But in some
cases prosecutors have been accused of overreaching.
Yassin M. Aref, for instance, was a Kurdish immigrant from
Iraq and the imam of an Albany mosque when he agreed to serve
as witness to a loan between an acquaintance and another man,
actually an informant posing as a supporter of a Pakistani
terrorist group, Jaish-e-Muhammad. The ostensible purpose of
the loan was to buy a missile to kill the Pakistani
ambassador to the United Nations. Mr. Aref's involvement was
peripheral--but he was convicted of conspiring to aid a
terrorist group and got a 15-year sentence.
That was a typical punishment, according to the Center on
Law and Security, which has studied the issue. Of 204 people
charged with what it calls serious jihadist crimes since the
Sept. 11 attacks, 87 percent were convicted and got an
average sentence of 14 years, according to a September report
from the center.
Federal officials say the government's zero-tolerance
approach to any conduct touching on terrorism is an important
reason there has been no repeat of Sept. 11. Lengthy
sentences for marginal offenders have been criticized by some
rights advocates as deeply unfair--but they have sent an
unmistakable message to young men drawn to the rhetoric of
violent jihad.
The strategy has also sent scores of Muslim men to federal
prisons.
Special Units
After news reports in 2006 that three men imprisoned in the
1993 World Trade Center bombing had sent letters to a Spanish
terrorist cell, the Bureau of Prisons created two special
wards, called Communication Management Units, or C.M.U.'s.
The units, which opened at federal prisons in Terre Haute,
Ind., in 2006 and Marion, Ill., in 2008, have set off
litigation and controversy, chiefly because critics say they
impose especially restrictive rules on Muslim inmates, who
are in the majority.
The C.M.U.'s? You mean the Muslim Management Units?'' said
Ibrahim Hooper, a spokesman for the Council on American-
Islamic Relations.
The units currently hold about 80 inmates. The rules for
visitors--who are allowed no physical contact with inmates--
and the strict monitoring of mail, e-mail and phone calls are
intended both to prevent inmates from radicalizing others and
to rule out plotting from behind bars.
A Bureau of Prisons spokeswoman, Traci L. Billingsley, said
in an e-mail that the units were not created for any
religious group but were ``necessary to ensure the safety,
security and orderly operation of correctional facilities,
and protection of the public.''
An unintended consequence of creating the C.M.U.'s is a
continuing conflict between Muslim inmates and guards, mainly
over the inmates' demand for collective prayer beyond the
authorized hourlong group prayer on Fridays. The clash is
described in hundreds of pages of court filings in a lawsuit.
In one affidavit, a prison official in Terre Haute describes
``signs of radicalization'' in the unit, saying one inmate's
language showed ``defiance to authority, and a sense of being
incarcerated because of Islam.''
One 2010 written protest obtained by The New York Times,
listing grievances ranging from the no-contact visiting rules
to guards ``mocking, disrespecting and disrupting'' Friday
Prayer, was signed by 17 Muslim prisoners in the Terre Haute
Communication Management Unit. They included members of the
so-called Virginia jihad case of which Mr. Royer was part;
the Lackawanna Six, Buffalo-area Yemeni Americans who
traveled to a Qaeda camp in Afghanistan; Kevin James, who
formed a radical Muslim group in prison and plotted to attack
military facilities in Los Angeles; and John Walker Lindh,
the so-called American Taliban.
An affidavit signed by Mr. Lindh, who is serving 20 years
after admitting to fighting for the Taliban, complained that
a correctional officer greeted male Muslim inmates with
``Good morning, ladies.'' (``No ladies were in the area,''
Mr. Lindh writes.) Prison officials say in court papers that
Mr. Lindh has repeatedly challenged guards and violated
rules.
Unlike those at the Supermax, inmates in the segregated
units have access to e-mail, and some were willing to answer
questions. Mr. Lindh, whose father, Frank Lindh, said his son
believed the news media falsely labeled him a terrorist, was
not. In reply to a reporter's letter requesting an interview,
he sent only a photocopy of the sole of a tennis shoe. Since
shoe bottoms are considered offensive in many cultures, his
answer appeared to be an emphatic no.
There is some evidence that the Bureau of Prisons has
assigned Muslims with no clear terrorist connection to the
C.M.U.'s. Avon Twitty, a Muslim who spent 27 years in prison
for a 1982 street murder, was sent to the Terre Haute unit in
2007. When he challenged the assignment, he was told in
writing that he was a ``member of an international terrorist
organization,'' though no organization was named and there
appears to be no public evidence for the assertion.
Mr. Twitty, working for a home improvement company and
teaching at a Washington mosque since his release in January,
said he believed the real reason was to quash his complaints
about what he believed were miscalculations of time off for
good behavior for numerous inmates. ``They had to shut me
up,'' he said.
Another former inmate at the Marion C.M.U., Andy Stepanian,
an animal rights activist, said a guard once told him he was
``a balancer''--a non-Muslim placed in the unit to rebut
claims of religious bias. Mr. Stepanian said the creation of
the predominantly Muslim units could backfire, adding to the
feeling that Islam is under attack.
``I think it's a fair assessment that these men will leave
with a more intensified belief that the U.S. is at war with
Islam,'' said Mr. Stepanian, 33, who now works for a
Princeton publisher. ``The place reeked of it,'' he said,
describing clashes over restrictions on prayer and some
guards' hostility to Islam.
Yet Mr. Stepanian also said he found the ``family
atmosphere'' and camaraderie of inmates at the unit a welcome
change from the threatening tone of his previous medium-
security prison, where he said prisoners without a gang to
protect them were ``food for the sharks.'' When he arrived at
the C.M.U., he said, he found on his bed a pair of shower
slippers and a bag of non-animal-based food that Muslim
inmates had collected after hearing a vegan was joining the
unit.
He was wary. ``I thought they were trying to indoctrinate
me,'' he said. ``They never tried.'' The consensus of the
inmates, he said, ``was that 9/11 was not Islam.'' ``These
guys were not lunatics,'' he said. ``They wanted to be back
with their families.''
Reflection
It may be too early to judge recidivism for those
imprisoned in terrorism cases after Sept. 11; those who are
already out are mostly defendants whose crimes were less
serious or who cooperated with the authorities. Justice
Department officials and outside experts could identify only
a handful of cases in which released inmates had been
rearrested, a rate of relapse far below that for most federal
inmates or for Guantanamo releases.
For example, Mohammed Mansour Jabarah, a Kuwaiti Canadian
who plotted with Al Qaeda to attack American embassies in
Singapore and Manila, pleaded guilty in 2002 and began to
work as an F.B.I. informant. But F.B.I. agents soon
discovered he was secretly plotting to kill them--and he was
sentenced to life in prison.
Nearly all of these ex-convicts, however, lie low and steer
clear of militancy, often under the watchful eye of family,
mosque and community, lawyers and advocates say. A dozen
former inmates declined to be interviewed, saying that to be
associated publicly with a terrorism case could derail new
jobs and lives. As for Mr. Royer, he is approaching only the
midpoint of his 20-year sentence.
Did he get what he deserved? Chris Heffelfinger, a
terrorism analyst and author of ``Radical Islam in America,''
did a detailed study of the Virginia jihad case, and
concluded that Mr. Royer's sentence was perhaps double what
his crime merited. But he said the prosecution was warranted
and probably prevented at least some of the men Mr. Royer
assisted from joining the Taliban.
``I think a strong law enforcement response to cases like
this is appropriate nine times out of 10,'' Mr. Heffelfinger
said. Mr. Royer himself, in his long presentencing letter to
Judge Leonie M. Brinkema, said he understood why he had been
arrested. ``I realize that the government has a legitimate
interest in protecting the public from terrorism,'' he wrote,
``and that in this post-9/11 environment, it must take all
reasonable precautions.''
Today, Mr. Royer's only battle is to serve out his sentence
in a less restrictive prison nearer his children. In what he
called in a letter ``a heroic sacrifice,'' his parents, Ray
and Nancy Royer, moved from Missouri to Virginia to be close
to their son's children, now aged 8 to 12.
``I found it necessary to be a surrogate father,'' said Ray
Royer, 70, a commercial photographer by trade, in an
interview at the retirement community outside Washington
where he and his wife now live. When his son, who still goes
by Randy in the family, converted to Islam at the age of 18,
his parents did not object. Later, when he headed to Bosnia,
they chalked it up to his active social conscience.
``Religion is a personal thing,'' the elder Mr. Royer said.
``He'd never been in trouble.''
Ray Royer was at his son's Virginia apartment in 2003 when
the F.B.I. knocked at 5 a.m., put him in handcuffs and took
him away. Now, years later, he alternates between defending
his son and expressing dismay at what Randy got himself into.
``He did help his buddies get to L.E.T.,'' or Lashkar-e-
Taiba, the Pakistani militant group later designated as a
terrorist organization. ``He admitted to it. He should pay
the price.'' Still, he added, ``maybe he deserved five years
or so. Not 20.''
Ray Royer sat at his home computer one recent evening,
looking through a folder called ``Randy Pics''--photographs
tracing his son's life from childhood, to fatherhood, to
prison.
``He loved his family,'' the father said of his son. ``Why
would he put this cause ahead of his family? I still don't
really know what happened. I'm still trying to figure it
out.''