The Honorable Russ Feingold

United States Senator
Wisconsin
June 15, 2005

Statement of U.S. Senator Russ Feingold
At the Senate Judiciary Committee Hearing on "Detainees"

June 15, 2005

Mr. Chairman, thank you for holding this hearing. I believe that the longterm detention of so-called "enemy combatants" at Guantanamo Bay is among the most important national security and civil liberties issues facing us today. I have been concerned for a long time that Congress has not done as much oversight as it should about how the facility at Guantanamo Bay is being operated and whether international and domestic laws are being complied with, so I very much appreciate the opportunity to hear from these witnesses today.

The rule of law not only maintains order, it differentiates civilized from uncivilized societies. Our founding fathers were responsible for one of the most important sets of laws in human history when they drafted our Constitution and Bill of Rights. After the devastating world wars of the last century, the world's nations came together and adopted laws governing war and peace to ensure stability and limit conflict in the future. The U.S. has relied on and abided by these laws, including the Geneva Conventions, as it has engaged in armed conflict around the world in the sixty years since the end of World War II.

Unfortunately, we have witnessed again and again in the past few years this Administration trampling on these laws and rules that have served our nation and the world quite well for so long. In doing so, I fear the Administration is putting American lives at risk. These laws protect our men and women in uniform. Some have argued that those laws no longer apply, or at least not in the same way, in the campaign against terror. I believe that we can fight terrorism while remaining true to American values and principles, however. When the Administration argues that it need not comply with these laws, American soldiers are put at risk. And every time new evidence of abuse at Guantanamo Bay or other prisons is revealed, we lose another battle in the effort to promote democracy and human rights in the Arab and Muslim world - and, I fear, we give the terrorists another recruiting tool.

Mr. Chairman, the situation at Guantanamo Bay has become so troubling and so counter-productive that a growing chorus of people is calling for that facility to be shut down entirely. It may be that the word "Guantanamo" has become so synonymous in the Arab and Muslim world with American abuses, that we must close the prison down. But we did not have to reach this point. If this Administration had not argued that these detainees were not subject to the Geneva Conventions, if this Administration had not argued that these detainees had no right to counsel or to make their case in federal court, if this Administration had not insisted on trying the few of these detainees who are charged with crimes in tribunals lacking basic due process, if this Administration had not sought to exploit every ambiguity in the law to justify its unprecedented actions, we would not be where we are today. We would not be talking about closing Guantanamo.

So when we talk about closing down this facility, let us remember that the problem is not just Guantanamo. The problem is an Administration that thinks it does not have to play by the rules. Closing down Guantanamo Bay will do us no good if this Administration does not change its attitude. Wherever these detainees are held, they must be accorded basic due process rights and treated humanely, pursuant to internationally formulated and universally respected standards. Doing so is not an expression of weakness. It is an expression of our fundamental strength as a nation, our faith in the values that have guided this nation since its founding.

The brightest spot in this mess the Administration has created has been our federal courts. In several recent cases, the federal courts have weighed in and sent a clear message to the President: He cannot fight terrorism by throwing the rule of law and the Constitution out the window.

Last summer, the Supreme Court ruled decisively that U.S. citizens cannot be detained indefinitely, without access to counsel or judicial review. In a separate case decided the same day, the Supreme Court rebuked the Administration and ruled that terror suspects detained at Guantanamo Bay could challenge their indefinite detention in federal court. In other words, the Supreme Court clearly and authoritatively ruled that the President does not have a "blank check" to wage the fight against terrorism.

More recently, the lower courts also have affirmed the need to abide by the Constitution. In November, a federal judge ruled that the President had overstepped his constitutional powers and improperly ignored the Geneva Conventions in creating special military commissions to try the few individuals detained at Guantanamo Bay who have been charged with crimes. And just this past February, another federal court ruled that the procedures set up by the Defense Department to assess whether detainees are "enemy combatants" subject to indefinite detention violated the Fifth Amendment.

Fighting terrorism is the greatest challenge facing us today. But we do not help ourselves meet this threat by arbitrarily deciding to follow some laws while ignoring others. The Administration bears the burden of showing Congress and the American people why existing laws and procedures, including the Geneva Conventions and the Uniform Code of Military Justice, are inadequate. Only if this burden has been met should we begin a discussion of what changes, if any, are needed to protect the American people from terrorism while staying true to our values.