The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“FAILURE IN THE JUSTICE SYSTEM” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S10951-S10953 on Oct. 30, 2009.
The publication is reproduced in full below:
FAILURE IN THE JUSTICE SYSTEM
Mr. SESSIONS. Mr. President, I rise to discuss a serious failure in our justice system, something we are going to need to talk and think about. It has been talked about before, but the matter drives home the issue in a specific way.
Ali Saleh Kahlah al-Marri--al-Marri, as he is now usually referred to--is a terrorist who entered the country under the instructions of 9/
11 mastermind Khalid Shaikh Mohammed. While here, he researched hazardous chemicals and his potential targets included dams and reservoirs. He was apprehended in 2001. In 2003, he was held as an enemy combatant under the orders of the Bush administration. He was seen at that time as an individual at war with the United States since he was associated with al-Qaida and al-Qaida had declared war on the United States.
The Nation made a firm decision that these kinds of cases should not be handled in the normal course of prosecutions of crimes but should be treated under the historic and well-established rules of war for these individuals.
The Obama administration has moved him into a civilian justice system and decided they would try him for this offense as a crime. He ended up pleading guilty, which seemed dubious as a plea by the Department of Justice, but they chose to allow him to plead guilty to the charge of conspiring to support terrorists. He was sentenced yesterday. How much time will this terrorist be spending in jail? How long before he is released and then could reassume his mission of waging jihad against America? Five years. That is right, 5 years. The judge in Peoria, IL, sentenced him to only 8 years and gave him credit for time served in military prisons, apparently, and he is expected to be released in 5 years. This is an outrage. Our brave soldiers and intelligence agents risk their lives every day to find and capture these terrorists.
I received a phone call from a friend I have known for a number of years whose son is in Iraq now as a marine. He wants to talk about what we are doing there. We have American soldiers, some of the finest people this country has ever produced, at risk at this moment fighting against these kinds of terrorists who are committed to attacking us. In recent days, we have seen plot after plot, fortunately being frustrated by good investigative agents. We have investigators and our military out there at risk today. We capture terrorists. What do we do? Do we put them in jail a few years and then let them go?
Not only did the Justice Department pursue a lesser charge against al-Marri, but the judge only sentenced him to 8 of the possible 15 years he could have served on that charge.
Without doubt, as a former Federal prosecutor--and the Presiding Officer is a former U.S. attorney--there are real procedures every American is provided under our legal system for trials in Federal courts. We are proud of those, and we adhere to them. But there is a danger of trying people who are at war with us, who want to destroy us and the government this Nation possesses, in civilian courts. They are not common criminals; they are members of global terror networks, bent on waging war against America, its allies, and our vital interests. Yet the administration has announced plans to begin trying more and more terrorists and enemy combatants through our normal Federal criminal justice system.
Our court system was never designed to prosecute terrorists and enemy combatants and soldiers attacking this country. Such trials turn the courthouse and the jury system into targets. They rely on evidence that may not be admissible, evidence seized by the military in defending the country. That evidence may not be admissible in court under our normal rules of evidence. They risk bringing confidential information to public light, including the identity of informants or even undercover agents. And it means, ultimately, that more terrorists bent on taking innocent American lives will be released to return to the battlefield--
abroad or right here in cities and towns across America. I ask, is this a risk we can afford? Is it a risk we are required to take under our laws and Constitution?
The proper setting for these prosecutions is military commissions, military tribunals. These terrorists are the most violent and dangerous killers in the world. They are not criminals; they are on an unswerving mission to spill American blood. I wish it were not so. Overwhelmingly, the Muslim community does not believe in this kind of activity. It is only a small group, but it is a very effective group because they have learned how to utilize modern capabilities, such as airplanes and poisons and explosives, to wreak untold damage, especially when they are prepared to martyr themselves.
We need to use all lawful resources at our disposal to combat and dismantle this threat. We cannot and we must not allow more enemy combatants like Ali Kahlah to use our justice system against us. We cannot and we must not be naive and think our good will and kindness will shield us from these kinds of forces, this kind of evil in the world. We cannot and we must not forget the danger we face or the imperative to use every last resource at our disposal to keep this country, its liberties, and its people safe.
There was an article in the Washington Post of today that raises an important issue about sentencing. It quotes Kirk Lippold, the commander of the USS Cole, where 17 of our sailors were murdered by an Islamic attack in the Persian Gulf in Yemen in the harbor in the year 2000. This is what he said about the verdict: The sentence was ``appalling'' and ``grossly inadequate.'' He said that if prosecutors move other defendants from the military prison at Guantanamo Bay, Cuba, for trials in regular U.S. Federal courts, it could ``create an era of unacceptable compromise to our national security.''
I have a vivid memory from several years ago, maybe 5 or 6, 7 years ago, of being at the commissioning of the Ronald Reagan aircraft carrier at Newport News as a member of the Armed Services Committee, walking out of that ceremony, not too long after the Cole was attacked and those sailors killed. And a sailor screamed out--and the hair still stands on my neck when I think about it--``Remember the Cole.''
The United States has a responsibility to defend our men and women abroad. U.S. warships ought to be able to move in peaceful commerce around the world and not be subject to attack. When they are attacked, it is the responsibility of this Nation to act against it. Commander Lippold has expressed some concern in times past about how that has been handled.
They also quote Robert Chesney, a law professor at the University of Texas at Austin who studies sentencing in terrorism cases. He said that the Marri sentence ``probably comes with the territory in switching somebody out of military detention and into the criminal justice system.'' It comes with the territory. That is exactly right. That is what a number of us have been saying for some time, why this is not a wise policy.
The article goes on to say:
The case is one of the few concrete examples, Chesney said, of the ongoing debate over whether the U.S. criminal justice system is ``up to the task'' of trying and convicting terrorist suspects.
I absolutely agree with that. It is not equipped to do it. The American criminal justice system assumes that a person commits some sort of crime. They give a certain sentence, and there is a reasonable prospect that they won't commit crimes again. But when we are dealing with people who are committed to martyrdom, if we are dealing with a person who has made a lifetime oath to fight to the death to destroy Americans and who has the capability to kill not only one person in some sort of assault or fight but thousands of Americans and who is at war with the United States, we need to utilize the great and historic principles of military commissions to try them as we always have. We didn't try German prisoners of war in Federal courts. We didn't try Japanese or North Vietnamese or North Koreans in Federal court when they were captured. They were treated as they were, as prisoners of war, and detained as long as they represented a threat to the United States. That is the way this should be. Military commissions are referred to in the Constitution.
In World War II, in the famous case of Ex parte Quirin--Franklin Roosevelt was President--a submarine appeared off the Atlantic Coast, and a group of people got out who were saboteurs. They were sent by Nazi Germany to blow up places in the United States, kill Americans, and sabotage our war efforts.
That was a serious matter. They were caught. Were they tried as common criminals? No, they were not. How were they tried? They were tried by a military commission. They were tried under the laws of war that have been longstanding for quite a number of years. They were convicted within a matter of a few months, and they were executed because they were clearly in violation of the laws of warfare. They were not normal prisoners of war acting in uniform. They were acting contrary to the Geneva Conventions, contrary to the rules of warfare. They were acting in a way--they did not wear uniforms. They did not go openly about. They were targeting innocent civilians. So they violated the rules of war. They were tried and executed. The Supreme Court upheld that. This is what other nations do also. They do not try people with whom they are at war in civilian courts.
I am worried about this. I do not think it is a little bitty matter. I do not think this is the first time we are going to see this or the only time we are going to see it. I think we are going to see it more and more often. I call it to the attention of my colleagues.
One other thing I think we should point out: that unclassified declaration by Jeffrey N. Rapp, the Director of the Joint Intelligence Task Force for Combating Terrorism. This is what he said about this matter:
Multiple intelligence sources confirm that Al-Marri is an al Qaeda ``sleeper'' agent sent to the United States for the purpose of engaging in and facilitating terrorist activities subsequent to September 11, 2001, and exploring ways to hack into the computer systems of U.S. banks and otherwise disrupt the U.S. financial system. Prior to arriving in the United States on September 10, 2001--
Not the 11th: September 10, 2001--
Al-Marri was trained at an al-Qaida terror camp. He met personally with Osama bin Laden and other known al Qaeda members and volunteered for a martyr mission or to do anything else that al Qaeda requested. Al-Marri was assisted in his al Qaeda assignment to the United States by known al Qaeda members and traveled to the United States with money provided for him by al Qaeda. Al-Marri currently possesses information of high intelligence value, including information about personnel and activities of al Qaeda.
He goes on to say:
Al-Marri was trained by al Qaeda in the use of poisons. In the hard drive of Al-Marri's laptop, FBI agents discovered a folder entitled ``chem,'' which contained bookmarked Internet sites of industrial chemical distributors. Analysis revealed that Al-Marri had visited a number of sites related to the manufacture, use and procurement of hydrogen cyanide.
So I do not think this is an itty-bitty matter. We have normal drug dealers going to jail every day for 10, 12, 15 years. We have somebody who is plotting to kill American citizens, who came here the day before 9/11, is part of an al-Qaida plot--and he gets 5 years? I think it is unacceptable, and it is also an indication to us in Congress we cannot proceed further with this idea that we are going to try terrorists in Federal criminal courts.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
____________________
