SENATOR LINDSEY GRAHAM: Thank you all very much. Uh… I always wondered how you spell uh. I am honored to be here. Uh… (Laughter) That’s pretty cool. For all the math majors, I made 300 on the SAT, so everything fascinates me about science. That’s why I went into politics. When you make 800 on the SAT that’s the only thing left to you. We got any South Carolina residents here? All right. Yeah. Well, go voters. (Laughter) What a kind introduction, and how did I get here? One, I was asked by your First Lady, who is a first class person. Mary, where you at? How about a round of applause for the First Lady of North Carolina.(Applause)

She called me up several weeks ago, I guess maybe a couple of months ago, and pitching this idea of me coming here and talking about the big debate that we are having in Washington about how you treat enemy combatants, and I was thinking, “Why in the world do I want to go to North Carolina State?” One, you beat us in football and basketball and every other sport pretty routinely, but, you know, being so busy…. But she was such, so committed to this series and to this issue that she sold me, and I am very lucky to have been invited and I have enjoyed it. And I would like to just get right to it.

Number one, being a Senator from South Carolina is a wonderful experience. We change every 50 years whether we need to or not. (Laughter) Anyone heard of Strom Thurmond? (Laughter) Well, he’s done all the other wars. I guess I got the rest of them to come. But he was elected in 19—does anybody know when Senator Thurmond was elected? Eighteen… (Laughter) No, that’s when he went to Clemson. It was in 1954. I was born in ’55. The job doesn’t come open a lot so I am glad to have it. But I am serving in a body of 100 big egos. I really enjoy your two Senators from North Carolina. Richard Burr and I were classmates in the House in ’94 and Ms. Dole is another class person. And we’ve had a lot of tough issues to deal with. And I’m going to make this audience participation if I can.

Okay, September 11, 2001. Here’s the question. You’ve got to choose; you can’t say both. Was the action on September 11, 2001 a crime or an act of war? And you can’t do both; you’ve got to choose. Why? Because I said so. How many people believe that the attack of September 11, 2001 was an act of war? Okay. How many people believe it was a crime? Okay. Now I said you had to choose. But that is the spread I see everywhere. And that is a fundamental question we must ask and answer as a country. I believe it was an act of war. And the real difficult thing about saying that is that when I point—when you ask me, “Who’s the enemy,” well, the enemy is an idea. The enemy doesn’t wear a uniform; they don’t have a capital, they don’t have a navy to sink or an air force to shoot down or an army to conquer. So we are at war with a concept, which is different than every other war. But it is a war nonetheless to me. And the people who have joined this cause are religiously motivated, in my opinion; it’s a religious war. And the root cause of it is not poverty, but poverty plays a part in it. The root cause of it is not the Palestinian/Israeli problem; that’s a part of it. The main cause of this war, in my opinion, is that there is a few people in the Islamic/Muslim world that have adopted a strain of religion that is not representative of the religion as whole and they attack anything and everything and anybody that’s different.

It’s not the first time the world has experienced that. You know, Adolph Hitler had a different view of mankind. There was the Aryan race and there was everybody else, and if you were different there was no place for you in Nazi Germany. And if he’d conquered the world, there’d be no place for you in the world. The Japanese Empire of World War II was very racially superior in their thinking, so this is not the first time we have been fighting a group of people who have a very low opinion of folks who are different. And this war started long before 2001; we just didn’t know it. The first time the World Trade Centers were attacked in 1993 it was by an off-shoot of Al Qaeda. Al Qaeda wasn’t well known then, but the motivation was the same, and that was to attack our country because of our beliefs and the fact that we did not share the terrorist view of the world and religion.

Everything before 2001, September 11 was treated as a crime. Any time we captured someone that was involved in a terrorist activity, whether it was bombing the World Trade Center, an embassy or some other US ship, the Cole, the people involved were taken to federal court and tried as criminals. We looked at the war as a criminal enterprise where we were fighting a group of loosely associated people who were acting in a criminal manner. After September 11, right or wrong, President Bush basically said we were in a state of war. And the authorization to use force to expel the Taliban from Afghanistan was the first shot in this war. How many people believe it was a good idea to dispel the Taliban from Afghanistan? How many people believe it was a good idea to go into Iraq? How many people believe it was a bad idea? All right. There we go. We got two fronts in this war. One supported and one not. And that makes this war different.

The Japanese and German fronts in World War II were supported equally by the American public. But we have two engagements where people are at risk, American service members are at risk. The public is strongly behind one and very divided regarding the other. So that makes this war different. Now what brought me here today is my effort along with my colleagues and the administration and others to try to figure out how to create legal infrastructure to fight the war on terror. If you believe as I do we are at war, then the body of law to be applied to the conflict is the law of armed conflict, not domestic criminal law. Let me in about five minutes walk you through how the system works that we have come up with. And I think it’s ironic that the day that I come here to talk with you about this is the very day the bill was signed into law by President Bush. And I have before me a New York Times editorial that says, “Guilty Until Confirmed Guilty.” It says that, “when President Bush ran the bill on military commissions through the Congress, the Republicans crowed about creating a process that would be tough on terrorists but preserve essential principals of justice. ‘America can be proud,’ said Senator Lindsey Graham, one of the bill’s architects. Unfortunately, Mr. Graham was wrong.” Now that’s the New York Times. Anyone heard of the National Review? This is the cover, same week. “Wrong. Senator Lindsey Graham’s Folly.” So if I made both of them mad, I think I got it right. (Laughter)

Here’s what I’ve been operating—the premise I’ve been operating under—that if you join Al Qaeda or an affiliated group, then you have taken up arms against the United States and you are a warrior, you are a soldier, you are not a common criminal. And what’s due you? Well, you’re due a fight. It’s time for us to fight you because you have taken up arms against us. It’s time for us to fight you.

But if you get captured what happens? Then it becomes about us, not you. You know, every pedophile in America gets a trial with a lawyer. Every murderer in America gets a trial with a lawyer. Under the law of armed conflict, every person charged with a war crime traditionally has gotten a trial with a lawyer. The idea that I wanted to make sure that I wanted to make sure that the law of armed conflict applied in a meaningful way to this war has created a bunch of political grief for me at home, because people don’t understand. What is it with Senator Graham? Why does he care about the Geneva Conventions applying to a group of people who cut our heads off? Why is he worried about making sure the accused can see the evidence before they are convicted when the accused would be the first person, if they could, would kill us all? Why? You know why I worry about that?

Because it’s about us, not them. Justice and revenge are two different things, ladies and gentlemen. Two different things. Our enemy, if they capture one of our troops, we know what happens. There’s torture, then there’s summary execution. The motive of the enemy, when they capture an American or some civilian who is part of the coalition forces in Iraq, is to terrorize, through barbaric activity, good people, to try to convince the good people, “Leave us alone or give us our way because if you don’t this is what happens to you.” What is our goal when we capture an enemy prisoner? It’s not revenge; it’s justice. It’s to show the world the difference between us and the enemy. This is a war like every other war in this regard. The high ground is key to winning. In normal combat operations, every combatant wants to seize the high ground because it gives you a military advantage over your enemy. Now high ground here is the moral high ground. That means you will do things differently than your enemy or suffer the consequences, I believe.

And the consequences of doing it like your enemy are devastating for this country. Abu Ghraib. How many people remember Abu Ghraib? Was a huge setback in the war on terror. Why? Because Americans were engaged in activity normally associated with those that we fight, and it gave us a black eye in the eyes of those people on the sidelines determining, still waiting who to pick and which side to choose. There is a consequence, ladies and gentlemen, of getting it wrong, in two ways. Not having the infrastructure to protect yourself from an enemy that knows no boundaries. And the other consequence is putting together a work product based on revenge, not your own values. Both of them need to be taken off the table.

If you are captured, and we believe you to be an enemy combatant, what happens to you is as follows. You’ll be eventually sent to Guantanamo Bay. A three member military commission called a Combat Status Review Tribunal will evaluate whether or not the evidence in question justifies the determination of the person in front of them being labeled an enemy unlawful combatant. The definition we use comes out of the Geneva Convention itself for the most part. The tribunal is mirrored after Article V of the Geneva Convention that requires every country to set up a competent tribunal to determine status. If there is a question of a person’s status, whether they’re a POW, enemy combatant or civilian, each country who signs the convention must set up a tribunal system to make that determination. We have such a system. It’s called a Combat Status Review Tribunal. That decision is a military decision. Article V competent tribunals all over the world are administered by the military of the host country, not judges. So the first decision we have to make as a nation, if we capture someone and we believe them to be an enemy combatant, who makes the decision as to whether or not they are in fact an enemy combatant?

Here’s where the Senator from South Carolina comes down. That is a military decision. And federal judges are ill equipped to make that decision. Federal judges are not trained in combat activity. They are not trained to manage the battlefield. Every nation who signs the Geneva Convention has a competent tribunal to make such decisions, and that tribunal is run by military people who are experts in the field.

One of the first big contentions in this bill, and the reason the New York Times is mad at me, is because I have chosen as a Senator with some military experience, to change the way the current system works. The Supreme Court allowed every prisoner at Guantanamo Bay to file a habeas petition, a habeas corpus petition in federal court challenging their detention. The reason they did that, ladies and gentlemen, is because the administration, when they first set up Guantanamo Bay, had no independent decision maker available to determine combat status. And I am going to be a bit harsh here to the Republicans—you can close your ears if you’d like. One of the fundamental problems we have made after 9-11 is that the executive branch, the Bush administration, has taken a view that the Commander in Chief, Article II under the Constitution, Powers of the Commander in Chief, trump every other branch. And they believed that they could authorize a military commission through executive order, that they could set up detention and interrogation policies through executive order without Congressional approval or Court oversight. They argued that Guantanamo Bay, Cuba was outside the jurisdiction of the United States, therefore federal courts could not intervene. They lost that case.

The Supreme Court said that Guantanamo Bay, due to its long-term lease, is part of the United States and that our law applies there and part of our law is a habeas corpus petition unless Congress says otherwise. Because we were hardheaded and we didn’t sit down and work between the Executive and Legislative branch to deal with this problem, the Courts intervened. And the Courts filled the void. The Courts were not going to allow people at Guantanamo Bay to be there forever without some legal protections. For two-and-a-half years I’ve been arguing it would be better for the country at large if the legislative branch and the executive branch sat down and worked through this together. Well, as of 9:30 this morning we accomplished that goal. After two-and-a-half years of fussing and fighting, after three losses at the Supreme Court level, we have now accomplished that goal.

The bill replaces the habeas petition created and it allows every detainee not a right to go to federal court to challenge their status or the judge will determine who an enemy combatant is, not the military. It allows every enemy combatant housed at Guantanamo Bay a chance to appeal their decision to the D.C. Circuit Court of Appeals after the military has acted. So under the legislation, for the first time in any war I’ve ever known, an enemy prisoner has access to domestic court. The German and the Japanese prisoners never had access to federal court to challenge their detention. That’s never been done before and there’s a reason. You don’t allow enemy prisoners to go to court and sue the troops that they’re fighting. But we have accommodated in this war due process unlike any other war, for a reason.

I can’t tell you when the war is going to be over. There is no ceremony – surrender ceremony to be signed here. This war could go on for decades. So we’ve got to do things differently and what we’ve chose to do differently is, we’re allowing every person at Guantanamo Bay a chance to appeal their enemy combatant status determination to the D.C. Circuit Court of Appeals, the second highest court in the land. The Court will look at two things. Was the process in place, the combat status review tribunals, constitutionally compliant? Do they meet the due process requirements of the Constitution, allowing a person to meaningfully challenge their detention? Second, does the evidence in that person’s case, does it rise to the level to justify the decision by the military to say this person is an enemy combatant? Every detainee will have their day in federal court. But what’s different by the passage of this legislation is not detainees cannot go to federal district court and sue our own troops for everything they could think of, from medial malpractice to lack of exercise to better food, better DVD access.

There were 420 lawsuits coming out of Guantanamo Bay. They were about the shut the place down. We’re at war. I believe in due process but I also believe in protecting our national interest. Detainees have their day in court but it’s a limited day in court with a limited review, consistent with being at war. Only 20 percent of the people at Guantanamo Bay, ladies and gentlemen, will ever go to a military commission trial. There are about four hundred and something people. About twenty percent or less will be charged with a war crime. This idea you’ve got to try them or let them go is a false choice in a time of war. The German and Japanese prisoners were let go when the war was over, not before. It is foolish to let someone go who is committed to going back to the right and killing you.
Here’s what happens at Guantanamo Bay. Every year there’s an annual review of every file at Guantanamo Bay. They annual review board looks at three things. Is there an intelligence value still to be gained by holding this person at Guantanamo Bay? Is the person still an enemy combatant; has there been any change in status? And the third decision is, do they present a threat to the United States of America. That, ladies and gentlemen, is a military decision. Twelve people have been released using those criteria and have gone back to the fight. Eight of them have been killed on the battlefield. Over 300 have been released to different places in this world. Some have been misidentified. I am here to tell you that there are some people that have been sent to Guantanamo Bay who, upon a second look, shouldn’t have been sent there.

We have mistakes both ways. We have let people go who want to kill us and we have kept people there who should never have been sent there to begin with. Every system has flaws. Every jury trial makes somebody happy and somebody sad. What I’m trying to do is create infrastructure based on sound principles that reflect our values and protect ourselves from a vicious enemy without boundaries. So when we do engage in a military commission trial of an enemy combatant, I will repeat again, it is about us. And what got me crossways with the Bush administration is that they wanted a trial procedure where you could give to the jury classified information and not share it with the accused and the jury could use that information to find someone guilty. The day we do that we set a precedent for future wars.

This will not be the last war we fight. How many people would feel comfortable that American CIA operatives or Special Forces solders not in uniform being tried in Iran where the prosecutor gave to the jury or their judge a file marked secret, they convict a soldier and never tell him what he did. I’d go crazy! I’d stand on the floor of the Senate until I couldn’t speak any more, urge the UN and everybody else that would listen, to stop that trial because it violates common article three of the Geneva Conventions.
We’re at war with an enemy that knows no boundaries. That is no excuse to change who we are. If we change who America is in trying to win this war, we’re going to lose. And we’re not going to lose because the stakes are too high.

In two months or less there will be trials at Guantanamo Bay that will be open to the public. Every accused will have a military lawyer and a civilian lawyer will be available if they want one. The jury will be made up of military officers. For over 20 years I’ve been a military lawyer. I’ve been a prosecutor, a defense attorney and a judge. I have never been more proud of anything I’ve done than to be an Air Force Judge Advocate. I’ve never been more proud of the military legal community than I have in the last two or three months because they, to a person, have stood up and said, “This trial procedure we are using is going to get us in trouble and will come back to haunt us.” These are general and admirals who risked their own career to say things that needed to be said. These will be the people who will run these trials. The defense attorneys will be zealous and they will go as far as they can go under the law to represent their client. The prosecutor will be tough and ethical. The judge will call it as he or she sees it and the jury is honor- and duty-bound to render justice. And if the government fails to prove their case, so be it.

We’re about to show the world, in a couple of months, how we’re different. And what goes on at Guantanamo Bay will be an exercise in democracy to its fullest. You will be part of a country that has chosen to give rights and privileges to a group of people who would give you none. That makes us stronger, not weaker. Ultimately the Supreme Court will look at our work product that was signed into law today. I will not be satisfied until the Court looks at the work product and says it’s constitutional. If the Court rejects our work product I will humbly say I was wrong and will start over again and will try to get it right, because they are the supreme law of the land. If they affirm our work product I will have a small amount of pride in the role I played. But more importantly, I will be proud of our country because finally, after five years of fussing and fighting and questioning each other’s patriotism, we’ve come up with some legal infrastructure that I think will make us stronger and our enemy weaker.

The people who have criticized the legislation, I respect their right to criticize. I’m just here to tell you, as a senator from South Carolina in his first term, who has been a military lawyer for 20 years, that the work product, from my point of view, wasn’t a Republican solution to the war on terror. It wasn’t a Democratic solution to our legal infrastructure needs on the war on terror. It was an American solution. The president got some of what he wanted, and he had to give ground in areas that he wished he had not had to give ground. I gave in some areas that I wish I did not have to give. It’s called democracy. And the day that you have a system where powerful people are not required to give, is a dangerous day for America. God Bless.