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Sen. Graham's Second Round of Questioning at Judge Sotomayor's Nomination Hearings

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Thursday, July 16, 2009; 12:52 PM

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GRAHAM: Thank you, Judge. I guess we do get to talk again.

When you look at the fundamental right aspect of the Second Amendment, you'll be looking at precedent, you will be looking in our history, you will be looking at a lot of things. Hopefully, you've talked to your godchild, who's an NRA member. You can be -- you can assimilate your view of what America is all about when it comes to Second Amendment.

But one thing I want you to know, that Russ Feingold and Lindsey Graham have reached the same conclusion, so that speaks strong of the Second Amendment, because we don't reach the same conclusion a lot. So I just want you to realize that this fundamental right issue of the Second Amendment is very important to people throughout the country, whether you own a gun or not, and it's one of those things that I think, when you look at, you'll find that America, unlike other countries, has a unique relationship to the Second Amendment.

Today, Khalid Sheikh Mohammed is appearing in a military tribunal at Guantanamo Bay, Cuba. He will be appearing before a military judge, and he'll be represented by military lawyers and there will be a military prosecutor.

And the one thing I want to -- to say here, that I've been a judge advocate, a member of the military legal community for well over 25 years. And to America and the world who may be watching this, I have nothing but great admiration and respect for those men and women who serve in our Judge Advocate Corps who will be given the obligation by our nation to render justice against people like Khalid Sheikh Mohammed.

And I just want to say this, also, on this historic day. To those who wonder why we do this, why do we give him a trial? Why are we so concerned about him having his day in court? Why do we give him a lawyer when we know what he would do to our people in his hands?

I would just like to say that it makes us better than him. It makes us stronger for us to give the mastermind of 9/11 his day in court, represented by counsel. And any verdict that comes his way won't be based on prejudice or passion or religious bigotry; it will be based on facts.

Now, let's talk about what this nation is facing. This Congress, Judge, is trying to reauthorize the Military Commission Act, trying to find a way to bring justice to the enemies of this country in a way that will make us better in the eyes of the world and also make us safer here at home. Have you had an opportunity to look at the Boumediene, Hamdan, Hamdi decisions at the Supreme -- Rasul cases?

SOTOMAYOR: I have, sir.

GRAHAM: OK. You will be called upon in the future, if you get on the court, to pass some judgment over the enactments of the Congress. When it comes to civilian criminal law, do you know of any concept in civilian law that would allow someone be held in criminal law indefinitely without trial?

SOTOMAYOR: When you're talking about civilian criminal law, you're talking about...

GRAHAM: Domestic criminal law.

SOTOMAYOR: Domestic criminal prosecutions.

GRAHAM: Right.

SOTOMAYOR: After conviction, defendants are often sentenced...

GRAHAM: I'm talking about you're held in jail without a trial.

SOTOMAYOR: The speedy trial act, and there are constitutional principles that require a speedy trial, so in answer to -- no, there is no...

GRAHAM: That is a correct statement of the law, Judge, in my opinion. You cannot hold someone in domestic criminal settings indefinitely without trial.

Under military law, the law of armed conflict, is there any requirement to try in a court of law every enemy prisoner?

SOTOMAYOR: There, you have an advantage on me.

GRAHAM: Well, I...

SOTOMAYOR: Because I -- I -- I'm sorry.

GRAHAM: Fair enough. The point I'm trying to make, and check if I'm wrong. You'll have some time to do this. As I understand military law, if we, as a nation, one of our airmen is downed in a foreign land, held by an adversary, it's my understanding we can't demand under the Geneva Convention that that airman or American soldier go to a civilian port.

That's not the law. If we have a pilot in the hands of the enemy, there is no requirement of the detaining force to take that airman before a civilian judge. I think that's the law. There is no requirement under military or the law of armed conflict to have civilian judges review the status of our prisoner. That's a right that we do not possess.

The question for the country and the world, if people who operate outside the law of armed conflict that don't wear uniforms, are they going to a better deal than people that play by the rules? And as we discuss these matters, I hope you take into account that there is no requirement to try everyone held as an enemy prisoner, and do you believe that there's a requirement in the law that, as a certain point in time, that a prisoner has to be released -- an enemy prisoner -- just through the passage of time?

SOTOMAYOR: I can only answer that question narrowly. And narrowly because the court's holdings have been narrow in this area. First, military commissions and proceedings under them have been a part of the country's history.

GRAHAM: Right.

SOTOMAYOR: And so there's no question that they are appropriate in certain circumstances.

GRAHAM: And, Judge, they will have to render justice, they will have to meet the standards of who we are. My point to some critics on the right who've objected to my view that we ought to provide more capacity is that whatever the flag flies and whatever courtroom, there's something attached to that flag. So we're going to work hard to create a military commission consistent with the values of this country.

But I just want to let you know that, under traditional military law, it is not required to let someone go who is properly detained as part of the enemy force because of the passage of time. Judge, it would be crazy for us to capture someone, give them adequate due process, independent judicial review, and the judges agree with the military you're part of Al Qaida, you represent a danger, and say at a magic point in time, "Good luck. You can go now."

The people that we're fighting, if some of them are let go, they're going to try to kill us all. And it doesn't make us a better nation to put a burden upon ourselves that no one else has ever accepted.

So what my goal, working with my colleagues, is to have a rational system of justice that will make sure that every detainee has a chance to make the argument, "I'm being improperly held," have a day in court, have a review by an independent judiciary, but we do not take it so far as that we can't keep an Al Qaida member in jail until they die, because some of them deserve to be in jail until they die.

And I want the world to understand that America is not a bad place because we will hold Al Qaida members under a process that is fair, transparent until they die.

My message to those who want to join this organization or are thinking about joining it is that you can get killed if you join and you may wind up dying in jail.

As this country and this Congress comes to grips with how to deal with an enemy that doesn't wear a uniform, that doesn't follow any rules, that would kill everybody they could get their hands on in the name of religion, that not only we focus, Senator Whitehouse, on upholding our values, that we focus on the threat that this country faces in an unprecedented manner.

So, Judge, my last words to you will be: If you get on this court and you look at the Military Commission Act that the Congress is about to pass, when you look at whether or not habeas should be applied to a wartime battle-filled prison, please remember, Judge, that we're not talking about domestic criminals who robbed a liquor store.

We're talking about people who have signed up for a cause that's every bit as dangerous as any enemy this country has ever faced and that this Congress, the voice of the American people who stand for re- election, has a very difficult assignment on its hands.

There are lanes for the executive branch, the judicial brand, and the congressional branch, even in a time of war. Please, Judge, understand that 535 members of Congress cannot be the commander-in- chief and that unelected judges can't run the war.

Thank you, and Godspeed.

SOTOMAYOR: Thank you, Senator.


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