[Congressional Record Volume 156, Number 126 (Monday, September 20, 2010)]
[Senate]
[Pages S7191-S7193]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         DEFENSE AUTHORIZATION

  Mr. GRAHAM. Mr. President, I rise to speak about the upcoming vote 
tomorrow at 2:15 on the Defense authorization bill. I don't know the 
state of play, but it looks as though we will bring to the floor a 
Defense authorization bill without any ability to amend the bill beyond 
a very limited set of amendments. If one is watching the political 
discourse at the moment, they would not realize we are at war in two 
different theaters and that Iran is pursuing a nuclear weapon, and that 
maybe a year from now they will have one. We are talking about domestic 
politics and spending. That is good. But what is equally important is 
national security.
  The Defense authorization bill is coming to the Senate floor 
tomorrow, and we have a don't ask, don't tell policy change within the 
bill that basically says we are going to change the law that would get 
rid of don't ask, don't tell; a policy that has worked very well, that 
we would receive input from the military, and we are going to change 
the law before we ask our men and women in uniform about their opinion. 
That is a huge mistake. We were told last year there would be a study 
among all the services about the effect of don't ask, don't tell on 
recruiting and retention and how it would affect the Armed Forces.
  Before we can get the study done, I think the Congress is going to 
repeal the law because our Democratic friends believe in the fall there 
will be more Republicans. So they are going to try to do it now. We 
should not repeal don't ask, don't tell until we get input from our men 
and women who are serving. That is one thing that is driving this bill.
  The DREAM Act is a piece of legislation that would give legal status 
to young children who were brought into the country illegally, brought 
here as children as illegal immigrants. They have lived most of their 
lives here. It would allow them to go to school under State tuition. It 
would give them legal status. That is an issue that needs to be talked 
about in terms of comprehensive immigration reform, not the Defense 
authorization bill.
  If someone were listening to the debate on the Defense authorization 
bill, they would believe the biggest national security threats we face 
are abortions in military hospitals, the DREAM Act, which has to do 
with citizenship for young illegal immigrants, and don't ask, don't 
tell. We are not talking about what happens if Iran gets a nuclear 
weapon, how we win in Afghanistan, or what we need to do to get Iraq 
right. We are on the 10 yard line, but we are not there yet.
  I have an amendment I would like to offer to the body that would get 
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votes. It says stop reading terrorists their Miranda rights. This is 
not crime we are fighting. We are fighting a war. I don't believe in 
torture; I believe in living within our values. But there is a 
difference between a law enforcement activity and fighting a war.
  When we capture a terrorist who just tried to blow up an airplane 
over Detroit, the last thing we need to do is read them their Miranda 
rights. We should take them off the airplane, turn them over to the 
military, the CIA, and let them be questioned about future attacks 
within our values--not torture but firmly and effectively asked about 
intelligence.
  The moment we read somebody their Miranda rights, we go into the area 
of law enforcement. We are fighting a war, not a crime. I have a bill 
that would change our habeas review process where an enemy prisoner is 
allowed to go to Federal court under Supreme Court holdings, and when 
they go to court, the habeas review doesn't have any uniform standards. 
In one case they let the guy go because the government couldn't prove 
he was a member of al-Qaida on the day he was captured. But they could 
prove without a doubt that he had trained with al-Qaida, swore an oath 
to al-Qaida right after 9/11. The burden should be on the enemy 
combatant to prove they are not a member of al-Qaida once we have 
established they were at some point in time.
  The whole habeas review system needs to be looked at. Our judges are 
crying out for some congressional involvement to give them uniform 
standards.
  We have 48 people in prison at Guantanamo Bay held for years without 
trial. Under the law of war, we can hold an enemy prisoner indefinitely 
without trial because it is part of a war. Under domestic criminal law, 
we have to charge somebody with a crime or let them go. That is a 
dilemma we should not face. If someone is being held as an enemy 
combatant, there ought to be a legal process to make that determination 
with an annual review. I would like to create that legal process. I 
would like to create some rational legal system that recognizes we are 
at war, not fighting a crime. But the only thing I can talk about is 
don't ask, don't tell and the DREAM Act. This is ridiculous.
  We have men and women in harm's way. This Nation is under siege. We 
have not adjusted our laws since 9/11 to be at war within our values. 
The extremes can't be the norm. The choice between waterboarding and 
the Army Field Manual in terms of interrogation should not be the two 
choices. The CIA today is out of the interrogation business. The 
Executive order issued by President Obama denies the CIA the ability to 
use enhanced interrogation techniques that this body passed under the 
Detainee Treatment Act, so the CIA is basically an organization without 
any ability to question someone. If we capture terrorists tomorrow, 
where will we put them? Guantanamo Bay hadn't been used in years. We 
are a nation without a jail. These are big issues that need to be 
addressed in a comprehensive fashion.
  The Defense authorization bill is the natural venue. But under the 
process before the Senate, it is being shut down, and the Defense 
authorization bill is no longer a vehicle to deal with defense matters. 
It is now a political checklist before the November elections. The 
Hispanic community, check; they got a vote on the DREAM Act.
  Mr. McCAIN. Will the Senator yield for a question?
  Mr. GRAHAM. Absolutely.
  Mr. McCAIN. Is it the understanding of the Senator from South 
Carolina that we would be taking up the DREAM Act which, if going 
through the regular process, would go to the Judiciary Committee, and 
the don't ask, don't tell issue and perhaps something about secret 
holds, and then go off of the bill until after the elections in a very 
constrictive timeframe of a lameduck session?
  What is the Senator's view about what the priorities of the 
leadership are? Is it political? Why else would we take up only certain 
amendments and then move off a bill that would then resume possibly for 
some truncated period after the election? What is that all about?
  Mr. GRAHAM. Sherlock Holmes said what is left on the table, when you 
rule everything out, is the answer. It makes no sense to me for us to 
bring the Defense authorization bill to the floor of the Senate at any 
time where the Senator from Arizona and I cannot offer an amendment 
about how we try a terrorist. Should Khalid Sheikh Mohammed be given a 
Federal court right? Should he be put in New York City or any other 
Federal court and tried as a normal criminal, or should he be tried in 
a military court as an enemy combatant?
  These are big issues. Under the construct created--and the reason I 
will vote no when I would normally vote yes--I cannot offer amendments. 
We are going to be voting on the DREAM Act. The DREAM Act is a hot 
topic in the immigration world but not very hot among our troops.
  I have been to Afghanistan and Iraq numerous times. I haven't had one 
soldier or airman or sailor or marine or Coast Guard member ask me 
about the DREAM Act. They want to know are they going to get paid more 
and do they have the tools to win the war. This is politics at its 
worst, may I say.
  As a Republican, I stand here knowing our party has probably abused 
power in the past but not like this. This, to me, is going to a new 
level. We are in two wars. Iran is on the verge of making a 
breakthrough on the nuclear weapons front. We have a Defense bill where 
we can't amend it to talk about the war on terror or about legal 
changes--stop reading terrorists their Miranda rights. We will be 
voting on the DREAM Act which is checking a block. We will be voting on 
don't ask, don't tell in a way in which I think is offensive to the men 
and women who serve.

  The Senator was promised last year, as the ranking member, when he 
asked the question, that our men and women would give us input before 
the administration would move to change don't ask, don't tell. That has 
all been turned upside down. The law is now that it will be repealed 
and we ask later.
  This idea about secret holds in the Senate, that is probably an 
internal matter that needs to be resolved but not on Defense 
authorization. The answer is, this is politics.
  Mr. McCAIN. If we do address the issue on the Defense authorization 
bill or if we were addressing the issue, would it be more appropriate 
to assess the impact on battle effectiveness and morale on the men and 
women serving and then arrive at a decision as to whether that 
legislation or any other legislation, although this is very important 
legislation, should be repealed? Instead, isn't it true the construct 
of the way it went through the Armed Services Committee is that the 
three individuals who support repeal--the President, who made a 
political promise; the Secretary of Defense, whom we admire; and the 
Chairman of the Joint Chiefs of Staff--will make a determination as to 
whether the study has been completed sufficiently to ensure the repeal 
of don't ask, don't tell without difficulty as opposed to taking a 
survey, finding out about the impact on morale and battle readiness and 
then make a determination?
  Also, according to this process set up in the Armed Services 
Committee, the four service chiefs--Army, Navy, Marine Corps, Air 
Force--are left out of the decisionmaking. Why? Because they have 
called for exactly what I was just describing, which is a study to 
assess the impact on morale and effectiveness prior to repeal. In other 
words, in this instance, the fix is in.
  Mr. GRAHAM. The Senator makes a good point. He has been ranking 
member. Obviously, his military record is well known. He was promised--
I took it as a promise--last year that we would not change don't ask, 
don't tell until we got input from those who serve our country in 
uniform. That process is ongoing. But now the law we are expected to 
vote on tomorrow changes don't ask, don't tell. It completely reverses 
that policy but allows us to get input later. That is quite offensive. 
We know there isn't going to be a snowball's chance in hell they are 
actually going to listen to what the men and women say because the 
whole goal is to get that vote for a specific constituency.
  Special interest groups are dominating this bill unlike any time 
before. We have changed the law about abortions in military hospitals, 
we have the DREAM Act which has zero to do with

[[Page S7193]]

national defense, and now we have a major change in don't ask, don't 
tell in a way that is contrary.
  I spoke to the incoming Commandant of the Marine Corps who will be up 
for a vote soon. He said he was very concerned about making this change 
now. We are in two wars. There is a lot going on in the world. This is 
a major social change. He thinks it would be smart to listen to the 
marines and other servicemembers before we make the change. If the bill 
becomes law, we will not have done that. That is a huge mistake.
  I thank the Senator from Arizona for his leadership to make sure the 
men and women in uniform are heard from before Congress acts.
  Mr. McCAIN. One more question: The issue is the proposal to include 
the so-called DREAM Act. I think every Member of Congress, every 
American citizen has some sympathy for individuals who were brought to 
this country without making the decision to do so, not forgetting that 
the people who brought them to this country were breaking our laws when 
they did so. Isn't it also true that if we address the DREAM Act or 
other parts of comprehensive immigration reform before securing the 
borders, then 1, 2, 5, 10 years from now we will be faced with another 
generation of young people who were brought here against their will who 
have a compelling story to tell?
  In other words, isn't the moral of this story--to harken back to the 
1980s--under our beloved Ronald Reagan we gave amnesty to a couple 
million people, and they said they would secure the borders, and we 
ended up with 12 million people who were here illegally? So isn't that 
the situation we all want to remedy, but we want to make sure we do not 
have to remedy it again?
  Mr. GRAHAM. I say to the Senator, his point is well taken. If the 
DREAM Act is not considered part of comprehensive immigration reform, 
it will be a huge mistake. The reason we have 12 million people here 
illegally in our country is because you can get to America pretty 
easily illegally, obviously. You can walk across the street in some 
places. So you have to control the border.
  Visa overstays are 40 percent of the illegal immigration problem. If 
you do not do that, then you are never going to stop the third wave of 
illegal immigration. You have to deal with why they come: to get jobs. 
We need better employer verification. We need a temporary worker 
program so employers can hire people in a win-win situation, where 
people from other countries can come here and work, make some money, 
and go back home. It helps us; it helps them. That is what you need to 
do with immigration, comprehensive reform.
  The DREAM Act is about November politics. It is an emotional topic 
that if you did it in isolation would be undercutting comprehensive 
reform. Certainly it has nothing to do with defense authorization. It 
is trying to check a block.
  For the people who came to my office last week who were literally 
praying that I would vote for the DREAM Act in the Defense 
authorization bill, you are certainly being used and abused, in my 
view. This is an emotional topic, and at the end of the day, all I can 
tell you is, this is not a way to change immigration. This is not 
comprehensive immigration reform. This is not good defense policy. This 
is just sheer, raw politics at a time when we could do better and 
should do better.
  I yield the floor.

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