[Congressional Record Volume 157, Number 181 (Tuesday, November 29, 2011)]
[Senate]
[Pages S7941-S7943]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  PRESERVING CONSTITUTIONAL LIBERTIES

  Mr. PAUL. Mr. President, James Madison, the father of the 
Constitution, warned:

       The means of defense against foreign danger historically 
     have become instruments of tyranny at home.

  Abraham Lincoln had similar thoughts saying:

       America will never be destroyed from the outside. If we 
     falter, and lose our freedoms, it will be because we 
     destroyed ourselves.

  During war there has always been a struggle to preserve 
constitutional liberties. During the Civil War, the right of habeas 
corpus was suspended. Newspapers were closed down. Fortunately, these 
rights were restored after the war. The discussion now to suspend 
certain rights of due process is especially worrisome given that we are 
engaged in a war that appears to have no end. Rights given up now 
cannot be expected to return.
  So we do well to contemplate the diminishment of due process knowing 
that these rights we give up now may never be restored. My well-
intentioned colleagues' admonitions in defending provisions of this 
Defense bill say we should give up certain rights: the right to due 
process. Their legislation would arm the military with the authority to 
detain indefinitely, without due process or trial, people suspected of 
association with terrorism. These would include American citizens 
apprehended on American soil.
  I want to repeat that. We are talking about people who are merely 
suspected of terrorism or suspected of committing a crime and have been 
judged by no court. We are talking about American citizens who could be 
taken from the United States and sent to a camp at Guantanamo Bay and 
held indefinitely.
  This should be alarming to everyone watching this proceeding today 
because it puts every single American citizen at risk. There is one 
thing and one thing only that is protecting American citizens, and that 
is our Constitution, the checks we put on government power. Should we 
err today and remove some of the most important checks on State power 
in the name of fighting terrorism, well, then, the terrorists have won.
  Detaining citizens without a court trial is not American. In fact, 
this alarming arbitrary power is reminiscent of what Egypt did with its 
permanent emergency law. This permanent emergency law allowed them to 
detain their own citizens without a court trial. Egyptians became so 
alarmed at that last spring that they overthrew their government.
  Recently, Justice Scalia affirmed this idea in his dissent in the 
Hamdi case saying:

       Where the government accuses a citizen of waging war 
     against it, our constitutional tradition has been to 
     prosecute him in Federal court for treason or another crime.

  Scalia concluded by saying:

       The very core of liberty secured by our Anglo Saxon system 
     of separated powers has been freedom from indefinite 
     imprisonment at the will of the Executive.

  Justice Scalia was, as he often does, following the wisdom of our 
Founding Fathers. As Franklin wisely warned:

       These who give up their liberty for security may wind up 
     with neither.

  Really, what security does this indefinite detention of Americans 
give us? The first and flawed premise, both here and in the badly 
misnamed PATRIOT Act, is that our pre-9/11 police powers were 
insufficient to stop terrorism. This is simply not borne out by the 
facts. Congress long ago made it a crime to provide or conspire to 
provide material assistance to al-Qaida or other foreign terrorist 
organizations.
  Material assistance includes virtually anything of value: legal, 
political advice, education, books, newspapers, lodging, or otherwise. 
The Supreme Court sustained the constitutionality of this sweeping 
prohibition. We have laws on the books that can prosecute terrorists 
before they commit acts of terrorism. Al-Qaida adherents may be 
detained, prosecuted, and convicted for conspiring to violate the 
material assistance prohibition. In fact, we have already done this.
  Jose Padilla, for instance, was convicted and sentenced to 17 years 
in prison for conspiring to provide material assistance to al-Qaida. 
The criminal law does require and can prevent crimes from occurring 
before they do occur. Indeed, conspiracy laws and prosecutions in 
civilian courts have been routinely invoked after 9/11 to thwart 
embryonic international terrorism. In fact, in the Bush administration, 
Michael Chertoff, then head of the Justice Department's Criminal 
Division and later Secretary of the Department of Homeland Security, 
testified shortly after 9/11. He underscored:

       The history of this government in prosecuting terrorists in 
     domestic courts has been one of unmitigated success, and one 
     in which the judges have done a superb job of managing the 
     courtroom and not compromising our concerns about security 
     and our concerns about classified information.

  We can prosecute terrorists in our courts, and have done so. It is 
the wonderful thing about our country, that even with the most 
despicable criminal, murderer, rapist, or terrorist our court systems 
do work. We can have constitutional liberty and prosecute terrorists. 
There is no evidence that the criminal justice procedures have 
frustrated intelligence collection about international terrorism.
  Suspected terrorist have repeatedly waived both the right to an 
attorney and the right to silence. Additionally, Miranda warnings are 
not required at all when the purpose of the interrogation is public 
safety. The authors of this bill errantly maintain that the bill would 
not enlarge the universe of detainees, people held indefinitely. I 
believe this is simply not the case.
  The current authorization for the use of military force confines the 
universe to persons implicated in 9/11 or who harbored those who were. 
This new detainee provision will expand the universe to include any 
person said to be part of or substantially supportive of al-Qaida or 
the Taliban. But, remember, this is not someone who has been concluded 
at trial to be part of al-Qaida. This is someone who is suspected.
  If someone is a suspect in our country they are usually accorded due 
process. They go to court. They are not automatically guilty. They are 
accused of a crime. But now we are saying

[[Page S7942]]

someone accused of a crime can be taken from American soil. An American 
citizen accused of a crime, a suspect of a crime, could be taken to 
Guantanamo Bay. These terms are dangerously vague.
  More than a decade after 9/11 the military has been unable to define 
the earmarks of membership in or affiliation to either al-Qaida or 
other terrorist organizations. It is an accusation and sometimes 
difficult to prove.
  Some say to prevent another 9/11 attack we must fight terrorism with 
a war mentality and not treat potential attackers as criminals. For 
combatants captured on the battlefield, I agree. But these are people 
captured or detained in America, American citizens. Mr. President, 9/11 
did not succeed because we granted terrorists due process. In fact, 9/
11 did not succeed because al-Qaida was so formidable but because of 
human error. The Defense Department withheld intelligence from the FBI. 
No warrants were denied. The warrants were not even requested. The FBI 
failed to act on repeated pleas from its field agents who were in 
possession of a laptop that may well have had information that may well 
have prevented 9/11. But no judge ever turned down a warrant.
  Our criminal system did not fail. No one ever asked for a warrant to 
look at Moussaoui's computer in August, a month before 9/11. These are 
not failures of our law. These are not failures of our Constitution. 
These are not reasons we should scrap our Constitution and simply send 
people accused of terrorism to Guantanamo Bay--American citizens. These 
are failures of imperfect men and women in bloated bureaucracies. No 
amount of liberty sacrificed at the altar of the state will ever change 
that.
  A full accounting of our human failures by the 9/11 Commission has 
proven that enhanced cooperation between law enforcement and the 
intelligence community, not military action or not giving up our 
liberty at home, is the key to thwarting international terrorism. We 
should not have to sacrifice our liberty to be safe.
  We cannot allow the rules to change to fit the whims of those in 
power. The rules, the binding chains of the Constitution, were written 
so it did not matter who was in power. In fact, they were written to 
protect us and our rights from those who hold power with good 
intentions. We are not governed by saints or angels. Occasionally, we 
will elect people, and there have been times in history when those who 
come into power are not angels. That is why we have laws and rules that 
restrain what the government can do. That is why we have laws that 
protect us and say we are innocent until proven guilty. That is why we 
have laws that say we should have a trial before a judge and a jury of 
our peers before we are sent off to some prison indefinitely.
  Finally, the detainee provisions of the Defense authorization bill do 
another grave harm to freedom. They imply perpetual war for the first 
time in the history of the United States. No benchmarks are established 
that would ever terminate the conflict with al-Qaida, the Taliban, or 
other foreign terrorist organizations. In fact, this bill explicitly 
says that no part of this bill is to imply any restriction on the 
authorization of force.
  When will the wars ever end? When will these provisions end? No 
congressional view is allowed or imagined. No victory is defined. No 
peace is possible if victory is made impossible by definition. To 
disavow the idea that the exclusive congressional power to declare war 
somehow allows the President to continue war forever, at whim, I will 
offer an amendment to this bill that will deauthorize the war in Iraq. 
We are bringing the troops home in January. Is there any reason why we 
should have an open-ended commitment to war in Iraq when the war is 
ending?
  If we need to go to war in Iraq again, we should debate on it and 
vote on it. It is an important enough matter that we should not have an 
open-ended commitment to the war in Iraq. The use of military force 
must begin in Congress. Our Founding Fathers separated those powers and 
said Congress has the power to declare war, and it is a precious and 
important power. We should not give that up to the President. We should 
not allow the President to unilaterally engage in war.
  Congress should not be ignored or be an afterthought in these matters 
and must reclaim its constitutional duties. These are important points 
of fact. Know good and well that someday there could be a government in 
power that is shipping its citizens off for disagreements. There are 
laws on the books now that characterize who might be a terrorist: 
someone missing fingers on their hands is a suspect according to the 
Department of Justice, someone who has guns, someone who has ammunition 
that is weatherproofed, someone who has more than 7 days of food in 
their house can be considered a potential terrorist.
  If someone is suspected by these activities, do we want the 
government to have the ability to send them to Guantanamo Bay for 
indefinite detention? A suspect? We are not talking about someone who 
has been tried and found guilty; we are talking about someone suspected 
of activities. But some of the things that make us suspicious of 
terrorism are having more than 7 days' worth of food, missing fingers 
on their hand, having weatherproofed ammunition, having several guns at 
their house. Is that enough? Are we willing to sacrifice our freedom 
for liberty?
  I would argue that we should strike these detainee provisions from 
this bill because we are giving up our liberty. We are giving up the 
constitutional right to have due process before we are sent to a 
prison. This is very important. I think this is a constitutional 
liberty we should not look at and blithely sign away to the Executive 
power or to the military.
  So I would call for support of the amendment that will strike the 
provisions on keeping detainees indefinitely, particularly the fact 
that we can now, for the first time, send American citizens to prisons 
abroad. I think that is a grave danger to our constitutional liberty. I 
advise a vote to strike those provisions from the bill.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I listened to the discussion by Senator 
Rand Paul, and I understand his theory. Facts are stubborn things, and 
27 percent of those who have been released have been back in the fight. 
That is fact. That is fact. Some of them have assumed leadership 
positions with al-Qaida. That is fact.
  The Senator from Kentucky wants to have a situation prevail where 
people are released and go back in the fight and kill Americans. That 
is his right. He is entitled to that opinion. But facts are stubborn 
things. The fact is 27 percent of detainees who were released went back 
into the fight to try to kill Americans.
  The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. PAUL. With regard to releasing prisoners, I am not asking that we 
release them. I think there probably have been some mistakes with 
people who have been let go. What I am asking only is for due process, 
and we released some of those people without any kind of process and a 
flawed process. So we did make a mistake.
  Due process does not mean, and believing in the process does not mean 
necessarily that we would release these people. Due process often 
convicts. Jose Padilla was given 17 years in prison with due process. 
So I do not think it necessarily follows that I am arguing for 
releasing prisoners. I am simply arguing that people, particularly 
American citizens in the United States, not be sent to a foreign prison 
without due process.
  Mr. McCAIN. Mr. President, in response to that, we are not arguing 
that they be sent to a foreign prison. What we are arguing is that they 
are designated as enemy combattants. When they are enemy combatants, 
then they are subject to the rules and the laws of war. Again, I point 
out the fact that there have been a number who have been released who 
have reentered the fight, and that kind of situation is not something 
we want to prevail.
  So as I said, facts are stubborn things, and they are designated as 
enemy combatants and will be treated as such during the period of 
conflict.
  Mr. PAUL. My question would be, under the provisions, would it be 
possible that an American citizen then could be declared an enemy 
combatant and sent to Guantanamo Bay and detained indefinitely?
  Mr. McCAIN. I take it that as long as the individual, no matter who 
they

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are--if they pose a threat to the security of the United States of 
America, they should not be allowed to continue that threat. I think 
that is the opinion of the American public, especially in light of the 
facts I continue to repeat to the Senator from Kentucky--that 27 
percent of the detainees who were released got back in the fight and 
were responsible for the deaths of Americans. We need to take every 
step necessary to prevent that from happening. That is for the safety 
and security of the men and women who are putting their lives on the 
line in the armed services.
  I yield the floor.
  Mr. DURBIN. Mr. President, is morning business time still pending?
  The ACTING PRESIDENT pro tempore. Yes.
  Mr. DURBIN. I ask unanimous consent that all morning business time be 
yielded back unless there is a request on the floor.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  Mr. DURBIN. I yield the floor.

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