[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
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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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