[Congressional Record Volume 157, Number 182 (Wednesday, November 30, 2011)]
[Senate]
[Pages S8054-S8056]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         DEFENSE AUTHORIZATION

  Mr. GRAHAM. I would like to do a colloquy with my good friend from 
Connecticut.
  Senator Lieberman said something that I think we need to sort of 
absorb. As the chairman of the Homeland Security Committee, does the 
Senator believe the likelihood of American citizens being recruited, 
enlisted, and radicalized on behalf of al-Qaida is going up? Is that 
what the Senator is trying to tell us?
  Mr. LIEBERMAN. Mr. President, I say to my friend from South Carolina, 
I not only believe it, but it is shown by the facts.
  I wish I had the numbers exactly in front of me. But if we chart 
attempts at terrorist attacks on the United States--and here I am 
limiting it to people who are affiliated with the global Islamist 
extremist movement--there were a few after 9/11, but in the last 2 or 3 
years, the numbers have gone up dramatically.
  I hasten to say these represent a very small percentage of the 
Muslim-American community. But of course it doesn't take too many 
people to cause great havoc. We have been effective at law enforcement 
and, frankly, we have been lucky that all but two of these attempts 
have been stopped. But I think we would find law enforcement officials, 
Homeland Security officials saying the toughest and most dangerous 
threat right now to the homeland security of the American people comes 
from homegrown terrorists who have been self-radicalized or radicalized 
by somebody else.
  Mr. GRAHAM. I think that is important for us to understand. Does the 
Senator agree with me that when we look at the war on terror, the 
United States is part of the battlefield?
  Mr. LIEBERMAN. Well, there is no question our enemies have declared 
it part of the battlefield. The very official commencement of the war 
against Islamist terrorism, 9/11, was an attack on America's homeland, 
on civilians.
  Mr. GRAHAM. So let's just go with that thought for a moment.
  Let's say our intelligence community, our law enforcement community, 
and our military/Department of Defense are all monitoring al-Qaida 
threats at home and abroad; does the Senator agree with that?
  Mr. LIEBERMAN. Absolutely true. Al-Qaida and like Islamist terrorist 
groups.
  Mr. GRAHAM. Under the Posse Comitatus Act, the military cannot be 
used for domestic law enforcement functions. Does the Senator agree 
with me that tracking al-Qaida operatives--citizen or not--within the 
United States is not a law enforcement function; it is a military 
function?
  Mr. LIEBERMAN. It is a combination, truthfully.
  Mr. GRAHAM. But our military has the ability to defend us against al-
Qaida attacks at home, such as they do abroad.
  Mr. LIEBERMAN. Right.
  Mr. GRAHAM. So if the Department of Defense somehow intercepted 
information about an al-Qaida cell, let's say in Connecticut or South 
Carolina, could they be involved in suppressing that cell?
  Mr. LIEBERMAN. I would say what has happened here since 9/11, and 
what we needed to have happen, is that the old stovepipes have 
dissolved and we have military, civilian, CIA, FBI, each with a focus, 
working together.
  For instance, the Army doctor who killed 13 people at Fort Hood, our 
committee did an investigation in that case. He was actually 
communicating with the radical cleric Awlaki in Yemen over the 
Internet. That was picked up by international intelligence operatives. 
Part of the story is it wasn't transferred effectively to the Army so 
they could grab him before he committed the mass murder at Fort Hood.
  But I have to say for the record, the primary responsibility for 
counterterrorism now in the United States is with the FBI that has 
developed an extraordinary capability since 9/11. But it works very 
closely with the CIA, gathering international intelligence, NSA, 
homeland security, and the military.
  Mr. GRAHAM. As a team effort.
  Mr. LIEBERMAN. Right.
  Mr. GRAHAM. Let's imagine a scenario next week where we find an al-
Qaida cell exists that is planning a series of attacks against the 
United States, and within that cell we have some American citizens and 
we have people who have come here who are noncitizens.
  Would the Senator agree with me, since Congress has designated 
cooperating or collaborating with al-Qaida to be an act of war, that 
entire cell could be held as enemy combatants and questioned by our 
intelligence community as to what they know about the attack and 
questioned on future attacks?
  Mr. LIEBERMAN. That certainly should be the case, and we have had 
this circumstance in reality. They are all part of the same enemy. In 
the case the Senator posits, they have all been part of the same plot 
to attack the American people.
  Mr. GRAHAM. So would the Senator agree with me that the current law 
is very clear that anytime an American citizen joins the enemy force, 
they can be held as an enemy combatant; that is the law?
  Mr. LIEBERMAN. That is the law. As the Senator has said and Chairman 
Levin has said several times in the debate, there may be some in the 
Chamber who don't like it, but that is what the U.S. Supreme Court has 
said very clearly.
  Mr. GRAHAM. If we capture an American citizen as part of this cell 
and we can't hold them as an enemy combatant for intelligence-gathering 
purposes, does domestic criminal law allow us to hold someone for an 
indefinite period of time to gather military intelligence?
  Mr. LIEBERMAN. No.
  Mr. GRAHAM. Does domestic criminal law focus on the wrongdoing of the 
actor, based on a specific event, when we are trying to resolve a 
dispute between the wrongdoer and the victim?

  Mr. LIEBERMAN. Yes, it does. The Senator is making a very important 
point. It goes back to the colloquy the Senator from New Hampshire and 
I had, which is, when we capture an enemy combatant, we do so for two 
reasons: One is to get that enemy off the battlefield, the second is to 
gather intelligence. Sometimes the second purpose is more important 
than the first because it can lead us to other plots against the 
American people.
  Mr. GRAHAM. Does the Senator agree with me the reason the Supreme 
Court has recognized that an American citizen could be held as an enemy 
combatant if they collaborate with an

[[Page S8055]]

enemy is that the Court views that as an act of war; and under the 
powers of the Commander in Chief, he can suppress all the enemies, 
foreign and domestic, that are at war with us?
  Mr. LIEBERMAN. I do. There has been a lot of talk about the 
Constitution. The Constitution makes very clear that the primary 
responsibility we have in the Federal Government is to provide for the 
common defense, to protect the security of the American people.
  Mr. GRAHAM. So our courts have recognized that during a time of 
hostilities, the executive branch has the authority to detain an 
American citizen who is helping the enemies of the Nation. The question 
is, Does the Congress want to change that for the first time ever?
  I would like to add something that my good friend from Rhode Island 
got me thinking about. I have always tried to explain indefinite 
detention, what are we trying to do here? Clearly, in war, there is no 
requirement to let the enemy prisoner go back to the fight after the 
passage of time. We don't want to let any enemy prisoner go back to the 
fight because that makes no good sense. The problem with this war is, 
there is no definable end. That is the reason we have a habeas review, 
because we will never know when hostilities are over. So an enemy 
combatant determination could be a de facto life sentence, and that is 
why our Supreme Court said we want a judicial check on the executive 
branch.
  So every enemy combatant will have their day in Federal court, and 
the government has to prove, by a preponderance of the evidence to an 
independent judge, that the decision to hold this person is warranted 
under the law. That was what the Hamdi case was about. I think that 
makes sense because it will not be the traditional war; it will be a 
war without a definable end.
  The idea of continuing to hold them, if the judge says to the 
government: You are right, there is compelling evidence this person was 
involved with al-Qaida, tried to get involved with a hostile act; you 
are right, they are part of the enemy, you can hold them forever. But 
we have come up with an annual review process to make sure they will 
have a chance every year to have their case looked at.
  Senator Whitehouse got me thinking. In our own law, under the civil 
justice system--such as Hinckley, the man who shot President Reagan, he 
was acquitted in court, by reason of insanity, of shooting President 
Reagan. He has been in a psychiatric hospital ever since, and he can be 
held away from the community because he is a danger to himself or 
others.
  I think what Senator Whitehouse is saying is, the idea that we can 
hold someone--the Court has agreed with the government--as part of the 
enemy force as a continuing threat is not an unknown concept. We just 
have to have a review.
  The PRESIDING OFFICER. The Senator asked to be notified at 10 
minutes.
  Mr. GRAHAM. I thank the President.
  I would suggest to our colleagues, let's think this thing through. 
Let's realize that if the enemy is coming to our homeland, the enemy is 
recruiting American citizens; and if we find an American citizen who 
has, in fact, joined forces with al-Qaida, our No. 1 goal should be to 
gather intelligence to prevent future attacks and to find out what that 
person knows about what the enemy is up to. Our secondary concern 
should be prosecution. When we interrogate somebody as the enemy 
combatant, the best thing we have on our side is time. I don't want to 
waterboard anyone, but I want to keep them in a controlled environment 
where time is on our side, and I will argue that the best information 
we have from Guantanamo Bay detainees did not come from waterboarding, 
it came from the fact that we could hold them for an indeterminate 
period of time, and through time, they began to cooperate and tell us 
valuable information.

  Does the Senator agree that is the concept we need to hold onto in 
this war?
  Mr. LIEBERMAN. I thank my friend. I absolutely agree. I talked to 
professionals in this business of interrogation, and they say some of 
the most effective interrogation takes time. I have had people describe 
to me detainees who were totally uncooperative, and they were asked 
over and over for days and weeks and months, and then finally broke and 
began to give information that was critically important for the 
protection of our country. So I do agree.
  I want to stress two things the Senator from South Carolina has said 
because it is very relevant to the attempt to give special status to 
Americans deemed to be enemy combatants in the contravention of 
existing U.S. Supreme Court rulings that say if you are an American and 
you are found to have joined the enemy, then you can be treated as an 
enemy combatant, which common sense tells you is what you are.
  Here is what I want to say, and this is important to what we are here 
for. There are two kinds of due process that are put into the bill, the 
underlying language and the compromise that has been adopted on the 
treatment of detainees. One, for the first time there is a judicial 
process to determine the status of the detainee, whether evidence shows 
that the detainee should, in fact, be treated as an enemy combatant. 
The second is that while the enemy combatant is subject to indefinite 
incarceration, that indefinite incarceration is subject to annual 
review now. So we can determine, according to a stated series of 
standards, whether that person----
  Mr. GRAHAM. Wouldn't the Senator agree that under domestic criminal 
law, that indefinite ability to question about enemy activity doesn't 
exist?
  Mr. LIEBERMAN. That is absolutely right. The Senator stated earlier--
and it is an important point--this is the danger we get into as we 
start to treat people who are terrorists as common criminals, or even 
uncommon criminals, which is that the criminal law aims at imposing a 
penalty, doing justice, incarcerating somebody as a result. The law of 
war is aimed at making sure that enemy combatants, prisoners of war, 
are taken off the battlefield----
  Mr. GRAHAM. And to my colleagues----
  Mr. LIEBERMAN. Until the war is over.
  Mr. GRAHAM. I acknowledged in the Christmas Day Bomber case, in the 
Times Square attempted bombing, that they were put in Federal court. I 
am okay with that. I do believe in the ``all of the above'' approach. 
Our Federal courts can handle cases involving transnational terrorists 
and al-Qaida members and so can military commissions. The idea of 
reading somebody their Miranda rights may be the best interrogation 
technique. I know that we were able to get some good information after 
reading Miranda rights.
  I guess the point I am trying to make is I acknowledge that the 
people doing the interrogation are better suited to make that decision 
than I am. I just don't want the Congress by legislation to say for the 
first time in the history of the country in this war--unlike any other 
war you no longer have it available to you, the U.S. Government, the 
ability to hold somebody as an enemy combatant if you believe that is 
the best way to gather intelligence. I am not saying the other system 
cannot be used. Let's leave it up to the professionals.
  But the Senate is suggesting through the legislation being proposed 
that the idea of holding an American citizen who is suspected of 
collaborating with al-Qaida that they can no longer be held as an enemy 
combatant is not only changing the law, it is taking off the table a 
tool that I think we need now more than ever. I don't want us to lose 
sight of the fact of what we are doing here and what it would mean to 
our country and our ability to defend us. No one in World War II would 
have tolerated the idea that someone who collaborated with a Nazi 
trying to kill us on our own soil would have any other disposition than 
to be considered an enemy of the American people.
  My question for this body is: Do you think al-Qaida is an 
organization that doesn't present that same kind of threat? Is it the 
Senate's desire to say during these times that an American citizen can 
collaborate with al-Qaida to kill us on our own soil and that is no 
longer considered an act of war? I would argue that that would be one 
of the most irresponsible decisions ever made in a time of war by an 
elected body. It not only would change the law as we know it, it would 
create an opportunity and a hole in our defenses at

[[Page S8056]]

a time when, as the Senator has indicated, the threat is growing.
  I say to Senator Lieberman, thank you for being a steady, stern, 
consistent voice along the line that since 9/11 our Nation has been in 
an undeclared state of war. The enemy still roams the globe. They have 
as their hope and dream hitting us again here at home. And, for God's 
sake, let's not weaken our defenses in a way that no other Congress has 
ever chosen to weaken the executive branch in the past. I thank the 
Senator for his service.
  Mr. LIEBERMAN. I thank my friend from South Carolina for his 
expertise in this area and also his sense of principle. We have 
colleagues on the floor who want to speak. I want to say a final word. 
I know the Senator from South Carolina is particularly worried about 
pending amendments that would alter the way in which the underlying 
bill now treats enemy combatants who are citizens of the United States.
  The underlying provision in the bill on detainee treatment fills a 
gap in our law that has been harmful and difficult for our military to 
deal with because there is no law about how to treat detainees. Senator 
Graham worked very closely with Senator Levin and Senator McCain to 
draft this compromise, and it is a good compromise. As he knows, if I 
had my preference, there would be no waiver in this because I believe 
anybody who is an enemy combatant is an enemy combatant and as a matter 
of principle ought to be held in military custody and tried by a 
military tribunal according to all the protocols of the Geneva 
Conventions, according to the Military Code of Justice.
  Incidentally, if these tribunals are good enough for American men and 
women in the military who face charges, they ought to be good enough 
for enemy combatants who face charges.
  But here is my point: The Levin-McCain-Graham provision in this bill 
on detainees is a compromise. It is a reasonable, effective, bipartisan 
compromise. It is the kind of compromise that doesn't happen here 
enough, and so I support it because even though I might have wished it 
would have gone further, so to speak, it is a lot better than the 
status quo. And I say that at this moment because I urge our colleagues 
who now want to come in with other amendments, to essentially undo this 
bipartisan compromise can do great damage. I am saying myself, yes, I 
wish it had not given the President the power to waive that he has 
under the bill and take somebody who is an enemy combatant to a normal 
article III Federal court, but this provision is a real step forward 
from the status quo, and I think if we can say that, then we ought to 
support it. So I hope our colleagues will think twice before trying to 
undo the compromise, and that if they do go forward with it, that our 
colleagues on the floor will defeat those amendments.
  Mr. GRAHAM. Mr. President, I will wrap this up. I know we have 
colleagues who want to speak. Let me reiterate what Senator Lieberman 
said. There is a stream of thought that every member of al-Qaida, 
American citizen or not, is an enemy of the people of the United States 
in a military sense, not a criminal sense, and they should be in a 
military tribunal. That is the way we have handled most cases in the 
past.
  Here is what I believe: I believe that the choice of venue should lie 
with the executive branch, and I think there is a very robust role for 
article III courts. So I don't want to say from a congressional point 
of view that every member of al-Qaida has to be tried by a military 
commission all the time, because, quite frankly, sometimes article III 
courts could be the better venue. When it comes to telling the 
executive branch that you have to put a noncitizen in military custody 
inside the United States, I think that is the right way to do it, but I 
don't know enough, so if there is a reason to waive that provision, the 
experts can waive it.
  I have been very cautious about micromanaging the executive branch 
because they are the ones fighting the war. We have a role to play, we 
have a voice to be heard, and here is what I am urging some my 
colleagues. This compromise is not what some of our friends wanted, 
such as Senator Lieberman and, quite frankly, it is not what the ACLU 
wants, because they don't buy into the idea that al-Qaida operatives 
are anything other than common criminals. So you have two poles here. I 
believe an al-Qaida operative is not a common criminal, and if an 
American citizen joins al-Qaida they should be treated as an enemy 
combatant as one possibility. But if you want to go down the other 
road, you can go down that road. I just don't want us to take off the 
table, for the first time in the history of America, that an American 
citizen trying to help the enemy kill us here at home somehow can no 
longer be talked to by our military to gather intelligence. That is a 
crazy outcome.
  I think we have a good bill that gives maximum flexibility to the 
executive branch but preserves the tools we are going to need now and 
into the future. And to my colleagues, please ask yourself: If in World 
War II we could hold an American citizen who tried to help the Nazis 
blow up America as an enemy combatant, why wouldn't you want to help 
hold an American citizen who is helping al-Qaida--which did more damage 
to the homeland than the Nazis--as an enemy combatant? Why would you 
want to take off the table the ability to hold that person, humanely 
interrogate them to find out why they joined, who they talked to and 
what they know? Because what they know and who they talked to may save 
thousands of lives. For us to say you cannot do that for the first time 
in the history of the country would be a colossal mistake.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Bennet). The Senator from Kansas.

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