[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
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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
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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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