[Congressional Record Volume 157, Number 183 (Thursday, December 1, 2011)]
[Senate]
[Pages S8088-S8094]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         DEFENSE AUTHORIZATION

  Mr. GRAHAM. While we decide how we are going to move on the Defense 
bill, I appreciate Senator Kyl coming to the floor. Senator Kyl and I, 
along with Senators Levin and McCain, have been working on detainee 
policy for years now. There is an issue that is before the Senate soon. 
It involves what to do with an American citizen who is suspected of 
collaborating with al-Qaida or an affiliated group.
  Does the Senator agree with me that in other wars American citizens, 
unfortunately, have aided the enemies of their time?
  Mr. KYL. Mr. President, yes. I would say to my colleague, 
unfortunately, it is the case that there probably hasn't been a major 
conflict in which at least some American citizen has decided to leave 
his country and side with the enemy.
  Mr. GRAHAM. Is the Senator familiar with the efforts by German 
saboteurs who landed--I believe, in the Long Island area, but I don't 
know exactly where they landed--during World War II, and they were 
aided by American citizens to execute a sabotage plot against the 
United States?
  Mr. KYL. Mr. President, yes. In fact, there is a famous U.S. Supreme 
Court case, Ex parte Quirin, decided in 1942, that dealt with the issue 
of an American citizen helping the Nazi saboteurs that came to our 
shores.
  Mr. GRAHAM. Does the Senator agree with me that our Supreme Court 
ruled then that when an American citizen decides to collaborate and 
assist an enemy force, that is viewed as an act of war and the law of 
war applies to the conduct of the American citizen?
  Mr. KYL. Mr. President, I would say to my colleague, yes. My 
colleague knows this case, I am confident. I think one quotation from 
the case makes the point clearly--in Ex parte Quirin the court made 
clear: ``Citizenship in the United States of an enemy belligerent does 
not relieve him from the consequences of his belligerency.''
  In other words, if a person leaves their country and takes the 
position contrary, they side with the enemy, they become a belligerent 
against the United States, the fact that they are still a citizen does 
not protect them from being captured, from being held, and in this case 
even being tried by a military tribunal.
  Mr. GRAHAM. So the law, at least since 1942, by the Supreme Court has 
been that if someone decides as an American citizen to join forces with 
enemies of the United States, they have committed an act of war against 
their fellow citizens. It is not a criminal event we are investigating 
or dealing with; it is an act of war, and the American citizens who 
helped the Nazis were held as enemy combatants and tried as enemy 
combatants?
  Mr. KYL. Mr. President, yes. I would just qualify that statement this 
way. A person can be subject to military custody being a belligerent 
against the United States, even while being a U.S. citizen, be tried by 
military commission because of the act of war against the United States 
that they committed. One could also theoretically have been tried in a 
criminal court. But one can't reach the opposite conclusion, which is 
that they can only be tried in civilian court.
  Mr. GRAHAM. In the Military Commission Act of 2009, we prohibited 
American citizens from being tried by military commissions. I am OK 
with that. But what we have not done--and I would be very upset if we 
chose to do that--is take off the table the ability to interrogate an 
American citizen who has chosen to help al-Qaida regarding what they 
know about the enemy and what intelligence they may provide us to 
prevent a future attack.
  Since homegrown terrorism is a growing threat, under the current law, 
if an American citizen became radical, went to Pakistan and trained 
with al-Qaida or an affiliated group, flew back to Dulles Airport, got 
off the plane, got a rifle, went down to the Mall right behind us and 
started shooting people, does the Senator agree with me that under the 
law as it exists today, that person could be held as an enemy 
combatant, that person could be interrogated by our military and 
intelligence community and we could hold them as long as necessary to 
find out what they know about any future attacks or any past attacks 
and we don't have to read them their Miranda rights?
  Mr. KYL. Mr. President, yes. The answer to the question, short, is, 
yes. It is confirmed by the fact that in the Hamdi case, the U.S. 
Supreme Court precisely held that detention would be lawful. Of course, 
with the detention being lawful, the interrogation to which my 
colleague refers could also be taken.
  Mr. McCAIN. Would the Senator yield for a question on that subject 
point?
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. McCAIN. The individual who was an American citizen--Mr. Hamdi, 
the subject of the U.S. Supreme Court case--was an American citizen 
captured in Afghanistan; is that correct?
  Mr. GRAHAM. Yes.
  Mr. McCAIN. Yet in the Supreme Court decision reference is made to an 
individual who was captured during World War II in the United States of 
America; isn't that correct? It was referenced in the Supreme Court 
decision.
  Mr. GRAHAM. Yes. The In re Quirin case dealt with an American citizen 
helping the Nazis in America. The Hamdi case dealt with an American 
citizen helping the Taliban in Afghanistan.
  Mr. McCAIN. The reason why I raise the question is because the 
Senator from Illinois, and others, have cited the fact that Hamdi was 
an American citizen but captured in Afghanistan, not in the United 
States of America.
  Yet isn't it a fact that the decision in Hamdi also made reference to 
a person who was apprehended in the United States of America?
  This is what is bizarre about this discussion, it seems to me.

  Mr. GRAHAM. The Hamdi case cited In re Quirin for the proposition 
that an American citizen who provides aid, comfort or collaboration 
with the enemy can be held as an enemy combatant. The In re Quirin case 
dealt with an American citizen helping the Nazis in New York. The 
Padilla case involves an American citizen, collaborating with al-Qaida, 
captured in the United States.
  Mr. McCAIN. So I guess my question is, it is relevant where the 
citizen of the United States was captured. Because the decision made 
reference to people captured both in the United States and outside the 
United States.
  Mr. GRAHAM. Exactly. I would add, and get Senator Kyl's comment. 
Wouldn't it be an absurd result if you can kill an American citizen 
abroad--Awlaki--whatever his name was--the President targeted him for 
assassination because he was an American citizen who went to Yemen to 
engage in an act of terrorism against the United States. The President 
went through an Executive legal process, targeted him for assassination 
and a drone attack killed him and we are all better off. Because when 
an American citizen helps the enemy, they are no longer just a common 
criminal; they are a military threat and should be dealt with 
appropriately.
  But my point is, wouldn't it be an odd result to have a law set up so 
that if they actually got to America and they tried to kill our people 
on our own soil, all of a sudden they have criminal status?
  I would argue that the homeland is part of the battlefield, and we 
should protect the homeland above anything else. So it would be crazy 
to have a law that says if you went to Pakistan and attacked an 
American soldier, you could be blown up or held indefinitely, but if 
you made it back to Dulles Airport, you went downtown and started 
killing Americans randomly, we couldn't hold you and gather 
intelligence. The Supreme Court, in 1982, said that made no sense.
  If a Senator, in 1942, took the floor of the Senate and said: You 
know those American citizens who collaborated with the Nazis, we ought 
not treat them as an enemy, they would be run out of town.
  I am just saying, to any American citizen: If you want to help al-
Qaida, you do so at your own peril. You can

[[Page S8089]]

get killed in the process. You can get detained indefinitely. When you 
are being questioned by the CIA, the FBI or the Department of Defense 
about where you trained and what you did and what you know and you say 
to the interrogator: I want my lawyer, the interrogator will say: You 
don't have a right to a lawyer because you are a military threat.
  This is not ``Dragnet.'' We are fighting a war. The Supreme Court of 
the United States has clearly said an American citizen who joins with 
the enemy has committed an act of war.
  Senator Feinstein, who is the chairman of the Intelligence Committee, 
is a very good Senator. But her concerns about holding an American 
citizen under the law of war, her amendment, unfortunately, would 
change the law.
  Does Senator Kyl agree with that?
  Mr. KYL. Yes. Mr. President, that is the key point. There is a reason 
why you don't want to adopt the Feinstein amendment: It would preclude 
us from gaining all the intelligence we could gain by interrogating the 
individual who has turned on his own country and who would have 
knowledge of others who might have joined him in that effort or other 
plans that might be underway.
  We know from past experience this interrogation can lead to other 
information to save American lives by preventing future attacks, and it 
has occurred time and time again. In a moment, I will put a statement 
in the Record that details a lot of this intelligence we have gathered. 
It is not as if an American citizen doesn't have the habeas corpus 
protection--which still attaches--whether or not that individual is 
taken into military custody.
  The basic constitutional right of an American citizen is preserved. 
Yet the government's ability to interrogate and gain intelligence is 
also preserved by the existing law, by the status of the law that 
exists today. We would not want to change that law by something such as 
the Feinstein amendment.
  Mr. GRAHAM. Simply stated, when the American citizens in question 
decided to give aid and comfort to the Nazis, I am very glad they were 
allowed to be held by the military and interrogated about the plot and 
what they knew, because intelligence gathering is the best way to keep 
us safe.
  I would be absolutely devastated if the Senate, for the first time in 
2011, denied the ability of our military and intelligence community to 
interrogate somebody who came back from Pakistan and started killing 
people on the Mall--that we could no longer hold them as an enemy 
combatant and find out what they did and why they did it; that we would 
have to treat them as a common criminal and read them their Miranda 
rights. That is not the law.
  If that becomes the law, then we are less safe because I tell you, as 
we speak, the threat to our homeland is growing. Homegrown terrorists 
are becoming the threat of the 21st century, and now is not the time to 
change the law that has been in place for decades. I do hope people 
understand what this means.
  It means we would change the law so that if we caught somebody in 
America who went overseas to train and came back home, an American 
citizen who turned on the rest of us, no longer could we hold them as 
an enemy combatant and gather intelligence. That, to me, would be a 
very dangerous thing to do.
  I ask the Senator, who determines what the Constitution actually 
means; is it the Congress or the Supreme Court?
  Mr. KYL. Mr. President, ultimately the U.S. Supreme Court, when cases 
come before the Court that present these issues, determines what the 
law is. In this situation we have actually two specific cases, and 
there are others that are tangential, that do clarify what the Court 
believes what the Constitution would provide in this case.
  Mr. GRAHAM. So the issue is pretty simple. Our courts at the highest 
level--the Supreme Court has acknowledged that the executive branch has 
the legal authority to hold an American citizen who is collaborating 
with an enemy as an enemy belligerent to gather intelligence to protect 
the rest of us; they recognize that power of the executive. Does the 
Senator agree with me that the amendment of Senator Feinstein would be 
a situation where the Congress does not recognize that authority and 
would actually try to change it?
  Mr. KYL. Yes. One of the questions is this interplay between the 
executive and the legislative branch. When the legislative branch, as 
Congress has done here through the authorization of military force, has 
provided the legal basis for the administration to hold a person 
engaged in war against us, then it cannot be denied that that authority 
exists. There is a 1971 law that Congress passed that said you could 
hold people only pursuant to law. This was the precise holding of the 
Hamdi case, where the U.S. Supreme Court said they had the authority 
because of the authorization of military force. So the executive has 
that authority, the legislature has provided the basis for the 
authority, and the Supreme Court has upheld it by its ultimate 
jurisdiction.
  Mr. GRAHAM. And to conclude this colloquy--I enjoyed the discussion--
I am not saying our law enforcement or military intelligence community 
cannot read someone their Miranda rights. I will leave that up to them. 
I am saying Congress should not take off the table the ability to hold 
someone under the law of war to gather intelligence, and that is what 
we are about to do if this passes.
  To those who believe that homegrown terrorists are a threat now and 
in the future, if you want to make sure we can never effectively gather 
intelligence, we only have one option, then that is what we are about 
to impose on the country.
  Mr. KYL. If I might ask my colleague to yield for one other point I 
wish to make here.
  Mr. GRAHAM. Absolutely.
  Mr. KYL. In a criminal trial, the object is to do justice to an 
individual as it pertains to his alleged violation of law in the United 
States. In the case of the capture and detention of a combatant, 
someone who has taken action against the United States, the object 
first is to keep the United States safe from this individual's actions 
and, second, where possible, gain intelligence from that individual. 
That is the critical element that would be taken from our military, 
were the Feinstein amendment to be adopted.
  I ask unanimous consent to have printed in the Record a statement 
that makes very clear where military detention is necessary: to allow 
intelligence gathering that will prevent future terrorist attacks 
against the American people.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Wartime Detention of Enemy Combatants--Including U.S. Citizens Who Join 
  the Forces of the Enemy--Is An Established Practice That Is Clearly 
                             Constitutional

       Unfortunately, in almost every major war that the United 
     States has fought, there have been some U.S. citizens who 
     have joined the forces of our Nation's enemies or who have 
     otherwise collaborated with the enemy. These traitors and 
     collaborators have always been treated as enemy combatants--
     and have been subjected to trial by military commission where 
     appropriate.
       The U.S. Supreme Court has consistently held that the 
     President has the constitutional authority to detain enemy 
     combatants, including U.S. citizens who have cast their lot 
     with the enemy.
       In its 2004 decision in Hamdi v. Rumsfeld, for example, the 
     Supreme Court held that the detention of enemy combatants is 
     proper under the U.S. Constitution. Moreover, the person 
     challenging his military detention in that case was a U.S. 
     citizen.
       During World War II, the Supreme Court also upheld the 
     military detention and trial of a U.S. citizen who had served 
     as a saboteur for Nazi Germany and was captured in the United 
     States. The Court made clear that ``[c]itizenship in the 
     United States of an enemy belligerent does not relieve him 
     from the consequences of a belligerency.'' That case is Ex 
     Parte Quirin (1942).
       In support of her amendment number 1126, Senator Feinstein 
     yesterday cited a 1971 law, apparently arguing that the 
     detention of an enemy combatant who is a U.S. citizen would 
     be prohibited under that law.
       That 1971 law is 18 U.S.C. 4001. It provides that ``no 
     citizen shall be imprisoned or otherwise detained by the 
     United States except pursuant to an Act of Congress.''
       This is the very law that was at issue in the Hamdi case. 
     And the precise holding of the U.S. Supreme Court in Hamdi 
     was that the detention of a U.S. citizen as an enemy 
     combatant through the duration of hostilities would not 
     violate that law.
       The Supreme Court stated: ``[Hamdi] posits that his 
     detention is forbidden by 18 U.S.C. Sec. 4001(a). Section 
     4001(a) states that `[n]o citizen shall be imprisoned or 
     otherwise detained by the United States except pursuant

[[Page S8090]]

     to an Act of Congress.' . . .  Congress passed Sec. 4001(a) 
     in 1971. . . . [The government maintains] Sec. 4001(a) is 
     satisfied because Hamdi is being detained pursuant to an Act 
     of Congress, the AUMF. . . . [W]e conclude that . . . the 
     AUMF satisfied Sec. 4001(a)'s requirement that a detention be 
     pursuant to an Act of Congress.''
                                  ____


 Why Military Detention Is Necessary: To Allow Intelligence Gathering 
 That Will Prevent Future Terrorist Attacks Against the American People

       Some may ask, why does it matter whether a person who has 
     joined Al Qaeda is held in military custody or is placed in 
     the civilian court system? One critical reason is 
     intelligence gathering. A terrorist operative held in 
     military custody can be effectively interrogated. In the 
     civilian system, however, that same terrorist would be given 
     a lawyer, and the first thing that lawyer will tell his 
     client is, ``don't say anything. We can fight this.''
       In military custody, by contrast, not only are there no 
     lawyers for terrorists. The indefinite nature of the 
     detention--it can last as long as the war continues--itself 
     creates conditions that allow effective interrogation. It 
     creates the relationship of dependency and trust that 
     experienced interrogators have made clear is critical to 
     persuading terrorist detainees to talk.
       Navy Vice-Admiral Lowell Jacoby, who at the time was the 
     Director of the Defense Intelligence Agency, explained how 
     military custody is critical to effective interrogation in a 
     declaration that he submitted in the Padilla litigation. He 
     emphasized that successful noncoercive interrogation takes 
     time--and it requires keeping the detainee away from lawyers.
       Vice-Admiral Jacoby stated:
       DIA's approach to interrogation is largely dependent upon 
     creating an atmosphere of dependency and trust between the 
     subject and the interrogator. Developing the kind of 
     relationship of trust and dependency necessary for effective 
     interrogations is a process that can take a significant 
     amount of time. There are numerous examples of situations 
     where interrogators have been unable to obtain valuable 
     intelligence from a subject until months, or, even years, 
     after the interrogation process began.
       Anything that threatens the perceived dependency and trust 
     between the subject and interrogator directly threatens the 
     value of interrogation as an intelligence gathering tool. 
     Even seemingly minor interruptions can have profound 
     psychological impacts on the delicate subject-interrogator 
     relationship. Any insertion of counsel into the subject-
     interrogator relationship, for example--even if only for a 
     limited duration or for a specific purpose--can undo months 
     of work and may permanently shut down the interrogation 
     process.
       Specifically with regard to Jose Padilla, Vice Admiral 
     Jacoby also noted in his Declaration that: ``Providing 
     [Padilla] access to counsel now would create expectations by 
     Padilla that his ultimate release may be obtained through an 
     adversarial civil litigation process. This would break--
     probably irreparably--the sense of dependency and trust that 
     the interrogators are attempting to create.''
       In other words, military custody is critical to successful 
     interrogation. Once a terrorist detainee is transferred to 
     the civilian court system, the conditions for successful 
     interrogation are destroyed.
       Preventing the detention of U.S. citizens who collaborate 
     with Al Qaeda would be a historic abandonment of the law of 
     war. And, by preventing effective interrogation of these 
     collaborators, it would likely have severe consequences for 
     our ability to prevent future terrorist attacks against the 
     American people.
       We know from cold, hard experience that successful 
     interrogation is critical to uncovering information that will 
     prevent future attacks against civilians.
       On September 6 of 2006, when President Bush announced the 
     transfer of 14 high-value terrorism detainees to Guantanamo, 
     he also described information that the United States had 
     obtained by interrogating these detainees. Abu Zubaydah was 
     captured by U.S. forces several months after the September 11 
     attacks. Under interrogation, he revealed that Khalid Sheikh 
     Mohammed was the principal organizer of the September 11 
     attacks. This is information that the United States did not 
     already know--and that we only obtained through the 
     successful military interrogation of Zubaydah.
       Zubaydah also described a terrorist attack that Al Qaida 
     operatives were planning to launch inside this country--an 
     attack of which the United States had no previous knowledge. 
     Zubaydah described the operatives involved in this attack and 
     where they were located. This information allowed the United 
     States to capture these operatives--one while he was 
     traveling to the United States.
       Again, just imagine what might have happened if the 
     Feinstein amendment had already been law, and if the Congress 
     had stripped away the executive branch's ability to hold Al 
     Qaeda collaborators in military custody and interrogate them. 
     We simply would not learn what that detainee knows--including 
     any knowledge that he may have of planned future terrorist 
     attacks.
       Under military interrogation, Abu Zubaydah also revealed 
     the identity of another September 11 plotter, Ramzi bin al 
     Shibh, and provided information that led to his capture. U.S. 
     forces then interrogated bin al Shibh. Information that both 
     he and Zubaydah provided helped lead to the capture of Khalid 
     Sheikh Mohammed.
       Under interrogation, Khalid Sheikh Mohammed provided 
     information that helped stop another planned terrorist attack 
     on the United States. K.S.M. also provided information that 
     led to the capture of a terrorist named Zubair. And K.S.M.'s 
     interrogation also led to the identification and capture of 
     an entire 17-member Jemaah Islamiya terrorist cell in 
     Southeast Asia.
       Information obtained from interrogation of terrorists 
     detained by the United States also helped to stop a planned 
     truck-bomb attack on U.S. troops in Djibouti. Interrogation 
     helped stop a planned car-bomb attack on the U.S. embassy in 
     Pakistan. And it helped stop a plot to hijack passengers 
     planes and crash them into Heathrow airport in London.
       As President Bush stated in his September 6, 2006 remarks, 
     ``[i]nformation from terrorists in CIA custody has played a 
     role in the capture or questioning of nearly every senior al 
     Qaida member or associate detained by the U.S. and its 
     allies.'' The President concluded by noting that Al Qaida 
     members subjected to interrogation by U.S. forces: ``have 
     painted a picture of al Qaeda's structure and financing, and 
     communications and logistics. They identified al Qaeda's 
     travel routes and safe havens, and explained how al Qaeda's 
     senior leadership communicates with its operatives in places 
     like Iraq. They provided information that . . . has allowed 
     us to make sense of documents and computer records that we 
     have seized in terrorist raids. They've identified voices in 
     recordings of intercepted calls, and helped us understand the 
     meaning of potentially critical terrorist communications.
       [Were it not for information obtained through 
     interrogation], our intelligence community believes that al 
     Qaeda and its allies would have succeeded in launching 
     another attack against the American homeland. By giving us 
     information about terrorist plans we could not get anywhere 
     else, this [interrogation] program has saved innocent 
     lives.''
       If the Feinstein amendment were adopted, this is all 
     information that we would be unable to obtain if the Al Qaeda 
     collaborator that our forces had captured was a U.S. citizen. 
     It would simply be impossible to effectively interrogate that 
     Al Qaeda collaborator--the relationship of trust and 
     dependency that military custody creates would be broken, and 
     the detainee would instead have a lawyer telling him to be 
     quiet. And we know that information obtained by interrogating 
     Al Qaeda detainees has been by far the most valuable source 
     of information for preventing future terrorist attacks.
       Again, in every past war, our forces have had the ability 
     to capture, detain, and interrogate U.S. citizens who 
     collaborate with the enemy or join forces with the enemy. I 
     would submit that in this war, intelligence gathering is more 
     critical than ever. Al Qaeda doesn't hold territory that we 
     can capture. It operates completely outside the rules of war, 
     and directly targets innocent civilians. Our only effective 
     weapon against Al Qaeda is intelligence gathering. And the 
     Feinstein amendment threatens to take away that weapon--to 
     take away our best defense for preventing future terrorist 
     attacks against the American people.

  Mr. KYL. I hope this statement clarifies in anyone's mind the point 
that by taking people in custody in the past we have gathered essential 
intelligence to protect the American people. That is the reason for the 
detention in the first place--A, to keep the American people safe from 
further attack by the individual, and, B, to gather this kind of 
intelligence. Nothing precludes the United States, the executive 
branch, from thereafter deciding to try the individual as a criminal in 
the criminal courts with all the attendant rights of a criminal. But 
until that determination, it cannot be denied that the executive has 
the authority to hold people as military combatants, gather 
intelligence necessary, and hold that individual until the cessation of 
hostilities.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The senior Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I understand we are still in morning 
business?
  The PRESIDING OFFICER. The time for morning business has expired.
  Mr. LEAHY. I ask unanimous consent I be recognized for another 5 
minutes as in morning business, and the distinguished Senator from 
Illinois be recognized for 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, earlier this week, one of this bill's lead 
sponsors said here on the floor of the United States Senate that the 
bill's detention subtitle would authorize the indefinite detention of 
U.S. citizens at Guantanamo Bay. That is a stunning statement. We 
should all pause to consider the ramifications of passing a bill

[[Page S8091]]

containing such language. Supporters of the detention provisions in the 
bill continue to argue that such measures are needed because, they 
claim, ``we are a nation at war.'' That does not mean that we should be 
a Nation without laws, or a Nation that does not adhere to the 
principles of our Constitution.
  One of the provisions in this bill, Section 1032, runs directly 
contrary to those principles. Section 1032 requires the military to 
detain terrorism suspects, even those who might be captured on U.S. 
soil. This provision is opposed by the very intelligence, military, and 
law enforcement officials who are entrusted with keeping our Nation 
safe--including the Secretary of Defense, the Director of National 
Intelligence, the Attorney General, the Director of the FBI, and the 
President's top counterterrorism advisor. As Chairman of the Judiciary 
Committee, I support the efforts of Senator Feinstein, the chair of the 
Senate Intelligence Committee, to modify Section 1032 so that it does 
not interfere with ongoing counterterrorism efforts or undermine our 
constitutional principles.
  In the fight against al-Qaida and other terrorist threats, we should 
give our intelligence, military, and law enforcement professionals all 
the tools they need. But the mandatory military detention provision in 
Section 1032 actually limits those tools by tying the hands of the 
intelligence and law enforcement professionals who are fighting 
terrorism on the ground, and by creating operational confusion and 
uncertainty. This is unwise and unnecessary.
  On Monday, Director Mueller warned that Section 1032 would adversely 
affect the Bureau's ability to continue ongoing international 
investigations. Secretary Panetta has also stated unequivocally that 
``[t]his provision restrains the Executive Branch's options to utilize, 
in a swift and flexible fashion, all the counterterrorism tools that 
are now legally available.'' These are not partisan objections, but 
rather the significant operational concerns voiced by the Secretary of 
Defense and the Director of the FBI--both of whom were confirmed by 
this body with 100-0 votes. And yet these are the voices that 
supporters of this bill would ignore.
  Supporters of this bill have argued that the new national security 
waiver and implementation procedures in this section provide the 
administration with the flexibility it needs to fight terrorism. The 
intelligence and law enforcement officials who are actually responsible 
for fighting terrorism and keeping our Nation safe, however, could not 
disagree more. As Director Mueller stated in his letter, these 
provisions are still problematic and ``fail to recognize the reality of 
a counterterrorism investigation.'' Director of National Intelligence 
Clapper has stated that ``the various detention provisions, even with 
the proposed waivers, would introduce unnecessary rigidity'' in the 
intelligence gathering process. Put differently, Lisa Monaco, the 
Assistant Attorney General for the National Security Division, recently 
stated that ``agents and prosecutors should not have to spend their 
time worrying about citizenship status and whether and how to get a 
waiver signed by the Secretary of Defense in order to thwart an al-
Qaida plot against the homeland.''
  We should listen to the intelligence and law enforcement 
professionals who are entrusted with our Nation's safety, and we should 
fix this flawed provision.
  Senator Feinstein's amendment would ensure that the requirement of 
military detention of terrorism suspects does not apply domestically. 
As Chairman of the Judiciary Committee, I am proud to be a cosponsor of 
this amendment, and I urge all Senators to support its adoption.
  I know Senator Durbin is next, but I now understand from Senator 
Durbin the distinguished Senator from Missouri is going next.
  In any event, I yield the floor and thank my colleagues for their 
courtesy.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BLUNT. Mr. President, I ask unanimous consent to address the 
Senate for 10 minutes in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUNT. I appreciate my good friend from Illinois allowing me to 
go ahead and talk about the Defense bill at this time, but doing it in 
the context of where we are on the floor right now.
  Mr. President, defending the country is the Congress's most important 
constitutional responsibility. Abraham Lincoln said that government 
should do for people only those things that people cannot better do for 
themselves. If there is anything at the top of that list, this is at 
the top of that list. So it is critical that we have this discussion, 
that we pass this bill as soon as possible in order to give our men and 
women in uniform the tools they need to do their job and the certainty 
we need to know how that job is going to be done from the point of view 
of what the Government can and needs to provide.
  While this bill we are debating today is only about next year's 
defense program, we should not lose sight of the fact that our budget 
environment is more challenging all the time and whether the automatic 
budget cuts to future defense happen, we do know we are going to have 
to be more thoughtful, more cautious about how we get the most for our 
investment in defense. Everybody else in America has spent the last 20 
years figuring out how you focus on a better result from less 
investment, and defense is going to have to be there as well. Still, 
that does not mean it is not a top priority for the Federal Government.
  I appreciate the work my friends Senator Levin and Senator McCain 
have done to get this bill to the floor. I am proud to represent a 
State that is involved in our national defense. Missouri is the home of 
Fort Leonard Wood, of Whiteman Air Force Base, of the Marine Corps 
Mobilization Command Center in Kansas City. We have dozens of National 
Guard and Reserve facilities in our State. Our State has 17,184 active-
duty soldiers, marines, and airmen right now; 34,000 Guard and 
Reservists.
  We are the home of large and small defense contractors that provide 
thousands of jobs in our State. Those defense contractors can do their 
work better and our defense dollars are better spent if we know what 
the plan is. The only real way to know what the plan is is to have an 
authorization bill that works.
  Since the beginning of Operations Enduring Freedom and Iraqi Freedom, 
134 Missourians have given their lives and over a thousand have been 
wounded in the line of duty. In fact, one of the amendments I have that 
I hope finds its way into this bill is research associated with 
rehabilitating those wounded warriors who have eye injuries. Thousands 
of vision-related injuries have occurred as a result of the wars we are 
fighting now. Tremendous work is being done by St. John's Hospital and 
Missouri State University in Springfield to see what can be done to 
develop better ways to deal with those eye wounds. With IEDs as a 
principal tool of our opponents, our enemies in this war, your eyes are 
the hardest thing ultimately to protect. Twelve percent of our wounded 
warriors have eye wounds. Hopefully we can look to see what we can do 
to provide greater protection and greater recovery from those wounds.
  I join all Missourians in thanking those who serve. I think all of us 
will show greater commitment to those who serve by actually having a 
Defense authorization bill that sets out a plan for the future.
  I am particularly pleased that this bill contains funding for 
modifications of the B-2 bomber's mixed load capacity. Most of our 
Stealth bombers operate out of Whiteman Air Force Base in Missouri and 
we discovered, as recently as the operation in Libya, that operations 
with our B-2 bombers are not as efficient as they need to be or could 
be, simply by making that loading capacity work differently. That is 
the kind of thing we are going to have to do as we look at more 
difficult-to-get defense dollars. We are going to have to figure out 
how we spend those defense dollars in the best possible way. I hope the 
Senate language as it is in the bill now prevails in a final bill.
  I also want to call attention to the bill's full authorization of the 
development of the next generation long-range strike bomber and I am 
pleased with the funding in this bill for a vehicle maintenance 
facility at Fort Leonard

[[Page S8092]]

Wood and weapons storage at Whiteman.
  I filed a few amendments to this bill and I will mention a couple of 
them. One I am working on with Senator Gillibrand is an amendment to 
ensure National Guard soldiers mobilized for domestic emergency 
operations are entitled to the same employment rights as others are 
when they come back. Senator Gillibrand and I also worked on a bill to 
ensure that people in the Guard and Reserve, and their families, have 
access to financial and marital and other kinds of counseling as they 
try to put their other life back together.
  I thank my colleagues for bringing this bill to the floor. We face a 
wide variety of threats today, including some that are new and 
constantly evolving--cyber-warfare, WMD, all things that we need to 
take seriously. This is a principal responsibility of the Federal 
Government. I am looking forward to seeing this bill passing the Senate 
today and then to work with the House to get a bill on the President's 
desk so that all who are involved in the defense of the country know 
what the long-term plan is.
  I yield the floor.
  The PRESIDING OFFICER. The assistant majority leader is recognized.
  Mr. DURBIN. Mr. President, I thank my colleague from Missouri, and I 
concur with his comments about our American military. We have the best 
in the world. These men and women serve us well with courage and honor 
every day, and we are fortunate to have them. We are fortunate--those 
of us who enjoy the blessings of liberty and the safety of this 
Nation--to have men and women willing to risk their lives for America.
  This Defense authorization bill is a bill that authorizes the 
continued operations of our military, and every year we pass this bill, 
as we should, in a timely manner. I have supported it consistently over 
the years with very few exceptions and believe the work product brought 
to us by Senators Levin and McCain is excellent, bipartisan, and moves 
us in a direction toward an even safer America, and I thank them for 
all the work they put into it.
  There are provisions within this bill today which trouble me greatly. 
There are provisions on which I hope Members of the Senate will 
reflect, one in particular that I will address at this time. Senator 
Feinstein is offering amendment No. 1125, which I am cosponsoring. I 
would say this amendment raises a serious question about section 1032 
in this bill. I am concerned this section would limit the flexibility 
of any President to fight terrorism. I am concerned it will create 
uncertainty for law enforcement, intelligence, and our military 
regarding how to handle suspected terrorists. I think it raises 
fundamental and serious constitutional concerns.
  This provision, 1032, would, for the first time in the history of the 
United States, require our military to take custody of certain 
terrorism suspects in the United States. On its face, that doesn't 
sound offensive, but, in fact, it creates a world of problems. Where do 
we start this debate?
  We understand the responsibility of Congress in passing laws and the 
President with the option to sign those laws or veto them and the 
courts with the responsibility to interpret them. When it comes to the 
protection of this country in fighting terrorism, most of us have 
believed this is primarily an executive function under Presidents of 
both political parties. We may disagree from time to time on the 
PATRIOT Act and other aspects of it and debate those issues, but, by 
and large, I think we have ceded to Presidents of both parties the 
power to protect America.
  My colleague and friend, Senator Lindsey Graham, a Republican of 
South Carolina, on September 19, 2007, stated--and he states things 
very colorfully and clearly--

       The last thing we need in any war is to have the ability of 
     535 people who are worried about the next election to be able 
     to micromanage how you fight the war. This is not only 
     micromanagement, this is a constitutional shift of power.

  That was Senator Graham's statement in 2007. Although I would 
carefully and jealously guard the constitutional responsibility of 
Congress when it comes to the declaration of war, even the waging of 
war, I do believe there is a line we should honor. We should not stop 
our President and those who work for him in keeping America safe by 
second-guessing decisions to be made.
  Today, again, on the Republican side of the aisle came colleagues who 
make the argument that it is a serious mistake for us to take a 
suspected terrorist and put them into our criminal justice system. They 
argue the last thing in the world we want to do is to take a suspected 
terrorist and read them their constitutional rights: the right to 
remain silent, everything you say can be used against you, the right to 
counsel. They argue that is when terrorists will clam up and stop 
talking. Therefore, they argue, suspected terrorists should be 
transferred to military jurisdictions where Miranda rights will not be 
read. On its face it sounds like a reasonable conclusion. In fact, it 
is not. It is not.
  Since 9/11, we have arrested and detained 300 suspected terrorists, 
read them their Miranda rights, and then went on to prosecute them 
successfully and incarcerate them. They cooperated with the Federal 
Bureau of Investigation, gave information, and in many cases gave 
volumes of information even after having been read their rights. So to 
argue that it cannot be done or should not be done is to ignore the 
obvious. Three hundred times we have successfully prosecuted suspected 
terrorists, and America has remained safe for these 10 years-plus since 
9/11. How many have been prosecuted under military tribunals in that 
period of time? Six, and three have been released. We are keeping this 
country safe by giving to the President and those who work for the 
President in the military intelligence and law enforcement community 
the option to decide the best course of action when it comes to 
arresting, detaining, investigating, and prosecuting an individual.
  Remember the man who was on the plane flying into Detroit a couple of 
years ago? He tried to detonate a bomb on the plane. His clothing 
caught fire, and the other passengers subdued him, restrained him. He 
was arrested, investigated by the FBI, and read his Miranda rights. 
Within a day his parents were brought over. The following day he 
decided to cooperate with the United States and told us everything he 
knew. At the end of the day, he was prosecuted, brought to trial, and 
pled guilty. He went through our regular criminal court system, though 
he was not an American citizen, and he was successfully prosecuted. 
President Obama had the right to decide what best thing to do to keep 
America safe, and he did it. Why would we want to tie his hands?
  Now let me talk about this section 1032 and why it is a serious 
mistake. Section 1032 in this bill would for the first time in American 
history require the military to take custody of certain terrorism 
suspects in the United States. From a practical point of view, it could 
be a deadly mistake for us to require this. Listen to what was said by 
the Justice Department in explaining why:

       While the legislation proposes a waiver in certain 
     circumstances to address concerns, this proposal inserts 
     confusion and bureaucracy when FBI agents and 
     counterterrorism prosecutors are making split-second 
     decisions. In a rapidly developing situation--like that 
     involving Najibullah Zazi traveling to New York in September 
     of 2009 to bomb the subway system--they need to be completely 
     focused on incapacitating the terrorist suspect and gathering 
     critical intelligence about his plans.

  Instead, this provision, 1032, written into this law, would require a 
handoff of terrorism suspects to military authorities. So what does our 
military think about this?
  Well, the Secretary of Defense Leon Panetta made it abundantly clear 
when he said:

       The failure of the revised text to clarify that section 
     1032 applies to individuals captured abroad, as we have 
     urged, may needlessly complicate efforts by frontline law 
     enforcement professionals to collect critical intelligence 
     concerning operations and activities within the United 
     States.

  What we have seen, then, as our Secretary of Defense tells us, ceding 
to the military this authority could compromise America's security at a 
critical moment when every second counts, when the gathering of 
intelligence could literally save not just a life but thousands of 
lives.
  Senator Feinstein's amendment makes it clear--as the administration

[[Page S8093]]

wants to make it clear--that those terrorism suspects who are arrested 
abroad will be detained by the military. But within the United States 
we are told by this administration this provision will jeopardize the 
security of our country, will require a procedure now to hand off these 
individuals to the military side in places where they could not 
possibly be handed off quickly or seamlessly.
  We have 10,000 FBI agents dedicated to the security of this country 
when it comes to these national security issues and 56 different 
offices. We don't have anything near that capacity when it comes to the 
military picking up the interrogation of an individual who may have 
knowledge that if we can glean it from that person could save thousands 
of lives.
  Why in the world do we want to tie the hands of law enforcement? Why 
do we want to tie the hands of the intelligence community? Why do we 
want to create this situation of giving to the military this 
responsibility when they are not prepared at this moment to take it?
  I think Senator Feinstein is doing the right thing for the protection 
of this country. Her position is supported by the Attorney General, by 
the Secretary of Defense, and by the intelligence community. They have 
done a good job in keeping America safe. They have asked us: Please, do 
not micromanage. Do not presume, do not create another hurdle for us 
when it comes to gathering information that can save lives in America.
  Why would we do that? After more than 10 years of success and 
avoiding another 9/11, let's not make the situation worse by this 1032, 
this section of the bill that is being presented to us.
  I know we will hear arguments on the Senate floor, well, there are 
opportunities for a waiver. So if a person is detained by the Federal 
Bureau of Investigation and then it is determined that this is a 
suspect who falls in the category and needs to go to military detention 
and then we need to turn to the executive side for a waiver of that 
military detention, how much time will be lost? Will it be minutes, 
hours, days? Could we afford that if what is at stake is the potential 
loss of thousands of American lives? Why? Why make it more complex?
  I cannot understand why the other side of the aisle is now so 
determined with this President to micromanage the defense of this 
country when it comes to terrorism. When it was a Republican President 
any suggestions along those lines were dismissed as unpatriotic and 
unwise and illogical. Now, under this President, everything is fair 
game. They want to change the rules, rules which have successfully 
protected the United States for more than 10 years.
  I urge my colleagues to support Senator Feinstein's amendment No. 
1125 and amend this section 1032 and make sure that our Defense 
Department, military and law enforcement, as well as intelligence 
community have the tools they need to continue to keep America safe.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. CORNYN. Mr. President, I ask unanimous consent that I be 
recognized to speak as in morning business for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The senior Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask unanimous consent that when we return 
to the bill, which will be after Senator Cornyn speaks, we move 
immediately to Feinstein amendment No. 1125, and that there be a 30-
minute debate evenly divided and that the vote would occur immediately 
following that.
  I withdraw my request.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I want to talk about something that is all 
too rare, and that is bipartisan support for an important piece of 
legislation that not only fulfills America's commitments to our ally, 
Taiwan, under the Taiwan Relations Act of 1979, but it helps stabilize 
a critical region of the world--that would be in Asia--and particularly 
the growing tensions between Taiwan and China. It also creates jobs in 
America by facilitating foreign military sales of things made here in 
America, by Americans, that we are going to sell to people in other 
countries--our friends in other countries--for cash and doesn't cost 
taxpayers a penny.
  My amendment No. 1200 is pending before the Senate, and I was pleased 
in introducing this amendment to be joined by several of my colleagues 
on a bipartisan basis: Senator Menendez from New Jersey, Senator Inhofe 
from Oklahoma, Senator Lieberman from Connecticut, Senator Wyden from 
Oregon, and Senator Blumenthal from Connecticut.
  This amendment is straightforward and simple. It would require the 
President to carry out the sale of 66 F-16C/D aircraft to Taiwan. These 
are American-made fighters our Democratic ally in Taiwan has been 
trying to purchase since 2007. As I said earlier, this is a win-win 
amendment. It reflects the right national security policy, and it is 
good for the American economy and jobs. We know Taiwan's Air Force 
continues to deteriorate.
  First, let me just remind my colleagues what Taiwan is looking at in 
terms of the disparity in combat aircraft between Communist China and 
Democratic Taiwan.
  Communist China has roughly 2,300 operational combat aircraft. Our 
ally and friend democratic Taiwan has 490 operational combat aircraft--
obviously a growing imbalance in the Taiwan Strait. But that only tells 
part of the story because, as my colleagues also know, this chart 
indicates the incredible shrinkage of Taiwan's air force, that many of 
Taiwan's combat aircraft are F-5 aircraft which America has previously 
sold to Taiwan but which are now becoming older and more obsolete as 
time goes by, as well as French Mirage 2000 aircraft. As this chart 
indicates, around roughly 2020, maybe even before, these aircraft are 
going to become completely obsolete, and we will see the huge cliff 
and, in fact, exacerbate the disparity between Communist China and our 
democratic ally Taiwan.
  This F-16 sale would be an export-driven job machine for our country 
at a time when unemployment is at 9 percent and when the No. 1 issue on 
America's agenda is job creation. People without jobs can't pay their 
mortgages, and they lose their homes due to foreclosure. Why in the 
world, when this sale would support jobs in 32 different States and the 
District of Columbia, would anyone object to this amendment? Indeed, as 
I indicated, I believe there is strong bipartisan support for it. This 
sale would support more than 60 job-years of employment and generate 
some $8.7 billion in economic output. It would also generate $768 
million in taxes for the Federal Government.
  As I indicated, Taiwan's air force is facing a looming fighter 
shortfall. The fact is, this falls squarely in Congress's wheelhouse. 
The Taiwan Relations Act that I referred to earlier was, in 1979, 
signed by President Jimmy Carter with bipartisan support. It requires 
the U.S. Government to provide Taiwan, our friend and ally, with the 
defense articles necessary for them to defend themselves against 
Communist Chinese aggression, and it instructs the President and the 
Congress to determine the nature and quantity of such defense articles 
based on their judgment of the needs of Taiwan.
  Forty-seven Democrats and Republicans in the Senate--almost half--
have signed a letter to the President of the United States supporting 
this sale. In the House of Representatives, 181 Democrats and 
Republicans have signed a letter to the President supporting this sale.
  As my colleagues will recall, in September the Senate voted on an 
amendment like this in the trade adjustment authority assistance bill, 
which ended up in a 48-to-48 tie. Although the bill had strong 
bipartisan support, some of my colleagues said they preferred not to 
offer that amendment on that particular legislative vehicle but said 
that if I came back on an appropriate legislative vehicle, they would 
support it. And if there is a more appropriate legislative vehicle than 
the Defense authorization bill, I hope someone will point that out to 
me. This is the appropriate vehicle. This is the appropriate time. This 
is the right thing to do for job creation in America. It is the right 
thing to do in terms of our national security and stability in Asia. 
That is why I believe this is an appropriate time for us to take up 
this amendment.

[[Page S8094]]

  I was advised by the Parliamentarian that my original amendment as 
drafted would not be germane postcloture. However, in consultation with 
the Parliamentarian, we have come up with a technical modification 
which essentially would strike what are called the findings that would 
support the need for the legislation. In essence, it strikes the A 
section and the B section and leaves only the C section remaining. 
This, of course, at this point in the proceedings would require 
unanimous consent.
  In consultation with Senator McCain, the ranking member of the Senate 
Armed Services Committee, I am advised that our friends across the 
aisle will not grant unanimous consent for us to modify what is really 
a technical modification for this amendment so we can get a vote on it. 
I realize that at this point we are in morning business and it is not 
appropriate, perhaps, for me to ask unanimous consent, but I will ask 
unanimous consent at a later and appropriate time because I would like 
to get an explanation from the distinguished chairman of the Armed 
Services Committee as to why in the world there would be an objection 
to an amendment that enjoys such broad bipartisan support on a clearly 
appropriate legislative vehicle.
  Madam President, I see the distinguished chairman on the floor. So I 
would at this time, if it is appropriate, ask unanimous consent to 
modify my pending amendment, to strike the findings under section A and 
under section B, and to leave section C, which states in full:

       Sale of aircraft. The President shall carry out the sale of 
     no fewer than 66 F-16 C and D multirole fighter aircraft to 
     Taiwan.

  We have been advised by the Parliamentarian that this section is 
indeed germane and would be eligible for a vote with that modification. 
So I ask unanimous consent to so modify my amendment.
  The PRESIDING OFFICER (Mrs. Hagan). Is there objection?
  Mr. LEVIN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, there is objection on this side, and I 
will attempt to bring together Senator Cornyn and the objectors so he 
can hear from them why they object, but in the meantime I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Texas.
  Mr. CORNYN. Madam President, I am disappointed, but more than 
disappointed, I look forward to that explanation. I hope there will be 
an opportunity to have a colloquy and a discussion here on the floor so 
the American people can see why a piece of legislation that enjoys such 
broad bipartisan support can't even get a vote.
  When people watch what is happening in Washington these days, I think 
they are tempted to avert their gaze because they ask the question of 
me--and I am sure, when the Presiding Officer is back in North 
Carolina, of her as well--why can't people get anything done? Well, it 
is because, unfortunately, of things like this. These are technical 
objections that are not based on the substance or the merit of the 
legislation.
  I respect the chairman of the Armed Services Committee, who says 
there is an objection on the Democratic side, and he personally is not 
making that objection but is on behalf of some unnamed other party. I 
hope that person will be named. I hope they will come to the floor. I 
hope they will explain to the American people and to our Democratic 
allies in Taiwan why it is they object to a vote on this amendment.
  I believe that if we are able to get a vote on the Defense 
authorization bill, this has a high likelihood of passage, and I think 
it would send a strong message to our friends and allies around the 
world that, yes, you can count on your friend and ally, the United 
States of America. Conversely, if we are thwarted in our attempt to try 
to get this amendment voted on and passed, then this will send a 
countervailing message--that you cannot depend on America--and it will 
embolden bullies around the world.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Michigan.

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