[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
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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.
____________________