Congressional Record, Volume 159 Issue 56 (Tuesday, April 23, 2013)

[Congressional Record Volume 159, Number 56 (Tuesday, April 23, 2013)]
[Senate]
[Pages S2866-S2871]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

MARKETPLACE FAIRNESS ACT OF 2013--MOTION TO PROCEED

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed to S. 743, which the
clerk will report.
The assistant legislative clerk read as follows:

Motion to proceed to the consideration of Calendar No. 41,
S. 743, a bill to restore States' sovereign rights to enforce
State and local sales and use tax laws, and for other
purposes.

The PRESIDING OFFICER. The Senator from Montana.
Mr. TESTER. Mr. President, I wish to speak on this bill. It is called
the Marketplace Fairness Act. It will not do anything but damage to the
marketplace, in my opinion.
This bill will impose new burdens on our small businesses. Let me
repeat that. It will place new burdens on our small businesses. I have
heard folks come to the floor and talk about how great this is going to
be for small businesses. This is going to be terrible for small
businesses. Small businesses are going to have to bring on more people.
This is going to be more bureaucracy, with more accountants, more
lawyers. This should be called the bill to employ more attorneys and
more CPAs.
The fact is, I do not think the attorneys want this kind of work, nor
do the CPAs want this kind of work, because what it will do is
fundamentally alter the rights of States by allowing them to tax
entities outside their borders.
Who is put at risk by this? Small businesses. If the small business
screws up, by the way, they are the ones who are held accountable. We
talk about this big old database out there that these folks are going
to be able to dub into to determine what the sales tax is for a single
entity of the 9,600 cities and States and municipalities that collect
sales tax. If the business gets it wrong, they are the ones that have
the penalty. I am going to tell you that small businesses are not that
profitable to be able to go through this kind of an exercise.
In Montana we are in a little different situation. In Montana our
budget has a surplus because we have handled our money wisely.
Montanans do not pay a sales tax, we do not have a sales tax, and the
people of the State of Montana have twice voted against having one. But
our budget continues to operate with a surplus without that sales tax.
Now we are going to have other States balance their budgets on the
backs of Montana's hard-working small businesses. It is wrong and,
quite frankly, it is insulting. In fact, Virginia--right close here--
has already counted these funds as part of their budgeting for a new
transportation plan.
I would say this is bad policy that I hope--I know what the cloture
vote was yesterday--people take a look at because this is not the
direction this body should be going. At a bare minimum, we should send
this bill to committee and let the Finance Committee deal with it.
This has some real problems. It has real problems from an
implementation standpoint. If we go down this road, it is a very
slippery slope; it is going to create more bureaucracy; it is going to
create more burdens for small businesses, including new liabilities for
incorrectly collecting this sales tax, as I talked about before.
There are 9,600--let me say it again--there are 9,600 cities, States,
and municipalities that collect taxes--different taxes: higher taxes on
candy than in a different jurisdiction, sometimes no taxes on food. The
list goes on and on and on.
It also leaves questions unanswered about how this could impose new
taxes on financial transactions and 401(k) plans. It is bad policy.
What businesses will out-of-State tax collectors go after next? It is
an aberration of States rights--rights which so many in this Chamber
have supported.
It is a situation where we are going down a road that, quite frankly,
we have not gone down before from a States rights standpoint. If we do
this, I think it opens a Pandora's box, so to speak, as to new rules,
new laws that potentially come down, using this as a basis for it.
As I said before, I empathize with the situation of States that have
had their budgets underwater. But they ought not be looking at other
States' small businesses--in our case Montana's small businesses--to
get their budgets in balance.
I would urge my colleagues to vote against this bill. It would gut
States rights. It would impose new tax burdens on small businesses and
middle-class Americans. Quite frankly, this is bad policy, and we
should not be passing bad policy around here.
I thank the Presiding Officer and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I rise in support of the legislation that
is on the floor, the Marketplace Fairness Act. I rise as someone who
has spent 20 years in the technology business helping to fund and
develop online businesses, understanding the importance they play to
our economy, and applaud the enormous growth of Internet-based
businesses.
But I also rise in support of this legislation, because in addition
to being a technology investor, I also was a Governor and know the
importance that sales tax plays in funding so many critical State and
local functions. Unfortunately, under the current circumstances, we
have an uneven playing field because local small businesses, oftentimes
bricks and mortar, follow the law and collect sales taxes from
customers who make purchases in their stores while, on the other hand,
many large online businesses that may be located or domiciled in some
other State do not collect the same sales taxes. I think on this floor
already we have heard repeated stories of some online retailers that
even encourage people to go to the brick-and-mortar store to look, go
out and price a product and then go back and go online and purchase
that product. Not only does that discriminate against the brick-and-
mortar store, but from a public policy standpoint, if these sales taxes
are not collected, it creates an unlevel playing field between the
online vendor and the brick-and-mortar store.
This legislation will help level the playing field. It is about
fairness. It is about having a level playing field for all types of
retail outlets. Let me make clear, all it simply does is require every
business to collect and remit an already legal sales tax that has been
put in place at a State or local level.
Because of this unequal playing field, because of current
circumstances, because there has been a failure amongst many of our
online vendors to collect these sales taxes, this creates a direct and
immediate impact on State and local governments. As a former Governor,
I can tell you the inability of States and localities to gather
uncollected revenues undermines dramatically their ability to invest in
K-12 education, police and fire prevention, funding for roads and
bridges, public safety, environmental causes. You name it, all the
basic core services that State and local governments perform, so many
of them are directly funded in a major way by local or State sales
taxes.
I would also like to mention how important this bill is to the
Commonwealth of Virginia. Most recently in the Commonwealth, Virginia's
leadership, with a Republican Governor and a bipartisan legislature,
finally enacted legislation to make significant investments in our
outdated and overstressed transportation network. Many of the folks
work on the Hill or those of my colleagues who happen to live in
Virginia know that traffic in Northern Virginia is at an almost
debilitating point. We have finally in Virginia passed a funding source
to try to address the transportation needs of Virginia.
Part of this solution, though, anticipates revenue from this
legislation. So if we are going to be able to solve the transportation
crisis that confronts not just Northern Virginia but all of Virginia,
Virginia has to have the ability to collect all of its sale tax
revenue. This is a large amount. The current uncollected amount of
sales tax revenue in Virginia is estimated to be $422 million over the
past year.
That number is going to continue to increase as more and more vendors
go

[[Page S2867]]

online. Nationally, the amount is a staggering $23 billion. Again, as I
mentioned earlier, at a time when our States and municipalities are
struggling to maintain essential core services or government, I think
it is irresponsible of us at the Congressional level to, in effect,
interfere or not allow these States and localities to collect sales
taxes that they have put in place, that are collected from vendors that
are in their communities but not certain vendors who operate online.
I would like to take a moment also to address a couple of the
concerns I have heard from my community in Virginia. I say there are
ways to improve this bill. I am grateful the Northern Virginia
technology community is generally supportive of this legislation. They
have raised some concerns, concerns I would like to address.
First, there is discussion about the small seller exemption. The
current legislation says that those small sellers online that have less
than $1 million in sales will be exempted from this regulation. It is
important that a startup business gets going online, that we do not put
undue bureaucratic and other restrictions in place. There have been
some suggestions that that $1 million small seller exemption is too
small. I think perhaps looking at a slightly higher number may make
some sense.
But there have been some who suggested we would take this number all
the way up to $15 million. I have to tell you, I believe taking the
small seller exemption up to $15 million per year in revenues would
dramatically undermine this legislation and dramatically cut back the
$422 million Virginia has left on the table and the $23 billion that is
estimated to be left nationally.
So, yes, we can look at something a little larger than $1 million but
to go up to $15 million would be much too high.
Second, I think there have been reasonable questions about how to
make sure, where we are going to create an audit trail, and where we
are going to allow those vendors to remit back, not to the literally
hundreds of jurisdictions that collect these kind of taxes but to be
able to simply remit to a single point of contact.
I think the legislation moves forward in this direction. I again
would look at other opportunities. On the issues of remittance, the
legislation does put in place a requirement that every State would have
a single point of remittance, which I think strikes the right kind of
balance needed to not create an undue burden.
On the question of audits, I think there is more work that can be
done. I believe there is an analogy here to the telecommunications
industry I used to be part of. In the early days of the cell phone
industry, there were clearinghouses that were allowed to, in effect, be
the settlement agencies between a variety of competing cell phone
systems when we were charged roaming charges. I think we can look to
some examples in that industry and others to make sure that in a look-
back basis, there is an ability to have a single point of audit so
those vendors, particularly small vendors, make sure they get a fair
shake.

Finally, I think we need to make sure that, particularly for these
smaller vendors, we do all we can to make it easy for them to comply
with the law. I am pleased this legislation requires States to make
available, at no cost to retailers, common software that will basically
calculate the State and local sales tax requirements for any of these
online vendors, as well as kind of build in some of the administrative
services. I think this is an important step to make sure we continue to
allow the entrepreneurial spirit to grow online as well as in the local
community.
Again, I think it is terribly important to remember that all we are
doing in this legislation is making sure there is a process in place to
collect sales taxes that are already due.
Two final comments before I yield the floor. During the course of
this debate, some opponents of the Marketplace Fairness Act have made
statements about what this bill might possibly do that I do not think
are reflected in the legislation.
Among those claims, there is a claim that this bill is the first step
toward a State or local transaction tax on the purchase of stocks or
derivative contracts. I have reviewed this legislation closely. There
is nothing in this legislation that would make it be the first step on
a slippery slope toward a transaction tax. There is nothing in this
bill that would prohibit that kind of tax. States already have that
ability. This legislation will do nothing to take a step toward that.
So I think that claim being made by some is not accurate and does not
reflect the legislation.
Finally, this legislation comes about because at the beginning of the
development of online sales, there was a belief, perhaps accurate at
that moment in time, that this growing industry of online retailers
needed an extra little benefit, an extra little head start, an ability
to have this industry not be squashed at its outset. I think history
has shown, as we have seen the growth of retail sales online go up
dramatically, faster than the growth of retail sales in bricks and
mortar, that whatever needed boost the online industry might have
needed at some point, that they now have become an extraordinarily
important and successful part of our economy.
I commend all those and many other companies I had the ability to
help fund when I was in the private sector. I welcome their success.
Online businesses continue to be one of the areas for most
entrepreneurial activity. I commend those efforts. But I do believe, in
2013, we do not need to perpetuate what has become at this point an
unlevel playing field.
I believe the Marketplace Fairness Act will correct that unfairness,
correct this unlevel playing field. I was pleased to see the
overwhelming bipartisan majority that voted to invoke cloture. I hope
this week we will be able to finish considering this bill, get it
passed, and get it sent over to the House.
I yield the floor and suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. McCAIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

Boston Bombing

Mr. McCAIN. Mr. President, there has been a great deal of
misunderstanding about the position the Senator from South Carolina, I,
and others have taken on the detention and interrogation of the suspect
in the Boston bombing. None of us is saying the suspect should be
indefinitely detained as an enemy combatant by the U.S. military or
tried in a military tribunal. The suspect is a U.S. citizen and must be
treated accordingly, and he will be. What we are saying is that the
importance of treating the suspect in accordance with his rights as an
American citizen must be balanced with our government's top national
security priority, which is the lawful, effective, and humane
interrogation of this subject for the purposes of gathering
intelligence.
The Boston attacks were clearly inspired by the violent ideology of
transnational Islamist terrorism. We need to learn everything we can
about what foreign terrorists or terrorist groups the suspect and his
brother may have associated with, whether they were part of additional
plots to attack our Nation, and what other relevant information the
suspect may possess that could prevent future attacks against the
United States or our interests.
We need to delve further into this whole issue of the education some
people who are motivated by these base ideologies obtain over the
Internet and the effect it is having. We should at least know about
this.
Our civilian justice system offers a responsible option for striking
this balance with American citizens. It allows the Justice Department
to delay reading a suspect his Miranda rights if doing so is in the
interest of ``public safety.'' The administration had rightly invoked
this public safety exception in the case of the Boston suspect, which
provided our national security professionals a discrete period of time
to gather intelligence from the suspect without the presence of his
lawyer.
However, soon after questioning him in this manner, the
administration recently reversed itself and read the suspect his
Miranda rights. In doing so, the administration gave up a valuable
opportunity to lawfully and thoroughly

[[Page S2868]]

question the suspect for purposes of gathering intelligence about
potential future terrorist plots. Whether we will be able to acquire
such information has now been left entirely at the discretion of the
suspect and his lawyer. Put simply, the suspect has been told he has
the right to remain silent. If he doesn't want to provide intelligence,
he doesn't need to.
Is this a responsible balance between a citizen's rights and our
national security? The suspect had only been responsive for a couple of
days before he was read his Miranda rights. Even then, he could not
communicate verbally. Does anyone really believe our national security
professionals were able to acquire all of the relevant intelligence
possessed by a subject who couldn't speak in only 2 days? This is not a
responsible balance between civil liberties and national security.
From the very beginning of this debate, the Senator from South
Carolina, the Senator from New Hampshire, I, and others have maintained
that the administration should reserve its right to hold the suspect as
an enemy combatant for the purpose of gathering intelligence. This was
not the only option or even the ideal option. In light of the
administration's decision not to continue questioning the suspect under
the public safety exception, the only option we are left with is
lawfully questioning the suspect as a potential enemy combatant.
The full extent of whether the suspect is linked to al-Qaida or its
associated forces remains unclear. The brother's trip to Russia
certainly should be the subject of an inquiry. Additional questioning
is critical to making it clear.
Today there is ample evidence that would allow the administration to
question the suspect for key intelligence. The consequence of not doing
so is that our need to question the suspect for such intelligence is
left solely at his discretion and willingness to cooperate. This is not
a responsible approach to the national security of this country.
Again, this is not to say that we must hold the suspect indefinitely
in military detention, nor that the suspect must be or should be tried
in a military tribunal. In both cases, there is plenty of precedence
for holding a terrorism suspect as an enemy combatant for a limited
time before moving him into the criminal justice system for the purpose
of standing trial in civil court. What is more, the Supreme Court has
consistently upheld the legality and constitutionality of this
approach, as well as the ability to hold American citizens as enemy
combatants. Ultimately, the broader question is whether one views the
United States as part of the battlefield in the global fight against
terrorists. I know some don't. I, however, do not see how we can avoid
this fact. Those who seek to attack us certainly view the homeland as
part of the battlefield--indeed, the central part.
Of course, there will always be and should be differences in how we
handle events in the United States and events overseas and differences
in what rights are due to American citizens as opposed to foreign
citizens. Yet we cannot afford to build a wall between the fight
against terrorists abroad and the fight against terrorists who are
trying to attack us here at home, including when American citizens are
involved in this fight, as some clearly are, and will continue to be.
Just because some don't seem to want to grapple with the difficult,
unprecedented legal issues this war presents does not mean they will
cease to be real challenges. If we pretend the homeland, the United
States of America, is not part of this battle, I believe it will only
be a matter of time before we learn this lesson the hard way.
I say to many who are reporting on this issue, I hope it is clearly
understood that we are not saying the suspect should be indefinitely
detained as an enemy combatant by the U.S. military or tried in a
military tribunal. The suspect is a U.S. citizen and must be treated
accordingly, and he will be.
During the now-famous discussion of 13 hours on the floor of the
Senate, there were certain comments made that I think are important to
recall.

The battlefield coming to America or acknowledging that is
an enormous mistake.

I am quoting from the debate that took place.

Alarm bells should go off when people tell you that the
battlefield's in America.
I'm here to argue that we can't let America be a
battlefield because we can't say that we're no longer going
to have due process, that we're no longer going to have trial
by jury, that we're no longer going to have presentment of
charges in grand juries. It is impossible in a battlefield.

This is another quote:

[W]hen people say, oh, the battlefield's come to America
and the battlefield's every--where the war is limitless in
time and scope, be worried, because your rights will not
exist if you call America a battlefield for all time.

The Chair understands as well as anyone that the people of Boston and
the people of Massachusetts, of the Commonwealth of Massachusetts,
would clearly take exception to a statement such as ``the battlefield
coming to America or acknowledging that is an enormous mistake.'' The
people of Boston are very well aware that the battle comes to the
United States. There are many attempts for it to come to the United
States. Tragically, it came to the United States of America in a most
tragic and terrible way.
We need to have a larger debate here about the location of the
battlefield. To somehow believe the ultimate target of these radical
Islamic extremists and other extremist elements is not the United
States of America is a gross misreading of what this fight against
terrorism is all about.
Quoting from a Wall Street Journal editorial, as I have done in the
past:

The Boston bombing also ought to chasten libertarians who
keep insisting that the U.S. homeland is not part of the
terror battlefield.
``It's different overseas than it will be here. It's
different in the battlefield than it will be here,'' [one
Member] told Fox News earlier this year. ``Which gets
precisely to the argument I have with some other Republicans
who say, well, `the battlefield is everywhere. There is no
limitation.' President Obama says this. Some members of my
party say the battle has no geographic limitations and the
laws of war apply. It's important to know that the law of war
that they're talking about means no due process.''
Boylston Street looked like a boulevard on Monday, and so
did Watertown on Thursday night. The artificial distinction
[arises from undue] focus on geography. The vital distinction
for public safety is between common criminals, who deserve
due process protections, and enemy combatants at war with the
U.S., wherever they are.
As for due process, the greatest danger to liberty would be
to allow more such attacks that would inspire an even greater
public backlash against Muslims or free speech or worse. The
anti-terror types on the left and GOP Senators who agree that
the U.S. isn't part of the battlefield are making the United
States more vulnerable.
Americans erupted in understandable relief and gratitude on
Friday with the rapid capture of the terrorist brothers. But
we shouldn't forget that their attack succeeded, with
horrific consequences for the dead, the wounded and their
loved ones. The main goal now is to prevent the next attack.

How do we prevent the next attack? We find out as much information as
possible as to what motivated this attack.
Mr. President, I ask unanimous consent that the Senator from South
Carolina be included in the colloquy.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. McCAIN. We wish to make sure our position is very clear. We are
not saying the subject should be indefinitely detained by the U.S.
military or tried in a military tribunal. The suspect is a U.S. citizen
and must be treated accordingly, and he will be.
The tragic events we saw in Boston bring home again that this fight
is far from over. I don't know if these young men were motivated by the
information they received, whether it was overseas or whether it was
due to the Internet and various influences there. What we do know is
that while living in this country, they changed from apparently normal
young people into terrorists who were willing to do anything to take
the lives of their fellow American citizens.
The battlefield is the United States of America. Anyone who doesn't
believe this ignores the events from which we are recovering.
I yield to the Senator from South Carolina, who has probably been
more widely quoted than I have, and request that he clear up this exact
situation we are calling for which, frankly, is being portrayed
inaccurately in a great deal of the media.
Mr. GRAHAM. Very simply put, I have two goals. I think Americans

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want two things to happen in this case. They want the surviving suspect
to be brought to justice. I am glad he survived, as hopefully we may
learn some information from him that will make us all safer in the
future. I am pleased he survived so we may try him in a court of law,
before a Federal court in Massachusetts, to hold him accountable for
his crimes. In the trial, he will be given a lawyer. He has the right
to remain silent. He will be tried by a jury. He will be given all the
rights associated with a Federal court trial. He is an American
citizen, and we have never suggested otherwise.
As one of the primary authors of the 2009 Military Commissions Act, I
expressly exempted American citizens from military commission trials.
Why? I wanted to reserve that system for foreign terrorists. It doesn't
mean I don't believe there will be domestic terrorism. It doesn't mean
I don't envision an American citizen helping the foreign enemy. I do.
Every war, unfortunately, we have been in during the history of our
country, American citizens have joined forces and sided with the enemy.
This is not an unusual event. What would be unusual is to say one could
do so and not be treated under the law of war. We would be making
history if we adopted that view.
Let me begin with a case in World War II. German saboteurs landed in
Long Island. They had been planning for years an effort to come to our
country. These were Germans who had lived in our country and went back
to Germany and became Nazis. Because they spoke good English, they were
recruited by the German intelligence service to come back and plan
massive attacks on our homeland.
They had a cell here in America, some of whom were American citizens
who joined the plot. Thanks to the great FBI work of this time and day,
as soon as they landed the plot was foiled and the American citizens
were captured. In 1944, 1945, and possibly as late as 1946, the
American citizens who aided the German saboteurs were held as enemy
combatants and tried in a military court. Three of them were hanged.
The case went to the U.S. Supreme Court, and the Supreme Court said:
When you join the forces of our enemy, you are committing an act of
war, not a common crime.
Tokyo Rose sided with the Japanese. She was tried and given a life
sentence. Since 9/11, there have been three American citizens who have
been involved with al-Qaida or the Taliban or affiliated groups. They
have been held as enemy combatants. They have gone to trial in civilian
court and the courts have blessed the holding of American citizens as
enemy combatants.
Rumsfeld v. Hamdi was an American citizen captured in Afghanistan
held under the law of war as an enemy combatant. He was eventually
tried and the Court said, as in World War II, we can hold one of our
own as an enemy combatant, recognizing the difference between a common
crime and the law of war.
Mr. Padilla was held 4 years by the Bush administration. His case
went up to the Fourth Circuit and the Fourth Circuit said: Yes, you can
hold enemy combatants off the battlefield. That is the power the United
States possesses at a time of war.
When you are fighting a war, the goal is to win the war and to find
out about what the enemy is up to. When you are fighting a crime, the
goal is to convict someone or have them found innocent. They are two
different systems.
This young man will be going to Federal Court and a jury will decide
if he is guilty of his crimes. What we are asking of the administration
is: How do you gather intelligence in that system? It is not meant to
gather intelligence. We don't want to limit ourselves as a Nation to
asking questions about future attacks in the criminal justice system
because here is the way that works. If I am his lawyer, I am not going
to let you ask him any question about anything until I get a benefit
for my client. So intelligence gathering now is controlled by the
terror suspect and his lawyer. Is that smart? Now you are having to
plea bargain to get intelligence.
What we are saying is, conduct the trial in civilian court--the only
form available--but because there are international terrorist
connections here--clearly they killed people in Boston not because they
wanted their property or they were mad with the Boston city government,
they killed--they slaughtered a young boy and his family and others
because they have adopted a radical jihadist view of us as a Nation.
The older brother was quoted as saying we are infidels, we are a
colonial Christian power, we have corrupted Islam. They are trying to
kill us and destroy our way of life because of what we believe.
The sooner we understand that, the better off we will be.
Here is my view about defending ourselves as a Nation. A criminal
court is about due process and giving the accused a fair trial.
Military intelligence gathering is about defending the Nation at war.
The question we all have to answer for ourselves is: Is America at war?
The answer, to me, is yes. We are at war with a radical ideology that
hates everything we stand for.
Bin Laden is dead. We celebrate that. But al-Qaida is very much on
the march. As a matter of fact, radical Islam is regenerating, and the
way they are coming after us is to find people in our own backyard and
turn them against us.
How could we have missed this? How could the intelligence services in
Russia tell the FBI: You need to watch this guy; we believe he is a
radical Islamist coming to your country to hurt you? How could we miss
him going to Russia and coming back? How could we miss his YouTube
videos where he is ranting and raving against us and threatening to
take us down as a Nation?
These are questions to be asked and answered. And here is what we are
suggesting: The surviving suspect, due to the ties these two have to
radical Islamic thought, and the ties to Chechnya, one of the most
radical regions in the world, the President should declare
preliminarily that the evidence suggests this man should be treated as
an enemy combatant. We could hold him for a period of time, question
him without a lawyer, and none of the evidence could be used against
him in the criminal proceeding. That is the best way to gather
intelligence. The best way to gather intelligence is to have a rapport
with him, take down the stories he is telling us and deconstruct them;
spend time with him outside the criminal justice system.
We have gathered so much good intelligence from enemy combatants at
Guantanamo Bay. You won't send him to Guantanamo Bay, but during the
last decade we have exploited intelligence from enemy combatants--
people who have joined the other side--and it has helped us figure out
how to defend ourselves and find bin Laden.
All we are saying is when it comes to defending against future
attacks, we want to talk to him without a lawyer. That is all we are
saying. We want to talk to him without a lawyer so we can find out what
he may know about what we face in the future, and when it comes to
prosecuting him, we won't use anything we found against him. A first-
year law student could convict him, but, my God, look what we are
losing as a Nation by using this model. Instead of taking time out to
interrogate him without the presence of counsel to learn about what did
happen, we are now stuck in a criminal justice system where we can't
ask him one question his lawyer won't allow.
I am not blaming the lawyer. My goodness, if I were his defense
lawyer, no one would ask him one thing without my permission, and they
would have to give a lot to get an answer to anything. All I am
suggesting is we are at war, these two people fit the profile of folks
who are trying to kill us, they are tied to overseas organizations
potentially, so why in the world can't our country have some time with
this person in the national security legal system to find out about
what he knows and how they planned this attack, to make the rest of us
safer.
I believe in due process. And he, in that system, can go to a judge
and say, I am not an enemy combatant, and the government would have to
prove he is. So he has due process there. But here is what I believe
deeply, and then I will turn it over to Senator Ayotte of New
Hampshire. I believe the closer one gets to our homeland, the more
rights we have as a people to defend ourselves. I don't want a police
state. I don't want to live in a country where

[[Page S2870]]

we can't express who we are and what we believe in and to argue and
have a different view of religion. But, by God, given the times in
which we live, I don't want to become deaf and blind to the threats
that are real in our own backyard. I want a system that can find out
about guys like this before they kill us.
Let me tell you, ladies and gentlemen, if we don't gather good
intelligence and we don't hit them before they hit us, there is more to
come.
Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator
from New Hampshire be included in the colloquy.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. McCAIN. I ask my colleague for a comment on the issue of whether
the United States of America is a battlefield. Does my colleague agree
with the quote, ``The battlefield coming to America or acknowledging
that is an enormous mistake''?
Mr. GRAHAM. Not only do I agree, who picked the battlefield? I didn't
pick America to be the battlefield. I don't want to be at war with
anybody. They chose the battlefield.
Where do you think they want to hit us most, I ask Senator McCain? If
you could get the top leadership and give them one shot at America
anywhere, where would they take that shot? Would they hit us in France?
They would hit us here. Why? Because they want to destroy our way of
life. They are trying to come here to kill us. All I am suggesting is
we should be able to defend ourselves. And the closer they get to us,
the more rights to defend ourselves we should have.
Let me say I asked the Judge Advocates General of the Army, Navy, Air
Force, and Marine Corps: Is the authorization to use military force
against al-Qaida, the Taliban, or affiliated groups limited to outside
the United States? They said: No, there is no geographic limitation. So
if somebody hijacked a plane tomorrow trying to fly it into the
Capitol, our military could shoot it down. We are not going to restrict
ourselves to the battlefield being everywhere else but in our own
backyard.
Mr. McCAIN. Finally, again, if there were information of an imminent
attack, such as the aircraft that crashed in Pennsylvania that might
have been headed for the Capitol, we would take whatever measures
necessary to prevent it from happening. To somehow say we would not use
every capability in our arsenal to prevent that goes back again to this
fundamental error, fundamental misconception about the nature of
radical extremists where the battlefield clearly is the United States,
and we should be most prepared.
And, by the way, if there is some good news that came out of Boston,
it was that some of the measures that had been taken since 9/11
contributed significantly to our ability to track down and eliminate
this threat far more rapidly than we would have prior to 9/11.
Mr. GRAHAM. Yes, if I may, hats off to the Boston, MA, police
officers, to the Presiding Officer's town. Our heart breaks for the
victims. Bostonians made us proud. They show us how to stay brave. The
FBI and everybody did a great job, but how we missed this I still want
to know.
The Senator from New Hampshire was the former attorney general of New
Hampshire. She knows the difference between fighting a war and fighting
a crime.
I have been a military lawyer, I have been a civilian lawyer, and I
am all very much for the idea of due process being given to everyone
charged with a crime, including this man. He deserves to be presumed
innocent, to have a lawyer, and a jury to find him guilty or innocent.
He deserves all that because it makes us better and safer. But what we
should not give up as a Nation is the ability to find out about future
attacks in a logical way. We are at war, and in the law of armed
conflict, national security applies here, in my view, because of the
type of incident involved and the threats we face.
I wish to hear from Senator Ayotte, who has become one of the most
knowledgeable people on the topic. She has tried people in New
Hampshire--death penalty cases--and if she doesn't mind, perhaps she
can share with us her view of where the battlefield is, what kind of
laws to apply to a situation such as this.
Ms. AYOTTE. I thank my colleague from South Carolina and very much
thank my colleague from Arizona for, obviously, their leadership on
this issue.
I have great confidence in our criminal justice system, having both
defended and tried criminal cases in that system. The purpose of that
system, of course, is to bring people to justice. There is no question
in this case, in light of what Boston has gone through--and I know the
Chair knows all too well the crimes that were committed and the acts of
terrorism committed--that we need to make sure the criminal justice
system holds that individual, the terrorist who survived, accountable
in the Federal criminal system.
I am confident, based not only on what we have seen with video
evidence but the great work done by our law enforcement officials, both
at the local level in Boston, along with the cooperation of our Federal
agencies--they did phenomenal work--that evidence will be used against
this terrorist in the Federal court system and he will be found guilty.
In fact, with the overwhelming evidence, this is not a difficult case
to prosecute, and we should hold him fully accountable.
But our criminal justice system, which I have great respect for, was
not set up to gather intelligence to protect our Nation. In fact,
protections such as the right against self-incrimination, when an
individual is given their Miranda rights, that is intended to tell
people they have the right to a lawyer, they have the right to remain
silent so they can't be coerced into confessing to something and then
having that confession used to convict them later in a court of law,
that doctrine was not intended to stop this Nation from gathering
intelligence, to make sure when we have a terrorist attack, such as
what occurred in Boston, which was so horrific--and let me say my
thoughts and prayers are with the victims of those terrorist attacks--
we cannot in the national security context hold that individual for a
sufficient period while still being respectful of his constitutional
right--which we can be--and gather intelligence.
If we cannot do that, what are we saying about our Nation? What are
we saying here? Let us go back to 9/11.
What if we had captured one of those individuals before the second
plane hit the second tower or before the plane went down in
Pennsylvania. Are you telling me we couldn't hold them for a longer
period of time?
Our law enforcement officers relied on what is called the public
safety exception to Miranda in this case with the Boston terrorist, but
that exception expired very quickly. It expired so quickly that
yesterday, while our law enforcement spoke with him, by noon he was
being advised by a Federal court judge he had the right to remain
silent. Is that enough time to find out whether he has any ties to any
foreign terrorist organizations, given that his brother traveled to
Dagestan, with ties to Chechnya--with known ties in those areas of the
world to al-Qaida? Is that enough time to know whether somebody else or
some other organization was funding them or there are other attacks
that America can expect? Because that was a very brief period of time,
and that is what we are talking about--respecting our values in the
criminal justice system but also protecting our Nation.
In this instance, this individual was very quickly advised that he
had the right to remain silent. When he came to consciousness, it was a
matter of hours that were given to gather all this information. Is that
enough, given what happened in Boston, to make sure we know everything
this individual knows to protect this Nation from future attacks, if he
has ties to al-Qaida or some other foreign terrorist group? That is a
very limited time.
What we are saying is, yes, try him in Federal court, and he is
entitled to due process in that system as well. But he should have been
held initially to make sure we have the maximum information in our
national security system to protect our Nation.
Is America the battlefield? We all remember too well 9/11.
Unfortunately, the goal is to come to America, and we have to
acknowledge we are at war with radical Islamic jihadists who are
seeking to kill us--not for anything we

[[Page S2871]]

have done but for what we believe in and for what we stand.
I want to show an individual whose name is Anwar al-Awlaki. Anwar al-
Awlaki was an American citizen, just like this individual who committed
the terrorist attack in Boston whom we are holding right now. This
American citizen became an influential leader in al-Qaida in the
Arabian Peninsula, advocated for violent Jihad against the United
States, used the Internet to recruit followers and inspire attacks, and
was linked to dozens of terrorist investigations in our country and
with our allies. He was in Yemen, and on September 30, 2011, our
administration took him out with a drone strike, and I applaud them for
that.
But if Anwar al-Awlaki, a U.S. citizen under the constructs we are
under right now, came to the United States of America and was involved
in an attack against our country--we can take him out with a drone
strike if he is in Yemen. But if he actually gets to the United States
of America to carry out the attacks he wanted to as a terrorist and we
capture him here, we have to give him Miranda? No. We need to be able
to hold individuals such as he, and anyone who is seeking to commit a
terrorist attack against our country, in the national intelligence
context, to find out what they know to make sure we can disrupt these
terrorist networks around the world. That is what we are talking about,
and we can do both within our values.
To those who have been writing inaccurate pieces about this, we
understand that if someone is an American citizen, they cannot be tried
in a military commission; they can only be tried in a Federal court.
And we will do that here. If we had caught him, we would have tried him
too. But before we do that, we had better know what he knows about the
terrorist network to be able to know whom he is involved with and to
prevent future attacks on this country because people like him--and
unfortunately what we saw in Boston--do want to come here to attack us.
We have to be in a position to protect this country.
What concerns me most of all is the construct that this
administration has put together. Here we have a construct where even
foreigners who are terrorists--not American citizens--are being brought
into our civilian system and are being advised of their Miranda rights
without giving the maximum opportunity to gather intelligence.
This is a picture of Osama bin Laden's son-in-law sitting next to
Osama bin Laden, Abu Ghaith, the day after our country was attacked on
September 11. Osama bin Laden's son-in-law, Abu Ghaith, was captured
overseas. He spent time in Iran. Instead of being brought to Guantanamo
or held for a lengthy period to be interrogated, he was brought right
to a Federal court in New York City to be tried there.
This is the construct this administration is using, where they are
not treating this like we are at war even with foreign terrorists.
Osama bin Laden's son-in-law, not held as an enemy combatant, tried--
just like this individual who was captured committing the terrorist
attacks against us in Boston--in the Federal civilian court system.
We are at war, ladies and gentlemen, and we owe it to our Nation to
protect our country. The only way we can do that is when we capture
individuals who are foreigners who are members of al-Qaida or when we
capture individuals who are American citizens who commit terrorist
attacks against this country--who may or may not have ties to foreign
organizations--we had better find out. If they do, we need to
understand what they know to protect our Nation and then hold them
accountable, as we will in this case, and make sure they never see the
light of day. I hope in this case we seek the death penalty for what
that suspect in Boston did in terrorizing those who were there at the
Boston Marathon on such a wonderful day.
Mr. GRAHAM. Would the Senator yield for a question?
The ACTING PRESIDENT pro tempore. We have an order for a recess at
this hour.
Mr. GRAHAM. I ask unanimous consent for 1 minute.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. GRAHAM. I thank the Chair.
I would ask the Senator from New Hampshire, how do we get the death
penalty when the only way we can get information out of the suspect is
to go through his lawyer? If we can't have this national security
interrogation, where there is no lawyer, to get information to protect
against a future attack that can't be used in a trial, don't you think
the lawyer is going to say: I am not going to have my client talk to
you unless you promise not to seek the death penalty?
Ms. AYOTTE. I would say to the Senator from South Carolina, I don't
know how that isn't possible in this case. Any defense lawyer--as they
should--to defend their client, there is no way they will allow that
individual who committed the terrorist attack in Boston to speak to one
investigator now, if we get additional information or we have followup
questions, without taking the death penalty off the table.
That is the defense lawyer's job. I respect them for that. But it
puts our Nation in an awkward position to have to negotiate with a
defense lawyer when we have questions for someone who has committed a
terrorist attack against our Nation.

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