[Congressional Record (Bound Edition), Volume 157 (2011), Part 11]
[Senate]
[Pages 15009-15010]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   NATIONAL DEFENSE AUTHORIZATION ACT

  Mr. McCAIN. Mr. President, I rise to continue the discussion that I 
began Monday with the majority leader, Senator Reid, on the need to 
bring the national defense authorization bill to the floor of the 
Senate.
  Since our colloquy Monday, Senator Reid has sent a letter to the 
chairman of the Armed Services Committee, Senator Carl Levin, and me. I 
would like to have a copy of the letter printed in the Record.
  In the letter, Senator Reid lays out his concerns about some of the 
detainee provisions that were included in the Defense authorization 
bill as a result of a bipartisan compromise between Chairman Levin, 
myself, and Senator Graham, and cosponsored by a large, bipartisan 
group of members of the Armed Services Committee. In fact, this 
compromise was so bipartisan that after extensive debate on many 
amendments and a number of votes during markup by the committee using 
the regular order of the Senate, the resulting package of detainee 
provisions was adopted and made part of the bill by an overwhelming 
vote of 25 to 1.
  Now, I understand that the White House has some objections to these 
detainee provisions that were adopted by the Armed Services Committee, 
and Senator Reid has essentially endorsed the White House position. In 
doing so, he is blocking the Defense authorization bill from coming to 
the floor, using his authority as majority leader to control the 
business of the Senate.
  As I said Monday, I do not think that opposition to this particular 
provision outweighs the importance of this legislation to our national 
security mission, our troops, and their families. I stated on the floor 
Monday that I would work with Senator Levin and the administration to 
try to resolve their concerns about the detainee provisions in the 
bill. I stand by that commitment. But for the record, I want to address 
some of the issues raised by the majority leader.
  The majority leader quotes White House Deputy National Security 
Adviser John Brennan from a recent speech he made at Harvard saying, 
``Our counterterrorism professionals would be compelled to hold all 
terrorists in military custody, casting aside our most effective and 
time-tested tool for bringing suspected terrorists to justice--our 
federal courts.''
  This statement is simply and completely untrue. It is a total 
mischaracterization of section 1032 of the bill.
  The section of the bill dealing with military custody was extensively 
debated in committee and reflects the bipartisan compromise reached on 
all the detainee provisions. Section 1032 does not extend to all 
terrorists.
  It applies, as Chairman Levin made clear in a public statement on 
Tuesday, only to members of al-Qaida and its affiliates, like al-Qaida 
in the Arabian Peninsula which launched the December 2009 attempt to 
bomb a civilian airliner over Detroit and which subsequently attempted 
an attack on the United States by using parcel bombs this time last 
year. And it only applies to members of al-Qaida and its affiliates who 
are captured in a very narrow set of circumstances: those captured 
attacking the United States or its coalition allies or attempting or 
planning such an attack.
  This narrow focus is far from Mr. Brennan's claim that military 
custody would be required for all terrorists. That is simply wrong. It 
grossly distorts the scope of the provision.
  The focus on al-Qaida and its affiliates was intentional. Al-Qaida is 
and has been for the last 10 years the focus of the Authorization for 
the Use of Military Force, AUMF, that Congress passed overwhelmingly 
after the attack on our country on September 11, 2001. We are at war 
with al-Qaida and its affiliates. The President has said so plainly.
  In fact, it was just days ago that the Obama administration used the 
fact that we are at war with al-Qaida to kill an American citizen, 
Anwar al-Awlaki, in Yemen. That was a decision I fully support. Awlaki 
had become a leading operational planner for what administration 
officials now regard as the branch of al-Qaida that poses the most 
significant threat to the United States.
  The inconsistency in Mr. Brennan's position and, to the extent he 
speaks for the White House, the administration's national security 
policy as a whole is that this administration asserts the right--
correctly, in my view--to kill a member of al-Qaida or its affiliates 
through use of military force but would deny that the same individual 
should be held in military custody if captured. Instead, following Mr. 
Brennan's point of view, if we capture an al-Qaida terrorist in the 
very act of carrying out an attack on our homeland or U.S. interests 
elsewhere, we should revert to law enforcement methods and hold that 
al-Qaida terrorist under civilian law enforcement standards.
  By insisting that law enforcement custody rather than military 
custody should apply, the administration has to contend with the 
requirement to provide Miranda warnings to criminal suspects and the 
Federal rules that require presentment before a Federal magistrate 
within a short period of time after arrest, normally within 24 to 48 
hours, for a criminal suspect to be informed of the charges against 
them and to be assigned a lawyer.
  I would also note that the detainee provision that Mr. Brennan and 
the majority leader now complain of contains a national security waiver 
that

[[Page 15010]]

can be exercised to transfer even members of al-Qaida or its affiliates 
into civilian law enforcement custody if that is warranted by the 
circumstances and deemed the appropriate course of action.
  I strongly believe the language adopted by the Senate Armed Services 
Committee is reasonable, fair, and most importantly constitutional. 
However, as I just stated, I will work with Chairman Levin and the 
administration to remedy any deficiencies in the language. However, I 
believe the administration must now present to the Senate and the Armed 
Services Committee its specific concerns. Absent this, I would hope the 
majority leader would move to this important legislation and let the 
Senate implement its prescribed duties.
  I look forward to hearing from the majority leader and the 
administration so that the Senate may move forward on this vital and 
important legislation.
  Mr. President, I ask unanimous consent to have printed in the Record 
the letter to which I referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                  Washington, DC, October 4, 2011.
     Hon. Carl Levin,
     Chairman, Senate Armed Services Committee, Washington, DC.
     Hon. John McCain,
     Ranking Member, Senate Armed Services Committee, Washington, 
         DC.
       Dear Chairman Levin and Ranking Member McCain: I am writing 
     to follow up on our conversations regarding the detainee 
     provisions (Sections 1031-1036) included in the Armed 
     Services Committee's reported version of the Fiscal Year 2012 
     National Defense Authorization Act.
       As a whole, I strongly support the legislation your 
     Committee has reported. Despite the widely varying views of 
     the members on your committee on many critical issues, you 
     have worked together to craft a bipartisan bill that once 
     again will ensure strong and sustained support for the men 
     and women that sacrifice so much in defense of our nation.
       However, as you know, I do not intend to bring this bill to 
     the floor until concerns regarding the bill's detainee 
     provisions are resolved. The Obama Administration and several 
     of our Senate colleagues have expressed serious concerns 
     about the implications of the detainee provisions included in 
     the legislation, particularly the authorization of indefinite 
     detention in Section 1031, the requirement for mandatory 
     military custody of terrorism suspects in Section 1032, and 
     the stringent restrictions on transfer of detainees in 
     Section 1033. As Deputy National Security Advisor John 
     Brennan stated in a recent speech:
       [S]ome--including some legislative proposals in Congress--
     are demanding that we pursue a radically different strategy. 
     Under that approach, we would never be able to turn the page 
     on Guantanamo. Our counterterrorism professionals would be 
     compelled to hold all captured terrorists in military 
     custody, casting aside our most effective and time-tested 
     tool for bringing suspected terrorists to justice--our 
     federal courts. . . . In sum, this approach would impose 
     unprecedented restrictions on the ability of experienced 
     professionals to combat terrorism, injecting legal and 
     operational uncertainty into what is already enormously 
     complicated work.
       I share the concerns about these provisions. I strongly 
     believe that we must maintain the capability and flexibility 
     to effectively apply the full range of tools at our disposal 
     to combat terrorism. This includes the use of our criminal 
     justice system, which has accumulated an impressive record of 
     success in bringing terrorists to justice. Limitations on 
     that flexibility, or on the availability of critical 
     counterterrorism tools, would significantly threaten our 
     national security.
       I have no doubt that you share my commitment to maintaining 
     an effective counterterrorism policy, and you have a strong 
     record demonstrating that commitment. As important as the 
     broader bill is to sustaining the strength of our Armed 
     Forces, I hope we will be able to resolve these concerns 
     quickly so that the legislation can be passed expeditiously. 
     To that end, I want to make my staff available to work with 
     your staff on possible solutions to these concerns.
       Thank you for your outstanding leadership on the Armed 
     Services Committee. I look forward to working with you on 
     this issue, and on maintaining the strength and superiority 
     of our national defense.
           Sincerely,
     Harry Reid.

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