[Congressional Record (Bound Edition), Volume 159 (2013), Part 3]
[Senate]
[Pages 3332-3333]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            ENEMY COMBATANTS

  Mr. GRAHAM. Madam President, I wish to bring the body's attention to 
a recent decision by the Obama administration to place the son-in-law 
of Osama bin Laden, Mr. Abu Ghaith--I think I am pronouncing the name 
correctly--into Federal district court in New York charged with 
conspiracy to kill American citizens. He has been presented to our 
criminal justice system. He is, in my view, the classic example of an 
enemy combatant.
  I will be, along with Senator Ayotte, writing the Attorney General 
asking for a rundown of how long he was interrogated before he was read 
his Miranda rights. I believe this is a classic example of a person of 
great intelligence value who should have been held as an enemy 
combatant at Guantanamo Bay for intelligence-gathering purposes as long 
as it took to get good intelligence. He, in my view, is a treasure 
trove of information about not only al-Qaida but maybe things going on 
in Iran. There is an allegation of his being held in Iran for a very 
long time as their houseguest, for lack of a better word.
  I fear greatly we are beginning to go back to the criminal justice 
model that preceded 9/11. The first time the World Trade Center was 
attacked, we had the Blind Sheik case and the prosecutors did a 
wonderful job of prosecuting the Blind Sheik and his conspirators in 
Federal court. But everybody at that time treated al-Qaida and 
terrorism as a criminal threat.
  After 9/11, we changed our model. The attacks of 9/11 were viewed as 
an act of war and we authorized military force to go after al-Qaida and 
affiliates by allowing us to use the law of war model regarding al-
Qaida operatives. From
9/11 forward, we can now hold them as enemy combatants.
  Under the law of war--I have been a military lawyer for 30 years--
there is no Miranda right component. If a person is captured as an 
enemy prisoner, he or she is not read their rights or provided a 
lawyer. When a commander hears we have a highly valued member of the 
enemy in our custody, the first thing the commander wants to know is 
what intelligence have we gathered. The last thing on the commander's 
mind is where we are going to prosecute them.
  So when we are fighting a war, the purpose of interrogating an enemy 
prisoner is to find out information about enemy activity so we can win 
the war and protect our troops. In criminal law, the purpose is to 
convict somebody for a crime. Under criminal law--domestic criminal 
law--we cannot hold someone for interrogation purposes. We can't ask 
them about what they have been up to, what they know, and I don't 
suggest we should. They are entitled to a lawyer and Miranda rights and 
that is the way it should be.
  But we are fighting a war, at least in my view we are fighting a war. 
I wish to remind the Nation--I doubt if we need a whole lot of 
reminding but every now and then apparently we do--this is the Twin 
Towers on fire, beginning to crumble from an attack on 9/11. This is 
the Pentagon, the damage done to the Pentagon, and 300 people lost 
their lives there, and this is the Shanksville, PA, site of Flight 93.
  To those who suggest we are not in a war, I could not disagree more. 
I would say the single biggest loss of life in the war on terror was 
the first day; the very first day the war began, September 11, 2001. Do 
my colleagues remember where they were? Do they remember their 
reaction? The first three battles in this war cost us the most lives of 
any day in the war. We have lost a lot of soldiers, and our hearts go 
out to them, but there has never been a day when Americans bled more 
than 9/11 itself.
  There are three battlefields in this war: New York, over 2,000 people 
killed; the Pentagon, around 300 killed; Shanksville, PA, the entire 
membership of that airplane was killed. To the people of flight 93: You 
fought back. You weren't fighting against a bunch of criminals. You 
fought back against a bunch of terrorists who were trying to take the 
last airplane and crash it into this building or some other building in 
Washington. To those who died on that flight, you are the first line of 
defense. You, above all others, were the first ones to fight back. I 
will not let your fight go unnoticed. You were not fighting a bunch of 
criminals. You were fighting people who are at war with us.
  I wish we had understood in 1998 we were at war and not used a 
criminal model. If we had kept the Blind Sheik in military custody, 
interrogated him for a very long time, lawfully and humanely--because I 
believe that as a military lawyer--maybe we could have gotten 
information that would have prevented 9/11.
  Here is why I am so upset. The person in custody in New York is the 
son-in-law of Osama bin Laden. Again, I remind my colleagues, this is 
the bloodiest day in the war on terror. These are three battlefields 
that cost us 2,900 lives. Over 2,900 American citizens died on the 
first day of the war.
  Now, years later, we are still capturing people. The person we 
captured--and I congratulate all those who were involved in bringing 
this man into our custody. This person over here to the left sitting by 
Osama bin Laden is his son-in-law. He left Kuwait in 2000 and went to 
Afghanistan. He pledged allegiance to bin Laden. He was the 
spokesperson for al-Qaida. He was one of the key guys trying to get 
other people to pledge allegiance to al-Qaida and bin Laden.
  So in 2000 he went to Afghanistan and he joined with bin Laden and 
became his son-in-law. He founded a charity that was used to support 
terrorist organizations.
  On 9/11, after the attacks, he was one of the first people to speak 
and to glorify the attacks about how they attacked our homeland. I will 
get that quote later; I don't have it with me. He said: My brothers, we 
finally hit the homeland. We finally hit them in the heart of where 
they live.
  On October 10 in a video he said: Americans should know the storm of 
planes will not stop. There are thousands of the Islamic nation's youth 
who are eager to die, just as the Americans are eager to live.
  All I can say is if this man was interrogated by our intelligence 
officials and the FBI for hours, not days, before he was read his 
Miranda rights--under the law of war, we have the opportunity available 
to us to hold them indefinitely as a prisoner, an enemy combatant, a 
member of the enemy force, and to lawfully interrogate him without a 
lawyer, without reading him his Miranda rights because we are trying to 
gather intelligence and make sure we can prevent future attacks and to 
find out what this vicious enemy is up to. We did not take that 
opportunity.
  This administration is refusing to use Guantanamo Bay, one of the 
best military jails in the history of the world--very transparent, well 
run, and it is the place he should be today, not in New York City 
awaiting trial in Federal court.
  It is not about Federal court not being available in the war on 
terror. Article III courts have done a good job in many cases of 
prosecuting terrorists but so have military commission tribunals at 
Guantanamo Bay, where KSM, the architect of 9/11, is being prosecuted 
under the Military Commissions Act.
  My complaint is that this man was, within hours, read his Miranda 
rights and given a lawyer and cut off the ability of our government to 
find out what he knew about the war on terror, current operations, and 
future operations. He should have been at Guantanamo

[[Page 3333]]

Bay, interrogated by our military for as long as it took to find out 
what he knew. If the administration is telling me we got all we needed 
from this man in 1 day, they are offending my intelligence. I have been 
a military lawyer for 30 years. I understand what is going on at 
Guantanamo Bay, the information we have received over years. In some 
cases, it took months, if not years, to get the total picture of what a 
detainee knew. So if the administration is telling me and the American 
public the time they had with this man before they read him his Miranda 
rights was enough, then they are offending my intelligence.
  They are making a huge mistake. The decision not to treat him as an 
enemy combatant and putting him at Guantanamo Bay for interrogation 
purposes under the law of the war is one of the most serious mistakes 
we have made since 9/11. We are beginning to criminalize the war.
  This was not an intelligence decision or a military decision; it was 
a political decision, because they will never convince me or almost 
anybody else in America that interrogating him for hours was enough. 
The reason he was interrogated for hours and not days is that they did 
not want to take him to Guantanamo Bay. The reason he was read his 
Miranda rights is they are pushing everybody back into the criminal 
justice system.
  All I can say is that Guantanamo Bay has been reformed. It should be 
the place we take people such as he, as an enemy combatant, to be 
interrogated under the law of war, and we are using the criminal 
justice model in a way that will come back to haunt our Nation. We are 
beginning to criminalize the war. I want my colleagues to know we are 
going down a very dangerous path, and I will do everything in my power 
to get this administration and future administrations back in the game 
when it comes to fighting a war because I believe very much, I say to 
my colleagues, that we are in a state of war with an enemy who does not 
wear a uniform, who has no capital to conquer, no Air Force to shoot 
down, and no Navy to sink. The only thing between them and us is our 
brave men and women in the military and good information. This man was 
interrogated for hours when he should have been interrogated for 
months.
  We are beginning to do what got us into this mess to begin with, 
looking at al-Qaida as a group of common criminal thugs rather than the 
warriors they are. These people right here mean to kill us all. They 
are at war with us. I intend to be at war with them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.

                          ____________________