2012 NDAA

Summary

The 2012 National Defense Authorization Act (NDAA) is the yearly bill to provide funding for the military and defense related items. The 2012 version of this legislation was controversial due to provisions dealing with arrest and detention of terrorists and those affiliated with al-Qaeda. 

The legislation affirms that the President has the authority to detain enemy combatants captured on the battlefield under the 2001 authorization for the use of force against the Taliban and al-Qaeda. It then defines those who can be detained as "covered persons" and establishes this group as anyone affiliated with al-Qaeda or the Taliban. The legislation also states that those people can be held until the end of hostilities, until a tribunal with proper authority is established, or until those people are transferred to the proper authority.

Prior to this legislation, a US citizen accused of being allied with al Qaeda or plotting terrorist activity was considered to have committed a crime. Being accused of a crime, these people had civil rights relating to access to a lawyer and the right to remain silent. Floor statements made by Senators indicate that the legislation is intended to change this so that anyone accused of terrorist activity has not committed a crime, but has committed an act of war. In doing this, they do not have the right to remain silent or access a lawyer. In this manner, they can be held indefinitely without the right end this questioning.

This change in classification is accomplished by classifying the US as a battlefield in the war on terror. The legislation uses the phrase "affirms" when discussing the executive power because the power of the President to arrest and detain enemy combatants on a battlefield is already established. In the case of Jose Padilla and in previous cases during WWII, it was shown that the President can indeed arrest and detain US citizens captured on US soil aiding the enemy in a time of war. However, in the Padilla case, the courts held that since the US is not a battlefield in the war on terror, Padilla must be granted habaes corpus rights and tried as a criminal in the civilian courts. Eventually, Padilla was sentenced to 17 years for his actions.

One section of the legislation states that nothing in the bill is intended to change existing laws with respect to the arrest and detention of US citizens. This has led to a belief that the bill states that it does not apply to US citizens. This is not the case. That section states that current law is not changed by the legislation, but current law already holds that the President already has the power to arrest and indefinitely detain unlawful enemy combatants captured on the battlefield. This legislation merely adds the US homeland as a battlefield and affirms the Presidents authority under that law. Therefore the effect of the law on US citizens is changed without changing the law itself.

 

Path of Legislation  

The House version of the legislation was H R 1540 and passed that chamber in May of 2011. The Senate passed a similar version in early December as S 1867. A final conference report to merge the two pieces of legislation was passed on December 15 and 26 in the Senate and House respectively. President Obama signed the bill into law on December 31, 2011.

Relevant Sections

The portions of the legislation dealing with detainee matters were sections 1031 and 1032 of the Senate version and sections 1021 and 1022 of the final House version. Those two sections are identical. The relevent sections of the legislation is titled "Detainee Matters" and is shown here:

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARYFORCE.

(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section is any person as follows:

  1. A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
  2. A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

  1. Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
  2. Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).
  3. Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
  4. Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

 

Senator Floor Debates - Oct 18

On October 18, 2011 numerous Senators debated the legisaltion on the Senate floor. The discussion surrounded the need to pass the funding bill and the Senator Reid's hesitance to bring it to the floor with the detainee provisions. The debate concludes that the detainee provisions passed the committee 25-1 and provides bi-partisan cover for the Senate Majority Leader.

The discussion also addresses the need for the legislation relating to detainee matters. The senators note that there is no definitive law stating what should be done with those captured on the battlefield in the war on terror, and that this could create confusion in the military and civilian bureaus that are fighting the war. This confusion could in turn lead to delay in interrogation and possibly allowing terrorists to receive access to a lawyer who would then advise them to remain silent.

 

Policy Statement

On November 17, 2011 the Obama administration released a policy statement noting that it opposed the detainee matters legislation in the NDAA and that if it was not changed, then the President would veto the legislation.

The reason that the administration objected to the legislaion was that it was already established law that the President had the authority to detain those captured on the battlefield no matter what their citizenship status and that codifying that into law could lead to the Congress having the power to revoke that power. The administration also object to the provisions giving default authority of detainees to the military as this could lead to a lack of flexibility and a usurping of executive power granted the authorization for the use of force.

Detainee Matters: The Administration objects to and has serious legal and policy concerns about many of the detainee provisions in the bill. In their current form, some of these provisions disrupt the Executive branch's ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government's ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military's operations and detention practices.

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

 

The Feinstein Amendments

Senator Feinstein of California proposed two amendments to the legislation which both had the purpose of insuring that US citizens captured on US soil would not fall under the provisions of the legisation. The first amendment simply added the word "abroad" to the end of a sentence to ensure that the legislation only applied to those captured abroad. The second simply stated that the provisions did not apply to US citizens captured on US soil.

Both amendments were defeated easily in votes on December 1, 2011.

 

The Udall Amendment

Senator Udall of Colorado also attempted to pass amendment that would remove the entire section relating to detainee matters and replace it with language that would simply require the executive branch to come up with a procedure for handling detainees and then submit that procedure to Congress.

The Udall amendment was defeated easily on November 29, 2011.

 

Senate Floor Debates - November 17

On November 17, 2011 the Senate debated the Udall amendment. The discussion start with Senator Udall introducing his amendment describing the problems he has with the section relating to detainee provisions. He notes that setting the default case to military custody could cause problems with a civilian agency such as the FBI make the initial arrest. He also states that there is concern that the provisions in the legislation could be applied to US citizens captured on US soil. He again offers his amendment as a method to allow the executive branch to develop a procedure for dealing with detainees that Congress could then approve. He also references the policy statement put out by the Obama administration that opposed the detainee matters language.

After these statements, Senators Durbin and Levin ask Senator Udall a number of questions. One question was asked by Senator Levin questioning Senator Udall's position that the Obama adminstration was opposed to the section because it may have put American citizens at risk. Senator Levin states that bill originally contained language to ensure that the new provisions would not apply to US citizens and the Obama administration asked that it be removed.

 

Floor Debates - November 29, 2011

The debates of November 29, 2011 started with Senator Rand Paul of Kentucky discussing the possibiity of the detainee matters section. Senator Paul stated that traditionally when a US citizen is accused of acts of war against the US, they are prosecuted by federal law and, if applicable, treason. He notes that laws are already on the books to prosecute terrorists before they commit acts of terror.

Additionally, Senator Rand notes that the legislation claims to only apply to those accused of being allied with al-Qaeda, but being accused of such an action therefore removes the right to a trial to prove or disprove that you are indeed working with al-Qaeda.

Senator Udall then takes the floor and discusses the need to pass his amendment to ensure that the provisions do not create unintended problems and do not apply to US citizens.

In response to these statements by Sentor Paul and Senator Udall, Senator Lindsey Graham speaks on the floor. He asserts that a person who is suspected of being allied with al-Qaeda has not committed a crime, but has committed an act of war. He asserts that the provision does indeed apply to US citizens captured on US soil. He asserts that US citizens who have taken up arms against the US should not be given a lawyer or a trial.

In later discussions, Senator Levin and Senator Graham discuss the meaning of the text more. The flatly assert that the US has the authority to detain US citizens that that this legislation would extend the right of the President to the homeland.

 

Senate Floor Debates - Dec 1, 2011

On December 1, 2011 debates on the Senate floor were held regarding the Feinstein amendments. Numerous Senators took part in what was perhaps the most important day of debate regarding the law. The participants included Senator Graham of South Carolina, Senator Kyl, Senator Feinstein, Senator McCain, Senator Leahy, Senator Blunt, Senator Levin, Senator Durbin, and Senator Ayotte.

In discussing the Feinstein amendment, the Senators reaffirmed that the military will have default custody of enemy combatants and established two distinct new items. The first was that the detainee provisions did not seek to interfere with the long term detention provisions or prevent a person from eventually obtaining a habeas corpus trial. The law simply stated that anyone captured on a battlefield and suspected of being allied with al-Qaeda could be questioned as long as desired without a lawyer or trial. This questioning could go on for years, as in the case of Jose Padilla where he was detained for 5 years before a habeas corpus trial.

The second item that was definitively established was that the US homeland was now a part of the battlefield in the war on terror. This meant that where before, US citizens captured on US soil could obtain a trial to establish what crimes were committed, the President could now use his authority to detain those people as suspected of committing acts of war.

 

Senate Floor Debates - Dec 15

On December 15, 2011 Senator Coons began debate on the NDAA by stating that the provisions relating to detainees troubled him greatly. He stated that he believed the text opened the door for detention of US citizens. Senator Durbin then discusses his support for the inclusion of the Feinstein amendments into the legislation.

After other objections are made by Senator Feinstein, Senator Graham again takes to the floor to argue in favor of the legislation. Senator Graham then argues that the President can target US citizens overseas for assassination, so it is not understandable why US citizens in the homeland cannot be detained indefinitely.

 

Signing Statement

On December 31, 2011 President Obama signed the 2012 NDAA into law. When he signed the law, he also issued a signing statement on how he would interpret the law. In that signing statement, President Obama clarifies that the law does indeed allow for the arrest and indefinite detention of US citizens.

The President then asserts that he will not use the law for these purposes and that the inclusion of the language is counter to the Constitution and US traditions. This declaration is counter to Senator Levin's statements that the Obama administration requested that language which would have prevented the law from applying to US citizens be removed.

The main purpose of the statement relating to detainee provisions states that the language is not necessary as it codifies rights that the President already possessess. In other words, it is not necessary for Congress to affirm that the President has the right to detain US citizens captured on the battlefield as that right was already affirmed in the Hamdi case and others. What is not mentioned in the signing statement is that Congress has asserted that this bill now declares the homeland as part of the battlefield, which means that the President's right to detain enemy combatants indefinitely now applies to US citizens on US soil.

...

Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." Second, under section 1021(e), the bill may not be construed to affect any "existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

...

 

Legislation

S 1867 - Senate Version Bill Summary Bill Text
H R 1540 - House Version (Final Version) Bill Summary Bill Text

 

The Padilla Case

Jose Padilla was arrested by federal agents at Chicago's O'Hare International Airport on May 8, 2002, and held as a material witness on a warrant issued in the state of New York stemming from the September 11, 2001 attacks.

On June 9, 2002, two days before the District Court Judge was to issue a ruling on the validity of continuing to hold Padilla under the material witness warrant, President George Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant," and Padilla was transferred to a military brig in South Carolina without any notice to his attorney or family. The order justified the detention using the 2001 AUMF passed in the wake of September 11, 2001 and by opining that a U.S. citizen detained on U.S. soil can be classified an enemy combatant. This opinion is based on the decision of the United States Supreme Court in the case of Ex parte Quirin, a case involving the detention of a group of German-Americans in the United States working for Nazi Germany.

According to the text of the ensuing decision from the U.S. Court of Appeals for the Second Circuit, Padilla's detention as an "enemy combatant" (pursuant to the President's order) was based on the following reasons:

  • Padilla was "closely associated with al Qaeda," a designation for loosely knit insurgent groups sharing common ideals and tactics, "with which the United States is at war";
  • He had engaged in "war-like acts, including conduct in preparation for acts of international terrorism";
  • He had intelligence that could assist the United States in warding off future terrorist attacks; and
  • He was a continuing threat to American security.

 

Because Padilla was being detained without any criminal charges being formally made against him, he, through his lawyer, made a petition for a writ of habeas corpus to the United States District Court for the Southern District of New York, naming then Secretary of Defense Donald Rumsfeld as the respondent to this petition. The government filed a motion to dismiss the petition on the grounds that:

  • Padilla's lawyer was not a proper "Next Friend" to sign and file the petition on Padilla's behalf;
  • Commander Marr of the South Carolina brig, and not U.S. Secretary Rumsfeld, should have been named as the respondent to the petition; and
  • the New York court lacked personal jurisdiction over the named respondent Secretary Rumsfeld who resides in Virginia.

 

The New York District Court disagreed with the government's arguments and denied its motion. However, the court further declared that President Bush had constitutional and statutory authority to designate and detain American citizens as "enemy combatants" and that Padilla was entitled to challenge his "enemy combatant" designation and detention in the course of his habeas corpus petition, although release was denied. Since the New York District Court had in some way disappointed all sides of this legal battle, both Padilla and the government made an interlocutory appeal to the United States Court of Appeals for the Second Circuit.

On December 18, 2003, the Second Circuit declared that:

  • Padilla's lawyer is a proper "Next Friend" to sign and file the habeas corpus petition on Padilla's behalf because she, as a member of the bar, had a professional duty to defend her client's interests. Further, she had a significant attorney-client relationship with Padilla and was far from being some zealous "intruder" or "uninvited meddler";
  • Secretary Rumsfeld can be named as the respondent to Padilla's habeas corpus petition, even though it is South Carolina's Commander Marr who had immediate physical custody of Padilla, because there have been past cases where national-level officials have been named as respondents to such petitions;
  • the New York District Court had personal jurisdiction over Secretary Rumsfeld even though Rumsfeld resides in Virginia and not New York because New York's "long arm statute" is applicable to Secretary Rumsfeld, who was responsible for Padilla's physical transfer from New York to South Carolina; and
  • despite the legal precedent set by Ex parte Quirin, "the President lacked inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat". The Second Circuit relied on the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), where the U.S. Supreme Court had ruled that President Truman, during the Korean War years, could not use his position and power as Commander-in-Chief, created under Article 2, Section 2 of the U.S. Constitution, to seize the nation's steel mills on the eve of a nation-wide steelworkers' strike. The extraordinary government power to curb civil rights and liberties during crisis periods, such as times of war, lies with Congress and not the President. Article 1, Section 9, Clause 2 of the U.S. Constitution grants Congress, and not the President, the power to suspend the right of habeas corpus during a period of rebellion or invasion.

Declaring that without clear Congressional approval (per 18 U.S.C. § 4001(a)) President Bush cannot detain an American citizen arrested in the United States and away from a zone of combat as an "illegal enemy combatant", the court ordered that Padilla be released from the military brig within 30 days. However, the court had stayed the release order pending the government's appeal to the U.S. Supreme Court.

U.S. Supreme Court

On February 20, 2004, the Supreme Court agreed to hear the government's appeal. The Supreme Court heard the case, Rumsfeld v. Padilla, in April 2004, but on June 28, 2004, the court dismissed the petition on technical grounds because:

  • It was improperly filed in federal court in New York instead of South Carolina, where Padilla was actually being detained; and
  • the Court held that the petition was incorrect in naming the Secretary of Defense as the respondent instead of the Commanding Officer of the naval brig who was Padilla's actual custodian for habeas corpus purposes.

 

District Court for South Carolina

The case was refiled in the U.S. District Court for the District of South Carolina, and on February 28, 2005 the court ordered that the government either charge or release Padilla. On June 13, 2005, the Supreme Court denied the government's petition to have his case heard directly by the court, instead of the appeal being first heard by the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia.

On September 9, 2005, a three-judge panel of the Fourth Circuit ruled that President Bush had the authority to detain Padilla without charges. In an opinion written by judge J. Michael Luttig, Luttig cited the joint resolution by Congress authorizing military action following the September 11, 2001 attacks, as well as the June 2004 ruling concerning Yaser Hamdi.

Attorneys for Padilla and civil liberties organizations, filing friend of the court briefs, argued that the detention was illegal. They said it could lead to the military holding anyone, from protesters to people who check out what the government considers the wrong books from the library. The Bush Administration denied the allegations. Their argument noted that the Congressional military authorization (the Authorization for Use of Military Force Against Terrorists) pertained only to nations, organizations or persons whom the President "determines planned, authorized, committed, or aided the September 11, 2001 attacks, or harbored such organizations or persons." They advanced a reading of this language would suggest a Congressional limitation to the military power would assure an appropriately narrow range of detainees and that the power to detain would last only so long as the Congressional authorization was not revoked or remained in effect by its terms. Similarly, they noted that the Yaser Hamdi Supreme Court case (Hamdi v. Rumsfeld) upon which the court relied, required a habeas corpus hearing for any alleged enemy combatant who demands one, claiming not to be such a combatant, which would require additional judicial or military tribunal oversight over each such detention.

The argument in the general public concerning the legality of Padilla's detention also examined one of the provisions of the Military Commissions Act of 2006 enacted on October 17, 2006, which states:

Except as otherwise provided in this chapter, and notwithstanding any other law [emphasis added] (including section 2241 of title 28, United States Code, or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of enactment of this chapter, relating to the prosecution, trial, or judgment of a military commission convened under this section, including challenges to the lawfulness of the procedures of military commissions under this chapter.

The Military Commissions Act of 2006 does not apply by its terms to José Padilla, since he is a U.S. citizen, although other provisions of the Military Commissions Act of 2006 may provide civil and criminal amnesty to those involved in his case, who might otherwise face civil rights lawsuits or criminal liability for unlawfully detaining someone. The immunity provisions may be tested in a civil suit brought by Padilla against John Yoo discussed below.

Indictment

On November 22, 2005, CNN's front page broke the news that Padilla had been indicted on charges he "conspired to murder, kidnap and maim people overseas." Padilla's lawyer correlated the indictment's timing as avoidance of an impending Supreme Court hearing on the Padilla case: "the administration is seeking to avoid a Supreme Court showdown over the issue". None of the original allegations put forward by the U.S. government three years prior, the claims that held Padilla in the majority in solitary confinement throughout that period, were part of the indictment: "Attorney General Alberto Gonzales announced Padilla is being removed from military custody and charged with a series of crimes" and "There is no mention in the indictment of Padilla's alleged plot to use a dirty bomb in the United States. There is also no mention that Padilla ever planned to stage any attacks inside the country. And there is no direct mention of Al-Qaeda. Instead the indictment lays out a case involving five men who helped raise money and recruit volunteers in the 1990s to go overseas to countries including Chechnya, Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor role in the conspiracy. He is accused of going to a jihad training camp in Afghanistan but his lawyers said the indictment offers no evidence he ever engaged in terrorist activity." Considering Padilla was held for years in military custody with no formal charges brought, many were shocked by this move by the George W. Bush presidential administration, and some[who?] reasoned that a repeat of such a process would allow the U.S. government to detain citizens indefinitely without presenting the cause that would eventually be tried.

On December 21, 2005 the U.S. Court of Appeals for the Fourth Circuit refused to authorize a transfer from the Navy brig. The court suggested that the administration was now manipulating the federal court system with "intentional mooting" in order to avoid Supreme Court review, and recognized "shifting tactics in the case threatens [the government's] credibility with the courts". This was countered by Solicitor General Paul Clement: the federal appeals court decision "defies both law and logic," he stated in a request to the Supreme Court for immediate transfer on December 30, 2005, one day after Padilla's lawyers filed a petition of their own charging the U.S. President of overstepping his authority.

On January 3, 2006, the United States Supreme Court granted a Bush administration request to transfer Padilla from military to civilian custody. Padilla was transferred to a federal prison in Miami from the Navy brig in Charleston while the Supreme Court decided whether to accept his appeal of the government's authority to keep citizens it designates "enemy combatants" in open-ended military confinement without benefit of trial.

On April 3, 2006, the U.S. Supreme Court declined, with three justices dissenting from denial of certiorari, to hear Padilla's appeal from the 4th Circuit Court's decision that the President had the power to designate him and detain him as an "enemy combatant" without charges and with disregard to habeas corpus.

This text was taken from Wikipedia.

 

Section D - Counter-Terrorism

Section D of the legislation focused on Counter-Terrorism. It contained two sections that were controversial that covered arrest and detention of US citizens and a requirement for military custody for citizens accused of acts of war against the US.

Section 1021

Subtitle D—Counterterrorism

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARYFORCE.

(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section is any person as follows:

  • (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
  • (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

  • (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
  • (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).
  • (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
  • (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).

 

Section 1022

SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.

(a) CUSTODY PENDING DISPOSITION UNDER LAW OF WAR.—

  • (1) IN GENERAL.—Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war.
  • (2) COVERED PERSONS.—The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined—rn
    • (A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
    • (B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
  • (3) DISPOSITION UNDER LAW OF WAR.—For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028.
  • (4) WAIVER FOR NATIONAL SECURITY.—The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.—

  • (1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
  • (2) LAWFUL RESIDENT ALIENS.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

(c) IMPLEMENTATION PROCEDURES.—

  • (1) IN GENERAL.—Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
  • (2) ELEMENTS.—The procedures for implementing this section shall include, but not be limited to, procedures as follows:rn
    • (A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
    • (B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
    • (C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation which is ongoing at the time the determination is made and does not require the interruption of any such ongoing interrogation.
    • (D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other Government officials of the United States are granted access to an individual who remains in the custody of a third country.
    • (E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.

(d) AUTHORITIES.—Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.

(e) EFFECTIVE DATE.—This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

 

Guantanamo Bay Provisions

Along with the provisions relating to arrest and detention of people in the US who are committing acts of war, there are a number of provisions relating to prohibiting the transfer of detainees at Guatanamo and the treatment of those people.

 

SEC. 1023. PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) PROCEDURES REQUIRED.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth procedures for implementing the periodic review process required by Executive Order No. 13567 for individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note).

(b) COVERED MATTERS.—The procedures submitted under subsection

(a) shall, at a minimum—

  • (1) clarify that the purpose of the periodic review process is not to determine the legality of any detainee’s law of war detention, but to make discretionary determinations whether or not a detainee represents a continuing threat to the security of the United States;
  • (2) clarify that the Secretary of Defense is responsible for any final decision to release or transfer an individual detained in military custody at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Executive Order referred to in subsection (a), and that in making such a final decision, the Secretary shall consider the recommendation of a periodic review board or review committee established pursuant to such Executive Order, but shall not be bound by any such recommendation;
  • (3) clarify that the periodic review process applies to any individual who is detained as an unprivileged enemy belligerent at United States Naval Station, Guantanamo Bay, Cuba, at any time; and
  • (4) ensure that appropriate consideration is given to factors addressing the need for continued detention of the detainee, including—rn
    • (A) the likelihood the detainee will resume terrorist activity if transferred or released;
    • (B) the likelihood the detainee will reestablish ties with al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners if transferred or released;
    • (C) the likelihood of family, tribal, or government rehabilitation or support for the detainee if transferred or released;
    • (D) the likelihood the detainee may be subject to trial by military commission; and
    • (E) any law enforcement interest in the detainee.

(c) APPROPRIATE COMMITTEES OF CONGRESS DEFINED.—In this section, the term ‘‘appropriate committees of Congress’’ means—

(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and

(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.

 

SEC. 1024. PROCEDURES FOR STATUS DETERMINATIONS.

(a) IN GENERAL.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) for purposes of section 1021.

(b) ELEMENTS OF PROCEDURES.—The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:

  • (1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.
  • (2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.

(c) APPLICABILITY.—The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court.

(d) REPORT ON MODIFICATION OF PROCEDURES.—The Secretary of Defense shall submit to the appropriate committees of Congress a report on any modification of the procedures submitted under this section. The report on any such modification shall be so submitted not later than 60 days before the date on which such modification goes into effect.

(e) APPROPRIATE COMMITTEES OF CONGRESS DEFINED.—In this section, the term ‘‘appropriate committees of Congress’’ means—

  • (1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and
  • (2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.

 

SEC. 1025. REQUIREMENT FOR NATIONAL SECURITY PROTOCOLS GOVERNING DETAINEE COMMUNICATIONS.

(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall develop and submit to the congressional defense committees a national security protocol governing communications to and from individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note), and related issues.

(b) CONTENTS.—The protocol developed pursuant to subsection

(a) shall include Department of Defense policies and procedures regarding each of the following:

(1) Detainee access to military or civilian legal representation, or both, including any limitations on such access and the manner in which any applicable legal privileges will be balanced with national security considerations.

(2) Detainee communications with persons other than Federal Government personnel and members of the Armed Forces, including meetings, mail, phone calls, and video teleconferences, including—

(A) any limitations on categories of information that may be discussed or materials that may be shared; and

(B) the process by which such communications or materials are to be monitored or reviewed.

(3) The extent to which detainees may receive visits by persons other than military or civilian representatives.

(4) The measures planned to be taken to implement and enforce the provisions of the protocol.

(c) UPDATES.—The Secretary of Defense shall notify the congressional defense committees of any significant change to the policies and procedures described in the protocol submitted pursuant to subsection (a) not later than 30 days after such change is made.

(d) FORM OF PROTOCOL.—The protocol submitted pursuant to subsection (a) may be submitted in classified form.

 

SEC. 1026. PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES TRANSFERRED FROM UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) IN GENERAL.—No amounts authorized to be appropriated or otherwise made available to the Department of Defense for fiscal year 2012 may be used to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense unless authorized by Congress.

(b) EXCEPTION.—The prohibition in subsection (a) shall not apply to any modification of facilities at United States Naval Station, Guantanamo Bay, Cuba.

(c) INDIVIDUAL DETAINED AT GUANTANAMO DEFINED.—In this section, the term ‘‘individual detained at Guantanamo’’ has the meaning given that term in section 1028(e)(2).

(d) REPEAL OF SUPERSEDED AUTHORITY.—Section 1034 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat. 4353) is amended by striking subsections (a), (b), and (c).

 

SEC. 1027. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the funds authorized to be appropriated by this Act for fiscal year 2012 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

 

SEC. 1028. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.

(a) CERTIFICATION REQUIRED PRIOR TO TRANSFER.—

(1) IN GENERAL.—Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense for fiscal year 2012 to transfer any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity unless the Secretary submits to Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.

(2) EXCEPTION.—Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate—

(A) an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance); or

(B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.

(b) CERTIFICATION.—A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, that—

(1) the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred—

(A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;

(B) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility;

(C) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual;

(D) has taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;

(E) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity; and

(F) has agreed to share with the United States any information that—

(i) is related to the individual or any associates of the individual; and

(ii) could affect the security of the United States, its citizens, or its allies; and

(2) includes an assessment, in classified or unclassified form, of the capacity, willingness, and past practices (if applicable) of the foreign country or entity in relation to the Secretary’s certifications.

(c) PROHIBITION IN CASES OF PRIOR CONFIRMED RECIDIVISM.—

(1) PROHIBITION.—Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise made available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity if there is a confirmed case of any individual who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.

(2) EXCEPTION.—Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate—

(A) an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance); or

(B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.

(d) NATIONAL SECURITY WAIVER.—

(1) IN GENERAL.—The Secretary of Defense may waive the applicability to a detainee transfer of a certification requirement specified in subparagraph (D) or (E) of subsection (b)(1) or the prohibition in subsection (c), if the Secretary certifies the rest of the criteria required by subsection (b) for transfers prohibited by subsection (c) and, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that—

(A) alternative actions will be taken to address the underlying purpose of the requirement or requirements to be waived;

(B) in the case of a waiver of subparagraph (D) or

(E) of subsection (b)(1), it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated, but the actions to be taken under subparagraph (A) will substantially mitigate such risks with regard to the individual to be transferred;

(C) in the case of a waiver of subsection (c), the Secretary has considered any confirmed case in which an individual who was transferred to the country subsequently engaged in terrorist activity, and the actions to be taken under subparagraph (A) will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and

(D) the transfer is in the national security interests of the United States.

(2) REPORTS.—Whenever the Secretary makes a determination under paragraph (1), the Secretary shall submit to the appropriate committees of Congress, not later than 30 days before the transfer of the individual concerned, the following:

(A) A copy of the determination and the waiver concerned.

(B) A statement of the basis for the determination, including—

(i) an explanation why the transfer is in the national security interests of the United States; and

(ii) in the case of a waiver of subparagraph (D) or (E) of subsection (b)(1), an explanation why it is not possible to certify that the risks addressed in the subparagraph to be waived have been completely eliminated.

(C) A summary of the alternative actions to be taken to address the underlying purpose of, and to mitigate the risks addressed in, the subparagraph or subsection to be waived.

(D) The assessment required by subsection (b)(2).

(e) DEFINITIONS.—In this section:

(1) The term ‘‘appropriate committees of Congress’’ means—

(A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and

(B) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.

(2) The term ‘‘individual detained at Guantanamo’’ means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

(A) is not a citizen of the United States or a member of the Armed Forces of the United States; and (B) is—

(i) in the custody or under the control of the Department of Defense; or

(ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.

(3) The term ‘‘foreign terrorist organization’’ means any organization so designated by the Secretary of State under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).

(f) REPEAL OF SUPERSEDED AUTHORITY.—Section 1033 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat. 4351) is repealed.

 

SEC. 1029. REQUIREMENT FOR CONSULTATION REGARDING PROSECUTION OF TERRORISTS.

(a) IN GENERAL.—Before seeking an indictment of, or otherwise charging, an individual described in subsection (b) in a Federal court, the Attorney General shall consult with the Director of National Intelligence and the Secretary of Defense about—

(1) whether the more appropriate forum for prosecution would be a Federal court or a military commission; and

(2) whether the individual should be held in civilian custody or military custody pending prosecution.

(b) APPLICABILITY.—The consultation requirement in subsection

(a) applies to—

(1) a person who is subject to the requirements of section 1022, in accordance with a determination made pursuant to subsection (a)(2) of such section; and

(2) any other person who is held in military detention outside of the United States pursuant to the authority affirmed by section 1021.

 

SEC. 1030. CLARIFICATION OF RIGHT TO PLEAD GUILTY IN TRIAL OF CAPITAL OFFENSE BY MILITARY COMMISSION.

(a) CLARIFICATION OF RIGHT.—Section 949m(b)(2) of title 10, United States Code, is amended—

(1) in subparagraph (C), by inserting before the semicolon the following: ‘‘, or a guilty plea was accepted and not withdrawn prior to announcement of the sentence in accordance with section 949i(b) of this title’’; and

(2) in subparagraph (D), by inserting ‘‘on the sentence’’ after ‘‘vote was taken’’.

(b) PRE-TRIAL AGREEMENTS.—Section 949i of such title is amended—

(1) in the first sentence of subsection (b)—

(A) by inserting after ‘‘military judge’’ the following:
‘‘, including a charge or specification that has been referred
capital,’’;

(B) by inserting ‘‘by the military judge’’ after ‘‘may
be entered’’;

and (C) by inserting ‘‘by the members’’ after ‘‘vote’’; and

(2) by adding at the end the following new subsection:

‘‘(c) PRE-TRIAL AGREEMENTS.—(1) A plea of guilty made by the accused that is accepted by a military judge under subsection

(b) and not withdrawn prior to announcement of the sentence may form the basis for an agreement reducing the maximum sentence approved by the convening authority, including the reduction of a sentence of death to a lesser punishment, or that the case will be referred to a military commission under this chapter without seeking the penalty of death. Such an agreement may provide for terms and conditions in addition to a guilty plea by the accused in order to be effective.

‘‘(2) A plea agreement under this subsection may not provide for a sentence of death imposed by a military judge alone. A sentence of death may only be imposed by the unanimous vote of all members of a military commission concurring in the sentence of death as provided in section 949m(b)(2)(D) of this title.’’.

 

Senate Floor Debates - October 18

On October 18, 2011 the NDAA was discussed on the Senate floor. Senate Majority Leader Harry Reid was heistant to bring the NDAA to the floor for a vote because the legislation relating to detainees was getting a lot of media attention. The main purpose of the debate was to highlight that the detainee matters provisions passed out of committee with a vote of 25 to 1 and that Senator Reid should feel comfortable bringing the legislation to the floor for debate with bi-partisan support.

The discussion is held by Senator McCain, Senator Chambliss, Senator Graham, and Senator Ayotte. The senators discuss the fact that there is no clear law relating to how to deal with enemy combatants captured on the battlefield. There is a fear that such combatants would be granted legal rights to an attorney and would exercise their rights to remain silent, thus preventing the gathering of intelligence. There is also confusion as to the process for determing who is held by law enforcement mechanisms and who is detained by the military.

The conclusion of the discussions is that there must be a distinction between those who commit crimes and those who commit acts of war. The default for those who commit an act of war is military detention. The President is given a waiver to move someone from military detention to civilian trial if he believes it is proper to do so.

 

Text of Debates

Mr. McCAIN. Mr. President, today we come to the floor to talk about the importance of the Defense authorization bill. For 50 years the Congress of the United States has enacted a Defense authorization bill, enacted it into law and had it signed by the President of the United States. There have been times when this legislation has been very contentious--days during the Vietnam war, days during Operation Desert Storm, Operation Iraqi Freedom, Bosnia, Kosovo. All of those times the Defense authorization bill has been a vehicle for debate and votes on the floor of the Senate concerning transcendent issues of national security.

For 50 years we have cared for the men and women who have served and provided them with the equipment, the pay, the benefits those men and women of this country deserve after hundreds of hours of deliberation, thousands of hours of written testimony and testimony before the committee--the full committee and subcommittees such as that under the chairmanship of the Senator from the State of Georgia.

Because of a part of the legislation, the majority leader has decided that we will not take this bill to the floor of the Senate. That is a betrayal of the men and women who are serving this Nation.

I understand there are differences on the issue of detainee treatment. I understand it is an emotional issue. But should it be a reason for the Senate not to carry out its 50-year tradition to debate and discuss and amend and vote and then come out with a package that provides for the needs, the training, the equipment, the benefits of the men and women who are serving?

I quote from a letter from the distinguished majority leader to Senator Levin and to me, ``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.''

Is that the way the Senate works, that we do not bring bills to the floor unless objectionable matters that are disagreed with by one side or the other are not resolved? I always believed the way these issues are resolved is through debates, through amendment, through votes, through allowing the American people also to see and hear our deliberations, our discussions, and our debate.

Obviously the fiscal year has expired so this bill is obviously long overdue. Now we are in a position where apparently the majority leader wants to take up the President's jobs bill in parts, one by one, in complete disregard of the needs and requirements of the men and women who are serving our national security.

Part of that bill also is the portion from the Intelligence Committee. By the way, I note the presence of the Senator from South Carolina, who knows more about detainees than any Member of this body without question. He continuously travels to Iraq and Afghanistan, he has visited the prisons. He understands the issues better than anyone. I would be willing to ask him how he feels about the detainee provisions, after the Senator from Georgia makes a comment about the importance of the intelligence portion of the Defense authorization bill.

Mr. CHAMBLISS. Mr. President, I thank the Senator. This is the ninth Defense authorization bill I have been involved in since I have been a Member of the Senate. I must say the refusal by the majority leader to bring this Defense authorization bill to the floor is truly disheartening. It is critically important that we address the issues not only of what is going on in Iraq and Afghanistan but the day-to-day operations of our military from the standpoint of pay raises, quality of life, purchase of weapons systems for future use--any number of issues that are included. The refusal of the majority leader to bring this to the floor because of his objection to a very critical aspect of this bill truly is disheartening.

During committee consideration of the bill, the committee considered and adopted, by a vote of 25 to 1, a comprehensive bipartisan provision relating to detainees. We have no detainee policy in this country today. If we had captured bin Laden, what would we have done with him? If we had captured Anwar al-Awlaki, what would we have done with him? Certainly we could have gained actionable intelligence from either one of those individuals, but we have no detainee policy in this country today. We have nowhere to take them, where we can hold these individuals and ensure that they do not get lawyered up quickly and that we are unable to get the type of information we need to get from individuals such as that.

Over the past several years there has been an ongoing debate about the importance of being able to fully and lawfully interrogate suspected terrorists. One thing is clear after all these years: that our Nation still lacks this clear and effective policy. This bipartisan detainee compromise goes a long way toward ensuring we can get timely and actionable intelligence from newly captured detainees connected to al-Qaida and other terrorist organizations. The compromise also provides for a permanent process for transferring Guantanamo detainees to other countries. We are in the midst right now of a review within the Intelligence Committee of the thought process that went into the transferring of detainees by both the Bush administration and the current administration. I will tell you that there are real flaws in that policy. Those flaws have resulted, according to the DNI--General Clapper--of a recidivism rate of Guantanamo detainees of 27 percent. That means 27 percent of the individuals we have released from Guantanamo and sent to other countries that have been willing to take them under various agreements--27 percent of them have returned to the battlefield and are killing or are seeking to kill Americans. The policy not only about detainees but policies with regard to what we do with Guantanamo detainees is extremely important.

There were a number of us who were involved in the amendments that went into the authorization bill in committee. Senator Graham from South Carolina was. Senator Ayotte from New Hampshire was integrally involved. Let me turn to Senator Ayotte and, from the perspective of the people of New Hampshire, ask: Where does the Senator think we are with respect to a detainee policy in this country today?

Ms. AYOTTE. I thank Senator Chambliss. I would say this. The Senator highlighted the importance, No. 1, as did Senator McCain, of passing Defense authorization. I have been to the floor twice on this issue because I think it is so important for our country, the notion that it has been half a century since the last time we failed to pass this authorization. What is at stake for our troops and the message it sends to them?

We are in two wars. There are threats that face our country and our military men and women every day. We owe it to them that they know we are going to pass this authorization to address issues such as pay increases and weapons that they need and all of the fundamental day-to-day issues to make sure they know we are behind them.

I would summarize the issue of the detainee policy of this country over the past few months in the Armed Services Committee as military leader after military leader has come before our committee and we have asked them about this issue, about how we treat detainees. I questioned GEN Carter Ham, commander of the Africa command, about what we would do if we captured a member of al-Qaida in Africa. Do you know what he said? He said he would need lawyerly help to answer that one. Is that what we have come to, our commanders need lawyerly help in order to know how to deal with captured terrorists and how to treat them within our system to make sure we have a secure place to gather intelligence from them and to ensure that the American people and our allies are protected?

The majority leader is holding up the entire authorization bill with this detainee compromise, which was an overwhelmingly bipartisan compromise. This provision in the committee was voted 25 to 1 in support of this because there is such a need to address how we treat detainees. As Senator Chambliss already highlighted, we have a 27-percent recidivism rate from those who have been released from Guantanamo. Here are a couple of examples of what those individuals are doing right now against us, our troops, and our allies. For example, the No. 2 in al-Qaida in the Arabian Peninsula was someone we released from Guantanamo.

Another top commander of the Taliban in the Quetta Shura who is out planning attacks against us is someone we released from Guantanamo. That is why this issue cries out for a detention policy for our country. This is a very important issue to be brought to the floor along with the entire authorization.

I see my colleague from South Carolina here, Senator Graham, who I know has worked very closely on these detention issues as a JAG attorney and is someone who visited Afghanistan in August.

First, I would ask, during his time in the Senate, has he seen the Senate act like this with the Defense authorization? Second, how important does the Senator think it is we address this detainee issue?

Mr. McCAIN. I thank the Senator from New Hampshire for the enormous contribution she has made in putting together this legislation. I wish both her and my friend from South Carolina to address this.

In the letter sent to Senator Levin and me to address this issue, Senator Reid, the majority leader, as the rationale for not bringing the bill to the floor, says: I do not intend to bring this bill to the floor until concerns regarding the bill's detainee provisions are resolved.

It goes on and on and then he says: As Deputy National Security Adviser John Brennan stated in a recent speech--he said in summary, this approach, talking about the approach that we have taken in the bill--I believe the vote was 25 to 1. He said: 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 wonder, does Mr. Brennan understand what is in the legislation?

Mr. GRAHAM. I thank the Senator from Arizona and all of my colleagues working on what is a very difficult subject matter. When 25 to 1 is the outcome, that is pretty good. I like Senator Reid. This goes back to the White House. This is President Obama's team. This is not Harry Reid. This is not the Senate holding up this bill, it is the White House holding up this bill. They have an irrational view of what we need to be doing with detainees. They have lost the argument--and I tried to help--to close Guantanamo Bay. It is not going to close. We are not going to move those prisoners inside the United States. The Congress has said no. The American people have said no.

The reason they lost that argument is after working with the White House for about a year and a half to try to find a national security centric detainee policy that would assure the American people we are not going to let these people roam around the world and treat them as common criminals, they could never pull the trigger on the hard stuff. We are here because the White House cannot tell the ACLU no. There are 48 people at Guantanamo Bay being held under the law of war, who will never see a courtroom, military or civilian courtroom, and that is part of military law. You don't have to let an enemy prisoner go. Most enemy prisoners are never prosecuted. They are held at Guantanamo Bay under the law of war. An Executive order issued by the Obama administration gives them an annual review. We have been trying to work with the Obama administration to deal with every class of detainee we may run into in this war that will go well beyond my lifetime. The reason Mr. Brennan objects is because there was a decision made by the Congress to say if a detainee is captured and interrogated by the high-value interrogation team--which I like, which is an interagency combination of the CIA, FBI, military, and other law enforcement agencies to make sure we get the best intelligence possible, that we create a presumption for military custody.

The reason we are doing that is because the Obama administration has been hell bent on criminalizing this war. Khalid Shaikh Mohammed, the mastermind of 9/11, had charges against him in military commissions during the Bush administration, and he was ready to go to trial, literally ready to plead guilty. The Obama administration withdrew those charges and was going to put him in New York City, giving Khalid Shaikh Mohammed the same constitutional rights as an American citizen, then take that show on the road from Guantanamo Bay and have a trial in the heart of New York City that would cost $300 million alone in security. That blew up in their face. They don't get it. Most Americans don't see these people as some guy who stole a car or robbed a liquor store. Most Americans see detainees who were captured on the battlefield as a genuine threat to this country.

I applaud the Obama administration for taking the fight to the terrorists and going after bin Laden, for using Predator drones on the battlefield throughout Pakistan and Afghanistan. What I have fought with them over is we have no way of capturing someone and acquiring good intelligence because you have locked down the system. This detainee legislation we have before the Senate will allow a way to go forward.

What happens if you capture someone tomorrow? Where do we put them? What jail do we have, as a nation, to put a captured terrorist in? We don't have a jail because they will not use Guantanamo Bay. They captured a terrorist and put him on a ship for 60 days. The Navy is not in the detention business. We don't build ships to make them jails. We build ships to fight wars. This aversion to using Guantanamo Bay is going to bite us as a nation.

This legislation allows us to move forward. If you capture someone, you can gather good intelligence. There is a presumption that they will be held as an enemy combatant, but there is a waiver provision. What I don't want to do is read rights to everybody we capture in the United States as part of a terrorist organization's plot. We are not fighting a crime, we are fighting a war. Under the rules of war, you can hold an enemy combatant and interrogate them as long as necessary to find out what the enemy is up to. That is what this legislation does.

To my colleagues, you have written a very balanced approach. This idea of never using Guantanamo Bay again is dangerous. The idea that the CIA cannot interrogate enemy prisoners as a policy is dangerous. By Executive order the President of the United States, President Obama, within a week of taking office, took off the table an enhanced interrogation technique under the Detainee Treatment Act that was classified, that was not waterboarding within our values, but techniques available to our intelligence community, which Senator Chambliss oversees, that would allow them over time to acquire good intelligence.

One of the reasons we killed bin Laden is because of the intelligence picture we acquired over 10 years. This President, within a week, said by Executive order the only interrogation tool available to the United States of America is the Army Field Manual, which is online. You can read it yourself.

Mr. McCAIN. Can I ask my colleague--it is a fact, as the Senator from New Hampshire pointed out, that 27 percent of the detainees who have been released from Guantanamo Bay have returned to the fight. Not only have they returned to the fight, the fact that they were in Guantanamo gives them an automatic kind of charisma and aura and leadership in al-Qaida and other terrorist organizations. Does the Senator think the American people find that acceptable, that one out of every four we have released from Guantanamo Bay has reentered the fight and clearly is responsible for the deaths of at least some of the brave young Americans and may be responsible for the deaths of Americans in the future?

Mr. GRAHAM. Not only are most Americans upset about that but they worry about what comes down the road. That is what I am worried about. The Senate legislation is trying to create a pathway forward for the future. What do you do with these people we have in Guantanamo Bay who may never go on trial? What do you do with these people at Guantanamo Bay who come from countries where, if you return them to that country, they would be back in the fight by the end of the day?

Mr. McCAIN. As has happened in Yemen.

Mr. GRAHAM. We have a bipartisan proposal that will allow us as a nation to make rational decisions about detention, and the White House is holding it up. There are provisions in this bill that affect the day-to-day lives of the men and women in our military. The White House is saying detainee policy driven by the ACLU is more important to them than a bill that would allow the CIA the authorization they need to fight this war that would provide wounded warriors assistance at a time when wounded warriors need it the most. You talk about a perverse view of things, you talk about having it wrong in terms of what is most important, allowing the detainee issue to deny the CIA the authorization they need to protect us all is dangerous. To put the needs of the men and women in uniform in terms of their health care, their pay, their ability to take care of their families secondary to detainee policies that make no sense and is driven by the far left of this country is what this debate is about.

To the White House, we are not going to change this bill.

Mr. McCONNELL. Would the Senator yield for a question?

Mr. GRAHAM. Yes.

Mr. McCONNELL. Am I correct, I would say to my friends from South Carolina and New Hampshire and Arizona, that because of the administration's opposition to a detainee treatment provision that was, I gather, approved overwhelmingly in the Armed Services Committee, we will for the first time deny everybody in the Senate an opportunity to offer any amendments on any subject with the DOD authorization bill and, in fact, will not consider it on the floor of the Senate for the first time in four decades?

Mr. GRAHAM. The minority leader is absolutely right. I would add to my good friend from Kentucky, it is even more. It is not just about us. What we are denying General Petraeus, the new CIA Director, is new authorization language that he needs to fight the war. What we are denying men and women in uniform is pay raises, health care benefits they desperately need because of the detention policy driven by, I think, the most liberal people in this country, and 25 out of 26 Senators blessed this package.

Senator McConnell is absolutely right. Not only does the Senate not have a say on what would be the way forward for our detainees, the men and women in uniform, the CIA operatives taking the fight to the enemy do not have the tools they need because of one area of this legislation. It would be a national tragedy if we could not pass this bill, which is sound to its core in all areas, because the ACLU doesn't like what we have done on detention.

Mr. CHAMBLISS. If the minority leader would yield for a question, as the Senator well knows, the intelligence community depends upon the Defense authorization bill for the authorization to operate in the intelligence community.

Whether it is the budget or policy, all of that is compromised in the majority leader's refusal to bring this bill to the floor. Without the authorities in the respective intelligence bills that are passed by the House and the Senate, then our Intelligence Committee is handicapped and hamstrung in policies that are needed as we move forward in this ever-changing war on terrorism.

I would ask the Senator from Kentucky if he has ever, in his long experience in the Senate, seen any bill of this nature held up and not allowed to come to the floor because of any single Senator's refusal to accept the provisions that are in the bill by an overwhelming vote such as this?

Mr. McCONNELL. Mr. President, I am not sure who has the floor, but I would say, in response to my friend from Georgia----

Mr. McCAIN. Mr. President, I say to the Senator, we have unanimous consent for a colloquy.

Mr. McCONNELL. There may have been examples, but I am hard pressed to think of one recently. The tradition of passing the Defense authorization bill is there for a good reason. The national defense of the United States is the most important thing the Federal Government does. The committee upon which the Senator from Georgia and the Senator from Arizona and the Senator from New Hampshire serve is expert on this matter, and I find this truly astonishing.

It is consistent, however, I must say with the pattern around here in recent times: no amendments, fill up the tree, deny the majority and the minority--in this case, both the majority and the minority--the opportunity to have any input on a piece of legislation that determines what we do on the Federal Government's most important responsibility.

I think this is another example of the way the Senate has deteriorated into operating like the House, and it is an extremely bad direction for this institution and for the American people.

Ms. AYOTTE. I wish to add as well, this detainee compromise, as Senator McCain and I have talked about before, is actually for--the group of individuals we are talking about here--having military custody for members of al-Qaida or affiliated groups who are planning an attack against the United States or its coalition partners. You think about that category of individuals. The most dangerous category of individuals we have to address is why we came to the compromise in committee, that the default would be military custody for those individuals, and it is inconsistent with the administration's position.

If you think about it, they are, rightly so--and I agree with them--undertaking taking out members of al-Qaida around the world who fall under that category, who are out there killing Americans and plotting against Americans and our allies. Yet they are objecting to a provision, a detainee provision, that would give guidance to our military and intelligence leaders that those individuals should be treated, in the first instance, with military custody. It seems to me to be very inconsistent with what they have been doing in other contexts, and, obviously, this is a category of individuals who, on a bipartisan basis, we agreed in committee was the most dangerous category of individuals, who should be held in the first instance in military custody.

I want to add that Mr. Brennan, whom the majority leader has cited on behalf of the administration as objecting to this provision, does not seem to--in his speech at Harvard that he gave recently--appreciate who this provision applies to and that there is actually a national security waiver in the provision. So I would ask the administration and Mr. Brennan, again, to read the provisions that were passed on a bipartisan basis by the committee because this is such a key issue to move forward to give guidance to our military. But I am concerned that the administration's objections to this are misguided and they have not read the actual legislation on which we are working.

It is my hope, as our leader, the minority leader, has said, that we will move forward with passing the critical pieces for our troops because our troops deserve nothing less than for us to bring this forward to the floor because of the pay raises, the weapons systems they deserve to have, everything that is in that bill. But, also, I would ask the administration to revisit its position because it seems inconsistent with its own policies, and they do not seem to have actually read the compromise that was overwhelmingly passed out of the Armed Services Committee.

Mr. McCAIN. Mr. President, I thank the Senator from New Hampshire.

I know we have addressed this issue in some depth, but I would remind my colleagues, this is the Defense authorization bill. This is the product of thousands of hours of work, of staff work, hundreds of hours of testimony and hearings, a week-long markup of the full committee putting this package together. The thoughts, the ideas, the recommendations of the administration, and people in and out of the administration, the knowledge and expertise of thousands of individuals go into this most important piece of legislation.

For 50 years it has been taken up, debated, amended, passed, and signed into law by the President of the United States. Now, because of one small provision of this bill, the majority leader of the Senate, at the behest of the White House, has decided we will not take up the Defense authorization bill for the first time in 50 years.

I think the distinguished Republican leader and I, who have been around here for quite a while, have seen this process now deteriorate to the point where we now cannot debate, amend, and pass legislation that is so vital to our Nation's security and the men and women who take part in preserving it. This is kind of a sad day for this Member.

Mr. McCONNELL. Finally, I would ask both the Senator from Arizona, who has been our leader on national defense issues, and the Senator from New Hampshire: Is the basis of this that the administration wants to establish the precedent that they can capture enemy noncombatants anywhere in the world and send them straight into the United States into an article 3 court? Is that the crux of this, I would ask my friends?

Ms. AYOTTE. I would say to our distinguished Republican leader, I think that is what is at the heart of this, that they want to treat these individuals in the context of our civilian court system; otherwise, why would you object to a provision on military custody for those who are members of al-Qaida who are planning an attack against the United States or have attacked the United States? Also, I would point out, there is a national security waiver in this provision. So the only thing I can take from it is that they do want to treat this war as people who are at war with us as civilians as opposed to who they are--enemies of our country.

Mr. McCONNELL. Could I ask the Senator from New Hampshire, a former attorney general, a further question?

Does this not lead, inevitably, in the further direction of a mindset that would say, on the battlefield , if you capture an enemy combatant--and that enemy combatant is, inevitably, on the way to an article 3 court--could it lead to the feeling that that enemy combatant should be read his Miranda rights on the battlefield , if he is viewed as an individual who is on the way to a U.S. court under U.S. law? Where does it end, I ask my friend from New Hampshire?

Ms. AYOTTE. I would say that is an absolute concern here because this would be the first war in the history of our country where we would be giving those we capture on the battlefield the rights to our civilian court system. Where do we draw the line? It would be outrageous to require members of our military and intelligence officials to immediately ask: Do I have to give Miranda rights? Do I have to worry about some of the speedy trial and presentment issues that come from a civilian court system?

That is why, in the guidance of the committee, on a bipartisan basis, for this category of individuals, the presumption should be military custody because these are individuals who are enemy combatants with whom we are at war. That is fundamentally what is at issue. It does seem inconsistent--with what the administration is doing in terms of rightly going after these individuals around the world, and killing them in certain instances--that we would not provide them with military custody in the first instance.

Mr. McCAIN. Could I also point out to my friends and my colleagues that, as is the case quite often, even though the vote was 25 to 1 on this provision in the Senate Armed Services Committee, we did provide, at the request of the administration, a waiver for national security. So we included a waiver that says:

The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1)--That is the detainee issue-- if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

So there is a national security waiver. We have given the President of the United States a way that he could waive every provision of this legislation--something I was not particularly happy about, but in the spirit of compromise, we gave a waiver.

Could I say, also, I am sure--I see the majority leader on the floor--yes, there have been contentious times. There was contention last year about the don't ask, don't tell act. The year before, there was contention about the fact that they added the hate crimes bill, which had nothing to do with national security, onto the bill. But at least we ought to go ahead and take up and debate and amend and have the Senate act, as the American people expect us to; that is, consideration, voting, and the President, if it is that objectionable, obviously, could veto the bill.

But to say, because of these few pages--these pages right here of the bill--that, therefore, we will not even take up the bill, for the first time in 50 years, in my view, is a great disservice to the men and women who are serving.

I thank my friends, the Senator from New Hampshire and the minority leader.

I yield the floor.

The PRESIDING OFFICER (Mr. Tester). The majority leader is recognized.

 

Statement by Senator Levin

On November 17, 2011 the Obama administration released a statement to Senator Carl Levin of Michigan noting the views of the administration relating to S 1867 - the Senate version of the legislation.

 

EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
November 17, 2011
(Senate)
STATEMENT OF ADMINISTRATION POLICY
S. 1867 – National Defense Authorization Act for FY 2012
(Sen. Levin, D-MI)

The Administration supports Senate passage of S. 1867, the National Defense Authorization Act for Fiscal Year (FY) 2012. The Administration appreciates the Senate Armed Services Committee's continued support of our national defense, including its support for both the base budget and for overseas contingency operations and for most of the Administration's initiatives to control spiraling health costs of the Department of Defense (DoD).

The Administration appreciates the support of the Committee for authorities that assist the ability of the warfighter to operate in unconventional and irregular warfare, authorities that are important to field commanders, such as the Commanders' Emergency Response Program, Global Train and Equip Authority, and other programs that provide commanders with the resources and flexibility to counter unconventional threats or support contingency or stability operations. The Administration looks forward to reviewing a classified annex and working with the Congress to address any concerns on classified programs as the legislative process moves forward.

While there are many areas of agreement with the Committee, the Administration would have serious concerns with provisions that would: (1) constrain the ability of the Armed Forces to carry out their missions; (2) impede the Secretary of Defense's ability to make and implement decisions that eliminate unnecessary overhead or programs to ensure scarce resources are directed to the highest priorities for the warfighter; or (3) depart from the decisions reflected in the President's FY 2012 Budget Request. The Administration looks forward to working with the Congress to address these and other concerns, a number of which are outlined in more detail below.

Detainee Matters: The Administration objects to and has serious legal and policy concerns about many of the detainee provisions in the bill. In their current form, some of these provisions disrupt the Executive branch's ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government's ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military's operations and detention practices.

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult. Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests. The waiver provision fails to address these concerns, particularly in time-sensitive operations in which law enforcement personnel have traditionally played the leading role. These problems are all the more acute because the section defines the category of individuals who would be subject to mandatory military custody by substituting new and untested legislative criteria for the criteria the Executive and Judicial branches are currently using for detention under the AUMF in both habeas litigation and military operations. Such confusion threatens our ability to act swiftly and decisively to capture, detain, and interrogate terrorism suspects, and could disrupt the collection of vital intelligence about threats to the American people.

Rather than fix the fundamental defects of section 1032 or remove it entirely, as the Administration and the chairs of several congressional committees with jurisdiction over these matters have advocated, the revised text merely directs the President to develop procedures to ensure the myriad problems that would result from such a requirement do not come to fruition. Requiring the President to devise such procedures concedes the substantial risks created by mandating military custody, without providing an adequate solution. As a result, it is likely that implementing such procedures would inject significant confusion into counterterrorism operations.

The certification and waiver, required by section 1033 before a detainee may be transferred from Guantánamo Bay to a foreign country, continue to hinder the Executive branch's ability to exercise its military, national security, and foreign relations activities. While these provisions may be intended to be somewhat less restrictive than the analogous provisions in current law, they continue to pose unnecessary obstacles, effectively blocking transfers that would advance our national security interests, and would, in certain circumstances, violate constitutional separation of powers principles. The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. Section 1034's ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military's ability to transfer its detainees as operational needs dictate. Section 1035 conflicts with the consensus-based interagency approach to detainee reviews required under Executive Order No. 13567, which establishes procedures to ensure that periodic review decisions are informed by the most comprehensive information and the considered views of all relevant agencies. Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense. In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch.

Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qa'ida and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation's counterterrorism professionals.

Any bill that challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President's senior advisers to recommend a veto.

Joint Strike Fighter Aircraft (JSF): The Administration also appreciates the Committee's inclusion in the bill of a prohibition on using funds authorized by S. 1867 to be used for the development of the F136 JSF alternate engine. As the Administration has stated, continued development of the F136 engine is an unnecessary diversion of scarce resources.

Medium Extended Air Defense Systems (MEADS): The Administration appreciates the Committee's support for the Department's air and missile defense programs; however, it strongly objects to the lack of authorization of appropriations for continued development of the MEADS program. This lack of authorization could trigger unilateral withdrawal by the United States from the MEADS Memorandum of Understanding (MOU) with Germany and Italy, which could further lead to a DoD obligation to pay all contract costs – a scenario that would likely exceed the cost of satisfying DoD's commitment under the MOU. Further, this lack of authorization could also call into question DoD's ability to honor its financial commitments in other binding cooperative MOUs and have adverse consequences for other international cooperative programs.

Overseas Construction Funding for Guam and Bahrain: The Administration has serious concerns with the limitation on execution of the United States and Government of Japan funds to implement the realignment of United States Marine Forces from Okinawa to Guam. The bill would unnecessarily restrict the ability and flexibility of the President to execute our foreign and defense policies with our ally, Japan. The Administration also has concerns over the lack of authorization of appropriations for military construction projects in Guam and Bahrain. Deferring or eliminating these projects could send the unintended message that the United States does not stand by its allies or its agreements.

Provisions Authorizing Activities with Partner Nations: The Administration appreciates the support of the Committee to improve capabilities of other nations to support counterterrorism efforts and other U.S. interests, and urges the inclusion of DoD's requested proposals, which balance U.S. national security and broader foreign policy interests. The Administration would prefer only an annual extension of the support to foreign nation counter-drug activities authority in line with its request. While the inclusion of section 1207 (Global Security Contingency Fund) is welcome, several provisions may affect Executive branch agility in the implementation of this authority. Section 1204 (relating to Yemen) would require a 60-day notify and wait period not only for Yemen, but for all other countries as well, which would impose an excessive delay and seriously impede the Executive branch's ability to respond to emerging requirements.

Unrequested Authorization Increases: Although not the only examples in S. 1867, the Administration notes and objects to the addition of $240 million and $200 million, respectively, in unrequested authorization for unneeded upgrades to M-1 Abrams tanks and Rapid Innovation Program research and development in this fiscally constrained environment. The Administration believes the amounts appropriated in FY 2011 and requested in FY 2012 fully fund DoD's requirements in these areas.

Advance Appropriations for Acquisition: The Administration objects to section 131, which would provide only incremental funding – undermining stability and cost discipline – rather than the advance appropriations that the Administration requested for the procurement of Advanced Extremely High Frequency satellites and certain classified programs.

Authority to Extend Deadline for Completion of a Limited Number of Base Closure and Realignment (BRAC) Recommendations: The Administration requests inclusion of its proposed authority for the Secretary or Deputy Secretary of Defense to extend the 2005 BRAC implementation deadline for up to ten (10) recommendations for a period of no more than one year in order to ensure no disruption to the full and complete implementation of each of these recommendations, as well as continuity of operations. Section 2904 of the Defense Base Closure and Realignment Act imposes on DoD a legal obligation to close and realign all installations so recommended by the BRAC Commission to the President and to complete all such closures and realignments no later than September 15, 2011. DoD has a handful of recommendations with schedules that complete implementation close to the statutory deadline.

TRICARE Providers: The Administration is currently undertaking a review with relevant agencies, including the Departments of Defense, Labor, and Justice, to clarify the responsibility of health care providers under civil and workers' rights laws. The Administration therefore objects to section 702, which categorically excludes TRICARE network providers from being considered subcontractors for purposes of the Federal Acquisition Regulation or any other law.

Troops to Teachers Program: The Administration urges the Senate's support for the transfer of the Troops to Teachers Program to DoD in FY 2012, as reflected in the President's Budget and DoD's legislative proposal to amend the Elementary and Secondary Education Act of 1965 and Title 10 of the U.S. Code in lieu of section 1048. The move to Defense will help ensure that this important program supporting members of the military as teachers is retained and provide better oversight of 6 program outcomes by simplifying and streamlining program management. The Administration looks forward to keeping the Congress abreast of this transfer, to ensure it runs smoothly and has no adverse impact on program enrollees.

Constitutional concerns: A number of the bill's provisions raise additional constitutional concerns, such as sections 233 and 1241, which could intrude on the President's constitutional authority to maintain the confidentiality of sensitive diplomatic communications. The Administration looks forward to working with the Congress to address these and other concerns.

 

The Feinstein Amendments

On November 17, 2011 Senator Dianne Feinstein of California put forth two amendments aimed at ensuring that US citizens captured on US soil would not fall under the new detainee provisions. The two amendments - SA 1125 and SA 1126 were both voted on in the Senate and both failed to pass.

 

SA 1125

Senate Amendment 1125 attempted to insert the word "abroad" within the text of the legislation relating to covered persons. This would have left the legislaiton applying only to people captured outside of the US.

SA 1125. Mrs. FEINSTEIN (for herself, Mr. Leahy, Mr. Durbin, and Mr. Udall of Colorado) submitted an amendment intended to be proposed by her to the bill S. 1867, to authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes; as follows:

On page 361, line 9, insert ``abroad'' after ``is captured''.

Despite the simplicity of the amendment, it failed 45-55 on December 1, 2011. A vast majority of Republicans opposed the legislation and only about a fourth of the Democrats opposed it.

 

SA 1126

Again on November 17, 2011 Senator Feinstein attempted to pass an amendment to ensure that the laws relating to detaining terrorists without a trial would not apply to US citizens. The amendment would have simply added in a section that simply stated that the authority to detain a person without a trial until the end of hostilities would not apply to US citizens.

SA 1126. Mrs. FEINSTEIN (for herself, Mr. Leahy, Mr. Durbin, and Mr. Udall of Colorado) submitted an amendment intended to be proposed by her to the bill S. 1867, to authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes; as follows:

On page 360, between lines 21 and 22, insert the following:

(e) Applicability to Citizens.--The authority described in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of the hostilities.

This amendment also failed by the same margin of 45-55 on the same date of December 1, 2011. The makeup of the voters was almost identical to the vote for SA 1125 with most Republicans opposing the amendment and most Democrats supporting it.

 

Summary

In November of 2011, Senator Mark Udall of Colorado proposed an amendment to insert wording to ensure that the provisions relating to the arrest and detentions of terrorists would not apply to US citizens. This tab shows the amendment and the discussion surrounding the amendment on November 17, 2011. The policy statement in the above tab is referenced in the discussions on the floor:

 

Amendment Text

SA 1107. Mr. UDALL of Colorado submitted an amendment intended to be proposed by him to the bill S. 1867, to authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes; as follows:

Strike subtitle D of title X and insert the following:

Subtitle D--Detainee Matters

SEC. 1031. REVIEW OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) In General.--Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with appropriate officials in the Executive Office of the President, the Director of National Intelligence, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, submit to the appropriate committees of Congress a report setting forth the following:

  • (1) A statement of the position of the Executive Branch on the appropriate role for the Armed Forces of the United States in the detention and prosecution of covered persons (as defined in subsection (b)).
  • (2) A statement and assessment of the legal authority asserted by the Executive Branch for such detention and prosecution.
  • (3) A statement of any existing deficiencies or anticipated deficiencies in the legal authority for such detention and prosecution.

(b) Covered Persons.--A covered person under this section is any person, other than a member of the Armed Forces of the United States, whose detention or prosecution by the Armed Forces of the United States is consistent with the laws of war and based on authority provided by any of the following:

  • (1) The Authorization for Use of Military Force (Public Law 107-40).
  • (2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).
  • (3) Any other statutory or constitutional authority for use of military force.

(c) Congressional Action.--Each of the appropriate committees of Congress may, not later than 45 days after receipt of the report required by subsection (a), hold a hearing on the report, and shall, within 45 days of such hearings, report to Congress legislation, if such committee determines legislation is appropriate and advisable, modifying or expanding the authority of the Executive Branch to carry out detention and prosecution of covered persons.

(d) Appropriate Committees of Congress Defined.--In this section, the term ``appropriate committees of Congress'' means--

  • (1) the Committee on Armed Services, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate; and
  • (2) the Committee on Armed Services, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives.

 

Vote

The Udall amendment failed to pass the Senate on November 29, 2011. It was opposed by a majority of Republicans and support by most of the Democrats.

 

Panetta Letter

On November 15, 2011 the Director of National Intelligence, Leon Panetta, wrote a letter to Senator Levin expressing his views on the detainee provisions of the 2012 NDAA. The letter is reference in the floor debates on the subject.

 

Text of Letter

THE SECRETARY OF DEFENSE,

DEFENSE PENTAGON,

Washington, DC, Nov. 15, 2011.
The Hon. Carl Levin,
Chairman, Committee on Armed Services, U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: I write to express the Department of Defense's principal concerns with the latest version of detainee-related language you are considering including in the National Defense Authorization Act (NDAA) for Fiscal Year 2012. We understand the Senate Armed Services Committee is planning to consider this language later today.

We greatly appreciate your willingness to listen to the concerns expressed by our national security professionals on the version of the NDAA bill reported by the Senate Armed Services Committee in June. I am convinced we all want the same result--flexibility for our national security professionals in the field to detain, interrogate, and prosecute suspected terrorists. The Department has substantial concerns, however, about the revised text, which my staff has just received within the last few hours.

Section 1032. We recognize your efforts to address some of our objections to section 1032. However, it continues to be the case that any advantages to the Department of Defense in particular and our national security in general in section 1032 of requiring that certain individuals be held by the military are, at best, unclear. This provision restrains the Executive Branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.

Moreover, 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.

Next, the revised language adds a new qualifier to ``associated force''--``that acts in coordination with or pursuant to the direction of al-Qaeda.'' In our view, this new language unnecessarily complicates our ability to interpret and implement this section.

Further, the new version of section 1032 makes it more apparent that there is an intent to extend the certification requirements of section 1033 to those covered by section 1032 that we may want to transfer to a third country. In other words, the certification requirement that currently applies only to Guantanamo detainees would permanently extend to a whole new category of future captures. This imposes a whole new restraint on the flexibility we need to continue to pursue our counterterrorism efforts.

Section 1033. We are troubled that section 1033 remains essentially unchanged from the prior draft, and that none of the Administration's concerns or suggestions for this provision have been adopted. We appreciate that revised section 1033 removes language that would have made these restrictions permanent, and instead extended them through Fiscal Year 2012 only. As a practical matter, however, limiting the duration of the restrictions to the next fiscal year only will have little impact if Congress simply continues to insert these restrictions into legislation on an annual basis without ever revisiting the substance of the legislation. As national security officials in this Department and elsewhere have explained, transfer restrictions such as those outlined in section 1033 are largely unworkable and pose unnecessary obstacles to transfers that would advance our national security interests.

Section 1035. Finally, section 1035 shifts to the Department of Defense responsibility for what has previously been a consensus-driven interagency process that was informed by the advice and views of counterterrorism professionals from across the Government. We see no compelling reason--and certainly none has been expressed in our discussions to date--to upset a collaborative, interagency approach that has served our national security so well over the past few years.

I hope we can reach agreement on these important national security issues, and, as always, my staff is available to work with the Committee on these and other matters.

Sincerely,
LEON E. PANETTA.

DIRECTOR OF NATIONAL INTELLIGENCE, Washington, DC.

 

Floor Debates - November 17, 2011

On November 17, 2011 the Senate debated the Udall amendment. The discussion start with Senator Udall introducing his amendment describing the problems he has with the section relating to detainee provisions. He notes that setting the default case to military custody could cause problems with a civilian agency such as the FBI make the initial arrest. He also states that there is concern that the provisions in the legislation could be applied to US citizens captured on US soil. He again offers his amendment as a method to allow the executive branch to develop a procedure for dealing with detainees that Congress could then approve. He also references the policy statement put out by the Obama administration that opposed the detainee matters language.

After these statements, Senators Durbin and Levin ask Senator Udall a number of questions. One question was asked by Senator Levin questioning Senator Udall's position that the Obama adminstration was opposed to the section because it may have put American citizens at risk. Senator Levin states that bill originally contained language to ensure that the new provisions would not apply to US citizens and the Obama administration asked that it be removed.

 

Text of Debates

Mr. UDALL of Colorado. Mr. President, I come to the floor to comment on the NDAA, the bill in front of us today. I want to start my remarks by acknowledging the leadership of Chairman Levin and Ranking Member McCain. Under their tutelage and leadership the committee has worked tirelessly to craft a Defense Authorization Act that provides our Armed Forces with the equipment, the services, the training, and the overall support they need to keep us safe while they themselves are being protected. I thank the chairman and ranking member, my colleagues, and, most important, the wonderful staff that works for us for their diligence and dedication to this important work.

I also come to the floor to speak out against a proposed change that I think would alter what has been a very effective set of terrorist detention policies and procedures. I believe to make those changes would complicate our capacity to prosecute the war on terror and call into question the principles we as Americans hold dear.

I filed an amendment, No. 1107, that would take a look at what is proposed in the NDAA. We have a solemn obligation to pass the National Defense Authorization Act. But we also have a solemn obligation to make sure those who are fighting the war on terror have the best, most flexible, most powerful tools possible. I have to say again, and I will say it more than two times in my remarks, I am worried these changes we are about to push through would actually hurt our national security.

I am a proud member of the Senate Armed Services Committee. As I have implied, and I want to be explicit, I understand the importance of this bill. I understand what it does for our military, which is why, in sum, what I am going to propose with my amendment is that we pass the NDAA without these troubling provisions but with a mechanism by which we can consider what is proposed and perhaps at a later date include any applicable changes in the law.

We need to hear from the Department of Defense, our intelligence community, and the administration more broadly on what our men and women in the field actually need to effectively prosecute the war on terror, especially before we change detainee policies that are already working. As I am saying, I have serious concerns about the detainee provisions that have been included in the bill.

In my opinion, and in the opinion of many others--and I will share those opinions and insights with my colleagues--these provisions disrupt the capacity of the executive branch to enforce the law, and they impose unwise and unwarranted restrictions on our ability to aggressively combat international terrorism. In so doing, they inject legal uncertainty and ambiguity that may only complicate the military's operations and detention practices.

I am not the only one who has serious concerns. The Secretary of Defense has urged us to oppose these new provisions. Both chairmen of the Intelligence and Judiciary Committees strongly oppose them. The President's team is recommending a veto. These are people whose opinions should be carefully considered before we put these new proposals into our legal framework.

In the Statement of Administration Policy the White House states:

We have spent 10 years since September 11, 2001, breaking down the walls between intelligence, military and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult.

Those are striking words that should give us all pause as we face what seems to me a bit of a rush to submit these untested and legally controversial restrictions on our ability to prosecute terrorists.

I ask unanimous consent to have the entire Statement of Administration Policy printed in the Record at the conclusion of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Mr. UDALL of Colorado. Mr. President, these are complex issues that have far-reaching consequences for intelligence, civilian law enforcement agencies, and our intelligence community as they work to keep Americans safe from harm. Despite this fact, the Department of Defense and the national security staff, as far as I know, had little opportunity to review or comment on the final language in the provisions. As a result, these provisions restrained the ``Executive Branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.''

That quote comes directly from a letter addressed to the Armed Services Committee from Secretary Panetta. I think we all know that before he held the job he has now, Secretary of Defense, Mr. Panetta, was the Director of the CIA. He very well knows the threats facing our country, and he knows we cannot afford to make mistakes when it comes to keeping our citizens safe.

I also ask unanimous consent that Secretary Panetta's letter be printed in the Record at the conclusion of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 2.)

Mr. UDALL of Colorado. Mr. President, the provisions I am speaking to are well intended. I have much admiration for my colleagues who propose them, but I think we need to take some more time to consider the ramifications. The United States, our country, can currently choose from several options when prosecuting terrorists. That flexibility has allowed us to try, convict, and imprison hundreds of terrorists, and it allows the government to select the venue that will provide the highest likelihood of obtaining a conviction. The current detention provisions in the bill we are debating would strip away that flexibility and potentially impair our capacity to successfully

prosecute and convict terrorists. It is not clear to me why, after 10 years of successfully prosecuting terrorists and preventing another 9/11-like attack, why we would want to limit our options while our enemies are constantly adapting their tactics and expanding their efforts to do us harm.

In a recent op-ed in the Chicago Times, a bipartisan group of three former Federal judges, including William S. Sessions, who was also the appointed Director of the FBI under President Reagan, said it best when describing these provisions:

Legislation now making its way through Congress would seek to over-militarize America's counterterrorism efforts, effectively making the U.S. military the judge, jury and jailer of terrorism suspects to the exclusion of the FBI and local and State law enforcement agencies. As former Federal judges, we find this prospect deeply disturbing. Not only would such an effort ignore 200 years of legal precedent, it would fly in the face of common sense.

And I ask unanimous consent that op-ed be printed in the Record at the conclusion of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 3.)

Mr. UDALL of Colorado. I also point out these provisions raise serious questions as to who we are as a society and what our Constitution seeks to protect. One section of these provisions, section 1031, could be interpreted as allowing the military to capture and indefinitely detain American citizens on U.S. soil. Section 1031 essentially repeals the Posse Comitatus Act of 1878 by authorizing the military to perform law enforcement functions on American soil. That alone should alarm my colleagues on both sides of the aisle. But there are other problems with these provisions that must be resolved.

These detainee provisions are unnecessary, counterproductive, and potentially harmful to our counterterrorism efforts. I know I have said this a couple of times already, but it feels as though they are being rushed through in a manner that does not serve us well. The Department of Defense has had little input. There have been no hearings. Earlier this week the changes were presented to us in the Armed Services Committee just hours before we were asked to vote on them. These are just too important a set of questions to let them pass without a thorough review and far greater understanding of their effect on our national security and our fight against terrorism.

It feels to this Senator that we are rushing hastily to address a solution in search of a problem. We ought to hear from the Department of Defense, the intelligence community, our colleagues, and other relevant committees before we act. Do we believe this Congress--again, let me underline that after 10 years of successfully prosecuting the war on terror--should substitute its views for that of our Defense, intelligence, and Homeland Security leadership without careful analysis?

I recently received a letter signed by 18 retired military leaders in opposition to these provisions. The letter states that: ``Mandating military custody would undermine legitimate law enforcement and intelligence operations crucial to our security at home and abroad.'' I could not agree more.

I would ask unanimous consent that this letter be printed in the Record at the conclusion of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 4.)

Mr. UDALL of Colorado. We are already trying and convicting terrorists in both civilian courts and under military commissions. The provisions that are in this bill would require the DOD to shift significant resources away from their mission, to act on all the fronts all over the world, and they would become a police force and jailer. This is not what they are good at. This is not what we want them to do. I think it has potentially dangerous consequences because we have limited resources and limited manpower. We would not lose anything by taking a little bit more time to discuss and debate these provisions, but we could do real harm to our national security by allowing this language, unscrutinized, to pass, and that is exactly what our highest ranking national security officers are warning us against doing.

This is a debate we need to have. It is a healthy debate, but we ought to be armed with all of the facts and expertise before we move forward. The least we can do is take our time, be diligent, and hear from those who will be affected by these new limitations on our ability to prosecute terrorists.

It concerns me that we would tell our national security leadership--a bipartisan national security leadership, by the way--that we would not listen to them and that Congress knows better than they do. It doesn't strike me that that is the best way to secure and protect the American people. That is why I have filed amendment No. 1107. I think it is a commonsense alternative that will protect our constitutional principles and beliefs while also allowing us to keep our Nation safe. The amendment has a clear aim, which is to ensure we follow a thorough process and hear all views before rushing forward with new laws that could be harmful to our national security.

What is in the amendment? It is straightforward. Specifically the amendment would require that our Defense, intelligence, and law enforcement agencies report to Congress with recommendations for any additional authorities or flexibility they need in order to detain and prosecute terrorists. In other words, let's not put the cart before the horse or fix something that is not broken. Let's first hear from the stakeholders as to what laws they believe need to be changed to give them better tools to do their job.

My amendment then asks for hearings to be held so we can fully understand the views of respected national security experts. Moreover, it would require input from each of the relevant committees to ensure that we have carefully considered the benefits and consequences of our actions. The chairmen of our Judiciary and Intelligence Committees have deep concerns about the detainee provisions in the pending legislation. And, of course, as we underwent this process, the existing laws that guide our actions today would remain in place. They have been successful.

I see some of my colleagues who I think share my views who have come to the floor. They also made the compelling case that it is a system that is working. Why would we change it without thinking it through? It is straightforward, it is common sense, and it allows us to make sure we will win the war on terror.

Mr. DURBIN. Will the Senator from Colorado yield for a question, through the Chair?

Mr. UDALL of Colorado. Yes.

Mr. DURBIN. I thank the Senator from Colorado for his strong statement and totally support his position. This change in the Defense authorization bill goes beyond a military decision. It goes to the fundamental questions of principles of our Constitution and our body of law. As a member of the Senate Judiciary Committee, I believe this matter should have been considered as well by the Senate Judiciary Committee, and I believe Senator Feinstein has expressed the feeling that it should have been considered as well by the Senate Intelligence Committee.

I wish to use one example to ask the Senator from Colorado a question. When we had the so-called Underwear Bomber, the passenger on a commercial aircraft who tried to detonate a bomb--and thank God was unsuccessful--he was subdued, arrested, and interrogated by the Federal Bureau of Investigation in Detroit. After that investigation was underway--and he surrendered some information--he stopped talking, at which point the FBI investigators read him his Miranda rights.

Then later, working with his parents, he resumed talking to the investigators and literally--according to the FBI--gave a dramatic amount of information helpful to us in keeping America safe and stopping terrorism. He was then prosecuted in the criminal courts of America, article 3 courts, and ultimately, weeks ago, pled guilty.

Mr. McCAIN. Will the Senator state his question.

Mr. DURBIN. I am going to. I would say to the Senator from Arizona, I think it is important we take some time on this important issue.

Mr. McCAIN. I would say it is important that all voices be heard.

Mr. DURBIN. Senator McCain, of course, as the ranking member, will have ample opportunity to express his point of view.

What I am asking the Senator from Colorado is this: Taking into consideration the language that is now being presented in this Defense authorization bill, particularly section 1032, it is my understanding the Federal Bureau of Investigation could not have continued their interrogation of this suspected terrorist without first contacting our military and bringing them in to determine whether they had jurisdiction over this matter. In other words, time would have been lost, opportunities would have been lost, information might have been lost by following the new section in the bill.

I am asking the Senator from Colorado if this is a decision which he believes we should make in the haste of a Defense authorization bill or ought to step back and work with the President of the United States, the FBI, the military, and our intelligence forces to make sure we do not lose an opportunity to catch an alleged terrorist, to interrogate them, and to keep this country safe.

Mr. UDALL of Colorado. I thank the Senator from Illinois for his question. My understanding is the Senator from Illinois is correct, that provision 1032 would change the way in which interrogations would unfold. There may be some in the Senate who would see it differently, but that is all the more reason to adopt my amendment, which would allow a thorough process of hearing from the very experts who interrogated the Underwear Bomber and other experts who have been on the front lines in fighting terrorism. We ought to go slow. We should not fix something that is working fine right now.

I thank the Senator for his question.

Mr. DURBIN. If the Senator from Arizona will forgive me, I would ask one more question through the Chair. The question goes back to the point the Senator made: Section 1031, as I understand it, would be a departure from current law and would say that those who are American citizens can be detained indefinitely if they are suspected of certain terrorist conduct. I ask the Senator from Colorado: Is that the point the Senator made in his statement?

Mr. UDALL of Colorado. The Senator from Illinois is correct. Mr. President, 1031 would do just that, and it would come directly at a piece of law, posse comitatus, which dates back to the Civil War, that is held dear by all of us in America because it distinguishes between the military used to protect us against foreign foes and how we manage our own civil affairs here at home.

Also, as the Senator alludes to, it causes questions to be raised about something that is very sacred in our system of law, which is the writ of habeas corpus. You have to prove why you hold someone. You cannot detain an American citizen indefinitely in any other circumstance.

I thank the Senator for his questions.

Mr. LEVIN. Would the Senator yield for a question?

Mr. UDALL of Colorado. I would be happy to yield for a question.

Mr. LEVIN. We explicitly wrote into this bill the following language: that the procedures providing for the determination that somebody is an Al-Qaida terrorist or related, affiliated one is not required to be implemented until after the conclusion of the interrogation session, which is ongoing at the time the determination is made.

Is the Senator familiar with that language which explicitly says that the President will adopt the procedures--whatever procedures the President determines--to make sure there is no interference with an ongoing interrogation

by the civilians as it appears in section 2(c) on page 363? Is the Senator familiar with that?

Mr. UDALL of Colorado. I am familiar with the language in the general way it has been introduced. I would say to the chairman of the Armed Services Committee that we had a chance to review this language starting about 48 hours ago.

One of the reasons I think my amendment is important is it would give those voices, which are being heard more and more as of today, who have concerns with this provision--they are not sure how it applies--that that is all the more reason to slow this down, to keep the existing law in place, and go through a more thorough process to understand the ramifications of the waiver provision and the other provisions the chairman and ranking member----

Mr. LEVIN. Is it not true, however, that the language which is in this bill that I just read clearly provides there will not be any interference with an interrogation session, that those procedures are to be determined by the President, and that it explicitly says there will not be any interference with the interrogation and the procedures will guarantee there will not be? That is the point of this language.

I don't understand how the statement could be made that this language in this bill interferes with the interrogation by civilian authorities and the FBI when the very language here says they will not interfere with that interrogation. I wonder if the Senator could explain to me his agreement with the Senator from Illinois that something in this bill would result in an interference with an interrogation.

Mr. UDALL of Colorado. What I would say to my friend is that just having had an opportunity to review this language in the last 48 hours, I have no question about his intent, but I have heard from people with much greater expertise than I have that there are questions that are still unanswered. Maybe this provision is appropriate and will do what the chairman says it will do. But, again, that is why I think it would be well worth our time to take a further look at what is involved in these provisions.

Mr. LEVIN. I do appreciate the Senator's response. I have one other question, and that has to do with an American citizen who is captured in the United States and the application of the custody pending a Presidential waiver to such a person. I wonder whether the Senator is familiar with the fact that the language which precluded the application of section 1031 to American citizens was in the bill we originally approved in the Armed Services Committee, and the administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section.

Is the Senator familiar with the fact that it was the administration which asked us to remove the very language which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois?

Mr. UDALL of Colorado. I am familiar now because the Senator from Michigan has shared that fact with me. I am also familiar with the fact that the administration has other questions and concerns which has caused it to issue a set of provisions and issues they wish to further consider.

Mr. LEVIN. I thank my friend.

Mr. LEAHY. Would the Senator yield for a question?

Mr. UDALL of Colorado. I would be happy to yield to my friend from Vermont.

Mr. LEAHY. Is the Senator from Colorado aware that the administration has raised real concerns--both DOD and the White House--saying that requiring the President to devise the kind of procedures discussed in this bill creates all kinds of problems, and that this is one of the reasons why both the Senate Intelligence Committee and the Senate Judiciary Committee have asked to have the opportunity to hold hearings on a section that obviously involves the jurisdiction of both the Senate Intelligence and Senate Judiciary Committees?

Mr. UDALL of Colorado. I am. The Senator from Vermont is correct. That knowledge on my part is, in part, one of the reasons I filed the amendment we are discussing right now.

Mr. LEAHY. I thank the Senator.

Mr. UDALL of Colorado. I thank the Senator from Vermont.

I yield the floor.

 

Mueller Letter

On November 28, 2011 the Director of the FBI sent a letter to Senator Levin expressing his views on the detainee provisions in the 2012 NDAA. This letter is referenced in the floor remarks when the provisions are debated.

 

Text of Letter

U.S. DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,

Washington, DC, November 28, 2011.
Hon. Carl Levin,
Chairman, Committee on Armed Services,
U.S. Senate, Washington, DC.

Dear Mr. Chairman: I am writing to express concerns regarding the impact of certain aspects of the current version of Section 1032 of the National Defense Authorization Act for Fiscal Year 2012. Because the proposed legislation applies to certain persons detained in the United States, the legislation may adversely impact our ability to continue ongoing international terrorism investigations before or after arrest, derive intelligence from those investigations, and may raise extraneous issues in any future prosecution of a person covered by Section 1032.

The legislation as currently proposed raises two principal concerns. First, by establishing a presumption of military detention for covered individuals within the United States, the legislation introduces a substantial element of uncertainty as to what procedures are to be followed in the course of a terrorism investigation in the United States. Even before the decision to arrest is made, the question of whether a Secretary of Defense waiver is necessary for the investigation to proceed will inject uncertainty as to the appropriate course for further investigation up to and beyond the moment when the determination is made that there is probable cause for an arrest.

Section 1032 may be read to divest the FBI and other domestic law enforcement agencies of jurisdiction to continue to investigate those persons who are known to fall within the mandatory strictures of section 1032, absent the Secretary's waiver. The legislation may call into question the FBI's continued use or scope of its criminal investigative or national security authorities in further investigation of the subject. The legislation may restrict the FBI from using the grand jury to gather records relating to the covered person's communication or financial records, or to subpoena witnesses having information on the matter. Absent a statutory basis for further domestic investigation, Section 1032 may be interpreted by the courts as foreclosing the FBI from conducting any further investigation of the covered individual or his associates.

Second, the legislation as currently drafted will inhibit our ability to convince covered arrestees to cooperate immediately, and provide critical intelligence. The legislation introduces a substantial element of uncertainty as to what procedures are to be followed at perhaps the most critical time in the development of an investigation against a covered person. Over the past decade we have had numerous arrestees, several of whom would arguably have been covered by the statute, who have provided important intelligence immediately after they have been arrested, and in some instances for days and weeks thereafter. In the context of the arrest, they have been persuaded that it was in their best interests to provide essential information while the information was current and useful to the arresting authorities.

Nonetheless, at this crucial juncture, in order for the arresting agents to proceed to obtain the desired cooperation, the statute requires that a waiver be obtained from the Secretary of Defense, in consultation with the Secretary of State and the Director of National Intelligence, with certification by the Secretary to Congress that the waiver was in the national security interests of the United States. The proposed statute acknowledges that this is a significant point in an ongoing investigation. It provides that surveillance and intelligence gathering on the arrestee's associates should not be interrupted. Likewise, the statute provides that an ongoing interrogation session should not be interrupted.

These limited exceptions, however, fail to recognize the reality of a counterterrorism investigation. Building rapport with, and convincing a covered individual to cooperate once arrested, is a delicate and time sensitive skill that transcends any one interrogation session. It requires coordination with other aspects of the investigation. Coordination with the prosecutor's office is also often an essential component of obtaining a defendant's cooperation. To halt this process while the Secretary of Defense undertakes the mandated consultation, and the required. certification is drafted and provided to Congress, would set back our efforts to develop intelligence from the subject.

We appreciate that Congress has sought to address our concerns in the latest version of the bill, but believe that the legislation as currently drafted remains problematic for the reasons set forth above. We respectfully ask that you take into account these concerns as Congress continues to consider Section 1032.

Sincerely,

Robert S. Mueller III,
Director.

 

Clapper Letter

In an undated letter, Director of National Intelligence, James Clapper responded to a request by Dianne Feinstein for his views on the detainee provisions of the 2012 NDAA.

Hon. DIANNE FEINSTEIN,
Chairman, Select Committee on Intelligence, U.S. Senate, Washington, DC.

DEAR MADAM CHAIRMAN: I am writing in response to your letter requesting my views on the effect that the detention provisions in the National Defense Authorization Act for Fiscal Year 2012 could have on the ability of the Intelligence Community to gather counterterrorism information. In my view, some of these provisions could limit the effectiveness of our intelligence and law enforcement professionals at a time when we need the utmost flexibility to defend the nation from terrorist threats. The Executive Branch should have maximum flexibility in these areas, consistent with our law and values, rather than face limitations on our options to acquire intelligence information. As stated in the November 17, 2011, Statement of Administration Policy for S. 1867, ``[a]ny bill that challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the nation would prompt the President's senior advisers to recommend a veto.''

Our principal objective upon the capture of a potential terrorist is to obtain intelligence information and to prevent future attacks, yet the provision that mandates military custody for a certain class of terrorism suspects could restrict the ability of our nation's intelligence professionals to acquire valuable intelligence and prevent future terrorist attacks. The best method for securing vital intelligence from suspected terrorists varies depending on the facts and circumstances of each case. In the years since September 11, 2001, the Intelligence Community has worked successfully with our military and law enforcement partners to gather vital intelligence in a wide variety of circumstances at home and abroad and I am concerned that some of these provisions will make it more difficult to continue to have these successes in the future.

Taken together, the various detention provisions, even with the proposed waivers, would introduce unnecessary rigidity at a time when our intelligence, military, and law enforcement professionals are working more closely than ever to defend our nation effectively and quickly from terrorist attacks. These limitations could deny our nation the ability to respond flexibly and appropriately to unfolding events--including the capture of terrorism suspects--and restrict a process that currently encourages intelligence collection through the preservation of all lawful avenues of detention and interrogation.

Our intelligence professionals are best served when they have the greatest flexibility to collect intelligence from suspected terrorists. I am concerned that the detention provisions in the National Defense Authorization Act could reduce this flexibility.

Sincerely,
JAMES R. CLAPPER.

 

Floor Debates - November 29, 2011

The debates of November 29, 2011 started with Senator Rand Paul of Kentucky discussing the possibiity of the detainee matters section. Senator Paul stated that traditionally when a US citizen is accused of acts of war against the US, they are prosecuted by federal law and, if applicable, treason. He notes that laws are already on the books to prosecute terrorists before they commit acts of terror.

Additionally, Senator Rand notes that the legislation claims to only apply to those accused of being allied with al-Qaeda, but being accused of such an action therefore removes the right to a trial to prove or disprove that you are indeed working with al-Qaeda. 

Senator Udall then takes the floor and discusses the need to pass his amendment to ensure that the provisions do not create unintended problems and do not apply to US citizens.

In response to these statements by Sentor Paul and Senator Udall, Senator Lindsey Graham speaks on the floor. He asserts that a person who is suspected of being allied with al-Qaeda has not committed a crime, but has committed an act of war. He asserts that the provision does indeed apply to US citizens captured on US soil. He asserts that US citizens who have taken up arms against the US should not be given a lawyer or a trial.

In later discussions, Senator Levin and Senator Graham discuss the meaning of the text more. The flatly assert that the US has the authority to detain US citizens that that this legislation would extend the right of the President to the homeland.

 

Text of Debate

Mr. PAUL. Mr. President, James Madison, the father of the Constitution, warned:

The means of defense against foreign danger historically have become instruments of tyranny at home.

Abraham Lincoln had similar thoughts saying:

America will never be destroyed from the outside. If we falter, and lose our freedoms, it will be because we destroyed ourselves.

During war there has always been a struggle to preserve constitutional liberties. During the Civil War, the right of habeas corpus was suspended. Newspapers were closed down. Fortunately, these rights were restored after the war. The discussion now to suspend certain rights of due process is especially worrisome given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to return.

So we do well to contemplate the diminishment of due process knowing that these rights we give up now may never be restored. My well-intentioned colleagues' admonitions in defending provisions of this Defense bill say we should give up certain rights: the right to due process. Their legislation would arm the military with the authority to detain indefinitely, without due process or trial, people suspected of association with terrorism. These would include American citizens apprehended on American soil.

I want to repeat that. We are talking about people who are merely suspected of terrorism or suspected of committing a crime and have been judged by no court. We are talking about American citizens who could be taken from the United States and sent to a camp at Guantanamo Bay and held indefinitely.

This should be alarming to everyone watching this proceeding today because it puts every single American citizen at risk. There is one thing and one thing only that is protecting American citizens, and that is our Constitution, the checks we put on government power. Should we err today and remove some of the most important checks on State power in the name of fighting terrorism, well, then, the terrorists have won.

Detaining citizens without a court trial is not American. In fact, this alarming arbitrary power is reminiscent of what Egypt did with its permanent emergency law. This permanent emergency law allowed them to detain their own citizens without a court trial. Egyptians became so alarmed at that last spring that they overthrew their government.

Recently, Justice Scalia affirmed this idea in his dissent in the Hamdi case saying:

Where the government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in Federal court for treason or another crime.

Scalia concluded by saying:

The very core of liberty secured by our Anglo Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.

Justice Scalia was, as he often does, following the wisdom of our Founding Fathers. As Franklin wisely warned:

These who give up their liberty for security may wind up with neither.

Really, what security does this indefinite detention of Americans give us? The first and flawed premise, both here and in the badly misnamed PATRIOT Act, is that our pre-9/11 police powers were insufficient to stop terrorism. This is simply not borne out by the facts. Congress long ago made it a crime to provide or conspire to provide material assistance to al-Qaida or other foreign terrorist organizations.

Material assistance includes virtually anything of value: legal, political advice, education, books, newspapers, lodging, or otherwise. The Supreme Court sustained the constitutionality of this sweeping prohibition. We have laws on the books that can prosecute terrorists before they commit acts of terrorism. Al-Qaida adherents may be detained, prosecuted, and convicted for conspiring to violate the material assistance prohibition. In fact, we have already done this.

Jose Padilla, for instance, was convicted and sentenced to 17 years in prison for conspiring to provide material assistance to al-Qaida. The criminal law does require and can prevent crimes from occurring before they do occur. Indeed, conspiracy laws and prosecutions in civilian courts have been routinely invoked after 9/11 to thwart embryonic international terrorism. In fact, in the Bush administration, Michael Chertoff, then head of the Justice Department's Criminal Division and later Secretary of the Department of Homeland Security, testified shortly after 9/11. He underscored:

The history of this government in prosecuting terrorists in domestic courts has been one of unmitigated success, and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.

We can prosecute terrorists in our courts, and have done so. It is the wonderful thing about our country, that even with the most despicable criminal, murderer, rapist, or terrorist our court systems do work. We can have constitutional liberty and prosecute terrorists. There is no evidence that the criminal justice procedures have frustrated intelligence collection about international terrorism.

Suspected terrorist have repeatedly waived both the right to an attorney and the right to silence. Additionally, Miranda warnings are not required at all when the purpose of the interrogation is public safety. The authors of this bill errantly maintain that the bill would not enlarge the universe of detainees, people held indefinitely. I believe this is simply not the case.

The current authorization for the use of military force confines the universe to persons implicated in 9/11 or who harbored those who were. This new detainee provision will expand the universe to include any person said to be part of or substantially supportive of al-Qaida or the Taliban. But, remember, this is not someone who has been concluded at trial to be part of al-Qaida. This is someone who is suspected.

If someone is a suspect in our country they are usually accorded due process. They go to court. They are not automatically guilty. They are accused of a crime. But now we are saying someone accused of a crime can be taken from American soil. An American citizen accused of a crime, a suspect of a crime, could be taken to Guantanamo Bay. These terms are dangerously vague.

More than a decade after 9/11 the military has been unable to define the earmarks of membership in or affiliation to either al-Qaida or other terrorist organizations. It is an accusation and sometimes difficult to prove.

Some say to prevent another 9/11 attack we must fight terrorism with a war mentality and not treat potential attackers as criminals. For combatants captured on the battlefield, I agree. But these are people captured or detained in America, American citizens. Mr. President, 9/11 did not succeed because we granted terrorists due process. In fact, 9/11 did not succeed because al-Qaida was so formidable but because of human error. The Defense Department withheld intelligence from the FBI. No warrants were denied. The warrants were not even requested. The FBI failed to act on repeated pleas from its field agents who were in possession of a laptop that may well have had information that may well have prevented 9/11. But no judge ever turned down a warrant.

Our criminal system did not fail. No one ever asked for a warrant to look at Moussaoui's computer in August, a month before 9/11. These are not failures of our law. These are not failures of our Constitution. These are not reasons we should scrap our Constitution and simply send people accused of terrorism to Guantanamo Bay--American citizens. These are failures of imperfect men and women in bloated bureaucracies. No amount of liberty sacrificed at the altar of the state will ever change that.

A full accounting of our human failures by the 9/11 Commission has proven that enhanced cooperation between law enforcement and the intelligence community, not military action or not giving up our liberty at home, is the key to thwarting international terrorism. We should not have to sacrifice our liberty to be safe.

We cannot allow the rules to change to fit the whims of those in power. The rules, the binding chains of the Constitution, were written so it did not matter who was in power. In fact, they were written to protect us and our rights from those who hold power with good intentions. We are not governed by saints or angels. Occasionally, we will elect people, and there have been times in history when those who come into power are not angels. That is why we have laws and rules that restrain what the government can do. That is why we have laws that protect us and say we are innocent until proven guilty. That is why we have laws that say we should have a trial before a judge and a jury of our peers before we are sent off to some prison indefinitely.

Finally, the detainee provisions of the Defense authorization bill do another grave harm to freedom. They imply perpetual war for the first time in the history of the United States. No benchmarks are established that would ever terminate the conflict with al-Qaida, the Taliban, or other foreign terrorist organizations. In fact, this bill explicitly says that no part of this bill is to imply any restriction on the authorization of force.

When will the wars ever end? When will these provisions end? No congressional view is allowed or imagined. No victory is defined. No peace is possible if victory is made impossible by definition. To disavow the idea that the exclusive congressional power to declare war somehow allows the President to continue war forever, at whim, I will offer an amendment to this bill that will deauthorize the war in Iraq. We are bringing the troops home in January. Is there any reason why we should have an open-ended commitment to war in Iraq when the war is ending?

If we need to go to war in Iraq again, we should debate on it and vote on it. It is an important enough matter that we should not have an open-ended commitment to the war in Iraq. The use of military force must begin in Congress. Our Founding Fathers separated those powers and said Congress has the power to declare war, and it is a precious and important power. We should not give that up to the President. We should not allow the President to unilaterally engage in war.

Congress should not be ignored or be an afterthought in these matters and must reclaim its constitutional duties. These are important points of fact. Know good and well that someday there could be a government in power that is shipping its citizens off for disagreements. There are laws on the books now that characterize who might be a terrorist: someone missing fingers on their hands is a suspect according to the Department of Justice, someone who has guns, someone who has ammunition that is weatherproofed, someone who has more than 7 days of food in their house can be considered a potential terrorist.

If someone is suspected by these activities, do we want the government to have the ability to send them to Guantanamo Bay for indefinite detention? A suspect? We are not talking about someone who has been tried and found guilty; we are talking about someone suspected of activities. But some of the things that make us suspicious of terrorism are having more than 7 days' worth of food, missing fingers on their hand, having weatherproofed ammunition, having several guns at their house. Is that enough? Are we willing to sacrifice our freedom for liberty?

I would argue that we should strike these detainee provisions from this bill because we are giving up our liberty. We are giving up the constitutional right to have due process before we are sent to a prison. This is very important. I think this is a constitutional liberty we should not look at and blithely sign away to the Executive power or to the military.

So I would call for support of the amendment that will strike the provisions on keeping detainees indefinitely, particularly the fact that we can now, for the first time, send American citizens to prisons abroad. I think that is a grave danger to our constitutional liberty. I advise a vote to strike those provisions from the bill.

I yield the floor.

The ACTING PRESIDENT pro tempore. The Senator from Arizona.

Mr. McCAIN. Mr. President, I listened to the discussion by Senator Rand Paul, and I understand his theory. Facts are stubborn things, and 27 percent of those who have been released have been back in the fight. That is fact. That is fact. Some of them have assumed leadership positions with al-Qaida. That is fact.

The Senator from Kentucky wants to have a situation prevail where people are released and go back in the fight and kill Americans. That is his right. He is entitled to that opinion. But facts are stubborn things. The fact is 27 percent of detainees who were released went back into the fight to try to kill Americans.

The ACTING PRESIDENT pro tempore. The Senator from Kentucky.

Mr. PAUL. With regard to releasing prisoners, I am not asking that we release them. I think there probably have been some mistakes with people who have been let go. What I am asking only is for due process, and we released some of those people without any kind of process and a flawed process. So we did make a mistake.

Due process does not mean, and believing in the process does not mean necessarily that we would release these people. Due process often convicts. Jose Padilla was given 17 years in prison with due process. So I do not think it necessarily follows that I am arguing for releasing prisoners. I am simply arguing that people, particularly American citizens in the United States, not be sent to a foreign prison without due process.

Mr. McCAIN. Mr. President, in response to that, we are not arguing that they be sent to a foreign prison. What we are arguing is that they are designated as enemy combattants. When they are enemy combatants, then they are subject to the rules and the laws of war. Again, I point out the fact that there have been a number who have been released who have reentered the fight, and that kind of situation is not something we want to prevail.

So as I said, facts are stubborn things, and they are designated as enemy combatants and will be treated as such during the period of conflict.

Mr. PAUL. My question would be, under the provisions, would it be possible that an American citizen then could be declared an enemy combatant and sent to Guantanamo Bay and detained indefinitely?

Mr. McCAIN. I take it that as long as the individual, no matter who they are--if they pose a threat to the security of the United States of America, they should not be allowed to continue that threat. I think that is the opinion of the American public, especially in light of the facts I continue to repeat to the Senator from Kentucky--that 27 percent of the detainees who were released got back in the fight and were responsible for the deaths of Americans. We need to take every step necessary to prevent that from happening. That is for the safety and security of the men and women who are putting their lives on the line in the armed services.

I yield the floor.

Mr. DURBIN. Mr. President, is morning business time still pending?

The ACTING PRESIDENT pro tempore. Yes.

Mr. DURBIN. I ask unanimous consent that all morning business time be yielded back unless there is a request on the floor.

The ACTING PRESIDENT pro tempore. Is there objection?

Without objection, it is so ordered.

Mr. DURBIN. I yield the floor.

Mr. UDALL of Colorado. Mr. President, I rise this morning to speak in favor of amendment 1107. First, let me say that I know how hard Chairman Levin and Ranking Member McCain have worked to craft a Defense Authorization Act to provide our Armed Forces with the equipment, services, and support they need to keep us safe. I also thank my colleagues from the Armed Services Committee, a number of whom I see on the floor this morning, for their diligence and dedication to this important work.

With that, let me turn to the amendment itself. I want to start by thanking the cosponsors of the amendment. They include the chairwoman of the Intelligence Committee, Senator Feinstein; the chairman of the Judiciary Committee, Senator Leahy; and Senator Webb, a former Secretary of the Navy, someone whom I think we all respect when it comes to national security issues.

I also point out that this amendment is bipartisan. Senator Rand Paul joined as a cosponsor this morning and gave a very compelling floor speech a few minutes ago. Senators Wyden and Durbin have also recently cosponsored it. I recognize their leadership as well.

Let me turn to the amendment itself. A growing number of our colleagues have strong concerns about the detainee provisions in this bill. At the heart of our concern is the concern that we have not taken enough time to listen to our counterterrorism community and have not heeded the warnings of the Secretary of Defense, Director of National Intelligence, and the Director of the FBI, who all oppose these provisions. Equally concerning, we have not had a single hearing on the detainee matters to fully understand the implications of our actions.

My amendment would take out these provisions and give us in the Congress an opportunity to take a hard look at the needs of our counterterrorism professionals and respond in a measured way that reflects the input of those who are actually fighting our enemies.

Specifically, the amendment would require that our Defense intelligence and law enforcement agencies report to Congress with recommendations for any additional authorities or flexibility they need in order to detain and prosecute terrorists. My amendment would then ask for hearings to be held so we can fully understand the views of relevant national security experts.

In other words, I am saying let's ask our dedicated men and women who are actually fighting to protect Americans what they actually need to keep us safe. This is a marked departure, in my opinion, from the current language in the bill, which was developed without hearings, and seeks to make changes to the law that our national security professionals do not want and even oppose, as I pointed out.

Like other challenging issues we face here in the Senate, we should identify the problem, hold hearings, gather input from those affected by our actions, and then seek to find the most prudent solution. Instead, we have language in the bill, which, while well intended--of that there is no doubt--was developed behind closed doors and is being moved rather quickly through our Congress. The Secretary of Defense is warning us we may be making mistakes that will hurt our capacity to fight terrorism at home and abroad. The Director of National Intelligence is telling us this language will create more problems than it solves. The Director of the FBI is telling Congress these provisions will erect hurdles that will make it more difficult for our law enforcement officials to collaborate in their effort to protect American citizens. And the President's national security staff is recommending a veto of the entire Defense authorization bill if these provisions remain in the bill.

With this full spectrum of highly respected officials and top counterterrorism professionals warning Congress not to pass these provisions, we are being asked to reject their advice and pass them anyway--again, without any hearings or further deliberation. I don't know what others think, but I don't think this is what the people of Colorado expect us to do, and it is not how I envision the Senate operating.

The provisions would dramatically change broad counterterrorism efforts by requiring law enforcement officials to step aside and ask the Department of Defense to take on a new role they are not fully equipped for and do not want. And by taking away the flexible decisionmaking capacity of our national security team, by forcing the military to now act as police, judge, and jailer, these provisions could effectively rebuild walls between our military law enforcement and intelligence communities that we have spent a decade tearing down.

The provisions that are in the bill--to me and many others--appear to require the DOD to shift significant resources away from their mission to serve on all fronts all over the world. This has real consequences, because we have limited resources and limited manpower. Again, I want to say that I don't think we would lose anything by taking a little more time to discuss and debate these provisions, but we could do real harm to our national security efforts by allowing this language to pass, and that is exactly what our highest ranking national security officers are warning us against doing.

You will note I am speaking in the broadest terms here, but I did want to speak to one particular area of concern, to give viewers and my colleagues a sense of what we face.

The provisions authorize the indefinite military detention of American citizens who are suspected of involvement in terrorism--even those captured here in our own country, in the United States--which I think should concern each and every one of us. These provisions could well represent an unprecedented threat to our constitutional liberties. Let me explain why I think that is the case.

Look, I agree if an American citizen joins al-Qaida and takes up arms against the United States that person should be subject to the same process as any other enemy combatant. But what is not clear is what we do with someone arrested in his home because of suspected terrorist ties. These detainee provisions would authorize that person's indefinite detention, but it misses a critical point. How do we know a citizen has committed these crimes unless they are tried and convicted? Do we want to open the door to domestic military police powers and possibly deny U.S. citizens their due process rights? If we do, I think that is at least something that is worthy of a hearing, and the American people should be made aware of the changes that will be forthcoming in the way we approach civil liberties. But since our counterterrorism officials are telling us these provisions are a mistake, I am not willing to both potentially limit our fight against terrorism and simultaneously threaten the constitutional freedoms Americans hold dear.

As I begin my remarks, I hope I have projected my belief we have a solemn obligation to pass the National Defense Authorization Act, but we also have a solemn obligation to make sure those who are fighting the war on terror have the best, most flexible, most powerful tools possible. To be perfectly frank, I am worried these provisions will disrupt our ability to combat terrorism and inject untested legal ambiguity into our military's operations and detention practices.

We will hear some of our colleagues tell us not to worry because the detainee provisions are designed not to hurt our counterterrorism efforts. We all know the best laid plans can have unintended consequences. While I am sure the drafters of this language intended the provisions to be interpreted in a way that does not cause problems, the counterterrorism community disagrees and has outlined some very serious real world concerns. Stating in the language there will not be any adverse effects on national security doesn't make it so. These are not just words in a proposed law. And those who will be chartered to actually carry out these provisions are urging us to reject them. Shouldn't we listen to their serious concerns? Shouldn't we think twice about passing these provisions?

I have not received a single phone call from a counterterrorism expert, a professional in the field, or a senior military official urging us to pass these provisions. We have heard a wide range of concerns expressed about the unintended consequences of enacting these detainee provisions but not a single voice outside of Congress telling us this will help us protect Americans or make us safer.

In addition to our national security team, which is urging us to oppose these provisions, other important voices are also asking us to stop, to slow down, and to consider them more thoroughly. The American Bar Association, the ACLU, the International Red Cross, the American Legion, and a number of other groups have also expressed a wide range of serious concerns.

Again, I want to underline, although the language was crafted with the best of intentions, there are simply too many questions about the unintended consequences of these provisions to allow them to move forward without further input from national security experts through holding hearings and engaging in further debate.

I am privileged to be a member of the Armed Services Committee. I am truly honored. As I have implied, and I want to be explicit, I understand the importance of this bill. I understand what it does for our military, which is why, in sum, what I am going to propose with my amendment is that we pass the NDAA without these troubling provisions but with a mechanism by which we can consider in depth what is proposed and, at a later date, include any applicable changes in the law. It is not only the right thing to do policywise, it may very well protect this bill from a veto. The clearest path toward giving our men and women in uniform the tools they need is to pass this amendment and then send a clean National Defense Authorization Act to the President.

In the Statement of Administration Policy, the President says the following--and I should again mention in the Statement of Administration Policy there is a recommendation the President veto the bill.

We have spent 10 years since September 11, 2001, breaking down the walls between intelligence, military and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult.

These are striking words. They should give us all pause as we face what seems to be a bit of a rush to pass these untested and legally controversial restrictions on our ability to prosecute terrorists.

I want to begin to close, and in so doing I urge my colleagues to think about the precedent we would set by passing these provisions. We are being told these detainee provisions are so important we must pass them right away, without a hearing or further deliberation. However, the Secretary of Defense, at the same time, along with the Director of National Intelligence and the Director of the FBI, are all urging us to reject the provisions and take a closer look. Do we want to neglect the advice of our trusted national security professionals? I can't think of another instance where we would rebuff those who are chartered with keeping us safe.

If we in the Congress want to constrain the military and give our servicemembers new responsibilities, as these provisions would do, I believe we should listen to what the Secretary of Defense has had to say about it. Secretary Panetta is strongly opposed to these changes, and I think we all know before he held the job he has now, Secretary of Defense Panetta was the Director of the CIA. He knows very well the threats facing our country, and he knows we cannot afford to make any mistakes when it comes to keeping our citizens safe. We have to be right every time. The bad guys only have to be right once.

This is a debate we need to have. It is a healthy debate. But we ought to be armed with all the facts and expertise before we move forward. The least we can do is take our time, be diligent, and hear from those who will be affected by these new and significant changes in how we interrogate and prosecute terrorists. As I have said before, it concerns me we would tell our national security leadership--a bipartisan national security leadership, by the way--that we will not listen to them and that Congress knows better than they do. It doesn't strike me that is the best way to secure and protect the American people.

That is why I filed amendment No. 1107. I think my amendment is a commonsense alternative that will protect our constitutional principles and beliefs while continuing to keep our Nation safe. The amendment has a clear aim, which is to ensure we follow a thorough process and hear all views before rushing forward with new laws that could be harmful to our national security. It is straightforward, it is common sense, and I urge my colleagues to support the amendment.

Mr. President, I thank you for your attention, and I yield the floor.

The ACTING PRESIDENT pro tempore. Who yields time?

The Senator from Michigan.

Mr. LEVIN. Mr. President, we have approximately a half hour on each side. I am wondering how much time Senator Graham needs?

Mr. GRAHAM. Ten minutes. Is that too much? Five minutes.

Mr. LEVIN. Could you do 5 minutes?

Mr. GRAHAM. Seven?

Mr. LEVIN. We have, I think, seven speakers on this side.

Mr. GRAHAM. I will try to be quick.

Mr. LEVIN. Can you try to do 8 minutes?

Mr. GRAHAM. I will try to do it as quickly as I can.

Mr. LEVIN. I yield 8 minutes.

Mr. McCAIN. I object. We have had a long time from the sponsor of the amendment, the chief proponent; we are going to have 10 minutes from the Senator of Illinois. So I yield to the Senator from South Carolina 10 minutes.

Mr. LEVIN. The Senator from Arizona will control, if this is all right with the Senator, half of our time. Will that be all right?

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

Mr. GRAHAM. If the Chair will let me know when 5 minutes has passed, because there are a lot of voices to be heard on this issue, and I want them to be heard. I am just one.

The ACTING PRESIDENT pro tempore. The Chair will so advise.

Mr. GRAHAM. Let me start with my good friend from Colorado. I respect the Senator; I know his concerns. I don't agree.

I can remember being told by the Bush administration: We don't need the Detainee Treatment Act. Everybody said we didn't need it, but they were wrong. I remember being told by the Vice President's office during the Bush administration: It is OK to take classified evidence, show it to the jury, the finder of fact, and not share it with the accused, but you can share it with his lawyer.

How would you like an American soldier tried in a foreign land, where they are sitting there in the chair wondering what the jury is talking about and can't even comment to their own lawyer about the allegations against them?

I have been down this road with administrations and we worked in a bipartisan fashion to change some things the Bush administration wanted to do and I am glad we did it. We are working in a bipartisan fashion to change some things this administration is doing, and I hope we are successful, because if we fail, we are all going to be worse for it.

Here are the facts: Under this provision of mandatory military custody, for someone captured in the United States, if they are an American citizen, that provision does not apply to them. But here is the law of the land right now: If they are an American citizen suspected of joining al-Qaida, being a member of al-Qaida, they can be held as an enemy combatant.

The Padilla case in South Carolina, where the man was held 5 years as an enemy combatant, went to the Fourth Circuit Court of Appeals, and here is what that court said: You can interrogate that person in an intelligence-gathering situation. The only thing you have to do is provide them a lawyer for their habeas appeal review.

So here are the due process rights: If our intelligence community or military believe an American citizen is suspected of being a member of al-Qaida, the law of the land the way it is today, an American citizen can be held as an enemy combatant and questioned about what role they play in helping al-Qaida, and they do get due process. Everybody held as an enemy here, at Guantanamo Bay, captured in the United States, goes before the Federal judge, and the government has to prove, by a preponderance of the evidence, that the person is, in fact, an enemy combatant. There is due process. We don't hold someone and say: Good luck. They have to go before a judge--a Federal court--and prove their case as the government.

Here is the question for the country. Is it OK to hold, under military control, an American citizen who is suspected of helping al-Qaida? You had better believe it is OK.

My good friend from Colorado said this repeals the Posse Comitatus Act. The Posse Comitatus Act is a prohibition on our military being used for law enforcement functions, and it goes back to reconstruction.

This is the central difference between us. I don't believe fighting al-Qaida is a law enforcement function. I believe our military should be deeply involved in fighting these guys at home and abroad. The idea of somehow allowing our military to hold someone captured in the United States is a repeal of the Posse Comitatus Act, you would have to conclude that you view that as a law enforcement function, where the military has no reason or right to be there. That is the big difference between us. I don't want to criminalize the war.

To Senator Levin, thank you for helping us this time around craft a bipartisan solution to a very real problem. The enemy is all over the world and here at home. When people take up arms against the United States and are captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity? The only way we can do that is hold them in military custody, and this provision can be waived. It doesn't apply to American citizens. But the idea that an American citizen helping al-Qaida doesn't get due process is a lie. They go before a Federal court and the government has to prove they are part of al-Qaida.

Let me ask this to my colleagues on the other side. What if the judge agrees with the military or the intelligence community making the case? Are you going to require us to shut down the intelligence-gathering process, read them their rights, and put them in Federal court? That is exactly what you want, and that will destroy our ability to make us safe. If an American citizen is held by the intelligence community or the military and a Federal judge agrees they were, in fact, a part of the enemy force, that American citizen should be interrogated to find out what they know about the enemy, in a lawful way, and you should not require this country to criminalize what is an act of war against the people of the United States. They should not be read their Miranda rights. They should not be given a lawyer. They should be held humanely in military custody and interrogated about why they joined al-Qaida and what they were going to do to all of us. So this provision not only is necessary to deal with real-world events; it is written in the most flexible way possible.

To this administration, the reason we are on the floor today is it was your idea to take Khalid Shaikh Mohammed and put him in New York City and give him the rights of an American citizen and criminalize the war by taking the mastermind of 9/11 and making it a crime and not an act of war.

The ACTING PRESIDENT pro tempore. The Senator has spoken for 5 minutes.

Mr. GRAHAM. Thank you. I will wrap up.

To Senator Levin and Senator McCain, what they are accusing the Senators of doing is not true. They are codifying a process that will allow us to intelligently and rationally deal with people who are part of al-Qaida, not political dissidents.

If someone doesn't like President Obama, we are not going to arrest them. I am getting phone calls about that. That is a bunch of garbage. A person can say anything they want about the President or me, they just can't join al-Qaida and expect to be treated as if it were a common crime. When someone joins al-Qaida, they haven't joined the Mafia. They are not joining a gang. They are joining people who are bent on our destruction, and they are a military threat. If you don't believe they are a military threat, vote for Senator Udall. If you believe al-Qaida represents a threat to us at home and abroad, give our intelligence and military agencies statutory guidance and authority to do things that need to be clear rather than uncertain.

We are 10 years into this war. Congress needs to speak. This is your chance to speak. I am speaking today. Here is what I am saying to my colleagues on the other side and to the world at large: If you join al-Qaida, you suffer the consequences of being killed or captured. If you are an American citizen and you betray your country, you are going to be held in military custody and you are going to be questioned about what you know. You are not going to be given a lawyer if our national security interests dictate that you not be given a lawyer and go into the criminal justice system because we are not fighting a crime, we are fighting a war.

There is more due process in this bill than at any other time in any other war. I am proud of the work product. There are checks and balances in this bill that we have been working on for 10 years. The mandatory provisions do not apply to American citizens. They can be waived if they impede in an investigation. We are trying to provide tools and clarity that have been missing for 10 years. This is your chance to speak on the central issue 10 years after the attacks of 9/11. Are we at war or are we fighting a crime? I believe we are at war, and the due process rights associated with war are in abundance and beyond anything ever known in any other war.

What this amendment does is it destroys the central concept that we are trying to present to the body and to the country; that we are facing an enemy--and not a common criminal organization--that will do anything and everything possible to destroy our way of life. Let's give our law enforcement and military community the clarity they have been seeking and I think now they will have.

To the administration, with all due respect, you have engaged in one episode after another to run away from the fact that we are fighting a war and not a crime. When the Bush administration tried to pass policies that undercut our ability to fight this war and maintain our values, I pushed back. I am not asking any more of the people on the other side than I ask of myself. When the Bush administration asked me, and others, to do things that I thought undercut our values, I said no. Now we have an opportunity to tell this administration we respect their input, but what we are trying to do needs to be done, not for just this time but for the future.

Ladies and gentlemen, either we are going to fight this war to win it and to keep us safe or we are going to lose the concept that there is a difference between taking up arms against the United States and being a common criminal.

In conclusion, Khalid Shaikh Mohammed and all those who buy into what he is selling present a threat to us far different than any common criminal, and our laws should reflect that.

Senators Levin and McCain have created a legal system for the first time in 10 years that recognizes we are fighting a war within our values. I hope we get a strong bipartisan vote for the tools in this bill.

I yield the floor.

The ACTING PRESIDENT pro tempore. The Senator from Colorado.

Mr. UDALL of Colorado. Mr. President, how much time do we have remaining?

The ACTING PRESIDENT pro tempore. The Senator has 15 1/2 minutes.

Mr. UDALL of Colorado. Before I recognize Senator Durbin for 8 minutes, I just wish to respond to my friend, the Senator from South Carolina.

Mr. McCAIN. Mr. President, how much time is on this side?

The ACTING PRESIDENT pro tempore. There is 5 minutes remaining.

Mr. UDALL of Colorado. The Senator from South Carolina is broadly admired in the Senate. If I am ever in court, I want him to be my lawyer.

I would point out, however, that what I am proposing wouldn't destroy the system we have in place--a system, by the way, that has resulted in the convictions of numerous terrorists with life sentences. What I am asking is to listen to those who are on the frontlines who are fighting against terrorists and terrorism who have said they have concerns about this new proposal and would like a greater amount of time to vet it and consider it.

I yield 8 minutes to the Senator from Illinois.

The ACTING PRESIDENT pro tempore. The Senator from Illinois.

Mr. DURBIN. Mr. President, I have the greatest respect for Senator Carl Levin and Senator John McCain. They have done an extraordinary job on the Defense authorization bill. I would say, by and large, this bill would not have engendered the controversy that brings us to the floor today but for this provision, because it is a critically important provision which has drawn the attention not just of those in the military community--which they, of course, would expect in a Defense authorization bill--but also the attention of those in the intelligence community and the law enforcement community across the United States, as well as the President of the United States.

The provision which they include in this bill is a substantial and dramatic departure in American law when it comes to fighting terrorism. I salute Senator Udall for bringing it to the attention of the committee and now to the floor; that before we take this step forward, we should reflect and pass the Udall amendment which calls for the necessary agencies of government--law enforcement, intelligence, and military--to reflect on the impact of this decision, not just on the impact of America's security but on America's commitment to constitutional principles. This is a fundamental issue which is being raised, and it should be considered ever so seriously. We need to ask ourselves, 10 years after 9/11, why are we prepared to engage in a rewrite of the laws on fighting terrorism?

Thank God we meet in this Chamber today with no repeat of 9/11. Through President George Bush and President Barack Obama, America has been safe. Yes, there are people who threaten us, and they always will, but we have risen to that challenge with the best military in the world, with effective law enforcement, and without giving away our basic values and principles as Americans.

Take a look at the provision in this bill which Senator Udall is addressing. Who opposes this provision? I will tell you who opposes it. Secretary of Defense Leon Panetta, who passed out of this Chamber with a 100-to-0 vote of confidence in his leadership, has told us don't do this; this is a mistake in this provision.

Secondly, the law enforcement community, from Attorney General Eric Holder to the Director of the Federal Bureau of Investigation, has told us it is a mistake to pass this measure, to limit our ability to fight terrorism. And the intelligence community as well; the Director of National Intelligence tells us this is a mistake.

Is it any wonder Senator Udall comes to the floor and others join him from both sides of the aisle saying, before we make this serious change in policy in America, ask ourselves: Have we considered the impact this will have on our Nation's security, our ability to interrogate witnesses, and our commitment to constitutional principles?

When I take a look at the letter that was sent to us by the Director of the Federal Bureau of Investigation, Robert Mueller, I have to reflect on the fact that Director Mueller was appointed by President George W. Bush and reappointed by President Barack Obama. I respect him very much. He has warned this Senate: Do not pass this provision in the Defense authorization bill. It may adversely impact ``our ability to continue ongoing international terrorism investigation.''

If this provision had been offered by a Democrat under Republican George W. Bush, the critics would have come to the floor and said: How could you possibly tie the hands of the President when he is trying to keep America safe?

The Director of the Federal Bureau of Investigation has made it clear the passage of this provision in this bill will limit the flexibility of the administration to combat terrorism. It will create uncertainty for law enforcement, intelligence, and defense officials regarding how they handle suspected terrorists and raise serious constitutional concerns. Listen, all those things are worthy of debate were it not for the record that for 10 years America has been safe. It has been safe because of a Republican President and a Democratic President using the forces at hand to keep us safe. If we were coming here with some record of failure when it comes to keeping America safe, it is one thing, but we have a record of positive success. This notion that there is no way to keep America safe without military tribunals and commissions defies logic and defies experience.

Since 9/11, over 300 suspected terrorists have been successfully prosecuted in article III criminal courts in America.

Yes, they have been read the Miranda rights, and, yes, they have been prosecuted and sent to prison, the most recent being the Underwear Bomber, who pled guilty just weeks ago in the article III criminal courts. During this same period of time, when it comes to military commissions and tribunals, how many alleged terrorists have been convicted? Six. The score, my friends, if you are paying attention, is 300 to 6. President Bush and President Obama used our article III criminal courts effectively to keep America safe, and in those instances where they felt military tribunals could do it best, they turned to them with some success.

I might add, to those who want to just change the law again when it comes to military tribunals, this is the third try. Twice we have tried to write the language on military tribunals and commissions. It has been sent ultimately across the street to the Supreme Court and rejected. They told us to start over. Do we want to risk that again? Do we want to jeopardize the prosecution of an alleged terrorist because we want to test out a new legal and constitutional theory? I hope not.

I ask unanimous consent to have printed in the Record the letter from the Director of the FBI.

There being no objection, the material was ordered to be printed in the Record, as follows:

 (See Mueller Letter)

Mr. DURBIN. Let me also say that section 1031 of this bill is one that definitely needs to be changed, if not eliminated. It will, for the first time in the history of the United States of America, authorize the indefinite detention of American citizens in the United States. I have spoken to the chairman of the committee, who said he is open to language that would try to protect us from that outcome. But the language as written in the bill, unfortunately, will allow for the indefinite detention of American citizens for the first time. The administration takes this seriously. We should too. They have said they will veto the bill without changes in this particular provision.

I hope we will step back and look at a record of success in keeping America safe and not try to reinvent our Constitution on the floor of the Senate. I believe we ought to give to every President, Democratic and Republican, all of the tools and all of the weapons they need to keep America safe. Tying their hands may give us some satisfaction on the floor of the Senate for a moment, but it won't keep America safe.

I reserve the remainder of my time.

I yield the floor.

The PRESIDING OFFICER (Mr. Merkley). The Senator from Michigan.

Mr. LEVIN. Mr. President, I yield myself 10 minutes.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LEVIN. There have been so many misstatements and facts that have been made, it is hard to keep up with them. Let me just take the last statement the Senator from Illinois made about changing military tribunal law. There is no change in military tribunal law whatsoever made in this bill. I am going to address the other misstatements that have been made by my friends and colleagues, but that was the most recent, so I just want to take on that one first.

In terms of constitutional provisions, the ultimate authority on the Constitution of the United States is the Supreme Court of the United States. Here is what they have said in the Hamdi case about the issue both of our friends have raised about American citizens being subject to the law of war.

A citizen--the Supreme Court said this in 2004--no less than an alien can be part of supporting forces hostile to the United States and engaged in armed conflict against the United States. Such a citizen--referring to an American citizen--if released, would pose the same threat of returning to the front during the ongoing conflict. And here is the bottom line for the Supreme Court. If we just take this one line out of this whole debate, it would be a breath of fresh air to cut through some of the words that have been used here this morning--one line. ``There is no bar to this Nation's holding one of its own citizens as an enemy combatant.'' That is not me, that is not Senator Graham, and that is not Senator McCain. That is the Supreme Court of the United States recently. ``There is no bar to this Nation's holding one of its own citizens as an enemy combatant.''

Mr. GRAHAM. Would the Senator yield for a question?

Mr. LEVIN. I would rather not at this point.

There are a number of sections in this bill. My dear friend Senator Udall says ``these sections'' as though there are a whole bunch of sections that are at issue. There is really only one section that is at issue here, and that is section 1032, and that is the so-called mandatory detention section which has a waiver in it.

Section 1031 was written and approved by the administration. Section 1031, which my friend from Illinois has just said is an abomination, was written and approved by the administration. Now, section 1031 is the authority section. This authorizes. It doesn't mandate anything with the waiver; section 1032 does. Section 1031--and now I am going to use the words in the administration's own so-called SAP, or Statement of Administration Policy. This is what the administration says about section 1031: The authorities codified in this section already exist. So they don't think it is necessary--1031--but they don't object to it. Those are their words--the authorities in 1031 already exist. They do. What this does is incorporate already existing authorities from section 1031--unnecessary in the view of the administration, yes, but they helped write it and they approved it. We made changes in it.

We have made so many changes in this language to satisfy the administration, I think it all comes down to one section: 1032. Section 1032 is the issue, not all of the sections, by the way, that would be stricken by the Udall amendment. The Udall amendment would strike all the sections, but it really comes down to section 1032.

In 1032 is the so-called mandatory provision, which, by the way, does not apply to American citizens. I better say that again. Senator Graham said it, but let me say it again. The most controversial provision--probably the only one in this bill--is section 1032. Section 1032 says: The requirement to detain a person in military custody under this section does not extend to the citizens of the United States. I guess that is the second thing I would like for colleagues to take away from what I say, is that section--and Senator Graham said the same thing. Section 1032--the mandatory section that has the waiver in it--does not, by its own words, apply to citizens of the United States. It has a waiver provision in it to make this flexible.

The way in which 1032 operates is it says that if it is determined that a person is a member of al-Qaida, then that person will be held in military detention. They are at war with us, folks. Al-Qaida is at war with us. They brought that war to our shores. This is not just a foreign war. They brought that war to our shores on 9/11. They are at war with us. The Supreme Court said--and I will read these words again--that there is no bar to this Nation holding one of its own citizens as an enemy combatant. They brought this war to us, and if it is determined that even an American citizen is a member of al-Qaida, then you can apply the law of war, according to the Supreme Court. That is not according to the Armed Services Committee, our bill, or any one of us; that is the Supreme Court speaking.

Who determines it? We say, to give the administration the flexibility that they want, the administration makes that determination. The procedures to make that determination--who writes those procedures? We don't write them. Explicitly, the executive branch writes those procedures. Can those procedures interfere with an ongoing interrogation or investigation? No. By our own language, it says they shall not interfere with interrogation or intelligence gathering. That is all in here. The only way this could interfere with an operation of the executive branch is if they themselves decided to interfere in their own operation. They are explicitly given the authority to write the procedures.

I think we ought to debate about what is in the bill, and what is in the bill is very different from what our colleagues who support the Udall amendment have described. Yes, we are at war, and, yes, we should codify how we handle detention, and this is an effort to do that. And as the administration itself says, we are not changing anything here in terms of section 1031. We are simply codifying existing law.

The issue really relates to 1032, and that is what we ought to debate.

Should somebody--when it has been determined by procedures adopted by the executive branch--who has been determined to be a member of an enemy force who has come to this Nation or is in this Nation to attack us as a member of a foreign enemy, should that person be treated according to the laws of war? The answer is yes. But should flexibility be in here so the administration can provide a waiver even in that case? Yes.

Finally, as far as civilian trials, I happen to agree with my friend from Illinois, and he is a dear friend of mine. Civilian trials work. There is nothing in this provision that says civilian trials won't be used even if it is determined that somebody is a member of al-Qaida. Not only doesn't it prevent civilian trials from being used, we explicitly provide that civilian trials are available in all cases. It is written right in here. I happen to like civilian trials a lot. I participated in a lot of them, and they are very appropriate, and we have a good record. In the case the Senator from Illinois mentioned, that case was a Michigan case. I know a lot about that case. It was the right way to go. I prefer civilian trials in many, many cases. This bill does not say we are going to be using military commissions in lieu of civilian trials. That is a decision we leave where it belongs--in the executive branch.

But we do one thing in this bill in section 1031 that needs to be said. We are at war with al-Qaida, and people determined to be part of al-Qaida should be treated as people who are at war with us. But even with that statement, we give the administration a waiver. That is how much flexibility we give to the executive branch.

Mr. President, how much time have I used?

The PRESIDING OFFICER. The Senator has 3 1/2 minutes remaining.

Mr. LEVIN. I yield the floor.

Mr. McCAIN. Mr. President, how much time remains on both sides?

The PRESIDING OFFICER. The Senator from Arizona has just over 5 minutes. The Senator from Colorado has 8 minutes.

The PRESIDING OFFICER. The Senator from Colorado.

Mr. UDALL of Colorado. Mr. President, I want to clarify for the record before I recognize Senator Webb for 5 minutes that some here have claimed that the Supreme Court's Hamdi decision upheld the indefinite detention of U.S. citizens captured in the United States.

It did no such thing. Hamdi was captured in Afghanistan, not the United States. Justice O'Connor, the author of the opinion, was very careful to say that the Hamdi decision was limited to ``individuals who fought against the United States in Afghanistan as part of the Taliban.'' I think that is important to be included in the Record.

I yield to Senator Webb for 5 minutes.

The PRESIDING OFFICER. The Senator from Virginia.

Mr. WEBB. Mr. President, I would like to say that I believe the Senator from Colorado has a good point. I say that as someone who is a strong supporter of military commissions, who in many cases has aligned himself with my good friend the Senator from South Carolina and Senator McCain as well on these issues. To me, this is not a jurisdictional issue, and it is not an issue about whether we should be holding people under military commissions under the right cases or under military detention under the right cases.

My difficulty and the reason I support what Senator Udall is doing is in the statutory language itself. I say this as someone who spent a number of years drafting this kind of legislation as a committee counsel. I have gone back over the last 2 days again and again, reading these sections against each other--1031 and 1032 particularly--and I am very concerned about how this language would be interpreted, not in the here and now, as we see the stability we have brought to our country since 9/11, but what if something were to happen

and we would be under more of a sense of national emergency and this language would be interpreted for broader action.

The reason I have this concern is we are talking here about the conditions under which our military would be sent into action inside our own borders. In that type of situation, we need to be very clear and we must very narrowly define how they would be used and, quite frankly, if they should be used at all inside our borders. I think that is the concern we are hearing from people such as the Director of the FBI and the Secretary of Defense.

I am also very concerned about the notion of the protection of our own citizens and our legal residents from military action inside our own country. I think these protections should be very clearly stated. There is a lot of vagueness in this language.

What the Senator from Colorado is proposing is that we clarify these concepts--that we take this provision out and clarify the concepts. Protections are in place in our country. We are not leaving our country vulnerable. In fact, I think we are going to make it a much more healthy legal system if we do clarify these provisions.

That is the reason I am here on the floor to support what Senator Udall is saying. I know the emotion and the energy Senator Levin has put into this, and I respect him greatly. I happen to believe we need to do a better job of clarifying our language.

I spent 16 years, on and off, writing in Hollywood. One of the things that came to me when I was comparing these sections is that this is kind of the danger we get in when we get to the fourth or the fifth screenwriter involved in a story. We want to fix one thing and we are not fixing the whole thing.

I greatly respect the legitimacy of the effort that is put into this. But when we read section 1031 against section 1032, there are questions about what would happen to American citizens under an emergency. Let's take, for instance, what happened in this country after Hurricane Katrina. It is not a direct parallel, but we can see the extremes people went to under a feeling of emergency and vulnerability. We had people who were deputized as U.S. marshals in New Orleans, and we could see them on CNN putting rifles inside people's cars, stopping them on the street, going into people's houses, making a decision--which later was rescinded--that they were going to take people's guns away from them. The vagueness in a lot of this language will not guarantee against these types of conduct on a larger scale if a situation were more difficult and dangerous than it is today.

Section 1031, which Senator Levin mentioned, may be clear to the administration but it is not that clear to me, when they talk about a covered person. This isn't simply al-Qaida, depending on how one wants to interpret it, in a time of national emergency. It is a person who is a part of or who substantially supported al-Qaida, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act. We might be able to agree to what that means here on the Senate floor today, but we don't know how that might be interpreted in a time of national emergency. I am not predicting that it will; I am saying we should have the certainty that it will not.

The PRESIDING OFFICER. The Senator has consumed 5 minutes.

Mr. WEBB. OK. Similar concerns also revolve around the definitions in terms of the applicability of U.S. citizens and lawful resident aliens when we go to the words ``requirement does not extend.'' What about an option? These are the types of concerns I have. We should have language that very clearly makes everyone understand the conditions under which we would be using the U.S. military inside the borders of the United States.

I yield the floor.

Mr. LEAHY. Mr. President, the Udall-Webb-Leahy-Feinstein-Durbin-Paul-Wyden amendment would remove the very troubling detention subtitle from the National Defense Authorization Act for Fiscal Year 2012. I am a cosponsor of this amendment because I believe the detention subtitle is deeply flawed. We should hear from the Pentagon and other agencies about what they believe to be the appropriate role of the Armed Forces in detaining and prosecuting terrorism suspects. Unfortunately, the language in the bill before us blatantly disregards the concerns of these agencies.

Contrary to statements by the bill's authors, the current version of the detention subtitle, considered by the Senate Armed Services Committee, SASC on November 15, contains virtually all of the same concerns as the earlier version of the bill. The changes made by SASC do not correct the problems that have been raised by the administration.

Since the SASC marked up the new version, we have received several letters from the administration in opposition to the new language. Secretary Panetta, Director of National Intelligence Clapper, and FBI Director Mueller, have all written to Senate leaders in opposition of the language. That means this language is opposed by each of the agencies whose officers in the field will be directly affected by it.

Just yesterday, Director Mueller wrote that the ``legislation introduces a substantial element of uncertainty'' into terrorism investigations. Secretary Panetta wrote that the legislation ``may needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence.'' Director Clapper wrote that ``the various detention provisions ..... would introduce unnecessary rigidity'' into investigations. And we have a Statement of Administration Policy raising very strong objections to some of these provisions. I ask unanimous consent to place these letters and the Statement of Administration Policy in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

(See Panetta Letter)

(See Clapper Letter)

Mr. LEAHY. So, contrary to what the bill sponsors claim, they have not incorporated the administration's requests, and the current language does not remove the risk of impeding intelligence investigations or prosecutions of terrorist suspects.

As currently written, the language in this bill would authorize the military to indefinitely detain individuals--including U.S. citizens--without charge or trial. I am fundamentally opposed to indefinite detention, and certainly when the detainee is a U.S. citizen held without charge. It contradicts the most basic principles of law that I subscribed to when I was a prosecutor, and it severely weakens our credibility when we criticize other governments for engaging in similar conduct.

I fought against the Bush administration policies that left us in the situation we face now, with indefinite detention being the de facto administration policy, and I strongly opposed President Obama's Executive order on detention when it was announced last March because it contemplated, if not outright endorsed, indefinite detention.

I am also deeply troubled by the mandatory military detention requirements included in this bill, which I believe dangerously undermine our national security. In the fight against al-Qaida and other terrorist threats, we should be giving our intelligence, military, and law enforcement professionals all the tools they need--not limiting those tools. But limiting them is exactly what this bill does. Secretary Panetta has 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.'' Requiring terrorism suspects to be held only in military custody, and limiting the available options in the field, is unwise and unnecessary.

The language in the detention subtitle of this bill is the product of a process that has lacked transparency from the start. These measures directly affect law enforcement, detention, and terrorism matters that have traditionally been subject to the jurisdiction of the Senate Judiciary Committee and the Senate Select Committee on Intelligence, but neither committee was consulted about these provisions in July when the bill was first marked up, or earlier this month when it was modified.

The administration proposed revisions to significantly improve the detention provisions. However, rather than negotiate with the administration in good faith, the Armed Services Committee drafted a new version of the language behind closed doors and claimed that it had solved all of the issues raised by the administration. It is obvious from the letters we have received that this is not the case.

I can see no reason why these provisions were rushed through the Committee without the input of the Defense Department and Federal intelligence and law enforcement agencies that will be directly affected if this language is enacted.

We must allow a thorough review to determine the legal and practical consequences that these changes will have on future counterterrorism and national security operations to ensure they are not hindered. That is what the Udall amendment does. I urge all Senators to support this amendment.

Ms. COLLINS. Mr. President, it is imperative that American citizens detained on U.S. soil be entitled to every protection guaranteed by the Constitution. I am concerned, therefore, that not all of the detainee provisions in the bill provide explicit exemptions for U.S. citizens who might be detained in the United States.

Had the amendment been more narrowly tailored to address that concern, I would support it. However, I unfortunately cannot support the amendment as a whole because it is too sweeping and would eliminate provisions that are important to preserve because they undoubtedly make our country safer. For instance, if this amendment were to pass, the Administration would be free to transfer detainees to countries where there are confirmed cases of detainees who have been released returning to fight against the United States. In addition, the amendment would eliminate a provision that would prevent foreign fighters captured overseas from taking advantage of the very constitutional rights I want to ensure for American citizens.

Mr. LEVIN. Mr. President, how much time is remaining?

The PRESIDING OFFICER. The Senator from Michigan has 4 minutes remaining.

The Senator from Arizona.

Mr. McCAIN. Mr. President, I ask unanimous consent to yield 2 minutes to the Senator from New Hampshire, followed by time from Senator Levin for the Senator from Connecticut, and then what time I have remaining for the Senator from Georgia.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senator from New Hampshire.

Ms. AYOTTE. Mr. President, first of all, I wish to thank Chairman Levin and Ranking Member McCain and remind everyone that this particular amendment addressing detainee provisions passed overwhelmingly on a bipartisan basis in the Armed Services Committee.

The reason we addressed this issue was because we heard witness after witness in a series of months before the Armed Services Committee from our Department of Defense tell us--for example, when I asked the commander of Africa Command, saying he needs some lawyerly help on how to answer what to do with a member of al-Qaida who is captured in Africa. This is an area that cried out for clarification, and that is the genesis of this amendment, which is a very important amendment.

Briefly, two issues. No. 1, the arguments that have been raised about section 1031, including the statement of authority, this is a red herring. This provision was drafted, as Senator Levin said very clearly, based upon what the administration wanted, and also codifies existing law on what the statement authority is in terms of the fact that we are at war with al-Qaida. If people want to disagree with that, that is certainly a policy discussion we can have. But we were attacked on our soil on 9/11, and this codifies the fact that we are at war with members of al-Qaida.

Section 1032 is the military custody provision. Let's be clear on what it does and what it does not do. No. 1, it is very clear on who it applies to. It only applies to members of al-Qaida or an associated force who are planning or carrying out an attack or attempted attack against the United States or its coalition partners. It does not apply to American citizens. We are only saying that if a person is a member of al-Qaida and they want to attack the United States, we are going to hold them in military custody. Why? I prosecuted cases in the criminal system. We don't want to have to----

The PRESIDING OFFICER. The Senator's time has expired.

Ms. AYOTTE. We don't ever want to have to read a terrorist their right to remain silent. That is the issue here.

Thank you, Mr. President. I yield the floor.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. I yield 3 minutes to the Senator from Connecticut.

Mr. LIEBERMAN. I thank the Chair, and I thank my friend, the chairman of the Armed Services Committee. I rise respectfully to oppose the amendment the Senator from Colorado has offered, though in some measure I thank him for offering it because this has been an important and good debate.

My own position, stated briefly, is this: As Senator Levin has said, we are a nation at war. As such we were attacked on 9/11. We adopted in this Chamber the authorization for military force. That is about as close to a declaration of war as we have done since the Second World War. The comparison is exact because what happened to us on 9/11 was in some ways even worse than what happened in December of 1941 when we were attacked at Pearl Harbor.

A nation at war that seizes those who have declared themselves to be part of enemy forces and have attempted to attack the American people, or America, should be treated as enemy combatants, as prisoners of war, according to the law of war. To me, that is a matter of principle. Regardless of what statistics one can cite about how well prosecutions have gone in article III courts, that is, to me, not ultimately the point. If we are at war, the people who are fighting against us ought to be treated as prisoners of war.

In fact, we are without a policy now, as Senator Ayotte said. The main reason I oppose what Senator Udall is proposing is that he would remove the sections of the current bill that create a policy and send us back to where we are now, where our forces in the field don't know what to do if they capture a member of al-Qaida.

If I had my way, the provisions in this proposal on detainees would not have the waivers the President has. It would simply say, if you are apprehended--if you are a foreign member of al-Qaida, and you are captured planning or executing attacks against Americans or our allies in this war, you are put in military custody and you are tried in a military tribunal. This is not the law of the jungle; this is according to American law. These are the same courts in which American soldiers are tried when charges are brought against them, and, of course, we accept and abide by all of the provisions of the Geneva Conventions.

But that was not the will of the Armed Services Committee. The Armed Services Committee, in a good, reasonable, bipartisan compromise, has created a system here where the default position--the initial position is to transfer these enemy combatants to military custody. It is a good compromise. It is the kind of compromise that----

The PRESIDING OFFICER. The Senator's 3 minutes has expired.

Mr. LIEBERMAN.--doesn't happen around here enough. I didn't get everything I wanted out of it, but it is a lot better than the status quo. Therefore, I support the language in the bill and oppose the Udall amendment.

I thank the Chair and yield the floor.

The PRESIDING OFFICER. The Senator from Georgia.

Mr. CHAMBLISS. Mr. President, I rise to urge my colleagues to oppose the Udall amendment, which would eliminate the bipartisan detainee provision that the chairman, the ranking member, and committee members worked so hard to craft. These provisions are necessary to provide some certainty for our intelligence professionals in how our government will handle terrorist detainees and how long detainees can be questioned for intelligence-gathering purposes.

We have heard quite a lot over the past few days from administration officials about how our intelligence and law enforcement professionals need flexibility. In fact, Director of National Intelligence Clapper wrote to the Intelligence Committee arguing for flexibility and stressing the need for a process that, as he said, ``encourages intelligence collection through the preservation of all lawful avenues of detention and interrogation.'' With that, I agree wholeheartedly. The problem with the status quo, however, is that the administration refuses to use all of its lawful avenues of detention and interrogation available to it, choosing instead only to use one, and that is article III courts.

For nearly 3 years, Members of Congress have pressed the administration to establish an effective and unambiguous long-term detention policy, but they have refused. The intent behind these bipartisan provisions is simple:

We must hold detainees for as long as it takes to gather information our intelligence and law enforcement professionals need to take down terror networks and to stop attacks.

Frankly, the best place, in my opinion, for this is Guantanamo Bay, But when it comes to Gitmo, the administration is no longer concerned about ``flexibility.''

Instead, we hear that Guantanamo is ``off the table.''

In fact, in a hearing, when I asked the current Secretary of Defense, prior to the SEAL Team 6 takedown of Osama bin Laden: If you captured him, what would you do with him, he quizzically looked back and said: Well, I guess we would send him to Guantanamo. Well, we know that would not have happened had we not taken him down.

This is unfortunate because intelligence and law enforcement professionals, including some at high levels in the administration, acknowledge privately that what hampers intelligence collection from detainees is the administration's unwillingness to take new detainees to Guantanamo for questioning. When our operators overseas are unsure about where they would hold captured detainees, it causes delay, sometimes missed opportunities, and sometimes capture operations become kill operations.

We cannot afford this kind of uncertainty and the Udall amendment simply kicks the can down the road with a report about a problem we already understand. The time to act is now.

Without Guantanamo, long-term military detention elsewhere is the next best option and is the appropriate option for terrorists with whom we are at war. The detainee provisions in the Defense Authorization Act will ensure that the administration uses all of the detention options it says it wants, not just article III courts, and offer the flexibility the administration says it needs. I urge my colleagues to oppose the Udall amendment and give our intelligence professionals and military operators some certainty as they fight the war on terror.

The PRESIDING OFFICER. The Senator's time has expired.

Mr. CHAMBLISS. Mr. President, I urge a ``no'' vote on the Udall amendment.

The PRESIDING OFFICER. The Senator from Arizona.

Mr. McCAIN. Mr. President, I would like to thank all of my colleagues who have engaged in a very important debate.

I would also like to say to my friend from Michigan, the chairman, I have observed him for many years debate various issues on the floor of the Senate and in the Armed Services Committee. I have never seen him more eloquent than I have observed in his statements today and throughout this debate. I also appreciate the fact that there are many in his conference who do not agree with the position taken by the chairman, and I especially am admiring of that.

I yield.

Mr. LEVIN. How much time is remaining, Mr. President?

The PRESIDING OFFICER. The Senator from Michigan has 45 seconds. The Senator from Colorado has 1 minute.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator from Colorado be allowed----

Mr. LEVIN. He only needs 2 minutes.

Mr. McCAIN. Two minutes, at least.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. McCAIN. Such time as he may need.

The PRESIDING OFFICER. The Senator from Colorado.

Mr. UDALL of Colorado. Mr. President, I thank, again, the ranking member and the chairman of the Armed Services Committee for their hard work.

I want to close with a couple points. I want to, in the interest of clarifying the record, point out, on the heels of the chairman's comments about the Statement of Administration Policy, when it comes to section 1031, the full statement reads:

Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country.

Second, there are questions that continue to be raised. I want to mention section 1033. The chairman said it is only section 1032 that is the focus of our attention, but there have been questions raised about section 1033. There is language in section 1033 that makes it clear that--we think it makes it clear that there is a provision that requires any receiving country is taking actions ``to ensure that the [detainee] cannot engage ..... in any terrorist activity.'' This is if we are releasing or transferring somebody who is detained.

I was in Afghanistan recently, at Bagram prison. We have 20,000 detainees there. There are some who believe section 1033 would restrict us from releasing those prisoners at Bagram as we begin to draw down our efforts in Afghanistan. That is just one of the many questions that are asked.

Finally, I listened to the passion that my friend from South Carolina Senator Graham exhibited on the Senate floor. We are all in this together. We are going to prevail. The bad guys in the world are not going to win. We do have, however--and this is what makes our country strong--different points of view on how we prosecute this war. I believe the intent of what is being suggested in these provisions is well and good and at the highest level. But there are many people we trust and respect--including the FBI Director, the Secretary of Defense, the Secretary of Homeland Security--who believe what will happen, if we interpret the language, will not actually reflect our intent.

Therefore, let's set this aside, pass the NDA, send it to the President, and take the next 90 days to hold hearings and thoroughly vet what is in this set of provisions. I will be the first person to come to the floor if all of those individuals and our own experts tell us this is the right way to proceed, to say: Let's put this into the law.

But let's not rush to take these steps. We have something that is working. We have over 300 terrorists who have been prosecuted through our civil system who are in jail, many of them for life sentences, sentences that will outlast their lifespans. Let's not fix something that is not broken until we really understand what the consequences are.

I thank, again, my colleagues on the Senate Armed Services Committee. This has been a helpful and important debate.

I yield the floor.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. Mr. President, let me also thank our friend from Colorado for his contributions to the committee. He is a valuable member of our committee, and he is no less valuable because he is offering an amendment with which I happen to disagree.

Two quick factual points. One is, the language the Senator mentioned from section 1033 is exactly the same language as was in last year's bill and is in current law. The only difference is we have given greater flexibility this year to the President by making it waiveable. So our language is more flexible than the current law.

Finally, in terms of the Hamdi case, the Senator is correct. I believe it was Senator Udall who said this was an American citizen who was captured in Afghanistan. That is true. But the Supreme Court, in Hamdi, relied on the Quirin case--which was an American citizen captured on Long Island and--quoted that case with approval when saying:

There is no bar to this Nation's holding one of its own citizens as an enemy combatant.

That was the Quirin language--an American citizen captured on Long Island.

Mr. President, if I have any time left, I will yield it and yield the floor.

The PRESIDING OFFICER. The Senator from Arizona.

Mr. McCAIN. Mr. President, the pending amendment is the Udall amendment.

Am I correct, I ask the chairman, in that we would intend, depending on--there are several things that have to be resolved--but we would intend to have this vote at around 2:15 p.m., if things work out? Is that correct?

Mr. LEVIN. I wonder if Senator Udall also heard that. I believe, and I think it is the intention of all of us, that we vote on this as soon as possible after 2:15.

I yield the floor.

The PRESIDING OFFICER. In my capacity as a Senator from Virginia, I suggest the absence of a quorum.

The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. LEVIN. 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. LEVIN. I ask unanimous consent there be 2 minutes of debate, equally divided, prior to a vote in relation to the Udall of Colorado amendment No. 1107; that upon the use or yielding back of time, the Senate proceed to vote in relation to the amendment, with no amendments in order prior to the vote.

The PRESIDING OFFICER. Is there objection?

Without objection, it is so ordered.

The Senator from Colorado.

AMENDMENT NO. 1107

Mr. UDALL of Colorado. Mr. President, this amendment strikes controversial detainee provisions that have been inserted in the National Defense Authorization Act. It would require that the Defense intelligence and law enforcement agencies report to Congress with recommendations for any additional authorities they need in order to detain and prosecute terrorists. The amendment would then ask for hearings to be held so we can fully understand the opposition to these provisions by our national security experts--bipartisan opposition, I might add--and hopefully avoid a veto of the Defense authorization bill.

In short, we are ignoring the advice and the input of the Director of the FBI, the Director of our intelligence community, the Attorney General of the United States, the Secretary of Defense, and the White House, who are all saying there are significant concerns with these provisions; that we ought to move slowly.

We have been successful in prosecuting over 300 terrorists through our civil justice system. Let's not fix what isn't broken until we fully understand the ramifications.

I reserve the remainder of my time.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. I yield 30 seconds to Senator Graham.

The PRESIDING OFFICER. The Senator from South Carolina.

Mr. GRAHAM. Mr. President, section 1031 is a congressional statement of authority of already existing law. It reaffirms the fact this body believes al-Qaida and affiliated groups are a military threat to the United States and they can be held under the law of war indefinitely to make sure we find out what they are up to; and they can be questioned in a humane manner consistent with the law of war.

Section 1032 says if you are captured on the homeland, you will be held in military custody so we can gather intelligence. That provision can be waived if it interferes with the investigation.

These are needed changes. These are changes that reaffirm what is already in law.

The PRESIDING OFFICER. The Senator's time has expired.

The Senator from Michigan.

Mr. LEVIN. Mr. President, the Supreme Court has recently ruled--this is the Supreme Court talking:

There is no bar to this Nation's holding one of its own citizens as an enemy combatant. A citizen, no less than an alien, can be part of the supporting forces hostile to the United States, and such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.

That is the Supreme Court's statement. We can and must deal with an al-Qaida threat. We can do it properly. The administration helped to draft almost all of this bill. The provisions which would be struck----

The PRESIDING OFFICER. The Senator's time has expired.

Mr. LEVIN. Are provisions which even the administration has helped to draft. So I would hope we would deal with the al-Qaida threat in an appropriate way, in a bipartisan way. The committee voted overwhelmingly for this language.

I yield the remainder of my time.

Mr. McCAIN. I ask for the yeas and nays.

The PRESIDING OFFICER. The Senator from Colorado.

Mr. UDALL of Colorado. How much time do I have remaining?

The PRESIDING OFFICER. Three seconds.

Mr. UDALL of Colorado. The Director of the FBI, the Secretary of Defense, the Attorney General, and the Director of Intelligence have all said let's go slow.

Pass the Udall amendment.

The PRESIDING OFFICER. All time has expired.

The question is on agreeing to the amendment.

Is there a sufficient second? There appears to be a sufficient second.

The clerk will call the roll.

The legislative clerk called the roll.

Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) is necessarily absent.

Mr. KYL. The following Senator is necessarily absent: the Senator from Alaska (Ms. Murkowski).

The PRESIDING OFFICER. (Mr. Franken). Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 38, nays 60, as follows:

 

Senate Floor Debates - Dec 1

On December 1, 2011 debates on the Senate floor were held regarding the Feinstein amendments. Numerous Senators took part in what was perhaps the most important day of debate regarding the law. The participants included Senator Graham of South Carolina, Senator Kyl, Senator Feinstein, Senator McCain, Senator Leahy, Senator Blunt, Senator Levin, Senator Durbin, and Senator Ayotte. 

In discussing the Feinstein amendment, the Senators reaffirmed that the military will have default custody of enemy combatants and established two distinct new items. The first was that the detainee provisions did not seek to interfere with the long term detention provisions or prevent a person from eventually obtaining a habeas corpus trial. The law simply stated that anyone captured on a battlefield and suspected of being allied with al-Qaeda could be questioned as long as desired without a lawyer or trial. This questioning could go on for years, as in the case of Jose Padilla where he was detained for 5 years before a habeas corpus trial.

The second item that was definitively established was that the US homeland was now a part of the battlefield in the war on terror. This meant that where before, US citizens captured on US soil could obtain a trial to establish what crimes were committed, the President could now use his authority to detain those people as suspected of committing acts of war.

 

Text of Debate Session 1

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 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. §4001(a ). Section 4001(a ) states that `[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.' ...... Congress passed §4001(a ) in 1971. ..... [The government maintains] §4001(a ) is satisfied because Hamdi is being detained pursuant to an Act of Congress, the AUMF. ..... [W]e conclude that ..... the AUMF satisfied §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 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 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 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.

 

Senate Floor Debates - Dec 1 - Session 2

Mrs. FEINSTEIN. I do. I have a four corners meeting on the Energy and Water appropriations bill. That is my problem. So the later it is, the better it is for me.

Mr. LEVIN. So is a 4 o'clock vote after an hour of debate acceptable?

Mrs. FEINSTEIN. Yes. My understanding is the House chairman only has until 3 o'clock, but I anticipate we will take all that time. So I can't change that.

Mr. LEVIN. So it is agreeable, then, that there will be an hour of debate on the second amendment starting at 3 o'clock with a vote at 4 o'clock?

Mrs. FEINSTEIN. Yes.

Mr. LEVIN. I also ask unanimous consent that there be no second-degree amendments to the Feinstein amendment.

The PRESIDING OFFICER. Is there objection?

Mr. CORNYN. I object.

The PRESIDING OFFICER. Objection is heard.

The Senator from Arizona.

Mr. McCAIN. If we can then--obviously, we can call a vote at any particular time. So I would suggest again that we try to dispose of other amendments after the vote on the first Feinstein amendment, and then we will try to dispose of additional amendments between the disposition of the first Feinstein amendment and the second one, with the hour of debate equally divided, and Senator Feinstein can begin.

The PRESIDING OFFICER. The Senator from California.

Mrs. FEINSTEIN. Madam President, I rise to ask my colleagues to support amendment No. 1125, which will limit mandatory military custody to terrorists captured outside the United States. This amendment is cosponsored by Senators Leahy, Durbin, Udall, Kirk, Lee, Harkin and Webb.

This is a very simple amendment. It adds only one word--the word ``abroad''--to section 1032 of the underlying bill. I strongly believe if it is not broke, do not fix it. The ability to have maximum flexibility in the United States is very important, and I totally support the Executive having that flexibility.

This bill creates a presumption that members or parts of al-Qaida or associated forces will be held in the military system. That is what concerns me because the military system has not produced very well over the last 10 years.

I want to take a moment to contrast some cases.

On this chart, we have sentences--five of them from military commissions and five or six from Federal courts. The Federal courts have actually convicted over the last 10, 11 years not 300 people but 400 people.

Military commissions are limited to some six convictions. Let's take a look at what they are.

A very famous one is Salim Hamdan because he brought a Supreme Court case. He was bin Laden's driver. He was acquitted of conspiracy and only convicted of material support for terrorism. He received a 5-month sentence by the military commission and was sent back to his home in Yemen to serve the time before being released in January of 2009.

No. 2: David Hicks entered into a plea on material support for terrorism and was given a 9-month sentence, mostly served back home in Australia.

Omar Khadr pled guilty in exchange of an 8-year sentence, but he will likely be transferred to a Canadian prison.

Ibrahim Ahmed Mahmoud al-Qosi pled guilty to conspiracy and material support to terrorism. His final sentence was 2 years pursuant to a plea deal.

Noor Uthman Muhammed pled guilty to conspiracy and material support to terrorism. His final sentence will be less than 3 years pursuant to his plea agreement.

Ali Hamza al-Bahlul received a life sentence after he boycotted the entire commission process.

On the other hand, you have sentences from the Federal courts.

You have Richard Reid, the Shoe Bomber--life in prison.

``Blind Sheik'' Omar Abdel Rahman--life in prison for the plot to bomb New York City.

Twentieth Hijacker Zacarias Moussaoui--life in prison.

Ramzi Yousef--life in prison for the 1993 World Trade Center bombing and the Manila Air plot.

Umar Farouk Abdulmutallab--probably life in prison; will be sentenced in January 2012.

Najibullah Zazi--potential life in prison. This is the man, with conspirators, who was going to bomb the New York subway.

There is definitive evidence that is irrefutable that the Federal courts have done a much better job than the military commissions.

Why this constant press, that if it is not broke we are going to fix it anyway, I do not understand. Why the constant push to put people in military custody rather than provide the flexibility so that evidence can be evaluated quickly? This person will get life in a Federal court versus an inability or a problem in a military commission or vice versa. I think the Executive should have that.

I think the last 10 years have clearly shown that this country is safer than it has ever been. Terrorists are behind bars where they belong and plots have been thwarted, so the system is working.

This amendment would make clear that under section 1032, U.S. Armed Forces are only required to hold a suspected terrorist in military custody when he is captured abroad. All the amendment does is add one word--that is the word ``abroad''--to make clear that the military will not be roaming our streets looking for suspected terrorists. The amendment does not remove the President's ability to use the option of military detention or prosecution inside the United States.

The administration has threatened to veto this bill, and has said:

[It] strongly objects to the military custody provision of section 1032 [because it] would tie the hands of our intelligence and law enforcement professionals.

Perhaps, most importantly, addressing the issue of this amendment specifically, on November 15, Defense Secretary Leon Panetta wrote this:

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

The Director of National Intelligence, Jim Clapper, also wrote a letter on November 23, to say that he opposes the detainee provisions of this bill because they could--and I quote--``restrict the ability of our nation's intelligence professionals to acquire valuable intelligence and prevent future terrorist attacks.''

The administration suggested this change to the Armed Services Committee, but it was rejected. So the administration has had to threaten a veto on the bill. Who knows whether they will. I certainly do not know. This amendment limiting mandatory military custody to detainees outside the United States is a major improvement to the bill, and I ask my colleagues to support it.

I have a very hard time because I have watched detainees carefully as part of the Senate Intelligence Committee, and we are doing a study on the detention and treatment of high-value detainees. This has been going on for 2 years now. It is going to be a 4,000-page document, and it is going to be classified. But it will document what was actually done with each of the high-value detainees and what was learned from them. It shows some very interesting things. But the upshot of all of this is that we should keep military custody to people arrested abroad and have the wide option in this country, which is the case now, and not mandate--mandate--that military custody and military commission trial must be for everyone arrested in the United States.

You will hear that anyone who comes to the United States who carries out a criminal act, a terrorist act under the laws of war, should be subject to military custody. The problem is, 10 years of experience has not worked. How many years' experience do we need? How many sentences--six cases--and this is all there is in 10 years.

I know the other side got very upset when Abdulmutallab was Mirandized. The fact of the matter is, every belief is Abdulmutallab is going to do a life sentence in a Federal prison, put away somewhere in a place where he cannot escape and where the treatment is very serious.

I have, again, a hard time knowing why if it is not broke we need to fix it, and why we need to subject everybody who might be arrested in this country to a record that is like this: 5-month sentence, 9-month sentence, 8-year sentence, 2-year sentence, 3 years pursuant to a plea agreement, and one life sentence, when you have 400 cases that have been disposed of in a prompt way in a Federal court, who are serving long sentences in Federal prison.

I wish to hold the remainder of my time and have an opportunity to respond to the distinguished chairman and ranking member.

The PRESIDING OFFICER. The Senator from Arizona.

Mr. McCAIN. Madam President, I wish to yield----

Mr. LEVIN. Before the Senator yields time to the Senator----

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. Will the Senator refrain for 1 minute? While Senator Feinstein is here, I understand it is now preferable from our leader that the vote be at 2 o'clock, not immediately following this half-hour debate.

Mrs. FEINSTEIN. If that is possible, that would be helpful. But it is whatever Senators want .

OK. All right.

Mr. McCAIN. Does the Senator want to unanimous-consent that?

Mr. LEVIN. Madam President, I ask unanimous consent that the vote, which was previously scheduled to occur at the end of the half hour of debate on this amendment, now be rescheduled for 2 o'clock.

The PRESIDING OFFICER. Is there objection?

Without objection, it is so ordered.

Mr. LEVIN. Madam President, relative to the time between that half hour and 2 o'clock, that time, hopefully, would be used. It will be by me for my remarks on this amendment, by the way, because after the 30 minutes, if it is used totally, I would want an opportunity to speak during that time, if necessary in morning business. But there are other amendments we believe can be voice voted during that period of time, I believe my friend from Arizona would agree. So that time will be fruitfully used. But the time now is 2 o'clock for the vote on that first Feinstein amendment.

I thank my friend.

The PRESIDING OFFICER. The Senator from Arizona.

Mr. McCAIN. Madam President, the vote will be at 2 o'clock. The Senators from New Hampshire and South Carolina wish to speak. I do not know if the chairman wishes to be before or during that or in between. But, also, it does not change the agreement we have, which has not been agreed to but we have agreed we will attempt to have a vote on the second Feinstein amendment at 4 o'clock still. Is that correct? We will attempt to do that?

Mr. LEVIN. It will continue to be our intent. It was objected to before. But we hope that objection will be removed. If it is not removed, we will have to have all these votes at the end of the day instead of during the day.

Mr. McCAIN. So beginning at 3, whether we have a unanimous consent agreement--because the Feinstein amendment is very important--I would ask, informally, if we do not have a unanimous consent agreement, that we have an hour equally divided beginning at 3 so we can debate the second Feinstein amendment.

In the meantime, as the chairman said, we will try to dispense with voice votes and other agreed-upon amendments, and perhaps even maybe a recorded vote if necessary on one of the amendments.

I would remind my colleagues, we run out of time at 6 o'clock this evening, and we would rather do it in a measured fashion, allowing recorded votes or debate before those recorded votes, because those pending amendments will be voted on after 6 p.m. tonight.

I hope I did not say anything the chairman does not agree with.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. No. I agree with what the Senator said and what the intent is here; that, hopefully, we could have an hour debate starting at 3 o'clock. We will try to lock that in at a later time, after giving folks notice. But if there is objection to votes before the time runs out, the 30-hour clock runs out, then we will have to have all those votes after the 30-hour clock runs out, and it does not make any sense to do that. But if there is going to be an objection, then that is the way it will have to be.

What Senator McCain is saying--and I totally agree with him--is, even if we are put in that position, which I hope we are not, that at least we could use the time between now and then for debate on those amendments which we would have to vote on at a later time. I totally agree with my friend from Arizona.

The PRESIDING OFFICER. The Senator from Arizona.

Mr. McCAIN. Madam President, I yield 7 minutes to the Senator from New Hampshire and 8 minutes to the Senator from South Carolina.

The PRESIDING OFFICER. The Senator from New Hampshire.

Ms. AYOTTE. Madam President, I rise in opposition to the amendment offered by the Senator from California, amendment No. 1125. I would start with this: We have heard repeatedly--not only from the Senator from California but also from the Senator from Illinois--about the number of cases in our civilian system where we have tried terrorists versus the number of military commissions.

I think there is one thing that needs to be clarified upfront here; that one of the first acts the President took when he came into office was to actually suspend all military commissions for about 2 years. So to compare the number of cases in our civilian system versus the number of military commission trials we have had is a false comparison when we suspended these trials for over 2 years. I want to say that upfront.

But I think the chart the Senator shows actually misses the point of why we have this amendment before us; that is, we need to gather intelligence. When we have captured a member of al-Qaida who is planning an attack against the United States of America, the first goal has to be, obviously, getting that person away from where he can threaten us again to kill Americans, but also, just as importantly, to gather intelligence to protect America. The criminal justice system is set up to see that justice is served in a particular case, not to see that we have the maximum tools in the hands of our intelligence officials to gather information.

Yet it seems to me that if you look in the context of Senator Feinstein's amendment 1126 that we have already talked about on the floor, she wants to limit the administration. The case law of our Supreme Court that is going back to World War II would take us before 9/11. And heaven forbid if we had an American citizen who was one of the participants in an incident such as we had occur on our soil on 9/11. Our military would not be permitted to hold that person and to question them to get the maximum amount of information and protect our country.

With respect to this amendment she has pending before the Senate, 1125, I want to point out that the amendment would lead to a very absurd result. Essentially what it would say is if you are a member of al-Qaida, planning or committing an attack against the United States of America, a foreigner, and you make it to our soil, as the 9/11 conspirators did who committed that horrible attack on our country, then you cannot be held in military custody. There is no mandatory military custody under those circumstances. Yet we will hold you in mandatory military custody if you are found overseas. So, in other words, please, their goal is unfortunately to come to the homeland, to come to our country to attack us here, and in our country we need the authority to, in the first instance--the presumption should be to hold those individuals in military custody so that we are not reading them Miranda rights. To tell a terrorist: You have the right to remain silent is counter to what we need to do to protect Americans and make sure that--for example, I will use the Christmas Day Bomber as an example because it has been cited so many times here on this floor.

That day, when he was found on the plane, after 50 minutes of questioning, he was read his Miranda rights and he invoked his Miranda rights and remained silent. It was only 5 weeks later after we tracked down his parents and convinced him to cooperate that he actually provided more information.

We are very fortunate that he was only involved in one event, that it was not a 9/11-type event where there were multiple events on American soil planned. But what if after that 50 minutes we waited 5 weeks to get more information, yet there had been more events coming that day? That is what is at issue here. Let's bring ourselves back to September 11. What if we had caught the individuals who were on one of those planes before it took off on 9/11? What if in that instance we would not hold those members of al-Qaida in military custody that instant to make sure that we could get the maximum amount of information from them to hopefully, God forbid, prevent the lifting off of the other flights and what happened on that horrible day in our country's history?

I have to believe that if we were standing here immediately after the events of 9/11, I do not think we would be debating this amendment, deciding whether if you make it to our homeland we will not hold you in military custody in the first instance, to find out how much information you have, to make sure you are not part of multiple attacks on the United States of America.

If the amendment of the Senator from California passes, what kind of message are we sending to members of al-Qaida, foreigners who are planning attacks against the United States of America? We are laying out, unfortunately in my view, a welcome mat to say: If you make to it America, you will not be held in military custody. But if you attack us overseas, then you will be held in military custody. Why would we create a dual standard where we should be prioritizing protecting our homeland, protecting the United States of America? This leads to an absurd result.

I would hope my colleagues would reject the Senator's amendment to say that only those members of al-Qaida who do not make it to our homeland to attack us right here on our soil will be held in the first instance in mandatory military custody. Because our goal has to be here to protect Americans and to make sure we do not create a dual standard where if you are captured over there, we are going to hold you in military custody, but if you are captured and if you make it here, you are going to be getting greater rights, we will process you in the civilian system, and we will tell you you have the right to remain silent. We should not be telling terrorists they have the right to remain silent. We should be protecting Americans. If we were to pass this amendment, it would create an absurd standard where you get greater rights when are you here on our soil. I think that makes us less safe.

I would urge my colleagues to reject both of the Senator's amendments, both 1126 that would deny the executive branch the authority to hold them----

The PRESIDING OFFICER. The Senator's time has expired.

Ms. AYOTTE. Madam President, I ask unanimous consent for 30 seconds to wrap up.

The PRESIDING OFFICER. Without objection, it is so ordered.

Ms. AYOTTE. Madam President, I would ask my colleagues to reject 1126 as well, which would take away the authority of the executive branch as allowed by our Supreme Court and would make us less safe in this country as well as 1125. We have to protect America and make sure we get the maximum information to prevent future attacks on this country.

The PRESIDING OFFICER. The Senator from California.

Mrs. FEINSTEIN. Madam President, how much time do I have remaining?

The PRESIDING OFFICER. The Senator has 3 minutes remaining of the original 30 minutes.

Mrs. FEINSTEIN. Thank you very much.

Mr. LEVIN. Would the Senator yield for a question?

Mrs. FEINSTEIN. Not on my time. On the Senator's time.

Mr. LEVIN. On my time. Quick question. After the 30 minutes expires, because we are not going to have a vote now, there would be additional time should the Senator need it after that 30 minutes.

Mrs. FEINSTEIN. I appreciate it. I may well use it.

Madam President, I object to the statement just made that this will make the United States of American less safe. Ten years of experience has shown it has not. Plot after plot after plot has been interrupted. I have served on the Intelligence Committee for 11 years now. We follow this closely. This country is much more safe because things have finally come together with the process that is working.

The FBI has a national security division with 10,000 people. There are 56 FBI offices. The military does not have offices to make arrests around this country. This constant push that everything has to be militarized--they were wrong on Hamdi, they were wrong on Hamdan. And it keeps going. And that it is terrible to protect people's rights. I do not think that creates a safe country. This country is special because we have certain values, and due process of law is one of those values. So I object. I object to holding American citizens without trial. I do not believe that makes us more safe. I object to saying that everything is mandatory military commission and military custody if anyone from abroad commits a crime in this country. The administration has used the flexibility in a way that they have won every single time. There have been no failures.

The Bush administration as well used the Federal courts without failure. They have gotten convictions. The military commissions have failed, essentially; 6 cases over 10, 11 years. I pointed out the sentences. So to say that what we are doing is to make this country less safe may be good for a 30-second sound bite, but it is not the truth.

I yield the floor.

The PRESIDING OFFICER. The Senator from South Carolina.

Mr. GRAHAM. I say to my good friend from California, you are a patriot. You are here for all of the right reasons. We just have a strong disagreement about where we stand as a nation.

Nobody interrupted the Christmas Day Bomber plot. The people on the plane attacked the guy before he could blow it up. There was no FBI agent there. There was no CIA agent there. We are lucky, thank God, the passengers did it. So there is nothing to suggest that our intelligence community does not need as many tools as possible because the guy got through the system. We are lucky as hell the bomb did not go off.

Mrs. FEINSTEIN. Would the Senator yield for a question?

Mr. GRAHAM. The Times Square Bomber, nobody interrupted that plot. The guy did not know how to set the bomb off. We are lucky as hell the bomb did not go off. So do not stand here and tell me that we have got it right, because we have not. And here is the point: We never will always get it right. I am not saying that as criticism. Because we are going to get hit again. We cannot be right and lucky all of the time.

To those who are trying to defend us, the one thing I do not want to do is micromanage the war. Here is the political dynamic. You have got people on the left who hate the idea of saying ``the war on terror.'' If you left it up to them, they would never, ever use the military, they would always insist that the law enforcement model be used because they do not buy into the idea of we are at war. So you have got one part of the country, a minority, that wants to criminalize the war. If we ever go down that road, woe be unto us.

You have got people on my side--the Senator is right about this. They have gone the other way. If you left it up to people on my side, there would be a law passed tomorrow that you could never, ever read a Miranda right to a terrorist caught anywhere in the United States.

I do not agree with that way of thinking. To my fellow members of the U.S. military, you have not failed at Guantanamo Bay. You have not failed. Because you sentenced someone to 9 months to me validated the fact that those who are taking an oath to defend us, when they are put in a position of passing judgment on people accused of trying to kill us all, will be fair.

So when you say a military commission tribunal at Guantanamo Bay gave a 9-month sentence and that is a failure, I say, as a proud member of the military, I am proud of the fact that you can judge a case based on the facts and the law and not emotion. So I am very proud of the fact that military commissions can do their job as well as the civilian courts.

I say to our Federal prosecutors and our Federal juries and our Federal judges, I am proud of you too. We should be using an ``all of the above'' approach. There are times that Federal courts are better than military commissions. There are times that military commissions are better than Federal courts.

The 1032 language has nothing to do about what venue you choose. This provision is simple in its concept. It is a compromise between those on the left who say you must criminalize this war; we are not at war; you are going to have to use the law enforcement model; you can neither gather military intelligence, who do not believe that the military has a role on the homeland to gather intelligence, which is an absurd concept, never acknowledged before in any other war.

When American citizens helped the Nazis, collaborated with Nazis to engage in sabotage, not only were they held as enemy combatants during World War II, they were tried by military commissions. We no longer allow American citizens to be tried by military commissions. I think that is a reasoned decision. But what we do not want to do is prevent our intelligence community from holding an al-Qaida affiliated member and gathering intelligence.

If an American citizen went to Pakistan and got radicalized in a madrasah and came back to the United States and landed at Dulles Airport and got a rifle and started shooting everyone on the Mall, I believe it is in our national security interests to give our intelligence community the ability to hold that person and gather intelligence about: Is another guy coming? What did you do? What future threats do we face? And not automatically Mirandize him. But if they choose to Mirandize him, they can. In this legislation, we presume military custody, but it can be waived.

That is the point I am trying to make. Senators Levin and McCain have struck a balance between one group that thinks the military can only be used and nobody else and another group that says we can never use the military. We have that balance. If we upset this balance, we are going to make us not only less safe, the Congress is going to do things on our watch that we have never done in any other war.

A word of warning to my colleagues: If we had a bill on the floor of the Senate saying we are not going to read Miranda rights to terrorists who are trying to kill us all, 70 percent of the American people would say: Heck yes.

I don't want this bill to come up. I believe the people who are best able to judge what to do is not any politician, they are the experts in the field fighting this war. We are saying we can waive the presumption of military custody, we can write the rules to waive it, but we believe we should start with that construct.

Let me read to you what the general counsel for the Department of Defense said today:

Top national security lawyers in the Obama administration say U.S. citizens are legitimate military targets when they take up arms with al-Qaida. The government lawyers, CIA counsel Stephen Preston, and Pentagon counsel Jeh Johnson, did not address the Awlaki case. But they said U.S. citizens don't have immunity when they are at war with the United States.

The President of the United States was right to target this citizen when he went to Yemen to help al-Qaida. I am glad we took him out. So would it not be absurd that we can kill him, but we cannot detain him? If he came here, we cannot question him for military intelligence gathering. So this is a compromise between two forces that are well intended but will take us into a bad policy position: the hard left who wants to say the military has no role in protecting us on the homeland and some people on my side who say the law enforcement community cannot be involved at all.

So Senator Levin and Senator McCain have constructed a concept that provides maximum flexibility, gives guidance to the law enforcement community, starts with a presumption that I like and can be waived and will not impede an ongoing investigation. That is the part of the bill that was changed.

To my good friend from California, we have the balance we have been seeking for 5 years. To me, this is what we should be doing as a nation--creating legislation that allows those who are fighting the war the tools they need. In this case, we start with the presumption of military custody because that allows us to gather intelligence. Under the domestic criminal law, we cannot hold someone and ask them about future attacks, because we are investigating a crime. Under military law, when somebody joins the enemy and engages in an act of war against the Nation, our military intelligence community can hold that person for as long as it takes to find out what they know about future attacks. If the guy gets off of plane and starts killing people at the mall, when we grab him and he says I want my lawyer , we can say: You are not entitled to a lawyer . We are trying to gather intelligence.

At the end of the day, use military commission trials, use Federal courts, and read Miranda rights when we think it makes sense; but we don't have to because the law allows us to hold people, under military custody, who represent a military threat. The law allows us to kill American citizens who have joined al-Qaida abroad. That has been the law for decades. I hope this compromise that Carl Levin and John McCain have crafted--and I say to Carl Levin, I have been in his shoes. When John and I were on the floor saying don't waterboard people--gather intelligence but don't become like the enemy--a lot of Americans believed we should waterboard these people, do whatever we need to do because they are so vicious and hateful. But John McCain knows better than anybody in this body what it is like to be tortured.

I wish to protect America without changing who we are. It has always been the law that when an American citizen takes up arms and joins the enemy, that is not a criminal act; that is an act of war. They can be held and interrogated about what they did and what they know because that keeps us safe. If we take that off the table, with homegrown terrorism becoming the greatest threat we face, we will have done something no other Congress has done in any other war.

The PRESIDING OFFICER. The original 30 minutes has expired.

Mr. GRAHAM. Madam President, I thank Senators Levin and McCain for drafting a compromise that I think speaks to the best of this country. To my colleagues, please don't upset this delicate balance. If you do, you will open a Pandora's box.

Mr. McCAIN. Madam President, I say to both Senators while they are on the floor, if it had not been for their invaluable effort, this legislation would not have come about. I thank them for their incredibly important contributions, using the benefit of the experience that both Members have.

I yield the floor.

The PRESIDING OFFICER. The Senator from California.

Mrs. FEINSTEIN. Madam President, I wonder if I might take a few minutes to make a couple statements.

The PRESIDING OFFICER. Is there objection?

Mr. LEVIN. Madam President, I have no objection.

The PRESIDING OFFICER. The Senator from California.

Mrs. FEINSTEIN. Madam President, I wished to say with respect to Abdulmutallab, what was very new there was that an explosive had been invented that could go through a magnetometer without detection. It is, to my knowledge, the first time anyone came into the United States--this young Nigerian from a very prominent Nigerian family--wearing a diaper that had enough of this PETN, this new explosive, to blow up the plane. He missed in detonation and it caught on fire and the fire was put out.

There have been other incidents of trying to smuggle this PETN in cartridges of computers and they even had dogs going to the airport and they could not smell the explosive inside the computer cartridge. That was in Dubai. It is a very dangerous explosive. It is new, and it has been improved. It is something we need to be very wary of.

I also wish to point out that there is a public safety exception to Miranda. We do not have to Mirandize someone or we could continue to question them, if there is a public safety risk. So Mirandizing an individual is not a point in this argument, in my view, because we can continue the interrogation. 

What is a point, in my argument, is that the FBI now has competence; that there is a group of special experts who can be flown to a place where someone is arrested and do initial interrogation. They are specifically trained and, to the best of my knowledge, they are effective at interrogating. My point is, the system is working, and we should keep it as it is.

I yield the floor.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. While Senator Graham is on the floor, I ask unanimous consent to have a colloquy with him about this section 1032, the section at issue.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LEVIN. I very much appreciate Senator Graham's remarks. He said the provision provides for military custody as a beginning or starting point. I wonder whether he would agree that not only is it a beginning point, but it is only for a narrow group of people who are determined to be al-Qaida or their supporters.

Mr. GRAHAM. Yes. It is not only a presumption that can be waived, based on what the experts in the field think is necessary; the waiver provision is incredibly flexible. You do not have to stop an interrogation to get the waiver. The executive branch can write the procedures. Not only is it a presumption that can be waived, it is also limited to a very narrow class of people. It has nothing to do with somebody buying gold. I don't know about Senator Levin, but people call me, who are on the right, saying: Don't let Obama put me in jail because I think he is a socialist or are you going to be able to grab me because of my political views? I tell my staff to be respectful and read them the language. The only people who need to worry about this provision are a very narrow group of people who are affiliated with al-Qaida, engaged in hostile acts.

Mr. LEVIN. Would the Senator also agree with me that under the provision in the bill, on page 360--we were told that civilian trials are preferable to military trials, preferable to the detention of an unlawful combatant. Does the Senator agree that every one of those options is open to the executive branch and that there is no preference stated, one way or the other, for which approach is taken to people who are detained?

Mr. GRAHAM. Not only would I agree that 1032 and 1031--the compromise language about statement of authority to detain and military detaining as a presumption--has nothing to do with the choice of venue, there are people on my side who are champing at the bit to prohibit civilian courts from being used in al-Qaida-driven cases; is the Senator familiar with that?

Mr. LEVIN. Yes.

Mr. GRAHAM. I am of the view that we are overly criminalizing the war. I don't want to adopt that policy. There is nothing in this language that has anything at all to do with how you try somebody and what venue you pick. I am in the camp--and I think Senator Levin is too--of an all-of-the-above approach. I am proud of our civilian courts and our military courts. The Senator and I are probably not in the best position to determine that. Let's let the experts do it.

Mr. LEVIN. That is exactly the point. This language, when it is described as language that says somehow or other it works against using civilian courts, is from folks who haven't read our language. The language is explicit. On page 360, lines 3 through 14 in the bill, it says the disposition of a person under the law of war may include the following--and then they talk about detention under the law of war, trial under title X, which is the military trial, transfer for trial by an alternative court or competent tribunal having lawful jurisdiction; that is, article III courts, and transfer or return of custody to the country of origin. There are no others. There is no preference stated for which of those venues would be selected by the executive branch.

Mr. GRAHAM. Is this a fair statement: If it was your goal to prevent military commissions from ever being used, you didn't get your way in this legislation. If it was your goal to mandate that military commissions are the only venue to be used, you didn't get your way in this legislation because this legislation doesn't speak to that issue at all.

Mr. LEVIN. That is absolutely true. Senator Graham brought to the floor something that was stated this morning by the top lawyer for the Obama administration. I think everybody ought to listen to this. There has been so much confusion about what is in the bill and what isn't. Right now, there is authority to detain U.S. citizens as enemy combatants. That authority exists right now. That is not me saying it, that is the Supreme Court that has said it as recently as Hamdi, when they said there is no bar to this Nation holding one of its own citizens as an enemy combatant. That is current law. That is the Supreme Court saying that. Then, the Supreme Court also said in Hamdi that they see no reason for drawing a line because a citizen, no less than an alien, can be part of supporting forces hostile to the United States or coalition partners and engaged in armed conflict against the United States.

Top lawyers for the President, this morning, acknowledged this. I wish every one of our colleagues could hear what Senator Graham brought to the floor. Top national security lawyers in the administration say U.S. citizens are legitimate military targets when they take up arms with al-Qaida.

Are we then going to adopt an amendment that says to al-Qaida that if you attack us overseas, you are subject to military detention; but if you come here and attack us, you are not subject to military detention?

That is what the first Feinstein amendment says.

Mr. GRAHAM. If I may just add--not only is that the effect, that would be a change in law because the Senator agrees with me that in other conflicts, prior to the one we are in today, American citizens, unfortunately, have been involved in aiding the enemy; is that correct?

Mr. LEVIN. I am sorry, I was distracted.

Mr. GRAHAM. Does the Senator agree with me that in prior wars American citizens have been involved in aiding the enemy of their time?

Mr. LEVIN. They have, and they have been held accountable.

Mr. GRAHAM. Yes. And the In re Quirin case, which Hamdi cited and affirmed, was a fact pattern that went as follows: We had German saboteurs, some living in America before they went back to Germany--I think one or two may have been an American citizen--who landed on our shores with a plot to blow up different parts of America. During the course of their efforts, American citizens aided the Nazis. The Supreme Court said when an American citizen chose to help the Nazis at home, on our homeland, they were considered to be an enemy belligerent regardless of their citizenship, and we could detain one of our own when they sided with the enemy.

Mr. LEVIN. There was a naturalized citizen involved in Quirin, who was arrested, as I understand it, on Long Island, and who was charged with crimes involving aiding and supporting the enemy.

Mr. GRAHAM. Let's talk about the world in which we live today.

Mr. LEVIN. And military detention.

Mr. GRAHAM. Military detention and tried by a military commission.

Mr. LEVIN. Exactly. By the way, I think executed.

Mr. GRAHAM. And executed. The Senator from Michigan and I have said, along with our colleagues, that military commissions cannot be used to try American citizens.

Mr. LEVIN. That is correct.

Mr. GRAHAM. Our military has said they do not want that authority. They want to deal with enemy combatants when it comes to military commission trials. But our military CI and FBI have all understood their power to detain for intelligence-gathering purposes is an important power. It is not an exclusive power.

So let's talk about today's threat. The likelihood of homegrown terrorism is growing. Does the Senator agree that the homegrown terrorist is becoming a bigger problem?

Mr. LEVIN. It is an issue, absolutely.

Mr. GRAHAM. So in a situation where an American citizen goes to Pakistan and gets radicalized in a madrasah, gets on a plane and flies back to Dulles Airport, gets off the plane and takes up arms against his fellow citizens, then goes to the mall and starts randomly shooting people, the law we are trying to preserve is current law, which would say if the experts decide it is in the Nation's best interests, they can hold that American citizen as they were able to hold the American citizen helping the Nazis and gather intelligence.

That is a right already given. Senator Feinstein's amendment, even though I don't think it is well written, could possibly take that away. That is 1031. But what we are saying is, we want to preserve the ability of the intelligence community to hold that person under the law of war and find out: Is anybody else coming? Are you the only one coming? What do you know? What madrasah did you go to? How did you get over? How did you get back?

We want to preserve their ability to hold that person under the law of war for interrogation. But we also concede, if they think it is better to give them their Miranda rights, they can. That is what the legislation we create will do. Does the Senator agree with that?

Mr. LEVIN. I do. And the top lawyers of the administration acknowledged as much this morning when they said U.S. citizens are legitimate military targets when they take up arms with al-Qaida.

The provisions we are talking about in section 1032, which Senator Feinstein would modify so that it is only al-Qaida abroad who would be subject to this presumption of a military detention, but al-Qaida who come here--and, by the way, American citizens are not even covered under 1032. But the foreign al-Qaida fighters who come here to attack us are not going to be subject to that presumption of military detention which, again, can be waived. It has nothing to do with in what venue they are tried. The administration, the Executive, has total choice on that. It is just whether we are going to start with an assumption if they are determined to be al-Qaida, if they are a foreign al-Qaida person, they sure as heck ought to be subject to that same assumption whether they attack us here or whether they attack us overseas.

Mr. GRAHAM. Wouldn't it be kind of hard to explain to our constituents that our top lawyers in the Pentagon and CIA said today that once an American citizen decides to help al-Qaida they can be killed in a drone attack, but the Congress somehow says, OK, but they can't be detained?

Mr. LEVIN. I wouldn't want to try to hold that position.

Mr. GRAHAM. Does the Senator believe America is part of the battlefield in our global war on terror?

Mr. LEVIN. It has been made part of the battlefield without any doubt. On September 11, the war was brought here by al-Qaida. How do we suggest that a foreign al-Qaida member should not be subject to an assumption to begin with, if they are determined to be al-Qaida, that they are going to be detained--that we should not start with that assumption--subject to procedures which the administration adopts. It is totally in their hands. It cannot interfere with a civilian interrogation. It cannot interfere with civilian intelligence. We are very specific about it. The procedures are written by the executive branch. They can try them anywhere they want .

But if they bring a war here--they bring a war here--we are going to create an assumption that they can be subject, and are going to be subject, to military detention.

Mr. GRAHAM. Well, my belief is that most Americans would want our military being able to combat al-Qaida at home as much as they would abroad. I think most Americans would be very upset to hear that the military has no real role in combatting al-Qaida on our own shore, but we can do anything we want to them overseas.

Frankly, there are very good people on our side who want to mandate that the military has custody, and no one else, so we never have to read Miranda rights. Quite frankly, there are people on the left, libertarians, well-meaning people, who want to prevent the idea of a person being held under military custody in the homeland because they do not think we are at war and this is really not the battlefield.

What the Senator and I have done is to start with the presumption that focuses on intelligence gathering because the Senator and I are more worried about what they know about future attacks than how we are going to prosecute them.

Under domestic criminal law, we can't hold someone indefinitely. The public safety law I will talk about in a bit, but I say to my good friend from California, the public safety exception was a very temporary ability to secure a crime scene. It was not written regarding terrorism. So our law enforcement officials cannot use the public safety exception to hold an al-Qaida operative for days and question them. The only way to do that legally is under the law of war. In every other war we have had that right, and we are about to change that.

Mr. LEVIN. If I can interrupt, we have that right abroad against members of al-Qaida. But under this approach we would not be able to assume that military detention at home, again, subject to waiver and subject to all the other protections we have.

Mr. GRAHAM. Right. Well, let's keep talking about it because the more we talk about it the more interesting the whole concept becomes.

The last time I looked, there were no civilian jails overseas. So when we capture a terrorist overseas, the only place we can detain them is in military custody. If they make it at home to say the military can't hold a person and

interrogate them under the law of war, the only way we can hold an al-Qaida operative who made it to America is under the law enforcement model. This is not ``Dragnet.'' We are trying to make sure both systems are preserved, starting with the presumption of intelligence gathering.

Here is the key distinction. To my colleagues who worry about how we prosecute someone, that is really the least of my concerns. I am worried about intelligence gathering. I have confidence in our civilian system and confidence in our military system. But shouldn't we be concerned, most of all, Senator Levin, that when we capture one of these operatives on our shores or abroad that we hold them in a humane fashion but a fashion to gather intelligence?

Imagine if we got one of the 9/11 hijackers. Wouldn't it have been nice to have been able to find out if there was another plane coming and hold them as long as necessary to get that information humanely? To say we can't do that makes us a lot less safe.

Mr. LEVIN. We could do that if we captured them in Afghanistan, but here we are going to be treating them differently. It ought to probably be worse. In other words, people who bring the war here, it seems to me, at a minimum ought to be subject to the same rules of interrogation as they would be if they were captured and part of al-Qaida in Afghanistan.

I don't understand the theory behind this. As a matter of fact, when we adopted the authorization for use of military force, it would seem to me the first people we would want to apply the authority of that authorization to would be al-Qaida members who attack this country.

Mr. GRAHAM. That is the only group subject to this provision; is that correct?

Mr. LEVIN. The only group that is protected.

Mr. GRAHAM. But this provision we wrote only deals with that.

Mr. LEVIN. Exactly.

Mr. GRAHAM. No one is going to be put in jail because they disagree with Lindsey Graham or Barack Obama. We are trying to fight a war.

I would say something even more basic. It is in my political interest, quite frankly, being from South Carolina--a very conservative State, great people--to be able to go home and say I supported legislation to make sure these terrorists trying to come here and kill us never hear the words ``you have the right to remain silent.'' Most people would cheer.

It would have been in my interest years ago, quite frankly, to have gone back and said: You know what. I wish the worst thing that could happen to our guys caught by these thugs and barbarians is that they would get waterboarded. They get their heads cut off. Yet we have all these people worried about how we treat them in trying to find out a way to protect the country. That would be in my political interest, and I am sure it would probably be in your political interest to say: Wait a minute, we don't want to militarize this conflict.

At the end of the day, what I wanted to say about the Senator and Senator McCain is that one of you is a warrior who has experienced worse than waterboarding and doesn't want that to be part of his country's way of doing business. The other is someone who has been a very progressive, solid, left-of-center Senator for years. I am a military lawyer who comes from a very conservative State, but I want to fight this war--I don't believe we are fighting a crime--but I want to fight it in a way that doesn't come back to haunt us. I don't want to create a system on our watch that could come back and haunt our own people. I don't want to say that every enemy prisoner in this war has to go to trial because what if one of our guys is captured in a future war? Do we want them to be considered a war criminal just because they were fighting for the United States?

So what we are trying to do is to create policy that is as flexible as possible but understands the difference between fighting a war and fighting a crime.

Mr. LEVIN. Mr. President, I understand there are other Senators who may be coming over to speak, and I will be happy to yield the floor whenever that happens because this is the time which is not structured before the scheduled vote at 2 p.m. But if I can continue, then, until another Senator comes to the floor, I want to just expand on this one point which has been made which has to do with whether there is something in this section of ours that would allow our military to patrol our streets. We have heard that.

Well, we have a posse comitatus law in this country. That law embodies a very fundamental principle that our military does not patrol our streets. There is nothing in section 1032 or anywhere else in this bill that would permit our military to patrol our streets.

I think Senator Graham is probably more familiar with what I am going to say than perhaps any of our colleagues. We have a posse comitatus statute in this country. It makes it a crime for the military to execute law enforcement functions inside the United States.

That is unchanged. That law is unchanged by anything in this bill.

Mr. GRAHAM. Does the Senator know why that law was created?

Mr. LEVIN. I think we had a fear a couple hundred years ago that that might happen.

Mr. GRAHAM. One of the things you learn in military law school is the Posse Comitatus Act, because if a military member or a unit is asked to assist in a law enforcement function, that is prohibited in this country. Why is that? We don't want to become a military state. We have civilian law enforcement that is answerable to an independent judiciary.

The Posse Comitatus Act came about after Reconstruction, because during the Reconstruction era the Union Army occupied the South. They were the judge, jury, and law enforcement. They did it all because there was no civilian law enforcement. After the South was reconstructed, a lot of people felt that was not a good model to use in the future; that we don't want to give the military law enforcement power; they are here to protect us against threats, foreign and domestic; law enforcement activities are completely different.

Now we have National Guard members on the border. That is not a law enforcement function. That is the national security function. But I have been receiving calls that say our legislation overturns the Posse Comitatus Act. Here is why that is completely wrong.

Surveilling an al-Qaida member, capturing and interrogating an al-Qaida member is not a law enforcement function; it is a military function. For the Posse Comitatus Act to apply, you would have to assume that a member of al-Qaida is a common criminal and our military has no legal authority here at home to engage the enemy if they get here.

You talk about perverse. You would be saying, as a Congress, that an al-Qaida member who made it to America could not be engaged by our military. What a perverse reading of the Posse Comitatus Act.

The reason al-Qaida is a military threat and not a common criminal threat is because the Congress in 2001 so designated. I think most Americans feel comfortable with the idea that the American military should be involved in fighting al-Qaida at home, and that is not a law enforcement function.

Mr. LEVIN. That is why we have very carefully pointed this provision 1032 to a very narrow group of people--people who are determined to be members of or associated with al-Qaida.

Then the question becomes, Well, how is that determination made? What are the procedures for that? The answer is it is left up to the executive branch to determine those procedures. Can there be any interference with the civilian law enforcement folks who are interrogating people that they arrest? If someone tries to blow up Times Square and they are being interrogated by the FBI, is there any interference with that interrogation? None. We explicitly say that there is no such interference.

What about people who are seeking to observe illegal conduct? Is there any interference with that? There is none. We specifically say those procedures shall not interfere with that kind of observation, seeking intelligence. We are not interfering with the civilian prosecution, with the civilian law enforcement at all.

The rules to determine whether someone is a member of al-Qaida are rules which the executive branch is going to write. They can't say, Well, this thing authorizes the interference with civilian interrogation when, as a matter of fact, it specifically says it won't, and the procedures to determine whether somebody is governed by this assumption are going to be written by the FBI and the Justice Department and the executive branch. And, on top of that, there is a waiver.

Mr. GRAHAM. May I add something. I want to respond to one of my good friends, Senator Paul, who said, Well, that is all good, but sometimes in democracies you let in very bad people and I don't want to give broad power to the executive branch that could result in political persecution.

I would tell you--Senator Levin may find this hard to believe--there are people on my side who don't trust President Obama and his administration. Some of them don't think he is an American. Some of them believe that if we pass this law, you are going to give the Obama administration the power to come on and pick them up because they go to a rally somewhere.

All I can say to Senator Paul and others: I share the concern about unlimited executive power. I support the Posse Comitatus Act. I don't support the idea that the military can't fight al-Qaida when they come here. We are not talking about law enforcement functions.

But here is what happens: If someone is picked up as a suspected enemy combatant under this narrow window, not only does the executive branch get to determine how best to do that--do you agree with me that, in this war, that every person picked up as an enemy combatant--citizen or not--here in the United States goes before a Federal judge, and our government has to prove to an independent judiciary outside the executive branch by a preponderance of the evidence that you are who we say you are and that you have fit in this narrow window? That if you are worried about some abuse of this, we have got a check and balance where the judiciary, under the law that we have created, has an independent review obligation to determine whether the executive branch has abused their power, and that decision can be appealed all the way to the Supreme Court?

Mr. LEVIN. That guarantee is called habeas corpus. It has been in our law. It is untouched by anything in this bill. Quite the opposite; we actually enhance the procedures here. The Senator from South Carolina has been very much a part of the effort here.

Mr. GRAHAM. Much to my detriment.

Mr. LEVIN. With all the risks that are entailed of being misunderstood and all the rest. That is something the Senator from South Carolina has engaged in, to try to see if we can put down what the detention rules are--by the way, ``are''--because as the administration itself said in its statement of administration policy, the authorities codified in this section--authorities codified in section 1031 they are referring to--those authorities already exist.

Mr. GRAHAM. In this case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don't have to worry very long, because our Federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn't go to a political rally. That has never happened in any other war. That is a check and balance here in this war. And let me tell you why it is necessary.

This is a war without end. There will never be a surrender ceremony signing on the USS Missouri. So what we have done, knowing that an enemy combatant determination could be a de facto life sentence, is we are requiring the courts to look over the military's shoulder to create checks and balances. Quite frankly, I think that is a good accommodation.

Mr. LEVIN. Not only is what the Senator said accurate, but we have done something else in this bill. There is an Executive order that was issued some years ago that said there should be a periodic review process for folks who are being detained under the law of war. Because it is so unclear as to when this war ends, there is real concern about that. What do we do about that? So in this bill what we require the executive branch to do--and I am now quoting from section 1035--is to adopt procedures for implementing a periodic review process. Those procedures don't exist now. They are not formalized. So we want to formalize them for the very reason that the Senator from South Carolina addressed: because we want to make sure that since we don't know when this particular war is going to end, it is kind of hard to define it and everyone is concerned about that, you have got to have review procedures. The greatest review procedure of all is habeas corpus. But there are also requirements in the Executive

order for a periodic review process of whether somebody is still a threat or not a threat, for instance. The war may still be going on, but the person may no longer be a threat.

Should there be an opportunity for the person to say that? Well, there should be. There surely should be a regular review process. The Senator from South Carolina has been very much involved in this kind of due process. But what we put into our bill--which would have been eliminated, by the way, if the Udall amendment had been adopted yesterday--is a requirement that the Executive order's procedures be adopted, because so far we haven't seen that.

Mr. GRAHAM. I would say why I wanted to do that. I want to be able to say--and not to my political advantage. But I want to be able to tell people post-Abu Ghraib, post-early Guantanamo Bay, we have cleaned up our act. We are trying to get the balance we didn't have originally. I want to be able to tell people we no longer torture in America. That is why you and I wrote the Detainee Treatment Act, with Senator McCain, the War Powers Act that clearly bans waterboarding.

I want to be able to tell anybody who is interested that no person in an American prison--civilian or military--held as a suspected member of al-Qaida will be held without independent judicial review. We are not allowing the executive branch to make that decision unchecked. For the first time in the history of American warfare, every American combatant held by the executive branch will have their day in Federal court, and the government has to prove by a preponderance of the evidence you are in fact part of the enemy force. And we did not stop there. Because this could be a war without end, we require an annual review process where each year the individual's case is evaluated as to whether they still maintain a threat or they have intelligence that could be gathered by longer confinement.

What I would say to our colleagues is that we have tried to strike that balance. There are a lot of people who don't like the idea that you give these terrorists Federal hearings and lawyers and all that other stuff. There are a lot of people who don't like the fact that we do have now humane interrogation techniques. But I like that, because I want to win this war on our terms, not theirs. So I couldn't be more proud of this bill.

To my colleagues on the right who want to mandate military custody all the time and you never can read them their Miranda rights, I am sorry, I can't go there. To our friends on the left who want to say the military has no role in this war at home, I am sorry, I can't go there. Military commissions make sense sometimes, sometimes Federal courts make sense.

I will end on this note. This compromise that we have come up with I think will stand the test of time. Unfortunately, most likely radical Islam as we know it today is not going to be defeated in our lifetime, and I hope to have created on my watch as a Senator a legal system that has robust due process, that adheres to our values, but also recognizes we are at threat like any other time in recent memory and allows us to protect ourselves within the values of being an American. I cannot tell you how much I appreciate working with the Senator and Senator McCain, and I think we have accomplished that after 10 years of trying.

Mr. LEVIN. Mr. President, I yield the floor.

 

Senate Floor Debates - Dec 15

On December 15, 2011 Senator Coons began debate on the NDAA by stating that the provisions relating to detainees troubled him greatly. He stated that he believed the text opened the door for detention of US citizens. Senator Durbin then discusses his support for the inclusion of the Feinstein amendments into the legislation. 

After other objections are made by Senator Feinstein, Senator Graham again takes to the floor to argue in favor of the legislation. Senator Graham then argues that the President can target US citizens overseas for assassination, so it is not understandable why US citizens in the homeland cannot be detained indefinitely.

 

Text of Debate

Mr. COONS. Mr. President, today I rise to express my deep concern that the 2012 National Department of Defense Authorization Act provisions pertaining to detainee treatment fail to strike the appropriate, important balance between national security, due process, and civil liberties. Sections 1021, 1022, and 1023 are the latest in a series of legislative proposals that provide ever-narrowing latitude for dealing with terrorism suspects, whether in the U.S. or abroad.

I am concerned, that these provisions take us one small, but significant, step down the road towards a state in which ordinary citizens live in fear of the military, rather than the free society that has marked this great nation since the Bill of Rights was ratified 220 years ago, in 1791.

The new detention authorities thrust upon our military in this bill are an assault on our civil liberties and do not belong on our books. They were not requested by the Pentagon, in fact they have been resisted by the President, the Secretary of Defense, the Attorney General, and the directors of National Intelligence and the FBI. They do not make us safer and, to the contrary, they will create dangerous confusion within our national security community.

Under these sections, a terrorism suspect must be remanded to U.S. military custody, even when that suspect presents no imminent threat to public safety and is being held under suspicion of committing a U.S. crime. The suspect may be held indefinitely. Indeed, if the suspect is transferred to Guantanamo, it may be a practical reality that the suspect must be held indefinitely, thanks to the onerous certification requirements contained in Section 1023. If not sent to Guantanamo, the suspect may be rendered to a foreign power, where he may be subject to coercive interrogation, torture, or death. Or, the individual may simply remain in custody of our own military, waiting for the cessation of an endless conflict against an idea.

As my colleagues from Vermont and Oregon, from Colorado and California, have already said so eloquently, these provisions reflect an unfortunate and unwise shift away from the current law, in which the criminal justice system is presumed to be sufficient for those who commit crimes on U.S. soil. No system is perfect, but the federal criminal justice system is considered by many around the world to be the gold standard for fairness, transparency and reliability. Since 9/11, the civilian criminal process has been successful in securing convictions and lengthy sentences against hundreds of terrorism suspects.

This is compared to just six convictions in military tribunals, and two of these individuals are walking free today. A third, Ibrahim al Qosi, was convicted of being a Taliban fighter. Under his sentence of 2 years, he would be due to be released next summer. But when he serves his sentence, he likely will not be released. Instead, he will be detained until our undefined hostilities against Islamic extremism and terrorism conclude. In other words, he will be detained indefinitely. Criminal process like this is little better than no process at all. It ought to be reserved for the rarest cases where the civilian criminal justice system is not suitable. It should not be made the new standard.

If we are going to short-circuit the criminal justice system, we ought to at least have good reason to do so. At a minimum, I would expect the President, the Attorney General, the Secretary of Defense, or the Director of National Intelligence to make the case that military custody is the only way to appropriately handle terrorists. But that is not what happened here. No one is calling for these new powers. They are being thrust upon our military.

President Obama has said that these provisions will hinder his ability to prosecute the campaign against terrorists. The Attorney General and the Director of National Intelligence have said that these provisions threaten to undermine the collection of intelligence from suspected terrorists.

They don't want these authorities.

The military does not want them either. The Secretary of Defense has said that the provisions will unnecessarily complicate its core mission of protecting our nation and projecting military force abroad. These provisions do not make sense as a matter of defense policy, and, because the meaning of some of the key terms is deliberately unclear, we can not even predict the precise impact that they will have.

In the best-case scenario, we will end up in a situation with minor changes to an existing detainee policy that has already proven to inspire and sustain this and the next generation of extremists who wish to destroy this country. In the worst-case scenario, we make several significant changes that hinder our ability to find and destroy this current generation of extremists.

I do not accept the underlying assumption of these unnecessary new provisions that the threat the United States faces is one that can be defended by more guns, taller walls, and deeper holes that we ``disappear'' people into. In fact, defense from the threats of today and tomorrow called ``asymmetric'' because they do not attempt to meet us on the battlefield with equal capabilities requires a new paradigm, the concept of defense in depth. To address asymmetric threats, including networks of extremists determined to carry out acts of terrorism, law enforcement and the Defense Department must work cooperatively to protect U.S. interests using their respective strengths in authorities and levels of response.

Instead of strengthening our ability to confront asymmetric threats, these unwelcome new authorities reinforce the philosophy that the military is the only preeminent institution of national security, with law enforcement relegated to a limited support role. That may have been an appropriate philosophy for the world in 1961, but it did not help us in 2001, and will not help us in 2021. These new authorities do nothing to change that and will not make us any safer. The only effective comprehensive model for national security is one that strengthens both our law enforcement and military to fight threats within their respective areas of expertise.

Another deeply concerning aspect of the detainee provisions in the Defense Authorization bill is what they say about the ability of the military to detain U.S. citizens. Section 1021 expands the 2001 Authorization of the Use of Military Force to include the authority to detain and hold indefinitely any person, even a U.S. citizen, if the military suspects that such a person has supported any force associated with al-Qaeda.

While I believe it acceptable for lethal military actions to be taken against U.S. citizens abroad who have clearly taken up arms against this Nation, I am concerned about the slow but steady creep of the military into areas that traditionally have been reserved for civilian law enforcement. Testifying yesterday before the Judiciary Committee, FBI Director Robert Mueller said he has serious concerns about the potential future ramifications of introducing military forces into the criminal justice process.

At the local level, it is often difficult to distinguish whether an individual in possession of bomb-making components is a hardened terrorist coordinating with al-Qaeda; is a troubled, dangerous, but affiliated teenager; or is completely innocent of any crime at all. In the rush to ``repel borders'' at the early stages of investigations, mistakes will be made. We need to make sure that these mistakes do not overrun the constitutional protections we all enjoy as Americans.

It is true, as supporters of these provisions have argued, that Section 1021 contains a limitation that the authorization of force does not include the right to hold citizens in violations of their constitutional rights. That is some comfort, but not enough. As I sat in the presiding chair during debate over this bill, I heard my colleagues argue that we are in a time of war and that, during times of war, U.S. citizens have no constitutional protections against being treated as a prisoner of war. Even if there was broad agreement about the constitutional protections citizens enjoy against extrajudicial killing or indefinite detention, who will enforce them? Under this bill, that task would seem to be left to the President and to the military. Were my life or liberty at stake, I would want the benefit of an independent judiciary. So, too, I think would the vast majority of my fellow citizens.

Mr. President, we are in conflict against terrorists. I do not doubt or dispute that. But this is not the first time that has been the case. During the beginning part of the last century, anarchists committed a string of bombings, usually targeting police officers or civilians. In 1901, an anarchist assassinated President McKinley. In the First Red Scare during the early part of the century, a plot was uncovered to bomb 36 leaders of government and industry. During the 1960s and 70s, the Weather Underground declared as its mission to overthrow the U.S. government. Members planted bombs in the Capitol, the Department of State and the Pentagon.

Each of these threats, and others, has before placed an existential fear in the minds of Americans. We have not always acted well. The Sedition Act of 1918, the internment of Japanese Americans during the Second World War, and the House Un-American Activities Committee and Hollywood blacklisting following the war are three notable examples of action, taken in the face of severe threat, which now the vast majority of Americans look back upon with deep regret.

As technology has advanced, so has the ability of the government to reach into our lives, whether through unseen drones and hidden electronic surveillance, omnipresent cameras and advanced facial recognition programs, or unfettered access to our telephone and Internet records.

The advance of technology, however, is not justification for the retreat of liberty, especially not when we have at our disposal a criminal justice system that is up to the task of keeping us safe.

I plan to vote for the Conference Report of the National Defense Authorization Act because I agree with much of what is within it. During a time of war, we cannot allow our military to go unauthorized. We cannot allow our troops to go unpaid. The NDAA provides oversight of and spending limitations for the military. It elevates the head of the National Guard to the Joint Chiefs level, which is necessary to ensure that military leadership adequately considers the unique reserve capacity role now filled by the Guard. The bill will also begin to address the inability of Customs and Border Patrol agents to share information necessary to identify military and other counterfeits at our borders.

Though we were not able to remove the dangerous and counterproductive provisions contained in Sections 1021, 1022 and 1023 from the NDAA today, we are not done trying. I will continue to work with my colleagues to ensure that we maintain the balance between security and liberty.

The PRESIDING OFFICER. The Senator from Illinois.

Mr. DURBIN. Mr. President, I ask unanimous consent that the time for debate on the conference report to accompany H.R. 1540 be extended until 4 p.m., with all other provisions of the previous order remaining in effect; further, that at 4 p.m., the Senate proceed to a vote on the adoption of the conference report; that upon the disposition of the conference report and H. Con. Res. 92, the Senate resume executive session and the consideration of the Christen nomination, as provided under the previous order.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. DURBIN. Mr. President, with this agreement, there will be two votes at 4 p.m. The first will be on the adoption of the Defense authorization conference report and the second vote on the confirmation of the nomination of Morgan Christen to be U.S. Circuit Judge for the Ninth Circuit.

Mr. President, I rise today to discuss the National Defense Authorization Act conference report now pending before the Senate.

I thank my colleague from Colorado, Senator Udall, as well as my colleague from California, Senator Feinstein, for engaging in a spirited and important--perhaps historic--debate during the consideration of this authorization bill on the floor of the Senate. I especially thank Senator Feinstein. It was a pleasure to work with her to insert language which I think moved us closer to a position she and I both share concerning the language in this important bill.

I have the highest respect for the chairman and the ranking member of this committee, Senators LEVIN and MCCAIN, who have worked diligently and hard on a bill which has become a hallmark of congressional activity each and every year, particularly in the Senate. It takes a special effort for them to produce an authorization bill of this complexity and challenge. They do it without fail and they do it in a bipartisan fashion.

For those critics of Congress--and there are many--who look at this bill, you can see the best of the Senate in terms of the effort and the professionalism these two gentlemen apply, along with the entire committee, in bringing this bill to the floor.

This bill does a number of good things for our troops and for my home State of Illinois, and I am thankful to the chairman and the ranking member for those provisions. There is important language about public-private partnerships regarding the U.S. Army that will have special value at the Rock Island Arsenal, where some of the most dedicated and competent civilian individuals continue to serve this country's national security, meeting the highest levels of standards and conduct and performance. They will have a chance to continue to do that work, and it is important they continue to have that chance in this weak economy when so many people are struggling to find jobs.

The legislation provides the Chief of the National Guard with an equal seat at the table with the Joint Chiefs of Staff to ensure the needs of our brave Army and Air National Guard personnel are heard at the highest levels. It makes it easier for reserve units to access mental health services by providing that access during drill weekends. It also provides our men and women in uniform with a much deserved pay increase, which is imperative in light of their heroic service and the state of our economy today.

I must say, though, there are provisions within this bill which still concern me relative to the treatment and detention of terrorism suspects.

First, we need to agree on the starting point, and the starting point should be clear on both sides of the aisle. There are those who threaten the United States, those who would use terrorist tactics to kill innocent people, as they did on 9/11. We are fortunate, through the good leadership of President George W. Bush and President Obama, that we have been spared another attack since 9/11, but vigilance is required if we are to continue to keep this country safe. That is a bipartisan mission. It is shared by every Member of Congress, regardless of their political affiliation.

We salute the men and women in uniform, first, for all the work and bravery they have put into that effort, but quickly behind them we will add so many others in our law enforcement community; for example, those individuals at every level--Federal, State and local--who are engaged in keeping America safe. We salute the executive branch in its entirety, including the Department of Homeland Security, the White House, the National Security Advisors, and all of those who have made this a successful effort.

The obvious question we have to ask ourselves is this: If for 10 years we have been safe as a nation, why is this bill changing the way we detain and treat terrorism suspects?

I will tell you there has been an ongoing effort by several members of this committee and Senate to change the basic approach to dealing with terrorism, to create a presumption that terrorist suspects would be treated first subject to military detention and their cases then considered before military tribunals.

This, in and of itself, is not a bad idea. It could be right, under certain circumstances, but it does raise a question: If to this point in time we have been able to keep America safe using the Department of Justice, law enforcement, and the courts of our land, together with military tribunals, why are we changing?

The record is pretty clear. Since 9/11, more than 400 terrorism suspects have been successfully prosecuted in the courts of America. These are individuals who have been subjected to FBI investigation, they have been read their Miranda rights, they have been tried in our courts in the same manner as those accused of crimes are tried every single day, and they have been found guilty--400 of them--during the same interval that 6--6--have been tried by military tribunals.

Overwhelmingly, our criminal court system has been successful in keeping America safe, but that is not good enough for many Members of the Senate. They are still bound and determined to push more of them into the military tribunal system for no good reason. These people who have been tried successfully when accused of terrorism have been safely incarcerated in the Federal penitentiaries across America, including in my home State of Illinois at the Marion Federal Prison. Not one suggestion has been made that the communities surrounding these prisons nor the prisoners themselves are under any threat. What we have instead is this presumption that isn't borne by the facts or by our experience.

I voted for the Senate version of this bill with the hope that the Members of the Senate and House who were negotiating the final bill would remove some of the detainee provisions that concern me. I want to acknowledge that the conference committee did make some positive changes. But I continue to have serious concerns because provisions in the bill would limit the flexibility of any President in combatting terrorism, create uncertainty for law enforcement, intelligence, and defense officials regarding how they handle suspected terrorists, and raise serious constitutional concerns.

I am especially concerned about section 1022 in the conference report. This provision would, for the first time in American history, require our military to take custody of certain terrorism suspects in the United States. Our most senior defense and intelligence officials have raised serious concerns about this provision. FBI Director Robert Mueller strongly objects to the military custody requirement. For those who need reminding, Robert Mueller served as a Federal judge in California and was appointed to this position as head of the FBI by Republican President George W. Bush. He has been retained in that office by Democratic President Barack Obama. I believe he is a consummate professional who has dedicated his life, at least in the last 10 years-plus, to keeping America safe. I trust his judgment. I respect his integrity.

In a letter to the Senate, Director Mueller says the bill will ``inhibit our ability to convince covered arrestees to cooperate immediately, and provide criminal intelligence.''

He was asked after the conference report whether the changes absolved any of his concerns, and he said he was still concerned. I will go to that in a moment. Director Mueller concluded that the provision I am raising ``introduces a substantial element of uncertainty as to what procedures are to be followed in the course of a terrorism investigation in the United States.''

Considering the source of this concern, the Director of the Federal Bureau of Investigation who has been responsible ultimately for the successful prosecution of 400 suspected terrorists, we should take his concerns to heart.

The Justice Department, which then prosecutes terrorism suspects, shares Director Mueller's concerns. Here is what they said:

Rather than provide new tools and flexibility for FBI operators and our intelligence professionals, this legislation creates new procedures and paperwork for FBI agents, intelligence lawyers and counter-terrorism prosecutors who have conducted hundreds of successful terrorism investigations and prevented numerous attacks inside this country over the past decade.

The supporters of this legislation have responded to these concerns by pointing to the fact that the bill allows the Secretary of Defense to waive the military custody requirement. But the Justice Department says the administrative burdens of obtaining a waiver could hinder ongoing counterterrorism operations. Here is how they explained it:

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

The authors of this legislation say they made changes to the military custody requirement to respond to these concerns raised by Director Mueller and the Department of Justice. But in my view, these changes don't go nearly far enough. They continue to create uncertainty and impose administrative burdens on our counterterrorism professionals whom we depend on to keep us safe.

The changes in the legislation do not change the fundamental premise. They create a presumption that a terrorism suspect arrested in the United States should be transferred to military custody, despite the fact--despite the fact--that the Federal Bureau of Investigation has kept America safe sinceÐ9/11.

I am not alone in my feelings. This morning, an editorial in the Washington Post said:

[These provisions]--while less extreme--are still unnecessary and unwise. ..... [L]awmakers have ..... introduced confusion in the form of directives that threaten to bollix up law enforcement and military personnel when they most need to be decisive.

Why in the world would we create uncertainty and bureaucracy when, with every second that ticks away, American lives can be in danger?

Just yesterday in the Senate Judiciary Committee, FBI Director Robert Mueller testified he is still deeply concerned about section 1022, despite the changes made in this conference report. Here is what Director Mueller said:

Given the statute the way it is now, it does not give me a clear path to certainty as to what is going to happen when arrests are made in a particular case. The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.

That, in and of itself, should give pause to every member of the Senate. When we consider this objection from the Director of the Federal Bureau of Investigation, the lead official charged with combatting terrorism in the United States, shouldn't we take Director Mueller's concerns to heart? Do we want the FBI to have uncertainty the next time they stop and detain a suspected terrorist in the United States?

I want to address another provision, section 1021. I was very concerned that the original version of the legislation would, for the first time in history, authorize indefinite detention in the United States. But we have agreed, on a bipartisan basis, to include language in the bill offered by Senator Feinstein that makes it clear this bill does not change existing detention authority in any way. What it means is, the Supreme Court will make the decision who can and cannot be detained indefinitely without trial, not the Senate.

I believe the Constitution does not authorize indefinite detention in the United States. Some of my colleagues see it differently. They claim the Hamdi decision upheld indefinite detention. It didn't. Hamdi was captured in Afghanistan, not in the United States. Justice O'Connor, the author of the opinion, carefully stated the Hamdi decision was limited to ``individuals who fought against the United States in Afghanistan as part of the Taliban.''

Some of my colleagues also cited the Padilla case, claiming it is a precedent for the indefinite detention of U.S. citizens captured in the United States. But look at what happened in the Padilla case. Padilla is a U.S. citizen who was placed in U.S. custody. The Fourth Circuit Court of Appeals, one of the most conservative in the land, upheld his military detention. But then, before the Supreme Court had the chance to review the Fourth Circuit's decision, George W. Bush's administration transferred him out of military custody, prosecuting him in an article III criminal court. To this day, the Supreme Court has never ruled on the question of whether it is constitutional to indefinitely detain a U.S. citizen captured in the United States. That decision must be decided by the Supreme Court, not by the Senate, thanks to the Feinstein amendment.

I support the inclusion of the Feinstein amendment in this bill. I continue to believe there is no need for this provision overall and that it should have been removed.

I also continue to oppose provisions in the conference report that limit the administration's ability to close the Guantanamo Bay detention facility. Section 1027 of this legislation provides that no detainee held at Guantanamo can be transferred to the United States even for the purpose of holding him incarcerated for the rest of his life in a Federal supermaximum security facility.

There is absolutely no reason for this prohibition. Section 1026 of this legislation provides clearly that the government may not construct or modify any facility in the United States for the purpose of holding a Guantanamo Bay detainee.

Let me bring this closer to home. We have offered for sale in the State of Illinois a prison built by our State that has not been used or opened in its entirety. The Federal Bureau of Prisons has stated they are interested in purchasing it because of the overcrowded conditions in many Federal prisons. We would, of course, like to see that done--not just for the revenue that would come to the State of Illinois but because it would create jobs in my State.

In the course of deliberating it, controversy arose as to whether Guantanamo detainees would be placed in this prison. Initially, the administration said they would, and I supported them. But ultimately it became clear that there was opposition to going forward with this purchase of the Illinois prison if there was any likelihood Guantanamo detainees would be incarcerated at this prison. We have now made it clear--and I wish to make it clear for the record--that despite my personal views on this issue, I believe the law is clear that the Thomson Prison, once under Federal jurisdiction, will not house Guantanamo detainees. That has been a stated policy. It is now going to be a matter of law in this Defense authorization. Regardless of my personal feelings on the subject, it is the governing law, and I will not try to change the situation of Thomson in any way as long as I serve in the Senate when it comes to this important issue.

Unfortunately, some of my colleagues--whom I disagree with--are determined to keep Guantanamo open at all costs. I disagree. When we consider the expense of detention at Guantanamo and the reputation of that facility, I believe the President was right, initially, when he talked about the fact that we needed to, at some point, bring detention at Guantanamo to a close. My feelings are not only shared by the President but also by GEN Colin Powell; former Republican Secretaries of State James Baker, Henry Kissinger, and Condoleezza Rice; former Defense Secretary Robert Gates; ADM Mike Mullen; and, GEN David Petraeus.

There is great irony here. For 8 long years during the previous Republican administration, Republicans on the floor argued time and again that it was inappropriate--some said even unconstitutional--for Congress to ask basic questions about the Bush administration's policies on issues such as Iraq, torture, waterboarding, and warrantless wiretapping. Time and again, we were told Congress should defer to President Bush, our Commander in Chief. Let me give one example.

My friend Senator Lindsey Graham of South Carolina, on September 19, 2007, said:

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.

With a Democratic President, obviously some of my colleagues have had a change of heart. They think it is not only appropriate but urgent for Congress to limit this President's authority to combat terrorism, despite the success we have had since 9/11 under President Bush and President Obama keeping America safe. This is a clear political double standard. It is unnecessary. Look at the track record.

Since 9/11, our counterterrorism professionals have prevented another attack on the United States, and more than 400 terrorists have successfully been prosecuted and convicted in Federal courts. Here are just a few of them: Umar Faruk Abdulmutallab, the Underwear Bomber; Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing; Omar Abdel-Rahman, the so-called Blind Sheik; the 20th 9/11 hijacker, Zacarias Moussaoui; and Richard Reid, the Shoe Bomber--all prosecuted in the criminal courts of this land successfully and safely incarcerated in our Federal prisons. Something which many on the other side refuse to acknowledge, and argue is impossible, has, in fact, happened over and over again over 400 times.

Why do we want to change this system when it is working so well to keep America safe?

The fact that these detainee provisions have caused so many disagreements and such heated debate demonstrates the danger of enacting them into law. We shouldn't impose this kind of uncertainty on law enforcement, defense, and intelligence who are working to protect America. We should not limit the flexibility of the administration to respond to suspected terrorists in the most effective way, and we should not raise serious constitutional questions by requiring the military to detain people in the United States.

I have a letter from the Agents Association of the Federal Bureau of Investigation, dated December 7, 2011, raising many of the same issues which I have raised. I will say we contacted the Agents Association after the conference and asked them their reaction, and they said they still stood behind their statements of December 7, 2011. I ask unanimous consent to have printed in the Record this letter.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Federal Bureau of Investigation Agents Association,

Arlington, VA, December 7, 2011.
Hon. CARL LEVIN,
Chairman, Senate Armed Services Committee, Washington, DC.
Hon. JOHN MCCAIN,
Ranking Member, Senate Armed Services Committee, Washington, DC.
Hon. HOWARD P. MCKEON,
Chairman, House Armed Services Committee, Washington, DC.
Hon. ADAM SMITH,
Ranking Member, House Armed Services Committee, Washington, DC.

DEAR CHAIRMEN AND RANKING MEMBERS: On behalf of the more than 12,000 active duty and retired FBI Agents who are members of the FBI Agents Association (``FBIAA''), I write today to express our concerns about Section 1032 of S. 1867, the National Defense Authorization Act for Fiscal Year 2012. Section 1032 requires that persons detained in connection with incidents of terrorism be held in military custody and leaves critical operational details unresolved. Like many in the federal law enforcement and intelligence communities, the FBIAA is concerned that this language undermines the ability of our counterterrorism experts to conduct effective investigations, Accordingly, we urge the conferees working to reconcile H.R. 1540 and S. 1867 through the conference process to reject Section 1032.

Section 1032 establishes a presumption for military custody for individuals detained in connection with acts of terrorism against the United States. While Section 1032 includes some exceptions and waivers to the military custody requirement, they are limited in scope and could create additional layers of bureaucracy at critical points in our investigations. Injecting this level of uncertainty and delay into terrorism investigations could undermine law enforcement effectiveness. To truly fight terrorism, all of the nation's law enforcement assets should be deployed and enabled to act nimbly. This can only be accomplished if our laws preserve flexibility and prevent unnecessary bureaucracy from hampering law enforcement activities.

As part of the nation's counterterrorism strategy, FBI Agents work in the United States and abroad as an integral part of the intelligence-gathering and interrogation process. These interrogations are often instrumental in obtaining information that is essential to efforts to thwart subsequent acts of terror. The interrogation of detained persons, however, must be adapted to each specific individual and circumstance in order to be effective. Obtaining cooperation or information requires a mix of patience, leverage, and relationship-building that is inconsistent with the language in Section 1032, which under a presumption of military custody would require a waiver early in the process. FBI Agents already work closely with the military and prosecutors to conduct effective investigations, and interjecting a requirement to obtain waivers from the Secretary of Defense, while well-intentioned, risks delays and miscommunications that would not serve the goal of conducting effective investigations,

The FBIAA shares the goal of enacting and adopting policies that protect Americans from terrorism, and we appreciate the difficult task before the conferees working to reconcile H.R. 1540 and S. 1867. To this end, we urge the rejection of any language that risks unnecessarily limiting the flexibility that is essential to adapting our investigations to the circumstances of each investigation. In the interest of national security, please reject Section 1032 in the final National Defense Authorization Act for Fiscal Year 2012. If you have any questions or would like to discuss the FBIAA's views on this issue, please do not hesitate to contact me.

Sincerely,

Konrad Motyka,
President.

Mr. DURBIN. Mr. President, I have a press report that was released today relative to the testimony of Director Robert Mueller of the FBI, which I referenced in my speech. So that his statement will be reported more fully at this point, I ask unanimous consent to have printed in the Record the press report from Politico.

There being no objection, the material was ordered to be printed in the Record, as follows:
[From www.politico.com, Dec. 14, 2011]

On National Defense Authorization Act, Robert Mueller Not Satisfied
(By Josh Gerstein)

FBI Director Robert Mueller said Wednesday said he remains concerned that a defense bill containing provisions about military custody for terrorism suspects could interfere with the FBI's ability to investigate terrorist incidents and interrogate those believed responsible.

On Monday, a House-Senate conference committee announced a revised version of the National Defense Authorization Act that lawmakers said addressed many of the concerns that led White House officials to threaten a veto. However, at a Senate Judiciary Committee hearing Wednesday morning, Mueller said he remains worried about aspects of the bill.

``The drafters of the statute went some distance to resolving the issue related to our authority but the language did not really fully address my concerns. .....'' Mueller said during questioning by Sen. Dianne Feinstein (D-Calif.), who opposes the detainee-related language in the bill. ``I was satisfied with part of it with regard to the authority, I still have concerns and uncertainties that are raised by the statute.''

Mueller said he fears that the legislation would muddle the roles of the FBI and the military.

The bill ``talks about not interrupting interrogations, which is good but gaining cooperation is something different than continuing an interrogation,'' Mueller said. ``My concern is that ..... you don't want to have FBI and military showing up at the scene at the same time on a covered person (under the law], or with a covered person there may be some uncovered persons there, with some uncertainty as to who has the role and who's going to do what.''

Mueller said later that he worries confusion caused by the legislation could affect the FBI's ability to build rapport with suspects.

``Given the statute the way it is now, it does not give me a clear path to certainty as to what is going to happen when arrests are made in a particular case. And the facts are gray as they often are at that point,'' the FBI director said under questioning by Sen. Chris Coons (D-Del.) ``The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.''

Backers of the defense bill say it will improve intelligence collection by making military custody the default for certain terrorism suspects. President Barack Obama has established civilian custody and courts as the default for terrorism cases, with the option to direct them to military commissions when the Justice and Defense departments deem it appropriate.

Since the conference bill was unveiled Monday, the White House has been mute about whether the changes to the bill are enough to win Obama's signature or whether he plans to carry through with the veto threat.

Mr. DURBIN. I yield the floor.

The PRESIDING OFFICER. The Senator from California is recognized.

Mrs. FEINSTEIN. Mr. President, I thank the Senator from Illinois for his very eloquent remarks; also, the Senator from Colorado, Mr. Udall, whom I had the pleasure of hearing from my office. I think they have encapsulated the situation we find ourselves in very well.

Mr. President, I wish to follow up on the detention authorities in the Defense Authorization bill and announce that today I am introducing legislation to clearly state that citizens apprehended in the United States shall not be indefinitely detained by the military.

This new legislation is called the Due Process Guarantee Act of 2011. I am joined by Senator Leahy, the chairman of the Judiciary Committee, to which this bill will go, Senator Lee, a member of that committee, Senator Kirk, Senator Mark Udall, Senator Paul, Senator Coons, and Senator Gillibrand. I thank them for being original cosponsors of this bipartisan legislation.

In sum, the Due Process Guarantee Act we are introducing will add to another major law called the Non-Detention Act of 1971, which clearly stated:

No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.

The new legislation we intend to introduce will amend this Non-Detention Act to provide clearly that no military authorization authorizes the indefinite detention without charge or trial of U.S. citizens who are apprehended domestically. It also codifies a ``clear statement rule'' that requires Congress to expressly authorize detention authority when it comes to U.S. citizens and lawful permanent residents for all military authorizations and similar authorities.

We cannot limit the actions of future Congresses, but we can provide that if they intend to limit the fundamental rights of U.S. citizens, they must say so clearly and explicitly.

I am very pleased to add that Senator Durbin will also cosponsor this legislation.

Lawful permanent residents are included in this bill we will introduce because they have the same due process protections as citizens under the Constitution. In this bill, the protections for citizens and lawful permanent residents is limited to those ``apprehended in the United States,'' excluding citizens who take up arms against the United States on a foreign battlefield.

I strongly believe constitutional due process requires that U.S. citizens apprehended in the United States should never be held in indefinite detention. That is what this legislation would accomplish, so I look forward to working with my colleagues, especially Chairman Leahy on the Judiciary Committee, to move this bill forward.

I note the Senator from Illinois, Senator Kirk, is on the floor of the Senate to speak about this bill as well.

Our current approach to handling these suspects in Federal criminal courts has produced a strong record of success since the 9/11 attacks. We would be wise to follow the saying, ``If it ain't broke, don't fix it.''

Our system is not broken. We thwarted attempted terrorist acts. We have captured terrorists, interrogated them, retrieved actionable intelligence from them, prosecuted them, and locked them up for lengthy sentences--in most cases for the rest of their lives.

Both Senator Udall and Senator Durbin pointed out Director Mueller's testimony before the Judiciary Committee yesterday. This is relevant because it had been said that the Director of the FBI was satisfied with the language of the conference report of the Defense authorization bill. When Director Mueller was asked the question yesterday, Are you satisfied with the language, in so many words, he said, not quite. To quote him, Director Mueller said:

Given the statute the way it is now, it doesn't give me a clear path to certainty as to what is going to happen when arrests are made in a particular case.

He warned:

The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.

I am concerned about how these provisions will be implemented once they are enacted into law, so I will be watching carefully to ensure that they do not jeopardize our national security.

Finally, I want to explain, as the sponsor of the Feinstein compromise amendment, No. 1456, that the Defense authorization bill should not be read to authorize indefinite detention of U.S. citizens captured inside the United States or abroad, lawful resident aliens of the United States captured inside our country or abroad, or any other persons who are captured or arrested in the United States.

On page 655 of the conference report, the compromise amendment, No. 1456, that passed the Senate by a vote of 99 to 1, reads this way, and this is in the conference report of the Defense authorization bill:

Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, or lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

What does this mean? This means we have agreed to preserve current law for the three groups specified, as interpreted by our Federal courts, and to leave to the courts the difficult questions of who may be detained by the military, for how long, and under what circumstances.

And the Due Process Guarantee Act will clarify that citizens and lawful permanents cannot be detained without charge or trial if they are apprehended domestically.

I interpret current law to permit the detention of U.S. citizens as ``enemy combatants,'' consistent with the laws of war, only in the very narrow circumstance of a citizen who has taken an active part in hostilities against the United States and is captured outside the United States in an area of ``active combat operations,'' such as the battlefields of Afghanistan. This was the Supreme Court's narrow holding in Hamdi v. Rumsfeld in 2004.

I am sorry to say that Hamdi has been mischaracterized in this body. Whether Congress should grant the President more expansive powers of detention or act to curtail the powers identified by the Supreme Court in Hamdi is a question that Congress will continue to debate in the future. And we introduced the Due Process Guarantee Act to help clarify current law: that citizens and lawful permanents cannot be detained without charge or trial if they are apprehended domestically.

I would like to point out the errors in the legal analysis by those who would interpret current law, or this Defense Authorization Act, to authorize the indefinite detention of U.S. citizens without charge or trial, irrespective of where they are captured or under what circumstances.

Let's turn to the Supreme Court's 2004 opinion in Hamdi v. Rumsfeld, which has been incorrectly cited by others for the proposition that the 2001 AUMF permits indefinite detention of American citizens regardless of where they are captured.

Hamdi involved a U.S. citizen, Yaser Esam Hamdi, who took up arms on behalf of the Taliban and was captured on the battlefield in Afghanistan and turned over to U.S. forces. The Supreme Court's opinion in that case was a muddled decision by a four-vote plurality that recognized the power of the government to detain U.S. citizens captured in such circumstances as ``enemy combatants'' for some period, but otherwise repudiated the government's broad assertions of executive authority to detain citizens without charge or trial.

In particular, the Court limited its holding to citizens captured in an area of ``active combat operations'' and concluded that even in those circumstances, the U.S. Constitution and the due process clause guarantees U.S. citizens certain rights, including the ability to challenge their enemy combatant status before an impartial judge. The plurality's opinion stated:

It [the Government] has made clear, however, for the purposes of this case, the ``enemy combatant'' that it [the Government] is seeking to detain is an individual who, it alleges, was ``part of or supporting forces hostile to the United States or coalition partners'' in Afghanistan, and who ``engaged in an armed conflict against the United States'' there. Brief for Respondents 3.

That was all a quote from the plurality opinion, and it continues:

We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

The opinion goes on to say at page 517:

We conclude that the AUMF is explicit congressional authorization for the detention of individuals--

And here it is--

in the narrow category we describe. ..... And the narrow category they describe is one who is part of forces hostile to the U.S. on the battlefield of Afghanistan. Indeed, the plurality later emphasized that it was discussing a citizen captured on the battlefield. In responding to Justice Scalia's dissenting opinion, the plurality opinion says:

Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone.

The plurality italicized and emphasized the word ``foreign'' in that sentence.

Thus, to the extent the Hamdi case permits the government to detain a U.S. citizen until the end of hostilities, it does so only under a very limited set of circumstances; namely, citizens taking an active part in hostilities who are captured in Afghanistan and who are afforded certain due process protections, at a minimum.

It is also worth noting that amid lingering legal uncertainty regarding whether the government had the authority to detain Hamdi, the Government--this was the Bush administration--saw this and released Hamdi to Saudi Arabia on the condition that he relinquish his U.S. citizenship.

As a result, I don't regard the Supreme Court's decision in Hamdi as providing any compelling support for broad assertions of legal authority to detain U.S. citizens without trial. Certainly, the case provides no support for the indefinite detention of citizens captured inside the United States.

Let me go back to something. In 1971, the Congress passed, and Richard Nixon signed into law, a Non-Detention Act to preclude this very possibility. That act was intended in large measure to put the wrongs of Japanese internment during World War right. It provides simply:

No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.

I very much agree with the Second Circuit Court of Appeals, which held in the case of Padilla v. Rumsfeld that:

[W]e conclude that clear congressional authorization is required for detentions of American citizens on American soil because ..... the Non-Detention Act ..... prohibits such detentions absent specific congressional authorization.

The Second Circuit went on to say that the 2001 AUMF ``is not such an authorization and no exception to [the Non-Detention Act] otherwise exists.''

The Fourth Circuit came to a different conclusion when it took up Padilla's case, but its analysis turned entirely on disputed claims that ``Padilla associated with forces hostile to the U.S. Government in Afghanistan'' and, ``like Hamdi,'' and this is a quote, ``Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi.''

To help resolve this apparent dispute between the circuits, I believe we need to pass the Due Process Guarantee Act that my cosponsors and I are introducing today.

I would like to add Senator Bill Nelson of Florida as a cosponsor.

The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so ordered.

Mrs. FEINSTEIN. This is important. We spent about half a day on this floor discussing this with Senator Levin, with Senator McCain, in the cloakroom with Senators LEE and PAUL, as well as with a whole host of staff both from the Armed Services Committee as well as the Intelligence and Judiciary Committees. Here is the conclusion: I, and many of my colleagues and legal scholars, believe neither the AUMF nor the provisions of the National Defense Authorization Act that we are considering today constitute such an express authorization to detain American citizens.

As I previously mentioned, I sponsored compromise amendment No. 1456 to the Defense bill when it passed the Senate and that amendment has now become section 1021(e) of the conference report specifically to prevent misrepresentations from providing Congressional intent to support the detention of Americans.

Ex parte Quirin is a 1942 Supreme Court case that upheld the jurisdiction of a U.S. military tribunal that tried several German saboteurs captured inside the United States during World War II and brought to stand trial before the hastily convened military tribunal.

One of the saboteurs, Herbert Hans Haupt, was a U.S. citizen. However, the question at issue in Quirin was not whether a U.S. citizen captured inside the United States could be held indefinitely under the laws of war without trial, but rather, whether such an individual could be held in detention for a matter of weeks pending trial by military commission.

Haupt was, in fact, tried, convicted and sentenced to death within weeks after his capture. Moreover, the Quirin opinion predates the Geneva Conventions, a milestone of rather substantial significance in the development of the law of war, and the decision also predates the Non-Detention Act of 1971.

As Justice Scalia said in his dissent in Hamdi: ``[Quirin] was not [the Supreme] Court's finest hour.''

The only recent case of a U.S. citizen captured inside the United States and held as an enemy combatant under the law of war is that of Jose Padilla.

However, amid considerable legal controversy regarding the legality of his detention, Padilla was ultimately transferred out of military custody and tried and convicted in a civilian court.

Padilla, a U.S. citizen, was arrested in Chicago on May 8, 2002 on suspicion of plotting a dirty bomb attack in the United States. He was initially detained pursuant to a material witness warrant based on the 9/11 terrorist attacks.

On June 9, 2002, two days before a Federal judge was to rule on the validity of continuing to hold Padilla under the material witness warrant, President Bush designated him an ``enemy combatant'' and transferred him to a military prison in South Carolina for detention pursuant to the law of war without charge or trial.

Padilla subsequently filed a petition for a writ of habeas corpus in Federal court challenging the legality of his continued detention and an extended series of appeals ensued.

Facing an impending Supreme Court challenge and mounting public criticism for holding a U.S. citizen arrested inside the U.S. as an enemy combatant, President Bush ordered Padilla transferred to civilian custody to face criminal conspiracy and material support for terrorism charges in Federal court. The criminal charges against Padilla were not, however, related to Padilla's alleged involvement in a dirty bomb plot, which had been the basis for his prior detention as an enemy combatant.

Padilla was subsequently convicted and sentenced to 17 years in prison. That 17-year sentence has since been vacated and is under reconsideration. Thus, the Padilla case is at best inconclusive as to the President's authority to detain a citizen captured inside the United States as an ``enemy combatant.'' More likely, it evidences the folly of such overreaching assertions of Executive power.

Despite my longstanding opposition to the detention provisions in this bill, I will be voting yes on this important legislation. The main reason I support the defense authorization bill is because it ensures our troops deployed around the world--especially those in Afghanistan--have the equipment, resources, and training they need to defend this Nation.

I wish to sum up by quoting Justice Sandra Day O'Connor, writing for the plurality in Hamdi. Here is what she wrote:

As critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.

This is what Senator Kirk, Senator Lee, Senator Paul, and those of us on the Democratic side who have worked on this truly believe. What about the person captured on the corner who looks a certain way, who gets picked up and put into detention? Does that person have the right to a charge and to a trial? Our system of due process and the Constitution of the United States say, simply, yes.

I look forward to working with my colleagues to pass the due process guarantee bill.

I wish to defer to the distinguished Senator from Illinois, Senator Kirk.

The PRESIDING OFFICER. The Senator from Illinois.

Mr. KIRK. Madam President, I wish to rise in support of the Feinstein-Leahy-Lee legislation. We are taking up the Defense authorization bill with the controversial provisions in it, somewhat protected already by the Feinstein language. But this legislation locks in a fundamental truth that I think is important for our country, and that is as a U.S. citizen inside the territory of the United States, you have inalienable rights under our Declaration of Independence. We are protected pursuant to the U.S. Constitution.

Our Constitution says all crimes, and prosecution thereof, shall be pursuant to a grand jury indictment. There is no exception in the Constitution for that. The Constitution grants a U.S. citizen a trial in the State in which the crime was committed, I think clearly envisioning a civilian trial. We, as Americans, have a right to a speedy trial, not indefinite detention.

We as Americans have a right to a jury of our peers, which I would argue is not enlisted or military personnel sitting in a jury. You cannot search our persons or

our places of business or homes without probable cause under the Bill of Rights. You cannot be deprived of your freedom or your property without due process of law, and that, I would say, is not indefinite detention. All due process guarantees under law are granted to you by the 14th amendment. I would actually argue that no statute and no Senate and no House can take these rights away from you.

It is very important to pass this legislation to prevent needless litigation against constitutional rights, which I regard already as your birthright as an American citizen. It is very important to talk about what the Feinstein legislation does and does not do. I think it is very narrowly crafted to defend the rights of American citizens and resident aliens inside the United States. We agree that aliens who are engaged or captured on foreign battlefields can be subjected to rough justice, battlefield outcomes, or detention and prosecution by the U.S. military.

We even agree that a U.S. citizen such as Anwar al-Awlaki, who took up arms against the United States from his terrorist base, Yemen, is then the proper subject of U.S. military action, and he received that proper attention. Illegal aliens, even inside the United States--we are not engaging on that subject. If they are part of jihad or other warfare against the United States, they can be subjected to military jurisdiction. But with regard to U.S. citizens and resident aliens on U.S. soil, I would argue that the entire point of the Department of Defense is to defend our constitutional rights and to make sure they are honored. If you read the Constitution--and I would urge all Members in this battle to reread it; it is only 5,000 words long--you will see that the rights provided are without qualification and are part of your birthright.

What is the first thing a U.S. Senator, a Member of Congress, or the President does? They swear an oath to the Constitution of the United States. What is the first act any American or resident alien joining the U.S. military does? They don't swear allegiance to a President or a leader or a territory; they swear allegiance to the U.S. Constitution, and that is the mission which they are undertaking to protect.

We see a number of cases cited--as I noted, Ex parte Quirin, the German spy, or U.S. nationals who landed in Long Island and were summarily executed under U.S. military justice. I would say at least they were part of a foreign military and trained in that mission and trying to carry out that mission when that rough justice was put in place.

With regard to Jose Padilla, he was a U.S. citizen--sometimes when I was at the State Department, people would ask me who our Ambassador to Puerto Rico was. Puerto Rico is part of the United States. He was a full member of the country, with U.S. citizenship. He was arrested at O'Hare Airport, but pursuant to executive action was immediately taken into military custody and held in a brig. I regard all of his constitutional rights were then violated. In the subsequent litigation, I think eventually the Bush administration realized they were about to lose this case, which is why they kicked him back into civilian court.

In the Hamdi case, which is so often cited, even there we at least had a foreign connection, foreign training as part of another battlefield. What we are talking about here is very narrow, to make sure at the very least that you, as a U.S. citizen in U.S. territory, are not going to be subjected to indefinite military detention and military justice, that all of your constitutional rights are adhered to.

I would simply ask this--also as a reserve naval officer--what U.S. military officer wants the duty to roll in, for example, to Peoria, IL, and arrest an American citizen for actions that citizen has only done in the United States, not connected to a foreign military or training, and then to put that person through military detention and justice? I would say for the long-term interest of the U.S. military and to protect the U.S. military, we do not want to give that mission to our Armed Forces. A point of common sense should prevail here as well.

We spend billions of dollars on the Department of Homeland Security, which is fully under the fourth and sixth amendments of our constitutional protection. We have an extraordinarily able FBI, ATF, DEA, et cetera, the whole panoply of Federal law enforcement, which, quite properly, is not under the administration of the Pentagon but is instead under the administration of the Department of Justice. We have a vast array of State and local law enforcement all dedicated to protecting the United States but, most importantly, to uphold the very oaths they also take in their first minute as law enforcement officers to protect the U.S. Constitution.

So on this day that we pass the NDAA, which has a murky provision regarding this--somewhat protected by the Feinstein legislation--it is very important for us then to rally behind the further legislative protections here. I think this is strong, bipartisan legislation. I commend Senator Feinstein, Chairman Leahy, and Senator Lee for bringing it forward. No. 1, this will help protect the U.S. military from missions that it should not undertake. No. 2, we will make sure there is clear delineation between the Department of Justice, Homeland Security, and its whole panoply of agencies, and our military, which protects our rights from threat overseas. But, most importantly, No. 3, to defend the U.S. Constitution, your birthright as an American citizen to have these rights to make sure we do not subject any U.S. citizen apprehended inside the United States to indefinite detention under U.S. military authority, knowing they have inalienable birthrights that were granted to them by the U.S. Constitution.

With that, I commend the Chair.

Mr. KIRK. I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The assistant bill clerk proceeded to call the roll.

Mr. KIRK. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. The Senator from Illinois.

Mr. KIRK. Madam President, we have two other provisions that are in the National Defense Authorization Act that I want to briefly mention.

First, we have a modified Brooks amendment in the conference report that says if there is any plan to deliver classified missile defense data to the Russians, the administration has to have a 60-day clock expire and then certify to the Congress that none of this data could end up in the hands of third parties, particularly the Iranians or Syrians. I wish to put the administration on notice that that certification probably cannot be made. Dmitry Rogozin, the lead negotiator on the missile defense for their government, has a close and continuing relationship with Iran. He is going to Iran next month. When we see the intelligence sharing and cooperation on missiles and on other weaponry, but especially discussions about a second nuclear reactor in Iran, I think we should all realize that any classified data on U.S. missile defense going to the Russians would be given to the Iranians.

Remember, in missile combat between enemies of the United States and ourselves, everything would be over potentially in a matter of hours. If the Russians accomplish by diplomacy what they have failed to do by espionage, which is getting critical details of U.S. missile defense, and especially missile defenses of Poland and other key allies, we give only a few minutes to a few hours to the U.S. commander to be able to diagnose the problem, understand how he has been penetrated or fooled, and to correct that.

I think that weakens the defenses of the United States significantly.

I had a hold on the nominee for the U.S. Ambassador to Moscow, Michael McFaul. Because of the passage of the modified Brooks amendment and a written letter of assurances given to me by the administration, I have now lifted that hold. I will be supporting his nomination also because he will be good in working with the opposition and human rights communities in Russia.

But I think everyone is now on notice that we should not move forward with any plan to provide classified missile defense data to Russia because it will be shared with the Islamic Republic of Iran, and that is one of the principal threats for which the U.S. and NATO missile defenses are arrayed against.

A second provision which is in the National Defense Authorization Act concerns Iran itself. Senator Menendez and I teamed up on an amendment that also says: If you do business with the Central Bank of Iran, you may not do business with the United States. But we provided critical flexibility to the administration. The amendment is not imposed for weeks, if not months, and two critical waivers are put in the amendment which say, No. 1, if we find a critical shortage in oil markets because of Iran's leading role, sanctions could be delayed if not suspended. Also, there is a general national security waiver put in if something unexpected happens. But, in general, the rule goes forward that we are moving forward on a comprehensive plan to collapse the Central Bank of Iran.

Despite Secretary Geithner opposing the Menendez-Kirk amendment, this body voted 100 to 0 to support that amendment because we know of the International Atomic Energy Agency's report that they may be getting close to having enough fissile material for a nuclear weapon. We know of Iran's support for Hezbollah and Hamas. We know of their oppression of minorities, especially 330,000 Baha'is, who have been prohibited from contracting with the Iranian Government. Kids are not allowed to be in university. We even know of one poor Iranian actress who was sentenced to 90 lashes, later suspended, for simply appearing in an Australian film without a head dress.

The time for action on Iran is now. With the passage of the National Defense Authorization Act and the signature that we now expect from the President, a set of clocks begins, 60- and 180-day clocks. I will be teaming with Senator Menendez and others--in fact, with the entire U.S. Senate that supported this--to make sure we have the toughest action possible to collapse the Central Bank of Iran, which the Treasury Department noted is the central money launderer for that government to support terror and nuclear proliferation.

With that, I yield the floor. Actually, I yield to my colleague from New Hampshire.

The PRESIDING OFFICER. The Senator from New Hampshire.

Ms. AYOTTE. Madam President, I rise today in support of the National Defense Authorization Act. In particular, I wish to speak briefly about the detainee provisions contained in the conference report.

I have spoken many times over the last few months about this issue, but due to the importance of these issues--and I think because of some of the unfortunate mischaracterizations we have heard about the bipartisan compromise that passed this body already overwhelmingly and came out of the Armed Services Committee overwhelmingly--I wanted to come to the floor to make some closing points on this.

I would like to start with this proposition: No member of al-Qaida, no terrorist, should ever hear the words ``you have the right to remain silent.'' That fundamental principle is at the heart of the issue we confronted in the Armed Services Committee in addressing the detainee provisions that are contained within the Defense authorization report. The central issue is, how do we best gather intelligence to protect our country from future attacks?

It is common sense that if we tell a terrorist they have the right to remain silent, they may exercise that right. What if they do so and they have additional information about future attacks on our country or, as in the case of the so-called Underwear Bomber--which, unfortunately, in my view, has been cited by some of my colleagues as a success--if that event had been part of a series of events such as the events that occurred on 9/11 where we were attacked on our own soil, what would we have lost? After 50 minutes, the so-called Christmas Bomber was told he had the right to remain silent and he exercised that right and we did not get to question him again until 5 weeks later, after law enforcement officials tracked down his parents in another country and convinced him to cooperate. That is not a good policy to gather intelligence to protect our country, and that is at the heart of what we are trying to address on a bipartisan basis in the Defense authorization bill.

We have to ask ourselves: The events of 9/11, were they acts of war or were they a crime against our country? I firmly believe we are at war with members of al-Qaida; that what happened on September 11 was an attack against the United States of America. Innocent Americans were killed not because of what they did but because of what we believe in and what we stand for as a country.

So when I hear some of my colleagues suggest there are problems with the detainee compromise that was achieved on a bipartisan basis in this body--because we have basically said, if a foreign member of al-Qaida comes to the United States of America, seeks to commit another 9/11 against us, seeks to attack our country or its citizens, that the presumption will be military custody. That those provisions are misguided in some way deeply troubles me. If this wasn't an act of war, then I don't know what is. We need to make sure we treat enemies of our country for who they are and make sure they are not read their Miranda rights.

So in this bipartisan compromise we said there is a category of individuals--members of al-Qaida or associated groups--who want to come to America to attack us or our allies and for whom, yes, there is a presumption of military custody. That way they don't have to be read their Miranda rights or be provided the rights of our civilian system.

We also address the administration's concerns by giving them a national security waiver, by allowing our law enforcement officials the flexibility to come up with the procedures on how to implement the provisions of this bill.

I wish to address what I heard from FBI Director Mueller yesterday, just to be clear on the record, because yesterday FBI Director Mueller raised concerns about these detention provisions saying there is a possibility that looms that we will lose opportunities to obtain cooperation from individuals we have been able to obtain cooperation from in the past.

Well, I am concerned because when FBI Director Mueller came to a group of us, including the chairman of the Armed Services Committee and Ranking Member McCain, he raised operational concerns about this provision, and we said we want to address those concerns. So in the final conference report there is language that was given to us by the FBI to address their operational concerns. It was included in this bill without a comma changed.

So it makes me concerned when we put their language in to address their concerns, saying nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with respect to a covered person regardless of whether such covered person is held in military custody.

So I say to Director Mueller: We put your language in directly, and it makes me concerned when I hear, in my view, what are political viewpoints rather than what is the reality of what is in this bill, which will allow the FBI to continue its work and will allow for us to hold in military custody those who are seeking to attack our country and will ensure that Miranda rights do not have to be given if that is the best investigative way to go forward to protect our country.

I see my colleague, the Senator from South Carolina, on the floor. I wish to ask him a question about the bill and the detainee provisions, particularly about the authorization for the use of military force. I have heard some people on the floor of the Senate--including the Senator from Colorado, the Senator from Illinois, and the Senator from California--express concerns about the fact that this bill reaffirms the authority of the President of the United States to detain an American citizen who has joined with al-Qaida and who has, as a member of al-Qaida or an associated force, joined arms against our country and sought to kill Americans.

I wish to ask the Senator from South Carolina about this provision and why it is important for our country.

Mr. GRAHAM. I thank the Senator from New Hampshire who has been a great leader on this issue.

Let me just tell my colleagues what drives my thinking. I think we are at war--I don't think it, I believe it. I hope my colleagues believe it too, and I know America is part of the battlefield because the enemy would like to destroy our country.

If we capture an al-Qaida operative overseas, does anybody in this body suggest that we should give them a lawyer or read them their rights? In World War II, if we had captured a Nazi soldier overseas and started saying they had the right to remain silent and we would give them a lawyer, even though Miranda didn't exist at the time, people would have run us out of town.

So if we believe we can kill an American citizen who has joined al-Qaida--the Awlaki case, where the President of the United States made an executive decision under the rule of the law, not through a court decision, to target an American citizen who had aligned themselves with the enemy--then if we can kill them, which is pretty indefinite, why can't we capture and hold them?

Now, that would be the dumbest thing in the history of the world for a nation to say: We all acknowledge the executive branch's power to target an American citizen who has aligned themselves with the enemy. We can kill them overseas, we can capture them overseas, we can interrogate them about what they know about future attacks, but when they get here we have to treat them as a common criminal.

I think what we share, I say to the Senator from New Hampshire, is that we think al-Qaida operatives, citizens or not, are not common criminals. We think they are crazy people, warriors, bent on our destruction, who would blow themselves up just as quickly as they would blow you up, and they don't care if they blow themselves up. The only reason the Christmas Day Bomber didn't kill a bunch of people is because his shoe didn't go off. The only reason the Times Square Bomber didn't kill a bunch of people is because the bomb didn't go off.

If you are an American citizen and you want to help al-Qaida kill Americans and destroy your own country, here is what is coming your way. If you happen to be listening to this debate, please understand the law as it is today and as it is going to be after this bill is passed: We are at war. The authorization to use military force passed by the Congress right after the attacks against this Nation designates al-Qaida as a military threat, not a common criminal threat, so we apply the law of war. There are two legal systems at play: domestic criminal law that well serves us as a nation to deal with crime--even the worst person, the worst child abuser gets a lawyer and is presumed innocent. Believe it or not, war criminals get lawyers and are presumed innocent.

I am proud of both systems, but the law enforcement model doesn't allow us to hold someone for a period of time to gather intelligence. Under the law enforcement model, once we capture someone, we have to start reading them their rights and providing them with a lawyer. Under the law of war model, we can hold someone who is part of the enemy force and gather intelligence.

This is not the first war where American citizens have sided with the enemy. In the In re Quirin case, a World War II case where American citizens aided Nazi saboteurs, here is what the Court said: There is no bar to the Nation holding one of its own citizens as an enemy combatant. That has been the law for decades.

So if it made sense to hold an American citizen who was helping the Nazis under military authority because they were helping a military enemy of the Nation to gather intelligence, why in the world wouldn't it make sense to hold somebody who has joined with al-Qaida to gather intelligence about the next attack?

Let me give an example of what we may face. Homegrown terrorism is on the rise.

The Internet is out there. It is a good thing and a bad thing. But the idea of people getting radicalized and turning against their own country is a growing threat.

So the likelihood in the future of someone getting radicalized--an American citizen here at home going to Pakistan, getting educated in one of these extremist madrassas, coming back home, getting off the plane at Dulles Airport, coming down to the Mall and starting to shoot American citizens and tourists alike--is very real.

What this legislation does is it says from the Congress's point of view we recognize the person who is aligned with al-Qaida is not a common criminal, that we expressly authorize the indefinite detention of someone who has joined al-Qaida operations.

Why is that important? Don't you think most Americans, I say to the Senator, would be offended if after the person who went on a rampage in the Capital to kill American citizens, to kill people in America, was captured, we could not question them about: Is there somebody else coming? We would have to say: You have the right to remain silent. Here is your lawyer.

What we should do with that person who went to Pakistan and got radicalized and wants to come back and kill us all is hold them in military custody, as we have done in every other war, and find out all we can about future attacks and what they know. Because we are not fighting a crime; we are fighting a war. That has been the law, according to the Supreme Court, for decades, and all we are doing in Congress is saying, statutorily: We recognize the authority of this President and every other President to hold an enemy combatant for intelligence-gathering purposes indefinitely, whether they are captured at home or abroad, because that only makes logical sense. The idea of criminalizing the war and not being able to gather intelligence will put our country at risk.

Let me say this about the system: No one can be held as an enemy combatant under the law we have constructed without having their day in Federal court. So do not worry about going to a tea party or a moveon.org rally or an Occupy Wall Street rally and somebody holding you as a political prisoner under this law. The only people who can be held under military custody for an indefinite period are ones who have been found to have associated with al-Qaida in an overt way, and the government has to prove that to a Federal judge. If the Federal judge does not believe the government has made their case, the person is released. If the Federal judge says to the U.S. Government: You have convinced me that the person in front of me is cooperating and has joined al-Qaida and is overtly engaged in hostilities against the United States. I hereby authorize to you to hold that person to gather intelligence, how long can you hold them? As long as it takes to make us safe.

Here is what the law does. Every year, the person being held as an enemy combatant has an annual review process where the experts in our government look at the threat this person possesses, whether we have more intelligence to be attained, and there is a legal process to review ongoing detention.

Here is what some of my colleagues would say: Wait a minute. You cannot do that. We are going to say, as a Member of Congress, that at an artificial date you have to let that person go or try them? A lot of these cases will be based on intelligence that may not go to an article III court. We may have to compromise our national security. We can prove to a judge they are a member of al-Qaida, but we are not going to take them to the criminal court because that is not in our national security interest.

The key fact is, no one is held as an enemy combatant without judicial review. Once you are determined to be an enemy combatant, then we are going to apply the law of war, as we have for 200 years. The law of war says: No nation has to let an enemy prisoner go or prosecute them--because we are not fighting a crime; we are fighting a war.

If you are an al-Qaida operative, you could get killed, even if you are an American citizen, by assisting the enemy at home or abroad. So do not join al-Qaida because you could lose your life. If you do get captured, you can be held indefinitely under the law of war because you have committed an act of war.

Ms. AYOTTE. Would the Senator from South Carolina yield for a question?

Mr. GRAHAM. I am pleased to.

Ms. AYOTTE. Isn't it true that included within the Defense authorization language in the detainee provisions is that:

Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

In other words, what is the law today--as you just described it--we are reaffirming in this bill. But we are not adding or subtracting from the President's authority that he has, as the Commander-in-Chief of our country, to protect our country against members of al-Qaida.

Mr. GRAHAM. The Senator is correct.

But here is what we are doing. Here is what Lindsey Graham is doing, and Carl Levin, and an overwhelming number of the Members of this body are about to do. We are about to pass a defense authorization bill that increases military pay, that has a lot of great things. But we are about to say as a Congress: We believe we are at war, and we reject the idea--the Libertarian idea; who are great Americans--that if you get to America somehow, it is no longer a war.

I think the Libertarians agree that if you catch an al-Qaida operative, including an American citizen, overseas, we do not have to read them their rights, and we do not have to give them a lawyer. But somehow, the perverse logic is, if they make it to America to attack us, whether they are a citizen or not, somehow they get a special deal.

All of us who are voting for this bill say that is crazy; we are at war. For no other war has that been the case. If you would have suggested in 1942 that the American citizen helping the Nazis commit sabotage against the United States had a special status and could not be treated in the fashion of a military threat to the country, they would have run you out of town.

So we are 10 years out from the attacks of 9/11, and here is what we are rejecting: We are rejecting the criminalization of the war, but we are doing it in a smart way. We are not telling the executive branch they have to go into a law-of-war detention system. We are just saying that is available to them. We are not telling the executive branch they have to try people in military commissions. We

are just saying to them that is available for noncitizens. What we are telling the executive branch is that we believe we are at war, and that narrow group of people--thank God it is a narrow group--who join al-Qaida do not have special privileges when it comes to destroying our homeland; that if they make it to America, the closer they get to us, the more tools we should have available to protect ourselves.

So we are on record--at least I am and I think the body as a whole. Senator Levin has been terrific. The administration has been great to work with. Finally, after 10 years, the Congress of the United States, through this legislation, is going to make the simple statement, simple proposition that under the law of war, you can be held as an enemy combatant indefinitely to protect this Nation. Because when you join al-Qaida--the enemy of us all--we are not worried about whether we are going to prosecute you right away. We are worried about what you know about the next attack coming.

Let me tell you why we need this flexibility. The Christmas Day Bomber--the bomb did not go off, thank God; it was just luck--was read his Miranda rights within 45 minutes. Five weeks later, his parents convinced him to cooperate. What we are suggesting is there is another way that has been used in other wars, that the U.S. intelligence community, law enforcement community, and military have an option available to them.

We could grab this person who has just tried to blow up an airplane over Detroit--American citizen or not--and we can hold them without telling them they have a right to a lawyer and reading them their Miranda rights. Because we are trying to find out is another airplane coming and what do they know about the enemy and what were they up to and where did they train.

If we take that option off the table, we will have diminished our national security. We will have overturned what every other time of war has been about. We would be the first Congress in the history of the country to reject the idea that we can hold someone who is collaborating with the enemy under the law of war. Let's reverse this. This is the first time in history people have said on the floor of the Senate: We reject the Supreme Court holdings that allow the American Government to hold someone as an enemy combatant when they have joined the enemy forces at home or abroad.

So those of us who are voting for this, we are saying we accept the proposition that if you join al-Qaida, you can be killed, you can be captured, you can be interrogated. I am willing to accept the heat for making that decision. Because if we cannot kill them and we cannot capture them and we cannot interrogate them, we have made a huge mistake because these people hate us. They hate who we are. They hate what we stand for. They would kill us all if they could. They are out there, and some of them are among us who have the title of ``American citizen.''

But let me tell you about that title. Not only does it have rights, it has responsibilities. Our courts have said there is nothing in our law or our Constitution that prevents us from holding one of our own when they join the enemy. Because when they join the enemy, they have not committed a crime; they have turned on the rest of us, and they should accept the consequences of being at war with America. Being at war with America is something they should fear, and if they do not fear being at war with America, we have made a huge mistake.

I believe in due process. No one is going to prison without a Federal judge's oversight. No one stays in prison indefinitely without an annual review. But, my God, we are not going to arbitrarily say: You have to go. You have to be let go because of the passage of time and we are not going to criminalize this war--because it is a war.

As sure as I am standing here talking today, we are going to be wrong once. We have to be right every time, I say to the Senator. We have been lucky, and our men and women in uniform and our intelligence community and our FBI agents are doing a wonderful job. They are working night and day to protect us. The threats are growing. They are not lessening. There will come a day, I am sad to say, when we are going to get hit again. But when that day comes, we are going to make sure we have the tools to deal with it in terms of what it is: an act of war. We are going to have the tools available to this country to rein in the consequences because we are going to have the tools available to find out where is the next attack coming from.

We are not going to criminalize the war. We are going to fight it within our values. We are going to provide robust due process. But we are going to acknowledge as a body in Congress that our Chief Executive and those men and women in uniform, law enforcement agents, CIA agents--that they have our blessing to do their job, and we are going to acknowledge that they have the tools available in this war that were available to other like people in other wars.

Ladies and gentlemen, if there was ever a war where it was important to know what the enemy was up to and hit them before they hit us, it is this war. They could care less about losing their lives. The only way we will be safe is to gather intelligence, and we cannot gather intelligence, in my view, by locking down America to ``Dragnet'' standards. This is not a TV show. This is a real-world event that changes as I speak.

To Senator Levin, to Senator Ayotte, and to all those who have tried to create a compromise to enjoy bipartisan support--to the administration--thank you all. To the critics, some of your criticism has been unfounded. But you have the right to be a critic. You live in the State called ``Live Free or Die.''

Let me remind everybody, being a critic and being able to speak your mind sometimes means people have to die.

What I am----

The PRESIDING OFFICER. The time for the Senator from New Hampshire has expired.

Mr. GRAHAM. Madam President, could I ask for 30 seconds?

The PRESIDING OFFICER. Is there any objection?

Mr. LEVIN. Madam President, reserving the right to object--and I, of course, will not--how much time is left before our vote?

The PRESIDING OFFICER. One minute.

Mr. GRAHAM. I will do this in 15 seconds.

Mr. LEVIN. If the Senator will save me 30 seconds, I would appreciate it.

Mr. GRAHAM. Absolutely.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. GRAHAM. This idea of civil liberties and the American way of life--if we do not fight for it, we are going to lose it. We are under siege and we are under attack. So let's fight back within our values. This bill allows us to fight back, and I am very proud of the product.

I thank Senator Levin for being such a good leader for the Nation at a time when we need good leaders.

I yield the floor.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. Madam President, let me first thank Senators GRAHAM and AYOTTE for their contributions this afternoon and long before this afternoon on this subject.

The best answer to some of the criticism we have heard this afternoon--the FBI has been successful. Why change it?--read the law, read the conference report.

Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation. .....

It is flatout explicit in the law.

Something else we have heard: We are doing something for the first time--long-term custody for American citizens. Read the conference report:

Nothing in this section shall be con-Ðstrued to affect existing law or authoritiesÐrelating to the detention of United StatesÐcitizens.......

I urge people to read our conference reports read the Senate bill, before they accept some of the arguments which have been made against this conference report.

Madam President, I ask unanimous consent that the statement of the Press Secretary for the President that was issued yesterday on behalf of the President be printed in the Record, including this line:

[W]e have concluded that the language does not--

The language in the conference report--

challenge or constrain the President's ability to collect telling intelligence, incapacitate dangerous terrorists, and protect the American people--

And the key words for many people--

and the President's senior advisors will not recommend a veto.

There being no objection, the material was ordered to be printed in the Record, as follows:

Statement From the Press Secretary on the NDAA Bill

We have been clear that ``any bill that challenges or contrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President's senior advisers to recommend a veto.'' After intensive engagement by senior administration officials and the President himself, the Administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions. While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country's strength. This legislation authorizes critical funding for military personnel overseas, and its passage sends an important signal that Congress supports our efforts as we end the war in Iraq and transition to Afghan lead while ensuring that our military can meet the challenges of the 21st century.

As a result of these changes, we have concluded that the language does not challenge or constrain the President's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President's senior advisors will not recommend a veto. However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.

Mr. LEVIN. Again, I want to thank all of my colleagues who participated in this debate.

I yield the floor.

The PRESIDING OFFICER (Ms. KLOBUCHAR.) The question is on agreeing to the conference report.

Mr. LEVIN. I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The clerk will call the roll.

The bill clerk called the roll.

Mr. KYL. The following Senator is necessarily absent: the Senator from Kansas (Mr. MORAN).

The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 86, nays 13, as follows:

 

Signing Statement

On December 31, 2011 President Obama signed the 2012 NDAA into law. At the same time, he issued a signing statement denoting his interpretation of the laws regarding citizen detention.

The White House

Office of the Press Secretary

For Immediate Release                                                                                                                                 December 31, 2011
Statement by the President on H.R. 1540

Today I have signed into law H.R. 1540, the "National Defense Authorization Act for Fiscal Year 2012." I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa'ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." Second, under section 1021(e), the bill may not be construed to affect any "existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa'ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch's processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch's authority to transfer detainees to a foreign country. This hinders the executive's ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President's constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.

BARACK OBAMA

THE WHITE HOUSE,
December 31, 2011.

 

House Votes

In total, there were three votes on the 2012 National Defense Authorization Act. The first vote was in May of 2011 and passed the initial version (HR 1867) through the House. The second vote passed the Senate and House combined versions through the House (HR 1540) and the third vote passed this final version through the Senate. None of the votes were close and none followed party lines. The legislation passed both chambers of Congress with ease.

 

 

 

 

Senate Votes