National Defense Authorization Act For Fiscal Year 2010

Floor Speech

By:  Lindsey Graham
Date: July 23, 2009
Location: Washington, DC

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Mr. GRAHAM. Mr. President, I thank the chairman for his kind comments. I have been a military lawyer for a while, but I am smart enough to know what I don't know.

The bottom line is judge advocates, to a person, have indicated the procedures as outlined by Senator Levin would be the best way to go. Under the civilian Classified Information Procedures Act, there is a robust body of cases. Military rule of evidence 505(b) is not used very often in courts-martial. What we have tried to do is interject into the commissions some reforms that will make the trials go forward in a manner that the courts are likely to approve the work product.

I think everybody involved--military judges, defense counsel, prosecutors--welcome this change. Senator Levin and his staff and our staffs have worked with the White House. I think we found a way to reform the military commissions that would provide balance when it comes to admission of classified evidence to protect the Nation at large and also allowing the people accused of a crime as much access as possible.

Every military lawyer who is going to be involved in the commissions supports this change. I think it is one way to make the commissions better. This whole effort to make the commissions better is bearing fruit. I appreciate what Senator Levin has done.

I yield the floor.

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Mr. GRAHAM. Mr. President, we have been working with Senator Sessions--myself, Senator Levin and his staff, and Senator Sessions' staff. This amendment basically clarifies the fact that when a detainee is in military custody or an intelligence agent's custody, being detained as a result of wartime activity, to be interrogated for intelligence gathering, there is no requirement that person have article 31, or Miranda, rights read to them. We don't want to criminalize the war. Military intelligence gathering is not a law enforcement function.

There has been some confusion at Bagram Air Force Base about the Department of Justice FBI agents reading Miranda rights. Clearly, there could be a time when that would be appropriate, but this amendment states unequivocally that Miranda warnings, or article 31 rights, are not to be read or required to be read by DOD personnel or intelligence agencies as a result of battlefield activities or military intelligence gathering.

I think it is a good amendment that will clarify a potentially confusing situation. I appreciate Senator Levin's staff helping us with it.

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Mr. GRAHAM. Mr. President, I would like to echo the sentiments of Senator Webb. We have been working together on this. I very much appreciate Senator Isakson. I understand this is a bit complicated--there are parochial interests involved--until we understand the dilemma we are in here.

In the fiscal year 2008 Defense authorization bill, we included language that grants a 5-year waiver to the Berry amendment for the procurement of flame-resistant rayon, the material used to make military uniforms. There are 3 years left on the waiver. The Isakson amendment permanently extends this waiver and will end all efforts to produce a domestic material to make military uniforms.

I respectfully oppose the amendment. We are currently procuring the material from Europe. There is no source of domestic rayon.

Neither Congress nor DOD has ever issued a determination or finding that the domestic market lacks sufficient products that could perform the functions desired by DOD. This amendment unfairly excludes, in my opinion, U.S. manufacturers from competing for DOD procurements and improperly limits competition since the domestic market contains products such as flame-resistant cotton, Nomex, and nylon which can fulfill DOD's needs.

DOD's decision to procure flame-resistant fabric from foreign suppliers without even examining whether domestic manufacturers could meet the agency's need with other products violates DOD's statutory mandate to use performance rather than material specifications and to seek free and fair open competition whenever practical.

Instead of affirmatively extending a waiver that has 3 years remaining, we should continue to let the technologies and fabrics develop and reassess where we are in 1 or 2 years. I think that is the wise thing to do, and I respectfully urge my colleagues to oppose the amendment.

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Mr. ISAKSON. Through the Chair, will the Senator from South Carolina yield for a moment for a question?

Mr. GRAHAM. I will.

Mr. ISAKSON. With respect, isn't it true that there is nothing in this waiver that in any way inhibits or prohibits American manufacturers from doing the research and development necessary to attempt to come up with a material that meets or exceeds the rayon made in Austria? The problem is they cannot produce rayon in the United States of America because of EPA prohibitions and the costs to meet that.

Mr. GRAHAM. I thank the Senator for that question. It is my understanding that the efforts made in Virginia and South Carolina to produce this product domestically, and the concerns the Senator has addressed, the private sector is dealing with; and that the ability to produce this material domestically is a viable option. I don't want to take a precedent, in terms of the Berry amendment, that I think would change the spirit of the amendment at a time when we have a potential to make this domestically. I think, as much as we can do domestically to protect our military and to provide resources to our military, the better.

A year or two from now, we will know better. To lift the waiver, to make it a permanent waiver, I think would be an unwise erosion of the Berry amendment at this time. That would be my answer.

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Mr. GRAHAM. Mr. President, I appreciate the assistance of Chairman Levin and all those involved. This is to me a very important statement by the Senate at a crucial time in our Nation's history. Simply put, our amendment is a sense-of-the-Senate statement that there is a preference for military commission trials regarding detained terrorists.

The reason we are making this statement and trying to urge our colleagues to agree with us is that the interim detainee report that has been issued in the last day or two by the White House has a statement within that report that there should be a presumption that detained terrorists would be tried in article III Federal civilian courts.

I could not disagree more. We will keep working with the administration on this issue. There may be an odd case where a Federal court may be an appropriate venue. But I think I speak for Senator Lieberman and I hope most Americans that the people we are talking about are not common criminals. They are not detained because of some violation of domestic criminal law. They are detained because they have been found to be part of al-Qaida and other terrorist organizations that the Congress has previously determined to be enemy combatant belligerents, people who have taken up arms against the United States of America, who are intent on our destruction. They are not accused of robbing a liquor store. They fall within a narrow statutory definition that was created after 9/11. This is an opportunity for the Senate to express itself and say there is a preference for military courts.

I conclude with this thought. I believe we are at war. It is an unusual war but nonetheless a deadly war. The people we are talking about, again, need to be viewed as military threats, and under military law it is appropriate to try someone who has operated outside the law of armed conflict in a military commission.

Our Nation has been doing this for 200 years. The Nazi saboteurs who were caught landing on the coast of Florida were tried by military commission. I can give a long history of how military commissions were used by our Nation at times of war. That is the preferred vehicle when a nation is at war.

I conclude with this thought. Those who can be tried should be tried by military commissions. There will be some enemy combatants determined to be part of al-Qaida who will not be subject to criminal process either in Federal courts or military commission trials. It is my belief that this country cannot afford to release them if they are still a military threat.

Under military law, there is no requirement to release an enemy prisoner as long as they present a threat to your country. There is no such concept in domestic criminal law. We cannot criminalize this war. It will come back to haunt us.

Due process is available under military law. The men and women running these trials are officers, judge advocates. I have been one for 25 years. They are wonderful people. They will adhere to the law. They understand the law. They will provide transparent justice. But this is the setting that we need to be in regarding these detainees. This statement by the Senate is appropriate.

Mr. President, to my good friend, Senator Lieberman, he has, above all others, tried to remind himself that the Nation's defense is more important than politics. I cannot tell Senator Lieberman how much I admire him. We have worked together to get a sense of the Senate, not binding, but a strong statement that it is a preference that these terrorists detained as part of an al-Qaida network be tried in military commissions, as we have done in our history.

I yield to Senator Lieberman and hope my colleagues will accept this amendment.

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