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Mr. McCONNELL. Would the Senator yield for a question?
Mr. SESSIONS. I would yield.
Mr. McCONNELL. I have heard it argued on the floor here in connection with this issue that somehow because the Christmas Day bomber pleaded guilty in an article III court, that was an argument for putting him in the article III court. As a distinguished former prosecutor, I wonder if my friend from Alabama could address the issue of whether because somebody happened to end up in an article III court and happened to plead guilty, how that was an argument for his placement there in the first place.
Mr. SESSIONS. That is a very important question. This individual perhaps looks like he just fell off a turnip truck or something. He was not a very solid person and he decided to plead guilty, and that was good.
Many of these individuals are very tough, very clever, very devious. They have, we know for a fact, used the civil justice system to find discovery against us, how we discover their activities, what kind of surveillance techniques we use, and made the trials dangerous places and have made the trials showcases. So I think that just because one individual decided to plead guilty, it has no bearing on the overall principle that if you arrest people on the battlefield, they are not required to be taken immediately to a judge and given a lawyer.
Mr. McCONNELL. Will my friend further yield for a question?
Mr. SESSIONS. I will be pleased to.
Mr. McCONNELL. I have heard it said on the floor that because a number of terrorists have been tried in article III courts in the past--and I have heard people add up the number of times--that is somehow an argument for continuing to do it.
Is it not the case, I ask my friend from Alabama, that we just set up these military commissions a few years ago at the insistence of the Supreme Court in order to deal with this issue, and only since that time have we had a defined alternative for dealing with these enemy combatants who are also not citizens of the United States?
Mr. SESSIONS. The Senator is so correct. We went through a number of actions. The Supreme Court found the law inadequate, and Congress responded to the Supreme Court's concerns and passed clear laws that are certainly adequate within the Constitution as described by the Supreme Court. We now have an entire system set up to meet the Supreme Court's concerns about the trial of these individuals. It is safe. It is secure. It is consistent with Supreme Court requirements and international law.
Mr. McCONNELL. I ask my friend, is it not also the case that the amendment of Senator Ayotte has in it a national security waiver? I have heard it said that we have eliminated all the President's options. Is it not the case that even if the amendment of the Senator from New Hampshire were adopted and the President felt strongly, for some reason--it's hard for me to contemplate such a set of circumstances, but it is possible--he could, in fact, issue a national security waiver and go ahead and do it anyway, could he not?
Mr. SESSIONS. Absolutely correct. I think Senator Ayotte really reached out to Members of this Senate to make sure they knew there was an option to do it another way, and it does provide the President that option.
With regard to the FBI and their involvement, they are a great investigative agency. If they participate in the arrest of one of these individuals and they were turned over to the military, the FBI can still work with the military to investigate the case. It would just be tried under military commissions according to the lawful system Congress, in a bipartisan way, passed several years ago.
Mr. McCONNELL. I have also heard it said--I am going to pose another question to my friend--that it is kind of ludicrous to assume this ultimately leads to reading Miranda rights to a foreign terrorist on foreign soil. I think it strikes the Senator from Kentucky that that might be the logical extension of where we are going. If, in fact, we are saying that, routinely, foreigners, enemy combatants are going to be mainstreamed into article III courts, when do these protections, if you will, we afford to American citizens under the Constitution attach?
Mr. SESSIONS. That is a very good question. Under the law of the United States, if you are to interrogate an individual who has been taken into custody, the police have to give them Miranda rights before they interrogate them. As long as that person is in custody, if you are going to try them in a civilian court--and Director Mueller of the FBI, in response to questions I asked him, acknowledged that if you are going to try the person in the civilian courts and you conduct interrogation, you must give them Miranda warnings.
Mr. McCONNELL. So would it not be the case, then, that all of these issues in terms of the timing of the attachment of these rights would soon be before courts in the United States for interpretation--ultimately, I guess, by the Supreme Court--as to at what point do these rights now afforded a foreign enemy combatant attach?
Mr. SESSIONS. There have been suggestions that somehow the terrorist cases would allow the interrogation to go on a few hours, but I have not seen any real authority that would justify that. The clear Miranda standard for any police officer in America is that if you arrest someone, before you ask them questions, they must have been given their Miranda rights. That is the rule in the trial of any Federal court. I think it would be very dangerous to assume the court is going to give some extraordinary new rights that they have never indicated they would.
Mr. McCONNELL. I thank the Senator from Alabama.
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Mr. McCONNELL. Mr. President, I am just going to make one final point on this issue, and then I want to address another amendment we will be voting on at some point.
One thing we have not discussed is what happens if the foreign enemy combatant in the article III court in the United States is actually acquitted. If he is, he, of course, has to be released. The deportation option is only available if some other country is willing to take him. There is not a whole lot of clamoring for these kinds of folks anywhere else in the world. We have had that experience. The courts then cannot keep them. They are released into the United States as a result of an acquittal in an article III court in the United States, and there is a situation where you cannot deport them because no one will take them.
I think the point is that this is all totally unnecessary. These are foreigners; these are not citizens of the United States. They have no right to be in an article III court. We don't dispute that the President can put them in an article III court, but why would he want to do that? We responded to the decision of the Supreme Court to set up these military commissions for this precise purpose, and it is clear this administration does not want to use them.
I also would like to make some brief comments about a matter we will be voting on later this evening. Everybody here in this body knows the American people want us to do something about the jobs crisis. What Republicans have been saying is that raising taxes on business owners is not the way to do it. So what we have done is we have combed through the President's latest stimulus bill looking for things we can actually support, for things that do not punish the very people we are counting on to create jobs. In other words, since the President never asked if there was anything in this legislation we could support, we have actually done it ourselves.
It turns out there is a very sensible provision in the President's second stimulus bill that would help businesses across the country. In fact, it is absolutely identical to a bill Senator Scott Brown of Massachusetts introduced with 30 cosponsors earlier this year, many of them Democrats, among them Senators Franken, Begich, Klobuchar, Pryor, Tester, and McCaskill. They are all cosponsors of Senator Scott Brown's bill.
What this bill does is it repeals an existing requirement that government agencies at the State, local, and Federal level withhold 3 percent of every payment to any contractor with whom they do business. This is money contractors may very well end up getting back from the IRS at some point long after the job is done, but in the meantime the government gets to hold on to it instead of allowing the businesses to invest it in jobs and the economy. This is money these companies could be putting toward hiring workers and growing their businesses, but it is going to the IRS instead, basically as a zero-interest loan to the Federal Government here in Washington.
I know Members on both sides of the aisle are hearing from constituents about how burdensome this regulation is. That is why President Obama himself already embraced delaying its implementation in his first stimulus bill and proposed delaying it again in his latest stimulus bill. That is why Senator Scott Brown got so many Democratic sponsors when he proposed a full repeal.
Like the President's bill, this bill is fully offset, and the offset we are proposing has been supported by our friends across the aisle. In fact, the last time I saw a vote, I think 81 Senators actually voted for it.
So the bill we are proposing is bipartisan. The offset we are proposing is bipartisan. There is no reason in the world that our Democratic friends, including the President, certainly, should oppose it. If delaying this legislation was a good idea before, repealing it should be an even better idea now. The bill is supported by hundreds of business groups representing job creators across America. We should come together and act right now and make it easier for them to create jobs for a change, and not harder.
The President asked us to come together and pass pieces of this bill. Here is one that all Senators should be able to agree on. Let's vote on it and prove the skeptics wrong by acting in a bipartisan fashion on something that the job creators in this country actually want.
I yield the floor.
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