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Mr. McCONNELL. Mr. President, I thank my good friend from New Hampshire for the issue she has raised with regard to the proper way to treat enemy combatants. Her amendment, which we have been discussing off and on here on the floor today, has prompted predications of doom and gloom from our friends on the other side of the aisle, and a lot of very excited rhetoric.
To be clear, I would ask my friend from New Hampshire: Is it not true that the amendment she has offered does not apply to everyone--absolutely everyone--who might be generally labeled a terrorist?
Ms. AYOTTE. I thank our distinguished Republican leader, the senior Senator from Kentucky, for that question. That is correct. My amendment only applies to members of al-Qaida and associated forces who are engaged in an armed conflict against our troops and coalition forces and who are planning or are carrying out an attack against our country or our coalition partners. It does not apply to everyone who might be termed a terrorist, and it does not apply to U.S. citizens who are members of al-Qaida.
Mr. McCONNELL. I ask my friend further, has the Congress authorized use of military force against al-Qaida and associated forces?
Ms. AYOTTE. I would answer, yes, it has. My amendment only pertains to enemy combatants against whom Congress has declared we are in an armed conflict. And because we are in an armed conflict with al-Qaida and associated forces, the Congress has authorized the use of military force to combat them, and that is why it is called the authorization for the use of military force.
Mr. McCONNELL. I cannot recall a time when Congress has declared we are in an armed conflict, has authorized the use of military force against the enemy in that conflict, and yet the executive branch has a bias against using the military for interrogation and, if need be, a trial of these enemy forces. Can the Senator from New Hampshire recall such an occasion?
Ms. AYOTTE. No, I cannot.
Mr. McCONNELL. Two days ago the President's top lawyer at the Pentagon defended the administration's decision for use of lethal force against an American citizen who was a member of al-Qaida. In doing so, he noted that using lethal force in such a case is perfectly appropriate because that person was an enemy combatant. Specifically, he said: Those who are part of the congressionally declared enemy do not have immunity if they are U.S. citizens.
Does it not strike my friend from New Hampshire as inconsistent for the administration to authorize lethal force against a member of al-Qaida even if he is a U.S. citizen because he is part of an enemy force as declared by the Congress but, on the other hand, not to trust the military to try by military commission members of the same enemy force who are foreign nationals?
Ms. AYOTTE. It certainly strikes me as very inconsistent. It is especially odd given that the military commissions were enacted by Congress at the suggestion of our Supreme Court. They were passed on a bipartisan basis and were refined by the Obama administration to its liking. Yet the administration refuses to fully use them as they were intended.
Mr. McCONNELL. The amendment of the Senator from New Hampshire to this appropriations bill makes clear that in the war on terror we remain at war with al-Qaida and associated groups, that these forces remain intent on killing Americans, and that in prosecuting this war, a higher priority should be placed on capturing enemy combatants, interrogating them for additional intelligence value and thereby targeting other terrorists. That is the purpose, as I understand it, of the amendment of the Senator from New Hampshire. In military custody, our national security professionals would have a choice of prosecuting enemy combatants in a military commission, detaining them under the law of war, and periodically questioning them for intelligence as new information is developed without them being all lawyered up.
Ms. AYOTTE. Yes, and yesterday some of our colleagues came to the floor to argue that my amendment would limit the choices available to our Commander-in-Chief in prosecuting terrorists.
I would ask the Republican leader the following: In January of 2009, did President Obama, when he first came into office, issue Executive orders ending the Central Intelligence Agency's detention program, ending the CIA's option for using enhanced interrogation techniques, ordering the closure of the secure detention facility in Guantanamo Bay, Cuba, prior to any study being done concerning how to dispose of the population of enemy combatants there--we now know that 27 percent of them are back in theater--and suspending military commissions?
Mr. McCONNELL. Well, of course, the Senator from New Hampshire is entirely correct. President Obama has unilaterally restricted the tools available to him for combating terrorism, including by ordering the closing of Guantanamo Bay prior to having any plan for dealing with the population of the Yemeni detainees who are almost certain to return to the fight if they are released from Guantanamo Bay.
It seems that once the President shut down the ability of the CIA to detain enemy combatants and refused to transfer further detainees from Guantanamo Bay, that many of us were waiting for the obvious test case to come along in which a terrorist was captured outside Iraq or Afghanistan and needed to be interrogated and detained.
I know the Senator from New Hampshire is a member of the Armed Services Committee. Does she recall the case of Mr. Warsame, the Somali terrorist captured at sea?
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