National Defense Authorization Act for Fiscal Year 2012
Floor Speech
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AMENDMENT NO. 1274
Mr. SESSIONS. Madam President, I wish to address amendment 1274, which would clarify what I believe is existing law that the President has authority to continue to detain an enemy combatant under the law of war, following a trial before a military commission or an article III court, and regardless of the outcome of that trial. Let me explain what I mean.
As I said yesterday, even under the law of war the President has the authority to detain an enemy combatant, a prisoner of war, a captured enemy soldier, a belligerent. The President can detain him through the duration of the hostilities. The President is not required--the Commander in Chief is not required to release an individual whose sworn duty it is to return to his military outfit and commence hostilities again against the United States. That individual could be killed on the battlefield, but if captured, you are not required, under all laws of war that I am aware of and certainly the Geneva Conventions--you can maintain that individual in custody to prevent him from attacking you. But you can also try an individual who has been captured if that individual violated the rules of war.
For example, a decent soldier from Germany--many of them were held in my State of Alabama. They behaved well. They made paintings of American citizens, they did a lot of things, and did not cause a lot of trouble. They were in uniform and they complied with the rules of war and they were not tried as illegal enemy combatants.
But many of the terrorists today do not wear uniforms, deliberately target innocent men, women, and children, and deliberately violate multiple rules of war. Those individuals are subject, in addition to being held as a combatant, as an unlawful combatant. They can be prosecuted and they should be prosecuted. In World War II a group of Nazi saboteurs in the Ex parte Quirin case were let out of a submarine off, I think, of Long Island. They came into the country with plans to sabotage the United States. They were captured and tried by military commissions. Several were American citizens. A number of them--most of them, frankly--after being tried and convicted, were executed. The Supreme Court of the United States approved that procedure.
But recent cases demonstrate the potential problem we have today. One Guantanamo Bay detainee has already raised the question I have discussed before the military commission where he is being tried. Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing, was arraigned before a military commission on November 9. He was held not only as an al-Qaida, or a belligerent against the United States, but he was charged with a violation of the rules of war.
This was a group that sneaked into the harbor pretending to be innocent people and ran their boat against the Cole, killing a number of U.S. sailors.
I remember being at a christening of one of the Navy ships at Norfolk not long after this. I walked out of that area and I heard one of the sailors cry out: Remember the Cole. The hair still stands up on my neck when I hear it.
We have an obligation to defend our men and women in
uniform. When they are out on the high sea or they are in a neutral port, they expect to be treated according to the laws of war and then they are murdered by an individual such as this.
This individual's lawyers filed a motion asking the military judge to clarify the effect of an acquittal, should the commission acquit him. He argued that the members of the committee had a right to know what would happen if he were acquitted because they might object to taking part in what he called a show trial if it turned out that he would continue to be detained at Guantanamo Bay.
There is another case in which the administration was almost confronted with the problem a year ago, in the case of a former Guantanamo detainee, an al-Qaida member named Ahmed Ghailani, who was responsible for the 1998 embassy bombings in Kenya and Tanzania. Most of us remember those early al-Qaida bombings against our embassies in Africa.
After the Justice Department chose to prosecute Ghailani in an article III civilian court and directed the United States Attorney not to seek the death penalty--I am not sure why that ever happened; we don't know--but the jury acquitted him on 284 out of 285 counts. Luckily, he received a life sentence on the single count of conspiracy, for which he was convicted.
But what if he had not been convicted? What if there was insufficient evidence to prove he committed a crime, but not insufficient evidence to prove he was a combatant against the United States? Al-Qaida has declared war against the United States, officially and openly. The U.S. Congress has authorized the use of military force against al-Qaida, which is the equivalent of a declaration of war.
What if he had received a modest sentence after being convicted and had credit for time served? What if he had been acquitted on all 285 counts? Would the President have been required to release him into the United States, if the government could not get some country to take him? That would be wrong. He was at war against the United States. He was a combatant against the United States. Like any other captured combatant, he can be held as long as the hostilities continue.
By the way, let me note, military commissions are open. If they decide to try one of these individuals--not just hold him as a prisoner of war but hold him and try him for violation of the laws of war--they get lawyers, they get procedural rights. The Supreme Court has established what those rights are. Congress has passed laws effectuating what the Supreme Court said these trials should consist of, and a mechanism has been set up to fairly try them.
But enemy combatants are not common criminals. If a bank robber is denied bail, he remains in jail awaiting a trial, a speedy public trial, with government-paid lawyers. Enemy combatants are not sitting in Guantanamo Bay awaiting trial by a military commission, or by an article III court. They are held in military custody precisely because they are enemies, combatants against the United States. They should continue to be held there as long as the war continues and as long as they do not remain a threat to return to the battlefield against the United States.
This is an important point, considering that 27 percent of the former Guantanamo detainees who have been released--161 out of 600--have returned to the battlefield, attacked Americans. This Nation has no obligation to release captured enemy prisoners of war when we know for an absolute fact that 27 percent of them have returned to war against the United States. How many others have but we do not have proof of it? That is what the whole history of warfare is.
Lincoln ceased exchanging prisoners with the South after he realized they had more soldiers in the South. It was not to his advantage to release captured southern soldiers who would return to the fighting, so he held them until the war was over. Under the laws of war, the President has the authority to prevent an enemy combatant from returning to the battlefield. That is consistent with all history.
This amendment--please, Senators, I hope you would note--would make it clear that the President simply has authority to continue to detain enemy combatants held pursuant to the rules of war, even though they may have been tried, regardless of where that trial would be held and what the outcome was, as long as, of course, they could prove they were an enemy combatant and violating the rules of war.
I would note one thing.
I see my friend, the Senator from California, is here and probably is ready to speak.
On the question of citizenship, can a citizen be held in this fashion? The Supreme Court has clearly held they may. But the Senator is offering legislation that might change that. My amendment does not answer that question. It simply says a combatant should be able to be held under the standard of a prisoner of war, a combatant, even if they had been prosecuted for violation of the laws of war and acquitted.
It is common sense. I believe the courts will hold that, but it is an issue that is out there. I think Congress would do well to settle it today.
I urge my colleagues to do so.
I thank the Chair, and I yield the floor. I note the absence of a quorum.
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Mr. SESSIONS. Madam President, I join with Senator McCain in support of Senator Cornyn's amendment. Taiwan has been a strong ally of the United States. Senator McCain said we would provide them military aircraft, but, in truth, they would buy it. They are our allies. They are friends. They are prepared to purchase from an American company legitimate military equipment that they could use to help maintain the freedom they have cherished on the island, and it is hard for me to understand how that would be objected to.
I just wish to say, as someone who has looked at these issues for some time as a member of the Armed Services Committee, I do believe Senator Cornyn--also a member of that committee--is correct, and I strongly support the amendment and urge my colleagues to vote for it, if and when we can get a vote.
I thank the Chair, yield the floor, and note the absence of a quorum.
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FINANCIAL CRISIS
Mr. SESSIONS. Mr. President, our country is facing a very serious financial crisis.
We have seen what happened in Europe. We had some numbers on the stock market for a while. But if I understand what happened, there was a very real crisis facing the Europeans, and at the very last moment they took some action that was received positively.
But they are not out of the woods yet and neither are we. Our debt is surging. We have gone from 5 years ago a $161 billion deficit to a $450 billion deficit in President Bush's last year to $1.2 trillion in President Obama's first year, $1.3 trillion in President Obama's second year, $1.2 trillion this year, and over $1 trillion predicted in deficits next year.
We are going to have a proposal that comes before us to provide a payroll holiday, and it is sold as avoiding a tax increase. That is what the President says it is; we are avoiding a tax increase. So we ought to ask ourselves exactly how that is so and if it is so. Let me just say, I don't think that is accurate.
Two years ago, there was an employer payroll tax holiday that went only to the employer. It cost the Treasury $7.6 billion. Last year, as part of the final compromise, a bipartisan compromise, it was agreed that there would be a 2-percent tax holiday for working persons. So instead of paying 6-plus percent on your withholding tax, you would pay 4. That cost $111 billion for that year.
So the President said: If we don't extend that, we are going to have a tax increase. But is he accurate? No, not really. This year's proposal would be to reduce not the 4 percent but the 3.1 percent, cutting the 6.2 withholding to 3.1 for the employer and for the employee, and it would cost in 1 year $265 billion--$265 billion that would not be going into the Social Security trust fund so that those who retire would have the retirement funds they have been promised. It would not go there. It weakens Social Security, the integrity of the system, in my opinion.
But we are told not to worry, the U.S. Treasury will replace this $265 billion with Treasury money. But the problem is, the Treasury doesn't have any money. The Treasury is already in debt. The Treasury is going to add another $1 trillion to the deficit this year. So now it is going to be added to--$265 billion more in one fell swoop, in one bill, right here at the end of the session. If you don't vote for it, the President says, you are raising taxes on the American people. That is not an accurate statement.
In an economic sense, in my opinion, the real essence of this is the U.S. Treasury will borrow $265 billion. Then, it will direct the Social Security Administration to send that money out in the form of a reduced withholding amount to be paid by workers. It is a direct borrow and it is a direct delivery of money and it uses Social Security trust fund moneys as a vehicle to transfer the money. In an economic sense, it borrows $265 billion to spend.
How much is $265 billion? The supercommittee, the committee of 12, was trying to find $1,200 billion in savings over 10 years--not 1 year, 10 years. This one bill, this one proposal of $265 billion would be spent this 1 year.
To achieve the committee of 12's goal, they would simply have needed to have cut $120 billion a year for 10 years out of the entire Federal Government. They failed. Immediately now, the President and our majority leader are demanding this Congress pass an expenditure--unexpected, not before done; nothing like such a large expenditure ever has come out of Social Security--to spend another $265 billion. How will we ever get our house in order? I wish I could figure out a way to be supportive. I don't see how I can be.
I am pleased the Republicans are trying to work up a bill that would not cost as much as $265 billion and some way to pay for it. But, in truth, if we are going to be able to cut spending to pay for any kind of new expenditure, wouldn't we be better to do what the committee of 12 tried to do: cut spending to reduce the debt? Shouldn't we be seeking ways, if we are going to raise taxes, to use those taxes to pay down the debt, instead of taking 10 years under the President's plan in a new tax that takes 10 years of that tax to pay for this 1 year's expenditure? That is what the proposal is.
I would say to my colleagues, this goes beyond partisan politics. This gets to the point: Are we in control of the Treasury and the spending of the United States of America? Can we defend what we are doing?
Don't think that is the only thing that is going to come up. I am the ranking Republican on the Budget Committee. We look at these numbers. This also will be taken care of in December, count on it: We are going to deal with the alternative minimum tax. That is going to cost $50 billion. We are going to deal with unemployment insurance, an additional $70 billion to extend those payments beyond 90-some-odd weeks. We are going to fix the doctors payment, because we have to. We can't cut the doctors that much, $21 billion. We are going to extend most, if not all, of the tax extenders we call them, $90 billion. The total is $500 billion.
Some of this we have been expecting to take care of. But we weren't expecting or planning in any way to have a continuation of the payroll holiday that is going to cost $265 billion. I just would say to my colleagues, when are we going to think more rationally about it?
I just heard: How are we going to pay for the AMT, unemployment insurance, doctors payments, and the tax extenders? Somebody said: We are going to count the savings from the war. The Congressional Budget Office will show a decline in expenses for the Iraq and Afghanistan war will be a savings. We can spend that. That is fraudulent, that is a gimmick, and it should not be acceptable.
Everybody knows the war costs are going to be coming down and we have been planning for that. We can't assume that money is available to spend willy-nilly. We were bringing the war costs down to bring the debt down, not to fund new spending. We need to bring the war costs down to try to reduce our debt and our deficit, not to fund new spending. But that is how they are going to do this, I have
been told. I am not surprised because there is no other way they are going to do it.
I just would share that. We will be voting in a little bit on this issue. I don't know what the answer is. I don't know how to fix our problems, but I know one thing. We remain in denial. Our country is in greater debt crisis than we realize. Mr. Erskine Bowles and Alan Simpson of President Obama's debt commission say we are facing the most predictable financial crisis in our Nation's history as a result of our debt, and we need to get serious about how to fix it.
I thank the Chair and I yield the floor.
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Mr. SESSIONS. Mr. President, this amendment is crafted to simply clarify and affirm what appears to be the law, and logic tells us should be the law today.
If an individual is apprehended as a prisoner of war, they are detained under the laws of war until the conflict ends. But if, after being detained or when they are detained, it is determined they have committed crimes against the laws of war, they can be tried for those crimes.
There is a slight ambiguity. I think it is pretty clear the military would have a right to continue to detain them as a prisoner of war if they were not convicted of the much higher burden crime against the laws of war.
So the essence of this is simply to say what the judge said in the case involving the African Embassy bombing, the Ghailani case. The guy was acquitted of 284 out of 285 counts, and the judge said: You probably would be detained under the laws of war. So this would clarify that.
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