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National Defense Authorization Act for Fiscal Year 2012

Floor Speech

By:
Date:
Location: Washington, DC

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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.''

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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?

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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.

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