Defense Authorization

Floor Speech

By:  Lindsey Graham
Date: Dec. 1, 2011
Location: Washington, DC

Mr. GRAHAM. While we decide how we are going to move on the Defense bill, I appreciate Senator Kyl coming to the floor. Senator Kyl and I, along with Senators Levin and McCain, have been working on detainee policy for years now. There is an issue that is before the Senate soon. It involves what to do with an American citizen who is suspected of collaborating with al-Qaida or an affiliated group.

Does the Senator agree with me that in other wars American citizens, unfortunately, have aided the enemies of their time?

BREAK IN TRANSCRIPT

Mr. GRAHAM. Is the Senator familiar with the efforts by German saboteurs who landed--I believe, in the Long Island area, but I don't know exactly where they landed--during World War II, and they were aided by American citizens to execute a sabotage plot against the United States?

BREAK IN TRANSCRIPT

Mr. GRAHAM. Does the Senator agree with me that our Supreme Court ruled then that when an American citizen decides to collaborate and assist an enemy force, that is viewed as an act of war and the law of war applies to the conduct of the American citizen?

BREAK IN TRANSCRIPT

Mr. GRAHAM. So the law, at least since 1942, by the Supreme Court has been that if someone decides as an American citizen to join forces with enemies of the United States, they have committed an act of war against their fellow citizens. It is not a criminal event we are investigating or dealing with; it is an act of war, and the American citizens who helped the Nazis were held as enemy combatants and tried as enemy combatants?

BREAK IN TRANSCRIPT

Mr. GRAHAM. In the Military Commission Act of 2009, we prohibited American citizens from being tried by military commissions. I am OK with that. But what we have not done--and I would be very upset if we chose to do that--is take off the table the ability to interrogate an American citizen who has chosen to help al-Qaida regarding what they know about the enemy and what intelligence they may provide us to prevent a future attack.

Since homegrown terrorism is a growing threat, under the current law, if an American citizen became radical, went to Pakistan and trained with al-Qaida or an affiliated group, flew back to Dulles Airport, got off the plane, got a rifle, went down to the Mall right behind us and started shooting people, does the Senator agree with me that under the law as it exists today, that person could be held as an enemy combatant, that person could be interrogated by our military and intelligence community and we could hold them as long as necessary to find out what they know about any future attacks or any past attacks and we don't have to read them their Miranda rights?

BREAK IN TRANSCRIPT

Mr. GRAHAM. Yes. The In re Quirin case dealt with an American citizen helping the Nazis in America. The Hamdi case dealt with an American citizen helping the Taliban in Afghanistan.

BREAK IN TRANSCRIPT

Mr. GRAHAM. The Hamdi case cited In re Quirin for the proposition that an American citizen who provides aid, comfort or collaboration with the enemy can be held as an enemy combatant. The In re Quirin case dealt with an American citizen helping the Nazis in New York. The Padilla case involves an American citizen, collaborating with al-Qaida, captured in the United States.

BREAK IN TRANSCRIPT

Mr. GRAHAM. Exactly. I would add, and get Senator Kyl's comment. Wouldn't it be an absurd result if you can kill an American citizen abroad--Awlaki--whatever his name was--the President targeted him for assassination because he was an American citizen who went to Yemen to engage in an act of terrorism against the United States. The President went through an Executive legal process, targeted him for assassination and a drone attack killed him and we are all better off. Because when an American citizen helps the enemy, they are no longer just a common criminal; they are a military threat and should be dealt with appropriately.

But my point is, wouldn't it be an odd result to have a law set up so that if they actually got to America and they tried to kill our people on our own soil, all of a sudden they have criminal status?

I would argue that the homeland is part of the battlefield, and we should protect the homeland above anything else. So it would be crazy to have a law that says if you went to Pakistan and attacked an American soldier, you could be blown up or held indefinitely, but if you made it back to Dulles Airport, you went downtown and started killing Americans randomly, we couldn't hold you and gather intelligence. The Supreme Court, in 1982, said that made no sense.

If a Senator, in 1942, took the floor of the Senate and said: You know those American citizens who collaborated with the Nazis, we ought not treat them as an enemy, they would be run out of town.

I am just saying, to any American citizen: If you want to help al-Qaida, you do so at your own peril. You can get killed in the process. You can get detained indefinitely. When you are being questioned by the CIA, the FBI or the Department of Defense about where you trained and what you did and what you know and you say to the interrogator: I want my lawyer, the interrogator will say: You don't have a right to a lawyer because you are a military threat.
This is not ``Dragnet.'' We are fighting a war. The Supreme Court of the United States has clearly said an American citizen who joins with the enemy has committed an act of war.

Senator Feinstein, who is the chairman of the Intelligence Committee, is a very good Senator. But her concerns about holding an American citizen under the law of war, her amendment, unfortunately, would change the law.

Does Senator Kyl agree with that?

BREAK IN TRANSCRIPT

Mr. GRAHAM. Simply stated, when the American citizens in question decided to give aid and comfort to the Nazis, I am very glad they were allowed to be held by the military and interrogated about the plot and what they knew, because intelligence gathering is the best way to keep us safe.

I would be absolutely devastated if the Senate, for the first time in 2011, denied the ability of our military and intelligence community to interrogate somebody who came back from Pakistan and started killing people on the Mall--that we could no longer hold them as an enemy combatant and find out what they did and why they did it; that we would have to treat them as a common criminal and read them their Miranda rights. That is not the law.

If that becomes the law, then we are less safe because I tell you, as we speak, the threat to our homeland is growing. Homegrown terrorists are becoming the threat of the 21st century, and now is not the time to change the law that has been in place for decades. I do hope people understand what this means.

It means we would change the law so that if we caught somebody in America who went overseas to train and came back home, an American citizen who turned on the rest of us, no longer could we hold them as an enemy combatant and gather intelligence. That, to me, would be a very dangerous thing to do.

I ask the Senator, who determines what the Constitution actually means; is it the Congress or the Supreme Court?

BREAK IN TRANSCRIPT

Mr. GRAHAM. So the issue is pretty simple. Our courts at the highest level--the Supreme Court has acknowledged that the executive branch has the legal authority to hold an American citizen who is collaborating with an enemy as an enemy belligerent to gather intelligence to protect the rest of us; they recognize that power of the executive. Does the Senator agree with me that the amendment of Senator Feinstein would be a situation where the Congress does not recognize that authority and would actually try to change it?

BREAK IN TRANSCRIPT

Mr. GRAHAM. And to conclude this colloquy--I enjoyed the discussion--I am not saying our law enforcement or military intelligence community cannot read someone their Miranda rights. I will leave that up to them. I am saying Congress should not take off the table the ability to hold someone under the law of war to gather intelligence, and that is what we are about to do if this passes.

To those who believe that homegrown terrorists are a threat now and in the future, if you want to make sure we can never effectively gather intelligence, we only have one option, then that is what we are about to impose on the country.

BREAK IN TRANSCRIPT