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Public Statements

National Defense Authorization Act for Fiscal Year 2012

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. GRAHAM. As I understand the purpose of this amendment, it is basically to have the Congress on record for the concept that once you are determined to be an enemy combatant, a part of the enemy force, there is no requirement to let you go at any certain time because in war it would be silly to let an enemy prisoner go back to the fight for no good reason.

As the Senator has indicated, in the law of war, you can be prosecuted for a war crime. You could be taken to a Federal court and prosecuted for an act of terrorism, but if you are acquitted, that is not an event that would require us to release you if the evidence still exists that you are a threat to the country and part of the enemy forces; is that correct?

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Mr. GRAHAM. What I would like my colleagues to understand is that no German prisoner in World War II had the ability to go to a Federal judge and say: Let me go.

If you had brought up the concept in World War II that an American citizen who was collaborating with the Nazis could not be held as an enemy combatant, you would have been run out of town.

Does the Senator agree with me that in every war we have fought since the beginning of our Nation, unfortunately, there have been episodes where American citizens side with the enemy?

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Mr. GRAHAM. Does the Senator agree with me that our Supreme Court, as recently as about 3 to 4 years ago, affirmed the fact that we can hold our own as enemy combatants when the evidence suggests they have joined forces with the enemy? That is the law?

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Mr. GRAHAM. Does my colleague agree with me that makes perfect sense, that an American who helps the Nazis has committed an act of war, not a common crime?

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Mr. GRAHAM. Does the Senator agree with me that we do not want to start the practice in the United States that everybody we capture as an enemy prisoner is automatically a war criminal because that could come back to haunt our own people in future wars?

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Mr. GRAHAM. That we should reserve prosecution for a limited class of persons among enemy prisoners?

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Mr. GRAHAM. Let's just logically walk through this. In every war in which America has been involved, American citizens unfortunately have chosen at times to side with the enemy. Our courts say the executive branch can hold them as enemy combatants, and the purpose is to gather intelligence. Does the Senator agree with that?

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Mr. GRAHAM. Does the Senator agree with me that if this Congress chose to change the law and say that an American citizen who has associated himself with al-Qaida cannot be interrogated for intelligence-gathering purposes, we would be less safe?

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Mr. GRAHAM. Does the Senator agree with me that his amendment that says you can be acquitted but still be held as an enemy prisoner is consistent with the law today?

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Mr. GRAHAM. My point to my colleagues--and I enjoyed this discussion--is that if you take the ability to hold someone as an enemy combatant off the table, you cannot interrogate them for intelligence-gathering purposes, and if you put a time limit on how long you can hold them, you defeat the purpose of gathering intelligence. Does the Senator agree with that?

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Mr. GRAHAM. Does my colleague also agree that in this war, we provide a due process unlike any other war in the past?

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Mr. GRAHAM. Does the Senator agree with me that every enemy combatant, citizen other otherwise, held at Guantanamo Bay or captured in the United States has their day in Federal court through habeas proceedings?

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Mr. GRAHAM. We never had, in the history of other wars, a Federal judge determining whether the military has the ability to determine whether someone is an enemy combatant, but we have that in this war. Does the Senator agree with that?

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Mr. GRAHAM. Does the Senator agree that the government has to prove to an independent judge by a preponderance of the evidence that the person is a member of al-Qaida involved in hostilities?

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Mr. GRAHAM. So everybody held after judicial review for the first time in the history of warfare.

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Mr. GRAHAM. Every detainee not only gets their day in Federal court, the government must prove they have a solid case to hold them as an enemy combatant, and everyone gets a yearly review as to whether they are a continuing threat?

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Mr. GRAHAM. In our civilian law, we can hold people who are a danger to themselves or others without a trial but with judicial oversight; is that correct?

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Mr. GRAHAM. Would the Senator agree with me that it is very smart to evaluate whether we should allow someone to be let go and intelligence professionals should be able to make that decision as to whether the individual is a military threat, that that is a logical process?

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Mr. GRAHAM. Does my colleague agree with me that the recidivism rate of people we are releasing from Guantanamo Bay has gone up?

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Mr. GRAHAM. Does the Senator agree with me that the dangers our Nation faces do not justify changing existing law, denying this country the ability to gather intelligence even against an American citizen joined with al-Qaida, that that would be an unwise decision given the dangers we're facing?

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Mr. GRAHAM. Does he agree with me that we need a legal system that understands the difference between fighting a war and fighting a crime?

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Mr. GRAHAM. I will be glad to yield to my friend from Illinois. Let me just try to set the stage the best I can. And I would love to have Senator Levin weigh in and anyone else.

The law, as it exists today, to my good friend from Illinois, has long held that when an American citizen collaborates with the enemy, that is an act of war, not a common crime. The constitutional review provided by the Supreme Court in cases involving American citizens collaborating with the enemy has said that we view that as an act of war and we apply the law of war. So our Supreme Court, in the Hamdi case just a few years ago, upheld the ruling in the In re Quirin case, which went back to World War II.

In that case, we had American citizens assisting Nazi saboteurs. The Supreme Court ruled that citizenship status does not prevent someone from being treated as part of the enemy force when they choose to join the enemy.

Why is this important? My good friend from Illinois is an intel officer. Intelligence gathering is part of war. An enemy combatant can be interrogated by our military intelligence community without Miranda rights. They can be held for an indefinite period of time to be questioned about past, present, and future attacks. The Supreme Court has legitimized that process because the individual in question was an American citizen captured in Afghanistan.

He pled to the Court: You cannot hold me as an enemy combatant because I am an American citizen.

The Court said: No, there is a long history in this country of having American citizens who collaborate with the enemy to be held as an enemy combatant.

Unfortunately, in every war we have engaged in, American citizens have provided aid and comfort to the enemy. In World War II we had American citizens assisting Nazi saboteurs.

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Mr. GRAHAM. Right. What we have done in the Military Commissions Act in 2009, civilians, American citizens cannot be tried in military commissions. It can only go to Federal court. But the point we are trying to make is it has been long held in this country that when an American citizen abroad or on the homeland decides to help the enemy, we have the right to hold them, not under a criminal theory but under the law of war because their effort to help the enemy, I say to my good friend from Illinois, is an act of war against their fellow citizens.

This is so important. If we deny our country the ability to hold and interrogate an American citizen who has joined forces with al-Qaida, we lose the ability to find out the intelligence they may have to keep us safe. If the choice is that an American citizen who chooses to collaborate with al-Qaida must be put in the criminal justice system, meaning they will have criminalized the war, the Congress will have restricted executive branch power.

To make it clear--please understand, I say to Senator Feinstein--the courts of the United States have acknowledged that the executive branch can hold an American citizen as an enemy combatant when they engage and assist the enemy. The courts of the United States recognize the power of the executive to do that as Commander in Chief.

The question for us is, Do we want to be the first Congress in the history of the Nation to say to the executive branch that they no longer have that power given to them by the courts, inherent with being Commander in Chief, to protect us against enemies foreign and domestic.

I argue to my colleagues, given the threats we face from homegrown terrorism, from al-Qaida groups and their affiliates, that now is not the time to change the law preventing our military intelligence community from holding an American citizen who is helping the enemy on the homeland and prevent them from gathering intelligence.

I argue that the reason no other Congress has done this in past wars is because it didn't make a lot of sense. I argue that if a Senator came to the floor of the Senate during World War II and suggested that an American citizen who sided with the Nazis to sabotage American interests here could not be held as an enemy combatant, they would have been run out of town because most citizens would say anybody who helps the enemy--citizen or not--is a threat to our country.

Unlike other wars, we do have due process that exists today that never existed before. No Nazi soldier was able to go to a Federal court and say: Judge, let me go. The reason I have agreed, and the courts have applied habeas review to enemy combatant determination, is this is a war without end.

How does one become an enemy combatant? The executive branch makes the accusation. They have to follow the statutory criteria. This is a limited group of people in a limited classification. American citizen or not, if someone falls into this group, they can be held as an enemy combatant. But the executive branch has to prove to an independent judiciary that the case is sufficient, and under the law the judge has to agree with the military; we have an independent judiciary looking over the shoulder of the military in this war, unlike at any other time. So the government has to prove to a Federal judge, by a preponderance of the evidence, that this person is, in fact, an enemy combatant. If the judge disagrees, they are let go. If the judge agrees, we hold the enemy combatant, and they get an annual review process as to whether future detention is warranted. So we have robust due process.

But please understand what the Feinstein amendment is about. It is about the Congress of the United States, the Senate of the United States, for the first time in American history, restricting the ability of the executive branch to hold an American citizen who is collaborating with the enemy and question them under the law of war. If we do that to ourselves, we will regret it. I don't want to be in the first Congress, in the times in which we live, to change the law to deny our intelligence community and the Department of Defense the ability to deal with American citizens who have decided on their own to become part of al-Qaida. The day one decides they are going to side with al-Qaida, they have committed an act of war against the rest of us, and the courts acknowledge they can be held as an enemy combatant, not a common criminal.

The question for the Congress is, Do we want to undo that in the times in which we live? I plead with everybody in this body, get yourself educated about what the law is today. I ask Senator Levin, we have done nothing to change the law in this bill; is that correct?

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Mr. GRAHAM. That is correct, and we have been working on that together for 5 years. To respond, if I may, because I think it is a very good discussion, does the Senator agree with me that under the law that exists today, in terms of the Supreme Court rulings, an American citizen can be held as an enemy combatant?

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Mr. GRAHAM. Does the Senator agree that in past wars American citizens, unfortunately, have collaborated with the enemy?

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Mr. GRAHAM. Does he agree with me that in World War II some American citizens agreed to assist the Nazis and were held as enemy combatants?

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Mr. GRAHAM. Does the Senator agree it is good policy to hold and interrogate someone who is helping al-Qaida to find out what they know?

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Mr. GRAHAM. Does the Senator agree that the criminal justice system is not set up to gather military intelligence?

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Mr. GRAHAM. Under the law as it exists today, an American citizen can be held as an enemy combatant. The question we are debating on the floor--Senator Feinstein is saying that in the future an American citizen who is deemed to have collaborated with al-Qaida or the Taliban or others could no longer be held as an enemy combatant for an indefinite period, which means we cannot gather military intelligence as to what they know about past, present, and future attacks.

I argue we would be the first Congress in history to bring about that result and that now would be the worst time in American history to do that. If we cannot hold a citizen who is suspected of assisting al-Qaida under the law of war, the only option is to put them in the criminal justice system. Then we cannot hold them indefinitely, and we cannot ask about present, past or future attacks because now we are investigating a crime, nor should we be allowed to do that under criminal law.

The point is that when a person assists the enemy, whether at home or abroad, they have committed an act of war against our citizens, and the Supreme Court has acknowledged that the executive branch has the power to hold them as an enemy combatant. The question is, Are we going to change that and say in the 21st century, in 2011, every American citizen who chooses to cooperate with al-Qaida can no longer be interrogated for intelligence-gathering purposes by our Department of Defense and our intelligence community; that they have to go into the criminal justice system right off the bat, where they are given a lawyer and are read their Miranda rights? If we do that, we are going to deny ourselves valuable intelligence. We would be saying to our citizens that we no longer treat helping al-Qaida as an act of war against the rest of us.

If one suggested during World War II that someone who collaborated with the Nazis should be viewed as a common criminal, most Americans would have said: No, they turned on their fellow citizens and they are now part of the enemy.

All I want to do is keep the law as it is because we need it now more than ever. I am sensitive to due process. There is more due process in this war. Every enemy combatant being held at Guantanamo Bay, captured in the United States, has to go before a Federal judge. The military has to prove their case to a Federal judge. There is an annual review process. That makes sense to me. What doesn't make sense to me is for this country and this Senate to overturn a power that makes eminent sense when we need it the most. It doesn't make sense to set aside a Supreme Court case that acknowledges that when an American citizen affiliates with al-Qaida, that is an act of war against the rest of us and to criminalize that conduct, denying us the ability to gather intelligence. If we go down that road, we have weakened ourselves as a people, without any higher purpose.

To those American citizens thinking about helping al-Qaida, please know what will come your way: death, detention, prosecution. If you are thinking about plotting with the enemy inside our country to do the rest of us harm, please understand what is coming your way: the full force of the law.

The law I am talking about is the law of armed conflict. You subject yourself to being held as an enemy of the people of the United States, interrogated about what you know and why you did what you did or planned to do, and you subject yourself to imprisonment and death. The reason you subject yourself to that regime is because your decision to turn on the rest of us and help a group of people who would destroy our way of life is not something we idly accept. It is not a common, everyday crime. It is a decision by you to commit an act of aggression against the rest of us.

I hope and pray this Senate will not, for the first time in American history, deny our ability to interrogate and find intelligence from those citizens who choose to associate with the enemy on our soil, because if we do that, it will be a deviation from the law that has existed at a time when we need that law the most.

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Mr. GRAHAM. Now, we are good friends, and we are going to stay that way. But you keep saying something, Senator Durbin, that is not true. The law of the land is that an American citizen can be held as an enemy combatant. It is the Hamdi decision, and I quote:

There is no bar to this Nation's holding one of its own citizens as an enemy combatant.

Hamdi was an American citizen captured in Afghanistan fighting for the Taliban. Justice O'Connor specifically recognized that Hamdi's detention could last for the rest of his life because law of war detention can last for the duration of the relevant conflict.

The Padilla case involves an American citizen captured in the United States, held for 5 years as an enemy combatant, and the Fourth Circuit reviewed his case and said that we could hold an American citizen as an enemy combatant.

To my good friend from Illinois, throughout the history of this country American citizens in every conflict have, unfortunately, decided to side with the enemy at times. In re Quirin is a 1942-1943 case that involved American citizens assisting German saboteurs. They were held under the law of war because the act of collaborating with the enemy was considered an act of war, not a common crime.

So the law of the land by the courts is that an American citizen can be held as an enemy combatant. That has been the law for decades.

What Senator Feinstein would do is change that. The Congress would be saying we cannot hold an American citizen as an American combatant.

I do appreciate the time. Now, let me tell you why I think that is important.

The Senator is a very good lawyer. Under the domestic criminal law, we cannot hold someone indefinitely and question them about enemy activity: What do you know about the enemy? What is coming? What were you doing? Where did you train? Under domestic criminal law, we can't question somebody in a way that would put them in jeopardy.

Under military intelligence gathering we can question an enemy prisoner without them having a lawyer to be able to find out how to defend America. If we can't hold this person as an enemy combatant, the only way we can hold them is under domestic criminal law. When the interview starts and the guy says: I want my lawyer; I don't want to talk to you anymore--under the criminal justice model there is a very limited time we can hold them or question them without reading them their rights or giving them a lawyer.

Under intelligence gathering our Department of Defense, the FBI, and the CIA can tell the individual: You are not entitled to a lawyer. You have to sit here and talk with us because we want to know what you know about present, past, and future attacks.

If we can't hold an American citizen who has decided to collaborate with al-Qaida as an enemy combatant, we lose that ability to gather intelligence. That is the change that Senator Feinstein is proposing; that the law be changed by the Congress to say enemy combatant status can never be applied to an American citizen if they collaborate with al-Qaida. That would be a huge loss of intelligence gathering, it would be a substantial change in the law, and it would be the first time any Congress has ever suggested that an American citizen can collaborate with the enemy and not be considered a threat to the United States from the military point of view. I don't want to go down that road because I think that is a very bad choice in the times in which we live.

So to my good friend, the law is clear we can hold an American citizen as an enemy combatant. The Congress is contemplating changing that, and I think it would be a very bad decision in the times in which we live to deny our ability to hold an American citizen and question them about what they know and why they decided to join al-Qaida.

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Mr. GRAHAM. Simply stated, if a person decides to collaborate with al-Qaida in a very limited way, can we hold them? They have to be a member of al-Qaida or affiliated with it or be involved in a hostile act. But if they do those things, historically, American citizens who chose to side with the Nazis--in this case, al-Qaida--have been viewed by the rest of us not as a common criminal but as a military threat.

Now is not the time to change that. We need that ability to question that person: Why did you join al-Qaida? Where did you train? What do you know about what is coming next? And the only way we can get that information is to hold them as an enemy combatant and take all the time we need to protect this Nation and interrogate.

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Mr. GRAHAM. Thank you. And this is a very good exchange.

My view is that when we capture somebody at home and the belief is that they are now part of al-Qaida, that if we want to read them their Miranda rights and put them in Federal court, we have the ability to do that. This legislation doesn't prevent that from happening.

Does it, I ask Senator Levin?

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Mr. GRAHAM. But what Senator Feinstein is proposing is that no longer do we have the option of holding the American citizen as an enemy combatant to gather intelligence, and we don't have the ability to hold them for a period of time to interrogate them under the law of war.

What I would suggest to the Senator is that the information we receive from Guantanamo Bay detainees has been invaluable to this Nation's defense. To those who believe it was because of waterboarding, I couldn't disagree more. The chief reason we have been able to gather good intelligence at Guantanamo Bay is because of time.

The detainee is being humanely treated, but there is no requirement under military law to let the enemy prisoner go at a certain period of time.

If you take away the ability to hold an American citizen who has associated himself with al-Qaida to be held as an enemy combatant, you can no longer use the technique of interrogating him over time to find out what he knows about the enemy.

You are worried about prosecuting them. I am worried about finding out what they know about future attacks. They are not consistent. You can prosecute somebody. That is part of the law. What the Senator is taking away from us is the ability to gather intelligence. Our criminal justice system is not set up to gather intelligence.

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Mr. GRAHAM. Please understand what you are about to do if you pass the Feinstein amendment. You will be saying as a Congress, for the first time in American history, an American citizen who allies himself with an enemy force can no longer be held as an enemy combatant. The In Re Quirin decision was about American citizens aiding Nazi saboteurs, and the Supreme Court held then that they could be held as enemy combatants. So as much respect as I have for Senator Durbin, it has been the law of the United States for decades that an American citizen on our soil who collaborates with the enemy has committed an act of war and will be held under the law of war, not domestic criminal law. That is the law back then. That is the law now.

Hamdi said that an American citizen--a noncitizen has a habeas right under law of war detention because this is a war without end. The holding of that case was not that you cannot hold an American citizen, it is that you have a habeas right to go to a Federal judge and the Federal judge will determine whether the military has made a proper case. It has nothing to do with an enemy combatant being held as an American citizen. What this amendment would do is it would bar the United States in the future from holding an American citizen who decides to associate with al-Qaida.

In World War II it was perfectly proper to hold an American citizen as an enemy combatant who helped the Nazis. But we believe, somehow, in 2011, that is no longer fair.

That would be wrong. My God, what are we doing in 2011? Do you not think al-Qaida is trying to recruit people here at home? Is the homeland the battlefield? You better believe it is the battlefield.

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Mr. GRAHAM. That is the point. Why would you say that if you are in Afghanistan, we can blow you up, put you in jail forever, but if you make it here, all of a sudden we cannot even talk to you about being part of al-Qaida. What a perverse outcome, to say if you make it to America, you are home free; you cannot be interrogated by our military or our CIA; you get a lawyer. And that is the end of the discussion. That is what you would be doing. That is crazy. No Congress has ever decided to do that in other wars. If we do that here, we are changing the law in a way that makes us less safe. That is not going to be on my resume.

It is not unfair to make an American citizen account for the fact that they decided to help al-Qaida to kill us all and hold them as long as it takes to find intelligence about what may be coming next. And when they say ``I want my lawyer,'' you tell them ``Shut up. You don't get a lawyer.''

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Mr. GRAHAM. I thank the Chair.

As I understand it, the reason the Senator is having to do this is because President Obama, by Executive order, prevented the CIA and other agencies from using any enhanced interrogation techniques that have been classified in the past; is that correct?

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Mr. GRAHAM. If I may, let me ask another question. All of us agree we don't want to torture anybody. Waterboarding is not the way to get good intelligence. Not only is it not the right thing to do, it is just not the wise thing to do. But we believe we have gone too far the other way; that when the President said no interrogation technique is available to our intelligence community other than the Army Field Manual, does my colleague agree that, for the first time in American history, we are advertising to our enemies what we can do to them if we capture them, and no more can be done?

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Mr. GRAHAM. My good friend from Connecticut is aware there is a proposal pending on the floor of the Senate that would say, for the first time in American history, if a U.S. citizen decides to collaborate with an enemy, they cannot be held as an enemy combatant. I think the Senator is very familiar with the history of the law in this area. Unfortunately, during the entire history of our country, during other conflicts, American citizens have, on occasion, collaborated with the enemy, one of the most famous cases being the In re Quirin case, where an American citizen in New York and other places was helping Nazi saboteurs try to sabotage America.

In that case, the Supreme Court ruled an American citizen could be detained as an enemy combatant because the decision to collaborate with the enemy was a decision to go to war with their country, not a common crime, and that the law to be applied was the law of war. I am certain the Senator is familiar with the Hamdi case, where an American citizen seized in Afghanistan was allowed to be held as an enemy combatant. The Hamdi decision reaffirmed In re Quirin, and the Padilla case involved an American citizen captured in the United States accused of collaborating with al-Qaida.

All of those cases reaffirm the law of the land is, if someone chooses to help al-Qaida, they have committed an act of war against their fellow citizens, and they can be held as an enemy combatant for an indeterminate period of time so that we can gather intelligence about what they may have done or about what they know about the enemy.

Does the Senator from Connecticut agree that now would be a very bad time for the Congress to say, for the first time in American history, if an American citizen decides to help al-Qaida attack us, to kill us, our military can't hold them as an enemy combatant and find out what they were up to?

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