National Defense Authorization Act for Fiscal Year 2012--Conference Report

Floor Speech

By:  Lindsey Graham
Date: Dec. 15, 2011
Location: Washington, DC

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Mr. GRAHAM. I thank the Senator from New Hampshire who has been a great leader on this issue.

Let me just tell my colleagues what drives my thinking. I think we are at war--I don't think it, I believe it. I hope my colleagues believe it too, and I know America is part of the battlefield because the enemy would like to destroy our country.

If we capture an al-Qaida operative overseas, does anybody in this body suggest that we should give them a lawyer or read them their rights? In World War II, if we had captured a Nazi soldier overseas and started saying they had the right to remain silent and we would give them a lawyer, even though Miranda didn't exist at the time, people would have run us out of town.

So if we believe we can kill an American citizen who has joined al-Qaida--the Awlaki case, where the President of the United States made an executive decision under the rule of the law, not through a court decision, to target an American citizen who had aligned themselves with the enemy--then if we can kill them, which is pretty indefinite, why can't we capture and hold them?

Now, that would be the dumbest thing in the history of the world for a nation to say: We all acknowledge the executive branch's power to target an American citizen who has aligned themselves with the enemy. We can kill them overseas, we can capture them overseas, we can interrogate them about what they know about future attacks, but when they get here we have to treat them as a common criminal.

I think what we share, I say to the Senator from New Hampshire, is that we think al-Qaida operatives, citizens or not, are not common criminals. We think they are crazy people, warriors, bent on our destruction, who would blow themselves up just as quickly as they would blow you up, and they don't care if they blow themselves up. The only reason the Christmas Day Bomber didn't kill a bunch of people is because his shoe didn't go off. The only reason the Times Square Bomber didn't kill a bunch of people is because the bomb didn't go off.

If you are an American citizen and you want to help al-Qaida kill Americans and destroy your own country, here is what is coming your way. If you happen to be listening to this debate, please understand the law as it is today and as it is going to be after this bill is passed: We are at war. The authorization to use military force passed by the Congress right after the attacks against this Nation designates al-Qaida as a military threat, not a common criminal threat, so we apply the law of war. There are two legal systems at play: domestic criminal law that well serves us as a nation to deal with crime--even the worst person, the worst child abuser gets a lawyer and is presumed innocent. Believe it or not, war criminals get lawyers and are presumed innocent.

I am proud of both systems, but the law enforcement model doesn't allow us to hold someone for a period of time to gather intelligence. Under the law enforcement model, once we capture someone, we have to start reading them their rights and providing them with a lawyer. Under the law of war model, we can hold someone who is part of the enemy force and gather intelligence.

This is not the first war where American citizens have sided with the enemy. In the In re Quirin case, a World War II case where American citizens aided Nazi saboteurs, here is what the Court said: There is no bar to the Nation holding one of its own citizens as an enemy combatant. That has been the law for decades.

So if it made sense to hold an American citizen who was helping the Nazis under military authority because they were helping a military enemy of the Nation to gather intelligence, why in the world wouldn't it make sense to hold somebody who has joined with al-Qaida to gather intelligence about the next attack?

Let me give an example of what we may face. Homegrown terrorism is on the rise.

The Internet is out there. It is a good thing and a bad thing. But the idea of people getting radicalized and turning against their own country is a growing threat.

So the likelihood in the future of someone getting radicalized--an American citizen here at home going to Pakistan, getting educated in one of these extremist madrassas, coming back home, getting off the plane at Dulles Airport, coming down to the Mall and starting to shoot American citizens and tourists alike--is very real.

What this legislation does is it says from the Congress's point of view we recognize the person who is aligned with al-Qaida is not a common criminal, that we expressly authorize the indefinite detention of someone who has joined al-Qaida operations.

Why is that important? Don't you think most Americans, I say to the Senator, would be offended if after the person who went on a rampage in the Capital to kill American citizens, to kill people in America, was captured, we could not question them about: Is there somebody else coming? We would have to say: You have the right to remain silent. Here is your lawyer.

What we should do with that person who went to Pakistan and got radicalized and wants to come back and kill us all is hold them in military custody, as we have done in every other war, and find out all we can about future attacks and what they know. Because we are not fighting a crime; we are fighting a war. That has been the law, according to the Supreme Court, for decades, and all we are doing in Congress is saying, statutorily: We recognize the authority of this President and every other President to hold an enemy combatant for intelligence-gathering purposes indefinitely, whether they are captured at home or abroad, because that only makes logical sense. The idea of criminalizing the war and not being able to gather intelligence will put our country at risk.

Let me say this about the system: No one can be held as an enemy combatant under the law we have constructed without having their day in Federal court. So do not worry about going to a tea party or a moveon.org rally or an Occupy Wall Street rally and somebody holding you as a political prisoner under this law. The only people who can be held under military custody for an indefinite period are ones who have been found to have associated with al-Qaida in an overt way, and the government has to prove that to a Federal judge. If the Federal judge does not believe the government has made their case, the person is released. If the Federal judge says to the U.S. Government: You have convinced me that the person in front of me is cooperating and has joined al-Qaida and is overtly engaged in hostilities against the United States. I hereby authorize to you to hold that person to gather intelligence, how long can you hold them? As long as it takes to make us safe.

Here is what the law does. Every year, the person being held as an enemy combatant has an annual review process where the experts in our government look at the threat this person possesses, whether we have more intelligence to be attained, and there is a legal process to review ongoing detention.

Here is what some of my colleagues would say: Wait a minute. You cannot do that. We are going to say, as a Member of Congress, that at an artificial date you have to let that person go or try them? A lot of these cases will be based on intelligence that may not go to an article III court. We may have to compromise our national security. We can prove to a judge they are a member of al-Qaida, but we are not going to take them to the criminal court because that is not in our national security interest.

The key fact is, no one is held as an enemy combatant without judicial review. Once you are determined to be an enemy combatant, then we are going to apply the law of war, as we have for 200 years. The law of war says: No nation has to let an enemy prisoner go or prosecute them--because we are not fighting a crime; we are fighting a war.

If you are an al-Qaida operative, you could get killed, even if you are an American citizen, by assisting the enemy at home or abroad. So do not join al-Qaida because you could lose your life. If you do get captured, you can be held indefinitely under the law of war because you have committed an act of war.

Ms. AYOTTE. Would the Senator from South Carolina yield for a question?

Mr. GRAHAM. I am pleased to.

Ms. AYOTTE. Isn't it true that included within the Defense authorization language in the detainee provisions is that:

Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

In other words, what is the law today--as you just described it--we are reaffirming in this bill. But we are not adding or subtracting from the President's authority that he has, as the Commander-in-Chief of our country, to protect our country against members of al-Qaida.

Mr. GRAHAM. The Senator is correct.

But here is what we are doing. Here is what Lindsey Graham is doing, and Carl Levin, and an overwhelming number of the Members of this body are about to do. We are about to pass a defense authorization bill that increases military pay, that has a lot of great things. But we are about to say as a Congress: We believe we are at war, and we reject the idea--the Libertarian idea; who are great Americans--that if you get to America somehow, it is no longer a war.

I think the Libertarians agree that if you catch an al-Qaida operative, including an American citizen, overseas, we do not have to read them their rights, and we do not have to give them a lawyer. But somehow, the perverse logic is, if they make it to America to attack us, whether they are a citizen or not, somehow they get a special deal.

All of us who are voting for this bill say that is crazy; we are at war. For no other war has that been the case. If you would have suggested in 1942 that the American citizen helping the Nazis commit sabotage against the United States had a special status and could not be treated in the fashion of a military threat to the country, they would have run you out of town.

So we are 10 years out from the attacks of 9/11, and here is what we are rejecting: We are rejecting the criminalization of the war, but we are doing it in a smart way. We are not telling the executive branch they have to go into a law-of-war detention system. We are just saying that is available to them. We are not telling the executive branch they have to try people in military commissions. We are just saying to them that is available for noncitizens. What we are telling the executive branch is that we believe we are at war, and that narrow group of people--thank God it is a narrow group--who join al-Qaida do not have special privileges when it comes to destroying our homeland; that if they make it to America, the closer they get to us, the more tools we should have available to protect ourselves.

So we are on record--at least I am and I think the body as a whole. Senator Levin has been terrific. The administration has been great to work with. Finally, after 10 years, the Congress of the United States, through this legislation, is going to make the simple statement, simple proposition that under the law of war, you can be held as an enemy combatant indefinitely to protect this Nation. Because when you join al-Qaida--the enemy of us all--we are not worried about whether we are going to prosecute you right away. We are worried about what you know about the next attack coming.

Let me tell you why we need this flexibility. The Christmas Day Bomber--the bomb did not go off, thank God; it was just luck--was read his Miranda rights within 45 minutes. Five weeks later, his parents convinced him to cooperate. What we are suggesting is there is another way that has been used in other wars, that the U.S. intelligence community, law enforcement community, and military have an option available to them.

We could grab this person who has just tried to blow up an airplane over Detroit--American citizen or not--and we can hold them without telling them they have a right to a lawyer and reading them their Miranda rights. Because we are trying to find out is another airplane coming and what do they know about the enemy and what were they up to and where did they train.

If we take that option off the table, we will have diminished our national security. We will have overturned what every other time of war has been about. We would be the first Congress in the history of the country to reject the idea that we can hold someone who is collaborating with the enemy under the law of war. Let's reverse this. This is the first time in history people have said on the floor of the Senate: We reject the Supreme Court holdings that allow the American Government to hold someone as an enemy combatant when they have joined the enemy forces at home or abroad.

So those of us who are voting for this, we are saying we accept the proposition that if you join al-Qaida, you can be killed, you can be captured, you can be interrogated. I am willing to accept the heat for making that decision. Because if we cannot kill them and we cannot capture them and we cannot interrogate them, we have made a huge mistake because these people hate us. They hate who we are. They hate what we stand for. They would kill us all if they could. They are out there, and some of them are among us who have the title of ``American citizen.''

But let me tell you about that title. Not only does it have rights, it has responsibilities. Our courts have said there is nothing in our law or our Constitution that prevents us from holding one of our own when they join the enemy. Because when they join the enemy, they have not committed a crime; they have turned on the rest of us, and they should accept the consequences of being at war with America. Being at war with America is something they should fear, and if they do not fear being at war with America, we have made a huge mistake.

I believe in due process. No one is going to prison without a Federal judge's oversight. No one stays in prison indefinitely without an annual review. But, my God, we are not going to arbitrarily say: You have to go. You have to be let go because of the passage of time and we are not going to criminalize this war--because it is a war.

As sure as I am standing here talking today, we are going to be wrong once. We have to be right every time, I say to the Senator. We have been lucky, and our men and women in uniform and our intelligence community and our FBI agents are doing a wonderful job. They are working night and day to protect us. The threats are growing. They are not lessening. There will come a day, I am sad to say, when we are going to get hit again. But when that day comes, we are going to make sure we have the tools to deal with it in terms of what it is: an act of war. We are going to have the tools available to this country to rein in the consequences because we are going to have the tools available to find out where is the next attack coming from.

We are not going to criminalize the war. We are going to fight it within our values. We are going to provide robust due process. But we are going to acknowledge as a body in Congress that our Chief Executive and those men and women in uniform, law enforcement agents, CIA agents--that they have our blessing to do their job, and we are going to acknowledge that they have the tools available in this war that were available to other like people in other wars.

Ladies and gentlemen, if there was ever a war where it was important to know what the enemy was up to and hit them before they hit us, it is this war. They could care less about losing their lives. The only way we will be safe is to gather intelligence, and we cannot gather intelligence, in my view, by locking down America to ``Dragnet'' standards. This is not a TV show. This is a real-world event that changes as I speak.

To Senator Levin, to Senator Ayotte, and to all those who have tried to create a compromise to enjoy bipartisan support--to the administration--thank you all. To the critics, some of your criticism has been unfounded. But you have the right to be a critic. You live in the State called ``Live Free or Die.''

Let me remind everybody, being a critic and being able to speak your mind sometimes means people have to die.

What I am----

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Mr. GRAHAM. This idea of civil liberties and the American way of life--if we do not fight for it, we are going to lose it. We are under siege and we are under attack. So let's fight back within our values. This bill allows us to fight back, and I am very proud of the product.

I thank Senator Levin for being such a good leader for the Nation at a time when we need good leaders.

I yield the floor.

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