National Defense Authorization Act for Fiscal Year 2013 - Continued

Floor Speech

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Mr. LEVIN. Mr. President, we are now going to proceed to a vote on the Merkley amendment. As I indicated, the amendment expresses the support of this body for the transition goals of the President, including the handover to Afghan security forces of primary responsibility for security throughout Afghanistan by mid-2013, the completion of the security transition process by the end of 2014--and of course that has to do with the completion and transition. That is not necessarily by any means a withdrawal of all troops but it is the intent that all combat forces be withdrawn by the end of 2014. I emphasize it is a sense-of-the-Senate resolution.

After the disposition of the Merkley amendment, we then intend to move to the Whitehouse amendment. The Whitehouse amendment has been cleared by the chairman and ranking member of the committee of jurisdiction. However, there is a desire to debate and have a rollcall on that amendment. We are asking Senator Whitehouse to be prepared immediately after this vote to call up formally and debate his amendment and any opponent or opponents of the amendment to be prepared to debate it at that time.

So it is our intent--and I ask unanimous consent--that immediately following the vote on the pending Merkley amendment, we then move to the Whitehouse amendment, and following the disposition of the Whitehouse amendment we then move to the Coburn amendment No. 3109, which will require debate, and, hopefully, we can work out a time agreement with Senator Coburn during this vote.

Finally, we are urging Senators who have amendments we have not yet addressed that they intend to press, or hope they can press, to meet with us during this vote so we can continue to make progress on this bill. We will be in tomorrow unless by some wonderful events we are able to finish this bill tonight.

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Mr. LEVIN. Mr. President, I very much oppose this amendment. We have a court system in this country which is second to none. To deny this administration or any administration the opportunity, should they choose to exercise their discretion, to charge terrorists as criminals seems to me to be highly unwise and is not a particularly strong step in the war against terrorism.

This amendment is undesirable. It would create a permanent restriction on the administration's options--not, by the way, just this administration's options, any administration's options in conducting the fight against terrorism. It prevents the administration's ability to bring any detainee from Guantanamo for any purpose, including their prosecution in court. I think it is unwise and not a strong step at all in the war on terror to deprive the President of the tools he might need to carry out the protection of this country from the threat of terrorism.

This amendment would permanently cut off the possibility of prosecuting these Guantanamo detainees in Federal court. I hope we do not do that. I hope we defeat the amendment of my friend from New Hampshire, Senator Ayotte.

Finally, this is what we call veto bait.

The administration continues to strongly oppose these provisions which intrude upon the executive branch's ability to carry out its military, national security, and foreign relations activities and to determine when and where to prosecute Guantanamo detainees.

So it is unwise in terms of our national security; it is unwise in terms of the rigidity it imposes on the executive branch as to where to prosecute terrorists, alleged terrorists, and it also jeopardizes the signing of this bill as soon as we can get this bill to a conference and get a conference report back to both bodies. So I hope we defeat the Ayotte amendment.

If we have any time left, I yield it back.

Mr. President, what is the pending business?

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Mr. LEVIN. Mr. President, it would be my intent, if we need additional time, unless there is something else that is needed at about 9:30 or so when this time runs out, to seek additional time for both--for anyone who needs it, frankly. I do not know about both sides, because this is a multifaceted debate that we are going to have here tonight on this issue.

I would yield myself 10 minutes. I would ask to be notified when I get to 10 minutes.

The Feinstein amendment provides that no authorization for the use of military force may be construed to authorize the detention of U.S. citizens or lawful resident aliens who are captured inside the United States, unless--and this is a big ``unless''--an act of Congress expressly authorizes such detention.

As I read the amendment, it says the military detention of U.S. citizens may be authorized in accordance with the law of war as long as this action is expressly authorized by Congress. Further, the amendment's requirement for express authorization applies only to the detention of U.S. citizens who are captured inside the United States. So no such authorization would be required for the detention of a U.S. citizen in the course of military operations overseas. I believe it is appropriate that Congress focus on the issue of military detention at the time they authorize the use of military force, as would be required by the Feinstein amendment.

As the Supreme Court has stated: Detention is a fundamental and accepted incident to armed conflict. Without such authority, our Armed Forces could be put in the untenable position of being able to shoot to kill but not to capture and detain enemy forces.

As to the ongoing conflict, I believe the 2001 authorization for the use of military force authorized the detention of U.S. citizens when appropriate in accordance with the laws of war.

I base this view on the fact that the Supreme Court has said so.

In the Hamdi case, the Supreme Court considered the relationship between the AUMF and the nondetention act which prohibits the detention of a U.S. citizen except where authorized by an act of Congress. The Supreme Court held in Hamdi that this statute does not preclude the detention of U.S. citizens on the battlefield in Afghanistan because the 2000 authorization for the use of military force, quoting the Supreme Court, ``is explicit congressional authorization for the detention of individuals'' in such circumstances. The Court explained that such detention is so fundamental and accepted as an incident to war as to be an exercise of the ``necessary and appropriate force'' that Congress authorized the President to use in the AUMF. In other words, the Supreme Court has already concluded that the authorization to use necessary and appropriate force is an explicit authorization to detain enemy combatants in accordance with the law of war, and that meets the test of the Feinstein amendment.

Any other conclusion would lead to absurd results, under which we would tie the hands of our Armed Forces even in the face of an actual invasion. For example, if a group of terrorists were to approach one of our Navy bases in boats loaded with bombs, our sailors protecting those ships at that base would be in the untenable position of being able to shoot to kill, but not to capture the enemy forces if Hamdi did not reach the conclusion it did.

Similarly, in the unthinkable event that we were to experience a 9/11-type attack, our military would be in the untenable position of having the authority to shoot down the hijacked aircraft but not to force them to land and to capture the enemy hijacker. Of course, we could not expect our military to inquire as to whether any of the enemy force were American citizens before deciding on the level of force to be applied.

As the Supreme Court explained in its Hamdi decision, ``the capture, detention, and trial of unlawful combatants, by 'universal agreement and practice,' are 'important incidents of war''' and a ``fundamental and accepted incident to war.''

What the Supreme Court said in Hamdi is explicit in the AUMF, in the authorization for use of military force, the core ``law of war'' authority for our military to capture and detain those who join enemy forces at a time of war and plan or participate in attacks against us. This core authority to use less than lethal force, rather than lethal force, in appropriate circumstances must be available to our military whenever and wherever it engages with the enemy.

Again, Senator Feinstein's amendment does not prohibit the military detention of U.S. citizens who are captured or apprehended inside the United States because a U.S. citizen who joins a foreign army and attacks the United States should be subject to detention as an enemy combatant if it does not prohibit military detention and if it is expressly authorized by law. I read this as a statute authorizing the use of military force itself or some other act of Congress.

This is a major difference between or from the amendment Senator Feinstein offered last year, which included no exception for congressional authorization. This new approach is appropriate because I believe that Congress ought to address the issue of detention of U.S. citizens when captured in the United States at the time that we authorize the use of force.

The Supreme Court in Hamdi held that the existing authorization for use of military force does address this issue and does explicitly, in their words, authorize detention of U.S. citizens in that situation which was on the battlefield in Afghanistan, but that it explicitly, again in the words of the Hamdi Court, authorized the detention of U.S. citizens in the case of an individual who was captured in Afghanistan who was attacking U.S. forces.

I believe the same reasoning applies to persons who join foreign armies and attack us militarily here in the United States when they bring the war here to the United States and attack us here. If they attack a Navy base and are captured by sailors defending their ships, the same logic that Hamdi applied to an attack in Afghanistan against our forces applies here. That is the same reason they used in that case to find that there was an explicit authorization for the detention of U.S. citizens in the Afghanistan circumstance; that it is an inherent fundamental function of war, that you be able to capture and detain people who are at war with you, applies when that act of war is carried out here in the United States, such as in the attack on a Navy base.

I request 1 additional minute.

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Mr. LEVIN. The Feinstein amendment provides an appropriate signal to Congress that in an authorizing context they should be aware of detention authority issues. Therefore, I intend to vote for the Feinstein amendment.

I yield the floor.

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Mr. LEVIN. That is my opinion, and that is the fundamental core ruling in the Hamdi case. Now, we have to be accurate. Hamdi applied circumstances to citizens that were captured in Afghanistan, but the reason they use led them to conclude there was an explicit--explicit--authorization to detain those citizens even though they are American citizens. Their argument was that capture and detention was inherent, in their words--so fundamental--to capture and detain as such is an accepted incident to war as to be an exercise of the necessary and appropriate force which Congress authorized the President to use.

So in my analogy, if a boatload full of al-Qaida, including an American citizen, comes to a Navy base and attacks that base and is captured by those sailors, that is surely an incident of war, and I believe the capture and detention of those al-Qaida terrorists would be the exercise of necessary and appropriate force which we authorized the President to use in the authorization for military force.

Mr. GRAHAM. I want to build on that just to make sure we understand about a potential attack on a Navy base here at home. No one is suggesting the military could not use force against an al-Qaida attack here at home. The Hamdi case was an American citizen captured in Afghanistan. I hope we are not trying to create a picture that somehow America is a place where our own military cannot fire a shot in defense of their ships or our country.

Let's say we have some ships up there in Virginia and we have a boatload of al-Qaida types trying to ram the ship. Does the Senator agree with me that our military can use force to defend us here at home against al-Qaida?

Mr. LEVIN. That is correct.

Mr. GRAHAM. So if our military is authorized to use force, they do not have to call the FBI or the Virginia State Police to shoot. They can shoot against an enemy themselves coming at them in America.

Mr. LEVIN. Coming into America and attacking us on a Navy base or----

Mr. GRAHAM. Right. Because we are not fighting a crime. We don't have to disarm our military and call the local cops and say: Would you please shoot these people before they get here? No. Our guys are going to shoot you. If you are an American citizen asked to get in a boat and asked to attack a military ship or installation in the United States, we are going to shoot you, and if we wound you, we are going to capture you. And here is what we are going to do to you as an incident of using force. The Supreme Court has said that when you authorize the use of force, it makes no sense to give that authorization if you don't have the power to detain because the worst thing you can do to the American military is to make them kill everybody and capture no one or let the other guys go. So kill-them-all is not good policy, and it is a bad spot to put your military in. And the option shouldn't be to kill them all or let them all go; the option should be to kill where you have to and, if you can, capture. Does the Senator agree with that?

Mr. LEVIN. I do.

Mr. GRAHAM. And our military can fire the shots because of the use of force to defend the homeland and to defend themselves here at home. And the Supreme Court says that once you authorize the ability to use force, it just follows, as night follows day, that detention is part of the ability to use force because, ladies and gentlemen, if it is not, you have turned our military into murderers because you are not supposed to shoot somebody and leave them wounded in the water, and you shouldn't watch them swim away. You capture them and interrogate them under the law of war. Isn't that what Hamdi is about and the point they are trying to make?

Mr. LEVIN. It is. As part of that point, it cites the Quirin case, which says:

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.

And here are the key words:

Citizens who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention.

Mr. GRAHAM. I will read another quote from Hamdi.

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

Hamdi's detention could last for the rest of his life because the law of war detention can last for the duration of the relevant conflict.

Here is what we are trying to do. We are trying to create a system consistent with the Hamdi decision, and quite frankly, ladies and gentlemen, what I am trying to avoid is the criminal paradigm because I know the difference between criminal law and law of war. Under the law of war, you can detain somebody for interrogation to find out what the enemy is up to if you believe that person to be part of the enemy.

And let me tell my friends, I do not want to take our criminal justice system and bastardize it. During the Bush years when we had the military commission rollout, they had a provision that in a military commission trial, the military jury could be given classified information but not share it with the defendant. I said: No. If a trial means anything, it means the right to confront those witnesses against you. I jealously guard that. The worst al-Qaida member in the world, when they go on trial in military commissions, will have a lawyer, a right to appeal to our Supreme Court, and will be able to confront every witness against them. An American citizen who joins al-Qaida or the Taliban will be tried in Federal court because we took military commissions off the table. That is the trial.

Here is the main point: If you are allowing our military to use force to protect themselves, as Hamdi says, it naturally follows that with the use of force comes the lawful detention. And that is why I will be voting for Feinstein. I think that is where most Americans are. If there is any confusion, we can talk about this in conference.

But, Senator Levin, I want to thank you for--since 2006--working with me and against me. You know, our dispute about what would be an active substitute for habeas went to the Supreme Court, and you won 5 to 4. Damn those Justices, but that is the way it goes. And you know what. There were some Republicans and Democrats who disagreed with me and you both. But I respect an independent judiciary, and I know Justice Roberts kind of got some people mad at him because of the ObamaCare decision, but that is the way it goes. That is the way these old judges are. I just really appreciate an independent judiciary.

I just want to say that after that decision in 2006 or 2007, how much of a pleasure it has been to work with you and others to try to find a way to achieve a balance in a war that is hard to understand. There is no capital to conquer, no airplanes to shoot down in terms of their jet fighters, there is no navy to sink, but they use boats to attack us and they use private planes to kill us. At the end of the day, we are at war. The outcome does matter, and I want to win this war. I know everybody in this body wants to win this war. But I want to live within our values.

So I will work with Senator Levin and Senator McCain and say that even though we are fighting the worst people on the planet, count me out when it comes to waterboarding. I remember when people on my side would say--and I understand them very well--why do you care about what we do to these people? They will cut our heads off.

Because we are Americans. It is not necessary to go down that road to win the war. And quite frankly, ladies and gentlemen, the opposite is true. You can't win this war if you don't realize you are in a war. We are not fighting common crime, we are fighting a vicious enemy. And we can do it within our values. We can do it within due process consistent with the law of war and, when we get in that criminal arena, consistent with criminal law.

As much as I disagree with this President, I will not deny him the ability that every Commander in Chief has had for decades as an option, if he chooses to use it. And if you want to go down the criminal road, we can, but we need the option. As much as I dislike President Obama, I am not going to use as a reason to change the law of war that Barack Obama may put some people in jail who disagree with him, and I am not going to buy into some of the rhetoric coming out of our side that a habeas corpus independent judiciary view means nothing if Obama appointed the judge. We are better than that.

I stand ready to vote for Feinstein, I stand ready to work with my colleagues to continue to find a way to fight and win a war within our values, the outcome of which will matter not only to us but those who follow.

God bless every person on the front line who is risking their life at home and abroad. And here is what you have as a promise between Senator Levin and myself and many others: We are going to give you the tools to keep us safe and to keep your comrades safe. We are not going to do things in this war that made no sense in other wars. You need our help, you need our prayers, and you need the tools to fight and win this war, and we will give you those tools.

I yield the floor.

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Mr. LEVIN. Mr. President, along the same lines, I would hope that at least with these four amendments--which are now ready to be debated and voted upon--that our friend from Oklahoma would allow that to proceed, with the notice that from thereon he would not allow any unanimous consent agreement. But this has been worked on for so long and these four amendments are lined up so nicely for debate tomorrow that I would urge him to relent and allow us to at least proceed to those four amendments. And he has now put the body on notice that he would not agree to any additional beyond that.

I happen to agree with my friend from Arizona. We are going to debate, folks. Sooner or later, these amendments are going to be debated, unless a cloture motion--which is going to be filed tomorrow--is approved on Monday. And then we are right back in the same problem we have had, which has just been eloquently described by Senator McCain. And if we don't vote cloture, this bill isn't going anywhere. If we do vote cloture, then we will have made it impossible for some people to offer amendments, which they should be allowed to offer.

Let us be clear on what is happening tomorrow, to the extent it is possible--which is not very extensive. And I want to get the Chair to confirm this. There is a pending amendment. It is a modified Kyl amendment. This has been modified so that it was been worked out with Senator Kerry. That is pending. Is the Senator correct?

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Mr. LEVIN. It is pending and will be modified tomorrow.

At that point the Chair is going to ask whether there is any additional debate on that amendment. If there is no additional debate, then the Chair is going to put the question. If there is a request for a rollcall, there will be a rollcall. If there is not, it will be voice voted. At that point, the floor is open. And I intend to then offer the Sessions amendment, the first one on this list, and then that is going to be open to debate. And if our colleagues want to come here tomorrow and filibuster or prevent a vote on the Sessions amendment, they are going to have to come here and debate.

But we have tried the best we know how to move this bill forward. We have done everything we know how, and we have made great progress, with the Members of this body being extremely cooperative. We are not giving up.

So the only technique left to us, given these two objections, is the one I just identified: to have the pending Kyl amendment, after it is modified, debated. If no one wants to debate, the Chair is going to put the question, or we will have a rollcall on it if people want it. And then the floor is open, and I will be offering the next one in line, which is the Sessions amendment. Then if people want to debate that or filibuster that, the rules of the Senate allow you to do it. But I don't think that is what is going to happen.

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