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Mr. GRAHAM. I thank my colleague. That is a very good question.
This has been a very lively debate. Senator Paul has a lot of passion, and that is a great thing. This is an important issue. We should be talking about it, and I welcome a reasoned discussion. But to my Republican colleagues, I don't remember any of you coming down here suggesting that President Bush was going to kill anybody with a drone--I don't even remember the harshest critics of President Bush from the Democratic side. They had a drone program back then, so what is it all of a sudden about this drone program that has gotten every Republican so spun up? What are we up to here?
I think President Obama has, in many ways, been a very failed President. I think his executive orders overstep, I think he has intruded into the congressional arena by Executive order, I think ObamaCare is a nightmare, and there are 1,000 examples of a failed Presidency, but there is also some agreement. People are astonished, I say to the Senator, that President Obama is doing many of the things President Bush did. I am not astonished. I congratulate him for having the good judgment to understand we are at war.
To my party, I am a bit disappointed that you no longer apparently think we are at war. Senator Paul, he is a man unto himself. He has a view I don't think is a Republican view. I think it is a legitimately held libertarian view.
Remember, Senator Paul was the one Senator who voted against a resolution that said the policy of the United States will not be to contain a nuclear-capable Iran. It was 90 to 1. To his credit, he felt that would be provocative and it may lead to a military conflict. He would rather have a nuclear-capable Iran than use military force, and he said so--to his credit. Ninety of us thought, well, we would like not to have a military conflict with Iran, but we are not going to contain a nuclear-capable Iran because it is impossible.
What would happen is that if Iran got a nuclear weapon, the Sunni Arab States would want a nuclear weapon, and most of us believe they would share the technology with the terrorists, who would wind up attacking Israel and the United States. It is not so much that I fear a missile coming from Iran; I fear, if they got a nuclear weapon or nuclear technology, they would give it to some terrorist organization--like they gave IEDs to the Shia militia in Iraq to kill Americans--and they would wreak havoc on the world.
So we don't believe in letting them have it and trying to contain them because we believe their association with terrorism is too long and too deep, that it is too dangerous for Israel and too dangerous for us. But Senator Paul, to his credit, was OK with that; I just disagree with him.
As to what he is saying about the drone program, he has come our way some, and I appreciate that. Before, he had some doubt in his mind as to whether we should have killed Anwar al-Awlaki in Yemen--an American citizen who had collaborated with al-Qaida and was actually one of the military leaders of al-Qaida in Yemen, who had radicalized Major Hasan, and who had been involved in planning terrorist attacks against U.S. forces throughout the region.
President Obama was informed through the military intelligence community channels of Anwar al-Awlaki's existence, all the videos he made supporting Jihad and killing Americans, and he, as Commander in Chief, designated this person as an enemy combatant.
Mr. President, you did what you had the authority to do, and I congratulate you in making that informed decision.
And the process to get on this target list is very rigorous--I think sometimes almost too rigorous.
But now, apparently, Senator Paul says it is OK to kill him because we have a photo of him with an RPG on his shoulder. He has moved the ball. He is saying now that he wants this President to tell him he will not use a drone to kill an American citizen sitting in a cafe having a cup of coffee who is not a combatant. I find the question offensive.
As much as I disagree with President Obama, as much as I support past Presidents, I do not believe that question deserves an answer because, as Senator McCain said, this President is not going to use a drone against a noncombatant sitting in a cafe anywhere in the United States, nor will future Presidents because if they do, they will have committed an act of murder. Noncombatants, under the law of war, are protected, not subject to being killed randomly.
So to suggest that the President won't answer that question somehow legitimizes that the drone program is going to result in being used against anybody in this room having a cup of coffee cheapens the debate and is something not worthy of the time it takes to answer.
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Mr. GRAHAM. It has been a long-held concept in American jurisprudence that when an American citizen sides with the enemies of our Nation, they can be captured, held, and treated as an enemy combatant; they have committed an act of war against our country, not a common crime.
In World War II, German saboteurs landed on Long Island. They had been planning and training in Germany to blow up a lot of infrastructure--and some of it was in Chicago. So they had this fairly elaborate plan to attack us. They came out of a submarine. They landed on Long Island. And the plan was to have American citizens sympathetic to the Nazi cause--of German origin, most of them--meet them and provide them shelter and comfort. Well, the FBI back then broke up that plot, and they were arrested. The American citizens were tried by military commission, they were found guilty, and a couple of them were executed.
Now, there has been a case in the war on terror where an American citizen was captured in Afghanistan. Our Supreme Court reaffirmed the proposition that we can hold one of our own as an enemy combatant when they align themselves with the forces against this country.
This Congress, right after the September 11 attacks, designated authorization to use military force against al-Qaida and affiliated groups. So the Congress has given every President since 9/11 the authority to use military force against al-Qaida and affiliated groups. And American citizens such as Anwar al-Awlaki and that guy Hamdi who was captured in Afghanistan have been treated as enemy combatants, and if President Obama does that, he is doing nothing new or novel.
What would be novel is for us to say that if a terrorist cell came to the United States, if an al-Qaida cell was operating in the United States, that is a common crime and the law of war doesn't apply. It would be the most perverse situation in the world for the Congress to say that the United States itself is a terrorist safe haven when it comes to legal rights; that we can blow you up with a drone overseas, we can capture you in Afghanistan and hold you under the law of war, but if there is a terrorist cell operating in the
United States, somehow you are a common criminal and we will read you your Miranda Rights.
I just have this one question to get Senator McCain's thoughts. I hope we realize that, hypothetically, there are patriot missile batteries all over Washington that could interdict an airplane coming to attack this Capitol or the White House or other vital government facilities.
I hope the Senator understands--Senator McCain is a fighter pilot--that there are F-15s and F-16s on 3-minute to 5-minute alert all up and down the east coast. If there is a vessel coming into the United States or a plane has been hijacked or a ship has been hijacked that is loaded with munitions or the threat is real and they have taken over a craft and are about to attack us, I hope all of us would agree that using military force in that situation is not only lawful under the authorization to use military force, it is within the inherent authority of the Commander in Chief to protect us all.
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Mr. GRAHAM. It should be construed as a reasonable ability to defend the homeland against a real threat. And the question is, Do you feel threatened anymore? I do. I think al-Qaida is alive and well.
And to all those who have been fighting this war for a very long time, multiple tours in Iraq and Afghanistan, who have tried to keep the war over there so it doesn't come here, to the failed plots that have been broken up by the CIA and the FBI, God bless you. We have to be right every time; they only have to be right once.
If you think the homeland is not a desire of al-Qaida, it is absolutely on the top of their list. They are recruiting American citizens to their cause, and unfortunately a few will probably go over to their side. Thank God it will be just a few.
But to take this debate into the absurd is what I object to. We can have reasonable disagreements about, the regulatory nature of the drone program should be under the Department of Defense and what kind of oversight Congress should have. I think that is a really good discussion, and I would like to work with Senator Durbin and others to craft--the Detainee Treatment Act was where Congress got involved with the executive branch to come up with a way to better handle the detainee issue.
But the one thing I have been consistent about is I believe there is 1 Commander in Chief, not 535, and I believe this Commander in Chief and all future Commanders in Chief are unique in our Constitution and have an indispensable role to play when it comes to protecting the homeland. If we have 535 commanders in chief, then we are going to be less safe. And if you turn over military decisions to courts, then I think you have done the ultimate harm to our Nation--you have criminalized the war. And I don't think our judiciary wants that.
So as much as I disagree with President Obama, I think you have been responsible in the use of the drone program overseas. I think you have been thorough in your analysis. I would like to make it more transparent. I would like to have more oversight.
As to the accusation being leveled against you that if you don't somehow answer this question, we are to assume you are going to use a drone--or the administration or future administrations would--to kill somebody who is a noncombatant--no intelligence to suggest there are enemy combatants sitting in a cafe hit by a Hellfire missile--I think it is really off base.
I have this one final thought. If there is an al-Qaida operative U.S. citizen who is helping the al-Qaida cause in a cafe in the United States, we don't want to blow up the cafe. We want to go in there and grab the person for intelligence purposes.
The reason we are using drones in Afghanistan and Pakistan is we don't have any military presence along the tribal border. The reason we are having to use drones is we can't capture people. The preference is to capture them, not to kill them. But there are certain areas where they operate that the only way we can get to them is through a drone strike.
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Mr. GRAHAM. That is a very good point.
I look forward to a discussion about how to deal with a drone program. It is just a tactical weapon. It is an air platform without a pilot.
Now, if there is a truck going toward a military base or nuclear powerplant, we have a lot of assets to interdict that truck. Maybe you don't need the F-16. But I guarantee you, if there was a hijacked aircraft coming to the Capitol, the President of the United States would be well within his rights to order the Patriot missile battery to shoot that plane down or have an F-16 shoot it down. And we are ready for that, by the way.
I would just suggest one thing. The number of Americans killed in the United States by drones is zero. The number of Americans killed in the United States by al-Qaida is 2,958. The reason it is not 2 million, 20 million, or 200 million is because they can't get the weapons to kill that many of us. The only reason it is 2,958 is because their weapons of choice couldn't kill more. Their next weapon of choice is not going to be a hijacked airplane up there; it is going to be some nuclear technology or a chemical weapon, a weapon of mass destruction. That is why we have to be on our guard.
When you capture someone who is associated with al-Qaida, the best thing is to hold them for interrogation purposes. We found bin Laden not through torture, we found bin Laden through a decade of putting the puzzle together.
Senator Durbin and Senator McCain, both are very effective advocates that we have to live within our values and that when we capture somebody, we are going to hold them under the law of war. We are going to explore the intelligence, but we are going to do it within the laws that we signed up to, such as the Geneva Conventions, the Convention Against Torture.
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Mr. GRAHAM. If I can add, let me tell the Senator about imminent threat and military law. In Iraq we had disabled terrorist insurgents. There was a big debate in the Marine Corps because under military law when a lawful combatant, a person in uniform, has been disabled and it does not present an imminent threat, we don't have the ability to shoot them. OK.
The terrorists in Iraq put IEDs on wounded belligerents, unlawful enemy combatants. So the Marine Corps wrestled very long and hard with the rules of engagement. If you come upon somebody who is wounded, apparently was disabled, under what circumstances could you use lethal force because they may be booby-trapped.
To the Marine Corps' credit, they came up with a balance between who we are--we just don't shoot even our enemies who are helpless and wounded--and the ability for force protection.
Here is what I would say about the circumstance in question. The process of determining who an enemy combatant is has always been a military process. It is not a congressional debate. Our committees don't get a list of names and we vote on whether we think they are enemy combatants. Courts don't have trials over who is an enemy combatant. If there is a question about enemy combatant status under the Geneva Conventions, you are entitled to a single hearing officer and that is all. In World War II, there were a lot of people captured in German uniform who claimed they were made to wear the uniform by the Germans. All of them had a hearing on the battlefield by a single officer. It has been long held by military law it is a military decision, not judicial decision or legislative decision, to determine the enemy of the nation.
So President Obama has taken this far beyond what was envisioned. This administration has a very elaborate process to determine who should be determined to be an enemy combatant. I think it is thorough. I think it has many checks and balances. As much as I disagree with this President on many issues, I would never dream of taking that right away from him because he is the same person, the Commander in Chief, whoever he or she may be in the future, that we give the authority to order American citizens in battle where they may die. He has the authority to pick up a phone, Senator McCain, and say you will launch today, and you may not come back.
I cannot imagine a Congress who is OK with the authority to order an American citizen in battle--we don't want to take that away from him, I hope--that is uncomfortable with the same American determining who the enemy we face may be.
As to American citizens, here is the law. If you collaborate with al-Qaida or their affiliates and you are engaged in helping the enemy, you are subject to being captured or killed under the law of war. What is an imminent threat? The day that you associate yourself with al-Qaida and become part of their team, everywhere you go and everything you do presents a threat to the country. So why do we shoot people walking down the road in Pakistan? They don't have a weapon. There is no military person in front of them who is threatened. The logic is that once you join al-Qaida, you are a de facto imminent threat because the organization you are supporting is a threat.
For someone to suggest we have to let them walk down the road, go pick up a gun and head toward our soldiers before you can shoot them is not very healthy for the soldier they are trying to kill and it would be a total distortion of law as it exists. Back here at home, and I will conclude----
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Mr. GRAHAM. If I could just have 2 minutes of wrapup, I will. To my fellow citizens, the chance of you being killed by a drone--because you go to a tea party rally or a moveon.org rally or any other political rally or you are just chatting on the Internet quietly at home--by your government through the use of a drone is zero, under this administration and future administrations. If that day ever happened, the President of the United States or whomever ordered such an attack would have committed murder and would be tried. I don't worry about that.
Here is what I worry about; that al-Qaida, who has killed 2,958 of us, is going to add to the total if we let our guard down. I will do everything in my power to protect this President, whom I disagree with a lot, and future Presidents from having an ill-informed Congress take over the legitimate authority under the Constitution and the laws of this land to be the Commander in Chief on behalf of all of us.
As to any American citizen thinking about joining with al-Qaida at home or abroad: You better think twice because here is what is going to come your way. If we can capture you, we will. You will be interrogated. You will go before a Federal judge and one day you will go before a court and you will have a lot of legal rights, but if you are found guilty, woe be unto you.
Here is another possibility. If you join with these thugs and these nuts to attack your homeland and if we have no ability to capture you, we will kill you and we will do it because you made us. The process of determining whether you have joined al-Qaida is not going to be some Federal court trial. It is not going to be a committee meeting in the Congress. Because if we put those conditions on our ability to defend ourselves, we cannot act in real time.
Bottom line: I think we are at war. I think we are at war with an enemy who would kill us all if he could, and every war America has been in we have recognized the difference between fighting crime and fighting a war. If you believe, as I do, we are at war, those who aid our enemies are not going to be treated as if they robbed a liquor store. They are going to be treated as the military threat they are.
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