Marketplace Fairness Act of 2013 - Motion to Proceed

Floor Speech

Mr. GRAHAM. Very simply put, I have two goals. I think Americans want two things to happen in this case. They want the surviving suspect to be brought to justice. I am glad he survived, as hopefully we may learn some information from him that will make us all safer in the future. I am pleased he survived so we may try him in a court of law, before a Federal court in Massachusetts, to hold him accountable for his crimes. In the trial, he will be given a lawyer. He has the right to remain silent. He will be tried by a jury. He will be given all the rights associated with a Federal court trial. He is an American citizen, and we have never suggested otherwise.

As one of the primary authors of the 2009 Military Commissions Act, I expressly exempted American citizens from military commission trials. Why? I wanted to reserve that system for foreign terrorists. It doesn't mean I don't believe there will be domestic terrorism. It doesn't mean I don't envision an American citizen helping the foreign enemy. I do. Every war, unfortunately, we have been in during the history of our country, American citizens have joined forces and sided with the enemy. This is not an unusual event. What would be unusual is to say one could do so and not be treated under the law of war. We would be making history if we adopted that view.

Let me begin with a case in World War II. German saboteurs landed in Long Island. They had been planning for years an effort to come to our country. These were Germans who had lived in our country and went back to Germany and became Nazis. Because they spoke good English, they were recruited by the German intelligence service to come back and plan massive attacks on our homeland.

They had a cell here in America, some of whom were American citizens who joined the plot. Thanks to the great FBI work of this time and day, as soon as they landed the plot was foiled and the American citizens were captured. In 1944, 1945, and possibly as late as 1946, the American citizens who aided the German saboteurs were held as enemy combatants and tried in a military court. Three of them were hanged.

The case went to the U.S. Supreme Court, and the Supreme Court said: When you join the forces of our enemy, you are committing an act of war, not a common crime.

Tokyo Rose sided with the Japanese. She was tried and given a life sentence. Since 9/11, there have been three American citizens who have been involved with al-Qaida or the Taliban or affiliated groups. They have been held as enemy combatants. They have gone to trial in civilian court and the courts have blessed the holding of American citizens as enemy combatants.

Rumsfeld v. Hamdi was an American citizen captured in Afghanistan held under the law of war as an enemy combatant. He was eventually tried and the Court said, as in World War II, we can hold one of our own as an enemy combatant, recognizing the difference between a common crime and the law of war.

Mr. Padilla was held 4 years by the Bush administration. His case went up to the Fourth Circuit and the Fourth Circuit said: Yes, you can hold enemy combatants off the battlefield. That is the power the United States possesses at a time of war.

When you are fighting a war, the goal is to win the war and to find out about what the enemy is up to. When you are fighting a crime, the goal is to convict someone or have them found innocent. They are two different systems.

This young man will be going to Federal Court and a jury will decide if he is guilty of his crimes. What we are asking of the administration is: How do you gather intelligence in that system? It is not meant to gather intelligence. We don't want to limit ourselves as a Nation to asking questions about future attacks in the criminal justice system because here is the way that works. If I am his lawyer, I am not going to let you ask him any question about anything until I get a benefit for my client. So intelligence gathering now is controlled by the terror suspect and his lawyer. Is that smart? Now you are having to plea bargain to get intelligence.

What we are saying is, conduct the trial in civilian court--the only form available--but because there are international terrorist connections here--clearly they killed people in Boston not because they wanted their property or they were mad with the Boston city government, they killed--they slaughtered a young boy and his family and others because they have adopted a radical jihadist view of us as a Nation. The older brother was quoted as saying we are infidels, we are a colonial Christian power, we have corrupted Islam. They are trying to kill us and destroy our way of life because of what we believe.

The sooner we understand that, the better off we will be.

Here is my view about defending ourselves as a Nation. A criminal court is about due process and giving the accused a fair trial. Military intelligence gathering is about defending the Nation at war. The question we all have to answer for ourselves is: Is America at war? The answer, to me, is yes. We are at war with a radical ideology that hates everything we stand for.

Bin Laden is dead. We celebrate that. But al-Qaida is very much on the march. As a matter of fact, radical Islam is regenerating, and the way they are coming after us is to find people in our own backyard and turn them against us.

How could we have missed this? How could the intelligence services in Russia tell the FBI: You need to watch this guy; we believe he is a radical Islamist coming to your country to hurt you? How could we miss him going to Russia and coming back? How could we miss his YouTube videos where he is ranting and raving against us and threatening to take us down as a Nation?

These are questions to be asked and answered. And here is what we are suggesting: The surviving suspect, due to the ties these two have to radical Islamic thought, and the ties to Chechnya, one of the most radical regions in the world, the President should declare preliminarily that the evidence suggests this man should be treated as an enemy combatant. We could hold him for a period of time, question him without a lawyer, and none of the evidence could be used against him in the criminal proceeding. That is the best way to gather intelligence. The best way to gather intelligence is to have a rapport with him, take down the stories he is telling us and deconstruct them; spend time with him outside the criminal justice system.

We have gathered so much good intelligence from enemy combatants at Guantanamo Bay. You won't send him to Guantanamo Bay, but during the last decade we have exploited intelligence from enemy combatants--people who have joined the other side--and it has helped us figure out how to defend ourselves and find bin Laden.

All we are saying is when it comes to defending against future attacks, we want to talk to him without a lawyer. That is all we are saying. We want to talk to him without a lawyer so we can find out what he may know about what we face in the future, and when it comes to prosecuting him, we won't use anything we found against him. A first-year law student could convict him, but, my God, look what we are losing as a Nation by using this model. Instead of taking time out to interrogate him without the presence of counsel to learn about what did happen, we are now stuck in a criminal justice system where we can't ask him one question his lawyer won't allow.

I am not blaming the lawyer. My goodness, if I were his defense lawyer, no one would ask him one thing without my permission, and they would have to give a lot to get an answer to anything. All I am suggesting is we are at war, these two people fit the profile of folks who are trying to kill us, they are tied to overseas organizations potentially, so why in the world can't our country have some time with this person in the national security legal system to find out about what he knows and how they planned this attack, to make the rest of us safer.

I believe in due process. And he, in that system, can go to a judge and say, I am not an enemy combatant, and the government would have to prove he is. So he has due process there. But here is what I believe deeply, and then I will turn it over to Senator Ayotte of New Hampshire. I believe the closer one gets to our homeland, the more rights we have as a people to defend ourselves. I don't want a police state. I don't want to live in a country where we can't express who we are and what we believe in and to argue and have a different view of religion. But, by God, given the times in which we live, I don't want to become deaf and blind to the threats that are real in our own backyard. I want a system that can find out about guys like this before they kill us.

Let me tell you, ladies and gentlemen, if we don't gather good intelligence and we don't hit them before they hit us, there is more to come.

BREAK IN TRANSCRIPT

Mr. GRAHAM. Yes, if I may, hats off to the Boston, MA, police officers, to the Presiding Officer's town. Our heart breaks for the victims. Bostonians made us proud. They show us how to stay brave. The FBI and everybody did a great job, but how we missed this I still want to know.

The Senator from New Hampshire was the former attorney general of New Hampshire. She knows the difference between fighting a war and fighting a crime.

I have been a military lawyer, I have been a civilian lawyer, and I am all very much for the idea of due process being given to everyone charged with a crime, including this man. He deserves to be presumed innocent, to have a lawyer, and a jury to find him guilty or innocent. He deserves all that because it makes us better and safer. But what we should not give up as a Nation is the ability to find out about future attacks in a logical way. We are at war, and in the law of armed conflict, national security applies here, in my view, because of the type of incident involved and the threats we face.

I wish to hear from Senator Ayotte, who has become one of the most knowledgeable people on the topic. She has tried people in New Hampshire--death penalty cases--and if she doesn't mind, perhaps she can share with us her view of where the battlefield is, what kind of laws to apply to a situation such as this.

Mr. GRAHAM. I thank the Chair.

I would ask the Senator from New Hampshire, how do we get the death penalty when the only way we can get information out of the suspect is to go through his lawyer? If we can't have this national security interrogation, where there is no lawyer, to get information to protect against a future attack that can't be used in a trial, don't you think the lawyer is going to say: I am not going to have my client talk to you unless you promise not to seek the death penalty?

Ms. AYOTTE. I would say to the Senator from South Carolina, I don't know how that isn't possible in this case. Any defense lawyer--as they should--to defend their client, there is no way they will allow that individual who committed the terrorist attack in Boston to speak to one investigator now, if we get additional information or we have followup questions, without taking the death penalty off the table.

That is the defense lawyer's job. I respect them for that. But it puts our Nation in an awkward position to have to negotiate with a defense lawyer when we have questions for someone who has committed a terrorist attack against our Nation.

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