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Public Statements

National Defense Authorization Act

Floor Speech

Location: Washington, DC

Mr. McCAIN. Mr. President, I rise to continue the discussion that I began Monday with the majority leader, Senator Reid, on the need to bring the national defense authorization bill to the floor of the Senate.

Since our colloquy Monday, Senator Reid has sent a letter to the chairman of the Armed Services Committee, Senator Carl Levin, and me. I would like to have a copy of the letter printed in the Record.

In the letter, Senator Reid lays out his concerns about some of the detainee provisions that were included in the Defense authorization bill as a result of a bipartisan compromise between Chairman Levin, myself, and Senator Graham, and cosponsored by a large, bipartisan group of members of the Armed Services Committee. In fact, this compromise was so bipartisan that after extensive debate on many amendments and a number of votes during markup by the committee using the regular order of the Senate, the resulting package of detainee provisions was adopted and made part of the bill by an overwhelming vote of 25 to 1.

Now, I understand that the White House has some objections to these detainee provisions that were adopted by the Armed Services Committee, and Senator Reid has essentially endorsed the White House position. In doing so, he is blocking the Defense authorization bill from coming to the floor, using his authority as majority leader to control the business of the Senate.

As I said Monday, I do not think that opposition to this particular provision outweighs the importance of this legislation to our national security mission, our troops, and their families. I stated on the floor Monday that I would work with Senator Levin and the administration to try to resolve their concerns about the detainee provisions in the bill. I stand by that commitment. But for the record, I want to address some of the issues raised by the majority leader.

The majority leader quotes White House Deputy National Security Adviser John Brennan from a recent speech he made at Harvard saying, ``Our counterterrorism professionals would be compelled to hold all terrorists in military custody, casting aside our most effective and time-tested tool for bringing suspected terrorists to justice--our federal courts.''

This statement is simply and completely untrue. It is a total mischaracterization of section 1032 of the bill.

The section of the bill dealing with military custody was extensively debated in committee and reflects the bipartisan compromise reached on all the detainee provisions. Section 1032 does not extend to all terrorists.

It applies, as Chairman Levin made clear in a public statement on Tuesday, only to members of al-Qaida and its affiliates, like al-Qaida in the Arabian Peninsula which launched the December 2009 attempt to bomb a civilian airliner over Detroit and which subsequently attempted an attack on the United States by using parcel bombs this time last year. And it only applies to members of al-Qaida and its affiliates who are captured in a very narrow set of circumstances: those captured attacking the United States or its coalition allies or attempting or planning such an attack.

This narrow focus is far from Mr. Brennan's claim that military custody would be required for all terrorists. That is simply wrong. It grossly distorts the scope of the provision.

The focus on al-Qaida and its affiliates was intentional. Al-Qaida is and has been for the last 10 years the focus of the Authorization for the Use of Military Force, AUMF, that Congress passed overwhelmingly after the attack on our country on September 11, 2001. We are at war with al-Qaida and its affiliates. The President has said so plainly.

In fact, it was just days ago that the Obama administration used the fact that we are at war with al-Qaida to kill an American citizen, Anwar al-Awlaki, in Yemen. That was a decision I fully support. Awlaki had become a leading operational planner for what administration officials now regard as the branch of al-Qaida that poses the most significant threat to the United States.

The inconsistency in Mr. Brennan's position and, to the extent he speaks for the White House, the administration's national security policy as a whole is that this administration asserts the right--correctly, in my view--to kill a member of al-Qaida or its affiliates through use of military force but would deny that the same individual should be held in military custody if captured. Instead, following Mr. Brennan's point of view, if we capture an al-Qaida terrorist in the very act of carrying out an attack on our homeland or U.S. interests elsewhere, we should revert to law enforcement methods and hold that al-Qaida terrorist under civilian law enforcement standards.

By insisting that law enforcement custody rather than military custody should apply, the administration has to contend with the requirement to provide Miranda warnings to criminal suspects and the Federal rules that require presentment before a Federal magistrate within a short period of time after arrest, normally within 24 to 48 hours, for a criminal suspect to be informed of the charges against them and to be assigned a lawyer.

I would also note that the detainee provision that Mr. Brennan and the majority leader now complain of contains a national security waiver that can be exercised to transfer even members of al-Qaida or its affiliates into civilian law enforcement custody if that is warranted by the circumstances and deemed the appropriate course of action.

I strongly believe the language adopted by the Senate Armed Services Committee is reasonable, fair, and most importantly constitutional. However, as I just stated, I will work with Chairman Levin and the administration to remedy any deficiencies in the language. However, I believe the administration must now present to the Senate and the Armed Services Committee its specific concerns. Absent this, I would hope the majority leader would move to this important legislation and let the Senate implement its prescribed duties.

I look forward to hearing from the majority leader and the administration so that the Senate may move forward on this vital and important legislation.

Mr. President, I ask unanimous consent to have printed in the Record the letter to which I referred.

There being no objection, the material was ordered to be printed in the record.

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