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Public Statements

National Defense Authorization Act for Fiscal Year 2012

Floor Speech

Location: Washington, DC


Mr. GRAHAM. Madam President, one, I would like to begin by thanking Senators Levin and McCain. I don't know how long Senator Levin and I have been working on this together--it seems like forever--trying to get a detainee policy in a post-9/11 world that the courts will accept and that lives within our values. I have just been thinking throughout the years about the journey we have taken--beginning with the Bush administration--where the idea of indefinite detention of unlawful enemy combatants originated by executive order.

I do believe, since 9/11, we have been in a state of undeclared war with organizations such as al-Qaida. The Congress created legislation early on--right after the attacks of 9/11--allowing the President to use military force against al-Qaida. Part of being able to engage someone militarily is to detain those we capture. But that has been years ago. This is the first time Congress has spoken since the early days of the war.

We tried during the Bush administration to work with the Bush people to create a law of war detention system by statute. We had a problem there. They felt the executive order was the way to go. I have always believed when the Congress and the White House work together, the courts appreciate it as being a more collaborative process. So we went from sort of one extreme--to where we had military commissions that were almost legislating a conviction--to a better product, and the end product was the 2009 bill we worked on with Senator Levin that got almost 80 votes. So we have come a long way.

About the detention issue. Here is what I have been trying to accomplish for years. I wish to make sure we understand the difference between fighting a war and fighting a crime. When it comes to al-Qaida operatives, whether they are captured in the United States or overseas, the first thing we should be doing as a nation is trying to find out what that person knows about the attack in question or future attacks. When we capture an enemy prisoner, the first thing our military does is turn the person over to the military intelligence community for questioning.

I am of the belief that we have the ability to question people under the law of war without congressional authorization. But when the Congress acts, it is better for us all. So in this bill, working with Senators Levin and McCain, we have, as a body, said the President--this President and all future Presidents--will have the ability to detain a member of al-Qaida and other allied organizations, regardless of where they are captured in the world, and hold them as an enemy combatant.

Under the law of war, when we capture an enemy prisoner, there is no magic date we have to let them go. The problem with this war, unlike other wars, is there will not be a definable end. We had 400,000 German prisoners in military prisons inside the United States during World War II. We weren't going to let those folks go if they had been in jail 1 year. Not one of them got to go see a Federal judge saying: Let me out of here.

Under the law of war of our military, the executive branch of government has the authority to protect the Nation, and courts have not interfered with that 200-year right.

What is different about this war? There are no capitals to conquer, there is no air force to shoot down or navy to sink. So we have people who don't wear uniforms who are roaming the globe, and they don't have a home country, they have a home idea, and we are fighting an ideology. Sometimes they make it to our soil and sometimes they don't.

So here is what we are trying to do. We are trying to create a hybrid system, for lack of a better word. If you captured an al-Qaida member overseas in Afghanistan, Iraq, or Yemen, it is clear that they have no constitutional right to petition a judge in the United States: Let me go.

When we put people in Guantanamo Bay, the Bush administration argued that prison wasn't subject to legal review by our courts. And in the Hamdi case involving a U.S. citizen captured in Afghanistan, the Supreme Court held that we could hold an American citizen as an enemy combatant. They suggested to the Bush administration a procedure to ratify that decision. They pointed to an Army regulation, 190--I can't remember the number--and we tried to come up with a procedure that would allow us some due process as a nation for an enemy combatant, including an American citizen.

In the Boumediene case, the Court said: Wait a minute. We are going to allow a habeas petition by those held as enemy combatants--American citizens or non-American citizens--if they are at Guantanamo Bay because we have control over that facility. That is part of the United States in terms of our legal infrastructure.

So the law of the land is that if you are captured overseas, even if you are an American citizen, you can be held as an enemy combatant and questioned by our military with no right to proceed to a criminal venue. It is not a choice to try them or let them go. You can hold an unlawful enemy combatant for an indefinite period of time just like you could hold any other enemy prisoner in any other war. But what we have done differently in this war is we have said: Our courts will review the military's decision to declare you as an enemy combatant in a habeas procedure--not a criminal trial but a habeas procedure--as to whether there is sufficient evidence to label you as an unlawful enemy combatant.

So, to my colleagues on the other side, the law of the land by the Supreme Court is that an American citizen can be held as an enemy combatant. Like every other enemy combatant, they have habeas rights, but they don't have the right to say: Try me in a civilian court or military commission court, because when we capture someone, the goal is to gather intelligence.

The Christmas Day Bomber, the Times Square case--the reason many of us want military custody from the outset is that under domestic criminal law, other than a very narrow public safety exception, we don't have the right under criminal law to hold someone for an indefinite period of time without providing them a lawyer and telling them what their legal rights are or charging them in a court of law. And let me say, as a military lawyer, I would never want that to be the case. I don't want to change our domestic criminal system to allow us to grab someone and hold them indefinitely, pending criminal charges, without the right to a lawyer, the right to remain silent being presented to the defendant, and presentment to court, because that is what criminal law is all about. Under military law, whether it is here at home or abroad, you can hold someone suspected of being an enemy agent, enemy prisoner, and you can interrogate them humanely and lawfully--and we have good laws now governing interrogation procedures--without having to present them to a court. That is the difference between intelligence gathering and fighting a crime.

The Padilla case was an American citizen captured inside the United States. He was held for about 4 years in Charleston Naval Brig, and the Fourth Circuit Court of Appeals ruled that, yes, an American citizen captured within the United States can be held as an unlawful enemy combatant, but they have the right to counsel when it comes to presenting their habeas case. They don't have the ability to tell the interrogator and the military: I don't want to talk to you now. I want my lawyer.

When you are talking to a military interrogator or the FBI or the CIA trying to gather intelligence, you don't have a right to remain silent, you don't have a right to a lawyer because we are trying to defend ourselves against an enemy bent on our destruction. The day we decide to treat you as a common criminal, even a terrorist suspect, all those civilian rights attach.

So this bill is trying to create a process that if you are captured in the United States, this legislation says that you will be presumptively put in military custody because that is the only way we can hold you and interrogate you because under domestic criminal law, that is not
available, nor should it be.

There is a waiver provision here. If the administration believes that military custody is not the right way to go, they can waive that. But the day you turn someone over to civilian authorities for the purpose of prosecution, you have a very limited window to gather intelligence because all the criminal rules apply. And what we are trying to do is to make sure we can defend ourselves and not overly criminalize the war. That is why this is so important.

As to the White House concerns--they wanted to have that flexibility without any statutory involvement--I believe this will serve the Nation well long after President Obama leaves office. I don't know who the next President will be, but I do believe this: We will be under threat and siege by an enemy bent on our destruction.

So if you believe, as I do, that we are at war but it is a different kind of war, please give your Nation--our Nation--the ability to defend us. And the best way to be safe in the war on terror is to gather good intelligence and hit them and stop them before they hit you because they could care less about dying. So intelligence gathering is the way to keep us safe.

Most enemy prisoners captured in traditional wars never go to court. The last thing I am worried about is how you prosecute these guys. The first thing I worry about is, what do they know, and what is coming our way?

So the provisions of 1032 apply to captures within the United States. And we are saying that when an al-Qaida operative suspected of being involved in a terrorist act--a very limited class of cases, by the way--is captured on our soil, we would like them to be in military custody from the get-go. But we have provisions that say: You don't have to make that decision or interrupt an interrogation. There is a window of time in which you can deal with the case without having to make the waiver. We are not impeding interrogations, and we are not saying you have to stay in military custody forever because we give this administration and future administrations the flexibility to waive that provision if it makes sense.

To the Christmas Day Bomber--he was read his Miranda rights within an hour, his family was involved, and it turned out that he pled guilty. I am not a professional interrogator, but I do know this: You don't read an enemy prisoner their rights when you capture them on the battlefield in a war. The question is, Is the United States part of the battlefield? That is really what this is about. Are we going to allow the enemy to get here, and all of a sudden all the rules change because they made it to our homeland? I would argue that the closer they are to us, the more we want to know. So it would be an absurd outcome that if somehow the enemy could find a way to get to our homeland, all the rules change because if you capture one of these guys in Yemen, nobody is suggesting you have to give them a lawyer.

Well, when you get to the United States, what we are suggesting is that we have a legal system that understands the difference between fighting a war and fighting a crime, and if you are suspected of being an al-Qaida member, citizen or not, we are going to find out what you know through lawful interrogation techniques. That has to be done under the military system because civilian domestic criminal law doesn't allow that to be done.

That is what we created here--a bifurcated system with waivers. If we don't have this in place, we are going to lose intelligence and our Nation is going to be at risk. People are going to get killed if we lose good intelligence.

So, to me, the idea of reading someone their Miranda rights doesn't make a lot of sense, but you have the flexibility to do that, if you choose, out in the field. You just have to get a waiver. So when you capture somebody on the homeland, I don't want our people to think that you have to give them a lawyer and read them their rights and that you can't question them about what they know about attacks against our homeland. That is dumb. That doesn't make us a better people, that makes us less safe. Let's put them in military custody, with the right to waive that. Let's give our interrogators plenty of time to find out what is going on. Then we will make a decision about where to prosecute.

I believe Federal courts have a role in the war on terror. There have been plenty of cases involving terrorism that went to Federal court where you had a good outcome. There have been cases going to Federal court where you had less than a stellar outcome. The key is, if you are holding an enemy combatant for 4 or 5 years under the law of war, I don't think it makes sense to put them in civilian court. You should put them in military commissions. And we are talking about people we have been holding for a period of time because we looked at them as a military threat, not as a common criminal.

So the provisions in 1032 are good law that will stand the test of time. It will allow us on our homeland to do what we can do overseas. Wouldn't it be odd not to be able to protect yourself because the enemy got to the United States less than you could if you captured them overseas?

Now let's talk a little bit about American citizens. There are a few people--and I give them credit for having passionate, honest-held beliefs that the President of the United States doesn't have the authority to designate an American citizen who has now joined al-Qaida--to issue an order to kill him--this al-Awlaki guy who was in Yemen. The bottom line is, the President, through a legal process we created years ago, made a determination that an American citizen has joined the enemy forces, and he issued an order through a legal process that says: If you find this guy, you can capture or kill him.

Now, wouldn't it be odd if you had a law that says you can kill somebody, but when you capture them, you can't hold them for a very long time, you can't indefinitely detain them? Well, death is pretty indefinite. So if you can kill a guy, why in the world can't you hold them and interrogate them to find out what they know about this attack or future attacks?

So let's be consistent. It makes sense to me that if an American citizen wants to join al-Qaida, they are no longer our friend, they are our enemy. And if the evidence is solid and it has gone through a legal process and this President or any other President determined that an American citizen is now operating abroad trying to harm us, joining al-Qaida, I believe they have the absolute legal and moral authority to identify that person as a threat to the United States; kill or capture. And if you don't agree with me, fine. I think about 80 percent of my fellow citizens do. It would be absurd not to be able to have that ability.

Citizenship is something to be respected. It is something to be cherished. It is not a ``get out of jail free'' card when you turn on your fellow citizens.

So at the end of the day, we have a system in place now that I am very proud of.

To Senator Levin, we have negotiated and we have compromised because the administration had some legitimate concerns. They had some legitimate concerns about Congress overly mandating how you detain, interrogate, and try prisoners. What we have come up with is the balance I have been seeking for 5 years. If you capture someone in the United States, you start with the presumption that you are going to gather intelligence in a lawful manner and prosecution is a secondary concern. We give the executive branch the ability to waive that requirement, and we have conditions on that requirement that will not interrupt an interrogation.

But we need to let this President know, and every other President, that if you capture someone in the homeland, on our soil--American citizen or not--who is a member of al-Qaida, you do not have to give them a lawyer or read them the rights automatically. You can treat them as a military threat under military custody, just like if you captured them overseas.

So this provision that Senators Levin, McCain Ayotte, and all of us have worked on makes perfect sense to me. It is a balance between protecting our homeland, living within our values, and giving the executive branch the flexibility they need to protect us, but just using good old-fashioned common
sense. Under domestic criminal law, you cannot hold someone indefinitely without giving them a lawyer or reading them their rights, nor should you. But under military law, if you have evidence that the person is a military threat, you don't have to give them a lawyer. That makes no sense whether you capture them here or overseas.
Everyone held as an unlawful enemy combatant has the right to access our Federal courts. Under this bill, it is not just one time you get to go to court. We create an annual review process so that if you are held as an enemy combatant in military prison or civilian prison, you will get an annual review.

We don't want you to go into a black legal hole. We don't want an enemy combatant determination to be a de facto life sentence.

I am proud of this work product. We go further than what the courts require. The courts require a habeas review of any person held as an enemy combatant. But at the end of the day, we say you have an annual review.

That requirement is for people captured in the United States, held at Gitmo. It doesn't apply to people held in Afghanistan. Thank God it doesn't. But in circumstances where someone is captured in the United States, held at Guantanamo Bay, every person will have their day in court to challenge the status of enemy combatant, and if they are going to be held indefinitely, they are going to get an annual review process as to whether it makes sense to hold them for 1 year.

Again, I wish to emphasize in war we do not have to let people go who are a danger. Most of these cases are intel cases. We are not fighting a crime, we are fighting a war. If the intelligence is good enough to convince a Federal judge that this person is a military threat, why in God's name would you want to let him go because of the passage of time? Our message to al-Qaida recruits is don't join al-Qaida because you could get killed or wind up dying in jail. Isn't that the message we want to send? Why in the world would we require our Nation to release somebody when the evidence presented to a Federal judge is convincing enough for him to sign off on what the military determined at an arbitrary point in time? That doesn't make us better people. It would make us less safe.

This bill is a very sound, balanced work product, and I will stand by it, I will fight for it, and I respect those who may disagree. But why did we take out the language Senator Levin wanted me to put in about an American citizen could not be held indefinitely if caught in the homeland? The administration asked us to do that. Why did they ask us to do that? It makes perfect sense. If American citizens have joined the enemy and we captured them at home, we want to make sure we know what they are up to, and we do not want to be required, under our law, to turn them over to a criminal court, where you have to provide them a lawyer at an arbitrary point in time. So the administration was probably right to take this out.

Simply stated, if you are an American citizen and you want to join al-Qaida: Bad decision; you could get killed or you could spend the rest of your life in military prison as a military threat or you could wind up in an article 3 court and maybe get the death penalty. I want people to know there is a downside to joining the enemy. I want to give our country the tools we need as a nation to fight an enemy and do it within our values. I don't want to waterboard people, but I don't want the only interrogation tool to be the Army Field Manual, online where anybody can read it. I wish to make sure everybody has a chance to say: I am not an enemy combatant. But I don't want to criminalize the war by capturing somebody on our soil and saying: You have a right to remain silent, when we would never read that right and present that to them if we captured them overseas.

We want to make sure we can gather intelligence, whether we capture them at home or abroad, whether they are an American citizen or not, if there is evidence they have joined al-Qaida.

To my colleagues, if you join al-Qaida, no matter where you join, no matter where you take up arms against the United States, we have every right in the world to treat you as a military threat. People who have joined al-Qaida are not members of a mob. They are not trying to enrich themselves. They are trying to put the world into darkness. Our laws need to distinguish the difference between a guy who robbed a liquor store and somebody who wants to blow up an airplane over Detroit or blow up innocent people in Times Square. If you do not understand that difference and if you do not have a legal system that can recognize that difference, then we have failed the American people.

This is a good work product. It has strong bipartisan support. We worked with the administration. But we are in a long war where a lot is at stake. I have tried to be as reasonable as I know how to be, and this work product is the best effort of a lot of well-meaning people, Republicans and Democrats. I will defend it. If you want to keep arguing about it, some people suggested we will talk a long time about this--yes, we will talk a long time about this. We will have a good discussion among ourselves as to whether an al-Qaida operative caught in the United States gets more rights than if we caught him overseas. We will have an argument among ourselves as to whether our military should be able to gather intelligence to protect us, regardless of where the person is captured, and the question for the nation is: Is America part of the battlefield? You better believe it is part of the battlefield. This is where they want to come. This is where they want to hurt us the most. If they make it here, they should not get more rights than they would get if they attacked us overseas.

They should not be tortured because it is about us, not about them. The reason I don't want to torture anybody is because I like being an American. I think it makes us stronger than our enemies. There are ways to get good intelligence from the enemy without having to mimic their behavior. I do believe the military's work product should be judged and reviewed in Federal court in a reasoned way. That is part of this legislation. I do not want anybody to be sitting in jail forever without some review process so that one day maybe they could get out.

But here is what I will not tolerate. I will not criminalize what is a war. I will not put this Nation in the box of having captured a terrorist, when the evidence is solid that we know they are part of the enemy trying to kill us and say we have to give them a lawyer or let them go because of the passage of time. That makes no sense.

Senator Levin, Senator McCain, this is a product we should be proud of. We should fight for it, and we are going to fight. If you want to make it a long fight, it will be a long fight. We are not giving up.


Mr. GRAHAM. The only answer I can give to Senator McCain is that there is a legitimate concern about encroaching on executive power. I have that concern. The executive branch is the lead agency in this war. They are the lead agency when it comes to prosecuting crime. But what I am trying to do, along with his help and that of Senator Levin, is to create statutory authority for this President and future Presidents that will serve the Nation well.

Congress has been too quiet and too silent. During the Bush years, we did not assert ourselves enough. We let things go. We were reluctant to get involved. Now we are involved in a constructive way.

What we have said as a Congress, if this bill passes, is that the executive branch has flexibility, but the Congress of the United States--which has powers when it comes to war--believes that an al-Qaida operative, those associated with al-Qaida, should be initially held in military custody because we are trying to gather intelligence. As I tried to explain, if you turn them over to civilian authorities for law enforcement purposes, then the whole process of intelligence gathering stops. You have to read Miranda rights. There is a very limited public safety exception. We allow a waiver if that is in the best interests of our national security. We have requirements in the bill not to impede interrogation. That is why we are doing this, because we want a process that will allow us to deal with people caught in the United States in a consistent way from administration to administration and understand the distinction between gathering intelligence to defend yourself in a war and prosecuting a crime.


Mr. GRAHAM. The Senator is absolutely right. The flexibility of whether to Mirandize somebody exists. I don't know what is the best way. I do believe the best start is to take the Christmas Day Bomber off the plane and interrogate him in terms of what he knows about future attacks, how he planned this attack, and worry about prosecution in a secondary fashion. The only way you can do that is through a military custody intelligence-gathering process.

At the end of the day, I do believe it makes a lot of sense for the Congress to weigh in. We have not done it before. We have balanced this out. The administration's concerns have been met as much as I know how to meet them, and I am very proud of the work product.


Mr. GRAHAM. That is contract. If I might continue the conversation for a minute, if you don't mind. Would the Senator agree with me that if we all of a sudden required our soldiers to read Miranda warnings to an al-Qaida operative caught in Afghanistan, people would think we were


Mr. GRAHAM. OK. What if we have the very same person who made it out of Afghanistan and makes it to America. I think most people would want us to gather intelligence to find out what is coming next. Would the Senator agree with me, if you put someone in civilian control for the purpose of prosecution, intelligence gathering becomes very difficult?


Mr. GRAHAM. OK. Fair enough. But does the Senator agree with me that you cannot indefinitely hold someone under domestic criminal law without presenting them to court or reading them Miranda rights?


Mr. GRAHAM. Right. But here is the point we are going to make. Some of us believe that presentment to a court and a Miranda warning may not be the best way to go, in terms of gathering intelligence. Under military custody for intelligence gathering there is no right to remain silent; does the Senator agree with that?


Mr. GRAHAM. So we are starting the game with military custody but for the reasons the Senator just said--and they may be good reasons, to say that is not the right way to go--they can go down another path. That is all we are trying to do. Because there is a sort of a gap when it comes to someone caught in the United States. We are trying to provide clarity, what to do with an al-Qaida member caught in the United States, to create flexibility but start the process with intelligence gathering because, in the United States, if you hold someone, under the law enforcement model, caught in the United States, you have to read them their rights. You have to present them to court.

If they are in military custody, you don't have to do that. But what system fits the situation best should be left to the executive branch. We are just creating an avenue for military custody that can be waived.


Mr. GRAHAM. That is absolutely correct. Let's talk about indefinite detention and what it means. When someone is captured as a member of al-Qaida--the Bush administration has had people at Guantanamo Bay for years. They are being held under the law of war. Does the Senator agree with that?


Mr. GRAHAM. The Bush administration has had prisoners held at Guantanamo Bay for years now who have not been prosecuted. They are held under the law of war.


Mr. GRAHAM. The Obama administration has continued to hold at least 48 under that same theory.


Mr. GRAHAM. I believe they are right. All the Congress is saying to the President--this one and future Presidents--is we agree with you, that if the person is a member of al-Qaida or an affiliated group, you can hold them as an enemy combatant without the requirement to let them go at an arbitrary point in time, but under the law, if they are at Guantanamo Bay or captured in the United States, they have a habeas right to appeal that determination to a judge.
Under our bill, does the Senator agree with me, we have done more than that? We have created an annual review process so the person being indefinitely held will have some due process every year?


Mr. GRAHAM. Right. And we should do that.


Mr. GRAHAM. Let me tell the Senator how he is dead right. I offered an amendment to the first bill we put on the table here on the floor about this, and I had a requirement of a military lawyer being given to the respondent at a combat status review tribunal. Every person being held as an enemy combatant by our military gets a combat status review tribunal. We are saying that tribunal has to be chaired by a military judge, and we are saying they can access a lawyer. That, to me, is a welcomed change.

The Obama administration and the Bush administration decided to put the military judge requirement in place. But this now is a statutory requirement, so the next President is going to be bound to do that. We are trying to create a process to allow a status tribunal hearing to be done in a more due-process friendly fashion. We require a judge and we provide access to counsel. To me that is a giant step forward.


Mr. GRAHAM. For the first time it is now not the whim of the administration. It will be the law of the land.


Mr. GRAHAM. If this bill is enacted.


Mr. GRAHAM. Yes, with one caveat. There is a line of thinking that we should be using Federal courts exclusively, that military commissions are not appropriate in any circumstance, and that we should be using the law enforcement model once we deal with an al-Qaida operative, particularly here in the United States.

What we are saying in this legislation is that the battlefield includes our own homeland. So that argument being made by the ACLU, I think, will bear that because most Americans feel we are not dealing with somebody who robbed a liquor store. These people present a military threat, and we should be able to gather intelligence in a lawful way.

The administration's concern was, are we overstepping Executive power. I have, quite frankly, said I am concerned about that. Peter was concerned about that; Dave was concerned about that; I have been concerned about that because I don't believe you can have 535 attorneys general or commanders in chief.

What we did to accommodate that concern is what the Senator from Arizona said, we started out with a military custody requirement that can be waived and the procedures to be waived are in the hands of the executive branch. As Senator Levin has indicated, this, to me, is very flexible and is so flexible that I feel very good about it.

If it were a mandate to put everybody in military custody and try them in military commissions, even though I think that is the best thing to do, I would object, because the flexibility to make those decisions needs to be had in the executive branch. There may be a time when an article 3 court is better than a military commission court for an al-Qaida operative. I don't want the Congress to say article 3 courts could never be used. I don't want the Congress to say military commissions are bad. We now have a good military commission system. We have a process where the homeland is part of the battlefield. The individual being captured on our homeland can be held to gather intelligence under military law. And if somebody is smarter than us and believes that is not the right model, they can change the model.

That is the best we can do, and that is the best I am going to do because I am very worried that in the future we are going to lock ourselves down into policies that would have an absurd outcome that if you made it to America, we cannot gather intelligence, which would be crazy. There is no good reason for that.


Mr. GRAHAM. If I may add another layer of process here. Some people on our side say that is way too much. You should throw these people in military--Senator Lieberman, my dear friend, if you left it up to him, everybody caught as an al-Qaida operative would be thrown in military custody and would be held as long as we need to hold them and would be tried by military commissions.
At the end of the day that is sort of where I come out, but I am not going to create a 535-commander-in-chief body here because there are times when that may not work. What we have done is what the Senator said. If you capture someone at home, it is as the Senator described. The reason, to my colleagues on this side, I wanted to build in

the things the Senator described is because I am very worried about crossing over out of our lane into the executive lane. I think we have created a great process.

But here is what happens to that al-Qaida operative. Not only does the executive branch have the flexibility to go one way versus the other, starting with the idea of military custody, but all the things the Senator said are true.

What do they have beyond that? If someone is being held as an enemy combatant, there are regulations requiring that they be presented to a combat status review tribunal, now with a military judge, access to counsel--I think it is within 60--I cannot remember the time period. That is done. Then they have the right to take that decision and appeal it to a habeas Federal district court judge.

No one in America is going to be held as an enemy combatant who doesn't get their day in Federal court. But their day in Federal court is a habeas proceeding, not a criminal trial. If the judge agrees with the United States that you are, in fact, an enemy combatant, then you can be held indefinitely, but we require an annual review. If the judge lets you go, they have to let you go. This is the best we can do. This is a hybrid system. In no other war do you have access to a Federal court.

As I said before, this is war without end, and if we don't watch it, an enemy combatant determination can be a de facto life sentence because there will never be an end to these hostilities probably in my lifetime. I recognize that. And in working with the Senator from Michigan and Peter and others, we have come up with a process now that allows the Federal court to review the military decision. We will have an annual review process if the judge agrees with the military. That, to me, is due process that makes sense in a war without an end; something you would not do in World War II, but something we need to do here.

So to the critics, please read the damn bill. I apologize for saying it that way, but you are talking about things that don't exist. There is plenty of flexibility and waiver requirements in this bill. No one is being held indefinitely without due process. Not only is this due process you wouldn't get in any other war, this is due process beyond what exists today only if we can pass this bill.

I don't mind being considered by some of my colleagues as maybe too friendly to due process. The reason I am so passionate about this is what we do sets a precedent for the world and the future. If one of our guys is captured, I can look the other people in the eye--al-Qaida could care less, but other people might--and say we are a rule of law nation. I believe in the rule of law, but there is a difference between the rule of law of fighting a crime and fighting a war.

I am proud of the military legal system. I do believe the military justice system has a role to play in this war. In military commissions, the judges are the same judges who administer justice to our own troops, the same prosecutors, the same defense attorneys, the same jurors. I am proud of the military legal system. I am proud of the Federal court system. I want to use both.

Senator Levin, we have been working on this for years.

This is the best work product I have seen. I hope my colleagues will understand we have thought long and hard about this, and if we don't get a process in place that has some definition, some certainty, some guidance, we are letting our Nation down.

This is a good bill, and I hope people will vote for it.


Mr. GRAHAM. So would I, at my own detriment.

I don't want to mandate the executive branch to do everything as Lindsey Graham would like. I want to start with a theory that makes sense and provides flexibility to change it if that makes sense. I don't want anybody to be in jail because somebody in the military said they are an enemy combatant. I want a Federal judge involved in a sensible way. I want due process to make sure we can tell the world: You are not sitting in a jail because somebody said you were guilty of something. You had a chance to challenge that. But to the critics: I will not stand for the idea that we can't defend ourselves under the law of war, because I believe we are at war. In war, we have the right to hold enemy prisoners. We don't have to let them go to kill again. In war, you can hold people and gather intelligence in a human way.

That is what we are able to do under this bill--fight a war within our values.

I yield.


Mr. GRAHAM. If I may respond to my friend from Illinois, Hamdi was an American citizen captured in Afghanistan. He had joined al-Qaida--the Taliban, I guess in that case. We captured him when we went into Afghanistan. We brought him back and we held him as an enemy combatant for intelligence-gathering purposes. His case went to the Supreme Court. The Supreme Court said we could hold an American citizen as an unlawful enemy combatant, we just have to create procedures, a due process requirement. Eventually, the court said every unlawful enemy combatant has a habeas right.

The law of the land is clear that an American citizen helping the enemy overseas can be held indefinitely. But they have the right to petition a judge as to whether the initial determination was correct. If the habeas judge believes there is not enough evidence to hold this enemy combatant, then they have to release them. But if the judge agrees with the government that there is enough evidence to hold them as an enemy combatant, they can be held indefinitely. This President is holding 48 people at Guantanamo Bay who have never seen a criminal courtroom because of the theory of law of war.


Mr. GRAHAM. Mr. President, the exchange with Senator Durbin was very good. The law of the land is pretty clear--unequivocal, in my view--that an American citizen captured overseas can be held as an enemy combatant, and every enemy combatant held at Guantanamo Bay or captured in the United States has habeas rights. The Padilla case involves an individual who was captured in the United States, suspected of being an al-Qaida operative, and was held for 4 years. He appealed his case to the Fourth Circuit, and the Fourth Circuit said: You have a right to a lawyer to prepare your habeas case, but you do not have a right to a lawyer to interrupt the interrogation. You can be held as an enemy combatant, and they can gather intelligence for an indefinite period.

That is the law of the land, and that is why the administration came over and said the provision that Carl and I were talking about really would change the law. They are preserving the ability, if they want to--they do not have to do this--basically, to hold an American.

Here is the thought process for the body and the Nation: If you capture somebody--not just involved in terrorism; that is not just what we are talking about--al-Qaida operatives involved in an attack on the United States, if they are an American citizen--who cares?--if they are doing that, we want to know what they know, interrogate them and hold them for prosecution, or just hold them so they will not go back to the fight. That is the law.

All we are doing is creating a procedure for that system to be followed. We are not doing anything different than already exists. This notion, somehow, that the homeland is not part of the battlefield is absurd. Why in the world would we give somebody rights who came to America to attack us different than we would if we caught them overseas, when the point is, they are involved with the enemy--American citizen or not. We are just creating a procedure that will allow that situation to be handled. So that is why the administration objected to our language, and I think they are right.

I yield the floor.


Mr. GRAHAM. We are talking about this amendment. Let's debate this amendment. Let's vote on this amendment. But the heart of the issue is whether the United States is part of the battlefield in the war on terror. The statement of authority I authored in 1031, with cooperation from the administration, clearly says someone captured in the United States is considered part of the enemy force regardless of the fact they made it on our home soil. The law of war applies inside the United States not just overseas. The authorization to use military force right after the war began allowed us to go into Afghanistan and use detention and capture and military force to deal with the enemy in Afghanistan and other places overseas.

To my colleague from New Hampshire, does she believe al-Qaida considers American soil part of the battlefield?


Mr. GRAHAM. Does the Senator agree that with Senator Levin and a very bipartisan work product we have now created a legal system that says the following: If a U.S. citizen, a non-U.S. citizen is involved in an al-Qaida attack on our Nation, and is captured within the United States, we are allowing our military the ability to hold them as part of the enemy force, to question and interrogate them for intelligence gathering, and that right we have overseas to hold somebody now exists in the United States because the threat is the same?


Mr. GRAHAM. Would the Senator agree that what we have been able to do on the committee is basically say, in law for the first time, that the homeland is part of the battlefield; that military custody is available to hold a suspected al-Qaida operative caught in the United States--American citizen or not--but we are going to allow the administration--this administration and all future administrations--to change that model if they believe it is best?

To me, we have created a right by our intelligence community, law enforcement community, to do at home what they can do overseas. If we do not do that, that would just not only be absurd, I think it would make us all less safe for no higher purpose. So to my colleagues who believe we are changing something, all we are trying to do is make sure that when the enemy makes it to America, we can hold them and gather intelligence to protect ourselves, no more and no less.

We start with the presumption of military custody. But if the experts in the field, this administration or future administrations, believe that model is not best, they can seek a waiver. That, to me, is what we should have been doing for years. Because the battlefield, to those who are listening, is an idea, not a country. We are battling an idea; that is, a terrible idea.

Their idea is, if you are a moderate Muslim seeking to worship God a different way, you are not worthy of living. If you are a Jew or a Gentile, you name it, if you do not bow to their view of religion, then you are going to live in hell. So that is what we are fighting. At the end of the day, this legislation creates a process to deal with the threats in our own backyard and, unfortunately, does the Senator from New Hampshire agree, that there is going to be further radicalization, that homegrown terror is where this war is going to?


Mr. GRAHAM. I would add that Senator Lieberman would have gone further than the Senator. There is nobody whom I respect more than Senator Lieberman, but we are trying to find a balanced way.

So in summary, 1032, the military custody provision, which has waivers and a lot of flexibility, does not apply to American citizens, and 1031, the statement of authority to detain, does apply to American citizens. It designates the world as the battlefield, including the homeland.

Are you familiar with the Padilla case? That is a Federal court case involving an American citizen captured in the United States who was held for several years as an enemy combatant. His case went to the Fourth Circuit. The Fourth Circuit Court of Appeals said: An American citizen can be held by our military as an enemy combatant, even if they are caught in the United States, because once they join the enemy forces, then they present a military threat and their citizenship is not a sort of a get-out-of-jail-free card; that the law of the land is that an American citizen can be held as an enemy combatant. That went to the Fourth Circuit. That, as I speak, is the law of the land.


Mr. GRAHAM. In the Padilla case, that went to the Fourth Circuit. The Hamdan case went to the Supreme Court. That was capture overseas. But the Fourth Circuit ruling stands that an American citizen captured in the United States can be held as an enemy combatant.

But 1032, requiring military custody, is only for noncitizens captured in the United States. So the bottom line is, I think we have constructed a very sound, solid system that deals with homeland captures and homeland threats. We have created due process that understands this is a war without end, that no one is going to be held in jail indefinitely without going to a Federal court to make their case that they are unfairly held, that if the Federal court rules with the government, there is an annual review process that would allow the opportunity to get out in the future based on an evaluation of the case.
From a due process point of view, I am very proud of the work product. I think it makes sense. I think it is a balance between our right to be safe and our rights to provide individuals with due process. But the big breakthrough is that we are now, for the first time as a Congress, creating a system that not only will allow this President flexibility and guidance, but future Presidents, and it will help us in further court challenges.

Quite frankly, the Congress is saying, through this bill, if someone is caught in the United States, citizen or not, joining al-Qaida, trying to do harm to our Nation, we are going to create a system where you can be held, you can be prosecuted, you can be interrogated within our values, and we are not going to create an absurd result that if you make it here, none of that applies. That is all we are trying to do. Does the Senator agree with that?


Mr. GRAHAM. If I may, I think we need to move to the appropriations conference report. We will do it very quickly


Mr. GRAHAM. Military commissions.


Mr. GRAHAM. The reason we have not had more is because the Obama administration withdrew charges. Thank goodness they have reinstated charges. There are military commission hearings going on as we speak. I am in the camp of ``all the above.''

Sometimes article 3 courts are the best venue, sometimes military commissions. The Ghailani case was someone we held as an enemy combatant for years, took to Federal court and 200-and-something charges and got convicted on 1. Our Federal courts are not set up to deal with people who have been held as enemy combatants under the law of war, then tried in civilian systems.

The Christmas Day Bomber, it made perfect sense to me to put him in an article 3 court. We found out he was a low-level guy, not one of the higher-ups. But if we catch someone here at home or overseas who is involved deeply in terrorism in terms of what they know, then we would hold them for a period of time to question them.

Then, if you wanted to decide to prosecute, military commissions make the most sense. So the only reason we have not had more military commission trials is because they have been stopped. I am not saying Federal courts are not an appropriate venue sometimes. I am saying that when you hold someone under the law of war for years to gather intelligence, which you have a right to do, we need to keep them in the same system, and you see what happens when you mix systems.

I am very proud of the bill, great debate to have, long overdue. If we can get this enacted into law, I will say this: Americans can look anyone in the world in the eye and say: We have robust due process. We can also tell the people in this country whom we are sworn to protect that we have a system that recognizes the difference between an al-Qaida operative trying to kill us and destroy our way of life and a common criminal. We need to do both.

I yield the floor.


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