National Defense Authorization Act for Fiscal Year 2012

Floor Speech

By:  Lindsey Graham
Date: Nov. 29, 2011
Location: Washington, DC


Mr. GRAHAM. Let me start with my good friend from Colorado. I respect the Senator; I know his concerns. I don't agree.

I can remember being told by the Bush administration: We don't need the Detainee Treatment Act. Everybody said we didn't need it, but they were wrong. I remember being told by the Vice President's office during the Bush administration: It is OK to take classified evidence, show it to the jury, the finder of fact, and not share it with the accused, but you can share it with his lawyer.

How would you like an American soldier tried in a foreign land, where they are sitting there in the chair wondering what the jury is talking about and can't even comment to their own lawyer about the allegations against them?

I have been down this road with administrations and we worked in a bipartisan fashion to change some things the Bush administration wanted to do and I am glad we did it. We are working in a bipartisan fashion to change some things this administration is doing, and I hope we are successful, because if we fail, we are all going to be worse for it.

Here are the facts: Under this provision of mandatory military custody, for someone captured in the United States, if they are an American citizen, that provision does not apply to them. But here is the law of the land right now: If they are an American citizen suspected of joining al-Qaida, being a member of al-Qaida, they can be held as an enemy combatant.

The Padilla case in South Carolina, where the man was held 5 years as an enemy combatant, went to the Fourth Circuit Court of Appeals, and here is what that court said: You can interrogate that person in an intelligence-gathering situation. The only thing you have to do is provide them a lawyer for their habeas appeal review.

So here are the due process rights: If our intelligence community or military believe an American citizen is suspected of being a member of al-Qaida, the law of the land the way it is today, an American citizen can be held as an enemy combatant and questioned about what role they play in helping al-Qaida, and they do get due process. Everybody held as an enemy here, at Guantanamo Bay, captured in the United States, goes before the Federal judge, and the government has to prove, by a preponderance of the evidence, that the person is, in fact, an enemy combatant. There is due process. We don't hold someone and say: Good luck. They have to go before a judge--a Federal court--and prove their case as the government.

Here is the question for the country. Is it OK to hold, under military control, an American citizen who is suspected of helping al-Qaida? You had better believe it is OK.

My good friend from Colorado said this repeals the Posse Comitatus Act. The Posse Comitatus Act is a prohibition on our military being used for law enforcement functions, and it goes back to reconstruction.

This is the central difference between us. I don't believe fighting al-Qaida is a law enforcement function. I believe our military should be deeply involved in fighting these guys at home and abroad. The idea of somehow allowing our military to hold someone captured in the United States is a repeal of the Posse Comitatus Act, you would have to conclude that you view that as a law enforcement function, where the military has no reason or right to be there. That is the big difference between us. I don't want to criminalize the war.

To Senator Levin, thank you for helping us this time around craft a bipartisan solution to a very real problem. The enemy is all over the world and here at home. When people take up arms against the United States and are captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity? The only way we can do that is hold them in military custody, and this provision can be waived. It doesn't apply to American citizens. But the idea that an American citizen helping al-Qaida doesn't get due process is a lie. They go before a Federal court and the government has to prove they are part of al-Qaida.

Let me ask this to my colleagues on the other side. What if the judge agrees with the military or the intelligence community making the case? Are you going to require us to shut down the intelligence-gathering process, read them their rights, and put them in Federal court? That is exactly what you want, and that will destroy our ability to make us safe. If an American citizen is held by the intelligence community or the military and a Federal judge agrees they were, in fact, a part of the enemy force, that American citizen should be interrogated to find out what they know about the enemy, in a lawful way, and you should not require this country to criminalize what is an act of war against the people of the United States. They should not be read their Miranda rights. They should not be given a lawyer. They should be held humanely in military custody and interrogated about why they joined al-Qaida and what they were going to do to all of us. So this provision not only is necessary to deal with real-world events; it is written in the most flexible way possible.

To this administration, the reason we are on the floor today is it was your idea to take Khalid Shaikh Mohammed and put him in New York City and give him the rights of an American citizen and criminalize the war by taking the mastermind of 9/11 and making it a crime and not an act of war.


Mr. GRAHAM. Thank you. I will wrap up.

To Senator Levin and Senator McCain, what they are accusing the Senators of doing is not true. They are codifying a process that will allow us to intelligently and rationally deal with people who are part of al-Qaida, not political dissidents.

If someone doesn't like President Obama, we are not going to arrest them. I am getting phone calls about that. That is a bunch of garbage. A person can say anything they want about the President or me, they just can't join al-Qaida and expect to be treated as if it were a common crime. When someone joins al-Qaida, they haven't joined the Mafia. They are not joining a gang. They are joining people who are bent on our destruction, and they are a military threat. If you don't believe they are a military threat, vote for Senator Udall. If you believe al-Qaida represents a threat to us at home and abroad, give our intelligence and military agencies statutory guidance and authority to do things that need to be clear rather than uncertain.

We are 10 years into this war. Congress needs to speak. This is your chance to speak. I am speaking today. Here is what I am saying to my colleagues on the other side and to the world at large: If you join al-Qaida, you suffer the consequences of being killed or captured. If you are an American citizen and you betray your country, you are going to be held in military custody and you are going to be questioned about what you know. You are not going to be given a lawyer if our national security interests dictate that you not be given a lawyer and go into the criminal justice system because we are not fighting a crime, we are fighting a war.

There is more due process in this bill than at any other time in any other war. I am proud of the work product. There are checks and balances in this bill that we have been working on for 10 years. The mandatory provisions do not apply to American citizens. They can be waived if they impede in an investigation. We are trying to provide tools and clarity that have been missing for 10 years. This is your chance to speak on the central issue 10 years after the attacks of 9/11. Are we at war or are we fighting a crime? I believe we are at war, and the due process rights associated with war are in abundance and beyond anything ever known in any other war.

What this amendment does is it destroys the central concept that we are trying to present to the body and to the country; that we are facing an enemy--and not a common criminal organization--that will do anything and everything possible to destroy our way of life. Let's give our law enforcement and military community the clarity they have been seeking and I think now they will have.

To the administration, with all due respect, you have engaged in one episode after another to run away from the fact that we are fighting a war and not a crime. When the Bush administration tried to pass policies that undercut our ability to fight this war and maintain our values, I pushed back. I am not asking any more of the people on the other side than I ask of myself. When the Bush administration asked me, and others, to do things that I thought undercut our values, I said no. Now we have an opportunity to tell this administration we respect their input, but what we are trying to do needs to be done, not for just this time but for the future.

Ladies and gentlemen, either we are going to fight this war to win it and to keep us safe or we are going to lose the concept that there is a difference between taking up arms against the United States and being a common criminal.

In conclusion, Khalid Shaikh Mohammed and all those who buy into what he is selling present a threat to us far different than any common criminal, and our laws should reflect that.

Senators Levin and McCain have created a legal system for the first time in 10 years that recognizes we are fighting a war within our values. I hope we get a strong bipartisan vote for the tools in this bill.

I yield the floor.


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