National Defense Authorization Act for Fiscal Year 2012

Floor Speech

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Mrs. FEINSTEIN. Madam President, I rise to ask my colleagues to support amendment No. 1125, which will limit mandatory military custody to terrorists captured outside the United States. This amendment is cosponsored by Senators Leahy, Durbin, Udall, Kirk, Lee, Harkin and Webb.

This is a very simple amendment. It adds only one word--the word ``abroad''--to section 1032 of the underlying bill. I strongly believe if it is not broke, do not fix it. The ability to have maximum flexibility in the United States is very important, and I totally support the Executive having that flexibility.

This bill creates a presumption that members or parts of al-Qaida or associated forces will be held in the military system. That is what concerns me because the military system has not produced very well over the last 10 years.

I want to take a moment to contrast some cases.

On this chart, we have sentences--five of them from military commissions and five or six from Federal courts. The Federal courts have actually convicted over the last 10, 11 years not 300 people but 400 people.

Military commissions are limited to some six convictions. Let's take a look at what they are.

A very famous one is Salim Hamdan because he brought a Supreme Court case. He was bin Laden's driver. He was acquitted of conspiracy and only convicted of material support for terrorism. He received a 5-month sentence by the military commission and was sent back to his home in Yemen to serve the time before being released in January of 2009.

No. 2: David Hicks entered into a plea on material support for terrorism and was given a 9-month sentence, mostly served back home in Australia.

Omar Khadr pled guilty in exchange of an 8-year sentence, but he will likely be transferred to a Canadian prison.

Ibrahim Ahmed Mahmoud al-Qosi pled guilty to conspiracy and material support to terrorism. His final sentence was 2 years pursuant to a plea deal.

Noor Uthman Muhammed pled guilty to conspiracy and material support to terrorism. His final sentence will be less than 3 years pursuant to his plea agreement.

Ali Hamza al-Bahlul received a life sentence after he boycotted the entire commission process.

On the other hand, you have sentences from the Federal courts.

You have Richard Reid, the Shoe Bomber--life in prison.

``Blind Sheik'' Omar Abdel Rahman--life in prison for the plot to bomb New York City.

Twentieth Hijacker Zacarias Moussaoui--life in prison.

Ramzi Yousef--life in prison for the 1993 World Trade Center bombing and the Manila Air plot.

Umar Farouk Abdulmutallab--probably life in prison; will be sentenced in January 2012.

Najibullah Zazi--potential life in prison. This is the man, with conspirators, who was going to bomb the New York subway.

There is definitive evidence that is irrefutable that the Federal courts have done a much better job than the military commissions.

Why this constant press, that if it is not broke we are going to fix it anyway, I do not understand. Why the constant push to put people in military custody rather than provide the flexibility so that evidence can be evaluated quickly? This person will get life in a Federal court versus an inability or a problem in a military commission or vice versa. I think the Executive should have that.

I think the last 10 years have clearly shown that this country is safer than it has ever been. Terrorists are behind bars where they belong and plots have been thwarted, so the system is working.

This amendment would make clear that under section 1032, U.S. Armed Forces are only required to hold a suspected terrorist in military custody when he is captured abroad. All the amendment does is add one word--that is the word ``abroad''--to make clear that the military will not be roaming our streets looking for suspected terrorists. The amendment does not remove the President's ability to use the option of military detention or prosecution inside the United States.

The administration has threatened to veto this bill, and has said:

[It] strongly objects to the military custody provision of section 1032 [because it] would tie the hands of our intelligence and law enforcement professionals.

Perhaps, most importantly, addressing the issue of this amendment specifically, on November 15, Defense Secretary Leon Panetta wrote this:

The failure of the revised text to clarify that section 1032 applies to individuals captured abroad ..... may needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.

The Director of National Intelligence, Jim Clapper, also wrote a letter on November 23, to say that he opposes the detainee provisions of this bill because they could--and I quote--``restrict the ability of our nation's intelligence professionals to acquire valuable intelligence and prevent future terrorist attacks.''

The administration suggested this change to the Armed Services Committee, but it was rejected. So the administration has had to threaten a veto on the bill. Who knows whether they will. I certainly do not know. This amendment limiting mandatory military custody to detainees outside the United States is a major improvement to the bill, and I ask my colleagues to support it.

I have a very hard time because I have watched detainees carefully as part of the Senate Intelligence Committee, and we are doing a study on the detention and treatment of high-value detainees. This has been going on for 2 years now. It is going to be a 4,000-page document, and it is going to be classified. But it will document what was actually done with each of the high-value detainees and what was learned from them. It shows some very interesting things. But the upshot of all of this is that we should keep military custody to people arrested abroad and have the wide option in this country, which is the case now, and not mandate--mandate--that military custody and military commission trial must be for everyone arrested in the United States.

You will hear that anyone who comes to the United States who carries out a criminal act, a terrorist act under the laws of war, should be subject to military custody. The problem is, 10 years of experience has not worked. How many years' experience do we need? How many sentences--six cases--and this is all there is in 10 years.

I know the other side got very upset when Abdulmutallab was Mirandized. The fact of the matter is, every belief is Abdulmutallab is going to do a life sentence in a Federal prison, put away somewhere in a place where he cannot escape and where the treatment is very serious.

I have, again, a hard time knowing why if it is not broke we need to fix it, and why we need to subject everybody who might be arrested in this country to a record that is like this: 5-month sentence, 9-month sentence, 8-year sentence, 2-year sentence, 3 years pursuant to a plea agreement, and one life sentence, when you have 400 cases that have been disposed of in a prompt way in a Federal court, who are serving long sentences in Federal prison.

I wish to hold the remainder of my time and have an opportunity to respond to the distinguished chairman and ranking member.

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Mrs. FEINSTEIN. I appreciate it. I may well use it.

Madam President, I object to the statement just made that this will make the United States of American less safe. Ten years of experience has shown it has not. Plot after plot after plot has been interrupted. I have served on the Intelligence Committee for 11 years now. We follow this closely. This country is much more safe because things have finally come together with the process that is working.

The FBI has a national security division with 10,000 people. There are 56 FBI offices. The military does not have offices to make arrests around this country. This constant push that everything has to be militarized--they were wrong on Hamdi, they were wrong on Hamdan. And it keeps going. And that it is terrible to protect people's rights. I do not think that creates a safe country. This country is special because we have certain values, and due process of law is one of those values. So I object. I object to holding American citizens without trial. I do not believe that makes us more safe. I object to saying that everything is mandatory military commission and military custody if anyone from abroad commits a crime in this country. The administration has used the flexibility in a way that they have won every single time. There have been no failures.

The Bush administration as well used the Federal courts without failure. They have gotten convictions. The military commissions have failed, essentially; 6 cases over 10, 11 years. I pointed out the sentences. So to say that what we are doing is to make this country less safe may be good for a 30-second sound bite, but it is not the truth.

I yield the floor.

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Mrs. FEINSTEIN. Madam President, I wished to say with respect to Abdulmutallab, what was very new there was that an explosive had been invented that could go through a magnetometer without detection. It is, to my knowledge, the first time anyone came into the United States--this young Nigerian from a very prominent Nigerian family--wearing a diaper that had enough of this PETN, this new explosive, to blow up the plane. He missed in detonation and it caught on fire and the fire was put out.

There have been other incidents of trying to smuggle this PETN in cartridges of computers and they even had dogs going to the airport and they could not smell the explosive inside the computer cartridge. That was in Dubai. It is a very dangerous explosive. It is new, and it has been improved. It is something we need to be very wary of.

I also wish to point out that there is a public safety exception to Miranda. We do not have to Mirandize someone or we could continue to question them, if there is a public safety risk. So Mirandizing an individual is not a point in this argument, in my view, because we can continue the interrogation.

What is a point, in my argument, is that the FBI now has competence; that there is a group of special experts who can be flown to a place where someone is arrested and do initial interrogation. They are specifically trained and, to the best of my knowledge, they are effective at interrogating. My point is, the system is working, and we should keep it as it is.

I yield the floor.

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Mrs. FEINSTEIN. Mr. President, I wish to explain what has happened this long afternoon. Originally some of us, namely Senators Leahy, Durbin, Udall of Colorado, Kirk, Lee, Harkin, Webb, Wyden, Merkley, and myself, realized that there was a fundamental flaw in section 1031 of the bill.

There is a difference of opinion as to whether there is this a fundamental flaw. We believe the current bill essentially updates and restates the authorization for use of military force that was passed on September 18, 2001. Despite my support for a general detention authority, the provision in the original bill, in our view, went too far. The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities. We have had long discussions on this.

The disagreement arises from different interpretations of what the current law is. The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until ``the end of the hostilities'' which, in my view, is indefinitely.

Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court's Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion's express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.

So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side's view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side's interpretation, but leaves it to the courts to decide.

Because the distinguished chairman, the distinguished ranking member, and the Senator from South Carolina assert that it is not their intent in section 1031 to change current law, these discussions went on and on and they resulted in two amendments: our original amendment, which covers only U.S. citizens, which says they cannot be held without charge or trial, and a compromise amendment to preserve current law, which I shall read:

On page 360, between lines 21 and 22, insert the following:

Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

I believe this meets the concerns of the leadership of the committee and this is presented as an alternative. There are those of us who would like to vote for the original amendment, which I intend to do, as well as for this modifying amendment. They will appear before you as a side-by-side, so everyone will have the chance to vote yea or nay on the original or yea or nay on the compromise. As I said, I would urge that we vote yes on both.

This is not going to be the world as we see it postvote, but I will tell you this, the chairman and the ranking member have agreed that the modified language presented in the second vote will be contained in the conference; that they will do everything they can to contain this language in the conference.

In the original amendment--my original amendment--which affects only U.S. citizens, that is not the case. They are likely to drop that amendment. So I wish to make the point by voting for both, and I would hope others would do the same. I think a lot has been gained. I think a clear understanding has been gained of the problems inherent in the original bill. I think Members came to the conclusion that they did not want to change present law and they wanted to extend this preservation of current law not only to citizens but to legal resident aliens as well as any other persons arrested in the United States. That would mean they could not be held without charge and without trial. So the law would remain the same as it is today and has been practiced for the last 10 years.

I actually believe it is easy to say either my way or the highway. I want to get something done. I want to be able to assure people in the United States that their rights under American law are protected. The compromise amendment, which is the second amendment we will be voting on, does that. It provides the assurance that the law will remain the same and will not affect the right of charge and the right of trial of any U.S. citizen, any lawful legal alien or any other person in the United States. We have the commitment by both the chairman and the ranking member that they will defend that in conference.

There are those who say I wish to just vote for the original amendment. That is fine. I am not sure it will pass. I don't know whether it will pass, but in my judgment, the modification is eminently suitable to accomplish the task at hand and has the added guarantee of the support of the chairman, the ranking member in a conference committee with the House, which I think is worth a great deal. They have given their word, and I believe they will keep it. This Record will reflect that word.

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Mrs. FEINSTEIN. Mr. President, I wonder if I might be able to make a few comments.

This amendment is a compromise amendment. I think it is actually a very good amendment. I want to thank the chairman of the committee, the ranking member, and Senator Graham, who participated in a rather lengthy discussion, and this is the result.

The amendment--I will read it. It says:

Nothing in this section shall be construed to affect existing law or authority relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

There is a commitment from both the chairman and the ranking member and Senator Graham that they will defend this amendment in conference. So I hope everyone will vote for it because essentially it just supports present law, whether one supports the broad interpretation of present law, or one supports a more narrow interpretation of present law. There is no change in law.

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Mrs. FEINSTEIN. Mr. President, I rise to respond to a colloquy yesterday that occurred between Senators Ayotte, Lieberman, and Graham regarding amendment No. 1068 offered by Senator Ayotte to the Defense authorization bill.

Senator Ayotte's amendment would eliminate measures that provide our interrogators with the guidance and clarity they need to effectively solicit actionable intelligence while upholding American values. In doing so, the amendment would override the better judgment of our military and intelligence professionals in a manner that will harm, not improve, our short- and long-term security.

Yesterday, Senator Lieberman said on the Senate floor that he wants prisoners taken captive by the United States to be ``terrified about what is going to happen to them while in American custody.'' He also said he wants ``the terror they inflict on others to be felt by them.'' I believe that such statements are antithetical to fundamental American values. I firmly believe that America will not and cannot lower itself to the level of terrorists. To do so would be to abandon our most cherished principles and what our country stands for.

There was also discussion of abuses at Abu Ghraib, which diminished America's standing and outraged the American public, and there was discussion about how there were a few isolated incidents at Abu Ghraib.

As chairman of the Select Committee on Intelligence, I can say that we are nearing the completion a comprehensive review of the CIA's former interrogation and detention program, and I can assure the Senate and the Nation that coercive and abusive treatment of detainees in U.S. custody was far more systematic and widespread than we thought.

Moreover, the abuse stemmed not from the isolated acts of a few bad apples but from fact that the line was blurred between what is permissible and impermissible conduct, putting U.S. personnel in an untenable position with their superiors and the law.

That is why Congress and the executive branch subsequently acted to provide our intelligence and military professionals with the clarity and guidance they need to effectively carry out their missions. And that is where the Army Field Manual comes in.

However, Senator Ayotte's amendment would require the executive branch to adopt a classified interrogation annex to the Army Field Manual, a concept that even the Bush administration rejected outright in 2006.

Senator Ayotte argued that the United States needs secret and undisclosed interrogation measures to successfully interrogate terrorists and gain actionable intelligence. However, our intelligence, military, and law enforcement professionals, who actually interrogate terrorists as part of their jobs, universally disagree. They believe that with the Army Field Manual as it currently is written, they have the tools needed to obtain actionable intelligence from U.S. detainees.

As an example, in 2009, after an extensive review, the intelligence community unanimously asserted that it had all the guidance and tools it needed to conduct effective interrogations. The Special Task Force on Interrogations--which included representatives from the CIA, Defense Department, the Office of the Director of Intelligence, and others--concluded that ``no additional or different guidance was necessary.''

Since 2009, the interagency High Value Detainee Interrogation Group has briefed the Select Committee on Intelligence numerous times. The group has repeatedly assured the committee that they have all authority they need to effectively gain actionable intelligence. As a consummate consumer of the intelligence products they produce, I agree.

Unfortunately, amendment No. 1068 would overrule the judgments of these professionals--who have served under both the Bush and Obama administrations--and impede their important work.

If our intelligence community is telling us that the current guidelines and interrogation techniques are effective, why would we add secret interrogation methods?

Senator Ayotte's amendment would muddy the waters on what is and isn't permissible in interrogating U.S. detainees. Her amendment would overturn not only the Executive order on lawful interrogations but also roll back the McCain amendment passed in 2005--which the Senate approved in a 90-to-9 vote--by allowing some interrogators, including some military interrogators, to evade established interrogation protocols.

In creating unnecessary exceptions to existing interrogation guidance, Senator Ayotte's amendment would deprive our military and intelligence professionals of the clarity they deserve and threaten to reopen the door to secret techniques and other abuses of U.S. detainees.

While Senator Ayotte has insisted that her amendment would continue to prohibit cruelty, the colloquy on the floor suggests otherwise. When Senator Graham asked her if the amendment was needed to bring back enhanced interrogation techniques--techniques we now know included induced hypothermia, slapping, sleep deprivation, and forced stressed positions she responded in the affirmative.

We cannot have it both ways. Either we make clear to the world that the United States will honor our values and treat prisoners humanely or we let the world believe that we have secret interrogation methods to terrorize and torture our prisoners.

The Ayotte proposal also ignores the dangerous practical implications for our intelligence and military partners overseas.

The colloquy between the Senators yesterday suggests they believe the United States will have some advantage by having a secret list of interrogation techniques and that this will have no negative implications, aside from giving interrogators more options.

Last year, GEN David Petraeus said it best when he unequivocally asserted that we should not return to so-called ``enhanced'' techniques because they ``undermine your cause'' and ``bite you in the backside in the long run.''

Current U.S. law and policy makes clear that America is committed to fundamental humane treatment standards. By overturning the status quo, the Ayotte amendment would create dangerous pockets of uncertainty to the detriment of our international standing, our intelligence collectors, and our national security.

Should this amendment ever come to the floor of the Senate, I urge my fellow Senators to oppose it.

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