Defense Authorization

Floor Speech

By:  Lindsey Graham
Date: Nov. 30, 2011
Location: Washington, DC

Mr. GRAHAM. I would like to do a colloquy with my good friend from Connecticut.

Senator Lieberman said something that I think we need to sort of absorb. As the chairman of the Homeland Security Committee, does the Senator believe the likelihood of American citizens being recruited, enlisted, and radicalized on behalf of al-Qaida is going up? Is that what the Senator is trying to tell us?


Mr. GRAHAM. I think that is important for us to understand. Does the Senator agree with me that when we look at the war on terror, the United States is part of the battlefield?


Mr. GRAHAM. Under the Posse Comitatus Act, the military cannot be used for domestic law enforcement functions. Does the Senator agree with me that tracking al-Qaida operatives--citizen or not--within the United States is not a law enforcement function; it is a military function?


Mr. GRAHAM. But our military has the ability to defend us against al-Qaida attacks at home, such as they do abroad.


Mr. GRAHAM. So if the Department of Defense somehow intercepted information about an al-Qaida cell, let's say in Connecticut or South Carolina, could they be involved in suppressing that cell?


Mr. GRAHAM. Let's imagine a scenario next week where we find an al-Qaida cell exists that is planning a series of attacks against the United States, and within that cell we have some American citizens and we have people who have come here who are noncitizens.

Would the Senator agree with me, since Congress has designated cooperating or collaborating with al-Qaida to be an act of war, that entire cell could be held as enemy combatants and questioned by our intelligence community as to what they know about the attack and questioned on future attacks?


Mr. GRAHAM. So would the Senator agree with me that the current law is very clear that anytime an American citizen joins the enemy force, they can be held as an enemy combatant; that is the law?


Mr. GRAHAM. If we capture an American citizen as part of this cell and we can't hold them as an enemy combatant for intelligence-gathering purposes, does domestic criminal law allow us to hold someone for an indefinite period of time to gather military intelligence?


Mr. GRAHAM. Does domestic criminal law focus on the wrongdoing of the actor, based on a specific event, when we are trying to resolve a dispute between the wrongdoer and the victim?


Mr. GRAHAM. Does the Senator agree with me the reason the Supreme Court has recognized that an American citizen could be held as an enemy combatant if they collaborate with an enemy is that the Court views that as an act of war; and under the powers of the Commander in Chief, he can suppress all the enemies, foreign and domestic, that are at war with us?


Mr. GRAHAM. So our courts have recognized that during a time of hostilities, the executive branch has the authority to detain an American citizen who is helping the enemies of the Nation. The question is, Does the Congress want to change that for the first time ever?

I would like to add something that my good friend from Rhode Island got me thinking about. I have always tried to explain indefinite detention, what are we trying to do here? Clearly, in war, there is no requirement to let the enemy prisoner go back to the fight after the passage of time. We don't want to let any enemy prisoner go back to the fight because that makes no good sense. The problem with this war is, there is no definable end. That is the reason we have a habeas review, because we will never know when hostilities are over. So an enemy combatant determination could be a de facto life sentence, and that is why our Supreme Court said we want a judicial check on the executive branch.

So every enemy combatant will have their day in Federal court, and the government has to prove, by a preponderance of the evidence to an independent judge, that the decision to hold this person is warranted under the law. That was what the Hamdi case was about. I think that makes sense because it will not be the traditional war; it will be a war without a definable end.

The idea of continuing to hold them, if the judge says to the government: You are right, there is compelling evidence this person was involved with al-Qaida, tried to get involved with a hostile act; you are right, they are part of the enemy, you can hold them forever. But we have come up with an annual review process to make sure they will have a chance every year to have their case looked at.

Senator Whitehouse got me thinking. In our own law, under the civil justice system--such as Hinckley, the man who shot President Reagan, he was acquitted in court, by reason of insanity, of shooting President Reagan. He has been in a psychiatric hospital ever since, and he can be held away from the community because he is a danger to himself or others.

I think what Senator Whitehouse is saying is, the idea that we can hold someone--the Court has agreed with the government--as part of the enemy force as a continuing threat is not an unknown concept. We just have to have a review.


Mr. GRAHAM. I thank the President.

I would suggest to our colleagues, let's think this thing through. Let's realize that if the enemy is coming to our homeland, the enemy is recruiting American citizens; and if we find an American citizen who has, in fact, joined forces with al-Qaida, our No. 1 goal should be to gather intelligence to prevent future attacks and to find out what that person knows about what the enemy is up to. Our secondary concern should be prosecution. When we interrogate somebody as the enemy combatant, the best thing we have on our side is time.

I don't want to waterboard anyone, but I want to keep them in a controlled environment where time is on our side, and I will argue that the best information we have from Guantanamo Bay detainees did not come from waterboarding, it came from the fact that we could hold them for an indeterminate period of time, and through time, they began to cooperate and tell us valuable information.

Does the Senator agree that is the concept we need to hold onto in this war?


Mr. GRAHAM. Wouldn't the Senator agree that under domestic criminal law, that indefinite ability to question about enemy activity doesn't exist?


Mr. GRAHAM. I acknowledged in the Christmas Day Bomber case, in the Times Square attempted bombing, that they were put in Federal court. I am okay with that. I do believe in the ``all of the above'' approach. Our Federal courts can handle cases involving transnational terrorists and al-Qaida members and so can military commissions. The idea of reading somebody their Miranda rights may be the best interrogation technique. I know that we were able to get some good information after reading Miranda rights.

I guess the point I am trying to make is I acknowledge that the people doing the interrogation are better suited to make that decision than I am. I just don't want the Congress by legislation to say for the first time in the history of the country in this war--unlike any other war you no longer have it available to you, the U.S. Government, the ability to hold somebody as an enemy combatant if you believe that is the best way to gather intelligence. I am not saying the other system cannot be used. Let's leave it up to the professionals.

But the Senate is suggesting through the legislation being proposed that the idea of holding an American citizen who is suspected of collaborating with al-Qaida that they can no longer be held as an enemy combatant is not only changing the law, it is taking off the table a tool that I think we need now more than ever. I don't want us to lose sight of the fact of what we are doing here and what it would mean to our country and our ability to defend us. No one in World War II would have tolerated the idea that someone who collaborated with a Nazi trying to kill us on our own soil would have any other disposition than to be considered an enemy of the American people.

My question for this body is: Do you think al-Qaida is an organization that doesn't present that same kind of threat? Is it the Senate's desire to say during these times that an American citizen can collaborate with al-Qaida to kill us on our own soil and that is no longer considered an act of war? I would argue that that would be one of the most irresponsible decisions ever made in a time of war by an elected body. It not only would change the law as we know it, it would create an opportunity and a hole in our defenses at a time when, as the Senator has indicated, the threat is growing.
I say to Senator Lieberman, thank you for being a steady, stern, consistent voice along the line that since 9/11 our Nation has been in an undeclared state of war. The enemy still roams the globe. They have as their hope and dream hitting us again here at home. And, for God's sake, let's not weaken our defenses in a way that no other Congress has ever chosen to weaken the executive branch in the past. I thank the Senator for his service.


Mr. GRAHAM. Mr. President, I will wrap this up. I know we have colleagues who want to speak. Let me reiterate what Senator Lieberman said. There is a stream of thought that every member of al-Qaida, American citizen or not, is an enemy of the people of the United States in a military sense, not a criminal sense, and they should be in a military tribunal. That is the way we have handled most cases in the past.

Here is what I believe: I believe that the choice of venue should lie with the executive branch, and I think there is a very robust role for article III courts. So I don't want to say from a congressional point of view that every member of al-Qaida has to be tried by a military commission all the time, because, quite frankly, sometimes article III courts could be the better venue. When it comes to telling the executive branch that you have to put a noncitizen in military custody inside the United States, I think that is the right way to do it, but I don't know enough, so if there is a reason to waive that provision, the experts can waive it.

I have been very cautious about micromanaging the executive branch because they are the ones fighting the war. We have a role to play, we have a voice to be heard, and here is what I am urging some my colleagues. This compromise is not what some of our friends wanted, such as Senator Lieberman and, quite frankly, it is not what the ACLU wants, because they don't buy into the idea that al-Qaida operatives are anything other than common criminals. So you have two poles here. I believe an al-Qaida operative is not a common criminal, and if an American citizen joins al-Qaida they should be treated as an enemy combatant as one possibility. But if you want to go down the other road, you can go down that road. I just don't want us to take off the table, for the first time in the history of America, that an American citizen trying to help the enemy kill us here at home somehow can no longer be talked to by our military to gather intelligence. That is a crazy outcome.

I think we have a good bill that gives maximum flexibility to the executive branch but preserves the tools we are going to need now and into the future. And to my colleagues, please ask yourself: If in World War II we could hold an American citizen who tried to help the Nazis blow up America as an enemy combatant, why wouldn't you want to help hold an American citizen who is helping al-Qaida--which did more damage to the homeland than the Nazis--as an enemy combatant? Why would you want to take off the table the ability to hold that person, humanely interrogate them to find out why they joined, who they talked to and what they know? Because what they know and who they talked to may save thousands of lives. For us to say you cannot do that for the first time in the history of the country would be a colossal mistake.

I yield the floor.


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