National Defense Authorization Act for Fiscal Year 2013 - Continued

Floor Speech

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Ms. AYOTTE. Mr. President, I rise in support of my amendment No. 3245.

Last year, in the Defense authorization bill we had in it a prohibition that would prohibit transferring those who are held in military custody at the Guantanamo Bay facility from there to the United States of America. This year, as the language of the Defense authorization stands, there is no such prohibition, making it possible for the administration, should it choose, to transfer from the Guantanamo Bay detention facility 166 foreign enemy combatants who are being currently detained at Guantanamo. I am deeply concerned that the Defense authorization does not include this prohibition of transfer language, and that is why I have brought forth this amendment.

I am also pleased that this amendment is being cosponsored by the vice chairman of the Senate Select Committee on Intelligence, Senator Chambliss, as well as Senators Inhofe, Graham, Kirk, and Sessions.

We have at Guantanamo Bay a top-rate facility that allows for the secure and humane detention and interrogation of foreign terrorist detainees, including right now the mastermind of the attacks of our country on 9/11.

I don't think anyone in this body would dispute that when our country was attacked on September 11, that was an act of war against the United States of America, and we remain, unfortunately, at war with members of al-Qaida and other terrorist organizations that want to kill Americans and our allies simply for what we believe in and for what we stand for in this country. This is a war, and those who were killed on September 11 were victims of this war.

One of the concerns I have is that when we are at war, the priority always has to be to detain those who are captured, pursuant to that war, in military custody.

We have at Guantanamo Bay a top-rate facility. I have visited it personally. Those who are held there are treated humanely. It is a very secure facility that is not on our homeland, and it is very well protected by our military.

Also at that facility is a top-rate court, where military commissions can be held for those who are charged who are held at Guantanamo Bay. Why is that important? Because when you are at war, those aren't mere criminals--they are not mere criminals who have committed a burglary in our neighborhood. They have committed acts of terror against our country, and they are very dangerous individuals, many of whom would attempt do so again were they released. That is another reason why I have brought this amendment forward, because I think it is very important that the American people be safe and secure and that those individuals who are being held there--many of them who are tremendously dangerous--be held in a secure facility that is not on our soil.

In 2009, the Attorney General discussed and sought to bring Khalid Shaikh Mohammed--the mastermind of 9/11--to trial in New York City. The American people and members of both sides of the aisle objected to having the trial of Khalid Shaikh Mohammed in New York City. As a result, Khalid Shaikh Mohammed is being held at Guantanamo Bay. He will be tried by a military commission. But that demonstration made it clear the American people do not want foreign members of al-Qaida and associated terrorist organizations being brought to the United States when we have a secure facility at Guantanamo Bay that we have spent resources to update, that is very humane.

In fact, in February of 2012, the Washington Post asked: Do you approve of the decision to keep open the Guantanamo Bay prison for terror suspects? Seventy percent of the American people who answered that survey said: Yes, we approve of it.

I want people to understand whom we are talking about transferring from Guantanamo Bay to the United States of America and understand the individuals and some of the background of those who are being held at Guantanamo Bay, coming to a neighborhood near you.

This is, of course, the mastermind of the September 11 attacks, Khalid Shaikh Mohammed, who is being held at Guantanamo Bay. He is often called KSM. He claims to have personally decapitated American journalist Daniel Pearl in 2002, and he admitted to playing a role in over 30 terrorist plots. Some of these include a 1995 plot to blow up 12 U.S. airliners flying from Southeast Asia to the United States for which he was indicted the following year; the 1993 World Trade Center bombing; a plot to hit towers in Chicago, Seattle, Los Angeles, New York's Empire State Building, and nuclear power stations. KSM also claimed he was involved in a plot to assassinate Pope John Paul II and President Bill Clinton. He, of course, met Osama bin Laden in the 1980s, and in 1999 KSM persuaded Osama bin Laden to support the horrible acts that occurred on our soil on September 11.

Mullah Mohammad Fazil is another individual being held at Guantanamo Bay. Fazil is suspected in the death of CIA Officer Johnny ``Mike'' Spann in 2001, the first casualty of the Afghanistan war. He was deemed by U.S. officials as a high threat to the United States. It was assessed that he would likely rejoin the Taliban and participate in operations against U.S. and coalition forces if released. He was at one time the most senior Taliban leader in northern Afghanistan. In fact, he was so senior he once threatened Taliban leader Mullah Omar. Fazil has been implicated in the murder of thousands of Shiites in northern Afghanistan under Taliban control, and he is wanted by the United Nations for possible war crimes.

Another individual being held at Guantanamo Bay, Mohammad Nabi, is tied to a 2002 attack that killed two Americans and maintains loyalty to al-Qaida.

Let's be clear. There is a 28-percent recidivism rate of those we have released from Guantanamo Bay back to foreign nationals who have gotten back into the battle against our country. These are individuals who have not renounced the war on terror. The recidivism record speaks for itself. They have gotten into the battle. They still want to be involved in terrorist activities. They still want to be a member of al-Qaida or other terrorist groups and commit acts against our country and our allies.

Again, Mohammed Nabi is tied to the 2002 attack that killed two Americans. He maintains loyalty to al-Qaida. Yet some of my colleagues, if you think about it, would insist in other amendments we are dealing with today that he be treated as a common criminal.

One of the concerns I have is that if we close Guantanamo and we transfer all of those individuals to the U.S. courts, will they then claim all of the rights here in the United States? And God forbid any of them had to be released here as a result of challenges they would bring.

Nabi was a senior Taliban official also who helped finance the Taliban and smuggled weapons used against our troops. Nabi maintained weapons stockpiles and helped smuggle fighters and weapons to attack our warfighters. He is reportedly loyal to the Pakistan-based Haqqani terrorist network. The Haqqani network, of course, has been designated by the State Department as a foreign terrorist organization, and the Haqqanis are loyal to the Taliban and behind some of the largest attacks against the United States, Afghan, and coalition troops and interests in Afghanistan. He was also a member of a joint al-Qaida/Taliban cell in Khost, Afghanistan, that was involved in attacks against the United States and coalition forces. He continues to have issues with his behavior and how he has conducted himself.

The ACTING PRESIDENT pro tempore. The Senator has used 10 minutes.

Ms. AYOTTE. He is just one of the individuals who, if we do not have this prohibition, may be transferred to the United States of America.

Those are just three of the individuals who are present at Guantanamo Bay who could be coming to a neighborhood near you. Some may cite--one of the reasons I brought forth this amendment as well is some may cite a GAO report saying that we could somehow transfer these individuals here. Let's be clear what that GAO report says.

The ACTING PRESIDENT pro tempore. The time of the Senator has expired.

Ms. AYOTTE. I ask this body to agree to this amendment and not bring these terrorists here to the United States of America.

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Ms. AYOTTE. Mr. President, I would like to respond briefly.

I have great respect for the Senator from California. The distinction here in the cases she has been citing--the disposition of them--I think is a very important distinction. Certainly we have good Federal court systems. They are designed, though, for criminals and for crimes. Guantanamo Bay is a secure facility on which we have spent substantial resources to make a top-grade facility. I visited there. That is for terrorists when there is an act of war against our country, and those individuals who are being held there have committed acts that warrant them being held in military detention because of the terrorist acts I have outlined and the individuals involved. There is a big distinction, and the American people do not want those individuals brought here to the United States of America.

With that, I yield the remainder of my time to the Senator from South Carolina.

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Ms. AYOTTE. Mr. President, I rise to agree with my colleague Senator Levin, the chairman of the Armed Services Committee, in his interpretation of the Hamdi decision with regard to the review of the current amendment pending before us. The Feinstein amendment includes different language than the amendment that was brought forward and defeated in this body last year. The language says in 2(b)(1) that an authorization to use military force, a declaration of war, or any similar authority, shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States, apprehended in the United States, unless an act of Congress expressly authorizes such detention.

I do view, as does my colleague from Michigan, Senator Levin, the Hamdi decision that was decided before our U.S. Supreme Court as rendering an opinion that the current authorization for the use of military force that is in effect for our country gives explicit congressional authority for the detention of individuals such as in the case of Hamdi. He was an American citizen engaged in the battle against our country and would fall underneath the authorization for military force. In the Hamdi decision, the Court said that the AUMF, which has currently been approved by Congress, having the full force and effect of law, gives explicit congressional authorization for such detention.

I too believe, as Senator Levin has said, under that authorization, the Hamdi decision would be interpreted similarly if an individual who was a covered individual--a member who was covered by the authorization for military force but was nevertheless a United States citizen--was caught here committing an act of terrorism in this country. Our Supreme Court has already interpreted that in Hamdi in such a way. I wanted to add my support for his interpretation of the current Feinstein language in that way.

I wish also to say in response to the arguments of some of my colleagues that if the argument that is being made is this, that if you are an American citizen who is captured in this country committing an act of terrorism against our country and collaborating with al-Qaida, committing belligerent acts in this country, then you should be held under the law of war. If you are not, then we will have to give you Miranda rights. We will have to tell you you have the right to remain silent.

Let me remind you, in those situations, can you imagine if an American citizen had been one of the collaborators of 9/11, would we want to tell a member of someone who had committed an act like 9/11 against us--an act of war against this country--the first thing you hear is you have the right to be silent? Our goal is we have to be there to gather intelligence to see if there is another attack coming. Is it coming to the Pentagon, is it coming to the White House, is it coming to that second tower? Then we can protect American lives.

That is the difference between war and common crime. That is an important distinction that has been recognized long before--with all respect to my colleague from Kentucky--in World War II in In Re: Quirin. Our U.S. Supreme Court in World War II recognized this authority, the difference between the law of war. In that case an American citizen who collaborated with the Nazis was held under the law of war because our country was at war.

I would also wish to point out that this would only cover under the current law authorized by this Congress. It would not apply to someone who is holding ammunition or someone who is paying with cash. It only applies to a person who has planned, authorized, committed, or aided the terrorist attack that occurred on 9/11 or harbored those responsible for the attacks, or a person who has a part or substantially supported al-Qaida, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partner, including any person who has committed a belligerent act or directly supported such hostilities in aid of enemy forces against our country.

That is very different than some of the examples that were cited here. It is called being a member of al-Qaida, being involved in September 11, being a member of the Taliban and committing belligerent acts against this country. That is terrorism.

Let me point out what I think is the most absurd distinction of all. This is Anwar al-Awlaki. He is someone who is a U.S. citizen. He is someone who was an influential leader in al-Qaida in the Arabian Peninsula. He advocated for violent jihad. He was involved in a dozen terror investigations. He was alleged to be involved in killing Americans and collaborating to kill our allies. On September 30, 2011, it was reported that al-Awlaki was killed by the CIA in a drone strike in Yemen. Yet it is being interpreted, as we have heard by some of my colleagues represented here, if the Feinstein amendment were interpreted the way they have interpreted, if al-Awlaki made it to America to commit these terrorist acts, he gets his Miranda rights. He gets all his rights here. But yet if he is in Yemen to do these acts, to try to kill Americans and our allies, then we can use a drone attack to him. But if he makes it to America--which, by the way, the terrorists want to make it to America; 9/11 is Exhibit A of that--why do we want to be in a position to read them their Miranda rights, tell them you have the right to remain silent? Our priority there has to be protecting American lives. That is the distinction between the law of war and a common criminal in this country.

By the way, there are protections under the law. It is the right of habeas corpus where you do have a right to challenge your detention before the Federal court through appeals with counsel. That is certainly a protection that we have respected in this country for a long time.

Mr. President, I yield the floor.

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