National Defense Authorization Act for Fiscal Year 2013 - Continued

Floor Speech

By:  Lindsey Graham
Date: Nov. 29, 2012
Location: Washington, DC


Mr. GRAHAM. Mr. President, long story short, the American people believe that the military prison in Guantanamo Bay, Cuba, isolated from the American population, that is being well run by our military and monitored by all kinds of organizations, is a satisfactory answer to the problem of terrorism. Simply stated, the American people do not want to close Guantanamo Bay, which is an isolated, military-controlled facility, to bring these crazy bastards who want to kill us all to the United States. Most Americans believe that the people at Guantanamo Bay are not some kind of burglar or bank robber. They are bent on our destruction. I stand with the American people, that we are under siege, we are under attack, and we are at war.

Some of my colleagues in this body have forgotten what 9/11 is all about. The people in that prison who attacked us on 9/11 want to destroy our way of life. They do not want to steal your car. They don't want to break into your house.

We have a military prison being well run, so I think the American people are telling everybody in this body: Have you lost your minds? We are at war; act like we are at war.

I yield.


Mr. GRAHAM. Mr. President, I appreciate the opportunity. This is a good debate. It is a fascinating discussion. I guess the way I look at this issue--and we will talk with Senator Levin in a bit--I have been a military lawyer for about 30 years, and the first thing you do in JAG school is have a discussion about the difference between the law of war and criminal law. Every military lawyer is taught from the very beginning of their career that law of war detention is designed to neutralize the enemy and to gather intelligence about the enemy.

There is a reason that when we capture somebody in a war we do not give them a trial by jury, and we do not give them a lawyer. We have 3,000 people in American military custody in Afghanistan who were captured on the battlefield, and they are held under the law of war because we do not want to let them go back to killing us. And they are not given a lawyer because we are not trying to solve a crime; we are trying to win a war.

Here is the question to my good friend from California: I do not want anyone to believe that under the law of war construct we have created over the last 7 or 8 years that you can be put in jail because you look like a Muslim, that you sound like a Muslim, that you have got a name Mohammad. What happened to Japanese-American citizens is they were put in military custody because we were all afraid and they looked like the enemy. That was not a high point in America.

What are we talking about here? We are talking about detaining people under the law of war who are suspected of joining al-Qaida or the Taliban and engaging in a belligerent act against the United States. I want to make the record clear that some of my colleagues on the Republican side have been trying to deny law of war detention to the Obama administration, and they have openly said this: If you allow this to happen, President Obama is going to put you in jail because of political dissent.

There are people on my side who are afraid of law of war detention being in Barack Obama's hands because they think,--they hate him so much they think he is going to use a provision to protect us against an al-Qaida attack to put them in jail because they disagree with his agenda.

It gets worse. I want you to know this. There has been a statement in our conference that habeas corpus review by an independent judiciary where the intelligence community, the military, would have to prove in court by a preponderance of the evidence that the person in question has, in fact, engaged in hostilities against the United States by helping the Taliban or al-Qaida--that is the requirement of the government--they have to prove that to the judge, that is not really a check on government power because the judge could be an Obama appointee.

As much as I disagree with President Obama, as much as I think he has been a divisive President, in many ways has failed to lead, I want to disassociate myself from the concept that you cannot give this Commander in Chief the powers that Commanders in Chief have enjoyed in other wars because we hate him so much.

To my friends who get on the Internet and talk radio and stoke this paranoia, we are afraid enough for good reason. This is a dangerous world. We are about to walk off the fiscal cliff. We have people out there trying to undermine our way of life. There is a lot to be afraid of: Al-Qaida coming back to our shores, recruiting American citizens to help their endeavors. I hate to say it, in every war we have ever been in, there have been occasions when Americans joined the enemy.

In World War II that happened. You had German saboteurs land on Long Island, aided and abetted by American citizens sympathetic to the Nazis. All of those American citizens in In Re: Quirin were held in military custody and tried by the military because we have long understood that when you join the enemy, that is not a crime but an act of war.

We have very bad people who get a right to a jury trial. I will be the first one to say that when you go to court, no matter if you are the worst terrorist in the world, you will get a jury trial, you will get a lawyer, and you will have your due process rights. But the difference I am trying to inform the body of when you are fighting a war is the goal is not to prosecute people, the goal is to win. And how do you win a war? You kill them; you capture them; you interrogate them to find out what they are up to next. So I am here to say to my colleagues that the al-Qaida-Taliban efforts to do harm to our Nation are alive and growing. The narrative that al-Qaida has been decimated is a false narrative. What happened in Libya, unfortunately, is going to happen again.

I know my good friend from California, who is the chairman of the Intelligence Committee, knows there are active efforts in our own backyard--and Joe Lieberman can tell you, too--to recruit American citizens to attack us--not to commit a crime, to join the enemy.

All I am suggesting is that Barack Obama and every Commander in Chief in the future needs to have the tools available to protect us against an enemy. And the basic question is: Is fighting al-Qaida fighting a crime or fighting a war? I believe with all of my heart and soul that they do not want our property, they do not want our cars, they do not want our bank accounts, they want to destroy us. They hate what we stand for. Just as in World War II, when you decided to help the Nazis, you were held in military custody because you did something other than commit a crime.

The goal here is if you capture an American citizen who has sided with the enemy that we preserve the ability of our military intelligence community to find out what they know about future attacks and present attacks. The goal of a criminal prosecution is to find justice under a criminal statute. The goal in time of war is to win.

I do not believe in torturing people to get good information, but I do believe in interrogating them for military purposes if they have sided with the enemy.

This is a great debate. But the one thing I do not want to associate myself with is as much as I may disagree with this President's agenda, there are people on my side of the aisle who are stirring up their fellow Americans, making them afraid that Barack Obama could use legitimate powers in a time of war to gather intelligence against people who sided with the enemy to come after them because they look different or they may have a different political belief. I want to disassociate myself with those on my side of the aisle who say that habeas corpus, an independent judiciary, is not an adequate check because Barack Obama may have appointed the judge. That undermines our judiciary. That creates paranoia. That creates a fundamental distrust of what I think is something we should be all proud of: America.

This war will last probably longer than most of us. It is an ideological struggle. There is no capital to conquer, like Berlin and Japan. There is no air force to shoot down. There is no navy to sink. It is about an ideology that must be contained and fought, an ideology, unfortunately, that will be attractive to some Americans as it was in other wars.

Unfortunately, as I speak today, the enemy is trying to come back to our shores and use some American citizens to further their cause. To an American citizen: Do not join al-Qaida or the Taliban. Do not turn on your country. Do not side with their view of humanity. If you do, you have not committed a crime, you have engaged in an act of war against the rest of us and we have a right to win this war. We have a right to hold you under the law of armed conflict as we have held others in the past, to find out why you joined, what you know, and what they are up to next. There is no American citizen in law of war custody. This President has not rounded up one person and put them in jail using the statute that exists today because they disagreed with him. I do not believe he will. All I am asking is that we have options available in this war that have existed in every war America has fought. Because here is my bottom-line belief, that as much as the Nazis represented a threat to humanity, al-Qaida represents an equal threat to humanity. And nobody in World War II would have entertained the idea that if you sided with the Nazis and you helped the saboteurs blow up parts of America, you should be considered anything other than an enemy who has joined the other side.

So unlike criminal law, where you are trying to find justice for victims, this is about winning a war and marginalizing the enemy. And when the enemy is able to turn one of our own, the last thing in the world we should do is deny ourselves the ability to interrogate that person in a way to help us win the war and keep us safe. That has been the law forever when it comes to war. That is the law today, that will be the law tomorrow.

I look forward to talking to Senator Levin, who has been a 100-percent voice of reason, to talk about authorization to use force and the ability to detain.

I will end with this thought: If you deny the ability to gather intelligence and detain, you do not want to put our troops in a position where they have to kill everybody they find. We want to capture the enemy when we can. Because when you capture the enemy, not only do you hurt the enemy, you find out a lot about what they are up to. Here is the question: If an American citizen is engaging in helping al-Qaida and the Taliban in a terrorist activity on our shores, are they the enemy? Yes, they are. We need to know about why they did what they did and what they are going to do next.

With that, I will yield.


Mr. GRAHAM. Mr. President, I would like to inform the body that I think Senator Levin's understanding and reasoning is incredibly sound. We have actually been talking about this for a couple of days. And in light of the Hamdi decision and just plain old common sense, I will support the Feinstein amendment.

I will be the first to say that if we are attacked by the Iranians tomorrow or some other group, we have an authorization to use force. Senator Levin and I will be the first to say in that authorization that it will provide that if an American citizen joins the Iranians in a war against America, they can be detained under the law of war.

Now, you can vote however you like. I know how I will vote. But this has already gone up to the Supreme Court. And if I can build on what Senator Levin said as to the logic of the Court and I think the logic of our position, let's get us back to the United States. I don't think anybody in their right mind would say the United States is not part of the battlefield in the war on terror. I would suggest that of all the places the enemy wants to hit us, they want to hit us here at home the most. Their goal is to kill us here. They will kill us in Libya, they will kill us in Afghanistan, they will attack our consulates, they will kill our soldiers, they will blow up our embassies, they will hit us all over the world, but don't be misled--they want to hit us here. Remember 9/11? I do. I am sure you all do.

You know what. The only reason we haven't had another 9/11 is we have been fighting these bastards over there, where we have been getting good intelligence. It took a couple of years before any of the people held at Guantanamo Bay told us what was going on, but we found out about bin Laden--and not because we tortured people but because we put the intelligence puzzle together over time by holding people under the law of war and gathering good intelligence. That is how we got bin Laden. So bin Laden is dead, but the war is not over. I wish it were.

Now, the homeland. If there is a planned attack on a Navy vessel or a military installation, I think the point Senator Levin was making is that we have already authorized the use of force to protect the country against the Taliban and al-Qaida; is that right?

Mr. LEVIN. That is my opinion, and that is the fundamental core ruling in the Hamdi case. Now, we have to be accurate. Hamdi applied circumstances to citizens that were captured in Afghanistan, but the reason they use led them to conclude there was an explicit--explicit--authorization to detain those citizens even though they are American citizens. Their argument was that capture and detention was inherent, in their words--so fundamental--to capture and detain as such is an accepted incident to war as to be an exercise of the necessary and appropriate force which Congress authorized the President to use.

So in my analogy, if a boatload full of al-Qaida, including an American citizen, comes to a Navy base and attacks that base and is captured by those sailors, that is surely an incident of war, and I believe the capture and detention of those al-Qaida terrorists would be the exercise of necessary and appropriate force which we authorized the President to use in the authorization for military force.

Mr. GRAHAM. I want to build on that just to make sure we understand about a potential attack on a Navy base here at home. No one is suggesting the military could not use force against an al-Qaida attack here at home. The Hamdi case was an American citizen captured in Afghanistan. I hope we are not trying to create a picture that somehow America is a place where our own military cannot fire a shot in defense of their ships or our country.

Let's say we have some ships up there in Virginia and we have a boatload of al-Qaida types trying to ram the ship. Does the Senator agree with me that our military can use force to defend us here at home against al-Qaida?

Mr. LEVIN. That is correct.

Mr. GRAHAM. So if our military is authorized to use force, they do not have to call the FBI or the Virginia State Police to shoot. They can shoot against an enemy themselves coming at them in America.

Mr. LEVIN. Coming into America and attacking us on a Navy base or----

Mr. GRAHAM. Right. Because we are not fighting a crime. We don't have to disarm our military and call the local cops and say: Would you please shoot these people before they get here? No. Our guys are going to shoot you. If you are an American citizen asked to get in a boat and asked to attack a military ship or installation in the United States, we are going to shoot you, and if we wound you, we are going to capture you. And here is what we are going to do to you as an incident of using force. The Supreme Court has said that when you authorize the use of force, it makes no sense to give that authorization if you don't have the power to detain because the worst thing you can do to the American military is to make them kill everybody and capture no one or let the other guys go. So kill-them-all is not good policy, and it is a bad spot to put your military in. And the option shouldn't be to kill them all or let them all go; the option should be to kill where you have to and, if you can, capture. Does the Senator agree with that?

Mr. LEVIN. I do.

Mr. GRAHAM. And our military can fire the shots because of the use of force to defend the homeland and to defend themselves here at home. And the Supreme Court says that once you authorize the ability to use force, it just follows, as night follows day, that detention is part of the ability to use force because, ladies and gentlemen, if it is not, you have turned our military into murderers because you are not supposed to shoot somebody and leave them wounded in the water, and you shouldn't watch them swim away. You capture them and interrogate them under the law of war. Isn't that what Hamdi is about and the point they are trying to make?

Mr. LEVIN. It is. As part of that point, it cites the Quirin case, which says:

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.

And here are the key words:

Citizens who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention.

Mr. GRAHAM. I will read another quote from Hamdi.

There is no bar to this Nation's holding one of its own citizens as an enemy combatant.

Hamdi's detention could last for the rest of his life because the law of war detention can last for the duration of the relevant conflict.

Here is what we are trying to do. We are trying to create a system consistent with the Hamdi decision, and quite frankly, ladies and gentlemen, what I am trying to avoid is the criminal paradigm because I know the difference between criminal law and law of war. Under the law of war, you can detain somebody for interrogation to find out what the enemy is up to if you believe that person to be part of the enemy.

And let me tell my friends, I do not want to take our criminal justice system and bastardize it. During the Bush years when we had the military commission rollout, they had a provision that in a military commission trial, the military jury could be given classified information but not share it with the defendant. I said: No. If a trial means anything, it means the right to confront those witnesses against you. I jealously guard that. The worst al-Qaida member in the world, when they go on trial in military commissions, will have a lawyer, a right to appeal to our Supreme Court, and will be able to confront every witness against them. An American citizen who joins al-Qaida or the Taliban will be tried in Federal court because we took military commissions off the table. That is the trial.

Here is the main point: If you are allowing our military to use force to protect themselves, as Hamdi says, it naturally follows that with the use of force comes the lawful detention. And that is why I will be voting for Feinstein. I think that is where most Americans are. If there is any confusion, we can talk about this in conference.

But, Senator Levin, I want to thank you for--since 2006--working with me and against me. You know, our dispute about what would be an active substitute for habeas went to the Supreme Court, and you won 5 to 4. Damn those Justices, but that is the way it goes. And you know what. There were some Republicans and Democrats who disagreed with me and you both. But I respect an independent judiciary, and I know Justice Roberts kind of got some people mad at him because of the ObamaCare decision, but that is the way it goes. That is the way these old judges are. I just really appreciate an independent judiciary.

I just want to say that after that decision in 2006 or 2007, how much of a pleasure it has been to work with you and others to try to find a way to achieve a balance in a war that is hard to understand. There is no capital to conquer, no airplanes to shoot down in terms of their jet fighters, there is no navy to sink, but they use boats to attack us and they use private planes to kill us. At the end of the day, we are at war. The outcome does matter, and I want to win this war. I know everybody in this body wants to win this war. But I want to live within our values.

So I will work with Senator Levin and Senator McCain and say that even though we are fighting the worst people on the planet, count me out when it comes to waterboarding. I remember when people on my side would say--and I understand them very well--why do you care about what we do to these people? They will cut our heads off.

Because we are Americans. It is not necessary to go down that road to win the war. And quite frankly, ladies and gentlemen, the opposite is true. You can't win this war if you don't realize you are in a war. We are not fighting common crime, we are fighting a vicious enemy. And we can do it within our values. We can do it within due process consistent with the law of war and, when we get in that criminal arena, consistent with criminal law.

As much as I disagree with this President, I will not deny him the ability that every Commander in Chief has had for decades as an option, if he chooses to use it. And if you want to go down the criminal road, we can, but we need the option. As much as I dislike President Obama, I am not going to use as a reason to change the law of war that Barack Obama may put some people in jail who disagree with him, and I am not going to buy into some of the rhetoric coming out of our side that a habeas corpus independent judiciary view means nothing if Obama appointed the judge. We are better than that.

I stand ready to vote for Feinstein, I stand ready to work with my colleagues to continue to find a way to fight and win a war within our values, the outcome of which will matter not only to us but those who follow.

God bless every person on the front line who is risking their life at home and abroad. And here is what you have as a promise between Senator Levin and myself and many others: We are going to give you the tools to keep us safe and to keep your comrades safe. We are not going to do things in this war that made no sense in other wars. You need our help, you need our prayers, and you need the tools to fight and win this war, and we will give you those tools.

I yield the floor.


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