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Marketplace Fairness Act of 2013 --Motion to Proceed

Floor Speech

Location: Washington, DC


Mr. McCAIN. Mr. President, there has been a great deal of misunderstanding about the position the Senator from South Carolina, I, and others have taken on the detention and interrogation of the suspect in the Boston bombing. None of us is saying the suspect should be indefinitely detained as an enemy combatant by the U.S. military or tried in a military tribunal. The suspect is a U.S. citizen and must be treated accordingly, and he will be. What we are saying is that the importance of treating the suspect in accordance with his rights as an American citizen must be balanced with our government's top national security priority, which is the lawful, effective, and humane interrogation of this subject for the purposes of gathering intelligence.

The Boston attacks were clearly inspired by the violent ideology of transnational Islamist terrorism. We need to learn everything we can about what foreign terrorists or terrorist groups the suspect and his brother may have associated with, whether they were part of additional plots to attack our Nation, and what other relevant information the suspect may possess that could prevent future attacks against the United States or our interests.

We need to delve further into this whole issue of the education some people who are motivated by these base ideologies obtain over the Internet and the effect it is having. We should at least know about this.

Our civilian justice system offers a responsible option for striking this balance with American citizens. It allows the Justice Department to delay reading a suspect his Miranda rights if doing so is in the interest of ``public safety.'' The administration had rightly invoked this public safety exception in the case of the Boston suspect, which provided our national security professionals a discrete period of time to gather intelligence from the suspect without the presence of his lawyer.

However, soon after questioning him in this manner, the administration recently reversed itself and read the suspect his Miranda rights. In doing so, the administration gave up a valuable opportunity to lawfully and thoroughly question the suspect for purposes of gathering intelligence about potential future terrorist plots. Whether we will be able to acquire such information has now been left entirely at the discretion of the suspect and his lawyer. Put simply, the suspect has been told he has the right to remain silent. If he doesn't want to provide intelligence, he doesn't need to.

Is this a responsible balance between a citizen's rights and our national security? The suspect had only been responsive for a couple of days before he was read his Miranda rights. Even then, he could not communicate verbally. Does anyone really believe our national security professionals were able to acquire all of the relevant intelligence possessed by a subject who couldn't speak in only 2 days? This is not a responsible balance between civil liberties and national security.

From the very beginning of this debate, the Senator from South Carolina, the Senator from New Hampshire, I, and others have maintained that the administration should reserve its right to hold the suspect as an enemy combatant for the purpose of gathering intelligence. This was not the only option or even the ideal option. In light of the administration's decision not to continue questioning the suspect under the public safety exception, the only option we are left with is lawfully questioning the suspect as a potential enemy combatant.

The full extent of whether the suspect is linked to al-Qaida or its associated forces remains unclear. The brother's trip to Russia certainly should be the subject of an inquiry. Additional questioning is critical to making it clear.

Today there is ample evidence that would allow the administration to question the suspect for key intelligence. The consequence of not doing so is that our need to question the suspect for such intelligence is left solely at his discretion and willingness to cooperate. This is not a responsible approach to the national security of this country.

Again, this is not to say that we must hold the suspect indefinitely in military detention, nor that the suspect must be or should be tried in a military tribunal. In both cases, there is plenty of precedence for holding a terrorism suspect as an enemy combatant for a limited time before moving him into the criminal justice system for the purpose of standing trial in civil court. What is more, the Supreme Court has consistently upheld the legality and constitutionality of this approach, as well as the ability to hold American citizens as enemy combatants. Ultimately, the broader question is whether one views the United States as part of the battlefield in the global fight against terrorists. I know some don't. I, however, do not see how we can avoid this fact. Those who seek to attack us certainly view the homeland as part of the battlefield--indeed, the central part.

Of course, there will always be and should be differences in how we handle events in the United States and events overseas and differences in what rights are due to American citizens as opposed to foreign citizens. Yet we cannot afford to build a wall between the fight against terrorists abroad and the fight against terrorists who are trying to attack us here at home, including when American citizens are involved in this fight, as some clearly are, and will continue to be.

Just because some don't seem to want to grapple with the difficult, unprecedented legal issues this war presents does not mean they will cease to be real challenges. If we pretend the homeland, the United States of America, is not part of this battle, I believe it will only be a matter of time before we learn this lesson the hard way.

I say to many who are reporting on this issue, I hope it is clearly understood that we are not saying the suspect should be indefinitely detained as an enemy combatant by the U.S. military or tried in a military tribunal. The suspect is a U.S. citizen and must be treated accordingly, and he will be.

During the now-famous discussion of 13 hours on the floor of the Senate, there were certain comments made that I think are important to recall.

The battlefield coming to America or acknowledging that is an enormous mistake.

I am quoting from the debate that took place.

Alarm bells should go off when people tell you that the battlefield's in America.

I'm here to argue that we can't let America be a battlefield because we can't say that we're no longer going to have due process, that we're no longer going to have trial by jury, that we're no longer going to have presentment of charges in grand juries. It is impossible in a battlefield.

This is another quote:

[W]hen people say, oh, the battlefield's come to America and the battlefield's every--where the war is limitless in time and scope, be worried, because your rights will not exist if you call America a battlefield for all time.

The Chair understands as well as anyone that the people of Boston and the people of Massachusetts, of the Commonwealth of Massachusetts, would clearly take exception to a statement such as ``the battlefield coming to America or acknowledging that is an enormous mistake.'' The people of Boston are very well aware that the battle comes to the United States. There are many attempts for it to come to the United States. Tragically, it came to the United States of America in a most tragic and terrible way.

We need to have a larger debate here about the location of the battlefield. To somehow believe the ultimate target of these radical Islamic extremists and other extremist elements is not the United States of America is a gross misreading of what this fight against terrorism is all about.

Quoting from a Wall Street Journal editorial, as I have done in the past:

The Boston bombing also ought to chasten libertarians who keep insisting that the U.S. homeland is not part of the terror battlefield.

"It's different overseas than it will be here. It's different in the battlefield than it will be here,'' [one Member] told Fox News earlier this year. "Which gets precisely to the argument I have with some other Republicans who say, well, `the battlefield is everywhere. There is no limitation.' President Obama says this. Some members of my party say the battle has no geographic limitations and the laws of war apply. It's important to know that the law of war that they're talking about means no due process.''

Boylston Street looked like a boulevard on Monday, and so did Watertown on Thursday night. The artificial distinction [arises from undue] focus on geography. The vital distinction for public safety is between common criminals, who deserve due process protections, and enemy combatants at war with the U.S., wherever they are.

As for due process, the greatest danger to liberty would be to allow more such attacks that would inspire an even greater public backlash against Muslims or free speech or worse. The anti-terror types on the left and GOP Senators who agree that the U.S. isn't part of the battlefield are making the United States more vulnerable.

Americans erupted in understandable relief and gratitude on Friday with the rapid capture of the terrorist brothers. But we shouldn't forget that their attack succeeded, with horrific consequences for the dead, the wounded and their loved ones. The main goal now is to prevent the next attack.

How do we prevent the next attack? We find out as much information as possible as to what motivated this attack.

Mr. President, I ask unanimous consent that the Senator from South Carolina be included in the colloquy.


Mr. McCAIN. We wish to make sure our position is very clear. We are not saying the subject should be indefinitely detained by the U.S. military or tried in a military tribunal. The suspect is a U.S. citizen and must be treated accordingly, and he will be.

The tragic events we saw in Boston bring home again that this fight is far from over. I don't know if these young men were motivated by the information they received, whether it was overseas or whether it was due to the Internet and various influences there. What we do know is that while living in this country, they changed from apparently normal young people into terrorists who were willing to do anything to take the lives of their fellow American citizens.

The battlefield is the United States of America. Anyone who doesn't believe this ignores the events from which we are recovering.

I yield to the Senator from South Carolina, who has probably been more widely quoted than I have, and request that he clear up this exact situation we are calling for which, frankly, is being portrayed inaccurately in a great deal of the media.


Mr. McCAIN. Finally, again, if there were information of an imminent attack, such as the aircraft that crashed in Pennsylvania that might have been headed for the Capitol, we would take whatever measures necessary to prevent it from happening. To somehow say we would not use every capability in our arsenal to prevent that goes back again to this fundamental error, fundamental misconception about the nature of radical extremists where the battlefield clearly is the United States, and we should be most prepared.

And, by the way, if there is some good news that came out of Boston, it was that some of the measures that had been taken since 9/11 contributed significantly to our ability to track down and eliminate this threat far more rapidly than we would have prior to 9/11.

Mr. GRAHAM. Yes, if I may, hats off to the Boston, MA, police officers, to the Presiding Officer's town. Our heart breaks for the victims. Bostonians made us proud. They show us how to stay brave. The FBI and everybody did a great job, but how we missed this I still want to know.

The Senator from New Hampshire was the former attorney general of New Hampshire. She knows the difference between fighting a war and fighting a crime.

I have been a military lawyer, I have been a civilian lawyer, and I am all very much for the idea of due process being given to everyone charged with a crime, including this man. He deserves to be presumed innocent, to have a lawyer, and a jury to find him guilty or innocent. He deserves all that because it makes us better and safer. But what we should not give up as a Nation is the ability to find out about future attacks in a logical way. We are at war, and in the law of armed conflict, national security applies here, in my view, because of the type of incident involved and the threats we face.

I wish to hear from Senator Ayotte, who has become one of the most knowledgeable people on the topic. She has tried people in New Hampshire--death penalty cases--and if she doesn't mind, perhaps she can share with us her view of where the battlefield is, what kind of laws to apply to a situation such as this.


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