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Mr. GRAHAM. Mr. President, I want to thank my colleague from New Hampshire who has been one of the strongest voices since the day she got here in the Senate to talk about the difference between fighting a war and fighting a crime. The Senator has been the attorney general of New Hampshire, and I have been a military lawyer for over 30 years. The legal systems to fight a war are different than the legal systems to solve a domestic crime.
Here is the problem: Do I believe Al Qaeda is at war with the United States and our values and our friends? Would they kill us all if they could? Yes.
Why did 3,000 Americans die on 9/11/2001? They couldn't kill 3 million of us. If they could, they would have. If you believe that, then the goal of our generation is to marginalize this movement, and when we capture one of them, we need to find out what they are up to.
Dying for their cause is not a deterrent. It is like first prize. So when you tell somebody who has joined Al Qaeda that you may die in the course of this attack, they say good. The goal is to prevent them from hitting us, and the best way to do that is through intelligence gathering.
When you capture someone who is determined by our military and intelligence community to be a member of Al Qaeda, then under the law of war--the authorization to use military force passed by Congress over a decade ago--you can hold that person under the law of war to gather intelligence.
Why is that the case? War is about winning the war. Enemy prisoners are valuable captured alive because they can provide information about what the enemy is up to.
When you charge someone with a crime, you cannot spend a long time with them without their lawyer trying figure out if they committed the crime because of the right against self-incrimination in our criminal justice system. The military legal system, and the law of war, is completely different when it comes to asking questions of an enemy prisoner about future military activity or what they know about past operations.
The most dangerous thing we could do as a nation is to treat a captured Al Qaeda terrorist as a common criminal, read them their Miranda rights, and put them in civilian court before we have a chance to gather intelligence. That is exactly what the Obama administration did here. To their credit, they captured al-Libi. Here is what breaks my heart the most: The special forces units that go into Libya, Somalia, and Pakistan risk their lives to capture these people alive, if possible, so we can gather intelligence.
It really does bother me that after completing this operation, which was very successful, we only had control of this enemy prisoner for about 10 or 11 days. I will never be convinced that in that short period of time we were able to gather the intelligence he possessed. He has been associated with Al Qaeda at the highest level for 20 years. He was a treasure trove of information.
This was a political decision by the Obama administration, not a legal decision based on the law of war. This is not what our military advises or our intelligence community advises. This is what the President chose to do because he does not want to use Guantanamo Bay.
Why was he placed on a ship? Because there is no prison available in the United States, other than a naval vessel, to hold someone as an enemy combatant under the law of war. Why? Because the President refuses to use Guantanamo Bay.
If we can close Guantanamo Bay and create a new prison to allow people to be held as enemy combatants, sign me up. But the idea of not having a jail available to the United States on land at a time of great stress, and during a very pivotal moment in the war on terror, is an ill-conceived and dangerous policy.
I applaud the Senator from New Hampshire for bringing up this issue.
Here is what we need to understand as Members of Congress: This policy cannot be sustained. When we capture high-value targets, such as a 20-year veteran of Al Qaeda, we are crazy as a nation not to use the law of war to gather intelligence.
I am not for torturing anyone. I have been a military lawyer for 31 years. I believe in the Geneva Conventions. I believe my country is special. I believe in the international regimes about how we interrogate prisoners we hold. I know what Al Qaeda does to their prisoners. I do not want to be like them. I want to be the United States. But the United States has a right, under the law of war, to gather intelligence.
The last thing a member of Al Qaeda should hear when they are captured is: You have a right to remain silent. Here is your lawyer.
I don't want them to remain silent. I want them, over time, to provide us with whatever intelligence is available.
Why was he moved off the ship? Apparently, he had a medical condition that could not be treated on the naval vessel. I believe in providing quality health care to prisoners of war simply because I want that standard to be available to our soldiers in future wars. The standard we set today will follow us into the next war and, unfortunately, there will be. But having to take him off the ship because he was sick is no excuse to stop his interrogation to gather intelligence. Putting him on the ship because we don't want to use Guantanamo Bay is an ill-conceived and ill-designed strategy that, if it is not changed or replaced, is going to come back to haunt this country.
This man possesses an enormous amount of intelligence potential. He is now in Federal court. He will be given a lawyer. Once he is charged with a crime, he should be given a lawyer. But before that, we have the right under the law of war to hold him to gather intelligence--treat him humanely but question him about what he knows about Al Qaeda, because they are still out there, lurking.
I will end with this. I wish to work with the Senator from New Hampshire and anybody on the other side who would like to try to find a detention and interrogation policy that is more rationally based. Guantanamo Bay, in its early years, did hurt the image of this country. Some of our interrogation techniques right after 9/11 hurt us as a nation.
Guantanamo Bay has been reformed. It is Geneva Convention compliant. The Detainee Treatment Act that I helped author with Senator Levin and Senator McCain is the gold standard of how we treat people under the law of war. I am proud of the system we have created over the last several years in a bipartisan manner, and I urge this administration to create a vehicle to interrogate under the law of war people such as al-Libi so we can be prepared for the next attack. The policy they have in place today is going to deny this country the ability to gather valuable intelligence.
When it comes to defeating Al Qaeda, the more we know about how they behave and what they are up to the safer we will be, because they will not be deterred by the threat of death. We cannot deter them; we have to stop them. We have to hit them before they hit us, and the best way to do that is to gather intelligence when we find someone such as al-Libi.
I am very disappointed that we have blown it when it comes to intelligence gathering with this high-value target. I am very sad to report to the military members and their families that the bravery they have demonstrated and shown just a few weeks ago has been undermined, in my view, by an irrational political decision that denies our country the ability to learn from a high-value target they risked their life to capture.
I don't know how to fix this in the current political environment, but I know as a military lawyer it needs to be fixed, and I know we are not elevating our country by diminishing our ability to use legal systems that have been around for hundreds of years at a time when we need them the most. So I look forward to working with the Senator from New Hampshire who has become one of the leading voices when it comes to detention and interrogation under the law of war.
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Mr. GRAHAM. Can the Senator from New Hampshire tell us a little bit about this individual called al-Libi? Why do we believe he would be such a treasure trove? What is his background? How long has he been involved in Al Qaeda? And what have we missed here? What opportunities have we lost by only holding him as an enemy combatant for less than 2 weeks?
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Mr. GRAHAM. Mr. President, if the Senator from New Hampshire will yield for one more inquiry. He was captured in Tripoli, Libya; is that right?
Ms. AYOTTE. Yes.
Mr. GRAHAM. We believe he was in Libya before the attack on our consulate in Benghazi, right?
Ms. AYOTTE. Right.
Mr. GRAHAM. We also know him to be one of the higher level Al Qaeda operatives roaming the planet. He was involved in bombing our Embassies in 1998 in Kenya and Tanzania; is that correct?
Ms. AYOTTE. That is right.
Mr. GRAHAM. What are the odds that he was in Tripoli before the Benghazi attack, had a record of bombing embassies in the 1990s, and had nothing to do with the consulate attack in Benghazi? The Senator from New Hampshire is a prosecutor. What does my colleague think the odds are of this guy not having any knowledge or involvement in killing our Ambassador in Benghazi and being involved in the attack on our consulate that was organized by Al Qaeda affiliates? And what have we learned, if anything, about his potential involvement in Benghazi? How can we learn everything this man has done in 11 or 12 days before we give him a lawyer? I would argue we can't.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. GRAHAM. I ask unanimous consent for 1 more minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. AYOTTE. I thank the Chair.
Mr. GRAHAM. Thank you. I would argue we can't possibly understand all he knows about Benghazi in the last 20 years of terrorism by holding him on a ship for less than 2 weeks. He should be held at Gitmo as long as it takes to find out what he knows and then he should be tried. Does the Senator from New Hampshire agree with that?
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