Kelly Ayotte

Ms. AYOTTE

Ms. AYOTTE. Madam President, I rise in opposition to the amendment offered by the Senator from Colorado to strike the detainee provisions from the defense authorization markup--provisions that were agreed upon on an overwhelming bipartisan basis in the Armed Services Committee. I would like to start first by revisiting the history of this and where we are because the reason the Armed Services Committee, in the first place, thought it was very important we discuss this issue in committee and address it is that having participated in hearings over the course of months and months in the Armed Services Committee, there has been witness after witness from our Defense Department who has come in and our military leaders with whom we have been talking about the detention policy and asking them very important questions about where we are and how we are going to ensure that our military and intelligence community has the tools they need to protect America, and also asking them about this issue of detainees and how we are treating them. Because one of the important facts my esteemed colleague from Georgia, as well as the ranking member, Senator McCain, mentioned, is that we have a recidivism rate of 27 percent from Guantanamo--those who have reengaged our soldiers again and are back in theater. I was very concerned about this in the Armed Services Committee. That caused, over a series of months, us to ask about the administration's detainee policy. I just want to share some of the comments that were made over that period of time in February. Secretary Michael Vickers said the administration is in the final stages of revising or establishing its detention policy. Now, that was 8 months ago, and we are now 10 years into this war. In April I questioned GEN Carter Ham, the Commander of Africa Command, about what we would do if we captured a member of al-Qaida in Africa. Do you know what he told me. He said, ``We would need some lawyerly help on answering that one.'' So this is an area that cried out for clarification on a bipartisan basis because it is so important to ensure that while we remain at war with terrorists that we have the right policies in place to protect Americans. That is why the Armed Services Committee worked very hard. I thank the chairman of the committee, Chairman Levin, for his diligent work, along with other members of the committee for coming forward with this provision--that the Senator from Colorado is seeking to strike--as well as the ranking member, Senator McCain. What ended up happening is, we brought forward a compromise that passed overwhelmingly out of committee originally in June. In fact, it passed out 25 to 1, and then the administration raised some concerns about it. In reaction to those concerns, I know the chairman of the Armed Services Committee, as well as the ranking member and some others of us, including myself, sat down with members of the administration to hear out their concerns and to try to accommodate their concerns while still making sure we had a policy that would give proper guidance, would protect Americans, and would fundamentally deal with this issue of making sure, in the first instance, that we reaffirmed our authority that we are at war with al-Qaida post 9/11; second, reaffirming that when we are at war the presumption is military custody because the priority has to be gathering intelligence to protect our country; and then, third, those who are released from Guantanamo, making sure there is a standard in place so they cannot reengage back into the battle to harm our troops, our partners, and our allies. In that process, that is how this provision was derived that Senator Udall from Colorado seeks to strike with his amendment. If we were to eliminate these provisions, we would be putting our country in a position where these important issues are not being addressed, and they need to be addressed just based on what we have heard from our military leadership over many months in the Armed Services Committee. So I would also echo what Senator Chambliss, who is the vice chairman of the Intelligence Committee, said. This is an issue that has been thoroughly discussed in this body and cries out for passage in the Defense Authorization Act. I want to point out a couple of very important parts to this. Now, I am someone who, on the recent appropriations bill, the CJS appropriations bill, brought an amendment that would have provided for military commissions trials for members of al-Qaida and associated forces who have committed an attack against us or our coalition partners because I am deeply concerned that this administration has been treating these types of cases as common criminal cases. When I brought that amendment forward, it did not pass this body. I feel very strongly that the policy should be that we treat these cases for what they are, military cases, because we remain at war and our priorities should be to gather intelligence. But I point out the fact that after my amendment lost, I sat down with the chairman of the Armed Services Committee, the ranking member, and the administration to hear out their concerns. So while this amendment--I would have gone further in my amendment-- addresses many of the objections that were raised--in fact, I think all of the objections which were raised to the amendment I brought to the floor from the other side; that is, we have given the administration flexibility to make the decision on whether they believe it is appropriate, based on national security concerns, which has to be the primary concern and consideration of how to treat those who have committed an attack on our country who are members of al-Qaida or associated forces, and also who are not members of this country, so who are foreign citizens and are seeking to attack our country or have attacked our country in a way that the administration can decide it is best to handle them in a civilian court or a military system. So all of the objections that were raised to my amendment--I stand by my amendment--but they are addressed in this compromise. And to hear the objection to it, that there is not flexibility, it is very clear that is just not true when you look at the language in this amendment because we adjusted the amendment to address the administration's concerns to say no interrogation will be interrupted based upon this amendment; that interrogations have to be the priority, and we are giving the administration maximum flexibility under this amendment. So I do not understand why there are such objections continuing when this is as a result of a very good, strong good-faith effort to address any operational concerns that were raised based on the amendment I brought and even based on the prior language which, in my view, I think was very sufficient. I want to point out something that is very important. In the course of the discussions we had with the administration on section 1031, which we have heard cited as a section that could be used to detain Americans indefinitely, this section was changed based on feedback from the administration. In fact, the administration asked us to actually strike a provision in it that would have said American citizens--it did not apply to American citizens, and, in fact, had to comply with the Constitution of the United States. So I am a little bit apoplectic to understand why the administration is raising an objection about something they actually asked to be removed on a section they told us they were satisfied with and based on revisions that we made that they wanted. We said we would be happy to make these accommodations because we wanted to make sure we got this right. So on that section, I do not understand why we are in a position where the Senator from Colorado is trying to remove it--the administration is objecting to it--when we took the language they gave us and incorporated it directly into the National Defense Authorization Act. One point I think is being lost: So why is it that this amendment creates an initial presumption for military custody? This is the most important point. The priority has to be in protecting American citizens by gaining available intelligence to protect our country. The esteemed Senator from Illinois cited the case of the so-called Christmas Day or Underwear Bomber as an example of how cases have worked well. Well, I think it is important to appreciate the facts of that case. This is a situation where the underwear bomber is caught with the explosives strapped to him, where there are hundreds of witnesses on the plane, and they were able to make their case in the absence of any interrogation or confession. What ended up happening is he was questioned at the scene for about 50 minutes? Then he was read his Miranda rights, one of those being: You have the right to remain silent. Let's think about that for a second. We would want to tell terrorists: You have you have the right to remain silent. Common sense will tell you telling a terrorist they have the right to remain silent is counter to what we need to do to protect Americans. We do not want them to remain silent, we want them to tell us everything they know. But continuing on with that case, the only reason he reengaged in providing information for our country is because his parents intervened. Weeks later, his parents convinced him he should cooperate with us; that he should provide information and tell us what he knew. If our interrogation policy for people who commit attacks on our country is going to be, well, we hope a parent comes and intervenes to help us get information that will protect Americans, I think we are in trouble if that is our intelligence-gathering procedure. So I wanted to point out, since that case is cited as an example by the Senator from Colorado and the Senator from Illinois as to why this section should be struck, if anything, I think that case points out why we need guidance in this area and why it is very important the priority be on gathering intelligence. That is what this amendment does. It gives the administration sufficient flexibility, based on concerns they raised, operational concerns. If the FBI is conducting an interrogation, they do not have to stop it because of anything in this provision. That is very clear. If the administration wants to treat someone in a civilian court, even though I do not think they should versus a military commission who is a member of al-Qaida who has attacked our country, that waiver is in here. That flexibility is in here. This was a reasonable compromise where people like me who would have gone a lot further did not get what we wanted. But what we did do is get a very strong bipartisan compromise that came out of this committee overwhelmingly. When we had a vote at the beginning of the week, and the Senator from Colorado raised the very same amendment to strike this provision, it was rejected overwhelmingly on a bipartisan basis. So I hope this Chamber will also overwhelmingly reject striking this very important provision from the National Defense Authorization Act. Again, we cannot be in a position where we spend the next year in the Armed Services Committee again hearing from our military leaders: The administration is still in the final stages of revising or establishing its detention policy. I certainly do not want to hear again from one of our generals, when I ask him about our detention policy and what we are going to do with terrorists: I would need some lawyerly help in answering that one. This amendment gives us the guidance we need. I would ask my colleagues to reject striking it from the authorization. I yield the floor.

Ms. AYOTTE. I thank the Senator.

Ms. AYOTTE. This is not going to be a diminishment for States. This is just going to be a right-sizing of the fleet. What I am concerned about is if we don't pass amendments such as this, where the administration has asked for it, where all of the data supports that we don't need to keep the level at 316, and where we can save $1.2 billion by doing it, how can we then ask our military to make significant reductions if we don't allow them to take such commonsense action such as this?

Ms. AYOTTE. Yes. Actually, this amendment I am bringing forward is consistent with the administration's budget request they submitted for the Congress's consideration. So this is a situation where, after a careful hearing we had before a subcommittee of the Armed Services Committee, and after the administration had submitted its request, and after the Air Force asked for this, it makes complete sense that we would allow them to reduce this strategic airlift capacity.

Ms. AYOTTE. I will yield to the Senator.

Ms. AYOTTE

Ms. AYOTTE. Madam President, I rise today in support of S.J. Res. 6, the FCC Internet and broadband resolution of disapproval. There are so many reasons to support this resolution and oppose the FCC's rulemaking on net neutrality. I could focus on regulatory overreach, the lack of cost-benefit analysis to justify this rulemaking, consistent court rulings showing the lack of FCC legal authority to implement net neutrality or even the aggressive nature of this administration to regulate at all costs. However, today I would like to talk about the most important reason to support this Resolution in opposition of net neutrality--jobs. Last year, the telecommunications industry invested over $65 billion in our domestic economy. These billions of dollars go toward infrastructure, network expansion, and continual upgrades, all of which will drive job creation in a growth sector. For every billion dollars invested, there is a direct correlation to 3,400 created jobs. What is at stake in this debate is nothing more than the government trying to take over the Internet in a misguided attempt to regulate a dynamic industry into a static platform. This approach will stifle innovation. If companies are devoting $65 billion a year to building out their networks, but do not have the ability to control and manage their investments, then they are going to stop investing tens of billions of dollars into their product. It really is that simple. No company is going to continue to invest at such a fast rate if they will be forced to cede partial control over to government regulators. In a down-economy, telecommunications has been one of the few bright spots. Why? Because of a light-touch, hands-off regulatory approach. Now the FCC is pursuing a political agenda by attempting to undermine the industry. The FCC has not won in the courts or through the legislative process in Congress, so it has resorted to expanding the regulatory process. According to a 2010 study entitled ``The Economic Impact of Broadband Investment,'' 434,000 jobs have been created in the broadband industry in the past decade, and in the next 5 years, we can expect over 500,000 additional jobs to be created. To help protect these jobs, we must stop this government over-reach. IT investment accounts for 47 percent of all U.S. nonstructural investment and as I mentioned, the job creation from this is a bright spot in our economy. We must continue the hands-off approach that results in job creation and allows our companies--big, small and everything in between--to do what they do best: innovate, invest in the future, and create jobs. We need to support policies that encourage investment in tomorrow's technologies, not hamper innovation. According to the FCC's own National Broadband Plan, in 2003 only 15 percent of Americans had access to broadband. Today that number is 96 percent, and we cannot stop until we have 100 percent market-saturation. Parts of northern New Hampshire are included in this remaining 4 percent, so to get the rest of my state, and our great country, access to broadband, we must have policies that encourage private-sector investment and growth. We have heard it said many times, but it is worth repeating: net neutrality is a solution in search of a problem that does not exist. There is no market failure and no justifiable reason to impose such onerous regulations. Quite the contrary--competition is at an all-time high in the telecommunications and broadband industry. Since the Internet was privatized in 1994, there has been a steady movement away from government control and roadblocks. As FCC Commissioner Robert McDowell pointed out in his December 2010 dissent to the FCC's rulemaking on net neutrality, there are fewer than a handful of cases of alleged misconduct by an Internet service provider, and each of those cases was resolved by the courts in favor of the consumer. So as you can see, the consumer is well-protected by the existing system and does not need the heavy-hand of the government inserting itself with more regulations. The White House this week issued a veto threat for this resolution. However, in doing so it made our point for us. The White House says it would be ``ill-advised to threaten the very foundation of innovation in the Internet economy'' but then says we need to keep the Internet ``free and open.'' Well I have news for the White House--the Internet is free and open. I sent a letter, along with 10 of my Senate Commerce Committee Republicans to FCC Chairman Julius Genachowki a couple of months ago asking him to provide a market justification and cost/ benefit analysis for imposing net neutrality regulations. In his response, he could not cite any examples of market failure to justify such a rash rulemaking. Why? Because no rationale exists. There is no market failure. I fear that if net neutrality were to become law, we would be taking an irreversible step backwards at a time when our economy needs it least. I urge my colleagues to support this resolution and say no to government attempting to take over the Internet.

Ms. AYOTTE

Ms. AYOTTE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Ms. AYOTTE. Mr. President, I rise to discuss S.J. Res. 27, a resolution of disapproval of the cross-State air pollution rule. I appreciate my friend, the Senator from Kentucky, for bringing his concerns forward through this resolution. However, this is an issue I have been extensively involved in as New Hampshire's former attorney general, and I believe this resolution is misguided. This issue requires a balanced approach, and when looking at environmental regulations, we must review each on a case-by-case basis. In that vein, I cannot support this resolution. The cross-State air pollution rule is designed to control emissions of air pollution that cause air quality problems in downwind States-- and New Hampshire is a downwind State--and is estimated to reduce powerplant sulfur dioxide emissions by 73 percent and emissions from nitrogen oxides by 54 percent from 2005 levels. It is important to note that similar pollution standards have been in place for 6 years--first implemented by the Bush administration in 2005--and many utilities have already taken steps to comply with the rule. The rule encourages the use of the best technology available so downwind States such as New Hampshire will be able to achieve national clean air standards. Without this rule in place, New Hampshire will be unable to achieve national clean air standards due to air pollution that is outside the State's regulatory control and comes from other States. In New Hampshire, we have a long, bipartisan tradition of working to advance commonsense, balanced environmental protections. That is the perspective from which I approach this resolution. From my time as the State's attorney general, I understand well that New Hampshire is one of several downwind States in what is infamously known as ``America's tailpipe.'' For far too long, air pollution generated by Midwestern coal-fired powerplants has been allowed to flow into the jetstream unabated and to settle in New England, leading to diminished air quality in my home State of New Hampshire. As attorney general, I worked to protect Granite State residents and our environment from air pollutants generated by Midwest coal-fired powerplants. The reality is that air pollution does not stop at State borders, and New Hampshire should not be the tailpipe for pollutants from out-of-State powerplants. It is a matter of common sense to ensure that one State's emissions of pollutants do not unduly harm another State's air quality. I urge my colleagues to oppose the resolution of disapproval.

Ms. AYOTTE. Mr. President, I ask unanimous consent to speak as if in morning business.

Ms. AYOTTE

Ms. AYOTTE. Mr. President, I rise to discuss my amendment, No. 753. This amendment would prohibit the use of funds for fiscal year 2012 for the prosecution of enemy combatants in article III courts. Specifically, it applies to members of al-Qaida or affiliated entities who are also participants in the course of planning or carrying out attacks against the United States. I heard yesterday many of my colleagues from the other side of the aisle, for whom I have great respect, come to the floor to oppose my amendment. I would like to address the issues they have raised and start with this. I think their arguments miss the point. We are at war with these terrorist enemy combatants, members of al-Qaida who are planning or who have planned attacks against the United States of America. In what other conflict has the default or preferred position been to try these individuals in the civilian court systems of the United States? The primary focus when we capture an enemy combatant needs to be on gathering intelligence to protect the people of this country and our allies. I have great respect for our civilian court system. I have tried many cases. I have both defended criminals in that system, and I have prosecuted criminals in that system. Our civilian court system was not set up to gather intelligence. It was set up to have a fair prosecution of individuals who commit crimes in our country. When people rob a liquor store, the police arrest them, they question them, but the primary purpose is to find out who is accountable for the crime and then within that system to hold them accountable. The primary purpose of that system is not to gather intelligence and to make sure, within that system, we gather as much intelligence as possible of every single connection that individual has, to ensure we are preventing future attacks on our country. That has to be our primary purpose when we are trying to protect the American people. Those who want to--and this administration wants to--use the civilian court system as the default system, they are undermining, in my view, our ability to obtain valuable intelligence because intelligence does not just come, often, with the brief interview that may happen in a criminal case, sometimes it takes months to gather the type of intelligence we need to protect Americans. That is why, under the law of war, we allow people to be held in military custody, so we can protect the American people. But also in time, as we develop information, we can go back to those individuals 6 months later and say we just learned from another individual your connection with al-Qaida, your connection with an attack on the United States of America, and gather further information to protect our country. Our civilian court system is not set up to do that because, under this administration, when we treat an enemy of our country, an enemy combatant, under the civilian court system, they are entitled to certain rights, such as the Miranda rights guaranteed under the fifth amendment of our Constitution. They are, of course, told: You have the right to remain silent; you have a right to have a lawyer. These are rights they would not be read if they were taken into military custody, where they are not required to be read. That is a fundamental difference that is very important for the American people to think about. When we capture a terrorist, we need to know what else they were planning and what they might attempt to do to our country or our allies. If we capture them and make the decision to treat them in our civilian court system, once we hold them in custody for a certain period in our civilian court system, under our fifth amendment to the Constitution, we have to tell them they have the right to remain silent. Here we are telling terrorists they have the right to remain silent. It does not fit to have a system where we are treating terrorists that way. It undermines our ability to gather information that will protect our country. I have heard many of my colleagues, including the distinguished Senator from California yesterday, argue that military commissions are not effective in holding terrorists accountable. I have heard cited time and time again the number of convictions in article III courts compared to the number of convictions in military commissions. This is an argument that, in my view, is very misleading because one of the first steps this administration took when the President came into office was to suspend military commissions. To criticize the low number of military commission convictions when the President suspended military commissions for over two years strikes me as disingenuous--if I were making that argument in law school, I think I would have flunked my classes. The reality is, to say our military commissions are not sufficient is actually very unfair to the military commission system. I find it astounding that somehow that would be cited as a reason not to treat enemy combatants, who are enemies of our country in the first instance, in military custody so we can gather the maximum amount of information from them, and that may take a period of time to do so, a period of time that is not built into our civilian court system because they are also guaranteed rights such as speedy presentment. That does not fit when we need periods of time to gather information to protect our country. The distinguished Senator from California also raised the case of Mr. Moussaoui. Our court system is, rightly so, an open system for people to see. In that system, I would give defense counsel all the information I had about a case so they could adequately defend their client. When we are dealing with a case involving the prosecution of enemy combatants, much of the information is very sensitive. It can be sensitive to our national security if it is released. It could be sensitive if the individual being prosecuted gets that information to other people. We saw that, for example, in the Moussaoui case, when he was prosecuted in an article III court where sensitive material was inadvertently leaked. We also, of course, saw in that case victims of 9/11 having to subject themselves to being mocked by him in our open court system. Finally, I was astonished yesterday when I heard the argument from the esteemed Senator from California that if someone commits a terrorist act on our soil, they should be exclusively tried in article III courts. She cited Mr. Brennan, who is one of the President's National Security Advisers, in saying we should be using article III courts as an exclusive way to treat individuals who have actually come to our soil to attack our country. To me, that does not make sense. If a person is a terrorist, a member of al-Qaida, who actually has planned an attack on our country and actually comes to our country to attack us, they are going to be given greater rights because they will be given their Miranda rights, told they have the right to remain silent, they will be automatically treated in our civilian court system and we will have to give them speedy presentment and many of the rights that, rightly so, are included in our article III court system. So what are we saying to terrorists? We are actually going to give them greater rights if they come and attack us here. In my view, unfortunately, it sends the wrong message. I think it is welcoming people to the United States of America, when the message should be, clearly, we are at war with them, we are going to treat them in our military system because they are an enemy of our country, and we are going to make sure we gather the most information from them and their colleagues to protect Americans and our allies from future attacks. We need look no further than the case of Osama bin Laden for the proof that the process of obtaining information from terrorists is frequently long and difficult, but I shudder to think what would have happen if the detainees from whom we gleaned information that led us to bin Laden were instead read their Miranda rights, remained silent, we brought them here, we had to give them speedy presentment rights. I do not think it is a stretch to say bin Laden might still be at large. We have to put the priority on protecting Americans by gathering information. We are at war. We have a fundamental duty to protect the American people from the threat of future terrorist attacks. To me, that is the all-consuming priority, more important than extending constitutional rights to foreign terrorists--not American citizens--who are at war with us. I urge my colleagues to oppose civilian trials for this category of the most dangerous individuals with whom we are at war. Finally, I wish to address one point which was actually quite surprising to me yesterday as well. The distinguished senior Senator from California said these individuals should not be treated as enemy combatants in military commissions is because, she said, it will reduce our allies' willingness to extradite terror suspects to the United States for interrogation or prosecution or even provide evidence about suspected terrorists if they will be shipped off to military commissions in all cases. And she cited that, saying: Our allies are very reluctant to give us evidence in a process where they don't feel the rule of law is present. Well, first of all, military commissions are historically part of our system. They are consistent with the Geneva Convention and the rule of law. Secondly, the notion that we would allow our allies to dictate where we would try enemies of our country just seems absurd in terms of what policy we are going to take as the United States of America. It doesn't make sense to me. Here we have a situation where this administration is taking out--and I agree with them on this, and I commend them for this--terrorists around the world, members of al- Qaida, enemy combatants who threaten our country. We are killing them. Yet the same administration is saying this same category of individuals--that we shouldn't detain them in military custody, we shouldn't try them by military commissions, and that seems internally inconsistent. It also seems inconsistent that while we have our allies participating with us in attacks against enemy combatants around the world, that they would not transfer detained enemy combatants to the U.S. for fear that we will put them in military custody. It just does not make sense. I would urge my colleagues to support my amendment. We shouldn't further criminalize this war. We remain at war with terrorists who want to kill Americans. I brought forward this amendment because I firmly believe our priority has to be to gather intelligence and not to provide them Miranda rights and not to undermine, in my view, our military commission system but to treat enemy combatants for who they are--enemies of our country--and make sure we protect Americans. I yield the floor.

Ms. AYOTTE

Ms. AYOTTE. I thank our distinguished Republican leader, the senior Senator from Kentucky, for that question. That is correct. My amendment only applies to members of al-Qaida and associated forces who are engaged in an armed conflict against our troops and coalition forces and who are planning or are carrying out an attack against our country or our coalition partners. It does not apply to everyone who might be termed a terrorist, and it does not apply to U.S. citizens who are members of al-Qaida.

Ms. AYOTTE. No, I cannot.

Ms. AYOTTE. Yes, and yesterday some of our colleagues came to the floor to argue that my amendment would limit the choices available to our Commander-in-Chief in prosecuting terrorists. I would ask the Republican leader the following: In January of 2009, did President Obama, when he first came into office, issue Executive orders ending the Central Intelligence Agency's detention program, ending the CIA's option for using enhanced interrogation techniques, ordering the closure of the secure detention facility in Guantanamo Bay, Cuba, prior to any study being done concerning how to dispose of the population of enemy combatants there--we now know that 27 percent of them are back in theater--and suspending military commissions?

Ms. AYOTTE. It certainly strikes me as very inconsistent. It is especially odd given that the military commissions were enacted by Congress at the suggestion of our Supreme Court. They were passed on a bipartisan basis and were refined by the Obama administration to its liking. Yet the administration refuses to fully use them as they were intended.

Ms. AYOTTE. I would answer, yes, it has. My amendment only pertains to enemy combatants against whom Congress has declared we are in an armed conflict. And because we are in an armed conflict with al-Qaida and associated forces, the Congress has authorized the use of military force to combat them, and that is why it is called the authorization for the use of military force.

Ms. AYOTTE. I do, and the Republican leader is correct that this test case shows that in capturing rather than killing terrorists, we can gain valuable intelligence. Instead of sending Warsame to Guantanamo, though, he was held and interrogated at sea for approximately 2 months. Then law enforcement officials were brought in to read Warsame his rights. I wish to take a minute to address arguments that were made on the floor earlier by Senator Levin from Michigan, the chairman of the Armed Services Committee. He claimed that if my amendment were to pass, Mr. Warsame would escape justice because we wouldn't be able to prove that he was, in fact, planning an attack against the United States. I wish to point out that if that were the case, my amendment would not apply because my amendment applies to members of al-Qaida or affiliated groups who are also planning or have carried out an attack against the United States, so he would be able to be held fully accountable in the civilian court system. I wanted to correct that because I think that leaves a misimpression that Mr. Warsame would not be or could not be held accountable under our law. The second problem with the analysis of the Senator from Michigan is that it ignores what is going on here. The reason the United States had to take the unusual steps of holding Warsame at sea on a Navy ship and then flying him to the United States over the Fourth of July weekend is because of the administration's refusal to use the top-rate detention facility at Guantanamo Bay, Cuba, that we have there for long-term military detention. Because it refuses to use this valuable asset for new captures, the administration has gone to great lengths to treat these enemy combatants who are captured on an ad hoc basis instead of placing them in a long-term detention facility, which places an artificial time period on when we can interrogate these individuals and how long they will be available to gather information to protect Americans. As the Republican leader has noted, the President's top lawyer at the Pentagon observed that members of al-Qaida are enemy combatants and that Congress has passed an authorization for the use of military force to treat them as such. We need to do that on a consistent basis and use the military assets we have. We should not have an ad hoc, haphazard approach to treating enemy combatants. We should not Mirandize enemy combatants who are our military captures and then hold them on makeshift prison barges as if we were in the 19th century because the administration refuses to use Guantanamo Bay and then import them into the United States so they can be detained in our civilian court system, tried in our civilian courts, with the possibility that they could be released into the United States if they are acquitted or given a modest sentence, as nearly happened with Ahmed Ghailani. Now is the time to keep the pressure on al-Qaida, whether in the tribal areas of Pakistan or in Yemen. Our law enforcement officials have done a tremendous job in contributing to the counterterrorism fight. But we cannot, for the first time in the history of this country, take the view of the Attorney General, which is that our civilian court system is the most effective weapon in our conflict with al-Qaida, because that is simply not the case. Thank you, Mr. President.

Ms. AYOTTE

Ms. AYOTTE. Mr. President, our country continues to be at war with members of al-Qaida, enemy combatants who want to kill Americans and that is why Congress authorized the use of military force to combat these individuals. My amendment applies to the worst of the worst. It would prohibit the use of funds for fiscal year 2012 for the prosecution of enemy combatants in civilian article III courts. This prohibition would extend to members of al-Qaida or affiliated entities, and who have participated or carried out an attack against our country or our coalition partners. It does not apply to American citizens. These individuals, enemy combatants, are not common criminals who just robbed a liquor store. When we detain a member of al-Qaida who is planning an attack on our country, the priority has to be on gathering information to protect Americans. I have great respect for our civilian court system, but it was not set up to allow the time to interrogate members of al-Qaida. We should not be trying these individuals in our civilian system but in military commissions. We should not be providing these terrorists Miranda rights and speedy presentment rights that come with our civilian system.

Ms. AYOTTE. I ask for the yeas and nays.

Ms. AYOTTE

Ms. AYOTTE. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.

Ms. AYOTTE. Mr. President, I ask unanimous consent to temporarily set aside the pending amendment, and I call up my amendment No. 753.

Ms. AYOTTE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Ms. AYOTTE. Mr. President, I filed amendment No. 753 to H.R. 2012, the appropriations minibus. My amendment would prohibit the use of funds for fiscal year 2012 for the prosecution of enemy combatants in our article III courts. This prohibition would apply to individuals who are members of al-Qaida or affiliated terrorist groups and who have participated in the course of planning or carrying out attacks against our country, the United States of America, or our coalition partners. In no other conflict have we treated our enemies as criminals and tried them in our civilian court system. I believe we need to stop criminalizing this war, and that is why I have brought forward this amendment. These individuals should be treated with military custody and tried in military commissions, and that is why I have brought forward this amendment at this time. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Ms. AYOTTE. Mr. President, I rise in response to the comments by my esteemed colleague from Colorado about my amendment No. 753. And I would say this first. My amendment does not provide immunity to terrorists. What my amendment does is treat terrorists as they should be treated. We are at war, and under the laws of war, traditionally we have tried enemy combatants in military commissions. And those individuals my colleague from Colorado cited, including Umar Farouk Abdulmutallab, could be held accountable in a military commission because our priority has to be, when we are at war, to gather intelligence, to protect our country, and not whether we should prosecute in our article III courts, in which I have great confidence. I served as attorney general of our State and believe very much in our article III court system. But our article III court system is not where terrorists with whom we are at war should be tried. In light of the recent comments here on the floor, I feel compelled to point out some of the facts that I think are important for the American people to know about some of the cases that have been cited in support of saying terrorists should be tried in article III courts. On October 12, Umar Farouk Abdulmutallab pleaded guilty in the U.S. district court in Detroit. That case has been cited not only by the Senator from Colorado but by the Senator from Maryland and the Senator from Illinois, and our Attorney General has cited it as well as the ultimate and final vindication of the use of our civilian courts for the trial of enemy combatants. The senior Senator from Illinois and the Obama administration were so confident that the so-called Underwear Bomber, as he has been named, guilty plea would settle the dispute once and for all, that on October 13, the Senator from Illinois came to the floor and essentially declared the controversy over. We have heard those same arguments today. I think we need to review who exactly Abdulmutallab is. He is no common criminal. We are not talking about people who have robbed liquor stores or who are Americans who have committed criminal acts in this country. He is the Nigerian man who tried to detonate plastic explosives hidden in his underwear while onboard Northwest Airline's flight 253 to Detroit on December 25, 2009. Al-Qaida in the Arabian Peninsula claimed to have organized the attack with the Underwear Bomber claiming that AQAP supplied him with the bomb and trained him. He was subsequently charged in Federal court with eight counts, including the attempted use of a weapon of mass destruction and attempted murder of 290 Americans. The Underwear Bomber pleaded guilty at trial, telling a surprised courtroom on the second day of his trial that the failed attack was in retaliation for the killing of Muslims worldwide. This case has been cited as the final vindication for civilian trials, and I think it is important to mention three points about this case. First of all, the presumption seems to be that the civilian court system should have the primary responsibility for questioning, trying, and ultimately detaining foreign enemy combatants with whom the United States is in a declared war. That has not been the rule in prior conflicts. We are treating this conflict differently than we have treated other conflicts, where enemy combatants have been tried in military commissions. Secondly, in my view, the administration's eagerness to appease the ACLU by trying enemy combatants in civilian courts misses the whole point about detention in a time of war. When we are at war, we detain and interrogate enemy combatants according to the laws of war to glean valuable intelligence that will help prevent future attacks, save American lives, and help us capture other enemy combatants. Al-Qaida was at war with the United States long before our country recognized or strongly reacted to this threat. We remain at war with al-Qaida. When we put enemy combatants in our civilian court system, we are focusing on prosecution, and we potentially miss important opportunities to gather information to prevent future attacks by doing so. In Abdulmutallab's case, the administration read him his Miranda rights after 50 minutes of questioning. In my view, this jeopardized valuable intelligence. And I know my colleagues on the other side of the aisle have said: Well, eventually he spoke, and he gave us lots of information. But why would we put information in jeopardy? Why would we read terrorists Miranda rights? I, as a prosecutor, have never heard a law enforcement official tell me that Miranda rights are a helpful information-gathering tool, but that seems to be the position I am hearing today. Jeopardizing this intelligence was clearly unnecessary. And in this case, the fact that we didn't have to rely on a confession--this was a case where we caught the Underwear Bomber redhanded. So even if we were to have tried him in a military commission and had not given him Miranda rights, had gathered intelligence for as long as we could have, we still would have had him redhanded because the passengers on that flight saw him. He was caught with the explosives on his body. This was never a case about a guilty plea and whether we got some information about him. The essential question is whether we got the most information possible from a terrorist who was trying to attack Americans and our allies, to prevent future attacks, not whether we gave him Miranda rights. With a case that was as open and shut as Abdulmutallab's, without any need to use confessional evidence or classified information, it doesn't prove the civilian court system is superior to military commissions. His conviction was never realistically in doubt. Defenders of bringing our enemy combatants to the U.S. civilian trial often cite a number of cases and convictions related to military commissions. Again, I want to reiterate, I am a strong believer in our civilian court system, but I want to point out some of the downsides to using our civilian court system for enemy combatants: the costs of security; the cause of civic disruption in the area; the risk of compromising classified information; and the risk of eventual release of these combatants not to some other country but into American society, regardless of whether they are convicted in civilian court. And these concerns aren't academic. I have heard some of my colleagues cite the case of Zacarias Moussaoui, who was a member of al-Qaida who was involved in the 9/11 attacks. The civilian proceedings spanned nearly a decade, and his case was finally resolved only last year. These proceedings cost millions of dollars and caused substantial civic disruption. For example, the Federal courthouse in Alexandria, VA, was described as ``an armed camp, with the courthouse complex and surrounding neighborhood becoming a virtual encampment, with heavily armed guards, rooftop snipers, bomb- sniffing dogs, blocked streets and identification checks.'' If we had tried him at Guantanamo Bay, in the military commission there, these security concerns would have been accounted for, and we wouldn't have had to disrupt Virginia to do that. It is not a problem we would confront in our military commission system. In addition, in the civilian trial of 9/11 terrorist Zacarias Moussaoui, sensitive material was inadvertently leaked because our civilian court system, as wonderful as it is, is not set up as well to deal with cases involving sensitive information during a time of war. Moussaoui also mocked 9/11 victims and used the civilian trial as a platform to spew terrorist propaganda. All of these negative side effects of trying a terrorist in a civilian court would have been eliminated or significantly mitigated if he had been detained in military custody and tried before a military commission. In the case of Omar Abdel Rahman, commonly known as the Blind Sheik, which has also been cited here today, the civilian trial provided intelligence to Osama bin Laden. So when I hear that case cited as a success, the first thing that comes to my mind is, if intelligence was provided to Osama bin Laden, how is that a success when our No. 1 focus should be on protecting the American people? And that has to be the distinction between trying enemy combatants in a time of war and the very important purpose of our civilian court system. In the case of the Blind Sheik, according to Michael Mukasey, the former Attorney General, ``in the course of prosecuting Omar Abdel Rahman, the government was compelled--as it is in all cases that charge a coconspiracy charge--to turn over a list of unindicted coconspirators to the defendants. Within 10 days, a copy of that list of unindicted coconspirators reached bin Laden in Khartoum.'' The notion that a list--because you had to do it, according to our civilian court system where notice requirements are very important, where generally our court systems are open--would be provided to Osama bin Laden, in my view, is unacceptable, a risk we could have avoided if we treated the Blind Sheik as he should have been treated, which is as an enemy combatant and tried in a military commission. Civilian trials of enemy combatants have provided a treasure trove of information to terrorists, and I think those risks have been very discounted by my esteemed colleagues who have come to the floor to oppose my amendment. According to open source reporting, the cost of disclosing information unwisely became clear after the New York trials of bin Laden associates for the 1998 bombings of U.S. Embassies in Africa. Some of the evidence indicated that the National Security Agency, the U.S. foreign eavesdrop organization, had intercepted cell phone conversations. Shortly thereafter, bin Laden's organization stopped using cell phones to discuss sensitive operational details. It is also important to note that the record of trying enemy combatants in civilian courts is not as good as it has been made out to be. Opponents of my amendment don't often speak about Ahmed Ghailani. Ghailani is a Tanzanian who was charged with a total of 284 counts, including 200-plus counts of murder and 1 count of conspiracy in the 1998 bombings of the U.S. Embassies in Tanzania and Kenya. The bombings killed 224 people, including 12 Americans. He also spent time as Osama bin Laden's bodyguard. He was tried in the U.S. District Court for the Southern District of New York. The Department of Justice directed the U.S. attorney not to seek the death penalty. At trial, the presiding justice excluded from evidence the testimony of a key witness--a Tanzanian, who may have issued statements implicating him in the bombings. And on November 17, 2010, a jury, after this evidence was excluded, found Ghailani only guilty of 1 count of a conspiracy and acquitted him of all 284 other charges, including the murder charges. He murdered 284 people--12 Americans--and he was acquitted of murder charges. I think that is a case that shows our civilian court system is not always the best way to deal with enemy combatants and is very contrary to what I have heard on the cases cited from my opponents of this amendment. Proponents of civilian trial, such as Attorney General Holder, want to criminalize the war, but they fail to cite these cases where the civilian court system leaked classified information to terrorists or, because of excluded evidence, where terrorists are not held fully accountable. Military detention for enemy combatants has always been the rule, not the exception. Why are we treating this war any differently? Civilian courts rightly focus on prosecution, but in detaining enemy combatants when at war, they miss the most important goal we have to have; that is, gathering intelligence and protecting the American people against future attacks. Civilian trials for enemy combatants incur tremendous costs and cause civic disruption. That is why the administration itself has reversed its position on trying Khalid Shaikh Mohammed in New York City. They wanted to try the mastermind behind 9/11 in the middle of New York City, but the American people were so outraged by trying someone who is the mastermind of 9/11 in the middle of New York City and the millions of dollars it would have cost to protect the citizens of New York from this horrible individual, giving him a forum in the middle of New York City. Again, the costs associated with protecting the American people in these civilian trials alone is enough to treat them as they should be-- in military commissions. We risk compromising classified information, and we risk the eventual release of these combatants into American society. For these reasons, consistent with a longstanding precedent, we should not be bringing enemy combatants to the United States for civilian trials. If the Obama administration is willing to kill enemy combatants without due process, and I applaud them for doing so, why is the administration so against placing these same enemy combatants in military custody and detaining them under the law of war, and when appropriate trying them in military commissions? I think the answer is clear. Unfortunately, I am concerned that it is a political decision rather than putting intelligence gathering first in order to protect the American people and treat these enemy combatants as what they are--enemies of our country. I urge my colleagues to support my amendment. In my view, beyond the policy reasons for not trying enemy combatants in civilian courts, we should ask ourselves why should we bring foreign terrorists to the United States and give them the legal protections reserved for U.S. citizens and secured by those Americans who have fought and died for those rights? Why do these people deserve access to our American court system? They are our enemies. In the civilian court systems there are rights guaranteed, such as Miranda rights and speedy presentment, that should not be extended to enemy combatants. We need to prioritize protecting our country. I think the American people will agree with me when I say that no terrorist should ever hear the words ``you have the right to remain silent.'' I urge my colleagues to support my amendment No. 753.

Ms. AYOTTE

Ms. AYOTTE. I would say to our distinguished Republican leader, I think that is what is at the heart of this, that they want to treat these individuals in the context of our civilian court system; otherwise, why would you object to a provision on military custody for those who are members of al-Qaida who are planning an attack against the United States or have attacked the United States? Also, I would point out, there is a national security waiver in this provision. So the only thing I can take from it is that they do want to treat this war as people who are at war with us as civilians as opposed to who they are--enemies of our country.

Ms. AYOTTE. I would say that is an absolute concern here because this would be the first war in the history of our country where we would be giving those we capture on the battlefield the rights to our civilian court system. Where do we draw the line? It would be outrageous to require members of our military and intelligence officials to immediately ask: Do I have to give Miranda rights? Do I have to worry about some of the speedy trial and presentment issues that come from a civilian court system? That is why, in the guidance of the committee, on a bipartisan basis, for this category of individuals, the presumption should be military custody because these are individuals who are enemy combatants with whom we are at war. That is fundamentally what is at issue. It does seem inconsistent--with what the administration is doing in terms of rightly going after these individuals around the world, and killing them in certain instances--that we would not provide them with military custody in the first instance.