Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. Absolutely. It is taking a more limited approach. I totally understand it.

Mr. GRAHAM. Mr. President, I ask unanimous consent to be recognized to talk about the pending amendments for about 8 minutes.

Mr. GRAHAM. Mr. President, this debate we are having about gun control legislation and how to solve a difficult problem is a good debate. Quite frankly, I never understood why we would not want to have this debate. This is an issue where most Americans very much would like to see something of substance accomplished. But the goal is to do something of substance that will address the underlying problem, not just pass legislation, quite frankly, in a more feel-good category. Senators Manchin and Toomey are very sincere. I know they are trying to fix a problem that is seen by a lot of people to be a problem, and I understand where they are coming from. But I want to take my time to talk about two things. The President has given a lot of speeches about this issue, very emotional in nature--that State of the Union Speech--and he has literally traveled all over the country to sort of gin up support for three things: a universal background check, the banning of assault weapons, assault rifles, and limiting magazine sizes. At the end of the day, the Senate will take up these measures individually and somewhat collectively, and here is what I think will happen. I think when it comes to the magazine size limitation, that is not going to pass the Senate simply because there are thousands, if not millions, of magazines beyond 10 rounds out in the current marketplace. From a criminal point of view, this legislation wouldn't affect them one bit. They will get a magazine of whatever size they would like. It would affect law-abiding citizens and put them in a bad spot. The best way to interrupt a shooter in a Newtown situation is not to limit the magazine size but to have a security officer in the school who can confront the shooter before they get to the kids. Don't kid yourself that having to reload is going to be the answer to interrupting a crazy person bent on destroying the lives of innocent people. In a school environment, in my view, the best way is to confront that shooter with a trained law enforcement officer. The Grassley-Cruz-Graham amendment has money put back into the system-- money President Obama cut out of school safety, some $300 million, at a time when that was very unwise. So we would restore that money. Two months ago, maybe a little longer, there was a young woman at home in the Atlanta suburbs with her twin daughters--I believe they were twin daughters--and there was a home invasion by someone who had just been released from jail. She took her children up on the second floor and hid in the closet. She got on the cell phone and called her husband asking what to do. She grabbed a .38 revolver. The guy broke into the closet, she fired six times, emptying the gun and hitting him five to six times. He was still able to get up and drive away. Approximately one-third of the assaults in this country are committed by more than one person. In the hands of that mother, six shots were not enough. It wouldn't bother me one bit if she had 30 rounds. In the hands of a mentally unstable person or convicted felon, one bullet is too many. That is why I oppose the magazine size limit. It does not address the problem. Now, as to the AR-15, there are 4 million of these rifles available. It is one of the most popular selling sportsman's rifles in the country. I have been in the military for almost 30 years. It is similar to the M16, but it is a semiautomatic, not a fully automatic rifle. The reason I own one is because I like to shoot. I am not going to bother anybody. I am not going to do anything wrong with the gun. I passed the background check to get the rifle. Why an AR-15? Vice President Biden, who is a good friend, has suggested a double-barrel shotgun is the best way to defend a home in case you find a lawless environment. We have had hurricanes, earthquakes, or other natural disasters where law enforcement is not available to families because the system is broken. They can't call, they can't travel, there has been a catastrophic event, such as Sandy, Hugo or Katrina. These things happen in the real world where law and order breaks down. The Vice President was talking to a young man who was worried about this, and he said: You don't need an AR-15, you need a double-barrel shotgun. That is the best way to defend your home. To be honest with you, I disagree. If there is a roving gang in the community, and there are three homes, one without a gun, one with a double-barrel shotgun, and one with an AR-15, they are going to pick the AR-15 last. Now, you may not agree with me, but I think that makes sense as a self-defense weapon. So that is why the assault ban is not going to pass. Less than 2 or 3 percent of all murders in this country are committed with a rifle of any kind. Most murders committed in this country, violent acts, with a gun, are committed with handguns. At the end of the day, the magazine limitation is not going to pass because it doesn't address the problem. In the hands of a mother, six rounds is not enough; in the hands of a criminal, one is too many. The AR-15, 4 million guns available; the assault weapon is a very popular selling gun, and I think under Heller that type of weapon would be protected. It is not the gun you own, it is who owns it. At the end of the day, the universal background check is not going to make it. Senators Manchin and Toomey are trying to find a solution in a smaller way. I appreciate that. But here is my concern about background checks. Last year, 80,000 people failed a background check, and 9,000 of the people who failed the background check were convicted felons on the run from the law. Yet only 44 people were prosecuted out of 80,000. Of those 9,000, I can't find one case where the law enforcement community found out a criminal on the run from the law tried to buy a gun and they went and picked him up. We at least ought to be catching dumb criminals. If they are dumb enough to fill out a background check while they are on the run, the system ought to catch them. Let me tell you of another problem we found. In 2005, there was a young lady named Alice Boland, who is a paranoid schizophrenic, a very troubled young lady with a history of mental illness, who pled not guilty by reason of insanity for trying to kill the President of the United States and a Secret Service agent. The threats were made at the Canadian border, and she eventually came to South Carolina with her family. She was adjudicated by a Federal court, pled not guilt by reason of insanity, and the plea was accepted. She was confined to a mental health institution by the court. When she got out, she went home, and in February of this year she went to Walterboro, a small community near Charleston, and bought a .22 semiautomatic pistol. She filled out the background check, and her plea of not guilty by reason of insanity was not entered into the background check system. The fact she was confined to a mental health institution by a Federal court didn't make it into the background check system. She bought the gun, went to a private school--Ashley Hall in Charleston--went to the office area where the staff was located, pulled out the gun, and the gun didn't fire. Thank God it didn't. But our background system doesn't catch people like her. There are 14,000 people in South Carolina who have been adjudicated a danger to themselves and others by a competent court under due process who are not in the Federal background system. There may be up to 1 million people. The Grassley-Cruz-Graham bill will fix that problem. It would make sure before you get a law enforcement grant from the Federal Government, the State that requests the grant has to enter into the Federal database people who have been held mentally a danger to themselves or others by a competent court. It looks like we could at least do that to get thousands, if not up to 1 million people, who have been deemed to be a danger to themselves or others into the background check system before we expand it. So I support Grassley-Cruz-Graham. I think it has a comprehensive approach. It has an antitrafficking component to it. It has a task force that will have $50 million available to the Federal law enforcement community to go after people who fail a background check or who are felons. I think it is a much better approach than the other legislation on the floor. So I will be opposing Manchin-Toomey. I appreciate the spirit in which it has been offered, but I think defending the background check system is not the problem. Making the background check system capture mental health adjudications and doing something about a felon who fails a background check is a wiser approach rather than expanding a broken system. When we only have 44 people out of 80,000 prosecuted, something is wrong. Why create more paperwork where nobody is going to do anything about it. Let's focus on the problem. So I think this has been a good debate for the Senate. When it is all said and done, after a reasoned debate, the President's proposal--more emotional than practical--of a universal background check, which would have included a private sale, no matter what he said, is not going to carry the day in the Senate. We should be going after the criminal, not the law-abiding citizen, and all of us should want to make sure that those who are a danger to themselves and others do not have access to a weapon. That is a commonsense approach to a hard problem. I look forward to the votes today and the votes to come because this is an issue which should be debated. I am not afraid to voice the courage of my convictions. Everyone in this body is sincere about their approach to the problem, but I think at the end of the day what is going to prevail is common sense. Mr. President, I yield the floor.

Mr. GRAHAM. Absolutely.

Mr. GRAHAM

Mr. GRAHAM. Yes. We need to vote on this.

Mr. GRAHAM. Wait a minute. I ask for a rollcall vote.

Mr. GRAHAM. This amendment will get your attention. About 500,000 or 600,000 Federal employees will be furloughed because of sequestration. They are going to miss 1 day a week of pay. We can't dock our own pay constitutionally, but I am asking through this amendment that all of us, beginning in April, take 20 percent of our salary and give it to the charity of our choice or anybody we would like so that we would feel what other people are feeling because of sequestration. Thank you. Have a good night.

Mr. GRAHAM. What is the question? I will take a voice vote, absolutely.

Mr. GRAHAM

Mr. GRAHAM. No objection, I just need about 7 or 8 minutes.

Mr. GRAHAM. I have no objection but----

Mr. GRAHAM

Mr. GRAHAM. Madam President, I wish to bring the body's attention to a recent decision by the Obama administration to place the son-in-law of Osama bin Laden, Mr. Abu Ghaith--I think I am pronouncing the name correctly--into Federal district court in New York charged with conspiracy to kill American citizens. He has been presented to our criminal justice system. He is, in my view, the classic example of an enemy combatant. I will be, along with Senator Ayotte, writing the Attorney General asking for a rundown of how long he was interrogated before he was read his Miranda rights. I believe this is a classic example of a person of great intelligence value who should have been held as an enemy combatant at Guantanamo Bay for intelligence-gathering purposes as long as it took to get good intelligence. He, in my view, is a treasure trove of information about not only al-Qaida but maybe things going on in Iran. There is an allegation of his being held in Iran for a very long time as their houseguest, for lack of a better word. I fear greatly we are beginning to go back to the criminal justice model that preceded 9/11. The first time the World Trade Center was attacked, we had the Blind Sheik case and the prosecutors did a wonderful job of prosecuting the Blind Sheik and his conspirators in Federal court. But everybody at that time treated al-Qaida and terrorism as a criminal threat. After 9/11, we changed our model. The attacks of 9/11 were viewed as an act of war and we authorized military force to go after al-Qaida and affiliates by allowing us to use the law of war model regarding al- Qaida operatives. From 9/11 forward, we can now hold them as enemy combatants. Under the law of war--I have been a military lawyer for 30 years-- there is no Miranda right component. If a person is captured as an enemy prisoner, he or she is not read their rights or provided a lawyer. When a commander hears we have a highly valued member of the enemy in our custody, the first thing the commander wants to know is what intelligence have we gathered. The last thing on the commander's mind is where we are going to prosecute them. So when we are fighting a war, the purpose of interrogating an enemy prisoner is to find out information about enemy activity so we can win the war and protect our troops. In criminal law, the purpose is to convict somebody for a crime. Under criminal law--domestic criminal law--we cannot hold someone for interrogation purposes. We can't ask them about what they have been up to, what they know, and I don't suggest we should. They are entitled to a lawyer and Miranda rights and that is the way it should be. But we are fighting a war, at least in my view we are fighting a war. I wish to remind the Nation--I doubt if we need a whole lot of reminding but every now and then apparently we do--this is the Twin Towers on fire, beginning to crumble from an attack on 9/11. This is the Pentagon, the damage done to the Pentagon, and 300 people lost their lives there, and this is the Shanksville, PA, site of Flight 93. To those who suggest we are not in a war, I could not disagree more. I would say the single biggest loss of life in the war on terror was the first day; the very first day the war began, September 11, 2001. Do my colleagues remember where they were? Do they remember their reaction? The first three battles in this war cost us the most lives of any day in the war. We have lost a lot of soldiers, and our hearts go out to them, but there has never been a day when Americans bled more than 9/11 itself. There are three battlefields in this war: New York, over 2,000 people killed; the Pentagon, around 300 killed; Shanksville, PA, the entire membership of that airplane was killed. To the people of flight 93: You fought back. You weren't fighting against a bunch of criminals. You fought back against a bunch of terrorists who were trying to take the last airplane and crash it into this building or some other building in Washington. To those who died on that flight, you are the first line of defense. You, above all others, were the first ones to fight back. I will not let your fight go unnoticed. You were not fighting a bunch of criminals. You were fighting people who are at war with us. I wish we had understood in 1998 we were at war and not used a criminal model. If we had kept the Blind Sheik in military custody, interrogated him for a very long time, lawfully and humanely--because I believe that as a military lawyer--maybe we could have gotten information that would have prevented 9/11. Here is why I am so upset. The person in custody in New York is the son-in-law of Osama bin Laden. Again, I remind my colleagues, this is the bloodiest day in the war on terror. These are three battlefields that cost us 2,900 lives. Over 2,900 American citizens died on the first day of the war. Now, years later, we are still capturing people. The person we captured--and I congratulate all those who were involved in bringing this man into our custody. This person over here to the left sitting by Osama bin Laden is his son-in-law. He left Kuwait in 2000 and went to Afghanistan. He pledged allegiance to bin Laden. He was the spokesperson for al-Qaida. He was one of the key guys trying to get other people to pledge allegiance to al-Qaida and bin Laden. So in 2000 he went to Afghanistan and he joined with bin Laden and became his son-in-law. He founded a charity that was used to support terrorist organizations. On 9/11, after the attacks, he was one of the first people to speak and to glorify the attacks about how they attacked our homeland. I will get that quote later; I don't have it with me. He said: My brothers, we finally hit the homeland. We finally hit them in the heart of where they live. On October 10 in a video he said: Americans should know the storm of planes will not stop. There are thousands of the Islamic nation's youth who are eager to die, just as the Americans are eager to live. All I can say is if this man was interrogated by our intelligence officials and the FBI for hours, not days, before he was read his Miranda rights--under the law of war, we have the opportunity available to us to hold them indefinitely as a prisoner, an enemy combatant, a member of the enemy force, and to lawfully interrogate him without a lawyer, without reading him his Miranda rights because we are trying to gather intelligence and make sure we can prevent future attacks and to find out what this vicious enemy is up to. We did not take that opportunity. This administration is refusing to use Guantanamo Bay, one of the best military jails in the history of the world--very transparent, well run, and it is the place he should be today, not in New York City awaiting trial in Federal court. It is not about Federal court not being available in the war on terror. Article III courts have done a good job in many cases of prosecuting terrorists but so have military commission tribunals at Guantanamo Bay, where KSM, the architect of 9/11, is being prosecuted under the Military Commissions Act. My complaint is that this man was, within hours, read his Miranda rights and given a lawyer and cut off the ability of our government to find out what he knew about the war on terror, current operations, and future operations. He should have been at Guantanamo Bay, interrogated by our military for as long as it took to find out what he knew. If the administration is telling me we got all we needed from this man in 1 day, they are offending my intelligence. I have been a military lawyer for 30 years. I understand what is going on at Guantanamo Bay, the information we have received over years. In some cases, it took months, if not years, to get the total picture of what a detainee knew. So if the administration is telling me and the American public the time they had with this man before they read him his Miranda rights was enough, then they are offending my intelligence. They are making a huge mistake. The decision not to treat him as an enemy combatant and putting him at Guantanamo Bay for interrogation purposes under the law of the war is one of the most serious mistakes we have made since 9/11. We are beginning to criminalize the war. This was not an intelligence decision or a military decision; it was a political decision, because they will never convince me or almost anybody else in America that interrogating him for hours was enough. The reason he was interrogated for hours and not days is that they did not want to take him to Guantanamo Bay. The reason he was read his Miranda rights is they are pushing everybody back into the criminal justice system. All I can say is that Guantanamo Bay has been reformed. It should be the place we take people such as he, as an enemy combatant, to be interrogated under the law of war, and we are using the criminal justice model in a way that will come back to haunt our Nation. We are beginning to criminalize the war. I want my colleagues to know we are going down a very dangerous path, and I will do everything in my power to get this administration and future administrations back in the game when it comes to fighting a war because I believe very much, I say to my colleagues, that we are in a state of war with an enemy who does not wear a uniform, who has no capital to conquer, no Air Force to shoot down, and no Navy to sink. The only thing between them and us is our brave men and women in the military and good information. This man was interrogated for hours when he should have been interrogated for months. We are beginning to do what got us into this mess to begin with, looking at al-Qaida as a group of common criminal thugs rather than the warriors they are. These people right here mean to kill us all. They are at war with us. I intend to be at war with them. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. That is a very good point. I look forward to a discussion about how to deal with a drone program. It is just a tactical weapon. It is an air platform without a pilot. Now, if there is a truck going toward a military base or nuclear powerplant, we have a lot of assets to interdict that truck. Maybe you don't need the F-16. But I guarantee you, if there was a hijacked aircraft coming to the Capitol, the President of the United States would be well within his rights to order the Patriot missile battery to shoot that plane down or have an F-16 shoot it down. And we are ready for that, by the way. I would just suggest one thing. The number of Americans killed in the United States by drones is zero. The number of Americans killed in the United States by al-Qaida is 2,958. The reason it is not 2 million, 20 million, or 200 million is because they can't get the weapons to kill that many of us. The only reason it is 2,958 is because their weapons of choice couldn't kill more. Their next weapon of choice is not going to be a hijacked airplane up there; it is going to be some nuclear technology or a chemical weapon, a weapon of mass destruction. That is why we have to be on our guard. When you capture someone who is associated with al-Qaida, the best thing is to hold them for interrogation purposes. We found bin Laden not through torture, we found bin Laden through a decade of putting the puzzle together. Senator Durbin and Senator McCain, both are very effective advocates that we have to live within our values and that when we capture somebody, we are going to hold them under the law of war. We are going to explore the intelligence, but we are going to do it within the laws that we signed up to, such as the Geneva Conventions, the Convention Against Torture.

Mr. GRAHAM. I thank my colleague. That is a very good question. This has been a very lively debate. Senator Paul has a lot of passion, and that is a great thing. This is an important issue. We should be talking about it, and I welcome a reasoned discussion. But to my Republican colleagues, I don't remember any of you coming down here suggesting that President Bush was going to kill anybody with a drone-- I don't even remember the harshest critics of President Bush from the Democratic side. They had a drone program back then, so what is it all of a sudden about this drone program that has gotten every Republican so spun up? What are we up to here? I think President Obama has, in many ways, been a very failed President. I think his executive orders overstep, I think he has intruded into the congressional arena by Executive order, I think ObamaCare is a nightmare, and there are 1,000 examples of a failed Presidency, but there is also some agreement. People are astonished, I say to the Senator, that President Obama is doing many of the things President Bush did. I am not astonished. I congratulate him for having the good judgment to understand we are at war. To my party, I am a bit disappointed that you no longer apparently think we are at war. Senator Paul, he is a man unto himself. He has a view I don't think is a Republican view. I think it is a legitimately held libertarian view. Remember, Senator Paul was the one Senator who voted against a resolution that said the policy of the United States will not be to contain a nuclear-capable Iran. It was 90 to 1. To his credit, he felt that would be provocative and it may lead to a military conflict. He would rather have a nuclear-capable Iran than use military force, and he said so--to his credit. Ninety of us thought, well, we would like not to have a military conflict with Iran, but we are not going to contain a nuclear-capable Iran because it is impossible. What would happen is that if Iran got a nuclear weapon, the Sunni Arab States would want a nuclear weapon, and most of us believe they would share the technology with the terrorists, who would wind up attacking Israel and the United States. It is not so much that I fear a missile coming from Iran; I fear, if they got a nuclear weapon or nuclear technology, they would give it to some terrorist organization-- like they gave IEDs to the Shia militia in Iraq to kill Americans--and they would wreak havoc on the world. So we don't believe in letting them have it and trying to contain them because we believe their association with terrorism is too long and too deep, that it is too dangerous for Israel and too dangerous for us. But Senator Paul, to his credit, was OK with that; I just disagree with him. As to what he is saying about the drone program, he has come our way some, and I appreciate that. Before, he had some doubt in his mind as to whether we should have killed Anwar al-Awlaki in Yemen--an American citizen who had collaborated with al-Qaida and was actually one of the military leaders of al-Qaida in Yemen, who had radicalized Major Hasan, and who had been involved in planning terrorist attacks against U.S. forces throughout the region. President Obama was informed through the military intelligence community channels of Anwar al-Awlaki's existence, all the videos he made supporting Jihad and killing Americans, and he, as Commander in Chief, designated this person as an enemy combatant. Mr. President, you did what you had the authority to do, and I congratulate you in making that informed decision. And the process to get on this target list is very rigorous--I think sometimes almost too rigorous. But now, apparently, Senator Paul says it is OK to kill him because we have a photo of him with an RPG on his shoulder. He has moved the ball. He is saying now that he wants this President to tell him he will not use a drone to kill an American citizen sitting in a cafe having a cup of coffee who is not a combatant. I find the question offensive. As much as I disagree with President Obama, as much as I support past Presidents, I do not believe that question deserves an answer because, as Senator McCain said, this President is not going to use a drone against a noncombatant sitting in a cafe anywhere in the United States, nor will future Presidents because if they do, they will have committed an act of murder. Noncombatants, under the law of war, are protected, not subject to being killed randomly. So to suggest that the President won't answer that question somehow legitimizes that the drone program is going to result in being used against anybody in this room having a cup of coffee cheapens the debate and is something not worthy of the time it takes to answer.

Mr. GRAHAM. It has been a long-held concept in American jurisprudence that when an American citizen sides with the enemies of our Nation, they can be captured, held, and treated as an enemy combatant; they have committed an act of war against our country, not a common crime. In World War II, German saboteurs landed on Long Island. They had been planning and training in Germany to blow up a lot of infrastructure--and some of it was in Chicago. So they had this fairly elaborate plan to attack us. They came out of a submarine. They landed on Long Island. And the plan was to have American citizens sympathetic to the Nazi cause--of German origin, most of them--meet them and provide them shelter and comfort. Well, the FBI back then broke up that plot, and they were arrested. The American citizens were tried by military commission, they were found guilty, and a couple of them were executed. Now, there has been a case in the war on terror where an American citizen was captured in Afghanistan. Our Supreme Court reaffirmed the proposition that we can hold one of our own as an enemy combatant when they align themselves with the forces against this country. This Congress, right after the September 11 attacks, designated authorization to use military force against al-Qaida and affiliated groups. So the Congress has given every President since 9/11 the authority to use military force against al-Qaida and affiliated groups. And American citizens such as Anwar al-Awlaki and that guy Hamdi who was captured in Afghanistan have been treated as enemy combatants, and if President Obama does that, he is doing nothing new or novel. What would be novel is for us to say that if a terrorist cell came to the United States, if an al-Qaida cell was operating in the United States, that is a common crime and the law of war doesn't apply. It would be the most perverse situation in the world for the Congress to say that the United States itself is a terrorist safe haven when it comes to legal rights; that we can blow you up with a drone overseas, we can capture you in Afghanistan and hold you under the law of war, but if there is a terrorist cell operating in the United States, somehow you are a common criminal and we will read you your Miranda Rights. I just have this one question to get Senator McCain's thoughts. I hope we realize that, hypothetically, there are patriot missile batteries all over Washington that could interdict an airplane coming to attack this Capitol or the White House or other vital government facilities. I hope the Senator understands--Senator McCain is a fighter pilot-- that there are F-15s and F-16s on 3-minute to 5-minute alert all up and down the east coast. If there is a vessel coming into the United States or a plane has been hijacked or a ship has been hijacked that is loaded with munitions or the threat is real and they have taken over a craft and are about to attack us, I hope all of us would agree that using military force in that situation is not only lawful under the authorization to use military force, it is within the inherent authority of the Commander in Chief to protect us all.

Mr. GRAHAM. It should be construed as a reasonable ability to defend the homeland against a real threat. And the question is, Do you feel threatened anymore? I do. I think al-Qaida is alive and well. And to all those who have been fighting this war for a very long time, multiple tours in Iraq and Afghanistan, who have tried to keep the war over there so it doesn't come here, to the failed plots that have been broken up by the CIA and the FBI, God bless you. We have to be right every time; they only have to be right once. If you think the homeland is not a desire of al-Qaida, it is absolutely on the top of their list. They are recruiting American citizens to their cause, and unfortunately a few will probably go over to their side. Thank God it will be just a few. But to take this debate into the absurd is what I object to. We can have reasonable disagreements about, the regulatory nature of the drone program should be under the Department of Defense and what kind of oversight Congress should have. I think that is a really good discussion, and I would like to work with Senator Durbin and others to craft--the Detainee Treatment Act was where Congress got involved with the executive branch to come up with a way to better handle the detainee issue. But the one thing I have been consistent about is I believe there is 1 Commander in Chief, not 535, and I believe this Commander in Chief and all future Commanders in Chief are unique in our Constitution and have an indispensable role to play when it comes to protecting the homeland. If we have 535 commanders in chief, then we are going to be less safe. And if you turn over military decisions to courts, then I think you have done the ultimate harm to our Nation--you have criminalized the war. And I don't think our judiciary wants that. So as much as I disagree with President Obama, I think you have been responsible in the use of the drone program overseas. I think you have been thorough in your analysis. I would like to make it more transparent. I would like to have more oversight. As to the accusation being leveled against you that if you don't somehow answer this question, we are to assume you are going to use a drone--or the administration or future administrations would--to kill somebody who is a noncombatant--no intelligence to suggest there are enemy combatants sitting in a cafe hit by a Hellfire missile--I think it is really off base. I have this one final thought. If there is an al-Qaida operative U.S. citizen who is helping the al-Qaida cause in a cafe in the United States, we don't want to blow up the cafe. We want to go in there and grab the person for intelligence purposes. The reason we are using drones in Afghanistan and Pakistan is we don't have any military presence along the tribal border. The reason we are having to use drones is we can't capture people. The preference is to capture them, not to kill them. But there are certain areas where they operate that the only way we can get to them is through a drone strike.

Mr. GRAHAM. Absolutely.

Mr. GRAHAM. I could not welcome that more. It worked with the Detainee Treatment Act, it worked with the Military Commissions Act. I think it is the right way to go.

Mr. GRAHAM. There are. MR. DURBIN. I might add that in my conversations with the President he welcomes this. He has invited us to come up with a legal architecture to make certain it is consistent with existing precedent and military law and other court cases as well as our Constitution. I think that is a healthy environment for us to have this hearing and invite all points of view and try to come up with a reasonable conclusion.

Mr. GRAHAM. If I could just have 2 minutes of wrapup, I will. To my fellow citizens, the chance of you being killed by a drone--because you go to a tea party rally or a moveon.org rally or any other political rally or you are just chatting on the Internet quietly at home--by your government through the use of a drone is zero, under this administration and future administrations. If that day ever happened, the President of the United States or whomever ordered such an attack would have committed murder and would be tried. I don't worry about that. Here is what I worry about; that al-Qaida, who has killed 2,958 of us, is going to add to the total if we let our guard down. I will do everything in my power to protect this President, whom I disagree with a lot, and future Presidents from having an ill-informed Congress take over the legitimate authority under the Constitution and the laws of this land to be the Commander in Chief on behalf of all of us. As to any American citizen thinking about joining with al-Qaida at home or abroad: You better think twice because here is what is going to come your way. If we can capture you, we will. You will be interrogated. You will go before a Federal judge and one day you will go before a court and you will have a lot of legal rights, but if you are found guilty, woe be unto you. Here is another possibility. If you join with these thugs and these nuts to attack your homeland and if we have no ability to capture you, we will kill you and we will do it because you made us. The process of determining whether you have joined al-Qaida is not going to be some Federal court trial. It is not going to be a committee meeting in the Congress. Because if we put those conditions on our ability to defend ourselves, we cannot act in real time. Bottom line: I think we are at war. I think we are at war with an enemy who would kill us all if he could, and every war America has been in we have recognized the difference between fighting crime and fighting a war. If you believe, as I do, we are at war, those who aid our enemies are not going to be treated as if they robbed a liquor store. They are going to be treated as the military threat they are.

Mr. GRAHAM. If I can add, let me tell the Senator about imminent threat and military law. In Iraq we had disabled terrorist insurgents. There was a big debate in the Marine Corps because under military law when a lawful combatant, a person in uniform, has been disabled and it does not present an imminent threat, we don't have the ability to shoot them. OK. The terrorists in Iraq put IEDs on wounded belligerents, unlawful enemy combatants. So the Marine Corps wrestled very long and hard with the rules of engagement. If you come upon somebody who is wounded, apparently was disabled, under what circumstances could you use lethal force because they may be booby-trapped. To the Marine Corps' credit, they came up with a balance between who we are--we just don't shoot even our enemies who are helpless and wounded--and the ability for force protection. Here is what I would say about the circumstance in question. The process of determining who an enemy combatant is has always been a military process. It is not a congressional debate. Our committees don't get a list of names and we vote on whether we think they are enemy combatants. Courts don't have trials over who is an enemy combatant. If there is a question about enemy combatant status under the Geneva Conventions, you are entitled to a single hearing officer and that is all. In World War II, there were a lot of people captured in German uniform who claimed they were made to wear the uniform by the Germans. All of them had a hearing on the battlefield by a single officer. It has been long held by military law it is a military decision, not judicial decision or legislative decision, to determine the enemy of the nation. So President Obama has taken this far beyond what was envisioned. This administration has a very elaborate process to determine who should be determined to be an enemy combatant. I think it is thorough. I think it has many checks and balances. As much as I disagree with this President on many issues, I would never dream of taking that right away from him because he is the same person, the Commander in Chief, whoever he or she may be in the future, that we give the authority to order American citizens in battle where they may die. He has the authority to pick up a phone, Senator McCain, and say you will launch today, and you may not come back. I cannot imagine a Congress who is OK with the authority to order an American citizen in battle--we don't want to take that away from him, I hope--that is uncomfortable with the same American determining who the enemy we face may be. As to American citizens, here is the law. If you collaborate with al- Qaida or their affiliates and you are engaged in helping the enemy, you are subject to being captured or killed under the law of war. What is an imminent threat? The day that you associate yourself with al-Qaida and become part of their team, everywhere you go and everything you do presents a threat to the country. So why do we shoot people walking down the road in Pakistan? They don't have a weapon. There is no military person in front of them who is threatened. The logic is that once you join al-Qaida, you are a de facto imminent threat because the organization you are supporting is a threat. For someone to suggest we have to let them walk down the road, go pick up a gun and head toward our soldiers before you can shoot them is not very healthy for the soldier they are trying to kill and it would be a total distortion of law as it exists. Back here at home, and I will conclude----

Mr. GRAHAM

Mr. GRAHAM. Well, I don't know if they do or not. We have done everything we can--the three of us--to tell them what is coming our way. All I can say is that every general and admiral who has told us the same thing, I respect what they are telling us. Leon Panetta is a Democrat, but he is dead right. He has been a great Secretary of Defense. I trust their judgment. I know enough about the military budget to know if we take $600 billion out of their budget, on top of the $487 billion, plus the $89 billion, we are going to make them less able to defend our Nation, putting our men and women at risk, and that is what this debate is about. I wish to thank Senator Ayotte, who came up with an alternative to avoid this without raising taxes. My time is up. I don't know who is next, but I yield the floor.

Mr. GRAHAM. I thank the Senator from New Hampshire who authored this amendment which Senator McCain and I support. She spent a lot of time and effort trying to fix sequestration in the first year and trying to look at programs that are not as essential to the Nation, in my view, as the Department of Defense. Let me put this in perspective. I don't need a poll to tell me what I think about this. The majority leader referenced some poll out there about where the American people are. I appreciate polling. It is a tool all politicians use. I don't need one here to know where I stand. The question is, Do the people in South Carolina think I am right or wrong? I will have an election in 2014. I am certainly willing to stand before the people of South Carolina and say what we are doing in this sequestration proposal is ill-conceived, dangerous, and despicable. Let's start with the Commander in Chief. This is what Mr. Lew said, our new Treasury Secretary: Make no mistake, the sequester is not meant to be policy. Rather, it is meant to be an unpalatable option that all parties want to avoid. That was their view of sequestration. According to Bob Woodward and comments since, this idea came out of the White House. The White House thought that if we created a penalty clause for supercommittee failure called sequestration, where we would have to take $600 billion of the $1.2 trillion out of the Defense Department, that would make the supercommittee more likely to achieve a result. If we took $600 billion out of nondefense, that would put pressure on the supercommittee to get the right result. We are going to spend $45 trillion over the next decade. The next question for the country is, Could we save $1.2 trillion without destroying the Defense Department and raising taxes? Yes, we could if we tried. Put me in the camp that this is an achievable spending cut. This is not something that is unachievable. What Senator McConnell said is very important. Two-thirds of the budget, almost, is exempt from sequestration. When you hear Republicans say surely we can find $85 billion out of $3.5 trillion in spending--to my Republican colleagues, stop saying that. That is not accurate. We are not cutting $85 billion out of $3.5 trillion. We are cutting $85 billion out of about 1.3, 1.25, because the Budget Control Act took off the table two-thirds of the government from being cut. I will get to the President in a minute, but let me talk a little bit about my party, the party of Ronald Reagan, the party of peace through strength. This is the party that believes--at least we used to--the No. 1 obligation of the Federal Government, before it does anything else, is to get national security right. That was what made Ronald Reagan. That is what I believe. I don't need a poll to tell me that. I don't care if 90 percent of the people in the country said the Defense Department is not my primary concern when it comes to Federal budgeting. Count me in the 10 percent. The party of Ronald Reagan, even though it came out of the White House, this very bad idea, agreed to it. What did we agree to? We agreed to take off the table two-thirds of the Federal Government. Pell grants. My sister received a Pell grant when my parents died. It is a very important program. It helps people go to college who are low- income Americans. In 2008 it was $16.25 billion and in 2013 it is $41.57 billion. Food stamps. A lot of people need help, I understand that. The Food Stamp Program has doubled since 2008. I guess the Republican Party believes the Pell grants, food stamps, the FAA, and home mortgage interest deduction, and all this other stuff in the Federal Government should be shielded, but those who have been fighting the war that protects us all from radical Islam should be on the chopping block. Ronald Reagan should be rolling over in his grave. Shame on everybody who agreed this was a good idea on our side. I cannot tell you how disgusted I am with the concept that when it comes time to cut--because the budget politicians can't reach an agreement--we fire the soldiers and keep the politicians and every other social program intact and put half the cuts on those who are fighting the war. So the next time you go to a military base, good luck. We will look those men and women in the eye--I don't see how you could. I don't see how you could go onto a military base or see somebody in the airport, shake their hand and thank them for their service given the fact you have taken the Defense Department and made it something not very special anymore. Secretary Panetta said: After 10 years of these cuts we would have the smallest ground forces since 1940, the smallest number of ships since 1915, and the smallest Air Force in its history. This isn't like the drawdowns in the past when the potential enemy was disabled and in some way rendered ineffective. We are still confronting a number of threats in the world. It would decimate our defense. It would cripple us in terms of our ability to protect this country. It would result in the hollowing out of our forces. It would terribly weaken our ability to respond to threats in the world. It is a ship without sailors. It is a brigade without bullets. It is an airwing without enough trained pilots. It is a paper tiger. In effect, it invites aggression. A hollow military doesn't happen by accident; it comes from poor stewardship and poor leadership. I couldn't agree more. To my Democratic colleagues, we are not going to raise any more taxes to spend money on the government. The next time I raise taxes, we are going to try to get out of debt. We are $17 trillion in debt, and every time there is a crisis in this Nation you want to raise taxes to pay for the government we already have. We have enough money to run this government. We need to spend it better. To my Republican colleagues, there is not enough flexibility in the world to change the top line number. You either believe Secretary Panetta or you don't. You either believe every military commander--I don't trust everything a general tells me, but the question for me is do I trust all generals who tell me the same thing. Can all of them be wrong? It is one thing to have a dispute with a general or an admiral, but when every general and admiral tells you the same thing--and if we don't believe them, we need to fire them--we act accordingly. As to the President, you have one obligation that nobody in this body has. You are the Commander in Chief of the United States. They trust you, they need you, and your primary goal is to take care of those in uniform and their families. Mr. President, you have let them down. My party let them down, but you are different from any other politician. You are the Commander in Chief. How you could have considered this as an acceptable outcome just makes me sick to my stomach. I don't know how any Commander in Chief could have been comfortable with the idea that if the supercommittee fails, we are going to cut the military. You haven't lifted a finger in the last year to do anything about it. You finally go to a naval base down in Virginia, after the election, a few days before this kicks in. To me, this is pathetic leadership by the Commander in Chief. This is an abandonment of the Republican Party's belief in peace through strength. This is a low point in my time in the U.S. Congress. We are not going to raise taxes to fund the government. We are going to raise taxes in my construct to pay down debt and fix entitlements. I cannot tell you how ashamed I am of what we have done to those who have been busting their butts for the last 11 years, to those who have been deployed time and time again, and to their families. The thank-you you receive from your President and your Congress is we are going to put your way of life on the chopping block. God, if we can't do better than that then all of us should be fired--politicians.

Mr. GRAHAM

Mr. GRAHAM. Madam President, I have 5 minutes. Would the Presiding Officer let me know when 4 minutes has elapsed.

Mr. GRAHAM. I thank the Presiding Officer. While they were killing our soldiers in Iraq. He refused to sign a letter to President George W. Bush, he said, to engage in direct unconditional comprehensive talks with the Government of Iran. He was for that, telling Bush to do it unconditionally. He voted against comprehensive Iranian sanctions. He was one of two Senators who failed to sign a letter to President Clinton showing unconditional support for the State of Israel. I would argue that this man's record, when it comes to Iran and Israel, and statements he has made, puts him well out of the mainstream. The Washington Post was right when they said he is on the fringe. And now is not the time to have somebody on the fringe serving as Secretary of Defense when it comes to Iran and Israel. For that reason, I will vote no. I will oppose cloture because debate should continue. When we get back, unless there is a real bombshell, I will vote for cloture and move on to his nomination. I yield the floor.

Mr. GRAHAM. We reported Senator Hagel's nomination out at 5 o'clock. I would argue that the hearing was interesting, I think at times unnerving. Here it is Thursday. So there are some questions being asked by our colleagues that I think are legitimate. Some are kind of creating a new standard. I am confident, in the next week, unless there is some explosive bombshell that I cannot quite get my hands around, I intend to vote for cloture and against the nomination. I am one, along with Senator McCain, who believes filibustering should be a rare thing. But what we are doing is saying the debate time for Senator Hagel is not yet over, since he just got reported out Tuesday at 5 o'clock. Put yourself in the shoes of the colleagues who are not on this committee. This has been a very controversial nominee. I will say the reason we voted for Senator Kerry on the same day he got reported out of committee and he got 97 votes, that all of us felt comfortable with the nomination. There are very uncomfortable things about this nomination. But having said that, I do believe that unless there is something new that comes out, we should proceed to a vote, up or down. I am willing to invoke cloture because I think, as Senator McCain said, the week time period would give us a chance to answer these questions. Let me inform my colleagues that just about an hour ago, there was a press report that a speech was given by Senator Hagel--I can't remember the group. But one of his aides posted--based on his notes what he had said the next day on a Web site. During that speech, according to this aide, Senator Hagel said the U.S. State Department was an extension of the Israeli Government. Things such as that are unnerving. There is at least one speech he gave that he did not report that we think there is a copy of. We should get it in the next few days. That is why I would oppose cloture today, vote for it after the recess.