Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. I say to my good friend from California, you are a patriot. You are here for all of the right reasons. We just have a strong disagreement about where we stand as a nation. Nobody interrupted the Christmas Day Bomber plot. The people on the plane attacked the guy before he could blow it up. There was no FBI agent there. There was no CIA agent there. We are lucky, thank God, the passengers did it. So there is nothing to suggest that our intelligence community does not need as many tools as possible because the guy got through the system. We are lucky as hell the bomb did not go off.

Mr. GRAHAM. The Times Square Bomber, nobody interrupted that plot. The guy did not know how to set the bomb off. We are lucky as hell the bomb did not go off. So do not stand here and tell me that we have got it right, because we have not. And here is the point: We never will always get it right. I am not saying that as criticism. Because we are going to get hit again. We cannot be right and lucky all of the time. To those who are trying to defend us, the one thing I do not want to do is micromanage the war. Here is the political dynamic. You have got people on the left who hate the idea of saying ``the war on terror.'' If you left it up to them, they would never, ever use the military, they would always insist that the law enforcement model be used because they do not buy into the idea of we are at war. So you have got one part of the country, a minority, that wants to criminalize the war. If we ever go down that road, woe be unto us. You have got people on my side--the Senator is right about this. They have gone the other way. If you left it up to people on my side, there would be a law passed tomorrow that you could never, ever read a Miranda right to a terrorist caught anywhere in the United States. I do not agree with that way of thinking. To my fellow members of the U.S. military, you have not failed at Guantanamo Bay. You have not failed. Because you sentenced someone to 9 months to me validated the fact that those who are taking an oath to defend us, when they are put in a position of passing judgment on people accused of trying to kill us all, will be fair. So when you say a military commission tribunal at Guantanamo Bay gave a 9-month sentence and that is a failure, I say, as a proud member of the military, I am proud of the fact that you can judge a case based on the facts and the law and not emotion. So I am very proud of the fact that military commissions can do their job as well as the civilian courts. I say to our Federal prosecutors and our Federal juries and our Federal judges, I am proud of you too. We should be using an ``all of the above'' approach. There are times that Federal courts are better than military commissions. There are times that military commissions are better than Federal courts. The 1032 language has nothing to do about what venue you choose. This provision is simple in its concept. It is a compromise between those on the left who say you must criminalize this war; we are not at war; you are going to have to use the law enforcement model; you can neither gather military intelligence, who do not believe that the military has a role on the homeland to gather intelligence, which is an absurd concept, never acknowledged before in any other war. When American citizens helped the Nazis, collaborated with Nazis to engage in sabotage, not only were they held as enemy combatants during World War II, they were tried by military commissions. We no longer allow American citizens to be tried by military commissions. I think that is a reasoned decision. But what we do not want to do is prevent our intelligence community from holding an al-Qaida affiliated member and gathering intelligence. If an American citizen went to Pakistan and got radicalized in a madrasah and came back to the United States and landed at Dulles Airport and got a rifle and started shooting everyone on the Mall, I believe it is in our national security interests to give our intelligence community the ability to hold that person and gather intelligence about: Is another guy coming? What did you do? What future threats do we face? And not automatically Mirandize him. But if they choose to Mirandize him, they can. In this legislation, we presume military custody, but it can be waived. That is the point I am trying to make. Senators Levin and McCain have struck a balance between one group that thinks the military can only be used and nobody else and another group that says we can never use the military. We have that balance. If we upset this balance, we are going to make us not only less safe, the Congress is going to do things on our watch that we have never done in any other war. A word of warning to my colleagues: If we had a bill on the floor of the Senate saying we are not going to read Miranda rights to terrorists who are trying to kill us all, 70 percent of the American people would say: Heck yes. I don't want this bill to come up. I believe the people who are best able to judge what to do is not any politician, they are the experts in the field fighting this war. We are saying we can waive the presumption of military custody, we can write the rules to waive it, but we believe we should start with that construct. Let me read to you what the general counsel for the Department of Defense said today: Top national security lawyers in the Obama administration say U.S. citizens are legitimate military targets when they take up arms with al-Qaida. The government lawyers, CIA counsel Stephen Preston, and Pentagon counsel Jeh Johnson, did not address the Awlaki case. But they said U.S. citizens don't have immunity when they are at war with the United States. The President of the United States was right to target this citizen when he went to Yemen to help al-Qaida. I am glad we took him out. So would it not be absurd that we can kill him, but we cannot detain him? If he came here, we cannot question him for military intelligence gathering. So this is a compromise between two forces that are well intended but will take us into a bad policy position: the hard left who wants to say the military has no role in protecting us on the homeland and some people on my side who say the law enforcement community cannot be involved at all. So Senator Levin and Senator McCain have constructed a concept that provides maximum flexibility, gives guidance to the law enforcement community, starts with a presumption that I like and can be waived and will not impede an ongoing investigation. That is the part of the bill that was changed. To my good friend from California, we have the balance we have been seeking for 5 years. To me, this is what we should be doing as a nation--creating legislation that allows those who are fighting the war the tools they need. In this case, we start with the presumption of military custody because that allows us to gather intelligence. Under the domestic criminal law, we cannot hold someone and ask them about future attacks, because we are investigating a crime. Under military law, when somebody joins the enemy and engages in an act of war against the Nation, our military intelligence community can hold that person for as long as it takes to find out what they know about future attacks. If the guy gets off of plane and starts killing people at the mall, when we grab him and he says I want my lawyer, we can say: You are not entitled to a lawyer. We are trying to gather intelligence. At the end of the day, use military commission trials, use Federal courts, and read Miranda rights when we think it makes sense; but we don't have to because the law allows us to hold people, under military custody, who represent a military threat. The law allows us to kill American citizens who have joined al-Qaida abroad. That has been the law for decades. I hope this compromise that Carl Levin and John McCain have crafted--and I say to Carl Levin, I have been in his shoes. When John and I were on the floor saying don't waterboard people--gather intelligence but don't become like the enemy--a lot of Americans believed we should waterboard these people, do whatever we need to do because they are so vicious and hateful. But John McCain knows better than anybody in this body what it is like to be tortured. I wish to protect America without changing who we are. It has always been the law that when an American citizen takes up arms and joins the enemy, that is not a criminal act; that is an act of war. They can be held and interrogated about what they did and what they know because that keeps us safe. If we take that off the table, with homegrown terrorism becoming the greatest threat we face, we will have done something no other Congress has done in any other war.

Mr. GRAHAM. Madam President, I thank Senators Levin and McCain for drafting a compromise that I think speaks to the best of this country. To my colleagues, please don't upset this delicate balance. If you do, you will open a Pandora's box.

Mr. GRAHAM. Yes. It is not only a presumption that can be waived, based on what the experts in the field think is necessary; the waiver provision is incredibly flexible. You do not have to stop an interrogation to get the waiver. The executive branch can write the procedures. Not only is it a presumption that can be waived, it is also limited to a very narrow class of people. It has nothing to do with somebody buying gold. I don't know about Senator Levin, but people call me, who are on the right, saying: Don't let Obama put me in jail because I think he is a socialist or are you going to be able to grab me because of my political views? I tell my staff to be respectful and read them the language. The only people who need to worry about this provision are a very narrow group of people who are affiliated with al- Qaida, engaged in hostile acts.

Mr. GRAHAM. Is this a fair statement: If it was your goal to prevent military commissions from ever being used, you didn't get your way in this legislation. If it was your goal to mandate that military commissions are the only venue to be used, you didn't get your way in this legislation because this legislation doesn't speak to that issue at all.

Mr. GRAHAM. Not only would I agree that 1032 and 1031--the compromise language about statement of authority to detain and military detaining as a presumption--has nothing to do with the choice of venue, there are people on my side who are champing at the bit to prohibit civilian courts from being used in al-Qaida-driven cases; is the Senator familiar with that?

Mr. GRAHAM. I am of the view that we are overly criminalizing the war. I don't want to adopt that policy. There is nothing in this language that has anything at all to do with how you try somebody and what venue you pick. I am in the camp--and I think Senator Levin is too--of an all-of-the-above approach. I am proud of our civilian courts and our military courts. The Senator and I are probably not in the best position to determine that. Let's let the experts do it.

Mr. GRAHAM. Does the Senator agree with me that in prior wars American citizens have been involved in aiding the enemy of their time?

Mr. GRAHAM. Will the Chair warn me when I use 2 minutes.

Mr. GRAHAM. How much time do we have?

Mr. GRAHAM. If I may just add--not only is that the effect, that would be a change in law because the Senator agrees with me that in other conflicts, prior to the one we are in today, American citizens, unfortunately, have been involved in aiding the enemy; is that correct?

Mr. GRAHAM. Let's talk about the world in which we live today.

Mr. GRAHAM

Mr. GRAHAM. Absolutely.

Mr. GRAHAM. And to conclude this colloquy--I enjoyed the discussion-- I am not saying our law enforcement or military intelligence community cannot read someone their Miranda rights. I will leave that up to them. I am saying Congress should not take off the table the ability to hold someone under the law of war to gather intelligence, and that is what we are about to do if this passes. To those who believe that homegrown terrorists are a threat now and in the future, if you want to make sure we can never effectively gather intelligence, we only have one option, then that is what we are about to impose on the country.

Mr. GRAHAM. So the issue is pretty simple. Our courts at the highest level--the Supreme Court has acknowledged that the executive branch has the legal authority to hold an American citizen who is collaborating with an enemy as an enemy belligerent to gather intelligence to protect the rest of us; they recognize that power of the executive. Does the Senator agree with me that the amendment of Senator Feinstein would be a situation where the Congress does not recognize that authority and would actually try to change it?

Mr. GRAHAM. Simply stated, when the American citizens in question decided to give aid and comfort to the Nazis, I am very glad they were allowed to be held by the military and interrogated about the plot and what they knew, because intelligence gathering is the best way to keep us safe. I would be absolutely devastated if the Senate, for the first time in 2011, denied the ability of our military and intelligence community to interrogate somebody who came back from Pakistan and started killing people on the Mall--that we could no longer hold them as an enemy combatant and find out what they did and why they did it; that we would have to treat them as a common criminal and read them their Miranda rights. That is not the law. If that becomes the law, then we are less safe because I tell you, as we speak, the threat to our homeland is growing. Homegrown terrorists are becoming the threat of the 21st century, and now is not the time to change the law that has been in place for decades. I do hope people understand what this means. It means we would change the law so that if we caught somebody in America who went overseas to train and came back home, an American citizen who turned on the rest of us, no longer could we hold them as an enemy combatant and gather intelligence. That, to me, would be a very dangerous thing to do. I ask the Senator, who determines what the Constitution actually means; is it the Congress or the Supreme Court?

Mr. GRAHAM. The Hamdi case cited In re Quirin for the proposition that an American citizen who provides aid, comfort or collaboration with the enemy can be held as an enemy combatant. The In re Quirin case dealt with an American citizen helping the Nazis in New York. The Padilla case involves an American citizen, collaborating with al-Qaida, captured in the United States.

Mr. GRAHAM. Yes.

Mr. GRAHAM. Exactly. I would add, and get Senator Kyl's comment. Wouldn't it be an absurd result if you can kill an American citizen abroad--Awlaki--whatever his name was--the President targeted him for assassination because he was an American citizen who went to Yemen to engage in an act of terrorism against the United States. The President went through an Executive legal process, targeted him for assassination and a drone attack killed him and we are all better off. Because when an American citizen helps the enemy, they are no longer just a common criminal; they are a military threat and should be dealt with appropriately. But my point is, wouldn't it be an odd result to have a law set up so that if they actually got to America and they tried to kill our people on our own soil, all of a sudden they have criminal status? I would argue that the homeland is part of the battlefield, and we should protect the homeland above anything else. So it would be crazy to have a law that says if you went to Pakistan and attacked an American soldier, you could be blown up or held indefinitely, but if you made it back to Dulles Airport, you went downtown and started killing Americans randomly, we couldn't hold you and gather intelligence. The Supreme Court, in 1982, said that made no sense. If a Senator, in 1942, took the floor of the Senate and said: You know those American citizens who collaborated with the Nazis, we ought not treat them as an enemy, they would be run out of town. I am just saying, to any American citizen: If you want to help al- Qaida, you do so at your own peril. You can get killed in the process. You can get detained indefinitely. When you are being questioned by the CIA, the FBI or the Department of Defense about where you trained and what you did and what you know and you say to the interrogator: I want my lawyer, the interrogator will say: You don't have a right to a lawyer because you are a military threat. This is not ``Dragnet.'' We are fighting a war. The Supreme Court of the United States has clearly said an American citizen who joins with the enemy has committed an act of war. Senator Feinstein, who is the chairman of the Intelligence Committee, is a very good Senator. But her concerns about holding an American citizen under the law of war, her amendment, unfortunately, would change the law. Does Senator Kyl agree with that?

Mr. GRAHAM. In the Military Commission Act of 2009, we prohibited American citizens from being tried by military commissions. I am OK with that. But what we have not done--and I would be very upset if we chose to do that--is take off the table the ability to interrogate an American citizen who has chosen to help al-Qaida regarding what they know about the enemy and what intelligence they may provide us to prevent a future attack. Since homegrown terrorism is a growing threat, under the current law, if an American citizen became radical, went to Pakistan and trained with al-Qaida or an affiliated group, flew back to Dulles Airport, got off the plane, got a rifle, went down to the Mall right behind us and started shooting people, does the Senator agree with me that under the law as it exists today, that person could be held as an enemy combatant, that person could be interrogated by our military and intelligence community and we could hold them as long as necessary to find out what they know about any future attacks or any past attacks and we don't have to read them their Miranda rights?

Mr. GRAHAM

Mr. GRAHAM. I ask unanimous consent to enter into a colloquy, and if the Chair could let me know when 10 minutes has expired.

Mr. GRAHAM

Mr. GRAHAM. That is correct.

Mr. GRAHAM. Yes, it is.

Mr. GRAHAM. Right. What we have done in the Military Commissions Act in 2009, civilians, American citizens cannot be tried in military commissions. It can only go to Federal court. But the point we are trying to make is it has been long held in this country that when an American citizen abroad or on the homeland decides to help the enemy, we have the right to hold them, not under a criminal theory but under the law of war because their effort to help the enemy, I say to my good friend from Illinois, is an act of war against their fellow citizens. This is so important. If we deny our country the ability to hold and interrogate an American citizen who has joined forces with al-Qaida, we lose the ability to find out the intelligence they may have to keep us safe. If the choice is that an American citizen who chooses to collaborate with al-Qaida must be put in the criminal justice system, meaning they will have criminalized the war, the Congress will have restricted executive branch power. To make it clear--please understand, I say to Senator Feinstein--the courts of the United States have acknowledged that the executive branch can hold an American citizen as an enemy combatant when they engage and assist the enemy. The courts of the United States recognize the power of the executive to do that as Commander in Chief. The question for us is, Do we want to be the first Congress in the history of the Nation to say to the executive branch that they no longer have that power given to them by the courts, inherent with being Commander in Chief, to protect us against enemies foreign and domestic. I argue to my colleagues, given the threats we face from homegrown terrorism, from al-Qaida groups and their affiliates, that now is not the time to change the law preventing our military intelligence community from holding an American citizen who is helping the enemy on the homeland and prevent them from gathering intelligence. I argue that the reason no other Congress has done this in past wars is because it didn't make a lot of sense. I argue that if a Senator came to the floor of the Senate during World War II and suggested that an American citizen who sided with the Nazis to sabotage American interests here could not be held as an enemy combatant, they would have been run out of town because most citizens would say anybody who helps the enemy--citizen or not--is a threat to our country. Unlike other wars, we do have due process that exists today that never existed before. No Nazi soldier was able to go to a Federal court and say: Judge, let me go. The reason I have agreed, and the courts have applied habeas review to enemy combatant determination, is this is a war without end. How does one become an enemy combatant? The executive branch makes the accusation. They have to follow the statutory criteria. This is a limited group of people in a limited classification. American citizen or not, if someone falls into this group, they can be held as an enemy combatant. But the executive branch has to prove to an independent judiciary that the case is sufficient, and under the law the judge has to agree with the military; we have an independent judiciary looking over the shoulder of the military in this war, unlike at any other time. So the government has to prove to a Federal judge, by a preponderance of the evidence, that this person is, in fact, an enemy combatant. If the judge disagrees, they are let go. If the judge agrees, we hold the enemy combatant, and they get an annual review process as to whether future detention is warranted. So we have robust due process. But please understand what the Feinstein amendment is about. It is about the Congress of the United States, the Senate of the United States, for the first time in American history, restricting the ability of the executive branch to hold an American citizen who is collaborating with the enemy and question them under the law of war. If we do that to ourselves, we will regret it. I don't want to be in the first Congress, in the times in which we live, to change the law to deny our intelligence community and the Department of Defense the ability to deal with American citizens who have decided on their own to become part of al-Qaida. The day one decides they are going to side with al-Qaida, they have committed an act of war against the rest of us, and the courts acknowledge they can be held as an enemy combatant, not a common criminal. The question for the Congress is, Do we want to undo that in the times in which we live? I plead with everybody in this body, get yourself educated about what the law is today. I ask Senator Levin, we have done nothing to change the law in this bill; is that correct?

Mr. GRAHAM. Under the law as it exists today, an American citizen can be held as an enemy combatant. The question we are debating on the floor--Senator Feinstein is saying that in the future an American citizen who is deemed to have collaborated with al-Qaida or the Taliban or others could no longer be held as an enemy combatant for an indefinite period, which means we cannot gather military intelligence as to what they know about past, present, and future attacks. I argue we would be the first Congress in history to bring about that result and that now would be the worst time in American history to do that. If we cannot hold a citizen who is suspected of assisting al- Qaida under the law of war, the only option is to put them in the criminal justice system. Then we cannot hold them indefinitely, and we cannot ask about present, past or future attacks because now we are investigating a crime, nor should we be allowed to do that under criminal law. The point is that when a person assists the enemy, whether at home or abroad, they have committed an act of war against our citizens, and the Supreme Court has acknowledged that the executive branch has the power to hold them as an enemy combatant. The question is, Are we going to change that and say in the 21st century, in 2011, every American citizen who chooses to cooperate with al-Qaida can no longer be interrogated for intelligence-gathering purposes by our Department of Defense and our intelligence community; that they have to go into the criminal justice system right off the bat, where they are given a lawyer and are read their Miranda rights? If we do that, we are going to deny ourselves valuable intelligence. We would be saying to our citizens that we no longer treat helping al-Qaida as an act of war against the rest of us. If one suggested during World War II that someone who collaborated with the Nazis should be viewed as a common criminal, most Americans would have said: No, they turned on their fellow citizens and they are now part of the enemy. All I want to do is keep the law as it is because we need it now more than ever. I am sensitive to due process. There is more due process in this war. Every enemy combatant being held at Guantanamo Bay, captured in the United States, has to go before a Federal judge. The military has to prove their case to a Federal judge. There is an annual review process. That makes sense to me. What doesn't make sense to me is for this country and this Senate to overturn a power that makes eminent sense when we need it the most. It doesn't make sense to set aside a Supreme Court case that acknowledges that when an American citizen affiliates with al-Qaida, that is an act of war against the rest of us and to criminalize that conduct, denying us the ability to gather intelligence. If we go down that road, we have weakened ourselves as a people, without any higher purpose. To those American citizens thinking about helping al-Qaida, please know what will come your way: death, detention, prosecution. If you are thinking about plotting with the enemy inside our country to do the rest of us harm, please understand what is coming your way: the full force of the law. The law I am talking about is the law of armed conflict. You subject yourself to being held as an enemy of the people of the United States, interrogated about what you know and why you did what you did or planned to do, and you subject yourself to imprisonment and death. The reason you subject yourself to that regime is because your decision to turn on the rest of us and help a group of people who would destroy our way of life is not something we idly accept. It is not a common, everyday crime. It is a decision by you to commit an act of aggression against the rest of us. I hope and pray this Senate will not, for the first time in American history, deny our ability to interrogate and find intelligence from those citizens who choose to associate with the enemy on our soil, because if we do that, it will be a deviation from the law that has existed at a time when we need that law the most.