Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. The Senator has been a U.S. attorney; is that correct?

Mr. GRAHAM. Does he agree with me that we need a legal system that understands the difference between fighting a war and fighting a crime?

Mr. GRAHAM. Does the Senator agree that our criminal system is not focused on that?

Mr. GRAHAM. Does criminal law focus on intelligence gathering?

Mr. GRAHAM. Madam President, I ask unanimous consent for 1 more minute.

Mr. GRAHAM. Does my colleague agree with me that the recidivism rate of people we are releasing from Guantanamo Bay has gone up?

Mr. GRAHAM. I thank the Senator.

Mr. GRAHAM. Let's just logically walk through this. In every war in which America has been involved, American citizens unfortunately have chosen at times to side with the enemy. Our courts say the executive branch can hold them as enemy combatants, and the purpose is to gather intelligence. Does the Senator agree with that?

Mr. GRAHAM. Does the Senator agree that holding an enemy prisoner-- one of the benefits of capturing someone is gathering intelligence?

Mr. GRAHAM. Does the Senator agree it is good policy to hold and interrogate someone who is helping al-Qaida to find out what they know?

Mr. GRAHAM. Does the Senator agree that in past wars American citizens, unfortunately, have collaborated with the enemy?

Mr. GRAHAM. Does he agree with me that in World War II some American citizens agreed to assist the Nazis and were held as enemy combatants?

Mr. GRAHAM. That is correct, and we have been working on that together for 5 years. To respond, if I may, because I think it is a very good discussion, does the Senator agree with me that under the law that exists today, in terms of the Supreme Court rulings, an American citizen can be held as an enemy combatant?

Mr. GRAHAM. But what Senator Feinstein is proposing is that no longer do we have the option of holding the American citizen as an enemy combatant to gather intelligence, and we don't have the ability to hold them for a period of time to interrogate them under the law of war. What I would suggest to the Senator is that the information we receive from Guantanamo Bay detainees has been invaluable to this Nation's defense. To those who believe it was because of waterboarding, I couldn't disagree more. The chief reason we have been able to gather good intelligence at Guantanamo Bay is because of time. The detainee is being humanely treated, but there is no requirement under military law to let the enemy prisoner go at a certain period of time. If you take away the ability to hold an American citizen who has associated himself with al-Qaida to be held as an enemy combatant, you can no longer use the technique of interrogating him over time to find out what he knows about the enemy. You are worried about prosecuting them. I am worried about finding out what they know about future attacks. They are not consistent. You can prosecute somebody. That is part of the law. What the Senator is taking away from us is the ability to gather intelligence. Our criminal justice system is not set up to gather intelligence.

Mr. GRAHAM. Does the Senator agree that the criminal justice system is not set up to gather military intelligence?

Mr. GRAHAM. My point to my colleagues--and I enjoyed this discussion--is that if you take the ability to hold someone as an enemy combatant off the table, you cannot interrogate them for intelligence- gathering purposes, and if you put a time limit on how long you can hold them, you defeat the purpose of gathering intelligence. Does the Senator agree with that?

Mr. GRAHAM. Does my colleague also agree that in this war, we provide a due process unlike any other war in the past?

Mr. GRAHAM. Does the Senator agree with me that every enemy combatant, citizen other otherwise, held at Guantanamo Bay or captured in the United States has their day in Federal court through habeas proceedings?

Mr. GRAHAM. Without water boarding them?

Mr. GRAHAM. We never had, in the history of other wars, a Federal judge determining whether the military has the ability to determine whether someone is an enemy combatant, but we have that in this war. Does the Senator agree with that?

Mr. GRAHAM. And they can be treated as an enemy combatant in accordance with our laws?

Mr. GRAHAM. I will be glad to yield to my friend from Illinois. Let me just try to set the stage the best I can. And I would love to have Senator Levin weigh in and anyone else. The law, as it exists today, to my good friend from Illinois, has long held that when an American citizen collaborates with the enemy, that is an act of war, not a common crime. The constitutional review provided by the Supreme Court in cases involving American citizens collaborating with the enemy has said that we view that as an act of war and we apply the law of war. So our Supreme Court, in the Hamdi case just a few years ago, upheld the ruling in the In re Quirin case, which went back to World War II. In that case, we had American citizens assisting Nazi saboteurs. The Supreme Court ruled that citizenship status does not prevent someone from being treated as part of the enemy force when they choose to join the enemy. Why is this important? My good friend from Illinois is an intel officer. Intelligence gathering is part of war. An enemy combatant can be interrogated by our military intelligence community without Miranda rights. They can be held for an indefinite period of time to be questioned about past, present, and future attacks. The Supreme Court has legitimized that process because the individual in question was an American citizen captured in Afghanistan. He pled to the Court: You cannot hold me as an enemy combatant because I am an American citizen. The Court said: No, there is a long history in this country of having American citizens who collaborate with the enemy to be held as an enemy combatant. Unfortunately, in every war we have engaged in, American citizens have provided aid and comfort to the enemy. In World War II we had American citizens assisting Nazi saboteurs.

Mr. GRAHAM. Does the Senator agree that the government has to prove to an independent judge by a preponderance of the evidence that the person is a member of al-Qaida involved in hostilities?

Mr. GRAHAM

Mr. GRAHAM. I think that is important for us to understand. Does the Senator agree with me that when we look at the war on terror, the United States is part of the battlefield?

Mr. GRAHAM. So let's just go with that thought for a moment. Let's say our intelligence community, our law enforcement community, and our military/Department of Defense are all monitoring al-Qaida threats at home and abroad; does the Senator agree with that?