Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. My good friend from Connecticut is aware there is a proposal pending on the floor of the Senate that would say, for the first time in American history, if a U.S. citizen decides to collaborate with an enemy, they cannot be held as an enemy combatant. I think the Senator is very familiar with the history of the law in this area. Unfortunately, during the entire history of our country, during other conflicts, American citizens have, on occasion, collaborated with the enemy, one of the most famous cases being the In re Quirin case, where an American citizen in New York and other places was helping Nazi saboteurs try to sabotage America. In that case, the Supreme Court ruled an American citizen could be detained as an enemy combatant because the decision to collaborate with the enemy was a decision to go to war with their country, not a common crime, and that the law to be applied was the law of war. I am certain the Senator is familiar with the Hamdi case, where an American citizen seized in Afghanistan was allowed to be held as an enemy combatant. The Hamdi decision reaffirmed In re Quirin, and the Padilla case involved an American citizen captured in the United States accused of collaborating with al-Qaida. All of those cases reaffirm the law of the land is, if someone chooses to help al-Qaida, they have committed an act of war against their fellow citizens, and they can be held as an enemy combatant for an indeterminate period of time so that we can gather intelligence about what they may have done or about what they know about the enemy. Does the Senator from Connecticut agree that now would be a very bad time for the Congress to say, for the first time in American history, if an American citizen decides to help al- Qaida attack us, to kill us, our military can't hold them as an enemy combatant and find out what they were up to?

Mr. GRAHAM. Perhaps the Senator will yield for a question?

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 that our criminal system is not focused on that?

Mr. GRAHAM. Does the Senator agree with me that if this Congress chose to change the law and say that an American citizen who has associated himself with al-Qaida cannot be interrogated for intelligence-gathering purposes, we would be less safe?

Mr. GRAHAM. Does my colleague agree with me that makes perfect sense, that an American who helps the Nazis has committed an act of war, not a common crime?

Mr. GRAHAM. Does he agree with me that our courts understand that when an American citizen collaborates with an enemy of our Nation, that is an act of war by that citizen against his own country and the law of war applies, not domestic criminal law?

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

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

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?

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I would like to rise in support of the statements made by Senators McCain and Levin. I do not have that good a feeling about Iraq, quite frankly. I am not very confident at all that the worst is behind us. I am hopeful that we can withdraw our troops and that nothing bad will happen in Iraq, but, as Senator Levin just described, the implications of repealing the authorization to use military force are wide, varied, and uncertain. What do you get by repealing this? You can go back home and say you did something that--I do not know what you get. I mean, I really do not. I do not know what we gain as a nation by taking the contingencies of using military force off the table as we try to wind down. I just don't see the upside, quite frankly. I know the reality of what our troops face and why the Department of Defense would want to continue to have this authorization until we get Iraq behind us. At the end of the day, 4,400 people plus have lost their lives, thousands have been wounded and maimed--not counting the Iraqis who have lost their lives and have been wounded and maimed trying to create order out of chaos. As we move forward as a body, I don't see the upside to those who are doing the fighting and who have to deal with complications of this long, protracted war by us repealing the authorization at a time when it may be necessary to have it in place. If there is any doubt in your mind about what Senators Levin and McCain say and what the Department of Defense says about the need for this to be continued, I ask you to give the benefit of the doubt to the DOD. You don't have to; I just think it is a wise thing to do because what we gain by repealing it--I am not sure what that is in any real sense. By having the authorization in place for a while longer, I understand how that could help those who are fighting in Iraq and the follow-on needs that come as we transition. I ask the body to be cautious, and if you have any doubt that Senator McCain's or Senator Levin's concerns are real, I think now is the time to defer to the Department of Defense and give them the tools they need to finish the operations in Iraq. I will close with this one thought. The vacuum created by the fact that we will not have any troops in 2012 can be filled in a very bad way if we don't watch it. The Kurd-Arab problem could wind up in open warfare. The Iranian influence in Iraq is growing as we speak. We do have troops and civilian personnel in the country, and we will have a lot next year. I think out of an abundance of caution we ought to leave the tools in place that the Department of Defense says they need to finish this out. I urge my colleagues to err on the side of giving the Department of Defense the authorization they need to protect those who will be left behind.

Mr. GRAHAM. Mr. President, section 1031 is a congressional statement of authority of already existing law. It reaffirms the fact this body believes al-Qaida and affiliated groups are a military threat to the United States and they can be held under the law of war indefinitely to make sure we find out what they are up to; and they can be questioned in a humane manner consistent with the law of war. Section 1032 says if you are captured on the homeland, you will be held in military custody so we can gather intelligence. That provision can be waived if it interferes with the investigation. These are needed changes. These are changes that reaffirm what is already in law.

Mr. GRAHAM

Mr. GRAHAM. Ten minutes. Is that too much? Five minutes.

Mr. GRAHAM. Would the Senator yield for a question?

Mr. GRAHAM. Let me start with my good friend from Colorado. I respect the Senator; I know his concerns. I don't agree. I can remember being told by the Bush administration: We don't need the Detainee Treatment Act. Everybody said we didn't need it, but they were wrong. I remember being told by the Vice President's office during the Bush administration: It is OK to take classified evidence, show it to the jury, the finder of fact, and not share it with the accused, but you can share it with his lawyer. How would you like an American soldier tried in a foreign land, where they are sitting there in the chair wondering what the jury is talking about and can't even comment to their own lawyer about the allegations against them? I have been down this road with administrations and we worked in a bipartisan fashion to change some things the Bush administration wanted to do and I am glad we did it. We are working in a bipartisan fashion to change some things this administration is doing, and I hope we are successful, because if we fail, we are all going to be worse for it. Here are the facts: Under this provision of mandatory military custody, for someone captured in the United States, if they are an American citizen, that provision does not apply to them. But here is the law of the land right now: If they are an American citizen suspected of joining al-Qaida, being a member of al-Qaida, they can be held as an enemy combatant. The Padilla case in South Carolina, where the man was held 5 years as an enemy combatant, went to the Fourth Circuit Court of Appeals, and here is what that court said: You can interrogate that person in an intelligence-gathering situation. The only thing you have to do is provide them a lawyer for their habeas appeal review. So here are the due process rights: If our intelligence community or military believe an American citizen is suspected of being a member of al-Qaida, the law of the land the way it is today, an American citizen can be held as an enemy combatant and questioned about what role they play in helping al-Qaida, and they do get due process. Everybody held as an enemy here, at Guantanamo Bay, captured in the United States, goes before the Federal judge, and the government has to prove, by a preponderance of the evidence, that the person is, in fact, an enemy combatant. There is due process. We don't hold someone and say: Good luck. They have to go before a judge--a Federal court--and prove their case as the government. Here is the question for the country. Is it OK to hold, under military control, an American citizen who is suspected of helping al- Qaida? You had better believe it is OK. My good friend from Colorado said this repeals the Posse Comitatus Act. The Posse Comitatus Act is a prohibition on our military being used for law enforcement functions, and it goes back to reconstruction. This is the central difference between us. I don't believe fighting al-Qaida is a law enforcement function. I believe our military should be deeply involved in fighting these guys at home and abroad. The idea of somehow allowing our military to hold someone captured in the United States is a repeal of the Posse Comitatus Act, you would have to conclude that you view that as a law enforcement function, where the military has no reason or right to be there. That is the big difference between us. I don't want to criminalize the war. To Senator Levin, thank you for helping us this time around craft a bipartisan solution to a very real problem. The enemy is all over the world and here at home. When people take up arms against the United States and are captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity? The only way we can do that is hold them in military custody, and this provision can be waived. It doesn't apply to American citizens. But the idea that an American citizen helping al-Qaida doesn't get due process is a lie. They go before a Federal court and the government has to prove they are part of al-Qaida. Let me ask this to my colleagues on the other side. What if the judge agrees with the military or the intelligence community making the case? Are you going to require us to shut down the intelligence-gathering process, read them their rights, and put them in Federal court? That is exactly what you want, and that will destroy our ability to make us safe. If an American citizen is held by the intelligence community or the military and a Federal judge agrees they were, in fact, a part of the enemy force, that American citizen should be interrogated to find out what they know about the enemy, in a lawful way, and you should not require this country to criminalize what is an act of war against the people of the United States. They should not be read their Miranda rights. They should not be given a lawyer. They should be held humanely in military custody and interrogated about why they joined al-Qaida and what they were going to do to all of us. So this provision not only is necessary to deal with real-world events; it is written in the most flexible way possible. To this administration, the reason we are on the floor today is it was your idea to take Khalid Shaikh Mohammed and put him in New York City and give him the rights of an American citizen and criminalize the war by taking the mastermind of 9/11 and making it a crime and not an act of war.

Mr. GRAHAM. Thank you. I will wrap up. To Senator Levin and Senator McCain, what they are accusing the Senators of doing is not true. They are codifying a process that will allow us to intelligently and rationally deal with people who are part of al-Qaida, not political dissidents. If someone doesn't like President Obama, we are not going to arrest them. I am getting phone calls about that. That is a bunch of garbage. A person can say anything they want about the President or me, they just can't join al-Qaida and expect to be treated as if it were a common crime. When someone joins al-Qaida, they haven't joined the Mafia. They are not joining a gang. They are joining people who are bent on our destruction, and they are a military threat. If you don't believe they are a military threat, vote for Senator Udall. If you believe al-Qaida represents a threat to us at home and abroad, give our intelligence and military agencies statutory guidance and authority to do things that need to be clear rather than uncertain. We are 10 years into this war. Congress needs to speak. This is your chance to speak. I am speaking today. Here is what I am saying to my colleagues on the other side and to the world at large: If you join al- Qaida, you suffer the consequences of being killed or captured. If you are an American citizen and you betray your country, you are going to be held in military custody and you are going to be questioned about what you know. You are not going to be given a lawyer if our national security interests dictate that you not be given a lawyer and go into the criminal justice system because we are not fighting a crime, we are fighting a war. There is more due process in this bill than at any other time in any other war. I am proud of the work product. There are checks and balances in this bill that we have been working on for 10 years. The mandatory provisions do not apply to American citizens. They can be waived if they impede in an investigation. We are trying to provide tools and clarity that have been missing for 10 years. This is your chance to speak on the central issue 10 years after the attacks of 9/ 11. Are we at war or are we fighting a crime? I believe we are at war, and the due process rights associated with war are in abundance and beyond anything ever known in any other war. What this amendment does is it destroys the central concept that we are trying to present to the body and to the country; that we are facing an enemy--and not a common criminal organization--that will do anything and everything possible to destroy our way of life. Let's give our law enforcement and military community the clarity they have been seeking and I think now they will have. To the administration, with all due respect, you have engaged in one episode after another to run away from the fact that we are fighting a war and not a crime. When the Bush administration tried to pass policies that undercut our ability to fight this war and maintain our values, I pushed back. I am not asking any more of the people on the other side than I ask of myself. When the Bush administration asked me, and others, to do things that I thought undercut our values, I said no. Now we have an opportunity to tell this administration we respect their input, but what we are trying to do needs to be done, not for just this time but for the future. Ladies and gentlemen, either we are going to fight this war to win it and to keep us safe or we are going to lose the concept that there is a difference between taking up arms against the United States and being a common criminal. In conclusion, Khalid Shaikh Mohammed and all those who buy into what he is selling present a threat to us far different than any common criminal, and our laws should reflect that. Senators Levin and McCain have created a legal system for the first time in 10 years that recognizes we are fighting a war within our values. I hope we get a strong bipartisan vote for the tools in this bill. I yield the floor.

Mr. GRAHAM. I will try to do it as quickly as I can.

Mr. GRAHAM. If the Chair will let me know when 5 minutes has passed, because there are a lot of voices to be heard on this issue, and I want them to be heard. I am just one.

Mr. GRAHAM. Seven?

Mr. GRAHAM. I will try to be quick.

Mr. GRAHAM

Mr. GRAHAM. Yes.

Mr. GRAHAM. I think I know where the Senator was going, and the answer will be no. The Guard has enough challenges without promoting me.

Mr. GRAHAM. Mr. President, I want to thank both Senators McCain and Levin for organizing this debate on this amendment in a way that maybe we can get closure on this amendment tonight. Both our ranking member and the chairman have been very helpful in pushing an amendment forward where we have 71 cosponsors. To Senator Leahy, I want to say it has been a real privilege and joy working with you on this. We had 71 Members of the Senate sign onto the legislation, and it is simple. It says the Chief of the National Guard Bureau will now be a member of the Joint Chiefs. What does that mean in the real world? It means the citizen soldier's voice will be heard at the highest levels of our government. After 1947, we reorganized the Defense Department. It became the modern Defense Department with the Joint Chiefs, where we have representatives from the Marine Corps, the Air Force, the Army, and the Navy, and now the citizen soldier. Why is that important? After 9/11, the Guard's role in defending this Nation changed substantially. The Guard and Reserves--but particularly the Guard, on the front lines of homeland security defense--have dual missions. They are the first to answer a natural disaster that hits America in uniform. They are the front-line troops. They have been integrated into the Army and Air Force in a fashion where they were deployed constantly to war zones. The citizen soldier fired the first shot to create this Republic, and now is the time to recognize the role they play post 9/11. The real reason we want this is because we want a line of communication that is uninterrupted. We want to make sure the Guard and Reserve component, but through the Guard particularly, are recognized as an integral part of our national security, State and Federal. The idea is that in the next war a Guard unit from Vermont, South Carolina, Connecticut--you name the State--would go to war without body armor to keep people safe, without the equipment they need to fight in the war is less likely to happen if we have the Chief of the National Guard Bureau in the tank with his colleagues talking about the needs of the National Guard. This doesn't change the legal structure. It doesn't provide command authority to the National Guard Chief. It simply puts him or her in the room, giving voice to the citizen soldier at a time we need it. I cannot thank Senator Leahy enough, and all those at the National Guard associations throughout the country, who called their Congressmen and their Senators. This bill passed the House, and now it will be adopted, hopefully by voice vote. I can tell you in the world in which we live, in the 21st century, having the guardsman's voice inside the Joint Chiefs is going to make us a safer Nation. It is a recognition and honor well deserved, long overdue, and I want to thank all my colleagues who have made this possible. And to the managers of this bill--the chairman and the ranking member--I want to thank you for accommodating us. To all my colleagues, come down here and work with Senators McCain and Levin on your amendments. Because we don't want to be the Congress for the first time in 51 years that failed to pass the Defense authorization bill. With that, I yield.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I rise today in support of the Leahy- Graham amendment which hopefully we will vote on here soon. The amendment is pretty simple. It says the Congress has decided, in its wisdom, to make the Chief of the National Guard Bureau a member of the Joint Chiefs of Staff. In 1947, we reorganized our Defense Department and created the modern Department of Defense and the Joint Chiefs, with a chairman, which would provide military advice to the Commander in Chief, the President of the United States. The Chairman is the person responsible for advising the President, but the Joint Chiefs are made up of the Army, Navy, Air Force, and Marine Corps. With this legislation, the Chief of the National Guard Bureau will become a member--nothing more, nothing less. It doesn't provide any power to the Chief of the National Guard Bureau in terms of commanding troops. It doesn't interfere in the relationship between the active forces, the Guard, or the Reserves. It simply states that now is the time for the National Guard, the citizen soldier, to have a voice on the Joint Chiefs. The reason I believe it is important is after 9/11, everything about the National Guard and our country's needs has changed. The National Guard is the front-line soldier/airman when it comes to natural disasters. When our homeland is hit by natural disaster, they can be called up federally or at the State level they provide assistance to our citizens. We have seen the effects of natural disasters. There can be a lot of loss of life and property. That is a unique duty. In the last hurricane that came through in the Northeast, the Chief of the National Guard Bureau said that no one from the White House called him, other than a mid-level operative, and he never interacted with the Joint Chiefs at all about the needs and capability of the Guard. General Dempsey, the new Chairman of the Joint Chiefs, has invited General McKinley, the Chief of the National Guard Bureau, to be an ad hoc member. That is great. But I asked him, if he somehow fell out of favor, could you kick him out of the room, and the answer is, Yes. I think Congress needs to make a decision about the role of the citizen soldier. If you believe, as I do, that they are indispensable on fighting the war on terror, they have some leading missions when it comes to homeland security post-9/11, their voice needs to be heard. The active-duty forces need to have the Chief of the National Guard Bureau in that room advising them about the capability and readiness of the National Guard, their dual- status capabilities, what they can do at the State level and the Federal level. I guess I can boil it down to this. To me, it was a national shame and disgrace to deploy National Guard troops after 9/11 without adequate body armor or equipment, and this will make it very hard for that to happen again because the Chief of the National Guard Bureau will be in the room with his counterparts talking about the needs of this force. Hopefully, the coordination and collaboration through this new change will allow the force to be ready, deployable, and we will never go back to that time period in our history where the Guard and Reserve were called up without adequate equipment, body armor, ready to go to war. This is a change that I think makes sense post-9/11. It doesn't interfere with the day-to-day operations of the military. It doesn't confer any power on the National Guard they don't already have. It is just one more voice at the table at a time when I think that voice needs to be heard. The world has changed. Our Nation's defense needs have changed post-9/11. We have 67 cosponsors, and I am very proud of the fact that this is one of the most bipartisan pieces of legislation I have ever been involved with. Senator Leahy has been a great partner, my cochairman of the Guard caucus, and I look forward to having the vote. Senators McCain and Levin have done a great job managing this bill. If you have amendments, please work with these two gentlemen. We don't want this Congress to go down in history as being the first Congress in 51 years that could not pass a Defense authorization bill. We have enough things going against us already as a Congress. We don't want to add that to the list. So Senator Leahy and myself are willing to do this by voice vote, whatever the body wishes. Senator Reed, my good friend from Rhode Island, has a second-degree amendment that basically takes our legislation and defeats the purpose of it. Senator Webb has a second-degree amendment that would substitute a membership and the Chairman of the Joint Chiefs with a reporting requirement that, quite frankly, misses the mark. Both are fine men. Senator Webb argued years ago that the Marine Corps needs to be a member of the Joint Chiefs, and everybody thought the Navy would have two votes and they fought passionately against it, and it has worked out pretty well. So all the problems with making the Marine Corps a member of the Joint Chiefs haven't panned out. Goldwater-Nichols was fought by everybody except the Chairman of the Joint Chiefs when it was first introduced. So change comes hard to the Pentagon. This is a change that I think makes common sense. I would say, after 9/11, our citizen soldiers deserve this recognition. This would be a great step forward in making sure they are integrated and they never go to war again unless they are prepared to go. Having that voice day in and day out in the tank I think will do everybody a lot of good. So I hope we can vote on this soon. I appreciate Senators McCain and Levin's leadership on this bill. I think we have a good bill for our men and women in uniform, and I look forward to bringing this to the floor for a vote. To my colleagues who want to amend the bill, I appreciate the differences that we have but I think the time has come for the National Guard to be a member of the Joint Chiefs of Staff, with a full voice and ability to be heard as they have never been heard before. The reason they need to be heard unlike any other time is that we depend on them unlike any other time, except maybe the first engagement. When you look at who has been around the longest, the first shot fired in creating this Nation was fired by the citizen soldier. Two hundred- something years later, let's make sure that they are integrated into our defense infrastructure at the highest levels, because their voice needs to be heard. I yield the floor, and I suggest the absence of a quorum.