Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. We are talking about this amendment. Let's debate this amendment. Let's vote on this amendment. But the heart of the issue is whether the United States is part of the battlefield in the war on terror. The statement of authority I authored in 1031, with cooperation from the administration, clearly says someone captured in the United States is considered part of the enemy force regardless of the fact they made it on our home soil. The law of war applies inside the United States not just overseas. The authorization to use military force right after the war began allowed us to go into Afghanistan and use detention and capture and military force to deal with the enemy in Afghanistan and other places overseas. To my colleague from New Hampshire, does she believe al-Qaida considers American soil part of the battlefield?

Mr. GRAHAM. Would the Senator agree that what we have been able to do on the committee is basically say, in law for the first time, that the homeland is part of the battlefield; that military custody is available to hold a suspected al-Qaida operative caught in the United States-- American citizen or not--but we are going to allow the administration-- this administration and all future administrations--to change that model if they believe it is best? To me, we have created a right by our intelligence community, law enforcement community, to do at home what they can do overseas. If we do not do that, that would just not only be absurd, I think it would make us all less safe for no higher purpose. So to my colleagues who believe we are changing something, all we are trying to do is make sure that when the enemy makes it to America, we can hold them and gather intelligence to protect ourselves, no more and no less. We start with the presumption of military custody. But if the experts in the field, this administration or future administrations, believe that model is not best, they can seek a waiver. That, to me, is what we should have been doing for years. Because the battlefield, to those who are listening, is an idea, not a country. We are battling an idea; that is, a terrible idea. Their idea is, if you are a moderate Muslim seeking to worship God a different way, you are not worthy of living. If you are a Jew or a Gentile, you name it, if you do not bow to their view of religion, then you are going to live in hell. So that is what we are fighting. At the end of the day, this legislation creates a process to deal with the threats in our own backyard and, unfortunately, does the Senator from New Hampshire agree, that there is going to be further radicalization, that homegrown terror is where this war is going to?

Mr. GRAHAM. I would add that Senator Lieberman would have gone further than the Senator. There is nobody whom I respect more than Senator Lieberman, but we are trying to find a balanced way. So in summary, 1032, the military custody provision, which has waivers and a lot of flexibility, does not apply to American citizens, and 1031, the statement of authority to detain, does apply to American citizens. It designates the world as the battlefield, including the homeland. Are you familiar with the Padilla case? That is a Federal court case involving an American citizen captured in the United States who was held for several years as an enemy combatant. His case went to the Fourth Circuit. The Fourth Circuit Court of Appeals said: An American citizen can be held by our military as an enemy combatant, even if they are caught in the United States, because once they join the enemy forces, then they present a military threat and their citizenship is not a sort of a get-out-of-jail-free card; that the law of the land is that an American citizen can be held as an enemy combatant. That went to the Fourth Circuit. That, as I speak, is the law of the land.

Mr. GRAHAM. In the Padilla case, that went to the Fourth Circuit. The Hamdan case went to the Supreme Court. That was capture overseas. But the Fourth Circuit ruling stands that an American citizen captured in the United States can be held as an enemy combatant. But 1032, requiring military custody, is only for noncitizens captured in the United States. So the bottom line is, I think we have constructed a very sound, solid system that deals with homeland captures and homeland threats. We have created due process that understands this is a war without end, that no one is going to be held in jail indefinitely without going to a Federal court to make their case that they are unfairly held, that if the Federal court rules with the government, there is an annual review process that would allow the opportunity to get out in the future based on an evaluation of the case. From a due process point of view, I am very proud of the work product. I think it makes sense. I think it is a balance between our right to be safe and our rights to provide individuals with due process. But the big breakthrough is that we are now, for the first time as a Congress, creating a system that not only will allow this President flexibility and guidance, but future Presidents, and it will help us in further court challenges. Quite frankly, the Congress is saying, through this bill, if someone is caught in the United States, citizen or not, joining al-Qaida, trying to do harm to our Nation, we are going to create a system where you can be held, you can be prosecuted, you can be interrogated within our values, and we are not going to create an absurd result that if you make it here, none of that applies. That is all we are trying to do. Does the Senator agree with that?

Mr. GRAHAM. If I may, I think we need to move to the appropriations conference report. We will do it very quickly.

Mr. GRAHAM. Let me tell the Senator how he is dead right. I offered an amendment to the first bill we put on the table here on the floor about this, and I had a requirement of a military lawyer being given to the respondent at a combat status review tribunal. Every person being held as an enemy combatant by our military gets a combat status review tribunal. We are saying that tribunal has to be chaired by a military judge, and we are saying they can access a lawyer. That, to me, is a welcomed change. The Obama administration and the Bush administration decided to put the military judge requirement in place. But this now is a statutory requirement, so the next President is going to be bound to do that. We are trying to create a process to allow a status tribunal hearing to be done in a more due-process friendly fashion. We require a judge and we provide access to counsel. To me that is a giant step forward.

Mr. GRAHAM. For the first time it is now not the whim of the administration. It will be the law of the land.

Mr. GRAHAM. If this bill is enacted.

Mr. GRAHAM. Yes.

Mr. GRAHAM. Yes, with one caveat. There is a line of thinking that we should be using Federal courts exclusively, that military commissions are not appropriate in any circumstance, and that we should be using the law enforcement model once we deal with an al-Qaida operative, particularly here in the United States. What we are saying in this legislation is that the battlefield includes our own homeland. So that argument being made by the ACLU, I think, will bear that because most Americans feel we are not dealing with somebody who robbed a liquor store. These people present a military threat, and we should be able to gather intelligence in a lawful way. The administration's concern was, are we overstepping Executive power. I have, quite frankly, said I am concerned about that. Peter was concerned about that; Dave was concerned about that; I have been concerned about that because I don't believe you can have 535 attorneys general or commanders in chief. What we did to accommodate that concern is what the Senator from Arizona said, we started out with a military custody requirement that can be waived and the procedures to be waived are in the hands of the executive branch. As Senator Levin has indicated, this, to me, is very flexible and is so flexible that I feel very good about it. If it were a mandate to put everybody in military custody and try them in military commissions, even though I think that is the best thing to do, I would object, because the flexibility to make those decisions needs to be had in the executive branch. There may be a time when an article 3 court is better than a military commission court for an al-Qaida operative. I don't want the Congress to say article 3 courts could never be used. I don't want the Congress to say military commissions are bad. We now have a good military commission system. We have a process where the homeland is part of the battlefield. The individual being captured on our homeland can be held to gather intelligence under military law. And if somebody is smarter than us and believes that is not the right model, they can change the model. That is the best we can do, and that is the best I am going to do because I am very worried that in the future we are going to lock ourselves down into policies that would have an absurd outcome that if you made it to America, we cannot gather intelligence, which would be crazy. There is no good reason for that.

Mr. GRAHAM. The Bush administration has had prisoners held at Guantanamo Bay for years now who have not been prosecuted. They are held under the law of war.

Mr. GRAHAM. The Obama administration has continued to hold at least 48 under that same theory.

Mr. GRAHAM. I believe they are right. All the Congress is saying to the President--this one and future Presidents--is we agree with you, that if the person is a member of al-Qaida or an affiliated group, you can hold them as an enemy combatant without the requirement to let them go at an arbitrary point in time, but under the law, if they are at Guantanamo Bay or captured in the United States, they have a habeas right to appeal that determination to a judge. Under our bill, does the Senator agree with me, we have done more than that? We have created an annual review process so the person being indefinitely held will have some due process every year?

Mr. GRAHAM. That is absolutely correct. Let's talk about indefinite detention and what it means. When someone is captured as a member of al-Qaida--the Bush administration has had people at Guantanamo Bay for years. They are being held under the law of war. Does the Senator agree with that?

Mr. GRAHAM. So we are starting the game with military custody but for the reasons the Senator just said--and they may be good reasons, to say that is not the right way to go--they can go down another path. That is all we are trying to do. Because there is a sort of a gap when it comes to someone caught in the United States. We are trying to provide clarity, what to do with an al-Qaida member caught in the United States, to create flexibility but start the process with intelligence gathering because, in the United States, if you hold someone, under the law enforcement model, caught in the United States, you have to read them their rights. You have to present them to court. If they are in military custody, you don't have to do that. But what system fits the situation best should be left to the executive branch. We are just creating an avenue for military custody that can be waived.

Mr. GRAHAM. Right. But here is the point we are going to make. Some of us believe that presentment to a court and a Miranda warning may not be the best way to go, in terms of gathering intelligence. Under military custody for intelligence gathering there is no right to remain silent; does the Senator agree with that?

Mr. GRAHAM. Oh, yes, they are over here. There are plenty of them.

Mr. GRAHAM. That is contract. If I might continue the conversation for a minute, if you don't mind. Would the Senator agree with me that if we all of a sudden required our soldiers to read Miranda warnings to an al-Qaida operative caught in Afghanistan, people would think we were crazy?

Mr. GRAHAM. Right. And we should do that.

Mr. GRAHAM. Exactly.

Mr. GRAHAM. OK. Fair enough. But does the Senator agree with me that you cannot indefinitely hold someone under domestic criminal law without presenting them to court or reading them Miranda rights?

Mr. GRAHAM. That is correct.

Mr. GRAHAM. Right.

Mr. GRAHAM. OK. What if we have the very same person who made it out of Afghanistan and makes it to America. I think most people would want us to gather intelligence to find out what is coming next. Would the Senator agree with me, if you put someone in civilian control for the purpose of prosecution, intelligence gathering becomes very difficult?

Mr. GRAHAM

Mr. GRAHAM. I thank the Senator from Arizona and all of my colleagues working on what is a very difficult subject matter. When 25 to 1 is the outcome, that is pretty good. I like Senator Reid. This goes back to the White House. This is President Obama's team. This is not Harry Reid. This is not the Senate holding up this bill, it is the White House holding up this bill. They have an irrational view of what we need to be doing with detainees. They have lost the argument--and I tried to help--to close Guantanamo Bay. It is not going to close. We are not going to move those prisoners inside the United States. The Congress has said no. The American people have said no. The reason they lost that argument is after working with the White House for about a year and a half to try to find a national security centric detainee policy that would assure the American people we are not going to let these people roam around the world and treat them as common criminals, they could never pull the trigger on the hard stuff. We are here because the White House cannot tell the ACLU no. There are 48 people at Guantanamo Bay being held under the law of war, who will never see a courtroom, military or civilian courtroom, and that is part of military law. You don't have to let an enemy prisoner go. Most enemy prisoners are never prosecuted. They are held at Guantanamo Bay under the law of war. An Executive order issued by the Obama administration gives them an annual review. We have been trying to work with the Obama administration to deal with every class of detainee we may run into in this war that will go well beyond my lifetime. The reason Mr. Brennan objects is because there was a decision made by the Congress to say if a detainee is captured and interrogated by the high-value interrogation team--which I like, which is an interagency combination of the CIA, FBI, military, and other law enforcement agencies to make sure we get the best intelligence possible, that we create a presumption for military custody. The reason we are doing that is because the Obama administration has been hell bent on criminalizing this war. Khalid Shaikh Mohammed, the mastermind of 9/11, had charges against him in military commissions during the Bush administration, and he was ready to go to trial, literally ready to plead guilty. The Obama administration withdrew those charges and was going to put him in New York City, giving Khalid Shaikh Mohammed the same constitutional rights as an American citizen, then take that show on the road from Guantanamo Bay and have a trial in the heart of New York City that would cost $300 million alone in security. That blew up in their face. They don't get it. Most Americans don't see these people as some guy who stole a car or robbed a liquor store. Most Americans see detainees who were captured on the battlefield as a genuine threat to this country. I applaud the Obama administration for taking the fight to the terrorists and going after bin Laden, for using Predator drones on the battlefield throughout Pakistan and Afghanistan. What I have fought with them over is we have no way of capturing someone and acquiring good intelligence because you have locked down the system. This detainee legislation we have before the Senate will allow a way to go forward. What happens if you capture someone tomorrow? Where do we put them? What jail do we have, as a nation, to put a captured terrorist in? We don't have a jail because they will not use Guantanamo Bay. They captured a terrorist and put him on a ship for 60 days. The Navy is not in the detention business. We don't build ships to make them jails. We build ships to fight wars. This aversion to using Guantanamo Bay is going to bite us as a nation. This legislation allows us to move forward. If you capture someone, you can gather good intelligence. There is a presumption that they will be held as an enemy combatant, but there is a waiver provision. What I don't want to do is read rights to everybody we capture in the United States as part of a terrorist organization's plot. We are not fighting a crime, we are fighting a war. Under the rules of war, you can hold an enemy combatant and interrogate them as long as necessary to find out what the enemy is up to. That is what this legislation does. To my colleagues, you have written a very balanced approach. This idea of never using Guantanamo Bay again is dangerous. The idea that the CIA cannot interrogate enemy prisoners as a policy is dangerous. By Executive order the President of the United States, President Obama, within a week of taking office, took off the table an enhanced interrogation technique under the Detainee Treatment Act that was classified, that was not waterboarding within our values, but techniques available to our intelligence community, which Senator Chambliss oversees, that would allow them over time to acquire good intelligence. One of the reasons we killed bin Laden is because of the intelligence picture we acquired over 10 years. This President, within a week, said by Executive order the only interrogation tool available to the United States of America is the Army Field Manual, which is online. You can read it yourself.