Carl Levin

Mr. LEVIN

Mr. LEVIN. Mr. President, I now ask unanimous consent that the Senate consider these amendments en bloc, the amendments be agreed to, and the motion to reconsider be laid upon the table.

Mr. LEVIN. Mr. President, what is the pending matter?

Mr. LEVIN. There is 20 minutes evenly divided?

Mr. LEVIN. Reserving the right to object, how much time is left on each side?

Mr. LEVIN. Would the Senator from California agree that there be 5 minutes added to each side?

Mr. LEVIN. That is fine. I think there is no objection.

Mr. LEVIN. I ask unanimous consent that 6 additional minutes be added to the proponents of this amendment and, if needed, that 6 additional minutes be added to the other side.

Mr. LEVIN. Mr. President, it would be my intent, if we need additional time, unless there is something else that is needed at about 9:30 or so when this time runs out, to seek additional time for both-- for anyone who needs it, frankly. I do not know about both sides, because this is a multifaceted debate that we are going to have here tonight on this issue. I would yield myself 10 minutes. I would ask to be notified when I get to 10 minutes. The Feinstein amendment provides that no authorization for the use of military force may be construed to authorize the detention of U.S. citizens or lawful resident aliens who are captured inside the United States, unless--and this is a big ``unless''--an act of Congress expressly authorizes such detention. As I read the amendment, it says the military detention of U.S. citizens may be authorized in accordance with the law of war as long as this action is expressly authorized by Congress. Further, the amendment's requirement for express authorization applies only to the detention of U.S. citizens who are captured inside the United States. So no such authorization would be required for the detention of a U.S. citizen in the course of military operations overseas. I believe it is appropriate that Congress focus on the issue of military detention at the time they authorize the use of military force, as would be required by the Feinstein amendment. As the Supreme Court has stated: Detention is a fundamental and accepted incident to armed conflict. Without such authority, our Armed Forces could be put in the untenable position of being able to shoot to kill but not to capture and detain enemy forces. As to the ongoing conflict, I believe the 2001 authorization for the use of military force authorized the detention of U.S. citizens when appropriate in accordance with the laws of war. I base this view on the fact that the Supreme Court has said so. In the Hamdi case, the Supreme Court considered the relationship between the AUMF and the nondetention act which prohibits the detention of a U.S. citizen except where authorized by an act of Congress. The Supreme Court held in Hamdi that this statute does not preclude the detention of U.S. citizens on the battlefield in Afghanistan because the 2000 authorization for the use of military force, quoting the Supreme Court, ``is explicit congressional authorization for the detention of individuals'' in such circumstances. The Court explained that such detention is so fundamental and accepted as an incident to war as to be an exercise of the ``necessary and appropriate force'' that Congress authorized the President to use in the AUMF. In other words, the Supreme Court has already concluded that the authorization to use necessary and appropriate force is an explicit authorization to detain enemy combatants in accordance with the law of war, and that meets the test of the Feinstein amendment. Any other conclusion would lead to absurd results, under which we would tie the hands of our Armed Forces even in the face of an actual invasion. For example, if a group of terrorists were to approach one of our Navy bases in boats loaded with bombs, our sailors protecting those ships at that base would be in the untenable position of being able to shoot to kill, but not to capture the enemy forces if Hamdi did not reach the conclusion it did. Similarly, in the unthinkable event that we were to experience a 9/ 11-type attack, our military would be in the untenable position of having the authority to shoot down the hijacked aircraft but not to force them to land and to capture the enemy hijacker. Of course, we could not expect our military to inquire as to whether any of the enemy force were American citizens before deciding on the level of force to be applied. As the Supreme Court explained in its Hamdi decision, ``the capture, detention, and trial of unlawful combatants, by 'universal agreement and practice,' are 'important incidents of war''' and a ``fundamental and accepted incident to war.'' What the Supreme Court said in Hamdi is explicit in the AUMF, in the authorization for use of military force, the core ``law of war'' authority for our military to capture and detain those who join enemy forces at a time of war and plan or participate in attacks against us. This core authority to use less than lethal force, rather than lethal force, in appropriate circumstances must be available to our military whenever and wherever it engages with the enemy. Again, Senator Feinstein's amendment does not prohibit the military detention of U.S. citizens who are captured or apprehended inside the United States because a U.S. citizen who joins a foreign army and attacks the United States should be subject to detention as an enemy combatant if it does not prohibit military detention and if it is expressly authorized by law. I read this as a statute authorizing the use of military force itself or some other act of Congress. This is a major difference between or from the amendment Senator Feinstein offered last year, which included no exception for congressional authorization. This new approach is appropriate because I believe that Congress ought to address the issue of detention of U.S. citizens when captured in the United States at the time that we authorize the use of force. The Supreme Court in Hamdi held that the existing authorization for use of military force does address this issue and does explicitly, in their words, authorize detention of U.S. citizens in that situation which was on the battlefield in Afghanistan, but that it explicitly, again in the words of the Hamdi Court, authorized the detention of U.S. citizens in the case of an individual who was captured in Afghanistan who was attacking U.S. forces. I believe the same reasoning applies to persons who join foreign armies and attack us militarily here in the United States when they bring the war here to the United States and attack us here. If they attack a Navy base and are captured by sailors defending their ships, the same logic that Hamdi applied to an attack in Afghanistan against our forces applies here. That is the same reason they used in that case to find that there was an explicit authorization for the detention of U.S. citizens in the Afghanistan circumstance; that it is an inherent fundamental function of war, that you be able to capture and detain people who are at war with you, applies when that act of war is carried out here in the United States, such as in the attack on a Navy base. I request 1 additional minute.

Mr. LEVIN. I understand. Let me then ask unanimous consent that Senator Inhofe, on behalf of Senator Coons and himself, offer a cleared amendment at this point.

Mr. LEVIN. How much time remains for the opponents?

Mr. LEVIN. Mr. President, I very much oppose this amendment. We have a court system in this country which is second to none. To deny this administration or any administration the opportunity, should they choose to exercise their discretion, to charge terrorists as criminals seems to me to be highly unwise and is not a particularly strong step in the war against terrorism. This amendment is undesirable. It would create a permanent restriction on the administration's options--not, by the way, just this administration's options, any administration's options in conducting the fight against terrorism. It prevents the administration's ability to bring any detainee from Guantanamo for any purpose, including their prosecution in court. I think it is unwise and not a strong step at all in the war on terror to deprive the President of the tools he might need to carry out the protection of this country from the threat of terrorism. This amendment would permanently cut off the possibility of prosecuting these Guantanamo detainees in Federal court. I hope we do not do that. I hope we defeat the amendment of my friend from New Hampshire, Senator Ayotte. Finally, this is what we call veto bait. The administration continues to strongly oppose these provisions which intrude upon the executive branch's ability to carry out its military, national security, and foreign relations activities and to determine when and where to prosecute Guantanamo detainees. So it is unwise in terms of our national security; it is unwise in terms of the rigidity it imposes on the executive branch as to where to prosecute terrorists, alleged terrorists, and it also jeopardizes the signing of this bill as soon as we can get this bill to a conference and get a conference report back to both bodies. So I hope we defeat the Ayotte amendment. If we have any time left, I yield it back. Mr. President, what is the pending business?

Mr. LEVIN. Has all time been used?

Mr. LEVIN. So under the existing UC, we are now moving to the Feinstein amendment, and that is now the pending business?

Mr. LEVIN. Let me, first of all, commend Senators Inhofe and Coons. This is a very important amendment, and the determination to go after Kony and the Lord's Resistance Army is essential not just in terms of the values that we so dearly believe in, but also in terms of avoiding further slaughter that has been perpetrated by Kony. So I commend Senators Inhofe and Coons, and I hope this amendment will not only pass but will send a very important statement as to where America stands on this subject.

Mr. LEVIN. Mr. President, I move to reconsider the vote.

Mr. LEVIN. How much time is there left on our side?

Mr. LEVIN. The Feinstein amendment provides an appropriate signal to Congress that in an authorizing context they should be aware of detention authority issues. Therefore, I intend to vote for the Feinstein amendment. I yield the floor.

Mr. LEVIN. That is my opinion, and that is the fundamental core ruling in the Hamdi case. Now, we have to be accurate. Hamdi applied circumstances to citizens that were captured in Afghanistan, but the reason they use led them to conclude there was an explicit--explicit-- authorization to detain those citizens even though they are American citizens. Their argument was that capture and detention was inherent, in their words--so fundamental--to capture and detain as such is an accepted incident to war as to be an exercise of the necessary and appropriate force which Congress authorized the President to use. So in my analogy, if a boatload full of al-Qaida, including an American citizen, comes to a Navy base and attacks that base and is captured by those sailors, that is surely an incident of war, and I believe the capture and detention of those al-Qaida terrorists would be the exercise of necessary and appropriate force which we authorized the President to use in the authorization for military force.

Mr. LEVIN. That is correct.

Mr. LEVIN. Coming into America and attacking us on a Navy base or----

Mr. LEVIN. I do.

Mr. LEVIN. It is. As part of that point, it cites the Quirin case, which says: Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. And here are the key words: Citizens who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention.

Mr. LEVIN. If the Senator would yield.

Mr. LEVIN. Reserving the right to object, I am wondering if the Senator from Alabama would repeat the request.

Mr. LEVIN. I wonder if the Senator would speak on the amendment, though, without calling up the amendment.