Carl Levin

Mr. LEVIN

Mr. LEVIN. Madam President, I ask unanimous consent that the vote, which was previously scheduled to occur at the end of the half hour of debate on this amendment, now be rescheduled for 2 o'clock.

Mr. LEVIN. I also ask unanimous consent that there be no second- degree amendments to the Feinstein amendment.

Mr. LEVIN. So it is agreeable, then, that there will be an hour of debate on the second amendment starting at 3 o'clock with a vote at 4 o'clock?

Mr. LEVIN. Reserving the right to object, I just want to know if the Senator from California understands that the vote on the second Feinstein amendment would be at 4:00 and that the debate would begin at 3:00, with that hour equally divided.

Mr. LEVIN. So is a 4 o'clock vote after an hour of debate acceptable?

Mr. LEVIN. Madam President, relative to the time between that half hour and 2 o'clock, that time, hopefully, would be used. It will be by me for my remarks on this amendment, by the way, because after the 30 minutes, if it is used totally, I would want an opportunity to speak during that time, if necessary in morning business. But there are other amendments we believe can be voice voted during that period of time, I believe my friend from Arizona would agree. So that time will be fruitfully used. But the time now is 2 o'clock for the vote on that first Feinstein amendment. I thank my friend.

Mr. LEVIN. It will continue to be our intent. It was objected to before. But we hope that objection will be removed. If it is not removed, we will have to have all these votes at the end of the day instead of during the day.

Mr. LEVIN. No. I agree with what the Senator said and what the intent is here; that, hopefully, we could have an hour debate starting at 3 o'clock. We will try to lock that in at a later time, after giving folks notice. But if there is objection to votes before the time runs out, the 30-hour clock runs out, then we will have to have all those votes after the 30-hour clock runs out, and it does not make any sense to do that. But if there is going to be an objection, then that is the way it will have to be. What Senator McCain is saying--and I totally agree with him--is, even if we are put in that position, which I hope we are not, that at least we could use the time between now and then for debate on those amendments which we would have to vote on at a later time. I totally agree with my friend from Arizona.

Mr. LEVIN. While Senator Graham is on the floor, I ask unanimous consent to have a colloquy with him about this section 1032, the section at issue.

Mr. LEVIN. I very much appreciate Senator Graham's remarks. He said the provision provides for military custody as a beginning or starting point. I wonder whether he would agree that not only is it a beginning point, but it is only for a narrow group of people who are determined to be al-Qaida or their supporters.

Mr. LEVIN. Would the Senator also agree with me that under the provision in the bill, on page 360--we were told that civilian trials are preferable to military trials, preferable to the detention of an unlawful combatant. Does the Senator agree that every one of those options is open to the executive branch and that there is no preference stated, one way or the other, for which approach is taken to people who are detained?

Mr. LEVIN. Yes.

Mr. LEVIN. That is exactly the point. This language, when it is described as language that says somehow or other it works against using civilian courts, is from folks who haven't read our language. The language is explicit. On page 360, lines 3 through 14 in the bill, it says the disposition of a person under the law of war may include the following--and then they talk about detention under the law of war, trial under title X, which is the military trial, transfer for trial by an alternative court or competent tribunal having lawful jurisdiction; that is, article III courts, and transfer or return of custody to the country of origin. There are no others. There is no preference stated for which of those venues would be selected by the executive branch.

Mr. LEVIN. That is absolutely true. Senator Graham brought to the floor something that was stated this morning by the top lawyer for the Obama administration. I think everybody ought to listen to this. There has been so much confusion about what is in the bill and what isn't. Right now, there is authority to detain U.S. citizens as enemy combatants. That authority exists right now. That is not me saying it, that is the Supreme Court that has said it as recently as Hamdi, when they said there is no bar to this Nation holding one of its own citizens as an enemy combatant. That is current law. That is the Supreme Court saying that. Then, the Supreme Court also said in Hamdi that they see no reason for drawing a line because a citizen, no less than an alien, can be part of supporting forces hostile to the United States or coalition partners and engaged in armed conflict against the United States. Top lawyers for the President, this morning, acknowledged this. I wish every one of our colleagues could hear what Senator Graham brought to the floor. Top national security lawyers in the administration say U.S. citizens are legitimate military targets when they take up arms with al-Qaida. Are we then going to adopt an amendment that says to al-Qaida that if you attack us overseas, you are subject to military detention; but if you come here and attack us, you are not subject to military detention? That is what the first Feinstein amendment says.

Mr. LEVIN. I am sorry, I was distracted.

Mr. LEVIN. They have, and they have been held accountable.

Mr. LEVIN. There was a naturalized citizen involved in Quirin, who was arrested, as I understand it, on Long Island, and who was charged with crimes involving aiding and supporting the enemy.

Mr. LEVIN. And military detention.

Mr. LEVIN. Exactly. By the way, I think executed.

Mr. LEVIN. That is correct.

Mr. LEVIN. It is an issue, absolutely.

Mr. LEVIN. I do. And the top lawyers of the administration acknowledged as much this morning when they said U.S. citizens are legitimate military targets when they take up arms with al-Qaida. The provisions we are talking about in section 1032, which Senator Feinstein would modify so that it is only al-Qaida abroad who would be subject to this presumption of a military detention, but al-Qaida who come here--and, by the way, American citizens are not even covered under 1032. But the foreign al-Qaida fighters who come here to attack us are not going to be subject to that presumption of military detention which, again, can be waived. It has nothing to do with in what venue they are tried. The administration, the Executive, has total choice on that. It is just whether we are going to start with an assumption if they are determined to be al-Qaida, if they are a foreign al-Qaida person, they sure as heck ought to be subject to that same assumption whether they attack us here or whether they attack us overseas.

Mr. LEVIN

Mr. LEVIN. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on December 1, 2011, at 2:30 p.m. to conduct a hearing entitled ``Insider Trading and Congressional Accountability.''

Mr. LEVIN. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet during the session of the Senate on December 1, 2011, at 2:15 p.m. in room 628 of the Dirksen Senate Office Building to conduct a hearing entitled ``Deficit Reduction and Job Creation: Regulatory Reform in Indian Country.''

Mr. LEVIN. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate, on December 1, 2011, at 10 a.m., in SD-226 of the Dirksen Senate Office Building, to conduct an executive business meeting.