Floor Statements

I say to my good friend from California, you are a patriot. You are here for all of the right reasons. We just have a strong disagreement about where we stand as a nation.

Nobody interrupted the Christmas Day Bomber plot. The people on the plane attacked the guy before he could blow it up. There was no FBI agent there. There was no CIA agent there. We are lucky, thank God, the passengers did it. So there is nothing to suggest that our intelligence community does not need as many tools as possible because the guy got through the system. We are lucky as hell the bomb did not go off.

The Times Square Bomber, nobody interrupted that plot. The guy did not know how to set the bomb off. We are lucky as hell the bomb did not go off. So do not stand here and tell me that we have got it right, because we have not. And here is the point: We never will always get it right. I am not saying that as criticism. Because we are going to get hit again. We cannot be right and lucky all of the time.

To those who are trying to defend us, the one thing I do not want to do is micromanage the war. Here is the political dynamic. You have got people on the left who hate the idea of saying ``the war on terror.'' If you left it up to them, they would never, ever use the military, they would always insist that the law enforcement model be used because they do not buy into the idea of we are at war. So you have got one part of the country, a minority, that wants to criminalize the war. If we ever go down that road, woe be unto us.

You have got people on my side--the Senator is right about this. They have gone the other way. If you left it up to people on my side, there would be a law passed tomorrow that you could never, ever read a Miranda right to a terrorist caught anywhere in the United States.

I do not agree with that way of thinking. To my fellow members of the U.S. military, you have not failed at Guantanamo Bay. You have not failed. Because you sentenced someone to 9 months to me validated the fact that those who are taking an oath to defend us, when they are put in a position of passing judgment on people accused of trying to kill us all, will be fair.

So when you say a military commission tribunal at Guantanamo Bay gave a 9-month sentence and that is a failure, I say, as a proud member of the military, I am proud of the fact that you can judge a case based on the facts and the law and not emotion. So I am very proud of the fact that military commissions can do their job as well as the civilian courts.

I say to our Federal prosecutors and our Federal juries and our Federal judges, I am proud of you too. We should be using an ``all of the above'' approach. There are times that Federal courts are better than military commissions. There are times that military commissions are better than Federal courts.

The 1032 language has nothing to do about what venue you choose. This provision is simple in its concept. It is a compromise between those on the left who say you must criminalize this war; we are not at war; you are going to have to use the law enforcement model; you can neither gather military intelligence, who do not believe that the military has a role on the homeland to gather intelligence, which is an absurd concept, never acknowledged before in any other war.

When American citizens helped the Nazis, collaborated with Nazis to engage in sabotage, not only were they held as enemy combatants during World War II, they were tried by military commissions. We no longer allow American citizens to be tried by military commissions. I think that is a reasoned decision. But what we do not want to do is prevent our intelligence community from holding an al-Qaida affiliated member and gathering intelligence.

If an American citizen went to Pakistan and got radicalized in a madrasah and came back to the United States and landed at Dulles Airport and got a rifle and started shooting everyone on the Mall, I believe it is in our national security interests to give our intelligence community the ability to hold that person and gather intelligence about: Is another guy coming? What did you do? What future threats do we face? And not automatically Mirandize him. But if they choose to Mirandize him, they can. In this legislation, we presume military custody, but it can be waived.

That is the point I am trying to make. Senators Levin and McCain have struck a balance between one group that thinks the military can only be used and nobody else and another group that says we can never use the military. We have that balance. If we upset this balance, we are going to make us not only less safe, the Congress is going to do things on our watch that we have never done in any other war.

A word of warning to my colleagues: If we had a bill on the floor of the Senate saying we are not going to read Miranda rights to terrorists who are trying to kill us all, 70 percent of the American people would say: Heck yes.

I don't want this bill to come up. I believe the people who are best able to judge what to do is not any politician, they are the experts in the field fighting this war. We are saying we can waive the presumption of military custody, we can write the rules to waive it, but we believe we should start with that construct.

Let me read to you what the general counsel for the Department of Defense said today:

Top national security lawyers in the Obama administration

say U.S. citizens are legitimate military targets when they

take up arms with al-Qaida. The government lawyers, CIA

counsel Stephen Preston, and Pentagon counsel Jeh Johnson,

did not address the Awlaki case. But they said U.S. citizens

don't have immunity when they are at war with the United

States.

The President of the United States was right to target this citizen when he went to Yemen to help al-Qaida. I am glad we took him out. So would it not be absurd that we can kill him, but we cannot detain him? If he came here, we cannot question him for military intelligence gathering. So this is a compromise between two forces that are well intended but will take us into a bad policy position: the hard left who wants to say the military has no role in protecting us on the homeland and some people on my side who say the law enforcement community cannot be involved at all.

So Senator Levin and Senator McCain have constructed a concept that provides maximum flexibility, gives guidance to the law enforcement community, starts with a presumption that I like and can be waived and will not impede an ongoing investigation. That is the part of the bill that was changed.

To my good friend from California, we have the balance we have been seeking for 5 years. To me, this is what we should be doing as a nation--creating legislation that allows those who are fighting the war the tools they need. In this case, we start with the presumption of military custody because that allows us to gather intelligence. Under the domestic criminal law, we cannot hold someone and ask them about future attacks, because we are investigating a crime. Under military law, when somebody joins the enemy and engages in an act of war against the Nation, our military intelligence community can hold that person for as long as it takes to find out what they know about future attacks. If the guy gets off of plane and starts killing people at the mall, when we grab him and he says I want my lawyer, we can say: You are not entitled to a lawyer. We are trying to gather intelligence.

At the end of the day, use military commission trials, use Federal courts, and read Miranda rights when we think it makes sense; but we don't have to because the law allows us to hold people, under military custody, who represent a military threat. The law allows us to kill American citizens who have joined al-Qaida abroad. That has been the law for decades. I hope this compromise that Carl Levin and John McCain have crafted--and I say to Carl Levin, I have been in his shoes. When John and I were on the floor saying don't waterboard people--gather intelligence but don't become like the enemy--a lot of Americans believed we should waterboard these people, do whatever we need to do because they are so vicious and hateful. But John McCain knows better than anybody in this body what it is like to be tortured.

I wish to protect America without changing who we are. It has always been the law that when an American citizen takes up arms and joins the enemy, that is not a criminal act; that is an act of war. They can be held and interrogated about what they did and what they know because that keeps us safe. If we take that off the table, with homegrown terrorism becoming the greatest threat we face, we will have done something no other Congress has done in any other war.

Madam President, I thank Senators Levin and McCain for drafting a compromise that I think speaks to the best of this country. To my colleagues, please don't upset this delicate balance. If you do, you will open a Pandora's box.

Yes. It is not only a presumption that can be waived, based on what the experts in the field think is necessary; the waiver provision is incredibly flexible. You do not have to stop an interrogation to get the waiver. The executive branch can write the procedures. Not only is it a presumption that can be waived, it is also limited to a very narrow class of people. It has nothing to do with somebody buying gold. I don't know about Senator Levin, but people call me, who are on the right, saying: Don't let Obama put me in jail because I think he is a socialist or are you going to be able to grab me because of my political views? I tell my staff to be respectful and read them the language. The only people who need to worry about this provision are a very narrow group of people who are affiliated with al- Qaida, engaged in hostile acts.

Not only would I agree that 1032 and 1031--the compromise language about statement of authority to detain and military detaining as a presumption--has nothing to do with the choice of venue, there are people on my side who are champing at the bit to prohibit civilian courts from being used in al-Qaida-driven cases; is the Senator familiar with that?

I am of the view that we are overly criminalizing the war. I don't want to adopt that policy. There is nothing in this language that has anything at all to do with how you try somebody and what venue you pick. I am in the camp--and I think Senator Levin is too--of an all-of-the-above approach. I am proud of our civilian courts and our military courts. The Senator and I are probably not in the best position to determine that. Let's let the experts do it.

Is this a fair statement: If it was your goal to prevent military commissions from ever being used, you didn't get your way in this legislation. If it was your goal to mandate that military commissions are the only venue to be used, you didn't get your way in this legislation because this legislation doesn't speak to that issue at all.

If I may just add--not only is that the effect, that would be a change in law because the Senator agrees with me that in other conflicts, prior to the one we are in today, American citizens, unfortunately, have been involved in aiding the enemy; is that correct?

Does the Senator agree with me that in prior wars American citizens have been involved in aiding the enemy of their time?

Yes. And the In re Quirin case, which Hamdi cited and affirmed, was a fact pattern that went as follows: We had German saboteurs, some living in America before they went back to Germany--I think one or two may have been an American citizen--who landed on our shores with a plot to blow up different parts of America. During the course of their efforts, American citizens aided the Nazis. The Supreme Court said when an American citizen chose to help the Nazis at home, on our homeland, they were considered to be an enemy belligerent regardless of their citizenship, and we could detain one of our own when they sided with the enemy.

Let's talk about the world in which we live today.

Military detention and tried by a military commission.

And executed. The Senator from Michigan and I have said, along with our colleagues, that military commissions cannot be used to try American citizens.

Our military has said they do not want that authority. They want to deal with enemy combatants when it comes to military commission trials. But our military CI and FBI have all understood their power to detain for intelligence-gathering purposes is an important power. It is not an exclusive power.

So let's talk about today's threat. The likelihood of homegrown terrorism is growing. Does the Senator agree that the homegrown terrorist is becoming a bigger problem?

So in a situation where an American citizen goes to Pakistan and gets radicalized in a madrasah, gets on a plane and flies back to Dulles Airport, gets off the plane and takes up arms against his fellow citizens, then goes to the mall

and starts randomly shooting people, the law we are trying to preserve is current law, which would say if the experts decide it is in the Nation's best interests, they can hold that American citizen as they were able to hold the American citizen helping the Nazis and gather intelligence.

That is a right already given. Senator Feinstein's amendment, even though I don't think it is well written, could possibly take that away. That is 1031. But what we are saying is, we want to preserve the ability of the intelligence community to hold that person under the law of war and find out: Is anybody else coming? Are you the only one coming? What do you know? What madrasah did you go to? How did you get over? How did you get back?

We want to preserve their ability to hold that person under the law of war for interrogation. But we also concede, if they think it is better to give them their Miranda rights, they can. That is what the legislation we create will do. Does the Senator agree with that?

Wouldn't it be kind of hard to explain to our constituents that our top lawyers in the Pentagon and CIA said today that once an American citizen decides to help al-Qaida they can be killed in a drone attack, but the Congress somehow says, OK, but they can't be detained?

Does the Senator believe America is part of the battlefield in our global war on terror?

Well, my belief is that most Americans would want our military being able to combat al-Qaida at home as much as they would abroad. I think most Americans would be very upset to hear that the military has no real role in combatting al-Qaida on our own shore, but we can do anything we want to them overseas.

Frankly, there are very good people on our side who want to mandate that the military has custody, and no one else, so we never have to read Miranda rights. Quite frankly, there are people on the left, libertarians, well-meaning people, who want to prevent the idea of a person being held under military custody in the homeland because they do not think we are at war and this is really not the battlefield.

What the Senator and I have done is to start with the presumption that focuses on intelligence gathering because the Senator and I are more worried about what they know about future attacks than how we are going to prosecute them.

Under domestic criminal law, we can't hold someone indefinitely. The public safety law I will talk about in a bit, but I say to my good friend from California, the public safety exception was a very temporary ability to secure a crime scene. It was not written regarding terrorism. So our law enforcement officials cannot use the public safety exception to hold an al-Qaida operative for days and question them. The only way to do that legally is under the law of war. In every other war we have had that right, and we are about to change that.

Right. Well, let's keep talking about it because the more we talk about it the more interesting the whole concept becomes.

The last time I looked, there were no civilian jails overseas. So when we capture a terrorist overseas, the only place we can detain them is in military custody. If they make it at home to say the military can't hold a person and interrogate them under the law of war, the only way we can hold an al-Qaida operative who made it to America is under the law enforcement model. This is not ``Dragnet.'' We are trying to make sure both systems are preserved, starting with the presumption of intelligence gathering.

Here is the key distinction. To my colleagues who worry about how we prosecute someone, that is really the least of my concerns. I am worried about intelligence gathering. I have confidence in our civilian system and confidence in our military system. But shouldn't we be concerned, most of all, Senator Levin, that when we capture one of these operatives on our shores or abroad that we hold them in a humane fashion but a fashion to gather intelligence?

Imagine if we got one of the 9/11 hijackers. Wouldn't it have been nice to have been able to find out if there was another plane coming and hold them as long as necessary to get that information humanely? To say we can't do that makes us a lot less safe.

That is the only group subject to this provision; is that correct?

But this provision we wrote only deals with that.

No one is going to be put in jail because they disagree with Lindsey Graham or Barack Obama. We are trying to fight a war.

I would say something even more basic. It is in my political interest, quite frankly, being from South Carolina--a very conservative State, great people--to be able to go home and say I supported legislation to make sure these terrorists trying to come here and kill us never hear the words ``you have the right to remain silent.'' Most people would cheer.

It would have been in my interest years ago, quite frankly, to have gone back and said: You know what. I wish the worst thing that could happen to our guys caught by these thugs and barbarians is that they would get waterboarded. They get their heads cut off. Yet we have all these people worried about how we treat them in trying to find out a way to protect the country. That would be in my political interest, and I am sure it would probably be in your political interest to say: Wait a minute, we don't want to militarize this conflict.

At the end of the day, what I wanted to say about the Senator and Senator

McCain is that one of you is a warrior who has experienced worse than waterboarding and doesn't want that to be part of his country's way of doing business. The other is someone who has been a very progressive, solid, left-of-center Senator for years. I am a military lawyer who comes from a very conservative State, but I want to fight this war--I don't believe we are fighting a crime--but I want to fight it in a way that doesn't come back to haunt us. I don't want to create a system on our watch that could come back and haunt our own people. I don't want to say that every enemy prisoner in this war has to go to trial because what if one of our guys is captured in a future war? Do we want them to be considered a war criminal just because they were fighting for the United States?

So what we are trying to do is to create policy that is as flexible as possible but understands the difference between fighting a war and fighting a crime.

Does the Senator know why that law was created?

One of the things you learn in military law school is the Posse Comitatus Act, because if a military member or a unit is asked to assist in a law enforcement function, that is prohibited in this country. Why is that? We don't want to become a military state. We have civilian law enforcement that is answerable to an independent judiciary.

The Posse Comitatus Act came about after Reconstruction, because during the Reconstruction era the Union Army occupied the South. They were the judge, jury, and law enforcement. They did it all because there was no civilian law enforcement. After the South was reconstructed, a lot of people felt that was not a good model to use in the future; that we don't want to give the military law enforcement power; they are here to protect us against threats, foreign and domestic; law enforcement activities are completely different.

Now we have National Guard members on the border. That is not a law enforcement function. That is the national security function. But I have been receiving calls that say our legislation overturns the Posse Comitatus Act. Here is why that is completely wrong.

Surveilling an al-Qaida member, capturing and interrogating an al- Qaida member is not a law enforcement function; it is a military function. For the Posse Comitatus Act to apply, you would have to assume that a member of al-Qaida is a common criminal and our military has no legal authority here at home to engage the enemy if they get here.

You talk about perverse. You would be saying, as a Congress, that an al-Qaida member who made it to America could not be engaged by our military. What a perverse reading of the Posse Comitatus Act.

The reason al-Qaida is a military threat and not a common criminal threat is because the Congress in 2001 so designated. I think most Americans feel comfortable with the idea that the American military should be involved in fighting al-Qaida at home, and that is not a law enforcement function.

May I add something. I want to respond to one of my good friends, Senator Paul, who said, Well, that is all good, but sometimes in democracies you let in very bad people and I don't want to give broad power to the executive branch that could result in political persecution.

I would tell you--Senator Levin may find this hard to believe--there are people on my side who don't trust President Obama and his administration. Some of them don't think he is an American. Some of them believe that if we pass this law, you are going to give the Obama administration the power to come on and pick them up because they go to a rally somewhere.

All I can say to Senator Paul and others: I share the concern about unlimited executive power. I support the Posse Comitatus Act. I don't support the idea that the military can't fight al-Qaida when they come here. We are not talking about law enforcement functions.

But here is what happens: If someone is picked up as a suspected enemy combatant under this narrow window, not only does the executive branch get to determine how best to do that--do you agree with me that, in this war, that every person picked up as an enemy combatant--citizen or not--here in the United States goes before a Federal judge, and our government has to prove to an independent judiciary outside the executive branch by a preponderance of the evidence that you are who we say you are and that you have fit in this narrow window? That if you are worried about some abuse of this, we have got a check and balance where the judiciary, under the law that we have created, has an independent review obligation to determine whether the executive branch has abused their power, and that decision can be appealed all the way to the Supreme Court?

Much to my detriment.

In this case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don't have to worry

very long, because our Federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn't go to a political rally. That has never happened in any other war. That is a check and balance here in this war. And let me tell you why it is necessary.

This is a war without end. There will never be a surrender ceremony signing on the USS Missouri. So what we have done, knowing that an enemy combatant determination could be a de facto life sentence, is we are requiring the courts to look over the military's shoulder to create checks and balances. Quite frankly, I think that is a good accommodation.

I would say why I wanted to do that. I want to be able to say--and not to my political advantage. But I want to be able to tell people post-Abu Ghraib, post-early Guantanamo Bay, we have cleaned up our act. We are trying to get the balance we didn't have originally. I want to be able to tell people we no longer torture in America. That is why you and I wrote the Detainee Treatment Act, with Senator McCain, the War Powers Act that clearly bans waterboarding.

I want to be able to tell anybody who is interested that no person in an American prison--civilian or military--held as a suspected member of al-Qaida will be held without independent judicial review. We are not allowing the executive branch to make that decision unchecked. For the first time in the history of American warfare, every American combatant held by the executive branch will have their day in Federal court, and the government has to prove by a preponderance of the evidence you are in fact part of the enemy force. And we did not stop there. Because this could be a war without end, we require an annual review process where each year the individual's case is evaluated as to whether they still maintain a threat or they have intelligence that could be gathered by longer confinement.

What I would say to our colleagues is that we have tried to strike that balance. There are a lot of people who don't like the idea that you give these terrorists Federal hearings and lawyers and all that other stuff. There are a lot of people who don't like the fact that we do have now humane interrogation techniques. But I like that, because I want to win this war on our terms, not theirs. So I couldn't be more proud of this bill.

To my colleagues on the right who want to mandate military custody all the time and you never can read them their Miranda rights, I am sorry, I can't go there. To our friends on the left who want to say the military has no role in this war at home, I am sorry, I can't go there. Military commissions make sense sometimes, sometimes Federal courts make sense.

I will end on this note. This compromise that we have come up with I think will stand the test of time. Unfortunately, most likely radical Islam as we know it today is not going to be defeated in our lifetime, and I hope to have created on my watch as a Senator a legal system that has robust due process, that adheres to our values, but also recognizes we are at threat like any other time in recent memory and allows us to protect ourselves within the values of being an American. I cannot tell you how much I appreciate working with the Senator and Senator McCain, and I think we have accomplished that after 10 years of trying.

How much time do we have?

Will the Chair warn me when I use 2 minutes.

To Senator Feinstein, I do believe the second provision is where we want to be, at least from my point of view. To my colleagues, I never intended by 1031 to change the law imposing a greater burden on American citizens or more exposure to military detention, nor did I wish to have additional rights beyond what exist today. The problem I have with Senator Feinstein's amendment is it says the authority in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of hostilities.

Here is my concern. When you tell a judge, as a defense attorney: I want my client's rights preserved regarding a civilian trial guaranteed in this section--and the end of hostilities could be 30 years from now--Your Honor, if these rights mean anything, they need to attach now--if the civilian rights attach immediately upon detention, what I think would be a problem is that the military interrogation is lost. American citizens are not subject to a military commission trial. A lot of people on my side didn't like that.

I do want to make sure American citizens go into article III courts, but the law has been since World War II, if a person joins the enemy, even as an American citizen, they are subject to being detained for interrogation purposes. That is my goal and that has always been my goal. We can detain an American who has sided with al-Qaida, if they are involved with hostile acts, to gather intelligence, and that is a proper thing to have been doing. It was done in World War II when American citizens helped the Nazis. If an American citizen wants to help al-Qaida involved in a hostile act, then they become an enemy of this Nation. They can be humanely detained, and that is my concern about the Senator's amendment; that it would take that away.

We have common ground on the second amendment, and at the end of the day, the Senate has talked a lot about different things. This has been a discussion about something important and I, quite frankly, enjoyed it.

I yield my time.

How much time do we have remaining?

Mr. President, I would like to take the opportunity to end what I think has been a very good debate. Senator Feinstein--and I know she is busy--said something on the floor that I wish to reiterate: that the second amendment which Senator Durbin just suggested we have reached a compromise on, I am fully committed to making sure it stays in the conference report. Some folks in the House may have a problem, but I think it is good, sound law.

The goal for me has never been to change the law, to put an American citizen more at risk than they are today. It is just to keep the status quo and acknowledge from the point of view of the Congress that the Obama administration's decision to detain people as enemy combatants lies within the President's power to do so. The Court has said in In re Quirin and in the Hamdi case that at a time of war the executive branch can detain an American citizen who decides to collaborate with the Nazis, as well as al-Qaida, as an enemy combatant. They can hold them for interrogation purposes to collect intelligence. We don't have to take anybody into court and put them on trial because the goal is to protect the Nation from another attack.

The law also says no one, including an American citizen, can be held indefinitely without going to an article III court. Every person determined to be an enemy combatant by the executive branch has to have their case presented to an independent judiciary, and the government has to prove to a Federal judge by a preponderance of the evidence that they fall within this narrow exception. The government has lost about half the cases and won about half the cases.

My concern with Feinstein 1 is that it would change the law; that the law would be changed for the first time ever, saying we cannot hold an American citizen who has collaborated with the enemy for intelligence gathering purposes. I think homegrown terrorism is growing. If an American citizen left this country and went to Pakistan, got radicalized in a madrasah, came back and started trying to kill Americans, I think we should have the authority to detain them as with any belligerent, just like in World War II, and gather intelligence as to whether somebody else may be coming.

So that is what I want to preserve. With all due respect to Senator Feinstein, I think her first amendment very much puts that in jeopardy. It is going to be confusing, litigation friendly, so let's just stay with what we believe the law is.

As to Senator Durbin, he has one view, I have another, but we have a common view; that is, not to do anything to 1031 that would change the law. The ultimate authority on the law is not Lindsey Graham or Dick Durbin, it is the Supreme Court of the United States. That is the way it should be, and that is exactly what we say here. We are doing nothing to change the law when it comes to American citizen detention to enhance it or to restrict whatever rights the government has or the citizen has. I think that is what we need to say as a nation.

One last word of warning to my colleagues, the threats we face as a nation are growing. Homegrown terrorism is going to become a greater reality, and we need to have tools. Law enforcement is one tool, but in some cases holding people who have decided to help al-Qaida and turn on the rest of us and try to kill us so we can hold them long enough to interrogate them to find out what they are up to makes sense. When we hold somebody under the criminal justice system, we have to read them their rights right off the bat under the law or we don't because the purpose is to gather intelligence. We need that tool now as much as at any other time, including World War II.

Thank you all for a great debate. I hope we can vote no on Feinstein 1 and have a strong bipartisan vote on Feinstein 2.

With that, I yield the floor.

If anybody wishes to speak, speak now.

All time is yielded back.

Perhaps the Senator will yield for a question?

As I understand the purpose of this amendment, it is basically to have the Congress on record for the concept that once you are determined to be an enemy combatant, a part of the enemy force, there is no requirement to let you go at any certain time because in war it would be silly to let an enemy prisoner go back to the fight for no good reason.

As the Senator has indicated, in the law of war, you can be prosecuted for a war crime. You could be taken to a Federal court and prosecuted for an act of terrorism, but if you are acquitted, that is not an event that would require us to release you if the evidence still exists that you are a threat to the country and part of the enemy forces; is that correct?

What I would like my colleagues to understand is that no German prisoner in World War II had the ability to go to a Federal judge and say: Let me go.

If you had brought up the concept in World War II that an American citizen who was collaborating with the Nazis could not be held as an enemy combatant, you would have been run out of town.

Does the Senator agree with me that in every war we have fought since the beginning of our Nation, unfortunately, there have been episodes where American citizens side with the enemy?

Does the Senator agree with me that our Supreme Court, as recently as about 3 to 4 years ago, affirmed the fact that we can hold our own as enemy combatants when the evidence suggests they have joined forces with the enemy? That is the law?

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?

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?

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

And the law of war allows the following: trial or detention or both. Is that correct?

You can be held as an enemy combatant without trial?

There is no requirement in international law to prosecute an enemy prisoner for a crime?

Does the Senator agree with me that we do not want to start the practice in the United States that everybody we capture as an enemy prisoner is automatically a war criminal because that could come back to haunt our own people in future wars?

That we should reserve prosecution for a limited class of persons among enemy prisoners?

I ask unanimous consent to have 1 more minute.

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?

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

Does criminal law focus on intelligence gathering?

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

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

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?

And that would be a change in the law as it exists today.

Does the Senator agree with me that his amendment that says you can be acquitted but still be held as an enemy prisoner is consistent with the law today?

I thank the Senator for offering this amendment.

To my colleagues, we are trying to fight a war, not a crime, within the value systems of being the United States, being the champion of the free world. I do not believe in torturing people, but I do believe-- does the Senator agree with me that when it comes to interrogating people, sometimes the best tool is time?

Does the Senator agree with me that we gathered good intelligence over time from people held at Guantanamo Bay?

Without water boarding them?

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?

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

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?

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?

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?

So everybody held after judicial review for the first time in the history of warfare.

Does the Senator agree with me that the annual review process that we have created by this law, this bill, the Defense Authorization Act, is something we have not done in other wars?

Every detainee not only gets their day in Federal court, the government must prove they have a solid case to hold them as an enemy combatant, and everyone gets a yearly review as to whether they are a continuing threat?

Is the Senator familiar with competency hearings in the civilian court?

In our civilian law, we can hold people who are a danger to themselves or others without a trial but with judicial oversight; is that correct?

Would the Senator agree with me that it is very smart to evaluate whether we should allow someone to be let go and intelligence professionals should be able to make that decision as to whether the individual is a military threat, that that is a logical process?

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

Some of these people have gone back to fighting and killed American soldiers?

Does the Senator agree with me that the dangers our Nation faces do not justify changing existing law, denying this country the ability to gather intelligence even against an American citizen joined with al-Qaida, that that would be an unwise decision given the dangers we're facing?

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

I thank the Senator.

Yes, it is.

That is correct.

Yes.

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.

Yes. The point is----

Right. What we have done in the Military Commissions Act in 2009, civilians, American citizens cannot be tried in military commissions. It can only go to Federal court. But the point we are trying to make is it has been long held in this country that when an American citizen abroad or on the homeland decides to help the enemy, we have the right to hold them, not under a criminal theory but under the law of war because their effort to help the enemy, I say to my good friend from Illinois, is an act of war against their fellow citizens.

This is so important. If we deny our country the ability to hold and interrogate an American citizen who has joined forces with al-Qaida, we lose the ability to find out the intelligence they may have to keep us safe. If the choice is that an American citizen who chooses to collaborate with al-Qaida must be put in the criminal justice system, meaning they will have criminalized the war, the Congress will have restricted executive branch power.

To make it clear--please understand, I say to Senator Feinstein--the courts of the United States have acknowledged that the executive branch can hold an American citizen as an enemy combatant when they engage and assist the enemy. The courts of the United States recognize the power of the executive to do that as Commander in Chief.

The question for us is, Do we want to be the first Congress in the history of the Nation to say to the executive branch that they no longer have that power given to them by the courts, inherent with being Commander in Chief, to protect us against enemies foreign and domestic.

I argue to my colleagues, given the threats we face from homegrown terrorism, from al-Qaida groups and their affiliates, that now is not the time to change the law preventing our military intelligence community from holding an American citizen who is helping the enemy on the homeland and prevent them from gathering intelligence.

I argue that the reason no other Congress has done this in past wars is because it didn't make a lot of sense. I argue that if a Senator came to the floor of the Senate during World War II and suggested that an American citizen who sided with the Nazis to sabotage American interests here could not be held as an enemy combatant, they would have been run out of town because most citizens would say anybody who helps the enemy--citizen or not--is a threat to our country.

Unlike other wars, we do have due process that exists today that never existed before. No Nazi soldier was able to go to a Federal court and say: Judge, let me go. The reason I have agreed, and the courts have applied habeas review to enemy combatant determination, is this is a war without end.

How does one become an enemy combatant? The executive branch makes the accusation. They have to follow the statutory criteria. This is a limited group of people in a limited classification. American citizen or not, if someone falls into this group, they can be held as an enemy combatant. But the executive branch has to prove to an independent judiciary that the case is sufficient, and under the law the judge has to agree with the military; we have an independent judiciary looking over the shoulder of the military in this war, unlike at any other time. So the government has to prove to a Federal judge, by a preponderance of the evidence, that this person is, in fact, an enemy combatant. If the judge disagrees, they are let go. If the judge agrees, we hold the enemy combatant, and they get an annual review process as to whether future detention is warranted. So we have robust due process.

But please understand what the Feinstein amendment is about. It is about the Congress of the United States, the Senate of the United States, for the first time in American history, restricting the ability of the executive branch to hold an American citizen who is collaborating with the enemy and question them under the law of war. If we do that to ourselves, we will regret it. I don't want to be in the first Congress, in the times in which we live, to change the law to deny our intelligence community and the Department of Defense the ability to deal with American citizens who have decided on their own to become part of al-Qaida. The day one decides they are going to side with al-Qaida, they have committed an act of war against the rest of us, and the courts acknowledge they can be held as an enemy combatant, not a common criminal.

The question for the Congress is, Do we want to undo that in the times in which we live? I plead with everybody in this body, get yourself educated about what the law is today. I ask Senator Levin, we have done nothing to change the law in this bill; is that correct?

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?

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

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

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

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

Under the law as it exists today, an American citizen can be held as an enemy combatant. The question we are debating on the floor--Senator Feinstein is saying that in the future an American citizen who is deemed to have collaborated with al-Qaida or the Taliban or others could no longer be held as an enemy combatant for an indefinite period, which means we cannot gather military intelligence as to what they know about past, present, and future attacks.

I argue we would be the first Congress in history to bring about that result and that now would be the worst time in American history to do that. If we cannot hold a citizen who is suspected of assisting al- Qaida under the law of war, the only option is to put them in the criminal justice system. Then we cannot hold them indefinitely, and we cannot ask about present, past or future attacks because now we are investigating a crime, nor should we be allowed to do that under criminal law.

The point is that when a person assists the enemy, whether at home or abroad, they have committed an act of war against our citizens, and the Supreme Court has acknowledged that the executive branch has the power to hold them as an enemy combatant. The question is, Are we going to change that and say in the 21st century, in 2011, every American citizen who chooses to cooperate with al-Qaida can no longer be interrogated for intelligence-gathering purposes by our Department of Defense and our intelligence community; that they have to go into the criminal justice system right off the bat, where they are given a lawyer and are read their Miranda rights? If we do that, we are going to deny ourselves valuable intelligence. We would be saying to our citizens that we no longer treat helping al-Qaida as an act of war against the rest of us.

If one suggested during World War II that someone who collaborated with the Nazis should be viewed as a common criminal, most Americans would have said: No, they turned on their fellow citizens and they are now part of the enemy.

All I want to do is keep the law as it is because we need it now more than ever. I am sensitive to due process. There is more due process in this war. Every enemy combatant being held at Guantanamo Bay, captured in the United States, has to go before a Federal judge. The military has to prove their case to a Federal judge. There is an annual review process. That makes sense to me. What doesn't make sense to me is for this country and this Senate to overturn a power that makes eminent sense when we need it the most. It doesn't make sense to set aside a Supreme Court case that acknowledges that when an American citizen affiliates with al-Qaida, that is an act of war against the rest of us and to criminalize that conduct, denying us the ability to gather intelligence. If we go down that road, we have weakened ourselves as a people, without any higher purpose.

To those American citizens thinking about helping al-Qaida, please know what will come your way: death, detention, prosecution. If you are thinking about plotting with the enemy inside our country to do the rest of us harm, please understand what is coming your way: the full force of the law.

The law I am talking about is the law of armed conflict. You subject yourself to being held as an enemy of the people of the United States, interrogated about what you know and why you did what you did or planned to do, and you subject yourself to imprisonment and death. The reason you subject yourself to that regime is because your decision to turn on the rest of us and help a group of people who would destroy our way of life is not something we idly accept. It is not a common, everyday crime. It is a decision by you to commit an act of aggression against the rest of us.

I hope and pray this Senate will not, for the first time in American history, deny our ability to interrogate and find intelligence from those citizens who choose to associate with the enemy on our soil, because if we do that, it will be a deviation from the law that has existed at a time when we need that law the most.

May I respond?

No. And there should not be. Could I finish my thought?

Now, we are good friends, and we are going to stay that way. But you keep saying something, Senator Durbin, that is not true. The law of the land is that an American citizen can be held as an enemy combatant. It is the Hamdi decision, and I quote:

There is no bar to this Nation's holding one of its own

citizens as an enemy combatant.

Hamdi was an American citizen captured in Afghanistan fighting for the Taliban. Justice O'Connor specifically recognized that Hamdi's detention could last for the rest of his life because law of war detention can last for the duration of the relevant conflict.

The Padilla case involves an American citizen captured in the United States, held for 5 years as an enemy combatant, and the Fourth Circuit reviewed his case and said that we could hold an American citizen as an enemy combatant.

To my good friend from Illinois, throughout the history of this country American citizens in every conflict have, unfortunately, decided to side with the enemy at times. In re Quirin is a 1942-1943 case that involved American citizens assisting German saboteurs. They were held under the law of war because the act of collaborating with the enemy was considered an act of war, not a common crime.

So the law of the land by the courts is that an American citizen can be held as an enemy combatant. That has been the law for decades.

What Senator Feinstein would do is change that. The Congress would be saying we cannot hold an American citizen as an American combatant.

I do appreciate the time. Now, let me tell you why I think that is important.

The Senator is a very good lawyer. Under the domestic criminal law, we cannot hold someone indefinitely and question them about enemy activity: What do you know about the enemy? What is coming? What were you doing? Where did you train? Under domestic criminal law, we can't question somebody in a way that would put them in jeopardy.

Under military intelligence gathering we can question an enemy prisoner without them having a lawyer to be able to find out how to defend America. If we can't hold this person as an enemy combatant, the only way we can hold them is under domestic criminal law. When the interview starts and the guy says: I want my lawyer; I don't want to talk to you anymore--under the criminal justice model there is a very limited time we can hold them or question them without reading them their rights or giving them a lawyer.

Under intelligence gathering our Department of Defense, the FBI, and the CIA can tell the individual: You are not entitled to a lawyer. You have to sit here and talk with us because we want to know what you know about present, past, and future attacks.

If we can't hold an American citizen who has decided to collaborate with al-Qaida as an enemy combatant, we lose that ability to gather intelligence. That is the change that Senator Feinstein is proposing; that the law be changed by the Congress to say enemy combatant status can never be applied to an American citizen if they collaborate with al-Qaida. That would be a huge loss of intelligence gathering, it would be a substantial change in the law, and it would be the first time any Congress has ever suggested that an American citizen can collaborate with the enemy and not be considered a threat to the United States from the military point of view. I don't want to go down that road because I think that is a very bad choice in the times in which we live.

So to my good friend, the law is clear we can hold an American citizen as an enemy combatant. The Congress is contemplating changing that, and I think it would be a very bad decision in the times in which we live to deny our ability to hold an American citizen and question them about what they know and why they decided to join al-Qaida.

Simply stated, if a person decides to collaborate with al-Qaida in a very limited way, can we hold them? They have to be a member of al-Qaida or affiliated with it or be involved in a hostile act. But if they do those things, historically, American citizens who chose to side with the Nazis--in this case, al-Qaida--have been viewed by the rest of us not as a common criminal but as a military threat.

Now is not the time to change that. We need that ability to question that person: Why did you join al-Qaida? Where did you train? What do you know about what is coming next? And the only way we can get that information is to hold them as an enemy combatant and take all the time we need to protect this Nation and interrogate.

Yes, sir. I appreciate the exchange.

And, was I right?

May I respond and say the Senator is right.

I am an all-of-the-above guy. I believe that military and civilian courts should be used.

When an American citizen is involved, does the Senator agree with me that military commissions are off the table?

Absolutely.

Here is the point I am trying to make.

Thank you. And this is a very good exchange.

My view is that when we capture somebody at home and the belief is that they are now part of al-Qaida, that if we want to read them their Miranda rights and put them in Federal court, we have the ability to do that. This legislation doesn't prevent that from happening.

Does it, I ask Senator Levin?

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.

Please understand what you are about to do if you pass the Feinstein amendment. You will be saying as a Congress, for the first time in American history, an American citizen who allies himself with an enemy force can no longer be held as an enemy combatant. The In Re Quirin decision was about American citizens aiding Nazi saboteurs, and the Supreme Court held then that they could be held as enemy combatants. So as much respect as I have for Senator Durbin, it has been the law of the United States for decades that an American citizen on our soil who collaborates with the enemy has committed an act of war and will be held under the law of war,

not domestic criminal law. That is the law back then. That is the law now.

Hamdi said that an American citizen--a noncitizen has a habeas right under law of war detention because this is a war without end. The holding of that case was not that you cannot hold an American citizen, it is that you have a habeas right to go to a Federal judge and the Federal judge will determine whether the military has made a proper case. It has nothing to do with an enemy combatant being held as an American citizen. What this amendment would do is it would bar the United States in the future from holding an American citizen who decides to associate with al-Qaida.

In World War II it was perfectly proper to hold an American citizen as an enemy combatant who helped the Nazis. But we believe, somehow, in 2011, that is no longer fair. That would be wrong. My God, what are we doing in 2011? Do you not think al-Qaida is trying to recruit people here at home? Is the homeland the battlefield? You better believe it is the battlefield.

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

That is the point. Why would you say that if you are in Afghanistan, we can blow you up, put you in jail forever, but if you make it here, all of a sudden we cannot even talk to you about being part of al-Qaida. What a perverse outcome, to say if you make it to America, you are home free; you cannot be interrogated by our military or our CIA; you get a lawyer. And that is the end of the discussion. That is what you would be doing. That is crazy. No Congress has ever decided to do that in other wars. If we do that here, we are changing the law in a way that makes us less safe. That is not going to be on my resume.

It is not unfair to make an American citizen account for the fact that they decided to help al-Qaida to kill us all and hold them as long as it takes to find intelligence about what may be coming next. And when they say ``I want my lawyer,'' you tell them ``Shut up. You don't get a lawyer.''

``You are an enemy combatant, and we are going to talk to you about why you joined al-Qaida.''

If I may, I find the discussion fascinating. May I enter into the colloquy?

I thank the Chair.

As I understand it, the reason the Senator is having to do this is because President Obama, by Executive order, prevented the CIA and other agencies from using any enhanced interrogation techniques that have been classified in the past; is that correct?

If I may, let me ask another question. All of us agree we don't want to torture anybody. Waterboarding is not the way to get good intelligence. Not only is it not the right thing to do, it is just not the wise thing to do. But we believe we have gone too far the other way; that when the President said no interrogation technique is available to our intelligence community other than the Army Field Manual, does my colleague agree that, for the first time in American history, we are advertising to our enemies what we can do to them if we capture them, and no more can be done?

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. President, I ask unanimous consent that the order for the quorum call be rescinded.

I would ask to be notified when 10 minutes is up.

I would like to do a colloquy with my good friend from Connecticut.

Senator Lieberman said something that I think we need to sort of absorb. As the chairman of the Homeland Security Committee, does the Senator believe the likelihood of American citizens being recruited, enlisted, and radicalized on behalf of al-Qaida is going up? Is that what the Senator is trying to tell us?

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?

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?

Under the Posse Comitatus Act, the military cannot be used for domestic law enforcement functions. Does the Senator agree with me that tracking al-Qaida operatives--citizen or not--within the United States is not a law enforcement function; it is a military function?

But our military has the ability to defend us against al- Qaida attacks at home, such as they do abroad.

So if the Department of Defense somehow intercepted information about an al-Qaida cell, let's say in Connecticut or South Carolina, could they be involved in suppressing that cell?

As a team effort.

Let's imagine a scenario next week where we find an al- Qaida cell exists that is planning a series of attacks against the United States, and within that cell we have some American citizens and we have people who have come here who are noncitizens.

Would the Senator agree with me, since Congress has designated cooperating or collaborating with al-Qaida to be an act of war, that entire cell could be held as enemy combatants and questioned by our intelligence community as to what they know about the attack and questioned on future attacks?

So would the Senator agree with me that the current law is very clear that anytime an American citizen joins the enemy force, they can be held as an enemy combatant; that is the law?

If we capture an American citizen as part of this cell and we can't hold them as an enemy combatant for intelligence-gathering purposes, does domestic criminal law allow us to hold someone for an indefinite period of time to gather military intelligence?

Does domestic criminal law focus on the wrongdoing of the actor, based on a specific event, when we are trying to resolve a dispute between the wrongdoer and the victim?

Does the Senator agree with me the reason the Supreme Court has recognized that an American citizen could be held as an enemy combatant if they collaborate with an

enemy is that the Court views that as an act of war; and under the powers of the Commander in Chief, he can suppress all the enemies, foreign and domestic, that are at war with us?

So our courts have recognized that during a time of hostilities, the executive branch has the authority to detain an American citizen who is helping the enemies of the Nation. The question is, Does the Congress want to change that for the first time ever?

I would like to add something that my good friend from Rhode Island got me thinking about. I have always tried to explain indefinite detention, what are we trying to do here? Clearly, in war, there is no requirement to let the enemy prisoner go back to the fight after the passage of time. We don't want to let any enemy prisoner go back to the fight because that makes no good sense. The problem with this war is, there is no definable end. That is the reason we have a habeas review, because we will never know when hostilities are over. So an enemy combatant determination could be a de facto life sentence, and that is why our Supreme Court said we want a judicial check on the executive branch.

So every enemy combatant will have their day in Federal court, and the government has to prove, by a preponderance of the evidence to an independent judge, that the decision to hold this person is warranted under the law. That was what the Hamdi case was about. I think that makes sense because it will not be the traditional war; it will be a war without a definable end.

The idea of continuing to hold them, if the judge says to the government: You are right, there is compelling evidence this person was involved with al-Qaida, tried to get involved with a hostile act; you are right, they are part of the enemy, you can hold them forever. But we have come up with an annual review process to make sure they will have a chance every year to have their case looked at.

Senator Whitehouse got me thinking. In our own law, under the civil justice system--such as Hinckley, the man who shot President Reagan, he was acquitted in court, by reason of insanity, of shooting President Reagan. He has been in a psychiatric hospital ever since, and he can be held away from the community because he is a danger to himself or others.

I think what Senator Whitehouse is saying is, the idea that we can hold someone--the Court has agreed with the government--as part of the enemy force as a continuing threat is not an unknown concept. We just have to have a review.

I thank the President.

I would suggest to our colleagues, let's think this thing through. Let's realize that if the enemy is coming to our homeland, the enemy is recruiting American citizens; and if we find an American citizen who has, in fact, joined forces with al-Qaida, our No. 1 goal should be to gather intelligence to prevent future attacks and to find out what that person knows about what the enemy is up to. Our secondary concern should be prosecution. When we interrogate somebody as the enemy combatant, the best thing we have on our side is time. I don't want to waterboard anyone, but I want to keep them in a controlled environment where time is on our side, and I will argue that the best information we have from Guantanamo Bay detainees did not come from waterboarding, it came from the fact that we could hold them for an indeterminate period of time, and through time, they began to cooperate and tell us valuable information.

Does the Senator agree that is the concept we need to hold onto in this war?

Wouldn't the Senator agree that under domestic criminal law, that indefinite ability to question about enemy activity doesn't exist?

And to my colleagues----

I acknowledged in the Christmas Day Bomber case, in the Times Square attempted bombing, that they were put in Federal court. I am okay with that. I do believe in the ``all of the above'' approach. Our Federal courts can handle cases involving transnational terrorists and al-Qaida members and so can military commissions. The idea of reading somebody their Miranda rights may be the best interrogation technique. I know that we were able to get some good information after reading Miranda rights.

I guess the point I am trying to make is I acknowledge that the people doing the interrogation are better suited to make that decision than I am. I just don't want the Congress by legislation to say for the first time in the history of the country in this war--unlike any other war you no longer have it available to you, the U.S. Government, the ability to hold somebody as an enemy combatant if you believe that is the best way to gather intelligence. I am not saying the other system cannot be used. Let's leave it up to the professionals.

But the Senate is suggesting through the legislation being proposed that the idea of holding an American citizen who is suspected of collaborating with al-Qaida that they can no longer be held as an enemy combatant is not only changing the law, it is taking off the table a tool that I think we need now more than ever. I don't want us to lose sight of the fact of what we are doing here and what it would mean to our country and our ability to defend us. No one in World War II would have tolerated the idea that someone who collaborated with a Nazi trying to kill us on our own soil would have any other disposition than to be considered an enemy of the American people.

My question for this body is: Do you think al-Qaida is an organization that doesn't present that same kind of threat? Is it the Senate's desire to say during these times that an American citizen can collaborate with al-Qaida to kill us on our own soil and that is no longer considered an act of war? I would argue that that would be one of the most irresponsible decisions ever made in a time of war by an elected body. It not only would change the law as we know it, it would create an opportunity and a hole in our defenses at

a time when, as the Senator has indicated, the threat is growing.

I say to Senator Lieberman, thank you for being a steady, stern, consistent voice along the line that since 9/11 our Nation has been in an undeclared state of war. The enemy still roams the globe. They have as their hope and dream hitting us again here at home. And, for God's sake, let's not weaken our defenses in a way that no other Congress has ever chosen to weaken the executive branch in the past. I thank the Senator for his service.

Mr. President, I will wrap this up. I know we have colleagues who want to speak. Let me reiterate what Senator Lieberman said. There is a stream of thought that every member of al-Qaida, American citizen or not, is an enemy of the people of the United States in a military sense, not a criminal sense, and they should be in a military tribunal. That is the way we have handled most cases in the past.

Here is what I believe: I believe that the choice of venue should lie with the executive branch, and I think there is a very robust role for article III courts. So I don't want to say from a congressional point of view that every member of al-Qaida has to be tried by a military commission all the time, because, quite frankly, sometimes article III courts could be the better venue. When it comes to telling the executive branch that you have to put a noncitizen in military custody inside the United States, I think that is the right way to do it, but I don't know enough, so if there is a reason to waive that provision, the experts can waive it.

I have been very cautious about micromanaging the executive branch because they are the ones fighting the war. We have a role to play, we have a voice to be heard, and here is what I am urging some my colleagues. This compromise is not what some of our friends wanted, such as Senator Lieberman and, quite frankly, it is not what the ACLU wants, because they don't buy into the idea that al-Qaida operatives are anything other than common criminals. So you have two poles here. I believe an al-Qaida operative is not a common criminal, and if an American citizen joins al-Qaida they should be treated as an enemy combatant as one possibility. But if you want to go down the other road, you can go down that road. I just don't want us to take off the table, for the first time in the history of America, that an American citizen trying to help the enemy kill us here at home somehow can no longer be talked to by our military to gather intelligence. That is a crazy outcome.

I think we have a good bill that gives maximum flexibility to the executive branch but preserves the tools we are going to need now and into the future. And to my colleagues, please ask yourself: If in World War II we could hold an American citizen who tried to help the Nazis blow up America as an enemy combatant, why wouldn't you want to help hold an American citizen who is helping al-Qaida--which did more damage to the homeland than the Nazis--as an enemy combatant? Why would you want to take off the table the ability to hold that person, humanely interrogate them to find out why they joined, who they talked to and what they know? Because what they know and who they talked to may save thousands of lives. For us to say you cannot do that for the first time in the history of the country would be a colossal mistake.

I yield the floor.

Ten minutes. Is that too much? Five minutes.

Seven?

I will try to be quick.

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

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.

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.

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.

Would the Senator yield for a question?

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. 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. 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.

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.

Yes.

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

Mr. President, I ask my colleagues to join me in recognizing Michele Wymer for her outstanding service to her country in her role on the Department of State, Foreign Operations, and Related Programs Subcommittee. Before Michele and her family leave for greener pastures, I wanted to express my appreciation and thanks for her service to the Senate.

For the past five years, Michele has diligently worked on issues important to America's national security, including those mitigating the devastating impact of HIV/AIDS globally, providing security and stability through development assistance, and addressing the needs of refugees. She performed her duties in a professional manner, including conducting oversight on the ground in conflict areas such as Chad, Iraq, Afghanistan, Pakistan, and the Democratic Republic of the Congo. I know I speak for the subcommittee staff in saying that Michele will be missed not only for her good work and professionalism, but also for her good humor and compassion.

I ask that the Senate join me in recognizing Michele's outstanding service and wishing her family a safe journey and an exciting new chapter in their lives.

Madam President, one, I would like to begin by thanking Senators Levin and McCain. I don't know how long Senator Levin and I have been working on this together--it seems like forever--trying to get a detainee policy in a post-9/11 world that the courts will accept and that lives within our values. I have just been thinking throughout the years about the journey we have taken--beginning with the Bush administration--where the idea of indefinite detention of unlawful enemy combatants originated by executive order.

I do believe, since 9/11, we have been in a state of undeclared war with organizations such as al-Qaida. The Congress created legislation early on--right after the attacks of 9/11--allowing the President to use military force against al-Qaida. Part of being able to engage someone militarily is to detain those we capture. But that has been years ago. This is the first time Congress has spoken since the early days of the war.

We tried during the Bush administration to work with the Bush people to create a law of war detention system by statute. We had a problem there. They felt the executive order was the way to go. I have always believed when the Congress and the White House work together, the courts appreciate it as being a more collaborative process. So we went from sort of one extreme--to where we had military commissions that were almost legislating a conviction--to a better product, and the end product was the 2009 bill we worked on with Senator Levin that got almost 80 votes. So we have come a long way.

About the detention issue. Here is what I have been trying to accomplish for years. I wish to make sure we understand the difference between fighting a war and fighting a crime. When it comes to al-Qaida operatives, whether they are captured in the United States or overseas, the first thing we should be doing as a nation is trying to find out what that person knows about the attack in question or future attacks. When we capture an enemy prisoner, the first thing our military does is turn the person over to the military intelligence community for questioning.

I am of the belief that we have the ability to question people under the law of war without congressional authorization. But when the Congress acts, it is better for us all. So in this bill, working with Senators Levin and McCain, we have, as a body, said the President--this President and all future Presidents--will have the ability to detain a member of al-Qaida and other allied organizations, regardless of where they are captured in the world, and hold them as an enemy combatant.

Under the law of war, when we capture an enemy prisoner, there is no magic date we have to let them go. The problem with this war, unlike other wars, is there will not be a definable end. We had 400,000 German prisoners in military prisons inside the United States during World War II. We weren't going to let those folks go if they had been in jail 1 year. Not one of them got to go see a Federal judge saying: Let me out of here.

Under the law of war of our military, the executive branch of government has the authority to protect the Nation, and courts have not interfered with that 200-year right.

What is different about this war? There are no capitals to conquer, there is no air force to shoot down or navy to sink. So we have people who don't wear uniforms who are roaming the globe, and they don't have a home country, they have a home idea, and we are fighting an ideology. Sometimes they make it to our soil and sometimes they don't.

So here is what we are trying to do. We are trying to create a hybrid system, for lack of a better word. If you captured an al-Qaida member overseas in Afghanistan, Iraq, or Yemen, it is clear that they have no constitutional right to petition a judge in the United States: Let me go.

When we put people in Guantanamo Bay, the Bush administration argued that prison wasn't subject to legal review by our courts. And in the Hamdi case involving a U.S. citizen captured in Afghanistan, the Supreme Court held that we could hold an American citizen as an enemy combatant. They suggested to the Bush administration a procedure to ratify that decision. They pointed to an Army regulation, 190--I can't remember the number--and we tried to come up with a procedure that would allow us some due process as a nation for an enemy combatant, including an American citizen.

In the Boumediene case, the Court said: Wait a minute. We are going to allow a habeas petition by those held as enemy combatants--American citizens or non-American citizens--if they are at Guantanamo Bay because we have control over that facility. That is part of the United States in terms of our legal infrastructure.

So the law of the land is that if you are captured overseas, even if you are an American citizen, you can be held as an enemy combatant and questioned by our military with no right to proceed to a criminal venue. It is not a choice to try them or let them go. You can hold an unlawful enemy combatant for an indefinite period of time just like you could hold any other enemy prisoner in any other war. But what we have done differently in this war is we have said: Our courts will review the military's decision to declare you as an enemy combatant in a habeas procedure--not a criminal trial but a habeas procedure--as to whether there is sufficient evidence to label you as an unlawful enemy combatant.

So, to my colleagues on the other side, the law of the land by the Supreme Court is that an American citizen can be held as an enemy combatant. Like every other enemy combatant, they have habeas rights, but they don't have the right to say: Try me in a civilian court or military commission court, because when we capture someone, the goal is to gather intelligence.

The Christmas Day Bomber, the Times Square case--the reason many of us want military custody from the outset is that under domestic criminal law, other than a very narrow public safety exception, we don't have the right under criminal law to hold someone for an indefinite period of time without providing them a lawyer and telling them what their legal rights are or charging them in a court of law. And let me say, as a military lawyer, I would never want that to be the case. I don't want to change our domestic criminal system to allow us to grab someone and hold them indefinitely, pending criminal charges, without the right to a lawyer, the right to remain silent being presented to the defendant, and presentment to court, because that is what criminal law is all about. Under military law, whether it is here at home or abroad, you can hold someone suspected of being an enemy agent, enemy prisoner, and you can interrogate them humanely and lawfully--and we have good laws now governing interrogation procedures--without having to present them to a court. That is the difference between intelligence gathering and fighting a crime.

The Padilla case was an American citizen captured inside the United States. He was held for about 4 years in Charleston Naval Brig, and the Fourth Circuit Court of Appeals ruled that, yes, an American citizen captured within the United States can be held as an unlawful enemy combatant, but they have the right to counsel when it comes to presenting their habeas case. They don't have the ability to tell the interrogator and the military: I don't want to talk to you now. I want my lawyer.

When you are talking to a military interrogator or the FBI or the CIA trying to gather intelligence, you don't have a right to remain silent, you don't have a right to a lawyer because we are trying to defend ourselves against an enemy bent on our destruction. The day we decide to treat you as a common criminal, even a terrorist suspect, all those civilian rights attach.

So this bill is trying to create a process that if you are captured in the United States, this legislation says

that you will be presumptively put in military custody because that is the only way we can hold you and interrogate you because under domestic criminal law, that is not available, nor should it be.

There is a waiver provision here. If the administration believes that military custody is not the right way to go, they can waive that. But the day you turn someone over to civilian authorities for the purpose of prosecution, you have a very limited window to gather intelligence because all the criminal rules apply. And what we are trying to do is to make sure we can defend ourselves and not overly criminalize the war. That is why this is so important.

As to the White House concerns--they wanted to have that flexibility without any statutory involvement--I believe this will serve the Nation well long after President Obama leaves office. I don't know who the next President will be, but I do believe this: We will be under threat and siege by an enemy bent on our destruction.

So if you believe, as I do, that we are at war but it is a different kind of war, please give your Nation--our Nation--the ability to defend us. And the best way to be safe in the war on terror is to gather good intelligence and hit them and stop them before they hit you because they could care less about dying. So intelligence gathering is the way to keep us safe.

Most enemy prisoners captured in traditional wars never go to court. The last thing I am worried about is how you prosecute these guys. The first thing I worry about is, what do they know, and what is coming our way?

So the provisions of 1032 apply to captures within the United States. And we are saying that when an al-Qaida operative suspected of being involved in a terrorist act--a very limited class of cases, by the way--is captured on our soil, we would like them to be in military custody from the get-go. But we have provisions that say: You don't have to make that decision or interrupt an interrogation. There is a window of time in which you can deal with the case without having to make the waiver. We are not impeding interrogations, and we are not saying you have to stay in military custody forever because we give this administration and future administrations the flexibility to waive that provision if it makes sense.

To the Christmas Day Bomber--he was read his Miranda rights within an hour, his family was involved, and it turned out that he pled guilty. I am not a professional interrogator, but I do know this: You don't read an enemy prisoner their rights when you capture them on the battlefield in a war. The question is, Is the United States part of the battlefield? That is really what this is about. Are we going to allow the enemy to get here, and all of a sudden all the rules change because they made it to our homeland? I would argue that the closer they are to us, the more we want to know. So it would be an absurd outcome that if somehow the enemy could find a way to get to our homeland, all the rules change because if you capture one of these guys in Yemen, nobody is suggesting you have to give them a lawyer.

Well, when you get to the United States, what we are suggesting is that we have a legal system that understands the difference between fighting a war and fighting a crime, and if you are suspected of being an al-Qaida member, citizen or not, we are going to find out what you know through lawful interrogation techniques. That has to be done under the military system because civilian domestic criminal law doesn't allow that to be done.

That is what we created here--a bifurcated system with waivers. If we don't have this in place, we are going to lose intelligence and our Nation is going to be at risk. People are going to get killed if we lose good intelligence.

So, to me, the idea of reading someone their Miranda rights doesn't make a lot of sense, but you have the flexibility to do that, if you choose, out in the field. You just have to get a waiver. So when you capture somebody on the homeland, I don't want our people to think that you have to give them a lawyer and read them their rights and that you can't question them about what they know about attacks against our homeland. That is dumb. That doesn't make us a better people, that makes us less safe. Let's put them in military custody, with the right to waive that. Let's give our interrogators plenty of time to find out what is going on. Then we will make a decision about where to prosecute.

I believe Federal courts have a role in the war on terror. There have been plenty of cases involving terrorism that went to Federal court where you had a good outcome. There have been cases going to Federal court where you had less than a stellar outcome. The key is, if you are holding an enemy combatant for 4 or 5 years under the law of war, I don't think it makes sense to put them in civilian court. You should put them in military commissions. And we are talking about people we have been holding for a period of time because we looked at them as a military threat, not as a common criminal.

So the provisions in 1032 are good law that will stand the test of time. It will allow us on our homeland to do what we can do overseas. Wouldn't it be odd not to be able to protect yourself because the enemy got to the United States less than you could if you captured them overseas?

Now let's talk a little bit about American citizens. There are a few people--and I give them credit for having passionate, honest-held beliefs that the President of the United States doesn't have the authority to designate an American citizen who has now joined al- Qaida--to issue an order to kill him--this al-Awlaki guy who was in Yemen. The bottom line is, the President, through a legal process we created years ago, made a determination that an American citizen has joined the enemy forces, and he issued an order through a legal process that says: If you find this guy, you can capture or kill him.

Now, wouldn't it be odd if you had a law that says you can kill somebody, but when you capture them, you can't hold them for a very long time, you can't indefinitely detain them? Well, death is pretty indefinite. So if you can kill a guy, why in the world can't you hold them and interrogate them to find out what they know about this attack or future attacks?

So let's be consistent. It makes sense to me that if an American citizen wants to join al-Qaida, they are no longer our friend, they are our enemy. And if the evidence is solid and it has gone through a legal process and this President or any other President determined that an American citizen is now operating abroad trying to harm us, joining al- Qaida, I believe they have the absolute legal and moral authority to identify that person as a threat to the United States; kill or capture. And if you don't agree with me, fine. I think about 80 percent of my fellow citizens do. It would be absurd not to be able to have that ability. Citizenship is something to be respected. It is something to be cherished. It is not a ``get out of jail free'' card when you turn on your fellow citizens.

So at the end of the day, we have a system in place now that I am very proud of.

To Senator Levin, we have negotiated and we have compromised because the administration had some legitimate concerns. They had some legitimate concerns about Congress overly mandating how you detain, interrogate, and try prisoners. What we have come up with is the balance I have been seeking for 5 years. If you capture someone in the United States, you start with the presumption that you are going to gather intelligence in a lawful manner and prosecution is a secondary concern. We give the executive branch the ability to waive that requirement, and we have conditions on that requirement that will not interrupt an interrogation.

But we need to let this President know, and every other President, that if you capture someone in the homeland, on our soil--American citizen or not--who is a member of al-Qaida, you do not have to give them a lawyer or read them the rights automatically. You can treat them as a military threat under military custody, just like if you captured them overseas.

So this provision that Senators Levin, McCain Ayotte, and all of us have worked on makes perfect sense to me. It is a balance between protecting our homeland, living within our values, and giving the executive branch the flexibility they need to protect us, but just using good old-fashioned common

sense. Under domestic criminal law, you cannot hold someone indefinitely without giving them a lawyer or reading them their rights, nor should you. But under military law, if you have evidence that the person is a military threat, you don't have to give them a lawyer. That makes no sense whether you capture them here or overseas.

Everyone held as an unlawful enemy combatant has the right to access our Federal courts. Under this bill, it is not just one time you get to go to court. We create an annual review process so that if you are held as an enemy combatant in military prison or civilian prison, you will get an annual review. We don't want you to go into a black legal hole. We don't want an enemy combatant determination to be a de facto life sentence.

I am proud of this work product. We go further than what the courts require. The courts require a habeas review of any person held as an enemy combatant. But at the end of the day, we say you have an annual review.

That requirement is for people captured in the United States, held at Gitmo. It doesn't apply to people held in Afghanistan. Thank God it doesn't. But in circumstances where someone is captured in the United States, held at Guantanamo Bay, every person will have their day in court to challenge the status of enemy combatant, and if they are going to be held indefinitely, they are going to get an annual review process as to whether it makes sense to hold them for 1 year.

Again, I wish to emphasize in war we do not have to let people go who are a danger. Most of these cases are intel cases. We are not fighting a crime, we are fighting a war. If the intelligence is good enough to convince a Federal judge that this person is a military threat, why in God's name would you want to let him go because of the passage of time? Our message to al-Qaida recruits is don't join al-Qaida because you could get killed or wind up dying in jail. Isn't that the message we want to send? Why in the world would we require our Nation to release somebody when the evidence presented to a Federal judge is convincing enough for him to sign off on what the military determined at an arbitrary point in time? That doesn't make us better people. It would make us less safe.

This bill is a very sound, balanced work product, and I will stand by it, I will fight for it, and I respect those who may disagree. But why did we take out the language Senator Levin wanted me to put in about an American citizen could not be held indefinitely if caught in the homeland? The administration asked us to do that. Why did they ask us to do that? It makes perfect sense. If American citizens have joined the enemy and we captured them at home, we want to make sure we know what they are up to, and we do not want to be required, under our law, to turn them over to a criminal court, where you have to provide them a lawyer at an arbitrary point in time. So the administration was probably right to take this out.

Simply stated, if you are an American citizen and you want to join al-Qaida: Bad decision; you could get killed or you could spend the rest of your life in military prison as a military threat or you could wind up in an article 3 court and maybe get the death penalty. I want people to know there is a downside to joining the enemy. I want to give our country the tools we need as a nation to fight an enemy and do it within our values. I don't want to waterboard people, but I don't want the only interrogation tool to be the Army Field Manual, online where anybody can read it. I wish to make sure everybody has a chance to say: I am not an enemy combatant. But I don't want to criminalize the war by capturing somebody on our soil and saying: You have a right to remain silent, when we would never read that right and present that to them if we captured them overseas.

We want to make sure we can gather intelligence, whether we capture them at home or abroad, whether they are an American citizen or not, if there is evidence they have joined al-Qaida.

To my colleagues, if you join al-Qaida, no matter where you join, no matter where you take up arms against the United States, we have every right in the world to treat you as a military threat. People who have joined al-Qaida are not members of a mob. They are not trying to enrich themselves. They are trying to put the world into darkness. Our laws need to distinguish the difference between a guy who robbed a liquor store and somebody who wants to blow up an airplane over Detroit or blow up innocent people in Times Square. If you do not understand that difference and if you do not have a legal system that can recognize that difference, then we have failed the American people.

This is a good work product. It has strong bipartisan support. We worked with the administration. But we are in a long war where a lot is at stake. I have tried to be as reasonable as I know how to be, and this work product is the best effort of a lot of well-meaning people, Republicans and Democrats. I will defend it. If you want to keep arguing about it, some people suggested we will talk a long time about this--yes, we will talk a long time about this. We will have a good discussion among ourselves as to whether an al-Qaida operative caught in the United States gets more rights than if we caught him overseas. We will have an argument among ourselves as to whether our military should be able to gather intelligence to protect us, regardless of where the person is captured, and the question for the nation is: Is America part of the battlefield? You better believe it is part of the battlefield. This is where they want to come. This is where they want to hurt us the most. If they make it here, they should not get more rights than they would get if they attacked us overseas.

They should not be tortured because it is about us, not about them. The reason I don't want to torture anybody is because I like being an American. I think it makes us stronger than our enemies. There are ways to get good intelligence from the enemy without having to mimic their behavior. I do believe the military's work product should be judged and reviewed in Federal court in a reasoned way. That is part of this legislation. I do not want anybody to be sitting in jail forever without some review process so that one day maybe they could get out.

But here is what I will not tolerate. I will not criminalize what is a war. I will not put this Nation in the box of having captured a terrorist, when the evidence is solid that we know they are part of the enemy trying to kill us and say we have to give them a lawyer or let them go because of the passage of time. That makes no sense.

Senator Levin, Senator McCain, this is a product we should be proud of. We should fight for it, and we are going to fight. If you want to make it a long fight, it will be a long fight. We are not giving up.

Yes.

Right.

The only answer I can give to Senator McCain is that there is a legitimate concern about encroaching on executive power. I have that concern. The executive branch is the lead agency in this war. They are the lead agency when it comes to prosecuting crime. But what I am trying to do, along with his help and that of Senator Levin, is to create statutory authority for this President and future Presidents that will serve the Nation well.

Congress has been too quiet and too silent. During the Bush years, we did not assert ourselves enough. We let things go. We were reluctant to get involved. Now we are involved in a constructive way.

What we have said as a Congress, if this bill passes, is that the executive branch has flexibility, but the Congress of the United States--which has powers when it comes to war--believes that an al- Qaida operative, those associated with al-Qaida, should be initially held in military custody because we are trying to gather intelligence. As I tried to

explain, if you turn them over to civilian authorities for law enforcement purposes, then the whole process of intelligence gathering stops. You have to read Miranda rights. There is a very limited public safety exception. We allow a waiver if that is in the best interests of our national security. We have requirements in the bill not to impede interrogation. That is why we are doing this, because we want a process that will allow us to deal with people caught in the United States in a consistent way from administration to administration and understand the distinction between gathering intelligence to defend yourself in a war and prosecuting a crime.

The Senator is absolutely right. The flexibility of whether to Mirandize somebody exists. I don't know what is the best way. I do believe the best start is to take the Christmas Day Bomber off the plane and interrogate him in terms of what he knows about future attacks, how he planned this attack, and worry about prosecution in a secondary fashion. The only way you can do that is through a military custody intelligence-gathering process.

At the end of the day, I do believe it makes a lot of sense for the Congress to weigh in. We have not done it before. We have balanced this out. The administration's concerns have been met as much as I know how to meet them, and I am very proud of the work product.

Yes.

Yes, I believe so.

Nothing wrong with that.

Right.

Exactly.

Right.

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?

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?

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?

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?

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.

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

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?

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.

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

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?

Right. And we should do that.

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.

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

If this bill is enacted.

That is correct.

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.

Yes.

Right.

If I may add another layer of process here. Some people on our side say that is way too much. You should throw these people in military--Senator Lieberman, my dear friend, if you left it up to him, everybody caught as an al-Qaida operative would be thrown in military custody and would

be held as long as we need to hold them and would be tried by military commissions.

At the end of the day that is sort of where I come out, but I am not going to create a 535-commander-in-chief body here because there are times when that may not work. What we have done is what the Senator said. If you capture someone at home, it is as the Senator described. The reason, to my colleagues on this side, I wanted to build in the things the Senator described is because I am very worried about crossing over out of our lane into the executive lane. I think we have created a great process.

But here is what happens to that al-Qaida operative. Not only does the executive branch have the flexibility to go one way versus the other, starting with the idea of military custody, but all the things the Senator said are true.

What do they have beyond that? If someone is being held as an enemy combatant, there are regulations requiring that they be presented to a combat status review tribunal, now with a military judge, access to counsel--I think it is within 60--I cannot remember the time period. That is done. Then they have the right to take that decision and appeal it to a habeas Federal district court judge.

No one in America is going to be held as an enemy combatant who doesn't get their day in Federal court. But their day in Federal court is a habeas proceeding, not a criminal trial. If the judge agrees with the United States that you are, in fact, an enemy combatant, then you can be held indefinitely, but we require an annual review. If the judge lets you go, they have to let you go. This is the best we can do. This is a hybrid system. In no other war do you have access to a Federal court.

As I said before, this is war without end, and if we don't watch it, an enemy combatant determination can be a de facto life sentence because there will never be an end to these hostilities probably in my lifetime. I recognize that. And in working with the Senator from Michigan and Peter and others, we have come up with a process now that allows the Federal court to review the military decision. We will have an annual review process if the judge agrees with the military. That, to me, is due process that makes sense in a war without an end; something you would not do in World War II, but something we need to do here.

So to the critics, please read the damn bill. I apologize for saying it that way, but you are talking about things that don't exist. There is plenty of flexibility and waiver requirements in this bill. No one is being held indefinitely without due process. Not only is this due process you wouldn't get in any other war, this is due process beyond what exists today only if we can pass this bill.

I don't mind being considered by some of my colleagues as maybe too friendly to due process. The reason I am so passionate about this is what we do sets a precedent for the world and the future. If one of our guys is captured, I can look the other people in the eye--al-Qaida could care less, but other people might--and say we are a rule of law nation. I believe in the rule of law, but there is a difference between the rule of law of fighting a crime and fighting a war.

I am proud of the military legal system. I do believe the military justice system has a role to play in this war. In military commissions, the judges are the same judges who administer justice to our own troops, the same prosecutors, the same defense attorneys, the same jurors. I am proud of the military legal system. I am proud of the Federal court system. I want to use both.

Senator Levin, we have been working on this for years. This is the best work product I have seen. I hope my colleagues will understand we have thought long and hard about this, and if we don't get a process in place that has some definition, some certainty, some guidance, we are letting our Nation down.

This is a good bill, and I hope people will vote for it.

So would I, at my own detriment.

I don't want to mandate the executive branch to do everything as Lindsey Graham would like. I want to start with a theory that makes sense and provides flexibility to change it if that makes sense. I don't want anybody to be in jail because somebody in the military said they are an enemy combatant. I want a Federal judge involved in a sensible way. I want due process to make sure we can tell the world: You are not sitting in a jail because somebody said you were guilty of something. You had a chance to challenge that. But to the critics: I will not stand for the idea that we can't defend ourselves under the law of war, because I believe we are at war. In war, we have the right to hold enemy prisoners. We don't have to let them go to kill again. In war, you can hold people and gather intelligence in a human way.

That is what we are able to do under this bill--fight a war within our values.

I yield.

Would the Senator yield?

I thank the Senator from Illinois. I wish to respond. No. 1, it is good to debate. It is good to have discussions about important matters. The Senator from Illinois is right. There is nothing more important than defending the homeland.

Now, let me just state the law as I understand it. The Hamdi case was an American citizen captured in--

Mr. REID addressed the Chair.

Absolutely.

Unanimous Consent Agreement--Conference Report to Accompany H.R. 2112

I yield if it will make this proceed faster.

If I may respond to my friend from Illinois, Hamdi was an American citizen captured in Afghanistan. He had joined al-Qaida--the Taliban, I guess in that case. We captured him when we went into Afghanistan. We brought him back and we held him as an enemy combatant for intelligence-gathering purposes. His case went to the Supreme Court. The Supreme Court said we could hold an American citizen as an unlawful enemy combatant, we just have to create procedures, a due process requirement. Eventually, the court said every unlawful enemy combatant has a habeas right.

The law of the land is clear that an American citizen helping the enemy overseas can be held indefinitely. But they have the right to petition a judge as to whether the initial determination was correct. If the habeas judge believes there is not enough evidence to hold this enemy combatant, then they have to release them. But if the judge agrees with the government that there is enough evidence to hold them as an enemy combatant, they can be held indefinitely. This President is holding 48 people at Guantanamo Bay who have never seen a criminal courtroom because of the theory of law of war.

The question is--I forget what I said.

I promise, I will.

Mr. President, the exchange with Senator Durbin was very good. The law of the land is pretty clear--unequivocal, in my view-- that an American citizen captured overseas can be held as an enemy combatant, and every enemy combatant held at Guantanamo Bay or captured in the United States has habeas rights. The Padilla case involves an individual who was captured in the United States, suspected of being an al-Qaida operative, and was held for 4 years. He appealed his case to the Fourth Circuit, and the Fourth Circuit said: You have a right to a lawyer to prepare your habeas case, but you do not have a right to a lawyer to interrupt the interrogation. You can be held as an enemy combatant, and they can gather intelligence for an indefinite period.

That is the law of the land, and that is why the administration came over and said the provision that Carl and I were talking about really would change the law. They are preserving the ability, if they want to--they do not have to do this--basically, to hold an American.

Here is the thought process for the body and the Nation: If you capture somebody--not just involved in terrorism; that is not just what we are talking about--al-Qaida operatives involved in an attack on the United States, if they are an American citizen--who cares?--if they are doing that, we want to know what they know, interrogate them and hold them for prosecution, or just hold them so they will not go back to the fight. That is the law.

All we are doing is creating a procedure for that system to be followed. We are not doing anything different than already exists. This notion, somehow, that the homeland is not part of the battlefield is absurd. Why in the world would we give somebody rights who came to America to attack us different than we would if we caught them overseas, when the point is, they are involved with the enemy--American citizen or not. We are just creating a procedure that will allow that situation to be handled. So that is why the administration objected to our language, and I think they are right.

I yield the floor.

Mr. President, I ask unanimous consent to enter into a colloquy with my colleague from New Hampshire.

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?

Does the Senator agree that with Senator Levin and a very bipartisan work product we have now created a legal system that says the following: If a U.S. citizen, a non-U.S. citizen is involved in an al-Qaida attack on our Nation, and is captured within the United States, we are allowing our military the ability to hold them as part of the enemy force, to question and interrogate them for intelligence gathering, and that right we have overseas to hold somebody now exists in the United States because the threat is the same?

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?

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.

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?

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

Military commissions.

The reason we have not had more is because the Obama administration withdrew charges. Thank goodness they have reinstated charges. There are military commission hearings going on as we speak. I am in the camp of ``all the above.''

Sometimes article 3 courts are the best venue, sometimes military commissions. The Ghailani case was someone we held as an enemy combatant for years, took to Federal court and 200-and-something charges and got convicted on 1. Our Federal courts are not set up to deal with people who have been held as enemy combatants under the law of war, then tried in civilian systems.

The Christmas Day Bomber, it made perfect sense to me to put him in an article 3 court. We found out he was a low-level guy, not one of the higher-ups. But if we catch someone here at home or overseas who is involved deeply in terrorism in terms of what they know, then we would hold them for a period of time to question them.

Then, if you wanted to decide to prosecute, military commissions make the most sense. So the only reason we have not had more military commission trials is because they have been stopped. I am not saying Federal courts are not an appropriate venue sometimes. I am saying that when you hold someone under the law of war for years to gather intelligence, which you have a right to do, we need to keep them in the same system, and you see what happens when you mix systems.

I am very proud of the bill, great debate to have, long overdue. If we can get this enacted into law, I will say this: Americans can look anyone in the world in the eye and say: We have robust due process. We can also tell the people in this country whom we are sworn to protect that we have a system that recognizes the difference between an al- Qaida operative trying to kill us and destroy our way of life and a common criminal. We need to do both.

I yield the floor.

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.

Not only are most Americans upset about that but they worry about what comes down the road. That is what I am worried about. The Senate legislation is trying to create a pathway forward for the future. What do you do with these people we have in Guantanamo Bay who may never go on trial? What do you do with these people at Guantanamo Bay who come from countries where, if you return them to that country, they would be back in the fight by the end of the day?

We have a bipartisan proposal that will allow us as a nation to make rational decisions about detention, and the White House is holding it up. There are provisions in this bill that affect the day-to-day lives of the men and women in our military. The White House is saying detainee policy driven by the ACLU is more important to them than a bill that would allow the CIA the authorization they need to fight this war that would provide wounded warriors assistance at a time when wounded warriors need it the most. You talk about a perverse view of things, you talk about having it wrong in terms of what is most important, allowing the detainee issue to deny the CIA the authorization they need to protect us all is dangerous. To put the needs of the men and women in uniform in terms of their health care, their pay, their ability to take care of their families secondary to detainee policies that make no sense and is driven by the far left of this country is what this debate is about.

To the White House, we are not going to change this bill.

Yes.

The minority leader is absolutely right. I would add to my good friend from Kentucky, it is even more. It is not just about us. What we are denying General Petraeus, the new CIA Director, is new authorization language that he needs to fight the war. What we are denying men and women in uniform is pay raises, health care benefits they desperately need because of the detention policy driven by, I think, the most liberal people in this country, and 25 out of 26 Senators blessed this package.

Senator McConnell is absolutely right. Not only does the Senate not have a say on what would be the way forward for our detainees, the men and women in uniform, the CIA operatives taking the fight to the enemy do not have the tools they need because of one area of this legislation. It would be a national tragedy if we could not pass this bill, which is sound to its core in all areas, because the ACLU doesn't like what we have done on detention.

Mr. President, I would like to recognize the achievements of one of South Carolina's most respected citizens.

Greenville, SC, is the home of Michelin's North American headquarters. One of the largest tire manufacturers in the world, Michelin has had a presence in the state for over thirty years and currently employs nearly 8,000 South Carolinians. Michelin is known for its innovation and the quality of its products. It is also one of the finest corporate citizens we have in South Carolina.

Dick Wilkerson, the current chairman and president of Michelin North America, will retire at the end of 2011 after 31 years with the company, the last 3-plus years in his current role. Upon his retirement, he will become chairman emeritus of Michelin North America, in recognition of his remarkable career and strong and effective leadership during a very difficult economic time.

Under Dick's leadership, Michelin became the largest tire maker in North America by sales and has remained the most profitable tire maker in North America for 7 consecutive years. That is quite an achievement given the tough economic circumstances.

Wilkerson also led the creation of major community programs, including Michelin Development Upstate South Carolina and Michelin Challenge Education.

Michelin Development provides low interest loans and access to our considerable business expertise to create quality sustainable jobs and promote economic growth. To date, investments in Upstate South Carolina total more than $2 million, 33 loans have been supported, and more than 750 potential jobs have been created inspiring new economic growth.

Michelin Challenge Education focuses on the support of public elementary schools located in close proximity

to major Michelin facilities. By forming a true partnership between each facility and its adopted school, Michelin provides support to meet the specific needs of each school. Several of these include low-income schools receiving Federal title I funds. The program formalizes an opportunity for Michelin's nearly 8,000 South Carolina employees to make a personal contribution to the improvement of public education through hands-on involvement. Michelin employees serve as mentors, tutors and volunteers.

Dick currently serves as chairman of the South Carolina State Chamber of Commerce Board of Directors. He also serves on the Clemson University President's Advisory Board and the University of South Carolina National Advisory Council. Nationally, he serves on the board of the Rubber Manufacturers Association and Board of Directors of the Yellowstone Park Foundation.

He is active in the Greenville, SC community, serving as chairman- elect of the United Way of Greenville County Board of Trustees. Previously, Dick served as chair of the United Way of Greenville County fundraising campaign. He has served on the boards of the Greenville Urban League, the chamber of commerce, the University Center, and the Greenville Symphony.

Dick has been a true leader in the State's business community. Michelin has turned in strong financial results, which reflects their strong commitment to their shareholders. Beyond that, is the company's commitment to its employees and the fact that Michelin is a true partner with the communities where their employees live and operate manufacturing facilities. Michelin is a superb example of how a good corporate citizen behaves. We are proud of the fact that Michelin calls South Carolina ``home.''

Dick, congratulations to you on your 31 years with Michelin. Thank you for your past contributions to South Carolina, and I look forward to continuing our work together to make South Carolina a great place to live and work.

I rise in support of moving forward on this legislation. I wish I could fix the Senate. It is not functioning the way any of us wishes--plenty of blame to go around. The Congress's approval rating is at 15 percent.

But here is some good news. There is a piece of legislation before us that, if we can ever get a vote on the legislation, would have overwhelming bipartisan support that actually would matter to the average, every-day person. When you look through your Congress, you have got to say: What is it about those folks up there? Why can't they do the things that all of us know need to be done?

There is a difference of opinion about how to deal with China. This is a complicated issue. But the one thing no one is telling me on the other side: Lindsey, they are not manipulating their currency. I think as the American Taxpayers Union--great organization; I am in pretty good standing with them. I disagree with them on how to proceed against China in this particular instance. I think they said in their own letter: We agree, China manipulates their currency.

Well, if they do manipulate their currency, what does it matter? It matters a lot if you are an American business man or woman trying to compete in the world marketplace. As Senator Schumer said, the Chinese manipulate the value of their currency--6.3 yuan to the dollar; it used to be 8-point something. What does that mean? That means if a product produced in China is sold in the world marketplace and you are in business in South Carolina, Alabama, or New York, competing with that Chinese company, the value of their money builds a discount of 30 to 40 percent. You are going to have a very hard time winning in the marketplace, not because you do not work hard, not because your employees are inferior, simply because the Chinese Government is doing things with their currency we do not do.

We have a Federal Reserve. Some of their policies I do not agree with. But to suggest that our Federal Reserve system manipulates our currency to create a trade advantage is ridiculous. If we are doing it for that purpose, everybody should be fired, because we have a $273 billion trade deficit.

Every country has a right to set monetary policy. That is not the issue. If you disagree with the way we are doing monetary policy in the United States, I think you have a valid claim. This is about a country manipulating its currency for an advantage in the export market. The Chinese manipulation of the yuan has cost this country at least 2 million jobs--41,000 in South Carolina--and it is an unfair trade practice in another name.

If this were an island nation somewhere, none of us would care. But this is the second or third largest economy in the world, and all of us should care. The people who are opposing this legislation today are probably doing business in China and they are afraid to offend the Chinese. I have some manufacturing in my State that has a big footprint in China. They are nervous about this bill. I have most people in my State dying for me to get them some relief so they can stay in business.

But here is a warning: It will come--this movie will come to a neighborhood near you soon. In 2016, the Chinese are going to start producing, in large numbers, commercial aircraft. It will be difficult for American aircraft companies to compete with China if the aircraft is 30 percent discounted because of currency manipulation. One day they will be producing cars, not to be

sold in China but throughout the world. If you are in a high-tech industry, what has happened to the textile industry and other elements of our country such as steel is coming toward you. All we ask of China is build cars, build airplanes, but sell their products based on trade practices that are accepted throughout the world. Do not manipulate your currency to create a discount on products made in your country at our expense.

Since 2004, I have been dealing with this. We started with a sense of the Senate because everybody said this is delicate. I buy into that to a point. So sense of the Senate, we all agreed with 100 votes: You manipulate your currency. Please stop.

In 2005, after they did not stop, we introduced legislation, got 67 votes to proceed forward with a 27.5 tariff. We stopped our bill because we hoped things would change. Guess what. The yuan has appreciated about 31 percent since we have been doing this exercise, but not nearly enough. There is a restriction on the yuan trading. It cannot float more than 0.5 percent a day. It is tied to the dollar. It is still crushing our manufacturing community unfairly.

So from 2004 to now, I have been reasonable. I have sent message amendments, I have taken votes where I won overwhelmingly, and backed off. I have had it. Enough is enough. I am sorry the amendment process around this place is so screwed up. It is. There was an effort to get some amendments up. Not as much as people on our side would like.

I hate the idea of filling up the tree and becoming the House. But this is not about Senate procedure for me. I try to be a team player where I can be because I do believe Senator McConnell is doing a very good job. Senator Reid has got his own agenda. It is not about Harry Reid. It is not about Mitch McConnell. It is not about some rule of the Senate. It is about people in my State who are going to lose their job if we do not do something.

I know what I need to be doing as a Senator here. The institution I need to be protecting is the American workforce which is having its clock cleaned by a Communist dictatorship that cheats. They do not outwork us. They do not outperform us. They steal our intellectual property. They manipulate their currency. They subsidize their industries. A few years ago they dumped steel all over the world--in the American marketplace, in particular--produced in China below cost, and the Bush administration pushed back with a countervailing duty claim.

I want to do business with China. The Chinese people are good. Their government is bad. They are mercantilists. They look at every transaction with an eye of what is best for us in the short term. They do not play by the rules. Since they have been in the WTO, their trade deficit has almost quadrupled. So enough is enough for Lindsey Graham.

We are going to have a chance, after 7 years, of getting a vote that will matter to the American people. I am sorry we are mad at each other all the time about everything. I am tired of being mad about the Senate not working well. I am going to set aside my displeasure for the process and do something I think will help the people I represent. I am going to vote to move forward in an imperfect procedural environment, knowing that if we can ever get a vote, it will be the best thing that could happen to the American manufacturing community. It will be a shot across China's bow that is long overdue.

The last thing I would say is that Senator Sessions has come into this issue, and he has brought an intellectual weight to it, emotional commitment. He understands the middle class. Jeff Sessions has been the best partner anyone could hope to have to try to push a bill forward that will give America a fighting chance in a world economy dominated unfairly by a Communist dictatorship. I want to recognize what Senator Sessions has done. He is going to vote to move forward. We have had it with China. Let's do something that will matter.

I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I rise to speak on two topics, briefly, the nomination of Judge Henry Floyd for the Fourth Circuit Court of Appeals, and the motion to proceed on China's currency.

First, Judge Henry Floyd has been nominated by President Obama to serve on the Fourth Circuit Court of Appeals in Richmond, VA. He has a lot of bipartisan support from South Carolina. He was nominated by President Bush to be a district court judge. He served as a State court judge before that, and he has a distinguished record as a State and Federal jurist. He is an outstanding choice by the President to serve on the Fourth Circuit Court of Appeals.

I have known Henry Floyd for many years. I have practiced law with him. I have appeared before him as a State judge and have followed his career. He is unanimously rated as well qualified to proceed to the Fourth Circuit. He has an outstanding legal background, great temperament, and is one of the most qualified district court judges in South Carolina. He will serve the people of the Fourth Judicial Circuit well on the court of appeals. He has the kind of intellect and common sense I think most people in this part of the country will appreciate having on the court.

I want to thank the Obama administration, and I urge my colleagues to vote for this well-qualified, fine man to go to the Fourth Circuit Court of Appeals. He has a lot of bipartisan support at home. Everybody who knows Judge Floyd is a big fan--right, left, and center.

I wish to thank you and Senator Leahy for bringing the nomination to the floor.

Very quickly, colleagues, this is a confirmation vote for Timothy Cain to be a Federal judge in South Carolina. Tim was my law partner, so I will just put my biases right out on the table.

He has been a family court judge since 2000 in the Tenth Judicial Circuit, dealing with the most complicated and emotional issues in the law, and we will not find one person who has practiced before Tim Cain as a lawyer who has anything other than high praise for the way he handles himself.

Tim has been a prosecutor, a public defender. He was assistant county attorney. He has a very distinguished record in the law. But, more important, he is one of the most decent people I have ever met. His wife Renee and son Martin are the most charming, decent people one could ever hope to meet. I thank President Obama for nominating him. I appreciate the support from Senator Leahy and Senator Grassley working this nomination through the process.

This will be a big win for the State of South Carolina and all who come before Judge Cain. He is a total package of intellect, character, integrity, common sense, judicial disposition and demeanor, and I could not be more proud. This is probably one of the most satisfying moments I have had as a Senator, to get up and recommend to my colleagues the approval of Tim Cain to be a Federal judge in the State of South Carolina. I just can't wait to see him take over in our courts and administer justice.

So I say to Senator Grassley and Senator Leahy, thank you both.

I yield the floor.