National Defense Authorization Act for Fiscal Year 2012

Floor Speech

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Mr. DURBIN. I thank the Senator from Colorado for his strong statement and totally support his position. This change in the Defense authorization bill goes beyond a military decision. It goes to the fundamental questions of principles of our Constitution and our body of law. As a member of the Senate Judiciary Committee, I believe this matter should have been considered as well by the Senate Judiciary Committee, and I believe Senator Feinstein has expressed the feeling that it should have been considered as well by the Senate Intelligence Committee.

I wish to use one example to ask the Senator from Colorado a question. When we had the so-called Underwear Bomber, the passenger on a commercial aircraft who tried to detonate a bomb--and thank God was unsuccessful--he was subdued, arrested, and interrogated by the Federal Bureau of Investigation in Detroit. After that investigation was underway--and he surrendered some information--he stopped talking, at which point the FBI investigators read him his Miranda rights.

Then later, working with his parents, he resumed talking to the investigators and literally--according to the FBI--gave a dramatic amount of information helpful to us in keeping America safe and stopping terrorism. He was then prosecuted in the criminal courts of America, article 3 courts, and ultimately, weeks ago, pled guilty.

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Mr. DURBIN. Senator McCain, of course, as the ranking member, will have ample opportunity to express his point of view.

What I am asking the Senator from Colorado is this: Taking into consideration the language that is now being presented in this Defense authorization bill, particularly section 1032, it is my understanding the Federal Bureau of Investigation could not have continued their interrogation of this suspected terrorist without first contacting our military and bringing them in to determine whether they had jurisdiction over this matter. In other words, time would have been lost, opportunities would have been lost, information might have been lost by following the new section in the bill.

I am asking the Senator from Colorado if this is a decision which he believes we should make in the haste of a Defense authorization bill or ought to step back and work with the President of the United States, the FBI, the military, and our intelligence forces to make sure we do not lose an opportunity to catch an alleged terrorist, to interrogate them, and to keep this country safe.

Mr. UDALL of Colorado. I thank the Senator from Illinois for his question. My understanding is the Senator from Illinois is correct, that provision 1032 would change the way in which interrogations would unfold. There may be some in the Senate who would see it differently, but that is all the more reason to adopt my amendment, which would allow a thorough process of hearing from the very experts who interrogated the Underwear Bomber and other experts who have been on the front lines in fighting terrorism. We ought to go slow. We should not fix something that is working fine right now.

I thank the Senator for his question.

Mr. DURBIN. If the Senator from Arizona will forgive me, I would ask one more question through the Chair. The question goes back to the point the Senator made: Section 1031, as I understand it, would be a departure from current law and would say that those who are American citizens can be detained indefinitely if they are suspected of certain terrorist conduct. I ask the Senator from Colorado: Is that the point the Senator made in his statement?

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Mr. DURBIN. Mr. President, I don't know--I now have the floor, so I will proceed.

First, let me thank the Senator from Arizona. We have served together in the House and in the Senate. I respect him very much. I certainly have the highest respect, as well, for the Senator from Michigan. But I will tell my colleagues this: If the argument is, if we don't vote on this amendment tonight the security of the United States is in peril, that is a little hard to make because we are not going to finish this bill tonight, No. 1. No. 2, it is pretty clear the administration opposes this particular amendment, at least I have been told they do. No. 3, if we are talking about something as fundamental as changing some laws in this country relative to the U.S. Constitution, I have to agree with Senator Leahy, the chairman of the Judiciary Committee, and Senator Feinstein, the chairman of the Intelligence Committee, that this great body should take the time, debate the issue, and vote on it in a timely fashion.

I am not here to filibuster this matter, but I am here to discuss it.

To those who have come to the floor and said it is imperative to move now to change the way we deal with
terrorist detainees in the United States, I would like to make a record for them.

For the record, over the last 10 years we have dealt with alleged terrorists in the United States. During that 10-year period of time 300 alleged terrorists have been successfully prosecuted in the criminal courts of America and incarcerated safely in American prisons--300. During that same 10-year period of time, six--count them, six--have been subjected to prosecution through military tribunals. So the score is 300 to 6 for those who want to change the system, with 300 saying we have a pretty darn good Federal Bureau of Investigation, we have excellent lawyers at the Department of Justice, and the American court system has responded well to keep us safe. So the notion that this has to be changed tonight to keep America safe, I don't know there is any evidence to support that.

I listened to some of the arguments on the Senate floor, and I wish to call to the attention of my colleagues that this is not an insignificant change in the law. If section 1031 is enacted into law, for the first time we will be saying in the law that we can detain indefinitely an alleged terrorist who is an American citizen within the United States of America.

Mr. GRAHAM. Would the Senator yield?

Mr. DURBIN. I will yield after I complete my point. I believe most of us feel if someone is charged with terrorism--an American citizen--that normally they would be subjected to constitutional protections and rights as American citizens. For those who believe in military tribunals--and I know the Senator from South Carolina does because he has been engaged in them personally and feels they are an honorable and effective way of prosecuting individuals--he knows, as I do, we have gone through in the last 10 years a series of Supreme Court cases that have questioned whether we are handling military tribunals in the right fashion.

The law is not settled when it comes to military tribunals, but the law is clearly settled when it comes to article 3 criminal courts, to the point that 300 alleged terrorists have been successfully prosecuted and convicted.

So I think this is worthy of debate. It is a valid issue. The security of America will always be a valid issue on the floor of the Senate. But let's do it in a thoughtful way. This matter was not referred to the Senate Judiciary Committee. It was not referred to the Senate Intelligence Committee. It was decided by the Armed Services Committee. As good as they are, as great as the people are who serve on that committee, there are others who should have a voice in the process.

I yield to the Senator from South Carolina if he has a question he would like to direct through the Chair.

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Mr. DURBIN. I say to the Senator from South Carolina, I yielded for a question.

The PRESIDING OFFICER. That is correct.

Mr. DURBIN. Can the Senator bring it to a question?

Mr. GRAHAM. The question is--I forget what I said.

Mr. DURBIN. Let me just say to my colleague, whom I respect and count as a friend, the critical difference between the Senator from Michigan and the Senator from South Carolina is this: The Hamdi case involved an American citizen, part of the Taliban, arrested in Afghanistan, OK? The Senator from South Carolina made that point when he said the word ``overseas.'' Unfortunately, section 1031 does not create
that distinction. An American citizen arrested in the United States, charged with terrorism, without any connection to overseas conduct--having been arrested overseas, I should say--is still going to be subject to indefinite detention.

The only thing I would add is this: I think this is a good exchange, and I think we need more. The notion that we have to hurry up and get this done in the next 5 minutes is not, I don't think, an appropriate way to deal with this. I know Senator Paul and Senator Merkley are waiting, and I am prepared to yield the floor at this point.

If this matter comes up again this evening, I hope we can engage in further discussion.

Mr. LEVIN. I just have a question, if the Senator would yield, of the Senator from Illinois.

Mr. DURBIN. Sure.

Mr. LEVIN. Is the Senator aware of the fact that section 1031 in the bill we adopted months ago in the committee had exactly the language that the Senator from Illinois thinks should be in this section 31, which would make an exception for U.S. citizens in lawful residence? That was in our bill. I am wondering if the Senator is aware that the administration asked us to strike that language from section 1031 so that the bill in front of us now does not have the very exception the Senator from Illinois would like to see in there.

Mr. DURBIN. I have the greatest respect for the Senator and the administration, but I think I am also entitled to my own conclusion.

Mr. LEVIN. No, I understand. But I am just asking the Senator, is the Senator aware it was the administration that asked us to strike that language, the exception for U.S. citizens?

Mr. DURBIN. Not being a member of the committee, I did not follow it as closely as the Senator did. I respect him very much and take his word.

Mr. LEVIN. I thank the Senator.

Mr. DURBIN. I yield the floor.

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