National Defense Authorization Act for Fiscal Year 2012

Floor Speech

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Mr. DURBIN. Mr. President, I have the greatest respect for Senator Carl Levin and Senator John McCain. They have done an extraordinary job on the Defense authorization bill. I would say, by and large, this bill would not have engendered the controversy that brings us to the floor today but for this provision, because it is a critically important provision which has drawn the attention not just of those in the military community--which they, of course, would expect in a Defense authorization bill--but also the attention of those in the intelligence community and the law enforcement community across the United States, as well as the President of the United States.

The provision which they include in this bill is a substantial and dramatic departure in American law when it comes to fighting terrorism. I salute Senator Udall for bringing it to the attention of the committee and now to the floor; that before we take this step forward, we should reflect and pass the Udall amendment which calls for the necessary agencies of government--law enforcement, intelligence, and military--to reflect on the impact of this decision, not just on the impact of America's security but on America's commitment to constitutional principles. This is a fundamental issue which is being raised, and it should be considered ever so seriously. We need to ask ourselves, 10 years after 9/11, why are we prepared to engage in a rewrite of the laws on fighting terrorism?

Thank God we meet in this Chamber today with no repeat of 9/11. Through President George Bush and President Barack Obama, America has been safe. Yes, there are people who threaten us, and they always will, but we have risen to that challenge with the best military in the world, with effective law enforcement, and without giving away our basic values and principles as Americans.

Take a look at the provision in this bill which Senator Udall is addressing. Who opposes this provision? I will tell you who opposes it. Secretary of Defense Leon Panetta, who passed out of this Chamber with a 100-to-0 vote of confidence in his leadership, has told us don't do this; this is a mistake in this provision.

Secondly, the law enforcement community, from Attorney General Eric Holder to the Director of the Federal Bureau of Investigation, has told us it is a mistake to pass this measure, to limit our ability to fight terrorism. And the intelligence community as well; the Director of National Intelligence tells us this is a mistake.

Is it any wonder Senator Udall comes to the floor and others join him from both sides of the aisle saying, before we make this serious change in policy in America, ask ourselves: Have we considered the impact this will have on our Nation's security, our ability to interrogate witnesses, and our commitment to constitutional principles?

When I take a look at the letter that was sent to us by the Director of the Federal Bureau of Investigation, Robert Mueller, I have to reflect on the fact that Director Mueller was appointed by President George W. Bush and reappointed by President Barack Obama. I respect him very much. He has warned this Senate: Do not pass this provision in the Defense authorization bill. It may adversely impact ``our ability to continue ongoing international terrorism investigation.''

If this provision had been offered by a Democrat under Republican George W. Bush, the critics would have come to the floor and said: How could you possibly tie the hands of the President when he is trying to keep America safe?

The Director of the Federal Bureau of Investigation has made it clear the passage of this provision in this bill will limit the flexibility of the administration to combat terrorism. It will create uncertainty for law enforcement, intelligence, and defense officials regarding how they handle suspected terrorists and raise serious constitutional concerns. Listen, all those things are worthy of debate were it not for the record that for 10 years America has been safe. It has been safe because of a Republican President and a Democratic President using the forces at hand to keep us safe. If we were coming here with some record of failure when it comes to keeping America safe, it is one thing, but we have a record of positive success. This notion that there is no way to keep America safe without military tribunals and commissions defies logic and defies experience.

Since 9/11, over 300 suspected terrorists have been successfully prosecuted in article III criminal courts in America.

Yes, they have been read the Miranda rights, and, yes, they have been prosecuted and sent to prison, the most recent being the Underwear Bomber, who pled guilty just weeks ago in the article III criminal courts. During this same period of time, when it comes to military commissions and tribunals, how many alleged terrorists have been convicted? Six. The score, my friends, if you are paying attention, is 300 to 6. President Bush and President Obama used our article III criminal courts effectively to keep America safe, and in those instances where they felt military tribunals could do it best, they turned to them with some success.

I might add, to those who want to just change the law again when it comes to military tribunals, this is the third try. Twice we have tried to write the language on military tribunals and commissions. It has been sent ultimately across the street to the Supreme Court and rejected. They told us to start over. Do we want to risk that again? Do we want to jeopardize the prosecution of an alleged terrorist because we want to test out a new legal and constitutional theory? I hope not.

I ask unanimous consent to have printed in the Record the letter from the Director of the FBI.

There being no objection, the material was ordered to be printed in the Record,

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Mr. DURBIN. Let me also say that section 1031 of this bill is one that definitely needs to be changed, if not eliminated. It will, for the first time in the history of the United States of America, authorize the indefinite detention of American citizens in the United States. I have spoken to the chairman of the committee, who said he is open to language that would try to protect us from that outcome. But the language as written in the bill, unfortunately, will allow for the indefinite detention of American citizens for the first time. The administration takes this seriously. We should too. They have said they will veto the bill without changes in this particular provision.

I hope we will step back and look at a record of success in keeping America safe and not try to reinvent our Constitution on the floor of the Senate. I believe we ought to give to every President, Democratic and Republican, all of the tools and all of the weapons they need to keep America safe. Tying their hands may give us some satisfaction on the floor of the Senate for a moment, but it won't keep America safe.

I reserve the remainder of my time.

I yield the floor.

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