National Defense Authorization Act for Fiscal Year 2012

Floor Speech

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Mr. DURBIN. Mr. President, let me say at the outset what an extraordinary job my colleague from California has done. There was a time in American history, before law schools, when people read the law and practiced the law. The Senator from California has not only read the law, she has written many laws, and her competence in advocating this important constitutional question has been proven over and over. So I thank her for having the determination and courage to stand up for her convictions against some who would be critical of anyone who broaches the subject.

This is a controversial subject. We are talking about the security of Americans. We are talking about terrorism. We all remember a few years ago when our lives were interrupted--a time we will never forget--when terrorists attacked the United States and killed 3,000 innocent American people on 9/11. We came together in this Congress, Democrats and Republicans, and said we need to keep this country safe; that we never want that to happen again. So we passed new laws, suggested by President George W. Bush, and enacted by Democrats and Republicans in Congress.

We created new agencies, such as the TSA security agency at airports and we empowered our intelligence branches--which Senator Feinstein has a particular responsibility for as chairman of the Senate Intelligence Committee--by giving them more people, more technology, and more authority, and we said to them, keep us safe.

We said to our military: We want you to be the best in the world and continue to be, and we will provide the resources for that to happen. Then we turned, as Senator Feinstein has noted, to the Federal Bureau of Investigation and said: We are going to dramatically increase your numbers and give you the technology you need to keep us safe.

Here we are some 10 years later, and what can we say? We can say thanks to the leadership of President George W. Bush and Barack Obama, 9/11 was not repeated--and we never want it repeated.

We can also say, with very few exceptions, in the 10 years since 9/11 that we have done all these things consistent with America's values and principles. Other countries--and we see them even today--faced with uncertainty and insecurity throw out all of the rules of human conduct even to the point of killing their own people in the streets to maintain order. Thank God that never has occurred in the United States, and I pray it never will. Those of us who are elected to represent our States in the Senate take an oath, an oath that we are going to uphold and defend the Constitution with its values and principles. We understand that taking that oath may mean that we are accepting due process, and due process says a fair day in court for someone accused of a crime. Other countries dispense with that. They don't need a trial. They find someone suspected of a crime, whatever it might be, that person is given summary execution, and that is the end of the story. No questions asked.

We don't do it that way in America. We establish standards of conduct and justice, and particularly as it relates to the people who live in America, our citizens and legal residents who are in the United States. That is what this debate is about.

This is an important bill, S. 1867. It comes up every year in a variety of different forms, and we are lucky to have Senator Carl Levin and Senator John McCain who put more hours into it than we can imagine to write the bill to authorize the Department of Defense to do its job. It is the best military in the world, and their hard work makes certain that it stays in that position.

But this provision they have added in this bill is a serious mistake--serious. It is serious enough for me to support Senator Feinstein in her efforts to change and remove the language. Why?

First, we know the law enforcement officials in the United States of America, the Attorney General's Office, the FBI have done a good job in keeping America safe. They have arrested over 300 suspected terrorists in the United States--over 300 of them--and they have tried them in the criminal courts of America, on trial, in public, for the world to see that these people will be held to the standards of trial as an American citizen. Of those 300, they have successfully prosecuted over 300 alleged terrorists, then incarcerated them in the prisons of America, including Marion, IL, in my home State, where they are safely and humanely incarcerated.

The message to the world is: We are going to keep America safe, but we are going to do it by playing by the rules that make us America. Due process is one of those rules, and it has worked. It has worked under two administrations.

Now comes this bill and a suggestion that we need to change the rules. The suggestion is, in this measure, that we will do something that has not been done in America before. Section 1031 of this bill, for the first time in the history of America, will authorize the indefinite detention of American citizens in the United States. This is unprecedented. In my view, as chair of the Constitution Subcommittee of Senate Judiciary, it raises serious constitutional concerns.

Senator Levin and Senator McCain disagree. In an op-ed piece for the Washington Post, they recently wrote:

No provision in the legislation expands the authority under which detainees can be held in military custody.

But look at the plain language of section 1031. There is no exclusion for U.S. citizens. So the question is, If we believe an American citizen is guilty or will be guilty of acts of terrorism, can we detain them indefinitely? Can we ignore their constitutional rights and hold them indefinitely, without warning them of their right to remain silent, without advising them of their right to counsel, without giving them the basic protections of our Constitution? I don't believe that should be the standard.

I listened to Senator McCain. He makes a pretty compelling argument: Wait a minute. You are telling me that if you have someone in front of you who you think is a terrorist who could repeat 9/11, you are going to read their Miranda rights to them?

Well, as an American citizen, yes, I would. I would say to Senator McCain the same argument would apply if that person in front of me was not a suspected terrorist but a suspected serial killer, a suspected sexual predator; we read them their Miranda rights. We believe our system of justice can work with those rights being read.

Do you remember the case about 2 years ago of the person who was on the airplane, the Underwear Bomber, Abdulmutallab? He was coming to the United States to blow up that airplane and kill all the people onboard, and thank God he failed. He tried to ignite a bomb and his clothing caught on fire, and the other passengers jumped on him, subdued him, and he was arrested. This man, not an American citizen, was taken off the plane and interrogated by the Federal Bureau of Investigation. After he stopped talking voluntarily, they read him his Miranda rights. We all know them from the crime shows that we watch on TV: the right to remain silent, everything you say can be used against you, the right to retain counsel. He was read all those things, and he shut. But that wasn't the end of the story.

By the next day, they were back interrogating him and they had contacted his parents, brought his parents to this country. He met with his parents and turned and said: I will cooperate. I will tell you everything I know. He started talking, and he didn't stop.

At the end of the day, he was charged with terrible, serious crimes, brought to trial in Detroit, and pled guilty under our criminal system. Now, he wasn't an American citizen, but even playing by the rules for American citizens we successfully prosecuted this would-be bomber and terrorist.

What is the message behind that? The message behind that is we will stand by our principles and values and still keep America safe. We will trust the Federal Bureau of

Investigation and the Department of Justice to successfully prosecute suspected and alleged terrorists. We will not surrender our principles even as we fight terrorism every single day.

Now, this bill changes, unfortunately, a fundamental aspect of that. It says if an American citizen is detained and suspected to be involved in terrorism with al-Qaida or other groups, they can be held indefinitely without being given their constitutional rights.

I appreciate that Senator Levin and Senator McCain have said they are willing to consider excluding U.S. persons, but section 1031 doesn't. I hope they do.

I want to address a couple statements that have been made by my Republican colleagues. I like them and respect them.

I would say to Senator Graham, my colleague and friend from South Carolina, I listened to Senator Levin tell us privately and publicly over and over again: What we have here doesn't change the law. Then I listened to your arguments on the floor saying: Well, the law needs to be changed. That is why we are doing this. So I am struggling to figure out if Senator Levin and Senator Graham have reconciled.

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Mr. DURBIN. I thank my colleague from South Carolina.

What the Senator concluded with, though, I think is critical to this conversation. He said the only way to get to the bottom of whether there is an al-Qaida connection that could threaten the United States is military detention. Well, the Abdulmutallab case argues just the opposite. It was the Federal Bureau of Investigation that he sat before and told all of the information that the Senator has just discussed.

Mr. GRAHAM. 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?

Mr. DURBIN. So the Senator is arguing that every President should have all the options, criminal courts as well as military commissions and tribunals?

Mr. GRAHAM. Absolutely.

Mr. DURBIN. Well, what is the difference, then, with what the Senator is standing for and what is the current situation? From my point of view, our Presidents--President Bush and President Obama--since 9/11, have used both, with more success on the criminal courts side--dramatically more success on the criminal courts side.

The obvious question that Senator Feinstein poses is, if the system isn't broken, if the system is keeping us safe, if we have successfully prosecuted over 300 alleged terrorists in our criminal courts and 6 in military commissions, why do we want to change it?

Mr. GRAHAM. Here is the point I am trying to make.

Mr. DURBIN. Retaining the floor.

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Mr. DURBIN. I want to reclaim the floor. I know Senator McCain is anxious for me to conclude and there is something he is anxious to do quickly, but I will try to do this in appropriate time for the gravity of the issue before us.

But to suggest the only way we can get information about a terrorist attack on the United States by al-Qaida and other sources is to turn to the military commissions and tribunals and not use the FBI and not use the Department of Justice defies logic and experience. Abdulmutallab, the Underwear Bomber, a member of al-Qaida, failed in his attempt to bring down that plane, interrogated successfully by the FBI, basically told them everything he knew over a period of time. It worked. To argue that you cannot do this defies the experience with Abdulmutallab.

I want to say a word about the Hamdi case. I listened as Senator Feinstein read the Supreme Court decision. I do not think the Supreme Court decision stands for what was said by the Senator from South Carolina. I think what he said was inaccurate. I do not believe Justice O'Connor went to the extent of saying you can hold an American citizen indefinitely.

Let me also say when it comes to the Hamdi case, Hamdi was captured in Afghanistan. He was captured on the battlefield in Afghanistan, not the United States. And Justice O'Connor, in that opinion, was very careful to say the Hamdi decision was limited to ``individuals who fought against the United States in Afghanistan as part of the Taliban.'' She was not talking about American citizens and their rights. She was talking about this specific situation.

Now let's go to the case of Jose Padilla. Jose Padilla, some will argue, is a precedent for the indefinite detention of American citizens. But look at what happened in the case of Padilla, a U.S. citizen placed in military custody in the United States. The Fourth Circuit Court of Appeals, one of the most conservative courts in our Nation, upheld Padilla's military detention.

Then, before the Supreme Court had the chance to review the Fourth Circuit's decision, the Bush administration transferred Padilla out of military custody and prosecuted him in an article III criminal court.

I do not think that Hamdi or Padilla makes the case that has been made on this floor.

I want to say I think Senator Feinstein is proper in raising this amendment. I think the fact is that Hamdi is a U.S. citizen, but it does not stand for the indefinite detention of U.S. citizens as this new law would allow.

It troubles me that as good, as professional, as careful as our government has been to keep America safe, we now have in a Defense authorization bill an attempt to change some of the most fundamental, constitutional principles in America. This bill went through a great committee, our Armed Services Committee, but not through the Judiciary Committee which has specific subject matter jurisdiction over our Constitution. It did not go through the Intelligence Committee. And for the record, the provisions in this bill--which some have said are not that significant, that much of a change--are opposed by this administration, opposed by the Secretary of Defense, Leon Panetta, who received a 100-to-nothing vote of confidence from the U.S. Senate when he was appointed, opposed by our Director of National Intelligence, who says these provisions will not make America safer but make it more difficult to protect America, and opposed by the Federal Bureau of Investigation.

I entered a letter from Director Muller in the Record yesterday, as well as the Department of Justice.

You have to ask yourself, if all of these agencies of government, which work day in, day out, 24-7 to keep us safe, tell us not to pass these provisions because it does not make America safer, it jeopardizes our security, why are we doing it?

Senator Feinstein has the right approach: Let us try to preserve some of the basic constitutional values here. I think we can. I hope my colleagues will take care before they vote against Feinstein. Despite the respect, which I share, that they have for our Armed Services Committee and its leadership--this is a matter of constitutional importance and gravity. It is important for us to take care and not to change our basic values in the course of debating a Defense authorization bill. Let's keep America safe but let's also respect the basic principle that American citizens are entitled to constitutional rights. The indefinite detention of an American citizen accused--not convicted, accused of terrorist activity--the indefinite detention runs counter to the basic principles of the Constitution we have sworn to uphold.

I yield the floor.

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Mr. DURBIN. I would respond by saying Justice O'Connor in that decision said:

[A]s critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. .....

We therefore hold that a citizen-detainee, seeking to challenge his classification as enemy combatant, must receive notification of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.

Mr. LEVIN. Would the Senator agree that specifically referred to there is that a citizen being held as an enemy combatant is--excuse me. Would the Senator agree that what he read refers to the exact statement of the Justice that a citizen who is held as an enemy combatant is entitled to certain rights? Would the Senator agree that that, by its own terms, says that a citizen can be held as an enemy combatant?

Mr. DURBIN. In the particular case of Hamdi, captured in Afghanistan as part of the Taliban.

Mr. LEVIN. She did not say that. She said ``a citizen.'' I know what the facts of the case are. She did not limit it to the facts of the case.

Mr. DURBIN. I am sorry but she did. The quote:

..... individuals who fought against the United States in Afghanistan as part of the Taliban.

Mr. LEVIN. She did not limit it to that. She described the facts of that case.

Mr. DURBIN. She limits it to that case. If I could make one response and then I will give the floor to the Senator. This is clearly an important constitutional question and one where there is real disagreement among the Members on the floor. I think it is one that frankly we should not be taking up in a Defense authorization bill but ought to be considered in a much broader context because it engages us at many levels in terms of constitutional protections.

Mr. LEVIN. I agree with the Senator that Justice O'Connor said what the Senator said she said. Would the Senator agree with me that Justice O'Connor said:

There is no bar to this Nation's holding one of its own citizens as an enemy combatant.

Would the Senator agree that she said that?

Mr. DURBIN. As it related to Hamdi captured in Afghanistan.

Mr. LEVIN. Would the Senator agree she said that, however?

Mr. DURBIN. As it related to Hamdi, of course.

Mr. LEVIN. I am giving the Senator an exact quote. I know the facts of the case.

Mr. DURBIN. I can read the whole paragraph rather than the sentence.

Mr. LEVIN. You already have. Given the facts of the case. I understand the facts of the case, that it was somebody captured in Afghanistan. My question is, of the Senator: Would he agree that Justice O'Connor said--she is talking about this case, of course----

Mr. DURBIN. Yes.

Mr. LEVIN. ``There is no bar to this Nation holding one of its own citizens''?

Mr. DURBIN. Captured on the field of battle in Afghanistan.

Mr. LEVIN. Would the Senator agree that the Justice said the following, that a citizen, no less than an alien, can be ``part of or supporting forces hostile to the United States or coalition partners'' and ``engaged in an armed conflict against the United States,'' and would pose the same threat of returning to the front during the ongoing conflict? Would the Senator agree that she said that?

Mr. DURBIN. Of course.

Mr. LEVIN. Would the Senator agree that she quoted from the Quirin case, in which an American citizen was captured on Long Island?

Mr. DURBIN. She did make reference to the Quirin case.

Mr. LEVIN. Did she cite that with approval?

Mr. DURBIN. I would say there was some reservation in citing it. I say to the Senator, our difficulty and disagreement is the fact we are dealing with a specific individual captured on the field of battle in Afghanistan with the Taliban.

Mr. LEVIN. I understand.

Mr. DURBIN. We are not talking about American citizens being arrested and detained within the United States and being held indefinitely without constitutional rights.

Mr. LEVIN. My question, though--my question is: Did Justice O'Connor say that, in Quirin, that one of the detainees alleged that he was a naturalized United States citizen, we held that--these are her exact words:

Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ..... the law of war.

Did she say that?

Mr. DURBIN. I can tell the Senator there were references in there to the case, but the Supreme Court has never ruled on the specific matter of law which the Senator continues to read. Until it rules, we will make the decision in this Department of Defense authorization bill, and it is not an affirmation of current law because there has been no ruling.

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