National Defense Authorization Act for Fiscal Year 2012
Floor Speech
BREAK IN TRANSCRIPT
Ms. AYOTTE. Madam President, I also rise in opposition to the amendment offered by Senator Feinstein, and I certainly appreciate the comments of my colleague from South Carolina. It would lead to an absurd result that if we were in a situation where an American citizen became a member of al-Qaida and from within our country attacked Americans and we could not gather the maximum amount of information from them to make sure we could prevent future attacks against our country--that is what is at issue here.
I would like to point out a couple of issues that have not been addressed with respect to Senator Feinstein's amendment.
If you look at the language of that amendment, she says that the authority described 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. I think this provision is going to create some real problems for the executive branch. If I were they, I would be in here raising these issues because it does not distinguish--the language--between an American citizen who is captured overseas versus an American citizen captured in the United States of America.
Let's use the example of Anwar al-Awlaki. Mr. al-Awlaki, a member of al-Qaida, was actually killed by us overseas. So it would lead to the absurd result that we could not detain him to gather intelligence, but we believe that we are authorized--by the way, I agreed with the administration taking that step to take out Mr. al-Awlaki, who was a great danger to our country overseas. So the language as written would lead to that absurd result that would tie the administration's hands, that they can actually kill these individuals, but they can't detain them under military custody and interrogate them to make sure we can find out what they do know and what other attacks are being planned against the United States of America.
Also with respect to the language in this amendment, the language itself is a defense lawyer's dream. You can't hold a U.S. citizen until the end of hostilities. Well, how long can you hold them? I mean, it is not clear. There is no language in that. This is going to be litigated to heaven, and this is an area where our intelligence professionals need clarity. This is going to create more issues for the executive branch in an area that needs clarity and where there needs to be some identified rules and they have to be focused on gathering intelligence to protect Americans.
Senator Durbin has cited the Abdulmutallab case on numerous occasions as a way--as a great case as an example of how we can gather intelligence from enemy combatants to protect America. Let's review the facts of that case again. Fifty minutes into the interrogation, he was told: You have the right to remain silent. He exercised that right because he was given Miranda warnings, and it was only 5 weeks later that we were actually able to get through the Miranda warnings after we went to his parents. Is that the type of system we want? What happened in that 5 weeks? What did we lose in terms of information that could have protected America?
If we can't hold an American citizen who has chosen to be a member of al-Qaida and has participated in a belligerent act against our country to ask them what other attacks they are planning and whom they are working with, how are we going to get information to make sure that--God forbid--we can prevent another 9/11 on our soil, because that is why they want to come to the United States of America. Also, how do we deal with this issue of homegrown radicals?
Unfortunately, this amendment, in my view, is going to be a situation where we are opening the welcome mat. If you get to America and you can recruit one of our citizens to be a member of al-Qaida, then you don't have to worry about them being held in military custody. You don't have to worry about us using our maximum tools to gather intelligence to protect Americans.
I think this amendment is very misguided. I again would point out that the administration should be concerned about the language in this amendment. It does not distinguish between an American citizen who is captured on our soil who is trying to attack us and one overseas. But either way, if an American citizen has joined al-Qaida and is trying to kill us from within our own country, they have become part of our enemy and are at war with us.
BREAK IN TRANSCRIPT
AMENDMENT NO. 1068
Ms. AYOTTE. Mr. President, obtaining intelligence from high-value terrorist detainees is an urgent national security priority that is essential to protecting Americans. Unfortunately, under current law, terrorists need look no further than the Internet to find out everything they need to know about our interrogation practices and how they can circumvent them. Under President Obama's 2009 Executive Order 13491, all U.S. Government interrogators are limited to the interrogation techniques that are available online and described in the Army Field Manual. As a result, all members of the intelligence community, including the non-Department of Defense intelligence professionals who support the high-value detainees interrogation group, must conform to the procedures in the Army Field Manual, which was written by the U.S. Army for the U.S. Army; that is, there is little flexibility permitted under these rules, and they are easy for those who want to harm us to circumvent them and to know exactly what techniques we will use to gather information to protect our country if they are detained as an enemy combatant.
BREAK IN TRANSCRIPT
Ms. AYOTTE. I thank my friend, the Senator from Connecticut, first, for his leadership in this body on national security. We both had the privilege of serving our States as attorneys general.
The answer is no. This is an amendment, I point out, that not only is Senator Lieberman sponsoring--and I appreciate his experience and leadership on this most important national security issue--but Senator Chambliss, vice chairman of the Intelligence Committee, as well as Senator Graham and Senator Cornyn, who are both members of the Armed Services Committee, as well as the Judiciary Committee. It is very important to be clear about what this amendment would and would not do.
This proposal takes every possible measure to put into place intelligence-gathering practices that honor our American values and laws. Our amendment in no way condones or authorizes torture. There have been many groups trying to misrepresent what is in this amendment. Any new interrogation techniques that are developed would be required to comply with the U.N. Convention Against Torture, the Military Commissions Act, the Detainee Treatment Act, as well as section 2441 of Title 18 U.S. Code that relates to war crimes.
BREAK IN TRANSCRIPT
Ms. AYOTTE. I appreciate the question from my friend and colleague. The decision by President Obama to limit interrogators to the Army Field Manual was based, in part, on the horrible abuses that happened at Abu Ghraib prison in Iraq. Undoubtedly, the abuses at Abu Ghraib failed to reflect American values, tarnished America's reputation, and certainly damaged our interests. However, responding to these abuses by reflexively applying an Army Field Manual--which, to be clear, terrorists can go online and get and know exactly which techniques they will be subject to if captured--to all Federal Government interrogators doesn't reflect the severity of the threat to our country and the importance of providing our nonmilitary intelligence collectors all of the lawful tools they need to gather intelligence to prevent nuclear attacks and protect our country.
BREAK IN TRANSCRIPT
Ms. AYOTTE. I appreciate the question from the Senator from Connecticut. Absolutely, as the Senator pointed out, the Army Field Manual was not created for this purpose. As he mentioned, the high-value detainee interrogation group is a group consisting of the CIA, FBI, and Defense Intelligence Agency, designed to interrogate the worst terrorists, who are likely to have valuable information about future attacks and information we need to protect our country. To address this problem, we drafted the amendment through this authorization that would allow members of the intelligence community, who are assigned to or in support of the high-value interrogation group, to utilize interrogation techniques that are consistent with our laws and values. Our amendment would ask the Secretary of Defense, working with the Director of National Intelligence and the Attorney General, to develop a classified annex to the Army Field Manual that terrorists could not see. Unfortunately, now they can go on the Internet and look at the techniques. It classifies that the Army Field Manual would provide interrogation techniques that would be used by that important select group of intelligence-gathering professionals, to allow them to have for their use the techniques they need to gather information and protect our country.
BREAK IN TRANSCRIPT
Ms. AYOTTE. I thank the Senator for the question. The answer is, no; we are not. We believe torture violates our laws and runs counter to American values. That is what I believe. That is why we specifically require the techniques developed by the Secretary of Defense, the Director of National Intelligence, and the Attorney General have to comply with the U.N. Convention Against Torture and all applicable laws, including the Detainee Treatment Act. Thus, the ACLU's claim the amendment threatens to revive the use of torture is patently false, unfortunately.
Currently, the Army Field Manual interrogation techniques our intelligence community interrogators must follow are publicly listed online. That is unacceptable. It is like the New England Patriots giving their opponents their playbook days or weeks before the game begins. In my experience as attorney general of New Hampshire and as a murder prosecutor, no detective or cop in even a common criminal case would tell the criminals what techniques they are going to use to gather information.
BREAK IN TRANSCRIPT
Ms. AYOTTE. I thank our leader for giving us the opportunity to continue this colloquy.
I just wanted to point out--we were talking about the fact the Army Field Manual is online--that in my experience as New Hampshire's attorney general and prior to that as a murder prosecutor--and I know my colleague served as his State's attorney general as well--no detective or cop on the beat, in a common criminal case--and, of course, we are dealing with a situation where we are at war with terrorists--would ever give a criminal their playbook as to what techniques they would use to question them to get information to see if a crime has been committed and to see that justice is served. Yet here we are in a situation where we have online the techniques from the Army Field Manual while we are at war with terrorists who want to kill us.
What we are saying with this amendment is that we need to allow the intelligence professionals to develop techniques, but in a classified annex, consistent with our laws, that would allow them to gather intelligence and not tell our enemies what techniques will be used to gather information from them.
Not surprisingly, al-Qaida terrorists have taken advantage of our willingness to tell them publicly on the Internet what will and will not happen during an interrogation should they be captured. Al-Qaida terrorists have familiarized themselves with the interrogation techniques they would confront if captured, and they are training on how to respond. That makes it more difficult for us to gather information.
The willingness of the United States to give the equivalent of interrogation CliffsNotes to terrorists places our interrogators at a disadvantage and makes it more difficult to gather the information we need to save American lives. So developing a classified annex of lawful techniques for intelligence professionals who are interrogating the worst terrorists would make it harder for terrorists to train to avoid and resist interrogation.
The key to our amendment is giving this limited group of intelligence community interrogators the techniques they need to gather information but to do so without resorting to torture and while retaining an operational advantage that makes it more likely an interrogation will be successful.
BREAK IN TRANSCRIPT
Ms. AYOTTE. I do. I do agree. As a matter of common sense, this amendment should go forward. The reality of telling our enemies online what to expect just defies common sense. That is what we are addressing with this amendment.
BREAK IN TRANSCRIPT
Ms. AYOTTE. That is right. Unfortunately, we are just telegraphing to our enemies what techniques we are going to use.
BREAK IN TRANSCRIPT
Ms. AYOTTE. I would say the Senator is absolutely right. I appreciate that the Senator from South Carolina has cosponsored this amendment, as has Senator Lieberman, and I appreciate Senator Lieberman's leadership. I would like to say while we are in this colloquy that Senator Lieberman has also been a mentor to me in the Senate, and I appreciate that as well as his leadership on these issues.
Really, it comes down to this: We should not be telegraphing, we should not be advertising to our enemies what techniques our professional interrogators will use. This amendment is limited to the group of professionals who will focus on these issues and who will be gathering intelligence from terrorists.
We have to protect our country. Why would we do this? It just doesn't make sense.
BREAK IN TRANSCRIPT
AMENDMENT NO. 1067 WITHDRAWN
Ms. AYOTTE. Before I yield the floor, I need to briefly discuss the withdrawal of an amendment I have, which is amendment No. 1067, regarding notification of Congress with respect to the initial custody and further disposition of members of al-Qaida and affiliated entities.
I have received assurances from the Armed Services Committee majority and minority staff that these comments and steps which are outlined in that amendment will be addressed when the Defense bill goes to conference.
Therefore, Mr. President, I ask unanimous consent that my amendment No. 1067 be withdrawn. But I also understand that the Armed Services Committee will take up my amendment when the Defense bill goes to conference as part of the conference on this bill.
BREAK IN TRANSCRIPT
Source