National Defense Authorization Act for Fiscal Year 2012--Conference Report

Floor Speech

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Mr. DURBIN. Mr. President, with this agreement, there will be two votes at 4 p.m. The first will be on the adoption of the Defense authorization conference report and the second vote on the confirmation of the nomination of Morgan Christen to be U.S. Circuit Judge for the Ninth Circuit.

Mr. President, I rise today to discuss the National Defense Authorization Act conference report now pending before the Senate.

I thank my colleague from Colorado, Senator Udall, as well as my colleague from California, Senator Feinstein, for engaging in a spirited and important--perhaps historic--debate during the consideration of this authorization bill on the floor of the Senate. I especially thank Senator Feinstein. It was a pleasure to work with her to insert language which I think moved us closer to a position she and I both share concerning the language in this important bill.

I have the highest respect for the chairman and the ranking member of this committee, Senators LEVIN and MCCAIN, who have worked diligently and hard on a bill which has become a hallmark of congressional activity each and every year, particularly in the Senate. It takes a special effort for them to produce an authorization bill of this complexity and challenge. They do it without fail and they do it in a bipartisan fashion.

For those critics of Congress--and there are many--who look at this bill, you can see the best of the Senate in terms of the effort and the professionalism these two gentlemen apply, along with the entire committee, in bringing this bill to the floor.

This bill does a number of good things for our troops and for my home State of Illinois, and I am thankful to the chairman and the ranking member for those provisions. There is important language about public-private partnerships regarding the U.S. Army that will have special value at the Rock Island Arsenal, where some of the most dedicated and competent civilian individuals continue to serve this country's national security, meeting the highest levels of standards and conduct and performance. They will have a chance to continue to do that work, and it is important they continue to have that chance in this weak economy when so many people are struggling to find jobs.

The legislation provides the Chief of the National Guard with an equal seat at the table with the Joint Chiefs of Staff to ensure the needs of our brave Army and Air National Guard personnel are heard at the highest levels. It makes it easier for reserve units to access mental health services by providing that access during drill weekends. It also provides our men and women in uniform with a much deserved pay increase, which is imperative in light of their heroic service and the state of our economy today.

I must say, though, there are provisions within this bill which still concern me relative to the treatment and detention of terrorism suspects.

First, we need to agree on the starting point, and the starting point should be clear on both sides of the aisle. There are those who threaten the United States, those who would use terrorist tactics to kill innocent people, as they did on 9/11. We are fortunate, through the good leadership of President George W. Bush and President Obama, that we have been spared another attack since 9/11, but vigilance is required if we are to continue to keep this country safe. That is a bipartisan mission. It is shared by every Member of Congress, regardless of their political affiliation.

We salute the men and women in uniform, first, for all the work and bravery they have put into that effort, but quickly behind them we will add so many others in our law enforcement community; for example, those individuals at every level--Federal, State and local--who are engaged in keeping America safe. We salute the executive branch in its entirety, including the Department of Homeland Security, the White House, the National Security Advisors, and all of those who have made this a successful effort.

The obvious question we have to ask ourselves is this: If for 10 years we have been safe as a nation, why is this bill changing the way we detain and treat terrorism suspects?

I will tell you there has been an ongoing effort by several members of this committee and Senate to change the basic approach to dealing with terrorism, to create a presumption that terrorist suspects would be treated first subject to military detention and their cases then considered before military tribunals.

This, in and of itself, is not a bad idea. It could be right, under certain circumstances, but it does raise a question: If to this point in time we have been able to keep America safe using the Department of Justice, law enforcement, and the courts of our land, together with military tribunals, why are we changing?

The record is pretty clear. Since 9/11, more than 400 terrorism suspects have been successfully prosecuted in the courts of America. These are individuals who have been subjected to FBI investigation, they have been read their Miranda rights, they have been tried in our courts in the same manner as those accused of crimes are tried every single day, and they have been found guilty--400 of them--during the same interval that 6--6--have been tried by military tribunals.

Overwhelmingly, our criminal court system has been successful in keeping America safe, but that is not good enough for many Members of the Senate. They are still bound and determined to push more of them into the military tribunal system for no good reason. These people who have been tried successfully when accused of terrorism have been safely incarcerated in the Federal penitentiaries across America, including in my home State of Illinois at the Marion Federal Prison. Not one suggestion has been made that the communities surrounding these prisons nor the prisoners themselves are under any threat. What we have instead is this presumption that isn't borne by the facts or by our experience.

I voted for the Senate version of this bill with the hope that the Members of the Senate and House who were negotiating the final bill would remove some of the detainee provisions that concern me. I want to acknowledge that the conference committee did make some positive changes. But I continue to have serious concerns because provisions in the bill would limit the flexibility of any President in combatting terrorism, create uncertainty for law enforcement, intelligence, and defense officials regarding how they handle suspected terrorists, and raise serious constitutional concerns.

I am especially concerned about section 1022 in the conference report. This provision would, for the first time in American history, require our military to take custody of certain terrorism suspects in the United States. Our most senior defense and intelligence officials have raised serious concerns about this provision. FBI Director Robert Mueller strongly objects to the military custody requirement. For those who need reminding, Robert Mueller served as a Federal judge in California and was appointed to this position as head of the FBI by Republican President George W. Bush. He has been retained in that office by Democratic President Barack Obama. I believe he is a consummate professional who has dedicated his life, at least in the last 10 years-plus, to keeping America safe. I trust his judgment. I respect his integrity.

In a letter to the Senate, Director Mueller says the bill will ``inhibit our ability to convince covered arrestees to cooperate immediately, and provide criminal intelligence.''

He was asked after the conference report whether the changes absolved any of his concerns, and he said he was still concerned. I will go to that in a moment. Director Mueller concluded that the provision I am raising ``introduces a substantial element of uncertainty as to what procedures are to be followed in the course of a terrorism investigation in the United States.''

Considering the source of this concern, the Director of the Federal Bureau of Investigation who has been responsible ultimately for the successful prosecution of 400 suspected terrorists, we should take his concerns to heart.

The Justice Department, which then prosecutes terrorism suspects, shares Director Mueller's concerns. Here is what they said:

Rather than provide new tools and flexibility for FBI operators and our intelligence professionals, this legislation creates new procedures and paperwork for FBI agents, intelligence lawyers and counter-terrorism prosecutors who have conducted hundreds of successful terrorism investigations and prevented numerous attacks inside this country over the past decade.

The supporters of this legislation have responded to these concerns by pointing to the fact that the bill allows the Secretary of Defense to waive the military custody requirement. But the Justice Department says the administrative burdens of obtaining a waiver could hinder ongoing counterterrorism operations. Here is how they explained it:

While the legislation proposes a waiver in certain circumstances to address these concerns, this proposal inserts confusion and bureaucracy when FBI agents and counter-terrorism prosecutors are making split-second decisions. In a rapidly developing situation--like that involving Najibullah Zazi traveling to New York in September 2009 to bomb the subway system--they need to be completely focused on incapacitating the terrorist suspect and gathering critical intelligence about his plans.

The authors of this legislation say they made changes to the military custody requirement to respond to these concerns raised by Director Mueller and the Department of Justice. But in my view, these changes don't go nearly far enough. They continue to create uncertainty and impose administrative burdens on our counterterrorism professionals whom we depend on to keep us safe.

The changes in the legislation do not change the fundamental premise. They create a presumption that a terrorism suspect arrested in the United States should be transferred to military custody, despite the fact--despite the fact--that the Federal Bureau of Investigation has kept America safe sinceÐ9/11.

I am not alone in my feelings. This morning, an editorial in the Washington Post said:

[These provisions]--while less extreme--are still unnecessary and unwise. ..... [L]awmakers have ..... introduced confusion in the form of directives that threaten to bollix up law enforcement and military personnel when they most need to be decisive.

Why in the world would we create uncertainty and bureaucracy when, with every second that ticks away, American lives can be in danger?

Just yesterday in the Senate Judiciary Committee, FBI Director Robert Mueller testified he is still deeply concerned about section 1022, despite the changes made in this conference report. Here is what Director Mueller said:

Given the statute the way it is now, it does not give me a clear path to certainty as to what is going to happen when arrests are made in a particular case. The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.

That, in and of itself, should give pause to every member of the Senate. When we consider this objection from the Director of the Federal Bureau of Investigation, the lead official charged with combatting terrorism in the United States, shouldn't we take Director Mueller's concerns to heart? Do we want the FBI to have uncertainty the next time they stop and detain a suspected terrorist in the United States?

I want to address another provision, section 1021. I was very concerned that the original version of the legislation would, for the first time in history, authorize indefinite detention in the United States. But we have agreed, on a bipartisan basis, to include language in the bill offered by Senator Feinstein that makes it clear this bill does not change existing detention authority in any way. What it means is, the Supreme Court will make the decision who can and cannot be detained indefinitely without trial, not the Senate.

I believe the Constitution does not authorize indefinite detention in the United States. Some of my colleagues see it differently. They claim the Hamdi decision upheld indefinite detention. It didn't. Hamdi was captured in Afghanistan, not in the United States. Justice O'Connor, the author of the opinion, carefully stated the Hamdi decision was limited to ``individuals who fought against the United States in Afghanistan as part of the Taliban.''

Some of my colleagues also cited the Padilla case, claiming it is a precedent for the indefinite detention of U.S. citizens captured in the United States. But look at what happened in the Padilla case. Padilla is a U.S. citizen who was placed in U.S. custody. The Fourth Circuit Court of Appeals, one of the most conservative in the land, upheld his military detention. But then, before the Supreme Court had the chance to review the Fourth Circuit's decision, George W. Bush's administration transferred him out of military custody, prosecuting him in an article III criminal court. To this day, the Supreme Court has never ruled on the question of whether it is constitutional to indefinitely detain a U.S. citizen captured in the United States. That decision must be decided by the Supreme Court, not by the Senate, thanks to the Feinstein amendment.

I support the inclusion of the Feinstein amendment in this bill. I continue to believe there is no need for this provision overall and that it should have been removed.

I also continue to oppose provisions in the conference report that limit the administration's ability to close the Guantanamo Bay detention facility. Section 1027 of this legislation provides that no detainee held at Guantanamo can be transferred to the United States even for the purpose of holding him incarcerated for the rest of his life in a Federal supermaximum security facility.

There is absolutely no reason for this prohibition. Section 1026 of this legislation provides clearly that the government may not construct or modify any facility in the United States for the purpose of holding a Guantanamo Bay detainee.

Let me bring this closer to home. We have offered for sale in the State of Illinois a prison built by our State that has not been used or opened in its entirety. The Federal Bureau of Prisons has stated they are interested in purchasing it because of the overcrowded conditions in many Federal prisons. We would, of course, like to see that done--not just for the revenue that would come to the State of Illinois but because it would create jobs in my State.

In the course of deliberating it, controversy arose as to whether Guantanamo detainees would be placed in this prison. Initially, the administration said they would, and I supported them. But ultimately it became clear that there was opposition to going forward with this purchase of the Illinois prison if there was any likelihood Guantanamo detainees would be incarcerated at this prison. We have now made it clear--and I wish to make it clear for the record--that despite my personal views on this issue, I believe the law is clear that the Thomson Prison, once under Federal jurisdiction, will not house Guantanamo detainees. That has been a stated policy. It is now going to be a matter of law in this Defense authorization. Regardless of my personal feelings on the subject, it is the governing law, and I will not try to change the situation of Thomson in any way as long as I serve in the Senate when it comes to this important issue.

Unfortunately, some of my colleagues--whom I disagree with--are determined to keep Guantanamo open at all costs. I disagree. When we consider the expense of detention at Guantanamo and the reputation of that facility, I believe the President was right, initially, when he talked about the fact that we needed to, at some point, bring detention at Guantanamo to a close. My feelings are not only shared by the President but also by GEN Colin Powell; former Republican Secretaries of State James Baker, Henry Kissinger, and Condoleezza Rice; former Defense Secretary Robert Gates; ADM Mike Mullen; and, GEN David Petraeus.

There is great irony here. For 8 long years during the previous Republican administration, Republicans on the floor argued time and again that it was inappropriate--some said even unconstitutional--for Congress to ask basic questions about the Bush administration's policies on issues such as Iraq, torture, waterboarding, and warrantless wiretapping. Time and again, we were told Congress should defer to President Bush, our Commander in Chief. Let me give one example.

My friend Senator Lindsey Graham of South Carolina, on September 19, 2007, said:

The last thing we need in any war is to have the ability of 535 people who are worried about the next election to be able to micromanage how you fight the war. This is not only micromanagement, this is a constitutional shift of power.

With a Democratic President, obviously some of my colleagues have had a change of heart. They think it is not only appropriate but urgent for Congress to limit this President's authority to combat terrorism, despite the success we have had since 9/11 under President Bush and President Obama keeping America safe. This is a clear political double standard. It is unnecessary. Look at the track record.

Since 9/11, our counterterrorism professionals have prevented another attack on the United States, and more than 400 terrorists have successfully been prosecuted and convicted in Federal courts. Here are just a few of them: Umar Faruk Abdulmutallab, the Underwear Bomber; Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing; Omar Abdel-Rahman, the so-called Blind Sheik; the 20th 9/11 hijacker, Zacarias Moussaoui; and Richard Reid, the Shoe Bomber--all prosecuted in the criminal courts of this land successfully and safely incarcerated in our Federal prisons. Something which many on the other side refuse to acknowledge, and argue is impossible, has, in fact, happened over and over again over 400 times.

Why do we want to change this system when it is working so well to keep America safe?

The fact that these detainee provisions have caused so many disagreements and such heated debate demonstrates the danger of enacting them into law. We shouldn't impose this kind of uncertainty on law enforcement, defense, and intelligence who are working to protect America. We should not limit the flexibility of the administration to respond to suspected terrorists in the most effective way, and we should not raise serious constitutional questions by requiring the military to detain people in the United States.

I have a letter from the Agents Association of the Federal Bureau of Investigation, dated December 7, 2011, raising many of the same issues which I have raised. I will say we contacted the Agents Association after the conference and asked them their reaction, and they said they still stood behind their statements of December 7, 2011. I ask unanimous consent to have printed in the Record this letter.

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

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