Defense Authorization

Floor Speech

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Mr. DURBIN. Mr. President, I thank my colleague from Missouri, and I concur with his comments about our American military. We have the best in the world. These men and women serve us well with courage and honor every day, and we are fortunate to have them. We are fortunate--those of us who enjoy the blessings of liberty and the safety of this Nation--to have men and women willing to risk their lives for America.

This Defense authorization bill is a bill that authorizes the continued operations of our military, and every year we pass this bill, as we should, in a timely manner. I have supported it consistently over the years with very few exceptions and believe the work product brought to us by Senators Levin and McCain is excellent, bipartisan, and moves us in a direction toward an even safer America, and I thank them for all the work they put into it.

There are provisions within this bill today which trouble me greatly. There are provisions on which I hope Members of the Senate will reflect, one in particular that I will address at this time. Senator Feinstein is offering amendment No. 1125, which I am cosponsoring. I would say this amendment raises a serious question about section 1032 in this bill. I am concerned this section would limit the flexibility of any President to fight terrorism. I am concerned it will create uncertainty for law enforcement, intelligence, and our military regarding how to handle suspected terrorists. I think it raises fundamental and serious constitutional concerns.

This provision, 1032, would, for the first time in the history of the United States, require our military to take custody of certain terrorism suspects in the United States. On its face, that doesn't sound offensive, but, in fact, it creates a world of problems. Where do we start this debate?

We understand the responsibility of Congress in passing laws and the President with the option to sign those laws or veto them and the courts with the responsibility to interpret them. When it comes to the protection of this country in fighting terrorism, most of us have believed this is primarily an executive function under Presidents of both political parties. We may disagree from time to time on the PATRIOT Act and other aspects of it and debate those issues, but, by and large, I think we have ceded to Presidents of both parties the power to protect America.

My colleague and friend, Senator Lindsey Graham, a Republican of South Carolina, on September 19, 2007, stated--and he states things very colorfully and clearly--

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.

That was Senator Graham's statement in 2007. Although I would carefully and jealously guard the constitutional responsibility of Congress when it comes to the declaration of war, even the waging of war, I do believe there is a line we should honor. We should not stop our President and those who work for him in keeping America safe by second-guessing decisions to be made.

Today, again, on the Republican side of the aisle came colleagues who make the argument that it is a serious mistake for us to take a suspected terrorist and put them into our criminal justice system. They argue the last thing in the world we want to do is to take a suspected terrorist and read them their constitutional rights: the right to remain silent, everything you say can be used against you, the right to counsel. They argue that is when terrorists will clam up and stop talking. Therefore, they argue, suspected terrorists should be transferred to military jurisdictions where Miranda rights will not be read. On its face it sounds like a reasonable conclusion. In fact, it is not. It is not.

Since 9/11, we have arrested and detained 300 suspected terrorists, read them their Miranda rights, and then went on to prosecute them successfully and incarcerate them. They cooperated with the Federal Bureau of Investigation, gave information, and in many cases gave volumes of information even after having been read their rights. So to argue that it cannot be done or should not be done is to ignore the obvious. Three hundred times we have successfully prosecuted suspected terrorists, and America has remained safe for these 10 years-plus since 9/11. How many have been prosecuted under military tribunals in that period of time? Six, and three have been released. We are keeping this country safe by giving to the President and those who work for the President in the military intelligence and law enforcement community the option to decide the best course of action when it comes to arresting, detaining, investigating, and prosecuting an individual.

Remember the man who was on the plane flying into Detroit a couple of years ago? He tried to detonate a bomb on the plane. His clothing caught fire, and the other passengers subdued him, restrained him. He was arrested, investigated by the FBI, and read his Miranda rights. Within a day his parents were brought over. The following day he decided to cooperate with the United States and told us everything he knew. At the end of the day, he was prosecuted, brought to trial, and pled guilty. He went through our regular criminal court system, though he was not an American citizen, and he was successfully prosecuted. President Obama had the right to decide what best thing to do to keep America safe, and he did it. Why would we want to tie his hands?

Now let me talk about this section 1032 and why it is a serious mistake. Section 1032 in this bill would for the first time in American history require the military to take custody of certain terrorism suspects in the United States. From a practical point of view, it could be a deadly mistake for us to require this. Listen to what was said by the Justice Department in explaining why:

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

Instead, this provision, 1032, written into this law, would require a handoff of terrorism suspects to military authorities. So what does our military think about this?

Well, the Secretary of Defense Leon Panetta made it abundantly clear when he said:

The failure of the revised text to clarify that section 1032 applies to individuals captured abroad, as we have urged, may needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.

What we have seen, then, as our Secretary of Defense tells us, ceding to the military this authority could compromise America's security at a critical moment when every second counts, when the gathering of intelligence could literally save not just a life but thousands of lives.

Senator Feinstein's amendment makes it clear--as the administration wants to make it clear--that those terrorism suspects who are arrested abroad will be detained by the military. But within the United States we are told by this administration this provision will jeopardize the security of our country, will require a procedure now to hand off these individuals to the military side in places where they could not possibly be handed off quickly or seamlessly.

We have 10,000 FBI agents dedicated to the security of this country when it comes to these national security issues and 56 different offices. We don't have anything near that capacity when it comes to the military picking up the interrogation of an individual who may have knowledge that if we can glean it from that person could save thousands of lives.

Why in the world do we want to tie the hands of law enforcement? Why do we want to tie the hands of the intelligence community? Why do we want to create this situation of giving to the military this responsibility when they are not prepared at this moment to take it?

I think Senator Feinstein is doing the right thing for the protection of this country. Her position is supported by the Attorney General, by the Secretary of Defense, and by the intelligence community. They have done a good job in keeping America safe. They have asked us: Please, do not micromanage. Do not presume, do not create another hurdle for us when it comes to gathering information that can save lives in America.

Why would we do that? After more than 10 years of success and avoiding another 9/11, let's not make the situation worse by this 1032, this section of the bill that is being presented to us.

I know we will hear arguments on the Senate floor, well, there are opportunities for a waiver. So if a person is detained by the Federal Bureau of Investigation and then it is determined that this is a suspect who falls in the category and needs to go to military detention and then we need to turn to the executive side for a waiver of that military detention, how much time will be lost? Will it be minutes, hours, days? Could we afford that if what is at stake is the potential loss of thousands of American lives? Why? Why make it more complex?

I cannot understand why the other side of the aisle is now so determined with this President to micromanage the defense of this country when it comes to terrorism. When it was a Republican President any suggestions along those lines were dismissed as unpatriotic and unwise and illogical. Now, under this President, everything is fair game. They want to change the rules, rules which have successfully protected the United States for more than 10 years.

I urge my colleagues to support Senator Feinstein's amendment No. 1125 and amend this section 1032 and make sure that our Defense Department, military and law enforcement, as well as intelligence community have the tools they need to continue to keep America safe.

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