Congressional Record, Volume 157 Issue 156 (Tuesday, October 18, 2011)

[Congressional Record Volume 157, Number 156 (Tuesday, October 18, 2011)]
[Senate]
[Pages S6628-S6632]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

DEFENSE AUTHORIZATION

Mr. McCAIN. Mr. President, today we come to the floor to talk about
the importance of the Defense authorization bill. For 50 years the
Congress of the United States has enacted a Defense authorization bill,
enacted it into law and had it signed by the President of the United
States. There have been times when this legislation has been very
contentious--days during the Vietnam war, days during Operation Desert
Storm, Operation Iraqi Freedom, Bosnia, Kosovo. All of those times the
Defense authorization bill has been a vehicle for debate and votes on
the floor of the Senate concerning transcendent issues of national
security.
For 50 years we have cared for the men and women who have served and
provided them with the equipment, the pay, the benefits those men and
women of this country deserve after hundreds of hours of deliberation,
thousands of hours of written testimony and testimony before the
committee--the full committee and subcommittees such as that under the
chairmanship of the Senator from the State of Georgia.
Because of a part of the legislation, the majority leader has decided
that we will not take this bill to the floor of the Senate. That is a
betrayal of the men and women who are serving this Nation.
I understand there are differences on the issue of detainee
treatment. I understand it is an emotional issue. But should it be a
reason for the Senate not to carry out its 50-year tradition to debate
and discuss and amend and vote and then come out with a package that
provides for the needs, the training, the equipment, the benefits of
the men and women who are serving?
I quote from a letter from the distinguished majority leader to
Senator Levin and to me, ``However, as you know, I do not intend to
bring this bill to the floor until concerns regarding the bill's
detainee provisions are resolved.''

Is that the way the Senate works, that we do not bring bills to the
floor unless objectionable matters that are disagreed with by one side
or the other are not resolved? I always believed the way these issues
are resolved is through debates, through amendment, through votes,
through allowing the American people also to see and hear our
deliberations, our discussions, and our debate.
Obviously the fiscal year has expired so this bill is obviously long
overdue. Now we are in a position where apparently the majority leader
wants to take up the President's jobs bill in parts, one by one, in
complete disregard of the needs and requirements of the men and women
who are serving our national security.
Part of that bill also is the portion from the Intelligence
Committee. By the way, I note the presence of the Senator from South
Carolina, who knows more about detainees than any Member of this body
without question. He continuously travels to Iraq and Afghanistan, he
has visited the prisons. He understands the issues better than anyone.
I would be willing to ask him how he feels about the detainee
provisions, after the Senator from Georgia makes

[[Page S6629]]

a comment about the importance of the intelligence portion of the
Defense authorization bill.
Mr. CHAMBLISS. Mr. President, I thank the Senator. This is the ninth
Defense authorization bill I have been involved in since I have been a
Member of the Senate. I must say the refusal by the majority leader to
bring this Defense authorization bill to the floor is truly
disheartening. It is critically important that we address the issues
not only of what is going on in Iraq and Afghanistan but the day-to-day
operations of our military from the standpoint of pay raises, quality
of life, purchase of weapons systems for future use--any number of
issues that are included. The refusal of the majority leader to bring
this to the floor because of his objection to a very critical aspect of
this bill truly is disheartening.
During committee consideration of the bill, the committee considered
and adopted, by a vote of 25 to 1, a comprehensive bipartisan provision
relating to detainees. We have no detainee policy in this country
today. If we had captured bin Laden, what would we have done with him?
If we had captured Anwar al-Awlaki, what would we have done with him?
Certainly we could have gained actionable intelligence from either one
of those individuals, but we have no detainee policy in this country
today. We have nowhere to take them, where we can hold these
individuals and ensure that they do not get lawyered up quickly and
that we are unable to get the type of information we need to get from
individuals such as that.
Over the past several years there has been an ongoing debate about
the importance of being able to fully and lawfully interrogate
suspected terrorists. One thing is clear after all these years: that
our Nation still lacks this clear and effective policy. This bipartisan
detainee compromise goes a long way toward ensuring we can get timely
and actionable intelligence from newly captured detainees connected to
al-Qaida and other terrorist organizations. The compromise also
provides for a permanent process for transferring Guantanamo detainees
to other countries. We are in the midst right now of a review within
the Intelligence Committee of the thought process that went into the
transferring of detainees by both the Bush administration and the
current administration. I will tell you that there are real flaws in
that policy. Those flaws have resulted, according to the DNI--General
Clapper--of a recidivism rate of Guantanamo detainees of 27 percent.
That means 27 percent of the individuals we have released from
Guantanamo and sent to other countries that have been willing to take
them under various agreements--27 percent of them have returned to the
battlefield and are killing or are seeking to kill Americans. The
policy not only about detainees but policies with regard to what we do
with Guantanamo detainees is extremely important.
There were a number of us who were involved in the amendments that
went into the authorization bill in committee. Senator Graham from
South Carolina was. Senator Ayotte from New Hampshire was integrally
involved. Let me turn to Senator Ayotte and, from the perspective of
the people of New Hampshire, ask: Where does the Senator think we are
with respect to a detainee policy in this country today?
Ms. AYOTTE. I thank Senator Chambliss. I would say this. The Senator
highlighted the importance, No. 1, as did Senator McCain, of passing
Defense authorization. I have been to the floor twice on this issue
because I think it is so important for our country, the notion that it
has been half a century since the last time we failed to pass this
authorization. What is at stake for our troops and the message it sends
to them? We are in two wars. There are threats that face our country
and our military men and women every day. We owe it to them that they
know we are going to pass this authorization to address issues such as
pay increases and weapons that they need and all of the fundamental
day-to-day issues to make sure they know we are behind them.

I would summarize the issue of the detainee policy of this country
over the past few months in the Armed Services Committee as military
leader after military leader has come before our committee and we have
asked them about this issue, about how we treat detainees. I questioned
GEN Carter Ham, commander of the Africa command, about what we would do
if we captured a member of al-Qaida in Africa. Do you know what he
said? He said he would need lawyerly help to answer that one. Is that
what we have come to, our commanders need lawyerly help in order to
know how to deal with captured terrorists and how to treat them within
our system to make sure we have a secure place to gather intelligence
from them and to ensure that the American people and our allies are
protected?
The majority leader is holding up the entire authorization bill with
this detainee compromise, which was an overwhelmingly bipartisan
compromise. This provision in the committee was voted 25 to 1 in
support of this because there is such a need to address how we treat
detainees. As Senator Chambliss already highlighted, we have a 27-
percent recidivism rate from those who have been released from
Guantanamo. Here are a couple of examples of what those individuals are
doing right now against us, our troops, and our allies. For example,
the No. 2 in al-Qaida in the Arabian Peninsula was someone we released
from Guantanamo.
Another top commander of the Taliban in the Quetta Shura who is out
planning attacks against us is someone we released from Guantanamo.
That is why this issue cries out for a detention policy for our
country. This is a very important issue to be brought to the floor
along with the entire authorization.
I see my colleague from South Carolina here, Senator Graham, who I
know has worked very closely on these detention issues as a JAG
attorney and is someone who visited Afghanistan in August.
First, I would ask, during his time in the Senate, has he seen the
Senate act like this with the Defense authorization? Second, how
important does the Senator think it is we address this detainee issue?
Mr. McCAIN. I thank the Senator from New Hampshire for the enormous
contribution she has made in putting together this legislation. I wish
both her and my friend from South Carolina to address this.
In the letter sent to Senator Levin and me to address this issue,
Senator Reid, the majority leader, as the rationale for not bringing
the bill to the floor, says: I do not intend to bring this bill to the
floor until concerns regarding the bill's detainee provisions are
resolved.
It goes on and on and then he says: As Deputy National Security
Adviser John Brennan stated in a recent speech--he said in summary,
this approach, talking about the approach that we have taken in the
bill--I believe the vote was 25 to 1. He said: This approach would
impose unprecedented restrictions on the ability of experienced
professionals to combat terrorism, injecting legal and operational
uncertainty into what is already enormously complicated work.
I wonder, does Mr. Brennan understand what is in the legislation?
Mr. GRAHAM. I thank the Senator from Arizona and all of my colleagues
working on what is a very difficult subject matter. When 25 to 1 is the
outcome, that is pretty good. I like Senator Reid. This goes back to
the White House. This is President Obama's team. This is not Harry
Reid. This is not the Senate holding up this bill, it is the White
House holding up this bill. They have an irrational view of what we
need to be doing with detainees. They have lost the argument--and I
tried to help--to close Guantanamo Bay. It is not going to close. We
are not going to move those prisoners inside the United States. The
Congress has said no. The American people have said no.
The reason they lost that argument is after working with the White
House for about a year and a half to try to find a national security
centric detainee policy that would assure the American people we are
not going to let these people roam around the world and treat them as
common criminals, they could never pull the trigger on the hard stuff.
We are here because the White House cannot tell the ACLU no. There are
48 people at Guantanamo Bay being held under the law of war, who will
never see a courtroom, military or civilian courtroom, and that is part
of military law. You don't have to let an enemy prisoner go. Most enemy
prisoners are never prosecuted. They are held at Guantanamo Bay under
the

[[Page S6630]]

law of war. An Executive order issued by the Obama administration gives
them an annual review. We have been trying to work with the Obama
administration to deal with every class of detainee we may run into in
this war that will go well beyond my lifetime. The reason Mr. Brennan
objects is because there was a decision made by the Congress to say if
a detainee is captured and interrogated by the high-value interrogation
team--which I like, which is an interagency combination of the CIA,
FBI, military, and other law enforcement agencies to make sure we get
the best intelligence possible, that we create a presumption for
military custody.
The reason we are doing that is because the Obama administration has
been hell bent on criminalizing this war. Khalid Shaikh Mohammed, the
mastermind of 9/11, had charges against him in military commissions
during the Bush administration, and he was ready to go to trial,
literally ready to plead guilty. The Obama administration withdrew
those charges and was going to put him in New York City, giving Khalid
Shaikh Mohammed the same constitutional rights as an American citizen,
then take that show on the road from Guantanamo Bay and have a trial in
the heart of New York City that would cost $300 million alone in
security. That blew up in their face. They don't get it. Most Americans
don't see these people as some guy who stole a car or robbed a liquor
store. Most Americans see detainees who were captured on the
battlefield as a genuine threat to this country.
I applaud the Obama administration for taking the fight to the
terrorists and going after bin Laden, for using Predator drones on the
battlefield throughout Pakistan and Afghanistan. What I have fought
with them over is we have no way of capturing someone and acquiring
good intelligence because you have locked down the system. This
detainee legislation we have before the Senate will allow a way to
go forward.

What happens if you capture someone tomorrow? Where do we put them?
What jail do we have, as a nation, to put a captured terrorist in? We
don't have a jail because they will not use Guantanamo Bay. They
captured a terrorist and put him on a ship for 60 days. The Navy is not
in the detention business. We don't build ships to make them jails. We
build ships to fight wars. This aversion to using Guantanamo Bay is
going to bite us as a nation.
This legislation allows us to move forward. If you capture someone,
you can gather good intelligence. There is a presumption that they will
be held as an enemy combatant, but there is a waiver provision. What I
don't want to do is read rights to everybody we capture in the United
States as part of a terrorist organization's plot. We are not fighting
a crime, we are fighting a war. Under the rules of war, you can hold an
enemy combatant and interrogate them as long as necessary to find out
what the enemy is up to. That is what this legislation does.
To my colleagues, you have written a very balanced approach. This
idea of never using Guantanamo Bay again is dangerous. The idea that
the CIA cannot interrogate enemy prisoners as a policy is dangerous. By
Executive order the President of the United States, President Obama,
within a week of taking office, took off the table an enhanced
interrogation technique under the Detainee Treatment Act that was
classified, that was not waterboarding within our values, but
techniques available to our intelligence community, which Senator
Chambliss oversees, that would allow them over time to acquire good
intelligence.
One of the reasons we killed bin Laden is because of the intelligence
picture we acquired over 10 years. This President, within a week, said
by Executive order the only interrogation tool available to the United
States of America is the Army Field Manual, which is online. You can
read it yourself.
Mr. McCAIN. Can I ask my colleague--it is a fact, as the Senator from
New Hampshire pointed out, that 27 percent of the detainees who have
been released from Guantanamo Bay have returned to the fight. Not only
have they returned to the fight, the fact that they were in Guantanamo
gives them an automatic kind of charisma and aura and leadership in al-
Qaida and other terrorist organizations. Does the Senator think the
American people find that acceptable, that one out of every four we
have released from Guantanamo Bay has reentered the fight and clearly
is responsible for the deaths of at least some of the brave young
Americans and may be responsible for the deaths of Americans in the
future?
Mr. GRAHAM. Not only are most Americans upset about that but they
worry about what comes down the road. That is what I am worried about.
The Senate legislation is trying to create a pathway forward for the
future. What do you do with these people we have in Guantanamo Bay who
may never go on trial? What do you do with these people at Guantanamo
Bay who come from countries where, if you return them to that country,
they would be back in the fight by the end of the day?
Mr. McCAIN. As has happened in Yemen.
Mr. GRAHAM. We have a bipartisan proposal that will allow us as a
nation to make rational decisions about detention, and the White House
is holding it up. There are provisions in this bill that affect the
day-to-day lives of the men and women in our military. The White House
is saying detainee policy driven by the ACLU is more important to them
than a bill that would allow the CIA the authorization they need to
fight this war that would provide wounded warriors assistance at a time
when wounded warriors need it the most. You talk about a perverse view
of things, you talk about having it wrong in terms of what is most
important, allowing the detainee issue to deny the CIA the
authorization they need to protect us all is dangerous. To put the
needs of the men and women in uniform in terms of their health care,
their pay, their ability to take care of their families secondary to
detainee policies that make no sense and is driven by the far left of
this country is what this debate is about.
To the White House, we are not going to change this bill.
Mr. McCONNELL. Would the Senator yield for a question?
Mr. GRAHAM. Yes.
Mr. McCONNELL. Am I correct, I would say to my friends from South
Carolina and New Hampshire and Arizona, that because of the
administration's opposition to a detainee treatment provision that was,
I gather, approved overwhelmingly in the Armed Services Committee, we
will for the first time deny everybody in the Senate an opportunity to
offer any amendments on any subject with the DOD authorization bill
and, in fact, will not consider it on the floor of the Senate for the
first time in four decades?
Mr. GRAHAM. The minority leader is absolutely right. I would add to
my good friend from Kentucky, it is even more. It is not just about us.
What we are denying General Petraeus, the new CIA Director, is new
authorization language that he needs to fight the war. What we are
denying men and women in uniform is pay raises, health care benefits
they desperately need because of the detention policy driven by, I
think, the most liberal people in this country, and 25 out of 26
Senators blessed this package.
Senator McConnell is absolutely right. Not only does the Senate not
have a say on what would be the way forward for our detainees, the men
and women in uniform, the CIA operatives taking the fight to the enemy
do not have the tools they need because of one area of this
legislation. It would be a national tragedy if we could not pass this
bill, which is sound to its core in all areas, because the ACLU doesn't
like what we have done on detention.
Mr. CHAMBLISS. If the minority leader would yield for a question, as
the Senator well knows, the intelligence community depends upon the
Defense authorization bill for the authorization to operate in the
intelligence community. Whether it is the budget or policy, all of that
is compromised in the majority leader's refusal to bring this bill to
the floor. Without the authorities in the respective intelligence bills
that are passed by the House and the Senate, then our Intelligence
Committee is handicapped and hamstrung in policies that are needed as
we move forward in this ever-changing war on terrorism.

I would ask the Senator from Kentucky if he has ever, in his long
experience in the Senate, seen any bill of this

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nature held up and not allowed to come to the floor because of any
single Senator's refusal to accept the provisions that are in the bill
by an overwhelming vote such as this?
Mr. McCONNELL. Mr. President, I am not sure who has the floor, but I
would say, in response to my friend from Georgia----
Mr. McCAIN. Mr. President, I say to the Senator, we have unanimous
consent for a colloquy.
Mr. McCONNELL. There may have been examples, but I am hard pressed to
think of one recently. The tradition of passing the Defense
authorization bill is there for a good reason. The national defense of
the United States is the most important thing the Federal Government
does. The committee upon which the Senator from Georgia and the Senator
from Arizona and the Senator from New Hampshire serve is expert on this
matter, and I find this truly astonishing.
It is consistent, however, I must say with the pattern around here in
recent times: no amendments, fill up the tree, deny the majority and
the minority--in this case, both the majority and the minority--the
opportunity to have any input on a piece of legislation that determines
what we do on the Federal Government's most important responsibility.
I think this is another example of the way the Senate has
deteriorated into operating like the House, and it is an extremely bad
direction for this institution and for the American people.
Ms. AYOTTE. I wish to add as well, this detainee compromise, as
Senator McCain and I have talked about before, is actually for--the
group of individuals we are talking about here--having military custody
for members of al-Qaida or affiliated groups who are planning an attack
against the United States or its coalition partners. You think about
that category of individuals. The most dangerous category of
individuals we have to address is why we came to the compromise in
committee, that the default would be military custody for those
individuals, and it is inconsistent with the administration's position.
If you think about it, they are, rightly so--and I agree with them--
undertaking taking out members of al-Qaida around the world who fall
under that category, who are out there killing Americans and plotting
against Americans and our allies. Yet they are objecting to a
provision, a detainee provision, that would give guidance to our
military and intelligence leaders that those individuals should be
treated, in the first instance, with military custody. It seems to me
to be very inconsistent with what they have been doing in other
contexts, and, obviously, this is a category of individuals who, on a
bipartisan basis, we agreed in committee was the most dangerous
category of individuals, who should be held in the first instance in
military custody.
I want to add that Mr. Brennan, whom the majority leader has cited on
behalf of the administration as objecting to this provision, does not
seem to--in his speech at Harvard that he gave recently--appreciate who
this provision applies to and that there is actually a national
security waiver in the provision. So I would ask the administration and
Mr. Brennan, again, to read the provisions that were passed on a
bipartisan basis by the committee because this is such a key issue to
move forward to give guidance to our military. But I am concerned that
the administration's objections to this are misguided and they have not
read the actual legislation on which we are working.
It is my hope, as our leader, the minority leader, has said, that we
will move forward with passing the critical pieces for our troops
because our troops deserve nothing less than for us to bring this
forward to the floor because of the pay raises, the weapons systems
they deserve to have, everything that is in that bill. But, also, I
would ask the administration to revisit its position because it seems
inconsistent with its own policies, and they do not seem to have
actually read the compromise that was overwhelmingly passed out of the
Armed Services Committee.
Mr. McCAIN. Mr. President, I thank the Senator from New Hampshire.
I know we have addressed this issue in some depth, but I would remind
my colleagues, this is the Defense authorization bill. This is the
product of thousands of hours of work, of staff work, hundreds of hours
of testimony and hearings, a week-long markup of the full committee
putting this package together. The thoughts, the ideas, the
recommendations of the administration, and people in and out of the
administration, the knowledge and expertise of thousands of individuals
go into this most important piece of legislation.
For 50 years it has been taken up, debated, amended, passed, and
signed into law by the President of the United States. Now, because of
one small provision of this bill, the majority leader of the Senate, at
the behest of the White House, has decided we will not take up the
Defense authorization bill for the first time in 50 years.
I think the distinguished Republican leader and I, who have been
around here for quite a while, have seen this process now deteriorate
to the point where we now cannot debate, amend, and pass legislation
that is so vital to our Nation's security and the men and women who
take part in preserving it. This is kind of a sad day for this Member.
Mr. McCONNELL. Finally, I would ask both the Senator from Arizona,
who has been our leader on national defense issues, and the Senator
from New Hampshire: Is the basis of this that the administration wants
to establish the precedent that they can capture enemy noncombatants
anywhere in the world and send them straight into the United States
into an article 3 court? Is that the crux of this, I would ask my
friends?
Ms. AYOTTE. I would say to our distinguished Republican leader, I
think that is what is at the heart of this, that they want to treat
these individuals in the context of our civilian court system;
otherwise, why would you object to a provision on military custody for
those who are members of al-Qaida who are planning an attack against
the United States or have attacked the United States? Also, I would
point out, there is a national security waiver in this provision. So
the only thing I can take from it is that they do want to treat this
war as people who are at war with us as civilians as opposed to who
they are--enemies of our country.
Mr. McCONNELL. Could I ask the Senator from New Hampshire, a former
attorney general, a further question?
Does this not lead, inevitably, in the further direction of a mindset
that would say, on the battlefield, if you capture an enemy combatant--
and that enemy combatant is, inevitably, on the way to an article 3
court--could it lead to the feeling that that enemy combatant should be
read his Miranda rights on the battlefield, if he is viewed as an
individual who is on the way to a U.S. court under U.S. law? Where does
it end, I ask my friend from New Hampshire?
Ms. AYOTTE. I would say that is an absolute concern here because this
would be the first war in the history of our country where we would be
giving those we capture on the battlefield the rights to our civilian
court system. Where do we draw the line? It would be outrageous to
require members of our military and intelligence officials to
immediately ask: Do I have to give Miranda rights? Do I have to worry
about some of the speedy trial and presentment issues that come from a
civilian court system?
That is why, in the guidance of the committee, on a bipartisan basis,
for this category of individuals, the presumption should be military
custody because these are individuals who are enemy combatants with
whom we are at war. That is fundamentally what is at issue. It does
seem inconsistent--with what the administration is doing in terms of
rightly going after these individuals around the world, and killing
them in certain instances--that we would not provide them with military
custody in the first instance.

Mr. McCAIN. Could I also point out to my friends and my colleagues
that, as is the case quite often, even though the vote was 25 to 1 on
this provision in the Senate Armed Services Committee, we did provide,
at the request of the administration, a waiver for national security.
So we included a waiver that says:

The Secretary of Defense may, in consultation with the
Secretary of State and the Director of National Intelligence,
waive the requirement of paragraph (1)--

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That is the detainee issue--

if the Secretary submits to Congress a certification in
writing that such a waiver is in the national security
interests of the United States.

So there is a national security waiver. We have given the President
of the United States a way that he could waive every provision of this
legislation--something I was not particularly happy about, but in the
spirit of compromise, we gave a waiver.
Could I say, also, I am sure--I see the majority leader on the
floor--yes, there have been contentious times. There was contention
last year about the don't ask, don't tell act. The year before, there
was contention about the fact that they added the hate crimes bill,
which had nothing to do with national security, onto the bill. But at
least we ought to go ahead and take up and debate and amend and have
the Senate act, as the American people expect us to; that is,
consideration, voting, and the President, if it is that objectionable,
obviously, could veto the bill.
But to say, because of these few pages--these pages right here of the
bill--that, therefore, we will not even take up the bill, for the first
time in 50 years, in my view, is a great disservice to the men and
women who are serving.
I thank my friends, the Senator from New Hampshire and the minority
leader.
I yield the floor.
The PRESIDING OFFICER (Mr. Tester). The majority leader is
recognized.

____________________