of cuba in a major oil disaster that is carried by the gulf stream up the eastern seaboard of the united states, if we do not have financial responsibility, then there is no incentive for those foreign oil companies drilling to adhere to safety standards, and if there is a spill, to quickly adhere to a spill cleanup plan. you're talking about the economic disaster that occurred as a result of the gulf oil spill in the deep water horizon, it would pale in comparison to the economic disaster that would occur in such a spill that would be carried by the gulf stream and it would not only affect florida, it would affect georgia, south carolina, north

carolina, and if there were any eddy currents that carried it back in, it could take it right on into the chesapeake, on up in cape may, new jersey, and you see the particular consequences. as a matter of fact, the gulf stream goes by bermuda. it could have devastating effect on that country. and so, mr. president, i hope our senators and coming to this new reality will realize that we have got to remember the terrible, terrible consequences as a result of a major oil spill. and remember, this was a company off of louisiana that was adhering to the highest safety standards, and look at the disaster that occurred from them. and remember how they tried to hide the amount of oil that was being spilled because it was 5,000 feet below the surface of

the water, and it wasn't until we got the streaming video that the scientists could calculate that it wasn't a thousand barrels a day that was dumping into the gulf, it was 50,000 barrels a day. and as a result, before they got that well capped, it ended up being almost five million barrels of oil in the gulf of mexico. we do not even know the future consequences because there's a lot of oil out there sloshing around and there's a lot of it down there deep that we don't know what's happening down there. we don't know what's happening to the critters. we know what's happening to some of the critters in the mawshes where -- marshes where the oil has now mixed up in the sediment and the critters are downed there digging around and we're seeing the evidence of that when we check the gills of these fish that are being hatched and living off the sediment and the consequences are not good.

mr. president, it is the responsible thing to do to make foreign oil companies drilling in foreign waters understand there's going to be an economic consequence if they damage the economic interests of the united states. and that's the bill that senator menendez, senator marco rubio, and i have filed and i commend it to the consideration of the senate. mr. president, i yield the floor and suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

a senator: mr. president i ask that the quorum call be dispensed with. the presiding officer: without objection. the senator from new york. mrs. gillibrand: one of the ropes that i came to congress was -- reasons that i came to congress was to be a voice for our troops and our military families. they answer a call higher than any other fighting to protect our country, our way of life, our values, all that we hold dear. our men and women in uniform fight to put their lives on the line every day for us, and our job is to fight for them and ensure that when they come home,this they have an opportunity to go to college, find a good-paying job, afford a new home, start a family, have access to quality health care. after a decade of two wars in iraq and afghanistan, we've asked more of our military than ever before. including our national guard and

reserves. our reserve components are deployed in record numbers including serving in combat zones. while they serve alongside our active duty military our guard and reserve members don't have access to all of the assistance, services and benefits that the troops that they fight shoulder to shoulder with have. currently our guard and national reserve members are left largely on their own to find and obtain services that they need to recover from combat, rejoin their families, and adjust back to normal civilian life. this needs to change. i'm offering amendment number 1211 together with my colleague senator blunt of missouri to give our national guard and reserve members the services that they not only deserve but that they desperately need. this amendment would expand access to health care, family and financial counseling and other services that the guard and reserve members currently do not have full access to.

my amendment extends the nationwide -- extends nationwide a highly successful program that's existing right now in vermont. it would set up a system of support of fellow veterans across the country serving as outreach specialists, people our guard and reserve members can talk and relate to, and help them get the access to the services that they need. it would give the defense department additional resources it needs to provide counseling and -- and reintegration services for the national guard and reserve members. this amendment has the strong support of the national guard association, who said this amendment would help ensure 448,000 national guard men and women who have served in iraq and afghanistan since 9/11 are provided with the necessary services upon their return from war. members of the national guard and reserve are the citizen soldiers who step up and

accomplish extraordinary acts of valor and bravery for our country. they are veterans and they deserve these services when they return because of the sacrifices they've made, and continue to make for our great country. mr. president, i would also like to speak in support of senator murray's amendment number 1189. mental health disorders, substance abuse and traumatic brain injury affect nearly 20% of all service members who have been deployed to iraq and afghanistan. that's up with in five. -- that's one in five. unlike active duty members, guard and reserve members don't have direct access to the counseling services they need putting enormous strain on these veterans and their families who stand by them and have stood by them. senator murray's amendment would embed mental health professionals in arm ris and reserve centers bringing mental health support within reach for guard and reserve members where and when they need it. mr. president, i yield the

floor and i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call:

mr. barrasso: mr. president, i ask that the quorum call be vitiated. the presiding officer: wowcts. mr. barrasso: thank you, mr. president.

i ask unanimous consent for to speak for up to ten minutes as if in morning business. the presiding officer: without objection. mr. barrasso: i come up to the floor as a i physician who has practiced medicine in wyoming for over a quufort a century, get over -- for over a quarter after century, get home every weekend to visit with my former colleagues, former patients. as i talk to constituents about the formerly passed health care law, they are concerned. that's why i keep coming back to the senate floor with a doctor's second opinion about the health care law. because what we know patients would like in terms of health care is that the care that they get -- they get the care they need from a doctor they want at a cost that they can afford. and for many, many people across this country, the cost that they can afford is a major, major issue, which is why i think so many people were happy to hear the president in his initial

talk about what he was proposing for health care in this country, he said, we need to get the cost of health care down. he said, if his bill were to pass and become law, the cost of care, he said, would drop about $2,500 per family across the united states. that's what people were looking forward to. and in so many ways the president overpromised and underdelivered. because what people have seen is the cost of their care has continued to go up as a result of the president's health care law. the states around the country are now looking at ways to deal with this health care law. many states have set up committees to deal with that, based on their state legislatures, and we have done the same thing in my home state of wyoming. in wyoming, we've asked for a study to be done to take a look at what the impacts of the president's health care law would be on health care and the cost of care in our state.

and a report was authored by a massachusetts group called gorman actuarial. it examined how the health reform law passed last year by congress is going to affect the state of wyoming, specifically. this information is being used in wyoming by our health benefits exchange steering committee. that's the committee which is reviewing various options for a state-run health exchange. that's what people are look at; what is the best thing to do for our states. well, as they've come upon this work effort, what they are telling us is about the individual market for insurance, people that end up buying insurance individually, having to go out, don't get it necessarily through work, in different ways, but they have to buy the insurance on the individual market. this report says that in wyoming, as a result of the health care law, the current individual market enrollees will

see average premiums increase by 30% to 40%. based on the components of the law. some supporters of the law says they're going to get more insurance that they would otherwise, and that is true because they are going to get a government-mandated amount of insurance, which may be a lot more insurance than they want or that they need. which is one of the fundamental problems of this health care law: government-mandated levels of insurance. many people in wyoming feel they don't want that level of care, which is why i believe individuals should be able to opt out of this provision to the health care law. states ought to be able to opt out. states, individuals ought to be able to receive a waiver. but right now that is not happening. so, what we're seeing in wyoming is a significant increase in the cost -- not the decrease that the president promised, but an increase in the cost of health

insurance beyond what it would have gone up had there notte non a health care law at all. and yet i talk to young people around the state, and i met with a number of young people from my state just the other evening, and they asked about this and how it's going to affect the young. well, what we see is that their rates are going to go up quite a billet. and a lot -- quite a bit. and a lot has to do with the fact that the lowest amount you can end up charging who is young and then compare to that someone who is older, the ratio is 3-1. someone who is not very healthy and older, they will only be paying three times more what a younger person will be paying. based on what passed this house and senate. which means for the younger people they're going to pay a lot more than they necessarily would based on their own good health, exercise habits, fitness, diet, and in terms of what their real costs ought to

be. -- to be insured. and so i guess it's not a surprise when we saw the election results coming out of the state of ohio tuesdays a few weeks ago about the specific individual mandate that said everyone has to buy insurance. on that day, on election day in ohio, 66% of the voters said they didn't want this government-mandated -- a mandate that you must buy government-approved insurance. they don't want that to apply to them. two-thirds of the people of ohio on election day voted against the mandate. which is not unusual to see because we've seen that across the country. we've seen that in missouri, last year on balloting day. we sue it as they do -- we saw it as they do national polls this. health care law is less popular today than it was the day it was

signed. people continue to want to get out from underneath the health care law which is i didn't come to the senate floor week after week with a doctor's second opinion as more information becomes available, just a this study in wyoming has become available, because the president's promise if you like what you have, you can keep it, we're finding out that's not true and the promise that health care premiums would drop for families pie $2,500 per family is not true. that's why i continue to believe this health care law is bad for patients, it's bad for providers, the nurses and the doctors who take care of those patients and it's bad for the taxpayers of this great country. that's why it is time to repeal and replace this broken health care law. thank you, mr. president. i yield the floor. i suggest the absence of a quorum. the presiding officer: the clerk will call the roll.

quorum call: iding officer: the senator from colorado. a senator: i ask unanimous consent the quarrel be lifted. the presiding officer: without objection. mr. udall: thank you, mr. president. i rise today in support of amendments 11 a 25 and 1126 which have been offered by the intelligence committee chairwoman, senator feinstein. while the senate did not pass my amendment to instruct the senate

to consider these detainee matters separate from the defense authorization bill i believe senator feinstein's amendments make important improvements to the bill, improchts that may avoid a problem with a presidential veto. so, mr. president, and i thank the presiding officer for his comments yesterday on the detainee provisions that are in this proposed legislation. i want to urge my colleagues to support these amendments, and i want to be clear i intend to support them. i have serious concerns going forward about the unintended consequences of enacting the detainee provisions in subtitle d of the defense authorization act. these amendments help to alleviate some of my concerns. and i would like to in the context of the debate we're having note that in addition to the secretary of defense, leon panetta, the director of national intelligence, general

clapper and f.b.i. director muller who all oppose the detainee provisions, c.i.a. director petraeus' staff indicate they too oppose the provisions. the c.i.a. believes it's important to retain prosecution flexibility that has allowed both the bush and obama administrations to effectively combat those who seek to do us harm. after the vote yesterday i had a chance to talk, mr. president, with a number of members on the other side of the aisle and frankly on the other side of the debate because this is -- has bipartisan support on both sides of the debate. but the folks i talked to told me they didn't support my amendment but they were still interested in making some more targeted changes to the detention provisions and i hope that those colleagues will take a close look at what senator feinstein is offering here

today. let me speak to specifically what she would help resolve with her amendments. there are two important shortcomings that still exist in the current bill. one of her amendments would preserve the flexibility of the military, law enforcement, and intelligence agencies to collaborate without undue limitation in any investigation investigation, interrogation and prosecution of suspected terrorists. the other amendment would make it clear that american citizens cannot be held indefinitely in military detention without trial. again i mow the presiding officer spoke powerfully to that legitimate and important concern yesterday. the current language in the bill which is why i took to the floor yesterday and on a number of other occasions to make this point, i believe will disrupt the investigation, interrogation, and prosecution of terror suspects by forcing

the military to interrupt what the f.b.i., the c.i.a., or other counterterrorism agency operations against each of these organizations' recommendations including the military's. in sum, we're going to create an unworkable bureaucratic process that would take away the intelligence community and the counterterrorism community's capability to make critical and in some cases split-second decisions about how best to save americans' lives. and further, mr. president, i can't family size this enough, although my friends on the other side of the debate argue otherwise, the detainee provisions do allow for the indefinite military detention of american citizens who are accused of planning or participating in terror attacks. simply accused. that cuts directly against values that we hold dear.

innocent until proven guilty, presumption of innocence. that's why this is such an important debate. let me be clear. there are american citizens who have collaborated with our enemies. there are american citizens who participated in attacks against our soldiers and civilians. those americans are traitors. they should be dealt with and we already have a system for ensuring they're brought to justice and made to pay a very heavy price for their crimes. and that system is working. however, even in the darkest hours, we must ensure that our can constitution -- that our constitution prevails. we do ourselves a great disservice by allowing for any citizen to be locked up indefinitely without trial no matter how serious the charges may be against them. doing so may be politically expedient, but we risk losing our principles and justice and liberty that have kept our

republic strong and it does nothing to make us safer. our national security leadership has even said if we implement these provisions it could make us less safe. mr. president, if i might reflect a bit on what we've learned, at least in three different wars, three wars that we all learn about in our history classes, the civil war, world war'1" and world war ii, as we look back at those three wars, we made the decision and we drew the conclusion as americans that we overreached, that we constricted civil liberties. president lincoln limited habeas corpus. in the civil war. i know the presiding officer is familiar with the palmer raids during world war i and the aftermath of world war i. of course we know all too well the history of the internment of

japanese americans. i'm not suggesting that these provisions as they're now included in the bill would result in historians drawing those similar kinds of conclusions 10 or 20 or 30 years from now, but why not be safe? why not take the time to ensure that we keep faith with those core values that make america what it is? that's all i'm asking. i think that's all that senator feinstein is asking for us to do. that's what the 38 senators who joined us yesterday to vote for my commonsense approach were saying as well. so in sum, senator feinstein has introduced some small changes that would help alleviate some of the justifiable concerns with these provisions. as i have said, i continue to worry there will be unintended consequences to enacting the

detainee provisions altogether. however we can make some of these small improvements to avoid harming our counterterrorism activities and preventing the loss of rights and freedoms granted to all americans by our constitution. so in closing, mr. president, i urge all of our colleagues to support senator feinstein's amendments. the presiding officer: the senator from arizona. mr. mccain: just briefly while my friend from colorado is on the floor, he said take the time. we've been taking time, i tell the senator from colorado, since september 11, 2001 when the united states of america was attacked. we passed the detainee treatment act. we've passed other pieces of legislation, the patriot act, others. take the time? i say in all due respect that we have taken a lot of time. in fact, hundreds and hundreds of hours of debate, discussion as to how to address this threat to the united states of america.

now, if the senator from colorado supports the feinstein amendment, i agree with that. i cannot agree that we have not taken the time. i personally have taken -- i cannot tell you, untold hours addressing this issue of how we treat detainees. and we may have a fundamental disagreement, but i do reject the argument that we haven't taken the time. i yield the floor. mr. udall: would the senator respond to a question? i have as the senator knows from arizona, i have the utmost respect for the time that you've spent in this very important area. i think what i've been trying to say in regards to this particular set of detainee provisions, i want to ensure that all of the questions that the f.b.i. director, general clapper, secretary panetta, and others have raised about how these provisions would actually be applied.

i have no question that the intent is spot on. i just am aware that there have been some concerns raised about how these new provisions would actually be applied. and i think senator feinstein's amendments, i don't know where the senator from arizona stands at this point, may provide greater clarification. i know there have been conversations about how we will deal with these amendments. mr. mccain: i thank the senator from colorado for his clarification and i think i understand his rope for his support of the amendments. mr. udall: i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

a senator: mr. president? the presiding officer: the presiding officerthesenator- the senator from north dakota is recognized. a senator: thank you, mr. president. i ask that the quorum call be dispensed with. the presiding officer: thank you, mr. president. mr. hoeven: thank you, mr. president. mr. president, today i rise to speak on the north american energy security act of 2011. this is legislation that i am sponsoring along with senator lugar, senator vitter, senator johanns and 37 other cosponsors. we already have 37 cosponsors on this legislation. this is a solutions-oriented bill that addresses concerns along the route of the keystone pipeline. the keystone pipeline is designed to carry 700,000 barrels a day of oil from

alberta, canada, from the oil sands area in canada to refineries in the united states, both in -- along the gulf coast, both in texas and louisiana. this is a $7 billion high-tech pipeline that will make a huge difference for our country both in terms of energy security but also job creation. now, this is a project, the keystone pipeline, actually a project that i've been working on for quite some time. formerly as governor of the state of north dakota and now as part of this body, the united states senate. there already exists a pipeline called the keystone pipeline which was built by trans-canada. goes from all per to, canada, all -- alberta, canada, all the way down to our refineries. that pipeline runs through the eastern part of north dakota and adown to patuka, illinois, and

other locations as well, bringing approximately 600,000 barrels a day of canadian crude into the united states. the keystone x.o. project would also be constructed by trans-canada and it would come down from the alberta area in -- in canada, down just along north dakota's western border in eastern montana and go on down to cushing and, as i said, to the refineries along the gulf coast. in addition to bringing canadian crude into the united states, it would also pick up crude along the way, crude produced here in north dakota. for example, in my home state of north dakota, we'll add 100,000 barrels a day of light, sweet crude produced in the williston basin in north dakota and montana into that pipeline. so it's also designed to move our domestic crude to refineries as well.

now, this is an important project that's been in the permitting process for three years. it's been going through the nepa process, seeking an environmental impact statement and approval not only of e.p.a. but of our state department for three years. and we need to get it going because it's not only about reducing our dependence on oil from the middle east, venezuela and other places in the world that are not friendly to the united states, but it's also a huge job creator. this project is a big-time job creator. we're talking about a $7 billion investment to build the pipeli pipeline. we're talking about 20,000 construction jobs right away. we're talking about 250,000 jobs over time. we're talking about $600 million in tax revenue to states and other localities. this is a huge project and we

need to get it going. we particularly need to get it going at a time when we have 9% unemployment in our economy, more than 14 million people looking for work. so we need it to get that economic activity going, we need it to get people back to work, we need it for energy security, we need this project to reduce our dependence on oil from the mideast. so where's the project right now? well, the latest issue that had been raised as far as not getting approval for the project from the department of state was that the state of nebraska had environmental concerns that the pipeline, this 1,700-mile pipeline running from the oil sands in canada all the way down our refineries, that in its route through the state of nebraska, that it was going through an area that was environmentally sensitive and that that would create a

problem. it's the -- the high plains ar area, the sand hills area of nebraska. and the concern was that with the ogaloula aquifer underlying that area and the irrigation for that farming and ranching region, that that pipeline route was a problem. and, in fact, there was opposition in the state of nebraska to the project for that reason. however, working with the company, trans-canada, and with the state of nebraska, we have addressed that issue. recently, the state of nebraska had a special session. the governor, governor dave hydeman, called a special session in nebraska. they held the session and they came up with a plan through their department of environmental quality, working with the e.p.a., to reroute the project in the state of nebras nebraska. and on the basis of that r rerouting and going through the

approval process they developed between the state and federal government, and on that basis, they're now -- they've now addressed that concern in nebraska. so what this legislation does, it essentially is a solutions, oriented, a solutions-based piece of legislation that says, okay, we're addressing these issue as that have been raised, now we need to move forward to capture the tremendous benefits for our country that this project provides. big-time job creation, reducing our dependence on middle eastern oil. all right? so how does the bill work? well, specifically what it provides is that 60 days after its passage -- 60 days after its passage, the pipeline is approved so that work can commence on the keystone x.o. pipeline. that means 20,000 jobs. that means $7 billion investment starts right away. then as to the wyoming piece, state of wyoming, together with

the e.p.a. and the federal government, worked through to reroute in nebraska so that that portion of the pipeline is then approved once they've gone through their process and decided on the route that meets the concerns in nebraska. so, in essence, this legislation, again, it's about solving -- addressing the concerns, solving the problem and moving forward. this incorporates the special legislation and the solution that's been put forward by the state of nebraska. it incorporates it right into the bill. and it enables us to move forward. now, i've referenced the tremendous benefits in terms of energy security, in terms of job creation, in terms of working with our best friend and ally, canada, and reducing our dependence on oil from places like the middle east and venezuela. but let me address one other important point. another point that's been brought up in opposition to the

pipeline project is that the production of oil in canada in the oil sand region produces co2 and so that if this pipeline's built, then there will be more co2 produced because of the production in canada, in the oil sands, and the oil coming into the united states. but, in fact, without this pipe line, we'll have more co2. the point is, this pipeline -- with the pipeline, we will have less co2 produced than without it. let me repeat that. with this pipeline project, we have less co2 produced than we have with it. let me -- let me make sure i've got -- i got that right. with this pipeline, less co2. without it, more is produced. why is that? let me go through it. okay. if we don't have the pipeline,

then instead of bringing that product into the united states, that product will -- will still be produced, the production will still occur in canada but the pipeline, instead of coming into the united states, will be rerouted to the western border of canada. and it will be sent to china. that means large ocean tankers will be hauling the product to refineries in china. now, the refineries in china produce higher emissions than our refineries. plus, you've got those ships that produce co2 as they haul all this product to the far ea east. furthermore, since that -- that supply isn't coming to the united states, we have to continue to import product from the middle east and also from places like venezuela, as i've mentioned. so, in essence, you've got supertankers bringing that product to the united states. so not only are you, in essence, now hauling the equivalent of 700,000 barrels a day around the world in supertankers and producing co2 emissions there,

you're also taking this product over to the chinese refineries, where they have higher emissions. my point is, the oil sands are still produced, aren't they, under either scenario? but twhowt pipeline, you actually have -- but without this pipeline, you actually have higher co2 emissions on a global basis. so, again, it is about addressing all of the concerns that have been raised with this prornlings and it does that -- with this project, and it does that, and at the same time we create tens of thousands of jobs right off the bat, we create hundreds of millions in revenue for states and localities at a time when they badly need it. and, again, we reduce our dependence on oil from parts of the world where it truly is an issue for our country in increased energy security. it is about common sense. it is about addressing all of the issues that have been rais raised, and i urge my colleagues to join me and the 37 sponsors and cosponsors that we already have on this legislation, to

pass it and help put people back to work, help get our economy going and help improve our national energy security. mr. president, i thank you for that time and at this point, i would note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

the presiding officer: the senator from new jersey is recognized. mr. menendez: i ask unanimous consent that the quorum call be vitiated. the presiding officer: without objection. mr. menendez: mr. president, i

come to the floor to speak to an amendment -- bipartisan amendment that my colleague from illinois, senator kirk, and i have offered. we believe it is one of the most critical issues facing our country in terms of national defense and global security, and so we've come together to the floor to speak about it. one of the greatest if not the greatest threat to the security of our nation and our ally, the state of israel, is the concerted effort by the government of iran to acquire the technology and materials to create a nuclear weapon that will do two things: first we can be sure that it will alter the balance of power in the middle east. and, second, altering the balance of power with a nuclear iran dedicated to the destruction of the state of israel would most certainly lead to hostilities, hostilities that could spill over to engulf the entire region and well beyond.

man, we cannot, we must not, and we will not let that happen. but the clock is ticking. published reports suggest that we may be just a year away from an iran having a nuclear weapon. and the ability to deliver that nuclear weapon to a target. to forestall the scenario, more importantly, to prevent it from happening in the first place, we must use all of the tools of peaceful diplomacy available to us. simply put, we must do everything in our power to prevent iran from obtaining a nuclear weapon. a and i do not believe that there is anyone on either side of the aisle who disagrees with that proposition. so we come to the floor today to discuss a bipartisan amendment that i've offered with my friend

from illinois, senator kirk, to limit iran's ability to finance its nuclear ambitions by sanctioning the central bank of iran, which has proven to be complicit in iran's nuclear efforts. this amendment, the menendez-kirk amendment, will impose sanctions on those international financial institutions that engage in business activities with the central bank of iran. it is a timely amendment that follows the administration's own decision a last week designating iran as a jurisdiction of primary money laundering. in fact, the financial times enforcement network of the department of treasury wrote, "the central bank of iran, which regulates iranian banks, has assisted designated iranian banks by transferring billions of dollars to these banks in

2011. in making these transfers, the central bank of iran attempted to evade sanctions by minimizing the direct involvement of large international banks with both the central bank of iran and designated iranian banks." close quote. and the under secretary of the treasury for terrorism and financial intelligence, david cohen, has written, and i quote, "treasury is calling out the entire iranian banking center, including the central bank of iran, as posing terrorist financing, proliferation financing, and money laundering risk to the global financial system." close quote. so, mr. president, the administration's own descritions clearly show that iran -- own decisions clearly show that iran's conduct threatens the united states and its allies. and the complicit action of the central bank of iran based on

its facilityatio facilitation, t in deceptive financial practices and elicit transsk transactionsd most importantly its provision of financial services in support of iran's efforts to acquire the knowledge, materials, and facilities to enrich uranium and to ultimately develop weapons of mass destruction threaten regional peace and global security. we recently learned just how far down the nuclear road iran has come. the international atomic energy agency's report indicates what all of us already success specked: that iran continues to enrich uranium and is seeking to develop as many as 10 new enrichment faments, that iran has conducted high-explosives testing and detonator development to set off a nuclear

charge as well as computer modeling of a core of a nuclear warhead, that iran has engaged in preparatory work for a nuclear weapons test, that i an august iaea inspection revealed that a component used to arm nuclear warheads was unaccounted for in iran, and that iran is working on an indigenous design for a nuclear payload small enough to fit on iran's long-range shah has been missile, a missile capable of reaching the state of israel. what more do we need to before we take the next diplomatic step to address the financial mechanism that is helping make iran's nuclear ambitions a reality? these revelations, combined with iran's provocative effort in october to assassinate the saudi

ambassador to the united states, demonstrate that iran's aggression has taken a violent turn adds that we have every reason to believe that if iran gets a nuclear weapon, it may very well use it and use it against the state of israel. this amendment would impose sanctions on any foreign financial institution that engages in significant transactions with the central bank of iran, with the exception of transactions in food, medicine, and medical devices. it recognizes the administration's actions last week pursuant to section 311 of the patriot act designated the entire iran banking sector as a primary money-laundering concern. it requires the president to prohibit transactions of iranian financial institutions that touch u.s. financial institutions and to ensure that we don't spook the oil market, transactions with iran's central

bank in petroleum and petroleum products would only be sanctioned if the president makes a determination that petroleum-producing countries other than iran can provide sufficient alternative resources for the country's purchasing from iran. and if the country declines to make significant decreases in its purchases of iranian oil. so, mr. president, this bipartisan amendment has been carefully drafted to ensure the maximum impact on iran's financial infrastructure and it's ability to -- and its ability to finance terrorist activities and to minimize the impact on the global economy. iran has a history of exploiting terrorism against coalition forces in iraq, in lebanon, and even in their attempt to assassinate the saudi ambassador here in washington. while iran' iran's amendment to

advance its nuclear weapons program has been slowed in international sanctions, it clearly remains undeterred. today we take, hopefully -- either today or tomorrow when we vote on this amendment -- the next step in isolating iran politically and financially. i look forward to continuing to work with my colleagues on the other side and with the administration to achieve this goal and to also advance the legislation that i introduced earlier this year with many others on both sides of the aisle, the iran-north korea, and syrian sanctions consolidation act, which at this point has 80 bipartisan cosponsors. our efforts to date have been transformative but just as iran has been compared to adjust to the sanctions and unanticipated loopholes, just as it has been prepared to take advantage of every loophole to circumvent the sanctions and keep moving forward in its effort to achieve a robust nuclear program, we

must be equally prepared to adjust and adament by clos -- ad adapt by closing each loophole and stopping the regime's nuclear efforts. by identifying the central bank of iran as the iranian regime's partner and the financier of its terrorist agenda, we can begin to staffer the regime of the -- to star o starve the repeal of e money it needs. we cannot, we must not, and we will not allow iran to threaten the stability of the region and the peace and security of the world. and i appreciate my distinguished colleague from illinois, who is on the floor who has worked with us in this regard come to a common view and effort to maximize the effect on iran, minimize the effect to

both us and the global economy and certainly urge passage of this amendment and yield the floor to him. mr. kirk: mr. president? the presiding officer: the senator from illinois is recognized. mr. kirk: mr. president, i rise in strong support of the menendez-kirk amendment, and i particularly want to thank my partner in this, senator menendez, a member of the banking committee with me, who has been a leader on concern regarding iranian terror and iranian proliferation of weapons of mass destruction and human rights for 20 or 25 years now. and we are reaching now asidizive point in the relation -- a decisive point in the relations of iran and other countries and importantly to the united states in this. how peaceful means and economic sanctions can be used to avoid a conflict. that's why it's so important for the senate to adopt the

menendez-kirk amendment with the long-term genome of collapsing the central bank of iran so that this country does not produce nuclear weapons that would destablize the entire middle east. we launched this effort, senator menendez and i, senator schumer, particularly in august when we called on our president to sanction the central bank of iran. in these partisan times in which the two sides are far apart on so many different issues, we have 92 senators -- all by eight senators signed the letter saying, collapse the central bank of iran, use this as a tool in our diplomatic war chest to make sure that we can remove one of the greatest dangers from the country from one of the most dangerous regimes. the record is pretty clear: the international atomic energy agency has ruled on the subject of iran. we remember the iaea because the iaea with regard to iraq and the

saddam hussein weapons of mass destruction program was consistently correct and the bush administration was wrong. the iaea said in its intelligence estimate that the state -- the threat was overstated in iraq and so with that level of credibility, we should listen to the iaea on the subject of iran. and there they have been extremely clear as well. they have outlined how iran has a separate enrichment cycle going way above the enrichment of uranium necessary to fuel a civilian reactor -- 5% -- now towards 20% where its there's no civilian use, moving towards the 98% used for a nuclear weapon. they most ominously talk about a

warhead of particular weight that would equate what would be in a nuclear weapon. and unlike a conventional warhead which basically has a spark initiator and explosive material, this warhead has an electric generator aboard and is only used to power and initiative a nuclear explosion. and so it's clear from the statements of the independent united nations agency that iran, a signature on the nuclear nonproliferation treaty, is violating its obligations and is creating as fast as it can a nuclear weapons program. we know also that iran has become the first space-bearing nation of the 21st century. that unlike the north koreans who have failed in their space launch time after time, it was actually iran that was able to orbit the omid satellite aboard the safir rocket as the first

nation to be able to accomplish ccomplish that in this century. if you can orbit anywhere over the earth, you can deorbit anywhere over the earth, an ominous sign for the future security of saudi arabia, of iraq, of our allies in turkey, but especially our friends in israel and long-term the united states. the record of iran in this regime with the rights to its own citizens shows the character of its government. long ago we knew about 330,000 baha'i citizens of iran who have been forced to register their addresses, whose kids have all been kicked out of university, whose families are not allowed any contracting with the government of iran. the bureaucratic mechanisms of kristalnact have formed. we've seen this movie in a different decade wearing

different uniforms in a different country but the ominous signs are it may turn out the same way. many people know about nada protesting about the stealing of an election in iran. we know about hussein renagi the first blogger who called for tolerance in iran who is languishing in prison. we know nas ir, a mother of two whose sole crime was representing a nobel laureate and how she was thrown in jail. beyond the nuclear program, beyond the missile program, beyond the repression of human rights in the country, we know about iran's long record of terror, that iran is the paymaster for hezbollah. we've known that for a long time, they have tortured the poor country of lebanon. but in some sense there was a symmetry, we understood how this shiite power would support

a shiite sect in lebanon even though they spoke arabic but they jumped the divide and also backed a new terror group called hamas that was trying to surround our allies in israel with missiles and terror necessary to extinguish the jewish people and the jewish state. we know how the iranian regime is also one of the central pillars of the syrian dictatorship and as that dictatorship hangs on to power, it's somewhat on the back of iranian money and iranian weapons and expertise that allows them to repress their own people. and then most recently we have seen that on the back of a bipartisan certification that iran supports terror, from president reagan, president bush, president clinton, president bush, and president obama, we've seen a higher level of irresponsibility on

behalf of the iranian regime. according to our own attorney general, the head of the iranian revolutionary guards quds force tried to contact and hire a mexican drug cartel, one of the most dangerous, the zetas, to assassinate the saudi arabian ambassador to the united states at a georgetown restaurant. and that it was only because the incompetent iranians hired a d.e.a. agent in mexico that we found out about this. that they would, had they been able to accomplish their goals lit off a car bomb in washington, d.c., paid for by the government of iran, and briefed all the way to the top level of their government. and today we find that after they had their radical young persons' movement overrun the british embassy, seizing classified documents and holding

for a time 50 british personnel, shades of the 1979 hostage crisis when for 440 days iranian radicals held americans, that our allies in the united kingdom have now made the decision to remove all iranian diplomats from the united kingdom. we've seen other calls, brave calls of allied action, a man i admire greatly, the president of france, president sarkozy, has called for ceasing all purse of iranian oil. he's called for the collapse of the iranian central bank. so it's with this level of irresponsibility, on nuclear technology, on missiles, on the repression of human rights, on the support of terror, on a plot to kill americans inside washington, d.c., and the overrunning of an embassy of our closest ally in europe, the united kingdom, that we come forward with the bipartisan menendez-kirk amendment. what does this amendment do? it basically says in part if you

do business with the central bank of i, you cannot do business with the united states of america. it forces financial institutions and other businesses around the world to choose between the small and shrinking $300 billion economy of iran and the $14 trillion economy of the united states. in that contest, we all know how just about everyone will choose. and we wish that choice to be made. we want -- we seek to break the stable financial intermediary in between iranian oil contracts and the outside world. so that it will just be easier to buy oil from elsewhere, and working with our allies, to make that oil more plentiful. now, we realize the concerns with this amendment. some have said this amendment comes too quickly, too soon, and so that's where senator menendez and i have agreed and working with the administration to give time and flexibility. under this amendment, nothing

happens right away. several weeks and several months go by before any action is required, and that is intended as a signal to oil markets that this requirement is coming, that we seek for you as our allies, for example, in japan or south korea or in turkey to wind up your current contracts and supplies. to meet your needs by other means. and, by the way, other means are coming. we are expecting libyan production to double. we're also expecting iraqi production to go way up and of course we know the swing production of saudi arabia, no love lost towards the iranians after having tried to kill their ambassador here and working with the oil suppliers to make sure everyone's needs are met while funding to the iranian regime is slowly choked off. we also provide two waivers in this amendment, and this is very important at the request of the administration. we say that if there is a temporary restriction of oil

supply, that this amendment can be suspended for a time. and if there is some unforeseen national security disaster, some real problem that the president can see, also he has that flexibility. but the general picture is this: the central bank of iran is the heart and financial soul of a web of terror, of nuclear production, of human rights abuse, and depression of other peoples principally in syria that is no longer acceptable to the international community and so that this regime should operate without the benefit of funding from the international community. i think this amendment is one of the last, best hopes for peace to bring effective economic sanctions to bear so that a burden doesn't fall on our friends in saudi arabia or our allies in israel to do the far more tough military work that

may be required to remove this common danger. many people say that you can't convince a country who is on a nuclear weapons course to reverse course and i say, well, you show your ignorance of history. because we saw the argentines give up a nuclear program, the brazilians. likely the south africans detonated a weapon and then decided to give up their program. in kazakhstan and ukraine nuclear weapons were given up, in libya nuclear weapons were given up and with effective pressure, my hope is that it can happen here. we know that. ahmadinejad is not proper rather, the regime does not enjoy the support especially of its younger citizens, we know at least half of iranians in a stolen election voted for the other guy who was not allowed to take power. and so this amendment comes forward with solid bipartisan pedigree. it has been endorsed by --

speak lib senators lieberman, schumer, kyl, feinstein, gillibrand, manchin, stabenow and heller under senator menendez and i's leadership. for us it gives time for the oil markets to adjust and unhook from irp. it gives flexibility to the administration. but most importantly it helps us deal in a diplomatic way with one of the greatest dangers to our society. we think about the future ahead and some people say this amendment could cause some disruption in oil markets and yes, we're asking countries to unhook from the terror regime in iran. but just think about the instability that would come if military conflict broke out between iran and israel, or, worse, if nuclear weapons were loose from iran in the middle east. if we do nothing, as soon as two years from now we could have

a detonation of an iranian nuclear weapon in the middle east. if we show weakness and a lack of resolve, then countries in that region will decide they need nuclear weapons programs of their own. we will give birth to the saudi nuclear weapons program. the egyptian nuclear weapons program and others. this amendment is an attempt to make sure that the 21st century is not the most dangerous century ever facing young americans. and to use the full economic weight of the united states working with our allies to remove what is the greatest emerging danger. i think senator menendez is living in the spirit of those who watched the 1930's and worried about when america slept,. we're not asleep. we know exactly what is happening and by decisive bipartisan action of the senate, we're bringing the best pressure to bear of nonmilitary

means to make sure that our kids inherit a much safer 21st century. and with that i commend my partner in this effort and urge the senate to adopt the menendez-kirk amendment and yield back. the presiding officer: the senator from new york is recognized. mr. schumer: thank you, mr. president. i rise in full support of this amendment and i want to thank senator menendez for his leadership on this issue which has dated from a long time back, and senator kirk, who has really lit a flame of concern under this body about this issue. and justifiably so. they've done a great job, and i want to thank both of them for their strong efforts. now, i believe when it comes to iran of course we should never take the military option off the table. but i have long argued that economic sanctions should be tried first and could be actually very, very effective in choking iran's nuclear ambitions

before any military option need be considered. but they have to be done strongly and they have to be done well, and they have to be done toughly. early this month -- earlier this month, the report on iran's nuclear program by the iaea was alarming. and proved beyond a shadow of a doubt that despite the lies -- there's no other word to put it -- by the iranian government, they're developing a nuclear weapon. and according to recent reports, iran could have at least one workable nuclear weapon within a year and another maybe six months after that. the new information shows that iran has been working relentlessly to acquire the capability to produce a nuclear weapon and additionally the iaea report details a highly organized program dedicated to acquiring the skills necessary to produce and test a bomb. so i say to america and the

world, enough is enough. the extreme and dangerous government of iranian leader mahmoud ahmadinejad must be held accountable. one of our greatest problems that we will live with for decades is a nuclear iran. and we do not want to look back and say if we were only a little quicker, a little stronger, a little tougher, we might have prevented it. the iranians when they see that they might face real economic punishment, if they proceed in developing nuclear weapons, have turned back in the past. and they can do it again. but -- and the economic sanctions that we have begun to impose and i salute the president, he's worked very hard on this issue, i've talked with him on this issue, i know he believes in it strongly. i know that the president knows

the danger of a nuclear iran and is working very hard in that regard. but now we must every time we find ways to impose economic sanctions that have real teeth against iran, they try to find a way around it and our job is to move quickly and plug those loopholes. the iran central bank. we have sanctioned iranian banks, and pretty much prevented them from doing the things we don't want them to do. according to all reports, it's had a real effect on the iranian national guard and on the economy of iran itself. but the iranian government has now tried to move through the central bank of iran. it's been heavily involved in terrorism, and the financing of nuclear and conventional weapons technology. it's played a critical role, the central bank has, in helping other iranian banks

circumvent our effective financial sanctions. so to close ten holes but leave one open will not achieve our goal, and the last remaining open hole through which financial commerce can flow into iran for prohibited activities is the central bank. the threat of sanctions against the central bank will frighten iran. might make them think twice before they proceed in developing this nuclear weapon, because they will pay real economic consequences that will hurt the iranian regime and its henchmen above all, and will, unfortunately, hurt the iranian people as well, but there is no choice in the matter. and so we must strengthen the president's hand as he continues to work to build an

international coalition determined to prevent the rise of a nuclear iran. by giving the administration the capability to impose crippling sanctions on iran should they continue with their nuclear weapons program, congress is putting forth a tough and smart plan to address the real threat iran poses to the u.s. and our allies, and, of course, israel. this amendment will do three important things to strangle iran's ability to continue with its nuclear weapons program. first, it will freeze the assets of iranian financial institutions that come under u.s. jurisdiction. second, it would prevent the maintenance in america of correspondence accounts by foreign financial institutions conducting significant petroleum --related transactions with iran's central bank. lastly, it would urge the president to undertake a diplomatic initiative to wean other nations off iranian crude. the amendment supports the administration's actions last

week designating the entire iranian banking system as a threat to government and financial institutions because of iran's illicit activities including its pursuit of nuclear weapons and its support of terrorism. mr. president, senators kirk and menendez have done an excellent job of crafting a comprehensive plan, a smart plan, a tough plan to arm the administration with the tools they need to put a stop to iran's nuclear program. i have optimism that this will have a real affect and could, indeed, deter iran if we move and move quickly. i urge my colleagues to support this amendment. i yield the balance of my time and note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

the presiding officer: the senator from maryland is recognized. mr. cardin: i ask unanimous consent that the quorum call be dispensed with. the presiding officer: without objection. mr. cardin: mr. president, i rise in support of the amendment offered by our colleagues, senator menendez and senator kirk, and i want to thank them for their leadership on this issue. to me, this is an extremely important amendment that i hope will get the support of all of the members of the senate. it tightens the restrictions we already have against iran, and i

want to compliment the obama administration for the work they've done internationally by expanding the sanctions against iran, against iran's petroleum and petrochemical industries. it's been effective because we've gotten other countries to follow the united states' leadership. i think everybody in this body understands the risk of iran to the security of not only its region but the entire world. iran's a very dangerous nation. it has ambitions to spread terrorism in the region and to affect u.s. interest. it's for that reason that we cannot allow iran to become a nuclear weapons state. our most effective way to deal with this is to isolate iran and to make sure that the sanctions that are imposed actually will accomplish the objective of penalizing country but not the individual people of iran. so the amendment offered by senator menendez and senator kirk would allow us to expand

the -- the sanctions against iran to the central bank of iran. the amendment requires the president to prohibit all transactions in property and interest and property of the iranian financial institutions that touch u.s. financial institutions and to prohibit the maintenance of correspondence or payable through accounts by foreign banks that have conducted financial transactions with the central bank of iran. what does that mean? it means that we are -- we are really trying to put the sanctions where they'll have the most impact and that is on the financial system of iran itself. the iranian central bank depends upon other banks around the world and this amendment would allow us to have an effective way to isolate the central bank of iran, putting additional focus on the iranian policies that have violated the united

nations resolutions. iran has violated their commitments. they've violated their commitments as it relates to their nuclear programs. they haven't complied with agreements that they've entered into and it's important that the international community stand united. this is important, as i said, for stability of the region. it's important for the security of israel, our closest ally in that region. it's important for arab states that have talked to us about the danger of iran. it's important for u.s. interests. so it's important that we get this moving. iran's complete disregard for its obligations urn the nuclea e nuclear nonproliferation treaty and its directives of the multiple u.n. security council resolutions belie the government's continued insistence that its nuclear program is one based upon its energy needs. it's not based upon its energy needs. it's trying to become a nuclear weapons state. it's something that we must make

sure does not occur. mr. president, we need to take all steps we can in order to deny iran the ability to have international legitimacy while they are violating their international commitments. this amendment continues the u.s. leadership on this issue and follows up on i think the work that our nation has done in getting international support to make it clear to iran if they continue along these policies of violating their international commitments, they're going to continue to be isolated and it's going to affect the economy of their nation. i would urge my colleagues to support the amendment. and with that, mr. president, i would yield the floor. a senator: i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

the presiding officer: the senator from alabama is recognized. mr. sessions: i would ask to be notified after ten minutes. the presiding officer: the senate is currently in a quorum call. mr. sessions: mr. president, i ask consent that the quorum call be dispensed with. the presiding officer: without objection. mr. sessions: and would ask that i be notified after 10 minutes. the presiding officer: the chair will do so. mr. sessions: mr. president, i've offered an amendment that clarifies, although that's not exactly the right word i think, the fact that a unlawful combatant or combatant that's held by the united states military for being an enemy of the united states, a combatant against the united states, or an unlawful combatant, is not, therefore, entitled to be released if the united states military or the civilian courts

choose to prosecute them for a crime and they are acquitted or receive a sentence that's not too long and they serve that sentence. these are entirely different matters so there are two questions. are you an enemy combatant of the united states? these are the kinds of prisoners of war in world war ii, germans, for example, that were celd in n aliceville, alabama, they stayed in a prisoner of war camp until the war was over and they went home. they didn't violate the rules of war, they weren't prosecuted for any crimes. they were just simply not released so that they would go and rejoin the battle and attempt to kill more american servicemen and women. but they were lawful. they wore uniforms. they complied with the rules of war and they were not presecutable. but when a person sneaks into the country with an intent to murder women and children and innocent noncombatants, does not

wear a uniform and violates other provisions of the rules of war, then they can be not only held as a combatant but they can be held and tried for commission of crimes against the united states. that's the classical standard of law. i believe it's clear that if a person is -- is captured and tried for a crime and, let's say, acquitted, whether in civil or military commission, they are not entitled to be released. and to that end, i would quote a number of statements to that effect. but i really believe the legal system would be a lot better off if we speak clearly on that matter today so there's no doubt whatsoever. but president obama, may 21, 2009, said this. "but when the prosecution process is complete, there may be a number of people who cannot be prosecuted for past crimes

but who, nonetheless, pose a threat to the security of the united states." in other words, they remain prisoners of war who are likely to join the enemy if they're released. he goes to say, "these are people who, in effect, remain at war with the united states. as i said, i'm not going to release individuals who endanger the american people." i think that's consistent with all rules of war and i think the president was right in that statement. attorney general eric holder in november of 2009 before the judiciary committee said, i personally think that we should involve congress in ensuring that the executive branch has the authority to make that decision, that we should interact with this committee in crafting a law of war detention process or program."

in other words, he called on us to work with them in developing statutes, but historically i think the law is clear, at any rate. jay johnson, the general counsel to the department of defense, who came from the "new york times" as general counsel for "the new york times," not a career department of justice -- defense attorney, said this before the senate armed services committee: "the question of what happens if there's an acquittal is an interesting question. i think as a matter of legal authority, if you have the authority under the laws of war to detain someone and the hamdi decision said that in 2004, that is true irrespective of what happens on the prosecution side. as a matter of legal authority, i think we have law of war authority, and pursuant to that authority, congress granted us with the authorization for the

use of military force as the supreme court interpreted it, to hold a person provided they continue to be a security threat and we have the authority in the first place." so again he's saying if you're not acquitted, that they can be held if they continue to be a threat. secretary of state hullry clinton on "meet the press" november of last year, "mr. gregory: but my question is, are we committed with these terrorist suspects that if they are acquitted in civilian courts, they should be release released?" secretary clinton: well, no. senator jack reed, our west point graduate, member of the armed services committee -- i'm proud to serve with my democratic colleague -- this is when he said last november, anovember a year before last. "there are no guarantees of conviction but under principles of international law, as long as these individuals pose a threat,

they can be detained and they will. i don't believe that will be religionsed under the principle of preventive detention which is recognized during hostilities." so, mr. president, i believe this is legislation that would do not much more, but importantly will affirm the classical understanding of our laws of war and, as a result, the people who are charged can be tried, if they're not convicted of crime, they can still be detained. and i would note that an individual american soldier or german soldier or japanese soldier whos who is lawful and released has the duty to report back and commence duties until the war is over. senator graham is here, a current jag officer in the

united states air force, very, very close to the debate. i'm glad to have you here and your support for this amendment. mr. graham: would the senator yield question? session sitled be pleased to. -- mr. sessions: i will be pleased to. mr. graham: this would have the congress on record for the concept that once you're determined to be an enemy combatant, a part of the -- there's no requirement to let you go at any certain time because, in war, it would be silly to let an enemy prisoner go back to the fight for no good reason. and, as you've indicated, in the law of war you can be prosecuted for a war crime, you could be taken to federal court and be prosecuted for an act of terrorism. but if you are acquitted, that's not an event that would require

us to release you, if the evidence still exists you're a threat to the country and part of enemy force; is that correct? mr. sessions: that is correct. mr. graham: now, what i would like my colleagues to understand is that no german prisoner in world war i i had the ability to go to a federal judge and say, let me go. if you had brought up the concept in world war i i that an american citizen collaborating with the nazis could not be held as an enemy combatant, you would have been run out of town. does the senator agree with me that in every war we've fought since the beginning of our nation, unfortunately, there have been episodes of where american citizens side with the enemy? mr. sessions: that is certainly true. mr. graham: and do you agree with me that our supreme court as recently as about three to four years ago affirmed the fact that we can hold our own as enemy combatants when the evidence suggests that they've joined forces with the enemy;

sthas the law? mr. sessions: that is the law, as i understand it, senator graham. graham and do you agree that that makes perfect sense that an american had a helps the nazis has committed an ability of war, into the common crime? mr. sessions: that is correct. mr. graham: do you agree with me, senator that our courts understand that when an american citizen collaborates with an enemy of our nation, that is an act of war by that citizen against his own country and the law of war applies, not domestic criminal law? mr. sessions: i certainly agree with the senator that an american citizen can join in a war against the united states. mr. graham: and they can be treated as an enemy combatant according to our courts? mr. sessions: that is correct. mr. graham: and the law of war allows the following: trial or detention, or both. is that correct? mr. sessions: that is correct. mr. graham: you can be held as an enemy combatant without trial? mr. sessions: that is correct. mr. graham: there is no requirement in international law

to prosecute an enemy priso prir for a crime? mr. sessions: absolutely. it is up to the detaining authority as to whether or not they believe the person has commit add crime or not. mr. graham: and do you believe that we do not want to start the process in the dwhriews everybody captured an an enemy combatant. mr. sessions: absolutely. gram grum that we should reserve prosecution for a limited class of cases among enemy prisoners? mr. sessions: that's correct. the presiding officer: the senator has consumed ten minutes. mr. graham: yo unanimous consent to have one more minute. the presiding officer: just informing the senator -- mr. sessions: i ask to be informed at 10 and we'll ry tryo wrap up. grawp graham let's logically walk through this. in every war america has been involved in, american citizens unfortunately have choseesen at ties to side with the enemy. our courts say that the executive branch can hold them as enemy combatant and the purr is to gather intelligence.

do you agree that? mr. sessions: a very important purpose. gram graham you have been a u.s. attorney. is that correct? mr. sessions: that's correct. mr. graham: does criminal law focus on intelligence gathering? mr. sessions: absolutely not. it is punishment for a crime already committed. mr. graham: do you agree that holding an enemy prisoner, one of the benefits is cop touring intelligence? mr. sessions: absolutely. mr. graham: do you agree our criminal system is not focused on that. mr. sessions: absolutely. we explicitly tell people that they have the right not to provide any intelligence and indicates that it's compleerl not a primary function -- mr. graham: do you agree with me that if this congress chose to change the law and say that an american citizen who is associated themselves with al qaeda cannot be interrogated for intelligence-gathering purposes, we would be less safe? mr. sessions: absolutely. mr. graham: that would be a change in the law it is a exists today? mr. sessions: absolutely. mr. graham: do you agree with thee that our amendment that says you can be acquitted and

still held as an enemy prisoner is scntis consistent with the lt is it is today? mr. sessions: absolutely. mr. graham: we are trying to fight a washings not a crime, well, within the value systems of being a united states -- being thchampion of the free wo. i believe -- senator, you agree with me when it comes to interrogating people that sometimes the best tool is time. session segment liewl. someone may not be willing to talk today but as time goes by, they might be willing to completely change and be forthcoming. mr. graham: do you agree with me that we've gathered good intelligence over time from people held at guantanamo bay? session segment that is certainly true. mr. graham: without waterboarding them? mr. sessions: absolutely. mr. graham: so my point is if you take the ability to hold someone as an enemy combatant off the table, you can't

interrogate them for intelligence-gathering purpose and if you put a time limit on how long you can hold them, you defeat the purpose of gathering intelligence. do you agree with that? mr. sessions: absolutely, and that would undermine one of the functions of the united states military in dealing with enemies of the state. mr. graham: do you also gley in this war we've provided due process unlike any other war in the past? mr. sessions: there is no doubt. no war has ever been lauder to the degree this war -- mr. graham: do you agree that every enemy combatant held at guantanamo bay or captured in the united states has their dmai federal court through habeas proceedings? mr. sessions: they do. to a large degree different from any war in our history. mr. graham: we've never had in the histories of other wars a federal judge determining whether the military has the authority to held someone as an enemy combatant but we have it in this war. do you agree with that? mr. sessions: absolutely. mr. graham: do you agree that the government has to prove to an independent judge that the

person is in fact a nem of al qaeda involved in hostilities? mr. sessions: yes. mr. graham: so everybody is held after judicial review the first time in the history of warfare. do you also agree with hey that the annual review process that we have created by this law, this bill, the defense authorization act, is something we haven't done in other wars? mr. sessions: we have not done that before, yes. mr. graham: so every detainee not only gets their day in federal court and the government must prove they have a solid case to hold them as an enemy combatant, every detainee gets a yearly review as to whether or not they are a continuing threat? mr. sessions: i believe -- yes, it is consistent with language in the supreme court opinion, recent opinions, and perhaps even goes further than what the supreme court requires. mr. graham: are you familiar with compensatecy hearings in the civilian world? mr. sessions: yes. mr. graham: and are civilian law, we can 0 hold people that are a danger to themselves or others. is that correct? mr. sessions: yes. mr. graham: with judicial oversight. mr. sessions: with judicial

oversight. mr. graham: so would you agree with me that it is very smart to evaluate whether or not we should allow someone to be let go and intelligence professionals should be able to make that decision as to whether or not the individual is a military threat, that that is a logical process? mr. sessions: absolutely. it is, and just for the fact of my amendment, it does not require people to be held. it only gives the government the authority to do so if they deem it's appropriate for the defense of america. mr. graham: do you agree with me that the recidivism rate of people released from gong guantanamo bay has gone up? mr. sessions: yes. it's extraordinarily disappointing, actually. and against projections of of those advocating for early release. mr. graham: some people have gone back to the fight and killed american soldiers? mr. sessions: certainly have. mr. graham: do you agree that the dangers our nation face do not justify change existing law, denying this country the ability

to gather intelligence even against an american citizen joined with al qaeda. that would be on unwise decision given the dangers we face? mr. sessions: yes. mr. graham: do you agree that we need a legal system that understands the difference between fighting a war and fighting a crime? mr. sessions: so well said, senator graham. i agree. mr. graham: thank you for your amendment. mr. sessions: thank you. mr. president, with regard to the question of citizenship, i would just say to my colleagues, this in no way diseels with that, whatever the courts, whatever the bill and other laws say about citizenship will apply here. it does not change that status at all. and i do believe that the legislation is clearly consistent with the testimony of president obama, eric holder, jay johnson, counselor, secretary of defense, secretary of state clinton, and others and i would urge acceptance of my amendment and would yield the

floor. mr. sanders: mr. president? the presiding officer: the senator from rermt is recognized. mr. levin: unanimous consent request -- the presiding officer: the senator prosecute michigan. mr. levin: i ask unanimous consent that the cardin amendment, number 1073 be withdrawn. that has got the apliewfl of t e approval of the sponsor of the amendment. the presiding officer: without objection. mr. sanders: mr. president? the presiding officer: the senator from vermont. mr. sanders: i just wanted to vai a few words about two amendments that i have offered, both of which i think are important and both of which should be passed. mr. president, it i as you thinu know, this country has a record-breaking deficit and a $15 trillion national debt. what many people do not know is that one of the reasons that our deficit is as high as it is is

because there is a significant amount of fraud from defense contractors who sell their products to the department of defense. i think the american people are very clear that when we pay a dollar for a product that goes to our military, we want to get a dollar's worth of value, that we do not want to see the taxpayers of this country or the department of defense ripped off by fraudulent contractors. unfortunately, fraud within the d.o.d., in terms of private contractors, is widespread. during the last number of years, we have seen company after company engaged in fraud, including some of the largest defense contractors in the united states.

just for example, lockheed martin, the largest defense contractor in our country, in 2008 paid $10.5 million to settle charges that it defrauded the government by submitting false invoices on a multibillion-dollar contract connected to the titan space launch vehicle program. that didn't seem to sour the relationship between lockheed and the d.o.d. which gave lockheed $30.2 billion in contracts in fiscal year 2009, more than ever before. so one of the patterns that we see is that a company gets convicted or reaches a settlement with regard to charges of fraud, but next year they continue to get a very significant contract. another case regarding one of the large defense contractors, northrop grumman, they paid

$62 million in 2005 to settle charges that -- quote -- "it engaged in a fraud scheme by routinely submitting false contract proposals and concealed basic problems in its handling of inventory, scrap and attrition." despite that charge of repeated fraud, know drop grumman received $12.9 billion in contracts the following year, 16% more than the year before. mr. president, it seems clear to me that we need to do a much better job in terms of attacking fraud within the department of defense. several years ago, i offered an amendment which was passed, which provided that the d.o.d. list virtually all of the fraud committed within the d.o.d. we have that report. it is rather astounding. people should read it.

but right now what this amendment does, is it says to the d.o.d. get your act together, hire the necessary, well-trained staff so that they are monitoring the contracts and making sure that we do not continue to see the pervasive amount of fraud committed against the taxpayers of this country or the defense department. and i would hope very much that that amendment gets widespread support and that we see it pass. mr. president, there is another amendment that we have offered, i think which is equally important, and that deals with making sure the department of defense, which it turns out, mr. president, is the largest single consumer of energy in the united states of america. obviously, the department of defense has huge resources, controls huge numbers of

buildings, has enormous aircraft and so forth and so on, and it is by far the single largest consumer of energy in the united states, accounting for approximately 90% of federal energy consumption with an annual energy cost of up to $18 billion. so the department of defense spends $18 billion on energy costs alone. the department of defense in recent years, i think, has understood the importance in trying to move toward energy efficiency, in terms of saving energy, but we have a long, long way to go. the major program to help cut energy consumption and costs at our military bases is called the energy conservation investment program. this is a very, very important program, although a relatively

small program. this program has operated for more than 10 years helping to invest in programs for more energy efficient lighting, for example, at an air force base in alaska, geothermal heating at fort knox army base in kentucky, wind turbines for an army base in arizona and solar power for the air force in colorado. historically according to the department of defense, every dollar used by the energy conservation investment program yields two dollars in savings. we invest in efficiency, in sustainable energy, for every dollar invested we save $2 and this makes it a very positive program for the d.o.d. some projects such as energy efficiency improvements at a navy base in california achieve greater than $15 in savings for every dollar invested. the department itself, the d.o.d. has stated that this

program achieves and i quote, "long-term public benefits by investing in technologies that increase economic efficiency and health benefits, build new sources of renewable energy, enhance job retention, and improve the quality of life for our troops and their families." unfortunately, the authorization for this program in the current defense authorization bill is $135 million. relatively small amount of money for a department of defense which spends about $18 billion every year on energy. so i think what we want to see is, a, the d.o.d. save money through energy efficiency and sustainable energy, and second of all, become a model for the country as we attempt to break our dependence on fossil fuel, on foreign oil, and we attempt to cut back on green gas

emissions. i could tell you, mr. president, that in the state of vermont we have our national guard base where we have worked with them to install a major solar installation which will pay a significant part of their electric bill. and frankly, i would like to see this done in national guard bases all over the country and in the active duty personnel -- structures as well. so bottom line is we are currently spending about $135 million, relatively small amount of money compared to the $18 billion energy bill run up by the d.o.d. and what this amendment would do is increase the authorization for the energy conservation investment program to $200 million, up from $135 million, not anywhere near as much as i think we should be doing, but it is a step forward in helping the department of defense save money on their

energy bill, break our dependence on foreign oil, and help us cut greenhouse gas emissions. we know that there remain many worthy projects at our military bases that have not yet been funded at today's funding levels that could be funded if my amendment were to pass. the amendment is fully offset and paid for by reducing expenditures on construction at overseas bases while still leaving nearly $300 million in funding for that purpose. i think that's a decent offset. i aflawed the department of defense and the military for the strides they have made so far in investing in energy efficiency and renewable energy. there are some wonderful, wonderful projects going on all over this country, in fact, all over the world under the d.o.d. and they deserve credit for that. they can and should be a leader for our country. but we still have a very, very long way to go. so i would ask for support from

my colleagues for this amendment, which will save the department of defense money, will break our dependence -- help break our dependency on foreign oil, move to energy independence and cut greenhouse gas emissions. with that, mr. president, i would yield the floor and i guess note the absence of a quorum. the presiding officer: the clerk will call the roll of the senate. quorum call:

mr. mccain: i ask unanimous consent the proceedings upped the quorum call be suspended. the presiding officer: without objection. the senator is recognized. mr. mccain: mccain: i ask i ask unanimous consent to withdraw the amendment 1230 as modified. the presiding officer: without objection. mr. mccain: i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

a senator: mr. president. the presiding officer: the senator from tennessee is recognized. mr. corker: i'd like to ask unanimous consent for the quorum call be vitiated. the presiding officer: without objection, the senator from tennessee is recognized. mr. corker: thank you. i'd like to ask unanimous consent that a modification to amendment 1172 be accepted. the presiding officer: is there objection? without objection. mr. corker: mr. president, i'd like to talk briefly about this amendment. i think most people in this body understand that we are reimbursing the pakistan military for efforts that they are putting forth on behalf of what we're doing in afghanistan and during -- in enduring freedom. and we have crafted an amendment that asks for certain reporting to take place from the pentagon and for them to work at ways of diminishing this reimbursement

over time as we wind down our operations in afghanistan. this -- this amendment has been drafted in such a way so as to not further escalate tensions between us and the government of pakistan. this is a good government type of amendment that just asks the pentagon to begin looking at ways of decreasing the support that we're giving to the pakistan military on our behalf regarding afghanistan as we wind down our operations there simultaneously. it's my understanding that both the majority and minority leaders of the armed services committee have accepted this and there's no hold from the majority on the foreign relations committee and i hope we'll have an opportunity to vote and pass this by voice vote very soon. with that, mr. president, without further comments -- a senator: mr. president? the presiding officer: the senator from arizona is recognized. mr. mccain: mr. president, i

support the amendment, as modified, by the senator from tennessee, senator corker, who has devoted a great deal of time and effort and thought into this issue and the result is this amendment. and i would point out that it would require the secretary of defense to prepare a report on the effectiveness of coalition support fund reimbursements made to pakistan in support of coalition military operations in afghanistan. before i proceed, let me once again express my deep condolences to the families of the pakistani soldiers who were killed this weekend in a cross-border air action. all americans are deeply saddened by this tragedy and i fully support nato and u.s. military in their commitment to conduct a thorough and expeditious investigation. as my colleagues will recall, this is an important aspect of senator corker's amendment, congress has authorized and

appropriated funding for coalition support fund reimbursements to pakistan since we began our military operations in afghanistan. at the time, pakistan made a strategic decision to support the u.s. war effort against the taliban government in afghanistan and al qaeda terrorist allies. in response, congress and the bush administration agreed to reimburse the pakistani government for military activities that support our mission in afghanistan. over the past decade, congress has provided billions of dollars worth of these reimbursements to pakistan and we should acknowledge that much good has come of it over the past few years, in particular pakistan has shifted tens of thousands of their soldiers from the eastern border of their country opposite india to the tribal areas in western pakistan. pakistani troops have been deployed and engaged in military

operations in their western provinces in tribal areas for more than two years straight and they've paid a heavy price in this prolonged fighting. hundreds of pakistani troops have given their lives to fight our mutual terrorist enemies in their country, and thousands of pakistani civilians have been tragically murdered in the same time by these militant groups who show no compunction about attacking weddings and funerals and mosques. we honor the sacrifice of pakistan's soldiers and we mourn the loss of innocent pakistani civilians. it must be noted, however, that certain deeply troubling realities exist within pakistan. it must be noted that elements in pakistan's army and intelligence service continue to support the hakani network and other terrorist groups that are killing u.s. troops in afghanistan.

as well as innocent civilians in afghanistan, india, and pakist pakistan. it must also be noted that the vast majority of the materials for improvised explosive devices that are maiming and killing u.s. troops in afghanistan originate within pakistan. these are facts. we cannot deny them. and any effective strategy for pakistan and afghanistan must proceed from this realistic basis. it is for this reason that i believe this amendment and this report would be extremely useful. already in response to recent pakistani activities, the administration has chosen to withhold coalition support fund reimbursements to pakistan. over the past two quarters, that withheld money amounts to roughly $600 million. and i can imagine that amid the current tensions, further

administration requests to congress for reimbursement of coalition support funds for pakistan will not be forthcoming. the report requested in this amendment would seek additional information on the amounts, types and effectiveness of coalition support fund reimbursements to the government of pakistan. it also would seek recommendations as to the future disposition of this program, including potential alternatives to it, or the possible termination of it altogether. that option cannot be ruled out. this is valuable information and recommendations to have as congress tons discuss and -- congress continues to discuss and debate not just the future of the coalition support fund reimbursements to pakistan but the future of our relationship with pakistan more broadly. and i strongly support this amendment. and again, mr. president, i don't want to spend too much

time stating the facts. and this is a terrible dlem map. dilemma. the fact is that pakistan a significant nuclear nation. they have a significant nuclear inventory. the fact is that for ten years we and pakistan had virtually no relations. we found that not to be a productive exercise. but at the same time, when their exists, as my colleague from tennessee will agree, two fertilizer factories from which come the majority of materials -- the materials from which a majority of i.e.d.'s are manufactured and killing young americans, it's not tolerable. i understand, as i said earlier in my comments, the tragedy that resulted from the deaths of these young pakistani soldiers. i also understand, as every one of us do, what it's like to call a family member of a young man or woman who's lost their lives

in afghanistan many times as a result of an i.e.d. in a hearing in a committee of the armed services committee, then-chairman of the joint chiefs of staff, admiral mike mullen stated -- quote -- "the fact assure that the quadisur and the hakani network operate from pakistan with impunity." i want to repeat, these are the words of the former chairman of joint chiefs of staff. "extremist organizations serving as proxies of the government of pakistan are attacking afghan troops and civilians as well as u.s. soldiers. for example, we believe the hakani network, which has long enjoyed the support and protection of the pakistani government and is in many ways a strategic arm of pakistan's interservice intelligence agency, is responsible for the september 13 attacks against the u.s. embassy in kabul." he goes on to say -- quote --

"there is ample evidence confirming that the hakanis were behind the june 28 attack against the intercontinental hotel in kabul and the september 10 truck bomb attack that killed five afghans and injured another 96 individuals, 77 of whom were u.s. soldiers." and finally, another comment by admiral mullen, who, by the way, who had worked very, very hard for a long period of time to develop a close working relationship with general kianari and other military leaders in pakistan. he went on to say -- quote -- "the quadasura and the hakani network are hampering efforts to improve security in afghanistan, spoiling possibilities for broader reconciliation and frustrating u.s.-pakistan relations. the actions by the pakistani government to support them actively and passively represents a growing problem

that is undermining u.s. interests and may violate international norms, potentially warranting sanction." in supporting these groups, the government of pakistan, particularly the pakistani army, continues to jeopardize pakistan's opportunity to be a respected and prosperous nation with genuine regional and international influence." now, i -- finally, i'd like to say again, this is an incredibly difficult challenge for the united states security policy. we have a country on which we are dependent in many respects. for supplies, for cooperation, for hopefully not to be a sanctuary,al it's no, although e case, for taliban and al qaeda elements. we have a country that is a nuclear power, and we have a country that has a government that i will say charitablely, is

very weak. so it seems to me that the corker amendment is important for the american people to know exactly where we are, what policy we're going to formulate and what measures need to be taken because we have, as i mentioned earlier, spent billions of u.s. taxpayers' dollars. now, that doesn't play very well in states like mine, where we have 9% unemployment and more than half the -- or less -- just less than half the homes underwater. so the corker amendment isn't all we need. in fact, we need to have a national debate and discussion about the wholeue of our relations with pakistan. but i believe that the corker amendment is a very important measure so that we can assure the american people that not only -- not only are their tax

dollars wisely spent but that actions are being taken to prevent the needless wounding and death of our brave young men and women who are serving in the military. mr. president, i yield the floor. mr. levin: mr. president? the presiding officer: the senator from michigan. mr. levin: mr. president, i support the amendment of the senator from tennessee. it's a balanced amendment which deals with a very complex situation. what senator corker is doing is pointing out some very important facts and that is that pakistan has received a lot of funds from the united states for this particular purpose which is aimed at helping the success of our operations in afghanistan. the whole purpose of the coalition support fund is to reimburse pakistan for the

support that they provide, for instance, in providing security for our troops and other equipment that is going through pakistan that have oil or fuel, that are food going into afghanistan to support the effort in afghanistan. that's the purpose of these funds. and it's a good purpose and this is not a foreign aid deal. this is a reimbursement deal. the problem is that while on the one hand the pakistanis are assisting us, on the other hand they're assisting our enemy and the enemy of mankind and the enemy of the afghan people and the enemy of the coalition forces in afghanistan. and that's the problem. that's the dilemma which we all face and which this amendment seeks to addressment -- seeks to address. and, again, it does so in a way which doesn't prejudge the outcome of the assessment but it makes a very important point,

which is, as it's now stated in the amended final paragraph, that we need recommendations, given this on the one hand they're with us, on the other hand they're against us situation, we need recommendations from the administration, if any, relating to potential alternatives to or termination of reimbursements for the coalition support fund to the government of pakistan. taking into account the transition plan for afghanistan. i agree with my friend from arizona that we send condolences to the families of troops in pakistan who have recently lost their lives. we also have to understand that pakistan has paid a huge price for terrorism in their country against their people. they've paid a massive price. but what is unacceptable to us

is that they are making us pay the price by providing a safe haven to the haqqanis and they're macing our troops, our -- and they're making our troops, our families, afghan troops, afghan families are paying a heavy price because of the pakistan support through their i.s.i. for the insurgency in afghanistan. now, admiral mullen, the former chairman of the joint chiefs of staff said that the haqqani network is a veritable arm of the pakistan intelligence service. and when he was pressed on that formulation, he said he meant every word of it. and so we've got to send an important message to pakistan, and that message is, we want a normal relationship, if we can

have one. but we can't have a normal relationship if you're on the one hand supporting the very people who are attacking us in afghanistan and, on the other hand, purporting to help us through the protection and supplies going through pakistan, helping us succeed in afghanistan. we can't have it both ways. they can't have it both base and this amendment send a very significant and important message, i believe, to the pakistani and to our coalition allies and to our afghan partners that what's going on inside pakistan has got to come to an end. this will help, i believe, bring that important result about, and so i very much support the amendment of senator corker, the senator from tennessee, and hopefully we can adopt it. if there's no debate about it --

there may be others, so i yield the floor. mr. corker: mr. president? the presiding officer: the senator from tennessee. mr. corker: mr. president, because of the tremendous cooperation of the senator from michigan, the senator from arizona, obviously my goal is to call this amendment to be passed. didn't provide a lot of context because i know they both support this. i want to thank them. i don't think there are two senators that can better aarticulate the issue that we face in pakistan that is both a friend and foe. none of us, i think, that have traveled to afghanistan -- i know these two senators probably have more than most -- but none of us who have been there -- all of us who have been there have heard our generals talking about the fact that they're fighting a war in afghanistan that's being really led out of pakistan. and so basically you know we have an issue here. and i think you all have articulated the issue very well. the fact is that we need to

know, first of all, if what we're doing in support of the pakistan military is effective for us. and y'all have outlined that's a big issue. the second piece is how we're actually reimbursing. if you talk with folks at the state department, we literally are going through repeals o -- through reams of invoices, how much food has been supplied to the military, what's going to be counted shall what's not going to be counted. we're spending morning business time accounting for this than -- tweer spending more time account for this. i do hope with your support and the support of the chairman of the foreign relations committee, this is an amendment that we can voice vote. i thank you both for your leadership on this issue but also for putting this in the appropriate context. i thank you very much and i yield the floor. the presiding officer: is

there further debate on the amendment? without objection, the amendment is agreed to. -- as modified. without objection. mr. levin: i believe that senator cantwell wanted to be recognized at this point. and i note the absence of a quorum. the presiding officer: the clerk will call the roll of the senate. quorum call:

ms. cantwell: mr. president, i ask that the quorum call be dispensed with. the presiding officer: without objection, the senator is recognized. ms. cantwell: as we continue to make progress on the defense authorization bill and hopefully somewhere here in the halls of congress we're also making progress on the f.a.a. authorization bill and maybe before the end of the year getting that to final resolve.

i know my colleagues on both sides of the aisle are working very hard. but i just had to come down to say that christmas came early in the northwest today when a major deal between the boeing company and aerospace workers machinists resolved what had been a conflict in the past of how to work together, a new relationship of working together on incentives and efficiency and performance has resulted in the boeing company making a decision to build the next-generation 737-max plane in the pacific northwest. that is great news for aerospace workers in puget sound. it means that there are going to be a skill set of building fuel-efficient planes for many, many years to come. but it is a great testament to both the company and the workers who a year ago you probably heard more about the nlrb issue

and in our what you're hearing about is an agreement on a multiyear contract that is going to get these workers jobs and building planes on the next-generation technology. this is very, very big and important news, not just for the pacific northwest but for the country, because it means that we can come together to resolve differences. i would hope the united states senate might apply some of the same things, because the dispute as where these two organizations were about how to proceed to the future obviously had had a lot of discussion, even they'r heree senate floor, and yet today we see them coming together in a huge agreement that means that more planes are going to be built in an agreement where workers and the company are working together to improve performance and deliver these planes that many, many mem peope want because they are so

fuel-efficient on time. so for the northwest to have this kind of boost, shot in the arm at this point in time is really, really important. i expect that, as this agreement and the agreement details are seen by many people, they'll see that this really is a way forward for the northwest to continue to be at the top of the a aerospace game. that's important because the united states needs to be at the top of the air so space game. we're -- of the aerospace game. we're facing tough competition from many countries like china and europe and others who are trying to lure the manufacturing base away from the united states. and what we see in the northwest is not only do you have a company like boeing but you have a supply chain of many, many suppliers that are also working to make aerospace manufacturing in the united states one of the key industries that the united states is world premier in. so i just want to say congratulations to both the company and to the machinists,

and to the machinists international for their hard work on inking this deal. i hope that it will bring much benefit and economic growth not just to puget sound but certainly there but to the rest of the country as well. i thank the president and i yield the floor. mr. kirk: mr. president? the presiding officer: the senator from illinois. mr. kirk: mr. president, i rise in support of the feinstein amendment with regard to section 1031 of this legislation. i'm particularly worried because unlike the authorized use of force original doctrine and legislation passed by the congress, we limited the authority of the president and the united states military to those connected directly to the september 11 mass murder of americans. and i think in times of emergency, i understand that. but the legislation would be the first congressional authorization to go far beyond that, to say that any person who

substantially supported al qaeda, the taliban, or associated forces undefined, including any person who committed "a" belligerent act would be allowed to be picked up by u.s. military authorities and held in u.s. military detention. and while i am in favor of robust and flexible u.s. military action overseas, including action against american citizens waging war against the united states, like anwar al-awlaki, i think we all should agree on a special zone of protection inside the jurisdiction of the united states on behalf of u.s. citizens. now, i say this in support of the feinstein amendment because i took the time, as we all should from time to time serving in this body, to reread the constitution of the united states yesterday. and the constitution says quite clearly, "in the trial of all

crimes, no exception, there shall be a jury and the trial shall be held in the state where said crimes were committed." clearly the founding fathers were tock talking about a civilian court in which the u.s. person is brought before in its jurisdiction. they talk about treason against the united states, including war in the united states, and the constitution says "it shall consist only in levying war against them or add hearing to their enemies giving war and comfort." "no person, no person," it say, "shall be convicted of treason unless on the testimony of two witnesses the same overt act or a confession in open court." and i would say, pretty clearl, that open court is likely to be civilian court. further, the constitution goes on that "when a person is charged with treason, a felony or other crime that that person shall be removed to the state having jurisdiction of the

crime." once again contemplating civilian state court and not the united states military. a as everyone knows, we amended the constitution many times. and the fourth amendment of the constitution is instructive here. it says "the rights of the people to be secure in their persons, houses, papers, or effects against unreasonable searches and seizures including the seizure of the person shall not be violated, no warrants shall issue except upon probable cause supported by affirmation particularly the place to be searched or persons or things to be seized." now, in section 1031-b-2 i do not see the requirement for a civilian judge to issue a warrant. and so gha what happens in this legislation directly violates the fourth amendment of the constitution. with regard to those rights which are inalienable according to the declaration of independence and should be invie

lat as your birth right as an american citizen. recall the fifth amendment which says, "no person" -- by the way, no person, there's not an exception here. "no person shall be held to answer for capital or otherwise infamous crime unless upon presentability or indictment, grand injury except in cases arising from the naval forces when in actual time of war." meaning there is a separate juris ducks of u.s. citizens who are in the uniformed service of the united states. but unless you are in the service of the united states, you are one of those no persons who shall be answer -b8 for a capital or infamous crime except on indictment of a grand jiewmple the sixth amendment says in all criminal prosecutions, not sornlings not by exception, in all criminal progressions, the accused shall enjoy the right it a speedy and public trial. by an impartial jury of the state where the crime shall have been committed.

i go on to these because i regard all of these rights as inherent to u.s. citizens. granted to them by their birth in the united states. and if we go on through the constitutions's amendments, we find in the 14th amendment it says that no state shall make or enforce any law, any law which shall abridge the privileges or immunities of the citizens of the united states. i realize that these powers have been defined by courts. but we would recall that even abraham lincoln ex post facto lost his ability to suspend the writ of habeas corpus pursuant to a supreme court decision. that we had in the case of hamdi v. rumsfeld, the court did recognize that under the 2001 statute, the president is authorized to detain persons captured while fighting u.s. forces in afghanistan. but i will recall -- by the way,

this included american citizens. i recall this was in afghanistan. clearly we see in a case where an american citizen has gone to a foreign jurisdiction, joined a terrorist organization or foreign military and is waging war on the united states. they could be held as a detainee of the u.s. military. why didn't this legislation say that? why didn't it restrict its purview to those provisions? in padilla, the fourth circuit did allow the capture of a united states citizen -- padilla -- by the way, arrested at o'hare airport, a united states citizen and held in military detention. and the fourth circuit said because he had foreign training and a foreign connection, that it was legal to hold him. but remember, very soon thereafter the bush administration surrendered this case. i think the bush administration realized they were about to lose in the supreme court. on the subject of whether the u.s. military could arrest and detain a united states citizen

and to deprive them of their rights and subject them only to review under a petition of habeas corpus, i think they realized that they had to kick padilla into the civilian court system. and, therefore, they did. and it's only in that context that we should read the padilla decision. i think bottom line is this: we funded a multihundred billion dollar department of defense, in the words of the movie, to put men on that wall that you need on that wall to defend us against foreign threats, and that they must do hard and difficult things including sometimes to united states systems like alwaki waging war on the united states from a terrorist base in yemen. but the purpose of this exercise and this institution is to defend the rights of the united states and u.s. citizens inside their own country. one of the first things you do when you join the u.s. military

is not to swear allegiance to a president or foreign leader. you actually swear allegiance to the constitution of the united states and to the rights that it has. what is the whole purpose of the constitution? it is to defend your rights against the government. because we are one of those unique governments that posits a limited government and which rights are reserved, according to the 10th amendment, to the states or to individuals, that your rights supersede the government. and so we cannot say for an individual, for example, in wisconsin, who's never been abroad, who may or may not have committed an act or may or may not have one association, that suddenly the united states military can roll in on that person, seize him or her, hold them in military detention, and only subject review of that case by one habeas corpus petition. i would argue then that all of

your rights as an american citizen hang on the decision of the president of the united states. that if the president of the united states decides that you are substantially part of al qaeda, the taliban or associated forces engaged in hostilities against the united states or you committed a belligerent act or supported such hostilities in aid of such enforcement, that all of your rights as an american citizen are now forfeited. clearly that's not the case. the founding fathers understood the power of the state run amok under a distant king that did not regard the rights of the individual as worth much. we founded a republic and then wrote a constitution to defend those rights. and while we face a very difficult and dangerous world overseas and have to do difficult and dangerous things, which i support, we should make sure that there is a place for peace and justice and rights inside the united states.

and so for us, in looking at this provision, the feinstein amendment clearly limits the scope of this legislation in an appropriate way, that we do the difficult things overseas. but the whole purpose of the department of defense is to defend the united states and those rights inside our country, but that you as a u.s. citizen, especially when you are inside this country, have inalienable rights which cannot be separated from you by any executive action. that you can only be held, incarcerated, that you can only have your liberties taken away from you on indictment of a grand jury before a civilian court and with a presumption beyond a reasonable doubt by unanimous vote of that jury. that is the essence of who you are as an american, and it is an historic decision that we would make here if we allowed this

power to go forward. i think that's why senator paul and i were the only two republicans to vote against it. that's why so many e-mails and letters that i received in the last few hours support this decision. and i understand that others have a different view. they describe the united states as a battlefield. and i would say that that is an overly harsh determination of how cheaply our rights can be held. that we have a multihundred-billion dollar department of home planned defense, that we have a substantial and capable f.b.i., that we have enormous state and city and local police establishments all with the capability to investigate and prosecute crimes, but under the constitution of the united states. and that if we hold u.s. citizens as capable of losing their rights on an executive

branch decision that it is -- that not beyond a shadow of a doubt but on a lower standard of care, that in the executive branch's view you are connected to one of these things and your rights are not worth very much. i would say the whole purpose of the constitution is to hold your rights higher than the government and subject only to review by a civilian court. and that review as described in the constitution of the united states is far more than a habeas corpus review. the text of the constitution specifically refers to grand jury indictment. for those who have questions on this, i would urge them first take a moment to reread the constitution. that first document which as a member of the u.s. military or as an elected member of this body you have to swear allegiance to and then make up your mind. i think when you do, you will support the feinstein amendment. and i yield back.

mr. mccain: mr. president? the presiding officer: the senator from arizona. mr. mccain: mr. president, i must admit that i have heard some bizarre arguments in my time as a member of this body in referencing to the constitution of the united states as a basis for the argument. it's my understanding, and my friend from south carolina, i ask unanimous consent to enter into colloquy with the senator from south carolina. the presiding officer: without objection. mr. mccain: under the constitution it is the supreme court of the united states who gives the interpretation of the constitution as various laws and challenges to the constitution is their responsibility. is that a correct assumption? mr. graham: yes, it is. mr. mccain: our colleague from illinois who continues to quote from the constitution of the united states fails to quote from the specific addressing of this issue by the united states supreme court, specifically, the hamdan decision. is that correct? isn't it true that according to that decision, the united states

supreme court, that we delegate, we ask to interpret the constitution of the united states -- and they have made many interpretations over the years -- says -- quote -- "there is no bar to this nation's holding one of its own citizens as an enemy combatant." now one would think, to the casual observer, that's exactly what the united states supreme court meant. it's fairly plain language. not really complicated. i'm not a lawyer. but how the senator from illinois quoting from inalienable rights could somehow totally disregard in every way what the united states supreme court said. they go on to say we held that -- quote -- "citizens who associate themselves with the military arm of the enemy governmenting" -- and i believe that that in the view of most would view that as a member of al qaeda, which this legislation specifically addressed. "we hold that the citizens" --

citizens "who associate themselves with the military arm of the enemy government and with its aid, guidance and direction," which is exactly basically the language of our legislation -- "aid, guidance and direction enter this country, enter this country bent on hostile acts or enemy belligerence within the meaning of the law of war." how could anything be more clear to the senator from illinois? it's beyond belief. it's beyond belief. nor can we see -- then they go on and talk about the civil war, the united states supreme court does. they talk about the civil war. and they talk about during the -- a code binding the union army during the civil war that -- quote -- "captured rebels would be treated as prisoners of

war." so a citizen no less than an alien -- a citizen no less than an alien can be -- quote -- "part of oral supporting forces hostile to the united states or coalition partners and engaged in an armed conflict against the united states." after 9/11, we declared we were at war with al qaeda. is that correct? we were at war and we have american citizens who are enemy combatants. and yet, the senator from illinois, in the most bizarre fashion that i've heard, says that therefore they're guaranteed the protections of a, as he said it, a trial. i don't get it. maybe you can -- a senator: would the senator yield. mr. mccain: the senator from south carolina, please go ahead. mr. graham: i'll be glad to yield to my friend from illinois. let me just try to set the stage the best i can. i'd love to have senator levin

weigh in and anyone else. the law as it exists today, to my good friend from illinois, has long held that when an american citizen collaborates with the enemy, that's an act of war, not a common crime. and the constitutional review provided by the supreme court in cases involving american citizens collaborating with enemy, has said that you view that as an act of war and you apply the law of war. so our supreme court in the hamdi case just a few years ago upheld the ruling of the in re: kurran case. in that case you had american citizens assisting nazi saboteurs. the supreme court ruled that your citizenship status does not prevent you from being treated as part of the enemy force when you choose to join the enemy.

why is this important? my good friend from illinois is an intel officer. and intelligence gathering is part of war. an enemy combatant can be interrogated by our military and intelligence community without miranda rights. they can be held for an indefinite period of time to be questioned about past, present and future attacks. the supreme court has legitimized that process, because the individual in question was an american citizen captured in afghanistan, and he pled to the court, you can't hold me as an enemy combatant because i'm an american citizen. the court said, no, there's a long history in this country of having american citizens who collaborate and be held as an enemy combatant. in every war we engaged in, american citizens provided

aeupbd comfort to the enemy. in world war ii we had americans assisting nazi saboteurs. cane wasn't one of the most famous cases a woman named tokyo rose that propagandized. she was an american citizen and she propagandized on behalf of the japanese when we were in the war? and afterwards she was given a military trial. not a civilian trial, not given her miranda rights. she was tried by a military tribunal. mr. graham: what we've done in the military commissions act of 2009, civilians not be tried, american citizens cannot be tried in military commissions. they can only go to federal court. but the point we're trying to make is it's been long held in this country that when an american citizen abroad or on the homeland decides to help the enemy, we have the right to hold you not under a criminal theory, but under the law of war because your effort to help the enemy, to my good friend from illinois, is an act of war against your fellow citizens. and this is so important.

if we deny our country the ability to hold and interrogate an american citizen who's joined forces with al qaeda, we lose the ability to find out the intelligence they may have to keep us safe. if the choice is that an american citizen who chooses to collaborate with al qaeda must be put in the criminal justice system, you will have criminalized the war, and the congress will have restricted executive branch power. make it clear -- please understand to senator feinstein that the courts of the united states have acknowledged that the executive branch can hold an american citizen as an enemy combatant when they engage and assist the enemy. the courts of the united states recognize the power of the executive as commander in chief to do that. the question for us, do we want to be the first congress in the history of the nation to say to

the executive branch you no longer have that power given to you by the courts inherit with them being commander in chief to protect us against enemies foreign and domestic. i would argue to my colleagues, given the threats we face from home-grown terrorism, given the threats we face from al qaeda groups and their affiliates, now is not the time to change the law preventing our military and intelligence community from holding an american citizen who is helping the enemy on the homeland and prevent them from gathering intelligence. i would argue that the reason no other congress has done this in past wars is because it didn't make a lot of sense, and i would argue that if you came to the floor of the united states senate in world war ii and suggested that an american citizen who has sided with the nazis to sabotage american interest here at home cannot be held as an enemy combatant, you

would have been run out of town because most of your citizens would say anybody who helps the enemy, citizens or not, are a threat to our country. unlike other wars, you do have due process that exists today that never existed before. no nazi soldier was able to go to a federal court and say judge, let me go. the reason that i have agreed and the courts have applied habeas review to enemy combatant determinations, this is a war without end. so how do you become an enemy combatant? the executive branch makes the accusation. they will fit -- they have to file a statutory criteria. this is a limited group of people in a limited class of cases. american citizen or not, if you fall in this group, you can be held as an enemy combatant, but the executive branch has to prove to an independent judiciary that the case is sufficient and under the law the judge has to agree with the

military. you have an independent judiciary looking over the shoulder of the military in this war unlike any other time. so the government has to prove to a federal judge by a preponderance of the evidence that this person is, in fact, an enemy combatant. if the judge disagrees, they are let go. if the judge disagrees, you hold those enemy combatants and they get an annual review process as to whether or not future detention is warranted. so we have robust due process, but please understand what the feinstein amendment is about. it is about the congress of the united states, the senate of the united states for the first time in american history restricting the ability of the executive branch to hold an american citizen collaborating with the enemy and question them under the law of war. if we do that to ourselves, we will regret it. i don't want to be in the first congress in the times in which we live to change the law, to

deny our intelligence community and the department of defense to deal with american citizens who have decided on their own to become part of al qaeda. the day you decide i'm going to side with al qaeda, you have committed an act of war against the rest of us, and the courts acknowledge you can be held for what you are, an enemy combatant, not a common criminal. the question for the congress is do we want to undo that in the times in which we live? i plead with everybody in this body, get yourself educated about what the law is today, and senator levin, we have done nothing to change the law in this bill, is that correct? mr. levin: the 1031, which is the overall section. not change the law. it incorporates, according to the administration's own statement of policy what the current law is.

the senator is exactly right. there is nothing in here which in any way affects habeas habeas corpus. nor could we, nor will we, nor will we seek to. habeas corpus remains exactly as it is. we couldn't change it if we wanted to and i don't want to. i want to while the senator has asked me a question, answer a question with a question to him. is it not true that for the first time, for the first time, the procedure -- we provide that where there is going to be an unprivileged enemy belligerent who is going to be held or could be held in long-term detention under the law of war, for the first time we provide a judge and a lawyer to that person. mr. graham: that is correct and that is something we have been working on together for five years. and just to respond, if i may, because i think this is a very good discussion. do you agree with me, senator levin, that the law that exists today in terms of the supreme court's rulings that an american

citizen can be held as an enemy combatant? mr. levin: i read this twice yesterday. i want to read it again now. you are exactly right. this is a line and senator mccain just read it. i don't know how anyone reading this can reach any other conclusion but what the supreme court says, not because they are right or wrong. because of the supreme court. "there is no bar to this nation's holding one of its own citizens as an enemy combatant." and by the way, nor should there be, in my judgment. mr. graham: senator levin, do you agree with me that in past wars, american citizens, unfortunately, have collaborated with the enemy? mr. levin: they have, and they have been treated as enemy combatants when they have done so. mr. graham: do you agree with me in world war ii, some american citizens agreed to assist the nazis and they were held as enemy combatants? mr. levin: i agree with you. mr. graham: do you agree with me it is good policy to hold

someone? mr. levin: it is good policy, and if they decide under the procedures that the persons should first be interrogated for whatever length of time those procedures provide, by the f.b.i., by local police or anyone else, they have the right to do that under our language. mr. graham: do you agree with me that the criminal justice system is not set up to gather military intelligence? mr. levin: i think that's true. mr. mccain: could i ask the senator from south carolina -- let me interrupt, but under the senator from illinois' interpretation of the constitution of the united states, if it's an american citizen, say, over in -- somewhere in pakistan that is plotting and seeking to kill or destroy american citizens, it's okay for us to send a predator and fire and kill that person, but according to the senator from illinois' interpretation, if that person were apprehended in charleston planning to blow up shaw air force base, then

that person would be given that individual's miranda rights. now, how in the world does that fit? i mean, again, this is one of the more bizarre discussions i have had in the 20-some years i have been a member of this body. go ahead. mr. graham: it would be -- the law as it exists today is an american citizen can be held as an enemy combatant. the question we're debating on the floor of the united states senate, my good friend, senator feinstein, she is saying that in the future, an american citizen who is deemed to have collaborated with al qaeda, the taliban or affiliated groups can no longer be held as an enemy combatant for an indefinite period, which means that you can't hold these people and gather military intelligence about what they know, about past, present and future attacks. and i would argue that we would be the first congress in history to bring about that result, and

i would argue that to do it now would be the worst time in american history to take that option off the table, because if you can't hold an american citizen who is suspected of assisting al qaeda under the law of war, then the only other option is to put them in the criminal justice system, and in the criminal justice system, you cannot hold someone indefinitely, you cannot ask them about future attacks or past attacks because you're investigating a crime, nor should you be allowed to do that under criminal law. the point i'm trying to make is that when you assist the enemy whether at home or abroad, you have committed an act of war against your fellow citizens, and the supreme court acknowledges that the executive branch has the power to hold just enemy combatant. the question for the united states senate, are we going to change that to say in the 21st century, 2011, every american citizen who chooses to cooperate with al qaeda no longer can be interrogated for intelligence-gathering purposes by our department of defense and

our intelligence community, they have to go into the criminal justice system right off the bat where they are given a lawyer and read their miranda rights. if we do that, we will deny ourselves valuable intelligence, and we will be saying to our fellow citizens that we no longer treat helping al qaeda as an act of war against the rest of us. and i would argue that if you suggested in world war ii that someone who collaborated with the nazis should be viewed just as a common criminal, most americans would say no. the day you chose to take up the nazi cause, you turned on your fellow citizens and you are now part of the enemy. that's all i want to do is keep the law as it is because we need it now more than ever. i am very sensitive to due process. there is more due process in this war. every enemy combatant at guantanamo bay captured in the united states has to go before a federal judge. the military has to prove their case to a federal judge, unlike any other war. there is an annual review process. that all makes sense to me, but what doesn't make sense to me is

for this country and this senate to overturn executive power that makes eminent sense at a time when we need it the most. it doesn't make sense to me to set aside a supreme court case that acknowledges that when an american citizen afiliates with al qaeda, that is an act of war against the rest of us and criminalize that conduct, denying us the ability to gather intelligence. if we go down that road, we have weakened ourselves as a people without any higher purpose, and to those american citizens, thinking about helping al qaeda, please know what will come your way. death, detention, prosecution. if you're thinking about plotting with the enemy inside our country, doing the rest of us harm, please understand what is coming your way. the full force of the law, and

the law i'm talking about is the law of armed conflict. you subject yourself to being held as an enemy of the people of the united states, interrogated about what you know and why you did what you were planning to do, and you subject yourself to imprisonment and death. and the reason you subject yourself to that regime is because your decision to turn on the rest of us and help a group of people who will destroy our way of life is not something we idly accept. it is not a common, everyday crime. it is a decision by you to commit an act of aggression against the rest of us. i hope and pray that this senate will not for the first time in american history deny our

ability to interrogate and find intelligence from those citizens who choose to associate with the enemy on our soil, because if we do that, it will be a deviation from the law that's existed at a time when we need that law the most. a senator: will senate yield? mr. graham: i will yield. mr. kirk: i thank senate, and i will yield to senator feinstein in just a minute, but i will just say i very much appreciate this debate with my friends and mentors. the three of us who were just debating all military officers, but we have different views. we are dangerously close to being like the house of representatives right now where we actually have a face-to-face debate, and i appreciate that. i would say, though, that the law that should not be changed is the constitution of the united states, that we realize that the regulations of the u.s. have force, that the statutes of the u.s. have greater force, that the supreme court decisions have even greater force, but no

document is above the actual words of the constitution. and i will say those words in your birthright as an american citizen. the sixth amendment says that you shall be secure in your person and that shall not be violated -- quote -- and no warrants shall issue except upon probable cause, meaning that a court has made that decision. that your fist amendment rights say that no person, no person, there is not exception in the constitution, shall be held to answer for capital or otherwise infamous crime unless presentment or indictment of a grand jury. and by the way, i am talking very specifically about a united states person inside the jurisdiction of the united states. that your sixth amendment right says in all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial. and, of course, your 14th amendment right saying no state shall make or enforce any law which shall abridge privileges or immunities of the citizens of the united states. these are without question for

united states citizens. part of this is a balancing act between the threats that we perceive. we know the threats from foreign enemies and terrorists. that's well -- well known to us and especially the new generation of americans that witnessed the mass murder of september 11, but the founding fathers were also wrestling with another threat, the threat of the state, the government itself against its own individuals and the abuse of power, and we would forget the lesson of history unless we also understood that that is a threat as well. we are told there will be no intelligence benefit if a u.s. citizen is arrested and interrogated by homeland defense or f.b.i. people and yet i would say as a member of the intelligence community, the f.b.i. and the department of homeland security are part of the intelligence community. and feed information into the intelligence community and can be used. one of the key ideas behind our american government, it's not

what we do, it's how we do it. and one of the things missing in section 1031 is who is the decider. the decider in this case is on suspicion of being part of the taliban or committing that belligerent act but we have no court making the decision that you as an american no longer have a right to the civilian court system. and those rights are inherent to you, as your birthright as an american citizen. that what we should make sure we do here now is we should we understand that your rights as an american citizen to be incarcerated are only on indictment by a grand jury, which is preponderance of the evidence, and then conviction beyond the shadow of a doubt unless under this language you are accused of being part of taliban, al qaeda, or committing an act. and then you can be held subject to only one habeas review on preponderance of the evidence.

most americans think you can only be convicted of a crime beyond a shadow of doubt by a jury of your peers but if this is passed, this is no longer true. we want to make sure that the decider always is a civilian article 3 court, that we are talking about a very, very specific definition here inside the jurisdiction of the united states, among american citizens. that i agree that we can kill anwar al-awlaki who is making war on the united states from a foreign jurisdiction. but when we are inside the united states the whole point of the u.s. military and our establishment is to defend our rights and those rights cannot be taken away from us by any executive action. they can only be taken away from us by action of a civilian court, by a jury of our peers and by their decision beyond a shadow of a doubt. with that, let me hand it over to the senator from california,

who -- whose amendment i strongly support and i yield the floor here. the presiding officer: the senator from michigan. mr. levin: one quick moment to respond and then a unanimous consent request. we couldn't change the constitution here if we wanted to and nobody does want to and that includes the right of habeas corpus. all the constitutional rights which the senator from illinois talked about are constitutional rights. they are there. they are guaranteed. they couldn't be changed by the congress if we wanted to and i hope nobody wants to change those rights. but what the senator ignores and has been ignored generally here is that there is another path and the supreme court has approved this path, that if any american citizen joins a foreign army, attacking us, that that person may be treated as an enemy combatant. that's not me speaking. that's the supreme court in hamdi. quote, "there is no bar -- no

bar -- to this nation's holding one of its own citizens as an enemy combatant." you join an army and attack us, you can be treated as an enemy combatant. the supreme court has said so more than once. now, my unanimous consent request is the following: that senator durbin, the senior senator from illinois be recognized and that senior senator from california be recognized -- excuse me, the senator from california be first recognized for her whatever comments she makes, then the senator from -- vrm illinois be recognized and then -- senior senator from be recognized and then to speak on whatever subject they want, the amendments of the senator from california or whatever, and then that senator merkley's amendment then be in order to be called up by senator merkley. the presiding officer: is there objection? hearing none, so ordered. the senator from california. mrs. feinstein: i thank the

distinguished manager of the bill and i say to the distinguished senator from illinois who is here i'll try to be relatively brief but by also say that seldom do we really get an opportunity on the floor of the senate to debate what is really fundamental to this american democracy and in a sense, i'm pleased that it's here because i think we can address it directly. i also want to thank your colleague, senator durbin, senator kirk from illinois, for his cosponsorship of this amendment. the fact of the matter is the original draft of this bill had this language in it: "the authority to detain a person under this section does not extend to the detention of citizens or lawful resident aliens of the united states on the basis of conduct taking place in the united states, except to the extent permitted by the constitution of the united states."

that was removed from the bill. essentially what we are trying to do was put back in that you cannot indefinitely detain a citizen -- just a citizen of the united states without trial. and that's a basic right of this democracy. it's given to us because we are a citizen of the united states. now, where i profoundly disagree with the very distinguished chairman and ranking member of the armed services committee is by saying that ex party querin and essentially set the law. it did not. and i went to the hamdi opinion and i'd like to read some of the majority opinion as written by justice o'connor. "as critical as the government's interest may be, this is on page 23 of her opinion -- 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." it goes on, "we reaffirm today -- this is in hamdi, page 24 -- the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law as we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails." it then goes on on page 26, "we therefore hold that a citizen detainee seeking to challenge his classification as an enemy

combatant -- that was hamdi -- must receive notice of the factual basis for his classification and a fair opportunity to rebut the government's factual assertion before a neutral decisionmaker." it then goes on to say on page -- well, this is justice scalia's commentary -- "the government argues that our more recent jurisprudence ratifies its indefinite don finement within the jurisdiction of the federal courts. it proises reliance on ex parte querin. he said this case was not this court's finest hour." the difference here is we are being asked for the first time, certainly since i've been in the this body and i believe since you've been in this body to say

that an american citizen can be picked up and held indefinitely without being charged or tried. that is a very big deal because in 1971, we passed a law that said you cannot do this. this was after the internment of japanese american citizens in world war ii. it took that long, till 1971. richard nixon signed the law. and that law has never been violated. and as i pointed out early, we have cases where -- that explain that the law has never been violated. so the querin case was not whether a u.s. citizen captured could be held indefinitely but rather whether such an individual could be held in detention pending trial by mill -- by military commission.

jose padilla was tried and convicted in a civilian court. so what we're talking about here -- and i'm very pleased that senator kirk and senator lee have joined us as cosponsors in this -- is really the right of our government in a law by congress to say that you can essentially arrest and hold without trial a citizen of the united states. now, the case that has drawn -- and very well drawn by the senator from arizona, the ranking member of the committee, is, well, would you want someone who is an american who is going to kill our people, bomb our buildings, not to be held under the laws of war? it's a different situation in this nation. what if it's an innocent, what

if it's someone in the wrong place at the wrong time? the beauty of what our law does is give every citizen the right of review. review by a court. and the bill as written would not provide that review. the bill as written would say that an american citizen can be picked up, can be held for the length of hostilities. is that five years? 10 years? 15 years? 20, 25, 30 years? without a trial. i say that's wrong. i say that's not the way this democracy was set up. and i say that's totally unnecessary. and you can go back to the shoe bomber as a case in point. you can go back to abdul miew tal 25 tal ebb as a case in point, the federal courts in trying people.

so i want to thank you for your interest in this. it's very much appreciated. i don't know whether we can win this or not. but i think it's very important that we try. i think it's very important that we build a record in this body because i have no doubt that this is going to be litigated. and i hope we are successful. i hope we protect americans' rights. and, you know, as we have occasion to look at people in guantanamo, we know there are people there that were in the wrong place at the wrong time. if they're going to be held forever, that's a mistake. and we don't want that to happen, the same thing to happen to american citizens in this country. i don't see a need for the military to go around arresting americans. you know, the national security division of the f.b.i. now has some 10,000 people, they have 56 offices.

they're well equipped to arrest arrest, to certainly the justice department is equipped, to prosecute and also to interrogate. so i am hopeful that we will be able to defeat this -- well, pass this amendment, i should say and change the bill to reflect that americans are protected from permanent detention without trial. that's all we're trying to do. i thank you, thank the chair and i yield the floor. the presiding officer: the senator from illinois. mr. durbin: 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. you have not only read the law, you've written many laws and your competence in advocating this important constitutional question has been proven over and over again. so i thank you for having the determination and courage to

stand up for your convictions against some who would be critical of anyone who broaches this subject. and it is a controversial subject. we are talking about the security of americans. we're talking about terrorism and we all remember, just a few years ago, when our lives were interrupted, a time when we'll never forget, when terrorists attacked the united states and killed 3,000 innocent american people on 9/11. and we came together in this congress, democrats and republicans, and said we need to keep this country safe, we never want that to happen again. and we passed new laws suggested by president george w. bush enacted by democrats and republicans in congress, we created new agencies like the -- this t.s.a. security agency at airports. we empowered our intelligence branches, which senator feinstein has a particular responsibility for as chairman of the senate intelligence committee. we gave them more people, we gave them more technology, we

gave them more authority and said 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 to senator feinstein noted to the federal bureau of investigation and said we are going to dramatically increase your numbers and give you the technology that you need to keep us safe. and here we are some ten 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. and we can also say that with very few exceptions, very few exceptions in the ten years since 9/11 that we have done all these things consistent with america's values and principles. other countries -- and you 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. because those of us who are elected to represent our states here in the united states senate take an oath, an oath that we are going to uphold and defend a 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's 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 here 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're lucky to have senator carl levin and senator john mccain who put more hours into it than you can imagine to write the bill to authorize the department of defense to do its job. it's the best military in the world, and their hard work makes certain that it stays in that position. but this provision that they have added in this bill, i think, is a serious mistake. serious. serious enough for me to support senator feinstein in her efforts to change and remove the language. why? first, we know that the law enforcement officials in the united states of america, the attorney general's office, the f.b.i. have done a good job in keeping america safe. they have arrested, incidentally, 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, illinois, in my home state, where they're safely and humanely incarcerated. the message to the world is we're going to keep america safe, but we're going to do it playing by the rules that make us america. and 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, senator mccain disagree. in an op-ed piece for "the washington post" they recently wrote quo tkpwho*e provision in the legislation expands the authority under which detainees can be held in military custody." end of quote. but look at the plain language of section 1301, there is -- section 1031, there is no exclusion for united states citizens. and so the question is: if you believe that american citizen is guilty or will be guilty of acts of terrorism, can you detain them indefinitely? can you 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 that should be the standard. i listened to senator mccain. he makes a pretty compelling argument. wait a minute, you're telling me that if you've got someone in front of you that you think is a terrorist who could repeat 9/11, you're going to read their miranda rights to them? well, as an american citizen, yes, i would. and 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 that our system of justice can work with those rights being read. remember the case, and it was about two years ago, of the person who was on the airplane, the underwear bomber, abdul mutalab? he was coming to the airplane to

kill on the people on board and thank god he failed. he tried to ignite a bomb and his clothing went 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. and after he stopped talking voluntarily, they read him his miranda rights. we all know them from the crime shows we watch on tv. the right to remain silent. everything you say will be used against you. the right to retain counsel. he was read all those things. and he shut up. 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'll cooperate. i'll tell you everything i know. and 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 was an -- american citizen. even playing by the rules for american citizens we successfully prosecuted this would-be terrorist. what is the message behind that? the message 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. and it said if an american citizen is detained and suspected to be involved in terrorism with al qaeda or other groups, they can be held indefinitely without being given their constitutional rights. i appreciate senator levin and senator mccain have said they're willing to consider excluding u.s. persons, but section 1031 doesn't.

i hope that they do. i want to address a couple of statements that have been made by my republican colleagues. i like him and respect him, and 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's why we're doing this. i'm struggling to figure out if senator levin and senator graham have reconciled. mr. graham: could i respond? mr. durbin: i will. i want to you respond, but i want to ask you point-blank, is there an exclusion currently in the law for u.s. citizens under section 1031 and whether or not under 1031 american citizens can be detained indefinitely? mr. graham: no, and there should not be.

mr. durbin: can you -- mr. graham: can i finish my point? mr. durbin: sure. mr. graham: we're good friends and we're going to stay that way. but you keep saying something, senator durbin, that's not true. the law of the land is that an american citizen can be held as an enemy combatant. it's the hamdi decision, and i quote, "there is no bar to this nation's holding one of its own citizen as an enemy combatant. hamdi was an american citizen captured in afghanistan fighting for the taliban u. justice o'connor specifically recognized that hamdi's detention could last for the rest of his life because law of war detention lasts for the duration of relevant conflict." the padilla case involves an american citizen captured in the united states, held for five years as an enemy combatant, and the fourth circuit reviewed his case and said that you could hold an american citizen as an enemy combatant. and to my good friend from

illinois, throughout the history of this country american citizens in every conflict have unfortunately decided to side with the enemy at times. in re: curran is a 1942 case that involved american citizens assisting german saboteurs. they were held under the law of war because the act of collaborating with the enpheup was considered an -- enemy was considered an act of war, not a common crime. so the law of the land by the courts were that an american citizen can be held as an enemy combatant. that's been the law for decades. what senator feinstein would do is change that. the congress would be saying you cannot hold an american citizen as an enemy combatant. and i do appreciate the time. let me tell you why i think that's important. you're a very good lawyer. under domestic criminal law, we cannot hold someone indefinitely and question them about enemy activity. what do you know about the enemy?

what's coming? what were you doing? where did you train? under domestic criminal law, you can't question somebody in a way that would put them in jeopardy. under military intelligence gathering, you can question an enemy prisoner without them having a lawyer to be able to find out how to defend america. if you can't hold this person as an enemy combatant, the only way you hold them is under domestic criminal law. and when the interview starts and the guy says "i want my lawyer. i don't want to talk to you anymore," under the criminal justice model, there is very limited time you can hold them and question them without reading them their rights or giving them a lawyer. under intelligence gathering, our department of defense, f.b.i., c.i.a., can tell the individual you're not entitleed to a lawyer. you have to sit here and talk with us because we want to know what you know about present, past and future attacks. if you can't hold an american citizen who has decided to collaborate with al qaeda as an enemy combatant, you lose that

ability to gather intelligence. and that's what the change senator feinstein is proposing, that the law be changed by the congress saying an enemy combatant status can never be applied to an american citizen if they collaborate with al qaeda. that would be a huge loss of an intelligence gathering. it would be a substantial change in the law. it would be the first time any congress ever suggested that an american citizen can collaborate with the enemy and not be considered a threat to the united states from the military point of view. i don't want to go down that road because i think that is a very bad choice in the times in which we hraoeufplt so to my -- in which we live. to my good friend, the law is clear you can't hold an american citizen as an enemy combatant. the congress is contemplating changing that, and i think that would be a very bad decision in the times in which we live to deny our ability to hold an american citizen and question them about what they know and why they decided to join al qaeda. mr. mccain: mr. president, i ask for the regular order.

what's the regular order? mr. graham: senator -- the presiding officer: the senator from illinois has the floor. mr. graham: simply stated, if you decide to collaborate with al qaeda in a very limited way can we hold you. you've got to be a member of al qaeda, affiliated with it, be involved in a hostile act. but if you do those things, historically american citizens who chose to side with the nazis -- in this case al qaeda, have been viewed by the rest of us not as a common criminal but as a military threat. now is not time to change that. we need that ability to question that person. why did you join al qaeda? where did you train? what do you know about what's coming next? and the only way you can get that information is to hold them as an enemy combatant and take all the time you need to protect this nation. mr. durbin: i'd like to reclaim the floor. mr. graham: yes, sir. mr. durbin: would you end that with a question mark? mr. graham: was i right?

mr. durbin: i thank my colleague from south carolina. what you concluded with, though, i think is critical to this conversation. you said the only way to get to the bottom of whether there's an al qaeda connection that could threaten the united states is military detention. well, the abdulmutallab la case argues just the opposite. it was the federal bureau of investigation that he sat before and told all of the information that you just discussed. mr. graham: may i respond and say you're right. i'm an "all of the above" guy. i believe military and civilian courts should be used. when american citizens are involved, military commissions are off the table. mr. durbin: are you arguing every president should have all the options, criminal courts as well as military commissions and tribunals? mr. graham: absolutely. mr. durbin: what is the difference then with what you're 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 court side, dramatically more success on the criminal court side. and the obvious question that senator feinstein poses, 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 six in military commissions, why do we want to change it? and here's the point. mr. graham: my view is that when you capture somebody here at home and the belief is that they're no now part of al qaedaf you want to read them their miranda rights and put them in federal court, you have the ability to do that. this legislation doesn't prevent that from happening, does it senator leaf senator levin? mr. levin: is it does not. mr. graham: but what senator feinstein is proposing is that no larning do you have the option of holding the american citizen as an enemy combatant to gather intelligence and you don't have the ability to hold

them for a period of time, to inteainterrogate them under thew of war. the information we receive from guantanamo detainees has been invaluable to this nation's defense and to those who believe it was because of waterboarding, i couldn't disagree more. the chief reason we've been able to gather good intelligence at guantanamo bay is because of time. the detainee is being humanely treated, but there is no requirement under military law to let the enemy prisoner go at a certain period of time. so if you take away the ability to hold an american citizen who has associated himself with al qaeda to be held as an enemy combatant, you can no longer use the technique of intier debating them over time to find out what they know about the enemy. er you're worried abouyou're prt prosecuting them. i'm worried about finding out

what they know about future attacks. you cannot prosecutor somebody. that's part of the law enforcement you've taking away from us, senator, dur lynn sha e ability to gather intelligence. mr. durbin: i'll try to do this in an appropriate time for the gravity of the issue before us. but to suggest that the only way we can get information about a terrorist attack on the united states by al qaeda and other sources is to turn to the military commissions and tribunals and not use the f.b.i. and not use the department of justice defies logic and experience. abduabdulmutallab basically told

them everything he knew over a period of time. it worked. to argue that you cannot do this just defies the experience with abdulmutallab. and i want to say a word about the hamdi case. i listened as senator feinstein read the supreme court decision. i don't think the supreme court decision stands for what was said by the senator from south carolina. i think what he said was inaccurate. i don't believe justice o'connor went to the extent of saying, you can hold an american citizen indefinitely. and let mae also say, when it comes to the hamdi case, hamdi was captured in afghanistan, captured on the battlefield in afghanistan, not th in the unitd states. and justice o'connor in that opinion was very careful to say the hamdi decision was limited to, and i quote, "individuals who have fought against the united states in afghanistan as part of the taliban." she wasn't 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 is -- some argue is a precedent for the indefinite detention of u.s. citizens. but look at what happened in the case with 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 3 criminal court. so i don't think that hmmm did i or padilla make the case that's been made on this floor. i just think that i think senator feinstein is proper in raising this amendment. i think that the fact that hamdi, as a u.s. citizen, but it doesn't 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 really not that significant, that much of a change, are opposed by this administration, opposed by the secretary of defense, leon panetta, who received a 100-1 vote of confidence from the united states senate when he is appointed, opposed by our director of national

intelligence who says that niece provisions will not make america safer but make it more difficult to protect america, and opposed by the federal bureau of investigation, a letter from director mueller in the record yesterday as well as the department of justice -- you have to ask yo yourself, if awfl these agencies of government which work day in, day out to keep us safe, tell us not to pass these provisions because it doesn't make america safer, it jeejeopardizes our security, why are we doing it? let us try to maintain some of the basic constitutional values here. i think we can. i hope that my colleagues will take care before they vote against feinstein, despite the respect which i share an may have for our armed services committee and its leadership, this is a matter of constitutional importance and gravity and 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 and the indefinite detefntion an american citizen accused -- accused, not convicted -- accused of terrorist activity, the indefinite detention runs counter to the basic principles of the constitution we've sworn to uphold. i yield the floor. mr. levin: mr. president? the presiding officer: the senator from michigan. mr. levin: i wonder if the senator would wreeld for a question? would the senator agree that the majority opinion in hamdi said the following: quote -- "there is no bar to this nation holding one of its own citizens as an enemy combatant?" mr. durbin: i would respond by saying, justice o'connor in that decision said, as 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 decision-maker." mr. levin: and would the senator agree that what's specifically referred to there, a citizen that's being held as an enemy combatant is in turn -- excuse me, would you agree that what you 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 you 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 tap ban -- mr. levin: but what -- and that -- she didn't say that. she said a citizen -- i know what the facts of the case are. she didn't limit it to the facts of the case. mr. durbin: no, she didn't. and the queet is "individual whose fought against the united states in afghanistan as part of taliban." mr. levin: but she doesn't limit it to that. she describes the facts of that -- now, would the senator mr. durbin: could i just make one response. this is clearly an important constitutional question and one where there is real disagreement among the members on the floor. and i think it is one that frankly we shouldn't be taking up in a defense authorization bill but ought to be considering in a much broader condetection because it en-- context because it engang engages us in many le. mr. levin: would the senator agree with knee 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 that she said that however? mr. durbin: as it related to hamdi, of course. mr. levin: i am giving you an exact quote. i know the facts of the case. mr. durbin: i can read the whole paragraph. mr. levin: no you already v given the facts of the case -- i understand the facts of the case. it was somebody that was captured in afghanistan. my question is as a senator, would you agree that the justice -- justice o'connor said, she's talking about this cairks of course -- that there is no impar to this nation holding one of its own citizens? mr. durbin: captured on the field of battle in afghanistan. mr. levin: now, would the senator also agree that the justice said the following: that a citizen no less than an ail

indian 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 would pose the same threat of returning to the front during the ongoing conflict? would the senator agree that she said that? mr. durbin: okay. mr. levin: and would the senator agree that she quoted from the quirin case in which an american citizen was captured in long iement? mr. durbin: she did site the quirin case. there was nominee reservation in citing it. i would say to the senator our disagreement is the fact that we're zealing with a specific individual captured in 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: and my question, though -- my question is that

did justice o'connor say that in quirin, one of the detainees alleged that he was a naturalized united states citizen, we held that -- tees are exactly her words "citizens who associate themselves with the military arm of the enemy government with the same guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the law? did she say that. mr. durbin: i can tell you that there were references in there to the case but the supreme court has never ruled on the specific matter of law which you continue to read. and 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's been no rule. mr. mccain: madam president? isn't it true that justice o'connor was specifically referring to a case for a person captured on long island? last i checked, long island was

part -- albeit sometimes regrettably -- part of the united states of america? mr. levin: part of the quirin case in which one of detainees was -- mr. mccain: captured in the united states of america. that's the fangts of the case. facts of the case. i am afraid we have to move to the merkley amendment. mr. levin: according it a unanimous consent agreement which was entered into -- the presiding officer: the senator from michigan. mr. levin: i understand that senator merkley was going to be recognized next to offer his amendment. sthafs according to the u.c. i understand the senator from new hampshire -- i don't know how long he needed to make an unanimous consent request -- am i correct? i've been corrected. according to the existing unanimous consent -- mr. mccain: could i ask the indumindulgence of the senator m

oregon that the senator from south carolina be allowed two minutes and the senator from new hampshire be allowed five minutes? would that be all right with the senator from oregon? i thank you for your courtesy. i say to the senator from illinois, this is an important debate and discussion. i appreciate your presentation and i think that a lot of people are getd ago lot of good information on this -- what is a very complex and very central issue. i thank the senator from illinois. mr. graham: thank you. please understand what you're about to do if you pass the feinstein amendment. you'll be saying for the first time as a congress in american history that an american citizen who alliance himself with an enemy force can no longer be held an an enemy combatant. the quirin decision was about american citizens aiding nazi saboteurs and the supreme court held then that they could be held as enemy combatants, so as

much respect as i have for senator durbin, it has been the law of the united states for decades that an american citizen on our soil who collaborates with the enemy has committed an act of war and will be held under the law of war, not domestic criminal law. that is the law back then. that is the law now. hamdi said that an american citizen, a noncitizen, has a habeas right under law of war detention because this is a war without end, the holding of that case wasn't that youes can't hold an american citizen. it's that you have a habeas right to go to a federal judge and the judge will determine whroaj's whether or not the military has made a proper case. it has nothing food with an enemy combatant being held as an american citizen. what this amendment would do is it would bar the united states in the future from holding an american citizen who decides to associate with al qaeda.

now, in world war ii, it was perfectly proper to held an american citizen as enemy combatant and that helped the nazis. but we feel somehow in 2011 that's no longer fair. that that would be wrong. my god, what are we doing in 2011? do you not think al qaeda is trying to recruit people here at home? is the homeland the battlefield? you better believe it's the battlefield. the presiding officer: the senator's time has expired. mr. graham: could i ask unanimous consent for one more minute? the presiding officer: without objection. mr. graham: that's the point. why would you say that if you're in afghanistan, we can blow you up, put you in jail forever but if you make it here, all of a sudden we can't even talk to you about being part of al qaeda? what a perverse outcome. to say if you make it to america, you're home free, you can't be interrogated by our military, our c.i.a. you get a lawyer and that's the

end of the discussion. that's what you would be doing. that's crazy. no congress has ever decided to do that in other wars. if we do that here, we're changing the law in a way that makes us less safe. that's not going to be on my resume. it is not unfair to make an american citizen account for the fact that they decided to help al qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next. and when they say, "i want my lawyer," you tell them, "shut up. you don't get a lawyer. you're an enemy combatant and we're going to talk to you about why you joined al qaeda." the presiding officer: the senator's time has expired. a senator: madam president? the presiding officer: the senator from new hampshire. mrs. a i can't tell i can'tms. , madam president.

i rise in opposition to the amendment offered by senator feinstein. and i certainly appreciate the comments from my colleague from south carolina. it would lead to an absurd result that we -- if we were in a situation where an american citizen became a member of al qaeda and from within our country attacked americans and we could not gather the maximum amount of information from them to make sure that we can prevent future attacks against our country. and that's what's at issue here. i want to point out a couple of issues that have not been addressed with respect to senator feinstein's amendment, because if you look at the language of that amendment, she says that the authority described in this section for the armed forces of the u.s. to detain a person does not include the authority to detain a citizen of the united states without trial until the end of hostilities. well, i think that this provision is going to create some real problems for the executive branch, and if i were them, i'd 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. so let's use the example of anwar al awaki. mr. al awaki, a member of al qaeda, was actually killed by us overseas. and so it would lead to an absurd result that we could not detain him to gather intelligence but we believe that we are authorized -- and, by the way, i agreed with the administration taking that step to take out mr. al awaki, 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 could actually kill these individuals but you can't detain them under military custody and interrogate them to make sure that we can find out, what do you know, what other attacks are being planned against the united states of america. and also with respect to the language in this amendment, the language itself is -- is a

defense lawyer's dream. you can't hold a united states citizen until the end of hostilities. well, how long can you hold them? i mean, it's not clear. there's no language in that. i mean, this is going to be litigated to -- 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 abdullah mutallah case on numerous cases as a way that -- as a great case of an example of how we can gather intelligence from enemy combatants to help the united states of america. let's review the facts of that case again, okay? 50 minutes into the interrogation, he is told, you have the right to remain silent,

he exercises that right under -- because he is given miranda warnings, and it was only five 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 five weeks? what did we lose in terms of information that could have protected america? and if we cannot hold an american citizen to ask them information, who's chosen to be a member of al qaeda and has participated in a belligerent act against our country, to ask them what other attacks are you planning, who are you working with, and how are we going to get information to make sure that, god forbid, we can prevent another 9/11 on our soil because that's where they want to come here, to the united states of america, and also deal with this issue of home-grown radicals. this amendment, in my view, unfortunately is going to be a situation where we're opening

the welcome mat. if you goat america and you -- if you get to america and you can recruit one of our citizens to be a member of al qaeda, 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. madam president, i think this amendment is very misguided and, again, i would point out 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 qaeda and is trying to kill us from within our own country, they have become part of our enemy and are at war with us. the presiding officer: the senator's time has expired. ms. ayotte: thank you, madam president. i would urge my colleagues to oppose the feinstein amendment.

mr. levin: madam president? the presiding officer: the senator from michigan. mr. levin: madam president, i believe it is now in order for senator merkley to offer amendment number 1257, as amended, with the amendment at the desk. and the amendment at the desk has four words added to the printed amendment and those words are "nato and coalition allies." is that correct? the presiding officer: that is correct. mr. levin: i thank the presiding officer, and i yield the floor. mr. merkley: madam president? the presiding officer: the senator from oregon. mr. merkley: madam president, i call up amendment 1257 under the unanimous consent agreement and -- as modified and rise to speak to

him. the presiding officer: without objection. mr. merkley: thank you, madam president. the presiding officer: excuse me. under the previous order, the amendment numbered 1257, as modified, is now the pending question. mr. merkley: madam president, this amendment requires the president of the united states to develop a plan to expedite the reduction in u.s. combat troops in afghanistan and to accelerate the transfer of responsibility for military and security operations to the government of afghanistan. before i speak to some of the details of this, i want to thank the original cosponsors who have worked hard on this amendment, senator mike lee, senator tom udall of new mexico, senator rand paul, and senator sherrod brown. the united states went to afghanistan with two main goals that were laid out by president bush: to destroy al qaeda training camps and to hunt down those responsible for 9/11.

mr. merkley: our very capable american troops and our nato partners have pursued aggressively these objections -- objectives. there are very few al qaeda operating in afghanistan. secretary of defense leon panetta said in june 2010 that there were, at most, only 50 to 100 al qaeda members in afghanistan. afghanistan is no longer and has not been for some time a central arena for al qaeda activities. american forces have also effectively pursued the second objective: capturing or killing those who attacked america on 9/11. in recent years, america has captured or killed two dozen high-level al qaeda operatives, including khalid sheikh

mohammed, the alleged mastermind of the september 11 attacks, 9/11 attacks, was captured in a raid on a house in the pakistani garrison city of rahla pendi near the capital, islamabad. it includes ramsi bin alshid, the key facilitator of the 9/11 attacks. sheikh said masri, a leader of al qaeda, was killed in a u.s. drone strike. and most importantly, our exceptional intelligence teams and armed services have tracked down and killed osama bin laden, the founder and head of al qae al qaeda. citizens may fairly ask, and they do ask, given that we have successfully pursued our original two missions, isn't it time to bring our sons and daughters home? our citizens remind us that the

u.s. has been at war in afghanistan for over ten years, the longest war in american history. our citizens recognize that the war in afghanistan has come at a terrible price. more than 1,200 americans have died from snipers, from improvised explosive devices and other deadly weapons of war. more than 6,700 americans have been wounded by those same weapons, and thousands of our soldiers have suffered from and will suffer for years, decades to come from traumatic brain injuries and from post-traumatic stress disorder. our soldiers have paid a huge price. their families have paid a huge price. and in addition, the war in

afghanistan has consumed and is consuming an enormous share of our national resources. according to the congressional research service, by the end of this year, just over a month from now, we'll have spent the better part of half a trillion dollars or approximately $444 billion. in 2011 alone, we'll spend about $120 billion. so what is the answer to our citizens who ask, who ask that given our success in destroying al qaeda training camps and given our success in pursuing those responsible for 9/11, why haven't we brought our troops and our tax dollars home? the official answer is that america has expanded its mission in afghanistan from the narrow

two original objectives of destroying al qaeda and hunting down those responsible for 9/11, to the broad mission of nation-building. now, destroying al qaeda, our original mission, and building a modern nation state where won has never existed are two entirely different things. the expanded mission of nation-building in afghanistan goes way beyond those original two military objectives. this new, this expanded nation-building mission involves creating a strong central government. it involves creating an election process for a functioning democracy. it involves building infrastructure, roads and bridges and schools. it involves a major mission to create a sizable national police

force, a sizable effective national army. now, we have spent a lot on this mission. but the success is limited. over ten years, as i have mentioned, we have spent $444 billion. now, that is in a nation that had a prewar gross domestic product or economy of about $10 billion a year. so we have spent an amount equal to 44 times the economy of afghanistan. you would think that the result is we would have rebuilt the infrastructure of afghanistan ten times over or 20 times over, but the reality is there is very little to show for this

nation-building mission. why is this the case? most economy, this nation-building mission is systematically stymied by multiple forces. one is high literacy. on my recent trip to afghanistan, i was told that among those recruited for the national police, the literacy rate at a first grade level is only about 16%. first grade level, 16%. the goal is to be able to raise that literacy rate so that soldiers can read the serial numbers on their rifles. that is a very different world from the world we live in. a second huge factor is vast corruption. just after my first trip to afghanistan, the newspapers were full of stories about the family

members and the associates of the president of afghanistan building massive mansions in dubai. well, sending our money to afghanistan so the elite can send it to dubai to build mansions does not serve our national security. the efforts in nation building are stymied by deep-felt, ancient tribal and ethnic divisions. and moreover, there is a strong national aversion to the very initial of building a strong central government. i had an interesting experience where i met with six tribal leaders in kabul, the capital. they came in to share their stories, and each one of them said some form of the government you're trying to build is an

affliction to our people. please do not build a stronger government that exploits and afflicts our people. and i said to them help me understand this, because building a government means a force that can help with education, that can help with health care, that can help build transportation infrastructure, that can help provide security for businesses to prosper. and they spoke to me and said, one of them summed it up and said senator, you don't understand, all of the government positions here are sold. the people who buy them do not buy them to serve our people. they buy them to exploit our people. and when you build a strong central government, which we oppose, the exploitation increases. so this nation-building mission

is systematically stymied by high literacy, vast corruption, extensive and deep tribal and ethnic divisions and historic national aversion to a strong central government. we have been in afghanistan more than ten years. it is time to change course. our president recognizes this. he has worked out an agreement with the nato partners to remove the remaining combat troops by the end of 2014. that's just over three years from now. but what happens during this next three years? this amendment says, mr. president, during these next three years, seize the opportunity to diminish the combat role of american soldiers and increase the responsibility placed with the afghanistan government and the afghanistan

forces. seize that opportunity. and madam president, i say to my colleagues today this is incredibly important for our success in transferring responsibility. if you do not provide the opportunity and the necessity for the afghanistan institutions to take responsibility for their own security, they will not be prepared to exercise that responsibility down the road. madam president, the united states is facing a global terrorist threat. we will be well served by using u.s. troops and resources in a counterterrorism strategy against terrorist forces wherever they may locate and train, wherever in the world they may locate and train.

that strategy was highlighted by a pursuit of osama bin laden in pakistan or more recently our successful pursuit of anwar alwaki in yemen. our intelligence, our military, the best in the world, have proven without a doubt they excel in this strategy. thus, it makes sense to expedite the reduction of u.s. combat troops in afghanistan and accelerate the responsibility for military and security operations to the government of afghanistan, and that is what this amendment does. the amendment specifically requires the president prepare a plan for an expedited reduction of troops, an accelerated transfer of responsibility based on inputs from military commanders, from nato and coalition allies, from diplomatic missions in the region, from appropriate members of the cabinet and consultation with congress. what this amendment does not do, it does not limit our ability to

identify an attack on al qaeda or terrorist forces wherever they may be in the world. it does not limit our ability to destroy al qaeda or associated terrorist training camps wherever they may be, wherever they are in the world. it does not restrict funding for supplies, equipment needed by our troops deployed in the field. madam president, if our national security is well served by taking the fight to al qaeda wherever they are, if our nation-building strategy in afghanistan is confounded by literacy and corruption and cultural opposition and tribal and ethnic conflicts, if our natural resources are needed in that global antiterrorism strategy and are needed as well for nation building here at home, if our men and women have suffered enough on afghanistan soil, then we should encourage our president to seize every

opportunity over these next three years to reduce our forces in afghanistan and to transfer security responsibilities to the afghanistan government. that is what this amendment does, and i encourage every colleague to support it. thank you, madam president. i yield the floor and note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: mr. mccain: madam president. the presiding officer: the senator from arizona. mr. mccain: i ask unanimous consent further proceedings on the quorum call be suspended.

the presiding officer: without objection. mr. mccain: i oppose this amendment for one simple reason. it requires the president to submit a plan to congress for an accelerated drawdown from afghanistan. an accelerated withdrawal. not just the withdrawal that's already planned, not the withdrawal that's already been accelerated on several occasions, but a new accelerated drawdown. now, the president is supposed to submit a plan to congress for an accelerated drawdown from afghanistan. now, does that mean that the congress of the united states could see a plan for an accelerated withdrawal from afghanistan? is it required that it be implemented by congress or is it a nice informational, notional kind of thing? here's a plan. hey, let's get together. i have got a plan. and the president's drawdown plan, which our senior military commanders have stated is already, already more

accelerated than they are comfortable with. so, first of all, i don't get the point of the senator's amendment, which is to submit a plan. it doesn't require that the plan be acted on, just a plan. i can submit a plan for him if it's plans that he is interested in. but the fact is that we are accelerating our withdrawal from afghanistan at great risk as our military commanders have testified, much greater risk, so i guess another accelerated plan would obviously have the result of even greater risk to the men and women in the military. i understand the senator from oregon's opposition to the war, that's fine. i respect that. but an amendment that a plan is to be submitted without any requirement that it be implemented, a plan which would already accelerate more what has already been accelerated, i

guess is some kind of statement. a man is required by this amendment would be based on inputs from our military commanders. i can tell the senator from oregon what our military commanders in afghanistan have said in testimony before the senate armed services committee that more acceleration would mean greater risk, the acceleration that's already taking place means greater risk, but the senator from oregon wants a more accelerated plan, i guess. and then chairman of the joint chiefs of staff admiral mike mullen testified before the house armed services committee on june 23, this is the chairman of the joint chiefs of staff, that the president's drawdown plan, that's the present plan, not an accelerated plan such as the amendment proposes, would be -- quote -- "the president's drawdown plan would be -- that's the present one -- quote -- more aggressive and incur more risk than i was originally prepared to accept." now, i wonder if the senator

from oregon heard that. the present plan is -- quote -- "more aggressive and incur more risk than the chairman of the joint chiefs of staff would have been prepared to accept." unquote. so now this amendment we accelerate even more. on the same day, in testimony before the senate select committee on intelligence, general david petraeus stated that no military commander recommended what the president ultimately decided. that's the present plan. their concerns were well grounded. our commanders have wanted to keep the remaining surge forces in afghanistan until the conclusion of next year's fighting season, which roughly occurs with the onset of the colder months. that was their recommendation to the president. so now the president shall device a plan based -- devise a plan based on input from military commanders. i can tell the senator what the

input is. the same input he got with the first accelerated withdrawal. all you have to do is pick up the phone and ask them. you don't have to have an amendment. this was their recommendation. however, the president chose to disregard that advice and announce that all u.s. forces would be withdrawn from afghanistan by the end of next summer. that guarantees just as the fighting season next year is at its peak, u.s. surge forces will be leaving afghanistan. in my view, that's a huge and unnecessary risk to our mission, but the decision has been made. i think there will be great long-term consequences to it. her story was related to me just recently. a former member of the previous administration, high ranking, in a meeting with one of the highest ranking members of the government of sphak. he said to this high-ranking government official, what do you

think the chances for peace with the taliban are? that individual just laughed and said why should they make peace? you are leaving. those are fundamental facts. the primary reap for maintaining all of our surge forces in afghanistan through next year's fighting season is because of another time the president chose to disregard the advice of his military commanders. it's well known that our military leaders had wanted a surge to be 40,000 u.s. troops, but the president only gave them 33,000, so rather than being able to prioritize the south and east of afghanistan at the same time as they had planned, our commanders had to focus first in the south, which they did last year and this year, and then concentrate on eastern afghanistan next year, all because they didn't have enough troops. now, that's not my opinion. that is the sworn testimony of military leaders before the senate armed services committee.

the president's decision made the war longer, and now our commanders will not have the forces they said they wanted and needed to finish the job in eastern afghanistan. so before we can mandate a plan to further accelerate the drawdown of u.s. forces from afghanistan, i suggest we review the facts and consider the potential consequences of the overly accelerated draw down we already have. before we base such a plan on the views of our military commanders, i certainly recommend that my colleagues travel to afghanistan and speak with those commanders who can explain far better than i can why further accelerating our drawdown is reckless and wrong. so, madam president, i don't get the amendment. i don't understand why the title of it to require a plan for the expedited transition of responsibility for military and

security operations in afghanistan to the government of afghanistan, as i said, in case the senator from oregon missed it, we have already accelerated and in the view of our military commanders, unanimously, it's far greater risk. and so the president shall devise a plan, it says devise a plan based on infrustrates military commanders, minority and -- nato and coalition allies and diplomatic missions in the region and appropriate members of the cabinet along with the consultation of congress for expediting the drawdown of united states combat troops in afghanistan and accelerating the transfer of security authority. apparently, the senator from oregon is not satisfied with the president's already accelerated plan for withdrawal from afghanistan beginning in the full -- it's already begun but the serious withdrawal in the

fall, september of 2012. and i can assure, i can assure the senator from oregon that if our withdrawal, which i greatly fear now will have long-term consequences, a further accelerated withdrawal will absolutely guarantee that afghan becomes a cockpit, a cockpit of competing interests from iran, from india, from pakistan, from other countries in the region. and i think that the people of afghanistan deserve better. so i will, obviously, oppose this amendment. the presiding officer: the clerk will call the roll.

quorum call: a senator: madam president. the presiding officer: the senator from utah. mr. lee: i ask unanimous consent the quorum call be suspended. the presiding officer: without objection. mr. lee: madam president, i ask

unanimous consent the current amendment be set aside so i might speak briefly regarding amendment number 1126. mr. levin: reserving the right to object, i wonder if the senator would just seek -- the senator has a right to speak on another amendment without setting aside this amendment. i ask that the senator not set aside the pending amendment but simply speak on whatever amendment he wishes to speak on. mr. lee: wonderful. the second request is withdrawn. the presiding officer: without objection. mr. lee: i rise today to speak in support of amendment number 1126 to the current pending legislation. the purpose of this amendment is to make clear that the united states shall not detain for an indefinite period u.s. citizens in military custody. i understand that this has been the subject of a lot of debate. i also understand this would be a break not only with the current pending legislation but also with current practice.

based on supreme court precedent and lower court precedent that some have interpreted to deem this a constitutionally permissible practice. it's often been suggested by several of my colleagues that it is the province of the supreme court to interpret the constitution and that statement is absolutely correct as far as it goes. but it's not the beginning of the analysis and the end of the analysis. we as u.s. senators independently have an obligation consistent with and required by our oath to the constitution, which i took just a few months ago, a few feet from where i stand now, to uphold the constitution of the united states. and that means doing more than simply the full extent of whatever the courts will tolerate. in this instance, what we're talking about is the right of the u.s. military to detain indefinitely without trial a u.s. citizen simply on the basis that that person has been deemed an enemy combatant.

now, there is a real slippery slope problem here and it's the very kind of slippery slope problem for which we have protections like the fifth amendment and the sixth amendment. you see, under the fifth amendment a person can't be held for an infamous crime unless they've been subjected to a process whereby a grand jury indictment has been issued. and a person can't be held and tried for a crime without having counsel made available to them and without the opportunity for a speedy trial in front of a jury of the peers of the accused we can scarce afford as americans to surrender these fundamental civil liberties for which wars have been fought, for which the founding era, the founding generation fought so nobly against our mother country to establish and therefore to protect. we have to support these and i think at a bare minimum that means that we won't allow u.s.

military personnel to arrest and indefinitely detain u.s. citizens regardless of what label we happen to apply to them. these people as u.s. citizens are entitled to a grand jury indictment to the extent they're being held for an infamous crime, they're also entitled to a jury trial in front of her peers and to counsel. we cannot for the sake of convenience surrender these important liberties. i'm not willing to do that. that's why i support this amendment, amendment number 1126 to the pending legislation. i encourage each of my colleagues to do so. now, i want to point out, madam president, that yesterday i voted against what became known as the udall amendment. i did so in part because i don't believe that that fixed the problem that i'm talking about here. the udall amendment didn't even purport to address current practice or the policies as they've been established in recent years that this kind of detention is in some circumstances acceptable.

it called for a study and it eliminated certain provisions in the proposed legislation did you but it didn't fix the underlying problem. this feinstein amendment, amendment number 1126 does fix that. that's why i support it. i encourage each of my colleagues to do the same. when we take an oath to the u.s. constitution to uphold it, to protect it, to defend it, we're doing more than simply agreeing to do whatever the courts will tolerate. we're taking an oath to the principles embodied in this 224-year-old document that has fostered the greatest civilization the world has ever known. thank you, madam president. i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

the presiding officer: the senator from michigan. mr. levin: i'd ask that further proceedings under the quorum call -- the speaker pro tempore: without objection. mr. levin: let me just ask senator merkley a question and then i think we can freed there. it's my understanding that the original language in this and related amendments had the dates 2012 and 2014 in them and it could be interpreted you were trying to press those dates forward rather than as i interpret your amendment, the pace of reductions after consultation with the people you have identified. am i correct?

mr. merkley: the senator is correct. the amendment is designed to encourage to increase the pace of the reduction of u.s. forces and the transfer of responsibility to afghanistan's forces. mr. levin: if there is someone else who wants to speak, i yield. the presiding officer: the question is on the amendment as modified. if there is no further debate, all those in favor say aye. all opposed say nay. the ayes appear to have it and the ayes do have it. the amendment as modified is agreed to. mr. levin: i move to reconsider, lay on the