Congressional Record: March 4, 2010 (Senate)
Page S1181-S1182


      By Mr. McCAIN (for himself, Mr. Lieberman, Mr. Inhofe, Mr. Brown 
        of Massachusetts, Mr. Wicker, Mr. Chambliss, Mr. LeMieux, Mr. 
        Sessions, and Mr. Vitter):
  S. 3081. A bill to provide for the interrogation and detention of 
enemy belligerents who commit hostile acts against the United States, 
to establish certain limitations on the prosecution of such 
belligerents for such acts, and for other purposes; to the Committee on 
the Judiciary.
  Mr. McCAIN. Mr. President, I rise to introduce legislation that sets 
forth a clear, comprehensive policy for the detention, interrogation 
and trial of enemy belligerents who are suspected of engaging in 
hostilities against the U.S. This legislation seeks to ensure that the 
mistakes made during the apprehension of the Christmas Day bomber, such 
as reading him a Miranda warning, will never happen again and put 
Americans' security at risk.
  Specifically, this bill would require unprivileged enemy belligerents 
suspected of engaging in hostilities against the U.S. to be held in 
military custody and interrogated for their intelligence value by a 
``high value detainee'' interagency team established by the President. 
This interagency team of experts in national security, terrorism, 
intelligence, interrogation and law enforcement will have the 
protection of U.S. civilians and civilian facilities as their paramount 
responsibility and experience in gaining actionable intelligence from 
high value detainees.
  These experts must, to the extent it is possible to do so, make a 
preliminary determination whether the detainee is an unprivileged enemy 
belligerent within 48 hours of a detainee being taken into custody. The 
experts then must submit their determination to the Secretary of 
Defense and the Attorney General after consultation with the Director 
of National Intelligence, the Director of the Federal Bureau of 
Investigation, and the Director of the Central Intelligence Agency. The 
Secretary of Defense and the Attorney General make a final 
determination and report it to the President and the appropriate 
committees of Congress. In the case of any disagreement between the 
Secretary of Defense and the Attorney General, the President will make 
the final call.
  A key provision of this bill is that it would prohibit a suspected 
enemy belligerent from being provided with a Miranda warning and being 
told he has a right to a lawyer and a right to refuse to cooperate. I 
believe that an overwhelming majority of Americans agree that when we 
capture a terrorist who is suspected of carrying out or planning an 
attack intended to kill hundreds if not thousands of innocent 
civilians, our focus must be on gaining all the information possible to 
prevent that attack or any that may follow from occurring. Under these 
circumstances, actionable intelligence must be our highest priority and 
criminal prosecution must be secondary.
  Additionally, the legislation would authorize detention of enemy 
belligerents without criminal charges for the duration of the 
hostilities consistent with standards under the law of war which have 
been recognized by the Supreme Court. Importantly, if a decision is 
made to hold a criminal trial after the necessary intelligence 
information is obtained, the bill mandates trial by military commission 
where we are best able to protect U.S. national security interests, 
including sensitive classified sources and methods, as well as the 
place and the people involved in the trial itself.
  It should come as no comfort to any American that nearly 8\1/2\ years 
after the attacks of 9/11 we still don't have a clear mechanism, legal 
structure, and implementing policy for dealing with terrorists who we 
capture in the act of trying to bring about attacks on the U.S. and our 
national security interests at home and abroad. What we saw with the 
Christmas Day bomber was a series of missteps and staggering failures 
in coordination among the most senior members of the administration's 
national security officials that have continued to be compounded by 
administration apologists who still don't seem to understand that 
repeating the same mistakes that were made in 2001 and 2002 is going to 
lead to the deaths of many more Americans.

  The vast majority of Americans understand that what happened with the 
Christmas Day bomber was a near catastrophe that was only prevented by

[[Page S1182]]

sheer luck and the courage of a few of the passengers and crew. A wide 
majority of Americans also realize that allowing a terrorist to be 
interrogated for only 50 minutes before he is given a Miranda warning 
and told he can obtain a lawyer and stop cooperating is not sufficient.
  Let me be clear about where I think the fault lies with our current 
policy. I believe that the local FBI agents who were involved with 
investigating the Detroit attack are patriotic Americans who are 
experts in the field of law enforcement. I hold the FBI in the highest 
regard and believe they set the standard for law enforcement 
professionalism not only in the U.S., but internationally. But it is 
impossible for FBI field agents to know all the information that is 
available to the U.S. intelligence community worldwide during the first 
50 minutes of interrogation of a suspected terrorist. We must ensure 
that the broad range of expertise that is available within our 
government is brought to bear on such high-value detainees. This bill 
mandates such coordination and places the proper focus on getting 
intelligence to stop an attack, rather than allowing law enforcement 
and preparing a case for a civilian criminal trial to drive our 
  Deliberate mass attacks that intentionally target hundreds of 
innocent civilians is an act of war and should not be dealt with in the 
same manner as a robbery. We must recognize the difference. If we 
don't, our response will be hopelessly inadequate. We should not be 
providing suspected terrorists with Miranda warnings and defense 
lawyers. Instead, the priority and focus must be on isolating and 
neutralizing the immediate threat and collecting intelligence to 
prevent another attack.
  In closing, let me say that I hope that Congress and the 
administration support this legislation as part of a comprehensive 
solution for detaining, interrogating and prosecuting suspected enemy 
belligerents. However, there is a lot more work that must be done. I am 
continuing to work with Senator Graham, Senator Lieberman, and others 
to address other crucial aspects of detainee policy.
  As part of that effort, I believe we must establish a system for 
long-term detention of terrorists who are too dangerous to release, but 
who cannot be tried in a civilian court. While the law of war 
authorizes detention until the end of hostilities--something the 
Supreme Court has recognized and which is reinforced in this bill--I 
believe that a review system for the long-term detention of detainees 
should be set out in law. Additionally, both the U.S. District Court 
for the District of Columbia and the D.C. Circuit Court have urged 
Congress to provide uniform guidelines to apply in the habeas corpus 
cases that have been brought by detainees. Currently, the outcomes in 
the Guantanamo detainee habeas cases are inconsistent because of 
different interpretations of novel questions of law the judges face in 
applying habeas to wartime prisoners for the first time in our history. 
I will continue to work on a bipartisan basis to improve this process 
to obtain better, more uniform results. I do not believe that we will 
have addressed all the necessary detainee policy challenges until we do 
so, and my efforts will not stop until we have addressed all the 
detainee issues in a comprehensive fashion.
  While other detainee policy challenges remain, I believe the handling 
of the Christmas Day bomber--including the law enforcement focus and 
the decision to read a Miranda warning after only 50 minutes of 
interrogation--demand that Congress and the administration first 
address the issue which is most crucial to our national security. For 
that reason, we must have a clear policy, legal foundation, and 
mechanism for the detention, interrogation and trial of enemy 
belligerents who are suspected of engaging in hostilities against the 
U.S. I hope my colleagues will join me in supporting this important