Senate floor speech on S. Res. 469
Tuesday, June 17, 2014
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. Reserving the right to object.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I do intend to object to the resolution for a number of reasons.
First of all, the resolution prejudges the very conclusion that the resolution says it wants an investigation to determine. It calls for an investigation, but then it already concludes that the President violated the law. That is not what I call an impartial investigation. That is a resolution which reaches a conclusion prejudging the very investigation it calls for.
There are other problems here as well. My good friend from Ohio said the President violated the law because he didn't give 30 days notice to Congress. Indeed, the National Defense Authorization Act provides for 30 days notice. But it also is a matter of fact the President said, when he signed the National Defense Authorization Act, that if there were necessary circumstances where there were negotiations going on with foreign countries or foreign people in terms of preserving or saving an American life that he is not going to be bound by 30 days notice. He said that at the signing ceremony.
You can't change a law at a signing ceremony, but what you can do at a signing ceremony is what this President did: At the very signing ceremony for the very act the Senator is relying on, the President put us on notice that there could be circumstances under which he could not give 30 days notice to the Congress.
When he did not give 30 days notice in this circumstance, he did it on the advice of counsel. The Department of Justice told him that he has powers, as Commander in Chief, under article II. That is part of the law of this land. The law of this land includes the National Defense Authorization Act. As a matter of fact, the Presiding Officer is very much aware of the fact that the National Defense Authorization Act, of which he is so important a part, is part of the law of this land. But so is article II of the Constitution, which gives the Commander in Chief certain powers, and the Department of Justice said he could use those powers to not give 30 days notice because it could jeopardize the life of an American citizen.
Maybe there are those who argue that is OK, follow the authorization law instead of article II, because the authorization law somehow or another has precedence over article II, which it doesn't. Article II is part of the Constitution. But the authorization act itself was said to be subject to article II powers of the President when he signed the very act.
So what happened? The President decided, because of the exigencies of these circumstances--whether you agree or don't agree with the details of the deal, that is one issue. People can disagree with that all they want. But as to whether once the President decided he was going to make that deal and save that life and not jeopardize that life by waiting 30 days, at that point the question is, was that illegal? That is what a court could decide if it so chose as to whether a President could use article II powers in order to act quickly to save an American life.
I think that prejudging this kind of an issue with the kind of investigation that would prejudge it - because that is part of the resolution itself - is not what this Senate should be doing.
By the way, during that 30-day period the President would have had to have not just waited 30 days; he would have also had to have made all kinds of detailed and substantive classified notifications. He would have had to have made certain kinds of findings, detailed statements, the basis for the transfer release, and explanation of why the transfer release is in the national security interest of the United States, a description of any actions taken to mitigate the risks. He would have had to have done all that before he was able to execute the transfer of an American citizen to the safety of this country.
The President did do all of those things immediately after he made the decision to act.
So we got all of that notification that is required by law, but we didn't get it 30 days in advance because of the jeopardy it would have created to American life.
Again, people are going to disagree as to whether this agreement should have been reached. That is fair discussion, fair game for debate, but that is a very different issue as to whether we should prejudge as to whether the President, who acted under his article II powers - and told us he might do so when he signed this bill - acted illegally, and that is what this resolution says happened - that the President acted illegally. It prejudges the investigation.
I think for a number of reasons it is inappropriate for us to adopt this resolution, so I will object.
The PRESIDING OFFICER. The objection is heard.
[Remarks by Sen. Portman of Ohio]
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I thank the Presiding Officer.
Mr. President, first of all, look at what the resolution says. When you read the resolution, it says: Congress should investigate the actions taken by President Obama and his administration that led to the unlawful transfer of such detainees.
So when my friend says it doesn't prejudge that it was unlawful, by its very terms it says "investigate the actions taken by President Obama that led to the unlawful transfer of such detainees." That is what the resolution says.
Secondly, the point that the resolution makes no reference to article II - my friend says that, and he is accurate in that regard. That is the problem. What is missing is a reference to what the President was advised he could do - which is act under his article II powers - and what the President said he would do when he signed this bill.
Third, the fact that we were notified of the bin Laden capture - I don't know how many of us were notified, but it certainly wasn't 30 days before he was captured, if it was at all. That is the issue here - not whether the President should have notified - by the way, I think he could have done a better job of notifying Congress. That is not the question. The question is whether he acted illegally, as the resolution says he did, because he didn't follow the 30-day notice requirement, which, in his judgment and I think a lot of other people's judgment, including mine, would have jeopardized the life of an American citizen. So he acted under article II powers to avoid that jeopardy, and there is no reference to article II in here. There is no reference to the fact that the Department of Justice informed the President he could act without abiding by a 30-day provision if he acted under his article II powers to save the life of an American citizen.
There are many reasons that this resolution - there are many problems that it seems to me this resolution does not fairly address or resolve, and that is the reason I object.
One other issue; that is, my friend from Ohio made reference to James Clapper, who is the Director of National Intelligence. Well, Director Clapper supports the deal that was made relative to this transfer, as does General …
This document was issued by Carl Levin and was initially posted at www.levin.senate.gov. It was distributed, unedited and unaltered, by noodls on 2014-06-21 15:56:04. The original document issuer is solely responsible for the accuracy of the information contained therein.