We never had, in the history of other wars, a Federal judge determining whether the military has the ability to determine whether someone is an enemy combatant, but we have that in this war. Does the Senator agree with that?

Yes. The point is---- Mr. McCAIN. Not a civilian trial, not given her Miranda rights, but tried by military tribunal.

Right. What we have done in the Military Commissions Act in 2009, civilians, American citizens cannot be tried in military commissions. It can only go to Federal court. But the point we are trying to make is it has been long held in this…

That is correct, and we have been working on that together for 5 years. To respond, if I may, because I think it is a very good discussion, does the Senator agree with me that under the law that exists today, in terms of the Supreme Court…

Does the Senator agree that in past wars American citizens, unfortunately, have collaborated with the enemy?

Does he agree with me that in World War II some American citizens agreed to assist the Nazis and were held as enemy combatants?

Does the Senator agree it is good policy to hold and interrogate someone who is helping al-Qaida to find out what they know?

Does the Senator agree that the criminal justice system is not set up to gather military intelligence?

Under the law as it exists today, an American citizen can be held as an enemy combatant. The question we are debating on the floor--Senator Feinstein is saying that in the future an American citizen who is deemed to have collaborated with…

Now, we are good friends, and we are going to stay that way. But you keep saying something, Senator Durbin, that is not true. The law of the land is that an American citizen can be held as an enemy combatant. It is the Hamdi decision, and…

Simply stated, if a person decides to collaborate with al-Qaida in a very limited way, can we hold them? They have to be a member of al-Qaida or affiliated with it or be involved in a hostile act. But if they do those things, historically…

May I respond and say the Senator is right. I am an all-of-the-above guy. I believe that military and civilian courts should be used. When an American citizen is involved, does the Senator agree with me that military commissions are off…

Thank you. And this is a very good exchange. My view is that when we capture somebody at home and the belief is that they are now part of al-Qaida, that if we want to read them their Miranda rights and put them in Federal court, we have…

Does the Senator agree with me that we do not want to start the practice in the United States that everybody we capture as an enemy prisoner is automatically a war criminal because that could come back to haunt our own people in future…

I ask unanimous consent to have 1 more minute. The PRESIDING OFFICER. The Chair was informing the Senator that 10 minutes has elapsed.

I would ask to be notified when 10 minutes is up. The PRESIDING OFFICER. The Chair will let the Senator know when 10 minutes is up. ____________________

I acknowledged in the Christmas Day Bomber case, in the Times Square attempted bombing, that they were put in Federal court. I am okay with that. I do believe in the ``all of the above'' approach. Our Federal courts can handle cases…

This past weekend I joined millions of Americans in celebrating Thanksgiving with friends and family. As Americans, each of us has so much to be thankful for this holiday season. America is the greatest, most free country in the history of…