Rand Paul on 'Hannity'

This is a rush transcript from "Hannity," December 2, 2011. This copy may not be in its final form and may be updated.

MONICA CROWLEY, GUEST HOST: Last night, the Senate voted 93 to seven, for a defense bill that contains a controversial provision which relates to tourist detainees in the military. Earlier this week, Senators Rand Paul and John McCain had a heated exchange on the Senate floor over the provision.


SEN. RAND PAUL, R-KY.: Their legislation would arm the military with the authority to detain indefinitely without due process or trial, people suspected of an association with terrorism. These would include American citizens, apprehended on American soil. Should we air today and removes some of the most important checks on state power in the name of fighting terrorism, well, then the terrorists have won.

SEN. JOHN MCCAIN, R-AZ.: Facts are stubborn things, 27 percent of those who have been released have been back in the fight. That's fact.

In fact, the senator from Kentucky wants to have a situation prevail where people are released and go back in the fight and kill Americans. He's right; he’s entitled to that opinion.


CROWLEY: Rand Paul was one of the seven senators who voted against the bill and I spoke with him earlier today.

Senator, good to see you, sir.

PAUL: Good to see you. I don't really see you. But good to hear from you.

CROWLEY: I can see you, Senator.

PAUL: All right.

CROWLEY: All right. So, let's get into this because, at the center of this debate is the McCain-Levin amendment to the defense authorization bill which was passed last night. You voted against it. And from my reading of this though sir, there is nothing in here that changes the wartime rights of American Citizens. In other words, if you fight with and for the enemy, then you may be treated like the enemy. On the other hand, if you have no connection to the enemy, then you will enjoy the full array of constitutional rights and protections in the civil justice system. So, what is your problem with this?

PAUL: I guess the real question is and I asked Senator McCain this question on the floor of the Senate, is could a U.S. citizen be accused of a crime in the United States and be taken and put into Guantanamo Bay for indefinitely without a jury trial, and his answer is yes, and that concerns me.

CROWLEY: Well, let me ask you this because I've read through the amendment and it looks like McCain and Levin actually did carve out a specific exemption for American citizens and it says that the directive that combatants must be detained by the military under the law for quote, "Does not extend to citizens of the United States, so that the provision is that the commander-in-chief may do it but he is not required to do it."

PAUL: That's in section 10.32. There are two different sections. One of them has to do with the military custody, and there also may be some problems. There's an act called the Posse Comitatus Act which was enacted shortly after the Civil War that says, U.S. troops shouldn't be used in the mainland and shouldn't be used within a states. So, there's a state crime against something, the state police are supposed to take care of it. But you're not supposed to have military troops coming in, and we're afraid that section 10.32 may violate this Posse Comitatus Act.

CROWLEY: Senator, is there something in here that you find too broad? Because when I was reading it, seem that the authors were very specific about identifying those who might fall under this, and what they say is that if you directly participated in the September 11th attacks, or if you are involved in hostilities against the United States on behalf of Al Qaeda, the Taliban or what they call affiliated networks, in this bill, then you would fall under it. But if you're an American citizen that’s not involved in hostilities against the United States, you have nothing to worry about.

PAUL: Well, I think that there are murky circumstances where people could be accused of terrorism that it might not be so clear as to their innocence or guilt. For example, the FBI has a warning list about those who maybe suspicious of terrorism. Some of the factors could be missing fingers, brightly colored stains on your clothing, change in the color of hair, whether you buy ammunition that is weatherized, whether you have seven days of meals that are ready to eat in your house. I'm concerned that we could have a stereotype or a profile for what a terrorist is. That person could be in the United States, be accused of terrorism, but there should be a trial. For example, the people that we think that are the worst people in the world, people who are pedophiles or murderers, John Wayne Gacey, we still give trials to those people and we still have rights. So, I'm afraid if a U.S. Citizen here in the United States, that's accused of being a terrorist, who doesn't get a trial or due process, to decide whether he or she is a terrorist, that is important and that would be new.

CROWLEY: But Senator.

PAUL: We’ve done it for people on the battlefield -- I have no problem if you're captured.

CROWLEY: Yes. Go ahead. Finish your point.

PAUL: I was just going to say, I have no problem if you're captured in Afghanistan, and in the Hamdi (ph), that's what they were talking about. A U.S. citizen captured in battle overseas. I don't have a problem with that. Now we're talking about U.S. citizens, they're saying - this is Lindsey Graham's words -- he wants the battlefield to extend to the United States. So now we're going to have a war zone in the United States where we will give up civil liberties, we will give up aspects of the Bill of Rights for U.S. citizens in the United States. I have a problem with that.

CROWLEY: Two quick questions on this, Senator. One, didn't Al Qaeda extend the battlefield to the United States? We didn't do that. They did that when they declared war on America and hit us on 9/11. And the second point is, isn't there distinction between criminal acts and acts of war? And what we're not talking about is not just holding up a seven 7/11. We're talking about engaging in acts of war against the United States?

PAUL: Right, there definitely is, and particularly in a battlefield overseas. I think we can't read Miranda Rights; we can't have due process if you're captured on the battlefield in Afghanistan. But I think it's different if you're accused of being associated with terrorism and you haven't left the United States, you're in the United States, and you're being accused because you're missing fingers or you have bright colored stains on your clothes or you made internet communications with people.

There really should be a trial to decide whether you're a terrorist or not. We shouldn't be able to lock people up who are in the United States and send them to Guantanamo Bay, indifferently without a jury trial. You know, Scalia had an important descent in the Hamdi (ph) and he said, it's one of the most important rights is to be free of indefinite detention by the executive. We have to have due process, and the similarities are, is that terrorists are bad people. I want to lock them up. I want to prevent them from attacking our country. But at the same time, I don't want to give up my liberty in the process or the rights that we have been fighting for six or eight-hundred years.

CROWLEY: Well, Senator, I want to thank you. We have to leave it there, but you mentioned the Hamdi case and actually the Supreme Court in that case. You mentioned the Scalia descent but the Supreme Court by in large upheld the right for the government to detain American citizens if they're working against the United States in the wartime. So it's a very interesting debate.

PAUL: But they actually overturned Bush because Bush wanted to hold them with no legal process, and the court held that.

CROWLEY: And do they have the due process. Military tribunals. All right. Very interesting debate, Senator. Great to you see you. Thank you.

PAUL: Thank you.

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