Congressional Record: January 21, 2010 (Senate)
Page S125-S126


 By Ms. COLLINS (for herself, Mr. Lieberman, Mr. Bennett, Mr. Ensign,
                             and Mr. Bond):

  S. 2943. A bill to require the Attorney General to consult with
appropriate officials within the executive branch prior to making the
decision to try an unprivileged enemy belligerent in Federal civilian
court; to the Committee on the Judiciary.
  Ms. COLLINS. Mr. President, yesterday the Senate Homeland Security
Committee heard testimony from the three top U.S. intelligence
officials about the errors that the Federal Government made leading up
to the thwarted Christmas Day plot. We dodged a bullet that day when
Umar Farouk Abdulmutallab, a Nigerian-born terrorist, failed to
detonate a bomb on flight 253 in the skies above Detroit.
  But today, Mr. President, I rise to discuss an error that was made
after that foreign terrorist had already been detained by American
authorities in Detroit, an error that may well have prevented the
collection of valuable intelligence about future terrorist threats to
our country. The error became clear during my questioning of three of
our Nation's top intelligence officials at the committee's hearing
yesterday. Frankly, Mr. President, I was stunned to learn that the
decision to place the captured terrorist into the U.S. civilian
criminal court system had been made without any input or the knowledge
of the Director of National Intelligence, the Director of the National
Counterterrorism Center, or the Secretary of the Department of Homeland
Security. That is right, Mr. President, these officials were never
consulted by the Department of Justice before the decision was made.
  That decision was critical. The determination to charge Abdulmutallab
in civilian court likely foreclosed the collection of additional
intelligence information. We know that the interrogation of terrorists
can provide critical intelligence, but our civil justice system, as
opposed to the military detention and tribunal system established by
Congress and the President, encourages terrorists to lawyer up and to
stop answering questions. Indeed, that was exactly what happened in the
case of Abdulmutallab. He had provided some valuable information to law
enforcement officials in the hours immediately after his capture, and
we surely would have obtained more information if we had treated this
foreign terrorist as an enemy belligerent and had placed him in the
military tribunal system. Instead, once he was read his Miranda rights,
given a lawyer at our expense, he was advised to cease answering
questions, and that is exactly what he did.
  That poor decisionmaking may well have prevented us from finding out
more of Yemen's role in training terrorists and more about future plots
that are underway in Yemen targeting American citizens in this country
or abroad. Good intelligence is clearly critical to our ability to stop
terrorist plots before they are executed. We know that lawful
interrogations of terrorist suspects can provide important
intelligence. To charge Abdulmutallab in the civilian criminal system
without even consulting three of our Nation's top intelligence
officials simply defies common sense.
  To correct this failure and to ensure that our Nation's senior
intelligence officials are consulted before making the decision to try
future foreign terrorists in civilian court, I am today introducing a
bill that would require this crucial consultation. I am very pleased to
be joined by the chairman of the Homeland Security Committee, Senator
Lieberman, who has been such a leader in this entire area, as well as
by three other Senators, Senator Bob Bennett, Senator John Ensign and
Senator Kit Bond, who are also concerned about the testimony yesterday.
  Specifically, our bill would require the Attorney General to consult
with the Director of National Intelligence, the Director of the
National Counterterrorism Center, the Secretary of Homeland Security,
and the Secretary of Defense before initiating a custodial
interrogation of foreign terrorists or filing civilian criminal charges
against them. These officials, Mr. President, are in the best position
to know what other threats the United States is facing from terrorists
and to assess the need to gather more intelligence on those threats.
  If there is a disagreement between the Attorney General and these
intelligence officials regarding the appropriate approach to the
detention and interrogation of foreign terrorists, then the bill would
require the President to resolve the disagreement. Only the President
would be permitted to direct the initiation of civilian law enforcement
actions--balancing his constitutional responsibilities as Commander in
Chief and as the Nation's chief law enforcement officer.
  To be clear, this legislation would not deprive the President of any
investigative or prosecutorial tool. It would not preclude a decision
to charge a foreign terrorist in our military tribunal system or in our
civilian criminal justice system. It would simply require that the
Attorney General coordinate and consult with our top intelligence
officials before making a decision that could foreclose the collection
of critical additional intelligence information.
  This consultation requirement is not unprecedented. Section 811 of
the Counterintelligence and Security and Enhancements Act of 1994
requires the Director of the FBI and the head of a department or agency
with a potential spy in its ranks to consult and periodically reassess
any decision to leave the suspected spy in place so that additional
intelligence can be gathered on his activities.
  As the Senate Intelligence Committee noted in its report on the
legislation that added the espionage consultation requirement:

       While prosecutorial discretion ultimately rests with the
     Department of Justice officials, it stands to reason that in
     cases designed to protect our national security--such

[[Page S126]]

     as espionage and terrorism cases--prosecutors should ensure
     that they do not make decisions that, in fact, end up harming
     the national security.

  The committee got it right. The committee went on to explain:

       [T]he determination of whether to leave a subject in place
     should be retained by the host agency.

  The history of the espionage consultation requirement is eerily
reminiscent of the lack of consultation that occurred in the case of
Abdulmutallab. In espionage cases, Congress has already recognized that
when valuable intelligence is at stake, our national security should
trump decisions based solely on prosecutorial equities. This
requirement must be extended to the most significant threat facing our
Nation, and that is the threat of terrorism.
  I encourage the Senate to act quickly on this important legislation.
The changes proposed are modest. They make common sense. But the
consequences could be a matter of life and death.
  Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
  There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

                                S. 2943

       Be it enacted by the Senate and House of Representatives of
     the United States of America in Congress assembled,


       (a) In General.--Subject to subsection (b), no action shall
     be taken by the Attorney General, or any officer or employee
     of the Department of Justice, to--
       (1) initiate a custodial interrogation of; or
       (2) file a civilian criminal complaint, information, or
     indictment against;
     any foreign person detained by the United States Government
     because they may have engaged in conduct constituting an act
     of war against the United States, terrorism, or material
     support to terrorists, or activities in preparation therefor.
       (b) Consultation.--
       (1) In general.--Subject to paragraph (2), the Attorney
     General shall consult with the Director of National
     Intelligence, the Director of the National Counterterrorism
     Center, the Secretary of Homeland Security, and the Secretary
     of Defense prior to taking any action identified in
     subsection (a).
       (2) Presidential direction.--If, following consultation
     under paragraph (1), the Director of National Intelligence,
     the Director of the National Counterterrorism Center, the
     Secretary of Homeland Security, or the Secretary of Defense
     believe that any action identified in subsection (a) and
     proposed by the Attorney General may prevent the collection
     of intelligence related to terrorism or threats of violence
     against the United States or its citizens, the Attorney
     General may not initiate such action without specific
     direction from the President.
       (c) Annual Report.--The Attorney General shall report
     annually to appropriate committees of jurisdiction regarding
     the number of occasions on which direction was sought from
     the President under subsection (b)(2) and the number of
     times, on those occasions, that the President directed
     actions identified in section (a) against such foreign
       (d) Definitions.--In this section:
       (1) Appropriate committees of jurisdiction.--The term
     ``appropriate committees of jurisdiction'' shall include--
       (A) the Committee on Homeland Security and Governmental
     Affairs of the Senate;
       (B) the Committee on Homeland Security of the House of
       (C) the Select Committee on Intelligence of the Senate;
       (D) the Permanent Select Committee on Intelligence of the
     House of Representatives; and
       (E) the Committees on Armed Services and Judiciary of the
     Senate and the Committees on Armed Services and Judiciary of
     the House of Representatives.
       (2) Act of war, terrorism, material support to
     terrorists.--The terms ``act of war'', ``terrorism'', and
     ``material support to terrorists'' shall have the meanings
     given such terms in title 18, United States Code.
       (e) Savings Clause.--Nothing in this section shall prevent
     the Attorney General, or any officer or employee of the
     Department of Justice, from apprehending or detaining an
     individual as authorized by the Constitution or laws of the
     United States except to the extent that activities incident
     to such apprehension or detention are specifically identified
     in subsection (a).