[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 403 Introduced in Senate (IS)]
111th CONGRESS
2d Session
S. RES. 403
Expressing the sense of the Senate that Umar Farouk Abdulmutallab
should be tried by a military tribunal rather than by a civilian court.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 1, 2010
Mr. Vitter (for himself, Mr. Cornyn, Mr. Inhofe, Mr. Bennett, Mr.
Chambliss, Mr. Ensign, and Mr. Wicker) submitted the following
resolution; which was referred to the Committee on the Judiciary
_______________________________________________________________________
RESOLUTION
Expressing the sense of the Senate that Umar Farouk Abdulmutallab
should be tried by a military tribunal rather than by a civilian court.
Whereas Umar Farouk Abdulmutallab, a Nigerian citizen, attempted to blow up a
transcontinental airliner, Northwest Airlines Flight 253, over Detroit,
Michigan, on Christmas Day 2009;
Whereas Abdulmutallab boarded Flight 253 in Amsterdam using an unrevoked United
States visa after having traveled from Yemen, purchasing his ticket with
cash, and checking no luggage;
Whereas prior to the attack on Flight 253, Abdulmutallab's father, a prominent
Nigerian banker, warned officials at the United States Embassy in
Nigeria that his son was being influenced by Islamic extremists in
Yemen;
Whereas United States intelligence officials learned, based on intercepted al
Qaeda communications from Yemen in November 2009, that a man named
``Umar Farouk'' had volunteered for an upcoming terrorist attack and had
been in contact with Anwar al-Awlaki, the same Yemen-based radical
cleric who sent more than a dozen e-mail messages to the Fort Hood
shooter, Nidal Malik Hasan;
Whereas in November 2009, the National Security Agency also intercepted a phone
conversation involving al Qaeda operatives in Yemen discussing an
unnamed Nigerian man;
Whereas in December 2009, intelligence officials learned that al Qaeda
operatives in Yemen were looking for ``ways to move people to the West''
and specifically mentioning the Christmas Day date;
Whereas the Central Intelligence Agency (CIA) had issued finished intelligence
regarding Abdulmutallab by Christmas Day 2009, which both the CIA and
the National Counterterrorism Center (NCTC) had access to, but did not
disseminate more broadly within the intelligence community due to the
absence of a photograph of Abdulmutallab, despite the fact that other
counterterrorism groups already possessed such a photograph;
Whereas the intelligence agencies for the United Kingdom revoked Abdulmutallab's
British visa because of a fraudulent visa application;
Whereas after Abdulmutallab was apprehended by United States Customs agents and
local police following his failed attack on Flight 253, he spoke freely
about receiving training from members of al Qaeda in the Arabian
Peninsula and stated that other jihadists would follow him;
Whereas local agents of the Federal Bureau of Investigation (FBI) interrogated
Abdulmutallab for 50 minutes, during which time Abdulmutallab disclosed
information concerning his training in Yemen and the operation of al
Qaeda in the Arabian Peninsula;
Whereas after 50 minutes, the FBI stopped its interrogation of Abdulmutallab,
agreeing to continue the interrogation after he received medical
attention for the burns on his legs and groin caused by the failed bomb
he had sewn in his underwear;
Whereas before the FBI agents resumed the interrogation, Attorney General Eric
Holder made the decision to extend the rights required under Miranda v.
Arizona, 384 U.S. 436 (1966) to Abdulmutallab and to treat him as a
common criminal rather than a unprivileged enemy belligerent who would
be subject to military law;
Whereas the FBI agents, following the decision of Attorney General Holder, read
Abdulmutallab his Miranda rights, including his right to a lawyer and
his right to remain silent, at which point Abdulmutallab stopped
divulging information and remained silent;
Whereas information concerning Yemeni terror networks, terrorist training
operations, and al Qaeda in the Arabian Peninsula are of the utmost
value to the United States in its ongoing war against international
terrorism;
Whereas Attorney General Holder made the decision to extend Miranda rights to
Abdulmutallab without consulting the Director of National Intelligence,
Dennis Blair, the Secretary of Homeland Security, Janet Napolitano, the
NCTC Director, Michael Leiter, the Secretary of Defense, Robert Gates,
or the FBI Director, Robert Mueller;
Whereas Attorney General Holder did not consult the High-Value Detainee
Interrogation Group (HIG), which, according to Director Blair, ``was
created exactly for th[e] purpose'' of making ``a decision on whether .
. . a certain person who's detained should be treated as . . . a case
for federal prosecution'';
Whereas despite the fact that President Barack Obama created the HIG for the
specific purpose of interrogating high-value detainees in order to
obtain intelligence, the HIG was not yet operational by Christmas Day
2009;
Whereas given the evidence against Abdulmutallab and the numerous witnesses
onboard Flight 253 who saw him attempt to detonate an explosive device,
it was not necessary to secure testimony admissible in civilian court by
providing Miranda rights to Abdulmutallab;
Whereas even if testimony that would be admissible in a civilian court was
believed to be necessary, Abdulmutallab qualified for an exception to
the requirements under Miranda that permits law enforcement officers to
interrogate individuals with possible knowledge of an impending
terrorist attack;
Whereas despite the fact that the United States is at war with al Qaeda and
deeply concerned about the operation of Islamic terrorist networks in
the Arabian Peninsula and in Yemen, a country that continues to harbor
the terrorists who attacked the U.S.S. Cole, Attorney General Holder,
under the guidance of President Obama, subsequently ordered that
Abdulmutallab be prosecuted on criminal charges in a United States
civilian court rather than in a military tribunal;
Whereas under the international law of armed conflict, the United States has the
authority to detain enemies who have engaged in combatant actions until
the end of hostilities;
Whereas, on September 18, 2001, the Congress passed a Joint Resolution
authorizing the use of military force (Public Law 107-40; 50 U.S.C. 1541
note), stating that ``the President is authorized to use all necessary
and appropriate force against those nations, organizations, or persons
he determines planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored such
organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations,
organizations or persons'';
Whereas following extensive debate and numerous hearings on the topic, both the
Senate and the House of Representatives passed the Military Commissions
Act of 2009, which became law on October 28, 2009 (title XVIII of Public
Law 111-84); and
Whereas pursuant to the President's authority under the United States
Constitution as the Nation's Commander-in-Chief, as well as the
Congressional authorization for the use of military force under Public
Law 107-40, the President has both the authority and the responsibility
to detain Abdulmutallab and other foreign terrorists and prosecute them
through a military tribunal for their terrorist actions on behalf of al
Qaeda: Now, therefore, be it
Resolved, That it is the sense of the Senate that--
(1) foreign terrorists who are enemies of the United States
should not be afforded the same rights under the Constitution
as United States citizens;
(2) the most important duty of the Attorney General is to
protect the United States from its terrorist enemies;
(3) the decision by Attorney General Holder to truncate
Abdulmutallab's interrogation after only 50 minutes cost the
United States Government untold intelligence and has made
America less safe;
(4) Attorney General Holder should not provide
Abdulmutallab with a civilian trial, nor should he have ordered
that Abdulmutallab be advised of his right to remain silent;
(5) to the extent possible, foreign terrorist enemy
combatants should be tried in military tribunals rather than in
civilian courts;
(6) to the extent that foreign terrorists are prosecuted in
civilian courts, they should be thoroughly interrogated for
information necessary to protect the United States before they
are provided with a lawyer and informed of their right to
remain silent; and
(7) at a minimum, the Attorney General should consult with
the Director of the Federal Bureau of Investigation, the
Director of National Intelligence, the Director of the Central
Intelligence Agency, the Secretary of Homeland Security, the
Director of the National Counterterrorism Center, the Secretary
of Defense, congressional leaders, or the President before
unilaterally deciding to terminate the interrogation of a key
intelligence source and provide a terrorist enemy with the same
rights as those that are guaranteed under the Constitution for
United States citizens.
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