[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.
                                 <all>