[Congressional Record Volume 155, Number 172 (Thursday, November 19, 2009)]
[Senate]
[Pages S11576-S11577]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    SEPTEMBER 11 TERRORISTS' TRIALS

  Mr. BOND. Madam President, faith has written many painful chapters in 
America's history. Each is sharply engraved in our memories. Many 
involve military conflict: the British burning of Washington, the Civil 
War, Pearl Harbor, Iwo Jima, Pork Chop Hill.
  Others were singular acts of aggression, such as the bombing of the 
Oklahoma City Federal Building, the assassinations of Martin Luther 
King and Presidents Lincoln, McKinley, and Kennedy.
  September 11, 2001, is the latest painful chapter in American 
history, one that forever will be burned into our memories as a day of 
horror unlike any we have experienced before. The sheer magnitude and 
deliberate evil of the attacks that day defy comprehension. Who among 
us will soon forget the wrenching images of passenger planes used as 
missiles aimed at the World Trade Center Towers and the Pentagon or the 
people diving out of 70-story windows to avoid being burned again, and 
the heroic and selfless final acts of passengers aboard Flight 93 as it 
headed toward the Nation's Capital? Who among us will forget the 
pictures and the hopeful messages that sprang up around the area where 
the World Trade Center once proudly stood as relatives searched in vain 
for loved ones?
  Three thousand men and women perished that day at the hands of 
terrorists who cared nothing for the innocent lives they stole. As the 
towers fell, their comrades and sympathizers, including Khalid Shaikh 
Mohammed, diabolically cheered the devastation.
  It is these memories of 9/11 that make last week's decision by the 
Obama Justice Department to give the mastermind of these attacks and 
his associates all the rights and benefits of a civilian trial in New 
York City unexplainable and compel me to rise to voice my strong 
objection to that decision.
  It is an insult to the memories of those who were brutally murdered 
on September 11 that the perpetrator of these cowardly acts will sit in 
a courtroom blocks away from Ground Zero and reap the full benefits and 
protections of the U.S. Constitution. Even worse than the insult to the 
victims and their families is the dangerous precipice the Obama Justice 
Department has now crossed with this foolhardy decision. Earlier this 
year, the Homeland Security Secretary signaled an alarming change of 
perspective about the nature of the enemy we face. No longer would we 
call the acts of terrorism what they are: acts of war. Instead, 
according to Secretary Napolitano, the accepted terminology for an 
attack such as 9/11 would now be a ``man-caused disaster.'' Apparently, 
9/11 was no different than a forest fire started by an arsonist.
  This initial change in terminology was troubling enough, but trying 
Khalid Shaikh Mohammed and his 9/11 associates in civilian Federal 
court sends a loud and clear signal that this administration is now 
comfortable recasting certain acts of terrorism as simply what the 
Attorney General calls ``extraordinary crimes.'' I have to wonder if 
the Attorney General thinks Pearl Harbor was an extraordinary crime. In 
the logic of this administration, murdering 3,000 civilians, including 
servicemembers at the Pentagon, is an extraordinary crime, justifying 
trial in a civilian court. Yet killing 17 servicemembers aboard the USS 
Cole is an act of war or the murder of 13 servicemembers at Fort Hood 
justifies continued proceedings before the military commissions. This 
arbitrary distinction makes no sense and shows a disturbing lack of 
understanding of the nature of this war.
  It also creates a perverse incentive for terrorists to attack 
civilians so they may benefit from our treasured constitutional 
protections. KSM understood the benefits of these protections when, as 
former CIA Director George Tenet has said, KSM defiantly told CIA 
interrogators after his capture: ``I'll talk to you guys after I get to 
New York and see my lawyer.'' He was counting on going to New York to 
get the protections of our Constitution.
  Words are simply words, but the mentality that these words represent 
is dangerously naive. Whether it is called a man-caused disaster or 
extraordinary crime, refusing to treat the September 11 perpetrators as 
terrorists, deserving only of a trial before a military commission, is 
a dangerous throwback to the pre-9/11 mentality that resulted in the 
attack on the USS Cole, the bombings of our embassies, and the first 
World Trade Center bombing.
  Ordinarily, I support the concept of prosecutorial discretion and the 
right of the executive branch to bring criminal actions against 
perpetrators as supported by the facts. But in this instance, this 
discretion must give way to the larger national security interests of 
our country. In spite of the stated intention of KSM to plead guilty in 
the military commission, the Attorney General has asserted he believes 
there is a greater chance of success against these 9/11 coconspirators 
in civilian court. This belief--one I do not share--does not justify 
the enhanced risks to our security and the dangerous precedent for the 
treatment of future terrorists this trial will bring.
  That this case will establish a very bad precedent was made clear by 
the Attorney General in his testimony before the Senate Judiciary 
Committee, when he summarily dismissed concerns that the decision to 
bring 9/11 coconspirators into the Federal justice system would 
preclude an intelligence community interrogation of Osama bin Laden if 
he were captured. The Attorney General refused to say whether bin Laden 
would be given Miranda warnings upon capture and claimed ``the case 
against him is so overwhelming'' that there would be no need to rely on 
any statements he might make after capture. Mr. Holder called the 
concerns about not being able to interrogate bin Laden a ``red 
herring.'' Well, unfortunately, the Attorney General's testimony shows 
a complete lack of understanding that the purpose of intelligence 
interrogations is to stop planned attacks and to take down terrorist 
networks, not to elicit confessions for use in a criminal trial.
  It is beyond troubling that the Attorney General, as the head of the 
Department of Justice, the Justice Department's FBI National Security 
Division--the very people charged with preventing terrorist attacks, 
such as those disrupted in New York, Illinois, and North Carolina, seem 
to have no interest in obtaining valuable intelligence from bin Laden. 
As the leader of al-Qaida, bin Laden clearly has considerable knowledge 
of its network, its members, its methods, and its potential plots to 
kill more Americans. So what the Attorney General calls a red herring, 
I call a red flag.
  Some have hailed the administration's decision as a way to showcase 
our judicial system for the world, but the Attorney General has 
confirmed that in the event KSM or one of his associates is acquitted, 
he will still be

[[Page S11577]]

detained indefinitely. Are you sure, Mr. Attorney General, that a court 
will not order him released?
  This begs the question: Why should we incur the time, expense, and 
risk our national security on a show trial if we are just going to 
detain these terrorists forever anyway? Rather than showcasing our 
judicial system, this strange logic seems to make a mockery of the 
civilian judicial system. While the Attorney General has declared that 
failure is not an option, he does not control judicial rulings, nor the 
facts and perceptions that may sway any one of 12 jurors who will 
decide KSM's fate. A conviction will be expected, but there can be no 
guarantees.
  Make no mistake, America is still at war. The war on terror is real. 
It will not go away just by calling it another name. We cannot afford 
to bury our heads in the sand. While Khalid Shaikh Mohammed may 
ultimately be convicted, our success in the war against terror will 
only be final when we have hunted these terrorists into extinction. We 
need look no further than the terror plots disrupted earlier this fall 
in New York, Colorado, Illinois, and at Quantico, to name a few, to 
understand the threats we faced on September 11 are still very real. 
For the men and women massacred in cold blood at Fort Hood, the ongoing 
threat of terrorism is all too real.
  The Obama administration is standing at a crossroads of history. It 
can either persist in downplaying the reality that we are at war with 
terrorists or it can affirm that its top priority is to keep Americans 
safe by winning this war on terror.
  Madam President, success in this war on terror cannot simply be 
defined as getting a guilty verdict against KSM in a civilian Federal 
court. If the Department of Justice jeopardizes our intelligence 
sources and methods, incurs unnecessary security risks, and creates a 
high-profile public platform for KSM to spew his hatred and espouse 
hirabah, they will only increase the likelihood that these detainees 
will proselytize fellow inmates in Federal prisons and convert 
followers worldwide. That is not success; that is failure of the worst 
kind--an avoidable failure.
  These are not the hypothetical gambles that some on the left have 
dismissed casually. As former Attorney General Michael Mukasey, who 
presided as a judge over one of the trials, has stated, we know these 
domestic terror trials have exposed sensitive classified information 
and given important intelligence information to al-Qaida, allowing them 
to go undetected in more ways than they need.
  A few examples:
  The east Africa Embassy bombing trials made Osama bin Laden aware 
that cell phones were being intercepted, prompting al-Qaida to alter 
its methods of communication.
  The trial of the World Trade Center bomber, Ramzi Yousef, tipped off 
terrorists to a communications link that provided ``enormously valuable 
intelligence,'' but was ``shut down'' after the disclosure.
  Within days of being provided to the defense in the Omar Abdel-Rahman 
trial, the blind shaikh, a list of unindicted coconspirators, including 
Osama bin Laden, was provided to bin Laden.
  During the trial of Zacarias Moussaoui, 48 classified documents--
reports of FBI interviews with witnesses--were inadvertently provided 
to Moussaoui as part of the government's pretrial discovery response. 
In ordering the U.S. Marshals to seize the documents from Moussaoui's 
cell, the judge noted that ``significant national security interests of 
the United States could be compromised if the defendant were to retain 
copies of this classified information.''
  I believe these examples provide ample evidence that public trials of 
these types of terrorism cases are a clear win for terrorists seeking 
to learn more about our intelligence sources and methods.
  Were there no alternatives, we would proceed with this type of trial, 
despite the risk, because our Nation values due process. However, the 
military commissions process, first approved by Congress in 2006, and 
again last month, ensures a fair trial with rights to counsel, 
discovery, and appeal, but without the costs and risks of Federal 
civilian trials.
  The concept of military commissions is one our Nation has relied upon 
before. When Congress created the military commissions process after 
September 11, it established a framework to ensure that intelligence 
sources and methods would not be jeopardized. While changes have been 
made over the years to the process itself in light of Supreme Court 
decisions, the general framework and principles remain solidly in 
place.
  This process isn't new to this administration either. The 
administration is not only using this process, the Attorney General 
announced that the USS Cole bomber will still be tried under the 
commission. They worked with Congress to make the changes to it 
themselves.
  Yet in the case of the 9/11 conspirators, the administration has 
chosen to reject the tried and true method of prosecuting enemy 
combatants in a venue where intelligence sources and methods are 
unlikely to be compromised in favor of circuses that will make the 
trial of Zacarias Moussaoui, with its endless motions and Moussaoui's 
challenge of a duel to former Attorney General Ashcroft, seem like a 
mundane proceeding.
  This is an unnecessarily dangerous gamble. While the decision to take 
this gamble with our national security is clearly a matter for the 
executive branch, the administration has found a willing ally in many 
of my colleagues in Congress. Earlier this month, I joined 44 other 
Senators, from both sides of the aisle, in supporting an amendment to 
prohibit taxpayer funds from being used to prosecute in a civilian 
court the 9/11 perpetrators. Unfortunately, we were outvoted. The 
amendment didn't pass.
  I encourage my colleagues to rethink their opposition. When the 
appropriate time comes, I hope they will reaffirm that our national 
security interests must have priority over politically correct 
prosecutions.
  America is rightfully a different nation today than it was before 
September 11. We were attacked in a way and at a magnitude that we hope 
never to experience again. But we simply cannot rely on hope alone. 
Following these terrorist attacks, we took critical steps to try to 
ensure we are never attacked like this again. We made sure that we gave 
our intelligence professionals the tools they needed to fight 
terrorists, not just criminals. We gave them the tools they needed to 
fight a war and keep America safe.
  We must always remember the lessons of September 11. We owe it to the 
victims of these and other terrorist attacks to keep our Nation safe. I 
call on the President from this floor to reverse this disastrous 
decision by the Attorney General and reaffirm his commitment to our 
national security and to winning this war against terrorism.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Madam President, I apologize to the Republican leader. I 
was detained in my office talking to another Senator, so I apologize 
for not being here and his having to wait.

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