[Congressional Record Volume 156, Number 7 (Thursday, January 21, 2010)]
[Senate]
[Pages S125-S126]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

 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,

     SECTION 1. CONSULTATION REQUIREMENT.

       (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 
     person.
       (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 
     Representatives;
       (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).

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