[Congressional Record Volume 156, Number 21 (Thursday, February 11, 2010)]
[Senate]
[Pages S553-S555]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            TERRORIST TRIALS

  Mr. SESSIONS. Madam President, I wish to share a few thoughts on a 
matter of concern; that is, our national security and the procedure by 
which we are handling people we arrest who are attacking this country. 
It will be a bit of a follow-on to what Senator Bond of Missouri had to 
say. I disagree with my distinguished colleague, Senator Durbin, the 
assistant Democratic leader in the Senate. He is a member of the 
Judiciary Committee. I think he is wrong about that. I serve on the 
Judiciary Committee, too, and I would like to share a few thoughts.
  First, there has been a full-scale attempt to assert that President 
Bush tried most of the terrorists or terrorism-related cases that 
developed over the years in the normal civilian courts. That is true to 
some degree. I notice that in the 195 cases Senator Durbin said were 
tried in the Federal courts, he counted the Unabomber and Terry 
Nichols, one of the ones who blew up the Oklahoma City Federal 
Building. There is a big distinction: The Unabomber was not officially 
at war with the United States, had not declared war on the United 
States as al-Qaida has, and the United States had not declared war on 
him or on Terry Nichols, who was unknown, I suppose, to anybody at the 
time he committed that crime and was tried. A lot of the other cases 
deal with such things as aiding a terrorist by providing money to some 
terrorist organization that supports terrorism, violating various

[[Page S554]]

complex Federal laws, and they are tried in Federal courts. They are 
American citizens, and they are tried here. That is the reason some of 
the cases that have been cited were tried in Federal court.
  Another reason of significant import that cases were tried in Federal 
court rather than in military commissions was not because President 
Bush and his staff desired it but because we ended up with full-scale 
challenges of the military commissions as they were set up originally 
after 9/11. It took some time to get them set up. They were challenged. 
The U.S. Supreme Court concluded that a number of procedures conducted 
in the military commissions did not meet constitutional muster, did not 
comply with international agreements that the United States was a party 
to, and they said: You have to stop. So the military revamped what it 
was doing. The Congress passed the Detainee Act to legitimize the 
military commission trials and make sure it complied with the Supreme 
Court so we could get on with it.
  We had some 5,700 people in Guantanamo. It was never the plan of the 
Bush administration, ever, to try those people in civilian courts. In 
fact, Congress appropriated the money. We built courtrooms with video 
cameras and security at the Guantanamo base and prison. We had them set 
up so trials could be conducted, press people could come and see the 
trials, subject to national security questions that may arise, and do 
those trials in that fashion.
  But after President Obama got elected, he directed that Attorney 
General Holder evaluate whether we should do that anymore or not. 
First, he stopped them--he issued an order to stop it--and then he 
asked that a review be conducted. Mr. Holder conducted a review and he 
decided, and that report was, it would be presumed the people being 
held in Guantanamo--many of whom, most of whom were captured on the 
battlefield in Iraq and Afghanistan and other places in that area of 
the world--would be tried in civilian courts. This was an absolute 
reversal of that.
  Last year, I offered legislation that was passed by both Houses of 
Congress and signed by the President that said, if you are part of al-
Qaida, you are presumed to be at war with the United States, and it is 
not necessary, in a military commission trial, to put on all kinds of 
testimony, take weeks to prove we are at war with al-Qaida. That is 
simply already a fact; we have declared war. Congress has authorized 
the use of military force against al-Qaida, and they are attacking us. 
That is what war is.
  So John Brennan, the President's Deputy National Security Adviser, 
which apparently in this administration is a pretty big position--I 
guess these kind of personal Presidential staff people are what you 
make of them--has been very public. He has made a series of statements 
which demonstrate this administration has learned no lessons from their 
mishandling of the Christmas Day bomber--Umar Farouk Abdulmutallab--who 
was captured on Christmas Day, attempting to blow up a plane. Not only 
did Mr. Abdulmutallab have recent intimate knowledge of terrorist 
operations in Yemen, but, in fact, he came directly from Yemen, having 
been provided a bomb by al-Qaida, as they claimed credit for and 
apparently he has acknowledged.
  He was an operative of al-Qaida. He had no legal claim to protections 
of the American criminal justice system, in any case. Even if he had 
been a citizen of the United States, which he was not a citizen, he had 
no right to be tried in civilian court in the United States because he 
was an agent and an operative and an unlawful combatant directly 
connected with al-Qaida. So this is a big deal. This is a matter that 
has to be analyzed and thought through, and I am concerned the 
administration is not listening.
  The combination of these factors about his background made his 
capture a unique intelligence opportunity--one of the most important 
opportunities since 9/11 because al-Qaida had moved a large part of its 
operation to Yemen, using it as a training base. We did not know enough 
about it. It is very important we learn everything we can about how 
they are operating in Yemen, who the leaders are, and how they could be 
attacked and neutralized. So the decision to treat him as a civilian 
was very wrong.
  The Department of Justice immediately began to treat him as a common 
criminal being investigated by the FBI. They gave him his rights after 
50 minutes. In truth, colleagues, as a prosecutor myself, he should 
have been given his rights, probably--normally, you would expect them 
immediately. There may be some exceptions that could have allowed this 
not to occur immediately, but, normally, when a civilian is arrested 
and you ask him a single question, that individual who is in custody is 
entitled to Miranda rights then. Miranda rights are not just that you 
have a right to remain silent. Miranda rights say you have a right to 
remain silent, and we will appoint you a lawyer. You have a right to 
have one, and we will appoint you one if you don't have the money. 
People tend to clam up when they are told that.
  So they offered him an attorney and did not treat him as the rare 
intelligence asset he was. That decision, it is indisputable, I truly 
believe--and this is not politics we are talking about--jeopardized the 
kind of fresh, timely intelligence that saves lives and prevents 
further attacks on the homeland of our country.
  Mr. Brennan says one of the reasons the administration classified 
Abdulmutallab as a civilian was because he was captured on U.S. soil. 
This comment is truly startling and makes no sense. As Deputy National 
Security Adviser to the President, Mr. Brennan ought to be aware that 
because Abdulmutallab is an al-Qaida operative, he is an unprivileged 
enemy belligerent--in our common, more current definition of the term--
and, thus, he is automatically eligible for a military trial.
  Indeed, the amendment I offered last year to the Military Commissions 
Act would permit this administration to do this without even having to 
reestablish the obvious: that al-Qaida is at war with the United 
States. So for the President, Mr. Holder or Mr. Brennan to persist in 
arguing that the law or past precedent somehow justified their 
treatment of Abdulmutallab as an ordinary criminal is wrong.
  But Mr. Brennan has gone further than simply confusing the law. He 
has confused reality. In his recent op-ed in USA Today, he defiantly 
declares the administration made the right call on Abdulmutallab and 
that providing captured terrorists with civilian due process, civilian 
lawyers, and the right to remain silent has no negative impact on our 
ability to gather intelligence.
  I dispute that. That is totally illogical. I don't know how many 
cases Mr. Brennan has prosecuted--not many. I prosecuted thousands; 
supervised them and tried them myself--but there is no doubt that you 
lose intelligence when you appoint a person a lawyer and tell them they 
have a right to remain silent. We are virtually the only country in the 
world that does this. It is not considered a constitutional right. It 
is something the court thought would be a good idea, to keep people 
from being abused by police, and so they set up this rule. It is not 
part of fundamental due process. It wasn't even a rule until 50 years 
ago. We never did that. Canada doesn't do it, France doesn't, Germany 
or Italy. We don't have to give them.
  Mr. Brennan says: ``There is little difference between military and 
civilian custody other than an interrogator with a uniform.'' Not so. 
He argues: ``The suspect gets access to a lawyer and the interrogation 
rules are nearly identical.'' That is absolutely false.
  I have been disappointed at the response the Attorney General has 
given to members of our committee, but when the National Security 
Adviser says something such as that--and I confronted him with it in a 
hearing earlier and he persists in making that kind of statement.
  Mr. Brennan has also said previously that ``there are no downsides or 
upsides in particular cases'' and that because we are a nation of laws, 
criminal courts are the preferred venue. Not so--at least that this is 
a preferred venue. We are a nation of laws, and our laws and 
international law allow for the trial of unlawful combatants in 
military commissions. Attorney General Holder admitted that himself in 
a hearing when answering questions asked of him. I said: Mr. Holder, 
the decision to try these people in civilian court rather than military 
commissions is a policy decision, and basically

[[Page S555]]

he said yes to that. It is not required under our law.
  I can tell you--and not with speculation and it is not a theory but a 
fact--that criminal defendants will routinely stop talking and 
providing information when you give them Miranda and appoint them a 
lawyer. The first thing a lawyer is going to do, even in a case such as 
this, is to advise his client not to make any more statements, if he 
has made any. If he says he wants a lawyer, the questioning must stop 
until one is produced. That is what it means to try a person in 
civilian court. It is different.
  You better believe terrorists who are trained to exploit our system 
will do everything in their power to use that system against us, if we 
let them. When Khalid Shaikh Mohammed--mastermind of the 9/11 attack, 
that so horrible day--was captured, he immediately asked for a lawyer. 
He already knew. But he wasn't given one. Instead, he was interrogated 
at length over a period of time as a military combatant. These 
interrogations revealed critically important information that helped 
foil other attacks that could have been levied against the United 
States.
  When Abdulmutallab was questioned, he was questioned for only 50 
minutes before being given a lawyer, and then he stopped talking. So we 
are told: Weeks later, he started talking again. Don't worry, Jeff. 
Quit complaining. Five weeks later, now he has started talking. We got 
his daddy to come in, and maybe we can do a plea bargain with him or 
something and he will talk.
  Well, you can do that if they are in military custody. That is not 
only done in civilian custody, No. 1. No. 2, what did they have to 
promise him to get him to provide information? Did they promise him 
leniency? Did his lawyer demand it? Did his lawyer demand a written 
plea agreement before he allowed him to speak?
  That is what will happen in most cases. I don't know what happened in 
this one. But we are not talking about just this case. We are talking 
about the policy of whether it is better to treat somebody as an 
unlawful combatant if they come from al-Qaida or in a civilian trial in 
America. Fresh, immediate intelligence is awfully valuable many times, 
and it can grow stale very quickly, although other intelligence can be 
extremely important, even if the person you have captured waits 6 
months to give it to you. You just never know. But the truth is, the 
more intelligence, the sooner obtained, enhances our national security. 
Things that are unnecessary, that are not required by law, that delay 
the obtaining of intelligence and delay the amount you get is damaging 
to our national security.
  So that is the policy question we are dealing with--this decision to 
put vitally important intelligence at great jeopardy. Nevertheless, Mr. 
Brennan insists that military interrogations are the same as those 
provided to civilians. But when a civilian asks that the interrogation 
stop, it must stop at that moment. This is not true in the military 
situation.
  Well, let me back up a little bit. A person apprehended on the 
battlefield, a prisoner of war, who is a lawful combatant, wearing a 
uniform, fighting the United States in a lawful manner, according to 
the laws of war, cannot be excessively interrogated, cannot be tried 
for any crime but can be held until the war is over, whether it is 1 
year or 10 years. That is the law of the world and the law of the 
United States. But if they are unlawful combatants, as these malicious, 
devious, murdering al-Qaida thugs are--they do not wear a uniform, they 
do not comply with the laws of war, they attack innocent civilians 
deliberately to spread terror--they are in violation of the rules of 
war.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. I thank the Chair, and I ask unanimous consent for 3 
additional minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  What would have happened to Abdulmutallab if he were handled by the 
military? He would have been interrogated by people in short order who 
were intimately familiar with the situation that was developing in 
Yemen. They would have been able to ask him questions without a lawyer 
being present. He did not have to have a lawyer. They could use the 
legal interrogation techniques that Congress has passed into law and 
directed the military to use in these kinds of interrogations--and no 
more--or they would be in violation of the law. He would not be abused. 
Then eventually he would be tried, or not tried, as the military and 
the national security would dictate.
  But if you arrest him and put him in a civil situation, he 
immediately has to be advised of his rights, immediately given a 
lawyer. He is then entitled to a speedy trial. He is entitled to demand 
discovery and information from the government about how they caught him 
and who provided the information. He could demand to go to trial and be 
able to speak out and use it as a forum to promote their agenda. There 
is a huge difference between the two.
  For Mr. Brennan to act as if there is no difference, and for my 
colleagues to say President Bush tried these people, before we ever got 
the system up and running in a healthy way, is disingenuous. It is not 
accurate. It is not correct in a rational discussion of how this would 
be.
  This is what President Obama said in an important ``60 Minutes'' 
interview about these terrorists:

       Now, do these folks deserve Miranda rights? Do they deserve 
     to be treated like a shoplifter down the block? Of course 
     not.

  Amen, Mr. President. Of course they are not entitled to Miranda 
rights. Of course they are not entitled to be treated like a shoplifter 
down the block. But when they decided to try Abdulmutallab in a 
civilian court, that is exactly what they decided to do--to treat him 
with all the rights and rules an American citizen would have who is 
charged with a shoplifting offense.
  We raised this issue last fall, back in September, with the Director 
of the FBI, about Miranda. I asked him:

       So, if you're going to try terrorists in Federal court, 
     they should be Mirandized, right?
       If you want the statement, a particular statement at a 
     particular time admissible in the Federal court, generally 
     that--that has to be Mirandized.

  In fact, you can't even ask him questions lawfully until you provide 
him the Miranda rights. If he says anything that is of value to the 
prosecution, it is dismissible.
  Then what about this dramatic event in the Judiciary Committee? 
Senator Lindsay Graham, a very experienced Senator who still remains a 
JAG officer in the Air Force--after many years he still goes off to do 
his duty 2 weeks a year--he asked this dramatic question to the 
Attorney General.

       If we captured bin Laden tomorrow, would he be entitled to 
     Miranda warnings at the moment of capture?

  Attorney General Holder:

       Again, I'm not--that depends.

  He never gave a full answer.
  I thank the Chair and believe we have to get our heads straight on 
this matter and cease to provide the kind of due process rights that 
American citizens get and provide the kind of legitimate due process 
rights that a military commission provides--and they are great. But 
they are not the same. Understand, we are at war, and it creates a 
different dynamic in how the cases are processed.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. Will the Senator withhold?
  Mr. SESSIONS. Madam President, I withhold--noting the absence of a 
quorum request.
  The PRESIDING OFFICER. The Senator from Alaska is recognized.

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