[Congressional Record Volume 157, Number 41 (Thursday, March 17, 2011)]
[Senate]
[Page S1834]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. COLLINS (for herself and Mr. Lieberman):
  S. 614. 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 Court; to 
the Committee on the Judiciary.
  Ms. COLLINS. Mr. President, I rise today to introduce with Senator 
Lieberman the Securing Terrorist Intelligence Act. Last Congress, the 
Senate Homeland Security and Governmental Affairs Committee heard 
testimony from the three top U.S. intelligence officials about the 
errors the Federal Government made in handling the unsuccessful 2009 
Christmas Day terrorist plot. We dodged a bullet that day when Umar 
Farouk Abdulmutallab, a Nigerian-born terrorist, failed to detonate a 
bomb on Northwest flight 253 in the skies above Detroit.
  While critical information was not shared prior to Abdulmatallab 
boarding that plane, a significant error also was committed by U.S. 
officials after that foreign terrorist had already been detained 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 the top intelligence 
officials at the committee's hearing held in response to this failed 
attack.
  I was stunned to learn that the decision had been made to place this 
captured terrorist into the U.S. civilian criminal court system after 
just 50 minutes of interrogation--and without any consultation with the 
Director of National Intelligence, the Director of the National 
Counterterrorism Center, or the Secretary Homeland Security. 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 captured 
terrorists can provide critical intelligence and save American lives, 
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 what happened in the case of Abdulmutallab. He had 
provided some valuable information to law enforcement officials 
immediately after his capture, and we likely 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. 
Unfortunately, once he was read his Miranda rights and given a lawyer 
at our expense, he was advised to cease answering questions, and that 
is exactly what he did.
  That poor decision-making may well have prevented us from finding out 
more of the plot's organizers, planners, financiers, logistics support, 
and other key players. In addition, we may have found out more about 
future plots originating in Yemen targeting American citizens--possibly 
even the thwarted October 2010 printer cartridge attacks. Good 
intelligence is critical to our ability to stop terrorist plots before 
they are executed. We know that lawful interrogations of terrorist 
suspects can provide valuable intelligence. Deciding to charge 
Abdulmutallab in the civilian criminal system without even consulting 
three of our nation's top intelligence officials simply defies common 
sense.
  It has been over a year since the arrest, and we are all very 
thankful that there has not been a successful terrorist attack in 
America since then. We all know, however, the threat persists. That is 
why we must redouble our efforts and ensure that when the next 
terrorist is captured, proper action is taken so we do not miss another 
opportunity to gain valuable intelligence that could save American 
lives.
  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 reintroducing 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 area.
  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 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 among 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 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 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 security threat 
facing our Nation--terrorism.
  I encourage the Senate to act quickly on this important legislation. 
The changes proposed are modest. They make common sense. But the 
consequences of a failure to act could be a matter of life and death.
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