[Congressional Record Volume 157, Number 153 (Thursday, October 13, 2011)]
[Senate]
[Pages S6484-S6489]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                         Terrorist Prosecution

  Mr. DURBIN. Mr. President, my Republican colleagues have frequently 
come to the Senate floor to criticize President Obama for his handling 
of terrorism cases. They have argued regularly and consistently that 
terrorism suspects should never be interrogated by the FBI and should 
not be prosecuted in America's criminal courts but, instead, they 
argue, they should only be held in military detention and prosecuted in 
military commissions.
  Today, I have noticed no one on the Republican side has come to the 
Senate floor to make those arguments. Why not? It may be because 
yesterday Umar Farouk Abdulmutallab pled guilty in Federal court to 
trying to explode a bomb in his underwear on a flight to Detroit on 
Christmas Day 2009. Mr. Abdulmutallab, who will be sentenced in 
January, is expected to serve a life sentence.
  I commend the men and women at the Justice Department and the FBI for 
their work on this case. America is a safer country today thanks to 
them.
  My colleagues on the other side were very critical of the FBI's 
decision to give Miranda warnings to Abdulmutallab. Let me quote 
Senator McConnell, the minority leader. This is what he said on the 
floor of the Senate:

       He was given a 50-minute interrogation.

  He was referring to Abdulmutallab.
  The Senator went on to say:

       Probably Larry King has interrogated people longer and 
     better than that. After which he was assigned a lawyer who 
     told him to shut up.

  That is an interesting statement, but here are the facts. Experienced 
counterterrorism agents from the FBI interrogated Abdulmutallab when he 
arrived in Detroit. According to the Justice Department, during this 
initial interrogation, the FBI ``obtained intelligence that proved 
useful in the fight against al Quida.'' After this initial 
interrogation, Abdulmutallab refused to cooperate further with the FBI. 
Only then, after Abdulmutallab stopped talking, did the FBI give him a 
Miranda warning.
  What the FBI did in this case was nothing new. During the Bush 
administration, the FBI consistently gave Miranda warnings to 
terrorists detained in the United States.
  Here is what Attorney General Holder said:

       Across many administrations, both before and after 9/11, 
     the consistent, well-known, lawful, and publicly-stated 
     policy of the FBI has been to provide Miranda warnings prior 
     to any custodial interrogation conducted inside the United 
     States.

  In fact, under the Bush administration, they adopted new policies for 
the FBI that say that ``within the United States, Miranda warnings are 
required to be given prior to custodial interviews.''
  Let's take one example from the Bush administration: Richard Reid, 
also known as the Shoe Bomber. Reid tried to detonate an explosive in 
his shoe on a flight from Paris to Miami in December 2001. This was 
very similar to the attempted attack by Abdulmutallab, another foreign 
terrorist who also tried to detonate a bomb on a plane. So how does the 
Bush administration's handling of the Shoe Bomber compare with the 
Obama administration's handling of the Underwear Bomber? The Bush 
administration detained and charged Richard Reid as a criminal. They 
gave Reid a Miranda warning within 5 minutes of being removed from the 
airplane, and they reminded him of his Miranda rights four times within 
the first 48 hours he was detained.
  Later, Abdulmutallab began talking again to FBI interrogators and 
providing valuable intelligence. FBI Director Robert Mueller, for whom 
I have the highest respect, described it this way:

       Over a period of time, we have been successful in obtaining 
     intelligence, not just on day one, but on day two, day three, 
     day four, and day five, down the road.

  Now, how did that happen? How did the FBI get even more information 
from the suspect after they gave the Miranda warning? The Obama 
administration convinced Abdulmutallab's family to come to the United 
States, and his family persuaded him to start talking to the FBI. That 
is a very different approach than we have heard in previous 
administrations. Sometimes when a detainee refused to talk, in the Bush 
administration, in some isolated cases, there were extreme techniques 
used to try to get information from him, such as waterboarding. But 
real life isn't the TV show ``24.'' On TV, when Jack Bauer tortures 
somebody, the suspect immediately admits everything he knows. Here is 
what we learned during the previous administration: In real life, when 
people are tortured, they lie. They will lie and say anything to make 
the pain stop. Oftentimes they provide false information, not valuable 
intelligence.
  Richard Clarke was the senior counterterrorism adviser to President 
Clinton and President George W. Bush. Here is what he said about the 
Obama administration's approach:

       The FBI is good at getting people to talk. They have been 
     much more successful than the previous attempts of torturing 
     people and trying to convince them to give information that 
     way.

  Many of my colleagues on the other side of the aisle argue that 
Abdulmutallab should have been held in military detention as an enemy 
combatant, but terrorists arrested in the United States have always 
been held under our criminal laws.
  Here is what Attorney General Holder said:

       Since the September 11, 2011 attacks, the practice of the 
     U.S. government, followed by prior and current 
     administrations without a single exception, has been to 
     arrest and detain under Federal criminal law all terrorist 
     suspects who are apprehended inside the United States.

  Many of my Republican colleagues also argue that terrorists such as 
Umar Abdulmutallab should be tried in military commissions because 
Federal courts are not well-suited to prosecuting terrorists.
  That argument is simply wrong. Look at the facts. Since 9/11, more 
than 200 terrorists have been successfully prosecuted and convicted in 
our Federal courts. Here are just a few of the terrorists who have been 
convicted in Federal courts and are serving long prison sentences: 
Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing; 
Omar Abdel Rahman, the so-called Blind Sheik; the 20th 9/11 hijacker, 
Zacarias Moussaoui; Richard Reid, the Shoe Bomber; Ted Kaczynski, the 
Unabomber; Terry Nichols, the Oklahoma City coconspirator; and now 
Abdul Abdulmutallab. Compare this with the track record of military 
commissions. Since 9/11, only 4 individuals have been convicted by 
military commissions--more than 200 in the courts, 4 in military 
commissions--and 2 of those individuals spent less than 1 year in 
prison, having been found guilty by a military commission, and are now 
living freely in their home countries of Australia and Yemen.
  GEN Colin Powell, the former head of the Joint Chiefs of Staff and 
Secretary of State under President Bush, supports prosecuting 
terrorists in Federal courts. Here is what he said about military 
commissions. This is from General Powell:

       The suggestion that somehow a military commission is the 
     way to go isn't borne out by the history of the military 
     commissions.

  Many military commissions, when it comes to terrorism cases, are an 
unproven venue, unlike Federal courts.
  Former Bush administration Justice Department officials James Comey 
and Jack Goldsmith also support prosecuting terrorists in Federal 
court. Here is what they said:

       There is great uncertainty about the commissions' validity. 
     This uncertainty has led to many legal challenges that will 
     continue indefinitely. . . . By contrast, there is no 
     question about the legitimacy of U.S. Federal courts to 
     incapacitate terrorists.

  I say to my colleagues, after a steady parade of speeches on this 
Senate floor by the Senate Republican leader and others about how we 
cannot trust our Federal court system to prosecute terrorists, how we 
should take care to never let the FBI do this important job, the facts 
speak otherwise.
  In Detroit, in the Federal court, we should give credit where it is 
due. The

[[Page S6489]]

FBI did its job. Our courts did their job. The Department of Justice 
prosecutors did their job. Abdulmutallab pled guilty. He pled guilty 
because the evidence was overwhelmingly against him. He was convicted 
openly in the courts of America, which is an important message to send 
to the rest of the world, and he will pay a heavy price--a life 
sentence--for his terrible attempt to down an aircraft in the United 
States. That prosecution and that confession were obtained in our court 
system.
  To argue that military commissions are the only way to go and that 
using the FBI and Department of Justice and our article III courts as a 
venue for terrorism is wrong is not proven by the facts, the evidence, 
or the most recent information coming forward. I would hope some of my 
colleagues who are now holding up the Defense authorization bill on 
this issue will at least be hesitant to argue their case now that the 
Abdulmutallab prosecution has been successfully completed. Over 200 
terrorists have been successfully prosecuted in America's courts.
  My message to them and I think the message of America to every 
President is, you use the court, you use the agency you think will be 
most effective in protecting America. Congress should not tie the hands 
of any President when it comes to this important prosecution. This 
success that we have seen in Detroit is evidence that if we give to a 
President--whether it is a Republican or Democratic President--the 
tools to prosecute those accused of terrorism, the President can use 
them wisely, sometimes in military commissions but more often in our 
court system, an open system that says to the world we can bring the 
suspected terrorist to justice and do it in a fashion consistent with 
American values.

  I hope all of my colleagues, Democrats and Republicans, will join me 
in commending the Justice Department and FBI for their success in 
bringing Abdulmutallab to justice, and I sincerely hope this case will 
cause some Members of the body to reconsider their opposition to 
handling terrorism in the criminal justice system.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I ask unanimous consent to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.