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Terrorism, Technology & Homeland Security Subcommittee


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Terrorism

The War Against Militant Islamists | Enhancing Public Understanding in the War Against Militant Islamists | Providing Our Nation’s Law Enforcement and Intelligence Communities with the Tools They Need | Encouraging the American People to Report Suspicious Activity | Establishing Standards for the Fair Treatment and Trial of Detainees | Guantanamo Bay

The War Against Militant Islamists  

Our nation is currently at war against militant Islamists.  These militant Islamists attacked us on 9/11, and have been persistent in their efforts to take American lives and those of our allies throughout the world. 

Survival and success in this war demand that the United States continuously adapt and improve its capabilities, as terrorists do, to protect Americans from a fanatical, ruthless enemy.  Since 9/11, our law-enforcement and national security agencies have been successful in preventing another terrorist attack on U.S. soil.  But, militant Islamists still pose a very real threat to the American people and our allies, as evidenced by the uncovering of plots to attack Fort Dix, John F. Kennedy International Airport, and sites throughout the United Kingdom. 

Our law-enforcement and intelligence communities have remained devoted to hunting down agents of terror, but the success of their mission is in large part dependent on the ongoing support of the American people.  In the face of the worst attack on America since Pearl Harbor, we must provide the personnel who protect us with the tools they need to do their job.  Just as we would not send our military men and women into battle without the best equipment, we cannot ask our intelligence and law-enforcement personnel to perform their missions with inadequate or outdated capabilities.

Enhancing Public Understanding in the War Against Militant Islamists

To enhance public understanding of the nature of the threat we face in the war against militant Islamists, Senator Joe Lieberman and I serve as honorary cochairmen of a bipartisan education and advocacy group called the Committee on the Present Danger (CPD).  The CPD’s mission is to increase awareness of militant Islamism and the terrorism that it is spawning.  The CPD also counsels against the appeasement of terrorists, advocates policies that seek victory against this menace to freedom, and encourages policies aimed at the development of civil society and democracy in those regions from which the terrorists emanate.  A nonpartisan organization, CPD works with groups and individuals interested in resisting tyranny and terror regardless of political orientation.

Providing Our Nation’s Law Enforcement and Intelligence Communities with the Tools They Need

The Foreign Intelligence Surveillance Act (FISA), which became law in 1978, established judicial procedures for the domestic surveillance of foreign powers and their agents inside the United States.  The bill created a new Foreign Intelligence Surveillance Court with responsibility to issue warrants for electronic surveillance.  Through FISA, Congress sought to protect Americans within the United States from unwarranted surveillance, but never intended to require a court order for surveillance of persons overseas.

The 1978 law worked well for the communications technology that existed at the time.  Today, however, as long as a call is routed through a U.S. telecommunications network – which virtually all calls are these days because of changes in technology – U.S. agents would be required under the 1978 law to obtain a warrant to monitor a call between a Taliban chief in Pakistan and an al Qaeda leader in Afghanistan.  This requirement is highly impractical and all but ensures that the bulk of such calls cannot be monitored.  The Director of National Intelligence (DNI) Mike McConnell put it this way:  “The delays of a court process that requires judicial determinations in advance to gather vital intelligence from foreign targets overseas can in some cases prevent the rapid gathering of intelligence necessary to provide warning of threats to the country.”

To bring the law into the 21st century and ensure that the U.S. has the ability to intercept the communications of terrorists in a timely way – before they can do harm to our nation and our national interests – bipartisan majorities in the House and Senate approved the Protect America Act in 2007 to update FISA and make clear that law enforcement and intelligence authorities could intercept the communications of terrorists abroad.

However, the FISA update was approved only through mid-February of 2008, so Congress had to act again this year to extend the law.  The Senate did so on February 12, voting overwhelmingly – 68 to 29 – to extend it for six years.  House leaders, though, failed to take up the Senate bill before the FISA update expired.  As a result, for a period of about five months, U.S. intelligence agents lacked the authority to effectively monitor the communications of new foreign-terrorist targets, even when those terrorists were located overseas.

Obviously, U.S. intelligence agencies need to be allowed to monitor calls between foreign terrorists, and telecommunications companies should be encouraged to cooperate with our intelligence agencies to collect the information.  With that in mind, the Senate-passed FISA modernization bill would shield these companies from litigation both to prevent highly damaging leaks about terrorist surveillance programs, and ensure that U.S. agents receive full cooperation from the telecommunications companies they rely on for access to these calls.

The House and Senate finally agreed on a FISA modernization bill in June that gives our agents the tools they need to monitor foreign terrorists’ calls and ends the spate of lawsuits against telephone companies that assisted the federal government after the September 11 terrorist attacks.  The new bill passed the House on June 20 by a vote of 293 to 129, cleared the Senate on July 9 by a vote of 69 to 28, and was signed into law the next day, becoming Public Law 110-261.

Encouraging the American People to Report Suspicious Activity

Reports of suspicious activity provide law enforcement with the intelligence they need to identify and respond to potential terrorist threats.  For that reason, encouraging vigilance among the American people is an important step in the government’s efforts to defend our nation from future attack.

Action taken by vigilant passengers and airline employees led to the removal of six imams from a U.S. Airways flight at Minneapolis-St. Paul International Airport for suspicious activity.  U.S. Airways conducted an internal investigation of the incident and found that airline employees were justified in removing the imams from the flight.  Nonetheless, civil actions were filed on behalf of those imams against the airline and against passengers who reported the suspicious activity.

To help ensure that Americans are not penalized for their vigilance, I have taken steps to protect individuals who identify potential threats against transportation systems and their passengers.  I helped write legislation that would retroactively immunize from civil liability any person who reports suspicious activity to law enforcement officials or agents of the transportation system, as well as any officer or agent that acts upon such a report. The legislation also stipulates that any person named as a defendant who is subsequently found to be immune from civil liability would be entitled to recover from the plaintiff all reasonable costs and attorney's fees as allowed by the courts.

On August 3, 2007, the President signed into law the Improving America's Security Act, which included language similar to that offered in my bill.

Establishing Standards for the Fair Treatment and Trial of Detainees

The Military Commissions Act, which President Bush signed into law on October 17, promulgates procedures and standards for the fair treatment and trial of unlawful enemy combatants captured in the war against militant Islamists.  It meets the requirements of the Supreme Court’s ruling in the Hamdan decision, and fulfills our obligations under Common Article 3 of the Geneva Convention.

Under the Military Commissions Act, terrorist detainees are entitled to be present at all proceedings of a military commission (unless the accused engages in conduct that poses a physical threat or disrupts the proceedings).  Detainees are also provided access to all evidence against them, unless disclosure of that evidence would be detrimental to our national security.  If the national security privilege is invoked, the military judge must, to the extent possible, provide the detainee with an appropriate substitute that conveys relevant information, while avoiding the disclosure of classified information.  The legislation also protects sources and methods of gathering confidential information.

The Military Commissions Act also stipulates that no court shall have jurisdiction to consider an application for a writ of habeas corpus filed on behalf of an unlawful enemy combatant in the war on terrorism.  The Constitution does not require that the writ of habeas corpus be extended to alien enemy combatants who have no substantial connection to this country.  To extend the writ to such prisoners would invite abuse of the legal process, undermine the effective interrogation of detainees, and place courts in the role of making what are inherently military judgments about who is or is not an enemy combatant.

Guantanamo Bay

The United States established a detention facility at its naval base in Guantanamo Bay, Cuba in 2002, because it needed a safe and secure location to detain militant Islamists captured in the global war on terrorists.

Each prisoner who is being held at Guantanamo Bay has access to a lawyer and is afforded an annual review by a special commission to determine whether or not he continues to pose a threat to the United States.  Prisoners are not held arbitrarily; they are held because they are enemy combatants who support acts of terrorism against the United States and its allies.  Although they are not entitled to the protections of the Geneva Convention – because they are not parties to it – the U.S. policy is to apply Geneva standards, and U.S. officials have allowed representatives of the International Committee of the Red Cross to interview detainees in Cuba.

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