Enhancing Public Understanding of 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 | Detaining Enemy Combatants at Guantanamo Bay | Establishing Standards for the Fair Treatment and Trial of Detainees
Militant Islamists perpetrated the September 11 attacks upon the United States and have been persistent in their efforts to take American lives and those of innocent civilians throughout the world. We are at war with this fanatical, ruthless enemy.
Winning the war against the extremists demands that the United States continuously adapt its capabilities – just as the terrorists do. That means giving law enforcement and intelligence personnel all the tools they need to do their jobs. Just as we would not send our military men and women into battle without the best equipment, we cannot ask the intelligence and law-enforcement communities to perform their missions with inadequate or outdated capabilities.
Since September 11, Congress has approved a variety of measures – including the USA PATRIOT Act and an update to the Foreign Intelligence Surveillance Act – to enhance the ability of law enforcement and national security agencies to prevent additional attacks on U.S. soil and save lives. Armed with these and other tools, they have been largely successful. The FBI foiled an attack on Fort Dix in 2007 that had been planned by five men described by federal authorities as “radical Islamists.” More recently, federal agents uncovered and thwarted a plot by Najibullah Zazi to bomb the New York City subway system. Citizens have proven vigilant as well: passengers of Northwest Airlines flight 253 helped stop Umar Farouk Abdulmutallab from detonating an explosive and taking down that plane on Christmas Day 2009.
Yet, the chilling words of the terrorists remind us that we must never become complacent about the threat they pose. As they put it, we need to be lucky all the time to prevent attacks. They need to be lucky just once to rain death and destruction on innocents. The deadly shooting rampage carried out by Nidal Malik Hasan at Fort Hood last fall is evidence of terrorists’ ongoing efforts to attack whenever and wherever they can.
Senator Joe Lieberman and I serve as honorary cochairmen of the Committee on the Present Danger (CPD), a bipartisan education and advocacy group that works to increase public awareness about Islamist extremism and the terrorism it is spawning. It 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 regions of the world where terrorists have gained a foothold. The CPD works with groups and individuals interested in resisting tyranny, regardless of political orientation.
The Foreign Intelligence Surveillance Act (FISA), which became law in 1978, established judicial procedures for the surveillance of foreign powers and their agents inside the United States. Specifically, it created a new Foreign Intelligence Surveillance Court to issue warrants for domestic surveillance of electronic communications. It was never intended to apply to surveillance of persons overseas.
The 1978 FISA law worked well for the communications technology that existed at the time. Today, however, virtually all calls – no matter where in the world they originate or end – are routed through a U.S. telecommunications network. That means FISA, as originally written, would require U.S. agents to obtain a warrant, even to monitor calls between, for example, a Taliban chief in Pakistan and an al Qaeda leader in Afghanistan. It is a requirement that is obviously impractical, and all but ensures that most calls made by suspected terrorists overseas could not be monitored today. The former 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 United States has the ability to intercept the communications of terrorists in a timely way – before they can do harm to our nation – bipartisan majorities in the House and Senate approved the FISA Amendments Act of 2008. The law makes clear that law enforcement and intelligence authorities can intercept the communications of terrorists abroad.
The FISA modernization bill also encourages telecommunications companies to cooperate with our intelligence agencies, shielding them from litigation both to prevent highly damaging leaks about terrorist surveillance programs and to ensure that U.S. agents receive full cooperation from the telecommunications companies they rely on for access to terrorists’ communications.
The USA PATRIOT Act gives law enforcement and intelligence officials additional, important new authorities. It improves the ability of law enforcement agencies to search telephone, e-mail, medical, financial, and other records that are relevant to terrorism and foreign intelligence investigations; expands the authority of the Treasury Secretary to regulate financial transactions, particularly those involving foreign individuals and entities; and broadens the discretion of law enforcement and immigration authorities to detain and deport immigrants suspected of terrorism-related acts. We know that these new authorities have played an important role in disrupting terrorism plots and bringing terrorists to justice.
I supported the FISA modernization bill and the PATRIOT Act, and will support renewal of expiring provisions of the PATRIOT Act this year.
Reporting suspicious activity to law enforcement authorities helps them prevent terrorist attacks. For that reason, it is important to encourage vigilance among the American people.
Action taken by vigilant passengers and airline employees in 2006 led to the removal of six imams from a US Airways flight at Minneapolis-St. Paul International Airport after they had acted suspiciously. US Airways conducted an internal investigation of the incident and found that airline employees were justified in removing the imams from the flight. (The U.S. Department of Transportation conducted its own investigation and, in February 2009, found that the airline engaged in no discriminatory behavior.) Nonetheless, civil actions were filed on behalf of those imams against the airline.
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.
The Improving America's Security Act, which included language similar to that proposed in my bill, was signed into law by then-President Bush on August 3, 2007.
The first and foremost responsibility of our federal government is to provide for the nation’s security. That means protecting the American homeland from attack by organized and lone-wolf terrorists as much as hostile nations.
The United States has captured many terrorists on foreign battlefields and currently holds them in a detention facility in Guantanamo Bay, Cuba. Although these terrorists are not entitled to the protections of the Geneva Convention – because they are not parties to it – the U.S. nevertheless maintains a policy of applying Geneva standards and according detainees limited rights.
For example, representatives of the International Committee of the Red Cross have been allowed access to the detainees at Guantanamo Bay and have been able to interview them. Prisoners held at Guantanamo have access to lawyers and are afforded annual reviews by a special commission which determines whether or not they continue to pose a threat to the United States. The fact is, they are not held arbitrarily; they are held because they are enemy combatants who support acts of terrorism against the United States and its allies.
Indeed, recent news reports confirm the danger that prisoners who had been detained at Guantanamo Bay, but were released, continue to pose to the United States and its allies:
- At least 74 of the detainees who had been released to date were found to have rejoined the war against the United States; more than a dozen were subsequently killed in battle by U.S. forces and others were recaptured.
- Two detainees who had been released later became regional commanders for the Taliban. One attacked U.S. and allied forces in Afghanistan after his release and killed three Afghan soldiers.
- Another former detainee killed an Afghan judge.
- One subsequently led a terrorist attack on a hotel in Pakistan, as well as a kidnapping raid that resulted in the death of a Chinese civilian. This former detainee told Pakistani journalists that he plans to “fight America and its allies until the very end.”
- Another former detainee has become the second in command of al Qaeda in Yemen, the group that claimed responsibility for organizing the attempted bombing of Northwest Airlines flight 253 on December 25, 2009.
Releasing additional Guantanamo prisoners would pose a significant risk to the United States. Nevertheless, in one of the first acts of his presidency, President Obama signed an executive order requiring the closure of the Guantanamo Bay detention facility within one year. According to the order, all detainees remaining at the facility at the time of closure “shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility.” The administration is considering trying some in civilian court, perhaps in New York City, bestowing on them all the protections afforded under the Constitution to American citizens, and detaining others in an Illinois prison. It’s not clear how any of these actions would make our country safer. An overwhelming majority of Americans – 59 percent, according to a Quinnipiac poll – oppose the plan.
I oppose the closure of Guantanamo Bay, as well as the trial of detainees in civilian criminal courts.
The Military Commissions Act of 2006, which I supported, established procedures and standards for the fair treatment and trial of unlawful enemy combatants captured in the war against the terrorists.
The law met the requirements of the Supreme Court’s Hamdan decision and fulfilled our country’s obligations under Common Article 3 of the Geneva Convention. It gives terrorist detainees the right 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, a military judge is required, to the extent possible, to provide the detainee with an appropriate substitute that conveys relevant information, while avoiding the disclosure of classified information. The law also protects sources and methods of gathering confidential information.
On October 28, 2009, President Obama signed legislation that amends the Military Commissions Act, but reaffirms the core principle that military commissions are an appropriate and fair forum for the trial of detainees.
Nevertheless, President Obama has made it clear that, despite the existence of a fair, lawful, and secure military commission system, he would prefer to use our federal courts to prosecute terrorists. For instance, his administration announced on November 13, 2009, that it would prosecute Khalid Shaikh Mohammed (and four other 9/11 co-conspirators) in federal court, despite the fact that Mohammed had already asked to plead guilty before a military commission and be executed. The administration’s plan to try the terrorists in federal court, perhaps in New York City, prompted objections from both of New York’s Senators, the governor of New York, and the mayor of New York City, causing the President to reconsider that venue.
The Obama administration also charged Umar Farouk Abdulmutallab, the Nigerian who attempted to blow up Northwest Airlines flight 253 on December 25, 2009, in federal court. This decision, which was accompanied by reading Abdulmutallab Miranda warnings and providing him with a lawyer, was reportedly made after interrogating the terrorist for less than one hour.
I believe that President Obama’s approach makes our country less secure. I oppose giving terrorists the benefit of Miranda rights, believing that our paramount concern should be to ensure that law enforcement and intelligence officers are able to interrogate them effectively. I also believe we should be less concerned about where terrorists are tried and more concerned about whether we are able to obtain critical information and intelligence in order to prevent future attacks on the United States.
