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equipment, we cannot ask the intelligence and law-enforcement communities to perform their missions with inadequate or outdated capabilities.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 device and taking down that plane on Christmas Day 2009, and an alert street vendor alerted New York City police to the vehicle Faisal Shazhad parked in Times Square during the failed bombing attack on May 1, 2010.
Nevertheless, the chilling words of the terrorists remind us that we must never become complacent about the threat they pose. We need to be lucky all the time to prevent attacks; the terrorists 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 on November 5, 2009 is evidence of terrorists’ ongoing efforts to attack whenever and wherever they can.
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 clarifies that law enforcement and intelligence authorities can intercept the communications of terrorists abroad.
The FISA modernization law 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. In addition, I voted for legislation in February of last year to extend provisions of the PATRIOT ACT, and President Obama signed that measure into law on February 25, 2011.
President Obama’s choice to serve as Director of National Intelligence, Lt. General James R. Clapper, Jr., recently called for the extension of FISA surveillance powers as well, saying: “Intelligence collection under FISA produces crucial intelligence that is vital to protect the nation against international terrorism and other threats.” And he went on, “We’re always considering whether there are changes that could be made to improve the law, but our first priority is reauthorization of these authorities in their current form.”
He’s right. I intend to support the extension of FISA authorities.
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 who 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 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. Some 171 detainees are held at Guantanamo. 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, news reports confirm that prisoners who had been detained at Guantanamo Bay, but were released, continue to endanger to the United States and its allies:
- Former Defense Secretary Robert Gates estimated that 25 percent of the detainees released from Guantanamo returned to the battlefield: 81 former detainees, and possibly 69 others, have rejoined terrorist movements since the facility opened in 2002.
- NATO and Afghan forces killed a former Guantanamo detainee in 2011 after he had returned to Afghanistan to become a key ally of al Qaeda.
- Released detainees have been associated with attacks on the United States, including a rocket attack against a U.S. military base in Afghanistan in 2007, an attack on U.S. forces in Kandahar, and the failed Christmas Day attack on Northwest Airlines Flight 253 in 2009 that would have killed at least 300 people if it had been successful.
- Released detainees have been implicated in the kidnapping of two Chinese engineers, the bombing of gas lines in Russia, and the orchestrating of suicide bombings, including those in Mosul and Rwalpindi, and at the Danish Embassy in Pakistan. One such bombing killed the Pakistan Army Surgeon General in 2008.
- Former detainees have gone on to become leaders in various terrorism cells, including one who became the second in command of al Qaeda in Yemen, which claimed responsibility for the Northwest Airlines attack in 2009. Several other released detainees have become high-ranking members of the Taliban, led terrorist cells in Turkey, recruited Moroccans to fight in the al Qaeda forces in Iraq, and planned attacks on Israel.
Despite the risks, President Obama, in one of the first acts of his presidency, signed an executive order requiring the closure of the Guantanamo Bay detention facility within one year. An overwhelming majority of Americans – 60 percent, according to a CNN poll – opposed the plan.
I oppose the closure of Guantanamo Bay, as well as the trial of detainees in civilian criminal courts. But most of all, 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 for information to prevent further attacks on American citizens.
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. And that is a risky proposition because civilian courts are ill-equipped to deal with enemy combatants. For one thing, the evidentiary standards are different. Moreover, the constitutional protections afforded to American citizens and lawful residents were never meant to be extended to foreign terrorist combatants.
In fact, the first civilian trial of a Guantanamo detainee, Ahmed Khalfan Ghailani, ended in acquittal of 284 of the 285 charges lodged against Ghailani for his role in the 1998 bombings of the U.S. embassies in East Africa. The bombings killed 224 people, including 12 Americans. Fortunately, he was convicted of the remaining count – conspiracy to destroy U.S. property and buildings – and was sentenced to life in prison.
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. Abdulmutallab was given Miranda warnings and provided with a lawyer, reportedly after being interrogated for less than an hour. Affording terrorists such rights could deprive law enforcement and intelligence personnel with critical information to prevent further attack. A court recently sentenced Abdulmutallab to life in prison.
I believe that President Obama’s approach would make 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.
