The War Against Militant Islamists | 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
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 innocent civilians 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equipment, we cannot ask our intelligence and law-enforcement personnel to perform their missions with inadequate or outdated capabilities.
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 work of the CPD helps enhance public understanding of the threat from Islamist terrorism – something that is critical if we are to maintain public vigilance and ultimately prevail in the war against the terrorists.
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. The court’s review is intended to protect Americans within the United States from unwarranted surveillance. Congress 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, virtually all calls – no matter where in the world they originate or end – are routed through a U.S. telecommunications network. That means U.S. agents would be required under the 1978 law to obtain a warrant even to monitor calls between, for example, a Taliban chief in Pakistan and an al Qaeda leader in Afghanistan. This requirement is obviously impractical, and all but ensures that most calls made by suspected terrorists overseas cannot be monitored. 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 new 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.
Reports of suspicious activity provide law enforcement with the intelligence it needs 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 in 2006 led to the removal of six imams from a US Airways flight at Minneapolis-St. Paul International Airport for suspicious activity. 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.
On August 3, 2007, President Bush signed into law the Improving America's Security Act, which included language similar to that proposed in my bill.
In 2002, the United States established a facility at Guantanamo Bay, Cuba where suspected al Qaeda and Taliban terrorists could be detained.
Prisoners held at Guantanamo Bay have access to a lawyer and are afforded an annual review by a special commission which determines whether or not they continue 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. nevertheless maintains a policy of applying Geneva standards. Moreover, the U.S. has allowed representatives of the International Committee of the Red Cross to interview detainees there.
Recent news accounts have confirmed that the prisoners detained at Guantanamo Bay are dangerous enemy combatants who pose a continuing threat to the United States and its allies.
- At least 61 detainees who had been released were found to have rejoined the war against the United States; about 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 Military Commissions Act, which I supported and which President Bush signed into law on October 17, 2006, set procedures and standards for the fair treatment and trial of unlawful enemy combatants captured in the war against the terrorists. The law meets the requirements of the Supreme Court’s Hamdan decision and fulfills our country’s obligations under Common Article 3 of the Geneva Convention.
The Military Commissions Act 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 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 further stipulates that no court shall have jurisdiction to consider an application for a writ of habeas corpus filed on behalf of a foreign national held as a war prisoner. In making that stipulation, Congress relied on the fact that, over the 800-year history of the writ, no court had ever construed it to extend to foreigners captured during a war.
Nevertheless, the U.S. Supreme Court held in 2008, in the case of Boumediene v. Bush, that al Qaeda terrorists and members of the Taliban who are detained at Guantanamo Bay have a constitutional right to bring habeas suits to challenge their detention.
Lower courts have since held that the parts of the Military Commissions Act that bar conditions-of-confinement lawsuits by the Guantanamo detainees still stand, and have also held that courts lack the authority to release Guantanamo detainees into the United States. It remains to be seen whether the Supreme Court will also extend those rights and privileges to the Guantanamo detainees.
