Consultation vital in foreign terrorist cases

Posted Feb. 08, 2010, at 6:55 p.m.
This artwork by Paul Tong relates to how Umar Farouk Abdulmutallab slipped through security.
Paul Tong
This artwork by Paul Tong relates to how Umar Farouk Abdulmutallab slipped through security.

As has been famously said, “Everyone is entitled to his own opinion but not his own facts.”

That is why I was disappointed to read Thursday’s BDN editorial reiterating the Obama administration’s attempt to explain why the Department of Justice rushed to treat the Christmas Day bomber as a common criminal, rather than as a foreign terrorist tied to al-Qaida in Yemen.

Umar Farouk Abdulmutallab attempted to blow up an airplane over Detroit. Had he succeeded in this terrorist attack, nearly 300 people on the plane would have been murdered, and more would have been killed on the ground.

The fact is, Abdulmutallab was questioned by FBI investigators for less than one hour before the Justice Department advised him that he could have a lawyer and refuse to answer.

The fact is, while Abdulmutallab might have “talked” to federal authorities and medical personnel immediately after the incident, talking with Customs agents and doctors is very different from being interrogated by trained intelligence investigators.

The fact is, once Abdulmutallab was provided a lawyer and told he could remain silent, he stopped providing authorities with critical information. He remained silent for nearly six weeks. We will never know how much valuable, actionable intelligence was lost during that time.

During a Jan. 20 hearing of the Senate Homeland Security Committee, I asked the director of national intelligence, the secretary of homeland security, and the National Counterterrorism Center director whether they were consulted before the Justice Department made the unilateral decision to charge Abdulmutallab. All testified that they were not consulted. The Director of National Intelligence added that a High Value Detainee Interrogation Group, which the Obama administration announced last August, should have been brought in to question Abdulmutallab.

Why is it important that our law enforcement agencies consult with our intelligence community when a foreign terrorist is captured before deciding to read him his Miranda rights? Because intelligence is a perishable commodity. We know that terrorists change their tactics, locations, and means of communication frequently. We know that captured terrorists are ordered to stay silent for as long as possible so their cohorts can cover their tracks. Does anyone truly believe that terrorists in Yemen sat quietly, twiddling their thumbs, while a captured terrorist decided whether to talk to American authorities?

Our nation is at war with terrorists, and we must use every tool available to detect, deter and disrupt their activities. Civilian criminal prosecution of captured foreign terrorists is not our only available option. U.S. laws, and the laws of war, provide other lawful methods for detaining, questioning, and, where appropriate, charging foreign terrorists who have taken up arms against our nation. In fact, President Barack Obama worked with the Congress last year to improve the military tribunal system — making that option even more effective.

What troubles me is that the Obama administration refuses to acknowledge that mistakes were made in the case of Abdulmutallab. This stubborn refusal increases the likelihood that the mistakes will be repeated.

To help prevent this from happening and to ensure that our nation’s senior intelligence officials are consulted before the attorney general makes a decision to Mirandize future foreign terrorists or charge them in civilian criminal court, I introduced a bill that would require this crucial consultation.

The bill would require the attorney general to consult with the directors of national intelligence and the National Counterterrorism Center, the secretary of homeland security and the secretary of defense, before making these decisions. Intelligence and security officials are in the best position to know what threats we face from terrorists and to assess the need to gather more intelligence quickly. My bipartisan legislation would not preclude a decision to charge a foreign terrorist in our civilian criminal justice system but requires a careful, informed consideration of all alternatives.

The administration could implement this requirement today. The president could acknowledge that mistakes were made on Dec. 26 and work with Congress to make the nation safer.

Our nation’s top intelligence officials recently testified before Congress that it is “certain” that al-Qaida is planning to attempt another attack against the U.S. within the next six months. This should not come as a surprise. As a result of intelligence that our nation has analyzed, many terrorist plots have been thwarted since 9-11. That is why real-time intelligence is so critical, and it is precisely why this administration must be honest about its mistakes, learn from them and not allow the mistakes of Christmas Day to be repeated.

Susan Collins is the ranking Republican on the Senate Homeland Security and Governmental Affairs Committee.

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