Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2012--Continued

Floor Speech

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Mr. DURBIN. Madam President, I wish to stand and second the remarks made by the Senator from Maryland, Ms. Mikulski, related to the Ayotte amendment. I think it is important for us to reflect on recent history.

It was last week that Umar Farouk Abdulmutallab pled guilty in Federal court to trying to explode a bomb in his underwear on a flight to Detroit, MI, on Christmas Day, 2009. Mr. Abdulmutallab, who will be sentenced in January, is expected to serve a life sentence. I wish to commend the fine men and women at the Justice Department and the Federal Bureau of Investigation for their extraordinary work on this case. America is safer because the Obama administration chose the right investigative agency, the Federal Bureau of Investigation, as well as our article III court system, to try Mr. Abdulmutallab.

One would never know this from the speeches on the floor and from the amendment which has been offered by the Senator from New Hampshire because the suggestion is, it was a big mistake--a mistake for us to consider trying a terrorist in our criminal courts. She suggests, and others have joined her in this suggestion, that all these cases should be tried before military tribunals, military commissions.

I wish to put on the Record, in support of what Senator Mikulski said earlier, the facts in this case. I can recall when Senator McConnell, the minority leader, came to the floor and spoke in reference to Abdulmutallab:

He was given a 50 minute interrogation, probably Larry King has interrogated people longer and better than that. After which he was assigned a lawyer who told him to shut up.

That was from Senator McConnell.

Unfortunately, as colorful as that depiction of the facts might have been, it just wasn't accurate. It turns out that experienced counterterrorism agencies from the FBI interrogated Abdulmutallab when he arrived in Detroit. According to the Justice Department, during the initial interrogation, the FBI ``obtained intelligence that proved useful in the fight against al-Qaida.''

I say to my colleagues, watch this Ayotte amendment carefully, because it says that if there is a reference to a terrorist associated with al-Qaida, we can't turn him over to the FBI or to the court system. He has to go to military tribunals.

After this initial interrogation, Abdulmutallab refused to cooperate further with the FBI. Only then, after he stopped talking, did the FBI give him his Miranda warnings, which are required, of course, under criminal law in the United States. What the FBI did in this case was absolutely nothing new. During the Bush administration, the previous Republican President's administration, the FBI also gave Miranda warnings to terrorists when they were detained in the United States. Here is what Attorney General Holder said:

Across many Administrations, both before and after 9/11, the consistent, well-known, lawful, and publicly-stated policy of the FBI has been to provide Miranda warnings prior to any custodial interrogation conducted inside the United States.

In fact, the Bush administration adopted new policies for the FBI that say: ``Within the United States, Miranda warnings are required to be given prior to custodial interviews.''

Let's take one example from the Bush administration: Richard Reid, the so-called shoe bomber. Reid tried to detonate an explosive in his shoe on a flight from Paris to Miami in December of 2001, very similar to what Abdulmutallab tried on that flight to Detroit. So how does the Bush administration's handling of the shoe bomber compare with the Obama administration's handling of the underwear bomber? The Bush administration detained and charged Richard Reid as a criminal. They gave Reid a Miranda warning within 5 minutes of being removed from the airplane and they reminded him of his Miranda rights four times within the first 48 hours he was detained.

If we listen to the Republican Senators who come to the floor, they would suggest to us that giving Miranda warnings is the end of the interrogation. Once a potential criminal defendant is advised that they have the right to remain silent, the Republican Senators who support this amendment would argue: That is it. We just gave it away. They are going to lawyer up and shut up, and we won't learn anything.

Listen to what happened in the Abdulmutallab case: He was stopped. He was interrogated by the FBI. He spoke to them for awhile. He stopped talking. He was given his Miranda warnings. Let me tell my colleagues what happened next. He began talking again to FBI interrogators and provided valuable intelligence. There was no torture, coercion or waterboarding involved.

FBI Director Robert Mueller described it this way:

Over a period of time, we have been successful in obtaining intelligence, not just on day one, but on day two, day three, day four, day five, down the road.

Let me remind my colleagues: Mr. Abdulmutallab is associated with al-Qaida, the very type of terrorist that would be precluded from an FBI investigation and an article III court prosecution by the Ayotte amendment.

How did this happen? Do you know how it happened? Instead of using coercive techniques, the Obama administration convinced Abdulmutallab's family to come to the United States, and his family sat down with him and told him: Why don't you cooperate with the FBI? And he did. That is a very different approach from what we saw in a previous administration when coercive techniques were used.

But real life is not like the TV Show ``24,'' when old Jack Bauer tortures somebody and they cannot wait to spill the beans. Here is what we learned during the Bush administration: In real life, when people are tortured, they will say anything to make the pain stop. They will lie and fabricate and go on and babble as long as necessary to stop the pain of the torture. They often provide false information instead of valuable intelligence.

Richard Clarke was the senior counterterrorism advisor to President Clinton and President George W. Bush. Here is what he said about the Obama administration's approach:

The FBI is good at getting people to talk ..... they have been much more successful than the previous attempts of torturing people and trying to convince them to give information that way.

So what is the record here? The record is worth recounting. I will tell you, I am not sure of the exact number, but I have been told that anywhere from 200 to 300 accused terrorists have been successfully prosecuted in the article III criminal courts of America. The Ayotte amendment would stop the President of the United States from using that option--an option that has been used repeatedly over the last 10 years to stop terrorists in their tracks, prosecute them, incarcerate them, and make them pay a heavy punishment for what they tried to do to the United States.

This Ayotte amendment would tie the hands of this President and future Presidents where they could no longer make a decision about whether a case should be tried in the article III criminal courts or in a military commission or tribunal.

Look at the facts. Since 9/11, more than 200 terrorists have been successfully prosecuted, among them, Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing; Omar Abdel Rahman, the so-called Blind Sheikh; the twentieth 9/11 hijacker Zacarias Moussaoui; Richard Reid, the ``Shoebomber;'' Ted Kaczynski, the Unabomber; Terry Nichols, the Oklahoma City coconspirator; and now Abdulmutallab.

The Ayotte amendment would stop the President of the United States and the Attorney General and the Secretary of Defense from picking the right place to investigate, to gather information, and to prosecute an individual who is suspected of terrorism in the United States.

During that same period of time, how many individuals have been successfully tried by the military commissions, which Senator Ayotte believes should be the exclusive place to try a would-be terrorist? Three. So the record is, if you are keeping score, over 200 in the criminal courts; 3 in military commissions. Senator Ayotte says: Convincing evidence for me. It is pretty clear to me, everybody should go to a military commission. Really? And of the three who were prosecuted in military commissions, two of them spent less than a year in prison and are now living freely in their home countries of Australia and Yemen.

Let's go to GEN Colin Powell, a known member of a former Republican administration and former Secretary of State and former head of the Joint Chiefs of Staff. You would think this man, with his special life experience and responsibilities to fight terrorism, would be a good place to turn. What does GEN Colin Powell think about the notion behind the Ayotte amendment, that we should not try people in criminal courts, only in military commissions? Well, GEN Colin Powell is quite a military man. Here is what he said:

The suggestion that somehow a military commission is the way to go isn't borne out by the history of the military commissions.

It is a very honest statement. It should be honest enough and direct enough to guide Members of the Senate to defeat the Ayotte amendment. Whether it is a Democratic President or a Republican President, they should have every tool at their disposal to keep America safe. They should pick the forum they believe they can most effectively use to gather information and prosecute terrorists. Time and time and time again, under Republican President Bush and Democratic President Obama, they have turned to our court system, and they have successfully prosecuted terrorists.

One point made by Senator Mikulski that I think is worth repeating: What we are saying to the world is, come to America's court system, the same court system where we prosecute people accused of crimes and misconduct in America, and the would-be terrorists are going to be held to the same standards of trial. It will not be a military commission. It will be a court setting which can be followed by the public, not only in the United States but across the world. It says to them that our system of justice is fair and open, and whether a person is a citizen of this country or a suspected terrorist, they can be subjected to the same standards of justice.

I urge my colleagues, do not tie the hands of this President or any President in protecting America against terrorists. Leave to those Presidents the tools they need to effectively protect the United States of America.

Defeat the Ayotte amendment.

I yield the floor.

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