Congressional Record: October 11, 2001 (Senate)
Page S10547-S10630
UNITING AND STRENGTHENING AMERICA ACT
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (S. 1510) to deter and punish terrorist acts in the
United States and around the world, to enhance law
enforcement investigatory tools, and for other purposes.
Mr. LEAHY. Mr. President, what is the time agreement that we are now
operating under?
The PRESIDING OFFICER. There are 4 hours equally divided. In
addition, there are 40 minutes on each of the four amendments to be
offered by the Senator from Wisconsin, Mr. Feingold.
Mr. LEAHY. I thank the distinguished Presiding Officer.
I cannot help but think in looking at our distinguished Presiding
Officer, the senior Senator from New York, how much his State has
suffered. Both he and his distinguished colleague, Senator Clinton,
have spoken so eloquently, both on the floor and elsewhere, about that.
I know in my own private conversations with the distinguished Presiding
Officer I felt the depth of his grief and emotion for a city that he
obviously and unabashedly loves. His references to New York City over
the years are almost similar to the kind of comments I make about
Vermont. But I do note the accent is somewhat different. I assume it is
because of the Vermont accent.
But I think the Senators from New York, and the Senators from New
Jersey and Connecticut have especially spoken of the effect on families
and loved ones in the New York City area. People who work there are
from New York, New Jersey, and Connecticut. I know how sad they feel.
I think of the people who died in Pennsylvania in an airplane that
was probably planning to strike the very building we are in--this
symbol of democracy. Only with a great loss of life did it not happen.
But there would be an enormous disruption in our Government. The next
day, the view that most people around the world have--our symbol of
democracy--would be gone.
I think of the brave men and women who died, as the President and
others have said, doing their duty at the Pentagon, and the hundreds--
even thousands--of children who went to school happily in the morning
and came home to find that they were orphans.
It was a terrible, terrible day.
I think back to what happened in Oklahoma City in 1995 and the
actions we took then. We are moving, of course, much faster now than we
did at that time, and I hope perhaps with more care on legislation.
We have before us the USA Act of 2001. I worked with Chairman
Sensenbrenner and Congressman Conyers
[[Page S10548]]
and Republican and Democratic leaders in the House because I hope
Congress can act swiftly to enact this measure.
Some may be concerned if we have a conference--because the House is
somewhat different than the Senate--that we could take a year or more
to resolve these issues. That happened after Oklahoma City. That
legislation took nearly a year to reconcile.
I believe the American people and my fellow Senators, both Republican
and Democratic, deserve faster final action.
I assure the Senate, when we go to conference, we will complete that
conference very quickly. We have demonstrated the ability in this
body--and also Senators who have worked with me on both sides of the
aisle and our staff--that we can work around the clock.
The distinguished senior Senator from Utah, Mr. Hatch, and I have
been working together in constant communication with our staffs.
Last Thursday, October 4, I was pleased to introduce, along with the
majority leader, Senator Daschle, and the Republican leader, Senator
Lott, also the chairmen of the Banking and Intelligence Committees,
Senator Sarbanes, Senator Graham of Florida, Senator Hatch, and Senator
Shelby, the USA Act.
I must say this bill is not the bill I would have written if I were
the only one writing it. I daresay it is not the bill the distinguished
Presiding Officer, one of the brightest and most accomplished people I
know, would have written, if he were writing it. It is not the bill the
distinguished chairman of the Banking Committee would have written if
he were writing it. It is not the bill the distinguished ranking
member, Mr. Hatch, would have written when he was chairman, if he was
solely writing the bill. It is really not the bill that any one of the
other Members would have written. We can't pass 100 bills.
We have tried to put together the best possible bill. Of course,
Republican and Democratic colleagues must come together, and that is
what we did.
I should point out that this is not the bill the administration,
through the Attorney General, delivered to us and asked for immediate
passage. We actually did the administration a favor because rather than
take the bill they dropped in our laps and said pass immediately, we
did something that apparently they had not done. We read it and were
able to refine and supplement their proposal in a number of ways. We
were able to remove a number of unconstitutional parts. The
administration accepted a number of practical steps that I proposed to
improve our security on the Northern Border to assist our State,
Federal, and local law enforcement officers and provide compensation to
the victims of terrorist acts and to the public safety officers that
gave their lives to protect us.
It also provides proposed checks on Government powers--checks that
were not contained in the Attorney General's initial proposal.
In negotiations with the administration, I have done my best to
strike a reasonable balance between the need to address the threat of
terrorism, which we all keenly feel at the present time, and the need
to protect our constitutional freedoms. Despite my misgivings, I have
acquiesced in some of the administration's proposals because it is
important to preserve national unity in this time of national crisis
and to move the legislative process forward.
We still have room for improvement. Even after the Senate passes
judgment on this bill--I believe it will tonight--the debate is not
going to be finished because we have to consider those important things
done in the other body.
What I have done throughout this time is to remember the words of
Benjamin Franklin--when he literally had his neck on the line because
if the Revolution had failed, he and the others would have been
hanged--when he said: A people who would trade their liberty for
security deserve neither.
We protected our security, but I am not going to give up the
liberties that Americans have spent 220 years to obtain.
Moreover, our ability to make rapid progress was impeded because the
negotiations with the Administration did not progress in a straight
line. On several key issues that are of particular concern to me, we
had reached an agreement with the Administration on Sunday, September
30. Unfortunately, within two days, the Administration announced that
it was reneging on the deal. I appreciate the complex task of
considering the concerns and missions of multiple federal agencies, and
that sometimes agreements must be modified as their implications are
scrutinized by affected agencies. When agreements made by the
Administration must be withdrawn and negotiations on resolved issues
reopened, those in the Administration who blame the Congress for delay
with what the New York Times described last week as "scurrilous
remarks," do not help the process move forward.
Hearings. We have expedited the legislative process in the Judiciary
Committee to consider the Administration's proposals. In daily news
conferences, the Attorney General has referred to the need for such
prompt consideration. I commend him for making the time to appear
before the Judiciary Committee at a hearing September 25 to respond to
questions that Members from both parties have about the
Administration's initial proposals. I also thank the Attorney General
for extending the hour and a half he was able to make in his schedule
for the hearing for another fifteen minutes so that Senator Feinstein
and Senator Specter were able to ask questions before his departure. I
regret that the Attorney General did not have the time to respond to
questions from all the Members of the committee either on September 25
or last week, but again thank him for the attention he promised to give
to written questions Members submitted about the legislation. We have
not received answers to those written questions yet, but I will make
them a part of the hearing whenever they are sent.
The Chairman of the Constitution Subcommittee, Senator Feingold, also
held an important hearing on October 3 on the civil liberties
ramifications of the expanded surveillance powers requested by the
Administration. I thank him for his assistance in illuminating these
critical issues for the Senate.
Rule 14. To accede to the Administration's request for prompt
consideration of this legislation, the Leaders decided to hold the USA
Act at the desk rather than refer the bill to the Committee for mark-
up, as is regular practice. Senator Hatch specifically urged that this
occur and I support this decision. Indeed, when the Senate considered
the anti-terrorism act in 1995 after the Oklahoma City bombing, we
bypassed Committee in order to deal with the legislation more promptly
on the floor.
Given the expedited process that we have used to move this bill, I
will take more time than usual to detail its provisions.
Victims. The heart of every American aches for those who died or have
been injured because of the tragic terrorist attacks in New York,
Virginia, and Pennsylvania on September 11th. Even now, we cannot
assess the full measure of this attack in terms of human lives, but we
know that the number of casualties is extraordinarily high.
Congress acted swiftly to help the victims of September 11th. Within
10 days, we passed legislation to establish a Victims Compensation
Program, which will provide fair compensation to those most affected by
this national tragedy. I am proud of our work on that legislation,
which will expedite payments to thousands of Americans whose lives were
so suddenly shattered.
But now more than ever, we should remember the tens of thousands of
Americans whose needs are not being met--the victims of crimes that
have not made the national headlines. Just one day before the events
that have so transformed our nation, I came before this body to express
my concern that we were not doing more for crime victims. I noted that
the pace of victims legislation has slowed, and that many opportunities
for progress had been squandered. I suggested that this year, we had a
golden opportunity to make significant progress in this area by passing
S. 783, the Leahy-Kennedy Crime Victims Assistance Act of 2001.
I am pleased, therefore, that the antiterrorism package now before
the Senate contains substantial portions of S. 783 aimed at refining
the Victims of Crime Act of 1984 (VOCA), and improving the manner in
which the Crime Victims Fund is managed and preserved. Most
significantly, section 621
[[Page S10549]]
of the USA Act will eliminate the cap on VOCA spending, which has
prevented more than $700 million in Fund deposits from reaching victims
and supporting essential services.
Congress has capped spending from the Fund for the last two fiscal
year, and President Bush has proposed a third cap for fiscal year 2002.
These limits on VOCA spending have created a growing sense of confusion
and unease by many of those concerned about the future of the Fund.
We should not be imposing artificial caps on VOCA spending while
substantial unmet needs continue to exist. Section 621 of the USA Act
replaces the cap with a self-regulating system that will ensure
stability and protection of Fund assets, while allowing more money to
be distributed to the States for victim compensation and assistance.
Other provisions included from S. 783 will also make an immediate
difference in the lives of victims, including victims of terrorism.
Shortly after the Oklahoma City bombing, I proposed and the Congress
adopted the Victims of Terrorism Act of 1995. This legislation
authorized the Office for Victims of Crime (OVC) to set aside an
emergency reserve of up to $50 million as part of the Crime Victims
Fund. The emergency reserve was intended to serve as a "rainy day"
fund to supplement compensation and assistance grants to States to
provide emergency relief in the wake of an act of terrorism or mass
violence that might otherwise overwhelm the resources of a State's
crime victim compensation program and crime victim assistance services.
Last month's disaster created vast needs that have all but depleted the
reserve. Section 621 of the USA Act authorizes OVC to replenish the
reserve with up to $50 million, and streamlines the mechanism for
replenishment in future years.
Another critical provision of the USA Act will enable OVC to provide
more immediate and effective assistance to victims of terrorism and
mass violence occurring within the United States. I proposed this
measure last year as an amendment to the Justice for Victims of
Terrorism Act, but was compelled to drop it to achieve bipartisan
consensus. I am pleased that we are finally getting it done this year.
These and other VOCA reforms in the USA Act are long overdue. Yet, I
regret that we are not doing more. In my view, we should pass the Crime
Victims Assistance Act in its entirety. In addition to the provisions
that are included in today's antiterrorism package, this legislation
provides for comprehensive reform of Federal law to establish enhanced
rights and protections for victims of Federal crime. It also proposes
several programs to help States provide better assistance for victims
of State crimes.
I also regret that we have not done more for other victims of recent
terrorist attacks. While all Americans are numbed by the heinous acts
of September 11th, we should not forget the victims of the 1998 embassy
bombings in East Africa. Eleven Americans and many Kenyan and Tanzanian
nationals employed by the United States lost their lives in that tragic
incident. It is my understanding that compensation to the families of
these victims has in many instances fallen short. It is my hope that
OVC will use a portion of the newly replenished reserve fund to remedy
any inequity in the way that these individuals have been treated.
Hate crimes. We cannot speak of the victims of the September 11
without also noting that Arab-Americans and Muslims in this country
have become the targets of hate crimes, harassment, and intimidation. I
applaud the President for speaking out against and condemning such
acts, and visiting a mosque to demonstrate by action that all religions
are embraced in this country. I also commend the FBI Director for his
periodic reports on the number of hate crime incidents against Arab-
American and Muslims that the FBI is aggressively investigating and
making clear that this conduct is taken seriously and will be punished.
The USA Act contains, in section 102, a sense of the Congress that
crimes and discrimination against Arab and Muslim Americans are
condemned. Many of us would like to do more, and finally enact
effective hate crimes legislation, but the Administration has asked
that the debate on that legislation be postponed. One of my greatest
regrets regarding the negotiations in this bill was the objections that
prevented the Local Law Enforcement Enhancement Act, S. 625, from being
included in the USA Act.
State and local law enforcement. The Administration's initial
proposal was entirely focused on Federal law enforcement. Yet, we must
remember that state and local law enforcement officers have critical
roles to play in preventing and investigating terrorist acts. I am
pleased that the USA Act we consider today recognizes this fact.
As a former State prosecutor, I know that State and local law
enforcement officers are often the first responders to a crime. On
September 11th, the nation saw that the first on the scene were the
heroic firefighters, police officers and emergency personnel in New
York City. These New York public safety officers, many of whom gave the
ultimate sacrifice, remind us of how important it is to support our
State and local law enforcement partners. The USA Act provides three
critical measures of Federal support for our State and local law
enforcement officers in the war against terrorism.
First, we streamline and expedite the Public Safety Officers'
Benefits application process for family members of fire fighters,
police officers and rescue workers who perish or suffer a disabling
injury in connection with prevention, investigation, rescue or recovery
efforts related to a future terrorist attack.
The Public Safety Officers' Benefits Program provides benefits for
each of the families of law enforcement officers, firefighters, and
emergency response crew members who are killed or disabled in the line
of duty. Current regulations, however, require the families of public
safety officers who have fallen in the line of duty to go through a
cumbersome and time-consuming application process. In the face of our
national fight against terrorism, it is important that we provide a
quick process to support the families of brave Americans who selflessly
give their lives so that others might live before, during and after a
terrorist attack.
This provision builds on the new law championed by Senator Clinton,
Senator Schumer and Congressman Nadler to speed the benefit payment
process for families of public safety officers killed in the line of
duty in New York City, Virginia, and Western Pennsylvania, on September
11.
Second, we have raised the total amount of Public Safety Officers'
Benefit Program payments from approximately $150,000 to $250,000. This
provision retroactively goes into effort to provide much-needed relief
for the families of the brave men and women who sacrificed their own
lives for their fellow Americans during the year. Although this
increase in benefits can never replace a family's tragic loss, it is
the right thing to do for the families of our fallen heroes. I want to
thank Senator Biden and Senator Hatch for their bipartisan leadership
on this provision.
Third, we expand the Department of Justice Regional Information
Sharing Systems Program to promote information sharing among Federal,
State and local law enforcement agencies to investigate and prosecute
terrorist conspiracies and activities and authorize a doubling of
funding for this year and next year. The RISS Secure Intranet is a
nationwide law enforcement network that already allows secure
communications among the more than 5,700 Federal, State and local law
enforcement agencies. Effective communication is key to effective law
enforcement efforts and will be essential in our national fight against
terrorism.
The RISS program enables its member agencies to send secure,
encrypted communications--whether within just one agency or from one
agency to another. Federal agencies, such as the FBI, do not have this
capability, but recognize the need for it. Indeed, on September 11,
2001, immediately after the terrorist attacks, FBI Headquarters called
RISS officials to request "Smartgate" cards and readers to secure
their communications systems. The FBI agency in Philadelphia called
soon after to request more Smartgate cards and readers as well.
The Regional Information sharing Systems Program is a proven success
that we need to expand to improve secure information sharing among
Federal, State and local law enforcement
[[Page S10550]]
agencies to coordinate their counter-terrorism efforts.
Our State and local law enforcement partners welcome the challenge to
join in our national mission to combat terrorism. We cannot ask State
and local law enforcement officers to assume these new national
responsibilities without also providing new Federal support. The USA
Act provides the necessary Federal support for our State and local law
enforcement officers to serve as full partners in our fight against
terrorism.
I am deeply troubled by continuing reports that information is not
being shared with state local law enforcement. In particular, the
testimony of Baltimore Police Chief Ed Norris before the House
Government Reform Committee last week highlighted the current problem.
Northern borders. The unfolding facts about how the terrorists who
committed the September 11 attack were able to enter this country
without difficulty are chilling. Since the attacks many have pointed to
our northern border as vulnerable to the entry of future terrorists.
This is not surprising when a simple review of the numbers shows that
the northern border has been routinely short-changed in personnel.
While the number of border patrol agents along the southern border has
increased over the last few years to over 8,000, the number at the
northern border has remained the same as a decade ago at 300. This
remains true despite the fact that Admad Ressam, the Algerian who
planned to blow up the Los Angeles International Airport in 1999, and
who has been linked to those involved in the September 11 attacks,
chose to enter the United States at our northern border. It will remain
an inviting target until we dramatically improve our security.
The USA Act includes my proposals to provide the substantial and long
overdue assistance for our law enforcement and border control efforts
along the Northern Border. My home state of Vermont has seen huge
increases in customs and INS activity since the signing of NAFTA. The
number of people coming through our borders has risen steeply over the
years, but our staff and our resources have not.
I proposed--and this legislation authorizes in section 402--tripling
the number of Border Patrol, INS inspectors, and customs Service
employees in each of the States along the 4,000-mile Northern Border. I
was gratified when 22 Senators--Democrats and Republicans--wrote to the
President supporting such an increase, and I am pleased that the
Administration agreed that this critical law enforcement improvement
should be included in the bill. Senators Cantwell and Schumer in the
Committee and Senators Murray and Dorgan have been especially strong
advocates of these provisions and I thank them for their leadership. In
addition, the USA Act, in section 401, authorizes the Attorney General
to waive the FTE cap on INS personnel in order to address the national
security needs of the United States on the northern border. Now more
than ever, we must patrol our border vigilantly and prevent those who
wish America harm from gaining entry. At the same time, we must work
with the Canadians to allow speedy crossing to legitimate visitors and
foster the continued growth of trade which is beneficial to both
countries.
In addition to providing for more personnel, this bill also includes,
in section 402(4), my proposal to provide $100 million in funding for
both the INS and the Customs Service to improve the technology used to
monitor the Northern Border and to purchase additional equipment. The
bill also includes, in section 403(c), an important provisions from
Senator Cantwell directing the Attorney General, in consultation with
other agencies, to develop a technical standard for identifying
electronically the identity of persons applying for visas or seeking to
enter the United States. In short, this bill provides a comprehensive
high-tech boost for the security of our nation.
This bill also includes important proposals to enhance data sharing.
The bill, in section 403, directs the Attorney General and the FBI
Director to give the State Department and INS access to the criminal
history information in the FBI's National Crime Information Center
(NCIC) database, as the Administration and I both proposed. The
Attorney General is directed to report back to the Congress in two
years on progress in implementing this requirement. We have also
adopted the Administration's language, in section 413, to make it
easier for the State Department to share information with foreign
governments for aid in terrorist investigations.
Criminal justice improvements. The USA Act contains a number of
provisions intended to improve and update the federal criminal code to
address better the nature of terrorist activity, assist the FBI in
translating foreign language information collected, and ensure that
federal prosecutors are unhindered by conflicting local rules of
conduct to get the job done. I will mention just a few of these
provisions.
FBI translators. The truth certainly seems self-evident that all the
best surveillance techniques in the world will not help this country
defend itself from terrorist attack if the information cannot be
understood in a timely fashion. Indeed, within days of the September
11, the FBI Director issued an employment ad on national TV by calling
upon those who speak Arabic to apply for a job as an FBI translator.
This is a dire situation that needs attention. I am therefore gratified
that the Administration accepted by proposal, in section 205, to waive
any federal personnel requirements and limitations imposed by any other
law in order to expedite the hiring of translators at the FBI.
This bill also directs the FBI Director to establish such security
requirements as are necessary for the personnel employed as
translators. We know the effort to recruit translators has a high
priority, and the Congress should provide all possible support.
Therefore, the bill calls on the Attorney General to report to the
Judiciary Committees on the number of translators employed by the
Justice Department, any legal or practical impediments to using
translators employed by other Federal, State, or local agencies, on a
full, part-time, or shared basis; and the needs of the FBI for specific
translation services in certain languages, and recommendations for
meeting those needs.
Federal crime of terrorism. The Administration's initial proposal
assembled a laundry list of more than 40 Federal crimes ranging from
computer hacking to malicious mischief to the use of weapons of mass
destruction, and designated them as "Federal terrorism offenses,"
regardless of the circumstances under which they were committed. For
example, a teenager who spammed the NASA website and, as a result,
recklessly caused damage, would be deemed to have committed this new
"terrorism" offense. Under the Administration's proposal, the
consequences of this designation were severe. Crimes on the list would
carry no statute of limitations. The maximum penalties would shoot up
to life imprisonment, and those released earlier would be subject to a
lifetime of supervised release. Moreover, anyone who harbored a person
whom he had "reasonable grounds to suspect" had committed, or was
about to commit, a "Federal terrorism offense"--whether it was the
Taliban or the mother of my hypothetical teenage computer hacker--would
be subject to stiff criminal penalties. I worked closely with the
Administration to ensure that the definition of "terrorism" in the
USA Act fit the crime.
First, we have trimmed the list of crimes that may be considered as
terrorism predicates in section 808 of the bill. This shorter, more
focused list, to be codified at 18 U.S.C. Sec. 2332(g)(5)(B), more
closely reflects the sorts of offenses committed by terrorists.
Second, we have provided, in section 810, that the current 8-year
limitations period for this new set of offenses will remain in place,
except where the commission of the offense resulted in, or created a
risk of, death or serious bodily injury.
Third, rather than make an across-the-board, one-size-fits-all
increase of the penalties for every offense on the list, without regard
to the severity of the offense, we have made, in section 811, more
measured increases in maximum penalties where appropriate, including
life imprisonment or lifetime supervised release in cases in which the
offense resulted in death. We have also added, in section 812,
conspiracy provisions to a few criminal statutes where appropriate,
with penalties equal to the penalties for the object offense, up to
life imprisonment.
[[Page S10551]]
Finally, we have more carefully defined the new crime of harboring
terrorists in section 804, so that it applies only to those harboring
people who have committed, or are about to commit, the most serious of
federal terrorism-related crimes, such as the use of weapons of mass
destruction. Moreover, it is not enough that the defendant had
"reasonable grounds to suspect" that the person he was harboring had
committed, or was about to commit, such a crime; the government must
prove that the defendant knew or had "reasonable grounds to believe"
that this was so.
McDade fix. The massive investigation underway into who was
responsible for and assisted in carrying out the September 11 attacks
stretches across state and national boundaries. While the scope of the
tragedy is unsurpassed, the disregard for state and national borders of
this criminal conspiracy is not unusual. Federal investigative officers
and prosecutors often must follow leads and conduct investigations
outside their assigned jurisdictions. At the end of the 105th Congress,
a legal impediment to such multi-jurisdiction investigations was
slipped into the omnibus appropriations bill, over the objection at the
time of every member of the Senate Judiciary Committee.
I have spoken many times over the past two years of the problems
caused by the so-called McDade law, 28 U.S.C. Sec. 530B. According to
the Justice Department, the McDade law has delayed important criminal
investigations, prevented the use of effective and traditionally-
accepted investigative techniques, and served as the basis of
litigation to interfere with legitimate federal prosecutions. At a time
when we need federal law enforcement authorities to move quickly to
catch those responsible for the September 11th attacks, and to prevent
further attacks on our country, we can no longer tolerate the drag on
federal investigations and prosecutions caused by this ill-considered
legislation.
On September 19th, I introduced S. 1437, the Professional Standards
for Government Attorneys Act of 2001, along with Senators Hatch and
Wyden. This bill proposes to modify the McDade law by establishing a
set of rules that clarify the professional standards applicable to
government attorneys. I am delighted that the Administration recognized
the importance of S. 1437 for improving federal law enforcement and
combating terrorism, and agreed to its inclusion as section 501 of the
USA Act.
The first part of section 501 embodies the traditional understanding
that when lawyers handle cases before a Federal court, they should be
subject to the Federal court's standards of professional
responsibility, and not to the possibly inconsistent standards of other
jurisdictions. By incorporating this ordinary choice-of-law principle,
the bill preserves the Federal courts' traditional authority to oversee
the professional conduct of Federal trial lawyers, including Federal
prosecutors. It thus avoids the uncertainties presented by the McDade
law, which potentially subjects Federal prosecutors to State laws,
rules of criminal procedure, and judicial decisions which differ from
existing Federal law.
Another part of section 501 specifically addresses the situation in
Oregon, where a state court ruling has seriously impeded the ability of
Federal agents to engage in undercover operations and other covert
activities. See In re Gatti, 330 Or. 517 (2000). Such activities are
legitimate and essential crime-fighting tools. The Professional
Standards for Government Attorneys Act ensures that these tools will be
available to combat terrorism.
Finally, section 501 addresses the most pressing contemporary
question of government attorney ethics--namely, the question of which
rule should govern government attorneys' communications with
represented persons. It asks the Judicial Conference of the United
States to submit to the Supreme Court a proposed uniform national rule
to govern this area of professional conduct, and to study the need for
additional national rules to govern other areas in which the
proliferation of local rules may interfere with effective Federal law
enforcement. The Rules Enabling Act process is the ideal one for
developing such rules, both because the Federal judiciary traditionally
is responsible for overseeing the conduct of lawyers in Federal court
proceedings, and because this process would best provide the Supreme
Court an opportunity fully to consider and objectively to weigh all
relevant considerations.
The problems posed to Federal law enforcement investigations and
prosecutions by the McDade law are real and urgent. The Professional
Standards for Government Attorneys Act provides a reasonable and
measured alternative: It preserves the traditional role of the State
courts in regulating the conduct of attorneys licensed to practice
before them, while ensuring that Federal prosecutors and law
enforcement agents will be able to use traditional Federal
investigative techniques. We need to pass this corrective legislation
before more cases are compromised.
Terrorist attacks against mass transportation systems. Another
provision of the USA Act that was not included in the Administration's
initial proposal is section 801, which targets acts of terrorism and
other violence against mass transportation systems. Just last week, a
Greyhound bus crashed in Tennessee after a deranged passenger slit the
driver's throat and then grabbed the steering wheel, force the bus into
the oncoming traffic. Six people were killed in the crash. Because
there are currently no federal law addressing terrorism of mass
transportation systems, however, there may be no federal jurisdiction
over such as case, even if it were committed by suspected terrorists.
Clearly, there is an urgent need for strong criminal legislation to
deter attacks against mass transportation systems. Section 801 will
fill this gap.
Cybercrime. The Computer Fraud and Abuse Act, 18 U.S.C. Sec. 1030, is
the primary federal criminal statue prohibiting computer frauds and
hacking. I worked with Senator Hatch in the last Congress to make
improvements to this law in the Internet Security Act, which passed the
Senate as part of another bill. Our work is included in section 815 of
the USA Act. This section would amend the statute to clarify the
appropriate scope of federal jurisdiction. First, the bill adds a
definition of "loss" to cover any reasonable cost to the victim in
responding to a computer hacker. Calculation of loss is important both
in determining whether the $5,000 jurisdictional hurdle in the statute
is met, and, at sentencing, in calculating the appropriate guideline
range and restitution amount.
Second, the bill amends the definitions of "protected computer" to
include qualified computers even when they are physically located
outside of the United States. This clarification will preserve the
ability of the United States to assist in internal hacking cases.
Finally, this section eliminates the current directive to the
Sentencing Commission requiring that all violations, including
misdemeanor violations, of certain provisions of the Computer Fraud and
Abuse Act be punished with a term of imprisonment of at least six
months.
Biological weapons. Borrowing from a bill introduced in the last
Congress By Senator Biden, the USA Act contains a provision in section
802 to strengthen our federal laws relating to the threat of biological
weapons. Current law prohibits the possession, development, or
acquisition of biological agents or toxins "for use as a weapon."
This section amends the definition of "for use as a weapon" to
include all situations in which it can be proven that the defendant had
any purpose other than a peaceful purpose. This will enhance the
government's ability to prosecute suspected terrorists in possession of
biological agents or toxins, and conform the scope of the criminal
offense in 18 U.S.C. Sec. 175 more closely to the related forfeiture
provision in 18 U.S.C. Sec. 176. This section also contains a new
statute, 18 U.S.C. Sec. 175b, which generally makes it an offense for
certain restricted persons, including non-resident aliens from
countries that support international terrorism, to possess a listed
biological agent or toxin.
Of greater consequence, section 802 defines another additional
offense, punishable by up to 10 years in prison, of possessing a
biological agent, toxin, or delivery system "of a type or in a
[[Page S10552]]
quantity that, under the circumstances," is not reasonably justified
by a peaceful purpose. As originally proposed by the Administration,
this provision specifically stated that knowledge of whether the type
or quantity of the agent or toxin was reasonably justified was not an
element of the offense. Thus, although the burden of proof is always on
the government, every person who possesses a biological agent, toxin,
or delivery system was at some level of risk. I am pleased that the
Administration agreed to drop this portion of the provision.
Nevertheless, I remain troubled by the subjectivity of the
substantive standard for violation of this new criminal prohibition,
and question whether it provides sufficient notice under the
Constitution. I also share the concerns of the American Society for
Microbiology and the Association of American Universities that this
provision will have a chilling effect upon legitimate scientific
inquiry that offsets any benefit in protecting against terrorism. While
we have tried to prevent against this by creating an explicit exclusion
for "bona fide research," this provision may yet prove unworkable,
unconstitutional, or both. I urge the Justice Department and the
research community to work together on substitute language that would
provide prosecutors with a more workable tool.
Secret Service jurisdiction. Two sections of the USA Act were added
at the request of the United States Secret Service, with the support of
the Administration. I was pleased to accommodate the Secret Service by
including these provisions in the bill to expand Electronic Crimes Task
Force and to clarify the authority of the Secret Service to
investigator computer crimes.
The Secret Service is committed to the development of new tools to
combat the growing areas of financial crime, computer fraud, and
cyberterrorism. Recognizing a need for law enforcement, private
industry and academia to pool their resources, skills and revision to
combat criminal elements in cyberspace, the Secret Service created the
New York Electronic Crimes Task Force (NYECTF). This highly successful
model is comprised of over 250 individual members, including 50
different Federal, State and local enforcement agencies, 100 private
companies, and 9 universities. Since its inception in 1995, the NYECTF
has successfully investigated a range of financial and electronic
crimes, including credit card fraud, identify theft, bank fraud,
computer systems intrusions, and e-mail threats against protectees of
the Secret Service. Section 105 of the USA Act authorizes the Secret
Service to develop similar task forces in cities and regions across the
country where critical infrastructure may be vulnerable to attacks from
terrorists or other cyber-criminals.
Section 507 of the USA Act gives the Secret Service concurrent
jurisdiction to investigate offenses under 18 U.S.C. Sec. 1030.
relating to fraud and related activity in connection with computers.
Prior to the 1996 amendments to the Computer Fraud and Abuse Act, the
Secret Service was authorized to investigate any an all violations of
section 1030, pursuant to an agreement between the Secretary of
Treasury and the Attorney General. The 1996 amendments, however,
concentrated Secret Service jurisdiction on certain specified
subsections of section 1030. The current amendment would return full
jurisdiction to the Secret Service and would allow the Justice and
Treasury Departments to decide on the appropriate work-sharing balance
between the two. This will enable the Secret Service to investigate a
wide range of potential White House network intrusions, as well as
intrusions into remote sites (outside of the White House) that could
impact the safety and security of its protectees, and to continue its
mission to protect the nation's critical infrastructure and financial
payment systems.
Counter-terrorism Fund. The USA Act also authorizes, for the first
time, a counter-terrorism fund in the Treasury of the United States to
reimburse Justice Department for any costs incurred in connection with
the fight against terrorism.
Specifically, this counter-terrorism fund will: (1) reestablish an
office or facility that has been damaged as the result of any domestic
or international terrorism incident; (2) provide support to counter,
investigate, or prosecute domestic or international terrorism,
including paying rewards in connection with these activities; (3)
conduct terrorism threat assessments of Federal agencies; and (4) for
costs incurred in connection with detaining individuals in foreign
countries who are accused of acts of terrorism in violation of United
States law.
I first authored this counter-terrorism fund in the S. 1319, the 21st
Century Department of Justice Appropriations Authorization Act, which
Senator Hatch and I introduced in August.
Enhanced surveillance procedures. The USA Act provides enhanced
surveillance procedures for the investigation of terrorism and other
crimes. The challenge before us has been to strike a reasonable balance
to protect both security and the liberties of our people. In some
respects, the changes made are appropriate and important ones to update
surveillance and investigative procedures in light of new technology
and experience with current law. Yet, in other respects, I have deep
concerns that we may be increasing surveillance powers and the sharing
of criminal justice information without adequate checks on how
information may be handled and without adequate accountability in the
form of judicial review.
The bill contains a number of sensible proposals that should not be
controversial.
Wiretap predicates. For example, sections 201 and 202 of the USA Act
would add to the list of crimes that may be used as predicates for
wiretaps certain offenses which are specifically tailored to the
terrorist threat. In addition to crimes that relate directly to
terrorism, the list would include crimes of computer fraud and abuse
which are committed by terrorists to support and advance their illegal
objectives.
FISA roving wiretraps. The bill, in section 206, would authorize the
use of roving wiretaps in the course of a foreign intelligence
investigation and brings FISA into line with criminal procedures that
allow surveillance to follow a person, rather than requiring a separate
court order identifying each telephone company or other communication
common carrier whose assistance is needed. This is a matter on which
the Attorney General and I reached early agreement. This is the kind of
change that has a compelling justification, because it recognizes the
ease with which targets of investigations can evade surveillance by
changing phones. In fact, the original roving wiretap authority for use
in criminal investigations was enacted as part of the Electronic
Communications Privacy Act (ECPA) in 1986. I was proud to be the
primary Senate sponsor of that earlier law.
Paralleling the statutory rules applicable to criminal
investigations, the formulation I originally proposed made clear that
this roving wiretap authority must be requested in the application
before the FISA court was authorized to order such roving surveillance
authority. Indeed, the Administration agrees that the FISA court may
not grant such authority sua sponte. Nevertheless, we have accepted the
Administration's formulation of the new roving wiretap authority, which
requires the FISA court to make a finding that the actions of the
person whose communications are to be intercepted could have the effect
of thwarting the identification of a specified facility or place. While
no amendment is made to the statutory directions for what must be
included in the application for a FISA electronic surveillance order,
these applications should include the necessary information to support
the FISA court's finding that roving wiretap authority is warranted.
Search warrants. The USA Act, in section 219, authorizes nationwide
service of search warrants in terrorism investigations. This will allow
the judge who is most familiar with the developments in a fast-breaking
and complex terrorism investigation to make determinations of probable
cause, no matter where the property to be searched is located. This
will not only save time by avoiding having to bring up-to-speed another
judge in another jurisdiction where the property is located, but also
serves privacy and Fourth Amendment interests in ensuring that the most
knowledgeable judge makes the determination of probable cause. The
bill, in section 209, also authorizes voice mail messages to be seized
on the authority
[[Page S10553]]
of a probable cause search warrant rather than through the more
burdensome and time-consuming process of a wiretap.
Electronic records. The bill updates the laws pertaining to
electronic records in three primary ways. First, in section 210, the
bill authorizes the nationwide service of subpoenas for subscriber
information and expands the list of items subject to subpoena to
include the means and source of payment for the service.
Second, in section 211, the bill equalizes the standard for law
enforcement access to cable subscriber records on the same basis as
other electronic records. The Cable Communications Policy Act, passed
in 1984 to regulate various aspects of the cable television industry,
did not take into account the changes in technology that have occurred
over the last fifteen years. Cable television companies now often
provide Internet access and telephone service in addition to television
programming. This amendment clarifies that a cable company must comply
with the laws governing the interception and disclosure of wire and
electronic communications just like any other telephone company or
Internet service provider. The amendments would retain current
standards that govern the release of customer records for television
programming.
Finally, the bill, in section 212, permits, but does not require, an
electronic communications service to disclose the contents of and
subscriber information about communications in emergencies involving
the immediate danger of death or serious physical injury. Under current
law, if an ISP's customer receives an e-mail death threat from another
customer of the same ISP, and the victim provides a copy of the
communication to the ISP, the ISP is limited in what actions it may
take. On one hand, the ISP may disclose the contents of the forwarded
communication to law enforcement (or to any other third party as it
sees fit). See 18 U.S.C. Sec. 2702(b)(3). On the other hand, current
law does not expressly authorize the ISP to voluntarily provide law
enforcement with the identity, home address, and other subscriber
information of the user making the threat. See 18 U.S.C.
Sec. 2703(c)(1)(B),(C) (permitting disclosure to government entities
only in response to legal process). In those cases where the risk of
death or injury is imminent, the law should not require providers to
sit idly by. This voluntary disclosure, however, in no way creates an
affirmative obligation to review customer communications in search of
such imminent dangers.
Also, under existing law, a provider (even one providing services to
the public) may disclose the contents of a customer's communications--
to law enforcement or anyone else--in order to protect its rights or
property. See 18 U.S.C. Sec. 2702(b)(5). However, the current statute
does not expressly permit a provider voluntarily to disclose non-
content records (such as a subscriber's login records) to law
enforcement for purposes of self-protection. See 18 U.S.C.
Sec. 2703(c)(1)(B). Yet the right to disclose the content of
communications necessarily implies the less intrusive ability to
disclose non-content records. Cf. United States v. Auler, 539 F.2d 642,
646 n.9 (7th Cir. 1976) (phone company's authority to monitor and
disclose conversations to protect against fraud necessarily implies
right to commit lesser invasion of using, and disclosing fruits of, pen
register device) (citing United States v. Freeman, 524 F.2d 337, 341
(7th Cir. 1975)). Moreover, as a practical matter providers must have
the right to disclose the facts surrounding attacks on their systems.
When a telephone carrier is defrauded by a subscriber, or when an ISP's
authorized user launches a network intrusion against his own ISP, the
provider must have the legal ability to report the complete details of
the crime to law enforcement. The bill clarifies that service providers
have the statutory authority to make such disclosures.
Pen registers. There is consensus that the existing legal procedures
for pen register and trap-and-trace authority are antiquated and need
to be updated. I have been proposing ways to update the pen register
and trap and trace statutes for several years, but not necessarily in
the same ways as the Administration initially proposed. In fact, in
1998, I introduced with then-Senator Ashcroft, the E-PRIVACY Act, S.
2067, which proposed changes in the pen register laws. In 1999, I
introduced the E-RIGHTS Act, S. 934, also with proposals to update the
pen register laws.
Again, in the last Congress, I introduced the Internet Security Act,
S. 2430, on April 13, 2000, that proposed (1) changing the pen register
and trap and trace device law to give nationwide effect to pen register
and trap and trace orders obtained by Government attorneys and obviate
the need to obtain identical orders in multiple federal jurisdictions;
(2) clarifying that such devices can be used for computer transmissions
to obtain electronic addresses, not just on telephone lines; and (3) as
a guard against abuse, providing for meaningful judicial review of
government attorney applications for pen registers and trap and trace
devices.
As the outline of my earlier legislation suggests, I have long
supported modernizing the pen register and trap and trace device laws
by modifying the statutory language to cover the use of these orders on
computer transmissions; to remove the jurisdictional limits on service
of these orders; and to update the judicial review procedure, which,
unlike any other area in criminal procedure, bars the exercise of
judicial discretion in reviewing the justification for the order. The
USA Act, in section 216, updates the pen register and trap and trace
laws only in two out of three respects I believe are important, and
without allowing meaningful judicial review. Yet, we were able to
improve the Administration's initial proposal, which suffered from the
same problem as the provision that was hastily taken up and passed by
the Senate, by voice vote, on September, 13, 2001, as an amendment to
the Commerce Justice State Appropriations Act.
Nationwide service. The existing legal procedures for pen register
and trap-and-trace authority require service of individual orders for
installation of pen register or trap and trace device on the service
providers that carried the targeted communications. Deregulation of the
telecommunications industry has had the consequence that one
communication may be carried by multiple providers. For example, a
telephone call may be carried by a competitive local exchange carrier,
which passes it at a switch to a local Bell Operating Company, which
passes it to a long distance carrier, which hands it to an incumbent
local exchange carrier elsewhere in the U.S., which in turn may finally
hand it to a cellular carrier. If these carriers do not pass source
information with each call, identifying that source may require
compelling information from a host of providers located throughout the
country.
Under present law, a court may only authorize the installation of a
pen register or trap device "within the jurisdiction of the court."
As a result, when one provider indicates that the source of a
communication is a carrier in another district, a second order may be
necessary. The Department of Justice has advised, for example, that in
1996, a hacker (who later turned out to be launching his attacks from a
foreign country) extensively penetrated computers belonging to the
Department of Defense. This hacker was dialing into a computer at
Harvard University and used this computer as an intermediate staging
point in an effort to conceal his location and identity. Investigators
obtained a trap and trace order instructing the phone company, Nynex,
to trace these calls, but Nynex could only report that the
communications were coming to it from a long-distance carrier, MCI.
Investigators then applied for a court order to obtain the connection
information from MCI, but since the hacker was no longer actually using
the connection, MCI could not identify its source. Only if the
investigators could have served MCI with a trap and trace order while
the hacker was actively on-line could they have successfully traced
back and located him.
In another example provided by the Department of Justice,
investigators encountered similar difficulties in attempting to track
Kevin Mitnick, a criminal who continued to hack into computers attached
to the Internet despite the fact that he was on supervised release for
a prior computer crime conviction. The FBI attempted to trace
[[Page S10554]]
these electronic communications while they were in progress. In order
to evade arrest, however, Mitnick moved around the country and used
cloned cellular phones and other evasive techniques. His hacking
attacks would often pass through one of two cellular carriers, a local
phone company, and then two Internet service providers. In this
situation, where investigators and service providers had to act quickly
to trace Mitnick in the act of hacking, only many repeated attempts--
accompanied by an order to each service provider--finally produced
success. Fortunately, Mitnick was such a persistent hacker that he gave
law enforcement many chances to complete the trace.
This duplicative process of obtaining a separate order for each link
in the communications chain can be quite time-consuming, and it serves
no useful purpose since the original court has already authorized the
trace. Moreover, a second or third order addressed to a particular
carrier that carried part of a prior communication may prove useless
during the next attack: in computer intrusion cases, for example, the
target may use an entirely different path (i.e., utilize a different
set of intermediate providers) for his or her subsequent activity.
The bill would modify the pen register and trap and trace statutes to
allow for nationwide service of a single order for installation of
these devices, without the necessity of returning to court for each new
carrier. I support this change.
Second, the language of the existing statute is hopelessly out of
date and speaks of a pen register or trap and trace "device" being
"attached" to a telephone "line." However, the rapid
computerization of the telephone system has changed the tracing
process. No longer are such functions normally accomplished by physical
hardware components attached to telephone lines. Instead, these
functions are typically performed by computerized collection and
retention of call routing information passing through a communications
system.
The statute's definition of a "pen register" as a "device" that
is "attached" to a particular "telephone line" is particularly
obsolete when applied to the wireless portion of a cellular phone call,
which has no line to which anything can be attached. While courts have
authorized pen register orders for wireless phones based on the notion
of obtaining access to a "virtual line," updating the law to keep
pace with current technology is a better course.
Moreover, the statute is ill-equipped to facilitate the tracing of
communications that take place over the Internet. For example, the pen
register definition refers to telephone "numbers" rather than the
broader concept of a user's communications account. Although pen
register and trap orders have been obtained for activity on computer
networks, Internet service providers have challenged the application of
the statute to electronic communications, frustrating legitimate
investigations. I have long supported updating the statute by removing
words such as "numbers . . . dialed" that do not apply to the way
that pen/trap devices are used and to clarify the statute's proper
application to tracing communications in an electronic environment, but
in a manner that is technology neutral and does not capture the content
of communications. That being said, I have been concerned about the FBI
and Justice Department's insistence over the past few years that the
pen/trap devices statutes be updated with broad, undefined terms that
continue to flame concerns that these laws will be used to intercept
private communications content.
The Administration's initial pen/trap device proposal added the terms
"routing" and "addressing" to the definitions describing the
information that was authorized for interception on the low relevance
standard under these laws. The Administration and the Department of
Justice flatly rejected my suggestion that these terms be defined to
respond to concerns that the new terms might encompass matter
considered content, which may be captured only upon a showing of
probable cause, not the mere relevancy of the pen/trap statute.
Instead, the Administration agreed that the definition should expressly
exclude the use of pen/trap devices to intercept "content," which is
broadly defined in 18 U.S.C. 2510(8).
While this is an improvement, the FBI and Justice Department are
short-sighted in their refusal to define these terms. We should be
clear about the consequence of not providing definitions for these new
terms in the pen/trap device statutes. These terms will be defined, if
not by the Congress, then by the courts in the context of criminal
cases where pen/trap devices have been used and challenged by
defendants. If a court determines that a pen register has captured
"content," which the FBI admits such devices do, in violation of the
Fourth Amendment, suppression may be ordered, not only of the pen
register evidence but any other evidence derived from it. We are
leaving the courts with little or no guidance of what is covered by
"addressing" or "routing."
The USA Act also requires the government to use reasonably available
technology that limits the interceptions under the pen/trap device laws
"so as not to include the contents of any wire or electronic
communications." This limitation on the technology used by the
government to execute pen/trap orders is important since, as the FBI
advised me June, 2000, pen register devices "do capture all electronic
impulses transmitted by the facility on which they are attached,
including such impulses transmitted after a phone call is connected to
the called party." The impulses made after the call is connected could
reflect the electronic banking transactions a caller makes, or the
electronic ordering from a catalogue that a customer makes over the
telephone, or the electronic ordering of a prescription drug.
This transactional data intercepted after the call is connected is
"content." As the Justice Department explained in May, 1998 in a
letter to House Judiciary Committee Chairman Henry Hyde, "the
retrieval of the electronic impulses that a caller necessarily
generated in attempting to direct the phone call" does not constitute
a "search" requiring probable cause since "no part of the
substantive information transmitted after the caller had reached the
called party" is obtained. But the Justice Department made clear that
"all of the information transmitted after a phone call is connected to
the called party . . . is substantive in nature. These electronic
impulses are the `contents' of the call: They are not used to direct or
process the call, but instead convey certain messages to the
recipient."
When I added the direction on use of reasonably available technology
(codified as 18 U.S.C. 3121(c)) to the pen register statute as part of
the Communications Assistance for Law Enforcement Act (CALEA) in 1994,
I recognized that these devices collected content and that such
collection was unconstitutional on the mere relevance standard.
Nevertheless, the FBI advised me in June, 2000, that pen register
devices for telephone services "continue to operate as they have for
decades" and that "there had been no change . . . that would better
restrict the recording or decoding of electronic or other impulses to
the dialing and signaling information utilized in call processing."
Perhaps, if there were meaningful judicial review and accountability,
the FBI would take the statutory direction more seriously and actually
implement it.
Judicial review. Due in significant part to the fact that pen/trap
devices in use today collect "content," I have sought in legislation
introduced over the past few years to update and modify the judicial
review procedure for pen register and trap and trace devices. Existing
law requires an attorney for the government to certify that the
information likely to be obtained by the installation of a pen register
or trap and trace device will be relevant to an ongoing criminal
investigation. The court is required to issue an order upon seeing the
prosecutor's certification. The court is not authorized to look behind
the certification to evaluate the judgment of the prosecutor.
I have urged that government attorneys be required to include facts
about their investigations in their applications for pen/trap orders
and allow courts to grant such orders only where the facts support the
relevancy of the information likely to be obtained by the orders. This
is not a change in the applicable standard, which would remain the very
low relevancy standard.
[[Page S10555]]
Instead, this change would simply allow the court to evaluate the facts
presented by a prosecutor, and, if it finds that the facts support the
government's assertion that the information to be collected will be
relevant, issue the order. Although this change will place an
additional burden on law enforcement, it will allow the courts a
greater ability to assure that government attorneys are using such
orders properly.
Some have called this change a "roll-back" in the statute, as if
the concept of allowing meaningful judicial review was an extreme
position. To the contrary, this is a change that the Clinton
Administration supported in legislation transmitted to the Congress
last year. This is a change that the House Judiciary Committee also
supported last year. In the Electronic Communications Privacy Act, H.R.
5018, that Committee proposed that before a pen/trap device "could be
ordered installed, the government must first demonstrate to an
independent judge that `specific and articulable facts reasonably
indicate that a crime has been, is being, or will be committed, and
information likely to be obtained by such installation and use . . . is
relevant to an investigation of that crime." (Report 106-932, 106th
Cong. 2d Sess., Oct. 4, 2000, p. 13). Unfortunately, the Bush
Administration has taken a contrary position and has rejected this
change in the judicial review process.
Computer trespasser. Currently, an owner or operator of a computer
that is accessed by a hacker as a means for the hacker to reach a third
computer, cannot simply consent to law enforcement monitoring of the
computer. Instead, because the owner or operator is not technically a
party to the communication, law enforcement needs wiretap authorization
under Title III to conduct such monitoring. I have long been interested
in closing this loophole. Indeed, when I asked about this problem, the
FBI explained to me in June, 2000, that:
This anomaly in the law creates an untenable situation
whereby providers are sometimes forced to sit idly by as they
witness hackers enter and, in some situations, destroy or
damage their systems and networks while law enforcement
begins the detailed process of seeking court authorization to
assist them. In the real world, the situation is akin to a
homeowner being forced to helplessly watch a burglar or
vandal while police seek a search warrant to enter the
dwelling.
I therefore introduced as part of the Internet Security Act, S. 2430,
in 2000, an exception to the wiretap statute that would explicitly
permit such monitoring without a wiretap if prior consent is obtained
from the person whose computer is being hacked through and used to send
"harmful interference to a lawfully operating computer system."
The Administration initially proposed a different formulation of the
exception that would have allowed an owner/operator of any computer
connected to the Internet to consent to FBI wiretapping of any user who
violated a workplace computer use policy or online service term of
service and was thereby an "unauthorized" user. The Administration's
proposal was not limited to computer hacking offenses under 18 U.S.C.
1030 or to conduct that caused harm to a computer or computer system.
The Administration rejected these refinements to their proposed wiretap
exception, but did agree, in section 217 of the USA Act, to limit the
authority for wiretapping with the consent of the owner/operator to
communications of unauthorized users without an existing subscriber or
other contractual relationship with the owner/operator.
Sharing criminal justice information. The USA Act will make
significant changes in the sharing of confidential criminal justice
information with various Federal agencies. For those of us who have
been concerned about the leaks from the FBI that can irreparably damage
reputations of innocent people and frustrate investigations by alerting
suspects to flee or destroy material evidence, the Administration's
insistence on the broadest authority to disseminate such information,
without any judicial check, is disturbing. Nonetheless, I believe we
have improved the Administration's initial proposal in responsible
ways. Only time will tell whether the improvements we were able to
reach agreement on are sufficient.
At the outset, we should be clear that current law allows the sharing
of confidential criminal justice information, but with close court
supervision. Federal Rule of Criminal Procedure 6(e) provides that
matters occurring before a grand jury may be disclosed only to an
attorney for the government, such other government personnel as are
necessary to assist the attorney and another grand jury. Further
disclosure is also allowed as specifically authorized by a court.
Similarly, section 2517 of title 18, United States Code provides that
wiretap evidence may be disclosed in testimony during official
proceedings and to investigative or law enforcement officers to the
extent appropriate to the proper performance of their official duties.
In addition, the wiretap law allows disclosure of wiretap evidence
"relating to offenses other than specified in the order" when
authorized or approved by a judge. Indeed, just last year, the Justice
Department assured us that "law enforcement agencies have authority
under current law to share title III information regarding terrorism
with intelligence agencies when the information is of overriding
importance to the national security." (Letter from Robert Raben,
Assistant Attorney General, September 28, 2000).
For this reason, and others, the Justice Department at the time
opposed an amendment proposed by Senators Kyl and Feinstein to S. 2507,
the "Intelligence Authorization Act for FY 2001 that would have
allowed the sharing of foreign intelligence and counterintelligence
information collected from wiretaps with the intelligence community. I
deferred to the Justice Department on this issue and sought changes in
the proposed amendment to address the Department's concern that this
provision was not only unnecessary but also "could have significant
implications for prosecutions and the discovery process in
litigation", "raises significant issues regarding the sharing with
intelligence agencies of information collected about United States
persons" and jeopardized "the need to protect equities relating to
ongoing criminal investigations." In the end, the amendment was
revised to address the Justice Department's concerns and passed the
Senate as a free-standing bill, S. 3205, the Counterterrorism Act of
2000. The House took no action on this legislation.
Disclosure of wiretap information. The Administration initially
proposed adding a sweeping provision to the wiretap statute that
broadened the definition of an "investigative or law enforcement
officer" who may receive disclosures of information obtained through
wiretaps to include federal law enforcement, intelligence, national
security, national defense, protective and immigration personnel and
the President and Vice President. This proposal troubled me because
information intercepted by a wiretap has enormous potential to infringe
upon the privacy rights of innocent people, including people who are
not even suspected of a crime and merely happen to speak on the
telephone with the targets of an investigation. For this reason, the
authority to disclose information obtained through a wiretap has always
been carefully circumscribed in law.
While I recognize that appropriate officials in the executive branch
of government should have access to wiretap information that is
important to combating terrorism or protecting the national security, I
proposed allowing such disclosures where specifically authorized by a
court order. Further, with respect to information relating to
terrorism, I proposed allowing the disclosure without a court order as
long as the judge who authorized the wiretap was notified as soon as
practicable after the fact. This would have provided a check against
abuses of the disclosure authority by providing for review by a neutral
judicial official. At the same time, there was a little likelihood that
a judge would deny any requests for disclosure in cases where it was
warranted.
On Sunday, September 30, the Administration agreed to my proposal,
but within two days, it backed away from its agreement. I remain
concerned that the resulting provision will allow the unprecedented,
widespread disclosure of this highly sensitive information without any
notification to or review by the court that authorizes and supervises
the wiretap. This is clearly an area where our Committee will have to
exercise close oversight to
[[Page S10556]]
make sure that the newly-minted disclosure authority is not being
abused.
The Administration offered three reasons for reneging on the original
deal. First, they claimed that the involvement of the court would
inhibit Federal investigators and attorneys from disclosing information
needed by intelligence and national security officials. Second, they
said the courts might not have adequate security and therefore should
not be told that information was disclosed for intelligence or national
security purposes. And third, they said the President's constitutional
powers under Article II give him authority to get whatever foreign
intelligence he needs to exercise his national security
responsibilities.
I believe these concerns are unfounded. Federal investigators and
attorneys will recognize the need to disclose information relevant to
terrorism investigations. Courts can be trusted to keep secrets and
recognize the needs of the President.
Current law requires that such information be used only for law
enforcement purpose. This provides an assurance that highly intrusive
invasions of privacy are confined to the purpose for which they have
been approved by a court, based on probable cause, as required by the
Fourth Amendment. Current law calls for minimization procedures to
ensure that the surveillance does not gather information about private
and personal conduct and conversations that are not relevant to the
criminal investigation.
When the Administration reneged on the agreement regarding court
supervision, we turned to other safeguards and were more successful in
changing other questionable features of the Administration's bill. The
Administration accepted my proposal to strike the term "national
security" from the description of wiretap information that may be
shared throughout the executive branch and replace it with "foreign
intelligence" information. This change is important in clarifying what
information may be disclosed because the term "foreign intelligence"
is specifically defined by statute whereas "national security" is
not.
Moreoever, the rubric of "national security" has been used to
justify some particularly unsavory activities by the government in the
past. We must have at least some assurance that we are not embarked on
a course that will lead to a repetition of these abuses because the
statute will now more clearly define what type of information is
subject to disclosure. In addition, Federal officials who receive the
information may use it only as necessary to the conduct of their
official duties. Therefore, any disclosure or use outside the conduct
of their official duties remains subject to all limitations applicable
to their retention and dissemination of information of the type of
information received. This includes the Privacy Act, the criminal
penalties for unauthorized disclosure of electronic surveillance
information under chapter 119 of title 18, and the contempt penalties
for unauthorized disclosure of grand jury information. In addition, the
Attorney General must establish procedures for the handling of
information that identifies a United States person, such as the
restrictions on retention and dissemination of foreign intelligence and
counterintelligence information pertaining to United States persons
currently in effect under Executive Order 12333.
While these safeguards do not fully substitute for court supervision,
they can provide some assurance against misuse of the private,
personal, and business information about Americans, that is acquired in
the course of criminal investigations and that may flow more widely in
the intelligence, defense, and national security worlds.
Disclosure of grand jury information. The wiretap statute was not the
only provision in which the Administration sought broader authority to
disclose highly sensitive investigative information. It also proposed
broadening Rule 6(e) of the Federal Rules of Criminal Procedure to
allow the disclosure of information relating to terrorism and national
security obtained from grand jury proceedings to a broad range of
officials in the executive branch of government. As with wiretaps, few
would disagree that information learned in a criminal investigation
that is necessary to combating terrorism or protecting the national
security ought to be shared with the appropriate intelligence and
national security officials. The question is how best to regulate and
limit such disclosures so as not to compromise the important policies
of secrecy and confidentiality that have long applied to grand jury
proceedings.
I proposed that we require judicial review of requests to disclose
terrorism and foreign intelligence information to officials in the
executive branch beyond those already authorized to receive such
disclosures. Once again, the Administration agreed to my proposal on
Sunday, September 30, but reneged within two days. As a result, the
bill does not provide for any judicial supervision of the new
authorization for dissemination of grand jury information throughout
the executive branch. The bill does contain the safeguards that I have
discussed with respect to law enforcement wiretap information. However,
as with the new wiretap disclosure authority, I am troubled by this
issue and plan to exercise the close oversight of the Judiciary
Committee to make sure it is not being abused.
Foreign intelligence information sharing. The Administration also
sought a provision that would allow the sharing of foreign intelligence
information throughout the executive branch of the government
notwithstanding any current legal prohibition that may prevent or limit
its disclosure. I have resisted this proposal more strongly than
anything else that still remains in the bill. What concerns me is that
it is not clear what existing prohibitions this provision would affect
beyond the grand jury secrecy rule and the wiretap statute, which are
already covered by other provisions in the bill. Even the
Administration, which wrote this provision, has not been able to
provide a fully satisfactory explanation of its scope.
If there are specific laws that the Administration believes impede
the necessary sharing of information on terrorism and foreign
intelligence within the executive branch, we should address those
problems through legislation that is narrowly targeted to those
statutes. Tacking on a blunderbuss provision whose scope we do not
fully understand can only lead to consequences that we cannot foresee.
Further, I am concerned that such legislation, broadly authorizing the
secret sharing of intelligence information throughout the executive
branch, will fuel the unwarranted fears and dark conspiracy theories of
Americans who do not trust their government. This was another provision
of which the Administration reneged on its agreement with me; it agreed
to drop it on September 30, but resurrected it within two days,
insisting that it remain in the bill. I have been able to mitigate its
potential for abuse somewhat by adding the same safeguards that apply
to disclosure of law enforcement wiretap and grand jury information.
"Sneak and peek" search warrants. Another issue that has caused me
serious concern relates to the Administration's proposal for so-called
"sneak and peek" search warrants. The House Judiciary Committee
dropped this proposal entirely from its version of the legislation.
Normally, when law enforcement officers execute a search warrant, they
must leave a copy of the warrant and a receipt for all property seized
at the premises searched. Thus, even if the search occurs when the
owner of the premises is not present, the owner will receive notice
that the premises have been lawfully searched pursuant to a warrant
rather than, for example, burglarized.
Two circuit courts of appeal, the Second and the Ninth Circuits, have
recognized a limited exception to this requirement. When specifically
authorized by the issuing judge or magistrate, the officers may delay
providing notice of the search to avoid compromising an ongoing
investigation or for some other good reason. However, this authority
has been carefully circumscribed.
First, the Second and Ninth Circuit cases have dealt only with
situations where the officers search a premises without seizing any
tangible property. As the Second Circuit explained, such searches are
"less intrusive than a conventional search with physical seizure
because the latter deprives the owner not only of privacy but also of
the use of his property." United States v. Villegas, 899 F.2d 1324,
899 F.2d 1324, 1337 (2d Cir. 1990).
[[Page S10557]]
Second, the cases have required that the officers seeking the warrant
must show good reason for the delay. Finally, while the courts have
allowed notice of the search may be delayed, it must be provided within
a reasonable period thereafter, which should generally be no more than
seven days. The reasons for these careful limitations were spelled out
succinctly by Judge Sneed of the Ninth Circuit: "The mere thought of
strangers walking through and visually examining the center of our
privacy interest, our home, arouses our passion for freedom as does
nothing else. That passion, the true source of the Fourth Amendment,
demands that surreptitious entries be closely circumscribed." United
States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).
The Administration's original proposal would have ignored some of the
key limitations created by the caselaw for sneak and peek search
warrants. First, it would have broadly authorized officers not only to
conduct surreptitious searches, but also to secretly seize any type of
property without any additional showing of necessity. This type of
warrant, which has never been addressed by a published decision of a
federal appellate court, has been referred to in a law review article
written by an FBI agent as a "sneak and steal" warrant. See K. Corr,
"Sneaky But Lawful: The Use of Sneak and Peek Search Warrants," 43 U.
Kan. L. Rev. 1103, 1113 (1995). Second, the proposal would simply have
adopted the procedural requirements of 18 U.S.C. Sec. 2705 for
providing delayed notice of a wiretap. Among other things, this would
have extended the permissible period of delay to a maximum of 90 days,
instead of the presumptive seven-day period provided by the caselaw on
sneak and peek warrants.
I was able to make significant improvements in the Administration's
original proposal that will help to ensure that the government's
authority to obtain sneak and peek warrants is not abused. First, the
provision that is now in section 213 of the bill prohibits the
government from seizing any tangible property or any wire or electronic
communication or stored electronic information unless it makes a
showing of reasonable necessity for the seizure. Thus, in contrast to
the Administration's original proposal, the presumption is that the
warrant will authorize only a search unless the government can make a
specific showing of additional need for a seizure. Second, the
provision now requires that notice be given within a reasonable time of
the execution of the warrant rather than giving a blanket authorization
for up to a 90-day delay. What constitutes a reasonable time, of
course, will depend upon the circumstances of the particular case. But
I would expect courts to be guided by the teachings of the Second and
the Ninth Circuits that, in the ordinary case, a reasonable time is no
more than seven days.
FISA. Several changes in the Foreign Intelligence Surveillance Act
(FISA) are designed to clarify technical aspects of the statutory
framework and take account of experience in practical implementation.
These changes are not controversial, and they will facilitate the
collection of intelligence for counterterrorism and counterintelligence
purposes. Other changes are more significant and required careful
evaluation and revision of the Administration's proposals.
Duration of surveillance. The USA Act, in section 297, changes the
duration of electronic surveillance under FISA in cases of an agent of
a foreign power, other than a United States persons, who acts in the
United States as an officer or employee of a foreign power or as a
member of an international terrorist group. Current law limits court
orders in these cases to 90 days, the same duration as for United
States persons. Experience indicates, however, that after the initial
period has confirmed probable cause that the foreign national meets the
statutory standard, court orders are renewed repeatedly and the 90-day
renewal becomes an unnecessary procedural for investigators taxed with
far more pressing duties.
The Administration proposed that the period of electronic
surveillance be changed from 90 days to one year in these cases. This
proposal did not ensure adequate review after the initial stage to
ensure that the probable cause determination remained justified over
time. Therefore, the bill changes the initial period of the
surveillance 90 to 120 days and changes the period for extensions from
90 days to one year. The initial 120-day period provides for a review
of the results of the surveillance or search directed at an individual
before one-year extensions are requested. These changes do not affect
surveillance of a United States person.
The bill also changes the period for execution of an order for
physical search under FISA from 45 to 90 days. This change applies to
United States persons as well as foreign nationals. Experience since
physical search authority was added to FISA in 1994 indicates that 45
days is frequently not long enough to plan and carry out a covert
physical search. There is no change in the restrictions which provide
that United States persons may not be the targets of search or
surveillance under FISA unless a judge finds probable cause to believe
that they are agents of foreign powers who engage in specified
international terrorist, sabotage, or clandestine intelligence
activities that may involve a violation of the criminal statutes of the
United States.
FISA judges. The bill, in section 208, seeks to ensure that the
special court established under FISA has sufficient judges to handle
the workload. While changing the duration of orders and extensions will
reduce the number of cases in some categories, the bill retains the
court's role in pen register and trap and trace cases and expands the
court's responsibility for issuing orders for records and other
tangible items needed for counterintelligence and counter terrorism
investigations. Upon reviewing the court's requirements, the
Administration requested an increase in the number of federal district
judges designated for the court from seven to 11 of whom no less than 3
shall reside within 20 miles of the District of Columbia. The latter
provision ensures that more than one judge is available to handle cases
on short notice and reduces the need to invoke the alternative of
Attorney General approval under the emergency authorities in FISA.
Agent of a foreign power standard. Other changes in FISA and related
national security laws are more controversial. In several areas, the
bill reflects a serious effort to accommodate the requests for expanded
surveillance authority with the need for safeguards against misuse,
especially the gathering of intelligence about the lawful political or
commercial activities of Americans. One of the most difficult issues
was whether to eliminate the existing statutory "agent of a foreign
power" standards for surveillance and investigative techniques that
raise important privacy concerns, but not at the level that the supreme
Court has held to require a court order and a probable cause finding
under the Fourth Amendment. These include pen register and trap and
trace devices, access to business records and other tangible items held
by third parties, and access to records that have statutory privacy
protection. The latter include telephone, bank, and credit records.
The "agent of a foreign power" standard in existing law was
designed to ensure that the FBI and other intelligence agencies do not
use these surveillance and investigative methods to investigate the
lawful activities of Americans in the name of an undefined authority to
collect foreign intelligence or counterintelligence information. The
law has required a showing of reasonable suspicion, less than probable
cause, to believe that a United States person is an "agent of a
foreign power" engaged in international terrorism or clandestine
intelligence activities.
However, the "agent of a foreign power" standard is more stringent
than the standard under comparable criminal law enforcement procedures
which require only a showing of relevance to a criminal investigation.
The FBI's experience under existing laws since they were enacted at
various time over the past 15 years has been that, in practice, the
requirement to show reasonable suspicion that a person is an "agent of
a foreign power" has been almost as burdensome as the requirement to
show probable cause required by the Fourth Amendment for more intrusive
techniques. The FBI has made a clear case that a relevance standard is
appropriate for counterintelligence and counterterrorism
investigations, as well as for criminal investigations.
[[Page S10558]]
The challenge, then, was to define those investigations. The
alternative proposed by the Administration was to cover any
investigation to obtain foreign intelligence information. This was
extremely broad, because the definition includes any information with
respect to a foreign power that relates to, and if concerning a United
States person is necessary to, the national defense or the security of
the United States or the conduct of the foreign affairs of the United
States. This goes far beyond FBI counterintelligence and
counterterrorism requirements. Instead, the bill requires that use of
the surveillance technique or access to the records concerning a United
States person be relevant to an investigation to protect against
international terrorism or clandestine intelligence activities.
In addition, an investigation of a United States person may not be
based solely on activities protected by the First Amendment. This
framework applies to pen registers and trap and trace under section
215, access to records and other items under section 215, and the
national security authorities for access to telephone, bank, and credit
records under section 506. Lawful political dissent and protest by
American citizens against the government may not be the basis for FBI
counterintelligence and counterterrorism investigations under these
provisions.
A separate issue for pen registers and trap and trace under FISA is
whether the court should have the discretion to make the decision on
relevance. The Administration has insisted on a certification process.
I discussed this issue as it comes up in the criminal procedures for
pen registers and trap and trace under title 18, and my concerns apply
to the FISA procedures as well.
The purpose of FISA. The most controversial change in FISA requested
by the Administration was the proposal to allow surveillance and search
when "a purpose" is to obtain foreign intelligence information.
Current law requires that the secret procedures and different probable
cause standards under FISA be used only if a high-level executive
official certifies that "the purpose" is to obtain foreign
intelligence formation. The Administration's aim was to allow FISA
surveillance and search for law enforcement purposes, so long as there
was at least some element of a foreign intelligence purpose. This
proposal raised constitutional concerns, which were addressed in a
legal opinion provided by the Justice Department, which I insert in the
record at the end of my statement.
The Justice Department opinion did not defend the constitutionality
of the original proposal. Instead, it addressed a suggestion made by
Senator Feinstein to the Attorney General at the Judiciary Committee
hearing to change "the purpose" to "a significant purpose." No
matter what statutory change is made even the Department concedes that
the court's may impose a constitutional requirement of "primary
purpose" based on the appellate court decisions upholding FISA against
constitutional challenges over the past 20 years.
Section 218 of the bill adopts "significant purpose," and it will
be up to the courts to determine how far law enforcement agencies may
use FISA for criminal investigation and prosecution beyond the scope of
the statutory definition of "foreign intelligence information."
In addition, I proposed and the Administration agreed to an
additional provision in Section 505 that clarifies the boundaries for
consultation and coordination between officials who conduct FISA search
and surveillance and Federal law enforcement officials including
prosecutors. Such consultation and coordination is authorized for the
enforcement of laws that protect against international terrorism,
clandestine intelligence activities of foreign agents, and other grave
foreign threats to the nation. Protection against these foreign-based
threats by any lawful means is within the scope of the definition of
"foreign intelligence information," and the use of FISA to gather
evidence for the enforcement of these laws was contemplated in the
enactment of FISA. The Justice Department's opinion cites relevant
legislative history from the Senate Intelligence Committee's report in
1978, and there is comparable language in the House report.
Immigration. The Administration initially proposed that the Attorney
General be authorized to detain any alien indefinitely upon
certification of suspicion to links to terrorist activities or
organizations. Under close questioning by both Senator Kennedy and
Senator Specter at the Committee hearing on September 25, the Attorney
General said that his proposal was intended only to allow the
government to hold an alien suspected of terrorist activity while
deportation proceedings were ongoing. In response to a question by
Senator Specter, the Attorney General said: "Our intention is to be
able to detain individuals who are the subject of deportation
proceedings on other grounds, to detain them as if they were the
subject of deportation proceedings on terrorism." The Justice
Department, however, continued to insist on broader authority,
including the power to detain even if the alien was found not to be
deportable.
I remain concerned about the provision, in section 412, but I believe
that it has been improved from the original proposal offered by the
Administration. First, the Justice Department must now charge an alien
with an immigration or criminal violation within seven days of taking
custody, and the Attorney General's certification of an alien under
this section is subject to judicial review. Second, if an alien is
found not to be removable, he must be released from custody. Third, the
Attorney General can only delegate the power to certify an alien to the
Deputy Attorney General, ensuring greater accountability and preventing
the certification decision from being made by low-level officials.
Despite these improvements, I would have preferred that this provision
not be included, and I would urge the Attorney General and his
successors to employ great discretion in using this new power.
In addition, the Administration initially proposed a sweeping
definition of terrorist activity and new powers for the Secretary of
State to designate an organization as a terrorist organization for
purposes of immigration law. We were able to work with the
Administration to refine this definition to limit its application to
individuals who had innocent contacts with non-designated
organizations. We also limited the retroactive effect of these new
definitions. If an alien solicited funds or membership, or provided
material support for an organization that was not designated at that
time by the Secretary of State, the alien will have the opportunity to
show that he did not know and should have known that his acts would
further the organization's terrorist activity. This is substantially
better than the administration's proposal, which by its terms, would
have empowered the INS to deport someone who raised money for the
African National Congress in the 1980s.
Throughout our negotiations on these issues, Senator Kennedy provided
steadfast leadership. Although neither of us are pleased with the final
product, it is far better than it would have been without his active
involvement.
Trade Sanctions. I was disappointed that the Administration's initial
proposal authorizing the President to impose unilateral food and
medical sanctions would have undermined a law we passed last year with
overwhelming bipartisan support.
Under that law, the President already has full authority to impose
unilateral food and medicine sanctions during this crisis because of
two exceptions built into the law that apply to our current situation.
Nevertheless, the Administration sought to undo this law and obtain
virtually unlimited authority in the future to impose food and medicine
embargoes, without making any effort for a multi-lateral approach in
cooperation with other nations. Absent such a multi-lateral approach,
other nations would be free to step in immediately and take over
business from American firms and farmers that they are unilaterally
barred from pursuing.
Over 30 farm and export groups, including the American Farm Bureau
Federation, the Grocery Manufacturers of America, the National Farmers
Union, and the U.S. Dairy Export Council, wrote to me and explained
that the Administration proposal would "not achieve its intended
policy goal."
I worked with Senator Enzi, and other Senators, on substitute
language
[[Page S10559]]
to give the Administration the tools it needs in this crisis. This
substitute has been carefully crafted to avoid needlessly hurting
American farmers in the future, yet it will assure that the U.S. can
engage in effective multilateral sanctions.
This bipartisan agreement limits the authority in the bill to
existing laws and executive orders, which give the President full
authority regarding this conflict, and grants authority for the
President to restrict exports of agricultural products, medicine or
medical devices. I continue to agree with then-Senator Ashcroft who
argued in 1999 that unilateral U.S. food and medicine sanctions simply
do not work when he introduced the "Food and Medicine for the World
Act."
As recently as October 2000, then-Senator Ashcroft pointed out how
broad, unilateral embargoes of food or medicine are often
counterproductive. Many Republican and Democratic Senators made it
clear just last year that the U.S. should work with other countries on
food and medical sanctions so that the sanctions will be effective in
hurting our enemies, instead of just hurting the U.S. I am glad that
with Senator Enzi's help, we were able to make changes in the trade
sanctions provision to both protect our farmers and help the President
during this crisis.
Money Laundering. Title III of the USA Act consists of a bipartisan
bill that was reported out of the Banking Committee on October 4, 2001.
I commend the Chairman and Ranking Member of that Committee, Senators
Sarbanes and Gramm, for working together to produce a balanced and
effective package of measures to combat international money laundering
and the financing of terrorism.
I am pleased that the Chairman and Ranking Member of the Banking
Committee agreed to our inclusion in the managers' amendment of a small
change to a provision of title III, section 319, relating to forfeiture
of funds in United States interbank accounts. As reported by the
Banking Committee, this provision included language suggesting that in
a criminal case, the government may have authority to seek a pretrial
restraining order of substitute assets. In fact, as all but one of the
circuit courts to consider the issue have held, the government has no
such authority. The managers' amendment strikes the offending language
from section 319.
Another provision added as part of the Banking Committee title--
section 351--is far more troubling. Section 351 creates a new Bank
Secrecy Act offense involving the bulk smuggling of more than $10,000
in currency in any conveyance, article of luggage or merchandise or
container, either into or out of the United States. The obvious purpose
of this section is to circumvent the Supreme Court's decision in United
States v. Bajakajian, 118 S. Ct. 2029 (1998), which held that a
"punitive" forfeiture violates the Excessive Fines Clause of the
Eighth Amendment if it is grossly disproportional to the gravity of the
offense it is designed to punish.
In fact, the crime created in section 351--willfully evading a
currency reporting requirement by "concealing" and transporting more
than $10,000 across a U.S. border--is no different than the crime at
issue in Bajakajian--willfully evading a currency reporting requirement
by transporting more than $10,000 across a U.S. border. A forfeiture
that is "grossly disproportional" with respect to the latter will
inevitably be found "grossly disproportional" with respect to the
former. The new element of "concealment" does little or nothing to
bolster the government's claim to forfeiture of the unreported
currency, since this element is already implicit in the current crime
of evasion: It is hardly likely that a person who is in the process of
willfully evading the currency reporting requirement will be waiving
his currency around for all the world to see.
Conclusion. I have done my best under the circumstances and want to
thank especially Senator Kennedy for his leadership on the Immigration
parts of the bill. My efforts have not been completely successful and
there are a number of provisions on which the Administration has
insisted with which I disagree. Frankly, the agreement of September 30,
2001 would have led to a better balanced bill. I could not stop the
Administration from reneging on the agreement any more than I could
have sped the process to reconstitute this bill in the aftermath of
those breaches. In these times we need to work together to face the
challenges of international terrorism. I have sought to do so in good
faith.
Mr. President, I reserve the remainder of my time and yield the
floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Utah.
Mr. HATCH. Mr. President, I enjoyed the remarks of my distinguished
colleague from Vermont. I compliment him for the work he has done on
this bill and for the hard work, over the last 3 weeks, that he and his
staff have put into this bill, as well as other members of the
Judiciary Committee as a whole, and, of course, people on my side as
well.
Mr. President, I do not intend to take very long. I know our
colleagues are tired, and I know they would like to go home. I also
know that we have a distinguished colleague in the Chamber who has some
amendments on which we may have to vote.
Four weeks ago we were a relatively tranquil nation, but on September
11, in what amounted to a dastardly attack, an unprovoked attack of
war, the World Trade Center was destroyed, along with almost 6,000
people, or maybe more. Our Pentagon was struck by a volitionary act of
terrorism.
As a result of the acts of heroes, one of the planes was downed in
Pennsylvania, killing all aboard, including those heroes who made sure
that that plane did not strike either the Capitol or the White House. I
want to pay special tribute to those people who were so heroic as to
give up their own lives to protect the lives of so many others.
There have been so many acts of heroism and self-sacrifice--the
firefighters who gave their lives, the firefighters who worked day and
night, the volunteers who have gone in there, the mayor of New York
City, the Governor, and so many others who deserve mention.
This bill, hopefully, will help to at least rectify and redeem some
of the problems, problems that have existed ever since September 11.
We did not seek this war; it was thrust upon us. It was an unprovoked
attack by people who claim that they represent a religious point of
view when, in fact, what they represent is a complete distortion of the
religion of Islam.
Islamic people do not believe in murder, murdering innocent
civilians. The Koran does not teach that. They do not believe in
suicide. The Koran does not teach that.
This is not a war against Islam; this is a war against terrorism and
people who have so little regard for human life that they would do
something against innocent civilians that was unthinkable before
September 11.
Therefore, we live in a dangerous and difficult world today. It is a
different world. And we are going to have to wake up and do the things
we have to do to protect our citizenry and, of course, to protect the
rest of the world to the extent this great Nation can, with the help of
other nations, a number of which have become supportive of our efforts.
We are very grateful to them.
But a lot of people do not realize we have terror cells in this
country--that has been in the media even--and there are people in this
country who are dedicated to the overthrow of America. There are people
who are dedicated to terrorism right here within our Nation. And some
of these people who have participated in this matter may very well be
people who were rightfully in our Nation--or at least we thought were
rightfully in our Nation.
The responsibility of redeeming and rectifying this situation is the
responsibility of the Congress, the Justice Department, the FBI, the
INS, and the Border Patrol. It is our job to provide the tools, and for
them to first identify and then eradicate terrorist activity within our
borders. And our President has taken the extraordinary step of saying
we are going to go after terrorists worldwide and those who harbor
them.
I agree with the President. I think it is time to do it. It is time
to hit them where it hurts. It is time to let them know we are not
going to put up with this type of activity.
A few weeks ago, the Justice Department sent up its legislative
proposal. It
[[Page S10560]]
was a good legislative proposal. They had a lot of ideas in there that
literally we have been trying to get through for years. When we passed
the 1996 antiterrorism, effective death penalty act, a number of us
tried to get some of these provisions in at that time, but we were
unsuccessful for a variety of reasons, some very sincere.
The fact is, a lot of the provisions we have in the bill are not
brand new; a lot of them have been requested for years. And had they
been in play, who knows but we might have been able to interdict these
terrorists and have stopped what happened and have stopped the loss of
civil liberties for approximately 6,000 or more people.
In the past several weeks, after the Justice Department sent up its
bill, Senator Leahy and I, Justice Department officials, White House
officials, staff members from both of our staffs, and staff members
from other members of the committee have worked day and night to come
up with this particular bill.
I congratulate my partner and my colleague, Senator Leahy, for his
hard work on this bill, and his staffers' for the work they have done
on this bill, and, of course, my own staffers, and, of course, those
others I have named.
This has been a very difficult bill to put forward because there are
all kinds of cross-pressures, all kinds of ideas, all kinds of
different thoughts, all kinds of differing philosophies. We believe,
with all kinds of deliberation and work, we have been able to put
together a bill that really makes sense, that will give the Justice
Department the tools it needs to be able to work and stamp out
terrorist activity within our country. At least we want to give them
the very best tools we possibly can.
We have tried to accommodate the concerns of Senators on both sides
of the aisle. We have worked very hard to do so. We cannot accommodate
everybody's concerns. As Senator Leahy has said, this is not a perfect
bill. Nothing ever seems to be perfect around here. But this is as good
a bill as can be put together, in a bipartisan way, in this area in the
history of the Senate. I really feel good about it, that we have done
this type of a job.
As I say, a lot of these provisions have been requested by the
Justice Department and both Democrat and Republican White Houses for
years. We took into consideration civil liberties throughout our
discussions on this bill. I think we got it just right. We are
protective of civil liberties while at the same time giving the tools
to the law enforcement agencies to be able to do their jobs in this
country.
I might mention that this bill encourages information sharing, that
would be absolutely prohibited under current law, among various
agencies of Government, information sharing that should have been
allowed a long time ago, at least in my view.
It updates the laws with regard to electronic surveillance and brings
those laws into the digital age, and brings them into an effective way
so that we can, in a modernized way, protect our society, at least to
the extent we can, from these types of terrorist activities.
Of course, little things, such as pen registers, trap-and-trace
authority--we have been able to resolve these problems after years of
problems.
I would like to make a few comments regarding the process for this
legislation. Although we have considered this in a more expedited
manner than other legislation, my colleagues can be assured that this
bill has received thorough consideration. First, the fact is that the
bulk of these proposals have been requested by the Department of
Justice for years, and have languished in Congress for years because we
have been unable to muster the collective political will to enact them
into law.
No one can say whether these tools could have prevented the attacks
of September 11. But, as the Attorney General has said, it is certain
that without these tools, we did not stop the vicious acts of last
month. I say to my colleagues, Mr. President, that if these tools could
help us now to track down the perpetrators--if they will help us in our
continued pursuit of terrorist activities within our national borders
then we should not hesitate any further to pass these reforms into law.
As long as these reforms are consistent with our--Constitution and they
are--it is difficult to see why anyone would oppose their passage.
Furthermore, I would like to clearly dispel the myth that the reforms
in this legislation somehow abridge the Constitutional freedoms enjoyed
by law-abiding American citizens. Some press reports have portrayed
this issue as a choice between individual liberties on the one hand,
and on the other hand, enhanced powers for our law enforcement
institutions. This is a false dichotomy. We should all take comfort
that the reforms in this bill are primarily directed at allowing law
enforcement agents to work smarter and more efficiently--in no case do
they curtail the precious civil liberties protected by our
Constitution. I want to assure my colleagues that we worked very hard
over the past several weeks to ensure that this legislation upholds all
of the constitutional freedoms our citizens cherish. It does.
Mr. President, I will submit for the Record my extended remarks
describing this legislation, but I would like to take a minute to
explain briefly a few of the most important provisions of this critical
legislation.
First, the legislation encourages information-sharing between various
arms of the federal government. I believe most of our citizens would be
shocked to learn that, even if certain government agents had prior
knowledge of the September 11 attacks, under many circumstances they
would have been prohibited by law from sharing that information with
the appropriate intelligence or national security authorities.
This legislation makes sure that, in the future, such information
flows freely within the Federal government, so that it will be received
by those responsible for protecting against terrorist attacks.
By making these reforms, we are rejecting the outdated Cold War
paradigm that has prevented cooperation between our intelligence
community and our law enforcement agents. Current law does not
adequately allow for such cooperation, artificially hampering our
government's ability to identify and prevent acts of terrorism against
our citizens.
In this new war, terrorists are a hybrid between domestic criminals
and international agents. We must lower the barriers that discourage
our law enforcement and intelligence agencies from working together to
stop these terrorists. These hybrid criminals call for new, hybrid
tools.
Second, this bill updates the laws relating to electronic
surveillance. Electronic surveillance, conducted under the supervision
of a federal judge, is one of the most powerful tools at the disposal
of our law enforcement community. It is simply a disgrace that we have
not acted to modernize the laws currently on the books which govern
such surveillance, laws that were enacted before the fax machine came
into common usage, and well before the advent of cellular telephones,
e-mail, and instant messaging. The Department of Justice has asked us
for years to update these laws to reflect the new technologies, but
there has always been a call to go slow, to seek more information, to
order further studies.
This is no hypothetical problem. We now know that e-mail, cellular
telephones, and the Internet have been principal tools used by the
terrorists to coordinate their atrocious activities. We need to pursue
all solid investigatory leads that exist right now that our law
enforcement agents would be unable to pursue because they must continue
to work within these outdated laws. It is high time that we update our
laws so that our law enforcement agencies can deal with the world as it
is, rather than the world as it existed 20 years ago.
A good example of way we our handicapping our law enforcement
agencies relates to devices called "pen registers." Pen registers may
be employed by the FBI, after obtaining a court order, to determine
what telephone numbers are being dialed from a particular telephone.
These devices are essential investigatory tools, which allow law
enforcement agents to determine who is speaking to whom, within a
criminal conspiracy.
The Supreme Court has held, in Smith v. Maryland, that the
information obtained by pen register devices is not information that is
subject to any constitutional protection. Unlike the content of your
telephone conversation
[[Page S10561]]
once your call is connected, the numbers you dial into your telephone
are not private. Because you have no reasonable expectation that such
numbers will be kept private, they are not protected under the
Constitution. The Smith holding was cited with approval by the Supreme
Court just earlier this year.
The legislation under consideration today would make clear what the
Federal courts have already ruled--that Federal judges may grant pen
register authority to the FBI to cover, not just telephones, but other
more modern modes of communication such as e-mail or instant messaging.
Let me make clear that the bill does not allow law enforcement to
receive the content of the communication, but they can receive the
addressing information to identify the computer or computers a suspect
is using to further his criminal activity.
Importantly, reform of the pen register law does not allow--as has
sometimes been misreported in the press--for law enforcement agents to
view the content of any e-mail messages--not even the subject line of
e-mails. In addition, this legislation we are considering today makes
it explicit that content can not be collected through such pen register
orders.
This legislation also allows judges to enter pen register orders with
nationwide scope. Nationwide jurisdiction for pen register orders makes
common sense. It helps law enforcement agents efficiently identify
communications facilities throughout the country, which greatly
enhances the ability of law enforcement to identify quickly other
members of a criminal organization, such as a terrorist cell.
Moreover, this legislation provides our intelligence community with
the same authority to use pen register devices, under the auspices of
the Foreign Intelligence Surveillance Act, that our law enforcement
agents have when investigating criminal offenses. It simply makes sense
to provide law enforcement with the same tools to catch terrorists that
they already possess in connection with other criminal investigations,
such as drug crimes or illegal gambling.
In addition to the pen register statute, this legislation updates
other aspects of our wiretapping statutes. It is amazing that law
enforcement agents do not currently have authority to seek wiretapping
authority from a Federal judge when investigating a terrorist offense.
This legislation fixes that problem.
Moving on, I note that much has been made of the complex immigration
provisions of this bill. I know Senators Specter, Kohl and Kennedy had
questions about earlier provisions, particularly the detention
provision for suspected alien terrorists.
I want to assure my colleagues that we have worked hard to address
your concerns, and the concerns of the public. As with the other
immigration provisions of this bill, we have made painstaking efforts
to achieve this workable compromise.
Let me address some of the specific concerns. In response to the
concern that the INS might detain a suspected terrorist indefinitely,
the Senator Kennedy, Senator Kyl, and I worked out a compromise that
limits the provision. It provides that the alien must be charged with
an immigration or criminal violation within seven days after the
commencement of detention or be released. In addition, contrary to what
has been alleged, the certification itself is subject to judicial
review. The Attorney General's power to detain a suspected terrorist
under this bill is, then, not unfettered.
Moreover, Senator Leahy and I have also worked diligently to craft
necessary language that provides for the deportation of those aliens
who are representatives of organizations that endorse terrorist
activity, those who use a position of prominence to endorse terrorist
activity or persuade others to support terrorist activity, or those who
provide material support to terrorist organizations. If we are to fight
terrorism, we can not allow those who support terrorists to remain in
our country. Also, I should note that we have worked hard to provide
the State Department and the INS the tools they need to ensure that no
applicant for admission who is a terrorist is able to secure entry into
the United States through legal channels.
Finally, the bill gives law enforcement agencies powerful tools to
attack the financial infrastructure of terrorism giving our Government
the ability to choke off the financing that these dangerous terrorist
organizations need to survive. It criminalizes the practice of
harboring terrorists, and puts teeth in the laws against providing
material support to terrorists and terrorist organizations. It gives
the President expanded authority to freeze the assets of terrorists and
terrorist organizations, and provides for the eventual seizure of such
assets. These tools are vital to our ability to effectively wage the
war against terrorism, and ultimately to win it.
There have been few, if any, times in our nation's great history
where an event has brought home to so many of our citizens, so quickly,
and in such a graphic fashion, a sense of our vulnerability to
unexpected attack.
I believe we all took some comfort when President Bush promised us
that our law enforcement institutions would have the tools necessary to
protect us from the danger that we are only just beginning to perceive.
The Attorney General has told us what tools he needs. We have taken
the time to review the problems with our current laws, and to reflect
on their solutions. The time to act is now. Let us please move forward
expeditiously, and give those who are in the business of protecting us
the tools that they need to do the job.
Mr. President, I think most people understand this is an important
bill. All of us understand it needs to be done. All of us understand
that these are tools our law enforcement people deserve and need to
have. And, frankly, it is a bill that I think can make a real
difference with regard to the interdiction of future acts of terrorism
in our society.
Nobody can guarantee, when you have people willing to commit suicide
in the perpetration of these awful acts, at all times that we can
absolutely protect our Nation. But this bill will provide the tools
whereby we might be able--and in most cases should be able--to resolve
even those types of problems.
So with that, I am happy to yield the floor.
The PRESIDING OFFICER (Mr. Durbin). Who yields time?
The Senator from Maryland.
Mr. SARBANES. Mr. President, I yield myself 10 minutes.
The PRESIDING OFFICER. The Senator from Maryland is recognized for 10
minutes.
Mr. SARBANES. Mr. President, I rise in very strong support of S.
1510, the Uniting and Strengthening America Act of 2001, and in
particular, Title III of S. 1510, the International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001.
Title III was reported out of the Committee on Banking, Housing, and
Urban Affairs, which I am privileged to chair, a week ago today by a
unanimous vote of 21 to 0.
President Bush said on September 24: "We have launched a strike on
the financial foundation of the global terror network."
Title III of our comprehensive anti-terrorism package supplies the
armament for that strike. Osama bin Laden may have boasted that "al-
Qaeda [includes] modern, educated youth who are aware of the cracks
inside the western financial system, as they are aware of the lines in
their hands." With Title III, we are sealing up those cracks.
Title III contains, among other things, authority to take targeted
action against countries, institutions, transactions, or types of
accounts the Secretary of the Treasury finds to be of "primary money-
laundering concern." It also contains requirements for due diligence
standards directed at corresponding accounts opened at U.S. banks by
foreign offshore banks and banks in jurisdictions that have been found
to fall significantly below international anti-money laundering
standards.
It contains a bar on the maintenance of U.S. correspondent accounts
for offshore shell banks--those banks that have no physical presence or
employees anywhere, and that are not part of a regulated and recognized
banking company. There is also a requirement that all financial
institutions establish anti-money laundering programs.
Title III also contains several provisions that should enhance the
ability
[[Page S10562]]
of the Government to share more specific information with banks, and
the ability of banks to share information with one another relating to
potential terrorist or money-laundering activities, and a large number
of important technical improvements in anti-money laundering statutes,
as well as, mandates to the Department of the Treasury to act or
formulate recommendations to improve our anti-money laundering
programs.
The problem of money laundering is not a new one. There have been
significant efforts for some time in Congress to cut the financial
lifelines on which criminal operations depend. Senator John Kerry's
exhaustive investigation nearly a decade ago into the collapse of a
shady institution called BCCI, which he found was established with
"the specific purpose of evading regulation or control by
governments," led him to introduce anti-money laundering legislation.
A bill similar to his was approved last year by the Banking Committee
of the House of Representatives on a 31 to 1 vote.
Recent investigations by Senator Carl Levin's Permanent Subcommittee
on Investigations produced two excellent reports on the ways criminals
use financial institutions to launder funds and how we can counter
these activities. Senator Levin's reports demonstrated dramatically how
correspondent banking facilities and private banking services impede
financial transparency and hide foreign client identity and activity,
thereby contributing to international money laundering.
Senator Charles Grassley has also advocated for stronger money
laundering legislation, and sponsored the Money Laundering and
Financial Crimes Strategy Act of 1998, which mandates the development
of an annual national money laundering strategy.
Two weeks ago we held our own hearings in the Banking Committee. We
heard from a number of expert witnesses and from Under Secretary of the
Treasury Gurule; Assistant Attorney General Chertoff; and Ambassador
Stuart Eizenstat, the former Deputy Secretary of the Treasury.
On October 4, the Banking Committee marked-up and reported out our
own bill. The committee print was built, in a sense, on the foundation
given to us by Senators Kerry, Levin, Grassley, and by others in this
institution.
Before describing the provisions of Title III in greater detail, I
want to thank all members of the Banking Committee for their
contributions to this legislation. As I indicated, it came out of the
committee on a vote of 21 to 0. The Ranking Member, Senator Gramm,
provided crucial support. He raised certain issues which were addressed
in the course of the mark-up involving, among other things, important
due process protections. Senators Stabenow and Johnson were
instrumental in producing a compromise to resolve a dispute over one of
the package's most important provisions. Senator Enzi contributed his
experience as an accountant in refining another critical provision.
Senator Schumer, who has been involved in past efforts to address
money laundering activities, played an important role, as did Senators
Allard, Bayh, Corzine, and Crapo, who offered amendments and
contributed important improvements to various parts of the subtitle.
I am deeply grateful to all of the members of the committee for their
strong, positive, and constructive c