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USA Patriot Act

USA PATRIOT ACT

Information compiled by Chris Reichow

 

May  20, 2003


Table Of Contents                                                                                                                 Page

 

Republicans Want Terror Law Made Permanent                                                                       3

Vt. bookseller purges files to avoid potential `Patriot Act' searches                                            5

ACLU Campaign Challenges Patriot Act                                                                                   7

In the Name of Homeland Security, Telecom Firms Are Deluged With Subpoenas                     9

FBI snooping has librarians stamping mad,Local woman jailed in '70s in informant flap               14

University bans controversial links                                                                                             17

Surveillance Powers: A Chart                                                                                                    19

Six Weeks in Autumn                                                                                                               26

The Patriot Act: One Step Closer to a Police State?                                                                  42

Senate Debate on the Patriot Act of 2001                                                                                 46

House Debate on the Patriot Act of 2001                                                                                  197

USA PATRIOT Act as Passed by Congress                                                                             258
Republicans Want Terror Law Made Permanent

By ERIC LICHTBLAU

New York Times Late Edition - Final , Section B , Page 1 , Column 1

ASHINGTON, April 8 — Working with the Bush administration, Congressional Republicans are maneuvering to make permanent the sweeping antiterrorism powers granted to federal law enforcement agents after the attacks of Sept. 11, 2001, officials said today.

The move is likely to touch off strong objections from many Democrats and even some Republicans in Congress who believe that the Patriot Act, as the legislation that grew out of the attacks is known, has already given the government too much power to spy on Americans.

The landmark legislation expanded the government's power to use eavesdropping, surveillance, access to financial and computer records and other tools to track terrorist suspects.

When it passed in October 2001, moderates and civil libertarians in Congress agreed to support it only by making many critical provisions temporary. Those provisions will expire, or "sunset," at the end of 2005 unless Congress re-authorizes them.

But Republicans in the Senate in recent days have discussed a proposal, written by Senator Orrin G. Hatch, Republican of Utah, that would repeal the sunset provisions and make the law's new powers permanent, officials said. Republicans may seek to move on the proposal this week by trying to attaching it to another antiterrorism bill that would make it easier for the government to use secret surveillance warrants against "lone wolf" terrorism suspects.

Many Democrats have grown increasingly frustrated by what they see as a lack of information from the Justice Department on how its agents are using their newfound powers, and they say they need more time to determine whether agents are abusing those powers.

The Senate Democratic leader, Tom Daschle of South Dakota, said today that without extensive review, he "would be very strongly opposed to any repeal" of the 2005 time limit. He predicted that Republicans lacked the votes to repeal the limits.
Indeed, Congressional officials and political observers said the debate might force lawmakers to take stock of how far they were willing to sacrifice civil liberties in the name of fighting terrorism.

Beryl Howell, a former Democratic aide in the Senate who worked extensively on the 2001 legislation, said that by forcing the issue, Mr. Hatch "is throwing down the gauntlet to people who think the U.S.A. Patriot Act went too far and who want to cut back its powers."

Justice Department officials in interviews today credited the Patriot Act with allowing the F.B.I. to move with greater speed and flexibility to disrupt terrorist operations before they occur, and they say they wanted to see the 2005 time limit on the legislation lifted.

"The Patriot Act has been an extremely useful tool, a demonstrated success, and we don't want that to expire on us," a senior department official said on condition of anonymity.

Another senior official who also demanded anonymity said the department had held discussions with Congressional Republicans about how that might best be accomplished. "Our involvement has really been just keeping an open ear to the issue as it's proceeding, not to really guide the debate," the official said.

With the act's provisions not set to expire for more than two and a half years, officials expected that the debate over its future would be many months away. But political jockeying over separate bipartisan legislation sponsored by Senators Jon Kyl, Republican of Arizona, and Charles E. Schumer, Democrat of New York, appears to have given Senator Hatch the chance to move on the issue much earlier than expected.

The Kyl-Schumer measure would eliminate the need for federal agents seeking secret surveillance warrants to show that a suspect is affiliated with a foreign power or agent, like a terrorist group.
Advocates say the measure would make it easier for agents to go after "lone wolf" terrorists who are not connected to a foreign group and might have allowed the F.B.I. to get a warrant against Zacarias Moussaoui, known as the 20th hijacker, before the Sept. 11 attacks.

The proposal was approved unanimously by the Senate Judiciary Committee. But Republicans are upset because several Democrats say that when the measure reaches the Senate floor for a full vote, perhaps this week or later in the month, they plan to offer amendments that would impose tougher restrictions on the use of secret warrants.

Among other proposals, Senator Russell D. Feingold, Democrat of Wisconsin, wants to add amendments that would require the Justice Department to give detailed information about how the secret warrants are being used and that could give defense lawyers access to some information generated by the warrants in criminal cases.
Republicans are countering with amendments of their own, including the idea of making the Patriot Act permanent.

Aides to Senator Hatch would not discuss his views on repealing the time limits in the law.
But an aide who demanded anonymity said of the "lone wolf" bill: "We support this bill as it is and that's how we want to see it passed. If the Democrats want to amend the bill, then we will offer an equal number of amendments to improve the bill as well. We hope the Democrats will stop holding this bill up."

Members of the Judiciary Committee, which Mr. Hatch leads, have been working in recent days to reach an agreement over the amendments that will be considered, officials said. But so far neither side appears willing to back down.

 


Vt. bookseller purges files to avoid potential `Patriot Act' searches

DAVID GRAM, Associated Press Writer Thursday, February 20, 2003


(02-20) 22:15 PST MONTPELIER, Vt. (AP) --

Some booksellers are troubled by a post-Sept. 11 federal law that gives the government broad powers to seize the records of bookstores and libraries to find out what people have been reading.

Bear Pond Books in Montpelier will purge purchase records for customers if they ask, and it has already dumped the names of books bought by its readers' club.

"When the CIA comes and asks what you've read because they're suspicious of you, we can't tell them because we don't have it," store co-owner Michael Katzenberg said. "That's just a basic right, to be able to read what you want without fear that somebody is looking over your shoulder to see what you're reading."

The Patriot Act approved after the 2001 terrorist attacks allows government agents to seek court orders to seize records "for an investigation to protect against international terrorism or clandestine intelligence activities."

Such court orders cannot be challenged like a traditional subpoena. In fact, bookstores and libraries are barred from telling anyone if they get one.

U.S. Attorney Peter Hall played down concern that government agents might soon be darkening the door at Vermont bookstores and libraries.

"Only in very rare and limited and supervised circumstances would anyone be seeking that sort of business information from a bookseller, a library or a business of any sort," Hall said.

He also said businesses can do whatever they want with purchase records as long as the material isn't being sought under a court order.

Such record requests from bookstores were becoming more frequent even before the attacks.

Kramer's Books in Washington won a court order blocking independent counsel Kenneth Starr from getting records of purchases by Monica Lewinsky during his investigation of the sex scandal involving President Clinton. And the Colorado Supreme Court ruled last year for a Denver book store in its fight against a subpoena of purchase records by a defendant in a drug case.

The court found that "compelled disclosure of book-buying records threatens to destroy the anonymity upon which many customers depend."

Chris Finan, president of the American Booksellers' Foundation for Freedom of Expression, said booksellers until now have frequently kept lists of books their customers read as a matter of marketing. Some offer discounts to frequent customers or send a notice when a favorite author has a new release.

Finan said he wasn't aware of any widespread move by booksellers to purge such lists.

Peggy Bresee was in Bear Pond Books recently to buy "War is a Force That Gives Us Meaning" and "The Best Democracy Money Can Buy" as birthday gifts for a son who lives in Utah. She had the store purge the purchase records.

"It really does make me feel so much better," she said. "They're protecting those of us who are readers. It matters."


ACLU Campaign Challenges Patriot Act

 

Privacy unnecessarily threatened under broad surveillance powers, civil liberties group charges.

Michelle Madigan, Medill News Service

Wednesday, October 16, 2002

WASHINGTON -- On the Patriot Act's first anniversary, the American Civil Liberties Union is launching a $3.5 million national campaign to protect the freedoms it says the Bush administration has endangered.

"The ACLU campaign aims to promote a public debate about proposals and measures that violate civil liberties without increasing our security," says Anthony Romero, ACLU's executive director.

The effort includes paid television advertising and organizing its 53 offices and 300,000 members. The focus is on policy issues, including lobbying to repeal portions of the Patriot Act that the ACLU considers anti-civil liberties provisions, says Laura Murphy, director of the ACLU's Washington legislative office.

Sparring Begins

Attorney General John Ashcroft said he welcomes the debate.

"I'm glad I live in a country where the ACLU can criticize me and vigorously debate the issues," Ashcroft says. "I consider it my job as attorney general to make sure that this and all our freedoms endure."

Before passage of the Patriot Act in response to last year's terrorist attacks, police could monitor phone calls using certain techniques. To track outgoing calls, they commonly obtain a "pen register," a judge's order that allowed them to retrieve dialed numbers--but not conversations. A trap-and-trace surveillance technique allows them to record the sources of incoming calls, but still not the content.

The Patriot Act extended these technologies to online communications, giving law enforcement the authority to identify a suspect's e-mail correspondents without knowing the content of the actual messages. Police may also collect a list of Web sites that a suspect visits.

"It was a terrible mistake to extend these rights to the Internet," says Barry Steinhardt, director of technology and liberty programs for the ACLU. URLs "give far more content than a string of telephone numbers."

URLs can often reveal credit card numbers or specific information that a person is looking for on a search engine like Google, he says.

Claims of invasions of privacy online are "baseless," says Mark Corallo, a spokesperson for the Justice Department. He says Congress built safeguards into the law to avoid invasions of privacy, such as a provision prohibiting the FBI from digging into a person's private e-mail.

"The FBI isn't interested in spying on America," Corallo says. "We all take an oath to support and defend the Constitution of the United States. These are people who are dedicated to protecting liberty."

Prodding for Answers

The ACLU's Steinhardt says he does not expect the campaign to immediately affect Justice Department operations. Rather, the ACLU wants to engage the American people, Congress, and the president in a second look at the Patriot Act.

A pair of Congress members have queried Ashcroft about the new tools enabled by the Patriot Act. A letter from House Judiciary Committee Chair F. James Sensenbrenner (R-Wisconsin) and Representative John Conyers (D-Michigan) questioned how effective the tools are in combating terrorism, and raised issues about their implementation.

The committee expects to release the Justice Department response soon.

In addition, the ACLU filed a Freedom of Information Act request in August to force the House Judiciary Committee to disclose the information it gets. Steinhardt says the ACLU will have to review the answers before it decides how to move forward.

National security information is exempt from FOIA, Corallo notes, but the Justice Department will consider the ACLU's request to see if it can release some information.


In the Name of Homeland Security, Telecom Firms Are Deluged With Subpoenas

By MILES BENSON

c.2002 Newhouse News Service

WASHINGTON -- Operating under new powers to combat terrorism, law enforcement agencies are making unprecedented demands on the telecommunications industry to provide information on subscribers, company attorneys say.

These companies and Internet service providers face an escalating barrage of subpoenas for subscriber lists, personal credit reports, financial information, routing patterns that reveal individual computer use, even customer photographs.

Behind the rising pressure for the fullest use of new technology and surveillance is homeland security. As police and intelligence agencies seek to deter future terrorist threats, the government is testing the limits of the expanded authority Congress provided when it passed the Patriot Act with broad bipartisan support in October.

"The amount of subpoenas that carriers receive today is roughly doubling every month -- we're talking about hundreds of thousands of subpoenas for customer records -- stuff that used to require a judge's approval," said Albert Gidari, a Seattle-based expert in privacy and security law who represents numerous technology companies.

The Sunnyvale, Calif., headquarters of Yahoo, an Internet search engine used by millions, now has a voicemail prompt that refers law enforcement authorities to a special telephone number to which they can fax criminal investigation subpoenas.

"Everything is an emergency now," Gidari said, though he believes "a lot of it is just fishing."

Gidari's clients include AT&T Wireless, AOL, the Cellular Telecommunications and Internet Association, Cricket Communications, Nextel, VoiceStream, Cingular Wireless, Rural Cellular Corp., Connexion by Boeing, Terabeam and Infospace.

At the FBI, spokesman Bill Carter referred all inquires about the volume of Patriot Act subpoenas to the Justice Department. At the Justice Department, spokesman Bryan Sierra said it might take "a long time" to determine how many subpoenas have been issued, and that it may not be possible to make the information public.

But clearly the heat is on.

"It's not just volume but the scope of the subpoenas we are seeing, where instead of a rifle shot it's more of a shotgun approach," said Michael Altschul, legal counsel for the Cellular Telecommunications & Internet Association.

Altschul said carriers are struggling "as good citizens" to comply with complex and comprehensive surveillance demands that may sometimes "require adding three shifts around the clock." The subpoenas are beginning to impose a financial burden on companies, Altschul said.

Gidari agreed, saying that companies "should be compensated for reasonable costs" and immunized from lawsuits claiming privacy rights were violated, and that new federal regulations should be drafted to spell out the rights and obligations of service providers.

Edward Black, president of the Computer & Communications Industry Association, said the industry is in "uncharted legal waters" -- caught between customer expectations of privacy and government demands for information. "Either way we might appear to be breaking some kind of law."

Particularly troublesome, Black said, is when law enforcement authorities move swiftly and "short-circuit" regular legal procedures. "I think we must be careful not to create a process whereby using a private company somehow empowers the government to do things they cannot legally do under the new laws," Black said.

"In many respects authorities are doing what most Americans want them to be doing," said Stewart Baker, law enforcement and national security specialist at Steptoe and Johnson, a Washington law firm. "In the long run, though, it does mean there's an awful lot of information about people in law enforcement files, not because the police are bad or corrupt, but because an investigation has to track down a lot of leads.

"What happens to that information four or five years from now? The FBI doesn't throw anything away."

Technology has opened many new windows for law enforcement officers.

A typical subpoena to a cell phone service provider, Gidari said, can be used to identify all calls on a certain date between 10:15 and 10:30 a.m. by everyone in a small town, or within a few square blocks of a big city.

 

Prosecutors, acting under the authority of grand jury investigations, may issue subpoenas without prior approval of a judge. Critics complain that the Patriot Act makes it possible for CIA agents working with law enforcement officers to jointly draw up subpoenas, obtain information, and never have to appear in court to explain how the information was used.

Online booksellers can be forced to divulge lists of customers who have expressed interest in books about explosives, poisons or other subjects that arouse suspicion. The government is also collecting photographs of customers to include in databases for later matches against computerized facial recognition systems, Gidari said.

"Without a judge's order, it used to be they could only get records of someone they suspected was acting on behalf of a foreign government or a terrorist organization," said Kate Martin, director for the Center for National Security Studies, a nonprofit civil liberties group. "Now they can get the records of anyone if they simply say it is `in connection' with a terrorism investigation."

Under the Patriot Act, said James X. Dempsey, director of the Center for Democracy & Technology and author of "Terrorism and the Constitution," the FBI "can go into a public library and ask for the records on anybody who ever used the library, or who used it on a certain day, or checked out certain kinds of books.

"It can do the same at any bank, telephone company, hotel or motel, hospital or university -- merely upon the claim that the information is `sought for' an investigation to protect against international terrorism or clandestine intelligence activities."

Law enforcement officials have begun to press sources to deliver information without a formal subpoena, according to company lawyers. "Investigators have quickly learned that they don't need to leave a paper trail anymore so nobody can judge the lawfulness of a request," Gidari said.

At America Online, spokesman Andrew Weinstein said the company always insists on a court order, a subpoena or a search warrant before turning over information to the government.

But Peter Swire, a law professor at Ohio State University who served as a privacy counselor to the Clinton White House, said he is hearing complaints about "requests for cooperation from law enforcement agencies with the idea that it is unpatriotic if the companies insist too much on legal subpoenas first."

Brent Scowcroft, who a decade ago was national security adviser to the first President Bush and who now serves as an outside adviser to the White House, acknowledges that homeland security requires "a kind of trade-off" of privacy and civil liberties.

"The war on terrorism is basically a war of intelligence," Scowcroft said. "Every time they move, every time they get money or spend money, there's a trace, somewhere. What we need to do is get as many of those traces as we can and put them together into a mosaic which will allow us to uncover the al-Qaida network."

It is necessary to cast a wide net, Scowcroft suggested.

"There are a lot of things floating around that form a pattern that probably defies our own mental ability to put together, but the computer capacity we have now gives you great ability to link similar, apparently very disparate and unconnected patterns together," he said.

There has been little public outcry against the trend, possibly because "there is something that people just haven't grasped, though government investigators have," Gidari said. "A network economy yields so much more information about personal lives that can be collected and manipulated in ways most people don't understand."

In fact, since Sept. 11, pollsters have tracked a dramatic shift in public attitudes about government and privacy. In a national survey March 28, pollster John Zogby found 55 percent in favor of allowing police to search their purses, handbags, backpacks or packages at random anywhere, while 48 percent would allow their cars to be searched, 36 percent would allow their mail to be searched and 26 percent said they would not object to having telephone conversations monitored by authorities.

Prior to Sept. 11, rights to privacy in such areas were "inviolable, the most cherished rights Americans had," Zogby said.

While polls indicate widespread public support for vigorous government action to avert terrorist threats, some privacy experts and civil liberties advocates worry about the possibility of mistakes compounding in an overloaded information system and the long-term danger of abuses when intrusions become routine.

 

Some government officials and others say that the war justifies broad use of surveillance capabilities and new technologies, even at the cost of diminishing privacy and civil liberties.

"When you engage in this debate, you're either going to fall on the side of saying, `I more or less trust law enforcement even if they don't do the right thing 100 percent of the time, and I don't mind them being empowered' -- or you're going to say, `I don't trust law enforcement, and I don't think they should be empowered,"' said Robert Atkinson, formerly a senior analyst for the Congressional Office of Technology Assessment, now vice president of the Progressive Policy Institute, a Democratic think tank.

But it's not simply a matter of trust, said Dempsey of the Center for Democracy & Technology, another Washington think tank.

"We endow government with tremendous power -- power to arrest you, take away your property, take away your life, destroy your reputation, take your children away from you," Dempsey said. "I think those powers in the hands of human beings, acting under pressure, with the best of intentions, facing time deadlines in a world of limited resources, those kinds of powers need to be surrounded with a thicket of rules."

The problem that law enforcement and intelligence agencies face is not insufficient information -- "they are choking on information," Dempsey said. The deficiency is in targeting and analysis. The Patriot Act was based on "the assumption if you pour more data into the system, then the picture would become clearer, and I think that's a false presumption," Dempsey said.

The danger, said John Baker, a law professor at Louisiana State University, is applying the government's war powers to domestic activities. "We've never had such a mix-up between the president's wartime powers and law enforcement," Baker said. "The president has wide powers under war and national defense, but the national government does not have wide powers for law enforcement."

In the '60s and '70s, the FBI ran a massive program called COINTELPRO that included secret investigations, surveillance, infiltration and disruption of political activist groups that were not engaged in illegal conduct, including the civil rights movement, anti-war protesters and feminists.

Today, it is the accumulation of personal information about ordinary citizens that most disturbs civil libertarians, who believe the nation is commencing "the golden age" of wiretapping.

"Consumers should know that the information they give to America Online or Microsoft may very well wind up at the IRS or the FBI," said Jeffrey A. Eisenach, president of the Progress & Freedom Foundation, a think tank that studies technology and public policy. "Security is not costless," Eisenach said.

Writing in the American Spectator recently, Eisenach said high-speed data networks and new technologies "will indeed soon give governments the ability to monitor the whereabouts of virtually everyone."

The aphorism "If you build it, they will come" is apt, said attorney Gidari. "And `they' are the law enforcement authorities."

(Miles Benson can be contacted at miles.benson@newhouse.com)
FBI snooping has librarians stamping mad
Local woman jailed in '70s in informant flap

Bob Egelko, Chronicle Staff Writer

When Oakland resident Zoia Horn, an 84-year-old retired librarian, learned that the FBI was monitoring America's libraries, her first thought was: Here we go again.

Thirty years ago, after an encounter with an FBI informant in a Pennsylvania college library, Horn spent nearly three weeks in jail for refusing to testify for the prosecution in the sensational trial of anti-war activists accused of a terrorist plot.

Horn was "the first librarian who spent time in jail for a value of our profession," said Judith Krug, longtime director of the American Library Association's Office for Intellectual Freedom.

The FBI, under pressure from Congress, eventually abandoned a Cold War program of library surveillance in the mid-1980s. But a post-Sept. 11 law has brought federal agents back into the stacks, and Horn thinks it's time for some librarians to take the same step she did and say no -- even if it means jail.

"I would tell them there are consequences -- it shouldn't be done lightly," said Horn, who believes her notoriety cost her some library jobs. "But there is a sense of freeing yourself. If you can do it, you are doing it for others."

The new surveillance was authorized by last October's USA Patriot Act. A provision of the law allows FBI agents to obtain a warrant from a secret court for library or bookstore records of anyone connected to an investigation of terrorism or spying.

Unlike other search warrants, these warrants do not require the officer to show that evidence of wrongdoing is likely to be found or that the target of its investigation is involved in a crime.

A librarian who is served with a warrant must surrender records of the patron's book borrowing or Internet use and is prohibited from revealing the search to anyone -- including the patron. The Justice Department has refused to tell Congress how the law is being used, saying the information is classified.

The American Library Association is critical of the new law and advises librarians not to keep any records they don't need. But its official position is that a librarian who receives a proper warrant has no choice but to comply.

Horn disagrees.

"They have (another) option, the option I took, to say this is not appropriate, this is not ethical in the library profession," she said. "It undermines the very essence of what a publicly supported library is."

Horn is not alone. An editorial in the August issue of the American Library Association magazine, American Libraries, says that when the FBI inevitably abuses its new powers, "we will need librarians brave enough to speak out, even if it means going to jail."

Krug, who held her current library association position when Horn was jailed, said she couldn't ethically recommend that a librarian defy the FBI "because I wouldn't be going to jail. They might."

However, she said, "I suspect that one of these days we'll have someone else in jail."

Horn left Russia with her family when she was 8 -- "maybe because I immigrated, I took very seriously what the Constitution said," she muses -- and started working at libraries in 1942. In January 1971, she was the chief reference librarian at Bucknell University in sleepy Lewisburg, Pa., when two FBI agents showed up unexpectedly at her home.

They asked her to answer some questions and look at photos. When she refused, she was handed a grand jury subpoena.

She quickly learned that another librarian and two aides had gotten similar visits from agents seeking evidence of a bizarre plot allegedly masterminded by the Rev. Philip Berrigan, a priest then held at the Lewisburg federal prison for destroying draft records.

Prosecutors said Berrigan and six others -- five of them current or former priests or nuns -- were planning to blow up tunnels beneath Washington, D.C., and kidnap Henry Kissinger, President Richard Nixon's national security adviser, and hold him until U.S. bombing of Southeast Asia was halted.

The main evidence came from a man named Boyd Douglas, Berrigan's fellow inmate, who had gotten a job pasting labels at the Bucknell library on a work-release program. During that stint, he befriended Horn.

Horn, who opposed the war to the extent of refusing to pay a federal telephone tax that activists considered a war tax, recalled that Douglas had approached her and others with a phony story that he was in prison for anti-war activities. (He had actually been sentenced for forging checks.)

Using his genuine contact with Berrigan to pose as a movement sympathizer, Douglas got Horn to host a meeting that included some of Berrigan's friends and offered to carry letters to the jailed priest, Horn said.

Horn said she had never seen evidence that Douglas was keeping track of library users. However, she said, it comes down to the same thing: Government spies don't belong in libraries.

"The very presence of an FBI informant sends chills down people's backs," she said. "It means Big Brother is watching you."

Prosecutors pressed Horn for information about meetings and relationships that would support Douglas' allegations of a plot.

She testified to a grand jury in 1971 and said in her 1995 memoirs that she felt "nasty, ugly and alone, watching myself being turned into an informer on neighbors and friends."

When the defendants, who became known as the Harrisburg Seven, went to trial in 1972, Horn decided she couldn't be a part of it. She refused to testify, was found in contempt and was led away in handcuffs as she started to read a statement about freedom of thought.

"I was a bit scared . . . but I felt content," Horn said. Describing her previous anti-war activity as largely passive, she said, "Here I had been offered on a silver platter this opportunity to not say anything, and maybe it would make a difference. . . . I was acting as a citizen and as a librarian."

She was sentenced for the duration of the trial, which was expected to last three months. But testimony ended abruptly in 20 days when the defense -- after a cross-examination that brought out Douglas' criminal record and many contradictory statements -- rested its case without calling any witnesses. The jury deadlocked on the conspiracy charges, which were then dropped.

Before being freed, however, Horn -- who turned 54 in the Dauphin County Jail -- learned that the American Library Association had declared it would not support her defiance, even though the previous year it had passed a resolution she had sponsored saying librarians should not act as informants.

After her release, the association changed course again and commended her. She was later elected to a four-year term on its governing council.

"I don't think we did our job for Zoia," said the association's Krug. She said library officials then were often unwilling to cast the government in a bad light.

Before the trial, Horn had moved to California with her husband, librarian Dean Galloway, and gotten a job at the Stanislaus County library. She returned there after her release but quit in a few months, saying the atmosphere had changed -- there was a chill in the air, and some younger staffers seemed in awe of her, which she found uncomfortable.

She then held some part-time library jobs and worked for 15 years at the nonprofit Data Center in Oakland. But she said she couldn't get a top-level position at a public or college library and finally stopped applying.

"I would be interviewed, they would tell me how much they respected me, but I would never get the job," she said.

"She paid a heavy professional price," said a longtime friend Betty Medsger, former journalism chairwoman at San Francisco State University. "Because she was seen as controversial, I think they didn't want to touch her."

Horn says she has no regrets. Honored for her contributions to freedom of information by the Northern California chapter of the Society of Professional Journalists as well as the American Library Association, she hasn't stopped lobbying her colleagues and their association to take bolder stands.

It was easier for her to live up to her principles, she said, because "I wasn't going to go hungry. I was married to a librarian."

Today's librarians need the assurance that their peers are behind them, Horn said -- legally and financially as well as morally.

"They should say, 'We stand by our librarians if they wish not to respond (to the FBI) because it is against our religion,' " she said. "All kinds of options are there for a librarian with a conscience."

E-mail Bob Egelko at begelko@sfchronicle.com.
University bans controversial links

 

By Declan McCullagh
Staff Writer, CNET News.com
September 25, 2002, 4:13 PM PT


The University of California at San Diego has ordered a student organization to delete hyperlinks to an alleged terrorist Web site, citing the recently enacted USA Patriot Act.

School administrators have told the group, called the Che Cafe Collective, that linking to a site supporting the Revolutionary Armed Forces of Colombia (FARC) would not be permitted because it violated federal law.

In a letter to the Che Cafe Collective, UCSD University Centers Director Gary Ratcliff said the hyperlink violated a law that bans "providing material support to support terrorists." Ratcliff warned that the student organization would face disciplinary action if it did not immediately remove the link to FARC.

 

"The concern of the institution is that this could be interpreted as a violation of the law," Ratcliff said in an interview Wednesday. "What we're trying to be is pro-active here. If the FBI decided to pay attention to this matter, the repercussions would go way beyond their group because we're providing network services."

The law in question is one section of the USA Patriot Act, signed by President George W. Bush last October, which outlaws providing "material support or resources" to foreign terrorists who have been placed on a State Department list. Material support is defined as money, lodging, training or "communications equipment."

As of Wednesday, Che Cafe members had not removed the link from the Burn.ucsd.edu site, which is maintained by the organization. Che Cafe did not reply to interview requests, but said in a letter sent to Ratcliff last week that he does not "have the authority to unilaterally impose sanctions based on your opinion that we violated university policies."

The State Department calls Colombia's FARC a terrorist group because it has kidnapped and murdered U.S. citizens.

Because the FARC, also known by its Spanish name Fuerzas Armadas Revolucionarios de Colombia, appears on the State Department's August list of 34 terrorist organizations, the university says it has no choice but to ban hyperlinks. The law applies to "financial resources, personnel, communications facilities," Ratcliff said. "The information on the site, if you look at it, wasn't viewed as news by the institution, but information the site meant to build support for these organizations. It wasn't an impartial, balanced presentation with analysis or interpretation. These were sites that were trying to generate sympathy."

A taste for anarchy
Che Cafe is a medley of a vegan collective, a cafe that serves organic food, and a confederation of self-described radical students. Its mission is to advance "radical social change," and it keeps links endorsing anarchist sites including Raise the Fist, which the FBI raided in January.

The Foundation for Individual Rights in Education (FIRE) said UCSD's reading of the USA Patriot act was laughably censorious.

"I think their interpretation of materially supporting terrorism is dreadfully overbroad and a massive threat to freedom of speech," said Greg Lukianoff, FIRE's director of legal advocacy. Lukianoff said FIRE was willing to represent the Che Cafe against the university, which must abide by the First Amendment's guarantee of free speech because it is a government school.

"All you'd have to do is declare someone a terrorist organization to prevent someone from knowing who the enemy is or what they stand for," Lukianoff said. "That's not how democracy works."

When asked whether the university would prohibit a faculty member or the student newspaper from linking to an alleged terrorist group, UCSD's Ratcliff said he was not sure. "Those are good questions to ask," he said. "As it relates to this law, it would depend on a case-by-case situation." The UCSD university attorney did not immediately return phone calls.

In April, the Groundwork Books collective, another UCSD student organization, got in trouble for linking to a different terrorist group, the Kurdistan Workers Party (PKK), which is also on the State Department's list. It has removed the link.

Last week, Ratcliff sent the Groundwork Books collective a letter saying that its members must write an essay saying they understand they broke the law and would not do it again. "Groundwork Books will be placed on probation for the 2002-2003 academic year and may be suspended and deregistered as a student organization if during this time it posts material supporting a (foreign terrorist organization) on a Web site it maintains," Ratcliff wrote.

Che Cafe also hosts a collection of statements, including political platforms, relating to the Kurdistan Workers Party.

The Kurdistan Workers Party, according to the FBI, is a Marxist-Leninist group that hopes to overthrow the existing government in southeastern Turkey.


 

Surveillance Powers: A Chart

Changes being considered by Congress

On September 19, only eight days after the tragic terrorist attacks on New York and Washington, the Bush Administration unveiled its proposed Anti-Terrorism Act (ATA), legislation that included many changes to the nation's current surveillance laws. The chart below compares the changes proposed by the ATA, the latest versions of that proposal passed by the House and Senate, and a now-abandoned compromise bill that was passed by the House Judiciary Committee. Also included are capsule ACLU comments on those changes.

The ACLU has five overall concerns about the surveillance provisions of the legislation being discussed:

  • They would reduce or eliminate the role of judges in ensuring that law enforcement wiretapping is conducted legally and with proper justification. There is no reason why the requirement to get a court order for surveillance should slow down the investigation of suspects for which there is evidence of terrorist activities.
  • They would dangerously erode the longstanding distinction between domestic law enforcement and foreign intelligence collection, which protects Americans from being spied upon by their own intelligence agencies, as happened during the Cold War.
  • The definition of "terrorism" is too broad, permitting the special surveillance powers granted in this legislation to be applied far beyond what is commonly thought of by the term. Under the definition proposed by the Administration, even acts of simple civil disobedience could lead organizations such as People for the Ethical Treatment of Animals (PETA) to become targets of "terrorist" investigations.
  • Many of the expansions in surveillance authority being considered are not limited to even the broad definition of terrorism investigations.
  • The Congress is moving unnecessarily and irresponsibly quickly on these measures. It takes a great deal of time to deal with complex issues such as how to apply wiretap law to the Internet, and to think through all the possible unintended consequences of legislative language. Few of the provisions being discussed are needed for the current terrorism investigations, so Congress should take the time to do it right.

Security and civil liberties do not have to be at odds. Law enforcement authorities already have great leeway under current law to investigate suspects in terrorist attacks - including broad authority to monitor telephone and Internet communications. In fact, under current law, judges have rejected only three federal or state criminal wiretap requests in the last decade.

Domestic Surveillance Provisions

Type of Surveillance

Current Law

Original Bush Administration Proposal
(Anti-Terrorism Act or ATA)

House Judiciary compromise bill
(PATRIOT Act)

Senate-passed bill
(USA Act)

House-passed bill
(USA Act)

ACLU Comments

Pen Register/ Trap Trace (PR/TT) authority for the Internet

Allows for the interception of numbers dialed on a telephone line based only upon a law enforcement assertion that it would be "relevant" to an investigation.

PP/TT may be used to collect "addressing" information on the Internet.

Similar to USA Act

PR/TT may be used to collect "addressing" information on the Internet, but not the content of communications. "Content" is not defined. Judges have no power to reject a PP/TT wiretap. Wiretapping equipment must be configured to exclude content and ISPs cannot be required to use equipment designed to allow surveillance.

Same as Senate

On the Internet "addressing" is a meaningless term; PR/TT wiretaps inevitably capture "content." The USA Act does not define what is content or provide for judicial oversight, leaving law enforcement officials (using methods like Carnivore) to decide for themselves what is content. more>

Nationwide PR/TT (roving wiretaps)

A PR/TT warrant applies only within jurisdiction of the Court that issued it.

PR/TT orders issued by one judge can be made valid anywhere in the United States.

Same as ATA

Same as ATA

  Same as Senate

Marginalizes the judiciary. Allows for blank warrants explicitly barred by the Constitution. Makes it difficult for judges to meaningfully monitor orders, or for small, remote ISPs to contest them. more>

Nationwide subpoenas for electronic records

Orders apply only within geographic jurisdiction of the Court approving the surveillance.

Allows courts to issue orders for seizure of electronic evidence in storage, which may include content, that apply to any service provider nationwide.

Same as ATA

Same as ATA

  Same as Senate

Makes it difficult for judges to meaningfully monitor orders, or for small, remote ISPs to contest them. more>

Seizure of voice mail

Law unclear but most believe law enforcement must prove probable cause to a judge.

Stored voice mail messages can be obtained under same terms as stored email: by warrant or by subpoena if more than 180 days old.

Same as ATA

Same as ATA

  Same as Senate

Extends the same inadequate standards that currently govern e-mail to voice mail, which is content and should be subject to the same standard as a wiretap.

Dissemination of wiretap information, including intercept content

Limits disclosure to law enforcement and investigative officer.

Permits broad disclosure to any executive branch employee.

Dissemination limited to federal law enforcement, intelligence, immigration, national security, protective agency, President, or VP as it relates to foreign intelligence.

Allows disclosure of foreign intelligence to intelligence, defense, immigration, and protective officials in performance of their duties. Unauthorized disclosure subject to penalties of Privacy Act.

  Same as Senate

Disclosure not limited to terrorism cases. May be abused for political purposes. Disclosure to intelligence agencies about U.S. citizens effectively puts the CIA back in the business of spying on Americans.

Admission into evidence of wiretap information from foreign governments

Not allowed.

Allows evidence if obtained without US participation or with US participation where interception would have been lawful in US.

Leaves current law unchanged

Leaves current law unchanged

  Same as Senate

ATA would encourage using foreign wiretaps to spy on Americans and undetectable collusion between US and other national intelligence agencies.

Interception of "computer trespasser" information

Not permitted by government without complying with wiretap law.

Permits interception without notice to the target of communications of a broadly defined "computer trespasser" with consent of owner/operator of a protected computer. Computer trespasser could be a customer who violates an ISP's terms of service.

Same as ATA

Same as ATA, except it bars customers or employees who violate terms of service contracts from being treated as "trespassers."

  Same as Senate

The provision is too broad. It removes judicial oversight from the process, and isn't limited to terrorism cases. Innocent targets would never know of surveillance, and  libraries and Internet cafes could authorize blanket wiretapping of their customers. ATA and House compromise versions allow anyone who violates an ISP's or employer's "terms of service" to be surveilled. more>

Sunset provision

None

None

Surveillance provisions sunset December 31, 2003.

None

Surveillance provisions sunset December 31, 2003.

New surveillance powers have not received careful consideration. If they are to be approved, they should be sunsetted. New surveillance powers should be limited to terrorism.

 

Foreign Intelligence Surveillance Provisions

Type of surveillance

Current Law
(FISA)

Original Bush Administration Proposal
(Anti-Terrorism Act or ATA)

House Judiciary compromise bill
(PATRIOT Act)

Senate-passed bill
(USA Act)

House-passed bill
(USA Act)

ACLU Comments

Multi-point authority (roving wiretaps)

Surveillance orders apply only to one specific Internet Service Provider (ISP).

Allows surveillance to follow a person wherever they go or may go.

Same as ATA

Same as ATA

Same as Senate

Intercept is not limited to the target and will lead to interception of many innocent conversations not involving the target. more>

Criminal evidence uncovered using an intelligence (FISA) wiretap.

FISA wiretaps may only be used when foreign intelligence gathering is the primary or sole purpose. If a FISA wiretap yields evidence of crime and investigation of that crime becomes primary purpose of wiretap, criminal wiretap standards must be applied.

Allows lower standards of FISA to be used whenever foreign intelligence is a purpose, even if gathering evidence for the criminal case is the primary purpose.

Same as Senate

FISA may be applied when foreign intelligence is "a significant purpose."

Same as Senate

Bypasses the 4th Amendment's probable cause standards by extending weaker intelligence-gathering wiretap standards to criminal searches. Even USA Act's "significant purpose" language will encourage use of FISA rather than more privacy-protective domestic surveillance laws. more>

Sharing of foreign intelligence information with domestic law enforcement officials

Wiretap and grand jury information from intelligence cases may not normally be disclosed to non-relevant law enforcement officials.

Permits unfettered sharing of any "foreign intelligence information" with many federal officials not involved in law enforcement.

Same as ATA except limits disclosure for "performance of official duties."

Allows disclosure of foreign intelligence (and grand jury) information to intelligence, defense, immigration, and protective officials for "performance of official duties." Makes unauthorized disclosure subject to penalties.

Same as Senate

No definition or limitation of "foreign intelligence." No judicial authorization required. Puts CIA back in the business of collecting information about Americans. Open to abuse against political "enemies." more>

Pen register and trap and trace authority (PR/TT)

PR/TT only allowed when the government proves the surveillance target is "an agent of a foreign power."

Deletes "agent of a foreign power" requirement and allow use of PR/TT when government asserts (not proves) that it is "relevant" to an ongoing intelligence investigation.

Essentially the same as USA Act.

Limits use of FISA PR/TT searches to the purpose of protecting against terrorism or foreign espionage, and bans their use based on activities protected by the First Amendment.

Same as Senate

Eliminates "agents of foreign powers" restriction that protects Americans from improper spying by intelligence agencies. Allows rampant use of PR/TT surveillance. more>

Business records/tangible things

Court order required for access to certain tangible items such as books, records, and papers.

Allows access to tangible things with an administrative subpoena instead of a court order when those things are "relevant" to an intelligence or terrorism investigation.

Same as Senate

Retains the current requirement for a court order, but removes limits on the scope of the tangible items that can be released with one.

Same as Senate

ATA greatly expands access to records without any judicial review. All versions will expand the replacement of domestic laws by FISA to gain access to records.

Access to citizens' educational, credit, consumer and communications records.

Banking, credit and telecommunications records may be accessed only if the consumer is an agent of a foreign power. The release of information on students is generally prohibited.

Allows access to records on certification that they are "relevant" to a intelligence investigation; eliminates requirement that target be an agent of a foreign power. Overrides privacy protections for students in any "national security" matter.

Leaves current law unchanged.

Similar to ATA. Amends Federal communications and privacy laws to let FBI access records without cause based on a mere certification of relevancy to foreign intelligence. No requirement that target be an agent of a foreign power. Amends student privacy laws to allow Dept. of Justice to seek warrants for educational records related to terrorism.

Same as Senate

USA Act and ATA allow sweeping access to sensitive information about Americans under a rationale of intelligence. Such access should be subject to a showing that the subject is an agent of foreign power and that an investigation involves terrorism.

Time limits on surveillance orders

Orders for physical surveillance expire in 45 days, electronic surveillance in 90 days.

Allows surveillance orders for non-citizens for up to 1 year (except green card holders).

Same as ATA

Initial electronic surveillance orders expire in 90 to 120 days, with extensions of up to a year; physical search orders last 45-90 days.

Same as Senate

Severely limits FISA Court's power to ensure that surveillance is continued only when productive. more>

Sunset provision

None

None

Surveillance provisions sunset Dec. 31, 2003.

None

Surveillance provisions sunset Dec. 31, 2003.

New surveillance powers have not received careful consideration. If they are to be approved, they should be sunsetted. New surveillance powers should be limited to terrorism.

 

Six Weeks in Autumn
A year ago, as a nation reeled from attack, a battle was joined for America's future. Not in Afghanistan. In Washington

By Robert O'Harrow Jr.
Washington Post Sunday, October 27, 2002; Page W06

Assistant Attorney General Viet Dinh took his seat in La Colline restaurant on Capitol Hill and signaled for a cup of coffee. It was one of those standard Washington breakfasts, where politicos mix schmoozing and big ideas to start their days.

An intense foot soldier for Attorney General John Ashcroft, Dinh had been in his job for only a few months. He wanted to make a good impression on others at the session and craved the caffeine to keep his edge. As he sipped his fourth cup and listened to the patter of White House and Hill staffers, a young man darted up to the table. "A plane has crashed," he said. "It hit the World Trade Center."

Dinh and the rest of the voluble group went silent. Then their beepers began chirping in unison. At another time, it might have seemed funny. A Type-A Washington moment. Now they looked at one another and rushed out of the restaurant.

It was about 9:30 on September 11, 2001.

Dinh hurried back to the Justice Department, where the building was being evacuated. Like countless other Americans, he was already consumed with a desire to strike back. Unlike most, however, he had an inkling of how: by doing whatever was necessary to strengthen the government's legal hand against terrorists.

Jim Dempsey was sifting through e-mails at his office at the Center for Democracy and Technology on Farragut Square when his boss, Jerry Berman, rushed in.

"Turn on the TV," Berman urged. Dempsey reached for the zapper, and images came rushing at him. Crisp sunshine. Lower Manhattan glinting in the brilliance. A jetliner cutting through the scene.

Dempsey is a lanky and slow-speaking former Hill staffer who combines a meticulous attention to detail with an aw-shucks demeanor. Since the early 1990s, he has been one of the leading watchdogs of FBI surveillance initiatives, a reasoned and respected civil liberties advocate routinely summoned to the Hill by both political parties to advise lawmakers about technology and privacy issues.

As he watched the smoke and flames engulf the World Trade Center, he knew it was the work of terrorists, and the FBI was foremost in his mind. "They have screwed up so bad," he said to himself. "With all the powers and resources that they have, they should have caught these guys."

At the same moment, it dawned on him that his work--and the work of many civil liberties activists over the years to check the increasingly aggressive use of technology by law enforcement officials--was about to be undone. "We all knew well enough what it meant," Dempsey says now.

The car arrived at Sen. Patrick Leahy's house in Northern Virginia shortly after 9 a.m. The Vermont Dem-ocrat took his place in the front seat and, as the car coursed toward the Potomac, he read through some notes about the pending nomination of a new drug czar and thought about a meeting that morning at the Supreme Court.

Half-listening to the radio, Leahy heard something about an explosion and the World Trade Center. He asked the driver to turn it up, then called some friends in New York. They told him what they were seeing on television. It sounded ominous. The car continued toward the Supreme Court and a conference he was to attend with Chief Justice William Rehnquist and circuit court judges from around the country.

Leahy headed to the court's conference room, with its thickly carpeted floors and oak-paneled walls lined with portraits of the first eight chief justices. When Rehnquist arrived, Leahy leaned toward him and whispered, "Bill, before we start, I believe we have a terrorist attack."

As if on cue, a muffled boom echoed through the room. Smoke began rising across the Potomac.

Leahy's country was under attack. And soon enough, the five-term senator realized, he would be as well.

Leahy chaired the Senate Judiciary Committee, putting him at the center of an inevitable debate about how to fight back--a struggle that would subject him to some of the most intense political pressures of his career.

Leahy was more than a Senate leader; he was one of Congress's most liberal members, a longtime proponent of civil liberties who had always worked to keep the government from trampling individual rights. But Leahy was also a former prosecutor, a pragmatist who understood what investigators were up against in trying to identify and bring down terrorists.

He knew that conservatives were going to press him relentlessly for more police powers while civil libertarians would look to him as their standardbearer. Everyone would be watching him: party leaders, Senate colleagues, White House officials, editorial writers and cable commentators, his Vermont constituents.

Leahy wanted to strike the right balance. But after watching an F-16 roar over the Mall that afternoon, he also resolved to do whatever he could, as a patriot and a Democrat, to give law enforcement officials more tools to stop future attacks. "I was just thinking how angry I was," he recalls.

The attacks on the World Trade Center and Pentagon didn't just set off a national wave of mourning and ire. They reignited and reshaped a smoldering debate over the proper use of government power to peer into the lives of ordinary people.

The argument boiled down to this: In an age of high-tech terror, what is the proper balance between national security and the privacy of millions of Americans, whose personal information is already more widely available than ever before? Telephone records, e-mails, oceans of detail about individuals' lives--the government wanted access to all of it to hunt down terrorists before they struck.

For six weeks last fall, behind a veneer of national solidarity and bipartisanship, Washington leaders engaged in pitched, closed-door arguments over how much new power the government should have in the name of national security. They were grappling not only with the specter of more terrorist attacks but also with the chilling memories of Cold War redbaiting, J. Edgar Hoover's smear campaigns, and Watergate-era wiretaps.

At the core of the dispute was a body of little-known laws and rules that, over the last half a century, defined and limited the government's ability to snoop:

Title III of the Omnibus Crime Control and Safe Streets Act governed electronic eavesdropping. The "pen register, trap and trace" rules covered the use of devices to track the origin and destination of telephone calls. The Foreign Intelligence Surveillance Act, or FISA, regulated the power to spy domestically when seeking foreign intelligence information.

The White House, the Justice Department and their allies in Congress wanted to ease those restraints, and they wanted to do it as quickly as possible. Though put into place to protect individuals and political groups from past abuses by the FBI, CIA and others, the restrictions were partly to blame for the intelligence gaps on September 11, the government said.

The administration also wanted new authority to secretly detain individuals suspected of terrorism and to enlist banks and other financial services companies in the search for terrorist financing. What's more, law enforcement sought broad access to business databases filled with information about the lives of ordinary citizens. All this detail could help investigators search for links among plotters.

Dempsey and other civil libertarians agreed that the existing laws were outdated, but for precisely the opposite reason--because they already gave the government access to mountains of information unavailable a decade ago. Handing investigators even more power, they warned, would lead to privacy invasions and abuses.

By the time the debate ended--one year ago, with overwhelming approval of the USA Patriot Act by Congress, and its signing on October 26 by President Bush--the government had powers that went far beyond what even the most ardent law enforcement supporters had considered politically possible before the attacks.

How this happened--through backroom negotiations, political maneuvering and public pressure by Bush administration officials--is a largely untold tale with consequences that will reverberate for years to come.

They stared at a television in the bright sunroom of Dinh's Chevy Chase home, a handful of policy specialists from the Justice Department who wondered what to do next.

Only hours before, they had fled their offices, cringing as fighter jets patrolled Washington's skies. Now, as news programs replayed the destruction, they talked about their friend Barbara Olson, conservative commentator and wife of U.S. Solicitor General Ted Olson. She was aboard American Airlines Flight 77 when it crashed into the Pentagon.

Dinh couldn't believe Barbara was gone. He'd just had dinner at the Olsons' house two nights before, and she had been in rare form. Her humor was irrepressible. Dinh passed around a book of photography she had signed and given to him and the other dinner guests, Washington, D.C.: Then and Now.

It was hard to process so much death amid so much sunshine. Dinh and his colleagues tried to focus on the work head. They agreed they faced a monumental, even historic task: a long overdue reworking of anti-terrorism laws to prevent something like this from happening again on American soil.

Their marching orders came the next morning, as they reconvened in a conference room in Dinh's suite of offices on the fourth floor of Justice. Ashcroft wasn't there--he was in hiding along with other senior government officials. Just before the meeting, Dinh had spoken to Adam Ciongoli, Ashcroft's counselor, who conveyed the attorney general's desires.

"Beginning immediately," Dinh told the half a dozen policy advisers and lawyers, "we will work on a package of authorities"--sweeping, dramatic and based on practical recommendations from FBI agents and Justice Department lawyers in the field. "The charge [from Ashcroft] was very, very clear: 'all that is necessary for law enforcement, within the bounds of the Constitution, to discharge the obligation to fight this war against terror,' " he said.

Dinh's enthusiasm for the task was evident. At 34, he seems perpetually jazzed up, smiles often and speaks quickly, as though his words, inflected with the accent of his native Vietnam, can't quite keep up with his ideas. A graduate of Harvard Law School, he learned his way around Washington as an associate special counsel to the Senate Whitewater committee, and as a special counsel to Sen. Pete Domenici (R-N.M.) during the Clinton impeachment trial.

"What are the problems?" Dinh asked the group around the table.

For the next several hours--indeed, over the next several days--Dinh's colleagues catalogued gripes about the legal restraints on detective and intelligence work. Some of the complaints had been bouncing around the FBI and Justice Department for years.

Because of the law's peculiarities, it was unclear if investigators were allowed to track the destination and origin of e-mail the same way they could phone calls. They could obtain search warrants more easily for a telephone tape machine than for commercial voice mail services. And the amount of information that intelligence agents and criminal investigators were permitted to share was limited, making it much harder to target and jail terrorists.

All of this, the lawyers agreed, had to change. Now.

Dempsey was swamped. Reporters, other activists, congressional staffers--everyone wanted his take on how far the Justice Department and Congress would go in reaction to the attacks. "We were getting 50 calls a day," he recalls.

Like many attuned to the rhythms of Washington, Dempsey knew Congress would not have the will to resist granting dramatic new powers to law enforcement immediately. It was a classic dynamic. Something terrible happens. Legislators rush to respond. They don't have time to investigate the policy implications thoroughly, so they reach for what's available and push it through.

That was a nightmare for Dempsey. Looking for signs of hope that the legislative process could be slowed, even if it could not be stopped, he made his own calls around town.

He didn't find much support, even among longtime allies. "If you could get their attention," Dempsey says, "some members of the House and Senate were, 'Don't bother me with the details.' "

"A crisis mentality emerges, and there was clearly a crisis . . . The push for action, the appearance of action, becomes so great."

Within days of the attack, a handful of lawmakers took to the Senate floor with legislation that had been proposed and shot down in recent years because of civil liberties concerns. Many of the proposals had originally had nothing to do with terrorism.

One bill, called the Combating Terrorism Act, proposed expanding the government's authority to trace telephone calls to include e-mail. It was a legacy of FBI efforts to expand surveillance powers during the Clinton administration, which had supported a variety of technology-oriented proposals opposed by civil libertarians. Now it was hauled out and

approved in minutes.

One of the few voices advocating calm deliberation, Dempsey says, was Leahy. But it was not clear what he would be able to do in such a highly charged atmosphere.

Across the city and across the country, other civil libertarians braced themselves for the fallout from the attacks.

Among them was Morton Halperin, former head of the Washington office of the American Civil Liberties Union and a former national security official in three administrations. Halperin, a senior fellow at the Council on Foreign Relations, is personally familiar with government surveillance.

While working as a National Security Council staffer in the Nixon administration, Halperin was suspected of leaking information about the secret U.S. bombing of Cambodia. To this day, Halperin has not addressed the allegations, but his house was wiretapped by the FBI, and the taps continued for months after he left the government.

Now, 24 hours after the attacks, he read an e-mail from a member of an online group that had been formed to fight a Clinton administration plan to make publishing classified materials a crime. The writer warned the plan would now be reprised.

Halperin had been anticipating this moment for years. More than a decade ago, he wrote an essay predicting that terrorism would replace communism as the main justification for domestic surveillance. "I sat and stared at that e-mail for a few minutes and decided that I could not do my regular job, that I had to deal with this," he says.

Halperin banged out a call to arms on his computer. "There can be no doubt that we will hear calls in the next few days for congress to enact sweeping legislation to deal with terrorism," he wrote in the e-mail to more than two dozen civil libertarians on September 12. "This will include not only the secrecy provision, but also broad authority to conduct electronic and other surveillance and to investigate political groups . . . We should not wait."

Within hours, Dempsey, Marc Rotenberg from the Electronic Privacy Information Center and others had offered their support. Their plan: to build on Halperin's call for legislative restraint, while striking a sympathetic note about the victims of the attacks. They started putting together a meeting to sign off on a civil liberties manifesto: "In Defense of Freedom at a Time of Crisis."

Underlying the discussion about how to respond to the terror attacks was the mid-1970s investigation, led by Sen. Frank Church (D-Idaho), into the government's sordid history of domestic spying. Through hundreds of interviews and the examination of tens of thousands of documents, the Church committee found that the FBI, CIA and other government agencies had engaged in pervasive surveillance of politicians, religious organizations, women's rights advocates, antiwar groups and civil liberties activists.

At FBI headquarters in Washington, for example, agents had developed more than half a million domestic intelligence files in the previous two decades. The CIA had secretly opened and photographed almost a quarter-million letters in the United States from 1953 to 1973.

One of the most egregious intelligence abuses was an FBI counterintelligence program known as COINTELPRO. It was, the Church report said, "designed to 'disrupt' groups and 'neutralize' individuals deemed to be threats to domestic security." Among other things, COINTELPRO operations included undermining the jobs of political activists, sending anonymous letters to "spouses of intelligence targets for the purposes of destroying their marriages," and a systematic campaign to undermine the Rev. Martin Luther King Jr.'s civil rights efforts through leaked information about his personal life.

"Too many people have been spied upon by too many government agencies and too much information has been collected" through secret informants, wiretaps, bugs, surreptitious mail-opening and break-ins, the Church report warned.

Congress responded with a series of laws aimed at curbing government abuses. One was the Foreign Intelligence Surveillance Act of 1978, which gave broad powers for counterintelligence officials to monitor the agents of foreign countries.

Under FISA, authorities had to demonstrate, to the super-secret Foreign Intelligence Surveillance Court, that the principal purpose for their surveillance was foreign intelligence. But the law also restricted the use of those powers for domestic criminal investigations and prosecutions.

For all the secrecy surrounding FISA--and despite the fact the FISA court has never denied an application for electronic surveillance--civil libertarians consider the law one of the key safeguards against domestic spying.

But some conservatives have long contended that the law created unnecessary, even absurd, barriers between criminal and intelligence investigators. The Bush administration believed those barriers were getting in the way of uncovering terrorist cells operating here and abroad.

Law enforcement authorities also chafed at internal guidelines imposed by the Justice Department in response to the Church committee revelations. Agents weren't allowed to monitor religious services without evidence of a crime, for instance, which made it hard to investigate mosques that might be harboring terrorists. Ashcroft claimed that the rules even prohibited investigators from surfing the Web for information about suspects.

When Dinh and his team began taking stock of needed legal changes, the legacy of the Church committee loomed large. They saw a chance to turn back the clock. Standing in their way were people like Dempsey and Halperin.

Scores of people streamed into the ACLU's white stucco townhouse on Capitol Hill on the Friday after the attacks, responding to Halperin's e-mail and calls from ACLU lobbyists.

As with so many privacy battles, there were some strikingly strange bedfellows in attendance: Liberal immigration rights groups. Libertarians from the conservative Free Congress Foundation and Eagle Forum. Technology-savvy activists from the Electronic Privacy Information Center and the Center for Democracy and Technology.

They filled the main conference room downstairs, overflowing through French doors into a garden, and up the stairway to the ACLU's offices. The ACLU's headquarters, recently relocated downtown, has been the site of countless strategy meetings over the years on abortion rights, civil rights, freedom of speech and religious freedom.

Even so, "I had never seen that kind of turnout in 25 years," says Laura Murphy, director of the ACLU's national office. "I mean, people were worried. They just knew this was a recipe for government overreaching."

They also grasped the difficulty of their position. Here they were, trying to persuade Americans to hold fast to concerns about individual freedom and privacy, while the vast majority of people were terrified. Polls later showed that most people were more than willing to trade off civil liberties and privacy protections for more security.

Murphy and others also had reached out to Congress in an effort to head off any instant legislation. They found that normally privacy-minded lawmakers, including Sens. Dianne Feinstein (D-Calif.) and Charles Schumer (D-N.Y.), had no intention of questioning efforts to push a bill through quickly.

Even Rep. Bob Barr (R-Ga.), a conservative and dedicated privacy advocate, couldn't offer much hope. Barr and Murphy had worked closely together in recent years, though they come from different ends of the political spectrum. When she called him after the attacks, he confessed there was probably little he could do to temper the anti-terrorism fervor gripping Washington.

"You could sort of hear the clutch in his voice: 'I don't know how we're going to do this,' " she recalls.

Murphy stood at the front of the room with Halperin, trying to win consensus from those assembled on language they would use to voice their concerns. Dempsey, who arrived late, was off to one side, a sinking feeling in his stomach. For all the numbers, the normally raucous group was subdued. Some in attendance owned up to their own fears about new attacks. Everyone "was a little overwhelmed by the magnitude of the task," Dempsey says.

After debate over how to express clear sympathy for the victims of the attack, the group worked out a 10-point statement. "We must have faith in our democratic system and our Constitution, and in our ability to protect at the same time both the freedom and the security of all Americans," read point No. 10.

The document was signed by representatives of more than 150 groups, including religious organizations, gun owners, police and conservative activists. A few days later, they released it at a press conference and posted it on a Web site.

What kind of impact did it have? Apparently not much. A year later, several key officials from the White House and Justice Department say they have never even heard of the appeal.

To say it was a trying time for Leahy is an understatement. He would later describe those days as among the most challenging and emotional of his 28 years in the Senate: "What made this the most intense were not just the issues, but the great sorrows I felt."

The senator was saddled with the responsibility of crafting the Senate proposal for anti-terrorism legislation. He didn't want to ram a bad law through Congress, but he also didn't want to be seen as an obstructionist. So he offered to negotiate a bill directly with the White House, avoiding the time-consuming committee-approval process. Now he had to come up with a way of maintaining meaningful privacy protections while expanding the government's surveillance powers.

As he worked to reconcile those competing interests, he took long walks around the Capitol and down to the Mall. Everywhere he went the mood was grim. "I saw the same faces as I did when I was a law school student [in the District] and President Kennedy had been killed," Leahy says. "I saw the same shock, and I wanted to make sure our shock didn't turn into panic."

It was crucial, Leahy thought, to take enough time with the legislation to get it right. Or as he put it to senior aide Beryl Howell, a former federal prosecutor: "Let's not do a knee-jerk reaction."

Leahy thought he could serve as a bridge between privacy advocates and the government. He was trusted by civil libertarians, but had a cordial enough relationship with Ashcroft, who was a former Senate colleague. Though Ashcroft was an ardent conservative loathed by many liberals, the two had worked together in Congress on encryption legislation. Even after Leahy voted against Ashcroft's confirmation as attorney general, he called Ashcroft afterward to pledge his cooperation. Since then they'd gotten along fine. In the weeks before September 11, they'd been consulting frequently on a major overhaul of the FBI, which was under fire for bungling a series of high-profile cases.

But the terrorist attacks quickly strained their amicable relations. Within days, Ashcroft held a press conference and called on Congress to approve the Justice Department's legislative plan in a week's time. Leahy was surprised--and irritated. The implication, Leahy says, was "we were going to have another attack if we did not agree to this immediately."

But if he balked, Leahy risked getting hammered as soft on terrorism--or so he and other Democrats feared. Leahy, backed by other Democrats, had begun working on his own anti-terrorism bill, a 165-page tome called the Uniting and Strengthening America Act.

On September 19, congressional, White House and Justice leaders gathered in an ornate room in the Capitol to exchange proposals.

Along with Leahy, Orrin Hatch (R-Utah), Richard Shelby (R-Ala.) and others were there from the Senate. House Majority Leader Richard Armey (R-Tex.), John Conyers Jr. (D-Mich.) and others represented the House. From the White House came counsel Alberto Gonzales. Ashcroft, Dinh and their entourage arrived from Justice.

As the meeting got started, Dinh made a beeline for a seat near the head of the conference table. Leahy and his colleagues raised their eyebrows and shook their heads. Only members of Congress were supposed to sit at the table, one of the senators told Dinh, asking him to sit with the rest of the staff.

Dinh wasn't too troubled by his faux pas. He and his staff were too focused on the 40-page proposal they'd brought with them, the fruit of several all-nighters at Justice. During the crash drafting effort, Dinh had slept on a black leather couch, beneath an American flag, not far from a worn paperback copy of the Federalist Papers.

He handed out copies of his proposal. Leahy did the same with his draft, stressing that he thought the group should move forward deliberately.

It turned out the proposals were similar in some key respects. Both bills called for updates to the pen register and trap and trace laws, clarifying how they applied to e-mail and the Internet. Both included provisions bolstering money-laundering and wiretap laws. They also proposed making it easier for authorities to get approval for wiretaps in spying and counterintelligence cases.

The administration proposal, however, went much farther. It called for indefinite detention of any noncitizen the attorney general "has reason to believe may further or facilitate acts of terrorism," as well as the unrestricted sharing of grand jury and eavesdropping data throughout the government. It permitted Internet service providers or employers to voluntarily allow the FBI to tap e-mail. And it made a small but important modification to the FISA law, changing the legal language so foreign intelligence had to be only "a" purpose of an investigation, rather than "the" purpose, to secure surveillance authority.

Leahy and some of the other lawmakers murmured about those last provisions. Giving criminal investigators unchecked access to FISA powers could break down constitutional safeguards against unreasonable searches and seizures, leading to abuses against U.S. citizens.

Armey, one of the most conservative members in Congress, also expressed concern. It was Armey, in fact, who was already discussing a "sunset" provision to the new law, placing time limits on how long parts of it would remain in effect. A sunset provision would guarantee that some of the most troubling new powers would be revisited by Congress, giving lawmakers an important check on executive authority.

"There were a lot of people in the room, both Republican and Democrat," Leahy says, "who were not about to give the unfettered power the attorney general wanted."

Armey also warned that it might take a few weeks to adopt a bill. In effect, he was urging Ashcroft to back away from his public pressure to approve a law in the next few days.

When the group emerged from the meeting, Ashcroft changed his tone slightly, telling reporters that he wanted to pass a bill as quickly as possible. Leahy likewise struck a conciliatory note.

"We're trying to find a middle ground, and I think we can," he said that day. "We probably agree on more than we disagree on."

But Leahy also made it clear he would not be rushed into approving a bill. "We do not want the terrorists to win by having basic protections taken away from us," he said. It was a boilerplate rendering of a quotation from Benjamin Franklin that Leahy invoked repeatedly: "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."

The truce between Leahy and Ashcroft didn't last long. Despite Ashcroft's shift in tone, the pressure to move quickly on legislation intensified. For Dempsey, it was depressing.

One afternoon in late September, he was invited by Howell, Leahy's adviser, to a legislative briefing. Howell wanted Justice Department officials and civil libertarians to describe to Senate staffers their thoughts about expanding law enforcement authority. The point was to give everyone involved more ideas.

Dempsey was eager to attend. "My hope was there could actually be some sort of debate," he says.

Then the Justice Department folks arrived. Howell hadn't told them they would be discussing their proposals with civil libertarians. "They were livid," Dempsey says. "They explicitly said, 'We don't think outsiders should be here, and we won't talk unless they leave the room.' "

Howell quickly brokered a deal. Dempsey and the other civil liberties advocates could stay to hear Justice's presentation, but there would be no back-and-forth discussion. As soon as the Justice delegation finished speaking about their proposals, "they got up and left," Dempsey says. "I was just in despair. I just thought we are never going to be able to work this out."

At the end of September, Leahy's staff and administration officials spent hours together thrashing out questions about civil liberties, the new police and intelligence powers, and oversight by courts and Congress.

In a push to come to some agreement on the bill's wording, Howell met with White House Deputy Counsel Timothy Flanigan in the Senate Judiciary Committee hearing room. Flanigan was representing the president as well as the attorney general in the negotiations.

Howell and he tangled over whether the law would allow American prosecutors to use evidence from abroad that was obtained through methods illegal in the United States. They also differed over whether a court should serve as a check on the sharing of grand jury, wiretap and other criminal investigative information.

Eventually, Flanigan made some concessions. He agreed that the government would not use evidence about U.S. citizens obtained abroad in an illegal manner under U.S. law, and that a court would review information before it could be shared among intelligence and law enforcement agencies within the United States.

On October 1, Leahy thought he had a final agreement in hand. He was so confident that he stopped by Senate Majority Leader Tom Daschle's office to assure him: "We have it all worked out."

Leahy left the Capitol that evening feeling satisfied. He'd done what he could to protect civil liberties by providing oversight for surveillance and domestic intelligence. But he had also moved quickly to bolster law enforcement and counterintelligence operations. No one could accuse the Democrats of coddling terrorists.

The next morning Leahy sat in his office across a polished wood conference table from Ashcroft, Hatch, Michael Chertoff, chief of the Justice Depart-ment's criminal division, and Gonzales, the White House counsel. They'd come together to sign off on the deal. But Ashcroft was having second thoughts about some of Flanigan's concessions. The agreement, he told Leahy, no longer held.

Leahy felt blindsided. He'd invested his prestige in these negotiations, and now it looked like he didn't count. "I said, 'John, when I make an agreement, I make an agreement. I can't believe you're going back on your commitment.'"

Ashcroft's support was critical to the bill's approval. The Senate and Bush administration had agreed to deliver a proposal together, and the process could not go forward without Ashcroft's imprimatur.

Flanigan downplays the dispute, saying it was only one of many disagreements in a tough series of talks that ebbed and flowed.

"There were several points in the negotiations at which they recognized that they had given up too much, and there were other times that we realized we hadn't asked for enough," Flanigan says. "It's understandable. It's the pace of the negotiations.

"You know, there'd be groans around the table and nobody was pleased to see an issue reopened. But I think it all was conducted in a spirit [of] we're all trying to get to a result here."

In any case, there was no hiding the growing animosity between Leahy and the administration. Ashcroft didn't even try. Not long after leaving Leahy's office, Ashcroft held a press conference with Hatch at his side.

"I think it is time for us to be productive on behalf of the American people," said the attorney general. "Talk won't prevent terrorism," Ashcroft said, adding that he was "deeply concerned about the rather slow pace" of the legislation.

"It's a very dangerous thing," Hatch agreed. "It's time to get off our duffs and do what's right."

Leahy was deeply distressed by the collapse of the deal. He felt the administration was intent on steamrolling over him. But there was frustratingly little he could do about it. He didn't even have the political leverage in the Senate to push for the same sunset provision being championed by Armey in the Republican-controlled House. Leahy knew he would have to rely on the House to fight that battle with the administration. He would have to do the same on securing court oversight of the government's new surveillance powers.

Court oversight would be especially important in light of a critical but unheralded portion of the new legislation: Section 215.

For many years, FISA gave investigators access to the commercial records of people under investigation in national security cases, but only from a small range of businesses, including hotels, storage facilities and car rental companies.

Section 215 of the bill would greatly expand that, allowing investigators to obtain records from Internet service providers, grocery stores, libraries, bookstores--just about any business. More importantly, it would remove the requirement that the target of the records search be "an agent of a foreign power."

Those changes were significant because of the data-collection revolution of the 1990s. Cheaper computing power and an ever-expanding Internet have enabled businesses to watch what was once unwatchable and glean meaning and profit from the ephemera of daily life. Never before has so much information been collected and parsed about so many of us--often in the name of giving us conven-iences, discounts and other benefits.

Someone is likely monitoring us at work, recording what we buy, noting our whereabouts while we use our cell phones, scrutinizing our drug prescriptions. Marketers know our names, addresses, estimated incomes, the size of a family's house, the type of car we drive, the magazines we read, the beer we drink.

Libraries use computers to keep track of what we read. Hotels keep electronic records of when we come and go. Bookstores know what we buy. Many toll roads can say precisely when we have driven by.

The implications of giving the government access to so much personal information unnerved Dempsey and other civil libertarians, who were disappointed that Leahy and his allies couldn't do more to stand up to the administration. While Dempsey understood the political pressures on the senators, he worried that they didn't completely understand some of the compromises they were making.

Leahy was also rueful about the outcome. His bill, introduced in the Senate two days after his acrimonious meeting with Ashcroft, gave Justice much more power than he had originally intended. But he was prepared to swallow hard and support it. To do anything else was politically impossible.

Late on October 11, the Senate assembled to vote. Leahy and Daschle knew every Republican would support the bill. They wanted Democrats to do the same. But Sen. Russell Feingold was refusing to go along.

A liberal who routinely bucks pressure from his own party, the Wisconsin Dem-ocrat had deep reservations about the bill hurtling through the Senate. He considered the provisions "some of the most radical changes to law enforcement in a generation" and was particularly worried that Section 215 gave the government way too much power to sift through people's lives. He wanted the Senate to vote on a series of amendments that would do more to protect privacy.

Feingold's stance annoyed Daschle, who cornered him in the back of the Senate floor shortly before the vote. "The bill will only get worse if we open it up to debate," he told Feingold.

Leahy also chimed in, telling Feingold that while he agreed with almost everything Feingold was proposing, the votes simply weren't there. Leahy warned that if Feingold offered amendments, their conservative colleagues would try to give investigators even more extensive powers.

Feingold wouldn't budge.

"There is no doubt," he declared on the Senate floor that evening, "that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country where the police were allowed to search your home at any time for any reason; if we lived in a country where the government was entitled to open your mail, eavesdrop on your phone conversations, or intercept your e-mail communications . . . the government would probably discover and arrest more terrorists, or would-be terrorists . . . But that would not be a country in which we would want to live."

Feingold offered his amendments, and they were rejected. One month after the attacks, the bill passed the Senate, 96-1.

Lawmakers and legislative aides were lining up for nasal swabs and Cipro. Yellow police tape encircled the Hart Senate Office Building. The House had shut down for the first time in memory.

On October 17, the capital was confronting a new threat: anthrax. It was contained in a letter mailed to Daschle, and no one knew how many people might have been exposed. Were there more letters? Were anthrax spores floating through the Capitol's ventilation system? Suddenly, it became more urgent than ever to get the Patriot Act to the president's desk.

Amid the panic, Leahy, Daschle, Flanigan, Dinh and others gathered in House Speaker Dennis Hastert's office to smooth out the differences between the Senate and House versions of the bill. The House bill, which passed in the early morning hours of October 12, included sunset and court-oversight provisions Leahy had been unable to get in the Senate.

There was no longer any question that the Patriot Act would include some court oversight, though not as much as Leahy and Armey wanted. The key issue remaining for those in Hastert's office was how long the new law should be in effect. Leahy and Armey pressed for a four-year "sunset," which would force the White House to win congressional approval of the most controversial provisions of the law all over again in 2005. The administration wanted no time limit on its effect.

"We're feeling very strongly about the sunsetting," Flanigan told the lawmakers. "This is not a war of a fixed duration. And it will not change the culture of law enforcement and national security if we basically make this a short-term fix."

Daschle, who knew how badly Bush wanted to avoid any delay in signing the legislation, turned to the lawyer and smiled. "Mr. Flanigan, does this mean the president will veto the bill?" he asked.

"And then of course," Flanigan acknowledges now, "I had to say no."

They agreed on four years.

In the year since the Patriot Act was approved, the government has moved quickly to take full advantage of new and existing powers.

More than a thousand noncitizens were detained without being charged last fall, and their identities were kept secret. Hundreds of Muslim men--citizens and noncitizens--were placed under surveillance by federal investigators across the country. Their movements, telephone calls, e-mail, Internet use and credit-card charges are being scrutinized around the clock--a campaign that has resulted in criminal charges against 18 suspected al Qaeda operatives near Seattle, Detroit, Buffalo, N.Y., and Portland, Ore.

"We've neutralized a suspected terrorist cell within our borders," Ashcroft announced earlier this month at press conference about the indictments of six in Portland charged with conspiring to aid al Qaeda and the Taliban regime in Afghanistan. He called the indictments "a defining day in America's war against terrorism."

And it's clear that the war is just getting underway. The FBI is still building a data-mining system that will draw in huge amounts of commercial and governmen-tal information and parse it for signs of terrorism. The Transportation Security Administration has begun work on a passenger-profiling system that some officials say would be the largest domestic surveillance system in the nation's history.

All of this makes Viet Dinh smile as he eats curry at a restaurant across from the Justice Department. The Patriot Act, he declares proudly, is making Americans safer, just as intended.

He dismisses criticism that Justice is using a heavy hand in its investigations, and that civil liberties are being compromised. While the government can peer into the lives of Americans as never before, he says, the Constitution is always there as a safeguard.

"It was very clear that we did not tell the American people just simply, trust us, trust law enforcement not to overstep their bounds. Rather we say, trust the law," Dinh says. "The attorney general said very clearly, 'Think outside the box, but not outside the Constitution.' "

Yet at least one federal judge, Gladys Kessler of the U.S. District Court for the District of Columbia, has already accused the government of overstepping its constitutional bounds by refusing to name more than 1,200 people detained since September 11. In response to a lawsuit by civil libertarians, Kessler ordered the Justice Department to release the names, saying that without the information it was impossible to know whether the government is "operating within the bounds of the law."

Kessler's ruling is being appealed by the government, which argues that the secrecy is necessary to avoid compromising its investigation into September 11 and future terror plots. The Justice Department is also challenging an extraordinary decision by the FISA court not to grant criminal investigators the authority to use FISA primarily for criminal prosecutions. The FISA court said earlier this year that, long before September 11, the government had misused the law and misled the court dozens of times in its requests for search warrants and wiretaps. Those warrants and wiretaps might not have been granted in criminal courts, which, unlike FISA, require evidence of probable cause. And if the FISA court won't let criminal investigators make wide use of FISA powers, the Patriot Act won't provide as much investigative muscle as the administration wants.

That would be just fine with Dempsey, who argues that the government already had all the power and information it needed to thwart terrorist attacks before September 11 and failed to make effective use of them.

Now, he says, "we are facing the risk of a fundamental redefinition of the role of government and the freedom of individuals . . . Look at this ocean of information that's available."

In his downtown office, he clacks away at the computer, drafting a legal brief in support of the FISA court's position on limiting the flow of information between intelligence and criminal investigators. The federal courts are the next battleground, Dempsey and other civil libertarians believe, in the clash between national security and privacy rights.

For Leahy, however, the battleground remains the Senate Judiciary Committee, where he and other panel members will be responsible for monitoring how the Justice Department uses its new powers. That won't be easy, given the secrecy involved in terrorism investigations and the administration's reluctance to share sensitive information with Congress. Even so, Leahy and his allies in the House and Senate have no intention of giving Justice a free ride on the Patriot Act. The potential for abuse is too great, they say, and the need for congressional oversight and scrutiny too strong. They'll be watching.

Robert O'Harrow Jr. covers technology policy and privacy issues for The Post. This article was prepared with assistance from the Center for Investigative Reporting.


The Patriot Act:
One Step Closer to a Police State?
April 22, 2003

 

Civil Liberties Under Assault

By The NorthStar News Staff

In the aftermath of the September 11, 2001 terrorist attacks, our lawmakers on Capitol Hill were faced with a nation’s growing insecurity and feelings of vulnerability from further attacks. The sense of urgency felt by members of Congress was exacerbated by a series of anthrax scares tied to letters mailed to various members of the House and Senate. In a climate of extreme uncertainty, careful deliberation over the most appropriate manner to respond to a new threat to national security was tossed aside in favor of a direction that would be dictated by fear and extremism.

While Congress was reeling from the destruction of the World Trade Center in New York City and the simultaneous assault on the Pentagon, combined with the downed aircraft in Pennsylvania, the Department of Justice (DOJ), under Attorney General John Ashcroft, was busy at work calculating how best to extend the federal government’s police powers in this climate of fear. A similar exercise took place in 1996 following the attack on the Murrah Federal Building in Oklahoma City. At that time, the Justice Department sought to significantly expand its already considerable powers but was rebuffed by lawmakers on both sides of the aisle. Congress did pass the Anti-terrorism and Effective Death Penalty Act, but it did put a limit on the Justice Department’s ability to violate a citizen’s civil liberties in the name of fighting terrorism.

All bets were off once the symbol of American commerce and capitalism toppled in lower Manhattan. The Department of Justice saw an opening to revisit the 1996 legislation and, under the cover of fighting terrorism, include provisions that would be far reaching in terms of violating individual rights. Attorney General Ashcroft was well aware of the vacuum that existed on the question of national security, and rather than wait for Congress to catch its breath, he quickly seized the moment to define the threat as imminent and the reaction as prudent. The result was H.R. 3162 or, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act; popularly known as the USA-Patriot Act of 2001.

The bill carried the imprint of the Ashcroft Justice Department from the outset. In spite of the significant constitutional questions that the legislation posed, there was little, if any, deliberation in either the House or Senate. Though there were different versions of the bill circulating among Justice Department staffers, several members of the judiciary committees in both chambers, and the White House, the normal legislative path was completely circumvented. The final version of the bill was worked out in secrecy, protected from criticism by a climate of fear and nationalism that, left unchecked, overwhelmed even the normal partisan bickering that takes place over the most trivial of matters on the Hill.

Terrorism as a Cover; Congress as a Door Mat

Defying the usual deliberateness of the legislative process, H.R. 3162 was put on a fast track. The bill was introduced in the House of Representatives on October 23, 2001, only six weeks after the terrorists struck. The legislation was voluminous, some two hundred pages, almost three hundred sections, with a dizzying number of amendments to existing statutes. A House Judiciary Committee version was cast aside, despite bipartisan support, after heavy White House lobbying for the DOJ bill. Despite the complexity of the legislation, it was presented to the House for a vote the next day with members of having only one hour to consider the bill prior to casting their votes.

H.R. 3162 was passed on Roll Call 398 in the House of Representatives on October 24 by a vote of 357 in favor, 66 against and 9 members not voting. The partisan split was 211 Republicans voting in favor, 3 casting no votes and 5 not voting. There were 145 Democrats supporting the bill, 62 voting against and four not voting. There was one Independent voting in the affirmative and one voting against the bill.

A number of Black members of Congress (NorthStar Network Directory of Black Members of Congress) voted for H.R. 3162. Supporters included Rep. Sanford Bishop (D-GA), Rep. Corrine Brown (D-FL), Rep. Julia Carson (D-IN), Rep. James Clyburn (D-SC), Rep. Chaka Fattah (D-PA), Rep. Harold Ford (D-TN), Rep. William Jefferson (D-LA), Rep. Gregory Meeks (D-NY), Rep. Juanita Millender-McDonald (D-CA), Rep. Charles Rangel (D-NY), Rep. Ed Towns (D-NY), Rep. J.C. Watts (R-OK), and Rep. Albert Wynn (D-MD).

The House Minority Leader, Rep. Dick Gephardt (D-MO), and the current leader of the Democratic Caucus, Rep. Nancy Pelosi (D-CA), also supported the bill.

Voting against the bill were Rep. Eva Clayton (D-NC), Rep. John Conyers (D-MI), Rep. Elijah Cummings (D-MD), Rep. Danny Davis (D-IL), Rep. Alcee Hastings (D-FL), Rep. Earl Hilliard (D-AL), Rep Jesse Jackson, Jr. (D-IL), Rep. Sheila Jackson Lee (D-TX), Rep. Eddie Bernice Johnson (D-TX), Rep. Barbara Lee (D-CA), Rep. John Lewis (D-GA), Rep. Cynthia McKinney (D-GA), Rep. Carrie Meek (D-FL), Rep. Major Owens (D-NY), Rep. Donald Payne (D-NJ), Rep. Bobby Rush (D-IL), Rep. Bobby Scott (D-VA), Rep. Maxine Waters (D-CA), Rep. Diane Watson (D-CA), and Rep. Mel Watt (D-NC).

The very next day the Senate took up H.R. 3162 and without amendment, and little debate, passed the bill by a vote of 98 to 1. Sen. Russ Feingold, Democrat from Wisconsin, cast the only dissenting vote. The USA-Patriot Act (Public Law [P.L.] 56) was born.

Big Brother is Alive and Watching

At the center of the Patriot Act is the ability of the Justice Department to overstep constitutional boundaries in the name of national security. What the Patriot Act allows would have caused considerable outrage had it not been for the events of September 11, 2001. Rather than be viewed as soft on protecting citizens from terrorism, Congress capitulated to the heavy hand of the Justice Department and White House. Though the Patriot Act is set to expire or sunset in 2005, the dynamics of Beltway politics is that once done, undoing becomes a monumental task.

By far the most distinguishing feature of this statute is the lack of judicial oversight. It betrays the fundamental pattern of “checks and balances” in our federal system that keeps each branch of government in check by placing limits on each in relation to the other. The Patriot Act sidesteps judicial review by granting the Attorney General incredible discretion. The judiciary is now a mere bystander.

The breadth of the Act is also striking. Despite claims by the Bush administration to the contrary, the application of the Act is not restricted to suspected terrorists. It can also be employed against low-level offenders, including those responsible for non-violent crimes.

The Patriot Act has many provisions that are cause for alarm. Among the most egregious are:

The use of “sneak and peek” or secret searches, allowing government agencies to conduct searches of a house, apartment or office, under warrant, when the occupant is away. The Act allows photographs to be taken, physical property seized and electronic communications captured without immediate notification or “delayed notification” of the occupant. This item is exempted from the bill’s sunset provision, meaning that the government’s right to conduct these types of searches is now a permanent part of our criminal code.

The use of “roving wiretaps”, giving the government the authority to tap any phone a target might use, including phone lines at public institutions such as libraries. This provision is an extension of powers granted under the Foreign Intelligence Surveillance Act (FISA) for criminal investigations. Prior to the Patriot Act, FISA wiretaps could only be authorized if gathering foreign intelligence was the primary objective. That is no longer the case. Police may now use FISA wiretaps for domestic purposes.

A low threshold for obtaining information related to Internet communications, including dialing, routing and signaling. Most of this information is located in the Uniform Resource Locator (URL) or web “address” and actual content. This authority, along with roving wiretaps, has prompted public libraries to begin taking steps to delete the temporary files on computers used by library visitors.

Easier government access to personal information, including medical records, student records, financial records, employment records, DNA samples, and drug testing records. Prior to the Patriot Act, FBI agents could obtain much of this information with the approval of a judge or grand jury subpoena so long as they could justify the request as part of a criminal investigation. That is no longer the case. All the FBI has to do is “certify” the need and a judge has no authority to deny the request. The Patriot Act also overrides federal privacy statutes and bars notification of the person whose records are being obtained.

Fight is Now On to Prevent the Act from becoming Permanent

The Patriot Act is set to expire in 2005. There is now an effort underway to make the Act permanent. Given the Act’s wide-ranging authority, it could forever alter the manner in which citizens conduct their daily lives. The climate of fear and anxiety that currently grips the United States is a perfect environment for reactionary legislation. The right elements are present for the most extreme public policy to be enacted under the “radar screen”, drawing little opposition from a public that has been scared into silence. Perhaps not since the McCarthy era have we witnessed the government move so publicly in this manner.

Already a draft Patriot Act II has been circulated on Capitol Hill to test the waters. It proposes to extend the government’s powers even further. For instance, the draft proposes that the government be given the authorization to revoke a person’s citizenship if there is evidence that the individual has supported a group that authorities have identified as a terrorist threat. This is just one of several provisions that could permanently alter civil liberties in the nation.

In retrospect, many members of Congress who supported the passage of the Patriot Act have come to realize the threat it poses to innocent citizens. With presidential election year politics looming in the background, the debate over the Act’s possible extension is certain to be spirited. For Democrats the Act could be a welcome defining issue for a party whose faithful were opposed to the Iraq War, at least according to numerous polls. This holds true even for Democrats who voted for the Patriot Act but can now claim a new perspective gained from time. For Republicans, opposing efforts to make the Act permanent will be extremely difficult because of the heavy hand of the White House, the Department of Justice, and some conservatives.

Next: The Patriot Act II: The Sequel is Worse than the Original.

 


Senate Debate on the Patriot Act of 2001
 
[Congressional Record: October 11, 2001 (Senate)]
[Page S10547-S10630]
  From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr11oc01pt2-30]
 
 
                   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 contributions and for their
willingness to work day and night. It is my understanding that the
committee staff went three consecutive nights without any sleep in
order to prepare this legislation. This is carefully considered
legislation because it reflects and builds upon efforts which have been
made over a number of years.
    Earlier today, our colleagues on the Financial Services Committee in
the House of Representatives marked-up a bill, many of the provisions
of which are identical or virtually identical to those contained in
Title III of the package now before us.
    Public support across the country for anti-money laundering
legislation is extremely strong. Jim Hoagland put it plainly in the
Washington Post:
 
         This crisis offers Washington an opportunity to force
       American and international banks to clean up concealment and
       laundering practices they now tolerate or encourage and which
       terrorism can exploit.
 
    Terrorist attacks require major investments of time, planning,
training, practice, and financial resources to pay the bills. Money
laundering is the transmission belt that gives terrorists the resources
to carry out their campaigns of carnage. We intend, with Title III of
this legislation, to end that transmission belt and its ability to
bring resources to the networks that enable terrorists to carry out
their campaigns of violence.
    Title III addresses all aspects of our defenses against money
laundering. Those defenses generally fall into three parts. The first
is the Bank Secrecy Act, ``BSA'', passed in 1970. It requires financial
institutions to keep standardized transaction records and report large
currency transactions and suspicious transactions and mandates
reporting of the movement of more than $10,000 in currency into or out
of the country. The statute is called the ``bank secrecy act,'' because
it bars bank secrecy in America, by preventing financial institutions
from maintaining opaque records, or discarding their records
altogether. Secrecy is the hiding place for crime, and Congress has
barred our institutions from allowing those hiding places. The
financial institutions covered by that act include banks, broker-
dealers, casinos, and non-bank transmitters of funds, currency
exchangers, and check cashers--all financial services businesses
through which our citizens--and criminals hiding as legitimate
citizens--can move funds into and through our economy. Unfortunately,
reporting regulations covering some of these institutions have not yet
been promulgated.
    The second part of our money laundering defenses are the criminal
statutes first enacted in 1986 that make it a crime to launder money
and allow criminal and civil forfeiture of the proceeds of crime. The
third part is the statutory framework that allows information to be
communicated to and between law enforcement officials. Our goal must be
to assure--to the greatest extent consistent with reasonable privacy
protections--that the necessary information can be used by the right
persons in ``real time'' to cut off terrorism and crime.
    Title III modernizes provisions in all three areas to meet today's
threats in a global economy. Its provisions are divided into five
subtitles, dealing, respectively, with ``international counter-money
laundering measures''--sections 311-328--``Bank Secrecy Act
improvements''--sections 331-342--bulk cash smuggling--section 351 and
anti-corruption measures--sections 361-363.
    There are 39 provisions in Title III. At this time, I want to
summarize some of the bill's most important provisions.
    Section 311 gives the Secretary of the Treasury, in consultation with
other senior government officials, authority to impose one or more of
five new ``special measures'' against foreign jurisdictions, entities,
transactions or accounts that the Secretary, after consultation with
other senior federal officials, determines to pose a ``primary money
laundering concern'' to the United States. The special measures all
involve special recordkeeping and reporting measures--to eliminate the
curtains behind which launderers hide. In extreme cases the Secretary
is permitted to bar certain kinds of inter-bank accounts from
especially problematic jurisdictions. The statute specifies the
considerations the Secretary must take into account in using the new
authority and contains provisions to supplement the Administrative
Procedure Act to assure that any remedies--except certain short-term
measures--are subject to full comment from all affected persons.
    This new provision gives the Secretary real authority to act to close
overseas loopholes through which U.S. financial institutions are
abused. At present the Secretary has no weapons except Treasury
Advisories--which don't impose specific requirements--or full economic
sanctions that suspend financial and trade relations with offending
targets. President Bush's invocation of the International Economic
Emergency Powers Act (IEEPA) several weeks ago was obviously
appropriate. But there are many other situations in which we will not
want to
 
[[Page S10563]]
 
block all transactions, but in which we will want to do more than
simply advise financial institutions about under-regulated foreign
financial institutions or holes in foreign counter-money laundering
efforts. Former Deputy Secretary Eizenstat testified before the
Committee that adding this tool to the Secretary's arsenal was
essential.
    Section 312 focuses on another aspect of the fight against money
laundering, the financial institutions that are on the front lines
making the initial decisions about what foreign banks to allow inside
the United States. It requires U.S. financial institutions to exercise
appropriate due diligence when dealing with private banking accounts
and interbank correspondent relationships with foreign banks. With
respect to foreign banks, the section requires U.S. financial
institutions to apply appropriate due diligence to all correspondent
accounts with foreign banks, and enhanced due diligence for accounts
sought by offshore banks or banks in jurisdictions found to have
substandard money laundering controls or which the Secretary determines
to be of primary money laundering concern under the new authority given
him by section 311.
    The section also specifies certain minimum standards for the enhanced
due diligence that U.S. financial institutions are required to apply to
accounts opened for two categories of foreign banks with high money
laundering risks--offshore banks and banks in jurisdictions with weak
anti-money laundering and banking controls. These minimum standards
were developed from, and are based upon, the factual record and
analysis contained in the Levin staff report on correspondent banking
and money laundering.
    Section 312 is essential to Title III. It addresses, with appropriate
flexibility, mechanisms whose very importance for the conduct of
commercial banking makes them special targets of money launderers, as
illustrated in Senator Levin's extensive reports and hearings. A
related provision, in section 319, requires foreign banks that maintain
correspondent accounts in the United States to appoint agents for
service of process within the United States and authorizes the Attorney
General and the Secretary of the Treasury to issue a summons or
subpoena to any such foreign bank seeking records, wherever located,
relating to such a correspondent account. U.S. banks must sever
correspondent arrangements with foreign banks that do not either comply
with or contest any such summons or subpoena, and if the Attorney
General or the Secretary of the Treasury asks them to sever the
arrangements.
 
    These provisions send a simple message to foreign banks doing
business through U.S. correspondent accounts: be prepared, if you want
to use our banking facilities, to operate in accordance with U.S. law.
    Section 313 also builds on the factual record before the Banking
Committee to bar from the United States financial system pure ``brass-
plate'' shell banks created outside the U.S. that have no physical
presence anywhere and are not affiliated with recognized banking
institutions. These shell banks carry the highest money laundering
risks in the banking world because they are inherently unavailable for
effective oversight--there is no office where a bank regulator or law
enforcement official can go to observe bank operations, review
documents or freeze funds.
    Section 327 permits the Secretary to deal with abuse of another
recognized commercial banking mechanism--concentration accounts that
are used to commingle related funds in one place temporarily pending
disbursement or the transfer of funds into individual client accounts.
Concentration accounts have been used to launder funds, and the bill
permits the Secretary to issue rules to bar the use of concentration
accounts to move client funds anonymously, without documentation
linking particular funds to their true owners.
    Section 332 requires financial institutions to establish minimum
anti-money laundering programs that include appropriate internal
policies, management, employee training, and audit features. This is
not a ``one size fits all'' requirement; in fact its very generality
recognizes that different types of programs will be appropriate for
different types and sizes of institutions.
    A number of improvements are made to the suspicious activity
reporting rules. First, technical changes strengthen the safe harbor
from civil liability for institutions that report suspicious activity
to the Treasury. The provisions not only add to the protection for
reporting institutions; they also address individual privacy concerns
by making it clear that government officers may not disclose suspicious
transaction reports information except in the conduct of their official
duties. The Act also requires the issuance of suspicious transaction
reporting rules applicable to brokers and dealers in securities within
270 days of the date of enactment.
    Sections 341 and 342 of the Title deal with underground banking
systems such as the Hawala, which is suspected of being a channel used
to finance the al Qaeda network. Section 341 makes it clear that
underground money transmitters are subject to the same recordkeeping
rules--and the same penalties for violating those rules--as above-
ground, recognized, money transmitters. It also directs the Secretary
of the Treasury to report to Congress, within one year, on the need for
additional legislation or regulatory controls relating to underground
banking systems. Section 342 authorizes the Secretary of the Treasury
to instruct the United States Executive Director of each of the
international financial institutions to use such Director's ``voice and
vote'' to support loans and other use of resources to benefit nations
that the President determines to be contributing to efforts to combat
international terrorism, and to require the auditing of each
international financial institution to ensure that funds are not paid
to persons engaged in or supporting terrorism.
    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, and related forfeiture provisions. This provision has
been sought for several years by both the Departments of Justice and
Treasury.
    Other provisions of the bill address relevant provisions of the
Criminal Code. These provisions were worked out with the Judiciary
Committee and are included in Title III because of their close
relationship to the provisions of Title 31 added or modified by Title
III.
    The most important is section 315, which expands the list of
specified unlawful activities under 18 U.S.C. 1956 and 1957 to include
foreign corruption offenses, certain U.S. export control violations,
offenses subject to U.S. extradition obligations under multilateral
treaties, and misuse of funds of international financial institutions.
    Section 316 establishes procedures to protect the rights of persons
whose property may be subject to confiscation in the exercise of the
government's anti-terrorism authority.
    Section 319 treats amounts deposited by foreign banks in interbank
accounts with U.S. banks as having been deposited in the United States
for purposes of the forfeiture rules, but grants the Attorney General
authority, in the interest of fairness and consistent with the United
States' national interest, to suspend a forfeiture proceeding based on
that presumption. This closes an important forfeiture loophole.
    Section 321 allows the United States to exclude any alien that the
Attorney General knows or has reason to believe is or has engaged in or
abetted certain money laundering offenses.
    A third important set of provisions modernize information sharing
rules to reflect the reality of the fight against money laundering and
terrorism.
    Section 314 requires the Secretary of the Treasury to issue
regulations to encourage cooperation among financial institutions,
financial regulators and law enforcement officials and to permit the
sharing of information by law enforcement and regulatory authorities
with such institutions regarding persons reasonably suspected, based on
credible evidence, of engaging in terrorist acts or money laundering
activities. The section also allows banks to share information
involving possible money laundering or terrorist activity among
themselves--with notice to the Secretary of the Treasury.
    Section 335 permits, but does not require, a bank to include
information,
 
[[Page S10564]]
 
in a response to a request for an employment reference by a second
bank, about the possible involvement of a former institution-affiliated
party in potentially unlawful activity, and creates a safe harbor from
civil liability for the bank that includes such information in response
to an employment reference request, except in the case of malicious
intent. Given its different focus, it is not my intention to similarly
limit a bank's safe harbor from civil liability for the filing of
suspicious activity reports under the Bank Secrecy Act.
 
    Section 340 contains amendments to various provisions of the Bank
Secrecy Act, the Right to Financial Privacy Act, and the Fair Credit
Reporting Act, to permit information subject to those statutes to be
used in the conduct of United States intelligence or
counterintelligence activities to protect against international
terrorism.
 
    The modernization of our money laundering laws represented by
Subtitle III is long overdue. It is not the work of one week or one
weekend, but represents years of careful study and a bipartisan effort
to produce a piece of prudent legislation. The care taken in producing
the legislation extends to several provisions calling for reporting on
the legislation's effect and a provision for a three-year review of the
legislation's effectiveness.
    Title III responds, as I've indicated, to the statement of Assistant
Attorney General Chertoff, the head of the Department of Justice's
Criminal Division, at the Banking Committee's September 26 hearing that
``[w]e are fighting with outdated weapons in the money laundering arena
today.'' Without this legislation, the cracks in the system of which
bin Laden boasted will remain open. We should not, indeed we can not,
allow that to happen, any more than we can delay dealing with the
financial aspects of the terrorist threat.
    Title III is a balanced effort to address a complex area of national
concern. I strongly urge my colleagues to follow the unanimous
recommendation of the Banking Committee and support this important
component of the anti-terrorism package.
    I ask unanimous consent that a section-by-section summary of Title
III be included in the Record.
    There being no objection, the material was ordered to be printed in
the Record, as follows:
 
Title III--International Money Laundering Abatement and Anti-Terrorist
             Financing Act of 2001--Section-by-Section Summary
 
         Sec. 301. Short title and table of contents.
         Sec. 302. Findings and purposes.
         Sec. 303. Provides that the provisions added and amendments
       made by Title III will terminate after September 30, 2004, if
       the Congress enacts a joint resolution to that effect, and
       that such joint resolution will be given expedited
       consideration in each Houses of Congress.
 
subtitle A. International Counter-Money Laundering and Related Measures
 
         Sec. 311. Gives the Secretary of the Treasury, in
       consultation with other senior government officials,
       authority (in the Secretary's discretion) to impose one or
       more of five new ``special measures'' against foreign
       jurisdictions, entities, transactions and accounts that the
       Secretary, after consultation with other senior federal
       officials, determines to pose a ``primary money laundering
       concern'' to the United States. The special measures include:
       (1) requiring additional recordkeeping or reporting for
       particular transactions, (2) requiring the identification of
       the foreign beneficial owners of certain accounts at a U.S.
       financial institution, (3) requiring the identification of
       customers of a foreign bank who use an interbank payable-
       through account opened by that foreign bank at a U.S. bank,
       (4) requiring the identification of customers of a foreign
       bank who use an interbank correspondent account opened by
       that foreign bank at a U.S. bank, and (5) after consultation
       with the Secretary of State, the Attorney General, and the
       Chairman of the Federal Reserve Board, restricting or
       prohibiting the opening or maintaining of certain interbank
       correspondent or payable-through accounts. Measures 1-4 may
       not be imposed, other than by regulation, for a period in
       excess of 120 days; measure 5 may only be imposed by
       regulation. Also requires the Secretary of the Treasury, in
       consultation with the appropriate Federal banking agencies,
       to submit to Congress, within 180 days of the date of
       enactment, recommendations for the most effective way to
       require foreign nationals opening a U.S. bank account to
       provide identification comparable to that required when U.S.
       citizens open a bank account.
         Sec. 312. Requires a U.S. financial institution that
       maintains a correspondent account or private banking account
       for a non-United States person to establish appropriate and,
       if necessary, enhanced due diligence procedures to detect and
       report instances of money laundering. Creates a minimum anti-
       money laundering due diligence standards for U.S. financial
       institutions that enter into correspondent banking
       relationships with banks that operate under offshore banking
       licenses or under banking licenses issued by countries that
       (a) have been found noncooperative with international counter
       money laundering principles, or (b) have been the subject of
       special measures authorized by Sec. 311. Creates minimum
       anti-money laundering due diligence standards for
       maintenance of private banking accounts by U.S. financial
       institutions.
         Sec. 313. Bars depository institutions and broker-dealers
       operating in the United States from establishing,
       maintaining, administering, or managing correspondent
       accounts for foreign shell banks, other than shell bank
       vehicles affiliated with recognized and regulated depository
       institutions.
         Sec. 314. Requires the Secretary of the Treasury to issue
       regulations to encourage cooperation among financial
       institutions, financial regulators and law enforcement
       officials and to permit the sharing of information by law
       enforcement and regulatory authorities with such institutions
       regarding persons reasonably suspected, based on credible
       evidence, of engaging in terrorist acts or money laundering
       activities. Allows (with notice to the Secretary of the
       Treasury) the sharing of information among banks involving
       possible terrorist or money laundering activity.
         Sec. 315. Expands the list of specified unlawful activities
       under 18 U.S.C. 1956 and 1957 to include foreign corruption
       offenses, certain U.S. export control violations, and misuse
       of funds of the IMF.
         Sec. 316. Establishes procedures to protect the rights of
       persons whose property may be subject to confiscation in the
       exercise of the government's anti-terrorism authority.
         Sec. 317. Gives United States courts ``long-arm''
       jurisdiction over foreign persons committing money laundering
       offenses in the United States, over foreign banks opening
       United States bank accounts, and over foreign persons seizing
       assets ordered forfeited by a U.S. court.
         Sec. 318. Expands the definition of financial institution
       for purposes of 18 U.S.C. 1956 and 1957 to include banks
       operating outside the United States.
         Sec. 319. Treats amounts deposited by foreign banks in
       interbank accounts with U.S. banks as having been deposited
       in the United States for purposes of the forfeiture rules,
       but grants the Attorney General authority, in the interest of
       justice and consistent with the United States' national
       interest, to suspend a forfeiture proceeding based on that
       presumption. Requires U.S. financial institutions to reply to
       a request for information from a U.S. regulator relating to
       anti-money laundering compliance within 120 hours of receipt
       of such a request. Requires foreign banks that maintain
       correspondent accounts in the United States to appoint agents
       for service of process within the United States and
       authorizes the Attorney General and the Secretary of the
       Treasury to issue a summons or subpoena to any such foreign
       bank seeking records, wherever located, relating to such a
       correspondent account. Requires U.S. banks to sever
       correspondent arrangements with foreign banks that do not
       either comply with or contest any such summons or subpoena.
       Authorizes United States courts to order a convicted criminal
       to return property located abroad and to order a civil
       forfeiture defendant to return property located abroad
       pending trial on the merits. Authorizes United States
       prosecutors to use a court-appointed Federal receiver to find
       a criminal defendant's assets, wherever located.
         Sec. 320. Permits the United States to institute forfeiture
       proceedings against the proceeds of foreign criminal offenses
       found in the United States.
         Sec. 321. Allows the United States to exclude any alien
       that the Attorney General knows or has reason to believe is
       or has engaged in or abetted certain money laundering
       offenses.
         Sec. 322. Extends the prohibition against the maintenance
       of a forfeiture proceedings on behalf of a fugitive to
       include a proceeding by a corporation whose majority
       shareholder is a fugitive and a proceeding in which the
       corporation's claim is instituted by a fugitive.
         Sec. 323. Permits the government to seek a restraining
       order to preserve the availability of property subject to a
       foreign forfeiture or confiscation judgment.
         Sec. 324. Increases from $100,000 to $1,000,000 the maximum
       civil and criminal penalties for a violation of provisions
       added to the Bank Secrecy Act by sections 311 and 312 of the
       Act.
         Sec. 325. Directs the Secretary of the Treasury, in
       consultation with the Attorney General, the Federal banking
       agencies, the SEC, the CFTC and other appropriate agencies to
       evaluate operation of the provisions of Subtitle A of Title
       III of the Act and recommend to Congress any relevant
       legislative action, within 30 months of the date of
       enactment.
         Sec. 326. Directs the Secretary of the Treasury to report
       annually to the Senate Banking Committee and House Financial
       Services Committee on measures taken pursuant to Subtitle A
       of Title III of the Act.
         Sec. 327. Authorizes the Secretary of the Treasury to issue
       regulations concerning the
 
[[Page S10565]]
 
       maintenance of concentration accounts by U.S. depository
       institutions to prevent an institution's customers from
       anonymously directing funds into or through such accounts.
         Sec. 328. Provides criminal penalties for officials who
       violate their trust in connection with the administration of
       Title III.
 
     Subtitle B. Currency Transaction Reporting Amendments and Related
                                Improvements
 
         Sec. 331. Clarifies the terms of the safe harbor from civil
       liability for financial institutions filing suspicious
       activity reports pursuant to 31 U.S.C. 5318(g).
         Sec. 332. Requires financial institutions to establish
       anti-money laundering programs and grants the Secretary of
       the Treasury authority to set minimum standards for such
       programs.
         Sec. 333. Clarifies that penalties for violation of the
       Bank Secrecy Act and its implementing regulations also apply
       to violation of Geographic Targeting Orders issued under 31
       U.S.C. 3526, and to certain recordkeeping requirements
       relating to funds transfers. Otherwise clarifies and updates
       certain provisions of 31 U.S.C. 5326 relating to Geographic
       Targeting Orders.
         Sec. 334. Adds ``money laundering related to terrorist
       funding'' to the list of subjects to be dealt with in the
       annual National Money Laundering Strategy prepared by the
       Secretary of the Treasury pursuant to the ``Money Laundering
       and Financial Crimes Strategy Act of 1998.''
         Sec. 335. Permits (but does not require) a bank to include
       information, in a response to a request for an employment
       reference by a second bank, about the possible involvement of
       a former institution-affiliated party in potentially unlawful
       activity, and creates a safe harbor from civil liability for
       the bank that includes such information in response to an
       employment reference request, except in the case of malicious
       intent.
         Sec. 336. requires the Bank Secrecy Act Advisory Group to
       include a privacy advocate among its membership and to
       operate under certain of the ``sunshine'' provisions of the
       Federal Advisory Committee Act.
         Sec. 337. Directs the Secretary of the Treasury and the
       Federal bank regulatory agencies to submit reports to
       Congress, one year after the date of enactment, containing
       recommendations on possible legislation to conform the
       penalties imposed on depository institutions for violations
       of the Bank Secrecy Act with penalties imposed on such
       institutions under section 8 of the Federal Deposit Insurance
       Act.
         Sec. 338. Directs the Secretary of the Treasury, after
       consultation with the Securities and Exchange Commission and
       the Federal Reserve Board, to promulgate regulations, within
       270 days of the date of enactment, requiring broker-dealers
       to file suspicious activity reports. Also requires the
       Secretary of the Treasury, the SEC, Federal Reserve Board,
       and the CFTC to submit jointly to Congress, within one year
       of the date of enactment, recommendations for effective
       application of the provisions of 31 U.S.C. 5311-30 to both
       registered and unregistered investment companies.
         Sec. 339. Directs the Secretary of the Treasury to submit a
       report to Congress, six months after the date of enactment,
       on the role of the Internal Revenue Service in the
       administration of the Bank Secrecy Act, with emphasis on
       whether IRS Bank Secrecy Act information processing
       responsibility (for reports filed by all financial
       institutions) or Bank Secrecy Act audit and examination
       responsibility (for certain non-bank financial institutions)
       should be retained or transferred.
         Sec. 340. Contains amendments to various provisions of the
       Bank Secrecy Act, the Right to Financial Privacy Act, and the
       Fair Credit Reporting Act, to permit information to be used
       in the conduct of United States intelligence or
       counterintelligence activities to protect against
       international terrorism.
         Sec. 341. Clarifies that the Bank Secrecy Act treats
       certain underground banking systems as financial
       institutions, and that the funds transfer recordkeeping rules
       applicable to licensed money transmitters also apply to such
       underground systems. Directs the Secretary of the Treasury to
       report to Congress, within one year of the date of enactment,
       on the need for additional legislation or regulatory controls
       relating to underground banking systems.
         Sec. 342. Authorizes the Secretary of the Treasury to
       instruct the United States Executive Director of each of the
       international financial institutions (for example, the IMF
       and the World Bank) to use such Director's ``voice and vote''
       to support loans and other use of resources to benefit
       nations that the President determines to be contributing to
       United States efforts to combat international terrorism, and
       to require the auditing of each international financial
       institution to ensure that funds are not paid to persons
       engaged in or supporting terrorism.
 
                        subtitle c. currency crimes
 
         Sec. 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, and related
       forfeiture provisions.
 
                    subtitle d. anti-corruption measures
 
         Sec. 361. Expresses the sense of Congress that the United
       States should take all steps necessary to identify the
       proceeds of foreign government corruption that have been
       deposited in United States financial institutions and return
       such proceeds to the citizens of the country to whom such
       assets belong.
         Sec. 362. Expresses the sense of Congress that the United
       States must continue actively and publicly to support the
       objectives of the 29-country Financial Action Task Force
       Against Money Laundering.
         Sec. 363. Expresses the sense of Congress that the United
       States, in its deliberations and negotiations with other
       countries, should promote international efforts to identify
       and prevent the transmittal of funds to and from terrorist
       organizations.
 
                         subtitle e. miscellaneous
 
         Sec. 371. Expands the SEC's emergency order authority.
         Sec. 372. Creates uniform protection standards for Federal
       Reserve facilities.
 
    Mr. LEAHY. Mr. President, I thank the distinguished chairman of the
Banking Committee, the senior Senator from Maryland, Mr. Sarbanes. He
did unbelievable work in this committee to pass out a money-laundering
bill--a very complex and difficult subject. He did it unanimously, I
believe, in a committee that probably has as diverse a membership--that
is an understatement--as one might find. I compliment him and thank him
for his kind words.
    I reserve the remainder of my time. I see the chairman of the Senate
Intelligence Committee here, who wishes to give his opening statement.
    The PRESIDING OFFICER. The Senator from Nevada is recognized.
    Mr. REID. Mr. President, I conferred with Senator Daschle a few
minutes ago. It is his desire--so there is no misunderstanding of the
Members--that a number of opening statements be given: The Senator from
Florida, the chairman of the Intelligence Committee, and we understand
Senator Stabenow wishes to speak, and there may be a couple of other
opening statements.
    As soon as that is done, we are going to turn to Senator Feingold to
offer the first of his amendments. After that, there will be a vote on
the first Feingold amendment.
    Mr. LEAHY. Mr. President, I yield 10 minutes to the senior Senator
from Florida.
    The PRESIDING OFFICER. The Senator from Florida is recognized for 10
minutes.
    Mr. GRAHAM. Mr. President, I wish to commend Senators Daschle and
Lott for their leadership in bringing this critical piece of
legislation to the Senate just 1 month after the horrific events of
September 11. Senators Leahy and Hatch also deserve credit for moving
quickly to shape the judiciary components of this bill and choreograph
other provisions, including those affecting the intelligence agencies.
    My remarks will focus on title IX of this legislation, which is
entitled ``Improved Intelligence,'' as well as the other provisions in
the bill that directly affect the mission of the agencies of the
intelligence community.
    Title IX is derived from S. 1448, legislation which was developed
within the intelligence community, entitled ``Intelligence to Prevent
Terrorism Act of 2001.''
    Since long before September 11, I have been working with members of
the committee, particularly Senators Feinstein and Kyl, on
comprehensive counterterrorism legislation. Most of the provisions of
our bill, with some changes requested by the administration, have now
become title IX of S. 1510.
    The provisions in title IX, as well as other provisions in the bill,
are designed to accomplish a daunting but not impossible task. That
task is to change the cultures within the Federal law enforcement and
intelligence agencies--primarily the FBI and the CIA--so they work
seamlessly together for the good of the American people.
    Both the FBI and the CIA are very good. They are the standards of the
world in their own missions. But those missions are very different. The
Federal Bureau of Investigation is goal oriented. A criminal case has a
beginning, a middle, and an end. In a case that has developed the
guilty party, the end is a conviction for the crime committed. The
information collected during a criminal case is very closely held. It
is held closely because its purpose is to result in the successful
prosecution of an event that occurred in the past--not to inform
thinking about what may happen now or in the future.
    The Central Intelligence Agency, on the other hand, as well as its
other companions in the intelligence community, has a global approach,
literally
 
[[Page S10566]]
 
and figuratively. The CIA is restricted to activities outside the
United States of America. The CIA collects information on a worldwide
basis, and it processes that information, analyzes that information,
and it places it in the hands of its customers. Its customers are other
Federal agencies and senior policymakers, including the President of
the United States. The purpose of that information is to allow those
senior policymakers to make more informed decisions.
    Given the threats we now face, the cultures growing out of these
different missions must be melded. We cannot fight terrorism by putting
yellow tape around a bomb site, calling it a crime scene, collecting
evidence, and proceeding to trial frequently years later. We must put
the evidence collected after such an event to work for us in real time
so we can predict and prevent the next attack. If there is a single
goal of the intelligence components of this antiterrorism bill, it is
to change the focus from responding to acts that have already occurred
to preventing the acts which threaten the lives of American citizens in
this country and abroad.
    It is critical that all information lawfully available to the Federal
Government be used efficiently and effectively to fight terrorism. We
cannot continue to use critical information only in a criminal trial.
Any information collected must be available to intelligence officials
to inform their operational initiatives so as to prevent the next
attack.
 
    Along these lines, several provisions of S. 1510 are designed to
change the way information is handled within the Federal Government.
For example, section 203 permits law enforcement to share information
collected in grand jury proceedings and from title III criminal
wiretaps with intelligence agencies. Current law, as it has been
interpreted, prevents that sharing, except in very limited
circumstances.
    Section 905 then complements section 203 in that it requires law
enforcement officers, FBI agents, and the Justice Department
prosecutors to provide foreign intelligence derived in the course of a
criminal investigation, including grand juries, criminal wiretaps, FBI
interviews, and the like, to the Central Intelligence Agency and to
other intelligence agencies.
    A ``permissive'' approach is not good enough under current
circumstances. Too many lives have been lost, too many lives are at
risk. Law enforcement sharing of information with the intelligence
agencies must be mandatory.
    Section 908 further complements this legislation by providing the
training of law enforcement officers at the Federal, State, and local
agencies so they will be better equipped to recognize foreign
intelligence information when they see it, and to get it to the right
place on a timely basis.
    Let me give a couple of hypothetical but eerily-close-to-reality
examples. It is likely that there are, tonight, grand juries meeting at
various places in the United States to deal with issues related to the
events of September 11. Witnesses may be providing information--
information about training camps in Afghanistan, ground warfare
techniques used by al-Qaida and the Taliban, the types and quantity of
weapons available. This type of information will be critical for the
military--critical for the military now, not 2 years from now when
these cases might go to trial.
    Another example is in the area of wiretaps. Let me just take two
wiretaps. One has been issued under the Foreign Intelligence
Surveillance Act because there was a finding by a Federal judge that
there was credible evidence that the telephone was being used by an
agent of a foreign power.
    In the course of listening to the wiretap, this conversation comes
across: I am planning to fly from a specifically designated site in
Central America to a city in Texas. I am going to take my flight a week
from Monday. My intention is, once I arrive over that city, to
distribute chemical or biological materials that will terrorize the
people of that city by creating havoc due to the illnesses that will be
provoked.
    But how are you going to pay for this? You don't have the money to
buy a plane, chemicals, or get the expertise necessary to do that?
    I am going to do that because I am going to rob a bank next Monday in
order to get the money that I need to pay for this operation. The bank
is going to be located at the corner of First and Main, and I am going
to do it 3 hours after the bank closes next Monday.
    The person listening to that conversation with a foreign intelligence
wiretap is under a legal obligation to make known to the appropriate
law enforcement officials that there is about to be a bank robbery at a
specific location on a specific date and time in a certain Texas city.
    Conversely, if that exact conversation had taken place under a
criminal wiretap under title 3, the person listening to that
conversation would be prohibited from telling the foreign intelligence
agencies that there was about to be a terrorist attack on a date
certain against a specific Texas city originating at a specific site in
Central America.
    Try to convince the American people that makes sense. It clearly does
not in today's reality. This legislation is going to make the same
requirement of mandatory sharing when the information is gathered under
a criminal wiretap that involves foreign intelligence information, as
is the case today when information gathered under a Foreign
Intelligence Surveillance Act wiretap must be made available to
appropriate law enforcement officials.
    Another provision of title 9 addresses the role of the Director of
Central Intelligence in the process of collecting foreign intelligence
under the Foreign Intelligence Surveillance Act. It recognizes the need
to target limited resources, including personnel and translators
against the highest priority targets.
    I ask if I can have an additional 5 minutes.
    The PRESIDING OFFICER. The Senator from Vermont.
    Mr. LEAHY. I have about 11 minutes left that has not been committed
which I thought I might use to answer some questions. I give the
Senator 2 of my 11 minutes.
    Mr. GRAHAM. I appreciate the Senator's limitations.
    Mr. LEAHY. We just had one Senator ask me for 30 minutes. I am
looking at my 11. How can I give him 30? But I will give you 2 of the
11.
    Mr. GRAHAM. Mr. President, I thank the Senator from Vermont.
    We have a provision that the Director of Central Intelligence, the
DCI, will set the overall strategic goals for the collection of foreign
intelligence so that we can use our limited resources as effectively as
possible.
    In order to complement that, we also have a provision that will
establish a national virtual translation center as a means of
increasing our woefully limited linguistic capabilities to translate
the material which we are gathering.
    We will also provide for additional capability with human
intelligence. We have become very reliant on technology--eavesdropping,
satellite imagery, to the exclusion of the use of human beings. If we
want to gain information about the bin Ladens of the world, we cannot
just take a picture of bin Laden.
    Today it is increasingly difficult to eavesdrop on bin Laden. What we
need to do is get a human being who is able to get close enough to bin
Laden to learn his intentions and capabilities. This gets to the
difficult issue of what kind of assets, human beings, we hire to work
for us to gather such information?
    We would all like to employ the purist of people, all choir boys to
do this type of work. Unfortunately, they are not the type of people
who are likely to be able to get close to the bin Ladens of the world.
Thus, we have a provision in this legislation in the nature of a sense
of Congress which we hope will send a strong message to the
intelligence community that we are encouraging them to overcome some
previous messages from Congress and to proceed to recruit the persons
who they find to be necessary to gain access to terrorists so that we
can have the best opportunity of protecting ourselves.
    With the adoption of this legislation, we have not reached the end of
our task or responsibilities to protect the American people. We are
taking a substantial step in that direction.
    To reiterate, another provision of title 9 addresses the role of the
Director of Central Intelligence in the process of collecting foreign
intelligence
 
[[Page S10567]]
 
under the Foreign Intelligence Surveillance Act. It recognizes the need
to target limited resources--e.g. translators--against the highest
priority targets.
    In order to ensure that scarce resources are effectively used, the
DCI--in his role as head of the Intelligence community, not as CIA
Director--will set overall strategic goals for FISA collection.
    He will work with the Attorney General to ensure that FISA
information is distributed to the intelligence operators and analysts
who need it government-wide.
    Of course, the operational targeting and collection using wiretaps
will be conducted by the FBI, as it has in the past; the DCI will
perform no role in those decisions.
    One of the scarce resources that has plagued the Intelligence
Community, as well as law enforcement, is translation capability.
    Section 907 of this bill requires the FBI and CIA to work together to
create a ``National Virtual Translation Center.''
    Such a center would seek to remedy the chronic problem of developing
critical language abilities, and matching those resources to
intelligence collected by the wide range of techniques available.
    It is not enough to be able to listen to the conversations of
terrorists and their supporters.
    Those conversations must be translated, often from difficult
languages such as Urdu, and analyzed, all in a timely fashion.
    Our intelligence services collect vast amounts of data every day. It
is possible that we may find that a critical clue to the September 11
attacks may have been available, but untranslated, days, weeks, or even
months before the hijackings.
    We must address this problem before another specific threat is
overlooked.
    Finally, I would like to mention a problem that has received a great
deal of attention in recent weeks. There has been criticism of the
intelligence agencies for placing too great a reliance on technical
intelligence collection--laws dropping, satelite photograph--in recent
years at the expense of human sources, or spies.
    A corollary of this criticism is that CIA officers are to risk-averse
and that they do not aggressively recruit sources overseas that may
have access to terrorist groups because the sources may have engaged in
human rights violations or violent crimes.
    As to the first problem, the Intelligence authorization bill for
fiscal year 2002, which may come to the floor next week, provides
greater resources for human source recruitment--and it is part of a 5-
year plan to beef up this method of collection.
    With respect to the second problem, we in the Congress simply must
accept some of the responsibility for creating a risk-averse reaction
at CIA, if needed there is one.
    The internal CIA regulations addressing the so-called ``dirty asset''
problem grew out of the criticisms by Congress in the mid-1990s about
the recruitment of sources in Guatemala with sordid pasts.
    We address this issue in S. 1510, section 903, by sending a strong
message to CIA Headquarters and CIA officers overseas that recruitment
of any person who has access to terrorists or terrorist groups should
be of the highest priority.
    There is no place in times like these for timidity in seeking every
method available to learn the capabilities, plans, and intentions of
terrorists.
    Congress needs to send a strong message that we value such efforts to
recruit sources on terrorism, even those with pasts we would not
applaud.
    Section 903 sends that message.
    I urge passage of S. 1510.
    I again commend the Members of the Senate who have played such an
effective role.
    I also thank the staff: Al Cumming, Bob Filippone, Vicki Divoll,
Steven Cash, Bill Duhnke, Paula DeSutter, Jim Hensler, and Jim Barnett.
    They have been working for the past many months to bring us to the
point of this legislation being available for adoption by the Senate
tonight and for the safety of the American people.
    The PRESIDING OFFICER. The time of the Senator has expired. The
Senator from Vermont.
    Mr. LEAHY. I ask the distinguished Senator from Utah--I see the
distinguished senior Senator from Pennsylvania is here--perhaps after
the senior Senator from Utah, and then after the senior Senator from
Pennsylvania speaks, whether it might be possible to go to the Senator
from Wisconsin for the purpose of bringing up his amendments, and we
can then debate and vote on them. Will that be agreeable to everybody?
    Mr. HATCH. It is agreeable.
    Mr. LEAHY. I ask unanimous consent that after the Senator from Utah,
and the Senator from Pennsylvania, we go to the Senator from Wisconsin
for the purpose of bringing up his amendments.
    The PRESIDING OFFICER. Without objection, it is so ordered.
    The Senator from Utah.
    Mr. HATCH. Mr. President, in my opening remarks, I was remiss in not
mentioning the tremendous work of the distinguished chairman and vice
chairman of the Intelligence Committee. They have done a tremendous
amount of work on the intelligence aspect of this bill. As a member of
the Intelligence Committee, I express my high regard for the both of
them and the work they have done.
    I also express my regard for my friend from Maryland, Senator
Sarbanes, who came to the Senate with me, for the work he has done on
the money-laundering section of this bill. He and Senator Gramm and the
Banking Committee have done yeoman's service on this, and I hope we are
able to have that as part of the final bill.
    I would be remiss if I did not acknowledge the great work that has
been done--also, Senator Kyl and so many others. I felt I needed to say
that. I thank the Chair.
    The PRESIDING OFFICER. Who yields time?
    Mr. SPECTER. Mr. President, parliamentary inquiry, that I have 30
minutes under the unanimous consent request?
    The PRESIDING OFFICER. The Senator is correct.
    Mr. SPECTER. I yield myself 15 minutes.
    The PRESIDING OFFICER. The Senator from Pennsylvania.
    Mr. SPECTER. Mr. President, I have sought recognition and asked for
this reservation of time to express my concerns about the record which
the Senate is creating so that whatever legislation we pass will pass
constitutional muster.
    The Supreme Court of the United States has handed down a series of
decisions in the past decade which question the constitutionality and,
in fact, invalidate acts of Congress because there has been an
insufficient record compiled. So I make these statements and review the
record so far with a view to urging my colleagues to create a record in
this Chamber, in conference, or wherever that opportunity may present
itself.
    In 1989, in the case of Sable v. FCC, the Supreme Court of the United
States struck down an act of Congress saying, ``no Congressman or
Senator purported to present a considered judgment.'' I thought it was
a remarkable statement by the Supreme Court since Congressman Tom
Bliley in the House of Representatives had established a very
comprehensive record.
    The Supreme Court in 1997, in a case captioned Reno v. ACLU, again
invalidated an act of Congress noting, ``the lack of legislative
attention to the statute at issue in Sable suggests another parallel
with this case.''
    It was surprising to me that the Supreme Court of the United States
would invalidate an act of Congress on the ground that no Senator or
Congressman had purported to present a considered judgment, when that
is the view of the Supreme Court which is contrary to Congress.
    Under our doctrine of separation of powers, it seemed to me an act of
Congress should stand unless there is some specific provision in the
Constitution which warrants invalidating it or for vagueness under the
due process clause of the fifth amendment.
    The Supreme Court of the United States, in January of last year, did
it again in a case captioned Kimel v. Florida Board of Regents, a case
which involved the Age Discrimination in Employment Act. There the
Court said, ``our examination of the act's legislative record confirms
that Congress' 1974 extension of the Act to the States
 
[[Page S10568]]
 
was an unwarranted response to a perhaps inconsequential problem.''
Again, a remarkable holding that the Congress had an unwarranted
response and that it was an inconsequential problem, totally
contradicting the judgment of the Congress of the United States.
    Then the Court went on in the Kimel case to say, ``Congress had no
reason to believe that broad prophylactic legislation was necessary in
this field.''
    Those are only a few of the cases where the Supreme Court of the
United States has invalidated acts of Congress. There is no doubt there
is a need for legislation to expand the powers of law enforcement to
enable us to act against terrorists. My own experience in 8 years on
the Intelligence Committee, 2 years of which was as chairman, and my
work as chairman of the Judiciary Subcommittee on Terrorism have
convinced me without a doubt of the scourge of terrorism which we have
seen many times but never with the intensity which we observed on
September 11 of this year.
    The act of Congress in expanding law enforcement has to be very
carefully calibrated to protect civil liberties and be in accordance
with the Constitution of the United States. Attorney General Ashcroft
met with a number of us on Wednesday, September 19, just 8 days after
the incident of September 11, and asked that we enact legislation by
the end of the week. My response at that time was I thought it could
not be done in that time frame, but I thought we could hold hearings in
the remainder of that week, perhaps on Thursday the 20th, or Friday the
21st, or Saturday the 22nd, to move ahead, understanding the import of
the administration's bill, and legislate to give them what they needed,
consistent with civil rights.
 
    The Judiciary Committee then held a hearing on September 25 where the
Attorney General testified for about an hour and 20 minutes. At that
time, as that record will show, only a few Senators were able to ask
questions. In fact, the questioning ended after my turn came, and most
of the Judiciary Committee did not have a chance to raise questions.
    On September 26, the following day, I wrote to the chairman of the
committee saying:
    I write to urge that our Judiciary Committee proceed promptly with
the Attorney General's terrorism package with a view to mark up the
bill early next week so the full Senate can consider it and hopefully
act upon it by the end of the week. I am concerned that some further
act of terrorism may occur which could be attributed to our failure to
act promptly.
    I then found out on October 3 that the Subcommittee on the
Constitution was having a hearing. By chance, I heard about it in the
corridors. Although we were having a hearing with Health and Human
Services Secretary Thompson on bioterrorism, I absented myself from the
bioterrorism hearing and went down the hall to the Judiciary
subcommittee hearing and participated there and expressed many of the
reservations and concerns I am commenting about today.
    On that date, I again wrote to Senator Leahy. I ask unanimous consent
that the full text of my letter to him and the full text of his reply
to me of October 9 be printed in the Record at the conclusion of these
remarks.
    The PRESIDING OFFICER. Without objection, it is so ordered.
    (See exhibit 1.)
    Mr. SPECTER. I quote only from the first sentence of Senator Leahy's
response to me:
    I thank you for your letters of September 26 and October 3 and for
your participation in the September 25 hearing regarding antiterrorism
legislation. On October 3, you wrote that you were concerned about the
lack of hearings. I share that concern and have tried to notice prompt
hearings on a number of aspects of the legislative proposals at the
earliest possible time.
    On this state of the record, which I hope can yet be perfected, I am
concerned about our meeting the standards of the Supreme Court of the
United States for a sufficient deliberative process.
    When Attorney General Ashcroft appeared before the Judiciary
Committee on September 25, he said the only detention he wanted on
aliens was those who were subject to deportation proceedings. I then
pointed out, as the record will show, that the legislation submitted by
the Attorney General was much broader and did not limit detention
simply or exclusively to those who were subject to deportation
proceedings. So my comment was that it was necessary to analyze the
bill very carefully, not do it hurriedly, and give the Attorney General
of the Department of Justice what he needed, consistent with
constitutional rights.
    The other issue which I had an opportunity to raise in the very brief
period of time I had--some 5 minutes--involved modifications to the
Foreign Intelligence Surveillance Act, where the issue was to change
the law from ``the purpose,'' being the gathering of intelligence, to
``a purpose.'' Ultimately the legislation has been modified to read ``a
significant purpose.''
    At that hearing, the Attorney General said he did not look to obtain
content from electronic surveillance unless probable cause was
established. But in the draft bill, which the Department of Justice had
submitted at that time, that was not what the bill provided. So that on
this state of the record, I think the Congress has some work to do,
tonight in conference or perhaps by other means, to see to it we have a
record which will withstand constitutional scrutiny.
    On our Judiciary Committee, we have many Members who have expertise
in this field. This bill, as the Record will show, was negotiated by
the chairman and ranking member with the Department of Justice, with
the participation of the committee only to the extent of the hearing of
the full committee on September 25 and the subcommittee on October 3.
    We have on our Judiciary Committee a number of Members who have had
experience as prosecuting attorneys. We have a number of lawyers who
are learned in law. We have other Members who have extensive experience
on the Judiciary Committee and a great deal of common sense which may
top some of us who have prosecutorial experience or extended experience
with probable cause and search warrants or surveillance of some sort or
another.
    I express these concerns so whatever can be done by the Congress will
be done to meet the constitutional standards.
    How much of the 15 minutes have I used?
    The PRESIDING OFFICER. The Senator has 3 minutes 37 seconds
remaining.
    Mr. SPECTER. I reserve the remainder of my time, and I yield the
floor.
 
                                 Exhibit 1
 
                                                    U.S. Senate,
 
                                 Washington, DC, September 26, 2001.
       Hon. Patrick J. Leahy,
       Chairman, Senate Judiciary Committee, Washington, DC.
         Dear Pat: I write to urge that our Judiciary Committee
       proceed promptly with the Attorney General's terrorism
       package with the view to mark up the bill early next week so
       the full Senate can consider it and hopefully act upon it by
       the end of next week.
         I am concerned that some further act of terrorism may occur
       which could be attributed to our failure to act promptly.
             Sincerely,
       Arlen Specter.
                                    ____
 
                                                    U.S. Senate,
 
                                    Washington, DC, October 3, 2001.
       Hon. Patrick J. Leahy,
       Chairman, Senate Judiciary Committee, Washington, DC.
         Dear Senator Leahy: I am very much concerned about the
       delay in acting on the anti-terrorism legislation and also
       about the absence of hearings to establish a record for the
       legislative package.
         In recent decisions, the Supreme Court of the United States
       has declared acts of Congress unconstitutional when there has
       been an insufficient record or deliberative process to
       justify the legislation.
         On the anti-terrorism legislation, perhaps more than any
       other, the Court engages in balancing the needs of law
       enforcement with the civil rights issues so that it is
       necessary to have the specification of the problems to
       warrant broadening police power.
         In my judgment, there is no substitute for the hearings,
       perhaps in closed session, to deal with these issues.
         As you know, I have been pressing for hearings. I am now
       informed that Senator Hatch has convened a meeting of all
       Republican senators to, in effect, tell us what is in a
       proposed bill where Judiciary Committee members have had no
       input.
         We could still have meaningful hearings this week and get
       this bill ready for prompt floor action.
             Sincerely,
                                                      Arlen Specter.
 
[[Page S10569]]
 
 
                                    ____
                                                        U.S. Senate,
 
                                     Committee on the Judiciary,
 
                                    Washington, DC, October 9, 2001.
       Hon. Arlen Specter,
       711 Hart Senate Office Building, Washington, DC.
         Dear Arlen, I thank you for your letters of September 26,
       2001 and October 3, 2001 and for your participation in the
       September 25, 2001 hearing regarding anti-terrorism
       legislation. On October 3, 2001, you wrote that you were
       concerned about the lack of hearings. I share that concern
       and have tried to notice prompt hearings on a number of
       aspects of the legislation proposals at the earliest possible
       time.
         As you know, the Attorney General consented to appear at
       our September 25, 2001 hearing for only an hour and we had to
       prevail upon him to stay a few extra minutes so that Senator
       Feinstein and you could have a brief opportunity to ask the
       Attorney General a single question. I invited him to rejoin
       us the following Tuesday to complete the hearing and I
       continue to extend such invitations, but he has not accepted
       any of my follow up invitations. In addition, although
       Members of the Committee submitted questions in writing to
       the Attorney General following the September 25, 2001
       hearing, they have yet to be answered. I agree with you that
       these are important matters that justify a more thorough
       record than we have been able to establish.
         Last week, Senator Feingold chaired an important hearing on
       civil liberties concerns before the Constitution
       Subcommittee. This week Senators Schumer, Feinstein and
       Durbin each are working to organize hearings on these matters
       and Senators Kennedy and Biden are working on possible
       hearings next week.
         At the same time, we have continued to work nonstop to
       prepare for Senate action on legislative proposals. We
       suffered a setback last week when after weeks of intensive
       negotiations the White House reneged on agreements reached on
       Sunday, September 30, 2001, and we had to spend much of last
       week renegotiating a legislative package. Finally, last
       Thursday S. 1510 was introduced by the Majority Leader, the
       Republican Leader, the Chairmen of the Judiciary, Banking and
       Select Intelligence Committees and by Senators Hatch and
       Shelby as Ranking Members. I am seeking to work closely with
       the Senate leadership to be prepared to proceed to that
       legislation at the earliest opportunity. The House is on a
       similar track and may well consider its version of
       legislation later this week, as well.
         You and I both know that no legislation can guarantee
       against future terrorist attacks. Nonetheless, I have
       expedited work on anti-terrorism legislation, within which
       the Administration has insisted on including general criminal
       law measures not limited to terrorism, in order to allow the
       Senate to act promptly in response to the unprecedented
       attacks of September 11, 2001.
             Sincerely,
                                                      Patrick Leahy,
                                                           Chairman.
 
    Mr. LEAHY. I understand the distinguished Senator from Wisconsin is
willing to have the distinguished Senator from Michigan recognized for
5 minutes. I ask unanimous consent she be allowed to proceed preceding
the Senator from Wisconsin.
    The PRESIDING OFFICER. Without objection, it is so ordered.
    The Senator from Michigan is recognized for 5 minutes.
    Ms. STABENOW. I thank our distinguished chairman and my friend from
Wisconsin for allowing me to proceed before he presents his amendments.
    I rise this evening to congratulate all involved in this effort. As
has been said on so many occasions, it is not perfect but we have come
together with a very positive, important step forward that we can all
celebrate this evening on a bipartisan basis.
    As the Senator from Michigan, along with my colleague, Senator Levin,
we certainly celebrate the efforts along the northern border and the
important authorizations for dollars that allow us to continue to
protect and strengthen the efforts at the border. I thank my chairman
of the Banking Committee, Senator Sarbanes, for his efforts to put into
this important bill language dealing with the critical issue of money
laundering which essentially allows us to follow the money.
    My colleague, Senator Levin, has been extremely involved in helping
to lead efforts to lay out the case for this. Senator Kerry and Senator
Grassley have been involved in important work. I thank them.
    The antiterrorism bill before the Senate takes a significant step
forward in cutting the flow of terrorist money. As the President has
repeatedly said, stopping the flow of money is key to stopping
terrorism. That is what we are doing this evening. In particular, we
are establishing important new responsibilities, both for our
Government and for our financial institutions. The bill authorizes the
Treasury Secretary to take special measures to stop suspected money-
laundering activities. This anti-money-laundering language is
significant because it requires financial institutions to set up their
own due diligence to combat money laundering, particularly for private
and corresponding banking situations. This is a key provision of which
I was proud to be a part. I am pleased we were able to come up with
language that allows that.
 
    Another important provision I was pleased to offer in the Banking
Committee, which is now part of the bill, was clear authority for the
Treasury Secretary to issue regulations to crack down on abuses related
to concentration accounts. These accounts are administrative accounts
used by financial institutions to combine funds from multiple
customers, various transactions. They do not require any identification
or accountability of who is involved or how much money we are talking
about.
    The amendment I advocated urges the Treasury Secretary to issue
regulations ensuring these concentration accounts identify by client
name all of the client funds moving through the account to prevent
anonymous movement of the funds that might facilitate money laundering.
This is a classic case of why this is so important: Raul Salinas,
brother of former Mexican President Carlos Salinas, transferred almost
$100 million to Citibank administrative accounts in New York and London
without any documentation indicating the ownership of these funds. The
wire transfers sent the funds to Citibank and asked each transfer be
brought to the attention of a specific private banker. Later, the
private banker transferred the funds to private accounts controlled by
Mr. Salinas. The origin of this money--$100 million--was never
satisfactorily identified.
    Allegations of drug money or other corporate sources persist to this
day. We know, through Senator Levin's exhaustive documentation at his
hearings, that other private banks use this practice as well. Although
financial regulators have cautioned against this practice over and over
again, they have not yet issued regulations to stop this loophole. That
is why the language in this bill is so important.
    The use of these anonymous concentration accounts breaks the audit
trail associating specific funds with specific clients. Again, the
goal, as the President said, is to follow the money. We have to have
information if we are going to follow the money.
    It should now be abundantly clear to Treasury that they have the
authority to stop this practice. I hope it is also abundantly clear it
is a serious problem. I am very concerned that the administration act
quickly on these anonymous accounts.
    I congratulate everyone involved in this effort. I think the effort
regarding the anti-money-laundering language is a critical part of
making sure we have an effective antiterrorism bill. I thank my
colleagues for their work.
    The PRESIDING OFFICER. The time of the Senator from Michigan has
expired. Who yields time?
    The Senator from Wisconsin.
    Mr. FEINGOLD. Mr. President, I will give a brief statement before I
start my amendments, and I ask unanimous consent the time be equally
divided amongst the time I have on each of my four amendments.
    The PRESIDING OFFICER. Without objection, it is so ordered.
    Mr. FEINGOLD. Mr. President, 1 month ago, we all were viciously
attacked. I am pleased and grateful that both the domestic and
international effort to respond to these attacks is fully underway. As
we recall, almost as soon as the attacks of September 11 ended, our
public discussion turned to two issues: how the United States will
respond to these terrorist acts and how we can protect ourselves
against future attacks.
    Almost immediately, discussion of that second issue raised the
question of how our efforts to prevent terrorism will affect the civil
liberties enjoyed by all Americans as part of our constitutional
birthright.
    I was encouraged by many of the reactions that our leaders and
Members of this body had, but especially encouraged by the words of our
colleague, Senator George Allen of Virginia who represents one of the
States struck by
 
[[Page S10570]]
 
terrorism. On the day after the attacks he said:
 
         We must make sure that as we learn the facts, we do not
       allow these attacks to succeed in tempting us in any way to
       diminish what makes us a great nation. And what makes us a
       great nation is that this is a country that understands that
       people have God-given rights and liberties. And we cannot--in
       our efforts to bring justice--diminish those liberties.
 
    I agree with Senator Allen. I believe that one of the most important
duties of this Congress is in responding to the terrible events of
September 11, in order to protect our civil liberties, which, of
course, derive from our Constitution. That is why I am pleased that we
did not take the Attorney General's advice to enact an anti-terrorism
bill immediately without any deliberation or negotiation. I commend
Senator Leahy for all his efforts to improve this bill. It is certainly
a better and more comprehensive bill than the one the administration
originally proposed. I think even the administration recognizes that.
 
    But I still believe we needed a more deliberative process on this
bill, and more careful consideration of the civil liberties implication
of it. I held a hearing in the Constitution Subcommittee at which many
serious and substantive concerns about the bill were raised by
commentators and experts from both sides of the political spectrum.
    As the chairman of the subcommittee, I took many of those concerns
very seriously. That is why I would not consent on Tuesday night to
bringing up this bill and passing it without any amendments being
considered. I am pleased that we were able to reach agreement on a
process that will allow some of my concerns with this bill to be
debated and voted on through the amendment process.
    That is not to say that no measures to strengthen law enforcement
should be enacted. They should be. We need to do it. We need to do some
very serious updating of a number of these laws. This bill does many
things to assist the Department of Justice in its mission to catch
those who helped the terrorists and prevent future attacks. We can and
we will give the FBI new and better tools. But we must also make sure
that the new tools don't become instruments of abuse.
    There is no doubt that if we lived in a police state, it would be
easier to catch terrorists. If we lived in a country where the police
were allowed to search your home at any time for any reason; if we
lived in a country where the government was entitled to open your mail,
eavesdrop on your phone conversations, or intercept your email
communications; if we lived in a country where people could be held in
jail indefinitely based on what they write or think, or based on mere
suspicion that they were up to no good, the government would probably
discover and arrest more terrorists, or would be terrorists, just as it
would find more lawbreakers generally. But that would not be a country
in which we would want to live, and it would not be a country for which
we could, in good conscience, ask our young people to fight and die. In
short, that country would not be America.
    I think it is important to remember that the Constitution was written
in 1789 by men who had recently won the Revolutionary War. They did not
live in comfortable and easy times of hypothetical enemies. They wrote
the Constitution and the Bill of Rights to protect individual liberties
in times of war as well as in times of peace.
    There have been periods in our nation's history when civil liberties
have taken a back seat to what appeared at the time to be the
legitimate exigencies of war. Our national consciousness still bears
the stain and the scars of those events: The Alien and Sedition Acts,
the suspension of habeas corpus during the Civil War, the internment of
Japanese-Americans during World War II and the injustices perpetrated
against German-Americans and Italian-Americans, the blacklisting of
supposed communist sympathizers during the McCarthy era, and the
surveillance and harassment of antiwar protesters, including Dr. Martin
Luther King, Jr., during the Vietnam war. We must not allow this piece
of our past to become prologue.
    Preserving our freedom is the reason we are now engaged in this new
war on terrorism. We will lose that war without a shot being fired if
we sacrifice the liberties of the American people in the belief that by
doing so we will stop the terrorists.
    That is why this exercise of considering the administration's
proposed legislation and fine tuning it to minimize the infringement of
civil liberties is so necessary and so important. And this is a job
that only the Congress can do. We cannot simply rely on the Supreme
Court to protect us from laws that sacrifice our freedoms. We took an
oath to support and defend the Constitution of the United States. In
these difficult times that oath becomes all the more significant.
    There are quite a number of things in this bill that I am concerned
about, but my amendments focus on a small discreet number of items.
    At this point, I would like to turn to one of the amendments.
    The PRESIDING OFFICER. The Senator is recognized.
 
                             Amendment No. 1899
 
    Mr. FEINGOLD. I send an amendment to the desk and ask for its
immediate consideration.
    The PRESIDING OFFICER. The clerk will report.
    The assistant legislative clerk read as follows:
 
         The Senator from Wisconsin [Mr. Feingold] proposes an
       amendment numbered 1899.
 
    Mr. FEINGOLD. I ask unanimous consent the reading of the amendment be
dispensed with.
    The PRESIDING OFFICER. Without objection, it is so ordered.
    The amendment is as follows:
 
(Purpose: To make amendments to the provisions relating to interception
                   of computer trespasser communications)
 
         On page 42, line 25, insert ``or other'' after
       ``contractual''.
         On page 43, line 2, strike ``for'' and insert
       ``permitting''.
         On page 43, line 8, insert ``transmitted to, through, or
       from the protected computer'' after ``computer trespasser''.
         On page 43, line 20, insert ``does not last for more than
       96 hours and'' after ``such interception''.
 
    Mr. FEINGOLD. I ask this time now be charged to the first amendment.
    The PRESIDING OFFICER (Ms. Stabenow). The time will be charged.
    Mr. FEINGOLD. Madam President, this amendment simply clarifies the
provision in the bill dealing with computer trespass, section 217, so
that it more accurately reflects the intent of the provision, as
frequently expressed by the administration. Section 217 is designed, we
have been told, to permit law enforcement to assist computer owners who
are subject to denial of service attacks or other episodes of hacking.
As currently drafted, however, this provision could allow universities,
libraries, and employers to permit government surveillance of people
who are permitted to use the computer facilities of those entities.
Such surveillance would take place without a judicial order or probable
cause to believe that a crime is being committed. Under the bill,
anyone accessing a computer ``without authorization'' is deemed to have
no privacy rights whatsoever, with no time limit, for as long as they
are accessing the computer at issue. Basically, the way I read this,
this provision completely eliminates fourth amendment protection for a
potentially very large set of electronic communications.
    The danger that this amendment tries to address is that ``accessing a
computer without authorization'' could be interpreted to mean a minor
transgression of an office or library computer use policy. Let's take
an example. A working mom uses an office computer to purchase Christmas
presents on the Internet. Company policy prohibits personal use of
office computers. This person has potentially accessed a computer
without authorization and her company could give permission to law
enforcement to review all of the e-mails that she sends or receives at
work, monitor all the instant messages she sends, and record every
website she visits: No warrant, no probable cause, no fourth amendment
rights at all. My amendment makes clear that a computer trespasser is
not someone who is permitted to use a computer by the owner or operator
of that computer.
    This amendment also limits the length of this unreviewed surveillance
to 96 hours, which is a longer time frame than that placed on other
emergency wiretap authorities. Again, if
 
[[Page S10571]]
 
this provision is aimed solely at responding to cyber-attacks, there is
no need to continue such surveillance beyond 96 hours--which is the
time we put in our amendment--because that time is sufficient to allow
the government to obtain a warrant to continue the surveillance. It is
not as if they cannot continue it, they simply have to get a warrant
after 4 days. Warrants based on probable cause are still the
constitutionally preferred method for conducting surveillance in
America. The need for immediate and emergency assistance during a
denial of service attack or hacking episode, which I certainly think is
a legitimate concern, cannot justify continued surveillance without
judicial supervision.
 
    Finally, this amendment prevents law enforcement from abusing this
authority in investigations unrelated to the actual computer trespass.
The current provision potentially allows law enforcement to intercept
wire and electronic communications in many investigations where they
may not want, or be able, to secure a court order. If the government
suspects a person of committing a crime but does not have probable
cause to justify monitoring of the suspect's work computer, it could
pressure the owner or operator of the computer to find some
transgression in the suspect's computer use, allowing the government
carte blanche access to email and internet activity of the suspect. I
suspect that few small business owners will be anxious to stand up to
federal law enforcement requests for this information.
    Now the administration was apparently willing to add language to deal
with employees using office computers, but it refused to recognize that
in our society many people use computers that they do not own, with
permission, but without a contractual relationship. People who don't
own their own home computers use computers at libraries. Students use
computers at school in computer labs or student centers. Without my
amendment, these innocent users could become subject to intrusive
government surveillance merely because they disobeyed a rule of the
owner of the computer concerning its use. I have been told that this is
not the administration's intent, but they would not fix this provision.
So I think it is fair to ask why. Why does the administration insist on
leaving open the possibility that this provision will be abused to
entirely eliminate the privacy of students' and library patrons'
computer communications? Is there a hidden agenda here? I sincerely
hope not, but I was very disappointed in the administration's
unwillingness to address this concern. I remain willing to negotiate on
this amendment, but if there is no further movement on it, I hope my
colleagues will recognize that this amendment will leave the publicly
expressed purpose of the computer trespass provision untouched and fix
a potentially disastrous case of overbreadth.
    I reserve the remainder of my time.
    I ask for the yeas and nays on the amendment.
    The PRESIDING OFFICER. Is there a sufficient second?
    There is a sufficient second.
    The yeas and nays were ordered.
    Mr. FEINGOLD. Madam President, how much time do I have remaining on
my side?
    The PRESIDING OFFICER. Eighteen and one-half minutes on this
amendment.
    Mr. FEINGOLD. Madam President, I yield 5 minutes to the Senator from
Washington.
    The PRESIDING OFFICER. The Senator from Washington is recognized.
    Ms. CANTWELL. Madam President, I rise to support my colleague,
Senator Feingold, and his amendment to section 217. I think the Senator
has done a tremendous job in outlining the issues related to this bill
and the fact that haste can sometimes make waste. Haste in some
instances on very well crafted language to uphold our rights under the
Constitution can be infringed upon.
    Section 217 is intended to allow computer system owners and operators
to fully engage Federal law enforcement where someone hacks or intrudes
into their system. As Senator Feingold mentioned, that could be a
business owner, or it could be a library system, or it could be a
university system.
    Unfortunately, as drafted, there are few limits on what
communications the Government could intercept without showing probable
cause that a crime has been committed and without having the
opportunity for judicial review of those intercepts.
    The provisions do not even limit the scope of the surveillance. Once
authorized, the Government could intercept all communications of a
person who is allegedly a trespasser. Again, let me be clear: Without
meeting the fourth amendment requirement to show probable cause.
    Further, there is no time limit on the surveillance under the
provision of this legislation. For those who may be reviewing this
legislation for the first time, and understanding that as they go to
their workplace, or as they go to their educational institution, or as
they go to their library to enhance their education, they could be
under surveillance for a very long and indefinite period of time
without their knowledge.
    Thus, once authorized by a computer system operator, the Government
could intercept all communications of a person forever without a proper
search warrant. Even a court order wiretap expires after 30 days.
 
    This amendment would remedy some of the defects in this bill. It
would do that by requiring that the surveillance be only of
communications associated with the trespass and that the length of the
surveillance be limited to 96 hours, which, by the way, is twice as
long as the time limit placed on emergency wiretap authority. If the
problem continues, investigators could easily obtain additional warrant
time for the surveillance to continue.
    This is a very important time in our country's history. It is a time
in which we want to act in unity and support the administration. It is
a time in which we want to act to give law enforcement the tools they
need to apprehend those who have been responsible and may be
responsible for future acts of terrorism. But we also must preserve the
right of citizens of this country when it comes to the fourth
amendment.
    I encourage my colleagues to support the Feingold amendment. I yield
the floor.
    The PRESIDING OFFICER. Who yields time?
    Mr. FEINGOLD. Madam President, first, I want to say how important it
is to have on the committee the Senator with expertise in this area as
well as her own background. I appreciate very much her help on this
matter.
    Madam President, how much time do I have remaining on my side?
    The PRESIDING OFFICER. The Senator has 14\1/2\ minutes.
    Mr. FEINGOLD. I am happy to yield 5 minutes to the Senator from
Minnesota.
    The PRESIDING OFFICER. The Senator from Minnesota.
    Mr. WELLSTONE. Madam President, my colleague from Washington I think
speaks within a framework of expertise that she brings to this
particular amendment. I speak from the framework of a layperson who has
been trying to understand this bill's pluses and minuses.
    I say to Senator Feingold and all colleagues, since I think there is
kind of a rush to table all of the Feingold amendments, that this
amendment is eminently reasonable. The Senator from Wisconsin is
saying: Let's put a time limit on this. That is good. Let's have some
judicial oversight. That is good as well.
    There are international terrorists who have killed many Americans and
want to kill more Americans. There are a lot of provisions in this bill
which I think are right on the money, including northern border
protection which is relevant to the Chair, relevant to the Senator from
Washington, and certainly relevant to the people I represent. But I
also think there is no reason, in this rush to pass the bill, that we
can't make some changes. These are minor changes the Senator wants to
make. This just gives this piece of legislation more balance.
    I will say this: There is a lot that is good in this bill and a lot
that is attractive to me as a Senator. When you add some of the
additional security provisions that help all the people we are asked to
represent in addition to the benefits--the financial help to all of the
rescue workers and all of the innocent people's families, people have
been murdered--there is much in this
 
[[Page S10572]]
 
bill that is commendable. The Senator from Wisconsin is just trying to
give it more balance.
    I say to my colleagues that I hope you will support this amendment. I
want to say one other thing as well. I really believe what is good
about this bill is the provisions that focus on the people whom the
terrorists are basically trying to kill--Americans. What is not as good
is when the reach of the bill goes too far beyond that and is too
broad.
    The sunset provision that passed in the House is so important, so
that we can continue to monitor this legislation as we move forward.
    I think this amendment that the Senator from Wisconsin has submitted
is a step to give this piece of legislation a little more balance, and
it will be more vigilant of people's civil liberties. I think it is the
right step.
    I thank the Senator for his amendment.
    Mr. FEINGOLD. I thank the Senator from Minnesota for his help,
especially for making this point: All this amendment is about is making
sure that it is about the problem we face with the terrorism that is
threatening our country and our freedoms. That is all we are trying to
do--make sure it doesn't go broadly into people's rights, and into
their privacy, and into their own lives.
    At this point, I am simply going to reserve the remainder of my time.
    The PRESIDING OFFICER. Who yields time?
    Mr. HATCH. Madam President, let me talk a little bit about the
provision of today's legislation that has been referred to as the
``computer trespasser'' exception.
    This provision is a perfect example of how our laws dealing with
electronic surveillance have become outdated, and nonsensical as
applied to modern technology.
    Imagine the following scenario. A terrorist decides to wreak havoc in
a major U.S. city by shutting down an electrical power grid. He uses a
computer to hack into the mainframe computer of a regional utility
company, which he plans to use to bring down the power grid. Before the
terrorist can accomplish his goal, the utility company recognizes that
an intruder is attempting to access their computer. The company quickly
calls the FBI for assistance in repelling the intruder.
    Guess what? Under current law, even with the permission from the
utility company, the FBI is not permitted to monitor the terrorist's
activity on the utility company's computer, because current law
perversely grants the terrorist privacy rights with respect to his
communications on the computer he has invaded.
    It is as if police could not investigate a burglary, even when
invited into the house by the victim of the burglary, because the
burglar had established privacy rights inside the home he has invaded.
    It is anomalies such as this, in our current laws regarding
electronic surveillance, that today's legislation is designed to fix.
    As it stands, the computer trespasser provision is defined in such a
way that the owner or operator of a computer network cannot arbitrarily
declare the user of the network at trespasser, and then invite law
enforcement in to monitor that user's communications.
    The provision, as written, provides that a person is not considered a
computer trespasser if the person has an ``existing contractual''
relationship for access to all or part of the computer network.
    Senator Feingold's amendment would broadly amend the negotiated
exception, including within its scope anyone with a contractual or
``other'' relationship to the owner or operator of a computer network.
What is meant by ``other'' relationship? Any hacker could make the
argument that they have a relationship with a computer operator.
Indeed, were I a defense counsel, I would argue that the mere fact that
the hacker has accessed the computer has created some form of
relationship. Clearly, the proposed amendment would broadly and
unwisely give immunity from our cyber-crime laws. This amendment
creates an exception to the criminal laws and puts law enforcement back
in the same position they currently are--that is, powerless to
investigate hacking incidents where the owner of the computer network
wants the assistance of law enforcement.
    Madam President, we should not tie the hands of our law enforcement
to assist the owners of our computer networks. We should not help
hackers and cyberterrorists to get away.
    If you are a victim of a burglary, shouldn't you have the right to
ask the police to investigate your house, to come to your house and
investigate?
    Why should the owners of the computer not have the right to ask the
police to investigate a commuter-hacking incident, especially where it
appears it is terrorist oriented?
    This act applies, as written, only to people without authorization to
be on the computer. Why should the law protect people who have invaded
a computer they have no right to be on?
    Let me say one last comment about this. The proponents of this
amendment argue it will apply to students using a university computer.
That is true, but only if such students use that university computer to
hack into a place where they do not belong.
    Either we have to get serious in this modern society, with these
modern computers, about terrorism or we have to ignore it. I, for one,
am not for ignoring it. I believe we need to have this language in
here--so does the Justice Department; so does the White House and the
White House Counsel's Office--in order to do what cannot be done today
to protect people in our society, and to protect our powerplants, our
dams, and so many important facilities in our society that are
vulnerable to cyber-terrorists. This law, the way it is currently
written, will help to do that.
    That is all I care to say about it. But I believe we should vote down
the Senator's amendment. I know it is well intentioned. I have great
respect for the Senator from Wisconsin. He is one of the very diligent
members of our committee, and I appreciate him very much, but on this
amendment I believe we have to keep the language of the bill the way it
is written in order to give our law enforcement people the tools to be
able to stop terrorist hacking into computers.
    The PRESIDING OFFICER. The Senator from Wisconsin.
    Mr. FEINGOLD. I thank my friend for his kind words.
    Madam President, in response to the points he made, first, let me
respond that I accept the premise of this basic provision in terms of
updating the ability to get at computer hackers. That is an update. We
did not know what this was a few years ago. We did not know what risks
it posed. Nobody opposes that very important part of this bill.
    But what the Senator claims is that the phrase ``contractual
relationship'' somehow makes sure that people are protected from being
subject to this who really should not be subject to this; but it does
it.
    I can think of at least three categories of people who do not come
within the category of ``contractual relationship.'' One is in the
context employment. It is nice if you have a contract, but a lot of
employees do not. They do not fall within the protection of a
contractual relationship.
    The same goes for people who would go and use a computer at a
library. They do not have a contractual relationship to protect them in
this situation.
    And finally, as the Senator conceded here, in his last example, that
certainly students, students at all our universities across the
country, are not protected by that language. And that is all we want to
do, to make it clear that this amendment is related to the problem of
computer hackers, not moms who might be buying Christmas presents on a
computer at work, even though they are not supposed to, or students who
maybe are gambling on a university computer. Of course they should not
do that, but should that subject them to extraordinary, unprecedented
intrusion by Government law enforcement authority? Of course not.
    The Senator attempts to suggest that the provision in here having to
do with our desire to have the language say ``contractual'' or
``other'' relationship would somehow allow a hacker to claim that he is
protected. The notion that a hacker would be considered as somebody who
has a relationship with the company under this amendment is an absurd
interpretation of the amendment's intent, so that clearly is not what
this amendment would do.
    And finally, let me get back to the students, the example the Senator
 
[[Page S10573]]
 
from Utah mentioned. It is simply an unprecedented intrusion into
individual rights for a university to be able to allow--because of a
minor use that is not within university rules--that person to be
completely subject to this kind of intrusion.
    Mr. DURBIN. Will the Senator yield for a question?
    Mr. FEINGOLD. Yes.
    Mr. DURBIN. I have followed this debate closely. I commend the
Senator for the hearing he had on the constitutional rights part of
this debate. But I want to make sure I understand exactly what his
amendment sets out to do.
    Is my understanding correct that under the Feingold amendment there
could be surveillance of a computer for 96 hours before there is any
court approval, so that in the example given by the Senator from Utah,
the law enforcement authorities could, in fact, monitor the
communications of someone using this computer for 96 hours before ever
going to a court and asking for a warrant for that search?
    Mr. FEINGOLD. That is correct. And that even troubles me for the
length of time that it is allowed--but it is far better than an
infinite position. Law Enforcement should be required to seek a warrant
as soon as possible, within reason, given the fact that what the
amendment tries to get at is emergency situations involving hackers. As
soon as possible, they should have to meet the standards that are
normally met.
    But, yes, the amendment does permit that, in my view, rather
extraordinary period of time before the requirement would have to be
made.
    Mr. DURBIN. And that period of time, I ask the Senator from
Wisconsin, is roughly twice the amount currently given under emergency
wiretap authority; is that correct?
    Mr. FEINGOLD. That is correct.
    Mr. DURBIN. One last question. I want to try to understand. I ask the
Senator do you not say, in your amendment, that a trespasser does not
include someone who is permitted to use a computer by the owner or
operator of the computer?
    Mr. FEINGOLD. Correct.
    Mr. DURBIN. And the difference, of course, is whether it is a
contractual relationship or just a permission to use; you are including
permission to use as well as contractual relationship?
    Mr. FEINGOLD. That is correct.
    Mr. DURBIN. The examples you have given are of people going to a
library, who may not have a contractual relationship with the library
but use the computer, who would be subjected to this warrantless search
of their computer communications for an indefinite period of time.
    Mr. FEINGOLD. That is right, exactly. This is exactly the problem.
All we asked of the committee and of the administration yesterday was
to make it clear that they did not want to reach these people. That is
what we have been told. The purpose of this is to get at the threat of
computer hackers.
    The Senator from Illinois has just illustrated, with those examples--
and he is, of course, correct--that this could be interpreted and could
be understood to include situations that not only have nothing to do
with the problem but represent a very serious departure from the
individual rights people should have in our country.
    Mr. DURBIN. I thank the Senator from Wisconsin.
    Mr. FEINGOLD. I thank the Senator from Illinois and reserve the
remainder of my time.
    Mr. LEAHY. Madam President, I have been concerned about the scope of
the amendment carving an exception to the wiretap statute for so-called
``computer trespassers.'' This covers anyone who accesses a computer
``without authorization'' and could allow government eavesdropping,
without a court order or other safeguards in the wiretap statute, or
Internet users who violate workplace computer use rules or online
service rules.
    I was unable to reach agreement with the administration on limiting
the scope of this amendment, and the Feingold amendment makes further
refinements. It is unfortunate that the administration did not accept
this amendment.
    The PRESIDING OFFICER. Who yields time?
    Mr. HATCH. Madam President, how much time remains?
    The PRESIDING OFFICER. The Senator from Wisconsin has 4 minutes 47
seconds; the managers have 9 minutes 14 seconds.
    Mr. HATCH. I am prepared to yield back whatever time we have, if it
is all right with the distinguished Senator from Vermont, with the
understanding that we are just trying to stop unauthorized hacking that
could be done by terrorists and others who are criminals that currently
cannot be stopped. I am prepared to yield back the time, if the
distinguished Senator from Vermont is.
    The PRESIDING OFFICER. The Senator from Pennsylvania.
    Mr. SPECTER. Madam President, I ask the chairman of the committee,
after listening to the presentation by the Senator from Wisconsin, what
is the chairman's view of the incursion on law enforcement by the
limitation of 96 hours?
    Mr. LEAHY. The incursion of law enforcement by the 96 hours?
    Mr. SPECTER. The principal thrust of what the Senator from Wisconsin
seeks to do is to broaden the definition of a contractual relationship
to someone who may otherwise have permission. What I am trying to do is
to understand the administration's position, the law enforcement
position as to how law enforcement is adversely impacted by what the
Senator from Wisconsin seeks to do.
    My concern, as expressed earlier, is that, especially in the face of
the challenge by the amendment, this is a complicated bill.
    The reality is, it is hard to know all of it without the normal
hearing process. Now we have a specific challenge. What I would like to
know is, how does it inhibit law enforcement? What about the broader
definition gives problems to law enforcement? And then, what is the
difficulty in having 96 hours, which is 4 days, to see what is going on
to find some basis for seeking a warrant with probable cause?
    Mr. LEAHY. Frankly, I don't have a problem with the Feingold
amendment as it is written. I do have a problem, however, with keeping
a bill together. The initial administration request had no limitations
whatsoever. It was so wide open we were concerned that someone who
might be using a computer at work to add up their accounts for the
month would be trapped by this because the company said you couldn't
use the computer to add up your checking account, for example, to use a
farfetched example, because they would be accessing the computer
without authorization and the Government could just step in and go
forward.
 
    The administration moved partly our way. We actually ended up with a
compromise on this. I suspect what they would say to the Senator from
Pennsylvania is that these attacks last more than 96 hours and that
they would be unable to go after them if they were limited to the 96
hours.
    We saw this recently 2 or 3 weeks ago where we had a continuous
roving attack on a number of Government computers. As I recall--I
didn't pay that much attention at the time--they were attacking them
one week and when we came back the following week, they were still
attacking them. So you had more than 96 hours.
    Frankly, it is a case where we have reached a compromise. The
distinguished ranking member, speaking on behalf of the administration,
said this is not acceptable to them. Had this been part of the original
package, I wouldn't have found it acceptable.
    Mr. HATCH. Will the Senator yield?
    Mr. SPECTER. Yes.
    Mr. HATCH. Basically, what the administration is after here is that
if a burglar is coming into your home and the police come to
investigate, they don't have to report to a judge within 96 hours. The
police have to act on these terrorist matters. If they find that a
terrorist has infiltrated a computer controlling an electrical grid
system, they want to get right on the ball and do something about it.
That is what they are trying to do with this provision.
    There are no fourth amendment rights implicated because you have
people who have hacked into a computer that they don't have any right
to be in.
    We want to give law enforcement the power to stop that. This
provision upsets that power and basically puts us back where we are
when we can't do
 
[[Page S10574]]
 
anything in a modern digital age to stop terrorists from stopping power
grids and damaging dams and a whole raft of other things.
    Mr. SPECTER. Madam President, if the Senator from Utah will yield for
a question?
    Mr. HATCH. Surely.
    Mr. SPECTER. The Senator from Wisconsin makes the point that people
may have standing to use a computer even without a contractual
relationship. He uses the example of a student. Does the Senator from
Utah believe or does the administration represent that there are no
relationships other than contractual which give a person the legitimate
standing to use the computer?
    Mr. HATCH. Under this provision, you do not have a right to hack into
another private computer, whether you are a university student or
anybody else. It only applies, the law we have written, to unauthorized
access. It does not apply to authorized access. But unauthorized
access, yes, it applies to that. If we don't put it in there, we will
be leaving a glaring error that currently exists in our laws that
prohibit us from solving some of these problems. It would be a terrible
thing to not correct at this particular time, knowing what we know
about how these terrorists are operating right now.
    Mr. SPECTER. So is the Senator from Utah saying that if you have
permission, that is a form of a contractual relationship?
    Mr. HATCH. I am saying that if you have permission, you are not
covered by this provision as written. In other words, you would not be
considered a hacker.
    Mr. SPECTER. On its face you would seem to, unless there is a
contractual relationship?
    Mr. HATCH. It comes down to authorized or unauthorized access. If it
is authorized, it is not covered under the computer trespasser
provision.
    Mr. SPECTER. I thank the Senator.
    The PRESIDING OFFICER. The Senator from Wisconsin.
    Mr. FEINGOLD. Madam President, did the Senator yield back his
remaining time?
    Mr. HATCH. Yes, we are prepared to yield.
    Mr. LEAHY. We are prepared if the Senator from Wisconsin is.
    Mr. FEINGOLD. I want to clarify a couple points, then I will be
prepared to yield the remaining time.
    These were helpful exchanges on a couple of points. First of all, it
became very clear from Senator Specter's excellent questioning that, of
course, there is no guarantee, under the way this language is set up,
under the words ``contractual relationship,'' that the provision would
not apply to students or to people who would use a computer at a
library. I can't understand why, if that is the intent of the
administration, the intent of the legislation, why they don't just
agree to language that would say so. That is all we asked for
yesterday. It could have resolved the problem. For some reason, they
won't agree to it.
    Second, is this notion that a hacker could somehow get in under our
language. There is no way that a hacker has a relationship with the
computer owner that permits the use of the computer. The hacker is,
obviously, the antithesis, the opposite of an individual with a
relationship that permits use of the computer.
    Finally, I am amazed at this notion that this amendment, even under
our version of it, would allow only 96 hours for surveillance when
under the example of the Senator from Utah, an ongoing hacker attack is
occurring.
    Is it the Senator's contention that at the end of 96 hours, the FBI
would not have probable cause to get a warrant, when all it has been
dealing with for 4 days is this hacking of the computer? Of course, it
would. It would be the easiest thing in the world.
    Section 217 is a very dramatic exception to the usual rule as derived
under our system, and expressed in the fourth amendment. Normally, you
have to come up with probable cause and a warrant. There are exceptions
because we have difficult problems sometimes. But 96 hours? At the end
of that time, with clear evidence of a hacking attempt, a warrant could
easily be obtained. Obviously, our amendment takes care of the need for
emergency authorization. In fact, I think it is too generous. I am
trying to put some kind of a time limit on this so we can have some
semblance of the normal rules that protect our citizens.
    If the other side yields their time, I will yield my remaining time
as well.
    The PRESIDING OFFICER. The majority leader is recognized.
    Mr. DASCHLE. Madam President, I have listened to this debate with
great interest, and I appreciate very much the arguments made by the
Senator from Wisconsin. As the Senator from Vermont and, I believe, the
Senator from Pennsylvania, have noted, there are circumstances where I
can easily see that we could be sympathetic to his amendment. He makes
an argument.
    My difficulty tonight is not substantive as much as it is procedural.
There is no question, all 100 of us could go through this bill with a
fine-tooth comb and pinpoint those things which we could improve. There
is no doubt about that. I have looked at this bill, and there are a lot
of things, were I to write it alone, upon which I could improve. I know
the chairman of the committee believes that too.
    I think we also have to recognize that this is the product of a lot
of work in concert with our Republican colleagues, in concert with the
administration, in concert with civil liberties groups, and in concert
with law enforcement. We have come up with what I would view as a
delicate but, yes, successful compromise.
    Now, if we had opened the bill to amendment, I have no doubt there
are many colleagues who would offer amendments with which I would
vehemently disagree--in fact, so much so that I might want to
filibuster the bill. I would probably lose. I think there is a
realistic expectation that on a lot of these issues, my side would
lose. I think you could make the same case for the other side. So, we
made the best judgment we could, taking into account the very delicate
balance between civil liberties and law enforcement that we had to
achieve in bringing a bill of this complexity to the floor.
    I have to say, I think our chair and ranking member and all of those
involved did a terrific job under the most difficult of circumstances.
What we did was to say: Let's take this product and work with it; let's
review it; if we have to make some changes, let's consider them; but
let's recognize that if we were to take this bill open-ended, there
would be no end to the amendments--that is the result that would most
likely occur in such a circumstance.
 
    While I may be sympathetic to some amendments offered tonight, had it
been an open debate, there would have been a lot of amendments for
which I would not have been sympathetic.
    Given those circumstances, my argument is not substantive, it is
procedural. We have a job to do. The clock is ticking. The work needs
to get done. We have to make our best judgment about what is possible,
and that process goes on.
    I hope my colleagues will join me tonight in tabling this amendment
and tabling every other amendment that is offered, should he choose to
offer them tonight. Let's move on and finish this bill. Let's work with
the House and come up with the best product between the Houses. Then,
let's let law enforcement do its job, and let's use our power of
oversight to ensure that civil liberties are protected.
    I make a motion to table.
    Mr. LEAHY. Will the Senator withhold that motion to table for a
moment?
    Mr. DASCHLE. Yes.
    Mr. LEAHY. Madam President, I have served with over 250 Senators
here, and I have been proud to serve with all of them. I know of no
Senator who has a stronger commitment to our individual rights and
personal liberties than the senior Senator from South Dakota, our
majority leader. But I also know that were it not for his commitment
and efforts, we would not be here with a far better bill than the one
originally proposed by the administration. It has been because of his
willingness to back us up as we try to improve that bill, to remove
unconstitutional aspects of it, because of his willingness, we were
able to get here.
    As the Senator from South Dakota, the dearest friend I have in this
body, has said, he could find parts he would do differently, and he
knows there are parts I would do differently--even on this one. I have
high regard for the
 
[[Page S10575]]
 
Senator from Wisconsin, and I would have loved to have had his
amendment. Actually, I would have done it probably differently than
that. But we had a whole lot of places where we won and some where we
lost.
    I can tell you right now, if we start unraveling this bill, we are
going to lose all the parts we won and we will be back to a proposal
that was blatantly unconstitutional in many parts. So I join, with no
reluctance whatsoever, in the leader's motion.
    Mr. DASCHLE. Madam President, I move to table.
    The PRESIDING OFFICER. The Senator from Wisconsin.
    Mr. FEINGOLD. Madam President, on this bill there was not a single
moment of markup or vote in the Judiciary Committee. I accepted that
because of the crisis our Nation faces. This is the first substantive
amendment in the Senate on this entire issue, one of the most important
civil liberties bills of our time, and the majority leader has asked
Senators to not vote on the merits of the issue. I understand the
difficult task he has, but I must object to the idea that not one
single amendment on this issue will be voted on the merits on the floor
of the Senate.
    What have we come to when we don't have either committee or Senate
deliberation on amendments on an issue of this importance?
    I yield the floor, and I yield back the remainder of my time.
    The PRESIDING OFFICER. All time is yielded back.
    Mr. DASCHLE. Madam President, I move to table the amendment.
    Mr. LEAHY. I ask for the yeas and nays.
    The PRESIDING OFFICER. Is there a sufficient second?
    There is a sufficient second.
    The question is on agreeing to the motion.
    The clerk will call the roll.
    The legislative clerk called the roll.
    Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms), the Senator from New Mexico (Mr. Domenici), the Senator from
South Carolina (Mr. Thurmond), and the Senator from Mississippi (Mr.
Lott) are necessary absent.
    I further announce that if present and voting the Senator from North
Carolina (Mr. Helms) would vote ``yea.''
    The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
    The result was announced--yeas 83, nays 13, as follows:
 
                        [Rollcall Vote No. 299 Leg.]
 
                                  YEAS--83
 
       Akaka
       Allard
       Allen
       Baucus
       Bayh
       Bennett
       Biden
       Bond
       Breaux
       Brownback
       Bunning
       Burns
       Byrd
       Campbell
       Carnahan
       Carper
       Chafee
       Cleland
       Clinton
       Cochran
       Conrad
       Craig
       Crapo
       Daschle
       DeWine
       Dodd
       Dorgan
       Edwards
       Ensign
       Enzi
       Feinstein
       Fitzgerald
       Frist
       Graham
       Gramm
       Grassley
       Gregg
       Hagel
       Hatch
       Hollings
       Hutchinson
       Hutchison
       Inhofe
       Inouye
       Jeffords
       Johnson
       Kennedy
       Kerry
       Kohl
       Kyl
       Landrieu
       Leahy
       Lieberman
       Lincoln
       Lugar
       McCain
       McConnell
       Mikulski
       Miller
       Murkowski
       Murray
       Nelson (FL)
       Nelson (NE)
       Nickles
       Reed
       Reid
       Roberts
       Rockefeller
       Santorum
       Sarbanes
       Schumer
       Sessions
       Shelby
       Smith (NH)
       Smith (OR)
       Snowe
       Stevens
       Thomas
       Thompson
       Torricelli
       Voinovich
       Warner
       Wyden
 
                                  NAYS--13
 
       Bingaman
       Boxer
       Cantwell
       Collins
       Corzine
       Dayton
       Durbin
       Feingold
       Harkin
       Levin
       Specter
       Stabenow
       Wellstone
 
                               NOT VOTING--4
 
       Domenici
       Helms
       Lott
       Thurmond
    The motion was agreed to.
    Mr. LEAHY. I move to reconsider the vote.
    Mr. DASCHLE. I move to lay that motion on the table.
    The motion to lay on the table was agreed to.
    Mr. LEAHY. Madam President, so we understand where we are, there is
still a fair amount of time on the bill that the Senator from Utah and
I have and we have committed to Senators on both sides of the aisle who
need time. The remaining time is for the Senator from Wisconsin who has
three more amendments with the same time as he had in the last
amendment.
    The Senator from Massachusetts has asked for 5 minutes. I understand
we have three more amendments that would take probably an hour or so
per amendment with the vote if the Senator from Wisconsin wishes to use
all his time, and he has a right to do that.
    Once those are disposed of, the Senator from Utah and I are probably
prepared to yield back our time.
    I yield 5 minutes to the Senator from Massachusetts.
    Mr. KERRY. Madam President, it was depending entirely on what the
Senator from Wisconsin was doing. I reserve that now and see where we
are heading.
    Mr. LEAHY. I yield the floor.
    Mr. FEINGOLD. Madam President, it is my intention to offer two more
amendments, not the third amendment. I believe the time for each of
these amendments could be less than the full time allotted. We have a
fair amount of interest, but I didn't expect as much debate. I think
the last two could be expedited, and I am prepared to proceed, if that
is what my colleagues desire.
 
                             Amendment No. 1900
 
    I send an amendment to the desk and ask for its immediate
consideration.
    The PRESIDING OFFICER. The clerk will report.
    The legislative clerk read as follows:
 
         The Senator from Wisconsin [Mr. Feingold] proposes an
       amendment numbered 1900.
 
    Mr. FEINGOLD. I ask unanimous consent reading of the amendment be
dispensed with.
    The PRESIDING OFFICER. Without objection, it is so ordered.
    The amendment is as follows:
 
         On page 21, line 14, insert ``except that, in such
       circumstances, the order shall direct that the surveillance
       shall be conducted only when the target's presence at the
       place where, or use of the facility at which, the electronic
       surveillance is to be directed has been ascertained by the
       person implementing the order and that the electronic
       surveillance must be directed only at the communication of
       the target,'' after ``such other persons''.
 
    Mr. KERRY. For the purpose of planning, could the Senator give us a
sense of both amendments and how long he thinks he will talk.
    Mr. FEINGOLD. I have about 12 minutes on this amendment subject to
any response to that and approximately the same on the second
amendment.
    Mr. KERRY. I thank the Chair.
    Mr. FEINGOLD. Madam President, this amendment has to do with what is
called roving wiretap, or multipoint surveillance authority. This is
one of the first things Attorney General Ashcroft asked for in the
first days after the September 11 attack and gave the example of a
terrorist using throwaway cell phones and the need for continued
roaming wiretap authority to allow the FBI to keep up with the ready
availability of this new technology.
    First, let me say I have a lot of sympathy for the idea of updating
this area of the law. Obviously, it is needed in light of changes in
technology. It is vitally important for Members of the Senate to
understand that roving wiretap authority is already available for
criminal investigations under title III. It is in title 18, section
2518(11) and (12). The Attorney General doesn't need nor has he asked
for any new roving wiretap authority for criminal investigations. He
already has it.
    What the bill does in Section 206 is provide similar authority in
investigations under the Foreign Intelligence Surveillance Act, known
as FISA. I am not opposed to expanding existing roving wiretap
authority to include FISA investigations, but I am very concerned that
Section 206 does not include a key safeguard that was part of the
roving wiretap authority when it was added to title III in 1986. That
protection minimizes the possible misuse of the authority, whether
intentional or unintentional, to eavesdrop on the conversations of
individuals who are not the subject of the investigation.
    Let me read from the Senate Judiciary Committee's report on the
legislation that granted roving wiretap authority:
 
         Proposed subsection 2518(12) of title 18 provides, with
       respect to both ``wire'' and ``oral'' communications, that
       where the federal government has been successful in obtaining
       a relaxed specificity order, it cannot begin the interception
       until the facilities or place from which the communication is
       to be intercepted is ascertained by the person implementing
       the interception order.
 
[[Page S10576]]
 
    In other words, the actual interception could not begin until the
suspect begins or evidences an intention to begin a conversation.
    It further reads:
 
         It would be improper to use this expanded specificity order
       to tap a series of telephones, intercept all conversations
       over such phones and then minimize the conversations
       collected as a result. This provision puts the burden on the
       investigation agency to ascertain when the interception is to
       take place.
 
    It seems to me that Congress struck the right balance in that
provision. It recognized the needs of law enforcement, but also
recognized that rights of innocent people were implicated and designed
a safeguard to protect them.
    When Congress passed FISA in 1978 it granted to the executive branch
the power to conduct surveillance in certain types of investigations
without meeting the rigorous probable cause standard under the Fourth
Amendment that is required for criminal investigations. Investigations
of agents of foreign powers were different. There is a lower threshold
for obtaining an order from the FISA court. But I don't think that
roving wiretap authority under FISA should be less protective of the
constitutional rights of innocent people who are not the subject of the
investigation than the authority that Congress intended to grant in a
standard criminal investigation.
    My amendment takes the safeguard from Title III--from current law--
and includes it in the FISA roving wiretap authority provision. The
amendment simply provides that before conducting surveillance, the
person implementing the order must ascertain that the target of the
surveillance is actually in the house that has been bugged, or using
the phone that has been tapped.
    Let me give a few examples of how this would work, which should also
show why it is necessary. Indeed, it may be constitutionally required.
If the government receives information that the target of the FISA
investigation is making phone calls from a particular bank of pay
phones in a train station, it may set up wiretaps at all the phones in
that bank, but may only listen in on a particular phone that the
subject is using. Before beginning the actual surveillance it must know
that the suspect is using a particular phone. Otherwise, on the basis
of a report that a terrorist has been using a particular bank of pay
phones, the private conversations of innumerable innocent Americans
with absolutely no connection to the investigation would be subject to
government scrutiny. That violates their Fourth Amendment rights.
Similarly, the Government should not be able to conduct surveillance on
all payphones in a neighborhood frequented by a suspected terrorist or
on a particular payphone all day long while innocent people use it.
    Another example. Suppose a target of a FISA investigation has the
practice of using a neighbor's or relative's phone. Under my amendment,
the Government would not be able to listen in on all calls from that
phone, but only those taking place when the target is in that person's
home. Likewise, if the government believes that the target uses
computers in a library, it can only monitor the one that the terrorist
is actually using, not all the computers in that facility even when the
terrorist is not there.
    I don't believe this amendment should affect the Government's
authorization to monitor a new cell phone obtained by the target. If
the phone is in the possession of the target or is registered to the
target, then the person implementing the surveillance has ascertained
that the facility is being used by the target. They could do it, and I
support that.
    Now, it has been pointed out to me that in 1999 this safeguard was
removed from Title III with respect to wiretaps but left in place with
respect to bugs. The change was made in the conference report of an
intelligence authorization bill, without consideration by the Senate
Judiciary Committee.
    I remind my colleagues again that my amendment was part of the roving
wiretap authority that Congress granted federal law enforcement in
criminal investigations in 1986. It contains a standard that as far as
we know served law enforcement adequately in conducting effective
surveillance on very sophisticated criminal organizations, including
the mafia and drug importation and distribution organizations. I submit
that if this standard is not sufficient, we would have seen an open
effort to change it, but we didn't. Even after the change made in 1999
without discussion or debate, the standard remains in effect for bugs
placed in homes or businesses. Without this protection, Section 206
threatens the rights of innocent people.
    If law enforcement has been significantly impaired in conducting
effective surveillance in criminal investigations under the roving
wiretap provision in current law, we should be shown specific evidence
of its shortcomings. But if it has not been impaired, then there is no
reason not to include a similar safeguard in the roving wiretap
authority under FISA.
    I urge my colleagues to take a close look at this amendment. It is
reasonable, it appropriately reflects current law, but it also allows
for updating to face the reality of new technology and all the
technologies that are implicated here. And it protects the
constitutional rights of people who are not the subjects of an
investigation.
    Mr. WELLSTONE. Will the Senator yield for a question?
    Mr. FEINGOLD. Yes.
    Mr. WELLSTONE. Again, I am not a lawyer. I do not think I understood
exactly all the argument you were making.
    Are you saying there has to be some standard of proof? That before
conducting surveillance, law enforcement has to make sure? In other
words, before you actually wiretap a phone or bug a house or a home,
the target of the surveillance has to be in that home you are bugging?
    Mr. FEINGOLD. No. Let's say somebody goes to their neighbor's house
to use their phone. They do that once or twice or whatever it might be.
Our amendment makes sure this new provision doesn't open up that house
and everybody in it and every phone call they have in the house to
unlimited Government surveillance. It requires what has been normally
required under the law, that the law enforcement people ascertain that
the person is in the house at the time so it is credible that they
would be using that phone again.
    Mr. WELLSTONE. In other words, other people who are in the house who
have nothing to do with the target of surveillance, their conversations
could be--
    Mr. FEINGOLD. Their conversations could and undoubtedly would be,
without some protection.
    Mr. WELLSTONE. And the same thing for the bugging?
    Mr. FEINGOLD. Exactly.
    Mr. WELLSTONE. So you are trying to minimize the misuse of authority.
It might be unintentional?
    Mr. FEINGOLD. Absolutely. There are standards, as I indicated in my
statement. There have been rules about how law enforcement has to
ascertain, whether it be at a phone bank or in somebody else's home,
that there is a reasonable belief that the individual is actually
there. Without that kind of rule, what we are doing is not just
extending this authority to the reality that people have cell phones
and move around and use different phones of their own, but it takes us
into an area that, frankly, prior to September 11 we would never have
dreamed of allowing.
    Mr. WELLSTONE. Madam President, if I could take 2 minutes --I ask the
Senator from Wisconsin, might I have 2 minutes?
    Mr. FEINGOLD. Yes. Madam President, I ask for the yeas and nays on
the amendment.
    The PRESIDING OFFICER. Is there a sufficient second? There appears to
be.
    The yeas and nays were ordered.
    Mr. FEINGOLD. I yield 2 minutes.
    Mr. WELLSTONE. My colleague is saying we have to be very careful
about not eavesdropping on the conversations of innocent individuals.
    Again, we all are painfully aware of September 11. I personally think
there is much in this bill that is good, that we need to do. But I
think all the Senator from Wisconsin is trying to do is achieve some
balance and make sure we do not go above and beyond going after
terrorists who are trying to kill Americans and instead end up
eavesdropping on innocent people in our country.
    I think the vast majority of the people in the country, if they
understood what this amendment was about, would support this amendment.
I do not think passing this amendment does
 
[[Page S10577]]
 
any damage whatsoever to much of what is in this bill, which is so
important.
    So, again, I hope Senators will support this amendment on the merits.
I think it is a very important amendment. I thank the Senator from
Wisconsin.
    Mr. FEINGOLD. I thank the Senator from Minnesota very much for his
help, and I reserve the remainder of my time.
    The PRESIDING OFFICER. Who yields time? The Senator from Utah.
    Mr. HATCH. Madam President, under current law, law enforcement has
so-called-roving or multi-point surveillance authority for criminal
investigations under title III, but FISA does not have comparable
provisions for agents investigating foreign intelligence. Roving
interceptions are tied to a named person rather than to any particular
communications facility or place. Today's bill adds this vital
authority to FISA.
    This authority is critical for tracking suspected spies and
terrorists who are experts in counter-surveillance methods such as
frequently changing locations and communications devices such as phones
and computer accounts.
    It simply makes no sense that our wire-tapping statute recognizes
this problem, and provides roving wiretap authority for surveillance of
common criminals, but makes no provision for roving authority to
monitor terrorists under the FISA statute.
    The proposed amendment would not succeed in its stated goal of
harmonizing the standard between title III wiretaps and FISA wiretaps.
The proposed amendment would put a requirement on the interception of
wire or electronic communications under a FISA warrant that does not
exist in the title III context--a requirement that the law enforcement
officer implementing the wiretapping order personally ascertain that
the target of the order is using a telephone or computer, before the
monitoring could begin.
    This requirement is operationally unworkable. The way that roving
orders are implemented, requires that law enforcement officers have the
ability to spot check several different telephones in order to
determine which one is being used by the target of the order. The
language proposed in this amendment does not give law enforcement
officers the ability to do so. In fact, they would be worse off under
this proposal than they are under current law.
    The goal of the roving wiretap provision is to give counter-terrorism
investigators as much authority to conduct wiretaps as their
counterparts have in conducting criminal investigations. This amendment
defeats that goal by putting new, significant obstacles in the path of
investigators attempting to investigate and prevent terrorist
activities.
    Mr. LEAHY. Madam President, Senator Feingold provided invaluable
assistance to the committee during our consideration of this
legislation. He also held a hearing in his Constitution Subcommittee
last week on the critical civil liberties issues raised by the
Administration's anti-terrorism bill. I fully appreciate the depth of
his concern and his desire to improve this bill.
    The Attorney General and I agreed in principal that the roving, or
multipoint, wiretap authority for criminal cases should be available
under FISA for foreign intelligence cases. The need for such authority
is especially acute to conduct surveillance of foreign spies trained in
the art of avoiding surveillance and detection.
    Senator Feingold's amendment simply assures that when roving
surveillance is conducted, the Government makes efforts to ascertain
that the target is actually at the place or using the phone, being
tapped. This is required in the criminal context. It is unfortunate
that the Administration did not accept this amendment.
    I hope all time could be yielded back on both sides.
    Mr. FEINGOLD. It is my understanding the opponents have yielded all
time.
    The PRESIDING OFFICER. The Senator is correct.
    Mr. LEAHY. If the Senator is going to yield his.
    Mr. FEINGOLD. I yield my time.
    The PRESIDING OFFICER. The majority leader.
    Mr. DASCHLE. Madam President, I will just use a minute of my leader
time to respond.
    I have already made my argument on the first amendment. I, in the
interest of time, am not going to repeat it. As I said before, I am
sympathetic to many of these ideas, but I am much more sympathetic to
arriving at a product that will bring us to a point where we can pass
something into law. The record reflects the compromises that have been
put in place, the very delicate balance that we have achieved. It is
too late to open up the amendment process in a way that might destroy
that delicate balance. For that reason, I move to table this amendment.
    I ask for the yeas and nays.
    The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
    The question is on agreeing to the motion. The clerk will call the
roll.
    The assistant legislative clerk called the roll.
    Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms), the Senator from South Carolina (Mr. Thurmond), and the Senator
from New Mexico (Mr. Domenici) are necessarily absent.
    I further announce that if present and voting the Senator from North
Carolina (Mr. Helms) would vote ``yea.''
    The result was announced--yeas 90, nays 7, as follows:
 
                        [Rollcall Vote No. 300 Leg.]
 
                                  YEAS--90
 
       Akaka
       Allard
       Allen
       Baucus
       Bayh
       Bennett
       Biden
       Bingaman
       Bond
       Boxer
       Breaux
       Brownback
       Bunning
       Burns
       Byrd
       Campbell
       Carnahan
       Carper
       Chafee
       Cleland
       Clinton
       Cochran
       Collins
       Conrad
       Craig
       Crapo
       Daschle
       Dayton
       DeWine
       Dodd
       Dorgan
       Durbin
       Edwards
       Ensign
       Enzi
       Feinstein
       Fitzgerald
       Frist
       Graham
       Gramm
       Grassley
       Gregg
       Hagel
       Harkin
       Hatch
       Hollings
       Hutchinson
       Hutchison
       Inhofe
       Inouye
       Jeffords
       Johnson
       Kennedy
       Kerry
       Kohl
       Kyl
       Landrieu
       Leahy
       Lieberman
       Lincoln
       Lott
       Lugar
       McCain
       McConnell
       Mikulski
       Miller
       Murkowski
       Murray
       Nelson (FL)
       Nelson (NE)
       Nickles
       Reed
       Reid
       Roberts
       Rockefeller
       Santorum
       Sarbanes
       Schumer
       Sessions
       Shelby
       Smith (NH)
       Smith (OR)
       Snowe
       Stabenow
       Stevens
       Thomas
       Torricelli
       Voinovich
       Warner
       Wyden
 
                                  NAYS--7
 
       Cantwell
       Corzine
       Feingold
       Levin
       Specter
       Thompson
       Wellstone
 
                               NOT VOTING--3
 
       Domenici
       Helms
       Thurmond
    The motion was agreed to.
    Mr. LEAHY. I move to reconsider the vote.
    Mr. HATCH. I move to lay that motion on the table.
    The motion to lay on the table was agreed to.
    The PRESIDING OFFICER. The Senator from Vermont.
    Mr. LEAHY. Madam President, I ask unanimous consent to have printed
in the Record a Statement of Administration Policy on the USA Act.
    There being no objection, the material was ordered to be printed in
the Record, as follows:
 
                     Statement of Administration Policy
 
      (This statement has been coordinated by OMB with the concerned
                                 agencies)
 
        S. 1510--Uniting and Strengthening America (USA) Act of 2001
 
         The Administration commends the Senate leadership and the
       Chairman and Ranking Member of the Senate Judiciary Committee
       on reaching agreement on S. 1510. This bill contains, in some
       form, virtually all of the proposals made by the
       Administration in the wake of the terrorist attacks
       perpetrated against the United States on September 11th. The
       Administration strongly supports passage of this bill.
         The Administration's initial proposals, on which S. 1510 is
       based, were designed to provide Federal law enforcement and
       national security officials with the tools and resources
       necessary to disrupt, weaken, and counter the infrastructure
       of terrorist organizations, to prevent terrorist attacks, and
       to punish and defeat terrorists and those who harbor them. S.
       1510 includes the provisions proposed by the Administration
       in three main areas: (1) information gathering and sharing;
       (2) substantive criminal law and criminal procedure; and (3)
       immigration procedures. The Administration strongly supports
       passage of these provisions. The Administration also supports
       valuable provisions, introduced by the Chairman of the
 
[[Page S10578]]
 
       Senate Judiciary Committee, aimed at improving the Nation's
       border protection.
       Information Gathering and Sharing
         Existing laws fail to provide national security authorities
       and law enforcement authorities with certain critical tools
       they need to fight and win the war against terrorism. For
       example, technology has dramatically outpaced the Nation's
       statutes. Many of the most important intelligence gathering
       laws were enacted decades ago, in and for an era of rotary
       telephones. Meanwhile, the Nation's enemies use e-mail, the
       Internet, mobile communications and voice mail.
         S. 1510 contains numerous provisions that address this
       problem by helping to make the intelligence gathering and
       surveillance statutes more ``technology-neutral.''
       Specifically, the bill updates the pen-register, trap-and-
       trace, and Title III-wiretap statutes to cover computer and
       mobile communications more effectively, while ensuring that
       the scope of the authority remains the same.
         The bill also provides for nationwide scope of orders and
       search warrants, and other practical changes that will enable
       law enforcement to work more efficiently and effectively. In
       addition, the bill contains important updates of foreign
       intelligence gathering-statutes, with the identical goal of
       making the statutes technology-neutral. Even more important,
       the bill contains provisions to reduce existing barriers to
       the sharing of information among Federal agencies where
       necessary to identify and respond to terrorist threats. The
       ability of law enforcement and national security personnel to
       share this type of information is a critical tool for
       pursuing the war against terrorism on all fronts.
       Substantive Criminal Law and Criminal Procedure
         S. 1510 contains important reforms to the criminal statutes
       designed to strengthen law enforcement's ability to
       investigate, prosecute, prevent, and punish terrorism crimes.
       The bill would remove existing barriers to effective
       prosecution by extending the statute of limitations for
       terrorist crimes that risk or result in death or serious
       injury. The bill also creates and strengthens criminal
       statutes, including a prohibition on harboring terrorists and
       on providing material support to terrorists, and provides for
       tougher penalties, including longer prison terms and higher
       conspiracy penalties for those who commit terrorist acts.
       These provisions will help to ensure that the fight against
       terrorism is a national priority in our criminal justice
       system.
       Border Protection and Immigration Procedures
         S. 1510 also contains a number of provisions that would
       enhance the ability of immigration officials to exclude or
       deport aliens who engage in terrorist activity and improve
       the Federal government's ability to share information about
       suspected terrorists. Under the bill, those who contribute to
       or otherwise support terrorist organizations and terrorist
       activities would be denied admission to or deported from this
       country, and the Attorney General would be authorized to
       detain deportable persons who are suspected of terrorist
       activities pending their removal from the United States. In
       addition, the bill provides for access by the Department of
       State and the Immigration and Naturalization Service to
       criminal history records and related information maintained
       by the Federal Bureau of Investigation.
       Money Laundering
         Title III of S. 1510 includes money laundering and other
       financial infrastructure provisions, arising from a separate
       legislative proposal from the Administration. These
       provisions were added to this bill after unanimous approval
       was reached on these provisions in the Senate Banking
       Committee. The Administration supports the effort to
       strengthen the money laundering statutes to help combat
       terrorism, and supports virtually all of the proposals that
       are now included in S. 1510.
       Pay-As-You-Go Scoring
         Any law that would increase direct spending is subject to
       the pay-as-you-go requirements of the Balanced Budget and
       Emergency Deficit Control Act. Accordingly, S. 1510, or any
       substitute amendment in lieu thereof that would also increase
       direct spending, will be subject to the pay-as-you-go
       requirement. OMB's scoring estimates are under development.
       The Administration will work with Congress to ensure that any
       unintended sequester of spending does not occur under current
       law or the enactment of any other proposals that meet the
       President's objectives to reduce the debt, fund priority
       initiatives, and grant tax relief to all income tax paying
       Americans.
 
    The PRESIDING OFFICER. The Senator from Vermont.
    Mr. LEAHY. Madam President, I know the Senator from Wisconsin has
another amendment. I have had requests for time on our side of the
aisle from the distinguished Senator from Washington State, Ms.
Cantwell, for 7 minutes; the distinguished Senator from Massachusetts,
Mr. Kerry, for 5 minutes; the distinguished Senator from Minnesota, Mr.
Wellstone, for 5 minutes; the distinguished Senator from Michigan, Mr.
Levin, for 2 minutes.
    I mention that, not to lock that in, because the time is there, but
just to give people an idea of where we are.
    The PRESIDING OFFICER. The Senator from Wisconsin.
    Mr. FEINGOLD. Madam President, is the Senator from Vermont proposing
a time agreement?
    Mr. LEAHY. No. I am just saying what people are requesting for time.
I am trying to get some idea. A number of Senators have asked the
distinguished leader and myself how much longer we are going to be here
tonight.
    The PRESIDING OFFICER. The majority leader.
    Mr. DASCHLE. Madam President, let me just say, anybody who wishes to
speak on this bill is certainly welcome to do so, but we will be here
after the vote for anybody who wishes to accommodate any other Senator
who would like to go home.
    The hour is late. We have one more amendment, and then we have final
passage. It is my hope that we can complete our work on the bill and
certainly leave open the opportunity for Senators to express
themselves. We will stay just as long as that is required. I hope,
though, we can accommodate other Senators who may not feel the need to
participate in further debate.
    I yield the floor.
    The PRESIDING OFFICER. The Senator from Pennsylvania.
    Mr. SPECTER. Madam President, I had spoken earlier this evening at
some length about my concerns as to the procedures on the bill. I want
to make a very few brief comments at this time.
    I am concerned about the procedures on establishing a record which
will withstand constitutional scrutiny. I shall not repeat the
citations from decisions of the Supreme Court of the United States
which I cited earlier, except to say that the Supreme Court has
invalidated acts of Congress where there is not a considered judgment.
    I understand the position of the majority leader in wanting to get
this bill finished. Earlier this evening, I went through an elaborate
chronology as to what has happened here. Nine days after September 11,
the Attorney General submitted a bill. I had suggested hearings that
week. The bill was submitted on September 20. We could have had
hearings on September 21 and even on September 22, a Saturday. The
Judiciary Committee had one hearing, a very brief one, on September 25.
    I wrote the chairman of the committee two letters urging hearings,
and there was ample time to have hearings to find out about the details
of this bill. There was a Judiciary subcommittee hearing on October 3.
    This bill was negotiated between the chairman and ranking member and
the White House. The Judiciary Committee did not take up the bill. We
have had ample time. This bill should have been before the Senate 2
weeks ago. If we had moved on it promptly after it was submitted on the
20th, we could have had hearings, perhaps some in closed session. We
could have had a markup. We could have had an understanding of the
bill.
    When the Senator from Wisconsin has offered two amendments, which I
have supported, I am inquiring as to what is the specific concern about
law enforcement to preclude the adoption of the amendments of the
Senator from Wisconsin and on the possible invasions of privacy that
may result from the amendments not being adopted.
    This is a very important bill. I intend to vote for it. I served 8
years on the Intelligence Committee, 2 years as chairman. I chaired the
Subcommittee of Judiciary on Terrorism. I have been through detailed
hearings and understand the problem we face, especially in light of the
warning which was put out today, and I understand, with the approval of
the President, that a terrorist act may happen in the United States or
overseas in the next several days.
    We do need adequate law enforcement powers. We should have finished
this bill some time ago. But when the majority leader says he is
concerned about procedure and not about substance, we are regrettably
establishing a record where we have not only not shown the deliberative
process to uphold constitutionality, but we are putting on the record a
disregard for constitutionality and elevating procedure over substance,
which is not the way you legislate in a constitutional area
 
[[Page S10579]]
 
where the Supreme Court of the United States balances law enforcement's
needs with the incursion on privacy.
    I feel constrained to make these comments. I hope yet that we can
create a record which will withstand constitutional scrutiny.
    Again, I intend to vote for the bill, but say again that this body
ought to be proceeding in a way to establish the record. The worst
thing that would happen is if we try terrorists, having used these
procedures, and have the convictions invalidated. I have had
experiences as a prosecuting attorney and know exactly what that means.
    I want my concerns noted for the record. I thank the Chair and yield
the floor.
    The PRESIDING OFFICER. The Senator from Massachusetts.
    Mr. KERRY. Madam President, I have 5 minutes, but I will not use it.
I want to make two very quick points.
    One, as a former prosecutor, I am sympathetic to the comments of the
Senator from Pennsylvania. I think all of us ought to be respectful of
what the Senator from Wisconsin has been talking about this evening.
    I will vote for the bill. I am particularly sensitive to what the
majority leader has said about the delicacy and the balance. Even
within that delicacy, there are some very legitimate concerns.
    It is my hope that when this goes to conference, some of the
positions of the House will be thought about carefully and respected
and that the Senate may even be able to improve what we have by taking
those into account.
    The second point is that there is within this legislation for the
first time a very significant effort on money laundering. I will say to
my colleagues that of all the weapons in this war and for all of our
might militarily, the most significant efforts to ferret out and stop
terrorists are going to come from the combination of information,
intelligence that we gather and process, and from our ability to take
unconventional steps, particularly those such as the money-laundering
measures.
    Senator Levin has done an outstanding job of helping to frame that,
as has Senator Sarbanes. The truth is, there are banking interests that
even to this moment still resist living up to the standards of the
Basel convention and the international standards about knowing your
customer and being part of the law enforcement effort rather than a
blockade to it.
    We are told there may be some effort through the House to try to
strip this out. It is my hope that the Senate will stand firm and hold
to the full measure of what President Bush has asked us to do.
    This will be a long effort, a painstaking effort. If we are serious
about it, we have to have the law enforcement tools to make this
happen.
    One of the most critical ones is empowering the Secretary of the
Treasury to do a reasonable, ratcheted, sort of geared process of
addressing the concerns of ferreting out money laundering and taking
the money away from these illicit interests around the globe. They are
not just in terrorism. They are linked to money laundering, to illegal
alien trafficking. They are all part of the same network which also
funds the terrorists themselves.
    We recognize that three-quarters of the heroin that reaches the
United States comes from Afghanistan. The Taliban and al-Qaida were
both trafficking in that heroin. These networks and the
interconnectedness of them to the banking institutions, the financial
marketplace, are absolutely essential for us as we fight a war on
terrorism.
    I hope this money-laundering component will be part of the final
terrorism bill.
    I yield whatever remaining time I have.
    The PRESIDING OFFICER. The Senator from Michigan.
    Mr. LEVIN. Madam President, I thank Chairman Leahy, Chairman
Sarbanes, and members of their committees, for including our very
strong anti-money-laundering provisions in the antiterrorism bill. The
antiterrorism bill is simply incomplete unless it has anti-money-
laundering provisions. Our provisions are strong provisions. They will
help prevent terrorists and other criminals from using our banks to get
their money into this country to fund their activities which are
terrorizing this country.
    There apparently is going to be a continuing effort in the House of
Representatives to strip the anti-money-laundering provisions, which we
have worked so hard on, from the antiterrorism bill. It is my
understanding the White House will support keeping those provisions in
the bill. Our committees have worked very hard to keep our anti-money-
laundering provisions in the antiterrorism bill. Unless these
provisions are in there, we are providing the executive branch with
only half a tool box in the fight against terrorism.
    Three years ago, the minority staff of the Permanent Subcommittee on
Investigations which I now chair, began its investigation into money
laundering using U.S. banks. Three years, three sets of hearings, two
reports and a five-volume record on correspondent banking and money
laundering was the result.
    We found, not surprisingly, that U.S. banks have accounts for foreign
banks and that the customers of those foreign banks can then use the
U.S. banks to move their money. But if foreign banks do a poor job of
screening their customers, criminals and terrorists can end up using
U.S. banks for their criminal purposes.
    We found that U.S. banks do a poor job in screening the foreign banks
they accept as correspondent customers. Banks told us ``a bank is a
bank is a bank'' but that's not true. There are good banks and bad
banks. We found numerous banks where the bank was engaged in criminal
activity or had such poor banking practices any criminal could be a
customer. If a bad bank has a correspondent account with a U.S. bank,
customers of that bad bank have access to U.S. financial system. Then
criminals, including drug traffickers and terrorists, are able to use
our financial systems to carry out their crimes.
    In response to what we learned, we developed a bill--S. 1371, the
Money Laundering Abatement Act introduced in early August.
    It's a bipartisan bill, and I would like to recognize my cosponsors--
in particular, Senator Chuck Grassley who has helped to lead the fight
for including this money laundering legislation on this anti-terrorism
bill. The cosponsors in addition to Senator Grassley are: Senators
Sarbanes, Kyl, DeWine, Bill Nelson, Durbin, Kerry and Stabenow. The
provisions of this bill have been included in the legislation we are
now considering.
    We now know that the September 11 terrorists used our financial
institutions and systems to help accomplish their ends. They used
checks, credit cards, and wire transfers involving U.S. banks in
Florida, New York, Pennsylvania. We've seen the photos of two of the
terrorists using an ATM machine. Osama bin Laden has bragged about it.
There are reports of large, unpaid credit card bills.
    We know that current law is not tough enough in area of correspondent
banking--the mechanism used to transfer money around the globe. There
are too many holes that let in bad banks and bad actors, and we need to
close them.
    Look at what we've learned just in the last few days about bin Laden
and al-Qaida. Several U.S. banks have had correspondent accounts for a
Sundanese bank called the al Shamal Islamic Bank.
    A 1996 State Department fact sheet states that bin Laden helped
finance the bank in the amount of $50 million. A respected
international newsletter on intelligence matters, Indigo Publications
in March 16, 2000, said bin Laden remains a leading shareholder,
although the al Shamal Bank apparently denies that.
    Testimony in the February 2001 criminal trial of the 1998 terrorist
bombings of U.S. embassies in Kenya and Tanzania, revealed that a bin
Laden associate who handled financial transactions for al-Qaida
testified al-Qaida had a half dozen accounts at al Shamal bank, one
of which was in bin Laden's name. The witness at that trial said in
1994 a bin Laden associate took $100,000--in cash, U.S. Dollars--out of
the Shamal Bank gave it to the witness and told him to deliver it to an
individual in Jordan, which he did.
 
    Another bin Ladin associate testified at the same trial that he
received $250,000 by a wire transfer from the
 
[[Page S10580]]
 
Shamal Bank to his account in a U.S. bank in Arlington, Texas, to
purchase a plane in the United States for bin Laden. He said he
personally delivered the plane to bin Laden.
    Why did this bank have a correspondent account with a U.S. bank? Why
should we allow that to happen?
    Even today, when you look at the al Shamal bank website, the bank is
still active and advertises an extensive correspondent bank network.
Three U.S. banks are listed. One of those banks has closed its account,
but the two other banks continue to have accounts, although the
accounts are frozen. Those accounts are now inactive because Sudan,
home country of al Shamal, is on the list of terrorist countries and
any business with the government of those countries has to be approved.
But the accounts were operational at one point in time. Moreover, al
Shamal bank has correspondent accounts with other foreign banks which
have accounts with U.S. banks.
    That means al Shamal bank can still be using the U.S. financial
system through an account with a foreign bank that has a correspondent
account with a U.S. bank. We call this nesting and it's a serious
problem. It means the al Shamal bank and its customers can still use
the U.S. banking system.
    The bill before us would require U.S. banks to do a lot more homework
on the banks they allow to have correspondent accounts. Under the anti-
terrorism bill, it is my belief and my hope that a bank like al Shamal
would never be granted a correspondent account at a U.S. bank.
    The bill would also allow U.S. law enforcement to capture any illicit
funds in a U.S. correspondent account. Now, if a criminal or terrorist
has money in a foreign bank that has an account at U.S. bank and
illicit money is being held in a U.S. account, law enforcement can't
freeze that money unless the person is on the terrorist list or can
prove that the foreign bank with the correspondent account is part of a
criminal or terrorist act. That's an excessively hard threshold. This
legislation would allow law enforcement to freeze money in
correspondent accounts to the same extent they can freeze money in
regular, individual accounts.
    We need all the tools possible in our arsenal to fight the financial
network of terrorism. The money laundering provisions in this bill
close the loopholes in existing law and provide additional tools for
law enforcement to use.
    I thank Chairman Sarbanes and the other members of the Banking
Committee for including so much of the Levin-Grassley anti-money
laundering bill, S. 1371, in the Committee's bill. I also thank
Chairman Leahy and the other Judiciary Committee members for including
anti-money laundering provisions in title 3 of S. 1510, the anti-
terrorism bill. Strengthening our anti-money laundering laws will
strike a blow against terrorism by making it harder for terrorists to
get the funds they need into United States; an anti-terrorism bill
without these anti-money laundering provisions would be providing U.S.
law enforcement with only half a toolbox against terrorism.
    I would like to take a few minutes to discuss a few key provisions
from the Levin-Grassley bill that have been incorporated into S. 1510.
These provisions are based on an extensive record of hearings and
reports issued in connection with investigations conducted over the
past few years by the Permanent Subcommittee on Investigations, which I
chair, into money laundering in the correspondent and private banking
fields.
 
    The four provisions I want to focus on are provisions that would ban
foreign shell banks from the U.S. financial system; require U.S.
financial institutions to exercise due diligence; add foreign
corruption offenses to the crimes that can trigger a U.S. money
laundering prosecution; and close a major forfeiture loophole involving
foreign banks.
    First is the shell bank ban in Section 313 of S. 1510. This provision
is a very important one, because it attempts to eliminate from the U.S.
financial system one category of foreign banks that carry the highest
money laundering risks in the banking world today. Those are foreign
offshore shell banks which, as defined in the bill, are banks that have
no physical presence anywhere and no affiliation with any bank that has
a physical presence. Our Subcommittee investigation found that these
shell banks carry the highest money laundering risks in the banking
world, because they are inherently unavailable for effective oversight.
There is no office where a bank regulator or law enforcement official
can go to observe bank operations, review documents, talk to bank
officials, or freeze funds. Only a few countries now issue licenses for
unaffiliated shall banks; they include Nauru, Vanuatu, and Montenegro.
Nauru alone is believed to maintain licenses for somewhere between 400
and 3,000 offshore shell banks, none of which are being actively
supervised, and some of which are suspected of laundering funds for
Russian organized crime. A staff report that we issued in February of
this year includes four detailed case histories of offshore shell banks
that were able to open correspondent accounts at U.S. banks and used
them to move funds related to drug trafficking, bribe money and
financial fraud money. The possibility that terrorists are also using
shell banks to conduct their operations is real and cannot be ignored.
That is why this provision seeks to exclude shell banks from the U.S.
financial system.
    The provision flat-out prohibits U.S. financial institutions from
opening accounts for shell banks. Period. It also requires U.S.
financial institutions to take reasonable steps to make sure that other
foreign banks are not allowing shell banks to use their U.S. accounts
to gain entry to the U.S. financial system. The point is to prevent
shell banks from getting direct or indirect access to U.S. financial
accounts. The shell bank ban applies to both banks and securities firms
operating in the United States, so that it is as broad and as effective
as possible.
    The provision directs the Treasury Secretary to provide regulatory
guidance to U.S. financial institutions on the reasonable steps they
have to take to guard against shell banks using accounts opened for
other foreign banks. One possible approach would be for U.S. financial
institutions to include a new section in the standard language they use
to open accounts for foreign banks asking the foreign bank to certify
that it will not allow any shell bank to use its U.S. accounts. The
U.S. financial institution could then rely on that certification,
unless it encountered evidence to the contrary indicating that a shell
bank was actually using the account, in which case the financial
institution would have to take reasonable steps to evaluate that
evidence and determine whether a shell bank was, in fact, using the
U.S. account.
    The provision contains one exception to the shell bank ban, which
should be narrowly construed to protect the U.S. financial system to
the greatest extent possible. This exception allows U.S. financial
institutions to open an account for a shell bank that is both
affiliated with another bank that maintains a physical presence, and
subject to supervision by the banking regulatory of that affiliated
bank. This exception is intended to allow U.S. financial institutions
to do business with shell branches of large, established banks on the
ground that the regulator of the established bank can and does oversee
all of that bank's branches, including any shell branch.
 
    This exception could, of course, be abused. It is possible that an
established bank in a jurisdiction with weak banking and anti-money
laundering controls could open a shell branch in another country with
equally weak controls and try to use that shell branch to launder funds
in ways that are unlikely to be detected or stopped by the bank
regulator in its home jurisdiction. In that case, while the shell bank
ban exception would not flat-out bar U.S. financial institutions from
opening an account for the shell branch, another provision would come
into play and require the U.S. financial institution to exercise
enhanced due diligence before opening an account for this shell bank. I
would hope that U.S. financial institutions would not open such an
account--that they would exercise common sense and restraint and
refrain from doing business with a shell operation that is affiliated
with a poorly regulated bank and inherently resistant to effective
oversight.
    Many U.S. financial institutions already have a policy against doing
business with shell banks, but at least one
 
[[Page S10581]]
 
major U.S. bank, Citibank, has a history of taking on shell banks as
clients. In order to keep those clients, Citibank tried very hard to
expand the exception in this section to also allow U.S. accounts for
shell banks affiliated with financial service companies other than
banks, such as securities firms or financial holding companies. The
broad exception was firmly and explicitly rejected by both the Senate
Banking Committee and the House Financial Services Committee, because
it would have opened a gaping loophole in the shell bank ban and
rendered the ban largely ineffective. All a shell bank would have had
to do to evade the ban was establish an affiliated shell corporation
and call it a financial services company in order to be eligible to
open a U.S. bank account. The Citibank approach would, for example,
have allowed a shell bank established by bin Laden's financial holding
company, Taba Investments, to open accounts at U.S. banks and
securities firms. That would perpetuate the very problem that the
Senate investigation identified in two of its shell bank case histories
involving M.A. Bank and Federal Bank, each of which opened Citibank
accounts in New York and used those accounts to deposit suspect funds
associated with drug trafficking and bribery.
    The exception to the shell bank ban is intended to be narrowly
construed, and U.S. financial institutions will hopefully use great
restraint in doing business with any shell bank that is not affiliated
with a well known, well regulated bank. The shell bank ban is intended
to close the U.S. financial marketplace to the money laundering risks
posed by these banks, and it is my hope that other countries and the
Financial Action Task Force on Money Laundering will follow the U.S.
lead and take the same action in other jurisdictions.
    The next provision is the due diligence requirement in Section 312 of
S. 1510. This is another critical provision that tightens up U.S. anti-
money laundering controls by requiring U.S. financial institutions to
exercise due diligence when opening and managing correspondent and
private banking accounts for foreign banks and wealthy foreign
individuals.
 
    The provision targets correspondent and private banking accounts,
because these two areas have been identified by U.S. bank regulators as
high risk areas for money laundering, and because Congressional
investigations have documented money laundering abuses through them.
For example, two weeks ago, I testified before the Banking Committee
about a high risk foreign bank in Sudan that was able to open accounts
at major banks around the world, including in the United States and, in
1994, used these accounts to funnel money to a bin Laden operative then
living in Texas. On one occasion, he used a $250,000 wire transfer from
the Sudanese bank to buy an airplane capable of transporting Stinger
missiles, fly it to Sudan and deliver the keys to bin Laden. Six months
earlier, we released a staff report with ten case histories of high
risk foreign banks that used their U.S. accounts to transfer illicit
proceeds associated with drug trafficking, financial fraud and other
crimes. A year earlier, another staff report presented four case
histories of senior foreign government officials or their relatives
opening U.S. private banking accounts and using them to deposit
millions of dollars in suspect funds. The bottom line is that U.S.
banks need to do a much better job in screening the foreign banks and
wealthy foreign individuals they allow to open accounts in the United
States.
    The due diligence provision would address that problem. It would
impose an ongoing, industry-wide legal obligation on all types of
financial institutions operating in the United States to exercise
greater care when opening accounts for foreign banks and wealthy
foreign individuals. Its due diligence requirements are intended to
function as preventative measures to stop dubious banks and as well as
terrorists or other criminals from using foreign banks' U.S. accounts
to gain access to the U.S. financial system.
    The general obligation to exercise due diligence with respect to all
correspondent and private banking accounts is contained in paragraph
(1). Paragraphs (2) and (3) then provide minimum standards for the
enhanced due diligence that U.S. banks must exercise with respect to
certain correspondent and private banking accounts. Paragraph (4)(B)
gives the Treasury Secretary discretionary authority to issue
regulatory guidance to further clarify the due diligence policies,
procedures and controls required by paragraph (1).
    The regulatory authority granted in this section is intended to help
financial institutions understand what is expected of them. The
Secretary may want to issue regulations that help different types of
financial institutions to understand their obligations under the due
diligence provision. However, one caveat needs to be made with respect
to the Secretary's exercise of this regulatory authority, and that
involves how it is to be coordinated with Section 5318(a)(6), which
authorizes the Secretary to grant ``appropriate exemptions'' from any
particular money laundering requirement. There are going to be many
efforts made by various groups of financial institutions to win an
exemption from the due diligence requirements in this section--from
insurance companies, to money transmitters, to offshore affiliates of
large foreign banks. But the Committee's and the Senate's clear
intention is to cover all major financial institutions operating in the
United States. That is why Chairman Sarbanes changed the language in my
bill, S. 1371, so that the due diligence requirement did not apply just
to banks, but to all financial institutions as that term is defined in
Section 5312(a)(2) of title 31. That broad coverage is exactly what is
contemplated by this statute. The bottom line, then, is that the
Secretary is intended to apply the due diligence requirements broadly
to U.S. financial institutions, and not to grant an exemption without a
very compelling justification.
 
    This same reasoning also applies to the shell bank ban. There will be
some that will seek one exemption or another from the ban, asking the
Treasury Secretary to use the authority available under Section
5318(a)(6). Again, the intent of the Committee and this Senate is to
enact as comprehensive a shell bank ban as possible to protect the
United States from the money laundering threat posed by shell banks.
That means that the Secretary should refrain from granting any
exemption to the shell bank ban without a very compelling
justification.
    The third provision I want to discuss is the provision in Section 315
adding new foreign corruption offenses to the list of crimes that can
trigger a U.S. money laundering prosecution. This is another important
advance in U.S. anti-money laundering law. Right now, because foreign
corruption offenses are not currently on the list of crimes that can
trigger a U.S. money laundering prosecution, corrupt foreign leaders
may be targeting U.S. financial institutions as a safe haven for their
funds. This provision will make it clear to those who loot their
countries, or accept bribes, or steal from their people, that their
illicit money is not welcome here. Our banks do not want that money,
and if it is deposited in U.S. banks, it is subject to seizure and the
depositor may become subject to a money laundering prosecution.
    The fourth provision would close a major forfeiture loophole in U.S.
law involving foreign banks. This provision is in Section 319(a) of S.
1510. It would make a depositor's funds in a foreign bank's U.S.
correspondent account subject to the same civil forfeiture rules that
apply to depositors funds in other U.S. bank accounts. Right now, due
to a quirk in the law, U.S. law enforcement faces a significant and
unusual legal barrier to seizing funds from a correspondent account.
Unlike a regular U.S. bank account, it is not enough for U.S. law
enforcement to show that criminal proceeds were deposited into the
correspondent account; instead, because funds in a correspondent
account are considered to be the funds of the foreign bank itself, the
government must also show that the foreign bank was somehow part of the
wrongdoing.
    That's not only a tough job, that can be an impossible job. In many
cases, the foreign bank will not have been part of the wrongdoing, but
that's a strange reason for letting the foreign depositor who was
engaged in a wrongdoing escape forfeiture. And in those cases where the
foreign bank may have
 
[[Page S10582]]
 
been involved, no prosecutor will be able to allege it in a complaint
without first getting the resources needed to chase the foreign bank
abroad.
    Take, for example, the case of Barclays Bank which has frozen an
account because of suspicious activity suggesting it may be associated
with terrorism. If that account had been a correspondent account in the
United States opened for Barclays Bank, U.S. law enforcement could have
been unable to freeze the particular deposits suspected of being
associated with terrorism, because the funds were in the Barclays
correspondent account and Barclays itself was apparently unaware of any
wrongdoing. That doesn't make sense. U.S. law enforcement should be
able to freeze the funds.
 
    Section 319(a) would eliminate that quirk by placing civil
forfeitures of funds in correspondent accounts on the same footing as
forfeitures of funds in all other U.S. accounts. There is just no
reason foreign banks should be shielded from forfeitures when U.S.
banks would not be.
    Section 319 has many other important provisions as well, including
provisions dealing with Federal Receivers, legal service on foreign
banks and more.
    I want to again thank Senator Sarbanes and Senator Leahy and their
staffs for their hard work and cooperative spirit in bringing this bill
to the floor and including the provisions of our bill in it.
    I need to add that the hard work in passing this bill will be for
naught if some of the banks have their way in the House and in
Conference Committee. I'm very concerned with reports that there is an
effort in the House to separate the money laundering and anti-terrorism
bills, so money laundering will be considered separately. The banks
should be working with us to figure out even more ways in which the
money flow of terrorists can be shut down.
    Madam President, I ask unanimous consent to print letters of support
for this legislation and testimony from the FBI in the Record.
    There being no objection, the material was ordered to be printed in
the Record, as follows:
 
Statement of Dennis M. Lormel, Chief, Financial Crimes Section, Federal
     Bureau of Investigation, Before the House Committee on Financial
                 Services, Washington, DC, October 3, 2001
 
         Correspondent banking is another potential vulnerability in
       the financial services sector that can offer terrorist
       organizations a gateway into U.S. banks just as it does for
       money launderers. As this Committee well knows, the problem
       stems from the relationships many U.S. Banks have with high
       risk foreign banks. These foreign banks may be shell banks
       with no physical presence in any country, offshore banks with
       licenses limited to transacting business with persons outside
       the licensing jurisdiction, or banks licensed and regulated
       by jurisdictions with weak regulatory controls that invite
       banking abuses and criminal misconduct. Attempts to trace
       funds through these banks are met with overwhelming
       obstacles. The problem is exacerbated by the fact that once a
       correspondent account is opened in a U.S. Bank, not only the
       foreign bank but its clients can transact business through
       the U.S. bank. As Congress has noted in the past, requiring
       U.S. banks to more thoroughly screen and monitor foreign
       banks as clients could help prevent much of the abuse in
       correspondent bank relationships.
                                    ____
 
                                         U.S. Department of Justice,
 
                                  Office of Legislative Affairs,
 
                                 Washington, DC, September 18, 2001.
       Hon. Carl Levin,
       Chairman, Permanent Subcommittee on Investigations, Committee
           on Governmental Affairs, U.S. Senate, Washington, DC.
       Hon. Charles Grassley,
       Co-Chairman, Senate Drug Caucus, U.S. Senate, Washington, DC.
         Dear Mr. Chairman and Mr. Co-Chairman: We are writing in
       response to your recent letter to Attorney General Ashcroft
       concerning S. 1371, the Money Laundering Abatement Act. We
       appreciate your continued commitment to addressing the
       serious problem of money laundering in this country and
       abroad, as demonstrated by your introduction of S. 1371. As
       you indicated in your letter, the Attorney General has
       expressed the need to strengthen our money laundering laws.
       In his August 7th speech, the Attorney General stated: ``The
       Department of Justice has identified several areas in which
       our money laundering laws need to be updated to more
       effectively combat organized crime and to better serve the
       cause of justice.''
         We were very pleased to see that one of the areas
       highlighted in the Attorney General's speech--the need to add
       to the list of foreign offenses that constitute predicate
       crimes for money laundering prosecutions--is included in S.
       1371. This and other provisions in your bill would greatly
       improve our money laundering laws.
         As the Attorney General also indicated in his speech, the
       Department of Justice has been developing its own proposal to
       update our money laundering laws and we hope to provide
       Congress with our own recommendations in the near future. We
       look forward to working with you in pursuing our mutual goal
       of strengthening and modernizing our money laundering laws to
       meet the challenges of this new century.
         Thank you for your attention to this matter. If we may be
       of additional assistance, we trust that you will not hesitate
       to call upon us. The Office of Management and Budget has
       advised that there is no objection from the standpoint of the
       Administration's program to the presentation of this report.
             Sincerely,
                                                   Daniel J. Bryant,
       Assistant Attorney General.
                                    ____
 
                                         U.S. Department of Justice,
 
                                Drug Enforcement Administration,
 
                                 Washington, DC, September 20, 2001.
       Hon. Carl Levin,
       Chairman, Permanent Subcommittee on Investigations, Committee
           on Governmental Affairs, U.S. Senate, Washington, DC.
         Dear Mr. Chairman: Thank you for requesting our views on S.
       1371, the ``Money Laundering Abatement Act,'' which is
       designed to combat money laundering and protect the United
       States financial system by strengthening safeguards in
       private and correspondent banking.
         We greatly appreciate your initiative in this important
       area and believe that several provisions of S. 1371 would be
       of particular benefit to DEA's efforts to combat money
       laundering. In addition, as Assistant Attorney General Bryant
       recently indicated in his letter to you, the Administration
       has been working for some time on a package of additional
       suggested money laundering amendments, which we hope to be
       able to share with you shortly.
         We look forward to working with you to strengthen and
       improve the Nation's money laundering laws. If I can be of
       any further assistance, please do not hesitate to contact me.
       The Office of Management and Budget has advised that there is
       no objection to the presentation of this report from the
       standpoint of the Administration's program.
             Sincerely,
                                                     Asa Hutchinson,
       Administrator.
                                    ____
 
                                                     Federal Deposit
 
                                          Insurance Corporation,
 
                                  Washington, DC, September 7, 2001.
       Hon. Carl Levin,
       Chairman, Permanent Subcommittee on Investigations, U.S.
           Senate, Washington, DC.
         Dear Mr. Chairman: Thank you for the opportunity to comment
       on S. 1371, the Money Laundering Abatement Act. The Federal
       Deposit Insurance Corporation shares your concern about the
       damage to the U.S. financial system that may result from
       money laundering activities and we congratulate you for your
       leadership in this area.
         As deposit insurer, the FDIC is vitally interested in
       preventing insured depository institutions from being used as
       conduits for funds derived from illegal activity. As you may
       know, in January of this year, the FDIC, together with the
       Department of the Treasury, the Board of Governors of the
       Federal Reserve System, the Office of the Comptroller of the
       Currency, the Office of Thrift Supervision, and the
       Department of State, issued Guidance On Enhanced Scrutiny For
       Transactions That May Involve The Proceeds Of Official
       Corruption. The FDIC is also an active participant in other
       working groups that seek more effective ways to combat money
       laundering.
         S. 1371 is an important step in trying to preclude foreign
       entities from laundering money through U.S. financial
       institutions. S. 1371 would, in several ways, require U.S.
       financial institutions to identify foreign parties who open
       or maintain accounts with U.S. banks, such as through
       correspondent accounts or private banking accounts. The bill
       would also prohibit customers from having direct access to
       concentration accounts, and make it a crime to falsify the
       identity of a participant in a transaction with or through
       U.S. financial institutions. Correspondent and concentration
       accounts have the potential to be misused so as to facilitate
       money laundering, and the bill appropriately addresses these
       concerns.
         One point we would like to raise is in relation to Section
       3 of the bill. Section 3 provides for consultation between
       the Board of Governors of the Federal Reserve System and the
       Secretary of the Treasury, both in regard to devising
       measures to combat money laundering and defining terms
       relating to anti-money laundering measures. The FDIC believes
       that such consultation requirements should include the FDIC
       as well as the other Federal banking agencies.
         Thank you again for the opportunity to provide our views on
       S. 1371. Please do not hesitate to contact Alice Goodman,
       Director of our Office of Legislative Affairs, at (202) 898-
       8730 if we can be of any further assistance.
             Sincerely,
                                                   Donald E. Powell,
                                                           Chairman.
 
[[Page S10583]]
 
 
                                    ____
                                                  State of Michigan,
 
                                 Department of Attorney General,
 
                                     Lansing MI, September 25, 2001.
       Hon: Carl Levin,
       U.S. Senator, Russell Senate Office Bldg.,
       Washington, DC.
       Hon. Chuck Grassley,
       U.S. Senator,
       Hart Senate Office Bldg., Washington, DC.
         Dear Senators Levin and Grassley: I write to express my
       strong support for S1371, the Money Laundering Abatement Act.
       This is a prevalent problem that has allowed the criminal
       element to secrete the proceeds of criminal activity and to
       generate funds needed to facilitate and underwrite organized
       crime.
         The bill will make it harder for foreign criminals to use
       United States banks to launder the proceeds of their illegal
       activity and allow investigators to detect, prevent, and
       prosecute money laundering. In particular, the bill
       strengthens existing anti-money laundering laws by adding
       foreign corruption offenses, barring U.S. banks from
       providing banking services to foreign shell banks, requiring
       U.S. banks to conduct enhanced due diligence, and making
       foreign bank depositors' funds in U.S. correspondence banks
       subject to the same forfeiture rules that apply to funds in
       other U.S. bank accounts.
         Recent events highlighting the activities of foreign
       terrorists have demonstrated the necessity for his law. My
       colleagues in the U.S. Justice Department indicate that this
       and similar laws are essential if we are to succeed in our
       fight against organized crime, drug dealers, and terrorism.
       This bill is the result of lengthy hearings and congressional
       fact-finding that concluded that the regulations set forth in
       the bill are needed. The bill has my support, and I would
       urge its passage as soon as possible.
             Sincerely yours,
                                               Jennifer M. Granholm,
       Attorney General.
                                    ____
 
                                                   State of Arizona,
 
                                 Office of the Attorney General,
 
                                        Phoenix, AZ, August 2, 2001.
       Hon. Carl Levin,
       Russell Senate Office Building,
       U.S. Senate, Washington, DC.
       Hon. Chuck Grassley,
       Hart Senate Office Building,
       U.S. Senate, Washington, DC.
         Dear Senators Levin and Grassley: I write to express my
       views on the Money Laundering Abatement Act you are planning
       to introduce soon. This bill would provide much needed relief
       from some of the most pressing problems in money laundering
       enforcement in the international arena. The burdens it places
       on the financial institutions are well considered, closely
       tailored to the problems, and reasonable in light of the
       public benefits involved.
         The bill focuses on the structural arrangements that allow
       major money launderers to operate. These include the use of
       shell banks and foreign accounts, abuse of private banking,
       evasion of law enforcement efforts to acquire necessary
       records, and of safe foreign havens for criminal proceeds.
       The approach is very encouraging, because efforts to limit
       the abuse of these international money laundering tools and
       techniques must come from Congress rather than the state
       legislatures, and because such measures attack money
       laundering at a deeper and more lasting level than simpler
       measures.
         The focus on structural matters means that this bill's
       effects on cases actually prosecuted by state attorneys
       general are a relatively small part of the substantial
       effects its passage would have on money laundering as a
       whole. Nevertheless, its effects on money laundering
       affecting victims of crime and illegal drug trafficking would
       be dramatic. I will use two examples from my Office's present
       money laundering efforts.
         My Office initiated a program to combat so-called ``prime
       bank fraud'' in 1996, and continues to focus on these cases.
       Some years ago, the International Chamber of Commerce
       estimated that over $10 million per day is invested in this
       wholly fraudulent investment scam. The ``PBI'' business has
       grown substantially since then. To date, my Office has
       recovered over $46 million in these cases, directly and in
       concert with U.S. Attorneys and SEC. Prime bank fraudsters
       rely heavily on the money movement and concealment techniques
       that this bill would address, particularly foreign bank
       accounts, shell banks, accounts in false identities, movement
       of funds through ``concentration'' accounts, and impunity
       from efforts to repatriate stolen funds. One of our targets
       was sentenced recently in federal court to over eight years
       in prison and ordered to make restitution of over $9 million,
       but without the tools provided in this bill, there is little
       hope that the victims will even see anything that was not
       seized for forfeiture in the early stages of the
       investigation.
         My Office is now engaged in a program to control the
       laundering of funds through the money transmitters in
       Arizona, as part of the much larger problem of illegal money
       movement to and through the Southwest border region. This
       mechanism is a major facilitator of the drug smuggling
       operations. Foreign bank accounts and correspondence
       accounts, immunity from U.S. forfeitures, and false
       ownerships are significant barriers to successful control of
       money laundering in the Southwest.
         Your bill is an example of the immense value of
       institutions like the Permanent Subcommittee of
       Investigations, because this type of bill requires a deeper
       understanding of the issues that comes from long term
       inquiries by professional staff. We who are involved in state
       level money laundering control efforts should be particularly
       supportive of such long term strategies because they are most
       important to the quality of life of our citizens.
         I commend your efforts for introducing this important
       legislation and will assist you in anyway I can to gain its
       passage.
             Yours very truly,
                                                   Janet Napolitano,
                                                   Attorney General.
 
    The PRESIDING OFFICER. The Senator from Vermont.
    Mr. LEAHY. Madam President, I tell the distinguished Senator from
Michigan and the distinguished Senator from Massachusetts, who made
such strong and valid points on money laundering, we just received from
the administration their statement of policy saying: This includes
money laundering, other financial infrastructure provisions arising
from separate legislative proposals. These provisions were added to
this bill after unanimous approval to have these provisions in the
Senate Banking Committee. The administration supports the effort to
strengthen this--
 
    And so on. They are extremely important, and I can assure both
Senators that I will strongly support retention of this in conference.
    The PRESIDING OFFICER. The Senator from Wisconsin.
 
                             Amendment No. 1901
 
    Mr. FEINGOLD. Mr. President, I call up amendment No. 1901, which is
at the desk.
    The PRESIDING OFFICER (Mr. Miller). The clerk will report.
    The legislative clerk read as follows:
 
         The Senator from Wisconsin [Mr. Feingold] proposes an
       amendment numbered 1901.
 
    Mr. FEINGOLD. I ask unanimous consent that further reading of the
amendment be dispensed with.
    The PRESIDING OFFICER. Without objection, it is so ordered.
    The amendment is as follows:
 
     (Purpose: To modify the provisions relating to access to business
      records under the Foreign Intelligence Surveillance Act of 1978)
 
         Strike section 215 and insert the following:
 
       SEC. 215. ACCESS TO BUSINESS RECORD UNDER FOREIGN
                     INTELLIGENCE SURVEIL-
                     LANCE ACT OF 1978.
 
         (A) In General.--Section 502 of the Foreign Intelligence
       Surveillance Act of 1978 (50 U.S.C. 1862) is amended--
         (1) in subsection (a), by striking ``authorizing a common
       carrier'' and all that follows through ``to release records''
       and inserting ``requiring a business to produce any tangible
       things (including books, records, papers, documents, and
       other items)'';
         (2) in subsection (b)(2)--
         (A) in subparagraph (A), by striking ``and'' at the end;
         (B) in subparagraph (B), by striking the period at the end
       and inserting: ``; and''; and
         (C) by adding at the end the following new subparagraph:
         ``(C) the records concerned are not protected by any
       Federal or State law governing access to the records for
       intelligence or law enforcement purposes.''; and
         (3) in subsection (d), by striking ``common carrier, public
       accommodation facility, physical storage facility, or vehicle
       rental facility'' each place it appears and inserting
       ``business''.
         (b) Conforming Amendment.--The text of section 501 of that
       Act (50 U.S.C. 1861) is amended to read as follows:
         ``Sec. 501. In this title, the terms `agent of a foreign
       power', `foreign intelligence information', `international
       terrorism', and `Attorney General' have the meanings given
       such terms in section 101.''.
 
    Mr. FEINGOLD. Mr. President, this amendment has to do with section
215 in the bill. It allows the Government, under FISA, to compel
businesses to turn over records to assist in an investigation of
terrorism or espionage. The provision makes two significant changes
from current law. Under current law, the FBI can seek records from only
a limited set of businesses--from public accommodations, such as hotels
and motels, car rental companies, storage facilities, and travel
records, such as those from airlines.
    Current law also requires the FBI to demonstrate to the FISA court
that the records pertain to an agent of a foreign power. The FBI cannot
go on a fishing expedition of records of citizens of this country who
might have had incidental contact with a target of an investigation.
But under section 215 of this bill, all business records can be
compelled to be produced, including those containing sensitive personal
information such as medical records
 
[[Page S10584]]
 
from hospitals or doctors, or educational records, or records of what
books someone has taken out of the library.
    This is an enormous expansion of authority, compounded by the
elimination of the requirement that the records have to pertain to an
agent of a foreign power. Under this provision, the Government can
apparently go on a fishing expedition and collect information on
anyone--perhaps someone who has worked with, or lived next door to, or
has been seen in the company of, or went to school with, or whose phone
number was called by the target of an investigation.
    So we are not talking here only about the targets of the
investigation; we are talking about people who have simply had some
incidental contact with the target. All the FBI has to do is to allege
in order to get the order that the information is sought for an
investigation of international terrorism or clandestine intelligence
gathering. That is all they have to do, assert that--not to just get at
the targets, but at people who have had any contact whatsoever with
them.
    On that minimal showing in an ex parte application in a secret court,
the Government can lawfully compel a doctor or a hospital to release
medical records or a library to release circulation records. This is
truly a breathtaking expansion of the police power, one that I do not
think is warranted.
    My amendment does not completely strike the provision. There are
elements of it that I think have legitimacy. First, my amendment
maintains the requirement that the records pertain to a target alleged
to be an agent of a foreign power. This provides some protection for
American citizens who might otherwise become the subject of
investigations for having some innocent contact with a suspected
terrorist.
    Second, while the amendment maintains the expansion of the FISA
authority to all business records, it also requires the FBI to comply
with State and Federal laws that contain a higher standard for the
disclosure of certain private information. The amendment makes it clear
that existing Federal and State statutory protections for the privacy
of certain information are not diminished or superseded by section 215.
    There are certain categories of records, such as medical records or
educational records, that Congress and State legislatures have deemed
worthy of a higher level of privacy protection. Let me quickly give you
a couple of examples. In California, there is a very detailed statutory
provision governing disclosure of medical information to law
enforcement authorities. Generally, the law requires either patient
consent, or a court order, or a subpoena. Before issuing an order for
the records to be produced, the court must, among other things, find
good cause based on a determination that there is a reasonable
likelihood that the records in question will disclose material
information or evidence of substantial value in connection with the
investigation or prosecution.
    Montana is another State with strong statutory, and indeed
constitutional, protections for medical records. It provides that
medical records can only be obtained with an investigative subpoena
signed by a judge, and that subpoena may be issued only when it appears
upon the affidavit of the prosecutor that a compelling State interest
requires it to be issued. In order to establish a compelling State
interest, the prosecutor must state facts and circumstances sufficient
to support probable cause to believe that an offense has been
committed, and that the information relative to the commission of that
offense is in the possession of the person or institution to whom the
subpoena is directed.
    My State of Wisconsin, along with many other States, has very strong
library confidentiality laws which requires a court order for
disclosure of public library system records.
    Texas, for example, permits disclosure of library records ``to a law
enforcement agency or prosecutor under a court order or subpoena
obtained after a showing to a court that: (A) disclosure of the record
is necessary to protect the public safety; (B) the record is evidence
of an offense or constitutes evidence that a particular person
committed an offense.''
    Missouri and Nevada library records confidentiality laws both require
that a court find ``that the disclosure of such record is necessary to
protect the public safety or to prosecute a crime.''
    South Carolina's library records confidentiality law permits
disclosure ``in accordance with a proper judicial order upon finding
that disclosure of the records is necessary to protect public safety,
to prosecute a crime, or upon showing of good cause before a presiding
judge in a civil matter.''
    In short, our States have made policy judgments about the protection
to which certain kinds of records are justified. We have Federal laws
that express similar judgments--Federal Educational Records Privacy
Act. Indeed, as I will mention, this bill provides new standards for
the production of educational records in connection with terrorism
investigations.
    So my fear is that what section 215 does is effectively trump any and
all of these State and Federal privacy protections. I think that is a
result that most of our citizens and their State representatives would
not countenance. So my amendment simply provides that this new
authority to compel the production of business records through an order
of a FISA court does not apply if another State or Federal law governs
the law enforcement or intelligence access to the records.
    To the extent that the records sought have no such statutory
protection, the only effect this amendment would have is to ensure that
the records actually pertain to the target. But I strongly believe that
merely alleging that the records are needed for an intelligence
investigation should not override other protections provided by State
and Federal law.
    I will quickly highlight the problem by referring to section 508 of
this bill. That section, I think, would be rendered meaningless if
section 215 is not amended as I propose.
    The original version of section 508 proposed by the administration
would have given the Attorney General the right to obtain the
educational records of virtually any student without a court order. I
and many other Senators had serious problems with that provision, and
it was significantly changed before S. 1510 was introduced. Section 508
now does require a court order and does provide a specific showing that
the Attorney General must make to obtain the order to get at these
educational records. But if section 215 is enacted without my amendment
a university could be ordered to turn over such records as ``tangible
things'' on a much lower showing.
    The administration asserts that it is too great a burden for the
Government to abide by existing privacy protections and seek court
orders to obtain certain sensitive information specifically identified
by Congress and State legislators. I remind my colleagues that the
protections I seek to preserve were carefully drafted and debated and
enacted at a time when legislators could thoughtfully consider the full
weight of granting such protections. We are now asked to set these
protections aside with scant discussion of either the merits or the
consequences of such a proposal, during a time of incredible strain on
our democratic principles, and for an indeterminate length of time.
    If my amendment is adopted, law enforcement will still have access to
all of the information it seeks. But my amendment simply maintains the
integrity of protections enacted by Congress and State legislatures for
certain kinds of sensitive information to ensure that access to this
information is given only where it is necessary. It makes sure that
this provision does not become the platform or an excuse for a fishing
expedition for damaging information on American citizens who are not
the subjects of FISA surveillance.
    I reserve the remainder of my time.
    The PRESIDING OFFICER. The Senator from Minnesota is recognized.
    Mr. FEINGOLD. I yield 5 minutes to the Senator.
    Mr. WELLSTONE. Mr. President, I say, again, to colleagues that this
amendment the Senator from Wisconsin introduced makes sure that our
Federal and State laws regarding certain sensitive privacy areas are
not diminished or superseded by this provision.
 
[[Page S10585]]
 
    The amendment of the Senator from Wisconsin goes to the heart of the
concerns that a lot of the people we represent have. I imagine that the
vote may be overwhelmingly in opposition to this amendment. That has
been the pattern.
    Again, I thank the Senator from Wisconsin for raising these
questions. This is what we should be doing.
    I conclude this way: I really think, in part, because of the kind of
questions the Senator from Wisconsin has raised--again, I am not a
lawyer--in looking at this bill, Mr. President, I say to Senator Leahy,
it seems to me he and others have done a great job and are doing
everything possible to make this more balanced. There are so many good
provisions in this bill that we need. I believe that.
    I hope we can keep the sunset provision, which is so essential to
oversight, because I think what is good is the provisions of this
legislation that focus on combating terrorism and what is not quite so
good is the parts of this bill that reach way beyond that.
    Yes, there is a lot of good. I will support it. I will reserve final
judgment of what comes out of the conference committee. I think we can
make it better.
    I thank my colleagues, Senator Hatch included, for their work.
Sometimes people can honestly disagree. I know this is important. I
know where we are as a nation, but the Senator from Wisconsin has
raised important concerns tonight, and others as well. I hope we do
better in conference.
    I yield the floor.
    The PRESIDING OFFICER. The Senator from Wisconsin.
    Mr. FEINGOLD. Mr. President, I thank the Senator from Minnesota. He
said it exactly right. Each of us who spoke on these amendments tonight
cares just as much as everybody in this room about the fight against
terrorism and stopping it. We just want to make sure we do not go
beyond that goal with unnecessary language that intrudes on our civil
liberties. That is it. That is all we are trying to do.
    I am pleased to yield 5 minutes to the Senator from Washington.
    The PRESIDING OFFICER. The Senator from Washington.
    Ms. CANTWELL. Mr. President, I thank the Senator from Wisconsin for
the time and his energies this evening. We all know that the hour is
late and that there are many things we must accomplish in our acts to
fight terrorism. This is probably one of the most significant pieces of
legislation that affects our home-front activities in fighting that
battle.
    There are many good things in this bill. I am very proud of the
authorizing language to triple the resources for our northern borders.
I am very proud of the language in the bill that basically will set a
new technology standard for our visa program so we can better identify
people coming into this country. I am very proud of the many tools in
the bill for law enforcement. I ask unanimous consent that the column
in the Washington Post be printed in the Record.
    There being no objection, the material was ordered to be printed in
the Record, as follows:
 
                 [From the Washington Post, Oct. 10, 2001]
 
                           When Care Beats Haste
 
         The complex antiterrorism legislation that the
       administration sent Congress less than a month ago could
       reach the floors of both houses this week. The original
       proposal has been considerably improved since its hasty
       submission, but civil liberties groups continue to warn with
       cause that some of the detention and surveillance provisions
       would give the government more power than is either necessary
       or healthy.
         Some of the members of both parties who helped construct
       the current compromises are likewise uneasy about their own
       handiwork, but reluctant to be seen as holding up a bill the
       administration insists it needs right away. The reluctance
       will be the greater now that the country is engaged in
       military action in Afghanistan; there is fear--we have no
       doubt well-founded--of retaliation. But dangerous moments are
       precisely the ones when it is most important that civil
       liberties be protected.
         The House Judiciary Committee has dealt with the
       conflicting pressures in part by putting a kind of asterisk
       after the surveillance sections of the bill. It has
       ``sunset'' them, meaning the powers they confer will expire
       after two years unless a subsequent Congress, having seen how
       the powers work out, votes to extend them. The administration
       opposes the sunset provision and succeeded in keeping it out
       of the Senate version. But it's a reasonable compromise. A
       bill such as this is a balancing of risks--the risk of
       further attack versus the risk to civil liberties in seeking
       to forestall the attack. If the bill is as benign as the
       administration insists, it has nothing to fear from a sunset
       provision, which ought to be retained.
         Parts of the administration proposal were sensible and are
       not in dispute: allowing the government in an age of cell
       phones to seek court approval for placing a wiretap on a
       person rather than a particular phone, for example. Others
       were drawn too loosely, and some still need work. The
       administration had sought authority to detain indefinitely
       non-citizens whom the attorney general thought even might be
       engaged in terrorism or other activities that endangered
       national security. That power has been greatly circumscribed.
       A person not charged with a crime after seven days can be
       held only if the government is moving to deport him. The
       question, which the bills don't clearly answer, is how long,
       without judicial determination, can it hold him then?
         Wiretap authority now is easier to get for foreign
       intelligence than for law enforcement purposes. The
       legislation would make it easier still. The question then
       becomes how to make sure that the new authority isn't
       abused--in fact used for law enforcement purposes or fishing
       expeditions--in such a way as to make such surveillance far
       more commonplace than now. Related issues have to do with the
       sharing of law enforcement and intelligence information among
       government officials. There are ways to provide the broader
       authority the government says it needs while hedging against
       its abuse; in our view, not all of those have been fully
       explored.
         So too with the power the bill would give law enforcement
       officials to obtain records of an individual's Internet use,
       including addresses of e-mail sent and received. Phone
       records are now available to law enforcement agencies more or
       less on request--when were calls made from phone A to phone
       B? what should be the Internet analogy?
         The administration was said yesterday to be pressing for
       quick passage by both houses of the Senate measure; the more
       careful work of the House Judiciary Committee would be set
       aside. That's wrong, and an acquiescent step that in the long
       run Congress likely would regret.
 
    Ms. CANTWELL. This article said it best with the headline: ``When
Care Beats Haste'':
 
         The question then becomes how to make sure that the new
       authority isn't abused--in fact used for law enforcement
       purposes or fishing expeditions--
 
    Later it says that it would be wrong for us to take an acquiescent
step that in the long run would really hurt our country.
    What Senator Feingold is simply trying to say is that we have already
painstakingly over many years crafted a careful balance in protecting
personal privacy. This language in section 215 changes that. It
basically says that the FBI can have access to other things, including
business records from U.S. citizens who may have had incidental contact
with someone who is defined as a terrorist.
    Think about that for a second. If you are an employer and someone in
your company has now been accused of these terrorists acts and is under
investigation, your business records can also be attained if, as
Senator Feingold said, it was deemed part of this investigation, with
very minimal judicial review.
    Take for another example, you happen to live across the hall from
someone who now has become a suspect. Maybe you have been over to their
house for dinner several times. Now, all of a sudden, you may be part
of that investigation, and your financial records, your medical
records, your personal records can now be part of that investigation,
again, with very minimal judicial review.
    I have heard from many in my State, including my State librarian,
consumers, and businesses that are concerned, that this provision is
far too broad.
    It takes little imagination, as I said, to think of all the tangible
items this would give the FBI carte blanche to examine some people's
most private and personal papers.
    The bottom line is this legislation could circumvent or supersede
Federal and State privacy laws that protect student records, library
records, and health records not previously admissible under FISA.
    What we are talking about in the Feingold amendment is trying to
preserve those State and Federal laws that already specify protection.
The amendment simply states where Congress or a State legislature has
enacted a law which requires an order to obtain records, that Federal
or State law stands.
    That seems pretty simple. We have worked on these issues. We should
not work on them in haste.
 
[[Page S10586]]
 
    This is a very complex time. It is no ordinary time for our country.
This process has to remember those fourth amendment rights that we have
so diligently fought for in the past. I urge my colleagues to support
this amendment.
    The PRESIDING OFFICER. The Senator from Wisconsin.
    Mr. FEINGOLD. Mr. President, I am grateful for the remarks of the
Senator from Washington. I am afraid we are going to read them in a few
years and wish maybe we listened more closely to what we are doing on
this particular provision.
    I reserve the remainder of my time.
    The PRESIDING OFFICER. Who yields time?
    The Senator from Vermont.
    Mr. LEAHY. Mr. President, the Senator from Utah wanted to say
something for the record.
    Mr. HATCH. Mr. President, I thank my colleagues.
    I oppose Senator Feingold's amendment to Section 215 of the bill.
Section 215 allows federal law enforcement to apply for a court order
to obtain records and other evidence in the course of an investigation
to protect against international terrorism or clandestine intelligence
activities. This provision has many safeguards built in to prevent its
misuse.
    For instance, the application must be made by the Director of the FBI
or his designee, whose rank cannot be lower than an Assistant Special
Agent in Charge, and specify that the records concerned are sought for
an authorized investigation to protect against international terrorism
or clandestine intelligence activities. Additionally, the investigation
must be conducted pursuant to approved Attorney General guidelines and
may not be conducted on a United States person solely upon the basis of
activities protected by the first amendment to the Constitution.
    As written, the provision balances the investigatory needs of the FBI
with privacy concerns and provides adequate protection, while not
allowing a host of state-law provisions to stand in the way of national
security needs. Senator Feingold's amendment would condition the
issuance of the court order on a myriad of federal and state-law
provisions. Such conditioning will have the effect of making
investigations to protect against international terrorism more
difficult than investigations of certain domestic criminal violations.
    Senator Feingold's amendment purports to preserve privacy protections
in place for certain records. The amendment's effect, however, will be
to place foreign international and intelligence investigations at a
disadvantage to criminal investigations. For example, this amendment
would make it more difficult for the government to obtain business
records in a foreign-intelligence or foreign counter-intelligence
investigation through a court order than it is to obtain the same
records in a criminal health-care fraud or child pornography
investigation through a grand jury subpoena or administrative subpoena.
(see 18 U.S.C. 3486).
 
    Federal law enforcement officers investigating the activities of a
terrorist organization or foreign intelligence target should not face a
greater burden than that imposed on investigators of health-care fraud
or child pornography.
    I urge my colleagues to vote against this amendment.
    Mr. LEAHY. Madam President, the administration originally wanted
administrative subpoena authority in foreign intelligence cases for
government access to any business record. I was able to reach agreement
with the administration to subject this authority to judicial review
and to bar investigations based on the basis of activities protected by
the First Amendment.
    The Feingold amendment would ensure that current laws providing
safeguards for certain types of records, such as medical and
educational records, be maintained. Again, it is unfortunate that the
administration did not accept this amendment.
    Mr. President, we are prepared to yield back the remainder of our
time if the Senator from Wisconsin is prepared to yield back the
remainder of his time.
    Mr. FEINGOLD. If the majority leader is going to speak, I would like
to respond. If not, I will simply yield back the remainder of my time.
    Mr. LEAHY. I yield back the remainder of our time.
    Mr. DASCHLE. Mr. President, I move to table the amendment and ask for
the yeas and nays.
    The PRESIDING OFFICER. Is there a sufficient second?
    There is a sufficient second.
    The question is on agreeing to the motion. The clerk will call the
roll.
    The assistant legislative clerk called the roll.
    Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms), the Senator from South Carolina (Mr. Thurmond), and the Senator
from New Mexico (Mr. Domenici), are necessarily absent.
    I further announce that if present and voting the Senator from North
Carolina (Mr. Helms) would vote ``yea.''
    The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
    The result was announced--yeas 89, nays 8, as follows:
 
                        [Rollcall Vote No. 301 Leg.]
 
                                  YEAS--89
 
       Akaka
       Allard
       Allen
       Baucus
       Bayh
       Bennett
       Biden
       Bingaman
       Bond
       Boxer
       Breaux
       Brownback
       Bunning
       Burns
       Byrd
       Campbell
       Carnahan
       Carper
       Chafee
       Cleland
       Clinton
       Cochran
       Collins
       Conrad
       Craig
       Crapo
       Daschle
       DeWine
       Dorgan
       Durbin
       Edwards
       Ensign
       Enzi
       Feinstein
       Fitzgerald
       Frist
       Graham
       Gramm
       Grassley
       Gregg
       Hagel
       Hatch
       Hollings
       Hutchinson
       Hutchison
       Inhofe
       Inouye
       Jeffords
       Johnson
       Kennedy
       Kerry
       Kohl
       Kyl
       Landrieu
       Leahy
       Lieberman
       Lincoln
       Lott
       Lugar
       McCain
       McConnell
       Mikulski
       Miller
       Murkowski
       Murray
       Nelson (FL)
       Nelson (NE)
       Nickles
       Reed
       Reid
       Roberts
       Rockefeller
       Santorum
       Sarbanes
       Schumer
       Sessions
       Shelby
       Smith (NH)
       Smith (OR)
       Snowe
       Specter
       Stabenow
       Stevens
       Thomas
       Thompson
       Torricelli
       Voinovich
       Warner
       Wyden
 
                                  NAYS--8
 
       Cantwell
       Corzine
       Dayton
       Dodd
       Feingold
       Harkin
       Levin
       Wellstone
 
                               NOT VOTING--3
 
       Domenici
       Helms
       Thurmond
    Mr. LEAHY. I move to reconsider the vote.
    Mr. DASCHLE. I move to lay that motion on the table.
    The motion to lay on the table was agreed to.
 
                          NORTHERN BORDER SECURITY
 
    Mr. STEVENS. Mr. President, I thank the members of the Judiciary
Committee, especially Chairman Leahy and Senator Hatch for their hard
work on this important legislation. This bill will give the
administration an increased ability to fight terrorism on many fronts.
One section of the bill that is extremely important to my state
addresses Northern Border Security. This bill will triple the number of
Border Patrol, Customs Service, and INS inspectors along America's
northern borders. It also authorizes $100 million to improve INS and
Customs technology and for additional equipment for monitoring the
northern borders. Alaska and Alaskans are in a unique position. One
section of our northern boarder stretches from Maine through, my good
friend's home state of, Vermont all the way to Washington State. A
second section is that of my home State. As you know we are the largest
State in the Nation with an enormous border with Canada that runs over
1,538 miles. We have one of the busiest international cargo airports in
the world, which has lost a number of carriers since the September 11
attacks due to grossly inadequate staffing at our secure, sterile
customs facility. We also have several major international ports
scattered throughout Alaska including the Port of Anchorage, which
handles the most container traffic in Alaska; Dutch Harbor, which is
America's busiest commercial fishing port; and Valdez, where millions
of barrels of North Slope crude oil are sent by pipeline to the ``South
48.'' The sections of the bill that address the Northern Border
Security do not mention Alaska specifically. I intended to offer an
amendment to insure that we are part of the definition. But as my good
friend the Senator from Vermont pointed out to me, other northern
border States are not mentioned specifically either. I understand that
it is the intent of this legislation that Alaska and all other states
that border Canada
 
[[Page S10587]]
 
are ``Northern Border'' States and that INS, Border Patrol, U.S.
Customs service and others should look at all of these states when
addressing security issues. I would ask the manager of this bill if my
understanding is correct?
    Mr. LEAHY. Mr. President, the Senator from Alaska is correct. Alaska
is definitely part of America's Northern Border and it was the intent
of the committee and the Senate that it be part of that definition.
    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 Northern Border. Alaska is
certainly one of those States. 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.
    Mr. STEVENS. Mr. President, I thank the Senator from Vermont. With
this clear statement of of the legislation I will not offer an
amendment to specifically name Alaska as a Northern Border State.
 
                       alien terrorist removal court
 
    Mr. SMITH of New Hampshire. Mr. President, it had been my intention
to offer an amendment which would strengthen provisions in the bill to
deal with known terrorist aliens. As Senator Lott well remembers, we
worked in 1996, created the Alien Terrorist Removal Court, to hear
cases against aliens who were known terrorist and to allow the Justice
Department to deport these aliens without divulging classified
information to the terrorist organization.
    Mr. LOTT. I know the Senator from New Hampshire has been working a
long time on this issue. In fact, when he sponsored this legislation
back in 1995, I was a cosponsor of his bill. He has been a leader on
this issue, he passed his legislation, and the Court was created.
    Mr. SMITH of New Hampshire. That is correct. As the leader knows,
there are some changes that are needed to improve the law, which is
what my amendment was going to be about.
    Mr. LOTT. I understand, and I agree that the law needs to be
strengthened.
    Mr. SMITH of New Hampshire. Mr. President, I would say to my
colleagues, all the tools we are giving to the Justice Department in
this bill are irrelevant if we cannot deport these terrorist who are
living in our country preparing to terrorize American citizens. Page
162 of the bill says the Attorney General shall place an alien in
removal proceedings within 7 days of catching him, or charge him with a
criminal act, or else the bill says ``the Attorney General shall
release the alien.'' Mr. President, the problem is that most of these
terrorist have not committed criminal acts until they are ready to
attack. Therefore, in most of these cases, the only option is to deport
them.
    Mr. LOTT. It is my opinion, that if we can deport known terrorist, we
should do it. We cannot let the Justice Department be barred because
the evidence was too sensitive to use in Court.
    Mr. SMITH of New Hampshire. That is exactly the problem. Under
current law, the Justice Department would have to give a declassified
summary of all the secret evidence used in the deportation proceedings
to the terrorist. Now, why would we compromise our intelligence sources
and methods by revealing sensitive intelligence information to a known
terrorist? The intelligence community would never allow it, and with
good reason. But as a result, the Justice Department has never once
used the alien terrorist removal court to deport anyone.
    Mr. LOTT. That is my understanding, and it is a serious problem. I am
in complete agreement with the Senator.
    Mr. SMITH of New Hampshire. Mr. President, I thank the Leader. As I
said, it had been my intention to offer an amendment to resolve this
problem by eliminating the requirement for the Attorney General to give
this sensitive information to the alien terrorist before deporting him.
However, upon discussions with the Attorney General, who indicated to
me that he supports this provision, and after discussions with the
Leader, I have decided in the interest of moving this legislation to
withhold my amendment at this time, with the assurance of the Leader
and the Administration that we will work to solve this problem in
conference.
    Mr. LOTT. Let me say to the Senator that he can count me as a
cosponsor of this amendment. It is an excellent amendment, it is
needed, and I commit to the Senator that I will do my best to see that
it is added in conference. I would further say to the Senator that I
have also talked about this issue with the Attorney General, and he
indicated to me that the Administration supports your amendment and
that he will also work to support it in conference when we get to that
point. So, I appreciate his withholding at this time so we can get this
bill to conference where we can work to get the Smith amendment added
to greatly improve this bill.
    Mr. SMITH of New Hampshire. I thank the Leader for his strong
support, and I am pleased that the administration is also supportive. I
know how many long hours the Attorney General is putting in on this
issue, and how committed he is to winning this war on terrorism. I look
forward to passing this important provision which will be an invaluable
tool for the Attorney General and the President in this war.
 
                         deterring money laundering
 
    Mr. SCHUMER. Mr. President, I would like to clarify with Chairman
Sarbanes my understanding of the provision in Title III, the anti-money
laundering provisions in the antiterrorism package, entitled ``Section
314. Cooperative Efforts to Deter Money Laundering''.
    As the Chairman is well aware, Section 314(b) is intended to address
concerns about regulatory barriers that stand in the way of developing
efficient mechanisms and services that financial institutions can use
to fulfill their regulatory compliance obligations. The regulations to
be issued by the Secretary, and potentially by bank and thrift
regulators as well, could further this purpose by reconciling rules
that could be interpreted in a way that places conflicting burdens on
financial institutions.
    Does that comport with the Chairman's understanding of the intent of
the provision and how that intent could best be carried out by the
regulators?
    Mr. SARBANES. I thank the Senator for his question. Yes, that is also
my understanding of Section 314.
    Mr. CORZINE. Mr. President, I am going to support this legislation,
and I want to commend the leadership--Senators Daschle and Lott--and
Senators Leahy and Hatch, for their efforts in developing the bill.
Clearly, there is no higher priority than combating terrorism and
protecting our national security. At the same time, I do have real
concerns about the process by which this legislation has come to the
floor, and about the implications of some provisions for fundamental
civil liberties.
    There are several provisions in this legislation that make a real,
positive contribution to the fight against terrorism. Other senators
have discussed
 
[[Page S10588]]
 
some of the highlights in more depth, so let me just focus on a few.
    First, this bill includes legislation approved by the Senate
Committee on Banking, Housing, and Urban Affairs, on which I sit, that
will help authorities crack down on money laundering. This is essential
if we are to deprive terrorists of resources. The bill will require
additional reporting of suspicious transactions, require identification
of the foreign owners of certain U.S. accounts, and impose other
requirements on financial institutions to give authorities a greater
ability to identify and prosecute money launderers. I also note that
the bill includes a provision I authored that calls for a study into
the possibility of expanding the legislation to include hedge funds and
other investment services that also can be used by terrorists to
launder money.
    Beyond the money laundering provisions, I also am pleased that this
bill provides additional funding for the victims of terrorism. Coming
from New Jersey, where thousands of our residents have been victimized
by the tragedy at the World Trade Center, this is especially important
to me. In my view, we as a nation have a responsibility to ensure that
terrorism victims and their families are not left alone and
uncompensated. That is why I am pleased that the bill would replenish
the antiterrorism emergency reserve, replace the annual cap on the
Crime Victim Fund, authorize private contributions to the fund, and
strengthen services for victims in other ways. While this is not all
that we should be doing for victims and their families, I appreciate
the work of the leaders in focusing on their needs.
    I also pleased that the bill would triple the number of Border
Patrol, Customs Service and immigration inspectors at our northern
border. This would significantly enhance security over an area that,
until now, has been seriously understaffed. The bill also authorizes
$100 million to improve INS and Customs technology and additional
equipment for monitoring the U.S.-Canada border.
    In addition, I want to highlight language in this bill that would
establish two new crimes related to bioterrorism, including provisions
to prohibit certain people from possessing a listed biological agent or
toxin. There are many other things we need to do to prepare for the
threat of a biological or chemical attack, and I have introduced
related legislation, S. 1508, that would require states to develop
coordinated plans, and that would provide additional resources for
hospitals and other health care providers. The threat of bioterrorism
is real, and I would hope that our leaders will bring related
legislation to the Senate floor as soon as possible.
 
    While I support the provisions in this bill on money laundering,
victim services, border enforcement, and bioterrorism, I do have
serious concerns about the way this bill was put together, and about
other provisions that raise serious questions about the protection of
civil liberties.
    It is deeply troubling to me that we would be taking up a bill that
deals with such sensitive civil liberties matters without comprehensive
hearings, and without even consideration by the relevant committee. We
are talking about a 243-page bill that was developed behind closed
doors by a handful of people operating under enormous time pressure.
This is a bill that raises fundamental questions that go to the very
essence of our democracy, and our freedoms. It's not something that
should be done in haste, with so little opportunity for input from
outside experts, the public, and all senators.
    Perhaps because the legislation was developed so quickly, and in an
environment so dominated by great public anxiety about security, there
is a real risk that we will make serious mistakes.
    I am especially concerned about the provisions in this bill that
require the detention of immigrants who are not terrorists, who are not
criminals, but are merely suspected of future wrongdoing. In fact,
these provisions go further than that. Lawful permanent residents who
are charged with being deportable on terrorism grounds could be held
indefinitely even if an immigration judge determines that the terrorism
charges are false.
    I understand that we need to give the government sufficient authority
to protect Americans from those who pose a real threat to public
safety. But this provision goes too far. And I hope it can be corrected
in conference.
    Similarly, there are other provisions of this legislation that seem
very loosely drafted, and that could, perhaps unintentionally, lead to
infringement on important civil liberties. For example, many have
raised serious questions about provisions relating to law enforcement
surveillance of Internet and telephone use, and about other provisions
that give the government extensive new powers to conduct secret
searches. These and other provisions do not seem to have received
adequate scrutiny. I am hopeful that they can be examined more closely
in conference, and any needed improvements can be made before the
legislation is sent to the President.
    I also would urge our conferees to accept a provision, like one
included in the House version of this legislation, that would set a
time limit on the application of certain provisions that pose the
greatest threats to civil liberties. In my view, that's especially
important since we have rushed this legislation through the Senate so
quickly. As I said, I am hopeful that we can identify and correct any
mistakes in conference. But we still seem to be operating on a rush
basis, and I suspect that some mistakes are inevitable. Given the
stakes involved, I think it would be better to make many of these
provisions temporary, and then revisit these issues when we have more
time to thoroughly consider all their implications.
    In the end, while I do have serious concerns about certain aspects of
this legislation, I have decided to support the effort to move it to
conference. Our nation has just suffered the most horrendous act of
terrorism in our history, and we are facing serious threats of other
terrorist attacks. A vast, well-organized and well-funded terrorist
network has gone to war against our nation. And while we should not
overreact, or erode basic freedoms, we do have to defend ourselves.
    We must give our law enforcement officials the tools they need to
find and destroy these terrorist networks. And this legislation should
help. But we need to continue to review and improve its provision as we
go to conference. And we will need to continue to closely review the
implementation of the legislation after it is enacted.
    I yield the floor.
    Ms. CANTWELL. Mr. President, I support this bill, but I do so only
with some reservations.
    We are giving broad new powers to our law enforcement and
intelligence communities--without the traditional safeguards of
judicial review and congressional oversight.
    I believe that many provisions of the bill, particularly those
sections dealing with electronic eavesdropping and computer trespass,
remain seriously flawed and may infringe on civil liberties.
    I am voting for this bill today with the strong hope that it will be
improved in a conference with the House. As it currently stands, the
Senate bill breaks down the traditional separation of domestic criminal
matters governed by the fourth amendment right against unjustified
search and seizure--from the gathering of international intelligence
information traditionally gathered without the same concern for
constitutional rights.
    I strongly believe that we should have included in this bill a sunset
provision that would give Congress the opportunity to reassess whether
these new tools are yielding the intended results in the war on terror,
and I am hopeful that the final bill will emerge with this and other
improvements.
    If this bill is not improved through a conference process or other
negotiation, I reserve the right to vote against a conference report.
    However, I also believe this bill contains many provisions that will
significantly advance our battle against terrorism. I thank the
Chairman for his hard work on these provisions and appreciate his
efforts particularly to strengthen security on our northern border.
    Among the most important provisions in this bill is the authorization
to triple staffing across our northern border.
    These increases in manpower are desperately needed. The northern
border is
 
[[Page S10589]]
 
patrolled by only 300 border patrol agents in contrast to the 9,000 on
the southern border. More critically, at points of entry where suspect
persons have repeatedly tried to enter or have entered, we currently
lack sufficient staffing to allow Customs and INS inspectors and INS
agents to do their job well. We place a tremendous responsibility on
the individuals charged with deciding whom to admit and whom to turn
away.
    One additional new tool this bill provides is the establishment of a
visa technology standard to help secure our border. I personally worked
to get language included in this bill that requires the State
Department and the Department of Justice to develop a shared technology
standard--so that we can be certain each individual who seeks entry
into our country on a visa--is the person he or she claims to be.
    American citizenship comes with deeply valued privileges and rights.
One of the most basic of those rights is privacy. To require a
fingerprint or a digital photograph of an alien seeking to enter our
country is a reasonable and effective way to improve our ability to
keep terrorists out of this country while still welcoming a vibrant
flow of legal immigrants.
 
    Unfortunately, aspects of this bill that impose unreasonable and
unwarranted requirements on legal immigrants, greatly expand electronic
eavesdropping, and potentially provide law enforcement easy access to
some types of email communications--remain troubling.
    I would like to believe that the expansion of the ability of the
government to place wiretaps on the lines of American citizens--done in
secret with insignificant reporting or opportunity for oversight by the
Congress--will not be abused.
    I would like to believe that technologies like that technologies like
Carnivore will not be used to derive content from email communications.
    But I am skeptical.
    Several other aspects of this bill, when taken together, also have
the potential to interfere with Americans' enjoyment of their right to
privacy without providing value in the fight against terrorists.
    Those of us who feel strongly about how new powers might chip away at
traditional privacy rights will closely watch how law enforcement uses
these tools.
    The events of September 11 have changed us as a country forever. We
have been attacked on our own soil. Thousands have died, thousands more
have been injured. Very simply, we must do all that we can to stop
terrorism by finding and disrupting terrorist activities here and
abroad. The challenge we face is to do this without compromising the
value that make Americans unique and have allowed us to become great:
respect for personal autonomy and the rights of the individual; and
tolerance of all regardless of race or religion.
    While I will vote for this bill, I also promise to engage in vigilant
oversight of these new powers, and I urge those in the law enforcement
and intelligence communities to use these powers wisely and with great
deliberation.
    Mr. EDWARDS. Mr. President, I rise in support of S. 1510, the Uniting
and Strengthening America Act.
    In the aftermath of September 11, we face two difficult and delicate
tasks: to strengthen our security in order to prevent future terrorist
attacks, and at the same time, to safeguard the individual liberties
that make America a beacon of freedom to all the world.
    I believe that when the President signs this anti-terrorism
legislation into law, we will have achieved those two goals as best we
now can.
    The act is a far-reaching bill. I will mention just a few key aspects
of that bill.
    First, the legislation brings our surveillance laws into the 21st
century. Here are two of many examples. Under current law, the FBI can
use a basic search warrant to access answering machine messages, but
the FBI needs a different kind of warrant to get to voice mail. This
law says the FBI can use a traditional warrant for both. Another
example: Under current law, a Federal court can authorize many
electronic surveillance warrants only within the court's limited
jurisdiction. If the target of the investigation is in the judge's
jurisdiction, but the subject of the warrant is technically an internet
service provider located elsewhere, the warrant is no good as to that
ISP. This bill allows the court overseeing an investigation to issue
valid warrants nationwide.
    Second, the act gives law enforcement officers and the foreign
intelligence community the ability to share intelligence information
with each other in defined contexts. For example, the act says that
under specified conditions, the FBI may share wiretap and grand jury
information related to foreign- and counter-intelligence. I appreciate
concerns that this information-sharing authority could be abused. Like
Chairman Leahy, I would have preferred to see greater judicial
oversight of these data exchanges. But I also believe we simply cannot
prevail in the battle against terrorism if the right hand of our
government has no idea what the left hand is doing.
    Third, the act enhances intelligence authorities under the Foreign
Intelligence Surveillance Act (FISA). When I met with FBI agents in
North Carolina shortly after September 11, they told me their number
one priority was to streamline the FISA process. We've done that. We've
said, for example, that the renewal periods of certain key FISA orders
may be longer than the initial periods. This makes sure the FBI can
focus on investigations, not duplicative court applications.
    A more controversial change concerns the purpose of FISA
surveillance. Under current law, a FISA wiretap order may only enter if
the primary purpose of the surveillance is foreign intelligence
gathering. The administration initially proposed changing the ``primary
purpose'' requirement to a requirement of ``a purpose,'' any foreign
intelligence purpose. At a recent Intelligence Committee hearing, I was
one of several Senators to raise constitutional questions about the
Administration's initial proposal. The last thing we want is to see
FISA investigations lost, and convictions overturned, because the
surveillance is not constitutional. S. 1510 says that FISA surveillance
requires not just ``a purpose,'' but ``a significant purpose,'' of
foreign intelligence gathering. That new language is a substantial
improvement that I support. In applying this ``significant purpose''
requirement, the FISA court will still need to be careful to enter FISA
orders only when the requirements of the Constitution as well as the
statute are satisfied. As the Department of Justice has stated in its
letter regarding the proposed FISA change, the FISA court has ``an
obligation,'' whatever the statutory standard, ``to reject FISA
applications that do not truly qualify'' as constitutional. I
anticipate continued close congressional oversight and inquiry in this
area.
    A forth step taken by this legislation is to triple the number of
Border Patrol, INS inspectors, and Customs Service agents along our
4,000-mile northern border. Today there are just 300 border patrol
agents to guard those 4,000 miles. Orange cones are too often our only
defenses against illegal entries. This bill will change that.
    Fifth, the bill expedites the hiring of translators by the FBI. It is
unthinkable that our law enforcement agents could have critical raw
intelligence that they simply cannot understand because they do not
know the relevant language. This statute will help to change that state
of affairs.
    Finally, the bill makes the criminal law tougher on terrorists. We
make it a crime to possess a biological agent or toxin in an amount
with no reasonable, peaceful purpose, a crime to harbor a terrorist, a
crime to provide material support to terrorism. And we say that when
you commit a crime of terrorism, you can be prosecuted for that crime
for the rest of your life, with no limitations period. Statutes of
limitations guarantee what lawyers call ``repose.'' Terrorists deserve
no repose.
    As Chairman Leahy and Senator Hatch have both said, this legislation
is not perfect, and the House-Senate Conference may yet make
improvements. For example, the Conference might clarify that, as to
aliens detained as national security threats, the law will secure the
due process protections and judicial review required by the
Constitution and by the Supreme Court's recent decisions in Zadvydas v.
Davis and INS v. St. Cyr. The Conference might also sensibly include a
 
[[Page S10590]]
 
sunset of the new surveillance authorities, ensuring that Congress will
reconsider this bill's provisions, which touch such cherished
liberties, in light of further experience and reflection.
    The bill is not perfect, but it is a good bill, it is important for
the Nation, and I am pleased to support it.
    Mr. KYL. Mr. President, I rise in strong support of the antiterrorism
bill, S. 1510. The bill would provide our nation's law enforcement with
important tools to more effectively investigate and prevent further
attacks against the people of the United States.
    At the outset, in response to concerns that some have raised, I want
to make clear that we are not rushing to pass ill-conceived
legislation.
    During the past two Congresses, when I chaired the Judiciary
Committee's Subcommittee on Technology and Terrorism, the Subcommittee
held 19 hearings on terrorism. I want to repeat that: 19. The witnesses
who appeared before the Subcommittee included the then-Director of the
FBI Louis Freeh and representatives of all three of the
congressionally-mandated commissions on terrorism that have issued
reports over the last two years. Additional hearings on terrorism were
held by the full Judiciary Committee and by other committees.
    Many of the provisions contained in the Attorney General's proposed
legislation mirror the recommendations of one or more of the major
terrorism commissions and have already been examined by the committee
of jurisdiction. In fact, some of these provisions have already been
voted on and passed by the Senate.
    Indeed, as I will discuss more fully in a minute, the language sent
forward by the Attorney General to establish nationwide trap and trace
authority was included in the Hatch-Feinstein-Kyl Amendment to the
recently passed Commerce, Justice, State Appropriations bill. Much of
the remaining language in that amendment was included in the
Counterterrorism Act of 2000, which the Senate passed last fall, after
a terrorist attack on the U.S.S. Cole killed 17 American sailors and
injured another 39. That bill was based on recommendations of the
bipartisan, congressionally-mandated National Commission on Terrorism,
known as the Bremmer Commission, which was established in 1998 in
response to the embassy bombings in Tanzania and Kenya.
    One particularly important provision, which was included in the both
the CJS bill and the current bill, updates the law to keep pace with
technology. The provision on pen register and trap and trace devices 1.
Would allow judges to enter pen/trap orders with nationwide scope and
2. Would codify current caselaw that holds that pen/trap orders apply
to modern communication technologies such as e-mail and the Internet,
in addition to traditional phone lines.
 
    Nationwide jurisdiction for a court order will help law enforcement
to quickly identify other members of a criminal organization such as a
terrorist cell. Indeed, last year Director Freeh testified before the
Terrorism Subcommittee that one of the problems law enforcement faces
is ``the jurisdictional limitation of pen registers and trap-and-trace
orders issued by federal courts.'' [Source: Hearing before the
Subcommittee on Technology, Terrorism, and Government Information of
the Senate Committee on the Judiciary, 106th Cong, 2nd Sess. (March 28,
2000), at 31.]
    He continued: ``Today's electronic crimes, which occur at the speed
of light, cannot be effectively investigated with procedural devices
forged in the last millennium during the infancy of the information
technology age.'' [Source: Id. at 32.]
    Currently, to track a communication that is purposely routed through
Internet Service Providers located in different states, law enforcement
must obtain multiple court orders. This is because, under current law,
a Federal court can order only those communications carriers within its
district to provide tracing information to law enforcement.
    According to Director Freeh's testimony before the Terrorism
Subcommittee, ``As a result of the fact that investigators typically
have to apply for numerous court orders to trace a single
communication, there is a needless waste of time and resources, and a
number of important investigations are either hampered or derailed
entirely in those instances where law enforcement gets to a
communications carrier after that carrier has already discarded the
necessary information.'' [Source: Id. at 31.]
    Section 216 of the Senate bill solves this problem.
    I would also like to address another important provision.
    Section 802 is intended more clearly to criminalize the possession of
biological and toxin agents by those who should not possess them. This
section amends the implementing legislation for the 1972 ``Convention
on the Prohibition of the Development, Production, and Stockpiling of
Bactiological, Biological, and Toxin Weapons and on their
Destruction'', BWC. Article I of the BWC prohibits the development,
production, stockpiling, acquisition, or retention of Microbial or
other biological agents, or toxins, whatever their origin or method of
production, of types and in quantities that have no justification for
prophylactic, protective, or other peaceful purposes. It is not the
intent of the BWC, nor is it the intent of Section 802, to prevent the
legitimate application of biological agents or toxins for prophylactic,
protective, bona fide research, or other peaceful purposes. These
purposes include, inter alia, medical and national health activities,
and such national security activities as may include the confiscation,
securing, and/or destruction of possible illegal biological substances.
 
    Finally, let me address briefly the concern voiced by some that we
are in danger of ``trampling civil liberties.'' I reiterate that we are
not rushing, that we have had thorough, deliberative hearings, and that
many of the proposals have already been passed by the Senate. Nothing
in the current bill impinges on civil liberties. The bill would give
Federal agencies fighting terrorism the same tools we have given those
fighting illicit drugs, or even postal fraud. Many of the tools in the
bill are modernizations of the criminal laws, necessitated by the
advent of the Internet.
    While some of these tools are extremely helpful in terrorism
investigations, it makes no sense to refuse to apply these common sense
changes to other crimes that are committed, like kidnapping, drug
dealing, and child pornography. It is unwise to limit these tools to
only terrorism offenses because often, at the outset of an
investigation of a particular person or crime, law enforcement does not
know what you are dealing with. A credit-card fraud case or a false
immigration documents case may turn out to be connected to funding or
facilitating the operations of a terrorist group. We should give law
enforcement the tools it needs to have the best chance of discovering
and disrupting these activities.
    We have a responsibility to the people of this nation to ensure that
those who are charged with protecting us from future terrorist attacks
are empowered to do so. This is not a zero sum game. We can both ensure
our security and protect our liberties.
    We cannot afford to lose this race against terror, and we cannot
afford to give the enemy in this war a full lap head-start. I support
this bill. I commend President Bush and General Ashcroft for submitting
a sound proposal to the Senate, and for their tremendous efforts during
the past month.
    Mr. President, in addition to the all of the other provisions in this
antiterrorism legislation that will provide our law enforcement
communities with the tools to weed out and stop terrorism, I want to
express my support for the immigration provisions upon which the
administration, Senators Hatch, Kennedy, Leahy and I have reached
agreement, and which are included in this bill.
    Even with the passage of these provisions, however, the United States
will continue to face overwhelming infrastructure and personnel needs
at our consular offices abroad, along both the southern and northern
border, and in our immigration offices throughout the United States. In
conjunction with increasing personnel and infrastructure, the U.S. must
deprive terrorists of the ability to present altered international
documents, and improve the dissemination of information about suspected
 
[[Page S10591]]
 
terrorists to all appropriate agencies. Senator Feinstein and I, in a
hearing of the Terrorism Subcommittee of the Judiciary Committee this
Friday, will continue to assess these needs by hearing from Justice and
State Department officials.
    So, our actions on immigration reform as it is relates to terrorism
must go beyond the scope of this anti-terrorism package. With that
said, this bill will certainly provide a better legal framework for
keeping foreign terrorists out of the United States, and detaining them
should they enter.
    First, this antiterrorism bill clarifies that the Federal Bureau of
Investigation is authorized to share data from its ``most wanted
list,'' and any other information contained in its national crime-
information system, with the Immigration and Naturalization Service and
the State Department. This will help the INS and State Department
identify suspected terrorists before they come to the United States,
and should they gain entry, will help track them down on our soil. It
also allows the State Department, during a U.S. criminal investigation,
to give foreign governments information on a case-by-case basis about
the issuance or refusal to issue a U.S. visa.
    The bill will also clarify U.S. law prohibiting the entry of, and
requiring the removal of, individual alien terrorists. It will probably
surprise the Members of this body a great deal to know that, under
current law, a terrorist alien is not considered either inadmissible
to, or deportable from, the United States even if he or she has
``endorsed or espoused terrorist activity that undermines the efforts
of the United States to fight terrorism,'' or has provided ``material
support to a terrorist organization.'' Nor is an individual deportable
for being a ``representative of a terrorist organization.'' The anti-
terrorism bill makes it clear to U.S. officials considering whether to
allow someone to come to the country, that a person meeting any one of
these criteria is not welcome here.
 
    In addition, the anti-terrorism package that we are debating today
further defines what is considered by the United States to be a
terrorist organization. Under current law, a terrorist organization
must be designated by the Secretary of State under Section 219 of the
Immigration and Nationality Act. This process can take several months,
and has been criticized by some experts as potentially politically
corruptible. Under this Senate anti-terrorism package, Section 219
remains in effect. A separate designation process is added, whereby an
organization can be designated by the Secretary of State or the
Attorney General, in consultation with each other, with seven days'
notice to the leadership of the House and Senate and the congressional
committees of jurisdiction. Additionally, an organization, whether or
not it is formally designated by the Secretary of State or the Attorney
General, can be considered to be terrorist if it is made up of two or
more individuals who commit or plan to commit terrorist activities.
    The Senate's antiterrorism package also has provisions regarding
temporary detention. It allows for the temporary detention of aliens
who the Attorney General certifies that he has ``reasonable grounds to
believe is inadmissible or deportable under the terrorism grounds.''
This compromise represents a bipartisan understanding that the Attorney
General of the United States needs the flexibility to detain suspected
terrorists. Under the compromise that Members have reached, the
Attorney General must charge an alien with a deportable violation or he
must release the alien. The underlying certification, and all
collateral matters, can be reviewed by the U.S. District Court of the
District of Columbia, and the Attorney General is required to report to
Congress every six months on the use of this detention provision.
    Finally, the Senate package, as a result of amendments added by
Senator Byrd, will determine whether ``consular shopping''--i.e.,
someone has a visa application pending from his or her home country,
but goes to another country for adjudication--is a problem. If so, the
Secretary of State must recommend ways to remedy it. Another authorizes
$36.8 million for quick implementation of the INS foreign student
tracking system, a program that I have repeatedly urged be implemented.
    As former chairman and now ranking Republican of the Judiciary
Committee's Terrorism Subcommittee, I have long suggested, and strongly
supported, many of the anti-terrorism and immigration initiatives now
being advocated by Republicans and Democrats alike. In my sadness about
the overwhelming and tragic events that took thousands of precious
lives, I am resolved to push forward on all fronts to fight against
terrorism. That means delivering justice to those who are responsible
for the lives lost on September 11, and reorganizing the institutions
of government so that the law-abiding can continue to live their lives
in freedom.
    Mrs. FEINSTEIN. Mr. President, I rise in strong support of the
consensus terrorism bill now on the floor of the U.S. Senate.
    The people of the United States awoke on September 12 to a whole new
world, one in which we can no longer feel safe within our borders. We
awoke to a world in which our very way of life is under attack, and we
have since resolved to fight back with every tool at our disposal.
    This is an unprecedented state of affairs, and it demands
unprecedented action. We must seek out and defeat individuals and
groups who would build upon the September 11 attacks with more of their
own. We simply must give law enforcement officials the tools they need
to track, to hunt down, and to capture terrorists, both in this
country, and around the world as well. And that is what this bill would
do.
    Let me just describe some of the key provisions of this legislation,
and how those provisions will make an impact, even in the current
investigation into the September 11 attacks.
    First, this bill makes it easier to collect foreign intelligence
information under the Foreign Intelligence Surveillance Act, FISA.
Under current law, authorities can proceed with surveillance under FISA
only if the primary purpose of the investigation is to collect foreign
intelligence.
    But in today's world things are not so simple. In many cases,
surveillance will have two key goals--the gathering of foreign
intelligence, and the gathering of evidence for a criminal prosecution.
Determining which purpose is the ``primary'' purpose of the
investigation can be difficult, and will only become more so as we
coordinate our intelligence and law enforcement efforts in the war
against terror.
    Rather than forcing law enforcement to decide which purpose is
primary--law enforcement or foreign intelligence gathering, this bill
strikes a new balance. It will now require that a ``significant''
purpose of the investigation must be foreign intelligence gathering to
proceed with surveillance under FISA.
    The effect of this provision will be to make it easier for law
enforcement to obtain a FISA search or surveillance warrant for those
cases where the subject of the surveillance is both a potential source
of valuable intelligence and the potential target of a criminal
prosecution. Many of the individuals involved in supporting the
September 11 attacks may well fall into both of these categories.
    This language is a negotiated compromise between those who wished the
law to stay the same, and those who wished to virtually eliminate the
foreign intelligence standard entirely.
    The administration originally proposed changing ``primary purpose''
to ``a purpose,'' but when I questioned Attorney General Ashcroft at
our Judiciary Committee hearing, he agreed that ``significant purpose''
would represent a good compromise.
    Second, this legislation will provide multi-point authority, or so-
called ``roving wiretap authority'' in foreign intelligence
investigations. This provision is designed to defeat attempts to evade
law enforcement by simply switching cell phones or moving locations.
    Under current law, law enforcement must get a wiretap order for each
individuals phone line. Criminals and terrorists know this, so they
often manage to defeat surveillance by simply moving locations or
exchanging countless disposable or even stolen cell phones.
    This legislation will now allow the surveillance to follow the
person, wherever or however that person is communicating. So, no longer
will duplicative
 
[[Page S10592]]
 
wiretap orders be necessary simply to listen to the same, single target
of an investigation. This is a powerful change to the law that does not
put innocent conversations in danger, but stops the evasion of
surveillance now possible under the law.
    Third, this legislation allows nationwide service of so-called ``pen
register'' and ``trap and trace'' orders. Those orders allow law
enforcement to track incoming and outgoing phone calls, and now
Internet addressing, so that the authorities can make connections
between various criminals or terrorists.
    The problem with current law is that it has not kept up with
technology. Modern communications travel through many jurisdictions
before reaching their final destinations, and current law requires
court orders from every jurisdiction through which the communication
travels.
    Under this new legislation, only one court order will be necessary,
eliminating the time-consuming and burdensome requirements now placed
on law enforcement simply because technology has changed the way
communications travel from one place to the other. Law enforcement
resources should be spent in the field, not filing unnecessarily
burdensome motions in courtroom after courtroom.
 
    I should also mention one important point about this provision. The
standard necessary to get a court-ordered pen register or trap and
trace is lower than the standard necessary to get a wiretap, so it was
very important to make sure that this legislation makes it clear that
these orders do not allow law enforcement to eavesdrop on or read the
content of communication. Only the origin and destination of the
messages will be intercepted.
    This legislation also authorizes the seizure of voice-mail messages
pursuant to a probable cause warrant, which is an easier standard for
law enforcement to meet than the standard required for a wiretap.
    Current law treats a voice-mail like an ongoing oral communication,
and requires law enforcement to obtain a wiretap order to seize and
listen to those saved messages. E-mails, however, receive no similar
protection. In my opinion, if law enforcement can access e-mail
communications with probable cause, the same should be the case with
voice-mails. And so it will be once this legislation passes.
    This legislation will also now allow for limited sharing of grand
jury and other criminal investigation information with the intelligence
community, to assist in the prevention of terrorist acts and the
apprehension of the terrorists themselves.
    Under current law, law enforcement officials involved in a grand jury
investigation cannot share information gathered in the grand jury with
the intelligence community, even if that information would prevent a
future terrorist act.
    Under this legislation, grand jury and other criminal investigative
information can be shared if one, the information can is foreign
intelligence and counterintelligence information, as defined by
statute; two, the information is given to an official with a need to
know in the performance of his or her official duties; and three,
limitations on public or other unauthorized disclosure would remain in
force.
    This balance makes sense, I believe strongly that grand jury
information should not be leaked to the public or disclosed haphazardly
to anyone. But at the same time, it makes perfect sense to allow our
own law enforcement officials to talk to each other about ongoing
investigations, and to coordinate their efforts to capture terrorists
wherever they may be.
    This legislation also contains a heavily negotiated provision
regarding the detention of aliens suspected of links to terrorism
without charging them. Agreement was reached to one, limit to 7 days
the length of time an alien may be held before being charged with
criminal or immigration violations, two, allow the Attorney General to
delegate the certification power only to the INS Commissioner, and
three, specify that the merits of the certification is subject to
judicial review.
    This legislation also contains several key provisions from a bill I
introduced last month with the chairman of the Intelligence Committee,
Senator Graham. For instance, the bill: Clarifies the role of the CIA
director as the coordinator of strategies and priorities for how the
government uses its limited surveillance resources; requires that law
enforcement officers who discover foreign intelligence information in
the course of a criminal investigation share that information with the
intelligence community; includes ``international terrorist activities''
in the definition of ``foreign intelligence'' to clarify the
authorities of the CIA; includes a sense of Congress that the CIA
should make efforts to recruit informants in the fight against
terrorism, even if some of those informants may, as is likely the case,
not be ideal citizens; requires a report from the CIA on the
feasibility of establishing a virtual translation center for use by the
intelligence community, so that translators around the country can
assist in investigations taking place far, far away. For instance, this
center would allow a translator living in Los Angeles to assist law
enforcement in New York without even leaving California; and finally,
agreement was reached to require the Attorney General, in consultation
with the CIA Director, to provide training to federal, state and local
government officials to identify foreign intelligence information
obtained in the course of their duties.
 
    In addition, this bill also: Triples the number of Border Patrol,
Customs Service, and INS inspectors at the northern border; authorizes
$50 million to improve INS and Customs technology for monitoring the
northern border and to add equipment on the border; lifts the statute
of limitations on terrorist acts as defined by law where those crimes
resulted in, or created a risk of, death or serious bodily injury.
These crimes include bio-terrorism, attacks against airports or
airplanes, arson or bombings of U.S. facilities, and other terrorist
acts; adds this same list of terrorist crimes certain as predicates for
RICO and money laundering; creates two new bio-terrorism crimes, the
first prohibits certain restricted persons, including nonresident
aliens from countries that support terrorism, from possessing a listed
biological agent or toxin; and the second prohibits any person from
possessing a biological agent, toxin, or delivery system of a type or
in a quantity that, under the circumstances, is not reasonably
justified by a peaceful purpose.
    The Attorney General and the President of the United States have
asked this Congress to give them legislation that will assist in the
war against terrorism, and I am one who believes very strongly that we
should do so, and we should do so quickly.
    This bill is a product of intense negotiations, and I believe that a
good balance has been struck here. Compromises have been reached on the
most controversial provisions, roving wiretap authority; trap and trace
of computer routing information; sharing of grand jury information; and
mandatory detention of aliens suspected of terrorism.
    Although I no longer believe it to be necessary now that these
compromises have been reached, I would support a five-year sunset on
the provisions I just mentioned as a valuable check on the potential
abuse of the new powers granted in the bill.
    But a two-year sunset, such as the one contained in the House bill,
is simply too short to allow law enforcement to accomplish what it
needs to do to rout terrorists from this country.
    The legislation before us contains provisions that could actually
help in the current investigation into Osama bin Laden and his network
in the United States and abroad.
    I urge this Senate to pass this legislation and get it to the
President for his signature. We are in a sustained war against terror,
and we have waited long enough. I
 
                    FISA AND PEN REGISTER/TRAP AND TRACE
 
    Ms. CANTWELL. Mr. President, I would like to raise several concerns
regarding the provisions of this legislation, the USA Act of 2001, that
expand wiretapping authority under the Foreign Intelligence
Surveillance Act of 1978, and amend Federal pen register and trap and
trace authorities.
    Both of these changes purport to improve communication between law
enforcement and intelligence operatives. There is a difference,
however, between facilitating the sharing of information between the
law enforcement and intelligence communities, and blurring the
 
[[Page S10593]]
 
line between the missions of the two communities. Where information is
sought for the purpose of law enforcement, we must ensure that fourth
amendment protections apply. Much of the fear about the legislation is
based on legitimate concern that information gathered ostensibly for
intelligence and defense purposes could be used for law enforcement
purposes. The intelligence community does not prosecute and lock up its
targets; it uses information to intervene against foreign nationals
seeking to harm America. But the law enforcement community has a
different mission, to catch and prosecute criminals in our courts of
law. Because law enforcement acts upon U.S. citizens, it must do so
within the bounds of the Constitution. The differences in these
missions must be acknowledged, and we must be vigilant to maintain the
distinctions.
    We can all agree that the events on September 11 have focused America
on the fight against terrorism, and we applaud the efforts of the
administration in the weeks since that tragic day. Clearly, there were
failures in our investigative network, and this legislation will
address some of those failures, allowing greater sharing of information
that could foil terrorists before they carry out their brutal schemes
against innocent civilians.
    I appreciate Chairman Leahy's tireless efforts to facilitate our
intelligence gathering authorities while preserving our constitutional
rights. The negotiations have been intense, but these are difficult and
divisive issues. Given the time frame, Chairman Leahy's charge has not
been an easy one, but I appreciate the substantial progress he has
made.
    I remain concerned that some of the legislative changes fail to
balance the increased powers to law enforcement against the need to
protect the civil liberties of Americans. With these changes to FISA,
it will be much more likely that the FBI will be able to obtain secret
FISA wiretaps on American citizens. That information may not only be
used for intelligence purposes, but also in a criminal prosecution,
without complying with the normal requirements of a title III wiretap
and the safeguards it provides to adhere to the fourth amendment. Some
have warned that this language leaves room for ``fishing expeditions''
rather than properly authorized law enforcement activities. I would
hope that this is not the case.
    Although the language has been improved from the administration's
original proposal and now would require that ``a significant,'' rather
than simply ``a,'' purpose for the wiretap must be the gathering of
foreign intelligence, the possibility remains that the primary purpose
of the wiretap would be a criminal investigation, without the
safeguards of the title III wiretap law and the protections under the
fourth amendment that those fulfill.
    I would like to ask the Chairman of the Judiciary Committee whether
he interprets this language in this same way.
    Mr. LEAHY. Yes, the Senator from Washington is correct. While
improved, the USA Act would make it easier for the FBI to use a FISA
wiretap to obtain information where the Government's most important
motivation for the wiretap is for use in a criminal prosecution. This
is a disturbing and dangerous change in the law. The Justice Department
concedes that ``the few courts that have addressed the issue have
followed a primary purpose test'', October 1, 2001 Letter from Daniel
J. Bryant, Assistant Attorney General, p. 13.
    I appreciate the administration's agreement to move off its original
position of changing the law to only require the FISA surveillance to
``a'' purpose of collecting foreign intelligence information. Indeed,
the Justice Department's own constitutional analysis provided to the
Committee at the request of our Members does not even attempt to
justify the original proposal, but instead presents argument for why a
change to ``a significant" purpose would be constitutional.
    I remain disappointed with the administration's insistence on forcing
any change on this important statutory requirement. FISA was enacted
for the express purpose of clarifying that different legal standards
apply to those gathering foreign intelligence than to those seeking
criminal evidence. This new provision will blur that distinction, and
it is indeed very problematic in my mind.
    Federal courts have upheld FISA on the basis that what is reasonable
under the fourth amendment may vary when national security is at risk.
Thus, a FISA wiretap does not have to be based on probable cause to
believe a crime has been or is about to be committed, and no notice is
given unless the person is prosecuted. Further, while judges review
warrants on the merits when targets are U.S. persons, the primary
purpose for the wiretap must be the protection of our national
security. Upon satisfaction of that critical condition, the statute
authorized the use of evidence obtained under a FISA wiretap for
criminal prosecution.
    Ms. CANTWELL. Mr. President, although much effort has gone into
narrowing this provision to fit within the bounds of the Constitution,
it would seem to me that this legislation may not stand up to this
test, and thus may fail judicial scrutiny. Regardless, we cannot await
court review. I believe Congress must keep watch over the use of this
provision. May I ask the Chairman, do you agree that, under these
circumstances, it is incumbent upon the committee, which has
jurisdiction over the Department of Justice, to maintain vigilant
oversight of the Department in its use of FISA authorities after
enactment of this legislation?
 
    Mr. LEAHY. I agree with you completely, and you can rest assured that
the Judiciary Committee under my chairmanship will conduct meaningful
oversight, as we already have begun to do over the summer.
    Although FISA requires oversight reporting to the Intelligence
Committees, the law makes clear that other Committees may also have
oversight jurisdiction. Section 108 of FISA, 50 U.S.C. 1808, states,
``Nothing in this title shall be deemed to limit the authority and
responsibility of the appropriate committees of each House of Congress
to obtain such information as they may need to carry out their
respective functions and duties.'' Section 306 of FISA, 50 U.S.C. 1826,
provides for semiannual reports from the Attorney General to the
Intelligence and Judiciary Committees on the number of applications for
physical search orders made, granted, modified, or denied, and the
number of physical searches which involved the property of United
States persons. The Judiciary Committee's responsibility will be
greater under the amendment to FISA, because of the greater authority
to use FISA for law enforcement purposes.
    Ms. CANTWELL. Mr. President, similarly, I am concerned that revisions
to the laws regarding pen registers and trap and trace devices may have
fourth amendment implications. Although modified since we received the
original language from the Administration, the new language could
encourage greater use of technologies such as the FBI's ``Carnivore''
to access information that is protected by the fourth amendment.
    The failure to properly define the term ``address'' in the e-mail
context to exclude information protected by the Fourth Amendment will
haunt us for a long time. And I regret this. Although it certainly can
be said that new technologies are emerging and the definition may need
be flexible, the term ``address'' presently is undefined and new in the
context of our Federal criminal statutes. Because of this ambiguity, we
may see law enforcement authorities take inconsistent approaches to
filtering information pursuant to this new law. There is risk that some
will obtain information, such as ``subject line'' information or URL
codes, that may otherwise be protected by the fourth amendment. There
is certain to be judicial scrutiny of this provision.
    Mr. LEAHY. I agree with Senator Cantwell and thank her for bringing
these concerns to the attention of this body. I share these concerns.
    Ms. CANTWELL. I would like to suggest to the chairman, and I would be
happy to work closely with the Chairman on this, that the General
Accounting Office provide to the Senate Judiciary Committee every six
months a report on the use of the FISA wiretap authorities, and the
expanded pen register and trap and trace authorities, by the Federal
Bureau of Investigation or other agencies within the Department of
Justice. I would certainly not suggest compromising the security of our
 
[[Page S10594]]
 
nation with such a report, so I would be content with closed-session
hearings on the findings of such reports. But only with such oversight
can we reasonably assure our constituents that the use of these new
authorities is not impinging on our fourth amendment rights.
    Mr. LEAHY. I agree with Senator Cantwell and I appreciate her efforts
to suggest restraint at the Department of Justice to avoid misusing the
new authorities we are contemplating using to address terrorism. I
share her view that the GAO should undertake this important assignment
and will work with her and other Senators to see it accomplished. We
all need to make certain that these new authorities are not abused.
    Ms. CANTWELL. I thank the chairman for his diligence in working to
preserve our fundamental rights.
    Mr. ENZI. Mr. President, I am proud to be a co-sponsor of S. 1510,
the ``Uniting and Strengthening America Act'' or ``USA Act.'' This bill
reflects a bipartisan effort to aid law enforcement, immigration, and
the intelligence community in investigating, detaining, and
apprehending suspected terrorists. This legislation follows lengthy
committee inquiry, debate, and revision of legislation Attorney General
Ashcroft proposed a few weeks ago and which sparked national debate
over whether civil rights would be violated.
    During the past few weeks, Senate leaders have been working
tirelessly with Attorney General Ashcroft in order to create a bill
that strengthens our existing laws with respect to apprehending
terrorists, but still protects the civil rights of our citizens. This
is an important mission for Congress. Everyone in America understands
the need for enforcement, immigration and the intelligence community to
have the tools necessary to find terrorists, cut-off their financial
support, and bring them to Justice.
    While I am committed to routing out terrorists here and abroad, I am
equally committed to making sure the rights of innocent U.S. citizens
are not violated. This includes the privacy and property rights our
constitution affords and that make this country so great. I believe
this bipartisan bill does both. This legislation strikes a balance
between protecting our civil rights and assisting Attorney General
Ashcroft and others to do their jobs. While the Senate and House may
later debate some of the provisions in this legislation, be assured
that every member of Congress is united in this mission. We are totally
committed to passing anti-terrorism legislation and apprehending the
bin Ladens of this world.
    Mr. WELLSTONE. Mr. President, this is one of the most important
pieces of legislation we will consider during this Congress. The
horrific loss of life and destruction that occurred on September 11,
the crime against humanity, changed us as a country. The Uniting and
Strengthening America Act is an opportunity to help ensure that such
terrorist attacks do not occur again. We need to improve all aspects of
our domestic security, including by enhancing our intelligence
capacities so that we can identify possible future attacks in their
planning stages and prevent them from happening. We must be vigilant
and willing to invest the resources and time required to gather the
information that we need to protect ourselves and our way of life.
    I appreciate the enormous amount of time and energy that my colleague
from Vermont and others have put into this legislation. They have done
their best to balance the risk of further terrorist attacks with
possible risks to civil liberties. The bill updates and improves a
number of existing laws, it creates important new security statutes,
and it authorizes new money for programs that will bring much needed
relief to victims of terrorist attacks. I have reservations about
certain provisions of the bill as they might affect civil liberties. I
wish that it were more tightly targeted to address only actions
directly related to terrorism or suspected terrorism. And I hope that
by the time it passes as a conference report the bill will contain a
sunset provision. But I support the bill today as a step toward
conference, and as an important and needed strengthening of our
security from horrific attacks such as that of September 11.
    The bill expands the Regional Information Sharing Systems Program to
promote information sharing among Federal, State and local law
enforcement agencies in their anti-terrorism efforts. State and local
law enforcement have a critical role to play in preventing and
investigating terrorism, and this bill provides them benefits
appropriate to such duty. The bill streamlines and expedites the Public
Safety Officers' Benefits application process for family members of
fire-fighters, police officers and other emergency personnel who are
killed or suffer a disabling injury in connection with a future
terrorist attack. And it raises the total amount of the Public Safety
Officers' Benefit Program payments from approximately $150,000 to
$250,000.
    This bill will also make an immediate difference in the lives of
victims of terrorism and their families. It refines the Victims of
Crime Act and by doing so improves the way in which its crime fund is
managed and preserved. It replenishes the emergency reserve of the
Crime Victims Fund with up to $50 million and improves the mechanism to
replenish the fund in future years. The USA Act also increases security
on our Northern Border, including the border between Canada and my
State of Minnesota. It triples the number of Border Patrol, Customs
Service and INS inspectors at the Northern Border and authorizes $100
million to improve old equipment and provide new technology to INS and
the Customs Service at that border.
    On the criminal justice side, the bill clarifies existing
``cybercrime'' law to cover computers outside the United States that
affect communications in this country and changes sentencing guidelines
in some of these cases. It provides prosecutors betters tools to go
after those involved in money-laundering schemes that are linked to
terrorism, and it adds certain terrorism-related crimes as predicates
for RICO and money-laundering. It creates a new criminal statute
targeting acts of terrorism on mass transportation systems, and it
strengthens our Federal laws relating to the threat of biological
weapons. The bill will enhance the Government's ability to prosecute
suspected terrorists in possession of biological agents. It will
prohibit certain persons, particularly those from countries that
support terrorism, from possessing biological agents. And it will
prohibit any person from possessing a biological agent of a type or
quantity that is not reasonably justified by a peaceful purpose.
 
    The bill also broadens the authority of the President to impose
sanctions on the Taliban regime. Regarding criminal penalties for those
convicted of terrorist acts, it provides a fair definition of what
constitutes ``terrorism'' and ensures that penalties more closely
reflect the offenses committed by terrorists. Again, I'd like to thank
my colleague from Vermont and others who worked on these penalty
provisions. The administration's initial proposal was too broad in this
area, and the current bill provides a fair alternative.
    I strongly support these needed provisions. Still, I do have concerns
about the possible effect on civil liberties of the bill's measures to
enhance electronic surveillance and information sharing of criminal
justice information, while at the same time reducing judicial review of
those actions. I also hope that the bill's provisions to expand the
Government's ability to conduct secret searches, as well as searches
under the Foreign Intelligence Surveillance Act, will not be abused.
    I believe we will need to monitor the use of new authorities provided
to law enforcement agents to conduct surveillance of internet
communications. The same is true of the bill's changes to laws allowing
the sharing of confidential criminal justice information with various
Federal agencies. I would prefer the requirement of judicial review
before disclosure, which is contained in the House version of this
bill. Likewise, I believe the House of Representatives' decision not to
include this bill's expansion of the Government's ability to conduct
secret, or so-called ``Sneak-n-Peek,'' searches, was correct. I hope
the safeguards against abuse we have added in our bill--such as the
prohibition against the Government seizing any tangible property or
stored electronic information unless it makes a showing of reasonable
necessity, as well as the requirement that notice be given within a
reasonable time of the
 
[[Page S10595]]
 
execution of a sneak-n-peak warrant--will prove sufficient.
    The bill broadens the Foreign Intelligence Surveillance Act, FISA, by
extending FISA surveillance authority to criminal investigations, even
when the primary purpose is not intelligence gathering. The bill limits
this ability by authorizing surveillance only if a significant purpose
of it is to gather intelligence information. I hope this new FISA
authority will be used for the purpose of investigating and preventing
terrorism or suspected terrorism, and not for other domestic purposes.
    Mr. President, we have done our best in this bill to maximize our
security while minimizing the impact some of these changes may have on
our civil liberties. Nearly all of us have probably said since
September 11 that if that day's terror is allowed to undermine our
democratic principles and practices, then the terrorists will have won
a victory. We should pass this bill today. And we should also commit
ourselves to monitoring its impact on civil liberties in the coming
months and years.
    I believe a sunset provision that ensures that review is essential.
The bill before us today is good, but there are provisions that are too
broad. There are parts that should be more narrowly focused on
combating terrorism. I hope these are the concerns that will be
addressed in conference. Mr. President, our challenge is to balance our
security with our liberties. While it is not perfect, I believe we are
doing that in this bill.
    Mr. KOHL. Mr. President, I rise today to support S. 1510, the anti-
terrorism bill.
    To more effectively fight terrorism and those who perpetrate it, we
need to improve law enforcement's intelligence gathering capability and
enhance their ability to investigate and prosecute suspected
terrorists. This measure does both. But let's also be realistic about
the act. It will not solve all of law enforcement's problems in
combating terrorism nor will it severely compromise our civil
liberties. The truth lies somewhere in between.
    The strongest proponents of the legislation argue that the bill
primarily consists of long overdue updates of current laws, updates
necessary because technology advances have allowed criminals and
terrorists to stay a step, or two, ahead of law enforcement. Updates
are necessary because the inability of Federal authorities to share
information on suspected terrorists hampers criminal investigations.
Updates are necessary because the penalties and limitations periods
governing many terrorist crimes have been woefully inadequate. All of
this is true. And for these reasons, I support the bill.
    But, we shouldn't be lulled into thinking that this measure will
solve our problems. Indeed, I asked the Attorney General whether the
new powers granted in this bill could have prevented the events of
September 11. He answered me honestly, saying that he could not make
that guarantee. Yet, he added that these new tools would make it less
likely that terrorism could strike in the same way again.
    Tougher laws and penalties are an important part of our strategy to
combat terrorism. That plan must also include more and better agents
dedicated to gathering intelligence, an aggressive approach to
preventing attacks, and patience from all Americans. Patience is
essential because we will need to understand that we might have to
temper our freedoms slightly in an effort to guarantee them.
    Critics of this legislation caution us to be wary of compromising our
liberties in an effort to make our Nation safer. They comment that
sacrificing freedom gives the terrorists a victory. Those warnings do
have merit.
    Some of this bill's provisions do risk our civil liberties and ask
Americans to sacrifice some privacy. This bill grants our prosecutors a
great deal of discretion in enforcing the law and asks Americans to
have faith that this power will not be abused. Most of us would rather
not have our civil liberties depend on someone else's discretion.
    That's why I believe many of this bill's provisions should lapse in
two years and then be reconsidered by Congress. The House version of
this bill reconciles the need for tough law enforcement with the
concern for our civil liberties by sunsetting some of the most
objectionable portions of the bill in two years. That is a good idea.
Two years from now, we can take stock of where we are, how this bill
has affected us, and whether the trust we show in law enforcement is
warranted. I hope that the final version of this bill will adopt such a
sensible approach.
    I have never doubted that our country's law enforcement is the best
in the world. They are dedicated, creative, committed, and decent. From
local beat officers to the Director of the FBI, every one of them has a
vital role to play in combating terrorism. We believe this bill will
help them prevent terrorism when possible. It will help them catch
wrongdoers. It will cut wrongdoers off from their support networks. It
will guarantee stiff punishment for their criminal acts. It will deter
others from following in the terrorists' footsteps. It is our
responsibility to give law enforcement the tools they need in an
increasingly complex world. It is their responsibility to use them
wisely.
    Ms. SNOWE. Mr. President, I rise today in support of the
antiterrorism legislation we have before us.
    First, let me say I am pleased to have also worked in conjunction
with Senator Bond and Senator Conrad in supporting their legislation
entitled ``The Visa Integrity and Security Act.'' This bill addresses
many of the concerns I have, such as the importance of information
sharing among Government law enforcement and intelligence agencies with
the State Department and tightening tracking controls on those entering
the United States on student visas, including those attending flight
schools. These are critical issues, and I commend both Senators for
their efforts.
    Today, our men and women in uniform are on the frontlines in the war
against terrorism. We salute their willingness to put themselves in
harm's way in defense of freedom, and we pray for their safety and
well-being. Here at home, we are working to secure our nation, and that
is why I am pleased that we will pass this legislation in the Senate
that will take strong measures to help prevent further terrorist
attacks on American soil.
    With this legislation, we will take reasonable, constitutional steps
to enhance electronic and other forms of surveillance, without
trampling on the rights of Americans. We will also institute critical
measures to increase information sharing by mandating access to the
FBI's National Crime Information Center, or NCIC, by the State
Department and INS.
    In our war against terrorism, Americans stand as one behind our
President. It is equally critical that, in the all-out effort to
protect our homeland, Federal agencies be united in securing American
soil.
    In that light, President Bush made exactly the right decision when he
created the Office of Homeland Security, a national imperative in the
wake of the horrific tragedies of September 11, and I commend him for
appointing my former colleague, Pennsylvania Governor Tom Ridge, as its
Director.
    With a seat at the Cabinet table, Governor Ridge will literally be at
the President's side, giving him the standing that will be required to
remove jurisdictional hurdles among the 40-plus agencies he will be
responsible for coordinating. Now, we will assist in that coordination
by allowing INS and the State Department access to the information they
need to make informed decisions about who we will grant entrance into
this country.
    I saw firsthand the consequences of serious inadequacies in
coordination and communication during my 12 years as ranking member of
the House Foreign Affairs International Operations Subcommittee and
Chair of the subcommittee's Senate counterpart. In fact, I recently
wrote an op-ed piece concerning my findings during that time and I
would like to submit the entire text of that piece for the Record.
    In conducting oversight of Embassy security as well as visa and
consular operations, I became extensively involved with the issue of
terrorism, co-drafting antiterrorism legislation with former
Representative Dan Mica in the wake of 1983 and 1984 terrorist attacks
against the U.S. Embassy and Marine barracks in Lebanon--traveling to
Belgrade, Warsaw, and East Berlin to press government officials into
helping
 
[[Page S10596]]
 
stem the flow of money to the terrorist Abu Nidal and his
organization--and investigating entry into the United States by radical
Egyptian cleric Sheikh Omar Abdel Rahman, mastermind of the 1993 World
Trade Center bombing.
    As far back as our hearings on the 1985 Inman Report, commissioned by
then-Secretary of State George Shultz in response to the attacks in
Lebanon, it was abundantly clear that improved coordination and
consolidation of information from agencies such as the FBI, CIA, DEA,
Customs, INS and the State Department would be an essential step toward
removing a vulnerability in our national security. That point was
tragically underscored by our discovery that, astoundingly, in the
period since 1987 when Sheikh Rahman was placed on the State Department
lookout list, the Sheikh entered and exited the United States five
times totally unimpeded.
    But it got even worse. Even after the State Department formally
issued a certification of visa revocation, he was granted permanent
residence status by the INS. When he was finally caught on July 31,
1991, reentering the United States, he was immediately released back
into U.S. society to allow him to pursue a multi-year appeal process.
    As unbelievable as that may sound, just as unfathomable is the fact
that, even after the 1993 attack on the World Trade Center, membership
in a terrorist organization in and of itself--with the exception of the
PLO--was not sufficient grounds for visa denial. Rather, the
Immigration Act of 1990 required the Government to prove that an
individual either was personally involved in a terrorist act, or
planning one.
    This absurd threshold made it almost impossible to block individuals,
such as Sheikh Rahman, from entering the country legally. Legislation I
introduced in 1993 removed that bureaucratic and legal obstacle--yet it
took nearly 3 more years to enact it as part of the Anti-Terrorism and
Effective Death Penalty Act of 1996.
    However, provisions from my bill were enacted in 1994 to respond to
the trail of errors we uncovered requiring modernization in the State
Department's antiquated microfiche ``lookout'' system to keep dangerous
aliens from entering the United States.
    This system required manual searches, was difficult to use, and was
subject to error. The language I crafted required the State Department
to replace the old systems with one of two forms of state-of-the-art
computerized systems. Visa fees were even increased for non-immigrants
to pay for the upgrades.
    Recognizing the need to mate these new technologies with the need for
the most comprehensive, current and reliable information, we also
attempted to address the issue of access. This was all the more
pressing because, in 1990, the Justice Department had ruled that
because the State Department was not a ``law enforcement agency,'' it
no longer had free access to the FBI's National Crime Information
Center, NCIC.
    This system, which maintains arrest and criminal information from a
wide variety of Federal, State, and local sources as well as from
Canada, was used by the State Department to deny visas. Tellingly,
after it lost access to the NCIC, the visa denial rate for past
criminal activities plunged a remarkable 45 percent--stark evidence
that we can't afford to tie the hands of America's overseas line of
defense against terrorism.
    Incredibly, while intelligence is frequently exchanged, no law
requires agencies like the FBI and CIA to share information on
dangerous aliens with the State Department. To address this, my 1993
bill also designated the State Department a ``law enforcement agency''
for purposes of accessing the NCIC as well as other FBI criminal
records when processing any visa application, whether immigrant or non-
immigrant.
    Unfortunately, a revised provision also enacted in 1994 only provided
the State Department with free access to these FBI resources for
purposes of processing immigrant visas--dropping my requirement for
non-immigrant visas eventually used by all 19 suspected hijackers.
    Also of note, we discovered later in trying to understand some of
what's gone wrong that even that limited law was sunsetted in 1997 due
to a provision added by the House-Senate conference on the Foreign
Relations Authorization Act for FY 1994-1995--a conference of which I
was not a member. Subsequently, that law was extended to 1998 in the
Commerce-Justice-State Appropriations bill for fiscal year 1998, and
then was allowed to expire. This happened despite my legislation
enacted in 1996 repealing the requirement that visa applicants be
informed of the reason for a denial--a provision that law enforcement
agencies legitimately believed could impede ongoing investigations, or
reveal sources and methods. Thus, today, information sharing remains
optional and ad hoc.
    Currently, U.S. posts check the lookout database called the
``Consular Lookout and Support System--Enhanced,'' or CLASS-E, prior to
issuing any visa. CLASS-E contains approximately 5.7 million records,
most of which originate with U.S. Embassies and consulates abroad
through the visa application process. The INS, DEA, Department of
Justice, and other Federal agencies also contribute lookouts to the
system, however, this is voluntary.
    To further fortify our front-line defenses against terrorism--to turn
back terrorists at their point of origin--information sharing should be
mandatory, not voluntary. That is why I introduced a bill that would
require that law enforcement and the intelligence community share
information with the State Department and INS for the purpose of
issuing visas and permitting entry into the United States. And while my
bill would have gone farther than the legislation before us--by
including the DEA, CIA, Customs and the Department of Defense in the
mandated information-sharing network--I am pleased that this bill we
are considering does mandate access to the NCIC by INS and the State
Department.
    Clearly, the catastrophic events of September 11 have catapulted us
into a different era, and everything is forever changed. We must move
heaven and earth to remove the impediments that keep us from maximizing
our defense against terrorism. The bottom line is, if knowledge is
power, we are only as strong as the weakest link in our information
network--therefore, we must ensure that the only ``turf war'' will be
the one to protect American turf.
    That is why we need a singular, Cabinet-level authority that can help
change the prevailing system and culture, and why we need legislation
to help them do it. Ironically, the most compelling reason for an
Office of Homeland Security is also its greatest challenge--the need to
focus on the ``three C's'' of coordination, communication and
cooperation so that all our resources are brought to bear in securing
our Nation.
    Winston Churchill, in a 1941 radio broadcast, sent a message to
President Roosevelt saying, ``Give us the tools and we will finish the
job.'' I have no doubt that, given the tools, the men and women of our
Embassies throughout the world will get the job done and help us build
a more secure American homeland.
    Finally, once a visa is issued at the point of origin, we should be
ensuring that it's the same person who shows up at the point of entry.
The fact is, we don't know how many--if any--of the 19 terrorists
implicated in the September 11 attacks entered the United States on
visas that were actually issued to someone else.
    Currently, once a visa is issued by the State Department, it then
falls to INS officials at a port-of-entry to determine whether to grant
entry. The problem is, no automated system is utilized to ensure that
the person holding the visa is actually the person who was issued the
visa. In other words, the INS official has to rely solely on the
identification documents the person seeking entry is carrying--making
that officials job that much more difficult.
    There is a better way, and legislation I introduced would require the
establishment of a fingerprint-based check system to be used by State
and INS to verify that the person who received the visa is the same
person at the border crossing station trying to enter the country.
    Simply put, it requires the State Department and INS to jointly
create an electronic database which stores fingerprints--and that other
agencies may use as well. When a foreign national receives a visa, a
fingerprint is taken, which then is matched against the fingerprint
taken by INS upon entry to
 
[[Page S10597]]
 
the United States. This is a common sense approach that would take us
one step closer to minimizing the threat and maximizing our national
security.
    The fact of the matter is, fingerprint technology--one part of the
larger category of biological factors that can be used for
identification known as biometrics--is not new. In fact, the U.S.
Government has already employed biometrics to verify identities at
military and secret facilities, at ports-of-entry, and for airport
security, among many others.
    The INS has already announced it was beginning to implement the new
biometric Mexican border crossing cards as required by 1996 Illegal
Immigrations Reform and Immigrant Responsibility Act. These cards have
the individual's fingerprint encoded on them and are matched to the
fingerprint of the person possessing the card at a U.S. port-of-entry.
    This surely does not sound all that much different than the
legislation I have proposed. I am pleased the bill before us at least
starts us down the road toward implementing biometric technologies by
requiring a review of the feasibility of instituting such technologies,
and I hope this can be achieved as soon as possible.
    Despite areas where I might have wished to strengthen this bill even
further, this legislation is vital to our national security, and I will
be proud to support it. The war on terrorism is a war on myriad fronts.
Some of the battles will be great in scale, many will be notable by
what is not seen and by what doesn't happen--namely, that individuals
who pose a serious threat to this Nation never see these shores and
never set foot on our soil.
    Many of our greatest victories will be measured by the attacks that
never happen--in battles we win before they ever have a name--in
conflicts we prevent before they ever claim one American life. I hope
we will pass and enact legislation that will help make that possible. I
thank the Chair.
    Mr. KENNEDY. Mr. President, a month ago today, America was attacked
by vicious terrorists bent on doing all they can to undermine our
Nation, our freedoms, and our way of life. But they have failed. Our
country has never been more united behind the ideals that make us
strong, or more committed to protecting our security.
    In recent weeks, we have sought international cooperation and
received it. We have asked our men and women in uniform to protect and
defend our Nation, and they are doing it superbly. We are equally
committed to preserving our freedoms and our democracy.
    The goal of this antiterrorism legislation is to achieve greater
coordination between the law enforcement and intelligence communities,
while protecting the civil liberties of American citizens. We must give
the Secretary of State and the Attorney General the tools to stop
terrorists from entering our country, while guaranteeing America's
proud tradition of welcoming immigrants from around the world.
    The terrorist attacks of September 11 make it an urgent priority to
act as soon as possible. The INS and the State Department must have the
technology and intelligence information they need to make quick and
accurate decisions on whether to admit anyone to the United States.
    We must also take urgent steps to improve security at our borders
with Canada and Mexico, to keep terrorists from entering the country
illegally.
    These improvements in the immigration laws can make a huge and
immediate difference. Immigration security is an indispensable part of
our national security.
    As we protect our country, we must also protect the founding
principles that have made our nation great. We must respond to the
current crisis in ways that protect the basic rights and liberties of
our citizens and others residing legally in the United States.
    Currently, the INS has broad authority to act against any foreign
national who supports terrorism. With respect to visitors, foreign
students, and other non-immigrants, as well as immigrants already in
this country, the Federal Government has a broad range of enforcement
tools. The INS may detain certain non-citizens if they pose a threat to
national security or are a flight risk, and they may do so on the basis
of secret evidence. The INS may also deport any alien who has engaged
in terrorist activity, or supported terrorist activity in any way. If
the INS has the resources to use its existing authority fully and
fairly, we will be far closer to ensuring our national security.
    Nonetheless, loopholes may exist in our current laws, and we should
close them. In recent weeks, many of us in Congress have worked closely
with the administration to strengthen the law without creating serious
civil liberties concerns. Although we have made progress, more remains
to be done. I continue to be concerned that the Attorney General has
the authority to detain even permanent residents without adequate
cause, and with very few due process protections.
    We must be cautious that new measures are not enacted in haste,
undermining current law in critical and constitutionally troubling
respects. We must avoid enacting legislation with vague and overly
broad definitions or legislation that punishes individuals exercising
constitutionally protected rights.
    Consistent with these basic principles, it is essential for Congress
to strengthen the criminal code in response to the September 11
attacks. We must increase penalties for terrorists and those who
support terrorist activity. We must punish those who possess biological
weapons and commit acts of violence against mass transportation
systems. We must also ensure that victim assistance and victim
compensation programs are able to help all the victims of the September
11 attacks. In fact, the current bill makes several important reforms
to the Victim of Crimes Act to achieve that goal.
    I am concerned, however, that by authorizing foreign-intelligence
searches where foreign-intelligence gathering is only ``a significant
purpose''--not the sole or primary purpose--of the search, the bill may
well make the Foreign Intelligence Surveillance Act unconstitutional
under the fourth amendment.
    We must also ensure that, in acting to expand the powers of law
enforcement to obtain student educational records for the investigation
and prosecution of terrorism, we adequately safeguard the interests of
innocent students. We should not permit schools and colleges to
transfer student records to law enforcement agencies indiscriminately.
We have worked closely with the administration to develop measures that
strike a balance between the legitimate interests of law enforcement
and the privacy of students.
    In the wake of the September 11 attacks, we have also seen a
disturbing increase in hate-motivated violence directed at Arab
Americans and Muslim Americans. The Department of Justice is currently
investigating over 90 such incidents, including several murders.
    We need to do more to combat the acts of hate that cause many Arab
and Muslim Americans to live in fear. Under current law, the Department
of Justice cannot prosecute such cases as hate crimes unless it can
prove that the victim was engaged in one of six ``federally protected
activities''--such as voting or attending a public university--when the
crime occurred. This requirement is an unwise and unnecessary
constraint on effective law enforcement and may hamper the Department's
ability to prosecute some of the cases it is now investigating.
    The bipartisan hate crimes bill passed by the Senate last year and
approved again by the Judiciary Committee in July would remove the
``federally protected activity'' requirement from the law--making it
easier for the Justice Department to prosecute hate crimes--while still
ensuring that the Federal Government is only involved when necessary
and appropriate.
    Congress and the President must send a strong and unequivocal message
to the American people that hate-motivated violence in any form will
not be tolerated in our nation.
    There are provisions in the Uniting and Strengthening America Act
that do not strike the correct balance between law enforcement
authority and civil liberties protection. However, I am confident that
working with the House of Representatives and the administration, we
can enact a final bill that meets these important concerns.
    We can send the President a tough, comprehensive, and balanced anti-
terrorism bill. The important work we do in the coming days will
strengthen
 
[[Page S10598]]
 
America, and make America proud of its ideals as well.
    Mr. KERRY. Mr. President, I am very pleased to have the opportunity
to speak for a few minutes about the Uniting and Strengthening America,
USA, Act that is before the Senate today. This legislation reflects the
hard work of the Senate Banking Committee and the Senate Judiciary
Committee, and I want to thank them for their commitment to ensuring
that Congress address this legislation as quickly as possible and for
paying great attention to the civil rights and liberties of the
American people.
    Right now our Nation is strongly united. We are bound together by,
among other things, a desire to see justice brought to those who
planned the terrorist attacks and those who aided and abetted the
terrorists. And Americans are united by our desire to prevent future
terrorist attacks. At this time, more so than at any time in the past
40 years, the American people are standing firmly behind the Federal
Government and they trust government to do the right thing. The
American people support the idea that we must provide the FBI and the
Department of Justice will the tools necessary to punish the
perpetrators of the terrorist attacks and to prevent future attacks.
    But as much as the American people seek a just resolution to the acts
of terror, they are adamant about protecting their rights and
liberties. We have heard it time and again since September 11: our
Nation must be secure, but must not become so at the expense of our
freedoms, our rights, and our liberties. We must not let the American
people down.
    I want to thank Senator Leahy for his leadership on this legislation
and his concern with important Constitutional principles, such as due
process and unreasonable search and seizure. At Senator Leahy's urging,
the administration's anti-terrorism proposal was carefully and closely
analyzed and Senator Leahy did not yield to the political pressures
that threatened to push this legislation through the Congress without
its careful consideration. I believe that the bill before the Senate is
vastly improved from the proposal that the administration sent up, and
I appreciate that important changes were made.
    Though I am grateful that important changes have been made to the
Senate bill, I am still troubled by certain provisions in the
legislation which fail to strike the proper balance between the need
for security and the need for civil liberties. Moving an anti-terrorism
bill through the Congress in a timely fashion is critically important,
particularly in light of the ongoing air strikes in Afghanistan. We all
know that a real threat exists for future terrorist attacks in this
country and passing legislation that helps the Federal Government
prevent those attacks is crucial. I support the process, I support
moving this legislation forward, and I will vote for it. But I also
believe that the bill that passed the House better balances our civil
liberties and the Federal Government's need for greater surveillance
powers, and I am hopeful that the bill that emerges from the conference
committee retains some of these provisions. I am disturbed by comments
made yesterday by the administration in which swift consideration by
both houses of Congress of the Senate bill was urged. This legislation
deserves the full measure of our attention and should not be hastily
dispensed with when the threat to our most cherished civil liberties is
so great.
    The wide-ranging legislation before us would enhance domestic
surveillance powers, stiffen penalties for terrorism, increase the
penalties for money-laundering, and make it easier for law enforcement
and intelligence agencies to share information. There was broad
agreement on some elements of the administration's anti-terrorism
package, such as the need to update our anti-terrorism laws to take
account of new technologies--such as cell phones--and to ensure that
counter-terrorism investigators wield the same powers that apply to
drug trafficking and organized crime. But agreement was more difficult
to reach on other issues, like detaining foreign nationals, and I am
pleased that we are in a position to move forward on the legislation.
    I am also pleased that this package includes a bill, which I
sponsored, that will provide the tools the U.S. needs to crack down on
international money laundering havens and protect the integrity of the
U.S. financial system from the influx of tainted money from abroad.
This legislation was part of a package of anti-money laundering
provisions that unanimously passed the Senate Banking Committee last
week.
    Today, the global volume of laundered money is estimated to be 2 to 5
percent of global Gross Domestic Product, between $600 billion and $1.5
trillion. The effects of money laundering extend far beyond the
parameters of law enforcement, creating international political issues
and generating domestic political crises.
    It is becoming more and more apparent that Osama bin Laden's
terrorist network, known as al Qaida, provided assistance to the
hijackers who attacked the World Trade Center and the Pentagon with
funding that was transported from the Middle East to the United States
through the global financial system. Al-Qaida has, for years, developed
a worldwide terrorist network by taking advantage of an open system of
international financial transactions.
    The United States has declared a war on terrorism. This new war is
going to be unlike anything that we have ever engaged in previously. If
we are to lead the world in the fight against terror, we must insure
that our own laws are worthy of the difficult task ahead.
    The International Counter-Money Laundering and Foreign Anti-
corruption Act of 2001, which I sponsored and which has been included
in this legislation, will stop the flow of assets through the
international financial system that have been used by bin Laden, the al
Qaeda terrorist network and other terrorist groups.
    The United States has the largest and most accessible economic
marketplace in the world. Foreign financial institutions and
jurisdictions must have unfettered access to markets to effectively
work within the international economic system. The goal of this
legislation is to give the Treasury Secretary, in conjunction with our
allies in the European Union and the Financial Action Task Force, the
authority to leverage the power of our markets to force countries or
financial institutions with lax money laundering laws or standards to
reform them. If they refuse, the Secretary will have the authority to
deny foreign financial institutions or jurisdictions access to the
United States marketplace. This will help stop international criminals
from laundering the proceeds of their crimes into the United States
financial system or using the proceeds to commit terrorist acts.
 
    Specifically, the bill will give the Secretary of the Treasury--
acting in consultation with other senior government officials--the
authority to designate a specific foreign jurisdiction, foreign
financial institution, or class of international transactions as being
of ``primary money laundering concern.'' Then, on a case-by-case basis,
the Secretary will have the option to use a series of new tools to
combat the specific type of foreign money laundering threat we face. In
some cases, the Secretary will have the option to require banks to
pierce the veil of secrecy behind which foreign criminals hide. In
other cases, the Secretary will have the option to require the
identification of those using a foreign bank's correspondent or
payable-through accounts. If these transparency provisions were deemed
to be inadequate to address the specific problem identified, the
Secretary will have the option to restrict or prohibit U.S. banks from
continuing correspondent or payable-through banking relationships with
money laundering havens and rogue foreign banks. Through these steps,
the Secretary will help prevent laundered money from slipping
undetected into the U.S. financial system and, as a result, increase
the pressure on foreign money laundering havens to bring their laws and
practices into line with international anti-money laundering standards.
    The bill provides for actions that will be graduated, discretionary,
and targeted, in order to focus actions on international transactions
involving criminal proceeds, while allowing legitimate international
commerce to continue to flow unimpeded.
 
[[Page S10599]]
 
    It provides a clear warning to those who have assisted or unwittingly
assisted those involved in the al Qaeda network or other terrorist
organizations in laundering money. The United States will take whatever
actions are necessary, including denying foreign banks and
jurisdictions access to the United States economy, in order to stop
terrorists and international criminal networks from continuing to
launder money through the international financial system.
    Passage of this legislation will make it much more difficult for new
terrorist organizations to develop. During the 1980s, as Chairman of
the Senate Permanent Subcommittee on Investigations, I began an
investigation of the Bank of Credit and Commerce International (BCCI),
and uncovered a complex money laundering scheme involving billions of
dollars. Fortunately, BCCI was forced to close and we were able to
bring many of those involved in to justice. However, as we have learned
since the closing of BCCI, Osama bin Laden had a number of accounts at
BCCI and we had dealt him a very serious economic blow. So as we
consider this bill as a response to recent attacks, we must not lose
sight of the potential this legislation will have to stop the
development of terrorist organizations in the future.
    With the support of the United States and the European Union, the
Organization of Economic Cooperation and Development has begun a
crackdown on tax havens by targeting 36 jurisdictions which it said
participate in unfair tax competition and undermine other nations' tax
bases. The OECD approach does not punish countries just for having low
tax rates, instead, it looks for tax systems that have a lack of
transparency, a lack of effective exchange of information and those
countries that have different tax rules for foreign customers than for
its own citizens. Countries with these types of tax systems assist
terrorists and international criminal organizations looking to hide
money that was derived from the sale of drugs, weapons and other
criminal enterprises that have already been laundered in the
international financial system.
    Mr. President, earlier this evening my colleague Senator Feingold
offered an amendment to the section of the USA Act that deals with the
interception of computer trespass communications. This amendment, at
its core, was intended to prevent law enforcement from abusing their
authority to monitor computer activity. The Senator from Wisconsin's
amendment would have limited the amount of time that law enforcement
could monitor suspicious activity without a court order to 96 hours,
after which time investigators would have to obtain a warrant for
continued surveillance. I support the intent of this amendment, and
regret that I felt compelled vote to table the amendment. I voted to
table the amendment for two reasons: First, I was concerned that the
amendment was overly restrictive because it prevented law enforcement
from investigations unrelated to the computer trespass. My concern is
that law enforcement authorities would, for example, be able to monitor
activity which permitted a computer hacker to establish a ``dead drop''
zone for terrorists to post messages, but would not be able to monitor
the content of those messages.
    I also voted to table Senator Feingold's amendment because I strongly
believe that we must move forward with this anti-terrorism legislation.
Just today the FBI issued a statement warning of terrorist attacks and
put law enforcement on the highest alert. I believe these serious
threats to our security justify our this legislation swiftly. But I
sincerely hope that an acceptable compromise can be reached--on this
and on other issues--in the final legislation.
    This legislation is a crucial step toward limiting the scourge of
money laundering and to stop the development of international criminal
organizations. It is my hope that the Congress will be able to develop
anti-terrorism legislation that will provide needed protections of our
citizens without eliminating any of our cherished individual liberties.
    Ms. SNOWE. Mr. President, in the war against terrorism, Americans
stand as one behind our President. Now, in the all-out effort to
protect our homeland, Federal agencies must be united in securing
American soil.
    In that light, President Bush made exactly the right decision when he
created the Office of Homeland Security--a national imperative in the
wake of the horrific tragedies of September 11--and I commend him for
appointing my former colleague, Pennsylvania Governor Tom Ridge, as its
director. With a seat at the Cabinet table, Governor Ridge will
literally be at the President's side, giving him the standing that will
be required to remove jurisdictional hurdles among the forty-plus
agencies he will be responsible for coordinating.
    I saw firsthand the consequences of serious inadequacies in
coordination and communication during my twelve years as ranking member
of the House Foreign Affairs International Operations Subcommittee and
Chair of the subcommittee's Senate counterpart. In conducting oversight
of embassy security as well as visa and consular operations, I became
extensively involved with the issue of terrorism, co-drafting anti-
terrorism legislation with former Representative Dan Mica, Florida, in
the wake of 1983 and 1984 terrorist attacks against the U.S. embassy
and Marine barracks in Lebanon; traveling to Belgrade, Warsaw, and East
Berlin to press government officials into helping stem the flow of
money to the terrorist Abu Nidal and his organization; and
investigating entry into the United States by radical Egyptian cleric
Sheikh Omar Abdel Rahman, mastermind of the World Trade Center bombing
in 1993.
    As far back as our hearings on the 1985 Inman Report, commissioned in
response to the attacks in Lebanon, it was abundantly clear that
improved coordination and consolidation of information from agencies
such as the FBI, CIA, DEA, Customs, INS and the State Department would
be an essential step toward removing a vulnerability in our national
security. That point was tragically underscored by our discovery that,
astoundingly, in the period since 1987 when Sheikh Rahman was placed on
the State Department lookout list, the Sheikh entered and exited the
U.S. five times totally unimpeded. Even after the State Department
formally issued a certification of visa revocation, he was granted
permanent residence status by the INS. When he was finally caught on
July 31, 1991, reentering the United States, he was immediately
released back into U.S. society to allow him to pursue a multi-year
appeal process.
    Just as unbelievable is the fact that, even after the 1993 attack on
the World Trade Center, membership in a terrorist organization in and
of itself--with the exception of the PLO--was not sufficient grounds
for visa denial. Rather, the Immigration Act of 1990 required the
Government to prove that an individual either was personally involved
in a terrorist act, or planning one. This absurd threshold made it
almost impossible to block individuals, such as Sheikh Rahman, from
entering the country legally. Legislation I introduced in 1993 removed
that bureaucratic and legal obstacle--yet it took nearly 3 more years
to enact it as part of the Anti-Terrorism and Effective Death Penalty
Act of 1996.
    Further, to respond to the trail of errors we uncovered, provisions
from my bill were enacted in 1994 requiring modernization in the State
Department's antiquated microfiche ``lookout'' system to keep dangerous
aliens from entering the United States. This system required manual
searches, was difficult to use, and was subject to error. The language
I crafted required State to replace the old systems with one of two
forms of state-of-the-art computerized systems. Visa fees were even
increased for non-immigrants to pay for the upgrades.
    Recognizing the need to mate these new technologies with the need for
the most comprehensive, current and reliable information, we also
attempted to address the issue of access. This was all the more
pressing because, in 1990, the Justice Department had ruled that
because the State Department was not a ``law enforcement agency'', it
no longer had free access to the FBI's National Crime Information
Center. This system, which maintains arrest and criminal information
from a wide variety of federal, state, and local sources as well as
from Canada, is used by the State Department to deny visas. Tellingly,
 
[[Page S10600]]
 
after it lost access to the NCIC, the visa denial rate for past
criminal activities plunged a remarkable 45 percent--stark evidence
that we can't afford to tie the hands of America's overseas line of
defense against terrorism.
    Incredibly, while intelligence is frequently exchanged, no law
requires agencies like the FBI and CIA to share information on
dangerous aliens with the State Department. To address this, my 1993
bill also designated the State Department a ``law enforcement agency''
for purposes of accessing the NCIC as well as other FBI criminal
records when processing any visa application, whether immigrant or non-
immigrant.
    Unfortunately, a revised provision also enacted in 1994 only provided
the State Department with free access to these FBI resources for
purposes of processing immigrant visas--dropping my requirement for
non-immigrant visas eventually used by at least 16 of the 19 suspected
hijackers. Even that limited law was allowed to expire, despite my
legislation enacted in 1996 repealing the requirement that visa
applicants be informed of the reason for a denial--a provision that law
enforcement agencies legitimately believed could impede ongoing
investigations, or reveal sources and methods. Thus, today, information
sharing remains optional and ad hoc.
    To further fortify our front-line defenses against terrorism, I also
propose to assist our embassies in turning-back terrorists at their
point of origin by establishing Terrorist Lookout Committees, comprised
of the head of the political section of each embassy and senior
representatives of all U.S. law enforcement and intelligence agencies.
The committees would be required to meet on a monthly basis to review
and submit names to the State Department for inclusion in the visa
lookout system.
    Clearly, the catastrophic events of September 11 have catapulted us
into a different era, and everything is forever changed. We must move
heaven and earth to remove the impediments that keep us from maximizing
our defense against terrorism, and that is why we need a singular,
Cabinet-level authority that can change the prevailing system and
culture. Ironically, the most compelling reason for an Office of
Homeland Security is also its greatest challenge: the need to focus on
the ``three C's'' of coordination, communication and cooperation so
that all our resources are brought to bear in securing our nation. The
bottom line is, if knowledge is power, we are only as strong as the
weakest link in our information network therefore, we must ensure that
the only ``turf war'' will be the one to protect American turf. In our
fight against terrorism, we can do no less.
    Mr. BYRD. Mr. President, in the aftermath of the terrorist attacks on
the World Trade Center and the Pentagon, the attention of the American
people has turned to the security of our national border system and how
these attackers were able to exploit that system to plot these
dastardly acts.
    The September 11 attacks have highlighted numerous loopholes in our
immigration laws that have allowed terrorists to enter the United Stats
posing as students and tourists, and, in some cases, by simply walking
across an unpatrolled border. In reviewing our counter-terrorism
efforts within our intelligence community, it is also appropriate that
we look at the numerous immigration loopholes these terrorists were
able to slip through.
    There are currently between 7 million and 13 million illegal aliens
living in the United States. Six out of 10 of these aliens crossed a
U.S. border illegally, and therefore were not subject to background
checks by the INS or the State Department to determine if they had a
terrorist or criminal history. In fact, exit/entry records are so
incomplete that the Immigration and Naturalization Service, INS, has no
record of 6 of the 19 suspected hijackers entering the United States.
    Of the roughly 10,000 INS agents guarding our borders, only 3 percent
are stationed on our northern border with Canada. That's 334 agents
protecting a 4,000 mile border, or one agent for every 12 miles.
According to media reports, a number of the September 11 terrorists
crossed this border to enter the United States.
    Of those foreign nationals who have legally entered the United
States, more than a half-a-million of them are registered as
international students at 15,000 universities, colleges, and vocational
schools across the United States. These are nuclear engineering
scholars, biochemistry students, and even pilot trainees who have
access to dangerous technology, training, and information.
    The Congress passed legislation in 1996 requiring the INS to create a
database for tracking these students. The purpose was to more
efficiently monitor the immigration/visa status and whereabouts of
students from abroad. After 5 years, there is still no system in place
to monitor these 500,000 students. The current pilot program operating
at 21 schools is not expected to be fully operational for five more
years, and even that date could slip.
    Without a monitoring system in place to audit schools that sponsor
these foreign students, there is nothing to prevent an alien from
entering the United States on a student visa and then just
disappearing. Consequently, one of the September 11 hijackers was able
to enter the United States on a student visa, dropped out, and remained
illegally thereafter.
    Abuses of the visa system can also be found in the application
process overseas at our U.S. consulates. Foreign nationals must apply
for a visa at a U.S. consulate abroad and go through a series of
security checks before they can enter the United States. Some media
reports have raised the issue of consulate shopping, that is, foreign
nationals choosing to apply at a U.S. consulate that they believe is
most likely to grant them a visa. The ``New York Times'' reported in
September that Chinese nationals applying for visas at a U.S. consulate
in Beijing compare their experiences over the Internet--and even post
tips on how to act and what to say, to boost their chances of receiving
a visa.
    Such an article raises the question of whether a terrorist could
travel from country to country in hopes of finding a U.S. consulate
which would be less familiar with his background and more likely to
award him a visa. One terrorist who was involved in the 1993 World
Trade Center bombing was denied a visa at the U.S. consulate in Egypt,
only to be awarded a visa by the U.S. consulate in Sudan.
    And these are loopholes that exist only for those terrorists who
would risk a background check by seeking a visa at a U.S. consulate.
The United States allows 29 countries to participate in a visa-waiver
program, which effectively allows the citizens of many European
countries to bypass the initial screening process at a U.S. consulate
abroad by waiving the visa requirement. The Inspectors General for both
the State and Justice Departments have raised the possibility that a
foreign national could steal and counterfeit a visa-free passport to
bypass the visa background check altogether.
    The October 8 Wall Street Journal reported that some 1,067 visa-free
passports have been stolen in recent months, presumably to be used for
entry into the United States. In fact, one of the terrorists who
plotted the bombing of the 1993 World Trade Center bombing was caught
trying to slip through this loophole in 1992 when he tried to enter the
United States using a visa-free Swedish passport.
    These are just some of the loopholes that terrorists are trying to
exploit. To its credit, the Senate Judiciary Committee recognizes this
fact.
    The legislation drafted by the committee would triple the number of
INS agents on our northern border. This is a worthwhile investment, and
one that should be made. However, the security of our borders depends
on more than just INS agents. The first line of defense against
terrorists are our U.S. consulates abroad.
    We must address the loopholes in the visa-waiver program that would
allow a potential terrorist to enter the United States on a stolen
passport. We must prevent consulate shopping. And, we must fully
implement a system that can monitor foreign students.
    The State and Justice Departments confirm that these are real
security threats that must be addressed if we are to protect our
borders from terrorists.
    I have offered three amendments to address these concerns, which were
accepted by the Judiciary Committee chairman and ranking member into
the manager's package.
 
[[Page S10601]]
 
    My first amendment would authorize the necessary funding so that the
Justice Department could immediately put into place a tracking system
that would require every university, college, and vocational school to
submit a name, an address, an enrollment status, and disciplinary
action taken on each of the international students that these
educational institutions sponsor. Such a database would be invaluable
to law enforcement officials who may need to identify and locate a
potential terrorist immediately.
    My second amendment would tighten the visa-waiver program by
requiring that any country that participates in that program issue to
its citizens within 2 years machine-readable passports that U.S.
officials could scan into a ``look out'' system. This moves forward the
original statutory deadline Congress agreed to last year by 4 years.
    This amendment would also require the State Department to regularly
audit the passports of these visa-free countries to ensure that
countries that participate in this program have implemented sufficient
safety precautions to prevent the counterfeiting and the theft of their
passports.
    My third amendment would require the State Department to review how
it issues its visas to determine if consulate shopping is a problem,
and then require the Secretary of State to take the necessary steps to
correct the problem. The State Department has the legislative authority
it needs to fix this problem. It is now imperative that it use that
authority.
    My amendments are important steps toward closing down the loopholes
in our immigration laws, and I look forward to working with my
colleagues so that we may continue to tighten the security of national
borders.
    Mr. HATCH. Mr. President, three weeks ago, the President of the
United States--with the undivided support of this Congress and the
American people--announced a war on terrorism. In that address, he
asked Congress to provide our law enforcement community with the tools
that they need to wage that war effectively.
    After several weeks of negotiations with the Chairman and the
Administration, I am pleased we have come to the point where we can
pass a bipartisan, measured bill that does just that.
    Mr. President, each of us has, in different ways, had our lives
touched by the awful events of September 11th. Each of us has, in the
days since the attack, been shocked and appalled by the terrible images
of destruction that have reached us, by television, by newspaper--and
in many cases by our own eyes--from the sites of the attacks in
Pennsylvania, at the World Trade Center, and at the Pentagon.
    Paradoxically, each of us has also been uplifted by the stories of
heroism and self-sacrifice that have emerged from around the country in
the wake of these terrible events.
    As the President made clear in his address to the nation, we did not
seek this war. This war was thrust upon us--thrust upon us by an
unprovoked attack upon our civilian population in the very midst of our
greatest cities.
    Just one month ago, we could not have contemplated that today,
October 11th, 2001, we would be at war. It is true that, for years,
some of us in this Congress, and around the country, have warned that
there were powerful, well-financed individuals located throughout the
world who were dedicated to the destruction of our way of life. But,
few of us could predict the horrific methods that these men would
employ in an effort to destroy us and our democratic institutions.
    On September 11th, all that changed.
    In the last few weeks, we have all come to acknowledge that we live
in a different and more dangerous world than the world we thought we
knew when we woke up on the morning of September 11th . . .
 
    . . . A different world--not only because thousands of our countrymen
are dead as a result of the September 11th attacks . . .
    . . . A different world--not only because many of our neighbors now
hesitate to get on an airplane, or ride in an elevator, or engage in
any one of a number of activities that we took for granted before the
attacks . . .
    . . . But a different world, also, because we must acknowledge that
there remains an ongoing and serious threat to our way of life and, in
fact, to our health and well-being as a society.
    As has been reported in the national media, the investigation into
the September 11th attacks has revealed there are terrorist cells that
continue to operate actively among us. It is a chilling thought, but it
is true.
    The war to which we have collectively committed is a war unlike any
war in the history of this country. It is different because a
substantial part of this war must be fought on our own soil. This is
not a circumstance of our choosing. The enemy has brought the war to
us.
    But we must not flinch from acknowledging the fact that, because this
is a different kind of war, it is a war that will require different
kinds of weapons, and different kinds of tactics.
    The Department of Justice, and its investigatory components including
the FBI, the INS, and the Border Patrol, will continue to have the
principal responsibility for identifying and eradicating terrorist
activity within our national borders. Our intelligence community must
have access to critical information available to our law enforcement
community.
    Over the last several weeks, the Attorney General has made clear to
us, in no uncertain terms, that he does not currently have adequate
weapons to fight this war. Weeks ago, the Administration sent to
Congress a legislative proposal that would give the Department of
Justice and others in law enforcement the tools they need to be
effective in tracking down and eliminating terrorist activity in this
country.
    Over the last several weeks, Senator Leahy, other members of the
Judiciary Committee, and I have undertaken a painstaking review of the
anti-terrorism proposal submitted by the Administration. There have
been several hearings on this legislation in the Senate, and many
briefings by experts and advocates.
    The legislation that we are about to vote upon is a product of
intense bipartisan negotiations. It is a proposal I am proud to
cosponsor with my other colleagues in the Senate and particularly the
distinguished Chairman of the Judiciary Committee, Senator Leahy.
    I would like to congratulate Senator Leahy, in particular, for his
thoroughness in reviewing this legislation and his many thoughtful
comments and suggestions in our joint effort to ensure that the
proposals adequately protect the constitutional liberties of all
Americans.
    Now, after weeks of fine-tuning, we have reached a final product that
accommodates the concerns of each of the Senators who has examined this
bill. The bipartisan bill that we vote on today respects the
constitutional liberties of the American people and, at the same time,
does what people around America have been calling upon us in Congress
to do--that is, give our law enforcement community the tools they need
to keep us safe in our homes, in our travels, and in our places of
business.
    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 11th. 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
 
[[Page S10602]]
 
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.
 
    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 11th 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 tat 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, Mr. President, 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 the way we are 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 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 about to vote upon 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,
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
 
[[Page S10603]]
 
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.
    Mr. President, before this debate comes to an end, I would be remiss
if I did not acknowledge the hard work put in by my staff, the staff of
Senator Leahy, and the representatives of the Administration who were
involved in the negotiation of this bill. These people have engaged in
discussions, literally around the clock over the last 3 weeks to
produce this excellent bill, that now enjoys such widespread bipartisan
support.
    I would like to thank my Chief Counsel, Makim Delrahim, who has been
instrumental in putting this bill together. I also would like to thank
my criminal counsel, Jeff Taylor, Stuart Nash, and Leah Belaire, who
have brought invaluable expertise to this process. My immigration
counsel, Dustin Pead and my legislative assistant Brigham Cannon have
provided invaluable assistance.
    I would like to thank the staff of Senator Leahy--his chief counsel
Bruce Cohen, and other members of his staff--Beryl Howell, Julie
Katzman, Ed Pagano, David James, and John Eliff.
    The Department of Justice has been of great assistance to us in
putting this bill together. I would like to thank Attorney General
Ashcroft and his Deputy Larry Thompson for their wise counsel, and for
their quick response to our many questions and concerns. Michael
Chertoff, the Assistant Attorney General for the Criminal Division was
a frequent participant in our meetings, as well as Assistant Attorneys
General Dan Bryant and Viet Dinh. Jennifer Newstead, John Yew, John
Elwood and Pat O'Brien were all important participants in this process.
    Finally, the White House staff provided essential contributions at
all stages of this process. Judge Al Gonzales, the White House counsel
provided key guidance, with the help of his wonderful staff, including
Tim Flanagan, Courtney Elwood, and Porad Berensen.
    In addition, members of the White House Congressional Liaison Office
kept this process moving forward. I would like to thank Heather
Wingate, Candy Wolff and Nancy Dorn for all the assistance they have
given us.
    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 urge my colleagues' support for this important
legislation and yield the floor.
    Mr. DASCHLE. Mr. President, 4 days ago, our military began strikes
against terrorist training camps and the Taliban's military
installations in Afghanistan. They are intended to disrupt the network
of terror that spreads across Afghanistan.
    But these strikes are one part of a much larger battle. The network
that we seek to disrupt and ultimately destroy often operates without
borders or boundaries. Its tools are not simply the weapons it chooses
to employ. And its trails are more often electronic than physical.
    This is a new kind of battle. Winning it will require a new set of
tools . . . And winning is the only acceptable outcome.
    Just as we are committed to giving our men and women in uniform the
tools and training they need to do what is asked of them, we must now
make that same commitment to our justice and law enforcement officials.
    After all, we are now asking them to do nothing less than protect the
American people by finding, tracking, monitoring--and ultimately
stopping--any terrorist elements that threaten our nation or our
citizens.
    I believe that by passing this measure today, we are taking a swift
and significant step toward doing just that. We are also demonstrating,
once again, that the Senate can work both quickly and effectively when
we work cooperatively.
    I want to thank Senator Lott, Chairmen Leahy, Graham and Sarbanes, as
well as Senators Hatch, Shelby, and Gramm for their leadership on this
bill.
    I especially appreciate Chairman Leahy's management and handling of
this important and delicate process.
    I also want to thank the many other Democratic and Republican
Senators whose insights and suggestions improved this legislation.
    For example, Senator Kennedy's input on provisions regarding
immigration addressed concerns a number of us had about the detention
of legal permanent residents with only few due process protections.
    And Senators Enzi, Leahy and Dorgan were able to improve a provision
regarding unilateral food and medical sanctions in a way that avoids
needlessly hurting American farmers.
    I'll be honest, this bill is not perfect, and I hope that we will be
able to work with our House colleagues in the days ahead in order to
improve it.
    Whenever we weigh civil liberties against national security, we need
to do so with the utmost care.
    Among other things, I am concerned about the provisions within this
bill that allow the sharing of information gathered in grand juries and
through wiretaps without judicial check. And, as we give the
administration new legitimate powers to wiretap under the Foreign
Intelligence Surveillance Act, I believe we should do more to protect
the rights of Americans who are not suspects or targets of
investigations.
    These flaws are not insubstantial, but ultimately the need for this
bill outweighs them. When it comes to an issue as central to our
democracy as the protection of our people, we must act.
    This bill does several important things:
    First, it will enhance the ability of law enforcement and
intelligence agencies to conduct electronic surveillance and execute
searches in order to gather critical information to fight terrorism.
    Second, it will permit broader information sharing between
traditional law enforcement and foreign intelligence officers.
    Third, it will increase the Attorney General's ability to deport and
detain individuals who support terrorist activity. I should note,
though, that the Senate bill requires the Attorney General either to
bring criminal or immigration charges within seven days after taking
custody of an alien or relinquish custody.
    Fourth, this bill also takes significant steps to increase law
enforcement personnel on our northern border. For example, it would
triple the number of Border Patrol, Customs Service, and INS inspectors
at the northern border, who would work in concert with their Canadian
counterparts in order to enhance security in this previously
understaffed area.
    Fifth, thanks in large part to Senator Leahy's hard work, this bill
makes major revisions to the Victims of Crime Act--by strengthening the
Crime Victim Fund and expediting assistance to victims of domestic
terrorism.
    Sixth and finally, the Banking Committee was able to agree on, and
add to this bill, several significant counter money laundering
measures. If we are to truly fight terrorism on all fronts, we must
fight it on the financial front as well.
    As you can see, this is a complex piece of legislation. But its aim
is simple: to give law enforcement the tools it needs to fight
terrorism.
    It was a month ago on this day that we suffered the worst terrorist
attack in our Nation's history. In the days since, we have honored the
memories of the more than 6,000 innocent men and women who lost their
lives on that terrible day.
    Hours ago, for example, we passed a resolution that designates
September 11 as a national day of remembrance.
    But I believe that to truly honor those whose lives were lost, we
must match our words with action, and do all that we can in order to
prevent future attacks.
 
[[Page S10604]]
 
    This bill is a significant step towards keeping that commitment, and
keeping Americans safe.
    Mr. DASCHLE. It is my understanding that the managers intend now to
yield back the remainder of the time on the bill and we will go
straight to final passage.
    First, I thank all Senators for their cooperation tonight. This was a
very good day. We got a lot of work done, and I appreciate the work of
all Members. There will not be rollcall votes tomorrow. In fact, we
will not be in session. We will come in on Monday, midafternoon. There
will be a vote on the motion to proceed to the foreign operations bill
and a vote on the conference report on the Interior appropriations bill
at approximately 5:30 Monday afternoon. I thank all Senators.
    I yield the floor.
    Mr. LEAHY. Mr. President, we are about to go to final passage. We
thought there would be a managers' package. We signed off on this side,
and apparently the other side has not, which is their right.
    Mr. HATCH. We have a managers' package. It is done. It is just being
assembled and put together and will be here.
    I yield the floor.
    Mr. LEAHY. I am glad there will be a managers' package. We cannot
vote on final passage until the managers' package is here. I thank the
majority leader for his help. As I said before, I don't think the bill
could have gotten as far as it did without that help. I wish the
administration had kept to the agreement they made September 30. We
would have a more balanced bill. I still am not sure why the
administration backed away from their agreement. I am the old style
Vermonter: When you make an agreement, you stick with it. But they
decided not to, and it slowed us up a bit.
 
    The PRESIDING OFFICER. Let's have order in the Senate Chamber so the
Senator can be heard.
    Mr. LEAHY. I yield the floor.
    Mr. DASCHLE. Mr. President, I ask unanimous consent that
notwithstanding the passage of the amendment, the managers' amendment
be considered subject to approval by both managers and both leaders.
    The PRESIDING OFFICER. Is there objection?
    Mr. BYRD. What is the request?
    Mr. DASCHLE. Mr. President, I will repeat the request. There is a
technical amendment having to do with some of the issues that have been
worked out, that have no substantive consequence. I ask unanimous
consent that this managers' amendment be approved, notwithstanding
passage of the bill, subject to approval by the two managers and the
two leaders.
    Mr. BYRD. Mr. President, I object to that.
    The PRESIDING OFFICER. Objection is heard.
    Mr. BYRD. Mr. President, I suggest the absence of a quorum.
    The PRESIDING OFFICER. The clerk will call the roll.
    The legislative clerk proceeded to call the roll.
    Mr. LEAHY. Mr. President, I ask unanimous consent the order for the
quorum call be dispensed with.
    The PRESIDING OFFICER. Without objection, it is so ordered.
    Mr. LEAHY. I yield all time. I ask for the yeas and nays on final
passage.
    The PRESIDING OFFICER. The Senator from Vermont is recognized.
    Mr. LEAHY. I ask for the yeas and nays on final passage.
    The PRESIDING OFFICER. Is there a sufficient second?
    There is a sufficient second.
    The yeas and nays were ordered.
    The PRESIDING OFFICER. The clerk will read the bill for the third
time.
    Mr. FEINGOLD. Mr. President, what is the status?
    The PRESIDING OFFICER. The bill is ready for third reading.
    Mr. FEINGOLD. I ask the Chair if the managers' amendment has been
adopted.
    The PRESIDING OFFICER. It has not.
    Mr. FEINGOLD. I thank the Chair.
    The PRESIDING OFFICER. There has been none submitted.
    The question is on the engrossment and third reading of the bill.
    The bill was ordered to be engrossed for a third reading and was read
the third time.
    The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill pass?
    The yeas and nays have been ordered. The clerk will call the roll.
    The legislative clerk called the roll.
    Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms), the Senator from South Carolina (Mr. Thurmond), and the Senator
from New Mexico (Mr. Domenici) are necessarily absent.
    I further announce that if present and voting the Senator from North
Carolina (Mr. Helms) would vote ``yea.''
    The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
    The result was announced--yeas 96, nays 1, as follows:
 
                        [Rollcall Vote No. 302 Leg.]
 
                                  YEAS--96
 
       Akaka
       Allard
       Allen
       Baucus
       Bayh
       Bennett
       Biden
       Bingaman
       Bond
       Boxer
       Breaux
       Brownback
       Bunning
       Burns
       Byrd
       Campbell
       Cantwell
       Carnahan
       Carper
       Chafee
       Cleland
       Clinton
       Cochran
       Collins
       Conrad
       Corzine
       Craig
       Crapo
       Daschle
       Dayton
       DeWine
       Dodd
       Dorgan
       Durbin
       Edwards
       Ensign
       Enzi
       Feinstein
       Fitzgerald
       Frist
       Graham
       Gramm
       Grassley
       Gregg
       Hagel
       Harkin
       Hatch
       Hollings
       Hutchinson
       Hutchison
       Inhofe
       Inouye
       Jeffords
       Johnson
       Kennedy
       Kerry
       Kohl
       Kyl
       Landrieu
       Leahy
       Levin
       Lieberman
       Lincoln
       Lott
       Lugar
       McCain
       McConnell
       Mikulski
       Miller
       Murkowski
       Murray
       Nelson (FL)
       Nelson (NE)
       Nickles
       Reed
       Reid
       Roberts
       Rockefeller
       Santorum
       Sarbanes
       Schumer
       Sessions
       Shelby
       Smith (NH)
       Smith (OR)
       Snowe
       Specter
       Stabenow
       Stevens
       Thomas
       Thompson
       Torricelli
       Voinovich
       Warner
       Wellstone
       Wyden
 
                                  NAYS--1
 
 
       Feingold
 
 
                              NOT VOTING --- 3
 
       Domenici
       Helms
       Thurmond

House Debate on the Patriot Act of 2001
Congressional Record: October 12, 2001 (House)
Page H6726-H6776                      
 
 
                          PATRIOT ACT OF 2001
 
  Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 264, I 
call up the bill (H.R. 2975) to combat terrorism, and for other 
purposes, and ask for its immediate consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 264, the bill 
is considered read for amendment.
  The text of H.R. 2975 is as follows:
 
(full text of complete act below)
 
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks, and to include extraneous material on H.R. 2975, the 
bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 10 minutes.
  Mr. Speaker, on September 11, 2001, a war was started on United 
States soil. It was not a war we voluntarily entered. It was not a war 
we started. We were not given a choice. We were dragged into a war that 
day, a war on terrorism.
  Every day since September 11, we are reminded of these violent acts. 
The media reminds us daily with pictures of the missing, interviews 
with survivors, films of the many memorial services, and images of the 
massive destruction. We are constantly reminded that this is a war that 
is far from over. The rules of this war are vastly different from the 
wars that we have fought as a country in the past. We are uncertain who 
the enemy is. We are uncertain where the enemy is. We are more 
uncertain than ever before when and what the next move of the enemy 
will be.
  Because of this uncertainty, we have had to change the way that we 
think about the safety and security of our country and its people. We 
must develop new weapons for protection against this new kind of war.
  It is this new approach to safety and security that has required us 
to take action today. This bipartisan legislation will give law 
enforcement new weapons to fight this new kind of war. Terrorists have 
weapons that law enforcement cannot protect against right now. 
Technology has made extraordinary advances; but with these advances in 
the wrong hands, we are more vulnerable to attacks.
  Indeed, it cannot be denied that law enforcement tools created 
decades ago were crafted for rotary telephones, not e-mail, the 
Internet, mobile communications, and voice mail. Thus, this 
legislation, like the previous Committee on the Judiciary version and 
Senate 1510, modernizes surveillance capabilities by ensuring that pen 
register and trap and trace court orders apply to new technologies, 
such as the Internet, and can be executed in multiple jurisdictions 
anywhere in the United States.
  Criminal provisions dealing with stored electronic communications 
will be updated to allow law enforcement to seize stored voice-mail 
messages the same way they can seize a taped answering machine message. 
Additionally, under this bill, a court may authorize a pen register or 
trap/trace order that follows the person from cell phone to cell phone 
rather than requiring law enforcement to return to court every time the 
person switches cell phones. The bill, consistent with our 
constitutional system of government, still requires a judge to approve 
wiretaps, search warrants, pen registers, and trap/trace devices.
  Like the Committee on the Judiciary reported bill, this new bill 
continues to provide for nationwide service of warrants for electronic 
evidence, such as content of e-mails, and search warrants for 
terrorism. Current rules require that a search warrant be issued from 
the judicial district in which the property to be searched is located. 
The bill would change this to permit the prosecutor to go to the judge 
in the district overseeing the investigation to issue the warrant, and 
in the case for search warrants for terrorism offenses, in any district 
in which activities related to terrorism occurred. This will save 
valuable time.
 
[[Page H6759]]
 
  It is clearly within the public interest and the Federal Government's 
mandate to keep out of the United States persons who are intent on 
inciting or engaging in terrorist activities. This bill furthers that 
goal by expanding the definitions related to terrorist organizations. 
Under current law, unless otherwise specified, an alien is inadmissible 
and deportable for engaging in terrorist activities only when the alien 
has used explosives or firearms. This act eliminates that limitation so 
that any terrorist who has used any object, including a knife, a box-
cutter, or an airplane, would be inadmissable and deportable.
 
  Under the current regulatory regime, the INS can detain an alien for 
48 hours before making a decision as to charging the alien with a crime 
or removable offense. The INS uses this time to establish an alien's 
true identity, to check foreign and domestic databases for information 
about the alien, and to liaise with law enforcement agencies.
  This act extends that time period to 7 days so that the INS is not 
forced to release a terrorist simply because it has not had adequate 
time to do a thorough investigation.
  The substantive criminal law statutes are also toughened in order to 
treat crimes of terrorism with the same level of importance as the most 
serious crimes in our country. Some of these new provisions include no 
statutes of limitations for the most serious crimes of terrorism, 
allowing a judge to sentence a terrorist to prison for any number of 
years up to life for any offense that is defined as a "Federal 
terrorism offense," and subjecting persons convicted of conspiracy to 
commit terrorism to the same penalties as those who actually commit the 
offense. Any person convicted of a terrorism offense will now be under 
supervision for as long as the court determines is necessary, including 
up to life.
  The act also expands the definition of support for terrorism for 
which a person can be prosecuted to include providing expert advice to 
terrorists and harboring or concealing a suspected terrorist.
  This new bill also continues the compromise language between current 
law and the administration's initial proposal for the showing needed 
for FISA, the Foreign Intelligence Surveillance Act, investigations 
using wiretaps. Current FISA law requires that in order to obtain a 
FISA wiretap, the Attorney General must certify that the gathering of 
foreign intelligence is the purpose or a primary purpose of the 
investigation.
  The administration draft wanted to change this to only require a 
certification that it was a purpose. This bill requires the Attorney 
General must certify that it is a significant purpose.
  Furthermore, this bill, like the Committee on the Judiciary reported 
bill, provides for roving wiretaps for FISA investigations. Currently 
under FISA, the government must identify and get a separate order for 
each phone to be tapped. This provision allows the government to make a 
showing to a court that the target is changing phones to thwart the 
tap, and to allow the court to authorize taps of any phones which the 
target may use. This provision is consistent with current criminal law.
  Importantly, the bill does not do anything to take away the freedoms 
of innocent citizens. Of course we all recognize that the fourth 
amendment to the Constitution prevents the government from conducting 
unreasonable searches and seizures, and that is why this legislation 
does not change the United States Constitution or the rights guaranteed 
to citizens of this country under the Bill of Rights.
  We should keep in mind that the Preamble to the Constitution states 
that it was ordained to establish justice, ensure domestic tranquility, 
provide for the common defense, promote the general welfare, and to 
secure the blessings of liberty.
  Well, let me say, on September 11, our common defense was penetrated, 
and America's tranquility, welfare, and liberty were ruthlessly 
attacked. I urge the Members of this body to stand united together in 
recognition of the important purpose we must serve in preventing 
terrorist attacks in the future and prosecuting those who have already 
attacked us.
  Mr. Speaker, I would like to say a little bit about the road this 
legislation has traveled on the way to the floor today. The road was 
relatively short, but certainly not without its twists and turns. Along 
the way, the legislation has been the subject of intense negotiation 
between House Republicans and Democrats, the administration, Members 
from the other body, and our leaders here in the House. After a 36 to 
nothing markup in the House Committee on the Judiciary last week and 
the introduction of a bipartisan antiterrorism bill in the other body, 
we were faced with trying to reconcile two different bipartisan bills, 
one of which garnered stronger support by the administration.
  However, our goal remains clear, to quickly come to agreement on 
legislation that will provide our law enforcement and intelligence 
officials with new tools necessary to more effectively battle terrorism 
and other crimes.
 
                              {time}  1430
 
  The bill before us now makes several changes to the bill passed by 
the other body last night, although most core provisions are very 
similar or are identical to the bill reported by the Committee on the 
Judiciary last week. Indeed, S. 1510 incorporated many of our 
committee's provisions. Most importantly, this bill preserves a sunset 
over many provisions of the bill. It is longer than the 2-year sunset 
contained in the bill passed by the Committee on the Judiciary; but, 
nonetheless, I believe it does the trick. It should keep the Department 
of Justice in line while providing Congress the opportunity to conduct 
effective oversight over the implementation and use of these new law 
enforcement authorities.
  Mr. Speaker, this has not been the ideal process, and the legislation 
before us now does not represent a perfect compromise. However, the 
work of the House Committee on the Judiciary over the past 3 weeks has 
greatly improved upon the original Justice Department proposal. I 
believe it now responsibly addresses many of the shortcomings of the 
current law and improves law enforcement's ability to prevent future 
terrorism activities and the preliminary crimes which further such 
activities while preserving the civil rights of our citizens.
  I urge my colleagues to support this bipartisan effort.
  Mr. Speaker, I reserve the balance of my time.
  The SPEAKER pro tempore (Mr. Nethercutt). Without objection, the 
gentleman from Michigan (Mr. Conyers) is recognized to control the 
time.
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I am pleased to begin our discussion by 
yielding 3 minutes to the distinguished gentleman from North Carolina 
(Mr. Watt).
  Mr. WATT of North Carolina. Mr. Speaker, like every American citizen, 
the emotions that we as Members of Congress and I personally have gone 
through over the last 31 days since September 11 have spanned the whole 
course.
  As I saw the buildings crash in New York, I wondered whether the 
terrorists would prevail, only to see the firefighters and police 
officers and rescue workers spring to their work, lift their shoulders, 
observe my colleagues on the steps of the House of Representatives that 
evening singing "God Bless America" and raise my head and say, we 
will prevail over them.
  When I heard the Attorney General come and say we had to pass an 
antiterrorism bill in 2 days following that, I wondered whether the 
terrorists would prevail. And the admiration that I had for our 
committee chairman, the gentleman from Wisconsin, and the ranking 
member of our committee as they stood and said, we cannot do this in 
the heat of passion, we must honor the constitutional requirements, 
caused me to raise my head and say, we will prevail.
  When I saw the incidents around the country of attacks on Arabs and 
Muslim mosques, I wondered whether the terrorists would succeed. And 
with pride I saw my President spring and say, "We cannot tolerate this 
kind of attack on our people," and I raised my head with pride.
  On the floor of this House, I saw Secretary Colin Powell and 
Secretary Rumsfeld come and brief us and say that we are approaching 
this methodically; and I raised my head with pride and said, we will 
prevail.
  Today, we have another test in this House to determine whether we 
will
 
[[Page H6760]]
 
stand strong in support of our constitutional rights and be able at the 
end of this debate to raise our heads with pride and not to cower to 
the terrorists and give away the constitutional rights that our 
Founding Fathers have given to us.
  This bill in my estimation goes too far in giving away those rights. 
I ask my colleagues to consider carefully the provisions of this bill 
and its implications for whether we prevail in our fight against 
terrorism.
  Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume 
to the gentleman from Texas (Mr. Smith).
  (Mr. SMITH of Texas asked and was given permission to revise and 
extend his remarks.)
  Mr. SMITH of Texas. Mr. Speaker, I thank the chairman of the 
Committee on the Judiciary for yielding time.
  Mr. Speaker, as chairman of the Subcommittee on Crime, I support this 
legislation.
  Security is valued, yet it is often unappreciated until taken away. 
What happened on September 11, 2001, has made us feel like we lost our 
sense of security. It doesn't have to be that way.
  We are united like never before, resolved to defeat terrorism and 
protect American lives. We seek a return to "normal," although the 
word normal takes on a new meaning now. Law enforcement officials need 
all the necessary tools to confront the daunting tasks ahead. The 
administration initially offered a strong antiterrorism bill that would 
have helped bring terrorists to justice. The Attorney General asked for 
measures he believed would reduce the threat of terrorist attacks. 
Unfortunately, some in the administration disregarded the public 
mandate for increased safety and agreed to weaken the bill.
  However, the legislation does make improvements in current law.
  Intelligence Gathering--The bill expands law enforcement's ability to 
obtain wiretaps and "trap and trace" authority, which is a method 
used to identify the origin of a message. (This component was added 
from legislation I had previously introduced.)
  Criminal Justice--The bill expedites court proceedings and increases 
penalties related to terrorism.
  Financial Infrastructure--The bill expands the law to allow seizure 
of assets of terrorist organizations.
  Information Sharing--The bill promotes interagency cooperation so 
that data is shared among agencies and used to its fullest extent.
  Border Security--The bill authorizes additional funds to the INS for 
purposes of making improvements in technology for monitoring both the 
northern and southern borders and triples the number of Border Patrol 
personnel in each state along the northern border.
  It is critically important to implement solutions to combat the 
threats to America. This antiterrorism legislation reduces our 
vulnerability to terrorist attacks, though it should have done more.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Illinois (Mr. Hyde), the distinguished chairman emeritus of the 
Committee on the Judiciary.
  Mr. HYDE. Mr. Speaker, I thank the gentleman from Wisconsin for 
yielding time; and I want, before I launch into my remarks, to 
congratulate him and the gentleman from Michigan for a thoroughly 
professional, workmanlike job in shepherding this complicated bill 
through the committee. They came out with a wonderful work product 
despite all of the difficulties and pressures and anxieties. I am very 
proud of both of them as Members of the House.
  I do support this bill, but I am disappointed that the process by 
which it came to the floor has resulted in the omission of a number of 
antiterrorism measures that are important to the Committee on 
International Relations and of personal interest to me. In saying this, 
I direct no criticism to my colleagues on the Committee on the 
Judiciary. To the contrary, throughout this process there has been 
excellent cooperation between the Committee on International Relations 
and the Committee on the Judiciary and between the gentleman from 
Wisconsin (Mr. Sensenbrenner), the gentleman from Michigan (Mr. 
Conyers), the gentleman from California (Mr. Lantos), and myself. I 
especially want to commend the gentleman from California for his 
patient efforts to work with us and for the bipartisan spirit in which 
he approached this project.
  We did not mark up this legislation within the Committee on 
International Relations, even though we had jurisdiction to do so. 
Instead, the gentleman from California and I jointly filed an amendment 
with the Committee on Rules seeking to add provisions to the bill that 
we believe would have been approved by our committee had we marked up 
the measure. Our amendment included provisions designed to improve U.S. 
monitoring of foreign terrorist organizations and of foreign countries 
that provide direct or indirect support to such organizations. 
Regrettably, the rule has not made our amendment in order.
  In addition, our committee on a bipartisan basis proposed a number of 
refinements to provisions within our jurisdiction that were requested 
by the administration. These refinements were largely technical in 
nature, relating to such matters as the vesting of foreign assets under 
the International Emergency Economic Powers Act and the sharing of U.S. 
visa information with foreign governments. But they were important to 
us, and we were pleased that the Committee on the Judiciary agreed to 
include them in their version of this bill. Regrettably, these 
refinements have also been left out of the bill now before us.
  Finally, the version of this bill that was approved by the Committee 
on the Judiciary included three amendments offered by me relating to 
money laundering, counternarcotics training in Central Asia and other 
matters. All three of these amendments were omitted from H.R. 3108.
  I know the gentleman from California joins me in saying that the bill 
before us is much weaker than it would have been had it included the 
proposals we developed. I hope to work with him to correct this through 
separate legislation that we can move quickly through the Committee on 
International Relations. I hope our colleagues on the Committee on the 
Judiciary will work with us to expedite our efforts.
  Again, I congratulate the gentleman from Wisconsin (Mr. 
Sensenbrenner), the gentleman from Michigan (Mr. Conyers), and the 
gentleman from California (Mr. Lantos).
  Mr. CONYERS. Mr. Speaker, no one has worked with more energy and 
thoughtfulness than the gentleman from Virginia (Mr. Scott) to whom I 
yield 2 minutes.
  Mr. SCOTT. Mr. Speaker, there are a lot of provisions of this bill 
that ought to cause concern. One is the wiretap provision, because we 
have changed several provisions which, taken together, represent a 
fundamental attack on principles of privacy.
  One change we made is to allow Federal investigators to share 
information from intelligence-gathering and criminal investigation. 
That is important because under foreign intelligence gathering, the 
standard is intelligence gathering. For the crime, you need probable 
cause that a crime has been committed. Since they cannot share, this 
has never been a problem. But now that we are allowing them to share 
information, you could essentially conduct a criminal investigation 
using the FISA standard.
  We also then reduced the standard under foreign intelligence wiretap. 
It used to be that it had to be the primary purpose of the wiretap. 
Under this bill, it can be a significant purpose. Obviously not the 
primary purpose. And what is the primary purpose? If it is criminal 
investigation, then you ought to have had probable cause to get the 
warrant; and if you do not have probable cause, that is not the way we 
ought to be investigating crimes.
  Third, we have this roving wiretap where you can assign the wiretap 
to the person and the wiretap follows the person. That means that 
wherever the person goes, whatever phone that the person uses, you can 
tap that phone, neighbors, pay phones, anybody else; and therefore you 
have a situation where innocent people who may also be using that phone 
will have their conversations listened in on. I will note that this is 
not limited to terrorism, and it is not even limited to criminal 
activity.
  The language in this bill needs improvement. That is why we at least 
insisted on a short sunset that has been expanded to a full 5 years. We 
need time to reconsider and draft legislation without the rush that 
this bill has been subjected to. We need to make sure that we have a 
bill that we can be proud of. The Committee on the Judiciary had a 
bill; we ought to go back to that bill. But we ought to be concerned
 
[[Page H6761]]
 
about the wiretap provisions under this legislation.
  Mr. CONYERS. Mr. Speaker, one of the most thoughtful members of our 
committee and of the Congress is the gentleman from Massachusetts (Mr. 
Frank) to whom I yield 2 minutes.
  Mr. FRANK. Mr. Speaker, we recognize that the chairman of the full 
committee tried hard to preserve some of our process; but powers 
beyond, it seem to me, his control have given us the least democratic 
process for debating questions fundamental to democracy I have ever 
seen.
  But I want to get to substance while continuing to deplore this 
outrageous and unfair procedure whereby the product that we voted on in 
committee cannot even be offered. No amendments. No amendments.
  But I want to explain what the substantive problem is. What we 
decided to do in committee, correctly, was to give to the law 
enforcement officials all the expanded powers they asked for, because 
we want to be protected. And electronic evolution requires an evolution 
in the powers. But we simultaneously tried to put into effect a full 
set of safeguards to minimize the chance that human beings, fallible 
ones, would abuse the powers.
  The problem is that the bill before us today preserves the fullness 
of the powers, but substantially weakens the safeguards against the 
misuse of the powers. The major safeguard was the sunset. Knowing that 
within 2 years they would have to come back for a renewal of these 
powers was the best way to build into the bureaucracy respect and avoid 
abuse. A 5-year sunset greatly diminishes that. They can figure, hey, 
we have got a couple of years and if we come in in the fifth year and 
we can say, Well, there weren't any problems lately, that is one thing.
  This bill may well not, in fact, be the final bill. It could go to 
conference with the Senate, which has no sunset at all and that sunset 
may recede into the sunset. We also created an Assistant Inspector 
General and called it an Assistant Inspector General for the purposes 
of trying to monitor this. That office has been downgraded.
  We are trying to do something very delicate. We are trying to empower 
law enforcement and simultaneously put constraints on them. A bill that 
gives the full powers and weakens the constraints is an inadequate 
bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Virginia (Mr. Goodlatte).
  Mr. GOODLATTE. Mr. Speaker, I thank the chairman for his hard work on 
this legislation, as well as the ranking member.
  If I might ask the chairman, it is my understanding from committee 
staff that the report language which was very important in the way the 
committee crafted this legislation in clarifying certain points, that 
the rule is written so that that report language will be incorporated 
into the final product that will be reported from the House.
  Mr. SENSENBRENNER. Mr. Speaker, will the gentleman yield?
  Mr. GOODLATTE. I yield to the gentleman from Wisconsin.
  Mr. SENSENBRENNER. The gentleman is correct. The report will follow 
this bill.
 
                              {time}  1445
 
  Mr. GOODLATTE. Mr. Speaker, reclaiming my time, the recent attacks on 
the World Trade Center and the Pentagon have permanently changed 
America. September 11, 2001, was the clarion call to arms in a new war 
against terrorism. Our law enforcement operatives will need new tools 
to fight this war, and Congress must respond.
  The world we live in since September 11 will require us to be more 
patient, to be more careful, and to tolerate more inconveniences. 
However, we must be careful not to trade our personal freedoms for the 
promise of security. Once we have sacrificed the civil liberties that 
our Nation was founded on, then and only then have we allowed terrorism 
to defeat us.
  I would like to commend the gentleman from Wisconsin (Chairman 
Sensenbrenner) and the other members of the committee for their 
dedication to crafting a bipartisan bill that will give law enforcement 
the tools it needs to fight a war on terrorism while still protecting 
the civil liberties of Americans.
  The bill was unanimously passed out of the Committee on the Judiciary 
and is a product of much deliberation and compromise. While not 
perfect, it achieves a difficult balance between providing law 
enforcement with the tools it needs to wage an effective war against 
terrorism and the protection of American's civil liberties.
  The version that has been brought to the floor of the House does not 
contain everything that I would like it to contain that was in the 
Committee on the Judiciary version, but it is still a strong and solid 
bill; and I commend the chairman and the ranking member for their work 
to incorporate as much of the committee's language into this final 
product as possible.
  I urge Members to support this legislation.
  The recent attacks on the World Trade Center and Pentagon have 
permanently changed America. September 11, 2001 was the clarion call to 
arms in a new war against terrorism. Our law enforcement operatives 
will need new tools to fight this war and Congress must respond.
  The world that we live in since September 11th will require us to be 
more patient, to be more careful and to tolerate more inconveniences. 
However, we must be careful not to trade our personal freedoms for the 
promise of security. Once we have sacrificed the civil liberties that 
our Nation was founded on, then and only then have we allowed terrorism 
to defeat us.
  I would like to commend Chairman Sensenbrenner and Ranking Member 
Conyers for their dedication to crafting a bipartisan bill that would 
give law enforcement the tools it needs to fight a war on terrorism 
while still protecting the civil liberties of Americans.
  The bill that was unanimously passed out of the Judiciary Committee 
is the product of much deliberation and compromise. While not perfect, 
it achieves a difficult balance between providing law enforcement with 
the tools it needs to wage an effective war against terrorism and the 
protection of American's civil liberties.
  The PATRIOT Act clarifies that orders for the installation of pen 
register and trap and trace devices apply to a broad variety of 
communications technologies, including the Internet. An issue of 
particular concern to me that was raised during the crafting of the 
Judiciary-passed bill is the clarification that these devices may not 
capture content information.
  I commend the Chairman and Ranking Member for including statutory 
language in the Judiciary bill that makes this clarification. Language 
stating that these devices may not capture the contents of any 
communication is also included in the bill that is before us today.
  Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
California (Ms. Lofgren), a thoughtful member of our committee that has 
worked on many of the important ideas that have helped shape our 
legislative product.
  Ms. LOFGREN. Mr. Speaker, I do have concerns about the measure before 
us; but before touching on those concerns, I would like to state here 
publicly the esteem I have for the gentleman from Wisconsin (Mr. 
Sensenbrenner), the chairman of the committee, as well as the gentleman 
from Michigan (Mr. Conyers), the ranking member. They have really 
conducted themselves in the very finest manner possible, and I am proud 
to be serving in this House with the two of them.
  We worked together on the Committee on the Judiciary understanding 
that we need to do everything we can to make sure that law enforcement 
has all the tools necessary to keep our country safe, and we came out 
with a good measure. It may not be a perfect measure. But there are 
risks inherent in some of the changes we made, and most particularly 
the changes made in the area of FISA that my colleague the gentleman 
from Virginia (Mr. Scott) basically mentioned.
  We are changing the way we deal with the fourth amendment, and we 
were prepared to do that in the Committee on the Judiciary, provided 
that we had a review. We had a 2-year sunset clause on that FISA 
section. Because we are on new ground here, we may be on thin ice; and 
we wanted to make sure that we force ourselves to review that provision 
so that the freedoms of Americans are not destroyed as we fight to 
destroy the terrorists. I am very concerned that the sunset provision 
relative to FISA and the fourth amendment has not been adhered to in 
this bill, and I feel obliged to mention that.
  Also, as the gentleman from Illinois (Mr. Hyde) mentioned, we could 
have
 
[[Page H6762]]
 
had a much tougher bill. We could have given much greater authority in 
some areas, and we would have had a unanimous vote actually among the 
Committee on the Judiciary on this floor perhaps for some of those.
  So I have concerns, but I do very much honor the chairman and ranking 
member for their efforts.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Tennessee (Mr. Bryant).
  Mr. BRYANT. Mr. Speaker, I thank the chairman for yielding me time.
  As we consider today the expansion of Federal law enforcement powers, 
I am reminded that as we redefine this often-delicate balance between 
our country's national defense and individual rights, we must be very 
careful.
  I have over the years, though, become convinced that some adjustments 
are needed to our criminal law. Given the significantly greater ability 
of the criminal, particularly the terrorists, to freely operate 
worldwide, and given the advancing technology of communications, simply 
put, the laws that we have are no longer adequate for the good guys to 
keep up with the bad guys. At this time I think it is very appropriate 
that the good guys get the edge once again.
  This PATRIOT bill, H.R. 2975, I believe is a balanced approach to our 
fight against terrorism. I believe it is an appropriate response to a 
very real problem. Neither our constitutional rights nor our 
fundamental rights of privacy are dismissed. Please keep in mind we are 
not waiving in any way or voiding the Constitution today. The 
provisions of this PATRIOT bill will undoubtedly be tested and must 
withstand challenge in a court of law. I believe they will meet the 
constitutional test.
  But for now, the ability of our law enforcement to uncover and ferret 
out, particularly acts of terrorism, these abilities are enhanced with 
this bill. Clearly this is needed. The Attorney General, the chief law 
enforcement officer on the Federal level in this country, has asked for 
this bill; and I believe it should be an effective one in preventing 
more tragic events like those that occurred September 11.
  I urge my colleagues to be in support of this bill.
  I close with a statement by Thomas Paine on another September 11, 
some 224 years ago, when he said, "Those who expect to reap the 
blessings of freedom, must, like men, undergo the fatigues of 
supporting it."
  Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from 
Idaho (Mr. Otter), whom I am inviting to speak out of order for a 
special reason.
  Mr. OTTER. Mr. Speaker, I thank the gentleman from Michigan for this 
courtesy.
  Mr. Speaker, I rise as many others have already said today to 
congratulate the chairman of the committee and the ranking member for 
the great work and the great task which they undertook. However, Mr. 
Speaker, I cannot support this effort. I do support Governor Ridge, and 
I do support Attorney General Ashcroft and the President of the United 
States. However, Mr. Speaker, I feel like this bill goes way too far.
  Some of the provisions place more power in the hands of law 
enforcement than our Founding Fathers could have ever dreamt. 
Nationwide warrants and secret courts would have been familiar to the 
Founding Fathers, Mr. Speaker, because they fought against those very 
institutions when they fought the British.
  This bill promises security, but Americans need to be secure with 
their liberties. This bill promises safety, but Americans are only safe 
if they are free.
  Mr. Speaker, others have said it more eloquently than I. Patrick 
Henry, for instance, said it when he said, "I have but one lamp which 
guides my feet, and that is the lamp of experience. I know of no way of 
judging the future but by the past. And judging by the past, I wish to 
know what there has been in the conduct of the British ministry for the 
last ten years to justify those hopes which gentlemen now today are 
pleased to solace themselves."
  John Stewart Mill said, "A people may prefer a free government, but 
if from indolence, or carelessness, or cowardice, or want of public 
spirit, they are unequal to the exertions necessary for preserving it; 
if they will not fight for it when it is directly attacked; if they can 
be deluded by the artifices used to cheat them out of their liberties; 
if by momentary discouragement or temporary panic or a fit of 
enthusiasm for an idea or an individual, they can be deluded to lay 
their liberties at the feet of even a great man, or trust him with 
powers which enable them to subvert their institutions, in all these 
cases they are more or less unfit for liberty."
  I urge my colleagues to listen to the voices of these patriots and 
reject the so-called "PATRIOT" Act. I support my President, I support 
law enforcement, but I also support the fundamental rights and 
liberties of the American people.
  I include the following for the Record.
 
            Partial List of Federal Law Enforcement Agencies
 
       Border Patrol.
       ATF.
       Capitol Police.
       Coast Guard.
       Customs.
       Defense Investigative Service.
       Defense Protective Service.
       DOD Police.
       Drug Enforcement Agency.
       EPA.
       FAA.
       FBI.
       Bureau of Prisons.
       FDIC Basic Inspectors.
       GSA.
       INS.
       IRS.
       U.S. Marshals.
       National Park Service.
       Naval Criminal Investigative Service.
       U.S. Park Police.
       U.S. Postal Investigators.
       U.S. Parole Office.
       U.S. Army.
       BLM.
       U.S. Fish and Wildlife Service.
 
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Florida (Mr. Keller).
  Mr. KELLER. Mr. Speaker, I rise today as a supporter and original 
cosponsor of the PATRIOT anti-terrorism bill. This is a powerful piece 
of crime-fighting legislation. It gives the FBI additional tools to go 
after terrorists. It creates criminal penalties for people who harbor 
terrorists. At the same time, it respects the civil liberties of our 
citizens.
  Some people say it is not identical to the bill that came out of the 
Committee on the Judiciary, on which I serve. It may not be identical, 
but it is a good bill. Let us not allow the perfect to be the enemy of 
the good.
  Recently, President Bush told us that we should take our family on a 
vacation to Disney World in Orlando, Florida. I have the happy 
privilege of representing Orlando. Since we have a tourism-based 
economy, my district has been uniquely hurt by the tragic acts of 
September 11. Specifically, because people have been afraid to fly, 
theme park workers, convention workers hotel workers, and cab drivers 
have lost their jobs.
  It is critical to the people in Orlando and across the country that 
we pass this anti-terrorism bill to give our citizens a sense of 
confidence and security that our skies and country are going to be 
safer. I urge my colleagues to vote "yes" on this bill.
  Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
California (Ms. Waters), who is a very effective member of the 
Committee on the Judiciary and who played a big role in our original 
work product.
  Ms. WATERS. Mr. Speaker, I rise in strong opposition to this bill. 
This is a Senate bill that was voted out at 3 a.m. this morning. This 
bill is quite different than the bill passed by the House Committee on 
the Judiciary. Under the rules of the House, the Committee on the 
Judiciary's bill should have been heard on this floor and the 
differences between this bill and the House bill should have been 
worked out in a conference committee.
  Mr. Speaker, we had a bipartisan bill, and John Ashcroft destroyed 
it. The Attorney General has fired the first partisan shot since 
September 11.
  Mr. Speaker, both Democrats and Republicans worked hard to come up 
with a bipartisan bill. Attorney General John Ashcroft undermined the 
work of the Republican committee chairman, the gentleman from Wisconsin 
(Mr. Sensenbrenner), and the Democratic ranking member, the gentleman 
from Michigan (Mr. Conyers).
  Mr. Speaker, I serve on the Committee on the Judiciary. I consented 
to some policies I did not particularly
 
[[Page H6763]]
 
care for. For the good of the House I compromised. Some of the 
Republicans on that committee compromised also. We had a bipartisan 
bill.
  The bill before us today is a faulty and irresponsible piece of 
legislation that undermines our civil liberties and disregards the 
Constitution of the United States of America.
  This bill takes advantage of the trust that we have placed in this 
administration. Our law enforcement and intelligence community have all 
of the laws and all of the money that they need to do their job. Mr. 
Speaker, they failed us; and now this Attorney General is using this 
unfortunate situation to extract extraordinary powers to be used beyond 
dealing with terrorism, laws that he will place into the regular 
criminal justice system.
  The question to be answered today is can we have good intelligence 
and investigations and maintain our civil liberties? This bill says no. 
I say yes. Let us not give away our privacy. Let us not undermine our 
constitutional rights.
  The gentleman did not finish the quote by Patrick Henry. He said: 
"Give me liberty or give me death." I say the same today. Vote "no" 
on this bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Utah (Mr. Cannon).
  Mr. CANNON. Mr. Speaker, I rise today in support of today's version 
of the anti-terrorism legislation. It represents a significant 
improvement over both the draft administration legislation and the 
Senate version passed last night. The bill strikes an appropriate 
current balance between civil liberties and providing the Government 
with the tools needed to protect our Nation to win this war on 
terrorism.
  The process used to craft the bill could have been better, and I am 
disappointed in some aspects of the final product. In fact, we did 
better with the Committee on the Judiciary bill reported unanimously.
  I would like to thank the gentleman from Wisconsin (Chairman 
Sensenbrenner) and also the ranking member, the gentleman from Michigan 
(Mr. Conyers), who both, along with their staffs, worked very hard to 
keep key compromises in the legislation that is now before us.
  I know that the gentleman from Wisconsin (Chairman Sensenbrenner) 
fought tirelessly over the last few days to preserve our committee's 
consensus legislation, or many of the elements. Among the key elements, 
improvements which are made and preserved in today's bill, are a 5-year 
sunset for the bill's most difficult provisions; an explicit 
prohibition on capturing content information from electronic 
communications under pen register and trap-and-trace authorities; a no-
technology mandate that ensures communication providers cooperating 
with law enforcement do not have to bear needless burdens; immigration 
provisions that should prevent indefinite detention of innocent parties 
and provide relief to immigrant victims of the September 11 attack.
  However, many important changes added by the Committee on the 
Judiciary to fight terrorism and compensate victims were left on the 
cutting room floor last night. In particular, I added an amendment at 
markup to allow access to frozen assets of terrorist sponsor states for 
American victims after they obtained judgments from U.S. courts.
 
                              {time}  1500
 
  Unfortunately, today's views reflect the views of the State 
Department bureaucrats who insist on protecting the status quo, rather 
than helping the victims of state-sponsored terrorism. Justice for 
past, present, and future victims of state-sponsored terrorism may have 
to wait until another day. But this fight is not over. I intend to 
reintroduce that bill in the near future. I urge my colleagues to 
support this bill.
  Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the very vital, 
thoughtful gentlewoman from Houston, Texas (Ms. Jackson-Lee), the 
ranking member of the Subcommittee on Immigration and Claims on the 
Committee on the Judiciary.
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Mr. Speaker, let me first of all 
acknowledge the work done by the chairman of this committee, the 
gentleman from Wisconsin (Mr. Sensenbrenner), and the gentleman from 
Michigan (Mr. Conyers). A lot has been made of the fact that there are 
two, two distinct views of our Constitution and maybe some of the 
issues, and maybe some views that are very much the same, worked 
harmoniously together, which overcome obstructions and presented a bill 
to this House. If we could have presented it, that would have made 
America proud.
  I stand with the Founding Fathers, although many of us were not 
created equal at that time. But Alexander Hamilton said there were 
various considerations that warn us against an excess of confidence or 
an excess of security.
  I would like to support this bill because I believe we must bring the 
terrorists to justice, and we had a bill that all of America could 
stand proud of: one that protected the Constitution, civil liberties, 
civil rights, and the Bill of Rights. What American will stand up and 
pledge allegiance to the flag, as we did today on this floor, and yet 
stomp on civil liberties? None of us.
  The legislation we have now does not allow those who are detained to 
appeal their case to the Supreme Court. The legislation we have now 
does not answer the problem of those who come into this country 
legally, with legal visas or visas that have been waived, and yet now 
do terroristic acts.
  Legislation that I would have offered in amendment would have 
provided an enhanced tracking system so that we could find out those 
who may have come in with vocational visas or student visas or foreign 
visas, and find them where they are.
  We realize that this is a country of great diversity, and we needed 
language in this bill that says that this is not an attack on Islam, 
the Islamic faith, Muslims, or any other faith, or any other ethnic 
group. This means that we will not target people unnecessarily. A 
person from my State, a doctor, was taken all the way to New York 
because of his turban, but yet he was found innocent.
  This is a bill we can do better on, America can do better. Let us 
stand on our constitutional principles, include hate crimes language in 
this. Mr. Speaker, this Nation can do better. I am proud to be an 
American, but today I want a bill that stands for what America believes 
in.
  Today, the House will answer the recent terrorist attacks against the 
United States and the world by passing, arguably, the most sweeping 
piece of law enforcement legislation of our lifetime. While the rules 
and procedures that have let to this legislation began fair and 
balanced, the recent process in the Senate, the House Rules Committee 
and the version before us today are at best deplorable.
  Having said that, the need for anti-terrorism legislation is great. 
Indeed, Alexander Hamilton, in Federalist No. 24 noted that "there are 
various considerations that warn us against an excess of confidence or 
security," not the least of which were and are today the constantly 
changing global political landscape and the fragility of our political 
ties abroad. Today, we must and will answer this warning.
  We must bring to justice the terrorists who targeted the passengers 
and crews of Flight 77, Flight 11, Flight 93, and Flight 175; those 
serving our great Nation at the Pentagon, both civilian and military, 
and the thousands of innocent civilians and rescue workers who were 
killed or injured at the World Trade Center and throughout New York 
City. These include: 4,815 people reported missing to the New York 
Police Department from the World Trade Centers, including the 157 
people on the two hijacked planes, 417 confirmed dead, and 366 bodies 
identified. In the Pentagon strike, 64 people have been confirmed dead 
on the hijacked plane and an additional 125 dead or missing. Lastly, in 
the Somerset County, Pennsylvania crash, 44 people have been confirmed 
dead. Our fallen brothers and sisters deserve the justice that each and 
every one of us in this room has the power to provide. And we will do 
it.
  Alexander Hamilton warned us in Federalist No. 25 that "it is a 
truth, which the experience of ages has attested, that the people are 
always most in danger when the means of injuring their rights are in 
the possession of those of whom they entertain the least suspicion." 
Today, despite the travesty of process that has befallen many of us in 
Congress, we must heed his warning. We must do so deliberately, with 
purpose and with surgical precision. Our goal must be to identify and 
correct the precise problems that exist under our current laws which 
hinder our investigatory and prosecutoral efforts. If, however, we act 
without such due precision, we risk loosing the
 
[[Page H6764]]
 
very freedoms, liberties, and constitutional tenants that are the 
foundation of this free society and all free societies around the 
world--due process, a presumption that people are innocent until proven 
guilty, the right to defend oneself and to confront the evidence 
against oneself, and the protections of judicial review. If we loose 
sight of these simple principles, we have truly lost this war to the 
extremists who seek our demise by any means.
  The bill before us today eviscerates the work of the House Judiciary 
Committee. Most members of that Committee would agree that this bill is 
far too sweeping and offensive to the civil liberties that we enjoy in 
this country. So while I commend my colleagues in Judiciary for helping 
to omit from the House version offensive provisions such as the 
provision which would have penalized innocent spouses and children of 
inadmissible aliens; the provision which would have provided a simple 
"reason to believe" evidentiary standard as a predicate to mandatory 
detention; and for tightening up the "guilt by association" section, 
I am outraged that our efforts were forsaken.
  As Ranking Member of the subcommittee on Immigration and Claims, I 
find several immigration provisions particularly offensive.
  1. Judicial Review.--Currently, the bill provides for a single 
judicial review process in the Federal District Court for the District 
of Columbia. This is unfairly burdensome, particularly to people with 
little money or resources. My amendment would have provided for such 
review in any Federal District Court.
  2. CIPRIS Program.--This program deals with acquiring information of 
exchange visitors, foreign students, and people admitteed on vocational 
visas. Currently it is a fee-based program. My amendment would have 
appropriated money for the program and would require that the program 
be implemented one year after the passage of this bill. It would have 
also required the Attorney General to share this information with the 
FBI and the State Department.
 
  3. Targeting (Racial Profiling).--We must study the effects of this 
bill in proliferating the deplorable process of racial profiling. To 
this end, my amendment would have amended Section 235(a)(3) of the INS 
with a new paragraph which states: The GAO shall conduct a study not 
later than 2004 to determine the extent to which immigration officers 
conducting inspections under 235 of the Immigration and Nationality Act 
are targeting individuals based on race, ethnicity and gender.
  4. Hate Crimes.--The backlash of the September 11, 2001 attacks have 
put American against American. Murders and attacks against citizens 
resembling Middle Easterners have occurred. Innocent people died 
because they looked like the Islamic extremists allegedly responsible 
for the September 11th tragedies. Now, more than ever, we need 
legislation to punish crimes motivated by hate against ethnicity, 
religion, and gender. These crimes cannot be tolerated. Under my 
amendment, a perpetrator who willfully commits a crime motivated by 
hate would have been imprisoned a minimum of 10 years or fined, or 
both; or imprisoned up to life and fined, or both, if the crime results 
in death, kidnapping, or aggravated sexual abuse, or an attempt of any 
of these crimes.
  5. Sunset Title II.--Currently Title II which deals with detention 
and removal of aliens would allow for indefinite detention in some 
circumstances. My amendment would have sunset this after a period of 
five years after enactment which would preserve the authority of the 
Attorney General under Title II. This would have also provided a safety 
net that would enable Congress to review the manner in which the 
Department of Justice carries out the awesome powers we are giving it.
  6. Information Sharing.--Currently, there is a disconnect between the 
INS and consular officers abroad. My amendment would have directed the 
Attorney General to ensure that the INS acquires the requisite 
information technology necessary to permit such consular officer to use 
such information for immigration enforcement purposes.
  These improvements in the bill would have recognized the importance 
of a fair and just legal process for all Americans and for all of our 
guests.
  These acts of terrorism targeted, not merely Americans, but rather, 
they targeted men, women, and children from around the world, killing 
hundreds from Britain, more than 130 Israelis, more than 250 from 
India, and scores of others from El Salvador, Iran, Mexico, Japan and 
elsewhere. Indeed, these were attacks against all people, and against 
all humanity. As such, the legislation and the issues before the House 
today concerns not only this great Nation's security today, but will 
have a profound effect on children, and freedom-loving people around 
the world for generations to come.
  So while many of us deplore the process that has befallen us, as 
Members of Congress, we are united and determined to give our law 
enforcement agencies the tools and resources that they need to do the 
job; so that we may preserve the freedoms and liberties of all peoples; 
so we ensure that justice is delivered swiftly, deliberately, and 
without prejudice; and so that we may work towards a world free from 
terror, bigotry, and lawlessness.
  At the Pentagon services this past Wednesday the President assured us 
all that "[w]e will continue until justice is delivered." I hope that 
we may assure it by coming together once again as Members of Congress 
from both sides of the aisle and from around this great Nation.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Wisconsin (Mr. Green).
  Mr. GREEN of Wisconsin. Mr. Speaker, I thank the gentleman for 
yielding time to me.
  Let me begin by congratulating the chairman on the work product 
before us. Both he and the ranking member have done a wonderful job in 
getting us to this point today.
  Mr. Speaker, I stand today in strong support of this legislation. I 
believe that this legislation balances the need to move quickly with 
the need to move carefully.
  First, the need to move carefully. If we listen to the rhetoric from 
the other side, it sounds like we are making all these dramatic, broad 
changes in laws. In fact, what we are doing today primarily is 
modernizing our laws, helping law enforcement to deal with evolving 
technology and evolving threats.
  The good gentlewoman from California said a few moments ago that our 
law enforcement has all the tools, all the resources, and all the laws 
they need to protect us. I could not disagree more. I think September 
11 has proven to us very clearly that we need more resources and more 
tools for law enforcement and the Permanent Select Committee on 
Intelligence.
  The need to move carefully must be balanced with the need to move 
quickly. We have deployed forces. We have been threatened with a jihad. 
We are still cleaning up the debris of the World Trade Center and the 
Pentagon. We must move quickly. We must make sure that we are prepared, 
that we are safe, that this will never happen again.
  Debate is important; rhetoric is good. We should debate ideas. But 
there is also a time and place for action. Today is the time. This is 
the place for action. Let us get this done as quickly as we can now. 
Let us get this over to the Senate. Let us hope that they act quickly. 
Let us get this to the President's desk, and let us get these tools in 
the hands of law enforcement. They need it, and our citizens deserve no 
less.
  Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to our esteemed 
colleague, the gentleman from New York (Mr. Nadler). When tragedy 
struck September 11, Mr. Speaker, it was in his district.
  (Mr. NADLER asked and was given permission to revise and extend his 
remarks.)
  Mr. NADLER. Mr. Speaker, last year candidate George Bush pledged to 
seek repeal of the secret courts provision of the 1996 antiterrorism 
bill because he claimed to understand that the law was passed hastily 
and that this provision at least endangered civil liberties without 
contributing to national security.
  Now the President, the same George Bush, and the leadership of this 
House is insisting that we again enact hastily, and again in the name 
of national security and antiterrorism, act so hastily as probably to 
endanger our civil liberties without necessarily helping our security.
  The bill we passed in the Committee on the Judiciary was a balanced 
bill that would have enhanced our security without endangering our 
civil liberties. Now we have a 187-page bill with a lot of provisions 
in it.
  What I am about to say I hope is accurate, but I cannot be sure, 
because we have only had time to glance quickly through this bill. We 
have not had time to properly review it, to send it out to law schools, 
to send it out to civil libertarians to get comments back so we can 
make an intelligent judgment.
  We cannot wait until Tuesday. We passed out the bill from committee 
last week. We wasted a whole week, but now we cannot wait 3 days. We 
must rush to judgment on this bill.
  Let me give three provisions of this bill that look, to a hasty 
reading, dangerous.
  Section 203 says that "secret grand jury information can be shared 
without
 
[[Page H6765]]
 
a court order," upsetting all American legal tradition, "if notice is 
given to the court within a reasonable period after the sharing."
  But, of course, the whole point of the current law is that a court, 
not some FBI agent, should decide if secret grand jury information is 
appropriate for sharing with other agencies. Now the FBI agent decides 
it on his own and tells the court later, and the court has nothing to 
do except to say thanks for the information.
  Section 213 permits law enforcement to delay notification of search 
warrants in any criminal investigation. There may be justification for 
delaying notification of a search warrant sometimes, but in all 
criminal investigations? What does that have to do with terrorism?
  Finally, there is a provision in the bill that essentially allows the 
Attorney General, by stating he has reasonable grounds to believe that 
someone here who is not a citizen, that may be deportable, he has 7 
days to start deportation proceedings; but once he does, that person 
can stay in jail forever. He can sue under habeas corpus; but if the 
court then says, okay, you can keep him in jail, it is not reviewable 
again ever.
  So they can throw away the key and forget about him forever? Is that 
American justice, or is that the Count of Monte Cristo? We ought to 
review this bill carefully and not pass it today.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentlewoman 
from Pennsylvania (Ms. Hart).
  Ms. HART. Mr. Speaker, we have listened to a lot of comments about 
additional measures people would like to see in this antiterrorism 
initiative. I believe that further discussions on this initiative and 
ways to crack down on terrorism will be constructive. We are certainly 
most interested in making our Nation safer.
  But as a member of the Committee on the Judiciary, I believe that we 
cannot delay the bill simply because it is not everything to everyone. 
To delay the bill is to fail to move forward, to fail to move forward 
on critical reforms, including giving local, State, and Federal law 
enforcement badly needed tools to fight terrorism and protect 
Americans.
  It would be a failure to move forward on updating our wiretap and 
surveillance laws to recollect the advances in technology that have 
changed how terrorists communicate and giving them an advantage. It 
would be a failure to move forward on allowing the sharing of criminal 
information within the intelligence community, coordinating our 
resources, and making it harder for terrorists to bury their tracks in 
bureaucratic red tape. It would also prevent us from making the simple 
but critical change that makes harboring terrorists a crime.
  Mr. Speaker, failure to support this bill today is to ignore these 
critical and urgently needed changes. I commend the chairman of the 
committee, and I commend my colleagues to support them.
  Mr. CONYERS. Mr. Speaker, it is my pleasure to yield 2 minutes to the 
gentleman from Michigan (Mr. Dingell), the dean of the House.
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. Mr. Speaker, we are considering under a very strange 
rule a very strange process which has resulted in a bill which is quite 
different than reported by the committee.
  I wanted to commend the distinguished chairman and the distinguished 
ranking member for the superb work which they did in crafting what I 
thought was a very fine bill. Somehow last night we found ourselves 
with a bill on our hands which is quite different than that which was 
presented to the House by the committee, after very thoughtful and 
careful work leading to an overwhelming bipartisan vote.
  What we are doing today is not considering just a few simple 
questions like expenditures of money. We are dealing today with basic 
constitutional rights. Ordinarily these are matters of the highest 
importance and are considered with great care under a rule, in an open 
process, because, after all, these are the things upon which Americans 
rely for their personal security and for their understanding that their 
rights are protected.
  All of a sudden sometime, probably last night, the Attorney General 
snuck up here to have a meeting. The result is that the bill suffered 
some extraordinary changes, all of which deal with the basic, 
fundamental rights of Americans in ways very different and probably 
much more unfavorably than did the committee bill.
  This is not the way. The United States is not so threatened that we 
have to throw away our rights without careful consideration, and that 
we have to disregard the careful and thoughtful and fine work done by 
the chairman, the committee, and by my distinguished friend, the 
ranking minority member.
  I find this a distressing process, one which reflects very poorly on 
the House--and one which indicates a great distrust and dislike for the 
work of the committee, which was superb--and for the basic fundamental 
liberties of the people of the United States.
  I find it denigrating basic constitutional rights, and I find it to 
have been done in a sneaky, dishonest fashion. It reflects very poorly 
on this body.
  Mr. Speaker, I rise in strong support for increasing security along 
our northern border. I would also like to commend the Judiciary 
Committee for the language in the bill it released that triples Border 
Patrol personnel and INS inspectors along our northern border. 
Unfortunately, I do not support the tactics used by the Republican 
leadership that has substituted an entirely different bill in place of 
the bipartisan House Judiciary Committee bill.
  Since September 11th, the heightened security levels have made us 
aware how understaffed we are along our northern border. This is a 
serious problem, it is unacceptable, and must be corrected in the short 
and long term. We must make sure that land, air, and seaports are 
adequately staffed across the nation. This must include our northern 
border.
  To our INS and Customs inspectors as well as our Border Patrol, I 
would like to commend them for their tireless efforts. Their efforts 
have helped greatly during the last month. However, with current 
staffing levels we are still encountering long lines at our ports of 
entry and continuing security concerns.
  In particular, trade has been seriously stifled with our Canadian 
neighbors. For several days following September 11th, there were up to 
14 hour waits to cross between Canada and Michigan. Lines are still 
long, as waits run into the hours. While this was understandable given 
the gravity of the situation immediately after the September 11th 
attacks, it is completely unacceptable that our economy has been placed 
at risk due to insufficient numbers of border personnel. Automobile 
plants needing parts have closed, and hospitals have been understaffed 
because their employees have been unable to cross our ports of entry in 
a timely fashion. These are just some of the reasons why our border 
requires more INS and Customs inspectors. Over 82 percent of goods 
originating in Michigan are exported to Canada via truck. 70 percent of 
Canada-U.S. trade and 80% of Ontario-U.S. trade, by value, moves by 
truck. The largest portion (38 percent) of Ontario's exports by road is 
destined for Michigan. Without optimum force levels of Customs and INS 
inspectors, the State of Michigan will continue to pay greatly for the 
loss in trade attributed to long lines at our ports of entry, both to 
and from Canada. In addition, the economies of our neighboring states 
and Canada will suffer.
  I will work with other committees and appropriations that are seeking 
to secure our northern border and ensure that adequate funding is given 
to INS and Customs for optimum force levels along our northern border. 
Failure to address problems along our northern border in a 
comprehensive manner jeopardizes our security and economy. I urge my 
colleagues to act expediently in providing a remedy for the serious 
shortfall of INS and Customs officials in Michigan.
  Mr. Speaker, using the regular committee process that has served us 
so well, we can protect the nation from terrorists in a swift and 
orderly fashion. I am not sure this kind of action protects the 
peoples' basic liberties. We can protect the Constitutional rights of 
our people from the whims of the attorney general, the Republican 
Administration, and the Republican leadership of this House. A bill, 
which would have achieved overwhelming support by the Congress, has 
been cast into question by this irregular process, and basic American 
liberties are being put into question. However, despite this egregious 
breach of House procedure, these border concerns are so great that I 
support the PATRIOT Act of 2001.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the distinguished 
gentleman from Connecticut (Mr. Shays).
  Mr. SHAYS. Mr. Speaker, because I believe our country could face a 
chemical, biological, radioactive, or, heaven
 
[[Page H6766]]
 
forbid, nuclear attack by well-organized groups of fanatic terrorists, 
I rise in strong support of the PATRIOT Act. I believe this bill is 
necessary, and we have no time to waste.
  Mr. Speaker, in particular, I want to offer my praise for a section 
of this legislation designed to ensure the State Department has access 
to U.S. criminal databases before permitting aliens to enter the United 
States.
  Last year, the Government Reform Subcommittee on National Security, 
which I chair, began a series of meetings and briefings to discuss 
inter-agency data-sharing.
  On July 24th of this year, our Subcommittee held a hearing on Federal 
Interagency Data Sharing and National Security.
  That hearing taught us effective border security begins with our 
embassies, where U.S. visas are issued.
  Unfortunately, the State Department currently lacks the ability to 
access the FBI's National Criminal Information Center's Interstate 
Identification Index database.
  That means an alien can come into our country, commit a crime, leave, 
and get a reentry visa from our State Department or cross the border 
without being stopped.
  In 1996, the FBI and State Department issued a joint report 
recommending the State Department receive limited access to the NCIC-
III database so the State Department could better identify aliens with 
a criminal background in our country and prevent their entry.
  Nevertheless, for four years this report lay dormant while the 
Departments could not find a mutually agreeable way to institute their 
recommendations.
  This gap in data-sharing between Departments is no longer simply a 
matter of bureaucratic inertia, but a threat to national security.
  Mr. Speaker, protecting our borders against dispersed but deadly 
criminals and terrorists requires interagency cooperation on an 
unprecedented scale.
  This legislation is a step in the right direction. I'm pleased 
Attorney General John Ashcroft included this provision in the anti-
terrorism proposals he submitted to Congress, and I commend the 
Judiciary Committee for including it in the PATRIOT Act.
  Mr. CONYERS. Mr. Speaker, it is my privilege to yield 2 minutes to 
the gentleman from Wisconsin (Mr. Obey), the ranking member of the 
Committee on Appropriations.
  Mr. OBEY. Mr. Speaker, I have tremendous respect for the chairman of 
the Committee on the Judiciary, and I know he is trying his best; but I 
am highly distressed for one simple reason: I do not, and neither do 
most of the Members of this House, have any real idea about what is in 
this bill or what the consequences are. We know some of the rough 
outlines; we do not know the details.
  This House, under the Constitution, is essentially a political body. 
What makes it a legislative body is the committee system, because on 
the committees we have people who have built up years and years of 
expertise. The way this has become the greatest legislative body on the 
face of the Earth is because we have relied upon the expertise of 
people on the committees who spend their lives learning what they need 
to know in order to see that the House makes the right judgments.
  When the committee system is overridden, as is the case in this 
instance, and when bills instead are written by a few people in 
conjunction with House leadership, that turns a legislative body into 
nothing but a political body; and it means that in the end, virtually 
all of the decisions made are made on the basis of political power, not 
on the basis of intellectual persuasion.
 
                              {time}  1515
 
  That is a fundamental danger to a legitimate legislative body and 
certainly to the greatest legislative body in the world, it is a mortal 
blow.
  I do not know what the right vote is on this bill because I do not 
know the consequences. I do not know how much danger this bill will 
actually do to the terrorists. But I do know how much damage the way 
this bill is being considered by the House will do to this institution 
and none of that is because of any action taken by the gentleman from 
Wisconsin (Mr. Sensenbrenner).
  This House must operate on the basis of shared information and shared 
decision-making if it is to truly get through these trying days. This 
is a sorry day in the history of the House.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, none of the provisions in what we are considering today 
are new and a surprise. The base bill is the bill that was produced by 
the other body. That has been out there for over a week. There have 
been some modifications made to this bill in an attempt to avoid a 
conference. Many of the modifications were made at the request of the 
minority party in the House of Representatives.
  Now, I agree that this process is not an ideal process and this is 
not a perfect compromise, but there are a number of House provisions in 
this bill, none of which are a surprise that was written in the middle 
of the night. The bill does not violate the Constitution. It protects 
our vital fourth amendment rights; and with a clear and present danger 
facing our country, I believe it is imperative that we act 
expeditiously.
  Mr. Speaker, I yield 2 minutes to the gentleman from Georgia (Mr. 
Barr).
  Mr. BARR of Georgia. Mr. Speaker, I thank the gentleman from 
Wisconsin (Mr. Sensenbrenner), the distinguished chairman of the 
Committee on the Judiciary, not only for yielding me time, but also for 
his very tremendous leadership on this most important of issues.
  The terrorist attacks on this Nation that occurred on September 11 
did not occur because of freedoms that we have in this country under 
our Constitution. They did not exist because our Constitution 
guarantees all of us the right to be free from unreasonable searches 
and seizures.
  The attacks that occurred on September 11 occurred because of a very 
unfortunate combination of bad luck on our part, good luck on the part 
of the terrorists, very careful planning on the part of the terrorist, 
very poor planning, perhaps, very poor execution on the part of some of 
our Federal, State, and local agencies.
  Therefore, I do not believe we ought to be in any rush to judgment to 
diminish our freedoms in the misguided conception that it is those 
freedoms that gave rise to the attacks on September 11. I commend the 
chairman of the Committee on the Judiciary and others who worked very 
hard to craft a very necessary and vitally important balance between 
giving law enforcement those narrowly crafted tools it needs and 
protecting the civil liberties, including the right to privacy, of 
American citizens.
  Is this a perfect bill? No, it is not a perfect bill, and I know the 
distinguished chairman would be the first to admit that. Is there much 
further work that needs to be done? Yes, there is much further work 
that needs to be done. I think that all of this means that it is 
absolutely imperative that we take very seriously the sunset provision 
in this bill that at least gives us an opportunity to evaluate how 
these important, momentous provisions that we are granting Federal law 
enforcement will be used.
  I also think it is important to realize that there were important 
concessions by the administration made in crafting this version of this 
bill. Am I happy with it? No, I do not think this is a happy piece of 
legislation. It is not a happy set of circumstances that brings us to 
the point where we have to consider amending our criminal laws and 
criminal procedures. But I do think on balance it is important to pass 
this piece of legislation, monitor it very carefully, and take 
seriously our responsibility to exercise the power that we are granting 
in the sunset provision.
  The SPEAKER pro tempore (Mr. Nethercutt). The gentleman from Michigan 
(Mr. Conyers) has 8\1/2\ minutes remaining. The gentleman from 
Wisconsin (Mr. Sensenbrenner) has 3\1/2\ minutes remaining.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, my colleagues and I need to do everything within our 
power to find the responsible persons and parties that have caused this 
attack on the United States and to bring them to justice and to end the 
blight of terrorism everywhere around the world. But at the same time 
we must all remember that just as this horrendous act could destroy us 
from without, it can also destroy us from within.
  Historically it has been at times of inflamed passion and national 
anger that our civil liberties have proven to be at greatest risk. The 
unpopular group of the moment happens to be subject to prejudice and 
deprivation of liberties.
 
[[Page H6767]]
 
  Alien and Sedition Acts in 1798 made it a Federal crime to criticize 
the government. At the beginning of the Civil War, Abraham Lincoln, no 
less, suspended the writ of habeas corpus citing the need to repress an 
insurrection against the laws of the United States. Ulysses Grant 
sought to expel Jews from the Southern States of this Nation. World War 
II brought about the shameful internment of Japanese Americans which 
even the Supreme Court failed to overturn. And what about the McCarthy 
era of the 1950's? Guilt by association.
  So we face a situation now that requires care. Well, certainly we 
must update our counterterrorism laws so they reflect the 21st century 
realities. But new expansion of government authorities should be 
limited to properly defined terrorist activity or threats of terrorism. 
And with increased Federal power, we must ensure accountability and 
oversight. We also need to drastically improve airport security by 
increasing training and compensation for those that are at such an 
important point in our national transportation system.
  But by forcing us to take up a bill in this manner, the 
administration unfortunately has chosen to fire the first shots of 
partisanship after September 11. One week ago, the Committee on the 
Judiciary passed a bill 36 to 0, every member of every persuasion 
supported the bill that was worked on by the chairman, myself, and all 
the members. There was good process. There was ample debate. No one was 
cut off. No amendments were prevented. And in that environment, we 
agreed to sunset the expansion in government surveillance power that 
are in this bill to 2 years. It would have given the administration not 
only the emergency powers it requested on an expedited basis, but at 
the same time allow us in Congress to revisit the issue after 2 years. 
What is wrong with that? We sunset civil rights laws. We sunset 
environmental laws. We sunset labor laws.
  Well, I can only tell my colleagues that until last night we had a 
bill that, had we brought it to the floor, would have literally passed 
almost unanimously in this Congress. I do not think anyone disputes 
that. But now what we have nobody knows. So it seems to me that we have 
to move very, very carefully.
  We have a problem. There is no provision protecting our own citizens 
from CIA wiretaps under the FISA court. There is no provision ensuring 
the government does not introduce information in a court obtained from 
illegal e-mail wiretaps. There is no provision limiting the sharing of 
sensitive law enforcement information to inappropriate personnel.
  Guess what? There are 35,000 law enforcement jurisdictions in the 
United States of America. There is no provision protecting immigrants 
from being deported for donating money to humanitarian groups that they 
did not know might be financing terrorists. Most importantly of all, we 
have lost the 2-year sunset. What are we left with? A measure that is 
in no way limited to terrorism. It is a bill that provides broad new 
wire tap authorities that might be used to minor drug offenses, to 
firearm violations to anti-trust crimes, to tax violations, to 
environmental problems, literally to every single criminal offense in 
the United States code. So for all of us that know our history, we have 
been down this road before.
  All I am saying to you is that I am going to do the best that I can 
no matter what happens here today to make sure, with the gentleman from 
Wisconsin (Chairman Sensenbrenner), that we convince our own 
administration and, yes, our own House leadership to realize that this 
is not a time to compromise the Constitution. There is no reason for us 
to sacrifice civil rights to increase security.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Florida (Mr. Deutsch).
  Mr. DEUTSCH. Mr. Speaker, I rise today in strong support of the 
legislation. Maybe I am looking at it too simply, but I think maybe 
sometimes simple can really give us clear answers.
  We are at war. We are in a war right now, and the reality is that the 
bill as it passed out of the House really did not acknowledge that. 
There was some specific provisions in the bill only dealing with 
terrorism that the bill was passed out of the Committee on the 
Judiciary did not provide for that the bill in front of us does today. 
Specifically, the bill out of the Committee on the Judiciary did not 
allow classified information to be used against terrorists in courts in 
terms of property.
  The bill, as passed out of the Committee on the Judiciary, had a 
criminal standard that specifically, and I quote, has committed or is 
about to commit a terrorist act. Not as the bill now does, a standard 
reasonable grounds to believe that a person being harbored will commit 
a terrorist act. A significant difference.
  The bill passed out of the Committee on the Judiciary had a 
limitation on a grand jury sharing information on terrorist situations.
  We have a situation today that the downside of not uncovering 
terrorists potentially really are catastrophic, nuclear, biological, or 
even nuclear catastrophes. We need to pass the legislation to provide 
the tools to prevent that from happening.
  Mr. CONYERS. Mr. Speaker, I yield 1\1/2\ minutes to the distinguished 
gentleman from Ohio (Mr. Kucinich).
  Mr. KUCINICH. Mr. Speaker, "My country 'tis of thee, sweet land of 
liberty, of thee I sing; land where my fathers died, land of the 
pilgrims' pride, from every mountainside let freedom ring." Let 
freedom ring in the ears of those who wants to still its sound. Let 
freedom ring even as we travel through the valley of the shadow of 
terrorism, for freedom is a sweeter melody.
  The terrorists have aimed their attack on the fundamental freedoms of 
all law-abiding Americans. They have attacked our right to life, to 
liberty, to pursuit of happiness, to freedom of association, freedom of 
mobility, freedom of assembly, and freedom from fear.
  Freedom is not just 50 States. Freedom is a state of mind. Freedom is 
our National anthem here in the land of the free and the home of the 
brave.
  Let freedom ring. If freedom is under attack from outside sources, 
then let us not permit an attack from within. It is an attack on 
freedom to let government come into the home of any American to conduct 
a search, to take pictures without notification. It is an attack on 
freedom to give the government broad wiretap authority. It is an attack 
on freedom to permit a secret grand jury to share information with 
other agencies. It is an attack on freedom to create laws which can 
endanger legitimate protests.
  Tens of thousands of men and women are getting ready to journey far 
from the shores of our Nation. They are being asked to defend some of 
the very rights this legislation would take away. Patriots are those 
who, in times of crisis, do not give up their liberties for any cause.
  "Long may our land be bright with freedom's holy light; protect us 
by thy might, great God, our King."
 
                              {time}  1530
 
  Mr. SENSENBRENNER. Mr. Speaker, I yield the balance of my time to the 
distinguished majority leader, the gentleman from Texas (Mr. Armey), to 
wrap this up.
  The SPEAKER pro tempore (Mr. Nethercutt). The majority leader is 
recognized for 2\1/2\ minutes.
  Mr. ARMEY. Mr. Speaker, let me begin by thanking the gentleman from 
Wisconsin for yielding me this time, and let me thank the gentleman 
from Wisconsin and, indeed, the gentleman from Michigan, and all the 
members of the committee for their hard, diligent work.
  It seems like only yesterday when the horrible, frightening tragic 
incident in New York, here at our Pentagon, and in the fields of 
Pennsylvania occurred. Just a few days afterwards, this Congress rose-
up and validated, confirmed, and affirmed our President as Commander in 
Chief and said, "We stand with you, Mr. President, with all the 
resources that you can muster. You are our Commander in Chief. Let us 
wage war on these terrorists and let us win that war."
  Since that time, we have responded to the national emergency with as 
much as 100 billion dollars, and we did so with a measure of ease. It 
was the right thing to do. We did it, and we did it together. Now we 
take on a more difficult task: How do we make all the agencies of the 
Government, in this
 
[[Page H6768]]
 
case, with this legislation 80 agencies of the Federal Government, from 
the CIA to the border patrol, more resourceful in intervening against 
terrorists while protecting the precious rights of the American people 
for which we fight in the first place? It is a difficult job, and one 
that was handled admirably by this committee.
  I have heard a lot of complaints about this bill as we find it today. 
People say we do not know what it is. Well, we know what the base bill 
is. We have known what was in the other body for a long time. Anyone 
who cared to do so could have done as I did last night, sit and watch 
the other body pass that bill. My colleagues could have watched the 
debate as I did. They could have heard the arguments and descriptions 
as I did. They could have watched.
  I want to point out that those of us who watched, those of us who 
have a heartfelt commitment to our liberties as American citizens, 
those of us that did might have enjoyed the other gentleman from 
Wisconsin, the distinguished Senator Feingold, as he valiantly fought 
for those committed to the liberties of the American people by 
repeatedly offering on the floor of the other body last night many of 
the provisions that this bill adds to that base bill. And, Mr. Speaker, 
it broke my heart to watch the distinguished gentleman from South 
Dakota, the Democratic Senate majority leader, move to table each of 
Senator Feingold's dearly protective amendments.
 
 
                             Point of Order
 
  Mr. OBEY. Point of order, Mr. Speaker.
  The SPEAKER pro tempore. The gentleman will suspend.
  The gentleman from Texas (Mr. Armey) will refrain from characterizing 
the actions of Senators.
  Mr. OBEY. I thank the Chair.
  The SPEAKER pro tempore. The gentleman may proceed.
  Mr. ARMEY. Each and every one of those efforts was tabled in the 
other body. And this committee worked with the White House to restore 
those protections to the base bill so that we can achieve a proper 
balance, a balance that gives the resources to the agencies of this 
government to protect the American people while at the same time 
protects us from any trespass against our liberties.
  Mr. Speaker, I should point out the controversy that surrounds the 
sunset clause. I was there when the Democrat minority from the 
committee presented to the chairman of the committee their five 
requests for the final revisions of this effort; and I was there when 
we saw that the exact sunset language in this bill was proposed to the 
chairman just yesterday by the minority on that committee. It is good 
sunset language. It is necessary sunset language. It gives our agencies 
an opportunity to use these tools of investigation and surveillance, 
and us the opportunity to fulfill our responsibility to oversee that 
activity, to review it, and to choose to reauthorize or not. I am proud 
of that language, and I am proud of the minority for offering it.
  Bottom line is this, Mr. Speaker: as we started this effort, we knew 
something from historical experience. The world is replete with stories 
of strong governments who have maintained their own security by 
trespassing against the rights of even their own people. Strong 
governments can make themselves secure. We have seen that too many 
times. But we have known, the committee has known, this Congress knows 
and the White House knows that a good government makes the people 
secure while preserving their freedom. And that is what this bill is. 
That is why we should not only vote for it, but we should thank our 
lucky stars we are in a democracy where we have that right.
  Mr. PAUL. Mr. Speaker, the shocking attacks on the World Trade Center 
and the Pentagon have reminded us all that the primary responsibility 
of the federal government is to protect the security and liberty of our 
nation's citizens. Therefore, we must do what we can to enhance the 
ability of law enforcement to prevent future terrorist attacks. For 
example, the federal government can allow enhanced data-sharing among 
federal agencies that deal with terrorism. The federal government 
should also forbid residents of countries which sponsor terrorism from 
receiving student visas as well as prohibit residents of terrorist 
countries from participating in programs which provide special 
privileges to immigrants. In fact, I have introduced my own anti-
terrorism legislation, the Securing American Families Effectively 
(SAFE) Act, which strengthens the ability of law enforcement to track 
down and prosecute suspected terrorists as well as keep potential 
terrorists out of the country.
  There is also much the federal government can do under current 
existing law to fight terrorism. The combined annual budgets of the 
FBI, the CIA and various other security programs amount to over $30 
billion. Perhaps Congress should consider redirecting some of the money 
spent by intelligence agencies on matters of lower priority to 
counterrorism efforts. Since the tragic attacks, our officials have 
located and arrested hundreds of suspects, frozen millions of dollars 
of assets, and received authority to launch a military attack against 
the ring leaders in Afghanistan. It seems the war against terrorism has 
so far been carried our satisfactorily under current law.
  Still, there are areas where our laws could be strengthened with no 
loss of liberties, and I am pleased that HR 3108 appears to contain 
many common sense provisions designed to strengthen the government's 
ability to prevent terrorist attacks while preserving constitutional 
liberty.
  However, other provisions of this bill represent a major infringement 
of the American people's constitutional rights. I am afraid that if 
these provisions are signed into law, the American people will lose 
large parts of their liberty--maybe not today but over time, as 
agencies grow more comfortable exercising their new powers. My concerns 
are exacerbated by the fact that HR 3108 lacks many of the protections 
of civil liberties which the House Judiciary Committee worked to put 
into the version of the bill they considered. In fact, the process 
under which we are asked to consider this bill makes it nearly 
impossible to fulfill our constitutional responsibility to carefully 
consider measures which dramatically increase government's power.
  Many of the most constitutionally offensive measures in this bill are 
not limited to terrorist offenses, but apply to any criminal activity. 
In fact, some of the new police powers granted the government could be 
applied even to those engaging in peaceful protest against government 
policies. The bill as written defines terrorism as acts intended "to 
influence the policy of a government by intimidation or coercion." 
Under this broad definition, should a scuffle occur at an otherwise 
peaceful pro-life demonstration the sponsoring organization may become 
the target of a federal investigation for terrorism. We have seen 
abuses of law enforcement authority in the past to harass individuals 
or organizations with unpopular political views. I hope my colleagues 
consider that they may be handing a future administration tools to 
investigate pro-life or gun rights organizations on the grounds that 
fringe members of their movements advocate violence. It is an 
unfortunate reality that almost every political movement today, from 
gun rights to environmentalism, has a violent fringe.
  I am very disturbed by the provisions centralizing the power to issue 
writs of habeas corpus to federal courts located in the District of 
Columbia. Habeas corpus is one of the most powerful checks on 
government and anything which burdens the ability to exercise this 
right expands the potential for government abuses of liberty. I ask my 
colleagues to remember that in the centuries of experience with habeas 
corpus there is no evidence that it interferes with legitimate 
interests of law enforcement. HR 3108 also codifies one of the most 
common abuses of civil liberties in recent years by expanding the 
government's ability to seize property from citizens who have not yet 
been convicted of a crime under the circumvention of the Bill of Rights 
known as "asset forfeiture."
  Among other disturbing proposals, H.R. 3108 grants the President the 
authority to seize all the property of any foreign national that the 
President determines is involved in hostilities against the United 
States. Giving the executive branch discretionary authority to seize 
private property without due process violates the spirit, if not the 
letter, of the fifth amendment to the Constitution. Furthermore, given 
that one of the (unspoken) reasons behind the shameful internment of 
Americans of Japanese ancestry in the 1940s was to reward favored 
interests with property forcibly taken from innocent landowners, how 
confident are we that future, less scrupulous executives will refrain 
from using this power to reward political allies with the property of 
alleged "hostile nationals?"
  H.R. 3108 waters down the fourth amendment by expanding the federal 
governments ability to use wiretaps free of judicial oversight. The 
fourth amendment's requirement of a search warrant and probable cause 
strikes a balance between effective law enforcement and civil 
liberties. Any attempt to water down the warrant requirement threatens 
innocent citizens with a loss of their liberty. This is particularly 
true of provisions which allow for nationwide issuance of search 
warrants, as
 
[[Page H6769]]
 
these severely restrict judicial oversight of government wiretaps and 
searches.
  Many of the questionable provisions in this bill, such as the 
expanded pen register authority and the expanded use of roving 
wiretaps, are items for which law enforcement has been lobbying for 
years. The utility of these items in catching terrorists is 
questionable to say the least. After all, terrorists have demonstrated 
they are smart enough not to reveal information about their plans when 
they know federal agents could be listening.
  This legislation is also objectionable because it adopts a lower 
standard than probable cause for receiving e-mails and Internet 
communications. While it is claimed that this is the same standard used 
to discover numbers dialed by a phone, it is also true that even the 
headings on e-mails or the names of web sites one visits can reveal 
greater amounts of personal information than can a mere telephone 
number. I wonder how my colleagues would feel if all of their e-mail 
headings and the names of the web sites they visited were available to 
law enforcement upon a showing of mere "relevance." I also doubt the 
relevance of this provision to terrorist investigation, as it seems 
unlikely that terrorists would rely on e-mail or the Internet to 
communicate among themselves.
  Some defenders of individuals rights may point to the provisions 
establishing new penalties for violations of individual rights and the 
provisions "sunsetting" some of the government's new powers as 
justifying support for this bill. Those who feel that simply increasing 
the penalties for "unauthorized" disclosure of information collected 
under this act should consider that existing laws did not stop the 
ineffectiveness of such laws in preventing the abuse of personal 
information collected by the IRS or FBI by administrations of both 
parties. As for "sunsetting," I would ask if these provisions are 
critical tools in the fight against terrorism, why remove the 
government's ability to use them after five years? Conversely, if these 
provisions violate American's constitutional rights why is it 
acceptable to suspend the Constitution at all?
 
  As Jeffery Rosen pointed out in the New Republic, this proposal makes 
even the most innocuous form of computer hacking a federal offense but 
does not even grant special emergency powers to perform searches in 
cases where police have reason to believe that a terrorist attack would 
be imminent. Thus, if this bill were law on April 24, 1995 and the FBI 
had information that someone in a yellow Ryder Truck was going to be 
involved in a terrorist attack, the government could not conduct an 
emergency search of all yellow Ryder Trucks in Oklahoma City. This 
failure to address so obvious a need in the anti-terrorism effort 
suggests this bill is a more hastily cobbled together wish list by the 
federal bureauracy than a serious attempt to grant law enforcement the 
actual tools needed to combat terrorism.
  H.R. 3108 may actually reduce security as private cities may not take 
necessary measures to protect their safety because "the government is 
taking care of our security." In a free market, private owners have 
great incentives to protect their private property and the lives of 
their customers. That is why industrial plants in the United States 
enjoy reasonably good security. They are protected not by the local 
police but by owners putting up barbed wire fences, hiring guards with 
guns, and requiring identification cards to enter. All this, without 
any violation of anyone's civil liberties. In a free society private 
owners have a right, if not an obligation, to "profile" if it 
enhances security.
  The reason this provision did not work in the case of the airlines is 
because the airlines followed federal regulations and assumed they were 
sufficient. This is often the case when the government assumes new 
powers or imposes new regulations. Therefore, in the future, once the 
horror of the events of September 11 fade from memory, people will 
relax their guard, figuring that the federal government is using its 
new powers to protect them and thus they do not need to invest their 
own time or money in security measures.
  In conclusion, I reiterate my commitment to effective ways of 
enhancing the government's powers to combat terrorism. However, H.R. 
3108 sacrifices too many of our constitutional liberties and will not 
even effectively address the terrorist menace. I, therefore, urge my 
colleagues to oppose this bill and instead support reasonable common-
sense measures that are aimed at terrorism such as those contained in 
my SAFE Act.
  Mr. BENTSEN. Mr. Speaker, I rise in support of H.R. 2975, which seeks 
to provide new tools to identify, pursue and punish suspected terrorist 
and strengthen our sustained campaign against terrorism. Just over a 
month ago, our country experienced terrorist attacks that resulted in 
an unfathomable human loss. Since that time, Congress and the 
Administration have led the nation in a unified battle against 
terrorism. Today, we are poised to confer new emergency authority to 
the Attorney General for a specific purpose--to fight the scourge of 
terrorism--and definite period, a maximum of five years.
  I am, however, disappointed that this legislation fails to adequately 
address the lifeblood of terrorism, money. Absent from this measure is 
legislation language to interfere with terrorist money laundering 
activities. I am hopeful that H.R. 3004, the Financial Anti-Terrorism 
Act of 2001, which I cosponsored, will get the full attention of the 
House in the coming days.
  Today's seamless financial marketplace, born out of the globalization 
of the late Twentieth Century, has fostered an unprecedented era of 
economic opportunity for terrorists like Osama bin Laden and the vast 
networks of evil they finance. In one month the United States has 
frozen nearly $4 million in assets belonging to the Taliban, Osama bin 
Laden and the al Qaeda network. Congress must continue to close the 
loopholes that allow the enemies of freedom to finance attacks on 
America. To date, our allies have frozen more than $24 million since 
September 11th. We are making great headway, but we are not there yet. 
New anti-money laundering tools are critical to this continued effort.
  With respect to H.R. 2975, I am pleased that this measure enhances 
our wiretapping laws to reflect today's communication reality. Under 
this measure, wiretap authority for suspects using communication 
devices such as the Internet and cell phones would be streamlined so 
that law enforcement could obtain a subpoena from one jurisdiction. I 
am also pleased that this measure makes aliens who endorse terrorist 
activity or suspected money launderers inadmissible and deportable. 
Today, we know that one of our greatest strengths, our open society, 
may have made us particularly susceptible to this brand of terrorism. 
While we must not allow fear to force us to change the inherent nature 
of our society--we must do what is reasonable to insure that potential 
terrorist operatives are not able to plot their herinous schemes within 
our borders.
  Mr. Speaker, I stand with my colleagues on both sides of the aisle in 
my determination to provide law enforcement authorities with the 
necessary tools to investigate terrorism and protect against future 
attacks. Accordingly, I call upon my colleagues to join me in approving 
this important legislation at this time of national crisis which 
balances the need to expand the laws governing intelligence and law 
enforcement activities while safeguarding our dearly held 
constitutional rights and way of life.
  Mr. SERRANO. Mr. Speaker, I rise in opposition to H.R. 2975, the 
Patriot Act of 2001, in its revised form. It is vitally important to 
give law enforcement the tools necessary to investigate and prevent 
further terrorist acts against American targets and to root out any 
person responsible for the dreadful acts of September 11. But it is at 
least as important to preserve the basic liberties that are ours under 
the Constitution of the United States.
  I was reluctantly prepared to support the Judiciary Committee-
reported version of H.R. 2975, because it was very carefully crafted on 
a bipartisan basis to address concerns expressed by Members across the 
political spectrum about the threat to our freedoms from too much 
expansion of law enforcement powers. Even the reported bill raised 
concerns, particularly about non-terrorist activities that might be 
swept up in the definition of terrorism, but I was somewhat reassured 
by the unanimous Judiciary Committee vote to report the bill.
  But now we are presented with a new bill, a mix of Senate and House 
provisions, that became available for review at 8:00 this morning. An 
initial look at it reveals troubling provisions that expand 
government's power to invade our privacy, imprison people without due 
process, and punish dissent. The fact that some expansions of these 
powers may be used in any criminal investigation, not just an 
investigation of terrorism, particularly seems like overreaching.
  I don't see why regular order had to be abandoned in this case. The 
Committee had reported a bill, the House was prepared to work its will 
on it today, and a final version could be crafted in conference. 
Instead, the Republican leadership basically hijacked the process, 
moving the negotiating position the House will take to conference 
toward the Senate's. This inevitably skews the conference results 
toward more police powers and less protection of our Constitutional 
rights and liberties. The procedural complaint may sound "inside-the-
Beltway", but it has important effects on the final result.
  Mr. Speaker, I support refining law enforcement powers to reflect the 
modern world and equipping law enforcement personnel to fight terrorism 
and bring terrorists to justice. But I most emphatically do not support 
erosion of our most basic rights to privacy and freedom from government 
scrutiny, and I cannot support this bill.
  Mrs. CHRISTENSEN. Mr. Speaker, I know this may sound unduly strong, 
but today we will react to one day of infamy with another if we pass 
H.R. 3108.
 
[[Page H6770]]
 
  I remember hearing someone say shortly after September 11th in 
response to something I cannot remember now, that the first casualty of 
this war must not be the U.S. Constitution.
  Well it wasn't the first, but if this bill is passed, it will perhaps 
be the most devastating one, certainly the most far-reaching one, one 
that will not honor those whose lives were lost in the terrorist 
attack, and one that all of us in this body--those who voted for it and 
those who did not--will rue to our dying day.
  This will be the crowning glory and the golden key of all of the most 
extreme radical conservatives in this country. With the right to 
wiretap, with the right to hold without due process, with the right to 
even punish dissent, the very worst of infringements on the civil 
liberties that we have worked so hard to extend to all and protect and 
preserve, will reign, and threaten not just the terrorists, but all 
Americans.
  When I think of all our forefathers fought for to create this 
independent Nation, with freedom and justice for all; when I think of 
the struggle to end slavery, to win the right to vote and to ensure 
that all Americans fully participate in this society, and all the lives 
that were given in these efforts, it makes me sick to think that today 
we might pass this travesty of justice and freedom and fairness, and in 
doing so undermine the government of checks and balances that they in 
their wisdom constructed, relinquish our responsibilities in this body, 
and dishonor their memory and their legacy.
  Although neither I or most of our members have had an opportunity to 
fully review the legislation, it appears clear that most of the 
provisions of this act are un-necessary to accomplish the goals of 
ferreting out terrorists and their abettors. In other instances they go 
too far or continue long after they would be reasonably needed under 
the very worst of circumstances.
  At the very least we need to apply the restraint of time and 
opportunity for full review, as well as make possible the opportunity 
to amend and thus fix the more egregious parts before a vote is taken 
on a measure such as this, which will change the culture of our society 
in terrible ways, and give those who wanted to destroy not only our 
prosperity but our freedom, the victory in the end.
  I urge all of my colleagues to vote H.R. 3108, the leadership bill 
down, and protect the freedoms that make America, America.
  Mr. GILMAN. Mr. Speaker, today we have been debating an important 
bill. Our deliberations this afternoon will provide modernized 
surveillance capabilities aimed at capturing terrorists which will 
ensure that new technology can be executed in multiple jurisdictions 
anywhere in the United States.
  The Patriot Act will expand the definitions related to terrorist 
organizations; provide the seamless flow of information between law 
enforcement and intelligence agencies; strengthen our northern border 
by tripling the number of Border patrol personnel in each state along 
this border; and most importantly will permit the courts to issue a 
generic order, which will still identify a target, yet permit the court 
order to be presented to a carrier, landlord or custodian and allow 
that the surveillance may be undertaken as soon as technically feasible 
on any new location.
  There has been extensive discussion on the floor with regard to these 
new surveillance provisions by those fearing the abdication of our 
civil rights protections with the passage of this Act.
  While, I am confident that nobody in this chamber is interested in 
either deteriorating our civil rights or failing to provide our nation 
with the necessary law enforcement and intelligence tools to defeat 
terrorism, I believe it is important to bear in mind the times in which 
we currently find ourselves.
  A month and one day ago, we were barbarically and cowardly attacked 
by terrorists. Nearly six thousand lives were lost--more than in the 
attack on Pearl Harbor. Our economy has been adversely affected, and 
our constituents are demanding that we provide protection against any 
further terrorist assaults. While, we did not ask for the war we now 
find ourselves involved in it is our duty as Members of Congress to 
provide the necessary tools and laws necessary to defeat those who wish 
to harm America.
  Mr. Speaker, we learned during Vietnam that we cannot fight and 
expect to win a war when we fail to provide our military with the 
resources necessary for victory. Let us not make that same mistake 
twice and fail to provide the tools necessary to win this war--our war 
against terrorism.
  We can and will continue to protect our civil liberties by providing 
constant oversight over these initiatives. After all it is our 
responsibility in the Congress to provide such oversight and to insure 
that our government not overstep its bounds. I am confident that we 
will not fail in this regard.
  Accordingly, I rise in full support of the Patriot Act and I urge all 
of my colleagues to support this important legislation.
  Mr. OXLEY. Mr. Speaker, I am pleased that this Congress is going to 
give our law enforcement and intelligence communities the tools they 
desperately need to track down terrorists and prevent another murderous 
attack on our people.
  September 11th ushered in a new era in American history. We are 
vulnerable here at home, not just to the fanatics who hijacked those 
planes, but to other terrorists who have access to biological, 
chemical, and maybe even nuclear weapons. This threat will not end in 2 
years, 5 years, or 10 years.
  The provisions in this bill will help to put the FBI and CIA on a 
more equal footing with terrorists who are using electronic 
communications to plot with impunity. I have long warned that our 
wiretap laws have not kept pace with advances in technology. Law 
enforcement needs to be able to monitor cell phone calls and electronic 
communications, just as it has been able to listen in on old-style 
rotary phones.
  Simply put, if we can't hear what terrorists are saying, we can't 
stop them.
  Under the sunset language in this bill, these new authorities could 
expire in as little as 3 years and possibly in 5 years. Establishing 
that "sunset" date is a mistake. It sends an unintended message that 
our resolve is fleeting. It also tells a law enforcement community 
working around the clock that their power to protect us is provisional. 
And it suggests to the American people that in a few years, we might 
let down our guard.
  We will not give our Armed Forces anything less than our full support 
in this war. Intelligence gathering is going to be every bit as 
important to this campaign as our military.
  Surveillance is restrained by a body of agency rules, judicial 
approval, and congressional approval. As a former FBI agent, I applied 
for wiretap orders. They are not easy to get. The electronic 
surveillance provisions in the bill are constitutional and achieve the 
proper balance with our constitutional rights. I happen to think that 
safety and security during uncertain times is a most important civil 
liberty.
  Through the actions we take, Congress must show that the U.S. will 
stay the course with the war on terrorism for the long haul. I hope 
that our law enforcement community will be able to deal with the 
inconsistency that the sunset poses, and use these common sense 
authorities to protect us from the terrorists who we have already been 
warned may be poised to strike again.
  Mr. BOYD. Mr. Speaker, I rise today in support of H.R. 3108, the 
Uniting and Strengthening America Act. Since the attacks that 
devastated our Nation on September 11th, Congress has been working in a 
bipartisan fashion to develop the solutions to combating terrorism. I 
believe this bill provides the necessary solutions to one of the 
greatest challenges our country has ever faced. Congress and the 
President must work together to ensure that the necessary steps are 
taken in order to prevent terrorism from occurring on American soil and 
victimizing American citizens ever again. Providing federal law 
enforcement officials with the tools to fight the war on American is 
not only our civic responsibility, but our responsibility as American 
citizens. While expanding these powers, we must be mindful of 
protecting the civil liberties that every American enjoys, because 
these are the very freedoms that make this country great and for which 
scores of our forefathers have fought. This bill strikes the delicate 
balance between the two vital points of expanding power and protecting 
civil liberty.
  It is important to update current laws to reflect the technological 
changes the 21st century has brought about, including new methods of 
communication. Federal law enforcement officials must have the capacity 
to monitor terrorists who utilize relatively new technology to plan 
attacks on Americans throughout the world. These provisions are 
essential to ensuring victory in our war against terrorism. Additional 
items included in this bill expand law enforcement power through new 
types of electronic surveillance, increased foreign intelligence 
gathering, and immigration reforms that will keep us a step ahead of 
any potential act of terrorism against Americans. It is also important 
to note there are provisions in the bill to ensure our civil liberties 
are protected. Among these is the mandatory sunset of the intelligence 
gathering provisions after five years. This allows Congress to evaluate 
whether the new powers given to justice officials have been successful 
and have respected the civil rights of each and every American citizen.
  Again, Mr. Speaker, I rise in support of the Uniting and 
Strengthening America Act and urge that this legislation be adopted.
  Mr. LANGEVIN. Mr. Speaker, I rise in opposition to this rule and in 
opposition to the clandestine way in which what was once a strong 
bipartisan package was changed and rushed to the floor with no 
consultation with this side of the aisle.
 
[[Page H6771]]
 
  While I understand the difficult task of crafting legislation while 
the nation is still recovering from and investigating the terrorist 
attacks of September 11th, I am disappointed with the extremely limited 
choice placed before me. I want to provide our law enforcement with the 
tools they need to stop terrorism. I want to support this bill, but few 
of us even know what is in it since the Judiciary Committee never 
considered it.
  In the aftermath of the attacks, we must strengthen our ability to 
find and punish those connected with these tragic events, and enhance 
our preparedness to prevent similar tragedies in the future. However, 
we must meet the critical counter-terrorism need of federal law 
enforcement and intelligence agencies without compromising the civil 
liberties of our citizens in the process. I have strong concerns about 
the bill we are considering today because I cannot be guaranteed it 
strikes this crucial balance.
  I urge my colleagues to vote against the rule so we all can be 
assured this goal is met by bringing the original measure which was 
unanimously approved the Judiciary Committee, to the floor instead.
  Ms. KILPATRICK. Mr. Speaker, today I rise in opposition to the rule 
and the antiterrorism bill we are considering today.
  While the current circumstances require expedited action, we must 
also be deliberate and circumspect in our action. I know these aims run 
counter to one another, but at this juncture in our history it is 
critical that we think before we act. The attacks on our nation have 
changed us forever causing strong demands for action to improve our 
security. Our response to terrorism, however, must not thwart the very 
democratic values that this nation was founded upon.
  Any legislative action we take must ensure that our traditions of 
civil liberty continue to stand strong--anything less would serve the 
goals of those who attacked us.
  Unfortunately, we are now poised to consider a measure that grants 
our federal government broad sweeping powers to investigate not only 
terrorism, but all crimes. We are now poised to consider legislation 
that may jeopardize the civil liberties that we hold dear. Today we are 
forced by the White House and a few people in the House and Senate to 
circumvent a process that produced legislation that could truly be 
called bipartisan. The Republicans and the Democrats on the Judiciary 
Committee joined together to create a measure that received the 
unanimous support of the Committee. I commend Chairman Sensenbrenner 
and Ranking Member Conyers for their good work. The White House and the 
Republican leadership of the House, however, hijacked the Committee's 
work--forcing us to vote on this one hundred and eighty page bill with 
only a few short hours to review it.
  There are thorny issues in the measure before us.
  The House Judiciary Committee's counter-terrorism bill included a 
provision that sunsets these extraordinary increases in Government 
power in two years, ensuring that the House would be forced to review 
these measures at that time. This compromise was reached despite the 
fact that the White House and the Justice Department wanted the measure 
to be enacted for an indefinite amount of time.
  The bill before us today, however, allows the measure to be revisited 
in three years. At that time, however, it is within the sole discretion 
of the President to decide whether or not to extend these measures for 
another two years. This is dangerous. This measure gives this 
administration nearly unbridled power to pursue terrorism and other 
crime. Yes, we need to address the ability of government to pursue 
terrorists. However, Congress should be able to change this measure if 
the current terrorist threat subsides. Congress should be the body 
revisiting this measure in two or three years. Congress should not 
delegate its constitutional duty to oversee the activity of the 
Executive Branch.
  While I firmly support added measures to fight terrorism, we should 
not move in the direction of past mistakes. Fortunately we successfully 
removed provisions giving the administration the ability to detain 
suspect non-citizens for indefinite amounts of time. Unlimited 
detention is unacceptable. There must be thorough judicial review in a 
specified period of time. We must not repeat the mistakes of our past. 
We must not revert to the age of McCarthyism when accusation and 
innuendo operated with the force of law. I am concerned that those who 
support today's process and the measure before us today have not 
learned the lessons of history well enough.
  I understand that the events of September 11 have necessitated 
heightened measures to ensure the security of our citizens. However, I 
hope these heightened measures do not distort our records on the issue 
of civil liberties. I am particularly concerned about those who suggest 
that our current situation justifies the practice of racial profiling 
or search and seizure procedures without clear standards that are 
subject to thorough review of our nation's judges. As an African 
American, I know all too well the ills of racial profiling. The 
President has proclaimed that our war on terrorism is not a war on 
Islam. He has proclaimed that our nation takes pride in its diversity, 
which is strengthened by our brothers and sisters of the Islamic faith. 
I suggest that if our policy is to focus our heightened investigative 
efforts solely on those who look Middle Eastern, or foreign, then we 
dishonor the President's noble proclamations. In this time of need we 
should focus our attention on all potential terrorists, including those 
who attack this country in the name of Christianity. Our outcry and 
efforts against foreign terrorism should be just as zealous against 
domestic terrorism. Our outcry against the Osama bin Ladens of the 
world should be just as strong against the Timothy McVeighs. Both seek 
to use terror and confusion to accomplish their warped political goals. 
By a truly comprehensive and objective attack on terrorism we lend 
credibility to our current war on terrorism and shine forth the light 
of freedom from our nation's shores.
  Mr. Speaker, for these reasons I oppose the measure before us today. 
In our justified haste to catch those who perpetrated the events of 
September 11 and who pose a continued threat to our nation, we must not 
abort the ideals that have made our nation strong. In the face of this 
crisis we must not rend our civil liberties and thus our Constitution, 
lest we be prepared to cede victory to the terrorists.
  Mr. STARK. Mr. Speaker, I rise today in opposition to H.R. 2975, the 
anti-terrorism bill. I do so reluctantly because we were supposed to 
have had a bill on the Floor today that I could have supported. The 
House Judiciary Committee unanimously passed a bipartisan bill that 
adroitly found the right balance between giving federal authorities the 
tools they need to fight terrorism, while still protecting the civil 
liberties that our citizens hold so dear.
  Unfortunately, a few members of the Republican leadership rejected 
this bipartisan legislation and created a new bill. This bill loses the 
balance that the previous legislation had achieved. The bill gives 
broad new powers to federal law enforcement officials while putting 
civil liberties at risk. Even worse, the bill prevents the Congress 
from reviewing these provisions in two years to ensure that the 
government is using its new powers in an appropriate manner.
  In addition, this bill has not received proper consideration by the 
House of Representatives. Most members, in fact, don't even know what 
the bill contains. This may be the most sweeping, comprehensive piece 
of legislation dealing with law enforcement practices and civil 
liberties that this Congress will ever consider. Such important 
legislation demands careful scrutiny and deserves bipartisan agreement. 
This bill fails in both respects.
  There is no question that the United States government must do 
everything in its power to protect our citizens. Our laws do need to be 
adjusted to properly reflect modern technology and to effectively 
respond to modern threats. The bill we consider today, however, is not 
the answer. I urge my colleagues to oppose this bill and to return to a 
bipartisan approach to improving our nation's security.
  Mr. THOMPSON of California. Mr. Speaker, it is with great reluctance 
that I vote in support of the antiterrorism legislation that was 
debated in the House today. What began as a collaborative and 
bipartisan process, has become a clandestine and highly partisan 
catastrophe. My intention today, was to support H.R. 2975, the PATRIOT 
Act that was given thoughtful consideration and resulted in a well-
crafted compromise. To my great regret, however, partisan procedures 
and pressures kept the House of Representatives from passing this 
legislation. Instead, the House took up a modified version of the 
Senate passed Uniting and Strengthening America Act.
  With some adjustments by the House leadership, the legislation 
contains many important provisions to ensure that the intelligence and 
law enforcement communities can do their jobs. The bill makes changes 
to intelligence and surveillance laws to account for advances in 
technology. It also strengthens penalties for money laundering and 
possession of biological agents for a suspected terrorist. But I am 
concerned that the legislation fails to create a watchdog position 
within the Department of Justice to monitor intelligence and law 
enforcement activities enacted by this new law. It also abandons the 
original two-year sunset, to a sunset of up to five years depending 
upon presidential preference. I believe that a five-year period is too 
lengthy, and support a sunset period of up to three years to ensure 
that civil liberties are protected, while intelligence and law 
enforcement officials do their jobs.
  Let me be very clear: I voted for the revised antiterrorism 
legislation today to ensure that the horrendous events of September 
11th are never repeated. I am offended by the process but am compelled 
by the circumstances in which we live today. I believe that in the days 
ahead, the House and Senate conference committee will work to craft a 
compromise measure that the American people can fully
 
[[Page H6772]]
 
support. In this new day of extraordinary circumstances, the impossible 
became a reality. Consequently, decisive action is necessary to prevent 
future acts of terrorism on the United States.
  Mr. UDALL of Colorado. Mr. Speaker, earlier this year we began this 
Congress by taking an oath to uphold the Constitution.
  It was the second time I did so, but for me it was still a solemn 
moment and a source of great price--as I am sure it was for you and for 
the many of our colleagues who have served far longer than I.
  It was a solemn moment because we were pledging ourselves to 
upholding the basic framework of our government, including the basic 
guarantees of the Bill of Rights. I think that is the highest and most 
important duty any American can undertake.
  And it was an especially proud moment for me because it meant that I 
would again be privileged to be part of this great institution, the 
House of Representatives--an institution for which I have for so long 
had such great respect.
  Since then less than six months have passed--but how long ago that 
seems to have been. Since September 11th, so many things have happened, 
and so many things have changed. And, unfortunately, one of the things 
that has changed is my pride in the way the House is meeting its 
responsibilities.
  That is because today we are proceeding in a way that falls far short 
of the standard to which we should hold ourselves--and doing so in 
connection with legislation of the very highest importance, legislation 
that can affect the lives and liberties of all the American people.
  To start with, like so many of our colleagues, I have not had an 
opportunity to learn fully what is in this bill beyond a cursory 
discussion in caucus, and while some Members of the House are versed on 
the particulars, I don't believe there has been enough time for debate 
and full consideration. On a subject so dear as our civil liberties, 
particularly in a time of crisis, surely the House could afford time to 
allow Members to read and understand this complicated legislative 
package before a vote. I do not know whether the objections raised by 
the bill's critics--such as those in today's letter from the American 
Civil Liberties Union--are well-founded or not. But I have no doubt 
that when it comes to matters as important as these it is far better to 
err on the side of caution.
  Mr. Speaker, in times of war and crisis there is always a very 
delicate balance between the need to be secure and the need to protect 
civil liberty. There have been moments in our nation's history when 
this balance was not carefully preserved--and with shameful 
consequences. In the rush to fight the terrorist threat, I want to be 
absolutely certain that we strike the right balance and avoid looking 
back on this time with regret about our haste and lack of wisdom.
  I am not an expert on fighting terrorism, but I know that if we are 
not careful in choosing our weapons, we can damage the very 
Constitution we have sworn to uphold. And I do know that there is a 
right way and a wrong way to legislate--and this is the wrong way.
  And that, Mr. Speaker, is why I cannot vote for this bill today.
 
 
                                American Civil Liberties Union
 
                                 Washington, DC, October 12, 2001.
 
        Be Patriotic--Vote Against the Revised "Patriot Bill"
 
       Dear Representative: The ACLU is urging Members to vote no 
     on the Rule, no on final passage and yes on the motion to 
     recommit. Sadly, most Americans do not seem to realize that 
     Congress is about to pass a law that drastically expands 
     government's power to invade our privacy, to imprison people 
     without due process, and to punish dissent. More disturbing 
     is the fact that this power grab over our freedom and civil 
     liberties is in fact not necessary to fight terrorism. 
     Briefly, the substitute bill has the following problems:
       Sharing Sensitive Information without Privacy Protections: 
     The bill authorizes law enforcement to "share criminal 
     investigative information." This section permits the 
     disclosure of sensitive, previously undisclosable information 
     obtained through grand jury investigations or wiretaps about 
     American citizens to the CIA, NSA, INS, Secret Service and 
     military, without judicial review, and with no limits as to 
     how these agencies can use the information once they have it, 
     and without marking the information to indicate how the 
     information can be used.
       Sneak and Peek Searches: this section authorizes the 
     wholesale use of covert searches for any criminal 
     investigation thus allowing the government to enter your 
     home, office or other private place and conduct a search, 
     take photographs, and download your computer files without 
     notifying you until later. The Congress rejected this 
     provision two times last year because it was misguided and 
     overbroad
       Single-Jurisdiction search warrants for terrorism: This 
     provision enables the government to go to a court in any 
     jurisdiction where it is conducting a terrorism 
     investigation, regardless of how insubstantial that location 
     is to the investigation, to conduct a search anywhere in the 
     country. This will allow the government to forum shop and 
     make it practically impossible for individuals who are 
     subjected to the search to challenge the search when the 
     warrants are issued by a judge in a distant location.
       New crime of Domestic Terrorism: This new crime is wholly 
     unnecessary for the Administration's "War on Terrorism." It 
     expands the ever-growing cadre of federal crimes by 
     authorizing the federal government to prosecute violations of 
     state law and may be used to prosecute political protestors 
     who engage in acts the government considers to be dangerous 
     to human life.
       Requires People to Turn in Suspects Even If They Don't Know 
     Whether the Person Has Committed a Crime. This bill creates a 
     new crime exposing people to criminal liability for lodging a 
     person who he or she knows "or has reasonable grounds to 
     believe" has committed or is about to commit a crime. This 
     places a new burden on persons to turn in family and friends 
     never before imposed on individuals.
       Disclosing Intelligence Information on Americans to the 
     CIA: The bill mandates that the FBI turn over any information 
     on terrorism, even if it is about American citizens, that is 
     developed in criminal cases. This will result in the CIA 
     getting back into the business of spying on Americans.
       Imposing Indefinite Detention: The bill allows for non-
     citizens to be detained indefinitely, without meaningful 
     judicial review;
       Reducing Privacy in Student Records: The bill overturns 
     current law by giving law enforcement greater access to and 
     use of student records for investigative purposes. Under the 
     substitute, highly personal and potentially damaging 
     information about American and foreign students will be 
     transmitted to many federal agencies and could lead to 
     adverse consequences far beyond the stated goal of the anti-
     terrorism bill.
       Sunset of Wiretap Provisions: The House Judiciary 
     Committee's bill would have sunset all of new wiretapping 
     authorities in two years and two months. The sunset was 
     designed to permit Congress to evaluate how the new 
     authorities were being used, and whether there were abuses 
     that would require additional privacy protections. The bill 
     now pending before the House would gut the sunset provision 
     by extending it to five years and three months (three years 
     and three months, plus two more years upon a presidential 
     certification).
       Exclusionary Rule: The House Judiciary Committee's bill 
     included a provision to exclude from criminal cases evidence 
     that law enforcement seized illegally when monitoring 
     Internet communications. This would have conformed the rules 
     pertaining to illegal interception of Internet communications 
     to the rules governing illegal interception of telephone 
     calls. The bill now pending in the House omits this 
     provision.
       Expansion of Wiretapping Authority: The wiretapping 
     provisions in the pending House bill are virtually identical 
     to those in the bill the Senate approved last night. Both 
     bills minimizes judicial oversight of electronic surveillance 
     by: subjecting private Internet communications to a minimal 
     standard of review; permitting law enforcement to obtain what 
     would be the equivalent of a "blank warrant" in the 
     physical world; authorizing scattershot intelligence wiretap 
     orders that need not specify the place to be searched or 
     require that only the target's conversations be eavesdropped 
     upon; and allowing the FBI to use its "intelligence" 
     authority to circumvent the judicial review of the probable 
     cause requirement of the Fourth Amendment.
       Most of these provisions are unnecessary for fighting 
     international terrorism; some would be acceptable if they 
     were implemented with appropriate judicial oversight. Law 
     enforcement agents make mistakes--for example, the life of 
     suspected Atlanta Olympic bomber Richard Jewell was turned 
     upside down. Essential checks and balances on these new 
     powers are omitted from this legislation. We can be both safe 
     and free if the House takes the time to do this right.
       For more information, please contact: Wiretapping--Greg 
     Nojeim 202/675-2326, Crime Provisions--Rachel King 202/675-
     2314, Immigration--Tim Edgar 202/675-2318, Privacy--Katie 
     Corrigan--202/675-2322.
           Sincerely,
     Laura W. Murphy,
                                                         Director.
     Gregory T. Nojeim,
         Associate Director & Chief Legislative Counsel.
  Mr. KIND. Mr. Speaker, of all the issues we have considered, and will 
consider, in the aftermath of September 11, securing the safety of our 
Nation against the threat of terrorism may prove to be the most 
challenging aspect of our recovery and security focus. One reason the 
terrorists targeted our Nation is because of the freedoms we enjoy as a 
nation, and the importance we place on individual liberty.
  By nature, the openness of American society is a liability when it 
comes to public safety. The attacks on the World Trade Center and the 
Pentagon have shown us that virtually any possible threat may be 
realized.
  The challenge of securing the Land of the Free is a delicate task. By 
considering the laws that protect personal privacy we risk
 
[[Page H6773]]
 
alienating those values on which our Nation was founded. In taking on 
this challenge, I commend the Chairman and ranking member of the 
Judiciary Committee for recognizing the fundamental importance of this 
task, and working together to draft legislation in a fair and 
respectful manner. I just wish that process had been followed through 
all the way to the end instead of being hijacked the night before.
  The legislation before us today is not perfect. I, like many Members, 
have reservations about expanding boundaries in which Government may 
more easily encroach on personal privacy. However, these reservations 
must be weighed in light of our experiences, as well as Section 8 of 
Article 1 of the Constitution which states "Congress shall have the 
power--to provide for the common defense and general welfare of the 
United States . . ."
  As a former prosecutor, I have experience in dealing with criminal 
investigations and prosecutions, and understand the inherent need to 
protect the public against terrorist activities. While I maintain 
concerns regarding some aspects of the bill regarding the specifics of 
electronic monitoring and other provisions, I acknowledge the 
importance of modernizing our laws to reflect the use of new 
technologies. I also appreciate the committee work on issues including 
improving the security of our borders, providing benefits to 
individuals involved in the immigration system who were detrimentally 
impacted under the law by the attacks, and updating the definition of 
terrorist activities and criminal penalties associated with terrorism 
in light of September 11. In addition, the sunset provisions attached 
to this legislation will provide for a review of these changes.
  This legislation provides the best opportunity for our Nation to 
protect its citizens without crossing the Constitution, and I therefore 
support its passage.
  Ms. HARMAN. Mr. Speaker, a long-scheduled appointment for minor 
surgery that was planned on the basis of the House leadership's 
announced calendar requires that I miss the vote on final passage of 
H.R. 2975.
  I support many--though not all--of the counter-terrorism changes 
recommended by Attorney General Ashcroft. Indeed, I was part of the 
bipartisan group of members of Congress who met with him shortly after 
the tragic terrorist attacks of September 11.
  Whether the bill implements those recommendations is difficult to 
tell. The time stamp on the text is 3:43 am this morning. Do we know 
what changes were made between it and the bill reported unanimously 
from the Judiciary Committee?
  Mr. Chairman, the process by which we are considering this measure 
plays fast and loose with our Constitution. It may well be that a 
number of its provisions will be stricken by the Courts.
  We should have had an opportunity to more carefully consider its 
provisions.
  Law enforcement needs 21st century rules to combat 21st century 
enemies. A cursory review of this bill suggests that we are providing 
many of them. But some may go too far, some may not go far enough.
  With some reluctance I support this bill. Not because I believe 
changes are not warranted, but because the rushed process by which the 
House is considering this bill is inappropriate given the severity of 
the challenge before this nation.
  Mr. McGOVERN. Mr. Speaker, I rise today in opposition to the version 
of the bill that has been presented before this House for 
consideration. Like every Member of this Congress, I believe we should 
provide law enforcement with every appropriate tool necessary to combat 
terrorism. In that spirit, I have supported all of the President's 
actions and requests, in both word and deed, since the horrific attacks 
which devastated this nation on September 11. Furthermore, I came to 
work this morning with every intention of voting for the carefully 
crafted bipartisan legislation that passed the House Judiciary 
Committee last week 36-0.
  However, I now stand before this House in complete amazement at the 
events that have transpired over the past 24 hours. Last week, the 
Judiciary Committee took the Bush administration's proposal into mark-
up, and carefully discussed and considered every aspect of this 
legislation. In an impressive display of bi-partisanship the concerns 
of every single one of the 36 members of the Judiciary Committee, from 
the right and the left, were addressed. For that, I applaud both 
Chairman Sensenbrenner and Ranking Member Conyers for their efforts.
  Yet despite this monumental display of cooperation, we stand poised 
to vote this morning on a substitute bill that was never even 
considered in the committee setting, and whose contents few of us have 
even seen. I am deeply troubled by the injustice done to the 
legislative process by rushing this new bill onto the floor, replacing 
the carefully crafted bill that was so impressively constructed last 
week.
  During this great nation's time of trial, we cannot underscore enough 
the importance of safeguarding the precious civil liberties and basic 
freedoms that underpin our society. Even in times of heightened alert, 
military action, and increased security awareness, it is our job as 
Members of the U.S. Congress to carefully consider the implications of 
extending the search and seizure powers of federal agencies, and ensure 
the protection of our basic rights as Americans. If we allow the 
cowardly terrorist actions of September 11 to redefine the freedoms 
that law-abiding citizens of this great nation are allowed to enjoy, 
then we have defeated ourselves. Nothing would greater please those who 
deplore America and our freedom loving society than to watch as we 
rashly whittle away our civil liberties out of fear and insecurity.
  Mr. Speaker, I will oppose this legislation today, and I ask that all 
of my colleagues do the same. I fully support the efforts of President 
Bush to ensure the security of this nation, yet I will not vote to 
undermine the basic freedoms we all hold dear. It is crucial that we, 
as a united Congress, remain strong in this time of crisis, and protect 
the fundamentally American values and civil liberties that so many 
generations before us have struggled to create.
  Mr. BUYER. Mr. Speaker, I rise today in support of the PATRIOT Act.
  We are engaged in a great struggle to combat the forces of terrorism 
that threatened our Nation on September 11. For this struggle, we have 
called forth the strong arm of our military. But in addition, this 
struggle will also be fought by law enforcement here at home.
  Our law enforcement officers need the best tools available to combat 
terrorism. This is not the case today and it is this deficiency that 
this bill seeks to remedy. For far too long we have neglected to equip 
our law enforcement with the tools they need to do their jobs as 
technology has changed.
  This bill will permit wiretaps to be leveled against suspected 
terrorists the same as we do for drug lords and organized crime 
syndicates. With existing court protections in place, law enforcement 
will now be able to follow suspected terrorists when they use the 
Internet, a land line phone or numerous cell phones. Nor will law 
enforcement have to go back to various courts when suspects move from 
location to location to location.
  Quite frankly, these provisions are long overdue. I regret that this 
bill includes a sunset provision. We need these provisions to be 
permanent.
 
 
   Modification to Amendment Adopted Pursuant to House Resolution 264
 
  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that the 
amendment considered as adopted pursuant to H. Res. 264 be further 
modified as follows: delete sections 302, 303, and 304.
  This request has been cleared with the minority.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to House Resolution 264, the 
previous question is ordered on the bill, as amended.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
 
 
                Motion to Recommit Offered by Mr. Nadler
 
  Mr. NADLER. Mr. Speaker, I offer a motion to recommit.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. NADLER. I certainly am, Mr. Speaker.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:
 
       Mr. Nadler moves to recommit the bill H.R. 2975 to the 
     Committee on the Judiciary with instructions to report the 
     same back to the House forthwith with the following 
     amendment:
       At the end of title II, add the following:
       "Section 225. Scope of Provisions
       "This title and the amendments made by this title (other 
     than sections 205, 208, 211, 221, 222, 223, and 224, and the 
     amendments made by those sections) shall apply only to 
     investigations of domestic terrorism or international 
     terrorism (as those terms are defined in section 2331 of 
     title 18, United States Code), such that this title and the 
     amendments made by this title (other than sections 205, 208, 
     211, 221, 222, 223, and 224, and the amendments made by those 
     sections) shall not apply to violations of either sections 
     992(a)(1)(A), 922(a)(6), 922(a)(5), 922(m), or 924(a)(1)(A) 
     of title 18, United States Code (pertaining to firearm 
     dealers violations), or first-time non-violent violations of 
     the Controlled Substances Act (as set forth in title 21, 
     United States Code) unless such violations pertain to 
     domestic terrorism or international terrorism (as those terms 
     are defined in section 2331 of title 18, United States 
     Code)."
 
 
[[Page H6774]]
 
 
  Mr. NADLER (during the reading). Mr. Speaker, I ask unanimous consent 
that the motion to recommit be considered as read and printed in the 
Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New York?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New 
York (Mr. Nadler) is recognized for 5 minutes in support of his motion 
to recommit.
  Mr. NADLER. Mr. Speaker, what this motion to recommit does is to make 
the provisions of this bill granting extraordinary powers to 
investigative agencies of governments apply only to extraordinary 
circumstances, only to investigations of terrorism or potential 
terrorism.
  Mr. Speaker, a month ago, the United States was attacked; and in 
particular my district was attacked. I know or knew many people who 
were victims of that horrible attack, and I thirst to repay that attack 
and to make sure it will not happen again. But we can be attacked in 
many ways, and one of those attacks is to cause us to invade our own 
liberties as a reaction to the attack upon us, and that we must 
prevent.
  Speaker after speaker on this floor today has described how this 187-
page bill, seen by us only a few hours ago, with no opportunity to 
really look into it, to send out the text to law professors, to others, 
to really see the implications and to make intelligent judgments upon 
it may very well be a danger to many of our liberties.
  Well, we have to act in haste, we are told. Why? Because we must 
prevent acts of terrorism. Let us grant that assumption. Fine. But why 
should these provisions then extend to anything but terrorism? We can 
pass the bill today. I will not vote for it, but we can pass the bill 
today, give our government the powers it says it needs, that the 
President and the Attorney General say they need to prevent terrorism 
and to defeat terrorists, but not grant that power with respect to 
everything else until we have had proper time to look into the question 
without the haste that this emergency imposes on us. And then we can 
say that these provisions should or should not, or some should and some 
should not, be extended to ordinary criminal investigations.
  Let the terrorism bill proceed for terrorism now, albeit in haste, 
albeit hastily drafted, albeit not properly vetted. If that is the will 
of the body, let it be done for terrorism, but only for terrorism. And 
let us, for other things where the emergency is not immediate, take our 
time and do it properly.
  So this motion to recommit simply says these extraordinary powers 
exist for terrorist threats, for investigations of terrorism, and not 
for others.
  Mr. WEINER. Mr. Speaker, will the gentleman yield?
  Mr. NADLER. I yield to the gentleman from New York.
  Mr. WEINER. Mr. Speaker, I rise and I speak to some in this body who 
share my view that the Senate bill, arguably, does not go far enough. 
And I speak to some in this body who recognize the great work that the 
gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman from 
Michigan (Mr. Conyers) did to cobble a compromise that everyone can 
rally around. Those are good reasons for us to step back, go back to 
the drawing board, and perhaps return with our original bill, if for no 
other reason than we are going to conference with the other body and it 
seems insane we are here negotiating with ourselves.
  But let us think of some of the things that were in the bill that the 
gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman from 
Michigan (Mr. Conyers) wrote that are not in today. The gentleman from 
Illinois (Mr. Hyde) offered language that would track money launderers. 
Out of the bill. I think it should be in. The gentleman from Georgia 
(Mr. Barr) offered language, and I have trouble saying these words, 
that I agree with while in terms of tracking security officers. I 
offered language that was in the bill that would track people who come 
here on student visas and who overstay their visas and commit acts of 
violence, at least two of which were in that category that crashed into 
the World Trade Center in my hometown.
  My colleagues, I have been to too many vigils, too many funerals, 
held too much hands of grieving families in my district to be satisfied 
with a bill that takes out so many of the provisions that we worked so 
hard for in the Committee on the Judiciary. There are many reasons why 
we should offer a motion to recommit, some of which are those which are 
shared by my colleague, the gentleman from New York (Mr. Nadler), who 
believes this bill goes too far. But there are also reasons, I say to 
all of my colleagues, for those who think we have watered down these 
efforts too far, to put back in some of the thoughtful provisions that 
the House Committee on the Judiciary put in.
  There is no good reason not to recommit. There is going to be a 
conference on this bill. Why not go in with our strongest possible 
negotiating position, including the Hyde language, the Barr language, 
and the Weiner language that I would say would pass this House with 350 
votes.
  Mr. NADLER. Mr. Speaker, reclaiming my time, I agree with the other 
distinguished gentleman from New York. There are provisions that go too 
far in this bill, in my opinion; and there are things that are not in 
this bill that ought to be, again, after the wonderful work done by the 
distinguished gentleman from Wisconsin and the distinguished gentleman 
from Michigan and the committee as a whole, tossed out the window, a 
new bill, brand new, emergency we are told.
  Limit this to the terrorism and let us work regular order, the way 
this House ought to proceed, so we may examine whether these powers 
belong in the general criminal field. There is no emergency we are told 
about there. The emergency pertains to terrorism, so let us proceed on 
an emergency basis, which we are doing now, voting for this bill 
virtually sight unseen, proceed on that emergency basis only for the 
terrorism emergency. Limit the bill to the terrorism emergency and look 
at the rest in our own good time.
  The SPEAKER pro tempore. The time of the gentleman from New York has 
expired.
  Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the motion 
to recommit.
  The SPEAKER pro tempore. The gentleman from Wisconsin is recognized 
for 5 minutes.
  Mr. SENSENBRENNER. Mr. Speaker, the motion to recommit should be 
rejected for the following reason:
  In many cases, what begins as an ordinary criminal investigation will 
end up leading into material relating to how terrorists finance 
themselves or how terrorists act and further criminal activity as well.
  Let me give an example. Last month, the Prime Minister of the United 
Kingdom, Tony Blair, gave a very eloquent speech to the annual 
conference of his Labor Party somewhere in England. That speech was 
covered by C-SPAN. I saw most of it. I hope that many of the other 
Members did as well. But one of the things that Prime Minister Blair 
said was that 90 percent of the heroin that is sold in the United 
Kingdom is sold by Osama bin Laden's front groups, and the money that 
is used from people who purchase the heroin is used to finance Osama 
bin Laden's terrorist activities.
 
                              {time}  1545
 
  Under the motion to recommit by the gentleman from New York, if there 
is an ordinary, run-of-the-mill drug investigation that might include 
terrorist activity or might not include terrorist activity, the 
expanded law enforcement provisions o