[Congressional Record: October 25, 2001 (Senate)]
[Page S10990-S11060]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr25oc01-91]
USA PATRIOT ACT OF 2001
The PRESIDENT pro tempore. Under the previous order, the Senate will
now proceed to consideration of H.R. 3162, which the clerk will report.
The bill clerk read as follows:
A bill (H.R. 3162) to deter and punish terrorist acts in
the United States and around the world, to enhance law
enforcement investigatory tools, and for other purposes.
The PRESIDENT pro tempore. The senior Senator from Vermont, Mr.
Leahy, is recognized.
Mr. LEAHY. Mr. President, what is the time agreement that we now have
before us?
The PRESIDENT pro tempore. The chairman and ranking member of the
Judiciary Committee have 90 minutes each; the Senator from Michigan,
Mr. Levin, has 10 minutes; the Senator from Minnesota, Mr. Wellstone,
has 10 minutes; the Senator from Maryland, Mr. Sarbanes, has 20
minutes; the Senator from Wisconsin, Mr. Feingold, has 1 hour; the
Senator from Florida, Mr. Graham, has 15 minutes; and the Senator from
Pennsylvania, Mr. Specter, has 15 minutes.
Mr. LEAHY. I thank the Presiding Officer, the President pro tempore
of the Senate.
Mr. President, I yield myself such time as I may need out of my 90
minutes.
Mr. REID. Will the Senator yield?
Mr. LEAHY. Of course.
Mr. REID. Mr. President, I ask unanimous consent that during the day,
when quorum calls are initiated, the time be charged proportionately,
not only against the person who asked for the quorum to be initiated,
but that it be charged proportionately against all people who have time
under the agreement that is now in effect.
The PRESIDENT pro tempore. Is there objection?
The Chair hears no objection. That will be the order of the Senate.
The Senator from Vermont, Mr. Leahy, is recognized.
(Mrs. CLINTON assumed the chair.)
Mr. LEAHY. Thank you, Mr. President. I agree with the distinguished
Democratic leader in his request because we do want to have discussion
of this piece of legislation, but there is no question we will vote on
this piece of legislation today and we will pass this legislation
today.
I think it is only fitting the Senator from New York is now in the
chair as we begin discussion of this legislation because her State was
one of those that was badly impacted, terribly impacted, tragically
impacted on September 11, as were the people of New Jersey and
Connecticut, who worked in the World Trade Towers, and, of course,
those at the Pentagon in Virginia, including those in Maryland and the
District of Columbia, and actually the whole Nation.
Today we consider H.R. 3162, the second House-passed version of the
``Uniting and Strengthening of America Act'' or ``USA Act of 2001.''
Senate passage of this measure without amendment will amount to final
passage of this important legislation, and the bill will be sent to the
President for his signature. We complete our work six weeks after the
September 11 attacks and months ahead of final action following the
destruction of the Federal Building in Oklahoma City in 1995. The
American people and the Members of this body deserve fast work and
final action.
On October 4, I was pleased to introduce with the Majority Leader,
Senator Daschle, and the Chairmen of the Banking and Intelligence
Committees, as well as the Republican Leader, Senator Lott, and Senator
Hatch and Senator Shelby, the Uniting and Strengthening America, or USA
Act. This was not the bill that I, or any of the sponsors, would have
written if compromise was unnecessary. Nor was it the bill the
Administration had initially proposed and the Attorney General
delivered to us on September 19, at a meeting in the Capitol.
We were able to refine and supplement the Administration's original
proposal in a number of ways in the original USA Act, and have
continued that process in the development of H.R. 3162. The
Administration accepted a number of the practical steps I had
originally proposed on September 19 to improve our security on the
Northern Border, assist our Federal, State and local law enforcement
officers, and provide compensation to the victims of terrorist acts and
to the public safety officers who gave their lives to protect ours.
This final version of the USA Act further improves the compromise by
including additional important checks on the proposed expansion of
government powers that were not contained in the Attorney General's
initial proposal.
Let me outline just ten ways in which we in the bicameral, bipartisan
negotiations were able to supplement and improve this legislation from
the original proposal we received from the Administration.
We improved security on the Northern Border;
We added money laundering;
We added programs to enhance information sharing and coordination
with State and local law enforcement, grants to State and local
governments to respond to bioterrorism, and to increase payments to
families of fallen firefighters, police officers and other public
safety workers;
We added humanitarian relief to immigrant victims of the September 11
terrorist attacks;
We added help to the FBI to hire translators;
We added more comprehensive victims assistance;
We added measures to fight cybercrime;
We added measures to fight terrorism against mass transportation
systems;
We added important measures to use technology to make our borders
more secure;
Finally, and most importantly, we were able to include additional
important checks on the proposed expansion of government powers
contained in the Attorney General's initial proposal.
In negotiations with the Administration, I did 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 acquiesced in
some of the Administration's proposals to move the legislative process
forward. That progress has been rewarded by a bill we have been able to
improve further during discussions over the last two weeks.
The Senate passed the original version of the USA Act, S. 1510, by a
vote of 96-1 on October 11. The House passed a similar bill, based
largely on the USA Act, the following day. The Majority Leader and I
both strongly believed that a conference would have been the better and
faster way to reconcile the differences between the bills, and to
consider the proposals that had been included in the managers'
amendment to S. 1510, which Republicans did not approve in time for
consideration and passage with the Senate bill. The House did not
request a conference when it passed the bill, however, and despite the
understanding among House and Senate leadership, the House leadership
abruptly incorporated the product of our discussions in a new bill
rather than proceed to a quick conference.
Yesterday, the House passed H.R. 3162, which was based upon informal
agreements reached by Senate and House negotiators, but which did not
include additional important provisions to make the Justice Department
more efficient and effective in its anti-terrorism efforts and to
reduce domestic demand for illegal drugs, some of which are produced
and supplied from Taliban-controlled regions of Afghanistan. I am
disappointed that the commitment we received to hold a conference--at
which these proposals could have been considered more fully--was not
honored. Nonetheless, H.R. 3162, which the House passed yesterday,
contains additional improvements to the USA Act that had been
negotiated on a bicameral, bipartisan basis, and deserves the support
of the Senate.
I do believe that some of the provisions contained both in this bill
and the original USA Act will face difficult tests in the courts, and
that we in Congress may have to revisit these issues at some time in
the future when the present crisis has passed, the sunset has expired
or the courts find an infirmity in these provisions. I also intend
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as Chairman of the Judiciary Committee to exercise careful oversight of
how the Department of Justice, the FBI and other executive branch
agencies are using the newly-expanded powers that this bill will give
them. I know that other members of the Judiciary Committee--including
Senator Specter, Senator Grassley, and Senator Durbin--appreciate the
importance of such oversight.
The negotiations on anti-terrorism legislation have not been easy.
Within days of the September 11 attacks, I began work on legislation to
address security needs on the Northern Border, the needs of victims and
State and local law enforcement, and criminal law improvements. A week
after the attack, on September 19, the Attorney General and I exchanged
the outlines of the legislative proposals and pledged to work together
toward our shared goal of putting tools in the hands of law enforcement
that would help prevent another terrorist attack.
Let me be clear: No one can guarantee that Americans will be free
from the threat of future terrorist attacks, and to suggest that this
legislation--or any legislation--would or could provide such a
guarantee would be a false promise. I will not engage in such false
promises, and those who make such assertions do a disservice to the
American people.
I have also heard claims that if certain powers had been previously
authorized by the Congress, we could somehow have prevented the
September 11 attacks. Given this rhetoric it may be instructive to
review efforts that were made a few years ago in the Senate to provide
law enforcement with greater tools to conduct surveillance of
terrorists and terrorist organizations. In May 1995, Senator Lieberman
offered an amendment to the bill that became the Antiterrorism and
Effective Death Penalty Act of 1996 that would have expanded the
government's authority to conduct emergency wiretaps to cases of
domestic or international terrorism and added a definition of domestic
terrorism to include violent or illegal acts apparently intended to
``intimidate, or coerce the civilian population.'' The consensus,
bipartisan bill that we consider today contains a very similar
definition of domestic terrorism.
In 1995, however, a motion to table Senator Lieberman's amendment was
agreed to in a largely party-line vote, with Republicans voting against
the measure. In fact, then Senator Ashcroft voted to table that
amendment, and one Republican colleague spoke against it and opined,
``I do not think we should expand the wiretap laws any further.'' He
further said that ``We must ensure that in our response to recent
terrorist acts, we do not destroy the freedoms that we cherish.'' I
have worked very hard to maintain that balance in negotiations
concerning the current legislation.
Following the exchange on September 19 of our legislative proposals,
we have worked over the last month around the clock with the
Administration to put together the best legislative package we could. I
share the Administration's goal of providing promptly the legal tools
necessary to deal with the current terrorist threat. While some have
complained publicly that the negotiations have gone on for too long,
the issues involved are of great importance, and we will have to live
with the laws we enact for a long time to come. Demands for action are
irresponsible when the roadmap is pointed in the wrong direction. As
Ben Franklin once noted, ``if we surrender our liberty in the name of
security, we shall have neither.''
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, over the next 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 as ``scurrilous remarks,'' do
not help the process move forward.
We expedited the legislative process in the Judiciary Committee to
consider the Administration's proposals. In daily news conferences
prior to the original passage of the USA Act, the Attorney General
referred to the need for such prompt consideration. He made time to
appear before the Judiciary Committee at a hearing September 25 to
respond to questions that Members from both parties had about the
Administration's initial legislative proposals. I thank the Attorney
General for extending the hour and a half he was able to make in his
schedule for the hearing for another 15 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 at any time since. He promised to answer the written
questions Members submitted about the legislation promptly, but we did
not receive any answers before passage of S. 1510, H.R. 2975, or H.R.
3162. I will make those answers a part of the hearing record whenever
they are received even after final passage of the legislation.
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.
To accede to the Administration's request for prompt consideration of
the USA Act, the Leaders decided to hold the bill at the desk rather
than refer it to the Committee for markup, as is regular practice.
Senator Hatch specifically urged that this occur. Indeed, when the
Senate considered the anti-terrorism act in 1995 after the Oklahoma
City bombing, we bypassed the Committee in order to deal with the
legislation more promptly on the floor.
After Senate consideration and passage on the one-month anniversary
of the terrorist attack, the House Republican leadership decided to
proceed with a version of the Senate-passed bill rather than the bill
reported by the House Judiciary Committee. H.R. 2975 passed the House
with opposition on October 12. Unfortunately, the House did not take
the traditional step of requesting a conference to reconcile the bills.
In an apparent effort by the Administration and House Republican
leadership to try to pressure the Senate to accept that version of the
bill, without strong money laundering or biological weapons provisions
and with a 5-year sunset, the House failed to take the procedural steps
necessary to convene a conference. Had a conference been requested and
begun, a final bill would have been passed last week. Instead, without
a structure or process, discussions were less concentrated and it was
only after a leadership meeting late last week that the major outline
of the measure was agreed upon.
During the negotiations over the past two weeks, the Administration
sought to eliminate the sunset altogether, but that effort failed. The
House insisted that the amendments to the so-called ``McDade law'' be
dropped, and the Administration acquiesced. Eventually, the House
accepted the Senate's position on the need to include both money
laundering and biological weapons provisions. Even then, the House
Republican leadership reneged on the agreement to proceed by way of a
traditional House-Senate conference. Instead, they opted to proceed by
a new bill passed by the House in short order and sent to the Senate as
an amendable measure. That brings us to today.
Given the expedited process that has been used to move this
legislation through the House and now to the Senate, I will take more
time than usual to detail its provisions.
This bill has raised serious and legitimate concerns about the
expansion of authorities for government surveillance and intelligence
gathering within this country. Indeed, this bill will change
surveillance and intelligence procedures for all types of criminal and
foreign intelligence investigations, not just for terrorism cases.
Significantly, the sunset provision included in the final bill calls
for vigilant legislative oversight, so that the Congress will know how
these legal authorities are
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used and whether they are abused over the next four years.
We should be clear at the outset that while the sunset applies to the
expanded surveillance authorities under FISA, it does not apply to
other controversial provisions in the bill. As originally passed by the
House, the sunset did not apply to the provisions on sharing grand jury
information with intelligence agencies, in section 203(a), and the so-
called ``sneak and peak'' authority for surreptitious search and
seizure, in section 213. The final bill, H.R. 3162, removes two more
provisions from the sunset--the expanded scope of subpoenas for records
of electronic communications, in section 210, and the new authority for
pen registers and trap and trace devices in criminal investigations, in
section 216.
Congressional oversight is especially necessary to monitor the
implementation of these new authorities. I agree with Leader Armey that
the sunset will help ensure that law enforcement is responsive to
congressional oversight and inquiries on use of these new authorities
and that a full record is developed on their efficacy and necessity.
The Senate Judiciary Committee has the challenging duty to establish
and maintain an oversight regime that allows the Congress to know how
these powers are exercised.
This bill will authorize the expanded sharing with intelligence
agencies of information collected as part of a criminal investigation,
and the expanded use of foreign intelligence surveillance tools and
information in criminal investigations. Where foreign-sponsored
terrorism is the target of an investigation, criminal and foreign
intelligence jurisdictions clearly overlap and agencies must coordinate
their efforts accordingly. This bill enters new and uncharted territory
by breaking down traditional barriers between law enforcement and
foreign intelligence. This is not done just to combat international
terrorism, but for any criminal investigation that overlaps a broad
definition of ``foreign intelligence.''
Yet, before final passage of this bill, the Senate should recall our
nation's unfortunate experience with domestic surveillance and
intelligence abuses that came to light in the mid-1970s. Until
Watergate and the Vietnam war, Congress allowed the Executive branch
virtually a free hand in using the FBI, the CIA, and other intelligence
agencies to conduct domestic surveillance in the name of national
security. It was the Cold War, Members of Congress were reluctant to
take on FBI Director J. Edgar Hoover, and oversight was non-existent.
One of the few safeguards enacted into law drew a sharp line between
foreign intelligence and law enforcement. The National Security Act of
1947, which established the Central Intelligence Agency, said--and
still says today--that the CIA ``shall have no police, subpoena, or law
enforcement powers or internal security functions.''
The provisions on the disclosure of ``foreign intelligence'' from
Federal criminal investigations make fundamental changes in the rules
for the handling of highly sensitive personal, political and business
information acquired for law enforcement purposes. Such information may
now be disclosed to intelligence, defense, and national security
agencies. The law is changed not only to permit the wider sharing of
information from grand juries, domestic law enforcement wiretaps, and
criminal investigations generally (in section 203), but also to require
Federal law enforcement agencies to share this information with
intelligence agencies through the Director of Central Intelligence,
unless the Attorney General makes exceptions (in section 905).
There would be far less controversy if these provisions were limited
to information about domestic or international terrorism or espionage.
Instead, they potentially authorize the disclosure throughout
intelligence, military, and national security organizations of a far
broader range information about United States persons, including
citizens, permanent resident aliens, domestic political groups, and
companies incorporated in the United States. The information may be
shared if it fits the broad definitions of ``foreign intelligence'' and
``foreign intelligence information.''
The term ``foreign intelligence'' is defined to mean ``information
relating to the capabilities, intentions, or activities of foreign
governments or elements thereof, foreign organizations, or foreign
persons, or international terrorist activities.'' The term ``foreign
intelligence information'' is defined to include information about a
United States person that concerns a foreign power or foreign territory
and ``that relates to the national defense or the security of the
United States'' or ``the conduct of the foreign affairs of the United
States.'' Therefore, potentially, whenever a criminal investigation
acquires information about an American citizen's relationship with a
foreign country or its government, that information is eligible to be
disseminated widely as ``foreign intelligence information''--even if
the information is about entirely lawful activities, business
transactions, political relationships, or personal opinions.
Criminal investigations acquire voluminous information about persons
who are not involved in illegal activity. Many individuals are
investigated and later cleared. Many cases are investigated and never
prosecuted. Many witnesses are interviewed whose testimony never
surfaces at trial. Immunity is granted to compel testimony before grand
juries about people who are never indicted. Wiretaps and microphone
``bugs'' and computer communications intercepts pick up extensive
information about activities and opinions and personal lives that have
no relevance to the criminal activity that they are authorized to
detect or monitor. Where regulatory or tax laws carry criminal
penalties, investigators probe the confidential financial details of
business transactions and records. Federal criminal investigators have
enormous discretion, with little statutory or constitutional guidance
for how they interview people, conduct physical surveillance, recruit
informants in organizations, and request access to records they
consider ``relevant'' to an investigation. All that information would
be eligible to be disseminated widely within the government, beyond the
purposes of the criminal investigation, if it meets the definition of
``foreign intelligence'' or ``foreign intelligence information.''
The risks of misusing this information were documented 25 years ago,
when the Congress made public the record of Cold War abuses of
investigative powers by Federal agencies acting in the name of national
security. The Senate created a Select Committee To Study Governmental
Affairs With Respect to Intelligence Communities, chaired by Senator
Frank Church, to conduct a year-long investigation with extensive
public hearings and detailed reports on the investigations of lawful
political dissent and protest. The Church Committee found that the
FBI's internal security and domestic intelligence programs compiled
massive files on activities protected by the First Amendment and the
political opinions of Americans.
During the height of antiwar protest and urban unrest in the late
1960's, Army intelligence joined the FBI in monitoring domestic
political activity. National intelligence agencies such as CIA and NSA
received extensive reporting from the FBI and the military, as well as
from their own intelligence gathering on critics of government policy.
Other law enforcement agencies such as the Internal Revenue Service
were used to selectively investigate organizations based on their
political views. Under President's of both parties, these agencies
disseminated information to the White House about the lawful political
activities and opinions of critics of Administration policy--all under
the rubric of protecting the national security. The scope of
intelligence gathering swept up environmental groups, women's
liberation activists, and virtually any organization that mounted
peaceful protest demonstrations.
During this unfortunate period in our history, the government did
more than just gather information about protest and dissent. The FBI
developed a systematic program to disrupt domestic groups and discredit
their leaders, known as ``COINTELPRO.'' The FBI's efforts included the
selective sharing of information from its investigations to deny people
employment and smear their reputations. Beginning with Communist and
socialist groups, the FBI's COINTELPRO operations spread in the 1960s
to the Klan, the ``new left,'' and black militants. Elements of the
civil
[[Page S10993]]
rights and antiwar movements were targeted for disruption because of
suspicion that they were ``influenced'' by communists; others because
of their strident rhetoric. When some targets were suspected of
engaging in violence, the FBI's tactics went so far as to place lives
in jeopardy by passing false allegations that individuals were
government informants.
The most notorious case was J. Edgar Hoover's vendetta against Dr.
Martin Luther King, Jr. The Church Committee documented the FBI's
effort to discredit Dr. King by disclosing confidential information
that was obtained from wiretaps and microphones targeted against him.
The wiretaps were justified to the Kennedy and Johnson Administrations
on the grounds that some of Dr. King's advisors were Communists, but
this excuse allowed the FBI to mount continuous political surveillance
to undermine Dr. King's effectiveness. The FBI disseminated allegedly
derogatory information not only within the government, but to media and
other private organizations including efforts to deny Dr. King the
Nobel Peace Prize. Most vicious of all was the FBI's preparation of a
composite tape recording that was sent to him anonymously with an
apparent invitation to commit suicide. During the 1964 Democratic
National Convention in Atlantic City where the greatest controversy
involved seating the Mississippi Freedom Democratic Party delegates,
the FBI provided the Johnson White House a continuous flow of political
intelligence from the wiretaps on Dr. King's telephones in Atlantic
City.
These methods of domestic political surveillance and covert
manipulation and disruption have no place in a free society. They are
lawful for the CIA to use against terrorists abroad, under Presidential
authorization and oversight by the Intelligence Committees. In the
United States, however, such surveillance activities by our government
offends our fundamental First Amendment rights of speech and
association, and undermines our democratic values. Since the Church
Committee investigation, one of the main reasons for maintaining
barriers between domestic criminal investigations and foreign
intelligence operations has been a concern that the no-hold-barred
methods used abroad must not be brought back into this country.
The Church Committee recommended a series of safeguards to restrict
the collection of information about Americans by the CIA, the National
Security Agency, and other U.S. intelligence agencies. The Attorney
General issued guidelines for FBI investigations and Presidents issued
Executive Orders requiring procedures approved by the Attorney General
for the collection and retention of information about Americans by U.S.
intelligence agencies. These guidelines and procedures have served for
the past 25 years as a stable framework that, with rare exceptions, has
not allowed previous abuses to recur.
The most significant legislative result of the Church Committee
investigation was the Foreign Intelligence Surveillance Act of 1978
which required court orders for national security electronic
surveillance in the United States. No longer did the Executive branch
have exclusive control over the vast powers of U.S. intelligence to
conduct wiretapping, bugging, and other communications monitoring in
this country. Surveillance was limited to foreign powers and agents of
foreign powers, and the statutory probable cause standard for targeting
an American as an ``agent of a foreign power'' required a showing of
clandestine intelligence activities, sabotage, or international
terrorist activities on behalf of a foreign power. Americans could not
be targeted solely on the basis of activities protected by the First
Amendment. Surveillance of Americans under FISA was limited to
counterintelligence purposes to defend the nation against foreign
spying and terrorism. Americans could not be considered ``agents of a
foreign power'' on the basis of their lawful business or political
relationships with foreign governments or organizations.
The Congress has been cautious in the decades following the
revelations of the Church Committee about allowing use of criminal
justice information for other purposes and, specifically, on sharing
such information with intelligence agencies. In 1979 Attorney General
Benjamin Civiletti testified before the House Judiciary Subcommittee on
Constitutional Rights that the guidelines for ``any dissemination
outside the Bureau . . . will have to be very, very specific. We will
have to be very certain the dissemination is lawful, meets the same
standards of certainty, of intent, which is the basic reason for the
collection of the information and the investigation. . . .'' On the
issue of FBI sharing with the CIA, Attorney General Civiletti said
``you have to be extremely careful in working out, pursuant to the law,
the information which is being exchanged, what its purpose is, how it
was obtained and collected, so that you are not inadvertently, out of a
sense of cooperation or efficiency, perverting or corrupting the fact
that the CIA's main duty is foreign intelligence, and they have no
charter, no responsibility, and not duty performance, no mission to
investigate criminal acts in the United States.''
The bill we are passing today makes potentially sweeping changes in
the relationships between the law enforcement and intelligence
agencies. In the current crisis, there is justification for expanding
authority specifically for counterintelligence to detect and prevent
international terrorism. I support the FBI request for broader
authority under FISA for pen registers and access to records without
having to meet the statutory ``agent of a foreign power'' standard,
because the Fourth Amendment does not normally apply to such techniques
and the FBI has comparable authority in its criminal investigations.
However, I have insisted that this authority to investigate U.S.
persons be limited to counterintelligence investigations conducted to
protect against international terrorism and spying activities and that
such investigations may not be based solely on activities protected by
the First Amendment. None of the changes in FISA would authorize
investigations of Americans for the broader, more ambiguous purpose of
collecting ``foreign intelligence'' generally. In that respect, the
bill adheres to the basic principles recommended by the Church
Committee.
The gravest departure from that framework, and the one with most
potential for abuses, is the new and unprecedented statutory authority
for sharing of ``foreign intelligence'' from criminal investigations
with ``any other Federal law enforcement, intelligence, protective,
immigration, national defense, or national security official.'' The
Church Committee warned of the political abuse of the dissemination of
intelligence from domestic investigations. Intelligence was
disseminated to the White House to track the contacts of members of
Congress with particular foreign embassies. Information was volunteered
to the White House about Administration critics and other political
figures. The Church Committee found ``excessive dissemination of large
amounts of relatively useless or totally irrelevant information'' to
the White House that was not evaluated and ``thus exaggerated the
dangers.''
The Church Committee recommended permitting FBI dissemination of
personally identifiable information about Americans to intelligence,
military and other national security agencies in two areas--
``preventive criminal investigations of terrorist activities'' and
``preventive intelligence investigations of hostile foreign
intelligence activities.'' This has been substantially the practice
under the Attorney General's guidelines and Executive order procedures
since then.
The new authority to disseminate ``foreign intelligence'' from
criminal investigations, including grand juries and law enforcement
wiretaps, is an invitation to abuse without special safeguards.
Fortunately, the final bill includes a provision, which was not in the
Administration's original proposal, to maintain some degree of judicial
oversight of the dissemination of grand jury information. Within a
``reasonable time'' after the disclosure of grand jury information, a
government attorney ``shall file under seal a notice with the court
stating the fact that such information was disclosed and the
departments, agencies, or entities to which the disclosure was made.''
No such judicial role is provided for the disclosure of information
from wiretaps and
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other criminal investigative techniques including the infiltration of
organizations with informants. However, that authority to disclose
without judicial review is subject to the sunset in four years.
Other safeguards can, if used properly, minimize the unnecessary
disclosure of ``foreign intelligence'' that identifies an American.
When the information comes from grand juries or wiretaps, the Attorney
General is required under the bill to establish procedures for the
disclosure of information that identifies a United States person. The
Senate Judiciary Committee will want to take a very close look at these
procedures. Although not required under the bill, such procedures would
also be desirable for disclosure of information from criminal
investigations generally, as permitted under section 203(d). In section
905, where the bill requires disclosure to intelligence agencies from
criminal investigations, the Attorney General is authorized to make
exceptions and must issue implementing procedures. Again, these
procedures will be closely examined by the Senate Judiciary Committee.
These procedures will be critical in determining the scope and impact
of these provisions. Will they focus the sharing of information on
international terrorism, which is the immediate and compelling need
before us, or will they sweep more broadly? Will they permit automatic
dissemination to intelligence agencies of any information about foreign
governments, foreign organizations, or foreign persons that is obtained
in FBI investigations of international organized crime and white collar
crime? What are the specific circumstances under which confidential
information collected by particular agencies, such as the Internal
Revenue Service or the Bureau of Alcohol, Tobacco and Firearms, will be
disseminated to the U.S. Military or other agencies? What will be the
guidelines for including information that identifies United States
persons? How will need-to-know decisions be made on the handling of
this information, and how will access be controlled? What will be done
to ensure compliance with the 1947 ban on CIA having ``police,
subpoena, or law enforcement powers or internal security functions?''
These and many other questions must be the subject of the Judiciary
Committee's oversight of the implementation of the surveillance and
intelligence provisions of this bill. Our government is entering
uncharted territory. Much of the government's experience from the Cold
War era before the mid-1970s warns us of the risks of abuse. Reasonable
measures that we are taking to protect against international terrorism
may have far-reaching ramifications beyond the immediate crisis. There
has never been a greater need for Congressional vigilance to ensure
against unnecessary and improper use of the wide discretion being
granted by a new law. I intend to ask the Attorney General and the
Director of Central Intelligence to advise the Judiciary Committee of
their implementation plans and practices every step of the way.
The final bill includes a long overdue remedy for unauthorized
disclosure of information obtained from electronic surveillance under
FISA and under criminal procedures. If the government monitors the
conversations of a person under the electronic surveillance procedures
of title 18 or FISA and that information is disclosed without proper
authority, the aggrieved person may recover money damages from the
Federal Government. Such improper disclosure is what happened in the
past when the FBI passed information from the electronic surveillance
of Dr. Martin Luther King to selected private individuals and
organizations in an effort to discredit Dr. King. The government itself
would be liable, in addition to individual employees, if something like
this ever happens again.
This provision is especially valuable in this bill, because of the
expanded sharing of information from electronic surveillance in
criminal cases to agencies with intelligence, military, and other
national security responsibilities. When this kind of sensitive
information is disseminated more widely, the risk increases that it
will be leaked.
As a deterrent against malicious leaks, this provision wisely
includes procedures for administrative discipline as well as the civil
remedy against the Government. When a court or the appropriate agency
determines that there is serious question about whether or not an
employee willfully disclosed information without proper authority,
disciplinary proceedings must be initiated. If the agency head decides
that discipline is not warranted, he or she must notify the Inspector
General with jurisdiction over the agency and provide the reasons for
the decision not to impose discipline.
Representative Barny Frank deserves credit for developing this
proposal, and the Department of Justice has worked with Representative
Frank to ensure that the procedures for civil discovery take into
account the needs for protecting related criminal investigations or
prosecutions and classified operations under the Foreign Intelligence
Surveillance Act.
When Congress authorized electronic surveillance in 1968 under title
18 and in 1978 under FISA, the legislation imposed civil and criminal
sanctions for violations by individuals. This bill takes the law two
steps forward by adding government liability and administrative
discipline against government employees. Along with the sunset
provision, judicial oversight of the sharing of grand jury information,
and other improvements, the Frank amendment reflects the valuable
contribution of the House of Representatives towards making this a
balanced bill.
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 11. 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 11. Within 10
days, we passed legislation to establish a Victims Compensations
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 had 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 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
years, 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
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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 bill, 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 11, 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.
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 for
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, and in section 1002, a provision suggested by Senator Durbin
that condemns violence and discrimination against Sikh Americans. 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 that objections prevented the Local Law
Enforcement Enhancement Act, S. 625, from being included in the USA
Act.
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 bill 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 11, 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.
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.
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 effect 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.
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,
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 agencies to coordinate their
counter-terrorism efforts.
During negotiations following initial passage of the Senate and House
bills, we added two new provisions to support State and local
governments in the final legislation. At Senator Biden's request, the
First Responders Assistance Act, was added as section 1005 of H.R.
3062. This provision authorizes a $25 million Department of Justice
program to authorize grants to State and local authorities to respond
to and prevent acts of terrorism.
I authored section 1014 of H.R. 3062 to authorize a Department of
Justice grant program for State and local domestic preparedness
support. These grants will help each State prepare for and respond to
terrorist acts including but not limited to events of terrorism
involving weapons of mass destruction and biological, nuclear,
radiological, incendiary, chemical, and explosive devices. This
provision improves an appropriated program to provide: 1, additional
flexibility to purchase needed equipment; 2, training and technical
assistance to State and local first responders; and 3, a more equitable
allocation of funds to all States.
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
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law enforcement officers to assume these new national responsibilities
without also providing new Federal support. This bill provides five key
provisions for 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 critical information
is not being shared with State and local law enforcement. In
particular, the recent testimony of Baltimore Police Chief Ed Norris
before the House Government Reform Committee highlighted the current
problem. I have also spoken to Mayor Giuliani and to Senator Schumer
and Senator Clinton about the need for better coordination and
information sharing between the FBI and State and local law enforcement
authorities who are being called upon to assist in the current
terrorism investigations. This is no time for turf battles. The FBI
must recognize the contributions of other law enforcement authorities
and facilitate their continued cooperation in this national effort.
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. That border 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 the North
American Free Trade Agreement. 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 now hope that the
Administration will fully fund this critical law enforcement
improvement.
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 provision 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.
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 and assist the FBI in translating foreign language
information collected. I will mention just a few of these provisions.
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 September 11, the FBI Director issued
an employment ad on national TV calling upon Arabic speakers to apply
for a job as an FBI translator. This is a dire situation that needs
attention. I am therefore gratified that the final bill contains my
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.
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 809, 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 810, 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
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added, in section 811, conspiracy provisions to a few criminal statutes
where appropriate, with penalties equal to the penalties for the object
offense, up to life imprisonment.
Finally, we have more carefully defined the new crime of harboring
terrorists in section 803, 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.
I am deeply disappointed that the amendments to the so-called McDade
law, which were included in the original USA Act, S. 1510, which passed
the Senate, are not included in the bill before the Senate today. Well
before September 11, the Justice Department has said that the McDade
law--which subjects Federal prosecutors to multiple and potentially
conflicting State bar rules--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. Despite
this record of opposition, and the increasing demands upon Federal
prosecutors in the wake of the terrorist attacks, the Administration
simply acceded to House demands to remove this provision of the USA
Act. This abandonment has removed a critical law enforcement provision
from the bill. No one in the Senate knows more about the importance of
this provision than Senator Wyden, who worked strenuously to include
the McDade law in this bill. But his efforts and mine proved unavailing
without Administration backing through the entire process.
The McDade law has a dubious history, to say the least. At the end of
the 105th Congress, it was slipped into an omnibus appropriations bill
over the objection of every member of the Senate Judiciary Committee.
Since it was adopted, it has caused numerous problems for Federal
prosecutors, and we must find a way to amend it before more cases are
compromised. At a time when we need Federal law enforcement authorities
to move quickly to catch those responsible for the September 11
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.
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.
Earlier this month, a Greyhound bus crashed in Tennessee after a
deranged passenger slit the driver's throat and then grabbed the
steering wheel, forcing the bus into oncoming traffic. Six people were
killed in the crash. Because there are currently no Federal laws
addressing terrorism of mass transportation systems, however, there may
be no Federal jurisdiction over such a 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.
The Computer Fraud and Abuse Act, 18 U.S.C. Sec. 1030, is the
primary Federal criminal statute 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 814 of
the USA Act. This section would amend the statute to clarify the
appropriate scope of Federal jurisdiction. (1) 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.
(2) The bill amends the definition 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 international hacking cases
and 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.
Borrowing from a bill introduced in the last Congress by Senator
Biden, the USA Act contains a provision in section 817 to strengthen
our Federal laws relating to the threat of biological weapons. At a
time when the national headlines are filled with news about anthrax and
other biological threats, it is fitting that the House added this
provision back to the bill after dropping it from H.R. 2975.
Unfortunately, the bill does not contain certain regulatory provisions
that the Administration initially proposed and later withdrew,
apparently due to its inability to resolve inter-agency conflicts.
Given the grave importance of this issue, I urge the Administration to
resolve these disputes and work with the Congress to provide these
additional protections.
Current law prohibits the possession, development, or acquisition of
biological agents or toxins ``for use as a weapon.'' Section 817 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 817 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
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. At my urging, 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.
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 Forces and to clarify the
authority of the Secret Service to investigate 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 vision to
combat criminal elements in cyberspace, the Secret Service created the
New York Electronic Crimes Task Force (NYECTF). This highly successful
model includes
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over 250 individual members, including 50 different Federal, State and
local law 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, identity 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 506 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 and 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
missions to protect the nation's critical infrastructure and financial
payment systems.
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. I first authored this counter-terrorism fund in S. 1319, the
21st Century Department of Justice Appropriations Authorization Act,
which Senator Hatch and I introduced in August.
Specifically, this counter-terrorism fund may be used: (1) to
reestablish an office or facility that has been damaged as the result
of any domestic or international terrorism incident; (2) to provide
support to counter, investigate, or prosecute domestic or international
terrorism, including paying rewards in connection with these
activities; (3) to 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.
This bill 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 the 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, as I noted at the beginning of my statement, 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.
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.
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.
Section 220 of this bill 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 of a probable cause search warrant rather than through
the more burdensome and time-consuming process of a wiretap.
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.
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
[[Page S10999]]
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.
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 problems 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.
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 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.
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
[[Page S11000]]
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 by 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 in 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 a May 1998 letter
to then-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 has 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.
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 judgement 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. 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.
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,
[[Page S11001]]
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.
This bill 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.
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 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 purposes. 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.
Moreover, 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
[[Page S11002]]
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.
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.
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
on 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 made efforts to mitigate
its potential for abuse somewhat by adding the same safeguards that
apply to disclosure of law enforcement wiretap and grand jury
information.
Another issue that has caused 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,
1337 (2d Cir. 1990).
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,
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