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[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

[[Page S10991]]

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

[[Page S10992]]

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

[[Page S10994]]

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

[[Page S10995]]

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

[[Page S10996]]

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

[[Page S10997]]

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

[[Page S10998]]

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, 
demands that surreptitious entries be closely circumscribed.'' United 
States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).
  The Administration's original proposal would have ignored some of the 
key limitations created by the case law for sneak and peek search 
warrants. First, it would have broadly authorized officers not only to 
conduct surreptitious searches, but also to secretly seize any type of 
property without any additional showing of necessity. This type of 
warrant, which has never been addressed by a published decision of a 
Federal appellate court, has been referred to in a law review article 
written by an FBI agent as a ``sneak and steal'' warrant. See K. Corr, 
``Sneaky But Lawful: The Use of Sneak and Peek Search Warrants,'' 43 U. 
Kan. L. Rev. 1103, 1113 (1995). Second, the proposal would simply have 
adopted the procedural requirements of 18 U.S.C. Sec.  2705 for 
providing delayed notice of a wiretap. Among other things, this would 
have extended the permissible period of delay to a maximum of 90 days, 
instead of the presumptive seven-day period provided by the caselaw on 
sneak and peek warrants.

  I was able to make significant improvements in the Administration's 
original proposal that will help to ensure that the government's 
authority to obtain sneak and peek warrants is not abused. First, the 
provision that is now in section 213 of the bill prohibits the 
government from seizing any tangible property or any wire or electronic 
communication or stored electronic information unless it makes a 
showing of reasonable necessity for the seizure. Thus, in contrast to 
the Administration's original proposal, the presumption is that the 
warrant will authorize only a search unless the government can make a 
specific showing of additional need for a seizure. Second, the 
provision now requires that notice be given within a reasonable time of 
the execution of the warrant rather than giving a blanket authorization 
for up to a 90-day delay. What constitutes a reasonable time, of 
course, will depend upon the circumstances of the particular case. But 
I would expect courts

[[Page S11003]]

to be guided by the teachings of the Second and the Ninth Circuits 
that, in the ordinary case, a reasonable time is no more than seven 
days.
  Several changes in the Foreign Intelligence Surveillance Act, FISA, 
are designed to clarify technical aspects of the statutory framework 
and take account of experience in practical implementation. These 
changes are subject to the four-year sunset.
  The USA Act, in section 207, changes the duration of electronic 
surveillance under FISA in cases of an agent of a foreign power, other 
than a United States persons, who acts in the United States as an 
officer or employee of a foreign power or as a member of an 
international terrorist group. Current law limits court orders in these 
cases to 90 days, the same duration as for United States persons. 
Experience indicates, however, that after the initial period has 
confirmed probable cause that the foreign national meets the statutory 
standard, court orders are renewed repeatedly and the 90-day renewal 
becomes an unnecessary procedural for investigators taxed with far more 
pressing duties.
  The Administration proposed that the period of electronic 
surveillance be changed from 90 days to one year in these cases. This 
proposal did not ensure adequate review after the initial stage to 
ensure that the probable cause determination remained justified over 
time. Therefore, the bill changes the initial period of the 
surveillance from 90 to 120 days and changes the period for extensions 
from 90 days to one year. The initial 120-day period provides for a 
review of the results of the surveillance or search directed at an 
individual before one-year extensions are requested. These changes do 
not affect surveillance of a United States person.
  The bill also changes the period for execution of an order for 
physical search under FISA from 45 to 90 days. This change applies to 
United States persons as well as foreign nationals. Experience since 
physical search authority was added to FISA in 1994 indicates that 45 
days is frequently not long enough to plan and carry out a covert 
physical search. There is no change in the restrictions which provide 
that United States persons may not be the targets of search or 
surveillance under FISA unless a judge finds probable cause to believe 
that they are agents of foreign powers who engage in specified 
international terrorist, sabotage, or clandestine intelligence 
activities that may involve a violation of the criminal statutes of the 
United States.
  The bill, in section 208, seeks to ensure that the special court 
established under FISA has sufficient judges to handle the workload. 
While changing the duration of orders and extensions will reduce the 
number of cases in some categories, the bill retains the court's role 
in pen register and trap and trace cases and expands the court's 
responsibility for issuing orders for records and other tangible items 
needed for counterintelligence and counter terrorism investigations. 
Upon reviewing the court's requirements, the Administration requested 
an increase in the number of Federal district judges designated for the 
court from seven to 11 of whom no less than three shall reside within 
20 miles of the District of Columbia. The latter provision ensures that 
more than one judge is available to handle cases on short notice and 
reduces the need to invoke the alternative of Attorney General approval 
under the emergency authorities in FISA.
  Other changes in FISA and related national security laws are more 
controversial. In several areas, the bill reflects a serious effort to 
accommodate the requests for expanded surveillance authority with the 
need for safeguards against misuse, especially the gathering of 
intelligence about the lawful political or commercial activities of 
Americans. One of the most difficult issues was whether to eliminate 
the existing statutory ``agent of a foreign power'' standards for 
surveillance and investigative techniques that raise important privacy 
concerns, but not at the level that the Supreme Court has held to 
require a court order and a probable cause finding under the Fourth 
Amendment. These include pen register and trap and trace devices, 
access to business records and other tangible items held by third 
parties, and access to records that have statutory privacy protection. 
The latter include telephone, bank, and credit records.
  The ``agent of a foreign power'' standard in existing law was 
designed to ensure that the FBI and other intelligence agencies do not 
use these surveillance and investigative methods to investigate the 
lawful activities of Americans in the name of an undefined authority to 
collect foreign intelligence or counterintelligence information. The 
law has required a showing of reasonable suspicion, less than probable 
cause, to believe that a United States person is an ``agent of a 
foreign power'' engaged in international terrorism or clandestine 
intelligence activities.
  However, the ``agent of a foreign power'' standard is more stringent 
than the standard under comparable criminal law enforcement procedures 
which require only a showing of relevance to a criminal investigation. 
The FBI's experience under existing laws since they were enacted at 
various time over the past 15 years has been that, in practice, the 
requirement to show reasonable suspicion that a person is an ``agent of 
a foreign power'' has been almost as burdensome as the requirement to 
show probable cause required by the Fourth Amendment for more intrusive 
techniques. The FBI has made a clear case that a relevance standard is 
appropriate for counterintelligence and counterterrorism 
investigations, as well as for criminal investigations.
  The challenge, then, was to define those investigations. The 
alternative proposed by the Administration was to cover any 
investigation to obtain foreign intelligence information. This was 
extremely broad, because the definition includes any information with 
respect to a foreign power that relates to, and if concerning a United 
States person is necessary to, the national defense or the security of 
the United States or the conduct of the foreign affairs of the 
United States. This goes far beyond FBI counterintelligence and 
counterterrorism requirements. Instead, the bill requires that use of 
the surveillance technique or access to the records concerning a United 
States person be relevant to an investigation to protect against 
international terrorism or clandestine intelligence activities.

  In addition, an investigation of a United States person may not be 
based solely on activities protected by the First Amendment. This 
framework applies to pen registers and trap and trace under section 
215, access to records and other items under section 215, and the 
national security authorities for access to telephone, bank, and credit 
records. Lawful political dissent and protest by American citizens 
against the government may not be the basis for FBI counterintelligence 
and counterterrorism investigations under these provisions.
  A separate issue for pen registers and trap and trace under FISA is 
whether the court should have the discretion to make the decision on 
relevance. The Administration has insisted on a certification process. 
I discussed this issue as it comes up in the criminal procedures for 
pen registers and trap and trace under title 18, and my concerns apply 
to the FISA procedures as well.
  Among the more controversial changes in FISA requested by the 
Administration was the proposal to allow surveillance and search when 
``a purpose'' is to obtain foreign intelligence information. Current 
law requires that the secret procedures and different probable cause 
standards under FISA be used only if a high-level executive official 
certifies that ``the purpose'' is to obtain foreign intelligence 
formation. The Administration's aim was to allow FISA surveillance and 
search for law enforcement purposes, so long as there was at least some 
element of a foreign intelligence purpose. This proposal raised 
constitutional concerns, which were addressed in a legal opinion 
provided by the Justice Department.
  The Justice Department opinion did not defend the constitutionality 
of the original proposal. Instead, it addressed a suggestion made by 
Senator Feinstein to the Attorney General at the Judiciary Committee 
hearing to change ``the purpose'' to ``a significant purpose.'' No 
matter what statutory change is made even the Department concedes that 
the court may impose a constitutional requirement of ``primary 
purpose'' based on the appellate court decisions upholding FISA against 
constitutional challenges over the past 20 years.

[[Page S11004]]

  Section 218 of the bill adopts ``significant purpose,'' and it will 
be up to the courts to determine how far law enforcement agencies may 
use FISA for criminal investigation and prosecution beyond the scope of 
the statutory definition of ``foreign intelligence information.''
  In addition, I proposed and the Administration agreed to an 
additional provision in Section 505 that clarifies the boundaries for 
consultation and coordination between officials who conduct FISA search 
and surveillance and Federal law enforcement officials including 
prosecutors. Such consultation and coordination is authorized for the 
enforcement of laws that protect against international terrorism, 
clandestine intelligence activities of foreign agents, and other grave 
foreign threats to the nation. Protection against these foreign-based 
threats by any lawful means is within the scope of the definition of 
``foreign intelligence information,'' and the use of FISA to gather 
evidence for the enforcement of these laws was contemplated in the 
enactment of FISA. The Justice Department's opinion cites relevant 
legislative history from the Senate Intelligence Committee's report in 
1978, and there is comparable language in the House report.
  The Administration initially proposed that the Attorney General be 
authorized to detain any alien indefinitely upon his certification that 
the alien met the criteria of the terrorism grounds of the Immigration 
and Nationality Act, or was engaged in any other activity endangering 
the national security of the United States. Under close questioning by 
both Senator Kennedy and Senator Specter at the Committee hearing on 
September 25, the Attorney General said that his proposal was intended 
only to allow the government to hold an alien suspected of terrorist 
activity while deportation proceedings were ongoing. In response to a 
question by Senator Specter, the Attorney General said: ``Our intention 
is to be able to detain individuals who are the subject of deportation 
proceedings on other grounds, to detain them as if they were the 
subject of deportation proceedings on terrorism.'' The Justice 
Department, however, continued to insist on broader authority, 
including the power to detain even if the alien was found not to be 
deportable.
  I remain concerned about the provision, in section 412, but I believe 
that we have twice improved it from the original proposal offered by 
the Administration, first in S. 1510 and second in the bill we pass 
today. S. 1510 provided that the Justice Department had to charge an 
alien with an immigration or criminal violation within seven days of 
taking custody, and that the merits of the Attorney General's 
certification were subject to judicial review. The bill we vote on 
today is further improved. First, if an alien is found not to be 
removable, he must be released from custody. Second, the Attorney 
General can only delegate the power to certify an alien to the Deputy 
Attorney General, ensuring greater accountability and preventing the 
certification decision from being made by low-level officials. Third, 
the Attorney General must review his certification of an alien every 
six months. Fourth, an alien who is found to be removable but has not 
been removed, and whose removal is unlikely in the reasonably 
foreseeable future, may be detained only if the Attorney General 
demonstrates that release of the alien will adversely affect national 
security or the safety of the community or any person. This improvement 
is essential to preserve the constitutionality of the bill. Fifth, 
habeas corpus review of detention is made available in the District 
where the detention is occurring, instead of only in the District Court 
in the District of Columbia. Despite these improvements, this remains a 
major and controversial new power for the Attorney General, and I would 
urge him and his successors to employ great discretion in using it.
  In addition, the Administration initially proposed a sweeping 
definition of terrorist activity and new powers for the Secretary of 
State to designate an organization as a terrorist organization for 
purposes of immigration law. We were able to work with the 
Administration to refine this definition to limit its application to 
individuals who had innocent contacts with non-designated 
organizations. We also limited the retroactive effect of these new 
definitions. If an alien solicited funds or membership, or provided 
material support for an organization that was not designated at that 
time by the Secretary of State, the alien will have the opportunity to 
show that he did not know and should have known that his acts would 
further the organization's terrorist activity. This is substantially 
better than the administration's proposal, which by its terms, would 
have empowered the INS to deport someone who raised money for the 
African National Congress in the 1980s.
  Throughout our negotiations on these issues, Senator Kennedy provided 
steadfast leadership. Although neither of us are entirely pleased with 
the final product, it is far better than it would have been without his 
active involvement.
  I was disappointed that the Administration's initial proposal 
authorizing the President to impose unilateral food and medical 
sanctions would have undermined a law we passed last year with 
overwhelming bipartisan support.
  Under that law, the President already has full authority to impose 
unilateral food and medicine sanctions during this crisis because of 
two exceptions built into the law that apply to our current situation. 
Nevertheless, the Administration sought to undo this law and obtain 
virtually unlimited authority in the future to impose food and medicine 
embargoes, without making any effort for a multi-lateral approach in 
cooperation with other nations. Absent such a multi-lateral approach, 
other nations would be free to step in immediately and take over 
business from American firms and farmers that they are unilaterally 
barred from pursuing.
  Over 30 farm and export groups, including the American Farm Bureau 
Federation, the Grocery Manufacturers of America, the National Farmers 
Union, and the U.S. Dairy Export Council, wrote to me and explained 
that the Administration proposal would ``not achieve its intended 
policy goal.''
  I worked with Senator Enzi, and other Senators, on substitute 
language to give the Administration the tools it needs in this crisis. 
This substitute has been carefully crafted to avoid needlessly hurting 
American farmers in the future, yet it will assure that the U.S. can 
engage in effective multilateral sanctions.
  This bipartisan agreement limits the authority in the bill to 
existing laws and executive orders, which give the President full 
authority regarding this conflict, and grants authority for the 
President to restrict exports of agricultural products, medicine or 
medical devices. I continue to agree with then-Senator Ashcroft, who 
argued in 1999 that unilateral U.S. food and medicine sanctions simply 
do not work when he introduced the ``Food and Medicine for the World 
Act.'' As recently as October 2000, then-Senator Ashcroft pointed out 
how broad, unilateral embargoes of food or medicine are often 
counterproductive. Many Republican and Democratic Senators made it 
clear just last year that the U.S. should work with other countries on 
food and medical sanctions so that the sanctions will be effective in 
hurting our enemies, instead of just hurting the U.S. I am glad that 
with Senator Enzi's help, we were able to make changes in the trade 
sanctions provision to both protect our farmers and help the President 
during this crisis.
  Title III of this bill contains money laundering provisions agreed 
upon by the relevant House and Senate committees. I commend the 
Chairman of the Senate Banking Committee, Senator Sarbanes, for working 
with the House to produce a balanced and effective package of measures 
to combat international money laundering and the financing of 
terrorism.
  The Senate included money laundering provisions in the original USA 
Act, but those provisions were removed from the bill the House passed 
the following day. Instead, the House passed a separate money 
laundering bill, H.R. 3004, on October 17. House and Senate negotiators 
then met to resolve the differences between the bills and produce the 
language contained in the bill the Senate considers today.
  I am very pleased that the House has agreed to include money 
laundering provisions in anti-terrorism legislation. Preventing money 
laundering is a

[[Page S11005]]

crucial part of our efforts to defeat terrorism, and it was important 
for Congress to develop a bipartisan approach to strengthening our 
laws. This bill contains such an approach.
  I am also pleased that a number of provisions that would have 
undermined the Civil Asset Forfeiture Act of 2000, which I sponsored in 
the Senate, have been removed. In addition, this bill does not include 
language that would have unduly expanded administrative subpoena powers 
in all money laundering cases. A more targeted approach was necessary, 
and has been produced.
  This measure could not be considered today and would not be in the 
improved condition it is without the steadfast commitment of our 
Majority Leader. Senator Daschle deserves all the credit for all that 
is good in this bill. Without his commitment and focus, we simply would 
not be in the position to pass this bill today.
  On my behalf and more importantly on behalf of the American people, I 
want to publicly acknowledge his vital role in this legislation.
  I have done my best under the circumstances and want to thank 
especially Senator Kennedy for his leadership on the Immigration parts 
of the bill. My efforts have not been completely successful and there 
are a number of provisions on which the Administration has insisted 
with which I disagree. Frankly, the agreement of September 30, 2001 on 
the sharing of criminal justice information would have led to a better 
balanced bill. I could not stop the Administration from reneging on the 
agreement any more than I could have sped the process to reconstitute 
this bill in the aftermath of those breaches. In these times we need to 
work together to face the challenges of international terrorism. I have 
sought to do so in good faith.
  We have worked around the clock for the past month to put forward the 
best legislative package we could. While I share the administration's 
goal of promptly providing the tools necessary to deal with the current 
terrorist threat, I feel strongly that our responsibilities include 
equipping such tools with safety features to ensure that these tools do 
not cause harm and are not misused.
  I want to conclude my remarks with thanks for the efforts of many 
staff members who have worked tirelessly under unusual and enormously 
inconvenient circumstances to help us craft the legislation before us 
today. In particular, I want to thank Mark Childress and Andrea LaRue 
on the staff of Majority Leader Daschle, and David Hoppe on the staff 
of Republican Leader Lott. I would also like to thank Makan Delrahim, 
Jeff Taylor, Stuart Nash, and Leah Belaire with Senator Hatch, the 
Ranking Member of the Judiciary Committee, Melody Barnes and Esther 
Olavarria with Senator Kennedy, Neil McBride and Eric Rosen with 
Senator Biden, Bob Schiff with Senator Feingold, and Stacy Baird and 
Beth Stein with Senator Cantwell. Finally, I would like to thank my own 
Judiciary Committee staff, especially Bruce Cohen, Beryl Howell, Julie 
Katzman, Ed Pagano, John Elliff, David James, Ed Barron, Tim Lynch, 
Susan Davies, Manu Bhardwaj, Liz McMahon, and Tara Magner.
  I ask unanimous consent that a section-by-section analysis be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 The Uniting and Strengthening America by Providing Appropriate Tools 
Required To Intercept and Obstruct Terrorism (USA Patriot) Act of 2001, 
                 H.R. 3162--Section-by-Section Analysis

       Sec. 1. Short title and table of contents. Both S. 1510 
     passed by the Senate on October 11, 2001 (the ``Senate 
     bill''), and H.R. 2975 passed by the House of Representatives 
     on October 12, 2001, included this section containing the 
     short title ``Uniting and Strengthening America (USA) Act of 
     2001'' and the table of contents for the Act. H.R. 3162, the 
     bill subsequently passed by the House on October 24, 2001 
     (the ``House bill''), changed the title to the ``Uniting and 
     Strengthening America by Providing Appropriate Tools Required 
     to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 
     2001.''
       Sec. 2. Construction; severability. Both the House and 
     Senate bills included this rule of construction to provide 
     that any portion of this Act found to be invalid or 
     unenforceable by its terms, or as applied to any person or 
     circumstance, shall be construed to give it the maximum 
     effect permitted by law and that any portion found invalid or 
     unenforceable in its entirety shall be severable from the 
     rest of the Act.


         title i--enhancing domestic security against terrorism

       Sec. 101. Counterterrorism fund. Both the House and Senate 
     bills included this provision to establish a counterterrorism 
     fund in the Treasury of the United States, without affecting 
     prior appropriations, to reimburse Department of Justice 
     components for costs incurred in connection with terrorism 
     and terrorism prevention, rebuild any Justice Department 
     component damaged or destroyed as a result of a terrorism 
     incident, pay terrorism-related rewards, conduct terrorism 
     threat assessments, and reimburse Federal agencies for costs 
     incurred in connection with detaining suspected terrorists in 
     foreign countries. Not in original Administration proposal.
       Sec. 102. Sense of Congress condemning discrimination 
     against Arab and Muslim Americans. Both the House and Senate 
     bills included this provision to condemn acts of violence and 
     discrimination against Arab Americans, American Muslims, and 
     Americans from South Asia, and to declare that every effort 
     must be taken to protect their safety. Not in original 
     Administration proposal.
       Sec. 103. Increased funding for the technical support 
     center at the Federal Bureau of Investigation. Both the House 
     and Senate bills included this provision to 
     authorize $200,000,000 per year for fiscal years 2002, 
     2003 and 2004 for the Technical Support Center established 
     in section 811 of the Antiterrorism and Effective Death 
     Penalty Act of 1996 to help meet the demands of activities 
     to combat terrorism and enhance the technical support and 
     tactical operations of the FBI. Not in original 
     Administration proposal.
       Sec. 104. Requests for Military Assistance to Enforce 
     Prohibition in Certain Emergencies. Both the House and Senate 
     bills included this provision to authorize the Attorney 
     General to request military assistance in support of 
     Department of Justice activities relating to the enforcement 
     of 18 U.S.C. Sec. 2332a during an emergency situation 
     involving a weapon of mass destruction. Current law 
     references a statute that was repealed in 1998, relating to 
     chemical weapons. Not in original Administration proposal.
       Sec. 105. Expansion of National Electronic Crime Task Force 
     Initiative. Both the House and Senate bills included this 
     provision to allow the Secret Service to develop a national 
     network of electronic crime task forces, based on the highly 
     successful New York Electronic Crimes Task Force model, for 
     the purpose of preventing, detecting, and investigating 
     various forms of electronic crimes, including potential 
     terrorist attacks against critical infrastructure and 
     financial payment systems. Not in original Administration 
     proposal.
       Sec. 106. Presidential authority. Both the House and Senate 
     bills included this provision to give to the President, in 
     limited circumstances involving armed hostilities or attacks 
     against the United States, the power to confiscate and vest 
     in the United States the property of enemies of the United 
     States during times of national emergency, which was 
     permitted by the Trading with the Enemy Act, 50 app. U.S.C. 
     Sec. 5(b), until 1977, when the International Economic 
     Emergency Act was passed. The new provision permits the 
     President, when the United States is engaged in military 
     hostilities or has been subject to attack, to confiscate 
     property of any foreign country, person or organization 
     involved in hostilities or attacks on the United States. This 
     section also permits courts, when reviewing determinations 
     made by the executive branch, to consider classified evidence 
     ex parte and in camera. Same as original Administration 
     proposal.


               TITLE II--ENHANCED SURVEILLANCE PROCEDURES

       [Note: Elimination of original Administration proposal to 
     allow government use of wiretap information on U.S. citizens 
     obtained illegally overseas in violation of the Fourth 
     Amendment and of foreign government laws.]
       Sec. 201. Authority to intercept wire, oral, and electronic 
     communications relating to terrorism. Both the House and 
     Senate bills included this provision to add criminal 
     violations relating to terrorism to the list of predicate 
     statutes in the criminal procedures for interception of 
     communications under chapter 119 of title 18, United States 
     Code. Not in original Administration proposal.
       Sec. 202. Authority to intercept wire, oral, and electronic 
     communications relating to computer fraud and abuse offenses. 
     Both the House and Senate bills included this provision to 
     add criminal violations relating to computer fraud and abuse 
     to the list of predicate statutes in the criminal procedures 
     for interception of communications under chapter 119 of title 
     18, United States Code. Not in original Administration 
     proposal.
       Sec. 203. Authority to share criminal investigative 
     information. Both the House and Senate bills included 
     provisions amending the criminal procedures for interception 
     of communications under chapter 119 of title 18, United 
     States Code, and the grand jury procedures under Rule 6(e) of 
     the Federal Rules of Criminal Procedures to authorize 
     disclosure of foreign intelligence information obtained by 
     such interception or by a grand jury to any Federal law 
     enforcement, intelligence, national security, national 
     defense, protective or immigration personnel to assist the 
     official receiving that information in

[[Page S11006]]

     the performance of his official duties. Section 203(a) 
     requires that within a reasonable time after disclosure of 
     any grand jury information, an attorney for the government 
     notify the court of such disclosure and the departments, 
     agencies or entities to which disclosure was made. Section 
     203(b) pertains to foreign intelligence information obtained 
     by intercepting communications pursuant to a court-ordered 
     wiretap. Section 203(c) also authorizes such disclosure of 
     information obtained as part of a criminal investigation 
     notwithstanding any other law.
       The information must meet statutory definitions of foreign 
     intelligence or counterintelligence or foreign intelligence 
     information. Recipients may use that information only as 
     necessary for their official duties, and use of the 
     information outside those limits remains subject to 
     applicable penalties, such as penalties for unauthorized 
     disclosure under chapter 119, contempt penalties under Rule 
     6(e) and the Privacy Act. The Attorney General must establish 
     procedures for disclosure of information that identifies a 
     United States person, such as the current procedures 
     established under Executive Order 12333 for the intelligence 
     community. Modified Administration proposal to limit scope of 
     personnel eligible to receive information. In case of grand 
     jury information, limited proposal to require notification to 
     court after disclosure.
       Sec. 204. Clarification of intelligence exceptions from 
     limitations on interception and disclosure of wire, oral, and 
     electronic communications. Both the House and Senate bills 
     included this provision to amend the criminal procedures for 
     interception of wire, oral, and electronic communications in 
     title 18, United States Code, to make clear that these 
     procedures do not apply to the collection of foreign 
     intelligence information under the statutory foreign 
     intelligence authorities. Not in original Administration 
     proposal.
       Sec. 205. Employment of translators by the Federal Bureau 
     of Investigation. Both the House and Senate bills included 
     this provision to authorize the FBI Director to expedite the 
     employment of personnel as translators to support 
     counterterrorism investigations and operations without regard 
     to applicable Federal personnel requirements and limitations. 
     Not in original Administration proposal.
       Sec. 206. Roving surveillance authority under the Foreign 
     Intelligence Surveillance Act of 1978. Both the House and 
     Senate bills included this provision to modify the Foreign 
     Intelligence Surveillance Act (``FISA'') to allow 
     surveillance to follow a person who uses multiple 
     communications devices or locations, a modification which 
     conforms FISA to the parallel criminal procedure for 
     electronic surveillance in 18 U.S.C. Sec. 2518(11)(b). The 
     court order need not specify the person whose assistance to 
     the surveillance is required (such as a particular 
     communications common carrier), where the court finds that 
     the actions of the target may have the effect of thwarting 
     the identification of a specified person. Same as original 
     Administration proposal.
       Sec. 207. Duration of FISA surveillance of non-United 
     States persons who are agents of foreign power. Both the 
     House and Senate bills included this provision to change the 
     initial period of a FISA order for a surveillance or physical 
     search targeted against an agent of a foreign power from 90 
     to 120 days, and changes the period for extensions from 90 
     days to one year. One-year extensions for physical searches 
     are subject to the requirement in current law that the judge 
     find ``probable cause to believe that no property of any 
     United States person will be acquired during the period.'' 
     Section 207 also changes the ordinary period for physical 
     searches under FISA from 45 to 90 days. Narrower than 
     Administration proposal which sought to eliminate the initial 
     90-day limitation and authorize surveillance for up to one 
     year from the outset.
       Sec. 208. Designation of judges. Both the House and Senate 
     bills included this provision to increase the number of 
     Federal district judges designated to serve on the FISA court 
     from seven to 11, and requires that no less that 3 of the 
     judges reside within 20 miles of the District of Columbia. 
     Not in original Administration proposal.
       Sec. 209. Seizure of voice-mail messages pursuant to 
     warrants. Both the House and Senate bills included this 
     provision to authorize government access to voice mails with 
     a court order supported by probable cause in the same way e-
     mails currently may be accessed, and authorizes nationwide 
     service with a single search warrant for voice mails. Current 
     law, 18 U.S.C. Sec. 2510(1), defines ``wire communication'' 
     to include ``any electronic storage of such communication,'' 
     with the result that the government must apply for a Title 
     III wiretap order before it may obtain unopened voice mail 
     messages held by a service provider. This section amends the 
     definition of ``wire communication'' so that it no longer 
     includes stored communications. It also amends 18 U.S.C. 
     Sec. 2703 to specify that the government may use a search 
     warrant (instead of a wiretap order) to compel the production 
     of unopened voicemail, thus harmonizing the rules applicable 
     to stored voice and non-voice (e.g., e-mail) communications. 
     Same as Administration proposal.
       Sec. 210. Scope of subpoenas for records of electronic 
     communications. Both the House and Senate bills included this 
     provision to broaden the types of records that law 
     enforcement may obtain, pursuant to a subpoena, from 
     electronic communications service providers by requiring 
     providers to disclose the means and source of payment, 
     including any bank account or credit card numbers. Current 
     law allows the government to use a subpoena to compel 
     communications providers to disclose a small class of records 
     that pertain to electronic communications, limited to such 
     records as the customer's name, address, and length of 
     service. 18 U.S.C. Sec. 2703(c)(1)(C). Investigators may not 
     use a subpoena to obtain such records as credit card number 
     or other form of payment and must use a court order. In many 
     cases, users register with Internet service providers using 
     false names, making the form of payment critical to 
     determining the user's true identity. Same as original 
     Administration proposal.
       Sec. 211. Clarification of scope. Both the House and Senate 
     bills included provisions to amend the Cable Communications 
     Policy Act to clarify that when a cable company acts as a 
     telephone company or an Internet service provider, it must 
     comply with the same laws governing the interception and 
     disclosure of wire and electronic communications that apply 
     to any other telephone company or Internet service provider. 
     This section also expressly provides, however, that 
     authorized disclosures under this provision do not include 
     records that reveal customer cable viewing activity. Modified 
     original Administration proposal to specify that targets do 
     not receive advance notice of wiretap order and amends 
     title 47 to accomplish same purpose as administration 
     proposal.
       Sec. 212. Emergency disclosure of electronic communications 
     to protect life and limb. Both the House and Senate bills 
     included this provision to amend 18 U.S.C. Sec. 2702 to 
     authorize providers of electronic communications services to 
     disclose the communications (or records of such 
     communications) of their subscribers if the provider 
     reasonably believes that an emergency involving immediate 
     danger of death or serious physical injury to any person 
     requires the disclosure of the information without delay. 
     This section also corrects an anomaly in the current law by 
     clearly permitting a provider to disclose non-content records 
     (such as a subscriber's log-in records) as well as the 
     contents of the customer's communications to protect their 
     computer systems. Same as original Administration proposal.
       Sec. 213. Authority for delaying notice of the execution of 
     a warrant. Both the House and Senate bills included this 
     provision to amend 18 U.S.C. Sec. 3103a to authorize a court 
     to issue a search warrant in which the government is 
     permitted to delay providing notice of the warrant's 
     execution. Consistent with the requirements of case law from 
     the Second and Ninth Circuits, this section also provides 
     several limitations on this authority. See United States v. 
     Villegas, 899 F.2d 1324 (2d Cir. 1990); United States v. 
     Freitas, 800 F.2d 1451 (9th Cir. 1986). First, delayed notice 
     is authorized only in cases where the government has 
     demonstrated reasonable cause to believe that providing 
     immediate notice would have an adverse result as defined in 
     18 U.S.C. Sec. 2705. Second, the provision prohibits the 
     government from seizing any tangible property or any wire or 
     electronic communication or stored wire or electronic 
     communication unless it makes a showing of reasonable 
     necessity for the seizure. Third, the warrant must require 
     the giving of notice within a reasonable time of the 
     execution of the search. Narrower than original 
     Administration proposal, which would have permitted delay as 
     law enforcement saw fit.
       Sec. 214. Pen register and trap and trace authority under 
     FISA. Both the House and Senate bills included this provision 
     to modify FISA provisions for pen register and trap and trace 
     to eliminate the requirement to show to the court that the 
     target is in contact with an ``agent of a foreign power.'' It 
     replaces this requirement with a determination that the pen 
     register or trap and trace is relevant to an investigation to 
     protect against international terrorism or clandestine 
     intelligence activities or to obtain foreign intelligence 
     information not concerning U.S. persons. Any investigation of 
     a United States person may not be based solely on activities 
     protected by the First Amendment. Narrower than original 
     Administration proposal, which would simply have removed 
     the ``agent of a foreign power'' requirement.
       Sec. 215. Access to records and other items under the FISA. 
     Both the House and Senate bills included this provision to 
     remove the ``agent of a foreign power'' standard for court-
     ordered access to certain business records under FISA and 
     expands the scope of court orders to include access to other 
     records and tangible items. The authority may be used for an 
     investigation to protect against international terrorism or 
     clandestine intelligence activities or to obtain foreign 
     intelligence information not concerning U.S. persons. An 
     investigation of a United States person may not be based 
     solely on activities protected by the First Amendment. 
     Narrower than original Administration proposal, which would 
     have removed requirements of court order and the ``agent of a 
     foreign power'' showing.
       Sec. 216. Modification of authorities relating to use of 
     pen registers and trap and trace devices. Both the House and 
     Senate bills included this provision to authorize courts to 
     grant pen register and trap and trace orders that are valid 
     anywhere in the nation. It also ensures that the pen register 
     and trap and trace provisions apply to facilities other than 
     telephone lines (e.g., the Internet). It specifically 
     provides, however, that the grant of authority to capture 
     ``routing'' and

[[Page S11007]]

     ``addressing'' information for Internet users does not 
     authorize the interception of the content of any such 
     communications. It further requires the government to use the 
     latest available technology to insure that a pen register or 
     trap and trace device does not intercept the content of any 
     communications. Finally, it provides for a report to the 
     court on each use of ``Carnivore''-like devices on packet-
     switched data networks. Makes a number of improvements over 
     Administration proposal, including exclusion of content, 
     exclusion of ISP liability, and Carnivore report.
       Sec. 217. Interception of computer trespasser 
     communications. Both the House and Senate bills included this 
     provision to allow computer service providers who are victims 
     of attacks by computer trespassers to authorize persons 
     acting under color of law to monitor trespassers on their 
     computer systems in a narrow class of cases. A computer 
     trespasser is defined as a person who accesses a protected 
     computer without authorization and thus has no reasonable 
     expectation of privacy in any communications transmitted to, 
     through, or from the protected computer. However, it does not 
     include a person known by the owner or operator of the 
     protected computer to have an existing contractual 
     relationship with the owner or operator for access to all or 
     part of the protected computer. Narrower than original 
     Administration proposal, which did not exclude service 
     provider subscribers from definition of trespasser and did 
     not limit interception authority to only those 
     communications through the computer in question.
       Sec. 218. Foreign intelligence information. Both the House 
     and Senate bills included this provision to amend FISA to 
     require a certification that ``a significant purpose'' rather 
     than ``the purpose'' of a surveillance or search under FISA 
     is to obtain foreign intelligence information. Narrower than 
     Administration proposal, which would have allowed FISA 
     surveillance if intelligence gathering was merely ``a'' 
     purpose.
       Sec. 219. Single-jurisdiction search warrants for 
     terrorism. Both the House and Senate bills included this 
     provision to amend Federal Rule of Criminal Procedure 41(a) 
     to provide that warrants relating to the investigation of 
     terrorist activities may be obtained in any district in which 
     the activities related to the terrorism may have occurred, 
     regardless of where the warrants will be executed. Same as 
     Administration proposal.
       Sec. 220. Nationwide service of search warrants for 
     electronic surveillance. Both the House and Senate bills 
     included this provision to amend 18 U.S.C. Sec. 2703(a) to 
     authorize courts with jurisdiction over the offense to issue 
     search warrants for electronic communications in electronic 
     storage anywhere in the United States, without requiring the 
     intervention of their counterparts in the districts where 
     Internet service providers are located. Narrower than 
     Administration proposal in that it limits forum shopping 
     problem by limiting to courts with jurisdiction over the 
     offense.
       Sec. 221. Trade sanctions. Both the House and Senate bills 
     included this provision to authorize the President 
     unilaterally to restrict exports of agricultural products, 
     medicine or medical devices to the Taliban or the territory 
     of Afghanistan controlled by the Taliban. Narrower than 
     original Administration proposal which would have undermined 
     the congressional approval requirement, conferring upon the 
     President control of agricultural and medical exports ``to 
     all designated terrorists and narcotics entities wherever 
     they are located.''
       Sec. 222. Assistance to law enforcement agencies. Both the 
     House and Senate bills included this provision that this Act 
     does not impose any additional technical requirements on a 
     provider of a wire or electronic communication service and 
     that a provider of a wire or electronic communication 
     service, landlord, custodian or other person who furnishes 
     facilities or technical assistance pursuant to section 216 
     shall be reasonably compensated for expenditures incurred in 
     providing such facilities or assistance. Not in original 
     Administration proposal.
       Sec. 223. Civil liability for certain unauthorized 
     disclosures. H.R. 2975 included this provision to create 
     civil liability for violations, including unauthorized 
     disclosures, by law enforcement authorities of the electronic 
     surveillance procedures set forth in title 18, United States 
     Code (e.g., unauthorized disclosure of pen trap, wiretap, 
     stored communications), or FISA information. Also requires 
     administrative discipline of officials who engage in such 
     unauthorized disclosures. Not in original Administration 
     proposal.
       Sec. 224. Sunset. H.R. 2975 included a provision to sunset 
     certain amendments made by this title in 3 to 5 years. H.R. 
     3162 provides a 4-year sunset for sections 206, 201, 202, 
     203(b), 204, 206, 207, 209, 210, 212, 214, 215, 217, 218, 
     220, 223--at the end December 31, 2005, with the authorities 
     ``grandfathered'' as to particular investigations based on 
     offenses occurring prior to sunset. No sunset provided in 
     original Administration proposal or S. 1510, and four-year 
     sunset shorter than the five-year sunset in H.R. 2975.


Title III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST 
                         FINANCING ACT OF 2001

       [Note: Elimination of original Administration proposals to 
     allow broad disclosure of individual tax return information; 
     pre-trial restraint of legitimately obtained property in all 
     criminal forfeiture cases; carve-out of tobacco companies 
     from RICO liability for foreign excise taxes; and creation of 
     new criminal offense to misrepresent identification when 
     opening bank account. The Administration bill contained none 
     of the money laundering provisions contained in either the 
     Senate bill or H.R. 3004.]
       Sec. 301. Short title. This section contains the short 
     title of Title III, ``International Money Laundering 
     Abatement and Financial Anti-Terrorism Act of 2001,'' which 
     merges the short title of Title III of the Senate bill with 
     the short title of H.R. 3004, which passed the House of 
     Representatives on October 17, 2001 (``H.R. 3004''). This 
     section also contains the table of contents for Title III.
       Sec. 302. Findings and purposes. The Senate bill included 
     this provision, which states the legislative findings and 
     purposes in support of Title III.
       Sec. 303. 4-Year congressional review; expedited 
     consideration. Section 303, included in the Senate bill, 
     provides that the provisions added and amendments made by 
     Title III will terminate after September 30, 2004, if the 
     Congress enacts a joint resolution to that effect, and that 
     any such joint resolution will be given expedited 
     consideration by the Congress.

Subtitle A--International Counter-Money Laundering and Related Measures

       Sec. 311. Special measures for jurisdictions, financial 
     institutions, or international transactions or accounts of 
     primary money laundering concern. Section 311, included in 
     both the Senate bill and H.R. 3004, adds a new section 5318A 
     to the Bank Secrecy Act, to give the Secretary of the 
     Treasury, in consultation with other senior government 
     officials, authority (in the Secretary's discretion), to 
     impose one or more of five new ``special measures'' against 
     foreign jurisdictions, foreign financial institutions, 
     transactions involving such jurisdictions or institutions, or 
     one more types of accounts, that the Secretary, after 
     consultation with Secretary of State and the Attorney 
     General, determines to pose a ``primary money laundering 
     concern'' to the United States. The special measures include: 
     (1) requiring additional recordkeeping or reporting for 
     particular transactions; (2) requiring the identification of 
     the foreign beneficial owners of certain accounts at a U.S. 
     financial institution; (3) requiring the identification of 
     customers of a foreign bank who use an interbank payable-
     through account opened by that foreign bank at a U.S. bank; 
     (4) requiring the identification of customers of a foreign 
     bank who use an interbank correspondent account opened by 
     that foreign bank at a U.S. bank; and (5) after consultation 
     with the Secretary of State, the Attorney General, and the 
     Chairman of the Federal Reserve Board, restricting or 
     prohibiting the opening or maintaining of certain interbank 
     correspondent or payable-through accounts. Measures (1) 
     through (4) may not be imposed for more than 120 days except 
     by regulation, and measure (5) may only be imposed by 
     regulation.
       Sec. 312. Special due diligence for correspondent accounts 
     and private banking accounts. Section 312, included in both 
     the Senate bill and H.R. 3004, adds a new subsection (i) to 
     31 U.S.C. Sec. 5318, to require a U.S. financial institution 
     that maintains a correspondent account or private banking 
     account for a non-United States person to establish 
     appropriate and, if necessary, enhanced due diligence 
     procedures to detect and report instances of money 
     laundering. The new provision also creates minimum anti-money 
     laundering due diligence standards for U.S. financial 
     institutions that enter into correspondent banking 
     relationships with banks that operate under offshore banking 
     licenses or under banking licenses issued by countries that 
     (1) have been designated as noncooperative with international 
     counter money laundering principles by an international body 
     with the concurrence of the U.S. representative to that body, 
     or (2) have been the subject of special measures authorized 
     by section 311. Finally, the new provision creates minimum 
     anti-money laundering due diligence standards for 
     maintenance of private banking accounts by U.S. financial 
     institutions. New section 31 U.S.C Sec. 5318(i) will take 
     effect 270 days after the date of enactment; the Secretary 
     of the Treasury is required to issue regulations (in 
     consultation with the appropriate Federal functional 
     regulators) within 180 days of enactment further 
     delineating the requirements of the new subsection, but 
     the statute is to take effect whether or not such 
     regulations are issued, and failure to issue final 
     regulations shall in no way affect the enforceability of 
     Sec. 5318(i) as added by section 312.
       Sec. 313. Prohibition on United States correspondent 
     accounts with foreign shell banks. Section 313, included in 
     both the Senate bill and H.R. 3004, adds a new subsection (j) 
     to 31 U.S.C. Sec. 5318, to bar depository institutions and 
     brokers and dealers in securities operating in the United 
     States from establishing, maintaining, administering, or 
     managing correspondent accounts for foreign shell banks, 
     other than shell bank vehicles affiliated with recognized and 
     regulated depository institutions. The new 31 U.S.C. 
     Sec. 5318(j) takes effect 60 days after enactment. The House 
     receded to the Senate with respect to differences in the 
     language of the versions of the provision in the Senate bill 
     and H.R. 3004.
       Sec. 314. Cooperative efforts to deter money laundering. 
     Section 314, contained in the Senate bill, requires the 
     Secretary of the Treasury to issue regulations, within 120 
     days of the date of enactment, to encourage

[[Page S11008]]

     cooperation among financial institutions, financial 
     regulators and law enforcement officials, and to permit the 
     sharing of information by law enforcement and regulatory 
     authorities with such institutions regarding persons 
     reasonably suspected, based on credible evidence, of engaging 
     in terrorist acts or money laundering activities. This 
     section also allows (with notice to the Secretary of the 
     Treasury) the sharing of information among banks involving 
     possible terrorist or money laundering activity, and requires 
     the Secretary of the Treasury to publish, at least 
     semiannually, a report containing a detailed analysis of 
     patterns of suspicious activity and other appropriate 
     investigative insights derived from suspicious activity 
     reports and law enforcement investigations. The final text of 
     this section includes section 203 (Reports to the Financial 
     Services Industry on Suspicious Financial Activities) and 
     portions of section 205 (Public-Private Task Force on 
     Terrorist Financing Issues) of H.R. 3004.
       Sec. 315. Inclusion of foreign corruption offenses as money 
     laundering crimes. Section 315, included in both the Senate 
     bill and H.R. 3004 in somewhat different language, amends 18 
     U.S.C. Sec. 1956 to include foreign corruption offenses, 
     certain U.S. export control violations, certain customs and 
     firearm offenses, certain computer fraud offenses, and 
     felony violations of the Foreign Agents Registration Act 
     of 1938, to the list of crimes that constitute ``specified 
     unlawful activities'' for purposes of the criminal money 
     laundering provisions.
       Sec. 316. Anti-terrorist forfeiture protection. Section 
     316, included in the Senate bill, establishes procedures to 
     protect the rights of persons whose property may be subject 
     to confiscation in the exercise of the government's anti-
     terrorism authority.
       Sec. 317. Long-arm jurisdiction over foreign money 
     launderers. Section 317, which was included in both the 
     Senate bill and H.R. 3004, amends 18 U.S.C. Sec. 1956 to give 
     United States courts ``long-arm'' jurisdiction over foreign 
     persons committing money laundering offenses in the United 
     States, over foreign banks opening U.S. bank accounts, and 
     over foreign persons who convert assets ordered forfeited by 
     a U.S. court. It also permits a Federal court dealing with 
     such foreign persons to issue a pre-trial restraining order 
     or take other action necessary to preserve property in the 
     United States to satisfy an ultimate judgment. The Senate, 
     but not the House, bill included language permitting the 
     appointment by a Federal court of a receiver to collect and 
     take custody of assets of a defendant to satisfy criminal or 
     civil money laundering or forfeiture judgments; with respect 
     to the latter provision, the House receded to the Senate.
       Sec. 318. Laundering money through a foreign bank. Section 
     318, included in both the Senate bill and H.R. 3004, expands 
     the definition of financial institution for purposes of 18 
     U.S.C. Sec. Sec. 1956 and 1957 to include banks operating 
     outside of the United States.
       Sec. 319. Forfeiture of funds in United States interbank 
     accounts. Section 319 combines sections 111, 112, and 113 of 
     H.R. 3004 with section 319 of the Senate bill. This section 
     amends 18 U.S.C. Sec. 981 to treat amounts deposited by 
     foreign banks in interbank accounts with U.S. banks as having 
     been deposited in the United States for purposes of the 
     forfeiture rules, but grants the Attorney General authority, 
     in the interest of justice and consistent with the United 
     States' national interest, to suspend a forfeiture 
     proceeding, based on that presumption. This section also adds 
     a new subsection (k) to 31 U.S.C. Sec. 5318 to require U.S. 
     financial institutions to reply to a request for information 
     from a U.S. regulator relating to anti-money laundering 
     compliance within 120 hours of receipt of such a request, and 
     to require foreign banks that maintain correspondent accounts 
     in the United States to appoint agents for service of process 
     within the United States. The new 31 U.S.C. 5318(k) 
     authorizes the Attorney General and the Secretary of the 
     Treasury to issue a summons or subpoena to any such foreign 
     bank seeking records, wherever located, relating to such a 
     correspondent account, and it requires U.S. banks to sever 
     correspondent arrangements with foreign banks that do not 
     either comply with or contest any such summons or 
     subpoena. Finally, section 319 amends section 413 of the 
     Controlled Substances Act to authorize United States 
     courts to order a convicted criminal to return property 
     located abroad and to order a civil forfeiture defendant 
     to return property located abroad pending trial on the 
     merits. With respect to the provisions requiring a 
     response to certain requests for information by U.S. 
     regulators within 120 hours of receipt and the requirement 
     that correspondent relationships with foreign banks that 
     do not either respond or challenge subpoenas issued under 
     new 31 U.S.C. Sec. 5318(k) must be terminated, the House 
     receded to the Senate. With respect to the power to order 
     convicted criminals to return property located abroad, the 
     Senate receded to the House.
       Sec. 320. Proceeds of foreign crimes. Section 320, included 
     in both the Senate bill and H.R. 3004, amends 18 U.S.C. 
     Sec. 981 to permit the United States to institute forfeiture 
     proceedings against the proceeds of foreign criminal offenses 
     found in the United States.
       Sec. 321. Financial institutions specified in subchapter II 
     of chapter 53 of Title 31, United States Code. Section 321, 
     included in H.R. 3004, amends 31 U.S.C. Sec. 5312(2) to add 
     credit unions, futures commission merchants, commodity 
     trading advisors, or commodity pool operators to the 
     definition of financial institution for purposes of the Bank 
     Secrecy Act, and to provide that the term ``Federal 
     functional regulator'' includes the Commodity Futures Trading 
     Commission for purposes of the Bank Secrecy Act.
       Sec. 322. Corporation represented by a fugitive. Section 
     322, included in both the Senate bill and H.R. 3004, extends 
     the prohibition against the maintenance of a forfeiture 
     proceeding on behalf of a fugitive to include a proceeding by 
     a corporation whose majority shareholder is a fugitive and a 
     proceeding in which the corporation's claim is instituted by 
     a fugitive.
       Sec. 323. Enforcement of foreign judgments. Section 323, 
     included in both the Senate bill and H.R. 3004, permits the 
     government to seek a restraining order to preserve the 
     availability of property subject to a foreign forfeiture or 
     confiscation judgment.
       Sec. 324. Report and recommendation. Section 324, included 
     in the Senate bill, directs the Secretary of the Treasury, in 
     consultation with the Attorney General, the Federal banking 
     agencies, the SEC, and other appropriate agencies to evaluate 
     operation of the provisions of subtitle A of Title III of the 
     Act and recommend to Congress any relevant legislative 
     action, within 30 months of the date of enactment.
       Sec. 325. Concentration accounts at financial institutions. 
     Section 325, included in both the Senate bill and H.R. 3004, 
     authorizes the Secretary of the Treasury to issue regulations 
     concerning the maintenance of concentration accounts by U.S. 
     depository institutions, to prevent an institution's 
     customers from anonymously directing funds into or through 
     such accounts.
       Sec. 326. Verification of identification. Section 326(a), 
     included in H.R. 3004, adds a new subsection (l) to 31 U.S.C. 
     Sec. 5318 to require the Secretary of the Treasury to 
     prescribe by regulation, jointly with each Federal functional 
     regulator, minimum standards for financial institutions and 
     their customers regarding the identity of the customer that 
     shall apply in connection with the opening of an account at a 
     financial institution; the minimum standards shall require 
     financial institutions to implement, and customers (after 
     being given adequate notice) to comply with, reasonable 
     procedures concerning verification of customer identity, 
     maintenance of records of identity verification, and 
     consultation at account opening of lists of known or 
     suspected terrorists provided to the financial institution by 
     a government agency. The required regulations are to be 
     issued within one year of the date of enactment.
       Section 326(b), included in both the Senate bill and H.R. 
     3004, requires the Secretary of the Treasury, again in 
     consultation with the Federal functional regulators (as well 
     as other appropriate agencies), to submit a report to 
     Congress within six months of the date of enactment 
     containing recommendations about the most effective way to 
     require foreign nationals to provide financial institutions 
     in the United States with accurate identity information, 
     comparable to that required to be provided by U.S. nationals, 
     and to obtain an identification number that would function 
     similarly to a U.S. national's tax identification number.
       Sec. 327. Consideration of anti-money laundering record. 
     Section 327, included in H.R. 3004, amends section 3(c) of 
     the Bank Holding Company Act of 1956, and section 18(c) of 
     the Federal Deposit Insurance Act to require the Federal 
     Reserve Board and the Federal Deposit Insurance Corporation, 
     respectively, to consider the effectiveness of a bank holding 
     company or bank (within the jurisdiction of the appropriate 
     agency) in combating money laundering activities, including 
     in overseas branches, in ruling on any merger or similar 
     application by the bank or bank holding company. The Senate 
     receded to the House, with the agreement that the amendments 
     will apply only to applications submitted after December 31, 
     2001.
       Sec. 328. International cooperation on identification of 
     originators of wire transfers. Section 328, included in H.R. 
     3004, requires the Secretary of the Treasury, in consultation 
     with the Attorney General and the Secretary of State, to take 
     all reasonable steps to encourage foreign governments to 
     require the inclusion of the name of the originator in wire 
     transfer instructions sent to the United States, and to 
     report annually to the House Committee on Financial Services 
     and the Senate Committee on Banking, Housing, and Urban 
     Affairs concerning progress toward that goal.
       Sec. 329. Criminal penalties. Section 329, included in the 
     Senate bill, provides criminal penalties for officials who 
     violate their trust in connection with the administration of 
     Title III.
       Sec. 330. International cooperation in investigations of 
     money laundering, financial crimes, and the finances of 
     terrorist groups. Section 330, included in H.R. 3004, states 
     the sense of the Congress that the President should direct 
     the Secretary of State, the Attorney General, or the 
     Secretary of the Treasury, as appropriate and in consultation 
     with the Federal Reserve Board, to seek negotiations with 
     foreign financial supervisory agencies and other foreign 
     officials, to ensure that foreign financial institutions 
     maintain adequate records relating to any foreign terrorist 
     organization or its membership, or any person engaged in 
     money laundering or other financial crimes, and make such 
     records available to U.S. law enforcement and financial 
     supervisory personnel when appropriate.

[[Page S11009]]

    Subtitle B--Bank Secrecy Act Amendments and Related Improvements

       Sec. 351. Amendments relating to reporting of suspicious 
     activities. Section 351, included in both the Senate bill and 
     H.R. 3004, restates 31 U.S.C. Sec. 5318(g)(3) to clarify the 
     terms of the safe harbor from civil liability for financial 
     institutions filing suspicious activity reports pursuant to 
     31 U.S.C. Sec. 5318(g). The amendments to subsection (g)(3) 
     also create a safe harbor from civil liability for banks that 
     provide information in employment references sought by other 
     banks pursuant to the amendment to the Federal Deposit 
     Insurance Act made by section 355. The House receded to the 
     Senate with respect to minor differences in wording between 
     the House and Senate versions of the provision.
       Sec. 352. Anti-money laundering programs. Section 352, 
     included in both the Senate bill and H.R. 3004, amends 31 
     U.S.C. Sec. 5318(h) to require financial institutions to 
     establish anti-money laundering programs and grants the 
     Secretary of the Treasury authority to set minimum standards 
     for such programs. The Senate recedes to the House with 
     respect to a provision in H.R. 3004 that the anti-money 
     laundering program requirement take effect at the end of 
     the 180-day period beginning on the date of enactment of 
     the Act and a related provision that the Secretary of the 
     Treasury shall prescribe regulations before the end of 
     that 180-day period that consider the extent to which the 
     requirements imposed under amended Sec. 5318(h) are 
     commensurate with the size, location, and activities of 
     the financial institutions to which the regulations apply.
       Sec. 353. Penalties for violations of geographic targeting 
     orders and certain recordkeeping requirements, and 
     lengthening effective period of geographic targeting orders. 
     Section 353, included generally in both the Senate bill and 
     H.R. 3004, amends 31 U.S.C. Sec. Sec. 5321, 5322, and 5324 to 
     clarify that penalties for violation of the Bank Secrecy Act 
     and its implementing regulations also apply to violations of 
     Geographic Targeting Orders issued under 31 U.S.C. Sec. 3526, 
     and to certain recordkeeping requirements relating to funds 
     transfers. The House receded to a provision in the Senate 
     bill that also amends 31 U.S.C. Sec. 5326 to make the period 
     of a geographic target order 180 days.
       Sec. 354. Anti-money laundering strategy. Section 354, 
     included in the Senate bill, amends 31 U.S.C. Sec. 5341(b) to 
     add ``money laundering related to terrorist funding'' to the 
     list of subjects to be dealt with in the annual National 
     Money Laundering Strategy prepared by the Secretary of the 
     Treasury pursuant to the Money Laundering and Financial 
     Crimes Strategy Act of 1998.
       Sec. 355. Authorization to include suspicions of illegal 
     activity in written employment references. Section 355, 
     included in both the Senate bill and H.R. 3004, amends 
     Sec. 18 of the Federal Deposit Insurance Act to permit (but 
     not require) a bank to include information, in a response to 
     a request for an employment reference by a second bank, about 
     the possible involvement of a former institution-affiliated 
     party in potentially unlawful activity. The House receded to 
     the Senate with respect to a provision that the safe harbor 
     from civil liability for a bank that provides information to 
     a second bank applies unless the first bank acts with 
     malicious intent.
       Sec. 356. Reporting of suspicious activities by securities 
     brokers and dealers; investment company study. Section 
     356(a), included generally in both the Senate bill and H.R. 
     3004, directs the Secretary of the Treasury, after 
     consultation with the Securities and Exchange Commission and 
     the Federal Reserve Board, to publish proposed regulations, 
     on or before December 31, 2001, and final regulations on or 
     before July 1, 2002, requiring broker-dealers to file 
     suspicious activity reports. The Senate receded to the 
     House with respect to the specific time requirements in 
     section 356(a).
       Sec. 356(b), included in H.R. 3004, authorizes the 
     Secretary of the Treasury, in consultation with the Commodity 
     Futures Trading Commission, to prescribe regulations 
     requiring futures commission merchants, commodity trading 
     advisors, and certain commodity pool operators to submit 
     suspicious activity reports under 31 U.S.C. Sec. 5318(g).
       Sec. 356(c), included in the Senate bill, requires the 
     Secretary of the Treasury, the SEC and Federal Reserve Board 
     to submit jointly to Congress, within one year of the date of 
     enactment, recommendations for effective regulations to apply 
     the provisions of 31 U.S.C. Sec. Sec. 5311-30 to both 
     registered and unregistered investment companies, as well as 
     recommendations as to whether the Secretary should promulgate 
     regulations treating personal holding companies as financial 
     institutions that must disclose their beneficial owners when 
     opening accounts or initiating funds transfers at any 
     domestic financial institution.
       Sec. 357. Special report on administration of bank secrecy 
     provisions. Section 357, included in the Senate bill, directs 
     the Secretary of the Treasury to submit a report to Congress, 
     six months after the date of enactment, on the role of the 
     IRS in the administration of the Bank Secrecy Act, with 
     emphasis on whether IRS Bank Secrecy Act information 
     processing responsibility (for reports filed by all financial 
     institutions) or Bank Secrecy Act audit and examination 
     responsibility (for certain non-bank financial institutions) 
     should be retained or transferred.
       Sec. 358. Bank Secrecy provisions and activities of the 
     United States intelligence agencies. Section 358, included in 
     the same general terms in both the Senate bill and H.R. 3004, 
     contains amendments to various provisions of the Bank Secrecy 
     Act, the Right to Financial Privacy Act, and the Fair Credit 
     Reporting Act, to permit information to be used in the 
     conduct of United States intelligence or counterintelligence 
     activities to protect against international terrorism. This 
     section combines the Senate and House provisions, with each 
     body receding to the other in the case of particular language 
     included in one version of the provision but not the other.
       Sec. 359. Reporting of suspicious activities by underground 
     banking systems. Section 359, included in both the Senate 
     bill and H.R. 3004, clarifies that the Bank Secrecy Act 
     treats certain underground banking systems as financial 
     institutions, and that the funds transfer recordkeeping rules 
     applicable to licensed money transmitters also apply to 
     such underground systems. This section also directs the 
     Secretary of the Treasury to report to Congress, within 
     one year of the date of enactment, on the need for 
     additional legislation or regulatory controls relating to 
     underground banking systems. The House receded to the 
     Senate with respect to certain technical changes in the 
     definition of the underground banking systems at issue.
       Sec. 360. Use of authority of the United States Executive 
     Directors. Section 360, included in Senate bill, authorizes 
     the Secretary of the Treasury to instruct the United States 
     Executive Director of each of the international financial 
     institutions (for example, the IMF and the World Bank) to use 
     such Director's ``voice and vote'' to support loans and other 
     use of resources to benefit nations that the President 
     determines to be contributing to United States efforts to 
     combat international terrorism, and to require the auditing 
     of each international financial institution to ensure that 
     funds are not paid to persons engaged in or supporting 
     terrorism.
       Sec. 361. Financial crimes enforcement network. Section 
     361, included in H.R. 3004, adds a new Sec. 310 to subchapter 
     I of chapter 3 of title 31, United States Code, to make the 
     Financial Crimes Enforcement Network (``FinCEN'') a bureau 
     within the Department of the Treasury, to specify the duties 
     of FinCEN's Director, and to require the Secretary of the 
     Treasury to establish operating procedures for the 
     government-wide data access service and communications center 
     that FinCEN maintains. Section 361 also authorizes 
     appropriations for FinCEN for fiscal years 2002 through 2005. 
     Finally, this section requires the Secretary to study methods 
     for improving compliance with the reporting requirements for 
     ownership of foreign bank and brokerage accounts by U.S. 
     nationals imposed by regulations issued under 31 U.S.C. 
     Sec. 5314. The required report is to be submitted within six 
     months of the date of enactment and annually thereafter.
       Sec. 362. Establishment of highly secure network. Section 
     362, included in H.R. 3004, directs the Secretary of the 
     Treasury to establish, within nine months of enactment, a 
     secure network with FinCEN that will allow financial 
     institutions to file suspicious activity reports and provide 
     such institutions with information regarding suspicious 
     activities warranting special scrutiny.
       Sec. 363. Increase in civil and criminal penalties for 
     money laundering. Section 363, included in the Senate bill, 
     increases from $100,000 to $1,000,000 the maximum civil and 
     criminal penalties for a violation of provisions added to the 
     Bank Secrecy Act by sections 311 and 312 of this Act.
       Sec. 364. Uniform protection authority for Federal Reserve 
     facilities. Section 364, included in H.R. 3004, authorizes 
     certain Federal Reserve personnel to act as law enforcement 
     officers and carry firearms to protect and safeguard Federal 
     Reserve employees and premises.
       Sec. 365. Reports relating to coins and currency received 
     in nonfinancial trade or business. Section 365, included in 
     H.R. 3004, adds 31 U.S.C. Sec. 5331 (and makes related and 
     conforming changes) to the Bank Secrecy Act to require any 
     person who receives more than $10,000 in coins or currency, 
     in one transaction or two or more related transactions in the 
     course of that person's trade or business, to file a report 
     with respect to such transaction with FinCEN. Regulations 
     implementing the new reporting requirement are to be 
     promulgated within six months of enactment.
       Sec. 366. Efficient use of currency transaction report 
     system. Section 366, included in H.R. 3004, requires the 
     Secretary of the Treasury to report to the Congress before 
     the end of the one year period beginning on the date of 
     enactment containing the results of a study of the possible 
     expansion of the statutory system for exempting transactions 
     from the currency transaction reporting requirements and ways 
     to improve the use by financial institutions of the statutory 
     exemption system as a way of reducing the volume of unneeded 
     currency transaction reports.

                      Subtitle C--Currency Crimes

       Sec. 371. Bulk cash smuggling into or out of the United 
     States. Section 371, included in both the Senate bill and 
     H.R. 3004, but with different language relating to 
     forfeiture, creates a new Bank Secrecy Act offense, 31 U.S.C. 
     Sec. 5332, involving the bulk smuggling of more than $10,000 
     in currency in any conveyance, article of luggage or 
     merchandise or

[[Page S11010]]

     container, either into or out of the United States, and 
     related forfeiture provisions. The Senate receded to the 
     House language.
       Sec. 372. Forfeiture in currency reporting cases. Section 
     372, included in the Senate bill and H.R. 3004 with different 
     language concerning mitigation, amends 31 U.S.C. Sec. 5317 to 
     permit confiscation of funds in connection with currency 
     reporting violations consistent with existing civil and 
     criminal forfeiture procedures. The Senate receded to the 
     House language.
       Sec. 373. Illegal money transmitting businesses. Section 
     373, included in H.R. 3004, amends 18 U.S.C. Sec. 1960 to 
     clarify the terms of the offense stated in that 
     provision, relating to knowing operation of an unlicensed 
     (under state law) or unregistered (under Federal law) 
     money transmission business. This section also amends 18 
     U.S.C. Sec. 981(a) to authorize the seizure of funds 
     involved in a violation of 18 U.S.C. Sec. 1960.
       Sec. 374. Counterfeiting domestic currency and obligations. 
     Section 374, included in H.R. 3004, makes a number of changes 
     to the provisions of 18 U.S.C. Sec. Sec. 470-473 relating to 
     the maximum sentences for various counterfeiting offenses, 
     and adds to the definition of counterfeiting in 18 U.S.C. 
     Sec. 474 the making, acquiring, etc. of an analog, digital, 
     or electronic image of any obligation or other security of 
     the United States.
       Sec. 375. Counterfeiting Foreign Currency and Obligations. 
     Section 375, included in H.R. 3004, makes a number of changes 
     to the provisions of 18 U.S.C. Sec. Sec. 478-480 relating to 
     the maximum sentences for various counterfeiting offenses 
     involving foreign obligations or securities and adds to the 
     definition of counterfeiting in 18 U.S.C. Sec. 481 the 
     making, acquiring, etc. of an analog, digital, or electronic 
     image of any obligation or other security of a foreign 
     government.
       Sec. 376. Laundering the proceeds of terrorism. This 
     provision expands the scope of predicate offenses for 
     laundering the proceeds of terrorism to include ``providing 
     material support or resources to terrorist organizations,'' 
     as that crime is defined in 18 U.S.C. Sec. 2339B of the 
     criminal code. Same as original Administration proposal.
       Sec. 377. Extraterritorial jurisdiction. This provision 
     applies the financial crimes prohibitions to conduct 
     committed abroad in situations where the tools or proceeds of 
     the offense pass through or are in the United States. Same as 
     original Administration proposal.


                    TITLE IV--PROTECTING THE BORDER

               Subtitle A--Protecting the Northern Border

       Sec. 401. Ensuring adequate personnel on the Northern 
     border. Both the House and Senate bills included this 
     provision to authorize the Attorney General to waive any cap 
     on the number of full time employees assigned to the INS on 
     the northern border. Not in original Administration proposal.
       Sec. 402. Northern border personnel. Both the House and 
     Senate bills included this provision to authorize additional 
     appropriations to allow for a tripling in personnel for 
     the Border Patrol, INS Inspectors, and the US Customs 
     Service in each State along the northern border, and an 
     additional $50 million each to the INS and the US Customs 
     Service to improve technology and acquire additional 
     equipment for use at the northern border. Not in original 
     Administration proposal.
       Sec. 403. Access by the Department of State and the INS to 
     certain identifying information in the criminal history 
     records of visa applicants and applicants for admission to 
     the United States. Both the House and Senate bills included 
     this provision to give the State Department and INS access to 
     the criminal history record information contained in the 
     National Crime Information Center's Interstate Identification 
     Index, Wanted Persons File, and any other information 
     mutually agreed upon between the Attorney General and the 
     agency receiving access. Same as original Administration 
     proposal.
       Sec. 404. Limited authority to pay overtime. Both the House 
     and Senate bills included this provision to allow the 
     Attorney General to authorize overtime pay for INS employees 
     in an amount in excess of $30,000 during calendar year 2001, 
     to ensure that experienced personnel are available to handle 
     the increased workload generated by the events of September 
     11, 2001. Same as original Administration proposal but based 
     on a Leahy-Conyers proposal.
       Sec. 405. Report on the integrated automated fingerprint 
     identification system for points of entry and overseas 
     consular posts. Both the House and Senate bills included this 
     provision to require the Attorney General to report to 
     Congress on the feasibility of enhancing the FBI's Integrated 
     Automated Fingerprint Identification System or other 
     identification systems to identify foreign passport and visa 
     holders who may be wanted in connection with a criminal 
     investigation in the United States or abroad before issuing a 
     visa to that person or their entry or exit from the United 
     States. Not in original Administration proposal.

              Subtitle B--Enhanced Immigration Provisions

       Sec. 411. Definitions relating to terrorism. Both the House 
     and Senate bills included this provision to amend the 
     definition of ``engage in terrorist activity'' to clarify 
     that an alien who solicits funds or membership or provides 
     material support to a certified terrorist organization is 
     inadmissible and removable. Aliens who solicit funds or 
     membership or provide material support to organizations not 
     designated as terrorist organizations have the opportunity to 
     show that they did not know and should not have known that 
     their actions would further terrorist activity. This section 
     also creates a definition of ``terrorist organization,'' 
     which is not defined under current law, for purposes of 
     making an alien inadmissible or removable. It defines a 
     terrorist organization as one that is (1) designated by 
     the Secretary of State as a terrorist organization under 
     the process supplied by current law; (2) designated by the 
     Secretary of State as a terrorist organization for 
     immigration purposes; or (3) a group of two or more 
     individuals that commits terrorist activities or plans or 
     prepares to commit (including locating targets for) 
     terrorist activities. The changes made by this section 
     will apply to actions taken by an alien before enactment 
     with respect to any group that was at that time certified 
     by the Secretary of State. Narrower than original 
     Administration proposal by allowing an alien to show 
     support for non-designated organization was offered 
     without knowledge of organization's terrorist activity.
       Sec. 412. Mandatory detention of suspected terrorists; 
     habeas corpus; judicial review. Both the House- and Senate-
     passed bills included provisions to grant the Attorney 
     General the authority to certify that an alien meets the 
     criteria of the terrorism grounds of the Immigration and 
     Nationality Act, or is engaged in any other activity that 
     endangers the national security of the United States, upon a 
     ``reasonable grounds to believe'' standard, and take such 
     aliens into custody. This authority is delegable only to the 
     Deputy Attorney General. The Attorney General must either 
     begin removal proceedings against such aliens or bring 
     criminal charges within seven days, or release them from 
     custody. An alien who is charged but ultimately found not to 
     be removable is to be released from custody. An alien who is 
     found to be removable but has not been removed, and whose 
     removal is unlikely in the reasonably foreseeable future, may 
     be detained if the Attorney General demonstrates that release 
     of the alien will adversely affect national security or the 
     safety of the community or any person. Judicial review of any 
     action taken under this section, including review of the 
     merits of the certification, is available through habeas 
     corpus proceedings, with appeal to the U.S. Court of Appeals 
     for the D.C. Circuit. The Attorney General shall review his 
     certification of an alien every six months. Narrower than 
     original Administration proposal in numerous ways, including 
     placing a 7-day limit on detention without charge, ordering 
     release of aliens found not to be removable, and more 
     meaningful judicial review of Attorney General's 
     determination of national security risk posed by alien.
       Sec. 413. Multilateral cooperation against terrorists. Both 
     the House and Senate bills included this provision to provide 
     new exceptions to the laws regarding disclosure of 
     information from State Department records pertaining to the 
     issuance of or refusal to issue visas to enter the U.S., and 
     allows the sharing of this information with a 
     foreign government on a case-by-case basis for the purpose 
     of preventing, investigating, or punishing acts of 
     terrorism. Based on original Administration proposal.
       Sec. 414. Visa integrity and security. This section 
     expresses the sense of the Congress that the Attorney 
     General, in consultation with the Secretary of State, should 
     fully implement the entry/exit system as expeditiously as 
     practicable. Particular focus should be given to the 
     utilization of biometric technology and the development of 
     tamper-resistant documents. Not in original Administration 
     proposal.
       Sec. 415. Participation of Office of Homeland Security on 
     Entry-Exit Task Force. This section includes the new Office 
     of Homeland Security as a participant in the Entry and Exit 
     Task Force established by the Immigration and Naturalization 
     Service Data Management Improvement Act of 2000. Not in 
     original Administration proposal.
       Sec. 416. Foreign student monitoring program. This section 
     seeks to implement the foreign student monitoring program 
     created in 1996 by temporarily supplanting the collection of 
     user fees mandated by the statute with an appropriation of 
     $36,800,000 for the express purpose of fully and effectively 
     implementing the program through January 2003. Thereafter, 
     the program would be funded by user fees. Currently, all 
     institutions of higher education that enroll foreign students 
     or exchange visitors are required to participate in the 
     monitoring program. This section expands the list of 
     institutions to include air flight schools, language training 
     schools, and vocational schools. Not in original 
     Administration proposal.
       Sec. 417. Machine readable passports. This section requires 
     the Secretary of State to conduct an annual audit to assess 
     precautionary measures taken to prevent the counterfeiting 
     and theft of passports among countries that participate in 
     the visa waiver program, and ascertain that designated 
     countries have established a program to develop tamper-
     resistant passports. Results of the audit will be reported to 
     Congress. This provision would advance the deadline for 
     participating nations to develop machine readable passports 
     to October 1, 2003, but permit the Secretary of State to 
     waive the requirements imposed by the deadline if he finds 
     that the program country is making sufficient progress to 
     provide their nationals with machine-readable passports. Not 
     in original Administration proposal.

[[Page S11011]]

       Sec. 418. Prevention of consulate shopping. This section 
     directs the State Department to examine what concerns, if 
     any, are created by the practice of certain aliens to 
     ``shop'' for a visa between issuing posts. Not in original 
     Administration proposal.

    Subtitle C--Preservation of Immigration Benefits for Victims of 
                               Terrorism

       [Note: This subtitle was not in original Administration 
     proposal. It is certain that some aliens fell victim to the 
     terrorist attacks on the U.S. on September 11. For many 
     families, these tragedies will be compounded by the trauma of 
     husbands, wives, and children losing their immigration status 
     due to the death or serious injury of a family member. These 
     family members are facing deportation because they are out of 
     status: they no longer qualify for their current immigration 
     status or are no longer eligible to complete the application 
     process because their loved one was killed or injured in the 
     September 11 terrorist attack. Others are threatened with the 
     loss of their immigration status, through no fault of their 
     own, due to the disruption of communication and 
     transportation that has resulted directly from the terrorist 
     attacks. Because of these disruptions, people have been and 
     will be unable to meet important deadlines, which will mean 
     the loss of eligibility for certain benefits and the 
     inability to maintain lawful status, unless the law is 
     changed.
       At the request of Congressman Conyers and Senator Leahy, 
     this new subtitle (sections 421-428) was included in the 
     final bill to modify the immigration laws to provide the 
     humanitarian relief to these victims and their family members 
     in preserving their immigration status.]
       Sec. 421. Special immigrant status. This section provides 
     permanent resident status to an alien who was the beneficiary 
     of a petition filed (on or before September 11) to grant the 
     alien permanent residence as a family-sponsored immigrant or 
     employer-sponsored immigrant, or of an application for labor 
     certification (filed on or before September 11), if the 
     petition or application was rendered null because of the 
     disability of the beneficiary or loss of employment of the 
     beneficiary due to physical damage to, or destruction of, the 
     business of the petitioner or applicant as a direct result of 
     the terrorist attacks on September 11, or because of the 
     death of the petitioner or applicant as a direct result of 
     the terrorist attacks. Permanent residence would be granted 
     to an alien who was the spouse or child of an alien who was 
     the beneficiary of a petition filed on or before September 11 
     to grant the beneficiary permanent residence as a family-
     sponsored immigrant (as long as the spouse or child follows 
     to join not later than September 11, 2003). Permanent 
     residence would be granted to the beneficiary of a petition 
     for a nonimmigrant visa as the spouse or the fiance (and 
     their children) of a U.S. citizen where the petitioning 
     citizen died as a direct result of the terrorist attack. This 
     section also provides permanent resident status to the 
     grandparents of a child both of whose parents died as a 
     result of the terrorist attacks, if either of such 
     deceased parents was a U.S. citizen or a permanent 
     resident. Not in original Administration proposal.
       Sec. 422. Extension of filing or reentry deadlines. This 
     section provides that an alien who was legally in a 
     nonimmigrant status and was disabled as a direct result of 
     the terrorist attacks on September 11 (and his or her spouse 
     and children) may remain lawfully in the United States (and 
     receive work authorization) until the later of the date that 
     his or her status normally terminates or September 11, 2002. 
     Such status is also provided to the nonimmigrant spouse and 
     children of an alien who died as a direct result of the 
     terrorist attacks. The Act provides that an alien who was 
     lawfully present as a nonimmigrant at the time of the 
     terrorist attacks will be granted 60 additional days to file 
     an application for extension or change of status if the alien 
     was prevented from so filing as a direct result of the 
     terrorist attacks. Also, an alien who was lawfully present as 
     a nonimmigrant at the time of the attacks but was then unable 
     to timely depart the United States as a direct result of the 
     attacks will be considered to have departed legally and will 
     not be considered to have been unlawfully present for the 
     purposes of section 212(a)(9) of the INA if departure occurs 
     before November 11. Not in original Administration proposal.
       Sec. 423. Humanitarian relief for certain surviving spouses 
     and children. Current law provides that an alien who was the 
     spouse of a U.S. citizen for at least 2 years before the 
     citizen died shall remain eligible for immigrant status as an 
     immediate relative. This also applies to the children of the 
     alien. This section provides that if the citizen died as a 
     direct result of the terrorist attacks, the 2-year 
     requirement is waived. This section provides that if an alien 
     spouse, child, or unmarried adult son or daughter had been 
     the beneficiary of an immigrant visa petition filed by a 
     permanent resident who died as a direct result of the 
     terrorist attacks, the alien will still be eligible for 
     permanent residence. In addition, if an alien spouse, child, 
     or unmarried adult son or daughter of a permanent resident 
     who died as a direct result of the terrorist attacks was 
     present in the United States on September 11 but had not yet 
     been petitioned for permanent residence, the alien can self-
     petition for permanent residence. The section also provides 
     that an alien spouse or child of an alien who (1) died as a 
     direct result of the terrorist attacks and (2) was a 
     permanent resident (petitioned-for by an employer) or an 
     applicant for adjustment of status for an employment-based 
     immigrant visa, may have his or her application for 
     adjustment adjudicated despite the death (if the application 
     was filed prior to the death). Not in original Administration 
     proposal.
       Sec. 424. ``Age-out'' protection for children. Under 
     current law, certain visas are only available to an alien 
     until the alien's 21st birthday. This section provides that 
     an alien whose 21st birthday occurs this September and who is 
     a beneficiary for a petition or application filed on or 
     before September 11 shall be considered to remain a child for 
     90 days after the alien's 21st birthday. For an alien whose 
     21st birthday occurs after this September, (and who had a 
     petition for application filed on his or her behalf on or 
     before September 11) the alien shall be considered to remain 
     a child for 45 days after the alien's 21st birthday. Not in 
     original Administration proposal.
       Sec. 425. Temporary administrative relief. This section 
     provides that temporary administrative relief may be provided 
     to an alien who was lawfully present on September 10, was on 
     that date the spouse, parent or child of someone who died or 
     was disabled as a direct result of the terrorist attacks, and 
     is not otherwise entitled to relief under any other provision 
     of this legislation. Not in original Administration proposal.
       Sec. 426. Evidence of death, disability, or loss of 
     employment. This section instructs the Attorney General to 
     establish appropriate standards for evidence demonstrating 
     that a death, disability, or loss of employment due to 
     physical damage to, or destruction of, a business, occurred 
     as a direct result of the terrorist attacks on September 11. 
     The Attorney General is not required to promulgate 
     regulations prior to implementing this subtitle. Not in 
     original Administration proposal.
       Sec. 427. No Benefits to Terrorists or Family Members of 
     Terrorists. This section states that no benefit under this 
     subtitle shall be provided to anyone culpable for the 
     terrorist attacks on September 11 or to any family member of 
     such an individual. Not in original Administration proposal.
       Sec. 428. Definitions. This section defines the term 
     `specified terrorist activity' as any terrorist activity 
     conducted against the Government or the people of the United 
     States on September 11, 2001. Not in original Administration 
     proposal.


         TITLE V--REMOVING OBSTACLES TO INVESTIGATING TERRORISM

       Sec. 501. Attorney General's authority to pay rewards to 
     combat terrorism. Both the House and Senate bills included 
     this provision to authorize the Attorney General to offer 
     rewards--payments to individuals who offer information 
     pursuant to a public advertisement--to gather information to 
     combat terrorism and defend the nation against terrorist acts 
     without any dollar limitation (Current law limits rewards to 
     $2 million). Rewards of $250,000 or more require the personal 
     approval of the Attorney General or President and notice 
     to Congress. Narrower than original Administration 
     proposal.
       Sec. 502. Secretary of State's authority to pay rewards. 
     Both the House and Senate bills included this provision to 
     authorize the Secretary of State to offer rewards--payments 
     to individuals who offer information pursuant to a public 
     advertisement--to gather information to combat terrorism and 
     defend the nation against terrorist acts without any dollar 
     limitation (Current law limits rewards to $5 million). 
     Rewards of $100,000 or more require the personal approval of 
     the Secretary of State and notice to Congress. Narrower than 
     original Administration proposal.
       Sec. 503. DNA identification of terrorists and other 
     violent offenders. Both the House and Senate bills included 
     this provision to authorize the collection of DNA samples 
     from any person convicted of certain terrorism-related 
     offenses and other crimes of violence, for inclusion in the 
     national DNA database. Modified from original Administration 
     proposal.
       Sec. 504. Coordination with law enforcement. Both the House 
     and Senate bills included this provision to amend FISA to 
     authorize consultation between FISA officers and law 
     enforcement officers to coordinate efforts to investigate or 
     protect against international terrorism, clandestine 
     intelligence activities, or other grave hostile acts of a 
     foreign power or an agent of a foreign power. Not in original 
     Administration proposal.
       Sec. 505. Miscellaneous national security authorities. Both 
     the House and Senate bills included this provision to modify 
     current statutory provisions on access to telephone, bank, 
     and credit records in counterintelligence investigations to 
     remove the ``agent of a foreign power'' standard. The 
     authority may be used only for investigations to protect 
     against international terrorism or clandestine intelligence 
     activities, and an investigation of a United States person 
     may not be based solely on activities protected by the First 
     Amendment. Narrower than original Administration proposal 
     which simply removed ``agent of foreign power'' requirement.
       Sec. 506. Extension of Secret Service jurisdiction. Both 
     the House and Senate bills included this provision to give 
     the Secret Service concurrent jurisdiction to investigate 
     offenses relating to fraud and related activity in connection 
     with computers, and permanently extends its current authority 
     to investigate financial institution fraud. Not in original 
     Administration proposal.

[[Page S11012]]

       Sec. 507. Disclosure of educational records. Both the House 
     and Senate bills included this provision to require 
     application to a court to obtain educational records in the 
     possession of an educational agency or institution if it is 
     determined by the Attorney General or Secretary of Education 
     (or their designee) that doing so could reasonably be 
     expected to assist in investigating or preventing a federal 
     terrorism offense or domestic or international terrorism. 
     Limited immunity is given to persons producing such 
     information acting in good faith, and the Attorney General is 
     directed to issue guidelines to protect confidentiality. 
     Narrower than original Administration proposal.
       Sec. 508. Disclosure of information from NCES surveys. Both 
     the House and Senate bills included this provision to require 
     application to a court to obtain reports, records and 
     information in the possession of the National Center for 
     Educational Statistics that are relevant to an authorized 
     investigation or prosecution of terrorism. Limited immunity 
     is given to persons producing such information acting in good 
     faith, and the Attorney General is directed to issue 
     guidelines to protect confidentiality. Narrower than original 
     Administration proposal.


 TITLE VI--PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS, 
                           AND THEIR FAMILIES

         Subtitle A--Aid for Families of Public Safety Officers

       Sec. 611. Expedited payment for public safety officers 
     involved in the prevention, investigation, rescue, or 
     recovery efforts related to a terrorist attack. Both the 
     House and Senate bills included this provision to streamline 
     the Public Safety Officers Benefits Program application 
     process for family members of law enforcement officers, 
     firefighters, and emergency personnel who perished or 
     suffered serious injury in connection with prevention, 
     investigation, rescue or recovery efforts related to a 
     terrorist attack. The Public Safety Officers Benefits Program 
     provides benefits for each of the families of law enforcement 
     officers, fire fighters, emergency response squad members, 
     ambulance crew members who are killed or permanently and 
     totally disabled in the line of duty ($151,635 in FY 2001). 
     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. 
     Not in original Administration proposal.
       Sec. 612. Technical correction with respect to expedited 
     payments for heroic public safety officers. Both the House 
     and Senate bills included this provision to make technical 
     corrections to Public Law 107-37 to provide sufficient 
     information to make expedited Public Safety Officers Benefits 
     Program payments to the fallen firefighters, emergency 
     personnel and law enforcement officers who perished or 
     were disabled during the rescue and recovery efforts 
     related to the terrorist attacks of September 11, 2001. 
     Modified from original Administration proposal.
       Sec. 613. Public safety officers benefits program payment 
     increase. Both the House and Senate-passed bills included 
     this provision to raise the total amount of Public Safety 
     Officers Benefits Program payment to $250,000 and is 
     effective for any death or disability occurring on or after 
     January 1, 2001. Not in original Administration proposal.
       Sec. 614. Office of Justice programs. Both the House and 
     Senate bills included this provision to amend the Office of 
     Justice Program's authorities to enhance the authority of the 
     Assistant Attorney General to coordinate and manage emergency 
     response activities of its various components including the 
     Public Safety Officers Benefits Program. Modified from 
     original Administration proposal.

       Subtitle B--Amendments to the Victims of Crime Act of 1984

       [Note: The original Administration proposal did not include 
     most of the provisions of this subtitle to streamline the 
     administration of the Crime Victims Fund.]
       Sec. 621. Crime victims fund. Both the House and Senate 
     bills included this provision to authorize the Office for 
     Victims of Crime (OVC) to replenish the antiterrorism 
     emergency reserve with up to $50 million and establishes a 
     mechanism to allow for replenishment in future years. Funds 
     added to the Crime Victims Fund to respond to the September 
     11 attacks shall not be subject to the cap or the new formula 
     provisions. A technical clarification includes the September 
     11th Victim Compensation Fund established in Public Law 107-
     42 as one of the Federal benefits that should be a primary 
     payer to the States. This section also replaces the annual 
     cap on the Fund with a self-regulating system that ensures 
     stability in the amounts distributed while preserving the 
     amounts remaining for use in future years; it authorizes 
     private gift-giving to the Fund; and it increases the portion 
     of the Fund available for discretionary grants and assistance 
     to victims of Federal crime. Significant expansion of 
     original Administration proposal.
       Sec. 622. Crime victim compensation. Both the House and 
     Senate bills included this provision to increase the minimum 
     threshold for the annual grant to State compensation 
     programs. It clarifies that a payment of compensation to a 
     victim shall not used in means tests for Federal benefit 
     programs. A technical clarification removes the dual 
     requirement that State crime victim compensation programs 
     cover victims of terrorism occurring outside the United 
     States. Not in original Administration proposal.
       Sec. 623. Crime victim assistance. Both the House and 
     Senate bills included this provision to authorize States to 
     give VOCA funds to U.S. Attorney's Offices in jurisdictions 
     where the U.S. Attorney is the local prosecutor. It prohibits 
     victim assistance programs from discriminating against 
     certain victims; authorizes grants to eligible victim 
     assistance programs for program evaluation and compliance 
     efforts; and allows use of funds for fellowships, clinical 
     internships and training programs. Not in original 
     Administration proposal.
       Sec. 624. Victims of terrorism. Both the House and Senate 
     bills included this provision to conform VOCA's domestic 
     terrorism section to the international terrorism section, 
     giving OVC the flexibility to deliver timely and critically-
     needed assistance to victims of terrorism and mass violence 
     occurring within the United States. It also makes a technical 
     correction to recent legislation that inadvertently reversed 
     the existing exclusion under VOCA of individuals eligible for 
     other Federal compensation under the Omnibus Diplomatic 
     Security and Antiterrorism Act of 1986. Expansion of original 
     Administration proposal.


 TITLE VII--INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE 
                               PROTECTION

       [Note: The original Administration proposal did not include 
     this subtitle to expand regional information sharing to 
     facilitate Federal-state-local law enforcement responses to 
     terrorism.]
       Sec. 701. Expansion of regional information sharing system 
     to facilitate Federal-State-local law enforcement response 
     related to terrorist attacks. Both the House and Senate bills 
     included this provision to expand the Department of Justice 
     Regional Information Sharing Systems (RISS) Program to 
     facilitate information sharing among Federal, State and local 
     law enforcement agencies to investigate and prosecute 
     terrorist conspiracies and activities and doubles its 
     authorized funding for FY2002 and FY2003. Currently, 5,700 
     Federal, State and local law enforcement agencies participate 
     in the RISS Program. Not in original Administration proposal.


     TITLE VIII--STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM

       Sec. 801. Terrorist attacks and other acts of violence 
     against mass transportation systems. Both the House and 
     Senate bills included this provision to create a new statute 
     (to be codified at 18 U.S.C. Sec. 1993) to make punishable 
     acts of terrorism and other violence against mass 
     transportation vehicles, systems, facilities, employees and 
     passengers; the reporting of false information about such 
     activities; and attempts and conspiracies to commit such 
     offenses. Violations are punishable by a fine and term 
     imprisonment of 20 years; however, the mass transportation 
     vehicle was carrying a passenger at the time of the attack, 
     or if death resulted from the offense, the maximum term of 
     imprisonment is increased to life. Not in original 
     Administration proposal.
       Sec. 802. Definition of domestic terrorism. Both the House 
     and Senate bills included this provision to define the term 
     ``domestic terrorism'' as a counterpart to the current 
     definition of ``international terrorism'' in 18 U.S.C. 
     Sec. 2331. The new definition for ``domestic terrorism'' is 
     for the limited purpose of providing investigative 
     authorities (i.e., court orders, warrants, etc.) for acts of 
     terrorism within the territorial jurisdiction of the United 
     States. Such offenses are those that are ``(1) dangerous to 
     human life and violate the criminal laws of the United States 
     or any state; and (2) appear to be intended (or have the 
     effect)--to intimidate a civilian population; influence 
     government policy intimidation or coercion; or affect 
     government conduct by mass destruction, assassination, or 
     kidnapping (or a threat of).'' Same as Administration 
     proposal.
       Sec. 803. Prohibition against harboring terrorists. Both 
     the House and Senate bills included this provision to 
     establish a new criminal prohibition against harboring 
     terrorists, similar to the current prohibition in 18 U.S.C. 
     Sec. 792 against harboring spies, and makes it an offense 
     when someone harbors or conceals another they know or should 
     have known had engaged in or was about to engage in federal 
     terrorism offenses. Narrower than Administration's proposal 
     except that the final bill removes the Administration's 
     original proposal to make it an offense to harbor someone 
     merely suspected of engaging in terrorism.
       Sec. 804. Jurisdiction over crimes committed at U.S. 
     facilities abroad. Both the House and Senate bills included 
     this provision to extend the special maritime and territorial 
     jurisdiction of the United States to cover, with respect to 
     offenses committed by or against a U.S. national, U.S. 
     diplomatic, consular and military missions, and residences 
     used by U.S. personnel assigned to such missions. Based on 
     original Administration proposal.
       Sec. 805. Material support for terrorism. Both the House 
     and Senate bills included this provision to amend 18 U.S.C. 
     Sec. 2339A, which prohibits providing material support to 
     terrorists, in four respects. First, it adds three terrorism-
     related offenses to the list of Sec. 2339A predicates. 
     Second, it provides that Sec. 2339A violations may be 
     prosecuted in any Federal judicial district in which the 
     predicate offense was committed. Third, it clarifies that 
     monetary instruments, like currency and other financial 
     securities, may constitute ``material support or resources''

[[Page S11013]]

     for purpose of Sec. 2339A. Fourth, it explicitly prohibits 
     providing terrorists with ``expert advice or assistance,'' 
     such as flight training, knowing or intending that it will be 
     used to prepare for or carry out an act of terrorism. Same as 
     original Administration proposal.
       Sec. 806. Assets of terrorists organizations. Both the 
     House and Senate bills included this provision to provide 
     that the assets of individuals and organizations engaged in 
     planning or perpetrating acts of terrorism against the United 
     States, as well as the proceeds and instrumentalities of such 
     acts, are subject to civil forfeiture. Same as original 
     Administration proposal.
       Sec. 807. Technical clarification relating to provision of 
     material support to terrorism. Both the House and Senate 
     bills included this provision to clarify that the provisions 
     of the Trade Sanctions Reform and Export Enhancement Act of 
     2000 (title IX of Public Law 106-387) do not limit or 
     otherwise affect the criminal prohibitions against providing 
     material support to terrorists or designated terrorist 
     organizations, 18 U.S.C. Sec. Sec. 2339A & 2339B. Same as 
     original Administration proposal.
       Sec. 808. Definition of Federal crime of terrorism. Both 
     the House and Senate bills included this provision to update 
     the list of predicate offenses under the current definition 
     of ``Federal crime of terrorism,'' 18 U.S.C. 
     Sec. 2332b(g)(5). Narrower than original Administration 
     proposal.
       Sec. 809. No statute of limitation for certain terrorism 
     offenses. Both the House and Senate bills included this 
     provision to eliminate the statute of limitations for certain 
     terrorism-related offenses, if the commission of such offense 
     resulted in, or created a foreseeable risk of, death or 
     serious bodily injury to another person. Narrower than 
     original Administration proposal.
       Sec. 810. Alternative maximum penalties for terrorism 
     offenses. Both the House and Senate bills included this 
     provision to raise the maximum prison terms to 15 or 20 years 
     or, if death results, life, in the following criminal 
     statutes: 18 U.S.C. Sec. 81 (arson within the special 
     maritime and territorial jurisdiction of the United 
     States); 18 U.S.C. Sec. 1366 (destruction of an energy 
     facility); 18 U.S.C. Sec. 2155(a) (destruction of 
     national-defense materials); 18 U.S.C. Sec. Sec. 2339A & 
     2339B (provision of material support to terrorists and 
     terrorist organizations); 42 U.S.C. Sec. 2284 (sabotage of 
     nuclear facilities or fuel); 19 U.S.C. Sec. 46505(c) 
     (killings on aircraft); 49 U.S.C. Sec. 60123(b) 
     (destruction of interstate gas or hazardous liquid 
     pipeline facility). Narrower than original Administration 
     proposal.
       Sec. 811. Penalties for terrorist conspiracies. Both the 
     House and Senate-passed bills included this provision to 
     ensure adequate penalties for certain terrorism-related 
     conspiracies by adding conspiracy provisions to the following 
     criminal statutes: 18 U.S.C. Sec. 81 (arson within the 
     special maritime and territorial jurisdiction of the United 
     States); 18 U.S.C. Sec. 930(c) (killings in Federal 
     facilities); 18 U.S.C. Sec. 1362 (destruction of 
     communications lines, stations, or systems); 18 U.S.C. 
     Sec. 1363 (destruction of property within the special 
     maritime and territorial jurisdiction of the United States); 
     18 U.S.C. Sec. 1992 (wrecking trains); 18 U.S.C. Sec. 2339A 
     (material support to terrorists); 18 U.S.C. Sec. 2340A 
     (torture); 42 U.S.C. Sec. 2284 (sabotage of nuclear 
     facilities or fuel); 49 U.S.C. Sec. 46504 (interference with 
     flight crews); 49 U.S.C. Sec. 46505 (carrying weapons or 
     explosives on aircraft); 49 U.S.C. Sec. 60123 (destruction of 
     interstate gas or hazardous liquid pipeline facility). 
     Narrower than original Administration proposal.
       Sec. 812. Post-release supervision of terrorists. Both the 
     House and Senate bills included this provision to authorize 
     extended period of supervised release for certain terrorism-
     related offenses that resulted in, or created a foreseeable 
     risk of, death or serious bodily injury to another person. 
     Narrower than original Administration proposal.
       Sec. 813. Inclusion of acts of terrorism as racketeering 
     activity. Both the House and Senate bills included this 
     provision to amend the RICO statute to include certain 
     terrorism-related offenses within the definition of 
     ``racketeering activity,'' thus allowing multiple acts of 
     terrorism to be charged as a pattern of racketeering for RICO 
     purposes. This section expands the ability of prosecutors to 
     prosecute members of established, ongoing terrorist 
     organizations that present the threat of continuity that the 
     RICO statute was designed to permit prosecutors to combat. 
     Narrower than original Administration proposal.
       Sec. 814. Deterrence and prevention of cyberterrorism. Both 
     the House and Senate bills included this provision to clarify 
     the criminal statute prohibiting computer hacking, 18 U.S.C. 
     Sec. 1030, to cover computers located outside the United 
     States when used in a manner that affects the interstate 
     commerce or communications of this country, update the 
     definition of ``loss'' to ensure full costs to victims of 
     hacking offenses are counted, clarify the scope of civil 
     liability and eliminate the current mandatory minimum 
     sentence applicable in some cases. Not in original 
     Administration proposal.
       Sec. 815. Additional defense to civil actions relating to 
     preserving records in response to Government requests. Both 
     the House and Senate bills included this provision to provide 
     an additional defense under 18 U.S.C. Sec. 2707(e)(1) to 
     civil actions relating to preserving records in response to 
     Government requests. Not in original Administration proposal.
       Sec. 816. Development and support of cybersecurity forensic 
     capabilities. Both the House and Senate bills included this 
     provision to require the Attorney General to establish 
     regional computer forensic laboratories and to support 
     existing computer forensic laboratories to help combat 
     computer crime. Not in original Administration proposal.
       Sec. 817. Expansion of the biological weapons statute. The 
     Senate-passed bill included this provision to amend the 
     definition of ``for use as a weapon'' in the current 
     biological weapons statute, 18 U.S.C. Sec. 175, to include 
     all situations in which it can be proven that the defendant 
     had any purpose other than a prophylactic, protective, or 
     peaceful purpose. This section also creates a new criminal 
     statute, 18 U.S.C. Sec. 175b, which generally makes it an 
     offense for certain restricted persons, including non-
     resident foreign nationals of countries that support 
     international terrorism, to possess a listed biological agent 
     or toxin. Finally, this section provides that the Department 
     of Health and Human Services enhance its role in bioterrorism 
     prevention by establishing and enforcing standards and 
     procedures governing the possession, use, and transfer of 
     certain biological agents that have a high national security 
     risk, including safeguards to prevent access to such agents 
     for use in domestic or international terrorism. Modified from 
     original Administration proposal, which did not require the 
     government to establish the mens rea of the defendant to 
     prove the crime of possession of the biological weapon.


                    TITLE IX--IMPROVED INTELLIGENCE

       Sec. 901. Responsibilities of Director of Central 
     Intelligence regarding foreign intelligence collected under 
     the Foreign Intelligence Surveillance Act of 1978. Both the 
     House and Senate bills included this provision to clarify the 
     role of the Director of Central Intelligence (``DCI'') with 
     respect to the overall management of collection 
     goals, analysis and dissemination of foreign intelligence 
     gathered pursuant to the Foreign Intelligence Surveillance 
     Act, in order to ensure that FISA is properly and 
     efficiently used for foreign intelligence purposes. It 
     requires the DCI to assist the Attorney General in 
     ensuring that FISA efforts are consistent with 
     constitutional and statutory civil liberties. The DCI will 
     have no operational authority with respect to 
     implementation of FISA, which will continue to reside with 
     the FBI. Not in original Administration proposal.
       Sec. 902. Inclusion of international terrorism activities 
     within scope of foreign intelligence under National Security 
     Act of 1947. Both the House and Senate bills included this 
     provision to revise the National Security Act definitions 
     section to include ``international terrorism'' as a subset of 
     ``foreign intelligence.'' This change will clarify the DCI's 
     responsibility for collecting foreign intelligence related to 
     international terrorism. Not in original Administration 
     proposal.
       Sec. 903. Sense of Congress on the establishment and 
     maintenance of intelligence relationships to acquire 
     information on terrorists and terrorist organizations. Both 
     the House and Senate bills included this provision to express 
     the Sense of Congress that the CIA should make efforts to 
     recruit informants to fight terrorism. Not in original 
     Administration proposal.
       Sec. 904. Temporary authority to defer submittal to 
     Congress of reports on intelligence and intelligence-related 
     matters. Both the House and Senate bills included this 
     provision to allow the Secretary of Defense, the Attorney 
     General and the DCI to defer the submittal of certain reports 
     to Congress until February 1, 2002. Not in original 
     Administration proposal.
       Sec. 905. Disclosure to Director of Central Intelligence of 
     foreign intelligence-related information with respect to 
     criminal investigations. Both the House and Senate bills 
     included this provision to create a responsibility for law 
     enforcement agencies to notify the Intelligence Community 
     when a criminal investigation reveals information of 
     intelligence value. Regularizes existing ad hoc notification, 
     and makes clear that constitutional and statutory 
     prohibitions of certain types of information sharing apply. 
     Not in original Administration proposal.
       Sec. 906. Foreign Terrorist Asset Tracking Center. Both the 
     House and Senate bills included this provision to regularize 
     the existing Foreign Terrorist Asset Tracking Center by 
     creating an element within the Department of Treasury 
     designed to review all-source intelligence in support of both 
     intelligence and law enforcement efforts to counter 
     terrorist financial support networks. Not in original 
     Administration proposal.
       Sec. 907. National Virtual Translation Center. Both the 
     House and Senate bills included this provision to direct the 
     submission of a report on the feasibility of establishing a 
     virtual translation capability, making use of cutting-edge 
     communications technology to link securely translation 
     capabilities on a nationwide basis. Not in original 
     Administration proposal.
       Sec. 908. Training of government officials regarding 
     identification and use of foreign intelligence. Both the 
     House and Senate bills included this provision to direct the 
     Attorney General, in consultation with the DCI, to establish 
     a training program for Federal, State and local officials on 
     the recognition and appropriate handling of intelligence 
     information discovered in the normal course of their duties. 
     Not in original Administration proposal.

[[Page S11014]]

                         TITLE X--MISCELLANEOUS

       Sec. 1001. Review of the Department of Justice. This 
     provision authorizes the Inspector General of the Department 
     of Justice to designate one official to review information 
     and receive complaints alleging abuses of civil rights and 
     civil liberties by employees and officials of the Department 
     of Justice. Not in original Administration proposal.
       Sec. 1002. Sense of Congress. This provision condemns 
     discrimination and acts of violence against Sikh-Americans. 
     Not in original Administration proposal.
       Sec. 1003. Definition of ``electronic surveillance.'' This 
     provision authorizes the use of the new computer trespass 
     authority under FISA. Not in original Administration 
     proposal.
       Sec. 1004. Venue in money laundering cases. This provision 
     clarifies the judicial districts in which money laundering 
     prosecutions under 18 U.S.C. Sec. Sec. 1956 and 1957 may be 
     brought. Not in original Administration proposal.
       Sec. 1005. First responders assistance act. This provision 
     authorizes grants to State and local authorities to respond 
     to and prevent acts of terrorism. Not in original 
     Administration proposal.
       Sec. 1006. Inadmissibility of aliens engaged in money 
     laundering. This provision makes inadmissible to the United 
     States any alien who a consular officer or the Attorney 
     General knows, or has reason to believe, is involved in a 
     Federal money laundering offense. Not in original 
     Administration proposal.
       Sec. 1007. Authorization of funds for DEA police training 
     in South and Central Asia. This provision authorizes money 
     for anti-drug training in the Republic of Turkey, and for 
     increased precursor chemical control efforts in the South and 
     Central Asia region. Not in original Administration proposal.
       Sec. 1008. Feasibility study on use of biometric identifier 
     scanning system with access to the FBI Integrated automated 
     fingerprint identification system at overseas consular posts 
     and points of entry to the United States. This provision 
     directs the Attorney General to report to Congress on the 
     feasibility of using a biometric identifier (fingerprint) 
     scanning system, with access to the FBI fingerprint database, 
     at consular offices abroad and at points of entry into the 
     United States. Not in original Administration proposal.
       Sec. 1009. Study of access. This provision directs the FBI 
     to report to Congress on the feasibility of providing 
     airlines with computer access to the names of suspected 
     terrorists. Not in original Administration proposal.
       Sec. 1010. Temporary authority to contract with local and 
     State governments for performance of security functions at 
     United States military installations. This provision provides 
     temporary authority for the Department of Defense to enter 
     contracts for the performance of security functions at any 
     military installation of facility in the United States with a 
     proximately located local or State government. Not in 
     original Administration proposal.
       Sec. 1011. Crimes against charitable Americans. This 
     provision amends the Telemarketing and Consumer Fraud and 
     Abuse Prevention Act to require any person engaged in 
     telemarketing for the solicitation of charitable 
     contributions to disclose to the person receiving the call 
     that the purpose of the call is to solicit charitable 
     contributions, and to make such other disclosures as the FTC 
     considers appropriate. Not in original Administration 
     proposal.
       Sec. 1012. Limitation on issuance of hazmat licenses. This 
     provision allows the Department of Transportation to obtain 
     background records checks for any individual applying for a 
     license to transport hazardous materials in interstate 
     commerce. Not in original Administration proposal.
       Sec. 1013. Expressing the sense of the Senate concerning 
     the provision of funding for bioterrorism preparedness and 
     response. This provision expresses the sense of the Senate 
     that the United States should make a substantial new 
     investment this year toward improving State and local 
     preparedness to respond to potential bioterrorism attacks. 
     Not in original Administration proposal.
       Sec. 1014. Grant program for State and local domestic 
     preparedness support. This provision authorizes an 
     appropriated Department of Justice program to provide grants 
     to States to 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. 
     The authorization revises this grant 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. Not in original Administration proposal.
       Sec. 1015. Expansion and reauthorization of the Crime 
     Identification Technology Act for antiterrorism grants to 
     States and localities. This provision adds an additional 
     antiterrorism purpose for grants under the Crime 
     Identification Technology Act, and authorizes grants under 
     that Act through fiscal year 2007. Not in original 
     Administration proposal.
       Sec. 1016. Critical infrastructures protection. This 
     provision establishes a National Infrastructure Simulation 
     and Analysis Center (NISAC) to address critical 
     infrastructure protection and continuity through support for 
     activities related to counterterrorism, threat assessment, 
     and risk mitigation. Not in original Administration proposal.

  Mr. LEAHY. After that terrible day of September 11, we began looking 
at our laws, and what we might do. Unfortunately, at first, rhetoric 
overcame reality. We had a proposal sent up, and we were asked to pass 
it within a day or so. Fortunately for the country, and actually 
ironically beneficial to both the President and the Attorney General 
who asked for such legislation, we took time to look at it, we took 
time to read it, and we took time to remove those parts that were 
unconstitutional and those parts that would have actually hurt 
liberties of all Americans.

  I say that because I think of what Benjamin Franklin was quoted as 
saying at a time when he literally had his neck on the line, where he 
would have been hanged if our revolution had failed. He said: A people 
who would give up their liberty for security deserve neither.
  What we have tried to do in this legislation is to balance the 
liberties we enjoy as Americans and those liberties that have made us 
the greatest democracy in history but at the same time to enhance our 
security so we can maintain that democracy and maintain the leadership 
we have given the rest of the world.
  We completed our work 6 weeks after the September 11 attacks. I 
compare this to what happened after the bombing of the Federal Building 
in Oklahoma City in 1995. It took a year to complete the legislation 
after that. We have done this in 6 weeks. But there has been a lot of 
cooperation. There have been a lot of Senators and a lot of House 
Members in both parties and dedicated staff who have worked around the 
clock.
  I think of my own staff--and this could be said of many others, 
including the Presiding Officer's staff and the ranking member's 
staff--who were forced out of their offices because of the recent 
scares on Capitol Hill, and they continue to work literally in phone 
booths and in hallways and from their homes and off laptops and cell 
phones.
  I made a joke in my own hide-away office. To those who have ever 
watched ``The X-Files,'' there is a group called ``the lone gunmen,'' 
who are sort of these computer nerds who meet in a small house trailer. 
I am seeing some puzzled looks around the Senate as I say this. But 
they have all these wires hanging from the ceiling and laptops and all, 
and they do great things. That is the way our office looked. But they 
were working around the clock on this legislation to get something 
better. There was some unfortunate rhetoric along the way, but again, 
the reality overcame it. We have a good piece of legislation.

  As we look back to when we began discussions with the administration 
about this bill, there were sound and legitimate concerns on both sides 
of the Capitol, both sides of the aisle, about the legislation's 
implication for America's rights and freedoms. There was also a sincere 
and committed belief that we needed to find a way to give law 
enforcement authority new tools in fighting terrorism.
  This is a whole new world. It is not similar to the days of the cold 
war where we worried about armies marching against us or air forces 
flying against us or navies sailing against us. This is not that world. 
Nobody is going to do that because we are far too powerful. Since the 
end of the cold war, with the strength of our military, nobody is going 
to do a frontal attack. But as the Presiding Officer and everyone else 
knows, a small dedicated group of terrorists, with state-supported 
efforts, can wreak havoc in an open and democratic Nation such as ours.
  Anybody who has visited the sites of these tragedies doesn't need to 
be told the results. We know our Nation by its very nature will always 
be vulnerable to these types of attacks. None of us serving in the 
Senate today will, throughout our service, no matter how long it is, 
see a day where we are totally free of such terrorist attacks. That is 
the sad truth. Our children and our grandchildren will face the 
possibilities of such terrorist attacks because that is the only way 
the United States can be attacked. But that doesn't mean we are 
defenseless. It doesn't mean we suddenly surrender.

[[Page S11015]]

  We have the ability, with our intelligence agencies and our law 
enforcement, to seek out and stop people before this happens. We are in 
an open session today, so I won't go into the number of times we have 
done that. But in the last 10 years, we have had, time and time again, 
during the former Bush administration, during the Clinton 
administration, and in the present administration, potential terrorist 
attacks thwarted. People have either been apprehended or eliminated.
  Everybody in America knows our life has changed. Whether the security 
checks and the changes in our airlines are effective or not, we know 
they are reality. We know travel is not as easy as it once was. We will 
be concerned about opening mail. We will worry when we hear the sirens 
in the night. But we are not going to retreat into fortress America. We 
are going to remain a beacon of democracy to the rest of the world. 
Americans don't run and hide. Americans face up, as we have, to 
adversities, whether they be economic or wars or anything else.
  We began this process knowing how we had to protect Americans. It was 
not that we were intending to see how much we could take out of the 
administration's proposal, but it was with a determination to find 
sensible, workable ways to do the same things to protect America the 
administration wanted but with checks and balances against abuse. We 
have seen at different times in this Nation's history how good 
intentions can be abused. We saw it during the McCarthy era.
  Following the death of J. Edgar Hoover, we found how much 
totalitarian control of the FBI hurt so many innocent people without 
enhancing our security. We saw it during the excesses of the special 
prosecutor law enacted with good intentions.
  We wanted to find checks and balances. We wanted to make sure we 
could go after terrorism. We wanted to make sure we could go after 
those who would injure our society, those who would strike at the very 
democratic principles that ironically make us a target. But we wanted 
to do it with checks and balances against abuse. That is what we did. 
In provision after provision, we added those safeguards that were 
missing from the administration's plan.
  By taking the time to read and improve the antiterrorism bill, 
Congress has done the administration a great favor in correcting the 
problems that were there. We have used the time wisely. We have 
produced a far better bill than the administration proposed. Actually, 
it is a better bill than either this body or the House initially 
proposed. The total is actually greater than the sum of the parts.
  We have done our utmost to protect Americans against abuse of these 
new law enforcement tools, and there are new law enforcement tools 
involved. In granting these new powers, the American people but also 
we, their representatives in Congress, grant the administration our 
trust that they are not going to be misused. It is a two-way street. We 
are giving powers to the administration; we will have to extend some 
trust that they are not going to be misused.
  The way we guarantee that is congressional oversight. Congressional 
oversight is going to be crucial in enforcing this compact. If I might 
paraphrase former President Reagan: We will entrust but with oversight.
  We will do this. The Republican chairman and his ranking member in 
the House of Representatives intend to have very close oversight. I can 
assure you that I and our ranking member will have tight oversight in 
the Senate.
  Interestingly enough, the 4-year sunset provision included in this 
final agreement will be an enforcement mechanism for adequate 
oversight.
  We did not have a sunset provision in the Senate bill. The House 
included a 5-year provision. The administration wanted even 10 years. 
We compromised on 4. It makes sense. It makes sense because with 
everybody knowing there is that sunset provision, everybody knows they 
are going to have to use these powers carefully and in the best way. If 
they do that, then they can have extensions. If they don't, they won't. 
It also enhances our power for oversight.
  This is not precisely the bill that Senator Hatch would have written. 
It is not precisely the bill I would have written, or not precisely the 
bill the Presiding Officer or others on the floor would have written. 
But it is a good bill. It is a balanced bill. It is a greatly improved 
piece of legislation. It is one that sets up the checks and balances 
necessary in a democratic society that allow us to protect and preserve 
our security but also protect and preserve our liberties.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, shortly after the September 11 attack on 
America, the President of the United States asked Congress to pass 
legislation that would provide our law enforcement and intelligence 
agencies the tools they needed to wage war on the terrorists in our 
midst. These tools represent the domestic complement to the weapons our 
military currently is bringing to bear on the terrorists' associates 
overseas. At the same time, the President asked that, in crafting these 
tools, we remain vigilant in protecting the constitutional freedoms of 
all Americans--certainly of all law-abiding Americans.
  After several weeks of negotiations with Chairman Leahy, the House of 
Representatives, and the administration, we have developed bipartisan 
consensus legislation that will accomplish both of these goals. It 
enhances our ability to find, track, monitor, and prosecute terrorists 
operating here in the U.S. without in any way undermining civil 
liberties.
  We can never know whether these tools would have prevented the attack 
on America, but, as the Attorney General has said, it is certain that 
without these tools we did not stop the vicious acts of last month.
  I personally believe that if these tools had been in law--and we have 
been trying to get them there for years--we would have caught those 
terrorists. If these tools could help us now to track down the 
perpetrators--if they will help us in our continued pursuit of 
terrorists--then we should not hesitate to enact these measures into 
law. God willing, the legislation we pass today will enhance our 
abilities to protect and prevent the American people from ever again 
being violated as we were on September 11.
  This legislation truly represents the product of intense, yet 
bipartisan, negotiations. Senator Leahy and I carried out a painstaking 
review of the antiterrorism proposal submitted by the administration. 
There have been several hearings on this legislation in the Senate--not 
just this year, but in prior years--on some of the provisions and 
features that we have in here, including discussions during the 
enactment of the 1996 Antiterrorism Effective Death Penalty Act, called 
the Dole-Hatch bill.
  We have heard from countless experts and advocates on all sides of 
this issue in this debate. Of late, we have also worked closely with 
Chairman Sensenbrenner in the House, Mr. Conyers, the ranking member on 
the House Judiciary Committee, and others in our effort to complete 
legislation that could receive near unanimous approval and support in 
the Congress. Although I do not expect every Senator to vote in favor 
of this legislation, Senator Leahy and I have worked tirelessly to 
accommodate every concern. While Members ultimately may differ on some 
of these proposals, I know we all share the same overriding concern, 
and that is protecting our country from further harm.
  The bill before us, which I hope we will pass today, differs in 
several respects from the legislation we passed in the Senate 2 weeks 
ago. These changes result from negotiations with our House 
counterparts, and some of the changes are certainly not objectionable. 
For example, we have included language requiring prosecutors to notify 
Federal courts when they have disclosed grand jury information to other 
Federal agencies for national security purposes. Also, the bill 
includes a provision requiring law enforcement to provide detailed 
reports concerning their use of the FBI's so-called Carnivore computer 
surveillance system. These changes will properly encourage the law 
enforcement community to use these tools responsibly.
  Unfortunately, not all of the changes are welcome. For instance, our 
effort to mitigate the unforeseen problems created by a change in the 
law governing the discipline of Federal prosecutors was rebuffed by the 
House of

[[Page S11016]]

Representatives. As a result, Federal prosecutors will continue to be 
hampered by the myriad and often contradictory State bar rules, and 
sometimes very politicized State bar rules. Even more alarming, Federal 
law enforcement authorities in the State of Oregon will continue to be 
prohibited from engaging in legitimate undercover activity--even 
undercover activity designed to infiltrate a terrorist cell. That is 
ridiculous. Nevertheless, we could not get our House counterparts to 
resolve that problem.
  Another troublesome change concerns the 4-year sunset provision. As 
my colleagues know, the legislation that passed the Senate 2 weeks ago 
by a vote of 96-1 did not contain a sunset. This omission was 
intentional and wise. In my opinion, a sunset will undermine the 
effectiveness of the tools we are creating here and send the wrong 
message to the American public that somehow these tools are 
extraordinary.
  One hardly understands the need to sunset legislation that both 
provides critically necessary tools and protects our civil liberties. 
Furthermore, as the Attorney General stated, how can we sunset these 
tools when we know full well that the terrorists will not sunset their 
evil intentions? I sincerely hope we undertake a thorough review and 
further extend the legislation once the 4-year period expires. At 
least, we will have 4 years of effective law enforcement against 
terrorism that we currently do not have.
  Despite these provisions, the legislation before us today deserves 
unanimous support. The core provisions of the legislation we passed in 
the Senate 2 weeks ago remain firmly in place. For instance, in the 
future, our law enforcement and intelligence communities will be able 
to share information and cooperate fully in protecting our Nation 
against terrorist attacks.

  Our laws relating to electronic surveillance also will be updated. 
Electronic surveillance conducted under the supervision of a Federal 
judge happens to be one of the most powerful tools at the disposal of 
our law enforcement community. We now know that e-mail, cellular 
telephones, and the Internet have been the principal tools used by 
terrorists to coordinate their attacks, and our law enforcement and 
intelligence agencies have been hamstrung by laws that were enacted 
long before the advent of these technologies. This bill will modernize 
our laws so our law enforcement agencies can deal with the world as it 
is, rather than with the world as it existed 20 years ago.
  Also, the legislation retains the compromise immigration proposals 
that I negotiated with Senator Leahy, Senator Kennedy, Senator Kyl, 
Senator Brownback, and also Senator Feinstein, who has played a 
significant role. She and Senator Kyl have both played significant 
roles leading up to this particular bill, and over the last 5 years in 
particular. We have worked hard to craft language that allows the 
Attorney General to be proactive, rather than reactive, without 
sacrificing the civil liberties of noncitizens.
  In total, the amendments made by this legislation to the Immigration 
and Nationality Act reflect, and account for, the complex and often 
mutating nature of terrorist groups by expanding the class of 
inadmissible and deportable aliens and providing a workable mechanism 
by which the Attorney General may take into custody suspected alien 
terrorists. Further, the legislation breaks down some of the barriers 
that have in the past prevented the State Department, the Immigration 
and Naturalization Service, the FBI, and others from effectively 
communicating with each other. If we are to fight terrorism, we cannot 
allow terrorists, or those who support terrorists, to enter or to 
remain in our country.
  Finally, the bill provides the administration with powerful tools to 
attack the financial infrastructure of terrorism. For instance, the 
legislation expands the President's authority to freeze the assets of 
terrorists and terrorist organizations and provides for the eventual 
seizure of such assets. These financial tools will give our Government 
the ability to choke off the financing that these dangerous 
organizations need in order to survive.
  The legislation provides numerous other tools--too many to mention 
here--to aid our war against terrorism. Many of these were added at the 
request of our Senate colleagues, and I commend all of them for their 
input.
  Before I yield the floor, I must take a moment to acknowledge the 
hard work by my staff, the staff of Senator Leahy, and the 
representatives of the administration, from the White House and the 
Justice Department and elsewhere, who were involved in the negotiation 
of this bill. These people have engaged in discussions literally around 
the clock over the 6 weeks to produce this legislation. So I thank 
everybody who has worked on this legislation.
  This is a major anticrime, antiterrorism bill. It is probably the 
most important bill we will enact this year, certainly with regard to 
national security and terrorism. I thank everybody involved, and I will 
make further remarks about that later in the debate.
  With that, I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. GRAHAM. Madam President, it is my hope that today as we pass this 
antiterrorism legislation and as we will in future days take action on 
issues of resources to fight antiterrorism and changes in 
organizational structure, we will be making as significant a national 
statement about our will and determination to eliminate the scourge of 
global terrorism as previous generations did about other scourges that 
afflicted our country.
  It was not that long ago that America was beset by the scourge of 
organized crime. Many of our communities had been seriously invaded by 
these insidious influences of organized crime. People, many of whom 
occupy the chairs that we now occupy in this very Chamber, decided a 
half century or more ago that was intolerable and we would take the 
necessary steps to recapture the essential values of our country.
  I think it is fair to say we live in a much safer and more secure 
America because of those efforts. I hope that in years in the future 
those who occupy this Chamber will look back with a similar belief that 
the actions we are taking now have had a similar effect in terms of 
making this a more secure, not just America but world for our children 
and grandchildren.
  With that hope, I wish to talk about a few of the provisions of this 
legislation that relate directly to America's intelligence community 
and the role it will play in securing that future.
  First, a bit of history. For most of America's history, we have been 
extremely uncomfortable with the idea of clandestine intelligence. It 
ran contrary to our basic spirit of national openness. While the 
British have had a well-developed intelligence system since the 
Napoleonic wars, our first adventure in this field really is a product 
of the Second World War, and as soon as the war was over, the military 
intelligence services were essentially collapsed.
  Two years later, President Truman recognized that with the advent of 
the Soviet Union and the development of what we came to know as the 
Iron Curtain that separated the Soviet Union from the free world, we 
were going to have to have some capability to understand what this 
large adversary was about and therefore prepare ourselves. So in 1947 
the National Security Act was adopted which created the Central 
Intelligence Agency and from that the other intelligence agencies which 
now constitute America's intelligence community.
  For 40 years that intelligence community was focused on one target: 
the Soviet Union and its Warsaw Pact allies. We knew that community. 
The United States had been dealing with Russia since even before John 
Quincy Adams was our Ambassador in St. Petersburg. It was a homogenous 
enemy. Most of the countries spoke Russian, and therefore if we had 
command of that language, we could understand what most of the Warsaw 
Pact nations were saying. It was also an old style symmetrical enemy: 
We were matching tanks for tanks, nukes for nukes.
  With the fall of the Berlin Wall, the world changed in terms of 
intelligence requirements. Suddenly, instead of one enemy, we had 
dozens of enemies. Suddenly, instead of having command of one language 
which made us linguistically competent, there were scores of languages 
we had to learn to speak. In

[[Page S11017]]

Afghanistan alone, there are more than a half dozen languages with 
which one must have some familiarity in order to understand what is 
being said there. And instead of symmetrical relationships, we now have 
small groups of a dozen or a hundred or a thousand or so against a 
nation the size of the United States of America. So our intelligence 
community has been challenged to respond to this new reality. This 
legislation is going to accelerate that response.

  Let me focus, in my limited time, on three areas within this 
legislation that I think will be significantly beneficial.
  The first goes to the reality that we have had, in large part, out of 
this history of unease with dealing with clandestine information, an 
orientation to treat terrorist activities as crimes and put up yellow 
tape, secure the crime scene, hold the information very close because 
we did not want to have it infected so that the evidence could not be 
used at a subsequent trial that would lead to the conviction of the 
perpetrator. In the course of that, we also shut off the ability to 
share information which might allow us to anticipate the future actions 
of those same perpetrators and interdict an act of terrorism before it 
had occurred.
  We take some significant steps to overcome that orientation by the 
provisions contained in this legislation which will require the sharing 
of criminal justice information with intelligence agencies. I 
underscore the word ``require'' because even as recently as today's 
Washington Post, there is an article describing the legislation which 
uses the term ``the authority to share,'' as if this were a permissive 
requirement.
  In fact, the legislation very explicitly makes it mandatory. I refer 
to page 308 beginning at line 9 where it states that the Attorney 
General or the head of any other Department or Agency of the Federal 
Government with law enforcement responsibilities shall --shall--
expeditiously disclose to the Director of Central Intelligence pursuant 
to guidelines developed foreign intelligence acquired by an element of 
the Department of Justice or any element of such Department or Agency, 
as the case may be, in the course of a criminal investigation.
  We are closing that gap which has in the past been a major source of 
limitation and frustration to our ability to predict and interdict 
future actions.
  Second, we are dealing with the issue of the empowerment of the 
Director of Central Intelligence. We tend to think of the CIA as being 
the lead agency for our intelligence community. In fact, that is not 
correct. If one looks at an organizational chart, across the top is the 
Director of Central Intelligence. Under the Director of Central 
Intelligence is a series of agencies, of which the CIA is one, which 
have operational responsibility.
  If one looks at that chart, one assumes the Director of Central 
Intelligence is the head coach, the leader with the ability to command 
and control the intelligence community. In fact, because of other 
authorities, including budget authority and personnel authorities and 
some culture of individuality by agencies, the Director of Central 
Intelligence has not been fully empowered.
  We take a step in this legislation towards giving the Director of 
Central Intelligence greater authority and in a very significant area. 
We have a limited capability to eavesdrop on the communication of 
potential adversaries, including terrorists. Under the current 
structure, it is primarily the responsibility of the Federal Bureau of 
Investigation, which actually operates and targets our electronic 
surveillance, as to which target will be listened to first if we cannot 
listen to everybody because we do not have, for instance, enough people 
who can understand the exotic language in which the communication is 
being spoken.
  This legislation will establish the fact it is the Director of 
Central Intelligence who will decide what the strategic priorities for 
the use of our electronic surveillance will be. So if the Director of 
Central Intelligence is aware we face a terrorist attack from a 
specific terrorist organization which speaks a specific language, those 
communications will be given the priority for purposes of how we will 
use our available electronic surveillance capability.
  The Director of Central Intelligence will then also, at the back end 
of that process, have the primary responsibility for determining how to 
disseminate that information. The nightmare that exists, and will exist 
until we complete a full review of what happened on September 11, is we 
are going to find someplace a tape of a conversation we secured which 
will disclose what would have been key information as to what was being 
prepared, what plot was being matured which resulted in the terror of 
September 11.
  These provisions are intended to prioritize, on the front end, what 
we will gather information against and, on the back end, who will be 
first in line to get the information that has come from that 
surveillance.
  A third provision goes to the criticism that the intelligence 
community has become risk adverse; that we have been reticent to take 
on the hardest targets because they are hard, because they may result 
in failure and nonaccomplishment of the mission. As President Kennedy 
said as we started our space program, we start this not because it is 
easy but because it is hard and it will challenge us to our fullest.
  One of the areas in which we have become risk adverse has been the 
area of hiring foreign nationals to do work which it is very difficult 
for Americans to do, not because we are not smart, capable people, but 
if we are going to hire someone or secure the services of someone who 
can get close to an ominous figure such as Osama bin Laden, frankly, it 
is probably somebody who is pretty similar to bin Laden. It is someone 
who can gain his confidence. That may well mean he has been an 
associate of bin Laden in the past, has engaged in some of the 
activities we so abhor.
  Today there is a sense within the intelligence community we should 
not hire people who have that kind of background because they are 
potentially unreliable but also because they bring a dirty background.
  This legislation, through a sense-of-the-Congress statement, reverses 
that and says our priority goal in employing persons to assist in our 
antiterrorism activity should be to acquire services of persons who can 
be of greatest assistance to us in determining the plans and intentions 
of the terrorists, even if it means we might have to hire someone with 
whom we would not personally like to have a social or other 
relationship.
  That is a statement of our commitment to this intelligence community; 
that we, the Congress, are prepared to back them up when they take some 
of these high-risk undertakings and that we will understand there is 
the risk of failure but it is better to risk failure than to be cowered 
by the unwillingness to engage in important but high-risk ventures.
  So those are three illustrative provisions which are in the 
intelligence section of this legislation, which I think have the 
potential of the same impact on our capacity to rid the world of the 
scourge of terrorism as similar actions have so contributed to our 
ability to reduce the influence of organized crime within this Nation.
  I urge the adoption of this conference report.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Madam President, I yield 5 minutes to the Senator from 
Kansas.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I thank my colleague, Senator Hatch 
of Utah, for giving me time to speak in support of the bill. I want to 
particularly direct attention to the immigration provisions in the 
bill.
  Last month, our Nation was attacked by extremists who hoped to 
undermine our way of life and the liberties we enjoy. These individuals 
and the groups they represent want our country to recoil in terror and 
capitulate to fear. This we will not do.
  We have before us today legislation that stands firm before those who 
mean us harm. This antiterrorism package, the product of an earnest 
bipartisan effort, is an intelligent and thorough response to the 
immediate security needs of our Nation. I commend in particular the 
immigration provisions of this legislation, which will strengthen our 
immigration laws to better combat terrorism.

[[Page S11018]]

  My heartfelt gratitude is to my colleagues on the Immigration 
Subcommittee and to the committee's leadership--Senator Hatch, Senator 
Leahy, and others--for their dedication and diligence in crafting what 
I think is fine legislation.
  This antiterrorist package will enhance the ability of our consuls 
overseas and our immigration officers at home to intercept and remove 
both alien terrorists and those who support them. This is a daunting 
task.
  We had a hearing last week on trying to intercept people coming into 
this country who mean us harm, and it is difficult in the sense we have 
nearly 350 million people a year, non-U.S. citizens, who enter this 
country, and we are looking for those few who mean us harm. This is a 
difficult task. This legislation helps to make it easier. We are 
looking for a needle in a haystack, and this legislation helps us in 
finding that or gives us a bigger magnet to be able to find it.
  This legislation will capture not only those individuals who commit 
acts of terror but also those who enhance, enable, and finance them. It 
does so through several forceful changes to our current immigration 
laws. Among those changes is an expanded definition of terrorism, one 
that encompasses not only the acts of terrorism but the network of 
terrorism.
  This legislation will also permit the Attorney General to promptly 
take into custody and detain those aliens who pose a threat to the 
safety or security of this Nation. At the same time, it will provide 
the Secretary of State with better information and better tools to 
identify terrorists and to deny them access to our country.
  Perhaps most important of all, this legislation will improve the flow 
of information between the Immigration and Naturalization Service, the 
Department of State, and the law enforcement and intelligence 
communities. This is important. What we have is several stovepipes of 
information, and we need to be able to get those collected to be able 
to stop the terrorists before they enter our land.
  This increased flow of information will allow those agencies tasked 
with protecting our borders to better coordinate and thereby thwart any 
terrorist seeking to reach our shores. This is not to say this 
legislation is unmindful of innocent visitors or the lawful permanent 
residents of our country. To the contrary. These immigration 
provisions contain appropriate safeguards to protect the liberties of 
persons whom we want in this country.

  I am pleased to report this legislation is carefully crafted to 
combat terrorism without compromising the values or the economy of the 
United States or the values that guide our immigration laws. This 
legislation represents a profound and essential improvement in our 
immigration laws. We need these changes if our immigration laws are to 
be an effective defense against the threat of terrorism we face today.
  I urge my colleagues to support the legislation and note as well we 
are continuing to refine further other potential areas where we can 
make changes in our immigration laws to better be able to catch those 
who seek to enter our country to do us harm. Senator Kennedy and I are 
working on bipartisan legislation to do just that. We hope to introduce 
this next week.
  I appreciate the opportunity to address my colleagues on this 
important legislation. I reserve the remainder of our time, and I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, I yield myself such time as I may need.
  I see the Senator from Wisconsin, so I am only going to take 2 or 3 
minutes at this point.
  A number of Senators have asked some of the areas where this changes. 
We had a separate, bipartisan, bicameral negotiation, and we shaped and 
changed the legislation as originally proposed by the Attorney General 
and the administration. I will speak at greater length as we go on.
  We improved security on the northern border, the 4,000-mile wonderful 
border between our country and Canada, another democratic nation. The 
State of the Presiding Officer borders Canada, as does mine. It is just 
a short drive from the Canadian border. Many members of my wife's 
family came from Canada. We have always had historic and economic ties 
with Canada. Partly because we have taken so much for granted, we have 
also shortchanged this relationship. We should look at the border for 
our sake and for the sake of Canada. We have greatly improved security 
on the northern border by adding better technology, more Customs and 
INS agents. That helps.
  We added something the administration did not include--money 
laundering. I learned as a prosecutor--and most Members know this--if 
you want to learn something, follow the money. If you want to stop 
terrorism, one way is to cut off the money supply.
  Third, we have added programs to enhance information sharing in 
coordination with State and local law enforcement, grants for local 
governments to respond to bioterrorism, to increase payments to 
families of fallen firefighters, police officers, and other public 
safety officers. That is important.
  Cooperation is necessary. The mayor of New York City, Mayor Giuliani, 
called me saying the police commissioner has justifiable concerns about 
the previous lack of cooperation from the Federal Government in their 
own antiterrorism efforts, although New York City has one of the best 
antiterrorist units in the country. The mayor of Baltimore has called, 
as have other mayors.
  I ask unanimous consent to have printed in the Record the Washington 
Post op-ed piece by Robert D. Novak in today's paper entitled ``Same 
Old FBI.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                              Same Old FBI

       Behind the facade of cooperation following the Sept. 11 
     attacks, less than amicable relations between New York Mayor 
     Rudolph Giuliani and the FBI have further deteriorated. 
     According to New York City sources, the mayor has engaged in 
     more than one shouting match with FBI Assistant Director 
     Barry Mawn.
       It's the same old problem because it's the same old FBI. 
     Newly appointed, much acclaimed Director Robert Mueller makes 
     little difference. The bureau refuses to share information 
     with local police agencies. It won't permit security 
     clearances for high local officials. Law enforcement officers 
     around the country say that attitude lent itself to 
     catastrophe on Sept. 11 and could permit further disasters.
       Last Friday in Washington, Mueller--amiable and agreeable--
     sat down with big city police chiefs and promised things will 
     get better. The chiefs doubt whether Mueller or Tom Ridge, 
     the new homeland security director, can change the bureau's 
     culture, described to me by one police chief as ``elitist and 
     arrogant.'' Efforts to enlist members of Congress into 
     pressing for reform find politicians awed by the FBI 
     mystique.
       The FBI's big national security section in New York City 
     long has grappled with the New York Police Department. ``the 
     FBI's attitude has been that if you need to know, we'll tell 
     you,'' one New York police source told me. That ``need'' 
     never occurs, with the FBI adamant against any local anti-
     terrorism activity. The locals, in turn, complain about the 
     feds failing to follow important leads.
       Giuliani is not venting his outrage in this time of crisis, 
     but sources report a high private decibel level by the mayor. 
     The complaint to Mawn is that the NYPD is out of the loop, 
     its senior officers not even granted security clearances.
       Such complaints are common across the country, but only a 
     few police chiefs speak publicly--notably Edward Norris of 
     Baltimore (who complained in congressional testimony), 
     Michael Chitwood of Portland, Maine, and Dan Oates of Ann 
     Arbor, Mich.
       Chitwood's experience is most bizarre. He was infuriated to 
     learn that the FBI knew of a visit to Portland by two Sept. 
     11 hijackers but did not inform him. When his police pursued 
     a witness of that visit, the FBI threatened to arrest the 
     chief. ``I ignored them,'' Chitwood told me. Has cooperation 
     with the bureau improved? ``Not a bit,'' he said. Only 
     Tuesday he learned from reading his local newspaper about a 
     plane under federal surveillance parked at the Portland 
     airport for seven weeks.
       Oates is familiar with the FBI, having tried to work with 
     the feds during 21 years with the NYPD before retiring this 
     year to go to Ann Arbor. As a deputy chief who was commanding 
     officer of NYPD intelligence, he describes the FBI as 
     ``obsessed with turf.''
       Closing doors to police officers particularly infuriates 
     Oates. ``The security clearance issue is a tired old excuse 
     that allows the FBI not to share,'' he told me. ``They should 
     hand out 10,000 security clearances to cops around the 
     country.'' Oates and other police chiefs believe Sept. 11 
     might have been averted had the FBI alerted local police 
     agencies about a Minnesota flight school's report of an Arab 
     who wanted instructions for steering a big jet but not for 
     landing or taking off.
       Police chiefs would open the FBI to the same probing of 
     decisions and actions that they routinely perform after the 
     fact. They

[[Page S11019]]

     also would like the same rules for the bureau that govern 
     most of the nation's police departments. In the FBI, nobody 
     takes the fall for blundering.
       A promise that things will change in the FBI was implicit 
     in Director Mueller's remarks to city police chiefs last 
     Friday. Philadelphia Police Commissioner John Timoney, 
     another NYPD veteran who is more cautious in his criticism of 
     the feds than his former colleague Oates, sounded skeptical 
     after the meeting. ``I'm hopeful,'' he told me, but he would 
     make no predictions.
       What he hopes for is the safety of the American people. The 
     police chiefs of America want a top-to-bottom cleaning of the 
     FBI that will require leadership from the Oval Office. If 
     George W. Bush doubts the urgency, he should talk to Rudy 
     Giulianai.

  Mr. LEAHY. We have to dramatically increase that cooperation or stop 
the noncooperation and start cooperating.
  We have added humanitarian relief to immigrant victims of the 
September 11 terrorist attacks. A lot of immigrants became victims of 
that attack. They suddenly became orphans or were spouses of people 
killed.
  We added help to the FBI to hire translators. I shudder to think how 
much information was available before September 11 that was never 
translated that might have prevented this.
  We have added more comprehensive victims assistance; measures to 
fight cyber-crime; measures to fight terrorism against mass 
transportation systems; important measures to use technology to make 
our borders more secure.
  Last, Madam President, and I cannot emphasize this enough, the Senate 
should never give a blank check to our law enforcement or to any 
President or Attorney General of either party. We have to protect the 
liberties of our people. Who watches the watchers? We watch.
  I said earlier, as Benjamin Franklin once said, a nation that would 
trade its liberties for security deserves neither.
  We can have our security and we can protect our liberties but only if 
we have adequate checks and balances. People who are professional law 
enforcement say give us the checks and balances. We give enormous power 
to Federal, State, and local law enforcement, but with that there have 
to be checks and balances. We have all seen times where if law 
enforcement is unchecked, innocent people can be hurt.
  I was a prosecutor for 8 years, and I know we have to have checks and 
balances. We have done that. You cannot simply have a case and say: Do 
this, we will set aside this pesky Constitution for the moment.
  We cannot do that. We built in checks and balances that were not in 
the original proposal. Ultimately, that will be the best thing for the 
country.
  We will give law enforcement translators, tools, computers, and other 
things necessary to help them. We stand united as a nation. We know the 
only way to protect ourselves is to stop the terrorists before they 
strike. Going to the funerals after the strike is too late. We will do 
that, but we will do it protecting the foundations of our Constitution 
and freedom which made us such a great democracy in the first place.
  None of us have any idea how long we will be in the Senate. I hope my 
colleagues are willing to stay here as long as they can. When I leave 
the Senate, as I will, I want to leave knowing I have done my best to 
protect our freedoms. I have said over and over again, the Senate is 
the conscience of the Nation. As much as any piece of legislation, this 
has to reflect our conscience.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Madam President, I have asked for this time to speak 
about the antiterrorism bill, H.R. 3162. As we address this bill, of 
course, we are especially mindful of the terrible events of September 
11 and beyond, which led to this bill's proposal and its quick 
consideration in the Congress.
  This has been a tragic time in our country. Before I discuss this 
bill, let me first pause to remember, through one small story, how 
September 11 has irrevocably changed so many lives. In a letter to the 
Washington Post recently, a man, as he went jogging near the Pentagon, 
came across the makeshift memorial built for those who lost their 
lives. He slowed to a walk as he took in the sight before him, the red, 
white, and blue flowers covering the structure. Off to the side, was a 
smaller memorial with a card that read: Happy birthday, Mommy. Although 
you died and are no longer with me, I feel as if I still have you in my 
life. I think about you every day.
  After reading the card, the man felt as if he were ``drowning in the 
names of dead mothers, fathers, sons, and daughters.'' The author of 
this letter shared a moment in his own life that so many of us have 
had, the moment where televised pictures of the destruction are made 
painfully real to us. You read a card, see the anguished face of a 
loved one, and then, suddenly, we feel the enormity of what has 
happened to so many American families and to all of us as a people.
  We also had our initial reactions to the attack. My first and most 
powerful emotion was a solemn resolve to stop these terrorists. That 
remains my principal reaction to these events. But I also quickly 
realized, as many did, that two cautions were necessary. I raised them 
on the Senate floor the day after the attacks.
  The first caution was that we must continue to respect our 
Constitution and protect our civil liberties in the wake of the 
attacks.
  As the chairman of the Constitution subcommittee of the Judiciary 
Committee I recognize fully that this is a different world, with 
different technologies, different issues, and different threats.
  Yet we must examine every item that is proposed in response to these 
events to be sure we are not rewarding these terrorists and weakening 
ourselves by giving up the cherished freedoms that they seek to 
destroy.
  The second caution I issued was a warning against the mistreatment of 
Arab Americans, Muslim Americans, South Asians, or others in this 
country. Already, one day after the attacks, we were hearing news 
reports that misguided anger against people of these backgrounds had 
led to harassment, violence, and even death.
  I suppose I was reacting instinctively to the unfolding events in the 
spirit of the Irish statesman John Philpot Curran, who said:

       The condition upon which God hath given liberty to man is 
     eternal vigilance.

  During those first few hours after the attacks, I kept remembering a 
sentence from a case I had studied in law school. Not surprisingly, I 
didn't remember which case it was, who wrote the opinion, or what it 
was about, but I did remember these words:

       While the Constitution protects against invasions of 
     individual rights, it is not a suicide pact.

  I took these words as a challenge to my concerns about civil 
liberties at such a momentous time in our history; that we must be 
careful to not take civil liberties so literally that we allow 
ourselves to be destroyed.
  But upon reviewing the case itself, Kennedy v. Mendoza-Martinez, I 
found that Justice Arthur Goldberg had made this statement but then 
ruled in favor of the civil liberties position in the case, which was 
about draft evasion. He elaborated:

       It is fundamental that the great powers of Congress to 
     conduct war and to regulate the Nation's foreign relations 
     are subject to the constitutional requirements of due 
     process. The imperative necessity for safeguarding these 
     rights to procedural due process under the gravest of 
     emergencies has existed throughout our constitutional 
     history, for it is then, under the pressing exigencies of 
     crisis, that there is the greatest temptation to dispense 
     with fundamental constitutional guarantees which, it is 
     feared, will inhibit governmental action.

  The Justice continued:

       The Constitution of the United States is a law for rulers 
     and people, equally in war and peace, and covers with the 
     shield of its protection all classes of men, at all times, 
     and under all circumstances . . . In no other way can we 
     transmit to posterity unimpaired the blessings of liberty, 
     consecrated by the sacrifices of the Revolution.

  I have approached the events of the past month and my role in 
proposing and reviewing legislation relating to it in this spirit. I 
believe we must, we must, redouble our vigilance. We must redouble our 
vigilance to ensure our security and to prevent further acts of terror. 
But we must also redouble our vigilance to preserve our values and the 
basic rights that make us who we are.
  The Founders who wrote our Constitution and Bill of Rights exercised 
that vigilance even though they had recently fought and won the 
Revolutionary War. They did not live in comfortable and easy times of 
hypothetical

[[Page S11020]]

enemies. They wrote a Constitution of limited powers and an explicit 
Bill of Rights to protect liberty in times of war, as well as in times 
of peace.
  Of course, there have been periods in our nation's history when civil 
liberties have taken a back seat to what appeared at the time to be the 
legitimate exigencies of war. Our national consciousness still bears 
the stain and the scars of those events: The Alien and Sedition Acts, 
the suspension of habeas corpus during the Civil War, the internment of 
Japanese-Americans, German-Americans, and Italian-Americans during 
World War II, the blacklisting of supposed communist sympathizers 
during the McCarthy era, and the surveillance and harassment of antiwar 
protesters, including Dr. Martin Luther King Jr., during the Vietnam 
War. We must not allow these pieces of our past to become prologue.
  Even in our great land, wartime has sometimes brought us the greatest 
tests of our Bill of Rights. For example, during the Civil War, the 
Government arrested some 13,000 civilians, implementing a system akin 
to martial law. President Lincoln issued a proclamation ordering the 
arrest and military trial of any persons ``discouraging volunteer 
enlistments, or resisting militia drafts.'' Wisconsin provided one of 
the first challenges of this order. Draft protests rose up in Milwaukee 
and Sheboygan. And an anti-draft riot broke out among Germans and 
Luxembourgers in Port Washington, WI. When the government arrested one 
of the leaders of the riot, his attorney sought a writ of habeas 
corpus. His military captors said that the President had abolished the 
writ. The Wisconsin Supreme Court was among the first to rule that the 
President had exceeded his authority.
  In 1917, the Postmaster General revoked the mailing privileges of the 
newspaper the Milwaukee Leader because he felt that some of its 
articles impeded the war effort and the draft. Articles called the 
President an aristocrat and called the draft oppressive. Over dissents 
by Justices Brandeis and Holmes, the Supreme Court upheld the action.
  We all know during World War II, President Roosevelt signed orders to 
incarcerate more than 110,000 people of Japanese origin, as well as 
some roughly 11,000 of German origin and 3,000 of Italian origin.
  Earlier this year, I introduced legislation to set up a commission to 
review the wartime treatment of Germans, Italians, and other Europeans 
during that period. That bill came out of heartfelt meetings in which 
constituents told me their stories. They were German-Americans, who 
came to me with some trepidation. They had waited 50 years to raise the 
issue with a member of Congress. They did not want compensation. But 
they had seen the Government's commission on the wartime internment of 
people of Japanese origin, and they wanted their story to be told, and 
an official acknowledgment as well with regard to what had happened to 
them. I hope, that we will move to pass this important legislation 
early next year. We must deal with our nation's past, even as we move 
to ensure our nation's future.
  (Mrs. STABENOW assumed the chair.)
  Mr. FEINGOLD. Now some may say, indeed we may hope, that we have come 
a long way since those days of infringements on civil liberties. But 
there is ample reason for concern. And I have been troubled in the past 
6 weeks by the potential loss of commitment in the Congress and the 
country to traditional civil liberties.
  As it seeks to combat terrorism, the Justice Department is making 
extraordinary use of its power to arrest and detain individuals, 
jailing hundreds of people on immigration violations and arresting more 
than a dozen ``material witnesses'' not charged with any crime. 
Although the Government has used these authorities before, it has not 
done so on such a broad scale. Judging from Government announcements, 
the Government has not brought any criminal charges related to the 
attacks with regard to the overwhelming majority of these detainees.

  For example, the FBI arrested as a material witness the San Antonio 
radiologist Albader Al-Hazmi, who has a name like two of the hijackers, 
and who tried to book a flight to San Diego for a medical conference. 
According to his lawyer, the Government held Al-Hazmi incommunicado 
after his arrest, and it took 6 days for lawyers to get access to him. 
After the FBI released him, his lawyer said:

       This is a good lesson about how frail our processes are. 
     It's how we treat people in difficult times like these that 
     is the true test of the democracy and civil liberties that we 
     brag so much about throughout the world.

  I agree with those statements.
  Now, it so happens--and I know the Presiding Officer is aware of that 
because she has been very helpful on this issue--that since early 1999, 
I have been working on another bill that is poignantly relevant to 
recent events: legislation to prohibit racial profiling, especially the 
practice of targeting pedestrians or drivers for stops and searches 
based on the color of their skin. Before September 11, people spoke of 
the issue mostly in the context of African-Americans and Latino-
Americans who had been profiled. But after September 11, the issue has 
taken on a new context and a new urgency.
  Even as America addresses the demanding security challenges before 
us, we must strive mightily also to guard our values and basic rights. 
We must guard against racism and ethnic discrimination against people 
of Arab and South Asian origin and those who are Muslim.
  We who do not have Arabic names or do not wear turbans or headscarves 
may not feel the weight of these times as much as Americans from the 
Middle East and South Asia do. But as the great jurist Learned Hand 
said in a speech in New York's Central Park during World War II:

       The spirit of liberty is the spirit which seeks to 
     understand the minds of other men and women; the spirit of 
     liberty is the spirit which weighs their interests alongside 
     its own without bias. . . .

  Was it not at least partially bias, however, when passengers on a 
Northwest Airlines flight in Minneapolis a month ago insisted that 
Northwest remove from the plane three Arab men who had cleared 
security?
  Of course, given the enormous anxiety and fears generated by the 
events of September 11, it would not have been difficult to anticipate 
some of these reactions, both by our government and some of our people. 
Some have said rather cavalierly that in these difficult times we must 
accept some reduction in our civil liberties in order to be secure.
  Of course, there is no doubt that if we lived in a police state, it 
would be easier to catch terrorists. If we lived in a country that 
allowed the police to search your home at any time for any reason; if 
we lived in a country that allowed the government to open your mail, 
eavesdrop on your phone conversations, or intercept your email 
communications; if we lived in a country that allowed the government to 
hold people in jail indefinitely based on what they write or think, or 
based on mere suspicion that they are up to no good, then the 
government would no doubt discover and arrest more terrorists.
  But that probably would not be a country in which we would want to 
live. And that would not be a country for which we could, in good 
conscience, ask our young people to fight and die. In short, that would 
not be America.
  Preserving our freedom is one of the main reasons we are now engaged 
in this new war on terrorism. We will lose that war without firing a 
shot if we sacrifice the liberties of the American people.
  That is why I found the antiterrorism bill originally proposed by 
Attorney General Ashcroft and President Bush to be troubling.
  The administration's proposed bill contained vast new powers for law 
enforcement, some seemingly drafted in haste and others that came from 
the FBI's wish list that Congress has rejected in the past. You may 
remember that the Attorney General announced his intention to introduce 
a bill shortly after the September 11 attacks. He provided the text of 
the bill the following Wednesday, and urged Congress to enact it by the 
end of the week. That was plainly impossible, but the pressure to move 
on this bill quickly, without deliberation and debate, has been 
relentless ever since.
  It is one thing to shortcut the legislative process in order to get 
Federal financial aid to the cities hit by terrorism. We did that, and 
no one complained that we moved too quickly. It

[[Page S11021]]

is quite another to press for the enactment of sweeping new powers for 
law enforcement that directly affect the civil liberties of the 
American people without due deliberation by the peoples' elected 
representatives.
  Fortunately, cooler heads prevailed at least to some extent, and 
while this bill has been on a fast track, there has been time to make 
some changes and reach agreement on a bill that is less objectionable 
than the bill that the administration originally proposed.
  As I will discuss in a moment, I have concluded that this bill still 
does not strike the right balance between empowering law enforcement 
and protecting civil liberties. But that does not mean that I oppose 
everything in the bill. By no means. Indeed many of its provisions are 
entirely reasonable, and I hope they will help law enforcement more 
effectively counter the threat of terrorism.
  For example, it is entirely appropriate that with a warrant the FBI 
be able to seize voice mail messages as well as tap a phone. It is also 
reasonable, even necessary, to update the federal criminal offense 
relating to possession and use of biological weapons. It made sense to 
make sure that phone conversations carried over cables would not have 
more protection from surveillance than conversations carried over phone 
lines. And it made sense to stiffen penalties and lengthen or eliminate 
statutes of limitation for certain terrorist crimes.
  There are other non-controversial provisions in the bill that I 
support--those to assist the victims of crime, to streamline the 
application process for public safety officers benefits and increase 
those benefits, to provide more funds to strengthen immigration 
controls at our Northern borders--something that the Presiding Officer 
and I understand--to expedite the hiring of translators at the FBI, and 
many other such provisions.

  In the end, however, my focus on this bill, as Chair of the 
Constitution Subcommittee of the Judiciary Committee in the Senate, was 
on those provisions that implicate our constitutional freedoms. And it 
was in reviewing those provisions that I came to feel that the 
administration's demand for haste was inappropriate; indeed, it was 
dangerous. Our process in the Senate, as truncated as it was, did lead 
to the elimination or significant rewriting of a number of audacious 
proposals that I and many other members found objectionable.
  For example, the original administration proposal contained a 
provision that would have allowed the use in U.S. criminal proceedings 
against U.S. citizens of information obtained by foreign law 
enforcement agencies in wiretaps that would be illegal in this country. 
In other words, evidence obtained in an unconstitutional search 
overseas was to be allowed in a U.S. court.
  Another provision would have broadened the criminal forfeiture laws 
to permit--prior to conviction--the freezing of assets entirely 
unrelated to an alleged crime. The Justice Department has wanted this 
authority for years, and Congress has never been willing to give it. 
For one thing, it touches on the right to counsel, since assets that 
are frozen cannot be used to pay a lawyer. The courts have almost 
uniformly rejected efforts to restrain assets before conviction unless 
they are assets gained in the alleged criminal enterprise. This 
proposal, in my view, was simply an effort on the part of the 
Department to take advantage of the emergency situation and get 
something that they've wanted to get for a long time.
  As I have indicated, the foreign wiretap and criminal forfeiture 
provisions were dropped from the bill that we considered in the Senate. 
Other provisions were rewritten based on objections that I and others 
raised about them. For example, the original bill contained sweeping 
permission for the Attorney General to get copies of educational 
records without a court order. The final bill requires a court order 
and a certification by the Attorney General that he has reason to 
believe that the records contain information that is relevant to an 
investigation of terrorism.
  So the bill before us is certainly improved from the bill that the 
administration sent to us on September 19, and wanted us to pass on 
September 21. But again, in my judgement, it does not strike the right 
balance between empowering law enforcement and protecting 
constitutional freedoms. Let me take a moment to discuss some of the 
shortcomings of the bill.
  First, the bill contains some very significant changes in criminal 
procedure that will apply to every federal criminal investigation in 
this country, not just those involving terrorism. One provision would 
greatly expand the circumstances in which law enforcement agencies can 
search homes and offices without notifying the owner prior to the 
search. The longstanding practice under the fourth amendment of serving 
a warrant prior to executing a search could be easily avoided in 
virtually every case, because the government would simply have to show 
that it had ``reasonable cause to believe'' that providing notice `may' 
seriously jeopardize an investigation.'' This is a significant 
infringement on personal liberty.

  Notice is a key element of fourth amendment protections. It allows a 
person to point out mistakes in a warrant and to make sure that a 
search is limited to the terms of a warrant. Just think about the 
possibility of the police showing up at your door with a warrant to 
search your house. You look at the warrant and say, ``yes, that's my 
address, but the name on the warrant isn't me.'' And the police realize 
a mistake has been made and go away. If you're not home, and the police 
have received permission to do a ``sneak and peek'' search, they can 
come in your house, look around, and leave, and may never have to tell 
you that ever happened.
  That bothers me. I bet it bothers most Americans.
  Another very troubling provision has to do with the effort to combat 
computer crime. I want the effort to stop computer crime. The bill 
allows law enforcement to monitor a computer with the permission of its 
owner or operator, without the need to get a warrant or show probable 
cause.
  I want to tell you, Madam President, I have been at pains to point 
out things I can support in this bill. I think that power is fine in a 
case of a so-called denial of service attack. What is that? That is 
plain old computer hacking. You bet. We need to be able to get at that 
kind of crime.
  Computer owners should be able to give the police permission to 
monitor communications coming from what amounts to a trespasser on the 
computer, a real trespasser.
  But we tried to point out as calmly and as constructively as possible 
on the floor that, as drafted in this bill, the provision might permit 
an employer to give permission to the police to monitor the e-mails of 
an employee who has used her computer at work to shop for Christmas 
gifts. She violated the rules of her employer regarding personal use of 
the computer. Or someone who uses a computer at a library or at a 
school and happens to go to a gambling or pornography site in violation 
of the Internet use policies of the library or the university might 
also be subjected to Government surveillance--without probable cause 
and without any time limit at all. With this one provision, fourth 
amendment protections are potentially eliminated for a broad spectrum 
of electronic communications.
  I am also very troubled by the broad expansion of Government power 
under the Foreign Intelligence Surveillance Act, known as FISA. When 
Congress passed FISA in 1978, it granted to the executive branch the 
power to conduct surveillance in foreign intelligence investigations 
without having to meet the rigorous probable cause standard under the 
fourth amendment that is required for criminal investigations. There is 
a lower threshold for obtaining a wiretap order from the FISA court 
because the FBI is not investigating a crime, it is investigating 
foreign intelligence activities. But the law currently requires that 
intelligence gathering be the primary purpose of the investigation in 
order for this much lower standard to apply.
  The bill changes that requirement. The Government now will only have 
to show that intelligence is a ``significant purpose'' of the 
investigation. So even if the primary purpose is a criminal 
investigation, the heightened protections of the fourth amendment will 
not apply.
  It seems obvious that with this lower standard, the FBI will be able 
to try to

[[Page S11022]]

use FISA as much as it can. And, of course, with terrorism 
investigations, that won't be difficult because the terrorists are 
apparently sponsored or at least supported by foreign governments. So 
this means the fourth amendment rights will be significantly curtailed 
in many investigations of terrorist acts.
  The significance of the breakdown of the distinction between 
intelligence and criminal investigations becomes apparent when you see 
other expansions of Government power under FISA in this bill.
  Another provision that troubles me a lot is one that permits the 
Government, under FISA, to compel the production of records from any 
business regarding any person if that information is sought in 
connection with an investigation of terrorism or espionage.
  I want to be clear here, as well, we are not talking about travel 
records directly pertaining to a terrorist suspect, which we can all 
see obviously can be highly relevant to an investigation of a terrorist 
plot. FISA already gives the FBI the power to get airline, train, 
hotel, car rental, and other records of a suspect.
  But this bill does much more. Under this bill, the Government can 
compel the disclosure of the personal records of anyone--perhaps 
someone who worked with, or lived next door to, or went to school with, 
or sat on an airplane with, or had been seen in the company of, or 
whose phone number was called by--the target of the investigation.

  Under this new provision, all business records can be compelled, 
including those containing sensitive personal information, such as 
medical records from hospitals or doctors, or educational records, or 
records of what books somebody has taken out from the library. We are 
not talking about terrorist suspects, we are talking about people who 
just may have come into some kind of casual contact with the person in 
that situation. This is an enormous expansion of authority under a law 
that provides only minimal judicial supervision.
  Under this provision, the Government can apparently go on a fishing 
expedition and collect information on virtually anyone. All it has to 
allege, in order to get an order for these records from the court, is 
that the information is sought for an investigation of international 
terrorism or clandestine intelligence gathering. That is it. They just 
have to say that. On that minimal showing, in an ex parte application 
to a secret court, with no showing even that the information is 
relevant to the investigation, the Government can lawfully compel a 
doctor or a hospital to release medical records or a library to release 
circulation records. This is truly a breathtaking expansion of police 
power.
  Let me turn to a final area of real concern about this legislation, 
which I think brings us full circle to the cautions I expressed on the 
day after the attacks. These are two very troubling provisions dealing 
with our immigration laws in the bill.
  First, the administration's original proposal would have granted the 
Attorney General extraordinary powers to detain immigrants 
indefinitely, including legal permanent residents. The Attorney General 
could do so based on mere suspicion that the person is engaged in 
terrorism. I believe the administration was really overreaching here. I 
am pleased that our distinguished chairman of the Judiciary Committee, 
Senator Leahy, was able to negotiate some protections. The bill now 
requires the Attorney General to charge the immigrant within 7 days 
with a criminal offense or immigration violation. In the event the 
Attorney General does not charge the immigrant, the immigrant must be 
released.
  This protection is an improvement, but the provision remains 
fundamentally flawed. Even with this 7-day charging requirement, the 
bill would nevertheless continue to permit the indefinite detention in 
two situations. First, immigrants who win their deportation cases may 
be continued to be held if the Attorney General continues to have 
suspicions. Second, this provision creates a deep unfairness to 
immigrants who are found not to be deportable for terrorism but have an 
immigration status violation, such as overstaying a visa. If the 
immigration judge finds that they are eligible for relief from 
deportation, and therefore can stay in the country--for example, if 
they have longstanding family ties here--nonetheless, the Attorney 
General can continue to hold them indefinitely.
  I am pleased that the final version of the legislation includes a few 
improvements over the bill that passed the Senate. In particular, the 
bill would require the Attorney General to review the detention 
decision every 6 months. And it would only allow the Attorney General 
or the Deputy Attorney General--not lower level officials--to make that 
determination.

  While I am pleased these provisions are included in the bill, I 
believe it still falls short of meeting even basic constitutional 
standards of due process and fairness.
  The bill continues to allow the Attorney General to detain persons 
based on mere suspicion. Our system normally requires higher standards 
of proof for a deprivation of liberty. For example, deportation 
proceedings themselves are subject to a clear and convincing evidence 
standard. And, of course, criminal convictions require proof beyond a 
reasonable doubt. The bill also continues to deny detained persons a 
trial or a hearing where the Government would be required to prove that 
that person is, in fact, engaged in terrorist activity. I think this is 
unjust and inconsistent with the values of our system of justice that 
we hold dearly.
  Another provision in the bill that deeply troubles me allows the 
detention and deportation of people engaging in innocent associational 
activity. It would allow for the detention and deportation of 
individuals who provide lawful assistance to groups that are not even 
designated by the Secretary of State as terrorist organizations but 
instead have engaged in something vaguely defined as ``terrorist 
activity'' sometime in the past. To avoid deportation, the immigrant is 
required to prove a negative: That he or she did not know, and should 
not have known, that the assistance would further terrorist activity.
  I think this language creates a very real risk that truly innocent 
individuals could be deported for innocent associations with 
humanitarian or political groups that the Government later chooses to 
regard as terrorist organizations. Groups that could fit this 
definition could include Operation Rescue, Greenpeace, and even the 
Northern Alliance fighting the Taliban in northern Afghanistan. So this 
really amounts to a provision of ``guilt by association,'' which I 
think violates the first amendment.
  Speaking of the first amendment, under this bill, a lawful permanent 
resident who makes a controversial speech that the Government deems to 
be supportive of terrorism might be barred from returning to his or her 
family after taking a trip abroad.
  Despite assurances from the administration at various points in this 
process that these provisions that implicate associational activity 
would be improved, there have been no changes in the bill on these 
points since it passed the Senate.
  Here is where my caution in the aftermath of the terrorist attacks 
and my concern about the reach of the antiterrorism bill come together. 
To the extent that the expansion of new immigration powers that the 
bill grants the Attorney General are subject to abuse, who do we think 
is most likely to bear the brunt of that abuse? It probably won't be 
immigrants from Ireland. It probably won't be immigrants from El 
Salvador or Nicaragua or immigrants from Haiti or Africa. Most likely 
it will be immigrants from Arab, Muslim and South Asian countries.
  In the wake of these terrible events, our Government has been given 
vast new powers, and they may fall most heavily on a minority of our 
population who already feel particularly, acutely the pain of this 
disaster.
  Concerns of this kind have been raised with the administration. 
Supporters of this bill have just told us: Don't worry, the FBI would 
never do that. I call on the Attorney General and the Justice 
Department to ensure that my fears are not borne out.
  The antiterrorism bill we consider in the Senate today, of course, 
highlights the march of technology and how that march cuts both for and 
against personal liberty. But Justice Brandeis foresaw some of the 
future in a 1928 dissent when he wrote:


[[Page S11023]]


       The progress of science in furnishing the Government with 
     means of espionage is not likely to stop with wire-tapping. 
     Ways may some day be developed by which the Government, 
     without removing papers from secret drawers, can reproduce 
     them in court, and by which it will be enabled to expose to a 
     jury the most intimate occurrences of the home. . . . Can it 
     be that the Constitution affords no protection against such 
     invasions of individual security?

  We must grant law enforcement the tools that it needs to stop this 
terrible threats, but we must give them only those extraordinary tools 
that they need and that relate specifically to the task at hand.
  In the play, ``A Man for All Seasons,'' Sir Thomas More questions the 
bounder Roper whether he would level the forest of English laws to 
punish the Devil. ``What would you do?'' More asks, ``Cut a great road 
through the law to get after the Devil?'' Roper affirms, ``I'd cut down 
every law in England to do that.'' To which More replies:

       And when the last law was down, and the Devil turned round 
     on you--where would you hide, Roper, the laws all being flat? 
     This country's planted thick with laws from coast to coast . 
     . . and if you cut them down . . . d'you really think you 
     could stand upright in the winds that would blow then? Yes, 
     I'd give the Devil benefit of law, for my own safety's sake.

  We must maintain our vigilance to preserve our laws and our basic 
rights. We in this body have a duty to analyze, to test, to weigh new 
laws that the zealous and often sincere advocates of security would 
suggest to us. That is what I have tried to do with the anti-terrorism 
bill, and that is why I will vote against this bill when the roll is 
called.
  Protecting the safety of the American people is a solemn duty of the 
Congress. We must work tirelessly to prevent more tragedies like the 
devastating attacks of September 11. We must prevent more children from 
losing their mothers, more wives from losing their husbands, and more 
firefighters from losing their heroic colleagues. But the Congress will 
fulfill its duty only when it protects both the American people and the 
freedoms at the foundation of American society.
  So let us preserve our heritage of basic rights. Let us practice as 
well as preach that liberty, and let us fight to maintain that freedom 
that we call America.
  Madam President, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. REID. Madam President, on behalf of Senator Leahy, I yield 10 
minutes to the Senator from North Dakota.
  Mr. HATCH. May I make a few comments before?
  Mr. REID. When the Senator from Utah finishes his remarks, I ask that 
the Senator from North Dakota be recognized for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Utah.
  Mr. HATCH. I rise to address briefly a couple of the points made by 
the distinguished Senator from Wisconsin.
  First, what he called a ``sneak and peek'' search warrant, these 
warrants are already used throughout the United States, throughout our 
whole country. The bill simply codifies and clarifies the practice 
making certain that only a Federal court, not an agent or prosecutor, 
can authorize such a warrant.
  Let me be clear. Courts already allow warrants under our fourth 
amendment. It is totally constitutional. It has been held so almost 
from the beginning of this country; some will say from the beginning of 
this country. Together with Senator Leahy, we carefully drafted a 
provision that standardizes this widely accepted practice.
  Second, to respond to the suggestion that the legislation is not 
properly mindful of our constitutional liberties--my friend from 
Wisconsin talks theoretically about maybe the loss of some civil 
liberties--I would like to talk concretely about the loss of liberty of 
almost 6,000 people because of the terrorist acts on September 11. I am 
a little bit more concerned right now about their loss of life. I am 
even more concerned now that they have lost their lives that thousands 
of other Americans don't lose their lives because we fail to act and 
fail to give law enforcement the tools that are essential.
  It is a nice thing to talk about theory. But we have to talk about 
reality. We have written this bill so the constitutional realities are 
that the Constitution is not infringed upon and civil liberties are not 
infringed upon except to the extent that the Constitution permits law 
enforcement to correct difficulties.
  Yes, I think we must protect the Constitution, and that has been at 
the top of my list all through my 25 years in the Congress. This bill 
does just that. Nothing in this bill undermines constitutional liberty. 
Nothing in this bill comes remotely close to the Alien and Sedition 
Act, which, of course, was held to be unconstitutional, or the 
internment of Japanese prisoners of war, which was a disgrace--there is 
no question about it, but at that point it was held to be 
constitutional--or the other outrages that have occurred in the past 
that were mentioned by the distinguished Senator from Wisconsin.
  The tools we are promoting in this legislation have been carefully 
crafted to protect civil liberties. In addition to protecting civil 
liberties, give law enforcement the tools they need so we, to the 
extent we possibly can, will be able to protect our citizens from 
events and actions such as happened on September 11 of this year.
  Thousands of Americans died that day, thousands. That is real. We 
have been told there may be some other actions taken by terrorists. 
That may be real. To the extent that may be real, we sure want to make 
sure our law enforcement people, within the constraints of the 
Constitution, have the optimum law enforcement tools they need to do 
the job.
  As the past few weeks have made clear, these terrorists still have a 
gun pointed at the heads of all the American people. Under such 
circumstances, it is our sworn duty to do everything in our power, 
within the bounds of the Constitution, to protect and defend our 
people. That is what this bill does.
  The Senator from Wisconsin worries about the ``possible'' loss of 
civil liberties. That is laudable. But I am more concerned about the 
actual loss of the thousands of lives that have been lost and the 
potential of other lives that may be lost because we don't give law 
enforcement the tools they need.
  This bill protects us, to the extent that we possibly can, against 
further attacks such as occurred on September 11 and many, many other 
potential attacks as well.
  I think most people in this country would be outraged to know that 
various agencies of Government, the intelligence community, and law 
enforcement community, under current law--until this bill is passed--
cannot exchange information that might help interdict and stop 
terrorism. People are outraged when they hear this. And they ought to 
be.
  The fact is that that is the situation. I know the heads of the 
Criminal Division of the Justice Department have said that: Unless we 
can share this information, we cannot pick up the people who are 
terrorists, whom we need to stop, in time to stop them. I think they 
would be outraged to know that, under title III, you cannot 
electronically surveil a terrorist unless there is some underlying 
criminal predicate. In many cases, there is no underlying criminal 
predicate, so you can't do to terrorists what we can do for health care 
fraud, or for sexual exploitation of children, or for the Mafia, or for 
drug dealers.
  People would be amazed to know we treat terrorism with kid gloves in 
the current criminal code. This bill stops that. I think most people 
would be amazed to know that pen register trap-and-trace devices are 
not permitted against terrorists under provisions of the law today. You 
can't get the numbers called out of the phone and you can't get the 
numbers called into the phone. That is what that means. This bill 
remedies that so we can get these numbers and do what has to be done.
  I think most people are shocked to find out that you can't 
electronically surveil the terrorists. You have to go after the phone, 
and then you have to get a warrant in every jurisdiction where that 
phone shows up. Terrorists don't pay any attention to those antiquated 
laws. They just buy 10 cell phones, talk for a while, and throw it out 
the window. We have to be able to track terrorists. Under current law, 
we cannot do that with the efficiency that needs to be used here. I 
don't see any

[[Page S11024]]

civil liberties violated there, but I see some of them protected. I 
think of the civil liberties of those approximately 6,000 people who 
lost their lives, and potentially many others if we don't give law 
enforcement the tools they need to do the job. That is what this bill 
does.
  I will have more to say, perhaps, on this later. I wanted to make 
these particular points. I am happy to retain the remainder of my time.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. WELLSTONE. I ask unanimous consent that I may follow the Senator 
from North Dakota.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. I understand we are under a time agreement and I am 
allotted 10 minutes; is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DORGAN. Madam President, the legislation that is on the floor is 
legislation I will vote for and support. I think it advances our 
country's interests in dealing with the issue of terrorism. But I don't 
want to talk about what is in the bill; I want to talk about something 
that is not now in the bill and should be. I want to ask the question, 
Why?
  I came to the floor an hour ago and was surprised to find out that 
something about which I care very much, something agreed to in the 
Senate, is now no longer in this legislation. Here is the issue. I held 
and chaired a hearing in my subcommittee on Appropriations a couple 
weeks ago. The Customs Service was there and Immigration was there. 
They said we have a system in this country called the advance passenger 
information system. It is a system under which international air 
carriers electronically transmit to the Customs Service passenger and 
cargo manifests, so that before they enter and are cleared for 
departure, we know who is on that plane and what is on that plane, so 
we can determine whether there are people who should not be allowed to 
enter this country. That is the advance passenger information system. 
It works, but it is voluntary and only 85 percent of the carriers are 
complying.
  I asked at my hearing of Customs and Immigration: Should this be 
mandatory? They said: Absolutely, we need you to make this mandatory.
  When we had the antiterrorism bill on the floor of the Senate, I had 
cleared an amendment in the managers' package that would make this 
mandatory. Let me tell you of the airlines that do not comply, for 
which we don't get advance passenger information: Saudi Arabia, Kuwait, 
Royal Jordanian, Pakistani International, to name a few airlines that 
do not comply under the voluntary standard and give us no advance 
passenger information.
  Mr. HATCH. If the Senator will yield, I commend the Senator. I think 
he is absolutely right. We had it in the Senate bill. It was a 
worthwhile provision that I think we need to include later, since we 
can't do it on this bill at this point. I will support him in every way 
possible to get this done in the future. I commend the Senator for 
bringing this to the attention of this body because I have to say the 
House absolutely would not permit us to put that in the bill.

  Mr. DORGAN. I inquire of the Senator from Utah, what possibly could 
be their motive to not want this in the antiterrorism bill?
  Mr. HATCH. I think it came down to a jurisdictional argument. That is 
my opinion. We understand that around here, but we are trying to solve 
terrorism now. The Senator's point is a very good point. My main reason 
for interrupting him at this point is to commend him and tell him I 
will do everything in my power to get that passed. I think it is 
critical that the other 15 percent be made mandatory, that they have to 
comply, because most of the airlines comply on a voluntary basis.
  I am sorry to interrupt the Senator. I reserve my time.
  Mr. DORGAN. Madam President, I appreciate the comments of the Senator 
from Utah. It is not his fault. I understand he strongly supports this. 
I kind of felt blind-sided an hour ago when I was told this wasn't in 
the bill we are discussing because we had cleared it. Apparently, some 
folks from the other side of this Capitol have this notion of muscle 
flexing with respect to jurisdictional standards. Frankly, I don't 
understand that on an issue that is this important. We need advance 
passenger information clearing--not on a voluntary basis but on a 
mandatory basis. Somehow it got left out.
  I thank the Senator from Utah for his cooperation because we are 
going to get this done. This needs to be done. If we have a few small-
minded people in this Capitol simply protecting their turf and who 
don't seem to worry about combating terrorism, we will move beyond them 
and we are not going to pay much attention to their concerns.
  If I might ask, how much time remains on my 10 minutes?
  The PRESIDING OFFICER. The Senator has 6\1/2\ minutes.
  Mr. DORGAN. I want to mention two other issues, and they don't relate 
directly to this bill. They are very important to me.
  We are talking about antiterrorism activities. We have an 
organization down at the Treasury Department's Office of Foreign Asset 
Control. I happen to fund that area, as I am chairman of the 
Appropriations subcommittee that funds that. I want to say something I 
said before the terrorist attacks of September 11. OFAC, in my 
judgment, ought to be using its resources to track terrorists and track 
the trail left by terrorists with the movement of money around the 
globe.
  But in August I pointed out that what OFAC was doing--at least with 
some of its resources--and it appears that 10 percent of the resources 
of OFAC is devoted to chasing little old ladies in tennis shoes from 
Illinois who join a bicycle club from Canada and go bicycling in Cuba 
and 15 months later get a letter from the Treasury Department that they 
have a $9,500 fine. That is one example of a retired teacher from 
Illinois. OFAC is chasing retired folks who go on a bicycling trip to 
Cuba with a Canadian bicycling Club, and she was fined $9,500. I talked 
to her and others who have been fined.
  There was a $55,000 fine for someone who was with some friends in the 
Cayman Islands and they decided to go to Cuba for the weekend. This guy 
is wondering what on Earth has happened. He was not supposed to travel 
to Cuba, but he didn't know it. OFAC is supposed to be tracking 
terrorists, but they are chasing retired schoolteachers from Illinois 
for taking a bicycling trip in Cuba.
  Let's stop this foolishness and track the trail of terrorists. It 
doesn't make sense to be doing what OFAC has been doing. First of all, 
it is embarrassing. I understand the restrictions on travel, which we 
should change and we will change, but should we be using 10 percent of 
the assets of OFAC to track these people down and levy civil fines at a 
time when terrorists are designing approaches to kill Americans? What 
on Earth is going on here?
  I say to Treasury and OFAC, if they are listening: Get busy doing the 
right things. Get right about public policy initiatives that we are 
funding you to do.
  Let me mention one additional item, if I may, and again it relates to 
antiterrorism, not necessarily just to this bill, and that is the issue 
of northern border security. We have a 4,000-mile border between the 
United States and Canada, with 128 ports of entry, and 100 of them are 
not staffed at night. At 10 o'clock at night, the security between the 
United States and Canada is an orange rubber cone, just a big old 
orange rubber cone. It cannot talk. It cannot walk. It cannot shoot. It 
cannot tell a terrorist from a tow truck. It is just a big fat dumb 
rubber cone sitting in the middle of the road.
  Those who want to come in illegally at 11 or 12 o'clock at night and 
are polite about it will stop in front of the rubber cone, remove the 
rubber cone, drive through, and replace it. Those who do not care will 
shred it at 60 miles an hour. That is supposed to be security in this 
country.
  We know a terrorist came across that northern border at Port Angeles. 
This particular Middle Eastern terrorist was going to create 
substantial bombing activities of public facilities at the turn of the 
millennium in Los Angeles. We know the terrorists know where it is easy 
to get through our border and where it is not.
  Having said all that, that a rubber cone is no substitute for 
security, the Treasury Department has said to this

[[Page S11025]]

Congress that none of the $20 billion we appropriated for security is 
going to go for increased resources at the northern border for Customs. 
The other side, Immigration and Border Patrol, are going to get 
increased resources, but the Treasury Department says: No, we do not 
need additional resources with the Customs Service.
  Nothing could be further from the truth. I am just asking these 
people who are thinking through these issues to start thinking the 
right way. We do need additional resources. That is why we provided the 
$20 billion. We do need additional security on the northern border. 
Yes, orange rubber cones are inexpensive. They are also ineffective. 
They are no substitute for security in this country. I know I am going 
a bit afield from this bill, but I wanted to make the other two points 
about OFAC and what it is doing and northern border security because 
that, too, relates to the issue of antiterrorism and this country's 
ability to deal with the terrorist threats.
  I conclude by saying I came here to talk about the advance passenger 
information system. I, again, feel terrible it was left out of this 
bill because we had agreement in the Senate. I understand some folks in 
the House refused to move on this issue.
  One way or another I am going to get this done in the next couple of 
weeks. I will find a bill, a vehicle. This is going to get done. I 
appreciate the willingness of the Senator from Vermont and the Senator 
from Utah to help me do that. That is a glaring omission from this 
bill, and if the House does not want to do it on this bill, we will 
force them to do it on another bill.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, on behalf of senator Leahy, I yield 10 
minutes to the Senator from Massachusetts, and I ask unanimous consent 
that his remarks follow--there is an order already in effect for 
Senator Wellstone to be heard now--the remarks of Senator Wellstone.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Minnesota.
  Mr. WELLSTONE. I thank the Chair.
  Madam President, this is one of the most important pieces of 
legislation we will consider during this Congress. The horrific loss of 
life and destruction that occurred on September 11, the crime against 
humanity, changed us as a country. The Uniting and Strengthening 
America Act is an opportunity to help ensure that such terrorist 
attacks do not occur again. We need to improve all aspects of our 
domestic security, including by enhancing our intelligence capacities 
so that we can identify possible future attacks in their planning 
stages and prevent them from happening. We must be vigilant and willing 
to invest the resources and time required to gather the information 
that we need to protect ourselves and our way of life.
  I appreciate the enormous amount of time and energy that my 
colleagues in both Chambers have put into this legislation. They have 
done their best to balance the risk of further terrorist attacks with 
possible risks to civil liberties. This comprehensive bill includes 
measures to enhance surveillance; improve the working relationship 
among Federal, State, and local agencies; strengthen border control; 
permit the detention of certain suspects who may be the subject of 
investigative efforts; help crime victims; respond to bioterrorism; and 
crack down on money laundering.
  I am especially supportive of two new important provisions added in 
conference that will enhance domestic preparedness against future 
attacks, at the local level: the First Responders Assistance Act, and 
the Grant Program for State and Local Domestic Preparedness Support. 
These provisions authorize grants to State and local authorities to 
respond and prevent acts of terrorism, particularly for terrorism 
involving weapons of mass destruction and biological, nuclear, and 
chemical devices; and revises an existing grant 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.
  Last week I traveled to Moorhead, Mankato and Rochester, MN and 
talked with firefighters and first-responders about this very issue. 
They told me they desperately need training and equipment to address 
our new terrorism risks. These local grants are extremely important to 
address the needs our most important asset in the fight against 
terrorism: those law enforcement and emergency personnel on the front 
lines.
  Although I still have some reservations about certain provisions of 
the bill as they might affect civil liberties, and wish that it were 
more tightly targeted to address only actions directly related to 
terrorism or suspected terrorism, I am pleased with the inclusion of 
several key civil liberty safeguards. The bill requires certain 
electronic reports to go to a judge when pen registers are used on the 
internet; includes provisions requiring notification to a court when 
grand jury information is disclosed; and contains a 4-year sunset with 
limited grandfathering for several of the electronic surveillance 
provisions.
  The bill expands the Regional Information Sharing Systems Program to 
promote information sharing among Federal, State, and local law 
enforcement have a critical role to play in preventing and 
investigating terrorism, and this bill provides them benefits 
appropriate to such duty. The bill streamlines and expedites the Public 
Safety Officers' Benefits application process for family members of 
fire fighters, police officers and other emergency personnel who are 
killed or suffer a disabling injury in connection with a future 
terrorist attack. And it raises the total amount of the Public Safety 
Officers' Benefit Program payments from approximately $150,000 to 
$250,000.

  This bill will also make an immediate difference in the lives of 
victims of terrorism and their families. It refines the Victims of 
Crime Act and by doing so improves the way in which its crime fund is 
managed and preserved. It replenishes the emergency reserve of the 
Crime Victims Fund with up to $50 million and improves the mechanism to 
replenish the fund in future years. The USA Act also increases security 
on our northern border, including the border between Canada and my 
State of Minnesota. It triples the number of Border Patrol, Customs 
Service, and INS inspectors at the northern border and authorizes $100 
million to improve old equipment and provide new technology to INS and 
the Customs Service at that Border.
  On the criminal justice side, the bill clarifies existing 
``cybercrime'' law to cover computers outside the United States that 
affect communications in this country and changes sentencing guidelines 
in some of these cases. It provides prosecutor better tools to go after 
those involved in money laundering schemes that are linked to 
terrorism, and it adds certain terrorism-related crime as predicates 
for RICO and money-laundering. At the same time, the bill establishes 
procedures to protect the rights of persons whose property may be 
subject to confiscation in the exercise of the government's 
antiterrorism authority. It strengths our Federal laws relating to the 
threat of biological weapons and enhances the Government's ability to 
prosecute suspected terrorists in possession of biological agents. It 
will prohibit certain persons, particularly those from countries that 
support terrorism, from possessing biological agents. And it will 
prohibit any person from possessing a biological agent of a type of 
quantity that is not reasonably justified by a peaceful purpose.
  I support these much-needed measures. And I especially support the 
four-year sunset provision for several of the electronic surveillance 
provisions. I do wish, however, that some provisions were might tightly 
targeted to address only actions directly related to terrorism or 
suspected terrorism. It is for this reason, I believe we will need to 
monitor the use of new authorities provided to law enforcement agents 
to conduct surveillance. The bill broadens the Foreign Intelligence 
Surveillance Act, FISA, by extending FISA surveillance authority to 
criminal investigations, even when the primary purpose is not 
intelligence gathering. The bill limits this ability by authorizing 
surveillance only if a significant purpose of it is to gather 
intelligence information. I hope this new FISA authority will be used 
for the purpose of investigating and preventing terrorism or

[[Page S11026]]

suspected terrorism, and not for other domestic purposes. The bill also 
allow surveillance to follow a person who uses multiple communications 
devices or locations, the so-called ``roving-wiretap.'' Again, I am 
hopeful this new authority will not be abused.
  We have done our best in this bill to maximize our security while 
minimizing the impact some of these changes may have on our civil 
liberties. Nearly all of us have probably said since September 11 that 
if that day's terror is allowed to undermine our democratic principles 
and practices, then the terrorists will have won a victory. We should 
pass this bill today. And we should also commit ourselves to monitoring 
its impact of civil liberties in the coming months and years.
  Our challenge is to balance our security with our liberties. While it 
is not perfect, I believe we are doing that in this bill.
  Madam President, it is a jarring analogy, but I use it to explain how 
I arrived at my decision on this legislation. In 1940 and 1941, the 
Germans engaged in an unprecedented attack on the civilian population 
of Great Britain. The goal was to weaken citizens in their fight 
against Nazism. At the end of that attack, 20,000 people were killed. 
On September 11 in our country, close to 6,000 innocent people were 
massacred.
  It is absolutely the right thing to take the necessary steps to try 
to prevent this from happening and to provide protection to people in 
our country.
  There are many provisions in this legislation with which I agree. 
They are important to people in Minnesota, Michigan, and around the 
country, by way of what we need to do to protect our citizens.
  When it comes to electronic surveillance, as Senator Feingold has 
stated with considerable eloquence, the legislation goes too far and 
goes beyond world terrorists, who I think are a real threat to people 
in our country and other nations as well.
  How do I balance it out? My view is that I support this legislation 
because all of the positive issues, which I will go into in a moment, 
that are so important to the people I represent have to do with 
protecting the lives of people. If we do not take this action and we 
are not able to protect people, then more people can die, more people 
will be murdered. That is irreversible. We cannot bring those lives 
back.
  This legislation has a 4-year sunset. I said when the Senate passed 
the bill that I would reserve final judgment as to whether I vote for 
the final product based on whether there will be a 4-year sunset when 
it comes to electronic surveillance. We can monitor--there will be some 
abuses, I think--we can monitor that, and if there are abuses, it is 
reversible; we can change it. That is why I err on the side of 
protecting people, and it is why I support this legislation.
  The bill includes measures to enhance surveillance, to improve the 
working relationships of Federal, State, and local agencies--that has 
to happen--to strengthen control of the Canadian border. For our States 
up North, that is very important. When it comes to the detention of 
certain suspects who may be the subject of investigative efforts, there 
are safeguards against unlimited detention.
  I thank Senator Leahy and Senator Hatch and others for pulling back 
from some of the original proposals which made this a much better piece 
of legislation.
  There is a crackdown on money laundering. I thank Senator Sarbanes 
and Senator Kerry and others for their fine work.
  There is another provision that is very important. The First 
Responders Assistance Act and grant program all go together. When I 
traveled to greater Minnesota last week, when I went to Moorhead, 
Mankato, Rochester, and Duluth, I spoke with fire chiefs and all said: 
We are the first responders. We know that from New York. Please get 
some resources back to the local level. It is a local public safety 
model where if you give us the resources, let us assess our needs--we 
have the training; we may need additional equipment--if you are going 
to talk about the ways we can best protect people, we are going to 
protect people where they live, where they work, or where their 
children go to school. Getting the resources to the local community, 
the fire chiefs, and police chiefs is critically important.
  As I said, there are some key civil liberty safeguards. The bill 
requires certain electronic reports to go to a judge when pen registers 
are used on the Internet. It includes provisions requiring notification 
to a court when grand jury information is disclosed, and it contains 
the 4-year sunset when it comes to the electronics surveillance 
provisions. That is critically important.
  The bill streamlines and expedites the public safety officers 
benefits application for the firefighters and the police officers and 
others who were killed and suffered disabling injuries.
  It raises the total amount of the Public Safety Officers' Benefits 
Program.
  The Victims Crime Act is in this bill.
  It improves the way the crime fund is managed. It replenishes the 
emergency fund for crime victims up to $50 million. This is really 
important.
  These are the important provisions.
  On the other hand, I do wish some of the provisions were more tightly 
targeted to address only actions directly related to terrorism or 
suspected terrorism. It is for this reason that I think it is 
critically important each and every Senator and Representative monitor 
the use of new authorities provided to the law enforcement agency to 
conduct surveillance.
  We are going to have to monitor this aspect very closely. It has been 
said, and it should be said, we do not want to pass legislation that 
undermines our democratic principles or practices. If we do that, the 
terrorists have won a victory. If I thought this was such legislation, 
I would not support it.
  I will say this one more time: From my point of view, this 
legislation is better than it was when it passed the Senate. The sunset 
provision is critically important. Ultimately, where I come down is if 
we do not take some of these steps with some of the provisions I have 
outlined, which are very important, very positive in protecting people, 
and more people are killed and there is more loss of life of innocent 
people, you cannot bring those lives back.
  I am not a lawyer, and this is my layperson way of analyzing this. If 
there are some abuses with the surveillance, we monitor it, we can pass 
new legislation, and we can change it. It sunsets in 4 years. That is 
reversible. I err on the side of protection for people.
  I wish we did not even have to consider this legislation. I wish we 
were not even living in these times. I believe terrorism is going to be 
a part of our lives. I think it is going to be a part of our children's 
lives. I think it is going to be a part of our grandchildren's lives. I 
think this is going to be the struggle for several generations to come. 
No one action and no one step is going to end it. I think that is now 
the world, unfortunately, in which we live. That is now the world in 
which all of God's children live.
  There are some things we are going to have to do differently and, as 
I said, we must be vigilant. Where there are excesses, we need to 
change that. I do believe this legislation is an important step in the 
direction of trying to prevent this and providing protection to our 
citizens.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from 
Massachusetts.
  Mr. KERRY. Mr. President, I support the conference report before the 
Senate today. It reflects an enormous amount of hard work by the 
members of the Senate Banking Committee and the Senate Judiciary 
Committee. I congratulate them and thank them for that work.
  I particularly thank Senator Daschle, Senator Leahy, Senator 
Sarbanes, Senator Hatch, and Senator Levin for their work in developing 
this legislation. I am pleased the Conference Report includes what I 
consider to be a very important provision regarding money laundering 
that has been hard fought over and, frankly, long awaited for. We have 
been working on this for quite a few years, almost 10 years or more 
when I was a member of the Banking Committee and within the Foreign 
Relations Committee where I was Chairman of the Subcommittee on 
Narcotics, Terrorism and International Operations. This really is the 
culmination of much of that work.

[[Page S11027]]

  I am pleased at the compromise we have reached on the antiterrorism 
legislation, as a whole, which includes the sunset provision on the 
wiretapping and electronic surveillance component. It has been a source 
of considerable concern for people, and I think the sunset provision 
provides Congress a chance to come back and measure the record 
appropriately, and that is appropriate.
  The reason I think the money-laundering provision is so important is 
it permits the United States--it really authorizes and gives to the 
Secretary of the Treasury the power to be able to enforce the interests 
of the United States. It allows the Secretary to deny banks and 
jurisdictions access to our economy if in the last measure they are not 
cooperative in other ways to prevent money laundering from being a tool 
available to terrorists.
  This is a bill I introduced several years ago that assists our 
ability to be able to crack down on the capacity for criminal elements, 
not just terrorists, who are criminals themselves. But also narcotics 
traffickers, arms proliferators, people who traffic in people 
themselves. There are all kinds of criminal enterprises which benefit 
from access to the American financial system. All of these will now be 
on notice that our law enforcement community has additional tools to 
use to be able to close the incredible benefits of access to the 
American financial marketplace.
  The global volume of laundered money staggers the imagination. It is 
estimated to be 2 to 5 percent of the gross domestic product of the 
United States. That is $600 billion to $1.5 trillion that is laundered, 
that comes into the country or passes through banks without 
accountability. Those funds escape the tax system, for one thing. So 
for legitimate governments struggling to fairly distribute the tax base 
while the average citizen who gets their paycheck deducted or those 
good corporate citizens and others who live by the rules, they are 
literally being required to assume a greater burden because other 
people using the laundering and lack of accountability escape that 
responsibility.
  The effects of money laundering go far beyond the parameters of law 
enforcement, creating international political issues and generating 
very genuine domestic political crises. International criminals have 
taken advantage of the technology and the weak financial supervision in 
many jurisdictions to simply smuggle their funds into our system. 
Globalization and advances in communications and technologies have 
allowed them to move their illicit gains with much more secrecy, much 
faster, commingled, and in other ways that avoid or complicate 
significantly the ability of prosecutors to be able to do their job.

  Many nations, some of them remote, small islands that have no real 
assets of their own, have passed laws solely for the purpose of 
attracting capital illicitly, as well as legally. By having the legal 
capital that is attracted by virtue of the haven that is created, they 
provide the cover for all of the illicit money. There are places not so 
far away from us, islands in the Caribbean and elsewhere, which at last 
count I remember $400 billion of assets that supposedly belong to this 
island in about 1 square mile of the downtown area, most of which was 
the property of entities that had a brass plate on a door and a fax 
machine inside, perhaps a telephone number, and that was sort of the 
full extent of the corporate entity.
  So there is $400 billion on an island that everybody knows is not on 
the island. Where does it go? It goes back into the financial 
marketplace where it earns interest, is invested, goes into legitimate 
efforts, much of it legitimate money to begin with but a whole portion 
of it not. I might add, with the knowledge of people involved in those 
businesses and many of the banks that receive it.
  So if one is going to cope with an al-Qaida, with a terrorist entity 
such as Osama bin Laden, who moves his money into this legitimate 
marketplace, law enforcement has to have the ability to be able to hold 
people accountable where it is legitimate to do so.
  Now obviously we do not want to do that where there is a legitimate 
enterprise, and we do not want to create a crossing of the line of the 
corporate veil that has been protected for a long period of time, and I 
am not urging that we do that. But we do have to have a system in 
place, where probable cause exists, for law enforcement entities.
  I spent a number of years as a prosecutor. We make pretty good 
judgments in the law enforcement community about probable cause. They 
are not always without question, and they are not, obviously, without 
error at times. We understand that. We have a pretty good system in the 
United States to protect against that. What we are trying to do with 
this legislation is to put those protections in place, but even as we 
put in a series of steps that allow the Secretary of the Treasury to be 
able to target a particular area as a known money-laundering problem, 
and then be able to require of the government of that entity, a 
cooperative effort. It is only if the entity or government's 
cooperative effort at several different stages is not forthcoming that 
the Secretary would ultimately consider exercising the power to denying 
that entity as a whole, or individual banks or other financial 
institutions, access to our financial marketplace and to its benefits.

  I believe this leverage will be critical in our ability to wage a war 
on terrorism, as well as to be able to wage a sufficient law 
enforcement effort against the criminal enterprises that exist on a 
global basis.
  I think the Secretary will have a number of different options and it 
will provide a transparency and an accountability that is absent today.
  Let me comment on one criticism that is often raised by some 
opponents of this legislation who do not like the idea that the United 
States should somehow put in place sanctions against an entity that has 
a lower tax rate than we happen to have. I emphasize there is nothing 
in this legislation that empowers us to take action because another 
government has a lower tax rate. That is their privilege. It is 
healthy, as all Members know, to have competition in the marketplace of 
taxes, too. The Chair is a former Governor and he knows well the 
competition between States. States will say: We will not have a sales 
tax; we will not have an excise tax; we will try to make ourselves more 
business friendly. We want to be as competitive and as low tax as we 
conceivably can be.
  We are not seeking to try to address those jurisdictions that simply 
make themselves more competitive on a tax basis. What we are trying to 
address are those jurisdictions that not only have lower taxes but use 
the lower taxes, coupled with a complete absence of accountability, a 
complete absence of transparency, a complete absence of living by the 
law enforcement standards of other parts of the world, to knowingly 
attract the illicit gains that come from criminal activity or that 
attract and move terrorist money through the world.
  We are simply putting into place the standards by which most of the 
developed world is living. Ultimately we hope all countries will adopt 
appropriate money laundering standards so we can all live in a safer 
world.
  Passage of this legislation is going to make it a lot more difficult 
for new terrorist organizations to develop. I can remember a number of 
years ago when I was chairing the subcommittee on Narcotics, Terrorism 
and International Operations, I conducted an investigation into a bank 
called BCCI, the Bank of Credit Commerce International. We uncovered a 
complex money-laundering scheme involving billions of dollars. 
Fortunately, BCCI was forced to close. We were able to bring many of 
those involved in it to justice. But we have learned since the closing 
that BCCI was a bank that had a number of Osama bin Laden's accounts. 
We learned when BCCI closed, we dealt Osama bin Laden a very serious 
blow.
  So as the Congress gives final approval to this legislation in 
response to these attacks, we need to keep in our focus the benefits 
that will come to us by pressing these money laundering standards on 
banks. With the passage of this legislation, terrorist organizations 
will not be able to move funds as easily and they will not be able to 
have their people move within our country with bank accounts that we 
cannot

[[Page S11028]]

penetrate, with major sources of funding transferred to them from the 
Middle East or elsewhere to empower them to be able to do the kind of 
things they did on September 11.
  I also point out this bill will require the U.S. financial 
institutions to use appropriate caution and diligence when opening and 
managing accounts for foreign financial institutions. It will actually 
prohibit foreign shell banks, those who have no physical location in 
any country, from opening an account in the United States. Think about 
that. We currently allow a bank that has no physical presence 
anywhere--a bank--to open an account in the United States. That is 
today. With this legislation, that will change. It is high time.
  The conference report expands the list of money-laundering crimes and 
will assist our law enforcement efforts in making it easier to 
prosecute those crimes. It requires the Federal Reserve to take into 
consideration the effectiveness financial institutions in combating 
money-laundering activities before any merger is approved. We will have 
an ability to judge the road traveled before we open up new 
opportunities for financial institutions.
  The following is a description of the legislative intent of the 
Counter Money Laundering and Foreign Anti-Corruption Act of 2001 which 
was included in section 311 of subtitle A--International Counter Money 
Laundering and Related Measures of the conference report. First, the 
Secretary of the Treasury determines whether ``reasonable grounds exist 
for concluding'' that a foreign jurisdiction, a financial institution 
operating in a foreign jurisdiction, or a type of international 
transaction, is of ``primary money laundering concern.'' In making this 
determination, the Secretary must consult with the Secretary of State, 
the Attorney General, the Secretary of Commerce, and the United States 
Trade Representative. The Secretary is also directed to consider any 
relevant factor, including the quality of a jurisdiction's bank 
secrecy, bank supervision, and anti-money laundering laws and 
administration, the extent to which a particular institution or type of 
transaction is involved in money laundering as compared to legitimate 
banking operations, whether the U.S. has a mutual legal assistance 
treaty with the jurisdiction and whether the jurisdiction has high 
levels of official or internal corruption.
  Second, if a jurisdiction, institution, or transaction is found to be 
a ``primary money laundering concern,'' the Secretary then selects from 
a menu of five ``special measures'' to address the identified issue. 
these five special measures are: requiring additional record keeping 
and/or reporting on particular transactions; requiring reasonable and 
practicable steps to identify the beneficial foreign owner of an 
account opened or maintained in a domestic financial institution; 
requiring the identification of those using a foreign bank's payable-
through account with a domestic financial institution; requiring the 
identification of those using a foreign bank's correspondent account 
with a domestic financial institution; and restricting or prohibiting 
the opening or maintaining of certain corresponding accounts for 
foreign financial institutions. The special measure relating to the 
restriction or prohibition of accounts can only be imposed by 
regulation. However, nothing in this legislation will in any way 
restrict the right of the Secretary of the Treasury to impose a rule 
immediately and to ask for comment at the same time. The other four 
special measures may not remain in effect for more than 120 days, 
except pursuant to a rule promulgated on or before the end of the 120-
day period beginning on the date of the issuance of such order.
  In choosing which ``special measure'' to impose and how to tailor it, 
the Secretary shall consider the extent to which they are used to 
facilitate or promote money laundering, the extent to which they are 
used for legitimate business purposes and the extent to which such 
action will sufficiently guard against money laundering. The Secretary 
is also to consult with the Chairman of the Board of Governors of the 
Federal Reserve. If the Secretary is considering prohibiting or 
restricting correspondent accounts, he is also to consult with the 
Secretary of State and the Attorney General. The Secretary is also 
obligated to consider three factors: whether other countries or 
multilateral groups are taking similar actions; whether the imposition 
of the measure would create a significant competitive disadvantage for 
U.S. firms, including any significant cost or compliance; the extent to 
which the action would have an adverse systemic impact on the payment 
system and legitimate business; and the effect of such action on United 
States national security and foreign policy.
  Within 10 days of invoking any of the special measures against a 
primary money laundering concern, the Secretary must notify the House 
and Senate Banking Committees of any such action taken.
  The conference report includes a provision within section 351 
relating to reporting of suspicious transactions which clarifies that 
the ``safe harbor'' from civil liability for filing a Suspicious 
Activity Report (SAR) applies in any litigation, including suit for 
breach of contract or in an arbitration proceeding and clarifies the 
prohibition on disclosing that a SAR has been filed.
  Section 353 of the conference report also includes a provision that 
increases penalties for violation of Geographic Targeting Orders (GTO) 
by making it a civil and criminal offense on par with existing law to 
file reports required by a Geographic Targeting Order; requiring 
structuring transactions to fall below a GTO-lowered threshold a civil 
and criminal offense on par with structuring generally; and extends the 
presumptive GTO period from 60 to 180 days.
  Finally, section 355 of the conference report includes a provision 
that grants financial institutions civil immunity for including 
suspicions of criminal wrongdoing in a written reference on a current 
or former employer.
  It has been brought to my attention that this bill, as originally 
passed by the House, contained a rule of construction which could have 
limited our ability to provide assistance and cooperation to our 
foreign allies in their battle against money laundering. The House-
passed rule of construction could have potentially limited the access 
of foreign jurisdictions to our courts and could have required them to 
negotiate a treaty in order to be able to take advantage of our money-
laundering laws in their fight against crime and terrorism. The 
conference report did not include a rule of construction because the 
Congress has always recognized the fundamental right of friendly 
nations to have access to our courts to enforce their rights. Foreign 
jurisdictions have never needed a treaty to have access to our courts. 
Since some of the money-laundering conducted in the world today also 
defrauds foreign governments, it would be hostile to the intent of this 
bill for us to interject into the statute any rule of construction of 
legislative language which would in any way limit our foreign allies 
access to our courts to battle against money laundering. That is why we 
did not include a rule of construction in the conference report. That 
is why we today clarify that it is the intent of the legislature that 
our allies will have access to our courts and the use of our laws if 
they are the victims of smuggling, fraud, money laundering, or 
terrorism. I make these remarks today because there should be no 
confusion on this issue and comments made by others should not be 
construed as a reassertion of this rule of construction which we have 
soundly rejected. Our allies have had and must continue to have the 
benefit of U.S. laws in this fight against money laundering and 
terrorism.
  Smuggling, money laundering, and fraud against our allies are an 
important part of the schemes by which terrorism is financed. It is 
essential that our money laundering statutes have appropriate scope so 
our law enforcement can fight money laundering wherever it is found and 
in any form it is found. By expanding the definition of ``Specified 
Unlawful Activity'' to include a wide range of offenses against 
friendly nations who are our allies in the war against terrorism, we 
are confirming that our money laundering statutes prohibit anyone from 
using the United States as a platform to commit money laundering 
offenses against foreign jurisdictions in whatever form that they 
occur. it should be clear that our intention that the

[[Page S11029]]

money laundering statues of the United States are intended to insure 
that all criminals and terrorists cannot circumvent our laws. We shall 
continue to give our full cooperation to our allies in their efforts to 
combat smuggling and money laundering, including access to our courts 
and the unimpeded use of our criminal and civil laws.
  Ms. CANTWELL. Mr. President, we must act on many fronts to wage a 
successful fight against terrorism. The USA Patriot Act of 2001 will 
provide our law enforcement agencies with significant new tools to 
fight this battle on the home front. There are many good things in this 
bill. I am especially pleased that the bill includes language to allow 
the tripling of manpower on our northern border. The bill also includes 
a provision to set a new technology standard for our visa program so we 
can better identify people coming into this country. I am very proud of 
the many tools in the bill for law enforcement. This legislation 
increases the number of FISA judges to speed law enforcement's ability 
to get taps in place and going and contains excellent new provisions to 
help law enforcement and banks better track and freeze financial assets 
of terrorists. Further, the bill provides for expedited hiring and 
training of FBI translators. Finally, the legislation takes steps to 
allow better sharing of information between the law enforcement and 
intelligence communities, although I believe this sharing and 
coordination would be better accomplished with a process for judicial 
review.
  But I have my concerns, as well, with the scope and the pace of these 
sweeping changes. We may have gone further than we really need to go to 
address terrorism. Thanks to the extremely hard work of Senator Leahy 
and his staff, Senator Hatch and others in both houses of Congress, 
this legislation is much more carefully tailored to addressing 
terrorism than the legislation proposed by the Administration only a 
short month ago. But I remain concerned about several provisions such 
as those involving wiretap authorities, pen register and trap and 
trace, computer trespass, access to business records and other new 
legal authorities which will not require a showing by the government of 
probable cause or allow for any meaningful judicial review. The scope 
of these provisions may make them susceptible to abuse--allowing 
inappropriate, possibly unconstitutional, intrusion into the privacy of 
American citizens. I am pleased that some of the most disconcerting 
provisions of this legislation will expire in four years. This 
``sunset'' provision will give Congress the opportunity to evaluate the 
implementation of these new laws, and reassess the need for the 
changes.
  I would like to believe that the government's new ability to place 
wiretaps on the lines of American citizens--in secret with limited 
reporting and opportunity for oversight by Congress --will not be 
abused. I would like to believe that technologies like Carnivore will 
not be used to derive content from email communications. But I am 
skeptical.
  Several other aspects of this bill, when taken together, could also 
interfere with Americans' enjoyment of their right to privacy without 
providing value in the fight against terrorists. Those of us who feel 
strongly about how new powers might chip away at traditional privacy 
rights will pay close attention to how law enforcement uses these 
tools.
  The bill's ostensible purpose in regard to searches of personal 
communication is to facilitate the sharing of information gathered in a 
law enforcement context with the intelligence community. There is a 
difference, however, between facilitating the sharing of information 
between the law enforcement and intelligence communities, and blurring 
the line between the missions of the two communities. Where information 
is sought for the purpose of law enforcement, we must ensure that 
fourth amendment protections apply. Our fear about the legislation 
comes from a legitimate concern that information gathered ostensibly 
for intelligence and defense purposes could be used for law enforcement 
purposes. The intelligence community does not prosecute and lock up its 
targets; it uses information to intervene against foreign nationals 
seeking to harm America or Americans. But the law enforcement community 
has a different mission, to catch and prosecute criminals in our courts 
of law. Because law enforcement acts upon U.S. citizens, it must do so 
within the bounds of the Constitution. The differences in these 
missions must be acknowledged, and we must be vigilant to maintain the 
distinctions.
  Last week, Senator Leahy and I discussed here on the floor the need 
to maintain strict oversight of the law enforcement community's use of 
new authorities enumerated in this legislation. Today I want to 
reiterate the need for that oversight, the need for regular Government 
Accounting Office reports to Congress of the use of the new authorities 
under FISA and pen register and trap and trace law and the need for the 
Committee on the Judiciary to scrutinize the use of these new 
authorities regularly. I am pleased that many members of the Senate 
believe we must pursue this duty diligently.
  I am also pleased that the final version of this legislation 
incorporates a four-year limit on the applicability of these and many 
other search authorities. With this ``sunset,'' law enforcement and 
intelligence agencies will be able to use new powers to identify and 
act on terrorist efforts and Congress will have the ability to review 
fully the implications of the new law.
  We can all agree that the events on September 11 have focused America 
on the fight against terrorism, and we applaud the efforts of the 
administration in the weeks since that tragic day. Clearly, there were 
failures in our investigative network, and this legislation will help 
avoid such failures in the future, allowing greater sharing of 
information that could foil terrorists before they carry out their 
brutal schemes against innocent civilians.
  The question then becomes how to make sure that the new authority 
isn't abused--in fact used for law enforcement purposes or fishing 
expeditions. Over many years and with great effort, we have crafted a 
careful balance in protecting personal privacy. The bottom line is this 
legislation could circumvent or supersede Federal and State privacy 
laws that have balanced law enforcement needs and privacy concerns, 
going well beyond the changes to the law needed for intelligence 
gathering. This is no ordinary time for our country. But in this 
process we must remember those Fourth Amendment rights that we have so 
diligently fought for in the past.
  I am proud of this Congress for acting promptly and thoughtfully in 
response to the horrific events of September 11. That day was an 
awakening to Americans, signaling the urgency for this government to 
change how we deal with terrorism. This legislation does much to 
facilitate better information gathering and sharing between our law 
enforcement and intelligence communities and greater protection of our 
borders from the intrusion of terrorists. I am hopeful that those of us 
in government have the wisdom and prudence to use these new powers in 
such a way as to not undermine the freedoms we seek to protect.
  Mr. President, currently, there is no single technology standard in 
place that allows the Federal Government to confirm with certainty the 
identity of aliens seeking entry into the United States through the 
visa program. Insufficient identification technology is available to 
our consular officers responsible for reviewing visa applications to 
facilitate a comprehensive background check of persons applying for a 
United States visa. Consular officers lack the technology to verify 
that a person seeking a visa has not previously sought or received a 
visa using another name or identity. Similarly, there is no widely 
implemented technology that allows United States border inspectors to 
confirm the identity of persons seeking admittance into the United 
States using a visa.
  Pursuant to Section 403(c) of the USA PATRIOT Act of 2001, the 
Federal Government is required to develop and implement a technology 
standard that can facilitate extremely high confidence in confirming 
the identity of an alien seeking a visa or seeking entry into the 
United States pursuant to a visa.
  The standard required by these provisions will facilitate the capture 
and sharing of all relevant identity information regarding the alien 
applicant,

[[Page S11030]]

including biometrics, and information relevant to determining the 
eligibility of such a person for entry into the United States from and 
between all relevant departments and agencies through compatible, 
interoperable systems.
  The purpose of this subsection is to ensure that United States 
Government will establish a technology standard to allow: 1, the State 
Department, at the time a person applies for a United States visa, to 
do a comprehensive background check against databases of known aliens 
ineligible for entry into the United States; 2, the State Department to 
verify the identity of a person applying for a United States visa as a 
person who has not on a previous occasion sought a visa using a 
different name or identity; and 3, United States border inspectors and 
preclearance agents to confirm that a person seeking entry to the 
United States on the basis of a visa is the same person who obtained 
the visa from the Department of State.
  Although it is understood by Congress that technological advances may 
require revisions to any standard adopted pursuant to this provision, 
it is expected that the standard will initially incorporate appropriate 
biometric technologies to compare identity information provided by the 
visa applicant to criminal, immigration and intelligence databases that 
use a fingerprint biometric or a facial recognition biometric.
  Further, to obtain the greatest protection of United States citizens 
by excluding persons ineligible for entry into the United States, the 
Department of State, the Department of Justice and other appropriate 
departments of the Federal Government should work with the governments 
of other countries to encourage such countries to adopt the standard 
established pursuant to this subparagraph and to establish 
international interoperability of identity databases. In particular, it 
will be beneficial to the United States to facilitate adoption of this 
technology standard for appropriate identity information exchange with 
Canada and Mexico. It would further benefit the security of United 
States citizens to encourage adoption of this standard by those 
countries for whose citizens the United States, Canada or Mexico do not 
require a visa to enter the respective country.
  Paragraph (1) requires the Department of Justice and Department of 
State, through the National Institute of Standards and Technology 
(NIST), and in consultation with other Federal law enforcement and 
intelligence agencies deemed appropriate by the Attorney General or the 
Secretary of State, to develop a technology standard to facilitate 
confirmation of the identity of persons seeking a visa or persons using 
a visa to enter the United States. The Departments of Justice and State 
shall also consult with Congress in the development of this standard 
through the reporting process described in paragraph (4) of this 
subsection.
  This technology standard will enable the Department of State to 
confirm that a person seeking a visa is not known to the Federal 
Government as a person ineligible for a visa, or is a person who has 
sought or obtained a visa using a different name or identity. The 
technology standard will also enable Federal inspectors at all ports of 
entry and preclearance locations to confirm that a person seeking entry 
to the United States using a visa is the same as the person to which 
the Department of State issued the visa, and is not a person sought by 
the Federal Government to be excluded from entry to the United States.
  The technology standard must be developed and certified by NIST 
within two years of the date of enactment of this subsection.
  Paragraph (2) provides that the technology standard described in 
paragraph (1) shall be the basis for a cross-agency, cross-platform 
electronic database system that is a cost-effective, efficient, fully 
integrated means to share law enforcement and intelligence information 
necessary to confirm the identity of a person applying for a United 
States visa, or such a person seeking to enter the United States using 
a visa.
  Paragraph (3) requires that the system described in paragraph (2) 
shall be implemented in a manner that is readily and easily accessible 
to all consular officers responsible for the issuance of United States 
visas; all Federal inspection agents at United States border inspection 
points (including any preclearance locations); and all law enforcement 
and intelligence officers responsible for investigation or 
identification of aliens admitted to the United States pursuant to a 
visa, provided that such officers are provided access to this system 
pursuant to regulation.
  Paragraph (4) provides that the Attorney General and the Secretary of 
State jointly and in consultation with the Secretary of the Treasury, 
shall report to Congress within 18 months of the date of enactment of 
this Act, and every two years thereafter, describing the development, 
implementation and efficacy of the technology standard described in 
this subsection. The report must also consider the privacy implications 
and applicability of Federal privacy laws.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. I yield the Senator as much time as he requires.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. I thank the Senator from Utah, the leader on our side on 
this committee.
  I want to talk just in specifics about one area with which this bill 
deals. We know that as a result of the tragedy of September 11 and the 
continuing problems we are having with anthrax and other threats from 
abroad, we need to do a better job of seeing who comes into this 
country to make sure people who wish to do us harm are, if possible, 
screened out before they get here so people who are visitors from 
abroad who engage in things that are inappropriate, who violate the 
terms of their visas or their other status, can be removed.
  So after the September 11 incident happened and people started 
talking about problems in immigration, I spent a full day traveling 
with representatives from the INS in my State. We are in the heartland, 
but Missouri is directly involved because many of these visitors come 
to Missouri as well. I know the people at our major ports have even 
greater problems, but we saw the problems firsthand.
  I said: Why can't you get somebody out of the country if they 
overstay their visa?
  And they asked a very logical question: How do you know where they 
are? We don't have a good system.
  I said: Is it possible?
  They said: You probably could not give us enough INS enforcement 
agents to make sure we could find every person. They come in, they say 
they are going to go to Branson, MO, or they are going to visit the 
Arch in Missouri, and they may go to one or two other lesser tourist 
attractions across the country, and we don't know where they are.
  As a result of discussions with them and some great assistance I 
received from my cosponsors, Senator Conrad and Senator Snowe, we put 
together what we think are some significant improvements in the way we 
deal with visitors to this country to lessen the likelihood that they 
will be able to participate in causing harm to citizens of the United 
States. So we have put together the Visa Integrity and Security Act. I 
express our sincere appreciation to the managers of this bill and to 
our colleagues in the House for adopting these principles and putting 
them into the bill.
  This is not going to be a total solution. Nobody can expect that we 
are going to do a 100-percent job. But when we look at what has 
happened in the past, we think this is going to be a significant 
improvement.
  As Senator Snowe pointed out, Sheik Rahman, who has been in prison 
for his part in the first bombing of the World Trade Center, had been 
on a watch list, the Foreign Intelligence Watch List, for years, and 
nobody told the State Department or the INS, and they gave him 
permanent status in the United States. That was after he had been 
identified.
  We are saying the criminal agencies, the law enforcement agencies 
have to talk with the State Department, the people who are issuing 
these visas, and let them know we should not let this guy back into the 
United States. He came and went five times. That is just not 
acceptable.
  I also trust the State Department will change the directions in their

[[Page S11031]]

manual which has said in recent years that merely urging terrorist 
activities or belonging to a terrorist organization do not disqualify 
you from coming to the United States. I mean, if you are a member of 
al-Qaida, you say: Oh, well, he may not be one of the murderers?

  Give me a break. If there is any ground for keeping somebody out of 
the United States, it ought to be that they are a member of al-Qaida. I 
hope in the future we can share that information and make sure they do 
not come in.
  So one of the things we require is that the FBI share the National 
Criminal Information System with the State Department and the INS. We 
are going to ask the Director of Homeland Security to report to 
Congress on the need for any other Federal agencies, intelligence 
agencies, to share or feed their information into this database.
  One of the things we know now is that people can come in under one 
name and then change names and we don't know exactly who they are. We 
don't have a foolproof method of identifying these people who come into 
the United States. Isn't it about time we know for certain, before they 
even come in, who they are? Doesn't it make sense that we know for 
certain who they are when they are in the United States?
  I talked with the dean of the engineering school at the University of 
Missouri at Columbia. He said 10 years ago it wouldn't be possible but 
now, clearly, we have the technology to do this. So this bill instructs 
the Attorney General to implement an automated system to track the 
entry and exit of visa holders, to make sure who they are, where they 
are, and what their status is.
  Back in my time, we used to talk about fingerprints. Now the term is 
a biometric system. There are a number of different systems to review. 
There can be digitized facial profiles, digitized photos of the iris of 
the eye, whatever is most feasible and effective there--to select that. 
We need to put some money in putting the machinery in our consular 
offices overseas so when somebody comes in and presents himself to get 
a visa to get into the country, we can find out and make a record, 
permanently, of who they are. No more using stolen passports.
  One of our partners in Western Europe who operates under the visa 
waiver system has a problem with 60,000 stolen passports. Right now, if 
you buy a passport or take somebody else's visa, we have a tough time 
tracking them. But once they get that biometric card, we know 
positively. We have a modern-day thumbprint on them. We can check them 
out overseas; we can check them in our records. When they come to the 
port of entry, we check them at the port of entry to make sure they are 
who they say they are. And if they do not get out of the country in 
time, we turn that information over to law enforcement agencies, so if 
there is a contact with a law enforcement agency, this rings a bell: 
You are out of status. You stayed too long. Or if a student leaves the 
school, departs the school which he or she is supposed to attend or an 
H-1B visa holder leaves the job he or she is supposed to have, that is 
reported to the INS and they can turn over that information. Any law 
enforcement official in the United States who comes in contact with him 
will know that person is out of status.
  Somebody says: Why is it important to know if they are out of status? 
Many people who are out of status and performing activities that are 
highly suspicious may not rise to the level of criminal indictment or 
for a criminal information to be filed against them, but if they are 
involved in suspicious activities and they are out of status, they are 
violating the terms of their visa and they can be deported and we 
potentially can avoid problems before they actually occur.
  This is not going to be 100 percent effective. But when people are 
out of status, particularly if they are acting suspiciously, we will 
have a record on them, and we need to tighten up the system to know 
when they leave. Right now, it just depends upon the airlines, making 
sure they tell us who leaves the country. That is not good enough. We 
need to keep a record of who comes in and who leaves so we know who is 
overstaying their visa. They say 4 to 6 million people are here 
illegally because they overstayed their visa, and we don't have any 
idea how to find them. At least if we have a biometric card, when they 
come in contact with a law enforcement agency, then we can do that.
  Student visas are another thing. A lot of people focused on the 
student visas. That is a small portion of the people who come to the 
United States. There were a couple of people involved in the September 
11 tragedy who were here on student visas.
  Hanni Hanjour came here supposedly to study English in California and 
never showed up at school. The school didn't know he was coming. They 
didn't tell anybody. The next time we heard from him he was apparently 
piloting the plane that went into the Pentagon.
  It is not the student visas that are the problem. All visas are 
problems. But in this bill we authorize almost $37 million to implement 
the system that Congress dictated 4 or 5 years ago to track the people 
who come into the United States and to get a solid tracking system to 
know if they are overstaying their visa. If they do not show up for 
school, then the schools would have to notify the INS. It would apply 
the same requirements to language schools, to vocational schools, and, 
yes, especially to flight schools. So we would know who was coming in.
  This data system which has been put on the slow road is to be speeded 
up and to be fully in effect by the beginning of January 2003. So we 
will have a better system.
  Let me say a brief word about student visa holders. The foreign 
students who come to this land are a vitally important part of our 
educational system. We are very proud in Missouri to have a number of 
schools with a significant number of foreign students who bring their 
culture, their experience, and their knowledge to this country. In my 
view, one of the best foreign relation tools we have is to share 
education with the future leaders of other countries.
  I have traveled extensively in Asia. I have found that many of the 
governmental leaders, scientific leaders, and leaders in journalism 
have studied in my State. They come up to me and ask how the Missouri 
Tigers are doing. They know what we are about. We have a good basis to 
talk with them.
  I was in Malaysia in August to talk about the potential that we have 
to gain great medical insight and perhaps advances through 
biotechnology using the information in genes in the Malaysian rain 
forest. Two of the leaders graduated from the University of Missouri.
  These are in the bill. The visa waiver program needs to be tightened 
up so countries that just send their citizens into our country without 
going through the visa process--we need to work with them and negotiate 
with them so they have a strong, positive identifier, and so we have 
the same kind of identification with them as we do with these other 
states.
  I know many people want to speak on this. I, again, express my 
appreciation to the managers of the bill. I thank my cosponsors, 
Senator Conrad and Senator Snowe. I urge adoption of this measure which 
I think is going to move us significantly in the right direction of 
preventing terrorist activities in the future.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I will take a moment. How much time is 
remaining to the Senator from Vermont?
  The PRESIDING OFFICER. The Senator from Vermont has 43 minutes 
remaining.
  Mr. LEAHY. Mr. President, I know the distinguished senior Senator 
from New York has been waiting on the floor for some time. How much 
time is the Senator from New York going to want?
  Mr. SCHUMER. I ask for 7 minutes.
  Mr. LEAHY. I see the distinguished senior Senator from California. 
How much time does she want?
  Mrs. FEINSTEIN. I will take 1 additional minute; 8 minutes.
  That was meant to be a joke.
  Mr. LEAHY. I am trying to think how to react to that, considering the 
size of the State of Vermont--other than to say that when Vermont was 
admitted to the Union it had twice the population of California when 
California was admitted to the Union. Every day now California gains 
the population of Vermont.
  Mr. President, I ask that 8 minutes of my time be given to the 
Senator from

[[Page S11032]]

New York and 8 minutes to the Senator from California, both of whom are 
valued members of the Senate Judiciary Committee.
  Mr. CONRAD. Mr. President, will the manager of the bill and others 
who are waiting permit me 15 seconds to mention what has occurred?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Dakota.
  Mr. CONRAD. Mr. President, I thank the manager of the bill for 
including the provisions that Senator Bond, myself, and Senator Snowe 
authored to tighten our borders, to provide coordination with schools 
and employers when visa holders come to this country, to coordinate the 
work of our intelligence agencies with the INS and the State Department 
so we are confident of who is coming in, and to impose these new 
provisions using biometrics so we really know who is coming to our 
country.
  I thank the managers very much, and I thank Senator Bond for his 
leadership.
  Mr. LEAHY. Mr. President, I thank Senator Bond. I thank Senator 
Conrad and Senator Byrd.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Thank you, Mr. President.
  Mr. President, first, let me thank our senior Senator from Vermont 
and our senior Senator from Utah for their leadership on this bill; and 
also the many who have worked on it.
  It is good that we have brought this bill in a timely fashion before 
the Senate. On the one hand, we didn't rush so much that we did the 
bill in a day or two. On the other hand, we didn't have a great need to 
wait in terms of security. I think it is coming to the floor at the 
right time with enough deliberation and care but at the same time not 
delaying too much because the security problems America faces are large 
and at times seem almost overwhelming.
  If there is one key word that underscores this bill, it is 
``balance.'' In the new post-September 11 society that we face, balance 
is going to be a key word. Technology has forced us to recalibrate in 
many different ways. The technology that allowed these horrible people 
to do what they did to my city and to America and the technology that 
allows law enforcement to try to catch up with them changes rapidly. No 
law can sit still as that technology changes and still be effective.
  The balance between the need to update our laws given the new 
challenges and the need to maintain our basic freedoms which 
distinguish us from our enemies is real.
  There have been some on the right who have said just pass anything. 
We just have to go after the terrorists and forget about our freedoms 
and our civil liberties. There are some on the left who say only look 
at the civil liberties aspect. They are both wrong. Fortunately, 
neither prevailed in this fine piece of work that we have before us. 
Balance and reason have prevailed.
  This is the Senate working at its best under a crisis situation but 
still with care and an appropriate degree of deliberation.
  It is also an example of the two parties coming together, and of the 
administration and the Congress coming together. In a sense, in this 
bill there is something for everyone to like and something for everyone 
to dislike, which may well show that it will end up in the right place.
  I would like to talk about a few parts of the bill. The trap-and-
trace provision is basically a proposal that Senator Kyl and I put 
together a couple years ago which is basically in the bill intact. It 
is vital. If you ask law enforcement what they need, they need a 
standard when they have somebody who is a terrorist or a potential 
terrorist, that would allow a wiretap to be made so they can find that 
person.
  In the old days it was easy. It was not easy to get a new telephone. 
You had to go to the phone company to get one, and it would take a few 
weeks. Now people have cell phones; and anyone, for an illicit or bad 
purpose, can get a cell phone every day. In fact, we know some of the 
hijackers regularly bought new cell phones.
  Without this new process, without nationalizing trap-and-trace 
authority so you can follow the numbers that are called--you still 
cannot look at content without going to a judge--law enforcement would 
be powerless. It still confounds me that a simple provision such as 
this, which does not change the balance but simply updates the 
technology we need, had been held up for so long. Fortunately, it is 
here now. Or unfortunately, it took an awful incident to make it 
happen.
  Most of the terrorists--and other criminals as well: money 
launderers, drug dealers--are pretty technologically savvy. To put 
handcuffs on law enforcement so they cannot be as technologically 
savvy, would make no sense.
  I was also proud to work on the money laundering provision. Law 
enforcement has often said: Show me the money, and I will show you the 
terrorists. Let's be honest about it. The money-laundering provision is 
not going to stop the flow of money completely to the terrorists. They 
can still have couriers and packets and things such as that. But what 
it does do, No. 1, is make it harder, and, No. 2, it gives us 
information, the ability to find information, and find the flow of who 
is connected to whom, how, where, why, and when.
  Again, the late Senator Coverdell and I had a money-laundering bill 
that is not terribly different than the provisions in this bill. We had 
introduced it a couple years ago.
  I see my friend from Michigan. He has come to the Chamber. He has 
done great work in relation to money laundering, as has the Senator 
from Massachusetts, and so many others.
  As to information sharing, again, we need to share information more 
quickly and more rapidly among our various law enforcement agencies and 
between law enforcement and intelligence agencies.
  When we are facing a war where it is more likely that more civilians 
will die than military personnel, the homefront is a warfront. The old 
high wall between foreign intelligence and domestic law enforcement has 
to be modified. The bill does a good job of that.
  There is a provision that would improve communication between Federal 
law enforcement and local law enforcement, which Senator Clinton and I 
believe needs tightening up. There were procedural, not substantive, 
objections raised to it. We hope to bring that measure back either as a 
freestanding measure or as part of some other legislation.
  The other provisions in the bill are good as well. I believe in 
immigration. I think immigrants are great for America. But immigrants 
do not have the exact same rights as citizens. They never have, nor 
should they. To say that somebody who is not a U.S. citizen and might 
be suspicious should be detained for a short period of time while law 
enforcement checks them out--after all, they are trying to enter the 
country, which is a privilege, not a right--makes sense. To say they 
should be detained indefinitely without going to a judge cuts too far 
against the grain of the freedoms we have. Once again, this bill seeks 
a balance.

  Finally, as to the sunset, I was very much opposed to the House 2-
year sunset. How could we have law enforcement adapt to a new law 
knowing that by the time they get geared up, it is almost going to be 
sunsetted? In fact, I think you do it the other way. If a law is good, 
you put it on the books permanently, and then you reexamine it. You do 
not automatically have it off the books. That means you do not trust 
the product you put together.
  Four years is about the minimum amount of time that would be 
acceptable to me. I thought 5 would be better, or, frankly, no sunset. 
Putting the burden of proof the other way would have made more sense, 
still. But a 4-year sunset, again, shows compromise.
  Mr. President, I have said this in this Chamber before. In this new 
world in which we live, everyone has to give a little bit. We are 
asking our citizens to give a little bit. We are asking our Armed 
Forces to give a lot. And that applies to us as well.
  I hope and pray--and I believe it has happened in this bill--there is 
a bit of a new attitude. Even if you cannot get everything your way, at 
least you give the benefit of the doubt to the compromise that has been 
put together because we have to move things forward, and this bill does 
that.
  In conclusion, the scourge of terrorism is going to be with us for a 
while. Law enforcement has a lot of catching up to do. There is no 
question

[[Page S11033]]

about it. In this bill, at least, we give them fair and adequate tools 
that do not infringe on our freedoms but, at the same time, allows them 
to catch up a lot more quickly.
  Mr. President, I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from California.
  Mr. LEVIN. Mr. President, I wonder if the Senator from California 
would yield for a unanimous consent request.
  Mrs. FEINSTEIN. I would be happy to yield.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask unanimous consent that after the 
remarks of the Senator from California, I be recognized for the time 
allotted to me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. I thank the Senator.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, Americans tend to be a very open 
people. Americans, to a great extent, have looked at Government, 
saying: Just leave me alone. Keep Government out of my life. At least 
that is the way it was before September 11. What I hear post-September 
11 are people saying: What is my Government going to do to protect me?
  As we look back at that massive, terrible incident on September 11, 
we try to ascertain whether our Government had the tools necessary to 
ferret out the intelligence that could have, perhaps, avoided those 
events. The only answer all of us could come up with, after having 
briefing after briefing, is we did not have those tools. This bill aims 
to change that. This bill is a bill whose time has come. This bill is a 
necessary bill. And I, as a Senator from California, am happy to 
support it.
  This legislation brings our criminal and national security laws in 
line with developing technologies so that terrorists will no longer be 
able to stay one step ahead of law enforcement. And believe me, they 
can today.
  Right now, for example, terrorists can evade Foreign Intelligence 
Surveillance Act wiretaps, which are device-specific, by simply 
switching cell phones every few hours. This legislation fixes that and 
allows for roving FISA wiretaps, the same as are currently allowed for 
suspected criminals under the domestic law enforcement portions of the 
law known as title III.
  And because modern communications often travel through countless 
jurisdictions before reaching their final destination, investigators 
must now get court orders from every one of those jurisdictions. They 
can have to get 15, 20 court orders to carry out a wiretap. This bill 
would change that, allowing for just one court order from the 
originating jurisdiction.
  And the bill recognizes that voice mails and e-mails should be 
treated alike when law enforcement seeks access to them. Technology, as 
it changes, changes the ability to conduct an intelligence 
surveillance. This bill attempts to keep a very careful balance between 
the personal right to privacy and the Government's right to know, in an 
emergency situation, to be able to protect its citizens.
  It also increases information sharing between the intelligence 
community and law enforcement. As a matter of fact, it mandates it. 
Criminal investigations often result in foreign intelligence. This 
information, up to this point, is not shared with the intelligence 
community. After this bill becomes law, it must be shared.
  And it makes it easier for law enforcement to defeat those who would 
use the computers of others to do mischief.
  For example, with the Zombie computer, I invade your computer and, by 
invading your computer, go into 1,000 other computers and am able to 
get one of them to open the floodgates of a dam. This bill prevents 
that.
  Overall, this bill gives law enforcement and the intelligence 
community the tools they need to go after what is an increasingly 
sophisticated terrorist element.
  I am very pleased this legislation also includes a number of 
provisions I drafted with Senator Graham well before the events on 
September 11--title 9 of this bill. These provisions give the Director 
of the CIA, as head of the intelligence community, a larger role with 
regard to the analysis and dissemination of foreign intelligence 
gathered under FISA. These mandate that law enforcement share 
information with the intelligence community.
  And title 9 improves the existing Foreign Terrorist Asset Tracking 
Center which helps locate terrorist assets. It authorizes additional 
resources to help train local law enforcement to recognize and handle 
foreign intelligence.
  We now have these anti-terrorist teams throughout the country. They 
need to be trained, and they need to learn the tools of the trade and 
get the security clearances so they can tap into these databases.
  I agree with the 4-year sunset included for certain surveillance 
provisions in the bill. In committee I suggested a 5-year sunset. The 
House had 2 years. It is now 4 years. That is an appropriate time. It 
gives us the time to review whether there were any outrageous uses of 
these provisions or whether uses were appropriate under the basic 
intent of the bill.
  Let me briefly touch on a related topic of great importance in the 
war against terrorism. As an outgrowth of the Technology, Terrorism, 
and Government Information Subcommittee, today Senator Jon Kyl of 
Arizona and I held a press conference indicating a bill we will shortly 
introduce to create a new, central database, a database that is a 
lookout database into which information from intelligence, from law 
enforcement, from all Federal agencies will go. That database will be 
for every visa holder, every person who crosses borders coming in and 
out of this country. The legislation will provide for ``smart visa 
cards'', reform the visa waiver program, reform the unregulated student 
program, and improve and beef up identity documents.
  I passed around at the press conference a pilot's license, easily 
reproducible, no biometric data, no photograph, perforated around the 
edges showing that it had been removed from a bigger piece. This is the 
pilot's license that every 747 pilot carries, every private pilot 
carries. It is amazing to me that this can be a Federal document and be 
as sloppy as it is in this time.
  We intend to see that identity documents are strengthened to provide 
not only photographs, but biometric data as well (such as fingerprints 
or facial recognition information). And the data system would be such 
that it is flexible and scalable so as biometric technology and 
requirements progress, the database can keep up.
  Both Senator Kyl and I also met with Larry Ellison, the CEO of 
Oracle. Oracle has stated that they are willing to devote some 1,500 
engineers to develop a national identity database. What we are 
proposing is different from that. He said they would devote their 
software free of charge.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mrs. FEINSTEIN. If I may just have 1 minute to conclude.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. We are not proposing a national identity card, but we 
do believe this kind of database could be prepared by a company such as 
Oracle--they have offered to give it to the Government for free or by 
NEC, which did a state-of-the-art fingerprint system for San Francisco. 
We believe this should be under the auspices of the Homeland Security 
Director, that these decisions need to be made rapidly, and that we 
need to get cracking to close the loopholes that have made the United 
States of America one giant sieve.
  This bill, which I am so happy to support, takes a giant step forward 
in that direction. I thank both the chairman of the committee and the 
ranking member for their diligence on this bill.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Michigan is recognized.
  Mr. LEVIN. Mr. President, the antiterrorism bill which the Senate is 
about to pass reflects the sentiments the American people have 
expressed since the events of September 11--that we must act swiftly 
and strongly to defend our country without sacrificing our most 
cherished values. The Senate antiterrorism legislation meets that test. 
It responds to these dangerous times by giving law enforcement agencies 
important new tools to use in combating terrorism without denigrating

[[Page S11034]]

the principles of due process and fairness embedded in our 
Constitution.
  The bill is not perfect. In fact, during the Senate's consideration 
of its bill, I supported three amendments offered by Senator Feingold. 
Each of the Feingold amendments would have strengthened privacy 
protections for American citizens without undermining law enforcement 
efforts to investigate terrorists. One amendment would have maintained 
limits in Federal and State law on law enforcement access to personal 
records, particularly with regards to sensitive medical and financial 
information. A second amendment would have required law enforcement to 
ascertain that a surveillance target under the antiterrorism bill's 
expanded wiretap authority was actually in the house that was bugged or 
using the phone that was tapped before surveillance could be initiated. 
The third amendment that I supported would have placed sensible limits 
on the government's ability to intercept computer communications. Among 
these limits were the type of investigation and the length of 
surveillance in which the government could utilize new surveillance 
authority provided in the antiterrorism bill.
  While the amendments I supported were not adopted the bill before us 
is much stronger from a civil liberties standpoint than the legislation 
that was initially proposed by the administration. This is due in large 
part to the strong commitment to civil liberties and the tireless 
efforts of Senate Judiciary Committee Chairman Patrick Leahy.
  The bill also bolsters Federal criminal laws against terrorism in 
several important areas, including extending the statute of limitations 
for terrorist offenses and modernizing surveillance laws to permit 
investigators to keep pace with new technologies like cell phones and 
the Internet.
  Michigan's economy and security depend on the Federal Government 
providing adequate resources for inspection and law enforcement at the 
State's northern border. I am pleased that the final bill now before us 
also includes significant new funding to increase security and improve 
traffic flow at the northern border.
  Finally, this legislation includes a landmark set of provisions that 
I have been proud to sponsor that will strengthen and modernize U.S. 
anti-money laundering laws. Osama bin Laden has boasted that his modern 
new recruits know the ``cracks'' in ``Western financial systems'' like 
they know the ``lines in their hands.'' Enactment of this bill will 
help seal the cracks that allow terrorists and other criminals to use 
our financial systems against us.
  The final money laundering provisions appear in Title 3 of the bill 
and represent a significant advance over existing law. Here are some of 
the anti-money laundering provisions that I authored and that are 
included in the final bill.
  For the first time, all U.S. financial institutions--not only banks 
but securities firms, insurance companies, money transmitters, and 
other businesses that transfer funds or engage in large cash 
transactions--will have a legal obligation to exercise due diligence 
before allowing a foreign financial institution to open a correspondent 
account with them and thereby gain entry into the U.S. financial 
system.
  For the first time, U.S. banks and securities firms will be barred 
from opening accounts for foreign shell banks that have no physical 
presence anywhere and no affiliation with another bank.
  For the first time, U.S. prosecutors will be able to freeze and seize 
a depositor's funds in a foreign financial institution's correspondent 
account to the same extent under civil forfeiture laws as a depositor's 
funds in other U.S. financial accounts.
  For the first time, foreign corruption offenses such as bribery and 
misappropriation of funds by a public official will qualify as 
predicate offenses that can trigger a U.S. money laundering 
prosecution.
  Still other provisions in the bill give U.S. law enforcement a host 
of new tools to investigate and prosecute money laundering crimes, 
especially crimes involving a foreign financial institution.
  Here are some of the other key provisions in the bill that make 
landmark changes in U.S. anti-money laundering laws.
  For the first time, all U.S. financial institutions will have a legal 
obligation to verify the identity of their customers, and all customers 
will have a legal obligation to tell the truth about who they are.
  For the first time, all U.S. financial institutions will be required 
to have anti-money laundering programs.
  For the first time, the U.S. Treasury Secretary will have legal 
authority to designate specific foreign financial institutions, 
jurisdictions, transactions or accounts as a ``primary money laundering 
concern'' and use special measures to restrict or prohibit their access 
to the U.S. marketplace.
  For the first time, bulk cash smuggling over U.S. borders will be a 
prosecutable crime, and suspect funds will be subject to forfeiture 
proceedings.
  Just like we are tightening our border controls to restrict access to 
the United States across its physical borders, the bill's anti-money 
laundering provisions will tighten our financial controls to restrict 
access into the U.S. financial system. They will require our financial 
institutions to take new steps, to do more work, and to exercise 
greater caution before opening up the financial system of the United 
States.
  When the anti-money laundering provisions first passed the Senate on 
October 11, I gave a floor statement explaining a number of the 
provisions that had been taken from the Levin-Grassley anti-money 
laundering bill, S. 1371. While I do not want to repeat all of that 
legislative history here, some important improvements were made during 
the House-Senate negotiations that I would like to comment on in order 
to explain their intent and impact.
  First is the shell bank ban in Section 313 of the final bill. That 
provision appeared in both the House and Senate bills, with only a few 
differences. The primary difference is that the House provision applied 
only to ``depository institutions,'' while the Senate bill was intended 
to ban both U.S. banks and U.S. securities firms from opening accounts 
for shell banks. The final bill takes the broader approach advocated by 
the Senate and applies the shell bank ban to both U.S. banks and U.S. 
securities firms. This broader ban is intended to make sure that 
neither U.S. banks nor U.S. securities firms open accounts for shell 
banks, which carry the highest money laundering risks in the banking 
world. This broader ban means, for example, that a bank that had shell 
banks as clients and was required to close those accounts under this 
provision would not be able to circumvent the ban simply by switching 
its shell bank clients to accounts at an affiliated broker-dealer. The 
goal instead is to close off the U.S. financial system to shell banks 
and institute a broad ban on shell bank accounts.
  In my floor statement of October 11, I explained the related 
requirement in Section 313 that U.S. financial institutions take 
reasonable steps to ensure that other foreign banks are not allowing 
their U.S. accounts to be used by shell banks. The purpose of this 
language is to prevent shell banks from getting indirect access to the 
U.S. financial system by operating through a correspondent account 
belonging to another foreign bank. That requirement was included in 
both the House and Senate bills, and in the final version of the 
legislation. It is a key provision because it will put pressure on all 
foreign financial institutions that want to do business in the United 
States to cut off the access that shell banks now enjoy in too many 
countries around the world.
  I also explained on October 11 that the shell bank ban contains one 
exception that is intended to be narrowly construed to protect the U.S. 
financial system from shell banks to the greatest extent possible. This 
exception, which is identical in both the House and Senate bills and is 
unchanged in the final version of the legislation, allows U.S. 
financial institutions to open an account for a shell bank that meets 
two tests: the shell bank is affiliated with another bank that 
maintains a physical presence, and the shell bank is subject to 
supervision by the banking regulator of that affiliated bank. The 
intent of this exception is to allow U.S. financial institutions to do 
business with shell branches of large, established banks on the 
understanding that

[[Page S11035]]

the bank regulator of the large, established bank will also supervise 
the established bank's branch offices worldwide, including any shell 
branch. As explained in my earlier floor statement, U.S. financial 
institutions are cautioned not to abuse this exception, to exercise 
both restraint and common sense in using it, and to refrain from doing 
business with any shell operation that is affiliated with a poorly 
regulated bank.
  The House-Senate negotiations also added a new provision to Section 
313 giving U.S. financial institutions a 60-day period to wind up and 
close any existing accounts for shell banks and to institute the 
reasonable procedures called for to ensure that other correspondent 
accounts with foreign financial institutions are not being used by 
shell banks. As I suggested on October 11, one possible approach with 
respect to other correspondent accounts would be for the U.S. financial 
institution to develop standard language asking the foreign financial 
institution to certify that it is not and will not allow any shell bank 
to use its U.S. accounts and then to rely on that certification absent 
any evidence to the contrary.
  A second provision I want to discuss in detail is the due diligence 
requirement in Section 312 of the final bill. This provision also 
appeared in both the House and Senate bills, again with only a few 
differences in wording. This provision is intended to tighten U.S. 
anti-money laundering controls by requiring all U.S. financial 
institutions to exercise due diligence when opening or managing 
correspondent or private banking accounts for foreign financial 
institutions or wealthy foreign individuals. The purpose of this 
requirement is to function as a preventative measure to stop rogue 
foreign financial institutions, terrorists or other criminals from 
using U.S. financial accounts to gain access to the U.S. financial 
system.
  The most important change made to the due diligence requirement 
during the House-Senate negotiations was to make the definitional 
provisions in section 311 also apply to section 312. Specifically, the 
House and Senate negotiators amended what is now Section 311(e) to make 
sure that its provisions would be applied to both the new 31 U.S.C. 
5318A and the new subsections (i) and (j) of 31 U.S.C. 5318 created by 
Sections 311, 312 and 313 of the final bill.
  As I mentioned in my floor statement on October 11, one of the key 
changes that the Senate Banking Committee made to the due diligence 
requirement when they took that provision from the Levin-Grassley bill, 
S. 1371, was to make the due diligence requirement apply to all U.S. 
financial institutions, not just banks. The Banking Committee expanded 
the scope of the due diligence requirement by deleting the Levin-
Grassley references to ``banks'' and substituting the term ``financial 
institutions'' which, in Section 5312(a)(2) of the Bank Secrecy Act, 
includes not only banks, but also securities firms, insurance 
companies, money exchanges, and many other businesses that transfer 
funds or carry out large cash transactions. The House Financial 
Services Committee adopted the same approach as the Senate Committee, 
using the term ``financial institution'' in its due diligence provision 
rather than, for example, the term ``depository institution'' which the 
House Committee used in its version of the shell bank ban. The bottom 
line, then, is that both the House and Senate expanded the due 
diligence provision to apply to all U.S. financial institutions, not 
just banks.
  During the House-Senate negotiations on the final version of the 
anti-money laundering legislation, Section 311(e) of the bill was 
amended to make it applicable to both the due diligence requirement 
created by Section 312 and to the shell bank ban created by Section 
313. Section 311(e) establishes several new definitions for such terms 
as ``account'' and ``correspondent account,'' and also directs or 
authorizes the Treasury Secretary to issue regulations to clarify other 
terms. By making those definitions and regulatory authority applicable 
to the due diligence requirement and shell bank ban, the House-Senate 
negotiators helped ensure that the same terms would be used 
consistently across Sections 311, 312 and 313. In addition, the change 
helps clarify the scope of the due diligence and shell bank provisions 
in several respects.
  First, the change makes the definition of ``account'' applicable to 
the due diligence requirement. This definition makes it clear that the 
due diligence requirement is intended to apply to a wide variety of 
bank accounts provided to foreign financial institutions or private 
banking clients, including checking accounts, savings accounts, 
investment accounts, trading accounts, or accounts granting lines of 
credit or other credit arrangements. The clear message is that, before 
opening any type of account for a foreign financial institution or a 
wealthy foreign individual and giving that account holder access to the 
United States financial system, U.S. financial institutions must use 
due diligence to evaluate the money laundering risk, to detect and 
report possible instances of money laundering, and to deny access to 
terrorists or other criminals.
  The definition also ensures that the shell bank ban applies widely to 
bar a shell bank from attempting to open virtually any type of 
financial account available at a U.S. financial institution.
  Second, the change makes it clear that the definition of 
``correspondent account'' applies to the due diligence requirement. 
This clarification is important, because the definition makes it clear 
that ``correspondent accounts'' are not confined to accounts opened for 
foreign banks, as specified in S. 1371, but encompass accounts opened 
for any ``foreign financial institution.'' This broader reach is in 
keeping with the effort of the Senate Banking Committee and the House 
Financial Services Committee to expand the due diligence requirement to 
apply to all financial institutions, not just banks. It means, for 
example, that U.S. financial institutions must use due diligence when 
opening accounts not only for foreign banks, but also for foreign 
securities firms, foreign insurance companies, foreign exchange houses, 
and other foreign financial businesses.
  Section 311(e)(4) authorizes the Treasury Secretary to further define 
terms used in subsection (e)(1), and Treasury may want to use that 
authority to issue regulatory guidance clarifying the scope of the term 
``foreign financial institution'' to help U.S. financial institutions 
understand the extent of their due diligence obligation under the new 
31 U.S.C. 5318(i). In fashioning this regulatory guidance, Treasury 
should keep in mind the intent of Congress in issuing this new due 
diligence requirement--to require all U.S. financial institutions to 
use greater care when allowing any foreign financial institution inside 
the U.S. financial system.
  The significance of applying the ``correspondent account'' definition 
to the shell bank ban is, again, to ensure that the ban applies widely 
to bar a shell bank from opening virtually any type of financial 
account available at a U.S. financial institution.
  Third, due to the change made by House-Senate negotiators, Section 
311(e)(3) directs the Treasury Secretary to issue regulations defining 
``beneficial ownership of an account'' for purposes of both the new 31 
U.S.C. 5318A and the new subsections (i) and (j) of 31 U.S.C. 5318. How 
the regulations define ``beneficial ownership'' will have profound 
implications for these new provisions as well as for other aspects of 
U.S. anti-money laundering laws. Section 311(e)(3) directs Treasury to 
address three sets of issues in defining beneficial ownership: the 
significance of ``an individual's authority to fund, direct, or manage 
the account''; the significance of ``an individual's material interest 
in the income or corpus of the account''; and the exclusion of 
individuals whose beneficial interest in the income or corpus of the 
account is immaterial.''
  The issue of beneficial ownership is at the heart of the fight 
against terrorists and other criminals who want to use our financial 
institutions against us. Terrorists and other criminals want to hide 
their identity as well as the criminal origin of their funds so that 
they can use their U.S. accounts without alerting law enforcement. They 
want to use U.S. and international payment systems to move their funds 
to their operatives with no questions asked. They want to deposit their 
funds in interest-bearing accounts to

[[Page S11036]]

increase the financial resources available to them. They want to set up 
credit card accounts and lines of credit that can be used to finance 
their illegal activities. Above all, they do not want U.S. financial 
institutions determining who exactly is the owner of their accounts, 
since that information can lead to closure of the accounts, seizure of 
assets, exposure of terrorist or criminal organizations, and other 
actions by law enforcement.
  After the September 11 attack, it is more critical than ever that 
U.S. financial institutions determine exactly who is the beneficial 
owner of the accounts they open. Another provision of the final bill, 
Section 326 which was authored by House Financial Services Committee 
Chairman Oxley, requires financial institutions to verify the identify 
of their customers. That provision gets at the same issue--that our 
financial institutions need to know who they are dealing with and who 
they are performing services for.
  Some financial institutions have pointed out the difficulties 
associated with determining the beneficial owner of certain accounts. 
But these are not new issues, and they can be dealt with in common 
sense ways. U.S. tax administrators and financial regulators have years 
of experience in framing ownership issues. Switzerland has had a 
beneficial ownership requirement in place for years, and in fact 
requires accountholders to sign a specific document, called ``Form A,'' 
declaring the identify of the account's beneficial owner. The 
difficulties associated with determining beneficial ownership can be 
addressed.
  There will, of course, be questions of interpretation. No one wants 
financial institutions to record the names of the stockholders of 
publicly traded companies. No one wants financial institutions to 
identify the beneficiaries of widely held mutual funds. That is why 
this section directs the Treasury Secretary to issue regulatory 
guidance in this area.
  At the same time, there are those who are hoping to convince Treasury 
to turn the definition of beneficial ownership inside out, and declare 
that attorneys or trustees or asset managers who direct payments into 
or out of an account on behalf of unnamed parties can somehow qualify 
as the ``beneficial owner of the account.'' Others will want to 
convince Treasury that offshore shell corporations or trusts can 
qualify as the beneficial owner of the accounts they open. But those 
are exactly the types of accounts that terrorists and criminals use to 
hide their identities and infiltrate U.S. financial institutions. And 
those are exactly the accounts for which U.S. financial institutions 
need to verify and evaluate the real beneficial owners.
  The beneficial ownership regulation will be a challenging 
undertaking. But there is plenty of expertise to draw upon, from FATF, 
the Basel Committee, U.S. financial and tax regulators, other countries 
with beneficial ownership requirements and, of course, from our own 
financial community.
  Fourth, Section 311(e)(2) directs the Treasury Secretary to issue 
regulations clarifying how the term ``account'' applies to financial 
institutions other than banks. This authority should be read in 
conjunction with Section 311(e)(4) which allows, but does not require, 
the Secretary to issue regulations defining other terms in the new 31 
U.S.C. 5318A and the new subsections (i) and (j) of 31 U.S.C. 5318. 
These two regulatory sections should, in turn, be read in conjunction 
with Section 312(b)(1) which directs the Secretary to issue regulations 
further clarifying the due diligence policies, procedures and controls 
required under that section. Together, these grants of regulatory 
authority provide the Treasury Secretary with ample authority to issue 
regulatory guidance to help different types of financial institutions 
understand what is expected of them in the area of due diligence. Such 
guidance may be needed by banks, securities firms, insurance companies, 
exchange houses, money service businesses and other financial 
institutions. The guiding principle, again, is to ensure that U.S. 
financial institutions exercise appropriate due diligence before 
opening accounts for foreign financial institutions or wealthy foreign 
individuals seeking access to the U.S. financial system.
  These grants of regulatory authority can also be used by Treasury to 
ensure that the shell bank ban established by Section 313 is as broad 
and effective as possible to keep shell banks out of the U.S. financial 
system.
  Next is due diligence and correspondent banking. Section 312 imposes 
an ongoing, industry-wide legal obligation on all types of financial 
institutions operating in the United States to exercise appropriate 
care when opening and operating correspondent accounts for foreign 
financial institutions to safeguard the U.S. financial system from 
money laundering. The general obligation to establish appropriate and 
specific due diligence policies, procedures and controls when opening 
correspondent accounts is codified in a new 31 U.S.C. 5318(i)(1).

  Subsection 5318(i)(2) specifies additional, minimum standards for 
enhanced due diligence policies, procedures and controls that must be 
established by U.S. financial institutions for correspondent accounts 
opened for two specific categories of foreign banks: banks operating 
under offshore banking licenses and banks operating in foreign 
countries that have been designated as raising money laundering 
concerns. These two categories of foreign banks were identified due to 
their higher money laundering risks, as explained in the extensive 
staff report and hearing record of the Permanent Subcommittee on 
Investigations, copies of which I released earlier this year.
  Subsection 5318(i)(2) provides two alternative ways in which a 
foreign country can be designated as raising money laundering concerns. 
The first way is if a country is formally designated by an 
intergovernmental group or organization of which the United States is a 
member. Currently, the most well known such group is the Financial 
Action Task Force on Money Laundering, also known as FATF, which is 
composed of about 30 countries and is the leading international group 
fighting money laundering. In 2000, after a lengthy fact-finding and 
consultative process, FATF began issuing a list of countries that 
FATF's member countries formally agreed to designate as noncooperative 
with international anti-money laundering principles and procedures. 
This list, which names between 12 and 15 countries, is updated 
periodically and has become a powerful force for effecting change in 
the listed jurisdictions. The second way a country may be designated 
for purposes of the enhanced due diligence requirement is if the 
country is so designated by the Treasury Secretary under the procedures 
provided in the new Section 5318A. This second alternative enables the 
United States to act unilaterally as well as multilaterally to require 
U.S. financial institutions to take greater care in opening 
correspondent accounts for foreign banks in jurisdictions of concern.
  The House and Senate bills contained one minor difference in the 
wording of the provision regarding foreign country designations by an 
intergovernmental group or organization under the new 31 U.S.C. 
5318(i)(2)(A)(ii)(I). The House bill included a phrase, not in the 
Senate bill, stating that the foreign country designation had to be one 
with which the Secretary of Treasury concurred, apparently out of 
concern that an intergovernmental group or organization might designate 
a country as noncooperative over the objection of the United States. 
The final version of the provision includes the House approach, but 
uses statutory language making it clear that U.S. concurrence in the 
foreign country designation may be provided by the U.S. representative 
to the relevant international group or organization, whether or not 
that representative is the Secretary of Treasury or some other U.S. 
official.
  The new 31 U.S.C. 5318(i)(2) states that the enhanced due diligence 
policies, procedures and controls that U.S. financial institutions must 
establish for correspondent accounts with offshore banks and banks in 
jurisdictions designated as raising money laundering concerns must 
include at least three elements. They must require the U.S. financial 
institution to ascertain the foreign bank's ownership, to carefully 
monitor the account to detect and report any suspicious activity, and 
to determine whether the foreign bank is allowing any other banks to 
use its U.S. correspondent account and, if so, the identity of those 
banks and related due diligence information.

[[Page S11037]]

  The three elements specified in Section 5318(i)(2) for enhanced due 
diligence policies, procedures and controls are not meant to be 
comprehensive. Additional reasonable steps would be appropriate before 
opening or operating accounts for these two categories of foreign 
banks, including steps to check the foreign bank's past record and 
local reputation, the jurisdiction's regulatory environment, the bank's 
major lines of business and client base, and the extent of the foreign 
bank's anti-money laundering program. Moreover, other categories of 
foreign financial institutions will also require use of enhanced due 
diligence policies, procedures and controls including, for example, 
offshore broker-dealers or investment companies, foreign money 
exchanges, foreign casinos, and other foreign money service businesses.
  Now I would like to discuss due diligence and private banking. The 
new Section 5318(i) also addresses due diligence requirements for 
private banking accounts. The private banking staff report issued by 
the Permanent Subcommittee on Investigations explains why these types 
of private banking accounts are especially vulnerable to money 
laundering and why initial and ongoing due diligence reviews are needed 
to detect and report any suspicious activity.
  The House and Senate versions of this provision were very similar. 
The primary difference between them is that the House bill included a 
definition of ``private banking accounts'' that originally appeared in 
the Levin-Grassley bill, S. 1371, while the Senate left the term 
undefined. The final version of Section 5318(i) includes the House 
definition. It has three elements. First, the account in question must 
require a $1 million minimum aggregate of deposits. Second, the account 
must be opened on behalf of living individuals with a direct or 
beneficial ownership interest in the account. Third, the account must 
be assigned to, administered, or managed in part by, a financial 
institution employee such as a private banker, relationship manager or 
account officer. The purpose of this definition is to require U.S. 
financial institutions to exercise due diligence when opening and 
operating private banking accounts with large balances controlled by 
wealthy foreign individuals with direct access to the financial 
professionals responsible for their accounts.
  U.S. financial institutions with private banking accounts are 
required by the new Section 5318(i)(1) to establish appropriate and 
specific due diligence policies, procedures and controls with respect 
to those accounts. Section 5318(i)(3) states that, at a minimum, the 
due diligence policies, procedures and controls must include reasonable 
steps to ascertain the identity of the accountholders, including the 
beneficial owners; to ascertain the source of funds deposited into the 
account; and to monitor the account to detect and report any suspicious 
activity. If the account is opened for or on behalf of a senior foreign 
political figure or a close family member or associate of the political 
figure, the U.S. financial institution must use enhanced due diligence 
policies, procedures and controls with respect to that account, 
including closely monitoring the account to detect and report any 
transactions that may involve the proceeds of foreign corruption. The 
enhanced due diligence requirements for private banking accounts 
involving senior foreign political figures are intended to work in 
tandem with the guidance issued on this subject by Treasury and federal 
banking regulators in January 2001.
  The accounts covered by the private banking definition are not 
confined to accounts at U.S. banks, but also cover accounts opened at 
other types of financial institutions, including securities firms which 
have developed lines of business offering similar types of accounts to 
wealthy foreign individuals. In addition, the section is intended to 
cover not only private banking accounts physically located inside the 
United States, but also private banking accounts that are physically 
located outside of the United States but managed by U.S. personnel from 
inside the United States. For example, the private banking 
investigation conducted by my Subcommittee found that it was a common 
practice for some U.S. private banks to open private banking accounts 
for foreign clients in an offshore or bank secrecy jurisdiction, but 
then to manage those accounts using private bankers located inside the 
United States. In such cases, the U.S. financial institution is 
required to exercise the same degree of due diligence in opening and 
managing those private banking accounts as it would if those accounts 
were physically located within the United States.
  Another area of inquiry involves the $1 million threshold. Some 
financial institutions have asked whether the $1 million minimum would 
be met if an account initially held less than the required threshold, 
or the account's total deposits dipped below the threshold amount on 
one or more occasions, or the same individual held accounts both inside 
and outside the private bank and kept the private bank account's total 
deposits below the threshold amount. Such inquires are reminiscent of 
structuring efforts undertaken to avoid certain anti-money laundering 
reporting requirements. Such structuring efforts have not been found 
acceptable in avoiding other anti-money laundering requirements, and 
the language of the private banking provision is intended to preclude 
such maneuvering here.
  The purpose of the private banking provision is to require U.S. 
financial institutions to exercise due diligence when opening or 
managing accounts with large deposits for wealthy foreign individuals 
who can use the services of a private banker or other employee to move 
funds, open offshore corporations or accounts, or engage in other 
financial transactions that carry money laundering risks. Because it is 
the intent of Congress to strengthen due diligence controls and protect 
the U.S. financial system to the greatest extent possible in the 
private banking area, the private banking definition should be 
interpreted in ways that will maximize the due diligence efforts of 
U.S. financial institutions.
  Finally, the House-Senate negotiators adjusted the effective date of 
the due diligence provision. The new effective date gives the Treasury 
Secretary 180 days to issue regulations clarifying the due diligence 
policies, procedures and controls required under the new 31 U.S.C. 
5318(i). These regulations are, again, intended to provide regulatory 
guidance to the range of U.S. financial institutions that will be 
compelled to exercise due diligence before opening a private banking or 
correspondent banking account. Section 312(b) states that, whether or 
not the Treasury Secretary meets the 180-day deadline for regulations, 
the due diligence requirement will go into effect no later than 270 
days after the date of enactment of the legislation. That means, 
whether or not the Treasury Secretary issues any regulations, after 270 
days, U.S. financial institutions will be legally required to establish 
appropriate and specific due diligence policies, procedures and 
controls for their private banking and correspondent accounts, 
including enhanced due diligence policies, procedures and controls 
where necessary.
  In addition to due diligence and the Shell Bank provisions, my 
October 11 floor statement discusses several other bill provisions 
including those that add foreign corruption offenses to the list of 
crimes that can trigger a U.S. money laundering prosecution, and those 
that close a forfeiture loophole applicable to correspondent accounts 
for foreign financial institutions. I will not repeat that legislative 
history again, but I do want to mention one other provision that I 
authored to expand use of Federal receivers in money laundering and 
forfeiture proceedings.
  The Federal receivers provision is contained in Section 317 of the 
final bill, and I want to make three points about it. First, this 
provision comes out of the work of the Permanent Subcommittee on 
Investigations which found that many money laundering crimes include 
such complex flows of money across international lines that the average 
prosecutor does not have the time or resources needed to chase down the 
money, even when that money represents savings stolen or defrauded from 
hundreds of crime victims in the United States. In too many money 
laundering cases, the crime victims will never see one dime of their 
lost savings. The Federal receiver provision in Section 317 is intended 
to provide Federal prosecutors and the Federal and State regulators 
working with

[[Page S11038]]

them the option of using a court-appointed receiver to chase down the 
laundered funds.
  Second, the provision is intended to allow any U.S. district court to 
appoint a Federal receiver in a money laundering or forfeiture 
proceeding, whether criminal or civil, if so requested by the Federal 
prosecutor or Federal or State regulator associated with the 
proceeding. The only restriction is that the court must have 
jurisdiction over the defendant whose assets the receiver will be 
pursuing. Jurisdiction may be determined in the context of the criminal 
or civil proceeding before the court, including under new language in 
other parts of Section 317 making it clear that a district court has 
jurisdiction over any foreign financial institution that has a 
correspondent account at a U.S. financial institution; over any foreign 
person who has committed a money laundering offense involving a 
financial transaction occurring in whole or in part in the United 
States; and over any foreign person that has converted to their own use 
property that is the subject of a U.S. forfeiture order, as happened in 
the Swiss American Bank case described in the Subcommittee's staff 
report.
  The third point about the Federal receiver provision is that it is 
intended to make it clear that Federal receivers appointed under U.S. 
money laundering laws may make requests and may obtain financial 
information from the U.S. Financial Crimes Enforcement Network in 
Treasury and from foreign countries as if the receiver were standing in 
the shoes of a federal prosecutor. This language is essential to 
increase the effectiveness of receivers who often have to work quickly, 
in foreign jurisdictions, in cooperation with foreign law enforcement 
and financial regulatory personnel, and who need clear statutory 
authority to make use of international information sharing arrangements 
available to assist U.S. law enforcement. The provision is intended to 
make it clear that the Federal receiver has the same access to 
international law enforcement assistance as a Federal prosecutor would 
if the prosecutor were personally attempting to recover the laundered 
funds. The language is also intended to make it clear that Federal 
receivers are bound by the same policies and procedures that bind all 
Federal prosecutors in such matters, and that Federal receivers have no 
authority to exceed any restrictions set by the Attorney General.
  Finally, I would like to take note of two other provisions that are 
included in the final bill. They are Section 352 authored by Senate 
Banking Committee Chairman Sarbanes to require all U.S. financial 
institutions to establish anti-money laundering programs, and Section 
326 authored by House Financial Services Committee Chairman Oxley to 
require all U.S. financial institutions to verify the identity of their 
customers. Both are strong requirements that apply to all U.S. 
financial institutions and, in the case of the Oxley provision, to all 
financial accounts. Both represent important advances in U.S. anti-
money laundering laws by codifying basic anti-money laundering 
requirements. I commend my colleagues for enacting these basic anti-
money laundering controls into law and filling in some of the gaps that 
have made our anti-money laundering safeguards less comprehensive than 
they need to be.
  The clear intention of both the House and the Senate bills, and the 
final bill being enacted by Congress today, is to impose anti-money 
laundering requirements across the board that reach virtually all U.S. 
financial institutions. Congress has determined that broad anti-money 
laundering controls applicable to virtually all U.S. financial 
institutions are needed to seal the cracks in our financial systems 
that terrorists and other criminals are all too ready to exploit.
  There are many other noteworthy provisions of this legislation, from 
requirements involving legal service of subpoenas on foreign banks with 
U.S. accounts, to new ways to prosecute money laundering crimes, to new 
arrangements to increase cooperation among U.S. financial institutions, 
regulators and law enforcement to stop terrorists and other criminals 
from gaining access to the U.S. financial system. There just is not 
sufficient time to go into them all.
  To reiterate, the antiterrorism bill we have before us today would be 
very incomplete--only half of a toolbox--without a strong anti-money-
laundering title to prevent foreign terrorists and other criminals from 
using our financial institutions against us. With the anti-money-
laundering provisions in this bill, the antiterrorism bill gives our 
enforcement authorities a valuable set of additional tools to fight 
those who are attempting to terrorize this country.
  Osama bin Laden has boasted that his modern new recruits know, in his 
words, the ``cracks'' in ``Western financial systems'' like they know 
the ``lines in their own hands.'' Enactment of this bill with these 
provisions will help seal those cracks that allow terrorists and other 
criminals to use our own financial systems against us.
  The intention of this bill is to impose anti-money-laundering 
requirements across the board that reach virtually all U.S. financial 
institutions.
  Our Permanent Subcommittee on Investigations, which I chair, spent 3 
years examining the weaknesses and the problems in our banking system 
with respect to money laundering by foreign customers, including 
foreign banks. Through 6 days of hearings and 2 major reports, one of 
which contained case studies on 10 offshore banks, we developed S. 1371 
to strengthen our anti-money-laundering laws. A strong bipartisan group 
of Senators joined me in pressing for its enactment, including Senators 
Grassley, Sarbanes, Kyl, DeWine, Bill Nelson, Durbin, Stabenow, and 
Kerry.
  The major elements of S. 1371 are part of the legislation we are now 
considering.
  Finally, Mr. President, I want to give a few thank-yous. First, I 
thank Senator Sarbanes, chairman of the Senate Banking Committee. He 
saw the significance of the money laundering issue in the fight against 
terrorism, and I thank him for his quick action, his bipartisan 
inclusive approach, and his personal dedication to producing tough, 
meaningful legislation. I also thank him for allowing my staff to 
participate fully in the negotiations to reconcile the anti-money-
laundering legislation passed by the House and the Senate.
  I extend my thanks and congratulations to the Senate Banking 
Committee and the House Financial Services Committee for a fine 
bipartisan product that will strengthen, modernize, and revitalize U.S. 
anti-money-laundering laws. Congressman Oxley and Congressman LaFalce 
jumped right into the issue, committed themselves to producing strong 
legislation, and did the hard work needed to produce it. The 
negotiations were a model of House-Senate collaboration, with 
bipartisan, productive discussions leading to a legislative product 
that is stronger than the legislation passed by either House and which 
is legislation in which this Congress can take pride.
  I also extend my thanks to Senator Daschle, Senator Lott, and Senator 
Leahy for taking the actions that were essential to ensure that the 
anti-money-laundering title was included in the antiterrorism bill. 
Senator Daschle made it very clear that without these provisions no 
antiterrorism bill would be complete. Senator Leahy took actions of all 
kinds to make sure that, in fact, the anti-money laundering provisions 
were included in the final bill.
  I thank Senator Grassley who joined me in this effort early on and 
who worked with me every step of the way win enactment of the anti-
money laundering legislation into law.
  Senator Stabenow I thank for her quick and decisive action during the 
Banking Committee's consideration of this bill. Without her critical 
assistance, we would not be where we are today. I also thank Senator 
Kerry for his consistent, strong and informed role in fashioning this 
landmark legislation.
  Finally I want to give a few thank-yous to staff. Elise Bean of my 
staff first and foremost deserves all of our thanks for her heroic 
efforts on this legislation. She and Bob Roach of our Subcommittee 
staff led the Subcommittee investigations into money laundering and did 
very detailed work on private banking and correspondent banking that 
laid the groundwork for the legislation we are passing today. I want to 
thank them both.

[[Page S11039]]

  I want to thank Bill Olson of Senator Grassley's office for jumping 
in whenever needed and lending strong support to this legislative 
effort. Similar thanks go to John Phillips of Senator Kerry's office 
who was there at all hours to make sure this legislation happened.
  Similar thanks go to Senator Sarbanes' staff on the Senate Banking 
Committee--especially Steve Harris, Marty Gruenberg, Patience Singleton 
and Steve Kroll, who put in long hours, maintained a high degree of 
both competency and professionalism, and provided an open door for my 
staff to work with them.
  I also want to thank the staff of the House Financial Services 
Committee--Ike Jones, Carter McDowell, Jim Clinger and Cindy Fogleman. 
They put in long hours, knew the subject, and were dedicated to 
achieving a finished product of which we could all be proud.
  Our thanks also go to Laura Ayoud of the Senate Legislative Counsel's 
office who literally worked around the clock during the negotiations on 
this legislation and, through it all, kept a clear eye and a cheerful 
personality. Her work was essential to this product.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Mr. SARBANES. Before I make my statement and before Senator Levin 
leaves the floor, I wish to acknowledge the very substantial 
contribution that Senator Levin made to the money-laundering title that 
is in this bill, which I think is an extremely important title. In 
fact, you can't watch any program on television that has experts 
talking about what we ought to be doing with respect to this terrorism 
challenge when either the first or second thing they mention is to dry 
up the financial sources of the terrorists, and that, of course, comes 
right back to the money laundering.
  Senator Levin, over a sustained period of time, in the government 
operations committee, held some very important hearings, issued very 
significant reports, and formulated a number of recommendations. This 
title is, in part, built on the recommendations that Senator Levin put 
forward at an earlier time. I simply acknowledge his extraordinary 
contribution to this issue. I acknowledge Senator Kerry as well. There 
were two proposals. They both had legislation in them and we used those 
as building blocks in formulating this title. We think it is a very 
strong title and that it can be a very effective tool in this war 
against terrorism, and against drugs, and against organized crime. It 
should have been done a long time ago, but it is being done now.
  Before the able Senator from Michigan leaves the floor, I thank him 
and acknowledge his tremendous contribution.
  Mr. LEVIN. Again, I thank Senator Sarbanes for his great leadership, 
along with Senator Leahy, which made this possible.
  Mr. SARBANES. Mr. President, I rise in very strong support of this 
legislation--in particular, title III, the International Money 
Laundering Abatement and Financial Antiterrorism Act, which was 
included as part of the antiterrorism legislation. Of course, that bill 
was approved yesterday by the House of Representatives and will be 
approved very shortly by this body.
  Title III represents the most significant anti-money-laundering 
legislation in many, many years--certainly since money laundering was 
first made a crime in 1986. The Senate Committee on Banking, Housing, 
and Urban Affairs, which I have the privilege of chairing, marked up 
and unanimously approved the key anti-money-laundering provisions on 
October 4. Those provisions were approved unanimously, 21-0. Those were 
approved as Title III of S. 1510, the Uniting and Strengthening America 
Act on October 11 by a vote of 96-1. H.R. 3004, the Financial 
Antiterrorism Act, which contained many of the same provisions and 
added important additional provisions, passed the House of 
Representatives by a vote of 412-1 on October 17.
  Title III of this conference report represents a skillful melding of 
the two bills and is a result of the strong contribution made by House 
Financial Services Committee and chairman Michael Oxley and ranking 
member John LaFalce, working with Senator Gramm, the ranking member of 
the Senate committee, and myself.
  President Bush said on September 24, when he took executive branch 
action on the money-laundering issue:

       We have launched a strike on the financial foundation of 
     the global terror network.

  Title III of our comprehensive antiterrorism package supplies the 
armament for that strike on the financial foundation of the global 
terror network. Terrorist attacks require major investments of time, 
planning, training, practice, and financial resources to pay the bills. 
Osama bin Laden may have boasted, ``Al-Qaida includes modern, educated 
youth who are as aware of the cracks inside the Western financial 
system as they are aware of the lines in their hands,'' but with title 
III, we are sealing up those cracks.
  Money laundering is the transmission belt that gives terrorists the 
resources to carry out their campaigns of carnage, but we intend, with 
the money-laundering title of this bill, to end that transmission belt 
in its ability to bring resources to the networks that enable 
terrorists to carry out their campaigns of violence.
  I need not bring to the attention of my colleagues the fact that 
public support across the country for anti-money-laundering legislation 
is extremely strong. Jim Hoagland put it plainly in the Washington 
Post:

       This crisis offers Washington an opportunity to force 
     American and international banks to clean up concealment and 
     laundering practices they now tolerate or encourage, and 
     which terrorism can exploit.

  This legislation takes up that challenge in a balanced and forceful 
way.
  Title III contains, among other provisions, authority to take 
targeted action against countries, institutions, transactions, or types 
of accounts the Secretary of the Treasury finds to be of primary money-
laundering concern.
  It also contains critical requirements of due diligence standards 
directed at correspondent accounts opened at U.S. banks by foreign 
offshore banks and banks in jurisdictions that have been found to fall 
significantly below international anti-money-laundering standards.
  It prohibits U.S. correspondent accounts for offshore shell banks, 
those banks that have no physical presence or employees anywhere and 
that are not part of a regulated and recognized banking company.
  The title also contains an important provision from the House bill 
that requires the issuance of regulations requiring minimum standards 
for verifying the identity of customers opening and maintaining 
accounts at U.S. financial institutions, and it very straightforwardly 
requires all financial institutions to establish appropriate anti-
money-laundering programs.
  Title III also includes several provisions to enhance the ability of 
the Government to share more specific information with banks, and the 
ability of banks to share information with one another relating to 
potential terrorist or money-laundering activities.
  In addition, it provides important technical improvements in anti-
money-laundering statutes, existing statutes, and mandates to the 
Department of the Treasury to act or formulate recommendations to 
improve our anti-money-laundering programs.
  This is carefully considered legislation. While the committee moved 
expeditiously, its movement was based upon and reflects the efforts 
which have been made over a number of years on this issue.
  As I indicated earlier, Senator Carl Levin, Senator Kerry, and in 
addition, Senator Charles Grassley have led farsighted efforts to keep 
money-laundering issues on the front burner. Others in the Congress 
have also been involved with this issue over time. The House Banking 
Committee, under the leadership of then-Chairman Jim Leach and ranking 
member John LaFalce, approved a money-laundering bill in June of 2000 
by a vote of 31-1. It was very similar to the legislation introduced by 
Senator Kerry.
  As the successor to Congressman Leach, House Financial Services 
Chairman Oxley has continued the commitment to fighting money 
launderers to maintain the integrity of our financial system and, now, 
to help ensure the safety of our citizens.
  We have been guided in our work by the testimony presented to the 
committee on September 26. We heard from a number of expert witnesses 
and from the Under Secretary of the Treasury

[[Page S11040]]

Gurule, Assistant Attorney General Chertoff, and Ambassador Stuart 
Eizenstat, the former Deputy Secretary of the Treasury. All of the 
witnesses advocated stronger and more modern money-laundering laws.
  Before describing the provisions of Title III in greater detail, I 
want to single out a number of our colleagues and their staffs for 
their extraordinary contributions.
  I have already spoken about House Financial Services Committee 
Chairman Oxley and ranking member LaFalce, but I want to note their 
personal willingness and that of their staffs to work overtime to 
ensure that the House and Senate reached agreement on this important 
legislation. In fact, last week when the office buildings were closed 
down, we met here in a room in the Capitol on Wednesday evening, well 
beyond midnight, and resumed early the next morning and continued 
throughout the day on Thursday, finally resolving all of our issues by 
the end of that afternoon.

  I am truly grateful to all the members of the Senate Banking 
Committee for their strong, positive, and constructive contributions to 
the Senate-approved version of Title III. I indicated it was approved 
by the committee on a 21-0 vote. Ranking member Senator Gramm provided 
critical support.
  Senators Stabenow, Johnson, and Hagel were instrumental in producing 
a compromise to resolve a dispute over one of the package's most 
important provisions.
  Senator Enzi brought his expertise as an accountant to bear in 
refining another critical provision.
  Senator Schumer, who has been involved in past efforts to address 
money-laundering activities, played an important role, as did Senators 
Dodd, Bayh, Carper, Corzine, Allard, and Crapo who either offered 
amendments or made other important contributions for improvements in 
this title.
  I also want to take a moment to recognize those members of our staff 
who devoted so many hours to crafting this important and comprehensive 
legislation, literally all night in a couple of instances along the way 
in the legislative process: Steve Kroll, Patience Singleton, Steve 
Harris, Lynsey Graham, Vince Meehan, Marty Gruenberg, and Jesse Jacobs 
on the Banking Committee's majority staff. And on the Banking 
Committee's minority staff, I want to underscore the work of Wayne 
Abernathy, Linda Lord, and Madelyn Simmons.
  I also thank Elise Bean from Senator Levin's staff and John Phillips 
from John Kerry's staff who worked closely with us and made significant 
contributions.
  Finally, I take special note of Laura Ayoud of the Legislative 
Counsel's office. Mrs. Ayoud worked countless hours from the very 
beginning so that the committee print and a substitute for the Banking 
Committee markup were all produced on time and with the utmost accuracy 
and professionalism. I must say, I think the Senate is extremely 
fortunate to have professionals of the caliber of Mrs. Ayoud in the 
Legislative Counsel's office. I tip my hat not only to her, but to the 
extraordinary record of professionalism and dedicated service which the 
Legislative Counsel's office renders to the Senate.
  Title III addresses all aspects of our defenses against money 
laundering. Those defenses generally fall into three parts. The first 
is the Bank Secrecy Act passed in 1970. It requires financial 
institutions to keep standardized transaction records and report large 
currency transactions and suspicious transactions, and it mandates 
reporting of the movement of more than $10,000 in currency into and out 
of our country.
  The Bank Secrecy Act is so named because it bars bank secrecy in 
America by preventing financial institutions from maintaining opaque 
records or disregarding their records altogether. Secrecy is a hiding 
place for crime, and Congress has barred our institutions from allowing 
those hiding places.
  The second part of our money-laundering defenses are the criminal 
statutes first enacted in 1986 that make it a crime to launder money 
and that allow criminal and civil forfeiture of the proceeds of crime.
  The third part is a statutory framework that allows information to be 
communicated to and between law enforcement officials. Our goal must be 
to assure, to the greatest extent consistent with reasonable privacy 
protections--and we understood the necessity of balancing these 
considerations--to assure ourselves that necessary information can be 
used by the right persons in real time to cut off terrorism and crime.
  Title III modernizes provisions in all three areas to meet today's 
threats in a global economy. Its provisions are divided into three 
subtitles dealing respectively with international counter-money-
laundering measures, sections 311 through 330; Bank Secrecy Act 
amendments and related improvements, sections 351 through 366; and 
currency crimes and protections, sections 371 through 377.
  There are 46 provisions in Title III. At this time, I want to 
summarize some of the bill's most important provisions.
  Section 311 gives the Secretary of the Treasury, in consultation with 
other senior government officials, authority to impose one or more of 
five new ``special measures'' against foreign jurisdictions, entities, 
transactions or accounts that in the determination of the Secretary, 
after consultation with other senior federal officials, poses a 
``primary money laundering concern'' to the United States. The special 
measures all involve special recordkeeping and reporting measures--to 
eliminate the curtains behind which launderers hide. In extreme cases 
the Secretary is permitted to bar certain kinds of inter-bank accounts 
from especially problematic jurisdictions. The statute specifies the 
considerations the Secretary must take into account in using the new 
authority and contains provisions to supplement the Administrative 
Procedure Act to assure that any remedies--except certain short-term 
measures--are subject to full comment from all affected persons.
  This new provision gives the Secretary real authority to act to close 
overseas loopholes through which U.S. financial institutions are 
abused. At present the Secretary has no weapons except Treasury 
Advisories, which do not impose specific requirements, or full economic 
sanctions which suspend financial and trade relations with offending 
targets. President Bush's invocation of the International Economic 
Emergency Powers Act, IEEPA, several weeks ago was obviously 
appropriate. But there are many other situations in which we will not 
want to block all transactions, but where we will want to do more than 
simply advise financial institutions about under-regulated foreign 
financial institutions or holes in foreign countermoney laundering 
efforts. Former Deputy Secretary Eizenstat testified before the 
Committee in September that adding this tool to the Secretary's arsenal 
was essential.
  Section 312 focuses on another aspect of the fight against money 
laundering, the financial institutions that make the initial decisions 
about what foreign banks to allow inside the United States. It requires 
U.S. financial institutions to exercise appropriate due diligence when 
dealing with private banking accounts and interbank correspondent 
relationships with foreign banks. With respect to foreign banks, the 
section requires U.S. financial institutions to apply appropriate due 
diligence to all correspondent accounts with foreign banks, and 
enhanced due diligence for accounts sought by offshore banks or banks 
in jurisdictions found to have substandard money laundering controls or 
which the Secretary determines to be of primary money laundering 
concern under the new authority given him by section 311.
  The section also specifies certain minimum standards for the enhanced 
due diligence that U.S. financial institutions are required to apply to 
accounts opened for two categories of foreign banks with high money 
laundering risks--offshore banks and banks in jurisdictions with weak 
anti-money laundering and banking controls. These minimum standards 
were developed from, and are based upon, the factual record and 
analysis contained in the comprehensive report on correspondent banking 
and money laundering that was prepared by the staff of the Senate 
Permanent Subcommittee on Investigations, which Senator Levin chairs.
  Section 312 is essential to title III. It addresses, with appropriate 
flexibility, mechanisms whose very importance for the conduct of 
commercial banking

[[Page S11041]]

makes them special targets of money launderers, as illustrated in 
Senator Levin's extensive reports and hearings. The intent of the 
statute is to provide special due diligence rules which will apply to 
correspondent relationships maintained for foreign financial 
institutions not merely by domestic banks but by all types of financial 
institutions operating in the United States, subject to the authority 
of the Secretary of the Treasury to define the appropriate 
correspondent relationships by regulation where appropriate. Given the 
scope of the applicable definition of correspondent account, in new 
section 5318A (which also applies for purposes of new section 5318(i)), 
the general due diligence obligations of new section 5318(i)(1) apply 
to all correspondent accounts maintained by U.S. financial institutions 
for any foreign financial institution (i.e., not simply foreign 
depository institutions).
  The statutory intent with respect to private banking accounts is 
similar; that is, the statute is intended to provide special due 
diligence rules for private banking accounts maintained for non-United 
States persons not merely by depository institutions operating in the 
United States, but by all types of financial institutions operating in 
the United States and defined in 31 U.S.C. 5312, subject to the 
authority of the Secretary of the Treasury to define the appropriate 
definitions of the relevant terms by regulation.
  The question has been raised whether the due diligence provisions of 
section 312 are ``discretionary.'' The answer is no. The provisions are 
to apply whether or not any rules are issued by the Treasury or whether 
the Treasury takes any other implementing action (in contradistinction 
to the provisions of new section 5318A, which must be affirmatively 
invoked by the Secretary. The Secretary is given authority to issue 
regulations ``further delineating'' the ``due diligence policies, 
procedures, and controls'' required by new subsection 5318(i), but 
those regulations must of course be consistent with the statutory 
language and intent to require all U.S. financial institutions to 
exercise the required standard of care in dealing with the risk of the 
misuse of the financial mechanisms with which the subsection deals.
  A provision of section 319 of title III requires foreign banks that 
maintain correspondent accounts in the United States to appoint agents 
for service of process within the United States and authorizes the 
Attorney General and the Secretary of the Treasury to issue a summons 
or subpoena to any such foreign bank seeking records, wherever located, 
relating to such a correspondent account. U.S. banks must sever 
correspondent arrangements with foreign banks that do not either comply 
with or contest any such summons or subpoena, upon notification from 
the Attorney General or Secretary of the Treasury.
  All of these provisions send a simple message to foreign banks doing 
business through U.S. correspondent accounts: be prepared, if you want 
to use our banking facilities, to operate in accordance with U.S. law.
  Section 313 of title III also builds on the factual record before the 
Banking Committee to bar from the United States financial system pure 
``brass-plate'' shell banks created outside the U.S. that have no 
physical presence anywhere and are not affiliated with any recognized 
banking institution. These shell banks carry the highest money 
laundering risks in the banking world because they are inherently 
unavailable for effective oversight--there is no office where a bank 
regulator or law enforcement official can go to observe bank 
operations, review documents or freeze funds. Thus the ban on provision 
of correspondent banking services for such brass-plate institutions is 
a particularly important part of title III. New 31 U.S.C. 5318(j) is 
intended to be vigorously enforced and strictly applied, especially in 
light of the relief provided in the statute for special banking 
vehicles that are affiliated with operating institutions and are 
subject to financial supervision along with those institutions.

  Section 325 permits the Secretary to deal with abuse of another 
recognized commercial banking mechanism--concentration accounts that 
are used to commingle related funds temporarily in one place pending 
disbursement or the transfer of funds into individual client accounts. 
Concentration accounts have been used to launder funds, and the bill 
authorizes the Secretary to issue rules to bar the use of concentration 
accounts to move client funds anonymously, without documentation 
linking particular funds to their true owners. I believe that the 
Secretary must move promptly to exercise the regulatory authority 
granted by this section.
  Section 326 will help ensure that individuals opening accounts with 
U.S. financial institutions provide information adequate to enable law 
enforcement and supervisory agencies to identify accounts maintained by 
individuals suspected of terrorist activities. The section requires the 
Secretary of the Treasury to prescribe regulations in consultation with 
each federal functional regulators to set minimum standards and 
procedures concerning the verification of customers' identity, 
maintenance of records of identity verification, and consultation at 
account opening of lists of known or suspected terrorists provided to 
the financial institution by a government agency. This section also 
requires the Secretary of the Treasury to submit recommendations to 
Congress, within 6 months of enactment, on the most effective way to 
require foreign nationals to provide financial institutions in the 
United States with accurate identity information.
  It is the intent of section 326 that regulations pursuant to that 
section do not place obligations solely on the shoulders of the 
Nation's financial institutions, without placing any obligations on 
their customers. The contemplated regulations should therefore include 
provisions relating to the obligations of individuals to provide 
accurate information in connection with account-opening procedures, so 
that in appropriate cases penalties may apply under the Bank Secrecy 
Act to customers who willfully mislead bank officials about matters of 
customer identity.
  Section 352 requires financial institutions to establish minimum 
antimoney laundering programs that include appropriate internal 
policies, management, employee training, and audit features. This is 
not a ``one-size-fit-all'' requirement; in fact its very generality 
recognizes that different types of programs will be appropriate for 
different types and sizes of institutions. It is our intention, by 
using general language in the amended provision, that the content of 
the relevant antimoney laundering programs will necessarily vary with 
the details of the particular financial institutions involved and the 
money laundering risks to which the nature of such institution and its 
financial products exposes the institution. Treasury regulations 
pursuant to this section should allow adjustment of the extent of 
antimoney laundering programs for smaller businesses but not exempt 
businesses from the requirement altogether simply because of their 
size.

  A number of improvements are made to the suspicious activity 
reporting rules. First, technical changes strengthen the safe harbor 
from civil liability for institutions that report suspicious activity 
to the Treasury, Sec. 351. The provisions not only add to the 
protection for reporting institutions; they also address individual 
privacy concerns by making it clear that government officers may not 
disclose suspicious transaction reports information except in the 
conduct of their official duties. Section 356 also requires the 
issuance of final suspicious transaction reporting rules applicable to 
brokers and dealers in securities by July 1, 2002; senior officials of 
the relevant agencies must meet expeditiously to resolve the policy 
issues raised at staff levels about the content of the necessary 
regulations and the extent to which suspicious transaction reporting 
rules should be the same for banking and securities.
  Sections 359 and 373 of the title deal with underground banking 
systems such as the Hawala, which is suspected of being a channel used 
to finance the al Qaeda network. Section 359 makes it clear that 
underground money transmitters are subject to the same recordkeeping 
rules--and the same penalties for violating those rules--as above-
ground, recognized, money transmitters. It also directs the Secretary 
of the Treasury to report to Congress, within 1 year, on the need for 
additional legislation or regulatory controls relating to underground 
banking

[[Page S11042]]

systems. Section 373 clarifies that operators of a money transmitter 
business can be prosecuted under Federal law for operating an illegal 
money transmitting business if they do not have a required State 
license.
  Section 360 authorizes the Secretary of the Treasury to instruct the 
United States Executive Director of each of the international financial 
institutions to use such Director's ``voice and vote'' to support loans 
and other use of resources to benefit nations that the President 
determines to be contributing to efforts to combat international 
terrorism, and to require the auditing of each international financial 
institution to ensure that funds are not paid to persons engaged in or 
supporting terrorism.
  Section 371 creates a new Bank Secrecy Act offense involving the bulk 
smuggling of more than $10,000 in currency in any conveyance, article 
of luggage or merchandise or container, either into or out of the 
United States, and related forfeiture provisions. This provision has 
been sought for several years by both the Departments of Justice and 
Treasury.
  Other provisions of the bill address relevant provisions of the 
Criminal Code. These provisions were worked out with the House and 
Senate Judiciary Committees and are included in title III because of 
their close relationship to the provisions of title 31 added or 
modified by title III.
  The most important is section 315, which expands the list of 
specified unlawful activities under 18 U.S.C. 1956 and 1957 to include 
foreign corruption offenses, certain U.S. export control violations, 
offenses subject to U.S. extradition obligations under multilateral 
treaties, and various other offenses. The Department of Justice should 
make use of the expanded authority, created by section 315, to make the 
risk of detection to foreign kleptocrats immediate and palpable.

  Section 316 establishes procedures to protect the rights of persons 
whose property may be subject to confiscation in the exercise of the 
government's antiterrorism authority. This provision is designed to 
assure that there is no situation in which the defendant in a 
forfeiture action will lack the opportunity to challenge the forfeiture 
simply because of the authority under which the forfeiture is sought.
  Section 319 treats amounts deposited by foreign banks in interbank 
accounts with U.S. banks as having been deposited in the United States 
for purposes of the forfeiture rules, but grants the Attorney General 
authority, in the interest of fairness and consistent with the United 
States' national interest, to suspend a forfeiture proceeding based on 
that presumption. This closes an important forfeiture loophole.
  A third important set of provisions modernize information-sharing 
rules to reflect the reality of the flight against money laundering and 
terrorism.
  Section 314 requires the Secretary of the Treasury to issue 
regulations to encourage cooperation among financial institutions, 
financial regulators and law enforcement officials and to permit the 
sharing of information by law enforcement and regulatory authorities 
with such institutions regarding persons reasonably suspected, based on 
credible evidence, of engaging in terrorist acts or money laundering 
activities. The section also allows banks to share information 
involving possible money laundering or terrorist activity among 
themselves--with notice to the Secretary of the Treasury.
  Section 330 states the sense of Congress that the President should 
direct certain cabinet officers to seek negotiations with foreign 
supervisory agencies to ensure that foreign institutions maintain 
adequate records relating to any foreign terrorist organization or 
person engaged in any financial crime and to make such records 
available to U.S. law enforcement and financial supervisory personnel.
  Section 355 permits but does not require, a bank to include 
information, in a response to a request for an employment reference by 
a second bank, about the possible involvement of a former institution-
affiliated party in potentially unlawful activity, and creates a safe 
harbor from civil liability for the bank that includes such information 
in response to an employment reference request, except in the case of 
malicious intent.
  Section 358 contains amendments to various provisions of the Bank 
Secrecy Act, the Right to Financial Privacy Act, and the Fair Credit 
Reporting Act to permit information subject to those statutes to be 
used in the conduct of United States intelligence or 
counterintelligence activities to protect against international 
terrorism.
  Section 361 seeks to enhance the ability of FinCEN to address money 
laundering and terrorism. The section makes FinCEN a bureau of the 
Treasury and requires the Secretary to establish operating procedures 
for the government-wide data access service and communications center 
that FinCEN operates. In recognizing FinCEN's evolution and maturity, 
it is not our intention to require existing delegations of authority to 
be reissued simply because FinCEN's organizational status has changed 
from Treasury office to Treasury bureau.
  The modernization of our money-laundering laws represented by Title 
III is long overdue. It is not the work of one or two weeks but 
represents years of careful study and a bipartisan effort to produce 
prudent and effective legislation. The care taken in producing the 
legislation extends to several provisions calling for reporting on the 
effect of the legislation and a provision for a three-year review of 
the effectiveness of the legislation. Title III responds, as I have 
indicated, to the statement of Assistant Attorney General Chertoff, the 
head of the Department of Justice's Criminal Division. I want to 
express my appreciation to him, Under Secretary Gurule at the Treasury, 
and his associates for their help in this effort.
  At the hearing on September 26, Assistant Attorney General Chertoff 
said, and I quote him, ``We are fighting with outdated weapons in the 
money-laundering arena today.'' Without this legislation, the cracks in 
the financial system of which bin Laden spoke would remain open. We 
should not, indeed we cannot, allow that to continue. And that is why 
enactment of this legislation is so important.
  Title III is a balanced effort to address a complex area of national 
concern. It is the result of a truly bipartisan effort on both sides of 
Congress working closely with the executive branch, with the White 
House, with the Department of the Treasury, and the Department of 
Justice. I very strongly urge support for this essential component of 
the antiterrorism package.
  I ask unanimous consent that a section-by-section summary be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Title III--International Money Laundering Abatement and Financial Anti-
           Terrorism Act of 2001--Section-by-Section Summary

     Section 301. Short title and table of contents
     Section 302. Findings and purposes
     Section 303. 4-Year congressional review-expedited 
         consideration
       Section 313 provides that the provisions added and 
     amendments made by Title III will terminate after September 
     30, 2004, if the Congress enacts a joint resolution to that 
     effect, and that any such joint resolution will be considered 
     by the Congress expeditiously.


 subtitle a. international counter-money laundering and related matters

     Section 311. Special measures for jurisdictions, financial 
         institutions, or international transactions or accounts 
         of primary money laundering concern
       Section 311 adds a new section 31 U.S.C. 5318A, entitled 
     ``Special measures for jurisdictions, financial institutions, 
     or international transactions of primary money laundering 
     concern,'' to the Bank Secrey Act. The new section gives the 
     Secretary of the Treasury, in consultation with other senior 
     government officials, authority (in the Secretary's 
     discretion), to impose one or more of five new ``special 
     measures'' against foreign jurisdictions, foreign financial 
     institutions, transactions involving such jurisdictions or 
     institutions or one more types of accounts, that the 
     Secretary, after consultation with Secretary of State and the 
     Attorney General, determines to pose a ``primary money 
     laundering concern'' to the United States. The special 
     measures include: (1) requiring additional recordkeeping or 
     reporting for particular transactions, (2) requiring the 
     identification of the foreign beneficial owners of certain 
     accounts at a U.S. financial institution, (3) requiring the 
     identification of customers of a foreign bank who use an 
     interbank payable-through account opened by that foreign bank 
     at a U.S. bank, (4) requiring the identification of customers 
     of a foreign bank who use an interbank correspondent account 
     opened by that foreign

[[Page S11043]]

     bank at a U.S. bank, and (5) after consultation with the 
     Secretary of State, the Attorney General, and the Chairman of 
     the Federal Reserve Board, restricting or prohibiting the 
     opening or maintaining of certain interbank correspondent or 
     payable through accounts. Measures 1-4 may not be imposed for 
     more than 120 days except by regulation, and measure 5 may 
     only be imposed by regulation.
     Section 312. Special due diligence for correspondent accounts 
         and private banking accounts
       Section 312(a) of the Act adds a new subsection (1), 
     entitled ``Due Diligence for United States Private Banking 
     and Correspondent Banking Accounts involving Foreign 
     Persons,'' to 31 U.S.C. 5318. The new subsection requires a 
     U.S. financial institution that maintains a correspondent 
     account or private banking account for a non-United States 
     person (or that person's representative) to establish 
     appropriate, specific, and, where necessary, enhanced due 
     diligence procedures that are reasonably designed to detect 
     and report instances of money laundering through such 
     accounts. For this purpose, a correspondent account is 
     defined in the new section 5318A, added to the Bank Secrecy 
     Act by section 311 of Title III.
       The general requirement is supplemental by two additional, 
     more specific, due diligence standards that are required for 
     certain types of correspondent and private banking accounts.
       Correspondent Accounts.--In the case of certain 
     correspondent accounts, the additional standards required by 
     subsection 5318(i)(2) require a U.S. financial institution 
     to, at a minimum, do three things. First, it must ascertain 
     the identity, and the nature and extent of the ownership 
     interests, of the owners of any foreign bank correspondent 
     whose shares are not publicly traded. Second, it must conduct 
     enhanced scrutiny of the correspondent account to guard 
     against money laundering and satisfy its obligation to report 
     suspicious transactions under the terms of 31 U.S.C. 5318(g). 
     Third, it must ascertain whether any foreign bank 
     correspondent in turn provides correspondent accounts to 
     third party foreign banks; if so the U.S. financial 
     institution must ascertain the identity of those third party 
     foreign banks and related due diligence information required 
     under the general rules of paragraph 5318(i)(1).
       These additional standards apply to correspondent accounts 
     requested or maintained by or on behalf of any foreign bank 
     operating under (i) an offshore banking license (defined by 
     the statute as a banking license that bars the licensee from 
     conducting banking activities with citizens of, or in the 
     local currency of, the jurisdiction that issued the license), 
     or (ii) under a banking license issued (A) by any country 
     designated as noncooperative with international anti-money 
     laundering principles by an intergovernmental body of which 
     the United States is a member, with the concurrence of the 
     U.S. representative to such body, or (B) by a country that 
     has been designated by the Secretary of the Treasury as 
     warranting special measures (i.e., the special measures 
     authorized by new section 31 U.S.C. 5318A, added by section 
     311 of Title III), due to money laundering concerns.
       Private Banking Accounts.--In the case of private banking 
     accounts, the additional standards required by subsection 
     5318(i)(3) require a U.S. financial institution to, at a 
     minimum, do two things. First, the U.S. financial institution 
     must take reasonable steps to ascertain the identity of the 
     nominal and beneficial owners of the account and the source 
     of funds deposited into the account, as needed to guard 
     against money laundering and report any suspicious 
     transactions under the terms of 31 U.S.C. 5318(g). Second, 
     the U.S. financial institution must take reasonable steps to 
     conduct enhanced scrutiny, that is reasonably designed to 
     detect and report transactions that may involve the proceeds 
     of foreign corruption, for any private banking account that 
     is requested or maintained by, or on behalf of, a senior 
     foreign political figure (or any immediate family member or 
     close associate of such a political figure).
       A private banking account for this purpose is any account 
     or combination of accounts that requires a minimum aggregate 
     deposit of at least $1 million, is established on behalf of 
     one or more individuals who have either a direct or 
     beneficial ownership interest in the account, and that is 
     assigned to, or administered or managed by, in whole or in 
     part, an officer, employee or agent of a financial 
     institution who serves as liaison between the institution 
     and the account's direct or beneficial owner or owners.
       Effective Date; Regulations.--31 U.S.C. 5318(j) will take 
     effect 270 days after the date of enactment of Title III as 
     part of the Uniting to Save America Act and will apply to 
     otherwise covered correspondent and private banking accounts, 
     whether opened before, on, or after the date of enactment. 
     Section 312(b) of Title III requires the Secretary of the 
     Treasury, in consultation with the appropriate federal 
     functional regulators of the affected financial institutions, 
     to further delineate, by regulation, the due diligence 
     policies, procedures, and controls required under new 
     subsection 5318(j), not later than 180 days of the date of 
     enactment. However, the new subsection will take effect 
     whether or not final regulations are issued before the 270th 
     day following enactment, and any failure to issue regulations 
     whether before or after the effective date is in no way to 
     affect the enforceability of subsection 5318(j).
     Section 313. Prohibition on United States correspondent 
         accounts with foreign shell banks
       Section 313(a) of the Act adds a new subsection (j), 
     entitled ``Prohibition on United States Correspondent 
     Accounts with Foreign Shell Banks'' to 31 U.S.C. 5318. The 
     new subsection bars any depository institution or registered 
     broker-dealer in securities, operating in the United States, 
     from establishing, maintaining, administering, or managing a 
     correspondent account in the United States for a foreign 
     bank, if the foreign bank does not have ``a physical presence 
     in any country.'' The subsection also includes a requirement 
     that any financial institution covered by the subsection must 
     take reasonable steps (as delineated by Treasury regulations) 
     to ensure that it is not providing the prohibited services 
     indirectly to a ``no-physical presence bank,'' through a 
     third party foreign bank correspondent of the U.S. 
     institution. The prohibition does not apply, however, to a 
     correspondent account provided by a U.S. institution to a 
     foreign ``no physical presence'' bank if that foreign bank is 
     an affiliate of a depository institution (including a credit 
     union or foreign bank) that does have a physical presence in 
     some country and if the foreign shell bank is subject to 
     supervision by a banking authority that regulates its 
     ``physical presence'' affiliate in that country. Both the 
     terms ``affiliate'' and ``physical presence'' are defined in 
     the new subsection.
       Section 313(b) provides that the ban on provision of 
     correspondent accounts for brass-plate banks will take effect 
     at the end of the 60 day period ending on the date of 
     enactment.
     Section 314. Cooperative efforts to deter money laundering
       Section 314 requires the Secretary of the Treasury to issue 
     regulations, within 120 days of the date of enactment, to 
     encourage cooperation among financial institutions, financial 
     regulators and law enforcement officials, and to permit the 
     sharing of information by law enforcement and regulatory 
     authorities with such institutions regarding persons 
     reasonably suspected, based on credible evidence, of engaging 
     in terrorist acts or money laundering activities. Section 314 
     also allows (with notice to the Secretary of the Treasury) 
     the sharing of information among banks involving possible 
     terrorist or money laundering activity, and requires the 
     Secretary of the Treasury to publish, at least semiannually, 
     a report containing a detailed analysis of patterns of 
     suspicious activity and other appropriate investigative 
     insights derived from suspicious activity reports and law 
     enforcement investigations.
     Section 315. Inclusion of foreign corruption offenses as 
         money laundering crimes
       Section 315 amends 18 U.S.C. 1956 to include foreign 
     corruption offenses, certain U.S. export control violations, 
     certain customs and firearm offenses, certain computer fraud 
     offenses, and felony violations of the Foreign Agents 
     Registration Act of 1938, to the list of crimes that 
     constitute ``specified unlawful activities'' for purposes of 
     the criminal money laundering provisions. These changes in 
     law mean that the U.S. will no longer allow a rapacious 
     foreign dictator to bring his funds to the U.S. and hide them 
     without fear of detection or prosecution.
     Section 316. Anti-terrorist forfeiture protection
       Section 316 establishes procedures to protect the rights of 
     persons whose property may be subject to confiscation in the 
     exercise of the government's anti-terrorism authority.
     Section 317. Long-arm jurisdiction over foreign money 
         launderers
       Section 317 amends 18 U.S.C. 1956 to give United States 
     courts ``long-arm'' jurisdiction over foreign persons 
     committing money laundering offenses in the United States, 
     over foreign banks opening U.S. bank accounts, and over 
     foreign persons who convert assets ordered forfeited by a 
     U.S. court. The amendments made by section 317 also permit a 
     federal court dealing with such foreign persons to issue a 
     pre-trial restraining order or take other action necessary to 
     preserve property in the United States to satisfy an ultimate 
     judgment. Finally, the amendment also permits the appointment 
     by a federal court of a receiver to collect and take custody 
     of a defendant's assets to satisfy criminal or civil money 
     laundering or forfeiture judgments.
     Section 318. Laundering money through a foreign bank
       Section 318 expands the definition of financial institution 
     for purposes of 18 U.S.C. 1956 and 1957 to include banks 
     operating outside of the United States.
     Section 319. Forfeiture of funds in United States interbank 
         accounts
       Section 319 contains a number of provisions that are 
     designed to deal with practical issues raised by money 
     laundering control and financial transparency, relating 
     primarily to correspondent accounts at U.S. financial 
     institutions.
       First, section 319 amends 18 U.S.C. 981 to treat amounts 
     deposited by foreign banks in interbank accounts with U.S. 
     banks as having been deposited in the United States for 
     purposes of the forfeiture rules, but grants the Attorney 
     General authority, in the interest of justice and consistent 
     with the United

[[Page S11044]]

     States' national interest, to suspend a forfeiture proceeding 
     that is otherwise based on the ``U.S. deposit'' presumption.
       Second, section 319 adds a new subsection (k) to 31 U.S.C. 
     5318 to require U.S. financial institutions to reply to a 
     request for information from a U.S. regulator relating to 
     anti-money laundering compliance within 120 hours of receipt 
     of such a request, and to require foreign banks that maintain 
     correspondent accounts in the United States to appoint agents 
     for service of process within the United States; the new 31 
     U.S.C. 5318(k) authorizes the Attorney General and the 
     Secretary of the Treasury to issue a summons or subpoena to 
     any such foreign bank seeking records, wherever located, 
     relating to such a correspondent account. Finally, the 
     provision requires the U.S. depository institution or broker-
     dealer that maintains the account to sever correspondent 
     arrangements with any foreign bank within 10 days of 
     notification by the Attorney General or the Secretary of the 
     Treasury (each after consultation with the other) that the 
     foreign bank has neither complied with nor contested any such 
     summons or subpoena.
       Finally, Section 319 amends section 413 of the Controlled 
     Substances Act to authorize United States courts to order a 
     convicted criminal to return property located abroad and to 
     order a civil forfeiture defendant to return property located 
     abroad pending trial on the merits.
     Section 320.  Proceeds of foreign crimes
       Section 320 amends 18 U.S.C. 981 to permit the United 
     States to institute forfeiture proceedings against the 
     proceeds of foreign criminal offenses found in the United 
     States.
     Section 321.  Financial institutions specified in subchapter 
         II of chapter 53 of Title 31, United States Code
       Section 321 amends 31 U.S.C. 5312(2) to add credit unions, 
     futures commission merchants, commodity trading advisors, and 
     registered commodity pool operators to the definition of 
     ``financial institution'' for purposes of the Bank Secrecy 
     Act, and to include the Commodity Futures Trading Commission 
     within the term ``federal functional regulator'' for purposes 
     of the Bank Secrecy Act.
     Section 322.  Corporation represented by a fugitive
       Section 322 extends the existing prohibition, in 18 U.S.C. 
     2466, against the maintenance of a forfeiture proceeding on 
     behalf of a fugitive to include a proceeding by a corporation 
     whose majority shareholder is a fugitive and a proceeding in 
     which the corporation's claim is instituted by a fugitive.
     Section 323.  Enforcement of foreign judgments
       Section 323 permits the government to seek a restraining 
     order to preserve the availability of property subject to a 
     foreign forfeiture or confiscation judgment.
     Section 324.  Report and recommendation
       Section 324 directs the Secretary of the Treasury, in 
     consultation with the Attorney General, the Federal banking 
     agencies, the SEC, and other appropriate agencies to evaluate 
     operation of the provisions of Subtitle A of Title III of the 
     Act and recommend to Congress any relevant legislative 
     action, within 30 months of the date of enactment.
     Section 325.  Concentration accounts at financial 
         institutions
       Section 325 amends 31 U.S.C. 5318(h) to authorize the 
     Secretary of the Treasury to issue regulations concerning the 
     maintenance of concentration accounts by U.S. depository 
     institutions, to prevent an institution's customers from 
     anonymously directing funds into or through such accounts.
     Section 326.  Verification of identification
       Sec, 326(a) adds a new subsection (l) to 31 U.S.C. 5318 to 
     require the Secretary of the Treasury to prescribe by 
     regulation, jointly with each federal functional regulator, 
     minimum standards for financial institutions and their 
     customers regarding the identity of the customer that shall 
     apply in connection with the opening of an account at a 
     financial institution; the minimum standards shall require 
     financial institutions to implement, and customers (after 
     being given adequate notice) to comply with, reasonable 
     procedures concerning verification of customer identity, 
     maintenance of records of identity verification, and 
     consultation at account opening of lists of known or 
     suspected terrorists provided to the financial institution by 
     a government agency. The required regulations are to be 
     issued within one year of the date of enactment.
       Section 326(b) requires the Secretary of the Treasury, 
     again in consultation with the federal functional regulators 
     (as well as other appropriate agencies), to submit a report 
     to Congress within six months of the date of enactment 
     containing recommendations about the most effective way to 
     require foreign nationals to provide financial institutions 
     in the United States with accurate identity information, 
     comparable to that required to be provided by U.S. nationals, 
     and to obtain an identification number that would function 
     similarly to a U.S. national's tax identification number.
     Section 327.  Consideration of anti-money laundering record
       Section 327 amends section 3(c) of the Bank Holding Company 
     Act of 1956, and section 18(c) of the Federal Deposit 
     Insurance Act to require the Federal Reserve Board and the 
     Federal Deposit Insurance Corporation, respectively, to 
     consider the effectiveness of a bank holding company or bank 
     (within the jurisdiction of the appropriate agency) in 
     combating money laundering activities, including in overseas 
     branches, in ruling on any merger or similar application by 
     the bank or bank holding company.
     Section 328.  International cooperation on identification of 
         originators of wire transfers
       Section 328 requires the Secretary of the Treasury, in 
     consultation with the Attorney General and the Secretary of 
     State, to take all reasonable steps to encourage governments 
     to require the inclusion of the name of the originator in 
     wire transfer instructions sent to the United States, and to 
     report annually to the House Committee on Financial Services 
     and the Senate Committee on Banking, Housing, and Urban 
     Affairs concerning progress toward that goal.
     Section 329.  Criminal penalties
       Section 329 provides criminal penalties for officials who 
     violate their trust in connection with the administration of 
     Title III.
     Section 330.  International cooperation in investigations of 
         money laundering, financial crimes, and the finances of 
         terrorist groups
       Section 330 states the sense of the Congress that the 
     President should direct the Secretary of State, the Attorney 
     General, or the Secretary of the Treasury, as appropriate and 
     in consultation with the Federal Reserve Board, to seek 
     negotiations with foreign financial supervisory agencies and 
     other foreign officials, to ensure that foreign financial 
     institutions maintain adequate records relating to any 
     foreign terrorist organization or its membership, or any 
     person engaged in money laundering or other financial crimes, 
     and make such records available to U.S. law enforcement and 
     financial supervisory personnel when appropriate.


    Subtitle B. Bank Secrecy Act Amendments and Related Improvements

     Section 351. Amendments relating to reporting of suspicious 
         activities
       Section 351 restates 31 U.S.C. 5318(g)(3) to clarify the 
     terms of the safe harbor from civil liability for financial 
     institutions filing suspicious activity reports pursuant to 
     31 U.S.C. 5318(g). The amendments to paragraph (g)(3) also 
     create a safe harbor from civil liability for banks that 
     provide information in employment references sought by other 
     banks pursuant to the amendment to the Federal Deposit 
     Insurance Act made by Section 355 of Title III.
     Section 352. Anti-money laundering programs
       Section 352 amends 31 U.S.C. 5318(h) to require financial 
     institutions to establish anti-money laundering programs and 
     grants the Secretary of the Treasury authority to set minimum 
     standards for such programs. The anti-money laundering 
     program requirement takes effect at the end of the 180 day 
     period beginning on the date of enactment of the Act and the 
     Secretary of the Treasury is to prescribe regulations before 
     the end of that 180 day period that consider the extent to 
     which the requirements imposed under amended section 5318(h) 
     are commensurate with the size, location, and activities of 
     the financial institutions to which the regulations apply.
     Section 353. Penalties for violations of geographic targeting 
         orders and certain recordkeeping requirements, and 
         lengthening effective period of geographic targeting 
         orders
       Section 353 amends 31 U.S.C. 5321, 5322, and 5324 to 
     clarify that penalties for violation of the Bank Secrecy Act 
     and its implementing regulations also apply to violations of 
     Geographic Targeting orders issued under 31 U.S.C. 5326, and 
     to certain recordkeeping requirements relating to funds 
     transfers. Section 353 also amends 31 U.S.C. 5326 to make the 
     period of a geographic target order 180 days.
     Section 354. Anti-money laundering strategy
       Section 354 amends 31 U.S.C. 5341(b) to add ``money 
     laundering related to terrorist funding'' to the list of 
     subjects to be dealt with in the annual National Money 
     Laundering Strategy prepared by the Secretary of the Treasury 
     pursuant to the Money Laundering and Financial Crimes 
     Strategy Act of 1998.
     Section 355. Authorization to include suspicions of illegal 
         activity in written employment references
       Section 355 amends section 18 of the Federal Deposit 
     Insurance Act to permit (but not require) a bank to include 
     information, in a response to a request for an employment 
     reference by a second bank, about the possible involvement of 
     a former institution-affiliated party in potentially unlawful 
     activity. A bank that provides information to a second bank 
     under the terms of this amendment is protected from civil 
     liability arising from the provision of the information 
     unless the first bank acts with malicious intent.
     Section 356. Reporting of suspicious activities by securities 
         brokers and dealers; investment company study
       Section 356(a) directs the Secretary of the Treasury, after 
     consultation with the Securities and Exchange Commission and 
     the Federal Reserve Board, to publish proposed regulations, 
     on or before December 31, 2002, and final regulations on or 
     before July 1, 2002, requiring broker-dealers to file 
     suspicious activity reports.
       Section 356(b) authorizes the Secretary of the Treasury, in 
     consultation with the Commodity Futures Trading Commission, 
     to prescribe regulations requiring futures commission 
     merchants, commodity trading advisors, and certain commodity 
     pool operators to submit suspicious activity reports under 31 
     U.S.C. 5318(g). To a significant extent, the authorization 
     clarifies and restates the terms of existing law, but it also 
     signals our concern that the Treasury move quickly to

[[Page S11045]]

     determine the extent to which suspicious transaction 
     reporting by commodities firms is necessary as a part of the 
     nation's anti-money laundering programs.
       Section 356(c) requires the Secretary of the Treasury, the 
     SEC and Federal Reserve Board to submit jointly to Congress, 
     within one year of the date of enactment, recommendations for 
     effective regulations to apply the provisions of 31 U.S.C. 
     5311-30 to both registered and unregistered investment 
     companies, as well as recommendations as to whether the 
     Secretary should promulgate regulations treating personal 
     holding companies as financial institutions that must 
     disclose their beneficial owners when opening accounts or 
     initiating funds transfers at any domestic financial 
     institution.
     Section 357. Special report on administration of Bank Secrecy 
         provisions
       Section 357 directs the Secretary of the Treasury to submit 
     a report to Congress, six months after the date of enactment, 
     on the role of the Internal Revenue Service in the 
     administration of the Bank Secrecy Act, with emphasis on 
     whether IRS Bank Secrecy Act information processing 
     responsibility (for reports filed by all financial 
     institutions) or Bank Secrecy Act audit and examination 
     responsibility (for certain non-bank financial institutions) 
     should be retained or transferred.
     Section 358. Bank Secrecy provisions and anti-terrorist 
         activities of the United States intelligence agencies
       Section 358 contains amendments to various provisions of 
     the Bank Secrecy Act, the Right to Financial Privacy Act, and 
     the Fair Credit Reporting Act, to permit information to be 
     used in the conduct of United States intelligence or 
     counterintelligence activities to protect against 
     international terrorism.
     Section 359. Reporting of suspicious activities by 
         underground banking systems
       Section 359 amends various provisions of the Bank Secrecy 
     Act to clarify that the Bank Secrecy Act treats certain 
     underground banking systems as financial institutions, and 
     that the funds transfer recordkeeping rules applicable to 
     licensed money transmitters also apply to such 
     underground systems. Section 359 also directs the 
     Secretary of the Treasury to report to Congress, within 
     one year of the date of enactment, on the need for 
     additional legislation or regulatory controls relating to 
     underground banking systems.
     Section 360.  Use of authority of the United States Executive 
         Directors.
       Section 360 authorizes the Secretary of the Treasury to 
     instruct the United States Executive Director of each of the 
     international financial institutions (for example, the IMF 
     and the World Bank) to use such Director's ``voice and vote'' 
     to support loans and other use of resources to benefit 
     nations that the President determines to be contributing to 
     United States efforts to combat international terrorism, and 
     to require the auditing of each international financial 
     institution to ensure that funds are not paid to persons 
     engaged in or supporting terrorism.
     Section 361.  Financial Crimes Enforcement Network.
       Section 361 adds a new section 310 to Subchapter I of 
     chapter 3 of title 31, United States Code, to make the 
     Financial Crimes Enforcement Network (``FinCEN'') a bureau 
     within the Department of the Treasury, to specify the duties 
     of FinCEN's Director, and to require the Secretary of the 
     Treasury to establish operating procedures for the 
     government-wide data access service and communications center 
     that FinCEN maintains. Section 361 also authorizes 
     appropriations for FinCEN for fiscal years 2002 through 2005. 
     Finally, Section 361 requires the Secretary to study methods 
     for improving compliance with the reporting requirements for 
     ownership of foreign bank and brokerage accounts by U.S. 
     nationals imposed by regulations issued under 31 U.S.C. 5314; 
     the required report is to be submitted within six months of 
     the date of enactment and annually thereafter.
     Section 362.  Establishment of highly secure network.
       Section 362 directs the Secretary of the Treasury to 
     establish, within nine months of enactment, a secure network 
     with FinCEN that will allow financial institutions to file 
     suspicious activity reports and provide such institutions 
     with information regarding suspicious activities warranting 
     special scrutiny.
     Section 363.  Increase in civil and criminal penalties for 
         money laundering.
       Section 363 increases from $100,000 to $1,000,000 the 
     maximum civil and criminal penalties for a violation of 
     provisions added to the Bank Secrecy Act by sections 311, 312 
     and 313 of this Act.
     Section 364.  Uniform protection authority for Federal 
         Reserve facilities.
       Section 364 authorizes certain Federal Reserve personnel to 
     act as law enforcement officers and carry fire arms to 
     protect and safeguard Federal Reserve employees and premises.
     Section 365.  Reports relating to coins and currency received 
         in nonfinancial trade or business.
       Section 365 adds 31 U.S.C. 5331 (and makes related and 
     conforming changes) to the Bank Secrecy Act to require any 
     person who receives more than $10,000 in coins or currency, 
     in one transaction or two or more related transactions in the 
     course of that person's trade or business, to file a report 
     with respect to such transaction with FinCEN; regulations 
     implementing the new reporting requirement are to be 
     promulgated within six months of enactment.
     Section 366.  Efficient use of current transaction report 
         system.
       Section 366 requires the Secretary of the Treasury to 
     report to the Congress before the end of the one year period 
     beginning on the date of enactment containing the results of 
     a study of the possible expansion of the statutory system for 
     exempting transactions from the currency transaction 
     reporting requirements and ways to improve the use by 
     financial institutions of the statutory exemption system as a 
     way of reducing the volume of unneeded currency transaction 
     reports.


                      Subtitle C. Currency Crimes

     Section 371.  Bulk cash smuggling.
       Section 371 creates a new Bank Secrecy Act offense, 31 
     U.S.C. 5332, involving the bulk smuggling of more than 
     $10,000 in currency in any conveyance, article of luggage or 
     merchandise or container, either into or out of the United 
     States, and related forfeiture provisions.
     Section 372.  Forfeiture in currency reporting cases.
       Section 372 amends 31 U.S.C. 5317 to permit confiscation of 
     funds in connection with currency reporting violations 
     consistent with existing civil and criminal forfeiture 
     procedures.
     Section 373.  Illegal money transmitting business.
       Section 373 amends 18 U.S.C. 1960 to clarify the terms of 
     the offense stated in that provision, relating to knowing 
     operation of an unlicensed (under state law) or unregistered 
     (under federal law) money transmission business. Section 373 
     also amends 18 U.S.C. 981(a) to authorize the seizure of 
     funds involved in a violation of 18 U.S.C. 1960.
     Section 374.  Counterfeiting domestic currency and 
         obligations.
       Section 374 makes a number of changes to the provisions of 
     18 U.S.C. 470-473 relating to the maximum sentences for 
     various counterfeiting offenses, and adds to the definition 
     of counterfeiting in 18 U.S.C. 474 the making, acquiring, 
     etc. of an analog, digital, or electronic image of any 
     obligation or other security of the United States.
     Section 375.  Counterfeiting foreign currency and 
         obligations.
       Section 375 makes a number of changes to the provisions of 
     18 U.S.C. 478-480 relating to the maximum sentences for 
     various counterfeiting offenses involving foreign obligations 
     or securities and adds to the definition of counterfeiting in 
     18 U.S.C. 481 the making, acquiring, etc. of an analog, 
     digital, or electronic image of any obligation or other 
     security of a foreign government.
     Section 376.  Laundering the proceeds of terrorism.
       Section 376 amends 18 U.S.C. 1956 to add the provision of 
     support to designated foreign terrorist organizations to the 
     list of crimes that constitute ``specified unlawful 
     activities'' for purposes of the criminal money laundering 
     statute. (This provision was originally included in another 
     title of the terrorism legislation.)
     Section 377.  Extraterritorial jurisdiction.
       Section 377 amends 18 U.S.C. 1029 to vest United States 
     authorities with extraterritorial jurisdiction over acts 
     involving access device, credit card and similar frauds that 
     would be crimes if committed within the United States and 
     that are directed at U.S. entities or linked to U.S. 
     activities.

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, what Senator Daschle would like to do, and 
this has been cleared with the two managers, is have a vote before 2 
p.m. today, approximately 5 minutes to 2 p.m. There is a meeting at the 
White House. There are a number of very important hearings, one 
including the Secretary of State. We are waiting for one more Senator 
who has 15 minutes. We understand that Senator Specter is on his way.
  I ask unanimous consent that the vote on passage of the 
Counterterrorism Act occur at 1:55 p.m. Further, that there be 10 
minutes of closing debate. I will alter that by saying whatever time 
Senator Specter does not use, it will be divided between the two 
managers of the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I have sought recognition to state my 
support

[[Page S11046]]

for the pending legislation. This is very important legislation in 
response to the atrocious terrorist attacks of September 11. We will at 
some date in the future conduct congressional oversight to make a 
determination as to whether there were any deficiencies in our 
intelligence operations prior to the September 11 attacks. However, we 
should wait until the appropriate time because our intelligence 
entities are busy now collecting intelligence to avoid any recurrence 
of the terrorist attacks. But it is important that law enforcement have 
appropriate tools at their disposal to combat terrorists. In the United 
States that means careful legislation which is in accordance with our 
constitutional rights and our civil liberties.

  I believe Congress has responded appropriately in this matter with 
due deliberation. There is obviously a temptation in the face of what 
occurred on September 11 to respond spontaneously or reflexively, but 
we have undertaken this legislation, I think, with appropriate care and 
now have a good product.
  I had expressed concerns when the bill was on the Senate floor that 
there could be some question about the adequacy of the deliberative 
process because the Supreme Court of the United States has held acts of 
Congress unconstitutional where they questioned the thoroughness or 
deliberation. I think this bill as presented today does meet that 
standard.
  The legislation has very important provisions under the Foreign 
Intelligence Surveillance Act where a modification has been made to 
authorize electronic surveillance where there is a ``significant'' 
rather than a ``primary'' purpose, allowing use of the Foreign 
Intelligence Surveillance Act.
  I chaired the Judiciary subcommittee, which did Department of Justice 
oversight, getting into the Foreign Intelligence Surveillance Act in 
some detail with respect to the Wen Ho Lee case. This is a change which 
is necessary, and I believe it is a change which will pass 
constitutional muster.
  The electronic surveillance adds terrorism to wiretap predicates. It 
is rather surprising that terrorism, or allegations of terrorism, have 
not been sufficient to authorize electronic surveillance in the past. 
This corrects a long-standing deficiency.
  The pen register has been expanded for nationwide orders, which makes 
sense on an administrative level and does not conflict with any issues 
of civil liberties or constitutional rights. The bill increases the 
civil liability for unauthorized disclosure of wiretapping information, 
which I think is important.
  One of the key provisions of the bill is the sunset provisions 
relating to the Foreign Intelligence Surveillance Act, electronic 
surveillance, and information sharing which expire on December 31, 
2005, with an appropriate exception for ongoing investigations. This 
will enable us to see how this expanded power will work out and will 
require reauthorization, new legislation, if we wish to continue it 
beyond.
  The provisions on immigration are important, requiring the Department 
of Justice and the FBI to share certain information with the State 
Department and INS. The issues regarding detention, I think, have been 
very substantially improved to be sure that there is a protection of 
constitutional rights while giving law enforcement an adequate 
opportunity to conduct the inquiries which they need.
  The provisions on money laundering, I think, are very important 
additions to take a stand, to stop terrorist organizations such as al-
Qaida and terrorists such as Osama bin Laden not to be financed through 
the laundering which has been possible through laxity of the banking 
regulations.
  In short, I believe this is a very significant step forward. There is 
a very heavy overhang over Washington, DC, today with what is happening 
here with our efforts to respond in so many ways to September 11. Now 
with the anthrax, we are all concerned about what may happen in the 
future.
  Having served as chairman of the Intelligence Committee back in the 
1995-1996 time period and chairing the appropriations subcommittee on 
terrorism, I am glad to see us move forward with this legislation which 
will give law enforcement the tools which would give them a better 
opportunity to prevent any more sneak attacks, any recurrence of the 
dastardly deeds of September 11.
  I thank the Chair, and I yield the floor.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that a joint 
memorandum on the immigration provisions of H.R. 3162 be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Joint Memorandum of Senator Edward M. Kennedy and Senator Sam Brownback 
   on the Immigration Provisions of ``The Uniting and Strengthening 
   America by Providing Appropriate Tools Required to Intercept and 
                    Obstruct Terrorism Act of 2001''

       The U.S.A. PATRIOT Act of 2001 contains certain immigration 
     provisions worked out between the Administration and members 
     of both parties. Because the legislation was developed 
     outside the ordinary committee process, it was not 
     accompanied by the usual reports elaborating on the 
     background and purpose of its provisions. This memorandum is 
     accordingly submitted on behalf of the Chairman and Ranking 
     Member of the Subcommittee on Immigration of the Senate 
     Committee on the Judiciary to provide some background and 
     explanations for these provisions.

                    TITLE IV: PROTECTING THE BORDER


               subtitle A--protecting the northern border

     Section 401  Ensuring Adequate Personnel on the Northern 
         Border
       This section permits the Attorney General to lift the cap 
     on the number of ``full time equivalent'' employees that the 
     Immigration and Naturalization Service (INS) may assign to 
     the northern border.
     Section 402  Northern Border Personnel
       This section triples the number of Border Patrol agents, 
     INS Inspectors, and Customs Service employees in each state 
     along the northern border. It also funds any additional staff 
     and facilities needed to support northern border personnel. 
     Further, this section provides $50 million to the INS and $50 
     million to the Customs Service to improve technology to 
     monitor the northern border and to acquire additional 
     equipment for this purpose.
     Section 403  Requiring Sharing by the Federal Bureau of 
         Investigation of Certain Criminal Record Extracts with 
         Other Federal Agencies in Order to Enhance Border 
         Security
       This section provides the State Department and the INS with 
     electronic access to the information contained in the Federal 
     Bureau of Investigation's National Crime Information Center 
     Interstate Identification Index (NCIC-III), Wanted Persons 
     File, and other files maintained by the National Crime 
     Information Center. This information is to be used in 
     determining whether a visa applicant or an applicant for 
     admission to the United States has a criminal history.
       Under this section, the FBI must provide the State 
     Department and the INS with extracts from its criminal 
     history records and periodically update those extracts. 
     Within four months of enactment of this legislation, the 
     State Department must issue regulations regarding the proper 
     use of the information provided by the FBI. Within two years 
     of enactment, the Attorney General and the Secretary of State 
     will report to Congress on the implementation of this 
     section.
       Further, this section directs the Attorney General and the 
     Secretary of State, working with the National Institute of 
     Standards and Technology (NIST) and other agencies, to 
     develop and certify a technology standard that can conform 
     the identity of a visa applicant or applicant for admission. 
     As these agencies do not utilize a single technology, the 
     development of a technology standard will facilitate the 
     collection and sharing of relevant identity information 
     between all the pertinent agencies. In particular, this 
     section instructs those agencies to investigate the use of 
     biometric technology. The technology standard must be 
     developed and certified by NIST within two years of the date 
     of enactment of this subsection.
     Section 404  Limited Authority to Pay Overtime
       This section eliminates the $30,000 limit on overtime pay 
     for INS personnel during 2001. The limit was contained in the 
     2001 Department of Justice Appropriations Act, which did not 
     contemplate the extraordinary demands that have been placed 
     on the INS since the terrorist attacks of September 11.
     Section 405  Report on the Intergrated Automated Fingerprint 
         Identification System for Points of Entry and Overseas 
         Consular Posts
       This provision instructs the Attorney General, in 
     consultation with the heads of other federal agencies, to 
     report to Congress on the feasibility of enhancing the FBI's 
     Integrated Automated Fingerprint Identification System 
     (IAFIS), and other identification systems, to better identify 
     foreign nationals wanted in connection with criminal 
     investigations in the United States and abroad.


              subtitle b: enhanced immigration provisions

     Section 411  Definitions Relating to Terrorism
       Under current law, unless otherwise specified, an alien is 
     inadmissible and deportable for engaging in terrorist 
     activity only when

[[Page S11047]]

     the alien has used explosives or firearms. Because a 
     terrorist can use a knife, a box-cutter, or an airplane in a 
     terrorist act, this section expands the definition of 
     terrorist activity to include the use of any ``other weapon 
     or dangerous device.'' The language looks to the purpose, not 
     the instrument, in determining whether an activity is 
     terrorist in nature.
       Current immigration law contains no provision acknowledging 
     organized terrorist threats per se and therefore contains no 
     ground for inadmissibility or deportability based on 
     activities involving ``terrorist organizations.'' Section 411 
     defines terrorist organization to include: (1) an 
     organization expressly designated by the Secretary of 
     State under current section 219 of the INA; (2) an 
     organization otherwise designated as a terrorist 
     organization by the Secretary of State, in consultation 
     with the Attorney General, after finding that such 
     organization engages in terrorist activities, as defined 
     by section 212(a)(3)(iv)(I), (II) and (III), or provides 
     material support to further terrorist activity; or (3) any 
     group of two of more individuals that commits, plans, or 
     prepares to commit terrorist activities.
       This section adds three grounds of inadmissibility for 
     individuals who, while not members of terrorist 
     organizations, may advocate terrorism. These include (1) 
     under new INA section 212(a)(3)(B)(i)(IV)(bb), being a 
     representative of a group ``whose public endorsement of 
     terrorist activity'' the Secretary of State has determined 
     undermines United States efforts to combat terrorism; (2) 
     under new INA section 212(a)(3)(B)(i)(VI), using one's 
     ``position of prominence within any country to endorse or 
     espouse terrorist activity, or persuade others to support 
     terrorist activity or a terrorist organization, in a way that 
     the Secretary of State determines'' undermines United States 
     efforts to combat terrorism; or (3) under new INA section 
     212(a)(3)(B)(i)(VII), being a spouse or child of a person 
     inadmissible under this section, unless the spouse or child 
     did not know or reasonably should not have known of the 
     activity causing the inadmissibility, or the spouse or child 
     has renounced such activity.
       This section clarifies the circumstances under which the 
     provision of material support, solicitation of funds, or 
     solicitation of membership for a terrorist organization can 
     be the basis for a charge permitting the removal of an alien. 
     It provides that, after an organization is designated as a 
     terrorist organization by the Secretary of State, any 
     provision of material support or solicitation of funds or 
     membership, as defined in subsection (iv) of INA section 
     212(a)(3)(B), for a designated organization may be the basis 
     for a charge of removal. With respect to activity prior to 
     the designation of the organization, or with respect to non-
     designated organizations under section 212(a)(3)(B)(vi)(III), 
     only activity that was or is intended to further terrorist 
     activity of the organization is prohibited by this section.
     Section 412  Mandatory Detention of Suspected Terrorists; 
         Habeas Corpus; Judicial Review
       The section creates INA section 236A, giving the Attorney 
     General the authority to certify and therefore detain persons 
     who pose a terrorist or security threat to the United States. 
     The power to certify is limited to the Attorney General and 
     the Deputy Attorney General. This section also provides 
     judicial review of this authority in habeas corpus 
     proceedings.
       This section sets forth the standards for certification, 
     custody, and detention. All persons certified under these new 
     provisions shall be placed in custody and detained until 
     removed or decertified. Persons who are not removable would 
     be released from custody upon conclusion of the proceedings.
       Further, it permits certification of aliens whom the 
     Attorney General has ``reasonable grounds to believe'' are 
     described under the terrorism grounds of the INA or are 
     engaged in any other activity that endangers the national 
     security of the United States. ``Reasonable grounds'' is a 
     higher standard than mere ``reason to believe'' and requires 
     objective, articulatable grounds.
       The Attorney General must, in certified cases, either 
     initiate removal proceedings within seven days or release the 
     alien. In cases not involving an alien certified by the 
     Attorney General, proceedings should continue to be initiated 
     within the time provided by the regulations. See 66 Fed. Reg. 
     48335 (amending 8 CFR Sec. 237.3(d)). The seven-day window to 
     initiate proceedings is limited to cases certified under 
     section 236A and should be used judiciously, with charges 
     filed as promptly as possible.
       For aliens whose removal is unlikely in the reasonably 
     foreseeable future, the Attorney General is required to 
     demonstrate that release of the alien will adversely affect 
     national security or the safety of the community or any 
     person before detention may continue beyond the removal 
     period. Indefinite detention of aliens is permitted only in 
     extraordinary circumstances. Zadvydas v. Davis, 121 S. Ct. 
     2491 (2001).
       The Attorney General shall review the certification of an 
     alien every six months and, when appropriate, revoke the 
     certification and release the alien under such conditions as 
     the Attorney General deems appropriate. The alien may submit 
     documentation or other evidence to be considered by the 
     Attorney General in reviewing his or her certification.
       The Attorney General's decision to certify and detain an 
     alien is subject to judicial review in habeas corpus 
     proceedings. This review encompasses both procedural 
     protections and the merits of the Attorney General's 
     certification decision and any decision to extend detention 
     beyond the expiration of the removal period where removal is 
     unlikely in the reasonably foreseeable future. Habeas corpus 
     review is permitted in any appropriate district court of the 
     United States, but appeals are limited to the United States 
     Court of Appeals for the District of Columbia, with review 
     available in the United States Supreme Court by petition for 
     certiorari or by original petition for habeas corpus. 
     Restricting appellate review to a single court protects the 
     government's interest in uniformity, while providing an alien 
     with a meaningful opportunity to seek judicial review.
     Section 413  Multilateral Cooperation Against Terrorists
       The records of the State Department pertaining to the 
     issuance of or refusal to issue visas to enter the United 
     States are confidential and can be used only in the 
     formulation and enforcement of U.S. law. This section allows 
     the State Department to provide such records to a foreign 
     government on a case-by-case basis for the purpose of 
     preventing, investigation, or punishing acts of terrorism.
     Section 414  Visa Integrity and Security
       In 1996, Congress enacted legislation mandating the 
     development of an automated entry/exit control system to 
     record the entry and departure of every non-U.S. citizen 
     arriving in the United States. The INS lacks the 
     technology and funding to implement this measure at all 
     ports of entry, especially on the land border. Last year 
     Congress amended the law to establish reasonable 
     implementation deadlines. This provision directs the 
     Attorney General, in consultation with the Secretary of 
     State, to fully implement the entry/exit system, as 
     amended, as expeditiously as practicable, with particular 
     focus on the utilization of biometric technology and the 
     development of tamper-resistant documents. To that end, 
     this section also authorizes the appropriation of such 
     funds as may be necessary to implement this system.
       The entry/exit system will notify the INS whether foreign 
     nationals departed the United States under the terms of their 
     visas. Since the vast majority of persons who enter the 
     United States do not pose a threat to our safety or security, 
     this provision requires that the information obtained from 
     the entry/exit system be interfaced with intelligence and law 
     enforcement databases to enable authorities to focus on 
     apprehending those few who do pose a threat.
       Federal intelligence and law enforcement agencies maintain 
     ``look out lists'' containing the names of foreign nationals 
     who pose safety or security threats. Not all critical 
     information is currently shared with the INS and the State 
     Department, which are the two agencies charged with 
     determining who is granted a visa or admitted to the United 
     States. This provision requires the Office of Homeland 
     Security to submit a report to Congress assessing the 
     information that these two agencies need to effectively 
     screen out those who might pose a threat to the United 
     States.
     Section 415  Participation of Office of Homeland Security on 
         Entry Task Force
       This section includes the new Office of Homeland Security 
     as a participant in the Entry and Exit Task Force established 
     by the Immigration and Naturalization Service Data Management 
     Improvement Act of 2000.
     Section 416  Foreign Student Monitoring Program
       In 1996, Congress established a program to monitor foreign 
     students and exchange visitors to the United States, funded 
     by user fees. While a pilot phase of this program ended in 
     1999, this system has not been implemented nationwide. This 
     section requires the system to be fully implemented and 
     temporarily funds the program through January 2003.
       Currently, all institutions of higher education that enroll 
     foreign students or exchange visitors are required to 
     participate in the monitoring program. This section also 
     expands the list of institutions to include air flight 
     schools, language training schools, and vocational schools.
     Section 417  Machine Readable Passports
       The Visa Waiver Program permits nationals of participating 
     countries to enter the United States without obtaining 
     nonimmigrant visas. Countries participating in the program 
     must have low nonimmigrant visa refusal rates, have machine 
     readable passport programs, and not compromise the law 
     enforcement interests of the United States.
       This section requires the Secretary of State to conduct an 
     annual audit of the program to assess measures to prevent the 
     counterfeiting and theft of passports and to ascertain 
     whether participating countries have established a program to 
     develop tamper-resistant passports. Results of the audit will 
     be reported to Congress.
       Currently, nationals of participating countries have until 
     October 1, 2007 to obtain machine-readable passports to seek 
     admission to the United States. This section advances the 
     deadline to October 1, 2003, but permits the Secretary of 
     State to waive the requirements imposed by the deadline for 
     all nationals of a program country, if that country is making 
     sufficient progress to provide their nationals with machine-
     readable passports.

[[Page S11048]]

     Section 418  Prevention of Consulate Shopping
       This section directs the State Department to examine the 
     concerns, if any, created by the practice of certain aliens 
     to ``shop'' for a visa between issuing posts.


    SUBTITLE C: PRESERVATION OF IMMIGRATION BENEFITS FOR VICTIMS OF 
                               TERRORISM

     Section 421  Special Immigrant Status
       The section provides permanent residence as special 
     immigrants to the spouses and children of certain victims of 
     the terrorist attacks. They include aliens who would have 
     obtained permanent residence through a family or employment-
     based category, but for death, disability, or loss of 
     employment as a direct result of the terrorist attacks on 
     September 11, 2001. Permanent residence would be granted to 
     the fiance or fiancee (and children) of a U.S. citizen who 
     died in the attacks. Permanent residence would also be 
     granted to the grandparents of a child whose parents died in 
     attacks, if either parent was a U.S. citizen or a permanent 
     resident.
     Section 422  Extension of Filing or Reentry Deadlines
       This section creates safeguards so that aliens seeking 
     immigration benefits are not adversely affected by the 
     terrorist attacks. For aliens in lawful nonimmigrant status 
     at the time of the terrorist attacks, this section extends 
     the filing deadline for an extension of status request or 
     change of status request where the alien was unable to meet 
     the filing deadline due to the terrorist attacks. Deadlines 
     are similarly extended for aliens unable to reenter in time 
     to request an extension of status, aliens unable to enter 
     during the period of visa validity or parole, and aliens 
     unable to depart within their period of lawful status or 
     voluntary department. The section also protects recipients of 
     diversity visas who were adversely affected by the terrorist 
     attacks.
     Section 423  Humanitarian Relief for Certain Surviving 
         Spouses and Children
       Current law provides that an alien who was the spouse of a 
     U.S. citizen for at least two years before the citizen died 
     shall remain eligible for immigrant status as an immediate 
     relative. This eligibility also applies to the children of 
     the alien. This section provides that if the U.S. citizen 
     died as a direct result of the terrorist attacks, the alien 
     can seek permanent residence even if the marriage was less 
     than two years old.
       This section also protects the spouse and unmarried sons 
     and daughters of a permanent resident killed in the terrorist 
     attacks by allowing them to seek permanent residence either 
     through a pending visa petition (filed by or on behalf of the 
     deceased) or by filing a ``self-petition'' based on their 
     relationship to the deceased permanent resident.
     Section 424  `Age-Out' Protection for Children
       By providing a brief filing extension, this provision 
     ensures that no alien will ``age out of eligibility to 
     immigrate as the result of the terrorist attacks. Aliens who 
     turn 21 years of age while their applications are pending are 
     no longer considered children under the INA, and therefore 
     ``age out'' of eligibility to immigrate.
     Section 425  Temporary Administrative Relief
       This section provides temporary administrative relief to an 
     alien lawfully present on September 10, who was the spouse, 
     parent, or child of someone killed or disabled by the 
     terrorist attacks and otherwise not entitled to relief.
     Section 426  Evidence of Death, Disability, or Loss 
         Employment
       This section directs the Attorney General to establish 
     evidentiary standards regarding on constitutes death, 
     disability, or loss of employment ``as a direct result'' of 
     the terrorist attacks. Regulations are not required to 
     implement the provisions of this subtitle.
     Section 427  No Benefit to Terrorists or Family Members of 
         Terrorists
       No benefit under this subtitle will be provided to anyone 
     involved in the terrorist attacks on September 11 or to any 
     family member of such an individual.
     Section 428  Definitions
       The term `specified terrorist activity' means any terrorist 
     activity conducted against the United States, its government, 
     or its people of the United States on September 11, 2001.

                               title viii

  Mr. GRAHAM. Mr. President, several provisions of title VIII would 
establish criminal prohibitions or expand existing criminal laws to 
deter terrorist conduct. My understanding is that the Senate certainly 
does not intend title VIII to criminalize otherwise lawful and 
authorized United States Government activities. Would the Senator 
confirm my understanding of the intent and effect of title VIII?
  Mr. LEAHY. The Senator's understanding is absolutely correct. Unless 
expressly provided, none of the general restrictions in title VIII are 
intended to criminalize lawful and authorized United States Government 
activities.
  Mr. BIDEN. Mr. President, 6 years ago I stood on this floor and 
called upon the Senate to join the fight against terrorism in the wake 
of the horrific bombing in Oklahoma City. Back then some argued 
terrorism was something that usually happened far away, in distant 
lands, over distant conflicts. Well, that's all changed.
  Terrorism has come to America.
  We have to be a little proactive now. Back then, I proposed a series 
of precise anti-terrorism tools to help law enforcement catch 
terrorists before they commit their deadly act, not ever imagining the 
events of September 11.
  In particular, I said that it simply did not make sense that many of 
our law enforcement tools were not available for terrorism cases.
  For example, the FBI could get a wiretap to investigate the mafia, 
but they could not get one to investigate terrorists. To put it 
bluntly, that was crazy! What's good for the mob should be good for 
terrorists.
  Anyway, some of my proposals were enacted into law in 1996, a number 
were not.
  There were those who decided that the threat to Americans was 
apparently not serious enough to give the President all the changes in 
law be requested.
  Today, 5 years later, I again call on my colleagues to provide law 
enforcement with a number of the tools which they declined to pass back 
then. The anti-terrorism bill we consider today is measured and 
prudent. It has been strengthened considerably since the Administration 
originally proposed it in mid-September. It takes a number of important 
steps in waging an effective war on terrorism.
  It allows law enforcement to keep up with the modern technology these 
terrorists are using. The bill contains several provisions which are 
identical or nearly identical to those I previously proposed.
  For example: it allows the FBI to get wiretaps to investigate 
terrorists, just like they do for the Mafia or for drug kingpins; it 
allows the FBI to get a roving wiretap to investigate terrorists--so 
they can follow a particular suspect, regardless of how many different 
forms of communication that person uses; and it allows terrorists to be 
charged with Federal ``racketeering offenses,'' serious criminal 
charges available against organizations which engage in criminal 
conduct as a group, for their crimes.
  I am pleased that the final version of the bill we are considering 
today contains three provisions that I fought for.
  First, section 613 incorporates a bill that Senator Hatch and I 
introduced earlier this year, S. 899. Named in honor of Delaware State 
trooper Francis Collender, who was tragically killed while on a traffic 
stop in Odessa, DE this past February, S. 899 and section 613 of this 
bill will raise the one-time death benefit paid to the families of 
slain or permanently disabled law enforcement officers. For too long, 
this benefit has stood at $100,000. It was indexed for inflation and 
currently stands at $151,000, but even this is far too low for the 
families of these heroes to make ends meet. The bill we consider today 
raises this benefit to $250,000, continues to index it for inflation, 
and makes it applicable to the family of any law enforcement or fire 
personnel who lost their life on or after January 1, 2001. It's the 
least we can do for the Collender family, the least we can do for the 
hundreds of families who tragically lost a loved one on September 11, 
and I'm grateful my colleagues have agreed we need to include my bill 
in this larger anti-terrorism bill today.
  Second, section 817 is based on legislation I introduced in the 106th 
Congress, S. 3202. It may shock my colleagues that under current law, 
anyone, including convicted felons, fugitives, and aliens from 
terrorist-sponsoring states, can possess anthrax or other biological 
agents. And under current law, the FBI has no tool at its disposal to 
charge someone with possession of anthrax. Possession of anthrax, or 
any other dangerous biological agent, is legal, unless the FBI can make 
a case that the suspect intended to use the agent as a weapon. This far 
too high a hurdle for our investigators to overcome in many cases, and 
indeed the FBI has informed me it has hindered several of their past 
bioweapons investigations. Section 817 closes this loophole. It 
prohibits certain classes of individuals, felons, illegal aliens, 
fugitives and others, from ever possessing these dangerous biological 
agents. And for everyone else, my provision says you need to be able to 
show you possessed this stuff with a peaceful or

[[Page S11049]]

bona fide research reason. If not, you're going to be charged with a 
felony and you face up to ten years in Federal prison.

  Finally, section 1005 of this bill incorporates my First Responders 
Assistance Act. I have spoken with too many local police officers, 
chiefs, firemen and women, and others who feel left out of our fight 
against terrorism. I commend FBI Director Mueller for recently pledging 
to do a better job sharing information with our State and local law 
enforcement people, but clearly more needs to be done. Who responds 
first to a terrorist incident? On September 11 it was the New York City 
and Arlington County, VA police and fire departments. That's always 
going to be the case, local law enforcement is our first line of 
defense against terrorists, and we need to give them the tools they 
need to get that job done well.
  My provision will, for the first time, give State and local 
enforcement and fire personnel the opportunity to apply directly to the 
Justice Department to receive terrorism prevention assistance. 
Specifically, departments will now be able to get help purchasing gas 
masks, hazardous material suits, intelligence-gathering equipment, 
twenty-first century communications devices and other tools to help 
them respond to terrorist threats. This section also creates a new 
anti-terrorism training grant program that will fund seminars and other 
training sessions to help local police departments better analyze 
intelligence information they come across, help local fire departments 
acquire the knowledge they need to respond to critical incidents, and 
assist those agencies who may be called upon to stabilize a community 
after a terrorist incident. It is my intent that these funds go to 
professional law enforcement organizations who are in some instances 
already delivering this type of training. The Department of Justice's 
Office for Domestic Preparedness does some of this, but their program 
is a block grant sent to the Governor. I want to involve local police 
and fire departments directly in the fight against terrorism, and this 
section is an important step towards meeting that goal. The funds 
authorized, $100 million over the next four years, may not be enough to 
get the job done, but it's a good start. I thank the Police Executives 
Research Forum for working with me to craft this proposal, and I look 
forward to seeing significant dollars allocated to it in future 
spending bills.
  So this bill contains many provisions critical to law enforcement. 
Some may say it doesn't go far enough.
  I have to say, I was disappointed that the Administration dropped 
some proposals from an early draft of its bill, measures which I called 
for five years ago. Those measures are not in the bill we consider 
today, but I continue to believe that they're common-sense tools we 
ought to be giving to our men and women of law enforcement.
  We should be extending 48-hour emergency wiretaps and pen-registers, 
caller-ID-type devices that track incoming and outgoing phone calls 
from suspects, to terrorism crimes. This would allow police, in an 
emergency situation, to immediately obtain a surveillance order against 
a terrorist, provided the police go to a judge within 48 hours and show 
that they had the right to get the wiretap and that emergency 
circumstances prevented them from going to the judge in the first 
place. Now, this emergency tool is available only for organized crime 
cases and the bill we consider today does not expand this power to 
terrorist investigations.
  We should be extending the Supreme Court's ``good faith'' exception 
to wiretaps. This well-accepted doctrine prevents criminals in other 
types of offenses from going free when the police make an honest 
mistake in seizing evidence or statements from a suspect. We should 
apply this good faith exception to terrorist crimes as well, to prevent 
terrorists from getting away when the police make an honest mistake in 
obtaining a wiretap.
  I'm pleased Chairman Leahy and the Administration were able to reach 
consensus on the two areas which gave me some pause in the 
Administration's original proposal: those provisions dealing with 
mandatory detention of illegal aliens and with greater information 
sharing between the intelligence and law enforcement communities.
  The agreement reached has satisfied me that these provisions will not 
upset the balance between strong law enforcement and protection of our 
valued civil liberties.
  This bill is not perfect. No one here claims it embodies all the 
answers to the question of how best to fight terrorism. But I am 
confident that by updating our surveillance laws, by taking terrorism 
as seriously as we do organized crime, and by recognizing the important 
role state and local law enforcement has to play in this campaign, that 
we are taking a step in the right direction by passing this bill today.


                             Antiterrorism

  Mr. KYL. Mr. President, I rise in strong support of the anti-
terrorism bill. The bill will provide our Nation's law-enforcement 
personnel with important tools to more effectively investigate and 
prevent further attacks against the people of the United States.
  At the outset, I want to make clear that we did not rush to pass ill-
conceived legislation.
  During the past two Congresses, when I chaired the Judiciary 
Committee's Subcommittee on Technology and Terrorism, the Subcommittee 
held 19 hearings on terrorism. I want to repeat that: 19. The witnesses 
who appeared before the Subcommittee included the then-Director of the 
FBI Louis Freeh and representatives of all three of the 
congressionally-mandated commissions on terrorism that have issued 
reports over the last two years. Additional hearings on terrorism were 
held by the full Judiciary Committee and by other committees.
  Many of the provisions proposed by the Attorney General, and included 
in the legislation we sent to the President today, mirror the 
recommendations of one or more of the major terrorism commissions and 
have already been examined by the committee of jurisdiction. In fact, 
some of these provisions had already been voted on and passed by the 
Senate in other legislation.
  Indeed, as I will discuss more fully in a minute, the language sent 
forward by the Attorney General to establish nationwide trap and trace 
authority was included in the Hatch-Feinstein-Kyl Amendment to the 
recently passed Commerce, Justice, State Appropriations bill. Much of 
the remaining language in that amendment was included in the 
Counterterrorism Act of 2000, which the Senate passed last fall, after 
a terrorist attack on the U.S.S. Cole killed 17 American sailors and 
injured another 39. That bill was based on recommendations of the 
bipartisan, congressionally-mandated National Commission on Terrorism, 
known as the Bremmer Commission, which was established in 1998 in 
response to the embassy bombings in Tanzania and Kenya.
  One particularly important provision, which was included in both the 
CJS bill and the current bill, updates the law to keep pace with 
technology. The provision on pen registers and trap and trace devices: 
one, would allow judges to enter pen/trap orders with nationwide scope; 
and two, would codify current case law that holds that pen/trap orders 
apply to modern communication technologies such as e-mail and the 
Internet, in addition to traditional phone lines.
  Nationwide jurisdiction for a court order will help law-enforcement 
to quickly identify other members of a criminal organization such as a 
terrorist cell. Indeed, last year Director Freeh testified before the 
Terrorism Subcommittee that one of the problems law-enforcement faces 
is ``the jurisdictional limitation of pen registers and trap-and-trace 
orders issued by federal courts.''
  He continued: ``Today's electronic crimes, which occur at the speed 
of light, cannot be effectively investigated with procedural devices 
forged in the last millennium during the infancy of the information 
technology age.''
  Prior to the legislation we passed today, in order to track a 
communication that was purposely routed through Internet Service 
Providers located in different States, law-enforcement was required to 
obtain multiple court orders. This is because, under existing law, a 
Federal court can order only those communications carriers within its 
district to provide tracing information to law enforcement.

[[Page S11050]]

  According to Director Freeh's testimony before the Terrorism 
Subcommittee, ``As a result of the fact that investigators typically 
have to apply for numerous court orders to trace a single 
communication, there is a needless waste of time and resources, and a 
number of important investigations are either hampered or derailed 
entirely in those instances where law enforcement gets to a 
communications carrier after that carrier has already discarded the 
necessary information.''
  This bill solves the problem.
  I would also like to address another important provision.
  The bill will more clearly to criminalize the possession of 
biological and toxin agents by those who should not possess them. The 
bill would amend the implementing legislation for the 1972 ``Convention 
on the Prohibition of the Development, Production, and Stockpiling of 
Bacteriological, Biological, and Toxin Weapons and on their 
Destruction,'' BWC. Article I of the BWC prohibits the development, 
production, stockpiling, acquisition, or retention of Microbial or 
other biological agents, or toxins, whatever their origin or method of 
production, of types and in quantities that have no justification for 
prophylactic, protective, or other peaceful purposes. It is not the 
intent of the BWC, nor is it the intent of Section 802, to prevent the 
legitimate application of biological agents or toxins for prophylactic, 
protective, bona fide research, or other peaceful purposes. These 
purposes include, inter alia, medical and national health activities, 
and such national security activities as may include the confiscation, 
securing, and/or destruction of possible illegal biological substances.
  In addition to the other provisions in this anti-terrorism 
legislation that will provide our law enforcement communities with the 
tools to weed out and stop terrorism, I want to express my support for 
the immigration provisions upon which the administration, key members 
of the House Judiciary Committee, Senators Hatch, Kennedy, Leahy and I 
have reached agreement, and which are included in this bill.
  We must not forget, however, that the United States will continue to 
face overwhelming infrastructure and personnel needs at our consular 
offices abroad, along both the southern and northern border, and in our 
immigration offices throughout the United States. And, in addition to 
the provisions included in this anti-terrorism bill, the U.S. 
government will need additional tools to keep terrorists out of the 
country and, once they are in the country, find them and remove them. 
That means, among other things, eliminating the ability of terrorists 
to present altered international documents, and improving the 
dissemination of information about suspected terrorists to all 
appropriate agencies. After hearing first-hand about the extraordinary 
weaknesses of our immigration and visa processing systems, Senate 
Judiciary Terrorism Subcommittee Chairwoman Dianne Feinstein and I will 
soon introduce legislation to better equip our government with the 
tools necessary to make our immigration and visa processing systems 
more secure.
  With that said, the anti-terrorism bill will certainly provide a 
better legal framework for keeping foreign terrorists out of the United 
States, and detaining them should they enter.
  First, this anti-terrorism bill clarifies that the Federal Bureau of 
Investigation is authorized to share data from its ``most wanted 
list,'' and any other information contained in its national crime-
information system, with the Immigration Naturalization Service and the 
State Department. This will help the INS and State Department identify 
suspected terrorists before they come to the United States, and, should 
they gain entry, will help track them down on our soil. It also allows 
the State Department, during a U.S. criminal investigation, to give 
foreign governments information on a case-by-case basis about the 
issuance or refusal to issue a U.S. visa.
  The bill will also clarify U.S. law prohibiting the entry of, and 
requiring the removal of, individual alien terrorists. It will probably 
surprise the Members of this body a great deal to know that, under 
current law, a terrorist alien is not considered either inadmissible 
to, or deportable from, the United States even if he or she has 
``endorsed or espoused terrorist activity that undermines the efforts 
of the United States to fight terrorism,'' or has provided ``material 
support to a terrorist organization.'' Nor is an individual deportable 
for being a ``representative of a terrorist organization.'' The anti- 
terrorism bill makes it clear to U.S. officials considering whether to 
allow someone to come to the country, that a person meeting any one of 
these criteria is not welcome to come here. Although the final bill 
prohibits admission of individuals who have endorsed terrorism or are 
representatives of a terrorist organization, neither of those criteria 
will make such an individual deportable. I will work to make it clear 
that such criteria are deportable.

  In addition, the anti-terrorism package that we are debating today 
further defines what is considered by the United States to be a 
terrorist organization. Under current law, a terrorist organization 
must be designated by the Secretary of State under Section 219 of the 
Immigration and Nationality Act. This process can take several months, 
and has been criticized by some experts as potentially politically 
corruptible. Under this final package, Section 219 designations will 
remain in effect. A separate designation process is added, whereby an 
organization can be designated by the Secretary of State or the 
Attorney General, in consultation with each other, with seven days' 
notice to the leadership of the House and Senate and the congressional 
committees of jurisdiction. Additionally, an organization, whether or 
not it is formally designated by the Secretary of State or the Attorney 
General, can be considered to be terrorist if it is made up of two or 
more individuals who commit or plan to commit terrorist activities.
  This anti-terrorism package also has provisions regarding temporary 
detention. It allows for the temporary detention of aliens who the 
Attorney General certifies that he has ``reasonable grounds to believe 
is inadmissible or deportable under the terrorism grounds.'' This 
compromise represents a bipartisan understanding that the Attorney 
General of the United States needs the flexibility to detain suspected 
terrorists. Under the compromise that Members have reached, the 
Attorney General must charge an alien with a deportable violation or he 
must release the alien. In this final version, if the charge is not 
sustained, or if withholding of deportation is granted by an 
immigration judge then the alien must be released. In addition, the 
underlying certification, and all collateral matters, can be reviewed 
by any U.S. District Court and any appeals can be heard by U.S. Appeals 
Court for the District of Columbia. The Attorney General, under this 
final version, is required to review all individual certifications 
every six months, and any alien certified can ask that the Attorney 
General review the case.
  Finally, this package will determine whether ``consular shopping,'' 
i.e. someone has a visa application pending from his or her home 
country, but goes to another country for adjudication, is a problem. If 
so, the Secretary of State must recommend ways to remedy it. Another 
provision prevents countries that do not have machine-readable 
passports from participating in the Visa Waiver Program, although the 
Secretary of State is allowed to provide a waiver for countries that do 
not provide such passports. I do not support the waiver authority, but 
am pleased that the overall requirement is included. Another provision 
authorizes $36.8 million for quick implementation of the INS foreign 
student tracking system, a program that I have repeatedly urged be 
implemented. The final package also includes relief for immigrants, who 
but for the tragic events of September 11, are here legally and could 
now lose their legal status.
  As former chairman and now ranking Republican of the Judiciary 
Committee's Terrorism Subcommittee, I have long suggested, and strongly 
supported, many of the anti-terrorism and immigration initiatives now 
being advocated by Republicans and Democrats alike. In my sadness about 
the overwhelming and tragic events that took thousands of precious 
lives, I am resolved to push forward to make the United States a safer 
place for its millions of law-abiding citizens and legal immigrants. 
That means delivering justice to those who are responsible for

[[Page S11051]]

the lives lost on September 11, and reorganizing our institutions of 
government so that the law-abiding can continue to live their lives in 
freedom.
  Finally, let me address briefly the concern voiced by some that we 
are in danger of ``trampling civil liberties.'' I reiterate that we did 
not rush, that we have had thorough, deliberative hearings, and that 
many of the proposals within this bill have already been passed by the 
Senate. Nothing in the current bill impinges on civil liberties. The 
bill will give Federal agencies fighting terrorism the same tools we 
have given those fighting illicit drugs, or even postal fraud. Many of 
the tools in the bill are modernizations of the criminal law, 
necessitated by the advent of the Internet.
  While some of these tools are extremely helpful in terrorism 
investigations, it makes no sense to refuse to apply these common sense 
changes to other crimes that are committed, like kidnaping, drug 
dealing, and child pornography. It is unwise to limit these tools to 
only terrorism offenses because often, at the outset of an 
investigation of a particular person or crime, law enforcement does not 
know what you are dealing with. A credit-card fraud case or a false 
immigration documents case may turn out to be connected to funding or 
facilitating the operations of a terrorist group. We should give law 
enforcement the tools it needs to have the best chance of discovering 
and disrupting these activities.
  We have a responsibility to the people of this nation to ensure that 
those who are charged with protecting us from future terrorist attacks 
are empowered to do so. This is not a zero sum game. We can both ensure 
our security and protect our liberties.
  We cannot afford to lose this race against terror, and we cannot 
afford to give the enemy in this war a full lap head-start. I support 
this bill. I commend President Bush and General Ashcroft for submitting 
a sound proposal to the Senate, and for their tremendous efforts during 
the past month.


                              section 1012

  Mr. HOLLINGS. I have a number of questions about the substance, scope 
and procedure of section 1012 of the USA PATRIOT Act of 2001. I am 
concerned that there are some significant issues which this provision 
has not addressed, notwithstanding its noble intentions. Would the 
gentleman be able to clarify some of these issues for me?
  Mr. LEAHY. I will do my best to clarify the intent and operation of 
this section for the gentleman.
  Mr. HOLLINGS. Would the gentleman please explain how the Secretary of 
DOT will determine whether an individual seeking an original or renewed 
license presents a security risk?
  Mr. LEAHY. The Secretary will rely upon the background records check 
to be done by the Justice Department. Any further analysis to be done 
by the Secretary on this issue should be explained following a 
Congressional directive to do so, in regulations issued by the 
Secretary for notice and comment.
  Mr. HOLLINGS. Does the section make clear what standards will be 
applied to determine if a security risk is presented by an individual?
  Mr. LEAHY. At this time the section does not and that matter should 
be clarified in subsequent legislation.
  Mr. HOLLINGS. I am concerned that the review process could be delayed 
and a person seeking renewal of a hazmat license could be unable to 
work due to matters beyond his or her control.
  Mr. LEAHY. The gentleman is correct. Regulations need to be issued by 
the Secretary specifying time periods and making it clear that delays 
not due to the applicant should not force him to be out of work and 
that his existing hazmat license will remain in effect pending 
completion of the security risk review process.
  Mr. HOLLINGS. I am troubled by the lack of due process protections 
for the applicant. What is the gentleman's opinion on this subject?
  Mr. LEAHY. I agree with the gentleman. The section needs to be 
clarified by legislation and regulations issued making clear that any 
applicant denied a hazmat license because of a security risk will be 
advised of the reasons for such denial and given an opportunity to 
present any comments he or she deems appropriate. We need to provide 
the applicant with a right to challenge the Secretary's decision and 
insure due process is protected.
  Mr. HOLLINGS. Finally, isn't there a concern that foreign drivers 
transporting hazmat present an equal, if not a greater, security risk 
than that presented by U.S. drivers? If so, how will we deal with 
foreign drivers because they do not appear to be covered by section 
1012.
  Mr. LEAHY. I fully agree with the gentleman. The legislation must 
address foreign drivers to cover adequately the security risks 
applicable to hazmat transportation.
  Mr. THURMOND. Mr. President, the September 11 terrorist attack has 
brought to the forefront numerous flaws in how we control and manage 
immigration in this country. It is now clear that the control of our 
borders has become a matter of national security.
  Let me first state that I have no doubt that most aliens who enter 
this country are innocent, hard-working people who make important 
contributions to our society. America can continue our tradition of 
supporting reasonable legal immigration, but I am concerned that we are 
allowing illegal immigration to get out of control.
  According to the most recent census data, there are at least 7 and 
possibly as many as 8 million illegal aliens in the United States. The 
number has at least doubled just since 1990. This trend is very 
troubling and has to be reversed. We must do more to stop illegal 
aliens from entering our country, and we must do more to deport those 
who are already here illegally. Our previous efforts, such as the 1996 
Immigration Act, have proven to be inadequate.
  This is not only a matter of upholding our laws, it is a matter of 
maintaining the safety and security of our country. We do not even know 
how some of the September 11 hijackers got into the country. This is 
not acceptable. We must do more to track and keep out those who wish to 
harm our country and terrorize our citizens.
  The Antiterrorism Act we are considering today contains some reforms 
in this area and is a step in the right direction. It expands the 
number of Border Patrol agents, INS inspectors, and Customs agents 
along the Northern Border. Also, it provides for greater data-sharing, 
including giving the INS easier access to the criminal history 
information contained in the NCIC database. Moreover, it grants the 
Attorney General greater authority to detain those who may be involved 
in terrorist activity, although we should continue to review this issue 
and grant the Attorney General greater power in the future.
  In addition to immigration, this bill contains other crucial reforms 
that will update our wiretapping laws and allow greater sharing of 
intelligence and law enforcement information. I strongly supported this 
bill during Judiciary Committee hearings, including in one hearing in 
the Constitution Subcommittee of which I am Ranking Member. I am 
pleased that we are finalizing this bill today.
  However, this bill is only a beginning. It is a move in the right 
direction, not an end in itself. Much more needs to be done to protect 
our nation from illegal immigration.
  I believe one important measure could be to return to annual 
registration for immigrants who are in the United States. Requiring 
immigrants to register each year would help the INS keep track of where 
immigrants are in the United States, and whether they have overstayed 
their visas. In addition, it would benefit aliens by helping them prove 
how long they have been in the United States.
  An alien registration system existed before 1981. However, the system 
became inactive at that time due to lack of funds and administrative 
difficulties. I think the time has come to reconsider this program. 
Recent technology, such as scanners, can help address some of the 
record-keeping problems that harmed the old system.
  There are many other reform possibilities. Currently, when an alien 
commits a crime in the United States and is ordered deported, some home 
countries refuse to take him back. This creates huge difficulties for 
us, especially when the alien has completed his prison sentence. I 
believe the United States should respond in kind by not granting visas 
to countries that have such a policy. This would encourage

[[Page S11052]]

countries to live up to their responsibilities. Also, we need to look 
into expanding the use of identification cards for aliens, including 
more fingerprinting.
  The antiterrorism bill demonstrates that the Congress is committed to 
addressing the problems we face regarding immigration. I look forward 
to working with my colleagues to continue our important work in this 
area. It must remain a top priority. We should not rest until we have 
illegal immigration under control in this country.
  Ms. SNOWE. Mr. President, I rise today in support of the anti-
terrorism legislation we have before us, the USA PATRIOT Act. I 
supported the Senate bill when it passed 2 weeks ago, and this bill--
which was overwhelmingly passed by the House yesterday--retains key 
provisions that give our Government the tools it needs to combat 
terrorism.
  One of the key issues during the House-Senate negotiations was that 
of the so-called ``sunset.'' While the Senate-passed bill ensured these 
provisions would remain in effect as long as necessary, the House voted 
to suspend the bill's provisions in 5 years. Ultimately, the bill 
before us today includes a four year sunset. While I believe the 
provisions of this bill will be needed to combat terrorism beyond 4 
years, it is fair to say Congress should review the provisions and make 
an assessment of their effectiveness in 4 years.
  Let me also say I am pleased to have worked in conjunction with 
Senator Bond and Senator Conrad in supporting the Visa Integrity and 
Security Act. This bill addresses many of the concerns we raised, such 
as the importance of information sharing among government law 
enforcement and intelligence agencies with the State Department and 
tightening tracking controls on those entering the U.S. on student 
visas, including those attending flight schools. These are critical 
issues, and I commend both Senators for their efforts, and I am pleased 
the bill before us contains provisions from this bill on information 
sharing and the use of biometric technology for the entry and exit of 
aliens.
  With this legislation, we take reasonable, constitutional steps to 
enhance electronic and other forms of surveillance, without trampling 
on the rights of Americans. We will also institute critical measures to 
increase information sharing by mandating access to the FBI's National 
Crime Information Center, or NCIC, by the State Department and INS.
  Incredibly, while intelligence is frequently exchanged, no law 
requires agencies like the FBI and CIA to share information on 
dangerous aliens with the State Department or INS. While I am pleased 
the bill before us ensures information sharing between the FBI, State 
Department and INS, I believe it does not go far enough as other 
crucial agencies, such as the DEA, CIA, or DoD, that may have 
information the State Department and INS need, but are still not 
required to share information. In short, by only providing access to 
the FBI's NCIC system, we are not summoning the sum total of U.S. 
Government information on individual aliens which is now needed in our 
war on terrorism.
  I saw firsthand the consequences of serious inadequacies in 
coordination and communication during my 12 years as ranking member of 
the House Foreign Affairs International Operations Subcommittee and 
chair of the subcommittee's Senate counterpart.
  Access to the FBI's NCIC system by the State Department is a first 
step, and one that I advocated in 1993, after the Justice Department 
ruled that because the State Department was not a ``law enforcement 
agency,'' it no longer had free access to the NCIC. Tellingly, after 
ruling, the visa denial rate for past criminal activities plunged a 
remarkable 45 percent--stark evidence that we can't afford to tie the 
hands of America's overseas line of defense against terrorism.
  Although my legislation designated the State Department a ``law 
enforcement agency'' for purposes of accessing the NCIC when processing 
any visa application, whether immigrant or non-immigrant, a revised 
provision enacted in 1994 only provided the State Department with free 
access for purposes of processing immigrant visas--dropping my 
requirement for non-immigrant visas eventually used by all 19 suspected 
hijackers. Even that limited law was sunsetted in 1997 with a brief 6-
month extension to 1998.
  Currently, U.S. posts check the lookout database called the Consular 
Lookout and Support System--Enhanced, or CLASS-E, prior to issuing any 
visa. CLASS-E contains approximately 5.7 million records, most of which 
originate with U.S. embassies and consulates abroad through the visa 
application process. The INS, DEA, Department of Justice, and other 
federal agencies also contribute lookouts to the system, however, this 
is voluntary.
  To further fortify our front-line defenses against terrorism--to turn 
back terrorists at their point of origin--information sharing should be 
mandatory, not voluntary. That is why I introduced a bill that would 
require that law enforcement and the intelligence community share 
information with the State Department and INS for the purpose of 
issuing visas and permitting entry into the U.S. And while my bill 
would have gone farther than the legislation before us, by including 
the DEA, CIA, Customs and the Department of Defense in the mandated 
information-sharing network, I am pleased that this bill we are 
considering at least mandates access to the NCIC by INS and the State 
Department.

  The bottom line is, if knowledge is power, we are only as strong as 
the weakest link in our information network. Therefore, we must ensure 
that the only ``turf war'' will be the one to protect American turf.
  Another important issue is that of verifying the identity of a visa 
holder. Once a visa is issued at the point of origin, we should be 
ensuring that it is the same person who shows up at the point of entry. 
The fact is, we don't know how many, if any, of the 19 terrorists 
implicated in the September 11 attacks entered the U.S. on visas that 
were actually issued to someone else.
  Currently, once a visa is issued by the State Department, it then 
falls to INS officials at a port-of-entry to determine whether to grant 
entry. The problem is, no automated system is utilized to ensure that 
the person holding the visa is actually the person who was issued the 
visa. In other words, the INS official has to rely solely on the 
identification documents the person seeking entry is carrying--making 
that official's job that much more difficult.
  There is a better way, and legislation I introduced would require the 
establishment of a fingerprint-based check system to be used by State 
and INS to verify that the person who received the visa is the same 
person at the border crossing station trying to enter the country.
  Simply put, it requires the State Department and INS to jointly 
create an electronic database which stores fingerprints, and that other 
agencies may use as well. When a foreign national receives a visa, a 
fingerprint is taken, which then is matched against the fingerprint 
taken by INS upon entry to the U.S. This is a common sense approach 
that would take us one step closer to minimizing the threat and 
maximizing our national security.
  The fact of the matter is fingerprint technology, one part of the 
larger category of biological factors that can be used for 
identification known as biometrics, is not new. In fact, the U.S. 
Government has already employed biometrics to verify identities at 
military and secret facilities, at ports-of-entry, and for airport 
security, among many others.
  The bill before us includes a provision that requires the Attorney 
General to report on the feasibility of enhancing the FBI's Integrated 
Automated Fingerprint Identification System (IAFIS) or other 
identification systems to identify visa holders who may be wanted in a 
criminal investigation in the U.S. or abroad before they are issued a 
visa or permitted entry or exit to the U.S.
  This surely doesn't sound all that much different than the 
legislation I have proposed. I am pleased this bill at least starts us 
down the road toward implementing biometric technologies, and I hope 
this can be achieved as soon as possible.
  Although I would prefer an even stronger bill and indeed worked 
toward the inclusion of measures that would have accomplished this 
goal, this legislation negotiated by the House and Senate is vital to 
our national security, and I am proud to support it. The

[[Page S11053]]

war on terrorism is a war on many fronts. Some of the battles will be 
great in scale, many will be notable by what is not seen and by what 
doesn't happen, namely, that individuals who pose a serious threat to 
this nation never see these shores and never set foot on our soil.
  Many of our greatest victories will be measured by the attacks that 
never happen, in battles we win before they ever have a name, in 
conflicts we prevent before they ever claim one American life. I hope 
we will pass and enact legislation that will help make that possible, 
and urge my colleagues to join me in supporting this bill.
  Mr. President, I ask unanimous consent to have printed in the Record 
an op-ed from The Bangor Daily News.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Bangor Daily News, Oct. 24, 2001]

 Homeland Security and the ``Three C's'': Coordination, Communication, 
                            and Cooperation

                   (By U.S. Senator Olympia J. Snow)

       This week, Congress is expected to send to the President 
     landmark legislation for a new era: a bill designed to bring 
     the full resources of the federal government to bear in our 
     war against terrorism. One of the most critical elements of 
     this anti-terrorism package--which also includes expanded 
     authority to hunt down and identify terrorist activity within 
     our own borders--addresses the ``Three C's'' that have been 
     lacking among those federal agencies that are integral to 
     preventing terrorism: coordination, communication, and 
     cooperation.
       Incredibly, there is no provisions of current law that 
     mandates State Department access to sources such as the FBI's 
     National Crime Information Center (NCIC). This system, which 
     maintains arrest and criminal information from a wide variety 
     of federal, state, and local sources as well as from Canada, 
     will be used by the State Department to deny visas to 
     dangerous aliens. Similar to legislation I introduced in 
     1993, the bill pending in conference will finally make such 
     information-sharing a requirement, and when combined with the 
     new Office of Homeland Security should help ensure that our 
     federal agencies are as united in the effort against 
     terrorism as the American people. I urged conferees to 
     further strengthen this requirement, so both State and the 
     Immigration and Naturalization Service (INS) have access to 
     the full range of information gathered by U.S. intelligence 
     and law enforcement agencies.
       During my twelve years as ranking member of the House 
     Foreign Affairs International Operations Subcommittee and 
     Chair of the subcommittee's Senate counterpart, I saw 
     firsthand why removing impediments to a cooperative federal 
     effort is a national imperative. Perhaps the most egregious 
     example came to light in our investigations into the comings-
     and-goings of radical Egyptian cleric Sheikh Omar Abdel 
     Rahman, mastermind of the 1993 World Trade Center bombing.
       Astoundingly, we found that in the period since 1987 when 
     Sheikh Rahman was placed on the State Department lookout 
     list, he entered and exited the U.S. five times totally 
     unimpeded. Even after the State Department formally revoked 
     his visa, INS granted him permanent residence status. When he 
     was finally caught on July 31, 1991, reentering the U.S., he 
     was immediately released back into U.S. society to allow him 
     to pursue a multi-year appeal process.
       Just as unbelievable is the fact that, even after the 1993 
     attack on the World Trade Center, membership in a terrorist 
     organization in and of itself--with the exception of the 
     PLO--was not sufficient grounds for visa denial. Rather, the 
     Immigration Act of 1990 required the government to prove that 
     an individual either was personally involved in a terrorist 
     act, or planning one. This absurd threshold made it almost 
     impossible to block individuals, such as Sheikh Rahman, from 
     entering the country legally. Legislation I introduced in 
     1993 removed that bureaucratic and legal obstacle--yet it 
     took nearly three more years to enact it as part of the Anti-
     Terrorism and Effective Death Penalty Act of 1996.
       Further, to respond to the trail of errors we uncovered, 
     provisions from my bill were enacted in a year later, in 
     1994, requiring modernization in the State Department's 
     antiquated microfiche ``lookout'' system to keep dangerous 
     aliens from entering the United States. Recognizing the need 
     to mate these new technologies with the need for the most 
     comprehensive, current and reliable information, the bill 
     also attempted to address the issue of access. Tellingly, 
     after the State Department lost free access to the NCIC 
     because of a 1990 Justice Department ruling that the State 
     Department was not a ``law enforcement agency'', the visa 
     denial rate for past criminal activities plunged a 
     remarkable 45 percent.
       Therefore, my 1993 bill also designated the State 
     Department a ``law enforcement agency'' for purposes of 
     accessing the NCIC as well as other FBI criminal records when 
     processing any visa application, whether immigrant or non-
     immigrant. Unfortunately, a revised provision also enacted in 
     1994 provided the State Department with free access to these 
     FBI resources only for purposes of processing immigrant 
     visas--dropping my requirement for non-immigrant visas 
     eventually used by all 19 of the suspected hijackers. Even 
     that limited law was allowed to expire, despite my 
     legislation enacted in 1996 repealing the requirement that 
     visa applicants be informed of the reason for a denial--a 
     provision that law enforcement agencies legitimately believed 
     could impede ongoing investigations, or reveal sources and 
     methods.
       Having introduced my own legislation after the attacks to 
     mandate information sharing among all agencies such as the 
     FBI, CIA, DEA, Customs, INS and the State Department, I would 
     have preferred that the recently-passed anti-terrorism bill 
     go even further. Nevertheless, re-instating State Department 
     access to the NCIC for both types of visas is a critical step 
     in ensuring that information sharing will no longer be 
     voluntary and ad hoc.
       To further fortify our front-line defenses against 
     terrorism and turn back terrorists at their point of origin, 
     I also proposed mandating information sharing by establishing 
     Terrorist Lookout Committees, comprised of the head of the 
     political section of each embassy and senior representatives 
     of all U.S. law enforcement and intelligence agencies. The 
     committees would be required to meet on a monthly basis to 
     review and submit names to the State Department for inclusion 
     in the visa lookout system. Unfortunately, Senators did not 
     reach agreement on amendments that could be added to the 
     anti-terrorism bill, so the package was ultimately passed 
     with no modifications. Consequently, I will continue to work 
     to pass this important measure separately.
       Clearly, the catastrophic events of September 11 have 
     catapulted us into a different era, and everything if forever 
     changed. We must move heaven and earth to remove the 
     impediments that keep us from maximizing our defense against 
     terrorism, and that means changing the prevailing system and 
     culture by re-focusing on the ``Three C's'' of coordination, 
     communication and cooperation. The bottom line is, if 
     knowledge is power, we are only as strong as the weakest link 
     in our information network--therefore, we must ensure that 
     the only ``turf war'' will be the one to protect American 
     turf. In our fight against terrorism, we can do no less.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I ask unanimous consent the time be divided 
equally between the distinguished chairman and myself.
  How much time remains?
  The PRESIDING OFFICER. Ten minutes for each side.
  Mr. HATCH. Mr. President, as we wind down the debate and move to 
final passage, I want to continue my acknowledgment of those who worked 
so hard and were instrumental in getting this legislation enacted. I 
start again by expressing my gratitude to Senators Kyl and Feinstein 
for their efforts. No Senators have worked harder over the past few 
years in such a bipartisan manner on terrorist missions. They have both 
done an excellent job. Also, Senators Bob Graham and Shelby, who 
cosponsored this legislation, deserve credit for significant 
contributions. In the Intelligence Committee, of course, Senator 
Sarbanes and Senator Phil Gramm are to be praised for the money 
laundering provisions of the package. They developed that in this bill. 
I credit the hard work of other fellow members of the Judiciary 
Committee; in particular, Senators Biden and Schumer, who have devoted 
their energy to several of these proposals. Their assistance was 
instrumental in shaping this final product.
  Next, I thank my dedicated staff and my chief counsel and staff 
director, Makan Delrahim, who has been instrumental in putting this 
bill together. I also thank my crime policy counsels on the Judiciary 
Committee: Jeff Taylor, whose background as a federal prosecutor was 
crucial in crafting the many technical provisions of this legislation, 
as well as Stuart Nash, another former federal prosecutor, and Leah 
Belaire, each of whom has brought invaluable expertise to this process; 
my lead immigration counsel, Dustin Pead, and our tireless legislative 
assistant, Brigham Cannon, each has provided critical assistance. I am 
also grateful to Elizabeth Maier on Senator Kyl's staff, David Neal on 
Senator Brownback's staff, and Esther Olavarria on Senator Kennedy's 
staff, for their input on the immigration provisions. I also extend our 
thanks to Sharon Prost, my former chief counsel who recently was 
appointed by President Bush to serve as a Federal appellate judge, for 
her wise counsel on this legislation.
  In addition, I personally thank our Chairman, Senator Leahy. I 
reserve that until the end. His staff deserve a lot of credit and I 
personally thank

[[Page S11054]]

them for their long hard hours. I thank personally his chief counsel 
and staff director, Bruce Cohen, and other members of his staff: Beryl 
Howell, Julie Katzman, Ed Barron, Ed Pagano, Tim Lynch, David James, 
and John Eliff, each of whose expertise I personally found invaluable. 
I am grateful to them for the many long hours they devoted to drafting 
this bill and helping ensure that our final product has strong 
bipartisan support. I enjoyed working with them and I certainly always 
enjoy working with Senator Leahy and appreciate the good things we were 
able to do.
  The Department of Justice has been of great assistance to us in 
putting this bill together. In particular, I would like to thank 
Attorney General John Ashcroft and his Deputy Larry Thompson for their 
wise counsel, their leadership, and their quick response to our many 
questions and concerns. Michael Chertoff, the Assistant Attorney 
General for the Criminal Division was a frequent participant in our 
meetings, as was Assistant Attorneys General Dan Bryant and Viet Dinh. 
Justice Department lawyers Jennifer Newstead, John Yoo, John Elwood, 
Pat O'Brien, and Carl Thorsen were also important and valuable 
participants in this process.

  The White House Counsel and Congressional Liaison staff provided 
essential contributions at all stages of this process. Judge Al 
Gonzales, the White House Counsel, provided key guidance with the help 
of his gifted staff, including Deputy White House Counsel Tim Flanagan 
and Associate Counsels Courtney Elwood, Brett Kavanaugh, and Brad 
Berenson.
  The White House Congressional Liaison office, together with the Vice 
President's office, worked nonstop to keep this process moving forward 
and were critically responsive to any requests the Senate had. Nick 
Calio, Ziad Ojakli, and Heather Wingate with the White House, and Nancy 
Dorn and Candy Wolff with the Vice President's office, deserve our 
gratitude for all the assistance they have given us.
  Finally, Mr. President, I must recognize the diligence and invaluable 
assistance provided by leadership staff on both sides of the aisle.
  Mark Childress and Andrea Larue with Majority Leader Daschle's 
office, and David Hoppe, Sharon Soderstrom, and John Mashburn with 
Senator Lott's office, all deserve our collective thanks. These 
dedicated professionals selflessly gave up their nights and weekends to 
facilitate passage of this final product. Also, I take special pride in 
thanking Stewart Verdery, who now works for Senator Nickles but 
previously worked on my Judiciary Committee staff, for his cooperation 
and assistance in this process.
  As we close debate on this legislation, I would like to note that the 
fundamental obligation of government is to protect our citizens from 
harm and every member of this Senate, by virtue of the sworn oath of 
the office we hold, must do everything in his or her power to ensure 
that the heinous attacks of September 11 are never repeated. We must 
never forget the more than 5,000 innocent men, women, and children who 
lost their lives on American soil some 6 weeks ago.
  I am grateful that I have been able to work on this matter with the 
distinguished Senator from Vermont. I am grateful we have been able to 
pull together, in a relatively short period of time, an antiterrorism 
bill that really is going to make a difference in all our lives. So I 
urge my colleagues' support for this important legislation, thank my 
colleagues for all their help.
  Mr. President. The Department of Justice has prepared an excellent 
and precise analysis of the legislation, with which I fully agree. I 
ask unanimous consent that the analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                Overview

       In the wake of the tragic, criminal act of violence 
     perpetrated against the United States on September 11, the 
     Bush Administration proposed legislation that would provide 
     the Department of Justice with the tools and resources 
     necessary to disrupt, weaken, and counter the infrastructure 
     of terrorist organizations, to prevent or thwart terrorist 
     attacks, and to punish or defeat in battle perpetrators of 
     terrorist acts.
       On October 24, the House passed a bill which contains a 
     substantial number of the key provisions originally requested 
     by the Administration. The Department of Justice strongly 
     supports this bill and urges the Senate to act quickly so 
     that these new authorities can be made available to 
     prosecutors and agents who are working around the clock to 
     prevent future attacks and to bring the perpetrators of 
     September 11 to justice.
       The events of September 11, 2001 demonstrate that terrorist 
     acts are perpetuated by expertly organized, highly 
     coordinated, and well financed organizations, operating 
     without regard to borders, to advance their agendas. The 
     fight against terrorism thus is both a war to defend the 
     security of our nation and our citizens against terrorism and 
     a unified criminal justice effort.
       Existing laws fail to provide our national security 
     authorities and law enforcement with certain critical tools 
     they need to fight and win the war against terrorism. Indeed, 
     we have tougher laws for fighting organized crime and drug 
     trafficking than for combating the threat of terrorism. For 
     example, technology has dramatically outpaced our statutes. 
     Many of our most important intelligence gathering laws were 
     enacted decades ago, in and for an era of rotary telephones. 
     Meanwhile, our enemies use e-mail, the Internet, mobile 
     communications and voice mail. Until Congress provides law 
     enforcement with the tools necessary to identify, dismantle 
     and punish terrorist organizations, we are fighting an uphill 
     battle.
       Making the fight against terrorism a national priority must 
     not and will not mean that the rights and freedoms guaranteed 
     to all Americans under the Constitution will become victims 
     of this war. In this law enforcement mission, as in all that 
     we undertake at the Department of Justice, the protection of 
     the rights and privacy of all Americans is the principle that 
     guides us--the outcome which, if not achieved, renders our 
     efforts meaningless.
       This new terrorist threat to Americans on our soil is a 
     turning point in America's history. It is a new challenge for 
     law enforcement. Our fight against terrorism is not solely or 
     primarily a criminal justice endeavor--it is defense of our 
     nation and its citizens. We cannot wait for terrorists to 
     strike to begin investigations and take action. We must 
     prevent first, and prosecute second. The anti-terrorism 
     proposals that have been submitted by the Administration and 
     considered by the House and Senate represent careful, 
     balanced, and long overdue improvements to our capacity to 
     combat terrorism.


                                Process

       The Administration reached bipartisan agreement with the 
     leadership of the House and Senate and the chairmen and 
     ranking members of the Senate and House Judiciary Committees 
     on a bill which was passed by the House on October 24 by an 
     overwhelming majority.
       The Department of Justice strongly supports this bill and 
     urges the Senate to act quickly so that these new authorities 
     can be made available to prosecutors and agents who are 
     working around the clock to prevent future attacks and to 
     bring the perpetrators of September 11 to justice. Although 
     the compromises reflected in specific provisions of the bill 
     do not in every case meet the Administration's original 
     goals, the bill does overall substantially achieve each and 
     every one of the Administration's objectives.


                  discussion on substantive provisions

        Enhancing domestic security against terrorism (title I)

       These provisions would provide new funding and structural 
     reforms in the fight against terrorism. A counterterrorism 
     fund would be established to address terrorism issues within 
     the Department of Justice with regard to investigations and 
     damage to components as a result of terrorism (Sec. 101); 
     discrimination against Arab and Muslim Americans is condemned 
     (Sec. 102); additional funding would be provided for the 
     FBI's technical support center (Sec. 103); the National 
     Electronic Crime Task Force Initiative would be expanded 
     (Sec. 105); and the military would be authorized to assist 
     state and local law enforcement in chemical weapons 
     emergencies (Sec. 104).
       The President's powers under the International Economic 
     Emergency Powers Act would be expanded in cases of military 
     hostilities and regarding the use of classified information 
     (Sec. 106). President Bush signed a new Executive Order under 
     the International Emergency Economic Powers Act (IEEPA) 
     blocking the assets of, and transactions with, terrorist 
     organizations and certain charitable, humanitarian, and 
     business organizations that finance or support terrorism. At 
     present, however, the President's powers are limited to 
     freezing assets and blocking transactions with such 
     individuals and entities. Starving terrorist organizations of 
     the funds that sustain them requires that we do more. When we 
     encounter drug traffickers, for instance, we don't just 
     freeze assets, we seize assets.

              Enhanced surveillance procedures (title II)

       These provisions of the bill address gaps in the coverage 
     of the federal electronic surveillance statutes (particularly 
     the wiretap statute, the pen registers and trap and trace 
     statute, and the Electronic Communications Privacy Act). The 
     key element that unites these provisions is the goal of 
     making the statutes technology-neutral: that is, ensuring 
     that the same existing authorities that apply to telephones, 
     for example, are made applicable to computers and use of e-
     mail on the Internet. It is critically important to

[[Page S11055]]

     note that in drafting these provisions, the Department's 
     goal was and remains ensuring that the scope of the 
     authority remains the same--in other words, that no more 
     or less information as is currently obtainable through a 
     particular device (for example, a pen register) on a 
     telephone, is obtainable from a computer.
       Law enforcement must have intelligence gathering tools that 
     match the pace and sophistication of the technology utilized 
     by terrorists. Critically, we also need the authority for law 
     enforcement to share vital information with our national 
     security and intelligence agencies in order to prevent future 
     terrorist attacks.
       Terrorist organizations increasingly take advantage of 
     technology to hide their communications from law enforcement. 
     Today's terrorist communications are carried over multiple 
     mobile phones and computer networks--frequently by multiple 
     telecommunications providers located in different 
     jurisdictions. To facilitate their criminal acts, terrorists 
     do not discriminate among different kinds of technology. 
     Regrettably, our intelligence gathering laws don't give law 
     enforcement the same flexibility.
       The bill creates a technology-neutral standard for 
     intelligence gathering, ensuring law enforcement's ability to 
     trace the communications of terrorists over mobile phones, 
     computer networks and any new technology that may be 
     developed in the coming years.
       We are not seeking changes in the protections in the law 
     for the privacy of law-abiding citizens. The bill would 
     streamline intelligence gathering procedures only. Except for 
     under those circumstances authorized by current law, the 
     content of communications would remain off-limits to 
     monitoring. The information captured by this technology-
     neutral standard would be limited to the kind of information 
     you might find in a phone bill, such as the phone numbers 
     dialed by a particular telephone.
       The Department strongly opposed the two-year ``sunset'' on 
     these critical provisions in the original House version of 
     the legislation. The President and the Attorney General have 
     stressed that the threat of terrorism will not ``sunset''; 
     rather the fight against terrorism will be a long struggle, 
     and law enforcement must have the necessary tools to fight 
     this war over the long term. However, law enforcement must 
     have these tools now. To calm fears of a permanent authority, 
     the bill now includes a four-year ``sunset'' provision for 
     several provisions as noted during the discussion of the 
     impacted provisions, at which time it is the Administration's 
     hope that these changes in surveillance law will be made 
     permanent.

   Foreign Intelligence Surveillance Act (FISA) amendments (title II)

       These provisions sharpen the tools used by the FBI, CIA, 
     and NSA for collecting intelligence on international 
     terrorists and other targets under FISA, 50 U.S.C. 
     Sec. Sec. 1801-63. The amendments in this area would enable 
     the agents and case officers of the FBI and CIA and the 
     analysts of NSA to respond more quickly and efficiently to 
     crises and to operational opportunities against terrorists 
     and other targets.

             Period of FISA Surveillance and Search Orders

       Problem: Currently, with limited exceptions, applications 
     to the FISA Court for its authorization to conduct electronic 
     surveillance and physical search must be renewed by the Court 
     every 90 and 45 days, respectively. Applications to the Court 
     for surveillance and search against foreign terrorists and 
     spies are noncontroversial but bog down the agencies and clog 
     the Court.
       Solution: The legislation would, for the conduct of 
     electronic surveillance and physical search against foreign 
     terrorists and spies, extend the duration of an approval 
     order to 120-days with extension possible for up to a year 
     for electronic surveillance and would extend the duration for 
     searches from 45 to 90 days. (Sec. 207). This provision would 
     sunset in four-years.

                         Multi-Point Authority

       Problem: Foreign terrorists and spies are trained to change 
     mobile or ground-line phones, hotel rooms, and restaurants in 
     order to defeat surveillance. Currently, to effect FISA 
     coverage at a new facility, DOJ must develop and draft a new 
     application, get it certified by the Director of FBI and 
     signed by the Attorney General, and find and present it to a 
     judge on the FISA Court. This delays or defeats our coverage 
     of these targets and impairs our ability to investigate and 
     detect terrorism and espionage.
       Solution: The bill would enable the FBI, in response to 
     such actions by FISA targets that thwart coverage (Sec. 206), 
     to serve an order on a previously unidentified vendor or 
     facility in order to maintain the coverage. Congress passed a 
     similar provision for Title III a few years ago. These 
     provisions will sunset in four years.

                  Mobility--Nationwide Search Warrants

       As communications technology now provides significant 
     mobility to its users, who can pass from jurisdiction to 
     jurisdiction in minutes, law enforcement and intelligence 
     officers need that same flexibility.
       The bill provides for nationwide search warrants for voice 
     mail (Sec. 209), e-mail (as long as the issuing court has 
     jurisdiction over the offense being investigated) (Sec. 220), 
     and in investigations involving terrorism (Sec. 219).

                    Foreign Intelligence Information

       Problem: Currently, as interpreted, the FISA requires that 
     the FBI Director or other senior official certify that the 
     collection of foreign intelligence is ``the purpose'' of 
     the FISA search or surveillance. As interpreted by the 
     FISA Court, that standard has hindered the Department's 
     ability to coordinate multi-faceted responses to 
     international terrorism, which involve foreign 
     intelligence and criminal investigations and equities.
       Solution: The bill would change this standard. The bill 
     would require certification that the collection of foreign 
     intelligence is ``a significant purpose,'' rather than ``the 
     purpose,'' of the FISA search or surveillance; however, this 
     provision is subject to the four-year sunset applicable to 
     several FISA provisions. (Sec. 218).

                Foreign Intelligence Information Sharing

       Problem: Currently, with few exceptions, criminal 
     investigators may not share grand jury or Title III 
     information with the intelligence agencies. Records obtained 
     through grand jury subpoenas and insights gained through 
     Title III remain inaccessible to agencies that need such 
     information in their operations and analysis.
       Solution: The bill would enable foreign intelligence 
     information obtained in a criminal investigation, including 
     information obtained through a grand jury or Title III, to be 
     shared with intelligence and other federal officers, subject 
     to the four-year sunset and would require the court to be 
     notified after any such information sharing occurs in the 
     case of grand jury information. (Sec. 203). In addition, the 
     Attorney General must establish procedures for the release of 
     information when it pertains to a case against a United 
     States citizen. Also, the FBI has been authorized to expedite 
     the hiring of translators capable of translating any 
     information gathered under these and other procedures 
     (Sec. 205).

       Pen Register: Business Records; National Security Letters

       Problem: The ability of the FBI to obtain basic records as 
     a part of an international terrorist or other intelligence 
     investigation has been hampered by cumbersome procedures 
     concerning pen registers, business records, and national 
     security letters. As the current investigation of flight 
     school records makes clear, our ability to gain quick access 
     to such information may be critical to an investigation.
       Solution: The legislation would enable the FBI to obtain 
     toll, business, and other records more efficiently by 
     eliminating the requirement of a showing that there is a 
     nexus to a foreign power, and applying a standard of 
     relevance to an intelligence or counterintelligence 
     investigation. This new standard is limited to protection 
     against international terrorism or clandestine intelligence 
     activities and may not be based solely on First Amendment 
     activities. (Sec. Sec. 214, 215, 216). Pen/trap provisions 
     would also now apply to Internet traffic, as well as 
     telephone communications, while excluding Internet Service 
     Providers (ISPs) and other entities complying with wiretap 
     orders from liability based on any surveillance under these 
     provisions. See also (Sec. Sec. 201, 202, expanding 
     predicates for obtaining surveillance authority). These 
     provisions are subject to the four-year sunset.

 Broadened Scope of Subpoenas for Records of Electronic Communications 
                         and Subscriber Records

       The bill would permit the disclosure of information such as 
     means of payment for electronic services, including bank 
     account and credit card numbers, pursuant to subpoena. The 
     bill would treat cable companies acting in their capacity of 
     providing Internet services the same as other ISPs and 
     telephone companies in this regard, removing them from the 
     protections of laws governing cable privacy, the intent of 
     which was and is to prevent disclosure of shows watched in 
     the privacy of one's home not benign information such as 
     account numbers and forms of payment. (Sec. 225). ISPs would 
     also be permitted under the bill to disclose information of 
     stored electronic communications where such communications 
     indicate a risk of immediate death or injury. (Sec. Sec. 210, 
     211, 212).

             Delayed Notice of Execution of Search Warrant

       The bill would permit delayed notice of execution of a 
     search warrant in criminal investigations, for a reasonable 
     time thereafter, where notice of the execution would have an 
     adverse result. (Sec. 213).

 International Money Laundering Abatement and Anti-Terrorist Financing 
                        Act of 2001 (title III)

       Title III of the bill is designed to impede the financing 
     of terrorist activities. It accomplishes that goal by 
     allowing the government to confiscate the assets of foreign 
     terrorist organizations, the terrorists themselves and those 
     who aid them. In addition, it allows the United States 
     government to restrain those assets after indictment but 
     before any final adjudication to ensure those assets are 
     available to satisfy a judgment of forfeiture.
       Law enforcement must be able to ``follow the money'' in 
     order to identify and neutralize terrorist networks.
       The bill gives law enforcement the ability to seize the 
     assets of terrorist organizations. In addition, criminal 
     liability is imposed on those who knowingly engage in 
     financial transactions--money laundering--involving the 
     proceeds of terrorist acts. In addition, financial 
     institutions are encouraged to participate in this endeavor 
     by providing civil

[[Page S11056]]

     liability immunity to financial institutions that disclose 
     suspicious activity. (Sec. 314). The bill further includes 
     financial institutions in this endeavor by requiring them to 
     have anti-money laundering programs. (Sec. Sec. 314, 352).
       The bill would expand the scope of predicate money 
     laundering offenses to include providing material support for 
     terrorist organizations. (Sec. 301). These offenses would 
     further not be limited to conduct occurring within the United 
     States, as long as the tools of the offense are in or passed 
     through the United States. (Sec. Sec. 302, 377).
       Various common banking problems are also addressed in the 
     bill, such as shell banks, correspondent accounts, and 
     concentration accounts. (Sec. Sec. 312, 313, 325). Treasury 
     would be authorized to order special measures be taken by 
     financial institutions where they are involved in such 
     accounts or other primary money laundering concerns. 
     (Sec. 311). Information would be made available as to such 
     crucial facts as the beneficial, as opposed to nominal, owner 
     of a bank account and minimum standards and policies would be 
     put into effect to deal with correspondent and concentration 
     accounts involving foreign persons. (Sec. Sec. 312, 313, 325, 
     326).
       Employee references would be permitted to include reference 
     to suspicious activity by the employee without fear of 
     liability and other cooperation among financial institutions, 
     law enforcement, and regulatory authorities would be 
     encouraged. (Sec. Sec. 314, 330, 355).
       These money laundering provisions are all subject to the 
     four-year sunset.

                    Protecting the border (title IV)

       The legislation expands the grounds for deeming an alien 
     inadmissible or deportable from the United States for 
     terrorist activity, provides for the mandatory detention of 
     aliens whom the Attorney General certifies pose a risk to the 
     national security, and facilitates information sharing within 
     the U.S. and with foreign governments. Current law allows 
     some aliens who are threats to the national security to enter 
     and remain in the United States. The provisions in the bill 
     correct those inadequacies and are necessary tools to prevent 
     detain and remove aliens who are national security threats 
     from the United States. The Attorney General would also have 
     the authority to detain suspected terrorists who are threats 
     to national security, as long as removal proceedings or 
     criminal charges are filed within 7 days. (Sec. 412). In the 
     rare cases where removal is determined appropriate but is not 
     possible, detention may continue upon a review by the 
     Attorney General every 6 months. (Sec. 412). The bill further 
     would expand the definition of terrorists for purpose of 
     inadmissibility or removal to include public endorsement of 
     terrorist activity or provision of material support to 
     terrorist organizations. (Sec. 411). The bill further expands 
     the types of weapons the use of which can be considered 
     terrorist activity. (Sec. 411).
       The ability of alien terrorists to move freely across 
     borders and operate within the United States is critical to 
     their capacity to inflict damage on the citizens and 
     facilities in the United States. Under current law, the 
     existing grounds for removal of aliens for terrorism are 
     limited to direct material support of an individual 
     terrorist. The bill would expand these grounds for removal to 
     include material support to terrorist organizations. 
     (Sec. 412).
       To address the need for better border patrol, additional 
     border patrol officers would be authorized, specifically on 
     the northern border which has, during the investigation into 
     the September 11th events, been shown to be extremely 
     problematic. (Sec. Sec. 401, 402). To aid INS agents, the FBI 
     would also be required to provide criminal records 
     information to those agents. (Sec. 403).
       The bill addresses not only unwelcome suspected terrorist 
     aliens but also immigrants who may need additional 
     consideration to stay within the United States where their 
     loved ones were victims of terrorist activity. 
     (Sec. Sec. 421-428).

        Removing obstacles to investigating terrorism (title V)

       The bill authorizes the Attorney General and Secretary of 
     State to pay rewards related to terrorism investigations. It 
     also provides for the DNA data collection from those 
     convicted of terrorism offenses and the coordination of 
     Federal law enforcement agencies. (Sec. Sec. 501, 502, 503, 
     504).

      Providing for victims and public safety officers (title VI)

       The bill establishes procedures for expedited payment of 
     public safety officers involved in the prevention, 
     investigation, rescue or recovery efforts related to a 
     terrorist attack, as well as providing increases to the 
     Public Safety Officer Benefit Program. (Sec. Sec. 611-614).

               Increased information sharing (title VII)

       The bill would require information sharing among Federal, 
     State and Local law enforcement, thus, providing the 
     necessary full picture needed to address terrorism. 
     (Sec. 711).

Substantive criminal law/criminal procedure: Strengthening the criminal 
                   law against terrorism (title VIII)

       These provisions reform substantive and procedural criminal 
     law to strengthen federal law enforcement's ability to 
     investigate, prosecute, prevent, and punish terrorist crimes. 
     There are substantial deficits in each of these areas which 
     impede or weaken our antiterrorism efforts.
       We must make fighting terrorism a national priority in our 
     criminal justice system. Current law makes it easier to 
     prosecute members of organized crime than to crack down on 
     terrorists who can kill thousands of Americans in a single 
     day. The same is true of drug traffickers and individuals 
     involved in espionage--our laws treat these criminals and 
     those who aid and abet them more severely than terrorists.
       Our investigation has found that wide terrorist networks, 
     not isolated individuals, are responsible for the September 
     11 attacks. Whether the members of these networks are in the 
     United States or in other countries, they and those who aid 
     them must be subject to the full force of our laws. Just as 
     the law currently regards those who harbor persons engaged in 
     espionage, the bill would make the harboring of terrorists a 
     criminal offense. The bill also increases the penalties for 
     conspiracy to commit terrorist acts to a serious level as 
     we have done for many drug crimes.

                             Key Provisions

       Removing impediments to effective prosecution--elimination 
     of statute of limitations for offenses creating the risk of 
     death or personal injury and extending the statute for all 
     other terrorism offenses to 8 years (Sec. 809).
       Removing impediments to effective investigation--single 
     jurisdiction search warrants; expanded jurisdiction to 
     include terrorism against U.S. facilities abroad. (Sec. 804).
       Strengthening substantive criminal law--prohibition on 
     harboring terrorists and on material support of terrorists 
     (Sec. Sec. 803, 805, 807); making terrorist crimes RICO 
     predicates (Sec. 813); extending powers of asset forfeiture 
     to terrorists' assets (Sec. 806); including altering 
     cyberterrorism offense (Sec. 814); expanding the offense of 
     possession of bioweapons (prohibiting possession of 
     biological toxins by felons and aliens) (Sec. 817); creating 
     a federal offense for attacking mass transportation systems 
     (Sec. 801); expanding definition of domestic terrorism and 
     offenses of the crime of terrorism, requiring a showing of 
     coercion of government as an element of the offense 
     (Sec. Sec. 802, 808).
       Strengthening criminal penalties--longer prison terms and 
     postrelease supervision of terrorists (Sec. 812); higher 
     conspiracy penalties for terrorists (Sec. 811); alternative 
     maximum sentences up to life for terrorism offenses 
     (Sec. 810).

                    Improved intelligence (title IX)

       The bill authorizes the Director of the CIA to establish 
     requirements and provide for the collection of foreign 
     intelligence. The Director would also be asked to ensure 
     proper dissemination of foreign intelligence information. 
     Only if the appropriate officials have all the relevant 
     information will prevention, investigation, and prosecution 
     be fully functioning. The bill also would provide for the 
     tracking of terrorist assets as part of the collection of 
     information. (Sec. Sec. 901, 905).

                        Miscellaneous (title X)

       The bill would finally require the Department of Justice 
     Inspector General to designate an official to receive civil 
     liberty and civil rights complaints and report those 
     complaints to Congress. The presumption is that such 
     information will be used in determining the continuing 
     viability of the provisions in the bill subject to sunset in 
     2005. (Sec. 1001).

  Mr. HATCH. Mr. president, I also ask unanimous consent that a 
section-by-section analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

        FINAL COUNTER-TERRORISM BILL SECTION-BY-SECTION ANALYSIS
------------------------------------------------------------------------
   Bill provision No.                    Bill description
------------------------------------------------------------------------
1......................  Title and table of contents.
2......................  Construction and severability clause.
101....................  Establishes a fund to reimburse DOJ components
                          for costs incurred to rebuild facilities,
                          investigate and prosecute terrorism, and to
                          reimburse other Federal agencies for detaining
                          individuals in foreign countries accused of
                          terrorist acts.
102....................  Sense of Congress condemning discrimination
                          against Arab and Muslim Americans.
103....................  Authorizes $200M for each of FY 2002, 2003 and
                          2004 for the FBI Technical Support Center
                          (established by AEDPA).
104....................  Broadens Attorney General's authority to
                          request assistance of Secretary of Defense in
                          emergency situations involving weapons of mass
                          destruction.
105....................  Directs the Secret Service to develop a
                          national network of electronic crime task
                          forces modeled on the New York task force.
106....................  Grants President the power to confiscate and
                          take title to enemies' property, when United
                          States has been attacked or is engaged in
                          military hostilities; also authorizes courts
                          to consider classified evidence, without
                          making it public, in lawsuits that challenge
                          the government's seizure of property.
201....................  Adds terrorism statutes--including chemical
                          weapons offenses under 18 U.S.C. 22--as
                          predicate offenses for which Title III wiretap
                          orders are available.
202....................  Allows voice wiretaps in computer hacking
                          investigations.

[[Page S11057]]


203(a).................  Permits sharing of grand jury information
                          regarding foreign intelligence and
                          counterintelligence with federal law-
                          enforcement, intelligence, protective,
                          immigration, national defense and national
                          security personnel; must notify court that
                          disclosure has taken place. Can share grand
                          jury information with state officials upon
                          court order.
203(b).................  Sharing of wiretap information regarding
                          foreign intelligence, counterintelligence, and
                          foreign intelligence information with federal
                          law-enforcement, intelligence, protective,
                          immigration, national defense and national
                          security personnel.
203(c).................  Requires AG to establish procedure for
                          information sharing in 203(a) and (b).
203(d).................  Permits sharing of information regarding
                          foreign intelligence, counterintelligence, and
                          foreign intelligence information with federal
                          law-enforcement, intelligence, protective,
                          immigration, national defense and national
                          security personnel notwithstanding other law.
204....................  Assures that foreign intelligence gathering
                          authorities are not disrupted by changes to
                          pen register/trap and trace statute.
205....................  Employment of translators by the FBI.
206....................  Allows court to authorize roving surveillance
                          under FISA where court finds that the actions
                          of the target may have effect of thwarting the
                          identification of a target.
207....................  Initial authorization for surveillance and
                          search of officers/employees of foreign powers
                          changed to 120 days; can be extended for one
                          year period. All other searches authorized for
                          90 day period.
208....................  Increases the number of judges on the FISA
                          Court to 11, no less than 3 of whom must live
                          within 20 miles of Washington, D.C.
209....................  Allows voice mail stored with a third party
                          provider to be obtained with a search warrant,
                          rather than a wiretap order.
210....................  Broadens the types of records that law
                          enforcement can subpoena from communications
                          providers, including the means and source of
                          payment.
211....................  Clarifies that statutes governing telephone and
                          internet communications (and not the
                          burdensome provisions of the Cable Act) apply
                          to cable companies that provide internet or
                          telephone service in addition to television
                          programming.
212....................  Allows computer-service providers to disclose
                          communications and records of communications
                          to protect life and limb; and clarifies that
                          victims of computer hacking can disclose non-
                          content records to protect their rights and
                          property.
213....................  Amends 18 U.S.C. 3103a to permit delayed notice
                          of search warrants where court determines that
                          immediate notice would have an ``adverse
                          result''; officers may seize property if court
                          finds ``reasonable necessity.''
214....................  To get pen register/trap and trace order under
                          FISA, must certify that information likely to
                          be obtained is relevant to an ongoing
                          investigation to protect against international
                          terrorism or clandestine intelligence
                          activities; investigations of US persons may
                          not be conducted upon the basis of First
                          Amendment protected activities.
215....................  Business records provision allows any designee
                          of FBI director no lower than Assistant
                          Special Agent in Charge to apply to FISA court
                          or a magistrate designated by Chief Justice
                          for an ex parte order requiring production of
                          any tangible things for an investigation to
                          protect against international terrorism or
                          clandestine intelligence activities;
                          investigation must be conducted under AG
                          Guidelines under EO 12333, and investigation
                          of a US person cannot be based on First
                          Amendment protected behavior; also requires
                          semiannual reporting to Congress.
216....................  Amends the pen register/trap and trace statute
                          to apply to internet communications, and to
                          allow for a single order valid across the
                          country.
217....................  Allows victims of computer-hacking crimes to
                          request law enforcement assistance in
                          monitoring trespassers on their computers;
                          ``computer trespasser'' does not include
                          persons who have a contractual relationship
                          with the hacked computer's owner.
218....................  Allows law enforcement to conduct surveillance
                          or searches under FISA if ``a significant
                          purpose'' is foreign intelligence.
219....................  Permits courts to issue search warrants that
                          are valid nationwide for investigations
                          involving terrorism.
220....................  Permits courts to issue search warrants for
                          communications stored by providers anywhere in
                          the country; court must have jurisdiction over
                          the offense.
221....................  Authorizes President to impose sanctions
                          relating to the export of devices that could
                          be used to develop missiles or other weapons
                          of mass destruction. Also expands President's
                          ability to restrict exports to the portions of
                          Afghanistan controlled by the Taliban.
222....................  Protects communications providers from having
                          to develop or deploy new technology as a
                          result of the Bill, and assures that they will
                          be reasonably compensated.
223....................  Creates a cause of action and authorizes money
                          damages against the United States if officers
                          disclose sensitive information without
                          authorization.
224....................  Provides that all changes in Title II sunset
                          after four years (except sections 203(a),
                          203(c), 205, 208, 210, 211, 213, 216, 219,
                          221, and 222).
225....................  Grants immunity from civil liability to persons
                          who furnish information in compliance with a
                          FISA order.
301....................  Title of money-laundering act.
302....................  Congressional findings.
303....................  Sunset provision; money-laundering provisions
                          will expire in 2005 if Congress enacts joint
                          resolution.
311....................  Authorizes the Treasury Secretary to require
                          that financial institutions undertake a
                          variety of special measures to prevent money
                          laundering, such as recording certain
                          transactions and obtaining information about
                          correspondent accounts.
312....................  Imposes special due diligence requirements for
                          private banking and correspondent accounts
                          that involve foreign persons.
313....................  Prohibits domestic financial institutions from
                          maintaining correspondent accounts with
                          foreign shell banks.
314....................  Requires Treasury Secretary to promulgate
                          regulations to encourage cooperation among
                          financial institutions, regulators, and law
                          enforcement; allows financial institutions to
                          share information regarding persons suspected
                          of terrorism-related money laundering.
315....................  Includes various foreign-corruption offenses--
                          including bribery and smuggling--as
                          ``specified unlawful activities'' under the
                          money-laundering statute.
316....................  Allows persons to contest confiscations of
                          their property in connection with
                          antiterrorism investigations.
317....................  Authorizes long-arm jurisdiction over foreign
                          money launderers; also allows courts to
                          restrain foreign-money launderers' assets
                          before trial.
318....................  Essentially a technical amendment, defines
                          ``financial institution'' to include a
                          ``foreign bank.''
319....................  Permits forfeiture of funds held in United
                          States interbank accounts; upon the request of
                          federal banking agencies, requires financial
                          institutions to disclose information about
                          anti-money laundering compliance.
320....................  Authorizes the civil forfeiture of property
                          related to certain offenses against foreign
                          nations, including controlled-substances
                          crimes, murder, and destruction of property.
321....................  Includes various entities in the definition of
                          ``financial institution,'' including futures
                          commission merchants and the Commodity Futures
                          Trading Commission.
322....................  Provides that a statute preventing fugitives
                          from using court resources in forfeiture
                          actions, also applies to claims brought by
                          corporations whose officers are fugitives.
                          [typo in bill; refers to title 18; should be
                          title 28]
323....................  Allows courts to issue restraining orders to
                          preserve the availability of property subject
                          to forfeiture by a foreign government.
324....................  Requires Treasury Secretary to report on the
                          operation of this subtitle.
325....................  Allows Treasury Secretary to issue regulations
                          governing concentration accounts, to ensure
                          that customers cannot secretly move funds.
326....................  Requires Treasury Secretary to promulgate rules
                          requiring financial institutions to verify the
                          identities of persons opening accounts.
327....................  Requires the government to consider financial
                          institutions' anti-money laundering record
                          when deciding to approve various requests,
                          including proposed mergers.
328....................  Requires Treasury Secretary to cooperate with
                          foreign governments to identify the
                          originators of wire transfers.
329....................  Imposes criminal penalties on government
                          employee who is bribed in connection with his
                          duties under the money-laundering title.
330....................  Sense of Congress that the United States should
                          negotiate with foreign nations to secure their
                          cooperation in investigations of terrorist
                          groups' finances.
351....................  Grants immunity to a financial institution that
                          voluntarily discloses suspicious transactions;
                          prohibits the institution from notifying the
                          person who conducted the suspicious
                          transaction that it has been reported.
352....................  Directs financial institutions to establish
                          anti-money laundering programs, and allows
                          Treasury Secretary to prescribe minimum
                          standards.
353....................  Imposes civil and criminal penalties for
                          violations of geographic targeting orders;
                          extends the effective period for geographic
                          targeting orders from 60 to 180 days.
354....................  Requires the President's national strategy on
                          money laundering to include data regarding the
                          funding of international terrorism.
355....................  Allows financial institutions to disclose
                          suspicious activity in employment references.
356....................  Obliges Treasury Secretary to issue regulations
                          that require securities brokers and
                          commodities merchants to report suspicious
                          activities.
357....................  Requires Treasury Secretary to report on the
                          administration of Bank Secrecy Act provisions.
358....................  Makes various amendments to Bank Secrecy Act to
                          enhance United State's ability to fight
                          international terrorism, including making
                          information available to intelligence
                          agencies.
359....................  Requires reporting on the suspicious activities
                          of underground banking systems.
360....................  Instructs United States Executive Directors of
                          international financial institutions to use
                          their voice and vote to support loans to
                          foreign countries that assist the United
                          States' fight against international terrorism.
361....................  Establishes procedures and rules governing the
                          Treasury Department's Financial Crimes
                          Enforcement Network.
362....................  Requires Treasury Secretary to establish in the
                          Financial Crimes Enforcement Network, a highly
                          secure network that will allow the exchange of
                          information with financial institutions.
363....................  Increases civil and criminal penalties for
                          money laundering.
364....................  Authorizes the Federal Reserve to hire security
                          personnel.
365....................  Requires companies that receive more than
                          $10,000 in currency in a transaction to file a
                          report with the Financial Crimes Enforcement
                          Network.
366....................  Requires Treasury Secretary to study expanding
                          exemptions from currency reporting
                          requirements.
371....................  Makes it a crime to smuggle more than $10,000
                          in currency into or out of the United States,
                          with the intent of avoiding a currency
                          reporting requirement, also authorizes civil
                          forfeiture.
372....................  Authorizes criminal and civil forfeiture in
                          currency-reporting cases.
373....................  Includes a scienter requirement for the crime
                          of operating an unlicensed money transmitting
                          business.
374....................  Increases penalties for counterfeiting United
                          States currency and obligations; clarifies the
                          counterfeiting statutes apply to counterfeits
                          produced by electronic means.
375....................  Increases penalties for counterfeiting foreign
                          currency and obligations.
376....................  Designates a new predicate money-laundering
                          offense: providing material support or
                          resources to foreign terrorist organizations
                          in violation of 18 U.S.C. Sec.  2339B.
377....................  Provides for extraterritorial jurisdiction over
                          certain crimes of fraud in connection with
                          access devices.
401....................  Authorizes AG to waive caps on immigration
                          personnel assigned to protect Northern Border.
402....................  Triples the number of Border Patrol personnel,
                          Customs Service personnel, and Immigration and
                          Naturalization Service inspectors; also
                          allocates an additional $50 million each to
                          the Customs Service and the INS.
403....................  Requires the FBI to share criminal-record
                          information with the INS and the State
                          Department for the purpose of adjudicating
                          visa applications.
404....................  One-time expansion of INS authority to pay
                          overtime.
405....................  Requires AG to report to Congress on
                          feasibility of enhancing FBI's Integrated
                          Automated Fingerprint Identification System,
                          or ``IAFIS,'' to prevent foreign terrorists
                          from receiving visas and from entering United
                          States.
411....................  Broadens the Immigration and Nationality Act's
                          terrorism-related definitions. Expands grounds
                          of inadmissibility to include persons who
                          publicly endorse terrorist activity. Expands
                          definition of ``terrorist activity'' to
                          include all dangerous devices in addition to
                          firearms and explosives. Expands definition of
                          `'engaging in a terrorist activity'' to
                          include providing material support to groups
                          that the person knows or should know that are
                          terrorist organizations, regardless of whether
                          the support's purpose is terrorism related.
412....................  Requires AG to detain aliens whom he certifies
                          as threats to national security. AG must
                          charge aliens with criminal or immigration
                          offenses within seven days. AG must detain
                          aliens until they are removed or until he
                          determines that they no longer pose threat.
                          Establishes D.C. Circuit as exclusive
                          jurisdiction for appeals.
413....................  Gives Secretary of State discretion to provide
                          visa-records information to foreign
                          governments, for the purpose of combating
                          international terrorism or crime; gives
                          certain countries general access to State
                          Department's lookout databases.
414....................  Sense of Congress regarding need to expedite
                          implementation of an integrated entry and
                          exist data system.
415....................  Provides that Office of Homeland Security shall
                          participate in the entry-exit task force
                          authorized by Congress in 1996.
416....................  Requires AG to implement fully and expand the
                          foreign student visa monitoring program
                          authorized by Congress in 1996.
417....................  Requires Secretary of State to enhance efforts
                          to develop machine-readable passports.
418....................  Obliges Secretary of State to review how
                          consular officers issue visas to determine
                          whether consular shopping is a problem.
421....................  Grants special immigrant status to people who
                          were in the process of securing permanent
                          residence through a family member who died,
                          was disabled, or lost employment as a result
                          of the September 11 attacks.
422....................  Provides a temporary extension of status to
                          people who are present in the United States on
                          a ``derivative status'' (the spouse or minor
                          child) of a non-immigrant who was killed or
                          injured on September 11.
423....................  Provides that aliens whose spouses or parents
                          were killed in the September 11 attacks will
                          continue to be considered ``immediate
                          relatives'' entitled to remain in the United
                          States.
424....................  Provides that aliens who turn 21 during or
                          after September 2001 shall be considered
                          children for 90 or 45 days, respectively,
                          after their birthdays.
425....................  Authorizes AG to provide temporary
                          administrative relief, for humanitarian
                          purposes, to any alien who is related to a
                          person killed by terrorists.
426....................  Requires AG to establish evidentiary guidelines
                          for demonstrating that death or disability
                          occurred as a result of terrorist activity.
427....................  Provides that no benefits shall be given to
                          terrorists or their family members.

[[Page S11058]]


428....................  Definitions.
501....................  Enhances the AG's authority to pay rewards in
                          connection with terrorism.
502....................  Enhances Secretary of State's authority to pay
                          rewards in connection with terrorism.
503....................  Expands DNA sample collection predicates for
                          federal offenders to include all offenses in
                          18 U.S.C. 2332b(g)(5)(B) list, all crimes of
                          violence (as defined in 18 U.S.C. 16), and
                          attempts and conspiracies to commit such
                          crimes.
504....................  Allows ``federal officers'' who conduct FISA
                          surveillance or searches to coordinate efforts
                          to investigate or protect against attacks,
                          grave hostile acts, sabotage, international
                          terrorism, or clandestine intelligence
                          activities by foreign power.
505....................  Allows FBI Deputy Assistant Director or higher
                          (or Special Agent in Charge) to issue National
                          Security Letters for telephone toll and
                          transaction records, financial records, and
                          consumer reports.
506....................  Extends Secret Service's jurisdiction
                          (concurrently with FBI's) to investigate
                          offenses against government computers.
507....................  Person not lower than Assistant AG can apply
                          for an ex parte court order to obtain
                          educational records that are relevant to an
                          authorized investigation or prosecution of a
                          grave felony or an act of domestic or
                          international terrorism; must provide specific
                          and articulable facts showing that records
                          likely to contain information related to the
                          offenses; AG required to issue guidelines to
                          protect confidentiality.
508....................  Eliminates restrictions on production of
                          information from National Center for Education
                          Statistics; allows person not lower than
                          Assistant AG to collect information if there
                          are specific and articulable facts that
                          records are likely to contain information
                          related to a grave felony or an act of
                          domestic or international terrorism; AG
                          required to issue guidelines to protect
                          confidentiality.
611....................  Provides for expedited payment of Public Safety
                          Officer benefits in connection with terrorism.
612....................  Technical amendments to Pub. L. 107-37.
613....................  Raises base amount of Public Safety Officer
                          benefits from $100K to $250K.
614....................  Enhances authority of Assistant Attorney
                          General for the Office of Justice Programs to
                          manage OJP.
621....................  Makes many minor changes in crime victims
                          compensation program; one is: amounts received
                          by the Crime Victims Fund from the $40B
                          emergency fund are not subject to spending
                          cap.
622....................  Makes many minor changes in the crime victims
                          compensation program.
623....................  Makes many minor changes in the crime victims
                          compensation program.
624....................  Makes many minor changes in the crime victims
                          compensation program; one expands use of its
                          emergency reserve.
701....................  Expands regional information-sharing system to
                          enhance federal and state law-enforcement
                          officers' ability to respond to terrorist
                          attacks.
801....................  Makes it a crime to engage in terrorist attacks
                          on mass transportation systems.
802....................  Adds definition of ``domestic terrorism'' to 18
                          U.S.C. 2331 and makes conforming change in
                          existing definition of `'international
                          terrorism.''
803....................  Makes it a crime to harbor a person where
                          perpetrator knows or has reasonable grounds to
                          believe that the person has committed or is
                          about to commit one of several serious
                          terrorism crimes; includes venue provision.
804....................  Extends the United States' special maritime and
                          territorial jurisdiction to any offenses
                          committed by or against U.S. nationals at
                          foreign missions and related residences;
                          excludes offenses by persons covered under 18
                          U.S.C. 3261(a) (which provides separate
                          extraterritorial provision for persons
                          accompanying the armed forces).
805....................  Amends crime of providing material support to
                          terrorists by deleting the ``within the U.S.''
                          restriction; adds some additional predicate
                          offenses; and adds ``monetary instruments''
                          and ``expert advice or assistance'' as types
                          of prohibited support. Also, adds material
                          support of foreign terrorist organizations as
                          money laundering predicate.
806....................  Amends 18 U.S.C. 981(a)(1) to authorize civil
                          forfeiture of all assets owned by persons
                          engaged in terrorism.
807....................  Clarifies that Trade Sanctions Reform and
                          Export Enhancement Act of 2000 does not limit
                          the prohibition on providing material support
                          to terrorists or foreign terrorist
                          organizations.
808....................  Amends definition of ``federal crime of
                          terrorism'' in 18 U.S.C. 2332b(g)(5)(B) to
                          include a number of serious crimes that
                          terrorists are likely to commit. Makes
                          conforming amendment to 2332b(f) to avoid
                          reducing AG's primary investigative
                          jurisdiction.
809....................  No statute of limitations for certain terrorism
                          crimes that involve the occurrence or
                          foreseeable risk of death or serious injury;
                          other terrorism crimes subject to extended
                          eight-year limitations period.
810....................  Amends statutes defining various terrorism
                          crimes (including arson and material support
                          to terrorists) to provide base maximum prison
                          terms of 15 or 20 years, and up to life
                          imprisonment where death results.
811....................  Amends statutes defining various terrorism
                          crimes (including arson and killings in
                          federal facilities) to add a prohibition on
                          attempt and conspiracy; provides increased
                          penalties for attempts and conspiracies that
                          are equal to the penalties for the underlying
                          offenses.
812....................  Authorizes postrelease supervision periods of
                          up to life for persons convicted of terrorism
                          crimes that involved the occurrence or
                          foreseeable risk of death or serious injury.
813....................  Adds terrorism crimes listed in 18 U.S.C.
                          2332b(g)(5)(B) as predicates under RICO.
814....................  Makes a number of amendments to the computer
                          hacking law to clarify protection of protected
                          computers, and to ensure adequate penalties
                          for cyber-terrorists.
815....................  Creates a defense for persons who disclose wire
                          or electronic communications records in
                          response to the request of a governmental
                          entity.
816....................  Requires AG to establish regional computer
                          forensic laboratories to enhance
                          cybersecurity.
817....................  Broadens prohibition on possessing biological
                          toxins: unlawful to possess toxins for
                          anything other than a peaceful purpose; makes
                          it a crime to possess a biological toxin in a
                          quantity suggesting defendant had no peaceful
                          purpose; provides that a small category of
                          restricted persons (felons, illegal aliens and
                          others) are disqualified from possessing
                          biological toxins.
901....................  Gives CIA Director responsibility to establish
                          requirements and priorities for foreign
                          intelligence information under FISA, and to
                          assist AG in ensuring that information derived
                          from FISA surveillance or searches is used
                          effectively for foreign intelligence purposes.
902....................  Includes international terrorist activities
                          within the scope of foreign intelligence under
                          the National Security Act.
903....................  Sense of Congress on the need to establish
                          intelligence relationships to acquire
                          information on terrorists.
904....................  Grants CIA Director temporary authority to
                          delay submitting reports to Congress on
                          intelligence matters.
905....................  Requires AG to disclose to CIA Director any
                          foreign intelligence acquired by a DOJ element
                          during a criminal investigation; AG can
                          provide exceptions for classes of information
                          to protect ongoing investigations.
906....................  Requires AG, CIA Director, and Secretary of the
                          Treasury to report to Congress on feasibility
                          of developing capacity to analyze foreign
                          intelligence relating to terrorist
                          organizations' finances.
907....................  Obliges Directors of FBI and CIA to report on
                          the development of a ``National Virtual
                          Translation Center,'' which will provide
                          intelligence community with translations of
                          foreign intelligence.
908....................  Requires AG to establish a program to train
                          government officials in the identification and
                          use of foreign intelligence.
1001...................  Directs DOJ Inspector General to review
                          allegations that DOJ employees engaged in
                          civil rights abuses.
1002...................  Sense of Congress that Sikhs should not be
                          subject to discrimination in retaliation for
                          the September 11 attacks.
1003...................  Defines ``electronic surveillance'' in FISA to
                          exclude the acquisition of computer
                          trespassers' communications.
1004...................  Provides that money laundering prosecutions may
                          be brought in any district where the
                          transaction occurred, or in any district the
                          underlying unlawful activity could be
                          prosecuted.
1005...................  Requires AG to make grants to enhance states
                          and local governments' ability to respond to
                          and prevent terrorism.
1006...................  Provides that aliens who are engaged in money
                          laundering may not be admitted to the United
                          States.
1007...................  Authorizes Drug Enforcement Administration
                          funds for antidrug training in Turkey and in
                          South and Central Asia.
1008...................  Requires AG to study feasibility of using
                          fingerprint scanner at overseas consular posts
                          and points of entry into the United States.
1009...................  Requires FBI to report to Congress on
                          feasibility of providing airlines with names
                          of passengers who are suspected to be
                          terrorists.
1010...................  Allows Defense Department to contract with
                          state and local governments to provide
                          security at military installations during
                          Operation Enduring Freedom.
1011...................  Enhances statutes making it unlawful to
                          fraudulently solicit charitable contributions.
1012...................  Restricts states' ability to issue licenses to
                          transport hazardous materials; Transportation
                          Secretary must first determine that licensee
                          poses no security risk.
1013...................  Sense of the Senate that the United States
                          should increase funding for bioterrorism
                          preparedness.
1014...................  Requires Office of Justice Programs to make
                          grants to states to enhance their ability to
                          prepare for and respond to terrorism involving
                          weapons of mass destruction.
1015...................  Expands and reauthorizes the Crime
                          Identification Technology Act for
                          antiterrorism grants to states and localities.
1016...................  Establishes National Infrastructure Simulation
                          and Analysis Center to protect United States'
                          critical infrastructure from terrorist
                          attacks.
------------------------------------------------------------------------

  Mr. LEAHY. Mr. President, I thank the distinguished senior Senator 
from Utah for his comments. Senator Hatch and I, over the last 
generation, have spent a great deal of time with each other on a many 
issues, on numerous committees, especially the Judiciary Committee. But 
we have spent so much time together on this, we even appear to be 
coordinating wardrobes with gray suits and blue shirts today. But I 
appreciate his help.
  I appreciate so many who helped on crafting and moving forward with 
this legislation. I thank our leader, Senator Daschle. It would have 
been impossible for us to be here at this point without his steadfast 
commitment to the committee system and his willingness to have the 
committee work diligently to improve the legislation initially 
presented by the Administration. On my behalf and on behalf of the 
American people, I want to publicly acknowledge his vital role in this 
legislation. Senator Reid has also provided valuable counsel and 
assistance as we have moved first the original Senate USA Act, S. 1510, 
and now the House-passed bill, H.R. 3162.
  Many others also helped us: Senator Hatch and Senator Specter and 
Senator Grassley and Senator Durbin, Senator Schumer, Senator Cantwell, 
and so many others on the Judiciary committee.
  I said many times we are merely constitutional impediments to staff.
  In particular, I want to thank Mark Childress and Andrea LaRue on the 
staff of Majority Leader Daschle, and David Hoppe on the staff of 
Republican Leader Lott. I would also like to thank Markan Delrahim, 
Jeff Taylor, Stuart Nash, and Leah Belaire with Senator Hatch, the 
ranking member of the Judiciary Committee, Melody Barnes and Esther 
Olavarria with Senator Kennedy, Neil McBride, and Eric Rosen with 
Senator Biden, Bob Schiff with Senator Feingold, and Stacy Baird and 
Beth Stein with Senator Cantwell. I also want to thank Bill Jensen of 
the Legislative Counsel's office.
  Finally, I would like to thank my own Judiciary Committee staff, 
especially Bruce Cohen, Beryl Howell, Julie Katzman, Ed Pagano, John 
Elliff, David James, Ed Barron, Tim Lynch, Susan Davies, Liz McMahon, 
Manu Bhardwaj, and Tara Magner. These are people who are more than just 
accomplished Senate staffs, they are close personal friends.

  I think of the way they have worked, also, with personal office staff 
such as Luke Albee, J.P. Dowd, David Carle, and others. These are dear 
friends, but they are also people who bring such enormous expertise--
expertise they had in their other careers before they came to the 
Senate, and how helpful this is.
  Mr. President, we are about to vote and we will vote in a matter of 
minutes. I want us to think just for a moment why we are here. We have 
all

[[Page S11059]]

shared the sadness, the horror of September 11. We are seeing Members 
of Congress and staffs threatened, tragic deaths in the Postal Service, 
those who died in the Pentagon, those who died at the Twin Towers.
  It is also almost a cliche to say America under attack, but that is 
what it is. Each of us has a job helping to respond to that. We are not 
Republicans or Democrats in that, we are Americans preserving our 
Nation and preserving our democracy. But, you know, we preserve it not 
just for today, we preserve it for the long run. That presents the kind 
of questions we have to answer in a bill such as this.
  I suspect terrorist threats against the United States will exist 
after all of us, all 100 of us, are no longer serving in the Senate. It 
is a fact of life. It will come from people who hate our democracy, 
hate our diversity, hate our success. But that doesn't mean we are 
going to stop our democracy, our diversity, or our success.
  Think what we cherish in this Nation. Our first amendment, for 
example, giving us the right to speak out about what we want--as we 
want. How many countries even begin to give that freedom?
  Also, in that same first amendment, the right to practice any 
religion we want, or none if we want.
  The leaders of the Judiciary Committee, Senator Hatch and I, belong 
to different religions which we hold deeply. I think we gain a great 
deal of inner strength from our respective faiths. But we know we are 
not judged by our religion. That is something we must protect and hold. 
We are judged by how well we do in representing our States and our 
Nation.
  Because we face terrible terrorist attacks today, we should not 
succumb tomorrow by giving up what makes us a great nation. That has 
been my benchmark throughout the work I have done in this bill.
  I spoke of the people who bring so much to this. I was just talking 
with Beryl Howell, a brilliant lawyer, who, with Bruce Cohen, has led 
our team on all this. She is a former prosecutor. How much she learned 
from her prior experiences and how much she brought here. Bruce Cohen, 
who was in private practice and came here, probably is as knowledgeable 
about Senate practice as anybody I know of, and he has brought that 
knowledge here. There are so many others I could name.
  I have to think of my own case. Probably my 26 years here in the 
Senate, in many ways led up to this moment because I have never brought 
more of my own experiences or knowledge to bear than on this.
  There was a rush, an understandable and even, some may say, 
justifiable rush, to pass legislation immediately after these terrible 
events. I understand that, the United States having been attacked 
within our borders for the first time, really, by an outside power 
since the War of 1812--attacked terribly, devastatingly. Who can forget 
the pictures we saw over and over again on television?
  So I can understand the rush to do something, anything. But I used 
every bit of credibility I had as a Senator to say, wait, let us take 
time. I applaud people such as Senator Daschle who, using his great 
power as majority leader, said we will take the time to do this right, 
and backed me up on this. Other Senators from both sides of the aisle 
said, OK, let's work together.
  I know the Senator from Utah shared the same anger that I did at the 
terrorists, and perhaps had been reluctant at first to join with me on 
that. But then the Senator from Utah and I worked day and night, 
weekends, evenings, and everything else to put together the best 
possible bill.
  We worked with our friends and our colleagues in both parties in the 
other body. Ultimately, we do nothing to protect America if we pass a 
bill which for short-term solutions gives us long-term pain by 
destroying our Constitution or our rights as Americans.
  There are tough measures in this legislation. Some may even push the 
envelope to the extent that we worry. That is why we put in a 4-year 
sunset. We have also built in constitutional checks and balances within 
the court system and within even some of the same agencies that will be 
given new enforcement powers. But we also will not forget our rights 
and responsibilities and our role as U.S. Senators.
  We will not forget our role and our responsibilities as Senators to 
do oversight. Senator Hatch and I are committed to that. We will bring 
the best people from both sides of aisle, across the political 
spectrum, to conduct effective oversight.
  I have notified Attorney General Ashcroft and Director Mueller that 
we will do that to make sure these powers are used within the 
constitutional framework to protect all of us. I said earlier on this 
floor what Benjamin Franklin said: that the people who would trade 
their liberties for security and deserve neither.
  We will enhance our security in this bill, but we will preserve our 
liberties. How could any one of us who have taken an oath of office to 
protect the Constitution do otherwise?
  Like the distinguished Presiding Officer, I have held different 
elective offices. As the distinguished Presiding Officer knows, we take 
seriously our duties and our roles in each of those. He was a Member of 
the House and was the Governor of one of the original 13 States. I was 
a prosecutor and am a U.S. Senator from the 14th State. But all of us 
take this responsibility, because none of us are going to be here 
forever.
  I want to be able to look back at my time in the U.S. Senate and be 
able to tell my children, my grandchildren, and my friends and 
neighbors in Vermont--the State I love so much--that I came home having 
done my best.
  We have so much in this country--so much. But it is our rights and 
our Constitution that give us everything we have, which allows us to 
use the genius of so many people who come from different backgrounds 
and different parts of the world. That makes us stronger. We become 
weak if we cut back on those rights.
  We have had some difficult times in our Nation where we have not 
resisted the temptation to cut back. Here we have. The American people 
will know that this Congress has worked hard to protect us with this 
bill.
  I will vote for this legislation knowing that we will continue to do 
our duty, and to follow it carefully to make sure that these new powers 
are used within our Constitution.
  I suggest that all time be yielded, and that we be prepared to vote. 
I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The clerk will read the bill for the third 
time.
  The bill was read the third time.
  The PRESIDING OFFICER. The bill having been read the third time, the 
question is, Shall the bill pass?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Louisiana (Ms. Landrieu) 
is necessarily absent.
  The PRESIDING OFFICER (Mr. Johnson). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 98, nays 1, as follows:

                      [Rollcall Vote No. 313 Leg.]

                                YEAS--98

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden
       

                                NAYS--1

       
     Feingold
       

[[Page S11060]]



                             NOT VOTING--1

       
     Landrieu
       
  The bill (H.R. 3162) was passed.
  Mr. COCHRAN. Mr. President, I move to reconsider the vote, and I move 
to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________
  


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