[Congressional Record Volume 147, Number 144 (Thursday, October 25, 2001)]
[Senate]
[Pages S10990-S11060]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
USA PATRIOT ACT OF 2001
The PRESIDENT pro tempore. Under the previous order, the Senate will
now proceed to consideration of H.R. 3162, which the clerk will report.
The bill clerk read as follows:
A bill (H.R. 3162) to deter and punish terrorist acts in
the United States and around the world, to enhance law
enforcement investigatory tools, and for other purposes.
The PRESIDENT pro tempore. The senior Senator from Vermont, Mr.
Leahy, is recognized.
Mr. LEAHY. Mr. President, what is the time agreement that we now have
before us?
The PRESIDENT pro tempore. The chairman and ranking member of the
Judiciary Committee have 90 minutes each; the Senator from Michigan,
Mr. Levin, has 10 minutes; the Senator from Minnesota, Mr. Wellstone,
has 10 minutes; the Senator from Maryland, Mr. Sarbanes, has 20
minutes; the Senator from Wisconsin, Mr. Feingold, has 1 hour; the
Senator from Florida, Mr. Graham, has 15 minutes; and the Senator from
Pennsylvania, Mr. Specter, has 15 minutes.
Mr. LEAHY. I thank the Presiding Officer, the President pro tempore
of the Senate.
Mr. President, I yield myself such time as I may need out of my 90
minutes.
Mr. REID. Will the Senator yield?
Mr. LEAHY. Of course.
Mr. REID. Mr. President, I ask unanimous consent that during the day,
when quorum calls are initiated, the time be charged proportionately,
not only against the person who asked for the quorum to be initiated,
but that it be charged proportionately against all people who have time
under the agreement that is now in effect.
The PRESIDENT pro tempore. Is there objection?
The Chair hears no objection. That will be the order of the Senate.
The Senator from Vermont, Mr. Leahy, is recognized.
(Mrs. CLINTON assumed the chair.)
Mr. LEAHY. Thank you, Mr. President. I agree with the distinguished
Democratic leader in his request because we do want to have discussion
of this piece of legislation, but there is no question we will vote on
this piece of legislation today and we will pass this legislation
today.
I think it is only fitting the Senator from New York is now in the
chair as we begin discussion of this legislation because her State was
one of those that was badly impacted, terribly impacted, tragically
impacted on September 11, as were the people of New Jersey and
Connecticut, who worked in the World Trade Towers, and, of course,
those at the Pentagon in Virginia, including those in Maryland and the
District of Columbia, and actually the whole Nation.
Today we consider H.R. 3162, the second House-passed version of the
``Uniting and Strengthening of America Act'' or ``USA Act of 2001.''
Senate passage of this measure without amendment will amount to final
passage of this important legislation, and the bill will be sent to the
President for his signature. We complete our work six weeks after the
September 11 attacks and months ahead of final action following the
destruction of the Federal Building in Oklahoma City in 1995. The
American people and the Members of this body deserve fast work and
final action.
On October 4, I was pleased to introduce with the Majority Leader,
Senator Daschle, and the Chairmen of the Banking and Intelligence
Committees, as well as the Republican Leader, Senator Lott, and Senator
Hatch and Senator Shelby, the Uniting and Strengthening America, or USA
Act. This was not the bill that I, or any of the sponsors, would have
written if compromise was unnecessary. Nor was it the bill the
Administration had initially proposed and the Attorney General
delivered to us on September 19, at a meeting in the Capitol.
We were able to refine and supplement the Administration's original
proposal in a number of ways in the original USA Act, and have
continued that process in the development of H.R. 3162. The
Administration accepted a number of the practical steps I had
originally proposed on September 19 to improve our security on the
Northern Border, assist our Federal, State and local law enforcement
officers, and provide compensation to the victims of terrorist acts and
to the public safety officers who gave their lives to protect ours.
This final version of the USA Act further improves the compromise by
including additional important checks on the proposed expansion of
government powers that were not contained in the Attorney General's
initial proposal.
Let me outline just ten ways in which we in the bicameral, bipartisan
negotiations were able to supplement and improve this legislation from
the original proposal we received from the Administration.
We improved security on the Northern Border;
We added money laundering;
We added programs to enhance information sharing and coordination
with State and local law enforcement, grants to State and local
governments to respond to bioterrorism, and to increase payments to
families of fallen firefighters, police officers and other public
safety workers;
We added humanitarian relief to immigrant victims of the September 11
terrorist attacks;
We added help to the FBI to hire translators;
We added more comprehensive victims assistance;
We added measures to fight cybercrime;
We added measures to fight terrorism against mass transportation
systems;
We added important measures to use technology to make our borders
more secure;
Finally, and most importantly, we were able to include additional
important checks on the proposed expansion of government powers
contained in the Attorney General's initial proposal.
In negotiations with the Administration, I did my best to strike a
reasonable balance between the need to address the threat of terrorism,
which we all keenly feel at the present time, and the need to protect
our constitutional freedoms. Despite my misgivings, I acquiesced in
some of the Administration's proposals to move the legislative process
forward. That progress has been rewarded by a bill we have been able to
improve further during discussions over the last two weeks.
The Senate passed the original version of the USA Act, S. 1510, by a
vote of 96-1 on October 11. The House passed a similar bill, based
largely on the USA Act, the following day. The Majority Leader and I
both strongly believed that a conference would have been the better and
faster way to reconcile the differences between the bills, and to
consider the proposals that had been included in the managers'
amendment to S. 1510, which Republicans did not approve in time for
consideration and passage with the Senate bill. The House did not
request a conference when it passed the bill, however, and despite the
understanding among House and Senate leadership, the House leadership
abruptly incorporated the product of our discussions in a new bill
rather than proceed to a quick conference.
Yesterday, the House passed H.R. 3162, which was based upon informal
agreements reached by Senate and House negotiators, but which did not
include additional important provisions to make the Justice Department
more efficient and effective in its anti-terrorism efforts and to
reduce domestic demand for illegal drugs, some of which are produced
and supplied from Taliban-controlled regions of Afghanistan. I am
disappointed that the commitment we received to hold a conference--at
which these proposals could have been considered more fully--was not
honored. Nonetheless, H.R. 3162, which the House passed yesterday,
contains additional improvements to the USA Act that had been
negotiated on a bicameral, bipartisan basis, and deserves the support
of the Senate.
I do believe that some of the provisions contained both in this bill
and the original USA Act will face difficult tests in the courts, and
that we in Congress may have to revisit these issues at some time in
the future when the present crisis has passed, the sunset has expired
or the courts find an infirmity in these provisions. I also intend
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as Chairman of the Judiciary Committee to exercise careful oversight of
how the Department of Justice, the FBI and other executive branch
agencies are using the newly-expanded powers that this bill will give
them. I know that other members of the Judiciary Committee--including
Senator Specter, Senator Grassley, and Senator Durbin--appreciate the
importance of such oversight.
The negotiations on anti-terrorism legislation have not been easy.
Within days of the September 11 attacks, I began work on legislation to
address security needs on the Northern Border, the needs of victims and
State and local law enforcement, and criminal law improvements. A week
after the attack, on September 19, the Attorney General and I exchanged
the outlines of the legislative proposals and pledged to work together
toward our shared goal of putting tools in the hands of law enforcement
that would help prevent another terrorist attack.
Let me be clear: No one can guarantee that Americans will be free
from the threat of future terrorist attacks, and to suggest that this
legislation--or any legislation--would or could provide such a
guarantee would be a false promise. I will not engage in such false
promises, and those who make such assertions do a disservice to the
American people.
I have also heard claims that if certain powers had been previously
authorized by the Congress, we could somehow have prevented the
September 11 attacks. Given this rhetoric it may be instructive to
review efforts that were made a few years ago in the Senate to provide
law enforcement with greater tools to conduct surveillance of
terrorists and terrorist organizations. In May 1995, Senator Lieberman
offered an amendment to the bill that became the Antiterrorism and
Effective Death Penalty Act of 1996 that would have expanded the
government's authority to conduct emergency wiretaps to cases of
domestic or international terrorism and added a definition of domestic
terrorism to include violent or illegal acts apparently intended to
``intimidate, or coerce the civilian population.'' The consensus,
bipartisan bill that we consider today contains a very similar
definition of domestic terrorism.
In 1995, however, a motion to table Senator Lieberman's amendment was
agreed to in a largely party-line vote, with Republicans voting against
the measure. In fact, then Senator Ashcroft voted to table that
amendment, and one Republican colleague spoke against it and opined,
``I do not think we should expand the wiretap laws any further.'' He
further said that ``We must ensure that in our response to recent
terrorist acts, we do not destroy the freedoms that we cherish.'' I
have worked very hard to maintain that balance in negotiations
concerning the current legislation.
Following the exchange on September 19 of our legislative proposals,
we have worked over the last month around the clock with the
Administration to put together the best legislative package we could. I
share the Administration's goal of providing promptly the legal tools
necessary to deal with the current terrorist threat. While some have
complained publicly that the negotiations have gone on for too long,
the issues involved are of great importance, and we will have to live
with the laws we enact for a long time to come. Demands for action are
irresponsible when the roadmap is pointed in the wrong direction. As
Ben Franklin once noted, ``if we surrender our liberty in the name of
security, we shall have neither.''
Moreover, our ability to make rapid progress was impeded because the
negotiations with the Administration did not progress in a straight
line. On several key issues that are of particular concern to me, we
had reached an agreement with the Administration on Sunday, September
30. Unfortunately, over the next two days, the Administration announced
that it was reneging on the deal. I appreciate the complex task of
considering the concerns and missions of multiple Federal agencies, and
that sometimes agreements must be modified as their implications are
scrutinized by affected agencies. When agreements made by the
Administration must be withdrawn and negotiations on resolved issues
reopened, those in the Administration who blame the Congress for delay
with what the New York Times described as ``scurrilous remarks,'' do
not help the process move forward.
We expedited the legislative process in the Judiciary Committee to
consider the Administration's proposals. In daily news conferences
prior to the original passage of the USA Act, the Attorney General
referred to the need for such prompt consideration. He made time to
appear before the Judiciary Committee at a hearing September 25 to
respond to questions that Members from both parties had about the
Administration's initial legislative proposals. I thank the Attorney
General for extending the hour and a half he was able to make in his
schedule for the hearing for another 15 minutes so that Senator
Feinstein and Senator Specter were able to ask questions before his
departure. I regret that the Attorney General did not have the time to
respond to questions from all the Members of the Committee either on
September 25 or at any time since. He promised to answer the written
questions Members submitted about the legislation promptly, but we did
not receive any answers before passage of S. 1510, H.R. 2975, or H.R.
3162. I will make those answers a part of the hearing record whenever
they are received even after final passage of the legislation.
The Chairman of the Constitution Subcommittee, Senator Feingold, also
held an important hearing on October 3 on the civil liberties
ramifications of the expanded surveillance powers requested by the
Administration. I thank him for his assistance in illuminating these
critical issues for the Senate.
To accede to the Administration's request for prompt consideration of
the USA Act, the Leaders decided to hold the bill at the desk rather
than refer it to the Committee for markup, as is regular practice.
Senator Hatch specifically urged that this occur. Indeed, when the
Senate considered the anti-terrorism act in 1995 after the Oklahoma
City bombing, we bypassed the Committee in order to deal with the
legislation more promptly on the floor.
After Senate consideration and passage on the one-month anniversary
of the terrorist attack, the House Republican leadership decided to
proceed with a version of the Senate-passed bill rather than the bill
reported by the House Judiciary Committee. H.R. 2975 passed the House
with opposition on October 12. Unfortunately, the House did not take
the traditional step of requesting a conference to reconcile the bills.
In an apparent effort by the Administration and House Republican
leadership to try to pressure the Senate to accept that version of the
bill, without strong money laundering or biological weapons provisions
and with a 5-year sunset, the House failed to take the procedural steps
necessary to convene a conference. Had a conference been requested and
begun, a final bill would have been passed last week. Instead, without
a structure or process, discussions were less concentrated and it was
only after a leadership meeting late last week that the major outline
of the measure was agreed upon.
During the negotiations over the past two weeks, the Administration
sought to eliminate the sunset altogether, but that effort failed. The
House insisted that the amendments to the so-called ``McDade law'' be
dropped, and the Administration acquiesced. Eventually, the House
accepted the Senate's position on the need to include both money
laundering and biological weapons provisions. Even then, the House
Republican leadership reneged on the agreement to proceed by way of a
traditional House-Senate conference. Instead, they opted to proceed by
a new bill passed by the House in short order and sent to the Senate as
an amendable measure. That brings us to today.
Given the expedited process that has been used to move this
legislation through the House and now to the Senate, I will take more
time than usual to detail its provisions.
This bill has raised serious and legitimate concerns about the
expansion of authorities for government surveillance and intelligence
gathering within this country. Indeed, this bill will change
surveillance and intelligence procedures for all types of criminal and
foreign intelligence investigations, not just for terrorism cases.
Significantly, the sunset provision included in the final bill calls
for vigilant legislative oversight, so that the Congress will know how
these legal authorities are
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used and whether they are abused over the next four years.
We should be clear at the outset that while the sunset applies to the
expanded surveillance authorities under FISA, it does not apply to
other controversial provisions in the bill. As originally passed by the
House, the sunset did not apply to the provisions on sharing grand jury
information with intelligence agencies, in section 203(a), and the so-
called ``sneak and peak'' authority for surreptitious search and
seizure, in section 213. The final bill, H.R. 3162, removes two more
provisions from the sunset--the expanded scope of subpoenas for records
of electronic communications, in section 210, and the new authority for
pen registers and trap and trace devices in criminal investigations, in
section 216.
Congressional oversight is especially necessary to monitor the
implementation of these new authorities. I agree with Leader Armey that
the sunset will help ensure that law enforcement is responsive to
congressional oversight and inquiries on use of these new authorities
and that a full record is developed on their efficacy and necessity.
The Senate Judiciary Committee has the challenging duty to establish
and maintain an oversight regime that allows the Congress to know how
these powers are exercised.
This bill will authorize the expanded sharing with intelligence
agencies of information collected as part of a criminal investigation,
and the expanded use of foreign intelligence surveillance tools and
information in criminal investigations. Where foreign-sponsored
terrorism is the target of an investigation, criminal and foreign
intelligence jurisdictions clearly overlap and agencies must coordinate
their efforts accordingly. This bill enters new and uncharted territory
by breaking down traditional barriers between law enforcement and
foreign intelligence. This is not done just to combat international
terrorism, but for any criminal investigation that overlaps a broad
definition of ``foreign intelligence.''
Yet, before final passage of this bill, the Senate should recall our
nation's unfortunate experience with domestic surveillance and
intelligence abuses that came to light in the mid-1970s. Until
Watergate and the Vietnam war, Congress allowed the Executive branch
virtually a free hand in using the FBI, the CIA, and other intelligence
agencies to conduct domestic surveillance in the name of national
security. It was the Cold War, Members of Congress were reluctant to
take on FBI Director J. Edgar Hoover, and oversight was non-existent.
One of the few safeguards enacted into law drew a sharp line between
foreign intelligence and law enforcement. The National Security Act of
1947, which established the Central Intelligence Agency, said--and
still says today--that the CIA ``shall have no police, subpoena, or law
enforcement powers or internal security functions.''
The provisions on the disclosure of ``foreign intelligence'' from
Federal criminal investigations make fundamental changes in the rules
for the handling of highly sensitive personal, political and business
information acquired for law enforcement purposes. Such information may
now be disclosed to intelligence, defense, and national security
agencies. The law is changed not only to permit the wider sharing of
information from grand juries, domestic law enforcement wiretaps, and
criminal investigations generally (in section 203), but also to require
Federal law enforcement agencies to share this information with
intelligence agencies through the Director of Central Intelligence,
unless the Attorney General makes exceptions (in section 905).
There would be far less controversy if these provisions were limited
to information about domestic or international terrorism or espionage.
Instead, they potentially authorize the disclosure throughout
intelligence, military, and national security organizations of a far
broader range information about United States persons, including
citizens, permanent resident aliens, domestic political groups, and
companies incorporated in the United States. The information may be
shared if it fits the broad definitions of ``foreign intelligence'' and
``foreign intelligence information.''
The term ``foreign intelligence'' is defined to mean ``information
relating to the capabilities, intentions, or activities of foreign
governments or elements thereof, foreign organizations, or foreign
persons, or international terrorist activities.'' The term ``foreign
intelligence information'' is defined to include information about a
United States person that concerns a foreign power or foreign territory
and ``that relates to the national defense or the security of the
United States'' or ``the conduct of the foreign affairs of the United
States.'' Therefore, potentially, whenever a criminal investigation
acquires information about an American citizen's relationship with a
foreign country or its government, that information is eligible to be
disseminated widely as ``foreign intelligence information''--even if
the information is about entirely lawful activities, business
transactions, political relationships, or personal opinions.
Criminal investigations acquire voluminous information about persons
who are not involved in illegal activity. Many individuals are
investigated and later cleared. Many cases are investigated and never
prosecuted. Many witnesses are interviewed whose testimony never
surfaces at trial. Immunity is granted to compel testimony before grand
juries about people who are never indicted. Wiretaps and microphone
``bugs'' and computer communications intercepts pick up extensive
information about activities and opinions and personal lives that have
no relevance to the criminal activity that they are authorized to
detect or monitor. Where regulatory or tax laws carry criminal
penalties, investigators probe the confidential financial details of
business transactions and records. Federal criminal investigators have
enormous discretion, with little statutory or constitutional guidance
for how they interview people, conduct physical surveillance, recruit
informants in organizations, and request access to records they
consider ``relevant'' to an investigation. All that information would
be eligible to be disseminated widely within the government, beyond the
purposes of the criminal investigation, if it meets the definition of
``foreign intelligence'' or ``foreign intelligence information.''
The risks of misusing this information were documented 25 years ago,
when the Congress made public the record of Cold War abuses of
investigative powers by Federal agencies acting in the name of national
security. The Senate created a Select Committee To Study Governmental
Affairs With Respect to Intelligence Communities, chaired by Senator
Frank Church, to conduct a year-long investigation with extensive
public hearings and detailed reports on the investigations of lawful
political dissent and protest. The Church Committee found that the
FBI's internal security and domestic intelligence programs compiled
massive files on activities protected by the First Amendment and the
political opinions of Americans.
During the height of antiwar protest and urban unrest in the late
1960's, Army intelligence joined the FBI in monitoring domestic
political activity. National intelligence agencies such as CIA and NSA
received extensive reporting from the FBI and the military, as well as
from their own intelligence gathering on critics of government policy.
Other law enforcement agencies such as the Internal Revenue Service
were used to selectively investigate organizations based on their
political views. Under President's of both parties, these agencies
disseminated information to the White House about the lawful political
activities and opinions of critics of Administration policy--all under
the rubric of protecting the national security. The scope of
intelligence gathering swept up environmental groups, women's
liberation activists, and virtually any organization that mounted
peaceful protest demonstrations.
During this unfortunate period in our history, the government did
more than just gather information about protest and dissent. The FBI
developed a systematic program to disrupt domestic groups and discredit
their leaders, known as ``COINTELPRO.'' The FBI's efforts included the
selective sharing of information from its investigations to deny people
employment and smear their reputations. Beginning with Communist and
socialist groups, the FBI's COINTELPRO operations spread in the 1960s
to the Klan, the ``new left,'' and black militants. Elements of the
civil
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rights and antiwar movements were targeted for disruption because of
suspicion that they were ``influenced'' by communists; others because
of their strident rhetoric. When some targets were suspected of
engaging in violence, the FBI's tactics went so far as to place lives
in jeopardy by passing false allegations that individuals were
government informants.
The most notorious case was J. Edgar Hoover's vendetta against Dr.
Martin Luther King, Jr. The Church Committee documented the FBI's
effort to discredit Dr. King by disclosing confidential information
that was obtained from wiretaps and microphones targeted against him.
The wiretaps were justified to the Kennedy and Johnson Administrations
on the grounds that some of Dr. King's advisors were Communists, but
this excuse allowed the FBI to mount continuous political surveillance
to undermine Dr. King's effectiveness. The FBI disseminated allegedly
derogatory information not only within the government, but to media and
other private organizations including efforts to deny Dr. King the
Nobel Peace Prize. Most vicious of all was the FBI's preparation of a
composite tape recording that was sent to him anonymously with an
apparent invitation to commit suicide. During the 1964 Democratic
National Convention in Atlantic City where the greatest controversy
involved seating the Mississippi Freedom Democratic Party delegates,
the FBI provided the Johnson White House a continuous flow of political
intelligence from the wiretaps on Dr. King's telephones in Atlantic
City.
These methods of domestic political surveillance and covert
manipulation and disruption have no place in a free society. They are
lawful for the CIA to use against terrorists abroad, under Presidential
authorization and oversight by the Intelligence Committees. In the
United States, however, such surveillance activities by our government
offends our fundamental First Amendment rights of speech and
association, and undermines our democratic values. Since the Church
Committee investigation, one of the main reasons for maintaining
barriers between domestic criminal investigations and foreign
intelligence operations has been a concern that the no-hold-barred
methods used abroad must not be brought back into this country.
The Church Committee recommended a series of safeguards to restrict
the collection of information about Americans by the CIA, the National
Security Agency, and other U.S. intelligence agencies. The Attorney
General issued guidelines for FBI investigations and Presidents issued
Executive Orders requiring procedures approved by the Attorney General
for the collection and retention of information about Americans by U.S.
intelligence agencies. These guidelines and procedures have served for
the past 25 years as a stable framework that, with rare exceptions, has
not allowed previous abuses to recur.
The most significant legislative result of the Church Committee
investigation was the Foreign Intelligence Surveillance Act of 1978
which required court orders for national security electronic
surveillance in the United States. No longer did the Executive branch
have exclusive control over the vast powers of U.S. intelligence to
conduct wiretapping, bugging, and other communications monitoring in
this country. Surveillance was limited to foreign powers and agents of
foreign powers, and the statutory probable cause standard for targeting
an American as an ``agent of a foreign power'' required a showing of
clandestine intelligence activities, sabotage, or international
terrorist activities on behalf of a foreign power. Americans could not
be targeted solely on the basis of activities protected by the First
Amendment. Surveillance of Americans under FISA was limited to
counterintelligence purposes to defend the nation against foreign
spying and terrorism. Americans could not be considered ``agents of a
foreign power'' on the basis of their lawful business or political
relationships with foreign governments or organizations.
The Congress has been cautious in the decades following the
revelations of the Church Committee about allowing use of criminal
justice information for other purposes and, specifically, on sharing
such information with intelligence agencies. In 1979 Attorney General
Benjamin Civiletti testified before the House Judiciary Subcommittee on
Constitutional Rights that the guidelines for ``any dissemination
outside the Bureau . . . will have to be very, very specific. We will
have to be very certain the dissemination is lawful, meets the same
standards of certainty, of intent, which is the basic reason for the
collection of the information and the investigation. . . .'' On the
issue of FBI sharing with the CIA, Attorney General Civiletti said
``you have to be extremely careful in working out, pursuant to the law,
the information which is being exchanged, what its purpose is, how it
was obtained and collected, so that you are not inadvertently, out of a
sense of cooperation or efficiency, perverting or corrupting the fact
that the CIA's main duty is foreign intelligence, and they have no
charter, no responsibility, and not duty performance, no mission to
investigate criminal acts in the United States.''
The bill we are passing today makes potentially sweeping changes in
the relationships between the law enforcement and intelligence
agencies. In the current crisis, there is justification for expanding
authority specifically for counterintelligence to detect and prevent
international terrorism. I support the FBI request for broader
authority under FISA for pen registers and access to records without
having to meet the statutory ``agent of a foreign power'' standard,
because the Fourth Amendment does not normally apply to such techniques
and the FBI has comparable authority in its criminal investigations.
However, I have insisted that this authority to investigate U.S.
persons be limited to counterintelligence investigations conducted to
protect against international terrorism and spying activities and that
such investigations may not be based solely on activities protected by
the First Amendment. None of the changes in FISA would authorize
investigations of Americans for the broader, more ambiguous purpose of
collecting ``foreign intelligence'' generally. In that respect, the
bill adheres to the basic principles recommended by the Church
Committee.
The gravest departure from that framework, and the one with most
potential for abuses, is the new and unprecedented statutory authority
for sharing of ``foreign intelligence'' from criminal investigations
with ``any other Federal law enforcement, intelligence, protective,
immigration, national defense, or national security official.'' The
Church Committee warned of the political abuse of the dissemination of
intelligence from domestic investigations. Intelligence was
disseminated to the White House to track the contacts of members of
Congress with particular foreign embassies. Information was volunteered
to the White House about Administration critics and other political
figures. The Church Committee found ``excessive dissemination of large
amounts of relatively useless or totally irrelevant information'' to
the White House that was not evaluated and ``thus exaggerated the
dangers.''
The Church Committee recommended permitting FBI dissemination of
personally identifiable information about Americans to intelligence,
military and other national security agencies in two areas--
``preventive criminal investigations of terrorist activities'' and
``preventive intelligence investigations of hostile foreign
intelligence activities.'' This has been substantially the practice
under the Attorney General's guidelines and Executive order procedures
since then.
The new authority to disseminate ``foreign intelligence'' from
criminal investigations, including grand juries and law enforcement
wiretaps, is an invitation to abuse without special safeguards.
Fortunately, the final bill includes a provision, which was not in the
Administration's original proposal, to maintain some degree of judicial
oversight of the dissemination of grand jury information. Within a
``reasonable time'' after the disclosure of grand jury information, a
government attorney ``shall file under seal a notice with the court
stating the fact that such information was disclosed and the
departments, agencies, or entities to which the disclosure was made.''
No such judicial role is provided for the disclosure of information
from wiretaps and
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other criminal investigative techniques including the infiltration of
organizations with informants. However, that authority to disclose
without judicial review is subject to the sunset in four years.
Other safeguards can, if used properly, minimize the unnecessary
disclosure of ``foreign intelligence'' that identifies an American.
When the information comes from grand juries or wiretaps, the Attorney
General is required under the bill to establish procedures for the
disclosure of information that identifies a United States person. The
Senate Judiciary Committee will want to take a very close look at these
procedures. Although not required under the bill, such procedures would
also be desirable for disclosure of information from criminal
investigations generally, as permitted under section 203(d). In section
905, where the bill requires disclosure to intelligence agencies from
criminal investigations, the Attorney General is authorized to make
exceptions and must issue implementing procedures. Again, these
procedures will be closely examined by the Senate Judiciary Committee.
These procedures will be critical in determining the scope and impact
of these provisions. Will they focus the sharing of information on
international terrorism, which is the immediate and compelling need
before us, or will they sweep more broadly? Will they permit automatic
dissemination to intelligence agencies of any information about foreign
governments, foreign organizations, or foreign persons that is obtained
in FBI investigations of international organized crime and white collar
crime? What are the specific circumstances under which confidential
information collected by particular agencies, such as the Internal
Revenue Service or the Bureau of Alcohol, Tobacco and Firearms, will be
disseminated to the U.S. Military or other agencies? What will be the
guidelines for including information that identifies United States
persons? How will need-to-know decisions be made on the handling of
this information, and how will access be controlled? What will be done
to ensure compliance with the 1947 ban on CIA having ``police,
subpoena, or law enforcement powers or internal security functions?''
These and many other questions must be the subject of the Judiciary
Committee's oversight of the implementation of the surveillance and
intelligence provisions of this bill. Our government is entering
uncharted territory. Much of the government's experience from the Cold
War era before the mid-1970s warns us of the risks of abuse. Reasonable
measures that we are taking to protect against international terrorism
may have far-reaching ramifications beyond the immediate crisis. There
has never been a greater need for Congressional vigilance to ensure
against unnecessary and improper use of the wide discretion being
granted by a new law. I intend to ask the Attorney General and the
Director of Central Intelligence to advise the Judiciary Committee of
their implementation plans and practices every step of the way.
The final bill includes a long overdue remedy for unauthorized
disclosure of information obtained from electronic surveillance under
FISA and under criminal procedures. If the government monitors the
conversations of a person under the electronic surveillance procedures
of title 18 or FISA and that information is disclosed without proper
authority, the aggrieved person may recover money damages from the
Federal Government. Such improper disclosure is what happened in the
past when the FBI passed information from the electronic surveillance
of Dr. Martin Luther King to selected private individuals and
organizations in an effort to discredit Dr. King. The government itself
would be liable, in addition to individual employees, if something like
this ever happens again.
This provision is especially valuable in this bill, because of the
expanded sharing of information from electronic surveillance in
criminal cases to agencies with intelligence, military, and other
national security responsibilities. When this kind of sensitive
information is disseminated more widely, the risk increases that it
will be leaked.
As a deterrent against malicious leaks, this provision wisely
includes procedures for administrative discipline as well as the civil
remedy against the Government. When a court or the appropriate agency
determines that there is serious question about whether or not an
employee willfully disclosed information without proper authority,
disciplinary proceedings must be initiated. If the agency head decides
that discipline is not warranted, he or she must notify the Inspector
General with jurisdiction over the agency and provide the reasons for
the decision not to impose discipline.
Representative Barny Frank deserves credit for developing this
proposal, and the Department of Justice has worked with Representative
Frank to ensure that the procedures for civil discovery take into
account the needs for protecting related criminal investigations or
prosecutions and classified operations under the Foreign Intelligence
Surveillance Act.
When Congress authorized electronic surveillance in 1968 under title
18 and in 1978 under FISA, the legislation imposed civil and criminal
sanctions for violations by individuals. This bill takes the law two
steps forward by adding government liability and administrative
discipline against government employees. Along with the sunset
provision, judicial oversight of the sharing of grand jury information,
and other improvements, the Frank amendment reflects the valuable
contribution of the House of Representatives towards making this a
balanced bill.
The heart of every American aches for those who died or have been
injured because of the tragic terrorist attacks in New York, Virginia,
and Pennsylvania on September 11. Even now, we cannot assess the full
measure of this attack in terms of human lives, but we know that the
number of casualties is extraordinarily high.
Congress acted swiftly to help the victims of September 11. Within 10
days, we passed legislation to establish a Victims Compensations
Program, which will provide fair compensation to those most affected by
this national tragedy. I am proud of our work on that legislation,
which will expedite payments to thousands of Americans whose lives were
so suddenly shattered.
But now more than ever, we should remember the tens of thousands of
Americans whose needs are not being met--the victims of crimes that
have not made the national headlines. Just one day before the events
that have so transformed our nation, I came before this body to express
my concern that we were not doing more for crime victims. I noted that
the pace of victims legislation had slowed, and that many opportunities
for progress had been squandered. I suggested that this year, we had a
golden opportunity to make significant progress in this area by passing
S. 783, the Leahy-Kennedy Crime Victims Assistance Act of 2001.
I am pleased, therefore, that the antiterrorism package now before
the Senate contains substantial portions of S. 783 aimed at refining
the Victims of Crime Act of 1984 (VOCA), and improving the manner in
which the Crime Victims Fund is managed and preserved. Most
significantly, section 621 of the USA Act will eliminate the cap on
VOCA spending, which has prevented more than $700 million in Fund
deposits from reaching victims and supporting essential services.
Congress has capped spending from the Fund for the last two fiscal
years, and President Bush has proposed a third cap for fiscal year
2002. These limits on VOCA spending have created a growing sense of
confusion and unease by many of those concerned about the future of the
Fund.
We should not be imposing artificial caps on VOCA spending while
substantial unmet needs continue to exist. Section 621 of the USA Act
replaces the cap with a self-regulating system that will ensure
stability and protection of Fund assets, while allowing more money to
be distributed to the States for victim compensation and assistance.
Other provisions included from S. 783 will also make an immediate
difference in the lives of victims, including victims of terrorism.
Shortly after the Oklahoma City bombing, I proposed and the Congress
adopted the Victims of Terrorism Act of 1995. This legislation
authorized the Office for Victims of Crime (OVC) to set aside an
emergency reserve of up to $50 million as part of the Crime Victims
Fund. The emergency reserve was intended to serve as a ``rainy day''
fund to supplement compensation and assistance
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grants to States to provide emergency relief in the wake of an act of
terrorism or mass violence that might otherwise overwhelm the resources
of a State's crime victim compensation program and crime victim
assistance services. Last month's disaster created vast needs that have
all but depleted the reserve. Section 621 of the USA Act authorizes OVC
to replenish the reserve with up to $50 million, and streamlines the
mechanism for replenishment in future years.
Another critical provision of the USA Act will enable OVC to provide
more immediate and effective assistance to victims of terrorism and
mass violence occurring within the United States. I proposed this
measure last year as an amendment to the Justice for Victims of
Terrorism Act, but was compelled to drop it to achieve bipartisan
consensus. I am pleased that we are finally getting it done this year.
These and other VOCA reforms in the USA Act are long overdue. Yet, I
regret that we are not doing more. In my view, we should pass the Crime
Victims Assistance Act in its entirety. In addition to the provisions
that are included in today's bill, this legislation provides for
comprehensive reform of Federal law to establish enhanced rights and
protections for victims of Federal crime. It also proposes several
programs to help States provide better assistance for victims of State
crimes.
I also regret that we have not done more for other victims of recent
terrorist attacks. While all Americans are numbed by the heinous acts
of September 11, we should not forget the victims of the 1998 embassy
bombings in East Africa. Eleven Americans and many Kenyan and Tanzanian
nationals employed by the United States lost their lives in that tragic
incident. It is my understanding that compensation to the families of
these victims has in many instances fallen short. It is my hope that
OVC will use a portion of the newly replenished reserve fund to remedy
any inequity in the way that these individuals have been treated.
We cannot speak of the victims of the September 11 without also
noting that Arab-Americans and Muslims in this country have become the
targets of hate crimes, harassment, and intimidation. I applaud the
President for speaking out against and condemning such acts, and for
visiting a mosque to demonstrate by action that all religions are
embraced in this country. I also commend the FBI Director for his
periodic reports on the number of hate crime incidents against Arab-
American and Muslims that the FBI is aggressively investigating and
making clear that this conduct is taken seriously and will be punished.
The USA Act contains, in section 102, a sense of the Congress that
crimes and discrimination against Arab and Muslim Americans are
condemned, and in section 1002, a provision suggested by Senator Durbin
that condemns violence and discrimination against Sikh Americans. Many
of us would like to do more, and finally enact effective hate crimes
legislation, but the Administration has asked that the debate on that
legislation be postponed. One of my greatest regrets regarding the
negotiations in this bill was that objections prevented the Local Law
Enforcement Enhancement Act, S. 625, from being included in the USA
Act.
The Administration's initial proposal was entirely focused on Federal
law enforcement. Yet, we must remember that State and local law
enforcement officers have critical roles to play in preventing and
investigating terrorist acts. I am pleased that the bill we consider
today recognizes this fact.
As a former State prosecutor, I know that State and local law
enforcement officers are often the first responders to a crime. On
September 11, the nation saw that the first on the scene were the
heroic firefighters, police officers and emergency personnel in New
York City. These New York public safety officers, many of whom gave the
ultimate sacrifice, remind us of how important it is to support our
State and local law enforcement partners. The USA Act provides three
critical measures of Federal support for our State and local law
enforcement officers in the war against terrorism.
We streamline and expedite the Public Safety Officers' Benefits
application process for family members of fire fighters, police
officers and rescue workers who perish or suffer a disabling injury in
connection with prevention, investigation, rescue or recovery efforts
related to a future terrorist attack.
The Public Safety Officers' Benefits Program provides benefits for
each of the families of law enforcement officers, firefighters, and
emergency response crew members who are killed or disabled in the line
of duty. Current regulations, however, require the families of public
safety officers who have fallen in the line of duty to go through a
cumbersome and time-consuming application process. In the face of our
national fight against terrorism, it is important that we provide a
quick process to support the families of brave Americans who selflessly
give their lives so that others might live before, during, and after a
terrorist attack.
This provision builds on the new law championed by Senator Clinton,
Senator Schumer and Congressman Nadler to speed the benefit payment
process for families of public safety officers killed in the line of
duty in New York City, Virginia, and Western Pennsylvania, on September
11.
We have raised the total amount of Public Safety Officers' Benefit
Program payments from approximately $150,000 to $250,000. This
provision retroactively goes into effect to provide much-needed relief
for the families of the brave men and women who sacrificed their own
lives for their fellow Americans during the year. Although this
increase in benefits can never replace a family's tragic loss, it is
the right thing to do for the families of our fallen heroes. I want to
thank Senator Biden and Senator Hatch for their bipartisan leadership
on this provision.
We expand the Department of Justice Regional Information Sharing
Systems Program to promote information sharing among Federal, State and
local law enforcement agencies to investigate and prosecute terrorist
conspiracies and activities and authorize a doubling of funding for
this year and next year. The RISS Secure Intranet is a nationwide law
enforcement network that already allows secure communications among the
more than 5,700 Federal, State and local law enforcement agencies.
Effective communication is key to effective law enforcement efforts and
will be essential in our national fight against terrorism.
The RISS program enables its member agencies to send secure,
encrypted communications--whether within just one agency or from one
agency to another. Federal agencies, such as the FBI, do not have this
capability, but recognize the need for it. Indeed, on September 11,
immediately after the terrorist attacks, FBI Headquarters called RISS
officials to request ``Smartgate'' cards and readers to secure their
communications systems. The FBI agency in Philadelphia called soon
after to request more Smartgate cards and readers as well.
The Regional Information Sharing Systems Program is a proven success
that we need to expand to improve secure information sharing among
Federal, State and local law enforcement agencies to coordinate their
counter-terrorism efforts.
During negotiations following initial passage of the Senate and House
bills, we added two new provisions to support State and local
governments in the final legislation. At Senator Biden's request, the
First Responders Assistance Act, was added as section 1005 of H.R.
3062. This provision authorizes a $25 million Department of Justice
program to authorize grants to State and local authorities to respond
to and prevent acts of terrorism.
I authored section 1014 of H.R. 3062 to authorize a Department of
Justice grant program for State and local domestic preparedness
support. These grants will help each State prepare for and respond to
terrorist acts including but not limited to events of terrorism
involving weapons of mass destruction and biological, nuclear,
radiological, incendiary, chemical, and explosive devices. This
provision improves an appropriated program to provide: 1, additional
flexibility to purchase needed equipment; 2, training and technical
assistance to State and local first responders; and 3, a more equitable
allocation of funds to all States.
Our State and local law enforcement partners welcome the challenge to
join in our national mission to combat terrorism. We cannot ask State
and local
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law enforcement officers to assume these new national responsibilities
without also providing new Federal support. This bill provides five key
provisions for necessary Federal support for our State and local law
enforcement officers to serve as full partners in our fight against
terrorism.
I am deeply troubled by continuing reports that critical information
is not being shared with State and local law enforcement. In
particular, the recent testimony of Baltimore Police Chief Ed Norris
before the House Government Reform Committee highlighted the current
problem. I have also spoken to Mayor Giuliani and to Senator Schumer
and Senator Clinton about the need for better coordination and
information sharing between the FBI and State and local law enforcement
authorities who are being called upon to assist in the current
terrorism investigations. This is no time for turf battles. The FBI
must recognize the contributions of other law enforcement authorities
and facilitate their continued cooperation in this national effort.
The unfolding facts about how the terrorists who committed the
September 11 attack were able to enter this country without difficulty
are chilling. Since the attacks many have pointed to our northern
border as vulnerable to the entry of future terrorists. This is not
surprising when a simple review of the numbers shows that the northern
border has been routinely short-changed in personnel. While the number
of border patrol agents along the southern border has increased over
the last few years to over 8,000, the number at the northern border has
remained the same as a decade ago at 300. This remains true despite the
fact that Admad Ressam, the Algerian who planned to blow up the Los
Angeles International Airport in 1999, and who has been linked to those
involved in the September 11 attacks, chose to enter the United States
at our northern border. That border will remain an inviting target
until we dramatically improve our security.
The USA Act includes my proposals to provide the substantial and long
overdue assistance for our law enforcement and border control efforts
along the Northern Border. My home State of Vermont has seen huge
increases in Customs and INS activity since the signing of the North
American Free Trade Agreement. The number of people coming through our
borders has risen steeply over the years, but our staff and our
resources have not.
I proposed--and this legislation authorizes in section 402--tripling
the number of Border Patrol, INS inspectors, and Customs Service
employees in each of the States along the 4,000-mile Northern Border. I
was gratified when 22 Senators--Democrats and Republicans--wrote to the
President supporting such an increase, and now hope that the
Administration will fully fund this critical law enforcement
improvement.
Senators Cantwell and Schumer in the Committee and Senators Murray
and Dorgan have been especially strong advocates of these provisions
and I thank them for their leadership. In addition, the USA Act, in
section 401, authorizes the Attorney General to waive the FTE cap on
INS personnel in order to address the national security needs of the
United States on the northern border. Now more than ever, we must
patrol our border vigilantly and prevent those who wish America harm
from gaining entry. At the same time, we must work with the Canadians
to allow speedy crossing to legitimate visitors and foster the
continued growth of trade which is beneficial to both countries.
In addition to providing for more personnel, this bill also includes,
in section 402(4), my proposal to provide $100 million in funding for
both the INS and the Customs Service to improve the technology used to
monitor the Northern Border and to purchase additional equipment. The
bill also includes, in section 403(c), an important provision from
Senator Cantwell directing the Attorney General, in consultation with
other agencies, to develop a technical standard for identifying
electronically the identity of persons applying for visas or seeking to
enter the United States. In short, this bill provides a comprehensive
high-tech boost for the security of our nation.
This bill also includes important proposals to enhance data sharing.
The bill, in section 403, directs the Attorney General and the FBI
Director to give the State Department and INS access to the criminal
history information in the FBI's National Crime Information Center
(NCIC) database, as the Administration and I both proposed. The
Attorney General is directed to report back to the Congress in two
years on progress in implementing this requirement. We have also
adopted the Administration's language, in section 413, to make it
easier for the State Department to share information with foreign
governments for aid in terrorist investigations.
The USA Act contains a number of provisions intended to improve and
update the Federal criminal code to address better the nature of
terrorist activity and assist the FBI in translating foreign language
information collected. I will mention just a few of these provisions.
The truth certainly seems self-evident that all the best surveillance
techniques in the world will not help this country defend itself from
terrorist attack if the information cannot be understood in a timely
fashion. Indeed, within days of September 11, the FBI Director issued
an employment ad on national TV calling upon Arabic speakers to apply
for a job as an FBI translator. This is a dire situation that needs
attention. I am therefore gratified that the final bill contains my
proposal, in section 205, to waive any Federal personnel requirements
and limitations imposed by any other law in order to expedite the
hiring of translators at the FBI.
This bill also directs the FBI Director to establish such security
requirements as are necessary for the personnel employed as
translators. We know the effort to recruit translators has a high
priority, and the Congress should provide all possible support.
Therefore, the bill calls on the Attorney General to report to the
Judiciary Committees on the number of translators employed by the
Justice Department; any legal or practical impediments to using
translators employed by other Federal, State, or local agencies, on a
full, part-time, or shared basis; and the needs of the FBI for specific
translation services in certain languages, and recommendations for
meeting those needs.
The Administration's initial proposal assembled a laundry list of
more than 40 Federal crimes ranging from computer hacking to malicious
mischief to the use of weapons of mass destruction, and designated them
as ``Federal terrorism offenses,'' regardless of the circumstances
under which they were committed. For example, a teenager who spammed
the NASA website and, as a result, recklessly caused damage, would be
deemed to have committed this new ``terrorism'' offense. Under the
Administration's proposal, the consequences of this designation were
severe. Crimes on the list would carry no statute of limitations. The
maximum penalties would shoot up to life imprisonment, and those
released earlier would be subject to a lifetime of supervised release.
Moreover, anyone who harbored a person whom he had ``reasonable grounds
to suspect'' had committed, or was about to commit, a ``Federal
terrorism offense''--whether it was the Taliban or the mother of my
hypothetical teenage computer hacker--would be subject to stiff
criminal penalties. I worked closely with the Administration to ensure
that the definition of ``terrorism'' in the USA Act fit the crime.
First, we have trimmed the list of crimes that may be considered as
terrorism predicates in section 808 of the bill. This shorter, more
focused list, to be codified at 18 U.S.C. Sec. 2332(g)(5)(B), more
closely reflects the sorts of offenses committed by terrorists.
Second, we have provided, in section 809, that the current 8-year
limitations period for this new set of offenses will remain in place,
except where the commission of the offense resulted in, or created a
risk of, death or serious bodily injury.
Third, rather than make an across-the-board, one-size-fits-all
increase of the penalties for every offense on the list, without regard
to the severity of the offense, we have made, in section 810, more
measured increases in maximum penalties where appropriate, including
life imprisonment or lifetime supervised release in cases in which the
offense resulted in death. We have also
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added, in section 811, conspiracy provisions to a few criminal statutes
where appropriate, with penalties equal to the penalties for the object
offense, up to life imprisonment.
Finally, we have more carefully defined the new crime of harboring
terrorists in section 803, so that it applies only to those harboring
people who have committed, or are about to commit, the most serious of
Federal terrorism-related crimes, such as the use of weapons of mass
destruction. Moreover, it is not enough that the defendant had
``reasonable grounds to suspect'' that the person he was harboring had
committed, or was about to commit, such a crime; the government must
prove that the defendant knew or had ``reasonable grounds to believe''
that this was so.
I am deeply disappointed that the amendments to the so-called McDade
law, which were included in the original USA Act, S. 1510, which passed
the Senate, are not included in the bill before the Senate today. Well
before September 11, the Justice Department has said that the McDade
law--which subjects Federal prosecutors to multiple and potentially
conflicting State bar rules--has delayed important criminal
investigations, prevented the use of effective and traditionally-
accepted investigative techniques, and served as the basis of
litigation to interfere with legitimate Federal prosecutions. Despite
this record of opposition, and the increasing demands upon Federal
prosecutors in the wake of the terrorist attacks, the Administration
simply acceded to House demands to remove this provision of the USA
Act. This abandonment has removed a critical law enforcement provision
from the bill. No one in the Senate knows more about the importance of
this provision than Senator Wyden, who worked strenuously to include
the McDade law in this bill. But his efforts and mine proved unavailing
without Administration backing through the entire process.
The McDade law has a dubious history, to say the least. At the end of
the 105th Congress, it was slipped into an omnibus appropriations bill
over the objection of every member of the Senate Judiciary Committee.
Since it was adopted, it has caused numerous problems for Federal
prosecutors, and we must find a way to amend it before more cases are
compromised. At a time when we need Federal law enforcement authorities
to move quickly to catch those responsible for the September 11
attacks, and to prevent further attacks on our country, we can no
longer tolerate the drag on Federal investigations and prosecutions
caused by this ill-considered legislation.
Another provision of the USA Act that was not included in the
Administration's initial proposal is section 801, which targets acts of
terrorism and other violence against mass transportation systems.
Earlier this month, a Greyhound bus crashed in Tennessee after a
deranged passenger slit the driver's throat and then grabbed the
steering wheel, forcing the bus into oncoming traffic. Six people were
killed in the crash. Because there are currently no Federal laws
addressing terrorism of mass transportation systems, however, there may
be no Federal jurisdiction over such a case, even if it were committed
by suspected terrorists. Clearly, there is an urgent need for strong
criminal legislation to deter attacks against mass transportation
systems. Section 801 will fill this gap.
The Computer Fraud and Abuse Act, 18 U.S.C. Sec. 1030, is the
primary Federal criminal statute prohibiting computer frauds and
hacking. I worked with Senator Hatch in the last Congress to make
improvements to this law in the Internet Security Act, which passed the
Senate as part of another bill. Our work is included in section 814 of
the USA Act. This section would amend the statute to clarify the
appropriate scope of Federal jurisdiction. (1) The bill adds a
definition of ``loss'' to cover any reasonable cost to the victim in
responding to a computer hacker. Calculation of loss is important both
in determining whether the $5,000 jurisdictional hurdle in the statute
is met, and, at sentencing, in calculating the appropriate guideline
range and restitution amount.
(2) The bill amends the definition of ``protected computer,'' to
include qualified computers even when they are physically located
outside of the United States. This clarification will preserve the
ability of the United States to assist in international hacking cases
and finally, this section eliminates the current directive to the
Sentencing Commission requiring that all violations, including
misdemeanor violations, of certain provisions of the Computer Fraud and
Abuse Act be punished with a term of imprisonment of at least six
months.
Borrowing from a bill introduced in the last Congress by Senator
Biden, the USA Act contains a provision in section 817 to strengthen
our Federal laws relating to the threat of biological weapons. At a
time when the national headlines are filled with news about anthrax and
other biological threats, it is fitting that the House added this
provision back to the bill after dropping it from H.R. 2975.
Unfortunately, the bill does not contain certain regulatory provisions
that the Administration initially proposed and later withdrew,
apparently due to its inability to resolve inter-agency conflicts.
Given the grave importance of this issue, I urge the Administration to
resolve these disputes and work with the Congress to provide these
additional protections.
Current law prohibits the possession, development, or acquisition of
biological agents or toxins ``for use as a weapon.'' Section 817 amends
the definition of ``for use as a weapon'' to include all situations in
which it can be proven that the defendant had any purpose other than a
peaceful purpose. This will enhance the government's ability to
prosecute suspected terrorists in possession of biological agents or
toxins, and conform the scope of the criminal offense in 18 U.S.C.
Sec. 175 more closely to the related forfeiture provision in 18 U.S.C.
Sec. 176. This section also contains a new statute, 18 U.S.C. Sec.
175b, which generally makes it an offense for certain restricted
persons, including non-resident aliens from countries that support
international terrorism, to possess a listed biological agent or toxin.
Of greater consequence, section 817 defines another additional
offense, punishable by up to 10 years in prison, of possessing a
biological agent, toxin, or delivery system ``of a type or in a
quantity that, under the circumstances,'' is not reasonably justified
by a peaceful purpose. As originally proposed by the Administration,
this provision specifically stated that knowledge of whether the type
or quantity of the agent or toxin was reasonably justified was not an
element of the offense. Thus, although the burden of proof is always on
the government, every person who possesses a biological agent, toxin,
or delivery system was at some level of risk. At my urging, the
Administration agreed to drop this portion of the provision.
Nevertheless, I remain troubled by the subjectivity of the
substantive standard for violation of this new criminal prohibition,
and question whether it provides sufficient notice under the
Constitution. I also share the concerns of the American Society for
Microbiology and the Association of American Universities that this
provision will have a chilling effect upon legitimate scientific
inquiry that offsets any benefit in protecting against terrorism. While
we have tried to prevent against this by creating an explicit exclusion
for ``bona fide research,'' this provision may yet prove unworkable,
unconstitutional, or both. I urge the Justice Department and the
research community to work together on substitute language that would
provide prosecutors with a more workable tool.
Two sections of the USA Act were added at the request of the United
States Secret Service, with the support of the Administration. I was
pleased to accommodate the Secret Service by including these provisions
in the bill to expand Electronic Crimes Task Forces and to clarify the
authority of the Secret Service to investigate computer crimes.
The Secret Service is committed to the development of new tools to
combat the growing areas of financial crime, computer fraud, and
cyberterrorism. Recognizing a need for law enforcement, private
industry and academia to pool their resources, skills, and vision to
combat criminal elements in cyberspace, the Secret Service created the
New York Electronic Crimes Task Force (NYECTF). This highly successful
model includes
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over 250 individual members, including 50 different Federal, State and
local law enforcement agencies, 100 private companies, and 9
universities. Since its inception in 1995, the NYECTF has successfully
investigated a range of financial and electronic crimes, including
credit card fraud, identity theft, bank fraud, computer systems
intrusions, and e-mail threats against protectees of the Secret
Service. Section 105 of the USA Act authorizes the Secret Service to
develop similar task forces in cities and regions across the country
where critical infrastructure may be vulnerable to attacks from
terrorists or other cyber-criminals.
Section 506 of the USA Act gives the Secret Service concurrent
jurisdiction to investigate offenses under 18 U.S.C. Sec. 1030
relating to fraud and related activity in connection with computers.
Prior to the 1996 amendments to the Computer Fraud and Abuse Act, the
Secret Service was authorized to investigate any and all violations of
section 1030, pursuant to an agreement between the Secretary of
Treasury and the Attorney General. The 1996 amendments, however,
concentrated Secret Service jurisdiction on certain specified
subsections of section 1030. The current amendment would return full
jurisdiction to the Secret Service and would allow the Justice and
Treasury Departments to decide on the appropriate work-sharing balance
between the two. This will enable the Secret Service to investigate a
wide range of potential White House network intrusions, as well as
intrusions into remote sites (outside of the White House) that could
impact the safety and security of its protectees, and to continue its
missions to protect the nation's critical infrastructure and financial
payment systems.
The USA Act also authorizes, for the first time, a counter-terrorism
fund in the Treasury of the United States to reimburse Justice
Department for any costs incurred in connection with the fight against
terrorism. I first authored this counter-terrorism fund in S. 1319, the
21st Century Department of Justice Appropriations Authorization Act,
which Senator Hatch and I introduced in August.
Specifically, this counter-terrorism fund may be used: (1) to
reestablish an office or facility that has been damaged as the result
of any domestic or international terrorism incident; (2) to provide
support to counter, investigate, or prosecute domestic or international
terrorism, including paying rewards in connection with these
activities; (3) to conduct terrorism threat assessments of Federal
agencies; and (4) for costs incurred in connection with detaining
individuals in foreign countries who are accused of acts of terrorism
in violation of United States law.
This bill provides enhanced surveillance procedures for the
investigation of terrorism and other crimes. The challenge before us
has been to strike a reasonable balance to protect both the security
and the liberties of our people. In some respects, the changes made are
appropriate and important ones to update surveillance and investigative
procedures in light of new technology and experience with current law.
Yet, as I noted at the beginning of my statement, in other respects, I
have deep concerns that we may be increasing surveillance powers and
the sharing of criminal justice information without adequate checks on
how information may be handled and without adequate accountability in
the form of judicial review.
The bill contains a number of sensible proposals that should not be
controversial.
For example, sections 201 and 202 of the USA Act would add to the
list of crimes that may be used as predicates for wiretaps certain
offenses which are specifically tailored to the terrorist threat. In
addition to crimes that relate directly to terrorism, the list would
include crimes of computer fraud and abuse which are committed by
terrorists to support and advance their illegal objectives.
The bill, in section 206, would authorize the use of roving wiretaps
in the course of a foreign intelligence investigation and brings FISA
into line with criminal procedures that allow surveillance to follow a
person, rather than requiring a separate court order identifying each
telephone company or other communication common carrier whose
assistance is needed. This is a matter on which the Attorney General
and I reached early agreement. This is the kind of change that has a
compelling justification, because it recognizes the ease with which
targets of investigations can evade surveillance by changing phones. In
fact, the original roving wiretap authority for use in criminal
investigations was enacted as part of the Electronic Communications
Privacy Act, ECPA, in 1986. I was proud to be the primary Senate
sponsor of that earlier law.
Paralleling the statutory rules applicable to criminal
investigations, the formulation I originally proposed made clear that
this roving wiretap authority must be requested in the application
before the FISA court was authorized to order such roving surveillance
authority. Indeed, the Administration agrees that the FISA court may
not grant such authority sua sponte. Nevertheless, we have accepted the
Administration's formulation of the new roving wiretap authority, which
requires the FISA court to make a finding that the actions of the
person whose communications are to be intercepted could have the effect
of thwarting the identification of a specified facility or place. While
no amendment is made to the statutory directions for what must be
included in the application for a FISA electronic surveillance order,
these applications should include the necessary information to support
the FISA court's finding that roving wiretap authority is warranted.
Section 220 of this bill authorizes nationwide service of search
warrants in terrorism investigations. This will allow the judge who is
most familiar with the developments in a fast-breaking and complex
terrorism investigation to make determinations of probable cause, no
matter where the property to be searched is located. This will not only
save time by avoiding having to bring up-to-speed another judge in
another jurisdiction where the property is located, but also serves
privacy and Fourth Amendment interests in ensuring that the most
knowledgeable judge makes the determination of probable cause. The
bill, in section 209, also authorizes voice mail messages to be seized
on the authority of a probable cause search warrant rather than through
the more burdensome and time-consuming process of a wiretap.
The bill updates the laws pertaining to electronic records in three
primary ways. First, in section 210, the bill authorizes the nationwide
service of subpoenas for subscriber information and expands the list of
items subject to subpoena to include the means and source of payment
for the service.
In section 211, the bill equalizes the standard for law enforcement
access to cable subscriber records on the same basis as other
electronic records. The Cable Communications Policy Act, passed in 1984
to regulate various aspects of the cable television industry, did not
take into account the changes in technology that have occurred over the
last fifteen years. Cable television companies now often provide
Internet access and telephone service in addition to television
programming. This amendment clarifies that a cable company must comply
with the laws governing the interception and disclosure of wire and
electronic communications just like any other telephone company or
Internet service provider. The amendments would retain current
standards that govern the release of customer records for television
programming.
Finally, the bill, in section 212, permits, but does not require, an
electronic communications service to disclose the contents of and
subscriber information about communications in emergencies involving
the immediate danger of death or serious physical injury. Under current
law, if an ISP's customer receives an e-mail death threat from another
customer of the same ISP, and the victim provides a copy of the
communication to the ISP, the ISP is limited in what actions it may
take. On one hand, the ISP may disclose the contents of the forwarded
communication to law enforcement (or to any other third party as it
sees fit). See 18 U.S.C. Sec. 2702(b)(3). On the other hand, current
law does not expressly authorize the ISP to voluntarily provide law
enforcement with the identity, home address, and other subscriber
information of the user making the threat. See 18 U.S.C.
Sec. 2703(c)(1)(B),(C) (permitting disclosure
[[Page S10999]]
to government entities only in response to legal process). In those
cases where the risk of death or injury is imminent, the law should not
require providers to sit idly by. This voluntary disclosure, however,
in no way creates an affirmative obligation to review customer
communications in search of such imminent dangers.
Also, under existing law, a provider (even one providing services to
the public) may disclose the contents of a customer's communications--
to law enforcement or anyone else--in order to protect its rights or
property. See 18 U.S.C. Sec. 2702(b)(5). However, the current statute
does not expressly permit a provider voluntarily to disclose non-
content records (such as a subscriber's login records) to law
enforcement for purposes of self-protection. See 18 U.S.C.
Sec. 2703(c)(1)(B). Yet the right to disclose the content of
communications necessarily implies the less intrusive ability to
disclose non-content records. Cf. United States v. Auler, 539 F.2d 642,
646 n.9 (7th Cir. 1976) (phone company's authority to monitor and
disclose conversations to protect against fraud necessarily implies
right to commit lesser invasion of using, and disclosing fruits of, pen
register device) (citing United States v. Freeman, 524 F.2d 337, 341
(7th Cir. 1975)). Moreover, as a practical matter providers must have
the right to disclose the facts surrounding attacks on their systems.
When a telephone carrier is defrauded by a subscriber, or when an ISP's
authorized user launches a network intrusion against his own ISP, the
provider must have the legal ability to report the complete details of
the crime to law enforcement. The bill clarifies that service providers
have the statutory authority to make such disclosures.
There is consensus that the existing legal procedures for pen
register and trap-and-trace authority are antiquated and need to be
updated. I have been proposing ways to update the pen register and trap
and trace statutes for several years, but not necessarily in the same
ways as the Administration initially proposed. In fact, in 1998, I
introduced with then-Senator Ashcroft, the E-PRIVACY Act, S. 2067,
which proposed changes in the pen register laws. In 1999, I introduced
the E-RIGHTS Act, S. 934, also with proposals to update the pen
register laws.
Again, in the last Congress, I introduced the Internet Security Act,
S. 2430, on April 13, 2000, that proposed: 1, changing the pen register
and trap and trace device law to give nationwide effect to pen register
and trap and trace orders obtained by Government attorneys and obviate
the need to obtain identical orders in multiple Federal jurisdictions;
2, clarifying that such devices can be used for computer transmissions
to obtain electronic addresses, not just on telephone lines; and 3, as
a guard against abuse, providing for meaningful judicial review of
government attorney applications for pen registers and trap and trace
devices.
As the outline of my earlier legislation suggests, I have long
supported modernizing the pen register and trap and trace device laws
by modifying the statutory language to cover the use of these orders on
computer transmissions; to remove the jurisdictional limits on service
of these orders; and to update the judicial review procedure, which,
unlike any other area in criminal procedure, bars the exercise of
judicial discretion in reviewing the justification for the order. The
USA Act, in section 216, updates the pen register and trap and trace
laws only in two out of three respects I believe are important, and
without allowing meaningful judicial review. Yet, we were able to
improve the Administration's initial proposal, which suffered from the
same problems as the provision that was hastily taken up and passed by
the Senate, by voice vote, on September, 13, 2001, as an amendment to
the Commerce Justice State Appropriations Act.
The existing legal procedures for pen register and trap-and-trace
authority require service of individual orders for installation of pen
register or trap and trace device on the service providers that carried
the targeted communications. Deregulation of the telecommunications
industry has had the consequence that one communication may be carried
by multiple providers. For example, a telephone call may be carried by
a competitive local exchange carrier, which passes it at a switch to a
local Bell Operating Company, which passes it to a long distance
carrier, which hands it to an incumbent local exchange carrier
elsewhere in the U.S., which in turn may finally hand it to a cellular
carrier. If these carriers do not pass source information with each
call, identifying that source may require compelling information from
a host of providers located throughout the country.
Under present law, a court may only authorize the installation of a
pen register or trap device ``within the jurisdiction of the court.''
As a result, when one provider indicates that the source of a
communication is a carrier in another district, a second order may be
necessary. The Department of Justice has advised, for example, that in
1996, a hacker (who later turned out to be launching his attacks from a
foreign country) extensively penetrated computers belonging to the
Department of Defense. This hacker was dialing into a computer at
Harvard University and used this computer as an intermediate staging
point in an effort to conceal his location and identity. Investigators
obtained a trap and trace order instructing the phone company, Nynex,
to trace these calls, but Nynex could only report that the
communications were coming to it from a long-distance carrier, MCI.
Investigators then applied for a court order to obtain the connection
information from MCI, but since the hacker was no longer actually using
the connection, MCI could not identify its source. Only if the
investigators could have served MCI with a trap and trace order while
the hacker was actively on-line could they have successfully traced
back and located him.
In another example provided by the Department of Justice,
investigators encountered similar difficulties in attempting to track
Kevin Mitnick, a criminal who continued to hack into computers attached
to the Internet despite the fact that he was on supervised release for
a prior computer crime conviction. The FBI attempted to trace these
electronic communications while they were in progress. In order to
evade arrest, however, Mitnick moved around the country and used cloned
cellular phones and other evasive techniques. His hacking attacks would
often pass through one of two cellular carriers, a local phone company,
and then two Internet service providers. In this situation, where
investigators and service providers had to act quickly to trace Mitnick
in the act of hacking, only many repeated attempts--accompanied by an
order to each service provider--finally produced success. Fortunately,
Mitnick was such a persistent hacker that he gave law enforcement many
chances to complete the trace.
This duplicative process of obtaining a separate order for each link
in the communications chain can be quite time-consuming, and it serves
no useful purpose since the original court has already authorized the
trace. Moreover, a second or third order addressed to a particular
carrier that carried part of a prior communication may prove useless
during the next attack: in computer intrusion cases, for example, the
target may use an entirely different path (i.e., utilize a different
set of intermediate providers) for his or her subsequent activity.
The bill would modify the pen register and trap and trace statutes to
allow for nationwide service of a single order for installation of
these devices, without the necessity of returning to court for each new
carrier. I support this change.
The language of the existing statute is hopelessly out of date and
speaks of a pen register or trap and trace ``device'' being
``attached'' to a telephone ``line.'' However, the rapid
computerization of the telephone system has changed the tracing
process. No longer are such functions normally accomplished by physical
hardware components attached to telephone lines. Instead, these
functions are typically performed by computerized collection and
retention of call routing information passing through a communications
system.
The statute's definition of a ``pen register'' as a ``device'' that
is ``attached'' to a particular ``telephone line'' is particularly
obsolete when applied to the wireless portion of a cellular phone call,
which has no line to which anything can be attached. While courts have
authorized pen register orders for wireless phones based on the
[[Page S11000]]
notion of obtaining access to a ``virtual line,'' updating the law to
keep pace with current technology is a better course.
Moreover, the statute is ill-equipped to facilitate the tracing of
communications that take place over the Internet. For example, the pen
register definition refers to telephone ``numbers'' rather than the
broader concept of a user's communications account. Although pen
register and trap orders have been obtained for activity on computer
networks, Internet service providers have challenged the application of
the statute to electronic communications, frustrating legitimate
investigations. I have long supported updating the statute by removing
words such as ``numbers . . . dialed'' that do not apply to the way
that pen/trap devices are used and to clarify the statute's proper
application to tracing communications in an electronic environment, but
in a manner that is technology neutral and does not capture the content
of communications. That being said, I have been concerned about the FBI
and Justice Department's insistence over the past few years that the
pen/trap devices statutes be updated with broad, undefined terms that
continue to flame concerns that these laws will be used to intercept
private communications content.
The Administration's initial pen/trap device proposal added the terms
``routing'' and ``addressing'' to the definitions describing the
information that was authorized for interception on the low relevance
standard under these laws. The Administration and the Department of
Justice flatly rejected my suggestion that these terms be defined to
respond to concerns that the new terms might encompass matter
considered content, which may be captured only upon a showing of
probable cause, not the mere relevancy of the pen/trap statute.
Instead, the Administration agreed that the definition should expressly
exclude the use of pen/trap devices to intercept ``content,'' which is
broadly defined in 18 U.S.C. 2510(8).
While this is an improvement, the FBI and Justice Department are
short-sighted in their refusal to define these terms. We should be
clear about the consequence of not providing definitions for these new
terms in the pen/trap device statutes. These terms will be defined, if
not by the Congress, then by the courts in the context of criminal
cases where pen/trap devices have been used and challenged by
defendants. If a court determines that a pen register has captured
``content,'' which the FBI admits such devices do, in violation of the
Fourth Amendment, suppression may be ordered, not only of the pen
register evidence by any other evidence derived from it. We are leaving
the courts with little or no guidance of what is covered by
``addressing'' or ``routing.''
The USA Act also requires the government to use reasonably available
technology that limits the interceptions under the pen/trap device laws
``so as not to include the contents of any wire or electronic
communications.'' This limitation on the technology used by the
government to execute pen/trap orders is important since, as the FBI
advised me in June 2000, pen register devices ``do capture all
electronic impulses transmitted by the facility on which they are
attached, including such impulses transmitted after a phone call is
connected to the called party.'' The impulses made after the call is
connected could reflect the electronic banking transactions a
caller makes, or the electronic ordering from a catalogue that a
customer makes over the telephone, or the electronic ordering of a
prescription drug.
This transactional data intercepted after the call is connected is
``content.'' As the Justice Department explained in a May 1998 letter
to then-House Judiciary Committee Chairman Henry Hyde, ``the retrieval
of the electronic impulses that a caller necessarily generated in
attempting to direct the phone call'' does not constitute a ``search''
requiring probable cause since ``no part of the substantive information
transmitted after the caller had reached the called party'' is
obtained. But the Justice Department made clear that ``all of the
information transmitted after a phone call is connected to the called
party . . . is substantive in nature. These electronic impulses are the
`contents' of the call: They are not used to direct or process the
call, but instead convey certain messages to the recipient.''
When I added the direction on use of reasonably available technology
(codified as 18 U.S.C. 3121(c)) to the pen register statute as part of
the Communications Assistance for Law Enforcement Act (CALEA) in 1994,
I recognized that these devices collected content and that such
collection was unconstitutional on the mere relevance standard.
Nevertheless, the FBI advised me in June 2000, that pen register
devices for telephone services ``continue to operate as they have for
decades'' and that ``there has been no change . . . that would better
restrict the recording or decoding of electronic or other impulses to
the dialing and signaling information utilized in call processing.''
Perhaps, if there were meaningful judicial review and accountability,
the FBI would take the statutory direction more seriously and actually
implement it.
Due in significant part to the fact that pen/trap devices in use
today collect ``content,'' I have sought in legislation introduced over
the past few years to update and modify the judicial review procedure
for pen register and trap and trace devices. Existing law requires an
attorney for the government to certify that the information likely to
be obtained by the installation of a pen register or trap and trace
device will be relevant to an ongoing criminal investigation. The court
is required to issue an order upon seeing the prosecutor's
certification. The court is not authorized to look behind the
certification to evaluate the judgement of the prosecutor.
I have urged that government attorneys be required to include facts
about their investigations in their applications for pen/trap orders
and allow courts to grant such orders only where the facts support the
relevancy of the information likely to be obtained by the orders. This
is not a change in the applicable standard, which would remain the very
low relevancy standard. Instead, this change would simply allow the
court to evaluate the facts presented by a prosecutor, and, if it finds
that the facts support the government's assertion that the information
to be collected will be relevant, issue the order. Although this change
will place an additional burden on law enforcement, it will allow the
courts a greater ability to assure that government attorneys are using
such orders properly.
Some have called this change a ``roll-back'' in the statute, as if
the concept of allowing meaningful judicial review was an extreme
position. To the contrary, this is a change that the Clinton
Administration supported in legislation transmitted to the Congress
last year. This is a change that the House Judiciary Committee also
supported last year. In the Electronic Communications Privacy Act, H.R.
5018, that Committee proposed that before a pen/trap device ``could be
ordered installed, the government must first demonstrate to an
independent judge that `specific and articulable facts reasonably
indicate that a crime has been, is being, or will be committed, and
information likely to be obtained by such installation and use . . . is
relevant to an investigation of that crime.'' (Report 106-932, 106th
Cong. 2d Sess., Oct. 4, 2000, p. 13). Unfortunately, the Bush
Administration has taken a contrary position and has rejected this
change in the judicial review process.
Currently, an owner or operator of a computer that is accessed by a
hacker as a means for the hacker to reach a third computer, cannot
simply consent to law enforcement monitoring of the computer. Instead,
because the owner or operator is not technically a party to the
communication, law enforcement needs wiretap authorization under Title
III to conduct such monitoring. I have long been interested in closing
this loophole. Indeed, when I asked about this problem, the FBI
explained to me in June 2000 that:
This anomaly in the law creates an untenable situation
whereby providers are sometimes forced to sit idly by as they
witness hackers enter and, in some situations, destroy or
damage their systems and networks while law enforcement
begins the detailed process of seeking court authorization to
assist them. In the real world, the situation is akin to a
homeowner being forced to helplessly watch a burglar or
vandal while police seek a search warrant to enter the
dwelling.
I therefore introduced as part of the Internet Security Act, S. 2430,
in 2000,
[[Page S11001]]
an exception to the wiretap statute that would explicitly permit such
monitoring without a wiretap if prior consent is obtained from the
person whose computer is being hacked through and used to send
``harmful interference to a lawfully operating computer system.''
The Administration initially proposed a different formulation of the
exception that would have allowed an owner/operator of any computer
connected to the Internet to consent to FBI wiretapping of any user who
violated a workplace computer use policy or online service term of
service and was thereby an ``unauthorized'' user. The Administration's
proposal was not limited to computer hacking offenses under 18 U.S.C.
1030 or to conduct that caused harm to a computer or computer system.
The Administration rejected these refinements to their proposed wiretap
exception, but did agree, in section 217 of the USA Act, to limit the
authority for wiretapping with the consent of the owner/operator to
communications of unauthorized users without an existing subscriber or
other contractual relationship with the owner/operator.
This bill will make significant changes in the sharing of
confidential criminal justice information with various Federal
agencies. For those of us who have been concerned about the leaks from
the FBI that can irreparably damage reputations of innocent people and
frustrate investigations by alerting suspects to flee or destroy
material evidence, the Administration's insistence on the broadest
authority to disseminate such information, without any judicial check,
is disturbing. Nonetheless, I believe we have improved the
Administration's initial proposal in responsible ways. Only time will
tell whether the improvements we were able to reach agreement on are
sufficient.
At the outset, we should be clear that current law allows the sharing
of confidential criminal justice information, but with close court
supervision. Federal Rule of Criminal Procedure 6(e) provides that
matters occurring before a grand jury may be disclosed only to an
attorney for the government, such other government personnel as are
necessary to assist the attorney and another grand jury. Further
disclosure is also allowed as specifically authorized by a court.
Similarly, section 2517 of title 18, United States Code provides that
wiretap evidence may be disclosed in testimony during official
proceedings and to investigative or law enforcement officers to the
extent appropriate to the proper performance of their official duties.
In addition, the wiretap law allows disclosure of wiretap evidence
``relating to offenses other than specified in the order'' when
authorized or approved by a judge. Indeed, just last year, the Justice
Department assured us that ``law enforcement agencies have authority
under current law to share title III information regarding terrorism
with intelligence agencies when the information is of overriding
importance to the national security.'' (Letter from Robert Raben,
Assistant Attorney General, September 28, 2000).
For this reason, and others, the Justice Department at the time
opposed an amendment proposed by Senators Kyl and Feinstein to S. 2507,
the Intelligence Authorization Act for FY 2001, that would have allowed
the sharing of foreign intelligence and counterintelligence information
collected from wiretaps with the intelligence community. I deferred to
the Justice Department on this issue and sought changes in the proposed
amendment to address the Department's concern that this provision was
not only unnecessary but also ``could have significant implications for
prosecutions and the discovery process in litigation,'' ``raises
significant issues regarding the sharing with intelligence agencies of
information collected about United States persons,'' and jeopardized
``the need to protect equities relating to ongoing criminal
investigations.'' In the end, the amendment was revised to address the
Justice Department's concerns and passed the Senate as a free-standing
bill, S. 3205, the Counterterrorism Act of 2000. The House took no
action on this legislation.
The Administration initially proposed adding a sweeping provision to
the wiretap statute that broadened the definition of an ``investigative
or law enforcement officer'' who may receive disclosures of information
obtained through wiretaps to include Federal law enforcement,
intelligence, national security, national defense, protective and
immigration personnel and the President and Vice President. This
proposal troubled me because information intercepted by a wiretap has
enormous potential to infringe upon the privacy rights of innocent
people, including people who are not even suspected of a crime and
merely happen to speak on the telephone with the targets of an
investigation. For this reason, the authority to disclose information
obtained through a wiretap has always been carefully circumscribed in
law.
While I recognize that appropriate officials in the executive branch
of government should have access to wiretap information that is
important to combating terrorism or protecting the national security, I
proposed allowing such disclosures where specifically authorized by a
court order. Further, with respect to information relating to
terrorism, I proposed allowing the disclosure without a court order as
long as the judge who authorized the wiretap was notified as soon as
practicable after the fact. This would have provided a check against
abuses of the disclosure authority by providing for review by a neutral
judicial official. At the same time, there was a little likelihood that
a judge would deny any requests for disclosure in cases where it was
warranted.
On Sunday, September 30, the Administration agreed to my proposal,
but within two days, it backed away from its agreement. I remain
concerned that the resulting provision will allow the unprecedented,
widespread disclosure of this highly sensitive information without any
notification to or review by the court that authorizes and supervises
the wiretap. This is clearly an area where our Committee will have to
exercise close oversight to make sure that the newly-minted disclosure
authority is not being abused.
The Administration offered three reasons for reneging on the original
deal. First, they claimed that the involvement of the court would
inhibit Federal investigators and attorneys from disclosing information
needed by intelligence and national security officials. Second, they
said the courts might not have adequate security and therefore should
not be told that information was disclosed for intelligence or national
security purposes. And third, they said the President's constitutional
powers under Article II give him authority to get whatever foreign
intelligence he needs to exercise his national security
responsibilities.
I believe these concerns are unfounded. Federal investigators and
attorneys will recognize the need to disclose information relevant to
terrorism investigations. Courts can be trusted to keep secrets and
recognize the needs of the President.
Current law requires that such information be used only for law
enforcement purposes. This provides an assurance that highly intrusive
invasions of privacy are confined to the purpose for which they have
been approved by a court, based on probable cause, as required by the
Fourth Amendment. Current law calls for minimization procedures to
ensure that the surveillance does not gather information about private
and personal conduct and conversations that are not relevant to the
criminal investigation.
When the Administration reneged on the agreement regarding court
supervision, we turned to other safeguards and were more successful in
changing other questionable features of the Administration's bill. The
Administration accepted my proposal to strike the term ``national
security'' from the description of wiretap information that may be
shared throughout the executive branch and replace it with ``foreign
intelligence'' information. This change is important in clarifying what
information may be disclosed because the term ``foreign intelligence''
is specifically defined by statute whereas ``national security'' is
not.
Moreover, the rubric of ``national security'' has been used to
justify some particularly unsavory activities by the government in the
past. We must have at least some assurance that we are not embarked on
a course that will lead to a repetition of these abuses because the
statute will now more clearly define what type of information is
subject to disclosure. In addition, Federal officials who receive the
information
[[Page S11002]]
may use it only as necessary to the conduct of their official duties.
Therefore, any disclosure or use outside the conduct of their official
duties remains subject to all limitations applicable to their retention
and dissemination of information of the type of information received.
This includes the Privacy Act, the criminal penalties for
unauthorized disclosure of electronic surveillance information under
chapter 119 of title 18, and the contempt penalties for unauthorized
disclosure of grand jury information. In addition, the Attorney General
must establish procedures for the handling of information that
identifies a United States person, such as the restrictions on
retention and dissemination of foreign intelligence and
counterintelligence information pertaining to United States persons
currently in effect under Executive Order 12333.
While these safeguards do not fully substitute for court supervision,
they can provide some assurance against misuse of the private,
personal, and business information about Americans that is acquired in
the course of criminal investigations and that may flow more widely in
the intelligence, defense, and national security worlds.
The wiretap statute was not the only provision in which the
Administration sought broader authority to disclose highly sensitive
investigative information. It also proposed broadening Rule 6(e) of the
Federal Rules of Criminal Procedure to allow the disclosure of
information relating to terrorism and national security obtained from
grand jury proceedings to a broad range of officials in the executive
branch of government. As with wiretaps, few would disagree that
information learned in a criminal investigation that is necessary to
combating terrorism or protecting the national security ought to be
shared with the appropriate intelligence and national security
officials. The question is how best to regulate and limit such
disclosures so as not to compromise the important policies of secrecy
and confidentiality that have long applied to grand jury proceedings.
I proposed that we require judicial review of requests to disclose
terrorism and foreign intelligence information to officials in the
executive branch beyond those already authorized to receive such
disclosures. Once again, the Administration agreed to my proposal on
Sunday, September 30, but reneged within two days. As a result, the
bill does not provide for any judicial supervision of the new
authorization for dissemination of grand jury information throughout
the executive branch. The bill does contain the safeguards that I have
discussed with respect to law enforcement wiretap information. However,
as with the new wiretap disclosure authority, I am troubled by this
issue and plan to exercise the close oversight of the Judiciary
Committee to make sure it is not being abused.
The Administration also sought a provision that would allow the
sharing of foreign intelligence information throughout the executive
branch of the government notwithstanding any current legal prohibition
that may prevent or limit its disclosure. I have resisted this proposal
more strongly than anything else that still remains in the bill. What
concerns me is that it is not clear what existing prohibitions this
provision would affect beyond the grand jury secrecy rule and the
wiretap statute, which are already covered by other provisions in the
bill. Even the Administration, which wrote this provision, has not been
able to provide a fully satisfactory explanation of its scope.
If there are specific laws that the Administration believes impede
the necessary sharing of information on terrorism and foreign
intelligence within the executive branch, we should address those
problems through legislation that is narrowly targeted to those
statutes. Tacking on a blunderbuss provision whose scope we do not
fully understand can only lead to consequences that we cannot foresee.
Further, I am concerned that such legislation, broadly authorizing the
secret sharing of intelligence information throughout the executive
branch, will fuel the unwarranted fears and dark conspiracy theories of
Americans who do not trust their government. This was another provision
on which the Administration reneged on its agreement with me; it agreed
to drop it on September 30, but resurrected it within two days,
insisting that it remain in the bill. I have made efforts to mitigate
its potential for abuse somewhat by adding the same safeguards that
apply to disclosure of law enforcement wiretap and grand jury
information.
Another issue that has caused serious concern relates to the
Administration's proposal for so-called ``sneak and peek'' search
warrants. The House Judiciary Committee dropped this proposal entirely
from its version of the legislation. Normally, when law enforcement
officers execute a search warrant, they must leave a copy of the
warrant and a receipt for all property seized at the premises searched.
Thus, even if the search occurs when the owner of the premises is not
present, the owner will receive notice that the premises have been
lawfully searched pursuant to a warrant rather than, for example,
burglarized.
Two circuit courts of appeal, the Second and the Ninth Circuits, have
recognized a limited exception to this requirement. When specifically
authorized by the issuing judge or magistrate, the officers may delay
providing notice of the search to avoid compromising an ongoing
investigation or for some other good reason. However, this authority
has been carefully circumscribed.
First, the Second and Ninth Circuit cases have dealt only with
situations where the officers search a premises without seizing any
tangible property. As the Second Circuit explained, such searches are
``less intrusive than a conventional search with physical seizure
because the latter deprives the owner not only of privacy but also of
the use of his property.'' United States v. Villegas, 899 F.2d 1324,
1337 (2d Cir. 1990).
Second, the cases have required that the officers seeking the warrant
must show good reason for the delay. Finally, while the courts have
allowed notice of the search may be delayed, it must be provided within
a reasonable period thereafter, which should generally be no more than
seven days. The reasons for these careful limitations were spelled out
succinctly by Judge Sneed of the Ninth Circuit: ``The mere thought of
strangers walking through and visually examining the center of our
privacy interest, our home, arouses our passion for freedom as does
nothing else. That passion, the true source of the Fourth Amendment,
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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
____________________