Congressional Record: September 13, 2001 (Senate)
Page S9362-S9387
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 2002--Continued
[...]
Amendment No. 1562
(Purpose: To enhance the capability of the United States to deter,
prevent, and thwart domestic and international acts of terrorism
against United States nationals and interests)
Mr. HATCH. I send an amendment to the desk on behalf of Senators.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Utah [Mr. Hatch], for Mrs. Feinstein, for
herself, Mr. Hatch, and Mr. Kyl, proposes an amendment
numbered 1562.
Mr. HATCH. I ask unanimous consent reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
"Amendments Submitted and Proposed.")
Mr. HATCH. Mr. President, we are all interested in moving forward to
support this funding bill, and we broke through the barrier where this
is the last pending amendment. We are also even more concerned that the
Government have the right tools to hunt down and find the cowardly
terrorists who wreaked such havoc 2 days ago. For this reason, I
believe it is important to make available important tools to those
investigating this and related matters. This amendment, in my opinion,
is critical and should pass this evening.
I have been working with my colleagues, Senators Feinstein, Kyl, and
Schumer, on a package of reforms that can aid these investigations. I
will highlight a few of the provisions to this bill.
As the tragic events of this week have shown, one of the most
essential tasks our Federal Government faces in the post-cold-war era
is that of protecting our Nation and our citizens from the unprovoked
acts of terrorism. In the aftermath of Tuesday's devastating attacks on
the World Trade Center and the Pentagon, we, as lawmakers, must take
every step possible to ensure, in addition to adequate financial
resources, that the law enforcement community has the proper
investigative tools at its disposal to track down the participants in
this evil conspiracy and to bring them to justice.
One of the most effective investigative tools at the disposal of law
enforcement agencies is the ability to go to a Federal judge and get
wiretapping authority. It is critical in matters such as this. That is
the ability to intercept oral or electronic conversations involving the
subject of a criminal investigation. The legislative scheme that
provides this authority, and at the same time protects the individual
liberties of American citizens to be secure against unwarranted
government surveillance, is referred to in the criminal code as Title
III. Among the many protections inherent in Title III is that only the
investigations of certain criminal offenses, those judged to be
sufficiently serious to warrant the use of this potent crime-fighting
weapon, are eligible for wiretapping orders. The law lays out a number
of crimes deemed by Congress to be serious enough to warrant allowing
the FBI to intercept electronic and oral communications.
Title III currently allows interception of communications in
connection with the investigation of such crimes as mail fraud, wire
fraud, and the interstate transportation of stolen property.
Inexplicably, however, the Federal terrorism statutes are not
currently included in Title III. I have been complaining about this for
a long time and this is the time to correct it.
Let me repeat that. Title III currently allows interceptions of
communications in connection with the investigation of such crimes as
mail fraud, wire fraud, and the interstate transportation of stolen
property--important issues.
The PRESIDING OFFICER. The Senator will please suspend. The Senate
will be in order. Senators will kindly take their conversations off the
floor.
The Senator from Utah.
Mr. HATCH. It takes care of those criminal activities, mail fraud,
wire fraud, and the interstate transportation of stolen property,
however the Federal terrorism statutes are not currently included in
Title III. As a result, Federal investigators are often hampered in the
use of this powerful tool when investigating terrorist incidents. We
have to remedy that, and we should not let a day go by without
remedying it. We should not let some of the petty aspects of this body
stand in the way, not passing this type of legislation right now when
it is really needed, on the day that, for the first time in my 25
years, a vote was interrupted by a bomb threat and we all had to move
outside.
It is time to start fixing these laws. We can play around with
commissions. We can play around with task forces. We can do a lot of
other things, but I would like to fix it now.
At this juncture of our history it is essential that we give our law
enforcement authorities every possible tool to search out and bring to
justice those individuals who have brought such indiscriminate death
into our backyard. However, we must also be careful that in our quest
for vengeance we do not trample those very liberties which separate us
as a society from those who want to destroy us.
We are fortunate that we already have in Title III a legislative
scheme that balances these conflicting interests. We must not be
hesitant to bring this very important tool--the wiretapping statute--to
bear on the terrorists who threaten our national security. That is one
of the things this amendment will do, and in my opinion one of the most
important things that this amendment will do. But it is not all this
amendment will do.
Second, cybercrime is one of the fastest growing areas of criminal
activities. Terrorists, criminals, and hostile governments are using
computers as tools to perpetrate crimes, and are targeting computer
networks to perpetrate acts of terror that, until this week, would have
been unimaginable on American soil. Millions of dollars are lost
annually as a direct result of this criminal behavior, and it is no
longer a fantasy that thousands of lives could be lost in future
terrorist incidents.
The FBI is devoting an increasing share of its resources to combat
cybercrime. It is up to us as lawmakers to ensure that, in additional
to adequate resources, the FBI has the proper tools at its disposal to
meet this new challenge.
Title III allows the Department of Justice to go to a Federal judge
and get authority to intercept oral or electronic conversations in
connection with the investigation of criminal activity. The law lists a
number of crimes deemed by Congress as serious
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enough to warrant allowing the FBI to intercept communications. Because
cybercrime is a relatively recent development, the Federal cybercrime
statute is not currently included in Title III. As a result, Federal
investigators could not use this powerful tool when investigating
cybercrime offenses.
Tuesday's despicable attack on the World Trade Center and the
Pentagon must serve as a wake-up call that we are vulnerable to attack
in ways we have never imagined. A computer-based attack on our criminal
justice infrastructure remains a very real possibility. I urge all my
colleagues to agree to this amendment to provide our law enforcement
authorities with the tools they need to effectively combat this growing
menace to the security of our society.
There are other important tools this amendment will provide, tools
that those investigating the terrorist acts committed earlier this week
will be able to use to prevent terrorist acts in the future. We put up
with an awful lot of mistaken arguments around here throughout all
these years that made it very difficult to put human intelligence to
work in the interests of the protection of our people, and it is
inexcusable, under these circumstances, to allow that to continue.
As you know, in some cases, when dealing with human intelligence
assets, sometimes you have to deal with unsavory characters because
they are the only ones who can get inside and help us know the
motivations of some of the people who are about to do terrorist acts.
It is pretty pathetic that we cannot get our law enforcement people the
ability to get wiretap authority against terrorists because they are
not included in title III, unless there is some underlying criminal
reason for doing so. We have to stop that. If we wait any longer, it
seems to me, it is a big, big mistake, with the way people are afraid
in this country, with what happened this week, and with the threats
that continue to surround us throughout the world.
I have a lot more to say on this, but I think, if I can, I would like
to yield the floor to my colleague from Arizona, if he cares to take
the floor, and he can talk about further aspects of this bill.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, it is my intention to be very brief, unless
there is some objection to what we are doing, because I think all of us
would like to get on with the adoption of this piece of legislation so
we can conclude work on this bill. But just to ensure there is an
adequate description of it, I would like to take a minute.
I also ask unanimous consent that Senators DeWine, Sessions, and
Thompson be added as original cosponsors.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. I believe Senator Schumer will have some things to say in a
moment. He may ask as well to be added.
Let me be very clear about the intent of this legislation. This
country has just suffered the worst terrorist attack in its history.
All of us are focused on the victims. We are focused on the terrible
devastation and the individual lives impacted. But, as policymakers, we
have also been asked some hard questions by our constituents and those
questions include things such as: Why can't our Government do something
about these horrible crimes? As policymakers, we have to respond to
that. We have such an opportunity. I use that word advisedly because in
the circumstances that put us where we are today, that word seems
hardly appropriate. But we do have an opportunity, given the fact we
are here doing business on behalf of the American people, and that part
of that business is the bill that relates to the jurisdiction of the
Justice Department, the funding for that Justice Department, and the
fact that the bill before us, in fact, even includes some revisions in
the law with respect to the authority to deal with terrorism. It sets
up a special new office in the Attorney General's office, a Deputy
Assistant Attorney General, to deal specifically with terrorism, and in
other ways deals with terrorism. Therefore, there is an ability for us
today to focus on some additional improvements that can be made in our
law to deal with terrorism.
I hasten to say that this is not "the answer" to the problem of
terrorism. In the first place, I do not think there is a silver bullet.
There is no single answer. We already know that there are a whole lot
of things we are going to have to do to improve our ability to detect
it, to predict it, to stop it, and to enforce whatever action is
appropriate after the fact.
I am sure we will be creating commissions and we will be passing
legislation. In fact, we are going to be passing an appropriations bill
to begin to fund some of the cleanup of this in the very near future, I
hope.
There are a lot of things that we have to do. One set of things
experts in terrorism have been telling us for a long time and the
Director of the FBI has been telling us has to do with a few changes in
the law that make it easier for our law enforcement people to do their
job.
I have a copy of just one of the three major commissions that have
reported on terrorism. This is a report called "Countering the
Changing Threat of International Terrorism," a report from the
National Commission on Terrorism. This was chaired by former Ambassador
Bremer and Maurice Sonnenberg, both of whom testified before the
Terrorism Subcommittee of the Judiciary Committee, which I chaired at
the time. In fact, all of these commission reports have been the
subject of hearings before our subcommittee, as well as numerous other
hearings dealing with the subject.
In addition to that, we have had a lot of testimony from the Director
of the FBI and other U.S. Government officials all imploring us to do
some things to help in this battle against terrorism. We took a run at
some of these things. In fact, we incorporated some of the provisions
of these commission recommendations in the bill that passed the Senate
a year and a half ago.
It is hard to put a percentage on it, but maybe half of the amendment
before us tonight embodies those same recommendations. So we have
already voted on half of the things that are in this amendment. Some of
the others have come later.
The point is that we dealt with these issues. There has been
legislation dealing with these issues. There have been numerous
hearings about these issues. They were in effect lying on the table
waiting for us to deal with them. Unfortunately, it is the case that
even though from time to time we have put some of these ideas out,
there has always been a reason not to do it, to wait, to defer, to hold
off on that, and that we will have a comprehensive look at this or
whatever it might be. We have to set our priorities around here.
But those of us who sit on the terrorism committee--the Intelligence
Committee and other committees of jurisdiction--have become
increasingly restless because we keep getting briefed on the potential
for terrorist threats, and we keep imploring our colleagues to please
let us act on these things.
Finally, we have an event that is so horrendous and so deplorable
that all of America is asking us to declare war on terrorism. Indeed,
that should be our attitude, in effect. So we are now faced with a
challenge from our constituents, and they are absolutely right. What
are you going to do about it? Of course, the first question they have
been asking us is, What have you been doing about it? My answer is
there are a whole lot of things you are going to see us doing that we
need to do.
We can start tonight with a few substantive changes in the law that
will make an impact on our ability to fight these crimes of terrorism.
Some of this bill calls for analysis and reports about some additional
things that we might want to do. It will give us the factual basis for
acting in the future. Some of the provisions are actual operative
provisions that will take effect the minute the President signs the
bill to begin to give our law enforcement and intelligence agencies the
tools they need to better fight these kinds of crimes.
The former chairman of the Judiciary Committee has just talked about
a couple of these provisions--the so-called "predicate crime
provisions." It is incredible our law enforcement agencies have to
begin investigating crimes of terrorism under the auspices of looking
into other crimes. Maybe there is computer fraud or credit card fraud
and we will use that as we look to investigate crimes which are really
crimes of terrorism. With this, we call
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a spade a spade, and say we are investigating terrorism. That is what
we expect is the case. That gives us the legal authority to go to the
judge and get the warrant or authority to move forward.
In addition, we have an odd thing which crept into our policy that we
change. It made sense when it was applied to other governments. We said
we are not going to recruit people to spy on other governments guilty
of crimes or human rights abuses. That is a policy. I don't think we
were thinking about terrorism because it is pretty hard to infiltrate a
terrorist organization with a Boy Scout. They sort of show. What you
need are people who are accepted by these terrorist cells. Some of them
are undoubtedly going to have some things in their background of which
ordinarily we would not approve. But it is the only way they are going
to get into the terrorist cell. We provide that kind of recruitment can
take place.
Mr. LEAHY. Mr. President, will the Senator yield for a question?
Mr. KYL. Yes. I am happy to yield to the chairman.
Mr. LEAHY. Mr. President, does the Senator understand that
intelligence agencies today are unable to buy information--just to use
that as example--from someone who might be part of a terrorist
organization?
Mr. KYL. If I could respond, that is not the issue we are addressing
here--the purchasing of information. What we are addressing is the
recruitment of what the intelligence community calls "assets"--people
who would be useful in infiltrating an organization and getting
information out of that cell and sharing that information with us.
Mr. LEAHY. Is the distinguished Senator from Arizona saying that we
are unable to have what is called a retainer, or bribe, or anything
else on a regular basis and have somebody who is part of the terrorist
organization be giving information to us?
Mr. KYL. This amendment doesn't deal with any question of payment for
agent services. I presume we could do that. This amendment doesn't have
anything to do with that. The problem that we have here is the former
Director of the CIA created the policy because of some things that
occurred in our past--if we are going to recruit assets, people who
would do work for us, those people cannot have in their background
human rights abuses. They cannot have that kind of background. That is
a principle policy if you are recruiting somebody to act against
another government. But when you are trying to infiltrate a terrorist
organization, you are probably going to have to talk to people who
themselves have pretty checkered backgrounds. If you could use those
people--whatever their motivation; maybe they do it for money, or for
some other reason--but if they are willing to give you information
based upon their ability to find out what a terrorist organization is
doing, then it is very valuable.
As the distinguished chairman knows, our ability to collect
information on these groups is very limited. Almost everybody in the
community talks about the need for better human intelligence. Unless we
are able to recruit the kind of people who could provide that
intelligence, it is going to be pretty difficult for us to get it.
Mr. LEAHY. Mr. President, the Senator has the right to make his whole
argument, and I don't want to interfere with that. Unfortunately,
because this is something that we have had no hearings on, we haven't
had the discussions in the appropriate committees--Intelligence, Armed
Services, and Judiciary--we are somewhat limited in opposition. I will
not cite numerous examples of situations which I think would make clear
that we do not have the limitations. I know the concern the Senator
from Arizona has. I don't question his concerns. But in open session, I
am restrained from going into some of the very specific things where
concerns he raised have been responded to in the law by our country. I
will not. But that is why I would suggest something like this to the
Armed Services Committee which has the ability to go easily into closed
session, and often does. It would be able to look at it and make a
recommendation to the Senate.
Our committee would be able to make a recommendation to the Senate,
which can be done relatively quickly, and the Intelligence Committee.
I would feel far more comfortable voting on something like this if
these various committees not only had a chance to look at it but that
President Bush's administration--the Attorney General, the Director of
CIA, the Secretary of Defense--would have the opportunity to let us
know their views on it. I would feel far more comfortable with that. I
worry that we may run into the situation where--all of us have joined
together in our horror at these despicable, murderous acts in New York
and at the Pentagon--we do not want to change our laws so that it comes
back to bite us later on.
Mr. KYL. I want to assure the distinguished chairman that we are not
changing the law. This is simply a guideline the previous CIA Director
felt was needed. We are not changing the law. We are not doing anything
untoward or unconstitutional.
Our constituents are calling this a war on terrorism. In wars, you
don't fight by a Marquis of Queensberry rules. The time to be overly
punctilious about who you get to work with you to get information from
the enemy ought to come to an end.
I will assure the distinguished chairman that we are assured that in
the past this has not been too much of a problem. But the problem is,
our folks are a little reluctant to try to go recruit people with the
current limitations in place because of the difficulties that presents.
All this does is to change a guideline--no legal statutory change--
that simply says if they believe particular people would be useful in
gathering intelligence against terrorist organizations--it is
specifically limited to that--then they may recruit those people even
though there might be something in their background that suggests they
have a checkered past.
If we cannot use informants against terrorist organizations, which by
definition means there are no good actors, then we start this war with
one hand tied behind our back.
There are a lot of other changes that we make in this amendment. Let
me just illustrate the nature of the things we do. I think almost all
of them are going to be very uncontroversial.
We ask for a study on the role that the National Guard could play in
these events.
We say it is the sense of Congress that we should commence a long-
term research and development program to address catastrophic terrorist
attacks. Our intelligence folks really need to begin R&D into
techniques for dealing with things such as fiberoptic cable. It is very
difficult to intercept communications. With things such as encryption,
it is very difficult to hear what people are really saying. Times are a
changing. We need to be able to develop the techniques to meet these
new challenges. This simply expresses the sense of the Senate that we
should get on with that.
There is a section in this amendment that permits disclosure by law
enforcement agencies of certain intelligence obtained by the
interception of communications. We implement one of the recommendations
of the Bremer commission, which said there is a lot of illicit
fundraising for terrorist organizations going on in the United States.
We need to get a handle on that. So again, we have the sense of the
Senate in this amendment that Congress needs to do that. It is not a
significant operational provision.
We have a report required on controls on pathogens and equipment for
the production of biological weapons. I think this is something
everyone will support. There has been a lot of testimony on its need.
There is a provision that our law enforcement people would like,
which I think is eminently reasonable, and that is that they be
reimbursed for the cost of professional liability insurance. When we
send them off to do certain kinds of work and they may act in such a
way that they are going to get sued, ordinarily the Government would be
the party that is sued. But the Government is immune from suit, so the
individual agents are sued. We would like to at least pay for part of
their professional liability insurance when we have asked them to go
off and do something.
Then the final provision, other than the two Senator Hatch has
already talked about, deals with authorities that the last Director of
the FBI has implored our committee to give him for years. I will state
the problem and then tell you what the solution to it is.
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When you do a wiretap, it is fairly straightforward. You go to a
court, get an order based upon cause, and then you tap into the phone
line. But with regard to computer attacks, whether it be a terrorist
attack, all the way down to a hacker--and even hackers can cause a lot
of problems, but what you want to do, hopefully in real time, is trace
the attack back to its source, so you can stop it or you can prosecute
the perpetrators. And if it is a terrorist attack, you want to get to
it immediately.
The problem is, these people are very clever. Someone, let's say in
Afghanistan, will electronically hook into somebody in New Delhi. And
then through that computer they hook into somebody at the University of
California in San Francisco. And through that computer they hook into
AT&T in Chicago. And through that computer they hook into the Pentagon.
It is well known that you can do this. It is not apparently that
difficult to do. Unfortunately, under the law, when the Pentagon starts
getting hit, first you get a court order in Virginia. Then you go to
Illinois and you get a court order there. Then you go to San Francisco
and get a court order there. I don't know what you do in New Delhi. But
the bottom line is, we need to have one place where you go get your
court order, just like you do for a wiretap.
That is what the FBI Director, on numerous occasions, asked us to
provide, the authority to be able to do that. I can quote you page
after page of his testimony asking for this. I will not do that in the
interest of time.
These are the kinds of things that law enforcement has asked us for.
This combination is relatively modest in comparison with the kind of
terrorist attack we have just suffered.
Clearly, there are a whole range of actions that we are going to need
to take, but the benefit of it is they have all been the subject of
hearings or reports by these commissions. They are clearly the kinds of
steps that we need to begin to take. And we can do that tonight on a
bill which clearly relates to the subject and at least begin the
process of assuring the American people that we are doing what we can
do to stop these horrible events.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, I have been consulting with the chairman of
the committee, and we are hopeful to get a vote on this amendment and a
vote on final passage. We do intend, according to our leadership, to do
that tonight.
In the interest of time, I was wondering if we could reach a time
agreement on this amendment. Obviously, the proponents of the amendment
have just spoken, by my estimate, for about a half an hour. I was
wondering if we could reach a time agreement where anybody rising in
opposition would be able to claim a half an hour, and then there would
be a final 10 minutes which would be equally divided. We would have a
vote on this amendment sometime around 8:45. I ask unanimous consent if
people would agree to that.
Mr. LEAHY. I reserve the right to object; actually I will.
I say to my distinguished friend from New Hampshire, I would be
delighted to discuss that. I am still reading this amendment. We have,
for example, the requirement for full reimbursement. It sounds like a
good idea for people who are----
Mr. GREGG. I ask the Senator, is there a time agreement the Senator
would be comfortable with?
Mr. LEAHY. I will be happy to discuss it with him. I thought it might
be a little easier if I could get some of the questions I have
answered.
Mr. GREGG. I withdraw my request, then, and yield the floor.
Mr. LEAHY. There is----
Mr. GREGG. The Senator might want to seek recognition.
I yield the floor.
Mr. LEAHY. I wonder if the proponents of the legislation could tell
me, how much--I am not going to say we should not do this, but we have
professional liability insurance, as it looks to me, for several
thousands of people.
Do we have any idea how much that would cost? Are we talking about
$50 million, $100 million, $200 million? Can any of the proponents of
the legislation tell me that?
Let's say it is $200 million. We will just write that down. It is
easy enough to say $200 million. We have something that has been put
together in the last few minutes.
So we have a requirement, notwithstanding any other provision of law.
In other words, notwithstanding whatever other limits are in here, we
shall reimburse for professional liability insurance for what appears
to be several thousands of people.
Heck, I would like to add to that maybe we could all get ours paid
for at the same time. I know mine costs several hundred dollars a year.
This might be a fine thing, but if we ask the CIA and the Justice
Department to do that, it has to come out of their budget. They are all
strapped for money to spend on fighting terrorism and whatnot. Are they
willing to take a $200 or $300 million cut from their budget? I just
ask the question. I have not heard an answer.
Mr. HATCH. If the Senator will yield?
Mr. LEAHY. Of course. I yield without losing my right to the floor.
Mr. HATCH. I am not sure we know the exact amount, but what
justification is there for these heroic law enforcement people who are
doing the people's business to have to pay for their own liability
insurance in case they get sued by a voracious trial lawyer who would--
--
Mr. LEAHY. It seems to me the distinguished Senator from Utah
misstated--and I assume by accident--what I said. I happen to be in
favor of people who are going to be out there for our country getting
their insurance paid for if they are in a situation where they do not
come under the normal provisions that insulate them from suit.
I know millions of dollars were spent by people from all the
investigations that the Congress and others had against government
employees, investigations that resulted in nothing in the end, except
for the millions of dollars these people paid out of their own pocket.
Sure, I think they should have insurance for that. I just ask the
question: How much? And will this money come out of their other budget?
If it is going to be $200 million or $300 million, let's have a line
item for that. I will vote for such a line item.
In here it says, on wiretapping, pen registers, trap and trace
devices, if the court finds that a State investigator or law
enforcement officer--it could just be an investigator; I don't know if
this means a private investigator, a licensed PI--if they certify to
the court that the information is relevant, if they just came in and
said: Your Honor, I certify this is going to be relevant; I am a State
investigator; I am the deputy sheriff of East Washtub--I apologize to
anybody if there is such a town, East Washtub. Let's say I am a deputy
sheriff on weekends and a mechanic the rest of the time, and I certify
we need this, a State officer. Does that mean a Federal judge is going
to stop things and give them the order?
I have worked with some very good deputy sheriffs in my time. I am
not sure that even with the best--some of them were darned good when I
was a prosecutor--any of them are going to go into Federal court and
say: I want to certify I need this wiretap or this pen register, trap
and trace.
I think we ought to at least know what that is, going into people's
computers because the local investigator says, "I want to." I am not
sure if the authorities, under normal going into court, asking for a
court order, having a hearing, can go into my computer; that is one
thing. But if somebody goes out there, for example, and sees me having
target practice outside my house--I have a pistol range out back of my
house--and they say: I wonder how many guns he has; I want to go into
his computer to find out just in case he has listed his ammunition
purchases. Should they be allowed to? I would think some of those who
are concerned about the rights of gun owners might be a little bit
concerned about this provision. I am a gun owner. I am concerned.
Authority to do wiretaps. It says here that we will redesignate
paragraph (p), as so redesignated by section 434(2) of the
Antiterrorism and Effective Death Penalty Act of 1996, Public Law 104-
132; 110 Stat. 1274, as paragraph (r); and (2) by inserting after
paragraph (p) as so redesignated by section 201(3) of the Illegal
Immigration
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Reform and Immigrant Responsibility Act of 1996, division C of Public
Law 104-208; 110 Stat. 3009-565, the following new paragraph:
(q) any criminal violations of sections 2332, 2332a, 2332b,
2332d, 2339A, or 2339B of this title (relating to terrorism).
. . .
Does anybody want to tell me what that means? I thought we were here
to give help to our law enforcement and our antiterrorist authority to
go after people. I thought we were here to try to finish up a bill that
the Senator from South Carolina and the Senator from New Hampshire have
worked on very closely--and the Senator from West Virginia and the
Senator from Alaska--that would give money to our law enforcement
agencies so we could go ahead and work and try to get the money which
the city of New York and the State of New York desperately need after
the horrific, murderous terrorist acts in that city. I thought that was
what we were here for.
I will not reread what I said, but to do something that nobody here
on the floor can understand or explain, including the people who
introduced the amendment.
Now maybe somewhere there is a press release in there. Why don't we
all send out a press release, a generic one that says we are against
terrorists? No Member of the Senate is for terrorists. Why don't we say
we are against murder? Of course we are. But then why don't we say what
we are doing here? We are going to amend our wiretap laws so we can
look into anybody's computers.
If we are going to change all these things, if we are going to direct
the Director of the CIA and, in effect, direct the President to change
the rules of the CIA, something the President could have them do just
like that, if the President really wants to--if we are going to do all
that here, with no hearing, what does this do to help the men and women
who were injured or killed in the Pentagon--and their families? What
does this do to help the men and women in New York and their families
and those children who were orphans in an instant, a horrible instant?
Hundreds, perhaps thousands, of children became orphans
instantaneously. What does that do for them?
Somewhere we ought to ask ourselves: Do we totally ignore the normal
ways of doing business in the Senate? If we do that, what is going to
happen when we get down to the really difficult questions?
Maybe the Senate wants to just go ahead and adopt new abilities to
wiretap our citizens. Maybe they want to adopt new abilities to go into
people's computers. Maybe that will make us feel safer. Maybe. And
maybe what the terrorists have done made us a little bit less safe.
Maybe they have increased Big Brother in this country.
If that is what the Senate wants, we can vote for it. But do we
really show respect to the American people by slapping something
together, something that nobody on the floor can explain, and say we
are changing the duties of the Attorney General, the Director of the
CIA, the U.S. attorneys, we are going to change your rights as
Americans, your rights to privacy? We are going to do it with no
hearings, no debate. We are going to do it with numbers on a page that
nobody can understand.
And by the way, we are going to tell the people who are working
around the clock today to stop that and give us reports within 2 months
on all these areas. By the way, we commend you for the work you are
doing, but set aside a few dozen people and the President to give us
these certifications. Part of it seems to me to ask the Attorney
General to report back to us right away. We are asking the President to
report back to us right away.
Frankly, I think the Attorney General and the President have their
hands full right now. I commend them for what they are working on. I
have talked with the Attorney General several times over the last few
days. He hasn't told me that he needs this investigation. He is pretty
busy working on what he is doing. And I say Attorney General Ashcroft
is doing a very good job.
I have spoken to the Director of the CIA. He has not requested that
we suddenly turn the attention of the Senate to this legislation. I
haven't heard from the President that he wants to suddenly have them do
a number of reports connected with this. Maybe it would make a lot more
sense if we gave the chairman, the vice chairman of the Intelligence
Committee, the chairman and ranking member of the Armed Services
Committee, and the chairman and ranking member of Judiciary a chance to
actually have the kind of hearings necessary to know what we are doing
so that we do not get into some of the problems we got into in the
past.
If we are going to change habeas corpus, change our rights as
Americans, if we are going to change search and seizure provisions, if
we are going to give new rights for State investigators to come into
Federal court to seek remedies in the already overcrowded Federal
courts, fine, the Senate can do that. But what have we done to stop
terrorism and to help the people in New York and the survivors at the
Pentagon?
I yield the floor.
Mr. HATCH. Mr. President, I have heard a lot of talk here. But we are
talking about giving the tools to law enforcement that it needs to stop
further terrorist acts in our society. You want the authority? I will
tell you what the authority is right now. We don't need a lot of facts
and statistics.
This publication I hold in my hand is "Countering the Changing
Threat of International Terrorism," the report of the National
Commission on Terrorism. By the way, every one of these principles in
this amendment, the Justice Department wants, and wants badly, so that
they can do their job to protect American citizens.
This National Commission on Terrorism says, just to go back to the
original point:
By recent statute, a Federal agency must reimburse up to
one-half of the cost of personal liability insurance to law
enforcement officers and managers or supervisors.
Here is their recommendation, and it is not a bunch of obfuscation;
it is pretty darn straight:
Recommendation: Congress should amend the statute to
mandate full reimbursement of the cost of personal liability
insurance for Federal Bureau of Investigation special agents
and Central Intelligence Agency officers in the field who are
combating terrorism.
As I understand it, CIA officers do have this. So it is not something
that hasn't been considered or discussed by the top echelons of people
who are knowledgeable about terrorism.
To get back to the provisions that we are considering, a lot of
people in this country don't realize that you cannot tap the lines of
the terrorists without some predicate reason for doing so. They are not
in Title III of our code. This corrects that. It doesn't give law
enforcement agents carte blanche to go out and do wiretaps. You still
have to go to a judge. You still have to get the requisite authority.
You have to present persuasive evidence to a judge to obtain wire-
tapping authority.
But this is a tool that absolutely has to be had now, not a month or
two from now. Let me go just a little bit further. This statute does
not change the standard for trap and trace. It only adds emergency
authority for the U.S. attorney. All trap and trace applications are
approved by a Federal judge. You have to make your case before a
federal judge. It isn't some wild-eyed breach of personal privacy. It
gives us some tools to go get the terrorists. Local sheriffs cannot
apply for trap and trace under these new provisions. Only U.S.
attorneys can. I get a little tired of that type of talk. I have heard
the suggestion that anybody can go in, and anytime some local sheriff
wants to, he can tap a computer. That is unmitigated bull.
Let's talk about the computer situation. Currently, a judge's order
applies only in the jurisdiction where it is issued. Typically, hackers
go from computer to computer, leaving a trail that law enforcement has
to follow. Investigators must go from jurisdiction to jurisdiction
obtaining a trap and trace in every jurisdiction in order to follow a
hacker's trail. Let's put it terms of a terrorist who happens to go in
all 50 States. That means that, in order to investigate, law
enforcement has to go in every State in the Union to a Federal judge
and get authority to do what ought to be done overnight in front of a
single federal judge. Under the amendment we are proposing, it can be
done overnight by going to a single federal judge.
[[Page S9377]]
These are the kinds of things that bother me. This is what this
amendment will do.
Mr. REID. Will the Senator yield for a question?
Mr. HATCH. I will be happy to sit down soon because I know we are
ready to vote soon.
The chairman of the Judiciary Committee suggested that a prosecutor
could get a wiretap for anything they wanted under our amendment. With
all due respect, under Title III, a prosecutor must still go to a
judge, just as he or she would when investigating wire fraud or
interstate transport of stolen property. If this amendment is passed,
the only change would be that a prosecutor could get wiretapping
authority with respect to a terrorism or cyberterrorism offense.
Is terrorism or cyberterrorism as important as that? Will a judge
apply a different standard in issuing authority for those wiretaps? You
and I know a Federal judge will not do that. I think the answer is
obvious. Why should we dither when we know that these tools will help?
The FBI are the Justice Department strongly support for these important
reforms. Let us adopt them now, and fight these problems now. We are
not altering the Constitution or taking away the people's rights. We
are helping to give the tools to our law enforcement community to stop
terrorism. We are helping law enforcement help us to be safe and to
investigate the crimes like those committed this week.
There is a lot more I could say. I understand we are ready to vote. I
wanted to set the record clear.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, I will respond only because my name was
mentioned in this last debate and the implication was made as to what
my position was. Let me state my position to be accurate on the Record.
I read this to say: If the court finds that the State investigative or
law enforcement officer--obviously two entirely different things--has
certified to the court that the information likely to be obtained by
such installation used is relevant to an ongoing criminal
investigation, they get the order.
That is what the amendment says. You could have a State investigator,
not even a sworn police officer, come in and say: Your Honor, I certify
that this is relevant; give me the order. It seems to me as though the
judge has much choice. We do it to fight terrorism on computers. How is
a terrorist defined? We know what terrorism was at the trade towers. Is
a terrorist somebody who comes in and says: I want to come in armed and
make a statement, carrying a legally registered, licensed weapon and
make a statement: I should have an easier time to carry my guns? Some
people may feel terrorized. In my State, it would be routine. Is it
terrorist activity if somebody blocks a contractor who wants to tear
down trees to open up a development and have sent e-mails to their
friends about this? Is that terrorist activity? It is easy to define
terrorism.
It says, however, if you come in from wherever and say you are the
private investigator hired by the contractor, you say: Hey, I certify
this, give me the order, and you get it. Fine, if that is what we want.
I would be a little bit concerned about our own rights as Americans.
Mr. LEVIN. Mr. President, I have one question I want to ask, perhaps,
of my friend from Arizona.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I have not had a chance to read this language until
tonight. I guess that is part of the problem. It also is clear this is
going to be adopted. I want to ask one question for the record.
This amendment goes beyond changes in the wiretap law as it relates
to terrorism; is that correct? The language is "any ongoing criminal
investigation."
Mr. HATCH. That is correct.
Mr. LEVIN. So it is broader than terrorism. I am not debating merits
plus or minus. I am trying to understand what is in it since it came to
me for the first time tonight. I want to be very clear, at least the
way I read this, that this is not something that is just limited to
counterterrorism, about which I think all of us would have a passion.
Mr. HATCH. Will the Senator yield?
Mr. LEVIN. Yes.
Mr. HATCH. The wiretapping provision is a broad investigational
authority. It is not limited just to terrorism, but, currently,
terrorism is not included in that authority. It is one of the defects
in our system. All we are trying to do is get it included so we can
find these people, and we can do it. Even so, before being granted
wiretapping authority, you have to make a case, before a Federal judge,
that you have probable cause to believe that the subject of the wire-
tapping order has committed a serious criminal offense.
Mr. LEVIN. If my friend will yield further, I understand we want to
make sure terrorism is included in our statutes.
Mr. HATCH. Right.
Mr. LEVIN. This amends, though, our statutes. I am not arguing the
pros and cons. It amends not just terrorism, but it amends the wiretap
law and all criminal activity, including terrorism; is that correct?
Mr. HATCH. It adds terrorism to Title III. In addition, it upgrades
wiretap laws to include computer terrorism, cyberterrorism, even right
down to illegal hacking.
Mr. LEVIN. But it does not relate.
Mr. HATCH. Because those offenses are not currently covered in Title
III, and we need to correct that defect or we cannot resolve these
problems with regard to terrorism.
Mr. LEVIN. I tend to agree with our friends that we need to
strengthen the law on that point. I want to be clear on one point: We
are not adding terrorism to make sure we are covered. We are applying
these new standards to all criminal activity, not just terrorism.
Mr. HATCH. That is correct, but keep in mind, our current laws are
antiquated laws based upon telephones, where now we are in the area of
cyberterrorism, and we must upgrade the laws to take care of that.
Mr. LEVIN. I make one request of my good friend from Vermont, the
chairman, because he has raised some important questions about making
sure we take the time to know what we are doing. We are not going to
have that time tonight. That is obvious. I express the hope, given the
kind of points that have been made here, that it would be possible,
before this comes back in the form of a conference report, for there to
be some review of some of these provisions by the Judiciary Committee.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, we will try our best. We are, of course,
under the same limitation as everybody else trying to get a lot of work
done. I had planned in the next week or so to do a number of judicial
hearings. I suppose we can spend the time doing this. It probably would
make some sense.
We do not define terrorism, but we say we are adding that. I guess
some kid who is scaring you with his computer could be a terrorist and
you could go through the kid's house, his parents' business or anything
else under this language; it is that broad.
Again, the Senate can vote for whatever it wants. I certainly hope we
would put in, and I will support the money for the liability insurance.
The problem, I suspect, is with several hundred million dollars. But if
that is what we want, we should do it. Let us make sure we know. I will
try to get the time for people to work on this during the next couple
of weeks to try to answer the questions.
The Senator from Michigan asks a legitimate one. We will set aside
virtually everything else in the Judiciary Committee to get an answer.
Had I or our staff been asked about this, we probably could have had
those answers, but I saw it about 30 minutes ago, about the same time
the Senator from Michigan did.
I tell my friend from New Hampshire who asked a question earlier, I
have no objection to voting any time the Senator from New Hampshire
desires to vote.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, we have had a very good debate on this
amendment. We have had two people who feel very strongly about the
issue explain very well their respective positions, and the chairman of
the Judiciary Committee indicated he will hold further hearings on
this. He is concerned about the way this amendment arrived.
The fact is, a lot of times legislation, as the Senator from Utah and
the Senator from Vermont know better than I,
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they both having served here longer than I, sometimes ends up this way.
I hope we can get rid of this amendment at the earliest possible
date. It is my understanding the proponents of the amendment have
agreed to accept a voice vote. It is clear this amendment will be
agreed to. When this bill goes to conference, the two veteran
legislators who are managing this bill will be able to deal with some
of the problems that have been raised tonight.
Mr. HATCH. Will the Senator yield? I ask unanimous consent that
Senator Helms be added as a cosponsor of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. If there is no further debate on the
amendment, the question is on agreeing to amendment No. 1562.
The amendment (No. 1562) was agreed to.
Mr. HATCH. I move to reconsider the vote.
Mr. STEVENS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
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