Congressional Record: October 11, 2001 (Senate)
Page S10547-S10630
UNITING AND STRENGTHENING AMERICA ACT
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (S. 1510) to deter and punish terrorist acts in the
United States and around the world, to enhance law
enforcement investigatory tools, and for other purposes.
Mr. LEAHY. Mr. President, what is the time agreement that we are now
operating under?
The PRESIDING OFFICER. There are 4 hours equally divided. In
addition, there are 40 minutes on each of the four amendments to be
offered by the Senator from Wisconsin, Mr. Feingold.
Mr. LEAHY. I thank the distinguished Presiding Officer.
I cannot help but think in looking at our distinguished Presiding
Officer, the senior Senator from New York, how much his State has
suffered. Both he and his distinguished colleague, Senator Clinton,
have spoken so eloquently, both on the floor and elsewhere, about that.
I know in my own private conversations with the distinguished Presiding
Officer I felt the depth of his grief and emotion for a city that he
obviously and unabashedly loves. His references to New York City over
the years are almost similar to the kind of comments I make about
Vermont. But I do note the accent is somewhat different. I assume it is
because of the Vermont accent.
But I think the Senators from New York, and the Senators from New
Jersey and Connecticut have especially spoken of the effect on families
and loved ones in the New York City area. People who work there are
from New York, New Jersey, and Connecticut. I know how sad they feel.
I think of the people who died in Pennsylvania in an airplane that
was probably planning to strike the very building we are in--this
symbol of democracy. Only with a great loss of life did it not happen.
But there would be an enormous disruption in our Government. The next
day, the view that most people around the world have--our symbol of
democracy--would be gone.
I think of the brave men and women who died, as the President and
others have said, doing their duty at the Pentagon, and the hundreds--
even thousands--of children who went to school happily in the morning
and came home to find that they were orphans.
It was a terrible, terrible day.
I think back to what happened in Oklahoma City in 1995 and the
actions we took then. We are moving, of course, much faster now than we
did at that time, and I hope perhaps with more care on legislation.
We have before us the USA Act of 2001. I worked with Chairman
Sensenbrenner and Congressman Conyers
[[Page S10548]]
and Republican and Democratic leaders in the House because I hope
Congress can act swiftly to enact this measure.
Some may be concerned if we have a conference--because the House is
somewhat different than the Senate--that we could take a year or more
to resolve these issues. That happened after Oklahoma City. That
legislation took nearly a year to reconcile.
I believe the American people and my fellow Senators, both Republican
and Democratic, deserve faster final action.
I assure the Senate, when we go to conference, we will complete that
conference very quickly. We have demonstrated the ability in this
body--and also Senators who have worked with me on both sides of the
aisle and our staff--that we can work around the clock.
The distinguished senior Senator from Utah, Mr. Hatch, and I have
been working together in constant communication with our staffs.
Last Thursday, October 4, I was pleased to introduce, along with the
majority leader, Senator Daschle, and the Republican leader, Senator
Lott, also the chairmen of the Banking and Intelligence Committees,
Senator Sarbanes, Senator Graham of Florida, Senator Hatch, and Senator
Shelby, the USA Act.
I must say this bill is not the bill I would have written if I were
the only one writing it. I daresay it is not the bill the distinguished
Presiding Officer, one of the brightest and most accomplished people I
know, would have written, if he were writing it. It is not the bill the
distinguished chairman of the Banking Committee would have written if
he were writing it. It is not the bill the distinguished ranking
member, Mr. Hatch, would have written when he was chairman, if he was
solely writing the bill. It is really not the bill that any one of the
other Members would have written. We can't pass 100 bills.
We have tried to put together the best possible bill. Of course,
Republican and Democratic colleagues must come together, and that is
what we did.
I should point out that this is not the bill the administration,
through the Attorney General, delivered to us and asked for immediate
passage. We actually did the administration a favor because rather than
take the bill they dropped in our laps and said pass immediately, we
did something that apparently they had not done. We read it and were
able to refine and supplement their proposal in a number of ways. We
were able to remove a number of unconstitutional parts. The
administration accepted a number of practical steps that I proposed to
improve our security on the Northern Border to assist our State,
Federal, and local law enforcement officers and provide compensation to
the victims of terrorist acts and to the public safety officers that
gave their lives to protect us.
It also provides proposed checks on Government powers--checks that
were not contained in the Attorney General's initial proposal.
In negotiations with the administration, I have done my best to
strike a reasonable balance between the need to address the threat of
terrorism, which we all keenly feel at the present time, and the need
to protect our constitutional freedoms. Despite my misgivings, I have
acquiesced in some of the administration's proposals because it is
important to preserve national unity in this time of national crisis
and to move the legislative process forward.
We still have room for improvement. Even after the Senate passes
judgment on this bill--I believe it will tonight--the debate is not
going to be finished because we have to consider those important things
done in the other body.
What I have done throughout this time is to remember the words of
Benjamin Franklin--when he literally had his neck on the line because
if the Revolution had failed, he and the others would have been
hanged--when he said: A people who would trade their liberty for
security deserve neither.
We protected our security, but I am not going to give up the
liberties that Americans have spent 220 years to obtain.
Moreover, our ability to make rapid progress was impeded because the
negotiations with the Administration did not progress in a straight
line. On several key issues that are of particular concern to me, we
had reached an agreement with the Administration on Sunday, September
30. Unfortunately, within two days, the Administration announced that
it was reneging on the deal. I appreciate the complex task of
considering the concerns and missions of multiple federal agencies, and
that sometimes agreements must be modified as their implications are
scrutinized by affected agencies. When agreements made by the
Administration must be withdrawn and negotiations on resolved issues
reopened, those in the Administration who blame the Congress for delay
with what the New York Times described last week as "scurrilous
remarks," do not help the process move forward.
Hearings. We have expedited the legislative process in the Judiciary
Committee to consider the Administration's proposals. In daily news
conferences, the Attorney General has referred to the need for such
prompt consideration. I commend him for making the time to appear
before the Judiciary Committee at a hearing September 25 to respond to
questions that Members from both parties have about the
Administration's initial proposals. I also thank the Attorney General
for extending the hour and a half he was able to make in his schedule
for the hearing for another fifteen minutes so that Senator Feinstein
and Senator Specter were able to ask questions before his departure. I
regret that the Attorney General did not have the time to respond to
questions from all the Members of the committee either on September 25
or last week, but again thank him for the attention he promised to give
to written questions Members submitted about the legislation. We have
not received answers to those written questions yet, but I will make
them a part of the hearing whenever they are sent.
The Chairman of the Constitution Subcommittee, Senator Feingold, also
held an important hearing on October 3 on the civil liberties
ramifications of the expanded surveillance powers requested by the
Administration. I thank him for his assistance in illuminating these
critical issues for the Senate.
Rule 14. To accede to the Administration's request for prompt
consideration of this legislation, the Leaders decided to hold the USA
Act at the desk rather than refer the bill to the Committee for mark-
up, as is regular practice. Senator Hatch specifically urged that this
occur and I support this decision. Indeed, when the Senate considered
the anti-terrorism act in 1995 after the Oklahoma City bombing, we
bypassed Committee in order to deal with the legislation more promptly
on the floor.
Given the expedited process that we have used to move this bill, I
will take more time than usual to detail its provisions.
Victims. The heart of every American aches for those who died or have
been injured because of the tragic terrorist attacks in New York,
Virginia, and Pennsylvania on September 11th. Even now, we cannot
assess the full measure of this attack in terms of human lives, but we
know that the number of casualties is extraordinarily high.
Congress acted swiftly to help the victims of September 11th. Within
10 days, we passed legislation to establish a Victims Compensation
Program, which will provide fair compensation to those most affected by
this national tragedy. I am proud of our work on that legislation,
which will expedite payments to thousands of Americans whose lives were
so suddenly shattered.
But now more than ever, we should remember the tens of thousands of
Americans whose needs are not being met--the victims of crimes that
have not made the national headlines. Just one day before the events
that have so transformed our nation, I came before this body to express
my concern that we were not doing more for crime victims. I noted that
the pace of victims legislation has slowed, and that many opportunities
for progress had been squandered. I suggested that this year, we had a
golden opportunity to make significant progress in this area by passing
S. 783, the Leahy-Kennedy Crime Victims Assistance Act of 2001.
I am pleased, therefore, that the antiterrorism package now before
the Senate contains substantial portions of S. 783 aimed at refining
the Victims of Crime Act of 1984 (VOCA), and improving the manner in
which the Crime Victims Fund is managed and preserved. Most
significantly, section 621
[[Page S10549]]
of the USA Act will eliminate the cap on VOCA spending, which has
prevented more than $700 million in Fund deposits from reaching victims
and supporting essential services.
Congress has capped spending from the Fund for the last two fiscal
year, and President Bush has proposed a third cap for fiscal year 2002.
These limits on VOCA spending have created a growing sense of confusion
and unease by many of those concerned about the future of the Fund.
We should not be imposing artificial caps on VOCA spending while
substantial unmet needs continue to exist. Section 621 of the USA Act
replaces the cap with a self-regulating system that will ensure
stability and protection of Fund assets, while allowing more money to
be distributed to the States for victim compensation and assistance.
Other provisions included from S. 783 will also make an immediate
difference in the lives of victims, including victims of terrorism.
Shortly after the Oklahoma City bombing, I proposed and the Congress
adopted the Victims of Terrorism Act of 1995. This legislation
authorized the Office for Victims of Crime (OVC) to set aside an
emergency reserve of up to $50 million as part of the Crime Victims
Fund. The emergency reserve was intended to serve as a "rainy day"
fund to supplement compensation and assistance grants to States to
provide emergency relief in the wake of an act of terrorism or mass
violence that might otherwise overwhelm the resources of a State's
crime victim compensation program and crime victim assistance services.
Last month's disaster created vast needs that have all but depleted the
reserve. Section 621 of the USA Act authorizes OVC to replenish the
reserve with up to $50 million, and streamlines the mechanism for
replenishment in future years.
Another critical provision of the USA Act will enable OVC to provide
more immediate and effective assistance to victims of terrorism and
mass violence occurring within the United States. I proposed this
measure last year as an amendment to the Justice for Victims of
Terrorism Act, but was compelled to drop it to achieve bipartisan
consensus. I am pleased that we are finally getting it done this year.
These and other VOCA reforms in the USA Act are long overdue. Yet, I
regret that we are not doing more. In my view, we should pass the Crime
Victims Assistance Act in its entirety. In addition to the provisions
that are included in today's antiterrorism package, this legislation
provides for comprehensive reform of Federal law to establish enhanced
rights and protections for victims of Federal crime. It also proposes
several programs to help States provide better assistance for victims
of State crimes.
I also regret that we have not done more for other victims of recent
terrorist attacks. While all Americans are numbed by the heinous acts
of September 11th, we should not forget the victims of the 1998 embassy
bombings in East Africa. Eleven Americans and many Kenyan and Tanzanian
nationals employed by the United States lost their lives in that tragic
incident. It is my understanding that compensation to the families of
these victims has in many instances fallen short. It is my hope that
OVC will use a portion of the newly replenished reserve fund to remedy
any inequity in the way that these individuals have been treated.
Hate crimes. We cannot speak of the victims of the September 11
without also noting that Arab-Americans and Muslims in this country
have become the targets of hate crimes, harassment, and intimidation. I
applaud the President for speaking out against and condemning such
acts, and visiting a mosque to demonstrate by action that all religions
are embraced in this country. I also commend the FBI Director for his
periodic reports on the number of hate crime incidents against Arab-
American and Muslims that the FBI is aggressively investigating and
making clear that this conduct is taken seriously and will be punished.
The USA Act contains, in section 102, a sense of the Congress that
crimes and discrimination against Arab and Muslim Americans are
condemned. Many of us would like to do more, and finally enact
effective hate crimes legislation, but the Administration has asked
that the debate on that legislation be postponed. One of my greatest
regrets regarding the negotiations in this bill was the objections that
prevented the Local Law Enforcement Enhancement Act, S. 625, from being
included in the USA Act.
State and local law enforcement. The Administration's initial
proposal was entirely focused on Federal law enforcement. Yet, we must
remember that state and local law enforcement officers have critical
roles to play in preventing and investigating terrorist acts. I am
pleased that the USA Act we consider today recognizes this fact.
As a former State prosecutor, I know that State and local law
enforcement officers are often the first responders to a crime. On
September 11th, the nation saw that the first on the scene were the
heroic firefighters, police officers and emergency personnel in New
York City. These New York public safety officers, many of whom gave the
ultimate sacrifice, remind us of how important it is to support our
State and local law enforcement partners. The USA Act provides three
critical measures of Federal support for our State and local law
enforcement officers in the war against terrorism.
First, we streamline and expedite the Public Safety Officers'
Benefits application process for family members of fire fighters,
police officers and rescue workers who perish or suffer a disabling
injury in connection with prevention, investigation, rescue or recovery
efforts related to a future terrorist attack.
The Public Safety Officers' Benefits Program provides benefits for
each of the families of law enforcement officers, firefighters, and
emergency response crew members who are killed or disabled in the line
of duty. Current regulations, however, require the families of public
safety officers who have fallen in the line of duty to go through a
cumbersome and time-consuming application process. In the face of our
national fight against terrorism, it is important that we provide a
quick process to support the families of brave Americans who selflessly
give their lives so that others might live before, during and after a
terrorist attack.
This provision builds on the new law championed by Senator Clinton,
Senator Schumer and Congressman Nadler to speed the benefit payment
process for families of public safety officers killed in the line of
duty in New York City, Virginia, and Western Pennsylvania, on September
11.
Second, we have raised the total amount of Public Safety Officers'
Benefit Program payments from approximately $150,000 to $250,000. This
provision retroactively goes into effort to provide much-needed relief
for the families of the brave men and women who sacrificed their own
lives for their fellow Americans during the year. Although this
increase in benefits can never replace a family's tragic loss, it is
the right thing to do for the families of our fallen heroes. I want to
thank Senator Biden and Senator Hatch for their bipartisan leadership
on this provision.
Third, we expand the Department of Justice Regional Information
Sharing Systems Program to promote information sharing among Federal,
State and local law enforcement agencies to investigate and prosecute
terrorist conspiracies and activities and authorize a doubling of
funding for this year and next year. The RISS Secure Intranet is a
nationwide law enforcement network that already allows secure
communications among the more than 5,700 Federal, State and local law
enforcement agencies. Effective communication is key to effective law
enforcement efforts and will be essential in our national fight against
terrorism.
The RISS program enables its member agencies to send secure,
encrypted communications--whether within just one agency or from one
agency to another. Federal agencies, such as the FBI, do not have this
capability, but recognize the need for it. Indeed, on September 11,
2001, immediately after the terrorist attacks, FBI Headquarters called
RISS officials to request "Smartgate" cards and readers to secure
their communications systems. The FBI agency in Philadelphia called
soon after to request more Smartgate cards and readers as well.
The Regional Information sharing Systems Program is a proven success
that we need to expand to improve secure information sharing among
Federal, State and local law enforcement
[[Page S10550]]
agencies to coordinate their counter-terrorism efforts.
Our State and local law enforcement partners welcome the challenge to
join in our national mission to combat terrorism. We cannot ask State
and local law enforcement officers to assume these new national
responsibilities without also providing new Federal support. The USA
Act provides the necessary Federal support for our State and local law
enforcement officers to serve as full partners in our fight against
terrorism.
I am deeply troubled by continuing reports that information is not
being shared with state local law enforcement. In particular, the
testimony of Baltimore Police Chief Ed Norris before the House
Government Reform Committee last week highlighted the current problem.
Northern borders. The unfolding facts about how the terrorists who
committed the September 11 attack were able to enter this country
without difficulty are chilling. Since the attacks many have pointed to
our northern border as vulnerable to the entry of future terrorists.
This is not surprising when a simple review of the numbers shows that
the northern border has been routinely short-changed in personnel.
While the number of border patrol agents along the southern border has
increased over the last few years to over 8,000, the number at the
northern border has remained the same as a decade ago at 300. This
remains true despite the fact that Admad Ressam, the Algerian who
planned to blow up the Los Angeles International Airport in 1999, and
who has been linked to those involved in the September 11 attacks,
chose to enter the United States at our northern border. It will remain
an inviting target until we dramatically improve our security.
The USA Act includes my proposals to provide the substantial and long
overdue assistance for our law enforcement and border control efforts
along the Northern Border. My home state of Vermont has seen huge
increases in customs and INS activity since the signing of NAFTA. The
number of people coming through our borders has risen steeply over the
years, but our staff and our resources have not.
I proposed--and this legislation authorizes in section 402--tripling
the number of Border Patrol, INS inspectors, and customs Service
employees in each of the States along the 4,000-mile Northern Border. I
was gratified when 22 Senators--Democrats and Republicans--wrote to the
President supporting such an increase, and I am pleased that the
Administration agreed that this critical law enforcement improvement
should be included in the bill. Senators Cantwell and Schumer in the
Committee and Senators Murray and Dorgan have been especially strong
advocates of these provisions and I thank them for their leadership. In
addition, the USA Act, in section 401, authorizes the Attorney General
to waive the FTE cap on INS personnel in order to address the national
security needs of the United States on the northern border. Now more
than ever, we must patrol our border vigilantly and prevent those who
wish America harm from gaining entry. At the same time, we must work
with the Canadians to allow speedy crossing to legitimate visitors and
foster the continued growth of trade which is beneficial to both
countries.
In addition to providing for more personnel, this bill also includes,
in section 402(4), my proposal to provide $100 million in funding for
both the INS and the Customs Service to improve the technology used to
monitor the Northern Border and to purchase additional equipment. The
bill also includes, in section 403(c), an important provisions from
Senator Cantwell directing the Attorney General, in consultation with
other agencies, to develop a technical standard for identifying
electronically the identity of persons applying for visas or seeking to
enter the United States. In short, this bill provides a comprehensive
high-tech boost for the security of our nation.
This bill also includes important proposals to enhance data sharing.
The bill, in section 403, directs the Attorney General and the FBI
Director to give the State Department and INS access to the criminal
history information in the FBI's National Crime Information Center
(NCIC) database, as the Administration and I both proposed. The
Attorney General is directed to report back to the Congress in two
years on progress in implementing this requirement. We have also
adopted the Administration's language, in section 413, to make it
easier for the State Department to share information with foreign
governments for aid in terrorist investigations.
Criminal justice improvements. The USA Act contains a number of
provisions intended to improve and update the federal criminal code to
address better the nature of terrorist activity, assist the FBI in
translating foreign language information collected, and ensure that
federal prosecutors are unhindered by conflicting local rules of
conduct to get the job done. I will mention just a few of these
provisions.
FBI translators. The truth certainly seems self-evident that all the
best surveillance techniques in the world will not help this country
defend itself from terrorist attack if the information cannot be
understood in a timely fashion. Indeed, within days of the September
11, the FBI Director issued an employment ad on national TV by calling
upon those who speak Arabic to apply for a job as an FBI translator.
This is a dire situation that needs attention. I am therefore gratified
that the Administration accepted by proposal, in section 205, to waive
any federal personnel requirements and limitations imposed by any other
law in order to expedite the hiring of translators at the FBI.
This bill also directs the FBI Director to establish such security
requirements as are necessary for the personnel employed as
translators. We know the effort to recruit translators has a high
priority, and the Congress should provide all possible support.
Therefore, the bill calls on the Attorney General to report to the
Judiciary Committees on the number of translators employed by the
Justice Department, any legal or practical impediments to using
translators employed by other Federal, State, or local agencies, on a
full, part-time, or shared basis; and the needs of the FBI for specific
translation services in certain languages, and recommendations for
meeting those needs.
Federal crime of terrorism. The Administration's initial proposal
assembled a laundry list of more than 40 Federal crimes ranging from
computer hacking to malicious mischief to the use of weapons of mass
destruction, and designated them as "Federal terrorism offenses,"
regardless of the circumstances under which they were committed. For
example, a teenager who spammed the NASA website and, as a result,
recklessly caused damage, would be deemed to have committed this new
"terrorism" offense. Under the Administration's proposal, the
consequences of this designation were severe. Crimes on the list would
carry no statute of limitations. The maximum penalties would shoot up
to life imprisonment, and those released earlier would be subject to a
lifetime of supervised release. Moreover, anyone who harbored a person
whom he had "reasonable grounds to suspect" had committed, or was
about to commit, a "Federal terrorism offense"--whether it was the
Taliban or the mother of my hypothetical teenage computer hacker--would
be subject to stiff criminal penalties. I worked closely with the
Administration to ensure that the definition of "terrorism" in the
USA Act fit the crime.
First, we have trimmed the list of crimes that may be considered as
terrorism predicates in section 808 of the bill. This shorter, more
focused list, to be codified at 18 U.S.C. Sec. 2332(g)(5)(B), more
closely reflects the sorts of offenses committed by terrorists.
Second, we have provided, in section 810, that the current 8-year
limitations period for this new set of offenses will remain in place,
except where the commission of the offense resulted in, or created a
risk of, death or serious bodily injury.
Third, rather than make an across-the-board, one-size-fits-all
increase of the penalties for every offense on the list, without regard
to the severity of the offense, we have made, in section 811, more
measured increases in maximum penalties where appropriate, including
life imprisonment or lifetime supervised release in cases in which the
offense resulted in death. We have also added, in section 812,
conspiracy provisions to a few criminal statutes where appropriate,
with penalties equal to the penalties for the object offense, up to
life imprisonment.
[[Page S10551]]
Finally, we have more carefully defined the new crime of harboring
terrorists in section 804, so that it applies only to those harboring
people who have committed, or are about to commit, the most serious of
federal terrorism-related crimes, such as the use of weapons of mass
destruction. Moreover, it is not enough that the defendant had
"reasonable grounds to suspect" that the person he was harboring had
committed, or was about to commit, such a crime; the government must
prove that the defendant knew or had "reasonable grounds to believe"
that this was so.
McDade fix. The massive investigation underway into who was
responsible for and assisted in carrying out the September 11 attacks
stretches across state and national boundaries. While the scope of the
tragedy is unsurpassed, the disregard for state and national borders of
this criminal conspiracy is not unusual. Federal investigative officers
and prosecutors often must follow leads and conduct investigations
outside their assigned jurisdictions. At the end of the 105th Congress,
a legal impediment to such multi-jurisdiction investigations was
slipped into the omnibus appropriations bill, over the objection at the
time of every member of the Senate Judiciary Committee.
I have spoken many times over the past two years of the problems
caused by the so-called McDade law, 28 U.S.C. Sec. 530B. According to
the Justice Department, the McDade law has delayed important criminal
investigations, prevented the use of effective and traditionally-
accepted investigative techniques, and served as the basis of
litigation to interfere with legitimate federal prosecutions. At a time
when we need federal law enforcement authorities to move quickly to
catch those responsible for the September 11th attacks, and to prevent
further attacks on our country, we can no longer tolerate the drag on
federal investigations and prosecutions caused by this ill-considered
legislation.
On September 19th, I introduced S. 1437, the Professional Standards
for Government Attorneys Act of 2001, along with Senators Hatch and
Wyden. This bill proposes to modify the McDade law by establishing a
set of rules that clarify the professional standards applicable to
government attorneys. I am delighted that the Administration recognized
the importance of S. 1437 for improving federal law enforcement and
combating terrorism, and agreed to its inclusion as section 501 of the
USA Act.
The first part of section 501 embodies the traditional understanding
that when lawyers handle cases before a Federal court, they should be
subject to the Federal court's standards of professional
responsibility, and not to the possibly inconsistent standards of other
jurisdictions. By incorporating this ordinary choice-of-law principle,
the bill preserves the Federal courts' traditional authority to oversee
the professional conduct of Federal trial lawyers, including Federal
prosecutors. It thus avoids the uncertainties presented by the McDade
law, which potentially subjects Federal prosecutors to State laws,
rules of criminal procedure, and judicial decisions which differ from
existing Federal law.
Another part of section 501 specifically addresses the situation in
Oregon, where a state court ruling has seriously impeded the ability of
Federal agents to engage in undercover operations and other covert
activities. See In re Gatti, 330 Or. 517 (2000). Such activities are
legitimate and essential crime-fighting tools. The Professional
Standards for Government Attorneys Act ensures that these tools will be
available to combat terrorism.
Finally, section 501 addresses the most pressing contemporary
question of government attorney ethics--namely, the question of which
rule should govern government attorneys' communications with
represented persons. It asks the Judicial Conference of the United
States to submit to the Supreme Court a proposed uniform national rule
to govern this area of professional conduct, and to study the need for
additional national rules to govern other areas in which the
proliferation of local rules may interfere with effective Federal law
enforcement. The Rules Enabling Act process is the ideal one for
developing such rules, both because the Federal judiciary traditionally
is responsible for overseeing the conduct of lawyers in Federal court
proceedings, and because this process would best provide the Supreme
Court an opportunity fully to consider and objectively to weigh all
relevant considerations.
The problems posed to Federal law enforcement investigations and
prosecutions by the McDade law are real and urgent. The Professional
Standards for Government Attorneys Act provides a reasonable and
measured alternative: It preserves the traditional role of the State
courts in regulating the conduct of attorneys licensed to practice
before them, while ensuring that Federal prosecutors and law
enforcement agents will be able to use traditional Federal
investigative techniques. We need to pass this corrective legislation
before more cases are compromised.
Terrorist attacks against mass transportation systems. Another
provision of the USA Act that was not included in the Administration's
initial proposal is section 801, which targets acts of terrorism and
other violence against mass transportation systems. Just last week, a
Greyhound bus crashed in Tennessee after a deranged passenger slit the
driver's throat and then grabbed the steering wheel, force the bus into
the oncoming traffic. Six people were killed in the crash. Because
there are currently no federal law addressing terrorism of mass
transportation systems, however, there may be no federal jurisdiction
over such as case, even if it were committed by suspected terrorists.
Clearly, there is an urgent need for strong criminal legislation to
deter attacks against mass transportation systems. Section 801 will
fill this gap.
Cybercrime. The Computer Fraud and Abuse Act, 18 U.S.C. Sec. 1030, is
the primary federal criminal statue prohibiting computer frauds and
hacking. I worked with Senator Hatch in the last Congress to make
improvements to this law in the Internet Security Act, which passed the
Senate as part of another bill. Our work is included in section 815 of
the USA Act. This section would amend the statute to clarify the
appropriate scope of federal jurisdiction. First, the bill adds a
definition of "loss" to cover any reasonable cost to the victim in
responding to a computer hacker. Calculation of loss is important both
in determining whether the $5,000 jurisdictional hurdle in the statute
is met, and, at sentencing, in calculating the appropriate guideline
range and restitution amount.
Second, the bill amends the definitions of "protected computer" to
include qualified computers even when they are physically located
outside of the United States. This clarification will preserve the
ability of the United States to assist in internal hacking cases.
Finally, this section eliminates the current directive to the
Sentencing Commission requiring that all violations, including
misdemeanor violations, of certain provisions of the Computer Fraud and
Abuse Act be punished with a term of imprisonment of at least six
months.
Biological weapons. Borrowing from a bill introduced in the last
Congress By Senator Biden, the USA Act contains a provision in section
802 to strengthen our federal laws relating to the threat of biological
weapons. Current law prohibits the possession, development, or
acquisition of biological agents or toxins "for use as a weapon."
This section amends the definition of "for use as a weapon" to
include all situations in which it can be proven that the defendant had
any purpose other than a peaceful purpose. This will enhance the
government's ability to prosecute suspected terrorists in possession of
biological agents or toxins, and conform the scope of the criminal
offense in 18 U.S.C. Sec. 175 more closely to the related forfeiture
provision in 18 U.S.C. Sec. 176. This section also contains a new
statute, 18 U.S.C. Sec. 175b, which generally makes it an offense for
certain restricted persons, including non-resident aliens from
countries that support international terrorism, to possess a listed
biological agent or toxin.
Of greater consequence, section 802 defines another additional
offense, punishable by up to 10 years in prison, of possessing a
biological agent, toxin, or delivery system "of a type or in a
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quantity that, under the circumstances," is not reasonably justified
by a peaceful purpose. As originally proposed by the Administration,
this provision specifically stated that knowledge of whether the type
or quantity of the agent or toxin was reasonably justified was not an
element of the offense. Thus, although the burden of proof is always on
the government, every person who possesses a biological agent, toxin,
or delivery system was at some level of risk. I am pleased that the
Administration agreed to drop this portion of the provision.
Nevertheless, I remain troubled by the subjectivity of the
substantive standard for violation of this new criminal prohibition,
and question whether it provides sufficient notice under the
Constitution. I also share the concerns of the American Society for
Microbiology and the Association of American Universities that this
provision will have a chilling effect upon legitimate scientific
inquiry that offsets any benefit in protecting against terrorism. While
we have tried to prevent against this by creating an explicit exclusion
for "bona fide research," this provision may yet prove unworkable,
unconstitutional, or both. I urge the Justice Department and the
research community to work together on substitute language that would
provide prosecutors with a more workable tool.
Secret Service jurisdiction. Two sections of the USA Act were added
at the request of the United States Secret Service, with the support of
the Administration. I was pleased to accommodate the Secret Service by
including these provisions in the bill to expand Electronic Crimes Task
Force and to clarify the authority of the Secret Service to
investigator computer crimes.
The Secret Service is committed to the development of new tools to
combat the growing areas of financial crime, computer fraud, and
cyberterrorism. Recognizing a need for law enforcement, private
industry and academia to pool their resources, skills and revision to
combat criminal elements in cyberspace, the Secret Service created the
New York Electronic Crimes Task Force (NYECTF). This highly successful
model is comprised of over 250 individual members, including 50
different Federal, State and local enforcement agencies, 100 private
companies, and 9 universities. Since its inception in 1995, the NYECTF
has successfully investigated a range of financial and electronic
crimes, including credit card fraud, identify theft, bank fraud,
computer systems intrusions, and e-mail threats against protectees of
the Secret Service. Section 105 of the USA Act authorizes the Secret
Service to develop similar task forces in cities and regions across the
country where critical infrastructure may be vulnerable to attacks from
terrorists or other cyber-criminals.
Section 507 of the USA Act gives the Secret Service concurrent
jurisdiction to investigate offenses under 18 U.S.C. Sec. 1030.
relating to fraud and related activity in connection with computers.
Prior to the 1996 amendments to the Computer Fraud and Abuse Act, the
Secret Service was authorized to investigate any an all violations of
section 1030, pursuant to an agreement between the Secretary of
Treasury and the Attorney General. The 1996 amendments, however,
concentrated Secret Service jurisdiction on certain specified
subsections of section 1030. The current amendment would return full
jurisdiction to the Secret Service and would allow the Justice and
Treasury Departments to decide on the appropriate work-sharing balance
between the two. This will enable the Secret Service to investigate a
wide range of potential White House network intrusions, as well as
intrusions into remote sites (outside of the White House) that could
impact the safety and security of its protectees, and to continue its
mission to protect the nation's critical infrastructure and financial
payment systems.
Counter-terrorism Fund. The USA Act also authorizes, for the first
time, a counter-terrorism fund in the Treasury of the United States to
reimburse Justice Department for any costs incurred in connection with
the fight against terrorism.
Specifically, this counter-terrorism fund will: (1) reestablish an
office or facility that has been damaged as the result of any domestic
or international terrorism incident; (2) provide support to counter,
investigate, or prosecute domestic or international terrorism,
including paying rewards in connection with these activities; (3)
conduct terrorism threat assessments of Federal agencies; and (4) for
costs incurred in connection with detaining individuals in foreign
countries who are accused of acts of terrorism in violation of United
States law.
I first authored this counter-terrorism fund in the S. 1319, the 21st
Century Department of Justice Appropriations Authorization Act, which
Senator Hatch and I introduced in August.
Enhanced surveillance procedures. The USA Act provides enhanced
surveillance procedures for the investigation of terrorism and other
crimes. The challenge before us has been to strike a reasonable balance
to protect both security and the liberties of our people. In some
respects, the changes made are appropriate and important ones to update
surveillance and investigative procedures in light of new technology
and experience with current law. Yet, in other respects, I have deep
concerns that we may be increasing surveillance powers and the sharing
of criminal justice information without adequate checks on how
information may be handled and without adequate accountability in the
form of judicial review.
The bill contains a number of sensible proposals that should not be
controversial.
Wiretap predicates. For example, sections 201 and 202 of the USA Act
would add to the list of crimes that may be used as predicates for
wiretaps certain offenses which are specifically tailored to the
terrorist threat. In addition to crimes that relate directly to
terrorism, the list would include crimes of computer fraud and abuse
which are committed by terrorists to support and advance their illegal
objectives.
FISA roving wiretraps. The bill, in section 206, would authorize the
use of roving wiretaps in the course of a foreign intelligence
investigation and brings FISA into line with criminal procedures that
allow surveillance to follow a person, rather than requiring a separate
court order identifying each telephone company or other communication
common carrier whose assistance is needed. This is a matter on which
the Attorney General and I reached early agreement. This is the kind of
change that has a compelling justification, because it recognizes the
ease with which targets of investigations can evade surveillance by
changing phones. In fact, the original roving wiretap authority for use
in criminal investigations was enacted as part of the Electronic
Communications Privacy Act (ECPA) in 1986. I was proud to be the
primary Senate sponsor of that earlier law.
Paralleling the statutory rules applicable to criminal
investigations, the formulation I originally proposed made clear that
this roving wiretap authority must be requested in the application
before the FISA court was authorized to order such roving surveillance
authority. Indeed, the Administration agrees that the FISA court may
not grant such authority sua sponte. Nevertheless, we have accepted the
Administration's formulation of the new roving wiretap authority, which
requires the FISA court to make a finding that the actions of the
person whose communications are to be intercepted could have the effect
of thwarting the identification of a specified facility or place. While
no amendment is made to the statutory directions for what must be
included in the application for a FISA electronic surveillance order,
these applications should include the necessary information to support
the FISA court's finding that roving wiretap authority is warranted.
Search warrants. The USA Act, in section 219, authorizes nationwide
service of search warrants in terrorism investigations. This will allow
the judge who is most familiar with the developments in a fast-breaking
and complex terrorism investigation to make determinations of probable
cause, no matter where the property to be searched is located. This
will not only save time by avoiding having to bring up-to-speed another
judge in another jurisdiction where the property is located, but also
serves privacy and Fourth Amendment interests in ensuring that the most
knowledgeable judge makes the determination of probable cause. The
bill, in section 209, also authorizes voice mail messages to be seized
on the authority
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of a probable cause search warrant rather than through the more
burdensome and time-consuming process of a wiretap.
Electronic records. The bill updates the laws pertaining to
electronic records in three primary ways. First, in section 210, the
bill authorizes the nationwide service of subpoenas for subscriber
information and expands the list of items subject to subpoena to
include the means and source of payment for the service.
Second, in section 211, the bill equalizes the standard for law
enforcement access to cable subscriber records on the same basis as
other electronic records. The Cable Communications Policy Act, passed
in 1984 to regulate various aspects of the cable television industry,
did not take into account the changes in technology that have occurred
over the last fifteen years. Cable television companies now often
provide Internet access and telephone service in addition to television
programming. This amendment clarifies that a cable company must comply
with the laws governing the interception and disclosure of wire and
electronic communications just like any other telephone company or
Internet service provider. The amendments would retain current
standards that govern the release of customer records for television
programming.
Finally, the bill, in section 212, permits, but does not require, an
electronic communications service to disclose the contents of and
subscriber information about communications in emergencies involving
the immediate danger of death or serious physical injury. Under current
law, if an ISP's customer receives an e-mail death threat from another
customer of the same ISP, and the victim provides a copy of the
communication to the ISP, the ISP is limited in what actions it may
take. On one hand, the ISP may disclose the contents of the forwarded
communication to law enforcement (or to any other third party as it
sees fit). See 18 U.S.C. Sec. 2702(b)(3). On the other hand, current
law does not expressly authorize the ISP to voluntarily provide law
enforcement with the identity, home address, and other subscriber
information of the user making the threat. See 18 U.S.C.
Sec. 2703(c)(1)(B),(C) (permitting disclosure to government entities
only in response to legal process). In those cases where the risk of
death or injury is imminent, the law should not require providers to
sit idly by. This voluntary disclosure, however, in no way creates an
affirmative obligation to review customer communications in search of
such imminent dangers.
Also, under existing law, a provider (even one providing services to
the public) may disclose the contents of a customer's communications--
to law enforcement or anyone else--in order to protect its rights or
property. See 18 U.S.C. Sec. 2702(b)(5). However, the current statute
does not expressly permit a provider voluntarily to disclose non-
content records (such as a subscriber's login records) to law
enforcement for purposes of self-protection. See 18 U.S.C.
Sec. 2703(c)(1)(B). Yet the right to disclose the content of
communications necessarily implies the less intrusive ability to
disclose non-content records. Cf. United States v. Auler, 539 F.2d 642,
646 n.9 (7th Cir. 1976) (phone company's authority to monitor and
disclose conversations to protect against fraud necessarily implies
right to commit lesser invasion of using, and disclosing fruits of, pen
register device) (citing United States v. Freeman, 524 F.2d 337, 341
(7th Cir. 1975)). Moreover, as a practical matter providers must have
the right to disclose the facts surrounding attacks on their systems.
When a telephone carrier is defrauded by a subscriber, or when an ISP's
authorized user launches a network intrusion against his own ISP, the
provider must have the legal ability to report the complete details of
the crime to law enforcement. The bill clarifies that service providers
have the statutory authority to make such disclosures.
Pen registers. There is consensus that the existing legal procedures
for pen register and trap-and-trace authority are antiquated and need
to be updated. I have been proposing ways to update the pen register
and trap and trace statutes for several years, but not necessarily in
the same ways as the Administration initially proposed. In fact, in
1998, I introduced with then-Senator Ashcroft, the E-PRIVACY Act, S.
2067, which proposed changes in the pen register laws. In 1999, I
introduced the E-RIGHTS Act, S. 934, also with proposals to update the
pen register laws.
Again, in the last Congress, I introduced the Internet Security Act,
S. 2430, on April 13, 2000, that proposed (1) changing the pen register
and trap and trace device law to give nationwide effect to pen register
and trap and trace orders obtained by Government attorneys and obviate
the need to obtain identical orders in multiple federal jurisdictions;
(2) clarifying that such devices can be used for computer transmissions
to obtain electronic addresses, not just on telephone lines; and (3) as
a guard against abuse, providing for meaningful judicial review of
government attorney applications for pen registers and trap and trace
devices.
As the outline of my earlier legislation suggests, I have long
supported modernizing the pen register and trap and trace device laws
by modifying the statutory language to cover the use of these orders on
computer transmissions; to remove the jurisdictional limits on service
of these orders; and to update the judicial review procedure, which,
unlike any other area in criminal procedure, bars the exercise of
judicial discretion in reviewing the justification for the order. The
USA Act, in section 216, updates the pen register and trap and trace
laws only in two out of three respects I believe are important, and
without allowing meaningful judicial review. Yet, we were able to
improve the Administration's initial proposal, which suffered from the
same problem as the provision that was hastily taken up and passed by
the Senate, by voice vote, on September, 13, 2001, as an amendment to
the Commerce Justice State Appropriations Act.
Nationwide service. The existing legal procedures for pen register
and trap-and-trace authority require service of individual orders for
installation of pen register or trap and trace device on the service
providers that carried the targeted communications. Deregulation of the
telecommunications industry has had the consequence that one
communication may be carried by multiple providers. For example, a
telephone call may be carried by a competitive local exchange carrier,
which passes it at a switch to a local Bell Operating Company, which
passes it to a long distance carrier, which hands it to an incumbent
local exchange carrier elsewhere in the U.S., which in turn may finally
hand it to a cellular carrier. If these carriers do not pass source
information with each call, identifying that source may require
compelling information from a host of providers located throughout the
country.
Under present law, a court may only authorize the installation of a
pen register or trap device "within the jurisdiction of the court."
As a result, when one provider indicates that the source of a
communication is a carrier in another district, a second order may be
necessary. The Department of Justice has advised, for example, that in
1996, a hacker (who later turned out to be launching his attacks from a
foreign country) extensively penetrated computers belonging to the
Department of Defense. This hacker was dialing into a computer at
Harvard University and used this computer as an intermediate staging
point in an effort to conceal his location and identity. Investigators
obtained a trap and trace order instructing the phone company, Nynex,
to trace these calls, but Nynex could only report that the
communications were coming to it from a long-distance carrier, MCI.
Investigators then applied for a court order to obtain the connection
information from MCI, but since the hacker was no longer actually using
the connection, MCI could not identify its source. Only if the
investigators could have served MCI with a trap and trace order while
the hacker was actively on-line could they have successfully traced
back and located him.
In another example provided by the Department of Justice,
investigators encountered similar difficulties in attempting to track
Kevin Mitnick, a criminal who continued to hack into computers attached
to the Internet despite the fact that he was on supervised release for
a prior computer crime conviction. The FBI attempted to trace
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these electronic communications while they were in progress. In order
to evade arrest, however, Mitnick moved around the country and used
cloned cellular phones and other evasive techniques. His hacking
attacks would often pass through one of two cellular carriers, a local
phone company, and then two Internet service providers. In this
situation, where investigators and service providers had to act quickly
to trace Mitnick in the act of hacking, only many repeated attempts--
accompanied by an order to each service provider--finally produced
success. Fortunately, Mitnick was such a persistent hacker that he gave
law enforcement many chances to complete the trace.
This duplicative process of obtaining a separate order for each link
in the communications chain can be quite time-consuming, and it serves
no useful purpose since the original court has already authorized the
trace. Moreover, a second or third order addressed to a particular
carrier that carried part of a prior communication may prove useless
during the next attack: in computer intrusion cases, for example, the
target may use an entirely different path (i.e., utilize a different
set of intermediate providers) for his or her subsequent activity.
The bill would modify the pen register and trap and trace statutes to
allow for nationwide service of a single order for installation of
these devices, without the necessity of returning to court for each new
carrier. I support this change.
Second, the language of the existing statute is hopelessly out of
date and speaks of a pen register or trap and trace "device" being
"attached" to a telephone "line." However, the rapid
computerization of the telephone system has changed the tracing
process. No longer are such functions normally accomplished by physical
hardware components attached to telephone lines. Instead, these
functions are typically performed by computerized collection and
retention of call routing information passing through a communications
system.
The statute's definition of a "pen register" as a "device" that
is "attached" to a particular "telephone line" is particularly
obsolete when applied to the wireless portion of a cellular phone call,
which has no line to which anything can be attached. While courts have
authorized pen register orders for wireless phones based on the notion
of obtaining access to a "virtual line," updating the law to keep
pace with current technology is a better course.
Moreover, the statute is ill-equipped to facilitate the tracing of
communications that take place over the Internet. For example, the pen
register definition refers to telephone "numbers" rather than the
broader concept of a user's communications account. Although pen
register and trap orders have been obtained for activity on computer
networks, Internet service providers have challenged the application of
the statute to electronic communications, frustrating legitimate
investigations. I have long supported updating the statute by removing
words such as "numbers . . . dialed" that do not apply to the way
that pen/trap devices are used and to clarify the statute's proper
application to tracing communications in an electronic environment, but
in a manner that is technology neutral and does not capture the content
of communications. That being said, I have been concerned about the FBI
and Justice Department's insistence over the past few years that the
pen/trap devices statutes be updated with broad, undefined terms that
continue to flame concerns that these laws will be used to intercept
private communications content.
The Administration's initial pen/trap device proposal added the terms
"routing" and "addressing" to the definitions describing the
information that was authorized for interception on the low relevance
standard under these laws. The Administration and the Department of
Justice flatly rejected my suggestion that these terms be defined to
respond to concerns that the new terms might encompass matter
considered content, which may be captured only upon a showing of
probable cause, not the mere relevancy of the pen/trap statute.
Instead, the Administration agreed that the definition should expressly
exclude the use of pen/trap devices to intercept "content," which is
broadly defined in 18 U.S.C. 2510(8).
While this is an improvement, the FBI and Justice Department are
short-sighted in their refusal to define these terms. We should be
clear about the consequence of not providing definitions for these new
terms in the pen/trap device statutes. These terms will be defined, if
not by the Congress, then by the courts in the context of criminal
cases where pen/trap devices have been used and challenged by
defendants. If a court determines that a pen register has captured
"content," which the FBI admits such devices do, in violation of the
Fourth Amendment, suppression may be ordered, not only of the pen
register evidence but any other evidence derived from it. We are
leaving the courts with little or no guidance of what is covered by
"addressing" or "routing."
The USA Act also requires the government to use reasonably available
technology that limits the interceptions under the pen/trap device laws
"so as not to include the contents of any wire or electronic
communications." This limitation on the technology used by the
government to execute pen/trap orders is important since, as the FBI
advised me June, 2000, pen register devices "do capture all electronic
impulses transmitted by the facility on which they are attached,
including such impulses transmitted after a phone call is connected to
the called party." The impulses made after the call is connected could
reflect the electronic banking transactions a caller makes, or the
electronic ordering from a catalogue that a customer makes over the
telephone, or the electronic ordering of a prescription drug.
This transactional data intercepted after the call is connected is
"content." As the Justice Department explained in May, 1998 in a
letter to House Judiciary Committee Chairman Henry Hyde, "the
retrieval of the electronic impulses that a caller necessarily
generated in attempting to direct the phone call" does not constitute
a "search" requiring probable cause since "no part of the
substantive information transmitted after the caller had reached the
called party" is obtained. But the Justice Department made clear that
"all of the information transmitted after a phone call is connected to
the called party . . . is substantive in nature. These electronic
impulses are the `contents' of the call: They are not used to direct or
process the call, but instead convey certain messages to the
recipient."
When I added the direction on use of reasonably available technology
(codified as 18 U.S.C. 3121(c)) to the pen register statute as part of
the Communications Assistance for Law Enforcement Act (CALEA) in 1994,
I recognized that these devices collected content and that such
collection was unconstitutional on the mere relevance standard.
Nevertheless, the FBI advised me in June, 2000, that pen register
devices for telephone services "continue to operate as they have for
decades" and that "there had been no change . . . that would better
restrict the recording or decoding of electronic or other impulses to
the dialing and signaling information utilized in call processing."
Perhaps, if there were meaningful judicial review and accountability,
the FBI would take the statutory direction more seriously and actually
implement it.
Judicial review. Due in significant part to the fact that pen/trap
devices in use today collect "content," I have sought in legislation
introduced over the past few years to update and modify the judicial
review procedure for pen register and trap and trace devices. Existing
law requires an attorney for the government to certify that the
information likely to be obtained by the installation of a pen register
or trap and trace device will be relevant to an ongoing criminal
investigation. The court is required to issue an order upon seeing the
prosecutor's certification. The court is not authorized to look behind
the certification to evaluate the judgment of the prosecutor.
I have urged that government attorneys be required to include facts
about their investigations in their applications for pen/trap orders
and allow courts to grant such orders only where the facts support the
relevancy of the information likely to be obtained by the orders. This
is not a change in the applicable standard, which would remain the very
low relevancy standard.
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Instead, this change would simply allow the court to evaluate the facts
presented by a prosecutor, and, if it finds that the facts support the
government's assertion that the information to be collected will be
relevant, issue the order. Although this change will place an
additional burden on law enforcement, it will allow the courts a
greater ability to assure that government attorneys are using such
orders properly.
Some have called this change a "roll-back" in the statute, as if
the concept of allowing meaningful judicial review was an extreme
position. To the contrary, this is a change that the Clinton
Administration supported in legislation transmitted to the Congress
last year. This is a change that the House Judiciary Committee also
supported last year. In the Electronic Communications Privacy Act, H.R.
5018, that Committee proposed that before a pen/trap device "could be
ordered installed, the government must first demonstrate to an
independent judge that `specific and articulable facts reasonably
indicate that a crime has been, is being, or will be committed, and
information likely to be obtained by such installation and use . . . is
relevant to an investigation of that crime." (Report 106-932, 106th
Cong. 2d Sess., Oct. 4, 2000, p. 13). Unfortunately, the Bush
Administration has taken a contrary position and has rejected this
change in the judicial review process.
Computer trespasser. Currently, an owner or operator of a computer
that is accessed by a hacker as a means for the hacker to reach a third
computer, cannot simply consent to law enforcement monitoring of the
computer. Instead, because the owner or operator is not technically a
party to the communication, law enforcement needs wiretap authorization
under Title III to conduct such monitoring. I have long been interested
in closing this loophole. Indeed, when I asked about this problem, the
FBI explained to me in June, 2000, that:
This anomaly in the law creates an untenable situation
whereby providers are sometimes forced to sit idly by as they
witness hackers enter and, in some situations, destroy or
damage their systems and networks while law enforcement
begins the detailed process of seeking court authorization to
assist them. In the real world, the situation is akin to a
homeowner being forced to helplessly watch a burglar or
vandal while police seek a search warrant to enter the
dwelling.
I therefore introduced as part of the Internet Security Act, S. 2430,
in 2000, an exception to the wiretap statute that would explicitly
permit such monitoring without a wiretap if prior consent is obtained
from the person whose computer is being hacked through and used to send
"harmful interference to a lawfully operating computer system."
The Administration initially proposed a different formulation of the
exception that would have allowed an owner/operator of any computer
connected to the Internet to consent to FBI wiretapping of any user who
violated a workplace computer use policy or online service term of
service and was thereby an "unauthorized" user. The Administration's
proposal was not limited to computer hacking offenses under 18 U.S.C.
1030 or to conduct that caused harm to a computer or computer system.
The Administration rejected these refinements to their proposed wiretap
exception, but did agree, in section 217 of the USA Act, to limit the
authority for wiretapping with the consent of the owner/operator to
communications of unauthorized users without an existing subscriber or
other contractual relationship with the owner/operator.
Sharing criminal justice information. The USA Act will make
significant changes in the sharing of confidential criminal justice
information with various Federal agencies. For those of us who have
been concerned about the leaks from the FBI that can irreparably damage
reputations of innocent people and frustrate investigations by alerting
suspects to flee or destroy material evidence, the Administration's
insistence on the broadest authority to disseminate such information,
without any judicial check, is disturbing. Nonetheless, I believe we
have improved the Administration's initial proposal in responsible
ways. Only time will tell whether the improvements we were able to
reach agreement on are sufficient.
At the outset, we should be clear that current law allows the sharing
of confidential criminal justice information, but with close court
supervision. Federal Rule of Criminal Procedure 6(e) provides that
matters occurring before a grand jury may be disclosed only to an
attorney for the government, such other government personnel as are
necessary to assist the attorney and another grand jury. Further
disclosure is also allowed as specifically authorized by a court.
Similarly, section 2517 of title 18, United States Code provides that
wiretap evidence may be disclosed in testimony during official
proceedings and to investigative or law enforcement officers to the
extent appropriate to the proper performance of their official duties.
In addition, the wiretap law allows disclosure of wiretap evidence
"relating to offenses other than specified in the order" when
authorized or approved by a judge. Indeed, just last year, the Justice
Department assured us that "law enforcement agencies have authority
under current law to share title III information regarding terrorism
with intelligence agencies when the information is of overriding
importance to the national security." (Letter from Robert Raben,
Assistant Attorney General, September 28, 2000).
For this reason, and others, the Justice Department at the time
opposed an amendment proposed by Senators Kyl and Feinstein to S. 2507,
the "Intelligence Authorization Act for FY 2001 that would have
allowed the sharing of foreign intelligence and counterintelligence
information collected from wiretaps with the intelligence community. I
deferred to the Justice Department on this issue and sought changes in
the proposed amendment to address the Department's concern that this
provision was not only unnecessary but also "could have significant
implications for prosecutions and the discovery process in
litigation", "raises significant issues regarding the sharing with
intelligence agencies of information collected about United States
persons" and jeopardized "the need to protect equities relating to
ongoing criminal investigations." In the end, the amendment was
revised to address the Justice Department's concerns and passed the
Senate as a free-standing bill, S. 3205, the Counterterrorism Act of
2000. The House took no action on this legislation.
Disclosure of wiretap information. The Administration initially
proposed adding a sweeping provision to the wiretap statute that
broadened the definition of an "investigative or law enforcement
officer" who may receive disclosures of information obtained through
wiretaps to include federal law enforcement, intelligence, national
security, national defense, protective and immigration personnel and
the President and Vice President. This proposal troubled me because
information intercepted by a wiretap has enormous potential to infringe
upon the privacy rights of innocent people, including people who are
not even suspected of a crime and merely happen to speak on the
telephone with the targets of an investigation. For this reason, the
authority to disclose information obtained through a wiretap has always
been carefully circumscribed in law.
While I recognize that appropriate officials in the executive branch
of government should have access to wiretap information that is
important to combating terrorism or protecting the national security, I
proposed allowing such disclosures where specifically authorized by a
court order. Further, with respect to information relating to
terrorism, I proposed allowing the disclosure without a court order as
long as the judge who authorized the wiretap was notified as soon as
practicable after the fact. This would have provided a check against
abuses of the disclosure authority by providing for review by a neutral
judicial official. At the same time, there was a little likelihood that
a judge would deny any requests for disclosure in cases where it was
warranted.
On Sunday, September 30, the Administration agreed to my proposal,
but within two days, it backed away from its agreement. I remain
concerned that the resulting provision will allow the unprecedented,
widespread disclosure of this highly sensitive information without any
notification to or review by the court that authorizes and supervises
the wiretap. This is clearly an area where our Committee will have to
exercise close oversight to
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make sure that the newly-minted disclosure authority is not being
abused.
The Administration offered three reasons for reneging on the original
deal. First, they claimed that the involvement of the court would
inhibit Federal investigators and attorneys from disclosing information
needed by intelligence and national security officials. Second, they
said the courts might not have adequate security and therefore should
not be told that information was disclosed for intelligence or national
security purposes. And third, they said the President's constitutional
powers under Article II give him authority to get whatever foreign
intelligence he needs to exercise his national security
responsibilities.
I believe these concerns are unfounded. Federal investigators and
attorneys will recognize the need to disclose information relevant to
terrorism investigations. Courts can be trusted to keep secrets and
recognize the needs of the President.
Current law requires that such information be used only for law
enforcement purpose. This provides an assurance that highly intrusive
invasions of privacy are confined to the purpose for which they have
been approved by a court, based on probable cause, as required by the
Fourth Amendment. Current law calls for minimization procedures to
ensure that the surveillance does not gather information about private
and personal conduct and conversations that are not relevant to the
criminal investigation.
When the Administration reneged on the agreement regarding court
supervision, we turned to other safeguards and were more successful in
changing other questionable features of the Administration's bill. The
Administration accepted my proposal to strike the term "national
security" from the description of wiretap information that may be
shared throughout the executive branch and replace it with "foreign
intelligence" information. This change is important in clarifying what
information may be disclosed because the term "foreign intelligence"
is specifically defined by statute whereas "national security" is
not.
Moreoever, the rubric of "national security" has been used to
justify some particularly unsavory activities by the government in the
past. We must have at least some assurance that we are not embarked on
a course that will lead to a repetition of these abuses because the
statute will now more clearly define what type of information is
subject to disclosure. In addition, Federal officials who receive the
information may use it only as necessary to the conduct of their
official duties. Therefore, any disclosure or use outside the conduct
of their official duties remains subject to all limitations applicable
to their retention and dissemination of information of the type of
information received. This includes the Privacy Act, the criminal
penalties for unauthorized disclosure of electronic surveillance
information under chapter 119 of title 18, and the contempt penalties
for unauthorized disclosure of grand jury information. In addition, the
Attorney General must establish procedures for the handling of
information that identifies a United States person, such as the
restrictions on retention and dissemination of foreign intelligence and
counterintelligence information pertaining to United States persons
currently in effect under Executive Order 12333.
While these safeguards do not fully substitute for court supervision,
they can provide some assurance against misuse of the private,
personal, and business information about Americans, that is acquired in
the course of criminal investigations and that may flow more widely in
the intelligence, defense, and national security worlds.
Disclosure of grand jury information. The wiretap statute was not the
only provision in which the Administration sought broader authority to
disclose highly sensitive investigative information. It also proposed
broadening Rule 6(e) of the Federal Rules of Criminal Procedure to
allow the disclosure of information relating to terrorism and national
security obtained from grand jury proceedings to a broad range of
officials in the executive branch of government. As with wiretaps, few
would disagree that information learned in a criminal investigation
that is necessary to combating terrorism or protecting the national
security ought to be shared with the appropriate intelligence and
national security officials. The question is how best to regulate and
limit such disclosures so as not to compromise the important policies
of secrecy and confidentiality that have long applied to grand jury
proceedings.
I proposed that we require judicial review of requests to disclose
terrorism and foreign intelligence information to officials in the
executive branch beyond those already authorized to receive such
disclosures. Once again, the Administration agreed to my proposal on
Sunday, September 30, but reneged within two days. As a result, the
bill does not provide for any judicial supervision of the new
authorization for dissemination of grand jury information throughout
the executive branch. The bill does contain the safeguards that I have
discussed with respect to law enforcement wiretap information. However,
as with the new wiretap disclosure authority, I am troubled by this
issue and plan to exercise the close oversight of the Judiciary
Committee to make sure it is not being abused.
Foreign intelligence information sharing. The Administration also
sought a provision that would allow the sharing of foreign intelligence
information throughout the executive branch of the government
notwithstanding any current legal prohibition that may prevent or limit
its disclosure. I have resisted this proposal more strongly than
anything else that still remains in the bill. What concerns me is that
it is not clear what existing prohibitions this provision would affect
beyond the grand jury secrecy rule and the wiretap statute, which are
already covered by other provisions in the bill. Even the
Administration, which wrote this provision, has not been able to
provide a fully satisfactory explanation of its scope.
If there are specific laws that the Administration believes impede
the necessary sharing of information on terrorism and foreign
intelligence within the executive branch, we should address those
problems through legislation that is narrowly targeted to those
statutes. Tacking on a blunderbuss provision whose scope we do not
fully understand can only lead to consequences that we cannot foresee.
Further, I am concerned that such legislation, broadly authorizing the
secret sharing of intelligence information throughout the executive
branch, will fuel the unwarranted fears and dark conspiracy theories of
Americans who do not trust their government. This was another provision
of which the Administration reneged on its agreement with me; it agreed
to drop it on September 30, but resurrected it within two days,
insisting that it remain in the bill. I have been able to mitigate its
potential for abuse somewhat by adding the same safeguards that apply
to disclosure of law enforcement wiretap and grand jury information.
"Sneak and peek" search warrants. Another issue that has caused me
serious concern relates to the Administration's proposal for so-called
"sneak and peek" search warrants. The House Judiciary Committee
dropped this proposal entirely from its version of the legislation.
Normally, when law enforcement officers execute a search warrant, they
must leave a copy of the warrant and a receipt for all property seized
at the premises searched. Thus, even if the search occurs when the
owner of the premises is not present, the owner will receive notice
that the premises have been lawfully searched pursuant to a warrant
rather than, for example, burglarized.
Two circuit courts of appeal, the Second and the Ninth Circuits, have
recognized a limited exception to this requirement. When specifically
authorized by the issuing judge or magistrate, the officers may delay
providing notice of the search to avoid compromising an ongoing
investigation or for some other good reason. However, this authority
has been carefully circumscribed.
First, the Second and Ninth Circuit cases have dealt only with
situations where the officers search a premises without seizing any
tangible property. As the Second Circuit explained, such searches are
"less intrusive than a conventional search with physical seizure
because the latter deprives the owner not only of privacy but also of
the use of his property." United States v. Villegas, 899 F.2d 1324,
899 F.2d 1324, 1337 (2d Cir. 1990).
[[Page S10557]]
Second, the cases have required that the officers seeking the warrant
must show good reason for the delay. Finally, while the courts have
allowed notice of the search may be delayed, it must be provided within
a reasonable period thereafter, which should generally be no more than
seven days. The reasons for these careful limitations were spelled out
succinctly by Judge Sneed of the Ninth Circuit: "The mere thought of
strangers walking through and visually examining the center of our
privacy interest, our home, arouses our passion for freedom as does
nothing else. That passion, the true source of the Fourth Amendment,
demands that surreptitious entries be closely circumscribed." United
States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).
The Administration's original proposal would have ignored some of the
key limitations created by the caselaw for sneak and peek search
warrants. First, it would have broadly authorized officers not only to
conduct surreptitious searches, but also to secretly seize any type of
property without any additional showing of necessity. This type of
warrant, which has never been addressed by a published decision of a
federal appellate court, has been referred to in a law review article
written by an FBI agent as a "sneak and steal" warrant. See K. Corr,
"Sneaky But Lawful: The Use of Sneak and Peek Search Warrants," 43 U.
Kan. L. Rev. 1103, 1113 (1995). Second, the proposal would simply have
adopted the procedural requirements of 18 U.S.C. Sec. 2705 for
providing delayed notice of a wiretap. Among other things, this would
have extended the permissible period of delay to a maximum of 90 days,
instead of the presumptive seven-day period provided by the caselaw on
sneak and peek warrants.
I was able to make significant improvements in the Administration's
original proposal that will help to ensure that the government's
authority to obtain sneak and peek warrants is not abused. First, the
provision that is now in section 213 of the bill prohibits the
government from seizing any tangible property or any wire or electronic
communication or stored electronic information unless it makes a
showing of reasonable necessity for the seizure. Thus, in contrast to
the Administration's original proposal, the presumption is that the
warrant will authorize only a search unless the government can make a
specific showing of additional need for a seizure. Second, the
provision now requires that notice be given within a reasonable time of
the execution of the warrant rather than giving a blanket authorization
for up to a 90-day delay. What constitutes a reasonable time, of
course, will depend upon the circumstances of the particular case. But
I would expect courts to be guided by the teachings of the Second and
the Ninth Circuits that, in the ordinary case, a reasonable time is no
more than seven days.
FISA. Several changes in the Foreign Intelligence Surveillance Act
(FISA) are designed to clarify technical aspects of the statutory
framework and take account of experience in practical implementation.
These changes are not controversial, and they will facilitate the
collection of intelligence for counterterrorism and counterintelligence
purposes. Other changes are more significant and required careful
evaluation and revision of the Administration's proposals.
Duration of surveillance. The USA Act, in section 297, changes the
duration of electronic surveillance under FISA in cases of an agent of
a foreign power, other than a United States persons, who acts in the
United States as an officer or employee of a foreign power or as a
member of an international terrorist group. Current law limits court
orders in these cases to 90 days, the same duration as for United
States persons. Experience indicates, however, that after the initial
period has confirmed probable cause that the foreign national meets the
statutory standard, court orders are renewed repeatedly and the 90-day
renewal becomes an unnecessary procedural for investigators taxed with
far more pressing duties.
The Administration proposed that the period of electronic
surveillance be changed from 90 days to one year in these cases. This
proposal did not ensure adequate review after the initial stage to
ensure that the probable cause determination remained justified over
time. Therefore, the bill changes the initial period of the
surveillance 90 to 120 days and changes the period for extensions from
90 days to one year. The initial 120-day period provides for a review
of the results of the surveillance or search directed at an individual
before one-year extensions are requested. These changes do not affect
surveillance of a United States person.
The bill also changes the period for execution of an order for
physical search under FISA from 45 to 90 days. This change applies to
United States persons as well as foreign nationals. Experience since
physical search authority was added to FISA in 1994 indicates that 45
days is frequently not long enough to plan and carry out a covert
physical search. There is no change in the restrictions which provide
that United States persons may not be the targets of search or
surveillance under FISA unless a judge finds probable cause to believe
that they are agents of foreign powers who engage in specified
international terrorist, sabotage, or clandestine intelligence
activities that may involve a violation of the criminal statutes of the
United States.
FISA judges. The bill, in section 208, seeks to ensure that the
special court established under FISA has sufficient judges to handle
the workload. While changing the duration of orders and extensions will
reduce the number of cases in some categories, the bill retains the
court's role in pen register and trap and trace cases and expands the
court's responsibility for issuing orders for records and other
tangible items needed for counterintelligence and counter terrorism
investigations. Upon reviewing the court's requirements, the
Administration requested an increase in the number of federal district
judges designated for the court from seven to 11 of whom no less than 3
shall reside within 20 miles of the District of Columbia. The latter
provision ensures that more than one judge is available to handle cases
on short notice and reduces the need to invoke the alternative of
Attorney General approval under the emergency authorities in FISA.
Agent of a foreign power standard. Other changes in FISA and related
national security laws are more controversial. In several areas, the
bill reflects a serious effort to accommodate the requests for expanded
surveillance authority with the need for safeguards against misuse,
especially the gathering of intelligence about the lawful political or
commercial activities of Americans. One of the most difficult issues
was whether to eliminate the existing statutory "agent of a foreign
power" standards for surveillance and investigative techniques that
raise important privacy concerns, but not at the level that the supreme
Court has held to require a court order and a probable cause finding
under the Fourth Amendment. These include pen register and trap and
trace devices, access to business records and other tangible items held
by third parties, and access to records that have statutory privacy
protection. The latter include telephone, bank, and credit records.
The "agent of a foreign power" standard in existing law was
designed to ensure that the FBI and other intelligence agencies do not
use these surveillance and investigative methods to investigate the
lawful activities of Americans in the name of an undefined authority to
collect foreign intelligence or counterintelligence information. The
law has required a showing of reasonable suspicion, less than probable
cause, to believe that a United States person is an "agent of a
foreign power" engaged in international terrorism or clandestine
intelligence activities.
However, the "agent of a foreign power" standard is more stringent
than the standard under comparable criminal law enforcement procedures
which require only a showing of relevance to a criminal investigation.
The FBI's experience under existing laws since they were enacted at
various time over the past 15 years has been that, in practice, the
requirement to show reasonable suspicion that a person is an "agent of
a foreign power" has been almost as burdensome as the requirement to
show probable cause required by the Fourth Amendment for more intrusive
techniques. The FBI has made a clear case that a relevance standard is
appropriate for counterintelligence and counterterrorism
investigations, as well as for criminal investigations.
[[Page S10558]]
The challenge, then, was to define those investigations. The
alternative proposed by the Administration was to cover any
investigation to obtain foreign intelligence information. This was
extremely broad, because the definition includes any information with
respect to a foreign power that relates to, and if concerning a United
States person is necessary to, the national defense or the security of
the United States or the conduct of the foreign affairs of the United
States. This goes far beyond FBI counterintelligence and
counterterrorism requirements. Instead, the bill requires that use of
the surveillance technique or access to the records concerning a United
States person be relevant to an investigation to protect against
international terrorism or clandestine intelligence activities.
In addition, an investigation of a United States person may not be
based solely on activities protected by the First Amendment. This
framework applies to pen registers and trap and trace under section
215, access to records and other items under section 215, and the
national security authorities for access to telephone, bank, and credit
records under section 506. Lawful political dissent and protest by
American citizens against the government may not be the basis for FBI
counterintelligence and counterterrorism investigations under these
provisions.
A separate issue for pen registers and trap and trace under FISA is
whether the court should have the discretion to make the decision on
relevance. The Administration has insisted on a certification process.
I discussed this issue as it comes up in the criminal procedures for
pen registers and trap and trace under title 18, and my concerns apply
to the FISA procedures as well.
The purpose of FISA. The most controversial change in FISA requested
by the Administration was the proposal to allow surveillance and search
when "a purpose" is to obtain foreign intelligence information.
Current law requires that the secret procedures and different probable
cause standards under FISA be used only if a high-level executive
official certifies that "the purpose" is to obtain foreign
intelligence formation. The Administration's aim was to allow FISA
surveillance and search for law enforcement purposes, so long as there
was at least some element of a foreign intelligence purpose. This
proposal raised constitutional concerns, which were addressed in a
legal opinion provided by the Justice Department, which I insert in the
record at the end of my statement.
The Justice Department opinion did not defend the constitutionality
of the original proposal. Instead, it addressed a suggestion made by
Senator Feinstein to the Attorney General at the Judiciary Committee
hearing to change "the purpose" to "a significant purpose." No
matter what statutory change is made even the Department concedes that
the court's may impose a constitutional requirement of "primary
purpose" based on the appellate court decisions upholding FISA against
constitutional challenges over the past 20 years.
Section 218 of the bill adopts "significant purpose," and it will
be up to the courts to determine how far law enforcement agencies may
use FISA for criminal investigation and prosecution beyond the scope of
the statutory definition of "foreign intelligence information."
In addition, I proposed and the Administration agreed to an
additional provision in Section 505 that clarifies the boundaries for
consultation and coordination between officials who conduct FISA search
and surveillance and Federal law enforcement officials including
prosecutors. Such consultation and coordination is authorized for the
enforcement of laws that protect against international terrorism,
clandestine intelligence activities of foreign agents, and other grave
foreign threats to the nation. Protection against these foreign-based
threats by any lawful means is within the scope of the definition of
"foreign intelligence information," and the use of FISA to gather
evidence for the enforcement of these laws was contemplated in the
enactment of FISA. The Justice Department's opinion cites relevant
legislative history from the Senate Intelligence Committee's report in
1978, and there is comparable language in the House report.
Immigration. The Administration initially proposed that the Attorney
General be authorized to detain any alien indefinitely upon
certification of suspicion to links to terrorist activities or
organizations. Under close questioning by both Senator Kennedy and
Senator Specter at the Committee hearing on September 25, the Attorney
General said that his proposal was intended only to allow the
government to hold an alien suspected of terrorist activity while
deportation proceedings were ongoing. In response to a question by
Senator Specter, the Attorney General said: "Our intention is to be
able to detain individuals who are the subject of deportation
proceedings on other grounds, to detain them as if they were the
subject of deportation proceedings on terrorism." The Justice
Department, however, continued to insist on broader authority,
including the power to detain even if the alien was found not to be
deportable.
I remain concerned about the provision, in section 412, but I believe
that it has been improved from the original proposal offered by the
Administration. First, the Justice Department must now charge an alien
with an immigration or criminal violation within seven days of taking
custody, and the Attorney General's certification of an alien under
this section is subject to judicial review. Second, if an alien is
found not to be removable, he must be released from custody. Third, the
Attorney General can only delegate the power to certify an alien to the
Deputy Attorney General, ensuring greater accountability and preventing
the certification decision from being made by low-level officials.
Despite these improvements, I would have preferred that this provision
not be included, and I would urge the Attorney General and his
successors to employ great discretion in using this new power.
In addition, the Administration initially proposed a sweeping
definition of terrorist activity and new powers for the Secretary of
State to designate an organization as a terrorist organization for
purposes of immigration law. We were able to work with the
Administration to refine this definition to limit its application to
individuals who had innocent contacts with non-designated
organizations. We also limited the retroactive effect of these new
definitions. If an alien solicited funds or membership, or provided
material support for an organization that was not designated at that
time by the Secretary of State, the alien will have the opportunity to
show that he did not know and should have known that his acts would
further the organization's terrorist activity. This is substantially
better than the administration's proposal, which by its terms, would
have empowered the INS to deport someone who raised money for the
African National Congress in the 1980s.
Throughout our negotiations on these issues, Senator Kennedy provided
steadfast leadership. Although neither of us are pleased with the final
product, it is far better than it would have been without his active
involvement.
Trade Sanctions. I was disappointed that the Administration's initial
proposal authorizing the President to impose unilateral food and
medical sanctions would have undermined a law we passed last year with
overwhelming bipartisan support.
Under that law, the President already has full authority to impose
unilateral food and medicine sanctions during this crisis because of
two exceptions built into the law that apply to our current situation.
Nevertheless, the Administration sought to undo this law and obtain
virtually unlimited authority in the future to impose food and medicine
embargoes, without making any effort for a multi-lateral approach in
cooperation with other nations. Absent such a multi-lateral approach,
other nations would be free to step in immediately and take over
business from American firms and farmers that they are unilaterally
barred from pursuing.
Over 30 farm and export groups, including the American Farm Bureau
Federation, the Grocery Manufacturers of America, the National Farmers
Union, and the U.S. Dairy Export Council, wrote to me and explained
that the Administration proposal would "not achieve its intended
policy goal."
I worked with Senator Enzi, and other Senators, on substitute
language
[[Page S10559]]
to give the Administration the tools it needs in this crisis. This
substitute has been carefully crafted to avoid needlessly hurting
American farmers in the future, yet it will assure that the U.S. can
engage in effective multilateral sanctions.
This bipartisan agreement limits the authority in the bill to
existing laws and executive orders, which give the President full
authority regarding this conflict, and grants authority for the
President to restrict exports of agricultural products, medicine or
medical devices. I continue to agree with then-Senator Ashcroft who
argued in 1999 that unilateral U.S. food and medicine sanctions simply
do not work when he introduced the "Food and Medicine for the World
Act."
As recently as October 2000, then-Senator Ashcroft pointed out how
broad, unilateral embargoes of food or medicine are often
counterproductive. Many Republican and Democratic Senators made it
clear just last year that the U.S. should work with other countries on
food and medical sanctions so that the sanctions will be effective in
hurting our enemies, instead of just hurting the U.S. I am glad that
with Senator Enzi's help, we were able to make changes in the trade
sanctions provision to both protect our farmers and help the President
during this crisis.
Money Laundering. Title III of the USA Act consists of a bipartisan
bill that was reported out of the Banking Committee on October 4, 2001.
I commend the Chairman and Ranking Member of that Committee, Senators
Sarbanes and Gramm, for working together to produce a balanced and
effective package of measures to combat international money laundering
and the financing of terrorism.
I am pleased that the Chairman and Ranking Member of the Banking
Committee agreed to our inclusion in the managers' amendment of a small
change to a provision of title III, section 319, relating to forfeiture
of funds in United States interbank accounts. As reported by the
Banking Committee, this provision included language suggesting that in
a criminal case, the government may have authority to seek a pretrial
restraining order of substitute assets. In fact, as all but one of the
circuit courts to consider the issue have held, the government has no
such authority. The managers' amendment strikes the offending language
from section 319.
Another provision added as part of the Banking Committee title--
section 351--is far more troubling. Section 351 creates a new Bank
Secrecy Act offense involving the bulk smuggling of more than $10,000
in currency in any conveyance, article of luggage or merchandise or
container, either into or out of the United States. The obvious purpose
of this section is to circumvent the Supreme Court's decision in United
States v. Bajakajian, 118 S. Ct. 2029 (1998), which held that a
"punitive" forfeiture violates the Excessive Fines Clause of the
Eighth Amendment if it is grossly disproportional to the gravity of the
offense it is designed to punish.
In fact, the crime created in section 351--willfully evading a
currency reporting requirement by "concealing" and transporting more
than $10,000 across a U.S. border--is no different than the crime at
issue in Bajakajian--willfully evading a currency reporting requirement
by transporting more than $10,000 across a U.S. border. A forfeiture
that is "grossly disproportional" with respect to the latter will
inevitably be found "grossly disproportional" with respect to the
former. The new element of "concealment" does little or nothing to
bolster the government's claim to forfeiture of the unreported
currency, since this element is already implicit in the current crime
of evasion: It is hardly likely that a person who is in the process of
willfully evading the currency reporting requirement will be waiving
his currency around for all the world to see.
Conclusion. I have done my best under the circumstances and want to
thank especially Senator Kennedy for his leadership on the Immigration
parts of the bill. My efforts have not been completely successful and
there are a number of provisions on which the Administration has
insisted with which I disagree. Frankly, the agreement of September 30,
2001 would have led to a better balanced bill. I could not stop the
Administration from reneging on the agreement any more than I could
have sped the process to reconstitute this bill in the aftermath of
those breaches. In these times we need to work together to face the
challenges of international terrorism. I have sought to do so in good
faith.
Mr. President, I reserve the remainder of my time and yield the
floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Utah.
Mr. HATCH. Mr. President, I enjoyed the remarks of my distinguished
colleague from Vermont. I compliment him for the work he has done on
this bill and for the hard work, over the last 3 weeks, that he and his
staff have put into this bill, as well as other members of the
Judiciary Committee as a whole, and, of course, people on my side as
well.
Mr. President, I do not intend to take very long. I know our
colleagues are tired, and I know they would like to go home. I also
know that we have a distinguished colleague in the Chamber who has some
amendments on which we may have to vote.
Four weeks ago we were a relatively tranquil nation, but on September
11, in what amounted to a dastardly attack, an unprovoked attack of
war, the World Trade Center was destroyed, along with almost 6,000
people, or maybe more. Our Pentagon was struck by a volitionary act of
terrorism.
As a result of the acts of heroes, one of the planes was downed in
Pennsylvania, killing all aboard, including those heroes who made sure
that that plane did not strike either the Capitol or the White House. I
want to pay special tribute to those people who were so heroic as to
give up their own lives to protect the lives of so many others.
There have been so many acts of heroism and self-sacrifice--the
firefighters who gave their lives, the firefighters who worked day and
night, the volunteers who have gone in there, the mayor of New York
City, the Governor, and so many others who deserve mention.
This bill, hopefully, will help to at least rectify and redeem some
of the problems, problems that have existed ever since September 11.
We did not seek this war; it was thrust upon us. It was an unprovoked
attack by people who claim that they represent a religious point of
view when, in fact, what they represent is a complete distortion of the
religion of Islam.
Islamic people do not believe in murder, murdering innocent
civilians. The Koran does not teach that. They do not believe in
suicide. The Koran does not teach that.
This is not a war against Islam; this is a war against terrorism and
people who have so little regard for human life that they would do
something against innocent civilians that was unthinkable before
September 11.
Therefore, we live in a dangerous and difficult world today. It is a
different world. And we are going to have to wake up and do the things
we have to do to protect our citizenry and, of course, to protect the
rest of the world to the extent this great Nation can, with the help of
other nations, a number of which have become supportive of our efforts.
We are very grateful to them.
But a lot of people do not realize we have terror cells in this
country--that has been in the media even--and there are people in this
country who are dedicated to the overthrow of America. There are people
who are dedicated to terrorism right here within our Nation. And some
of these people who have participated in this matter may very well be
people who were rightfully in our Nation--or at least we thought were
rightfully in our Nation.
The responsibility of redeeming and rectifying this situation is the
responsibility of the Congress, the Justice Department, the FBI, the
INS, and the Border Patrol. It is our job to provide the tools, and for
them to first identify and then eradicate terrorist activity within our
borders. And our President has taken the extraordinary step of saying
we are going to go after terrorists worldwide and those who harbor
them.
I agree with the President. I think it is time to do it. It is time
to hit them where it hurts. It is time to let them know we are not
going to put up with this type of activity.
A few weeks ago, the Justice Department sent up its legislative
proposal. It
[[Page S10560]]
was a good legislative proposal. They had a lot of ideas in there that
literally we have been trying to get through for years. When we passed
the 1996 antiterrorism, effective death penalty act, a number of us
tried to get some of these provisions in at that time, but we were
unsuccessful for a variety of reasons, some very sincere.
The fact is, a lot of the provisions we have in the bill are not
brand new; a lot of them have been requested for years. And had they
been in play, who knows but we might have been able to interdict these
terrorists and have stopped what happened and have stopped the loss of
civil liberties for approximately 6,000 or more people.
In the past several weeks, after the Justice Department sent up its
bill, Senator Leahy and I, Justice Department officials, White House
officials, staff members from both of our staffs, and staff members
from other members of the committee have worked day and night to come
up with this particular bill.
I congratulate my partner and my colleague, Senator Leahy, for his
hard work on this bill, and his staffers' for the work they have done
on this bill, and, of course, my own staffers, and, of course, those
others I have named.
This has been a very difficult bill to put forward because there are
all kinds of cross-pressures, all kinds of ideas, all kinds of
different thoughts, all kinds of differing philosophies. We believe,
with all kinds of deliberation and work, we have been able to put
together a bill that really makes sense, that will give the Justice
Department the tools it needs to be able to work and stamp out
terrorist activity within our country. At least we want to give them
the very best tools we possibly can.
We have tried to accommodate the concerns of Senators on both sides
of the aisle. We have worked very hard to do so. We cannot accommodate
everybody's concerns. As Senator Leahy has said, this is not a perfect
bill. Nothing ever seems to be perfect around here. But this is as good
a bill as can be put together, in a bipartisan way, in this area in the
history of the Senate. I really feel good about it, that we have done
this type of a job.
As I say, a lot of these provisions have been requested by the
Justice Department and both Democrat and Republican White Houses for
years. We took into consideration civil liberties throughout our
discussions on this bill. I think we got it just right. We are
protective of civil liberties while at the same time giving the tools
to the law enforcement agencies to be able to do their jobs in this
country.
I might mention that this bill encourages information sharing, that
would be absolutely prohibited under current law, among various
agencies of Government, information sharing that should have been
allowed a long time ago, at least in my view.
It updates the laws with regard to electronic surveillance and brings
those laws into the digital age, and brings them into an effective way
so that we can, in a modernized way, protect our society, at least to
the extent we can, from these types of terrorist activities.
Of course, little things, such as pen registers, trap-and-trace
authority--we have been able to resolve these problems after years of
problems.
I would like to make a few comments regarding the process for this
legislation. Although we have considered this in a more expedited
manner than other legislation, my colleagues can be assured that this
bill has received thorough consideration. First, the fact is that the
bulk of these proposals have been requested by the Department of
Justice for years, and have languished in Congress for years because we
have been unable to muster the collective political will to enact them
into law.
No one can say whether these tools could have prevented the attacks
of September 11. But, as the Attorney General has said, it is certain
that without these tools, we did not stop the vicious acts of last
month. I say to my colleagues, Mr. President, that if these tools could
help us now to track down the perpetrators--if they will help us in our
continued pursuit of terrorist activities within our national borders
then we should not hesitate any further to pass these reforms into law.
As long as these reforms are consistent with our--Constitution and they
are--it is difficult to see why anyone would oppose their passage.
Furthermore, I would like to clearly dispel the myth that the reforms
in this legislation somehow abridge the Constitutional freedoms enjoyed
by law-abiding American citizens. Some press reports have portrayed
this issue as a choice between individual liberties on the one hand,
and on the other hand, enhanced powers for our law enforcement
institutions. This is a false dichotomy. We should all take comfort
that the reforms in this bill are primarily directed at allowing law
enforcement agents to work smarter and more efficiently--in no case do
they curtail the precious civil liberties protected by our
Constitution. I want to assure my colleagues that we worked very hard
over the past several weeks to ensure that this legislation upholds all
of the constitutional freedoms our citizens cherish. It does.
Mr. President, I will submit for the Record my extended remarks
describing this legislation, but I would like to take a minute to
explain briefly a few of the most important provisions of this critical
legislation.
First, the legislation encourages information-sharing between various
arms of the federal government. I believe most of our citizens would be
shocked to learn that, even if certain government agents had prior
knowledge of the September 11 attacks, under many circumstances they
would have been prohibited by law from sharing that information with
the appropriate intelligence or national security authorities.
This legislation makes sure that, in the future, such information
flows freely within the Federal government, so that it will be received
by those responsible for protecting against terrorist attacks.
By making these reforms, we are rejecting the outdated Cold War
paradigm that has prevented cooperation between our intelligence
community and our law enforcement agents. Current law does not
adequately allow for such cooperation, artificially hampering our
government's ability to identify and prevent acts of terrorism against
our citizens.
In this new war, terrorists are a hybrid between domestic criminals
and international agents. We must lower the barriers that discourage
our law enforcement and intelligence agencies from working together to
stop these terrorists. These hybrid criminals call for new, hybrid
tools.
Second, this bill updates the laws relating to electronic
surveillance. Electronic surveillance, conducted under the supervision
of a federal judge, is one of the most powerful tools at the disposal
of our law enforcement community. It is simply a disgrace that we have
not acted to modernize the laws currently on the books which govern
such surveillance, laws that were enacted before the fax machine came
into common usage, and well before the advent of cellular telephones,
e-mail, and instant messaging. The Department of Justice has asked us
for years to update these laws to reflect the new technologies, but
there has always been a call to go slow, to seek more information, to
order further studies.
This is no hypothetical problem. We now know that e-mail, cellular
telephones, and the Internet have been principal tools used by the
terrorists to coordinate their atrocious activities. We need to pursue
all solid investigatory leads that exist right now that our law
enforcement agents would be unable to pursue because they must continue
to work within these outdated laws. It is high time that we update our
laws so that our law enforcement agencies can deal with the world as it
is, rather than the world as it existed 20 years ago.
A good example of way we our handicapping our law enforcement
agencies relates to devices called "pen registers." Pen registers may
be employed by the FBI, after obtaining a court order, to determine
what telephone numbers are being dialed from a particular telephone.
These devices are essential investigatory tools, which allow law
enforcement agents to determine who is speaking to whom, within a
criminal conspiracy.
The Supreme Court has held, in Smith v. Maryland, that the
information obtained by pen register devices is not information that is
subject to any constitutional protection. Unlike the content of your
telephone conversation
[[Page S10561]]
once your call is connected, the numbers you dial into your telephone
are not private. Because you have no reasonable expectation that such
numbers will be kept private, they are not protected under the
Constitution. The Smith holding was cited with approval by the Supreme
Court just earlier this year.
The legislation under consideration today would make clear what the
Federal courts have already ruled--that Federal judges may grant pen
register authority to the FBI to cover, not just telephones, but other
more modern modes of communication such as e-mail or instant messaging.
Let me make clear that the bill does not allow law enforcement to
receive the content of the communication, but they can receive the
addressing information to identify the computer or computers a suspect
is using to further his criminal activity.
Importantly, reform of the pen register law does not allow--as has
sometimes been misreported in the press--for law enforcement agents to
view the content of any e-mail messages--not even the subject line of
e-mails. In addition, this legislation we are considering today makes
it explicit that content can not be collected through such pen register
orders.
This legislation also allows judges to enter pen register orders with
nationwide scope. Nationwide jurisdiction for pen register orders makes
common sense. It helps law enforcement agents efficiently identify
communications facilities throughout the country, which greatly
enhances the ability of law enforcement to identify quickly other
members of a criminal organization, such as a terrorist cell.
Moreover, this legislation provides our intelligence community with
the same authority to use pen register devices, under the auspices of
the Foreign Intelligence Surveillance Act, that our law enforcement
agents have when investigating criminal offenses. It simply makes sense
to provide law enforcement with the same tools to catch terrorists that
they already possess in connection with other criminal investigations,
such as drug crimes or illegal gambling.
In addition to the pen register statute, this legislation updates
other aspects of our wiretapping statutes. It is amazing that law
enforcement agents do not currently have authority to seek wiretapping
authority from a Federal judge when investigating a terrorist offense.
This legislation fixes that problem.
Moving on, I note that much has been made of the complex immigration
provisions of this bill. I know Senators Specter, Kohl and Kennedy had
questions about earlier provisions, particularly the detention
provision for suspected alien terrorists.
I want to assure my colleagues that we have worked hard to address
your concerns, and the concerns of the public. As with the other
immigration provisions of this bill, we have made painstaking efforts
to achieve this workable compromise.
Let me address some of the specific concerns. In response to the
concern that the INS might detain a suspected terrorist indefinitely,
the Senator Kennedy, Senator Kyl, and I worked out a compromise that
limits the provision. It provides that the alien must be charged with
an immigration or criminal violation within seven days after the
commencement of detention or be released. In addition, contrary to what
has been alleged, the certification itself is subject to judicial
review. The Attorney General's power to detain a suspected terrorist
under this bill is, then, not unfettered.
Moreover, Senator Leahy and I have also worked diligently to craft
necessary language that provides for the deportation of those aliens
who are representatives of organizations that endorse terrorist
activity, those who use a position of prominence to endorse terrorist
activity or persuade others to support terrorist activity, or those who
provide material support to terrorist organizations. If we are to fight
terrorism, we can not allow those who support terrorists to remain in
our country. Also, I should note that we have worked hard to provide
the State Department and the INS the tools they need to ensure that no
applicant for admission who is a terrorist is able to secure entry into
the United States through legal channels.
Finally, the bill gives law enforcement agencies powerful tools to
attack the financial infrastructure of terrorism giving our Government
the ability to choke off the financing that these dangerous terrorist
organizations need to survive. It criminalizes the practice of
harboring terrorists, and puts teeth in the laws against providing
material support to terrorists and terrorist organizations. It gives
the President expanded authority to freeze the assets of terrorists and
terrorist organizations, and provides for the eventual seizure of such
assets. These tools are vital to our ability to effectively wage the
war against terrorism, and ultimately to win it.
There have been few, if any, times in our nation's great history
where an event has brought home to so many of our citizens, so quickly,
and in such a graphic fashion, a sense of our vulnerability to
unexpected attack.
I believe we all took some comfort when President Bush promised us
that our law enforcement institutions would have the tools necessary to
protect us from the danger that we are only just beginning to perceive.
The Attorney General has told us what tools he needs. We have taken
the time to review the problems with our current laws, and to reflect
on their solutions. The time to act is now. Let us please move forward
expeditiously, and give those who are in the business of protecting us
the tools that they need to do the job.
Mr. President, I think most people understand this is an important
bill. All of us understand it needs to be done. All of us understand
that these are tools our law enforcement people deserve and need to
have. And, frankly, it is a bill that I think can make a real
difference with regard to the interdiction of future acts of terrorism
in our society.
Nobody can guarantee, when you have people willing to commit suicide
in the perpetration of these awful acts, at all times that we can
absolutely protect our Nation. But this bill will provide the tools
whereby we might be able--and in most cases should be able--to resolve
even those types of problems.
So with that, I am happy to yield the floor.
The PRESIDING OFFICER (Mr. Durbin). Who yields time?
The Senator from Maryland.
Mr. SARBANES. Mr. President, I yield myself 10 minutes.
The PRESIDING OFFICER. The Senator from Maryland is recognized for 10
minutes.
Mr. SARBANES. Mr. President, I rise in very strong support of S.
1510, the Uniting and Strengthening America Act of 2001, and in
particular, Title III of S. 1510, the International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001.
Title III was reported out of the Committee on Banking, Housing, and
Urban Affairs, which I am privileged to chair, a week ago today by a
unanimous vote of 21 to 0.
President Bush said on September 24: "We have launched a strike on
the financial foundation of the global terror network."
Title III of our comprehensive anti-terrorism package supplies the
armament for that strike. Osama bin Laden may have boasted that "al-
Qaeda [includes] modern, educated youth who are aware of the cracks
inside the western financial system, as they are aware of the lines in
their hands." With Title III, we are sealing up those cracks.
Title III contains, among other things, authority to take targeted
action against countries, institutions, transactions, or types of
accounts the Secretary of the Treasury finds to be of "primary money-
laundering concern." It also contains requirements for due diligence
standards directed at corresponding accounts opened at U.S. banks by
foreign offshore banks and banks in jurisdictions that have been found
to fall significantly below international anti-money laundering
standards.
It contains a bar on the maintenance of U.S. correspondent accounts
for offshore shell banks--those banks that have no physical presence or
employees anywhere, and that are not part of a regulated and recognized
banking company. There is also a requirement that all financial
institutions establish anti-money laundering programs.
Title III also contains several provisions that should enhance the
ability
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of the Government to share more specific information with banks, and
the ability of banks to share information with one another relating to
potential terrorist or money-laundering activities, and a large number
of important technical improvements in anti-money laundering statutes,
as well as, mandates to the Department of the Treasury to act or
formulate recommendations to improve our anti-money laundering
programs.
The problem of money laundering is not a new one. There have been
significant efforts for some time in Congress to cut the financial
lifelines on which criminal operations depend. Senator John Kerry's
exhaustive investigation nearly a decade ago into the collapse of a
shady institution called BCCI, which he found was established with
"the specific purpose of evading regulation or control by
governments," led him to introduce anti-money laundering legislation.
A bill similar to his was approved last year by the Banking Committee
of the House of Representatives on a 31 to 1 vote.
Recent investigations by Senator Carl Levin's Permanent Subcommittee
on Investigations produced two excellent reports on the ways criminals
use financial institutions to launder funds and how we can counter
these activities. Senator Levin's reports demonstrated dramatically how
correspondent banking facilities and private banking services impede
financial transparency and hide foreign client identity and activity,
thereby contributing to international money laundering.
Senator Charles Grassley has also advocated for stronger money
laundering legislation, and sponsored the Money Laundering and
Financial Crimes Strategy Act of 1998, which mandates the development
of an annual national money laundering strategy.
Two weeks ago we held our own hearings in the Banking Committee. We
heard from a number of expert witnesses and from Under Secretary of the
Treasury Gurule; Assistant Attorney General Chertoff; and Ambassador
Stuart Eizenstat, the former Deputy Secretary of the Treasury.
On October 4, the Banking Committee marked-up and reported out our
own bill. The committee print was built, in a sense, on the foundation
given to us by Senators Kerry, Levin, Grassley, and by others in this
institution.
Before describing the provisions of Title III in greater detail, I
want to thank all members of the Banking Committee for their
contributions to this legislation. As I indicated, it came out of the
committee on a vote of 21 to 0. The Ranking Member, Senator Gramm,
provided crucial support. He raised certain issues which were addressed
in the course of the mark-up involving, among other things, important
due process protections. Senators Stabenow and Johnson were
instrumental in producing a compromise to resolve a dispute over one of
the package's most important provisions. Senator Enzi contributed his
experience as an accountant in refining another critical provision.
Senator Schumer, who has been involved in past efforts to address
money laundering activities, played an important role, as did Senators
Allard, Bayh, Corzine, and Crapo, who offered amendments and
contributed important improvements to various parts of the subtitle.
I am deeply grateful to all of the members of the committee for their
strong, positive, and constructive contributions and for their
willingness to work day and night. It is my understanding that the
committee staff went three consecutive nights without any sleep in
order to prepare this legislation. This is carefully considered
legislation because it reflects and builds upon efforts which have been
made over a number of years.
Earlier today, our colleagues on the Financial Services Committee in
the House of Representatives marked-up a bill, many of the provisions
of which are identical or virtually identical to those contained in
Title III of the package now before us.
Public support across the country for anti-money laundering
legislation is extremely strong. Jim Hoagland put it plainly in the
Washington Post:
This crisis offers Washington an opportunity to force
American and international banks to clean up concealment and
laundering practices they now tolerate or encourage and which
terrorism can exploit.
Terrorist attacks require major investments of time, planning,
training, practice, and financial resources to pay the bills. Money
laundering is the transmission belt that gives terrorists the resources
to carry out their campaigns of carnage. We intend, with Title III of
this legislation, to end that transmission belt and its ability to
bring resources to the networks that enable terrorists to carry out
their campaigns of violence.
Title III addresses all aspects of our defenses against money
laundering. Those defenses generally fall into three parts. The first
is the Bank Secrecy Act, "BSA", passed in 1970. It requires financial
institutions to keep standardized transaction records and report large
currency transactions and suspicious transactions and mandates
reporting of the movement of more than $10,000 in currency into or out
of the country. The statute is called the "bank secrecy act," because
it bars bank secrecy in America, by preventing financial institutions
from maintaining opaque records, or discarding their records
altogether. Secrecy is the hiding place for crime, and Congress has
barred our institutions from allowing those hiding places. The
financial institutions covered by that act include banks, broker-
dealers, casinos, and non-bank transmitters of funds, currency
exchangers, and check cashers--all financial services businesses
through which our citizens--and criminals hiding as legitimate
citizens--can move funds into and through our economy. Unfortunately,
reporting regulations covering some of these institutions have not yet
been promulgated.
The second part of our money laundering defenses are the criminal
statutes first enacted in 1986 that make it a crime to launder money
and allow criminal and civil forfeiture of the proceeds of crime. The
third part is the statutory framework that allows information to be
communicated to and between law enforcement officials. Our goal must be
to assure--to the greatest extent consistent with reasonable privacy
protections--that the necessary information can be used by the right
persons in "real time" to cut off terrorism and crime.
Title III modernizes provisions in all three areas to meet today's
threats in a global economy. Its provisions are divided into five
subtitles, dealing, respectively, with "international counter-money
laundering measures"--sections 311-328--"Bank Secrecy Act
improvements"--sections 331-342--bulk cash smuggling--section 351 and
anti-corruption measures--sections 361-363.
There are 39 provisions in Title III. At this time, I want to
summarize some of the bill's most important provisions.
Section 311 gives the Secretary of the Treasury, in consultation with
other senior government officials, authority to impose one or more of
five new "special measures" against foreign jurisdictions, entities,
transactions or accounts that the Secretary, after consultation with
other senior federal officials, determines to pose a "primary money
laundering concern" to the United States. The special measures all
involve special recordkeeping and reporting measures--to eliminate the
curtains behind which launderers hide. In extreme cases the Secretary
is permitted to bar certain kinds of inter-bank accounts from
especially problematic jurisdictions. The statute specifies the
considerations the Secretary must take into account in using the new
authority and contains provisions to supplement the Administrative
Procedure Act to assure that any remedies--except certain short-term
measures--are subject to full comment from all affected persons.
This new provision gives the Secretary real authority to act to close
overseas loopholes through which U.S. financial institutions are
abused. At present the Secretary has no weapons except Treasury
Advisories--which don't impose specific requirements--or full economic
sanctions that suspend financial and trade relations with offending
targets. President Bush's invocation of the International Economic
Emergency Powers Act (IEEPA) several weeks ago was obviously
appropriate. But there are many other situations in which we will not
want to
[[Page S10563]]
block all transactions, but in which we will want to do more than
simply advise financial institutions about under-regulated foreign
financial institutions or holes in foreign counter-money laundering
efforts. Former Deputy Secretary Eizenstat testified before the
Committee that adding this tool to the Secretary's arsenal was
essential.
Section 312 focuses on another aspect of the fight against money
laundering, the financial institutions that are on the front lines
making the initial decisions about what foreign banks to allow inside
the United States. It requires U.S. financial institutions to exercise
appropriate due diligence when dealing with private banking accounts
and interbank correspondent relationships with foreign banks. With
respect to foreign banks, the section requires U.S. financial
institutions to apply appropriate due diligence to all correspondent
accounts with foreign banks, and enhanced due diligence for accounts
sought by offshore banks or banks in jurisdictions found to have
substandard money laundering controls or which the Secretary determines
to be of primary money laundering concern under the new authority given
him by section 311.
The section also specifies certain minimum standards for the enhanced
due diligence that U.S. financial institutions are required to apply to
accounts opened for two categories of foreign banks with high money
laundering risks--offshore banks and banks in jurisdictions with weak
anti-money laundering and banking controls. These minimum standards
were developed from, and are based upon, the factual record and
analysis contained in the Levin staff report on correspondent banking
and money laundering.
Section 312 is essential to Title III. It addresses, with appropriate
flexibility, mechanisms whose very importance for the conduct of
commercial banking makes them special targets of money launderers, as
illustrated in Senator Levin's extensive reports and hearings. A
related provision, in section 319, requires foreign banks that maintain
correspondent accounts in the United States to appoint agents for
service of process within the United States and authorizes the Attorney
General and the Secretary of the Treasury to issue a summons or
subpoena to any such foreign bank seeking records, wherever located,
relating to such a correspondent account. U.S. banks must sever
correspondent arrangements with foreign banks that do not either comply
with or contest any such summons or subpoena, and if the Attorney
General or the Secretary of the Treasury asks them to sever the
arrangements.
These provisions send a simple message to foreign banks doing
business through U.S. correspondent accounts: be prepared, if you want
to use our banking facilities, to operate in accordance with U.S. law.
Section 313 also builds on the factual record before the Banking
Committee to bar from the United States financial system pure "brass-
plate" shell banks created outside the U.S. that have no physical
presence anywhere and are not affiliated with recognized banking
institutions. These shell banks carry the highest money laundering
risks in the banking world because they are inherently unavailable for
effective oversight--there is no office where a bank regulator or law
enforcement official can go to observe bank operations, review
documents or freeze funds.
Section 327 permits the Secretary to deal with abuse of another
recognized commercial banking mechanism--concentration accounts that
are used to commingle related funds in one place temporarily pending
disbursement or the transfer of funds into individual client accounts.
Concentration accounts have been used to launder funds, and the bill
permits the Secretary to issue rules to bar the use of concentration
accounts to move client funds anonymously, without documentation
linking particular funds to their true owners.
Section 332 requires financial institutions to establish minimum
anti-money laundering programs that include appropriate internal
policies, management, employee training, and audit features. This is
not a "one size fits all" requirement; in fact its very generality
recognizes that different types of programs will be appropriate for
different types and sizes of institutions.
A number of improvements are made to the suspicious activity
reporting rules. First, technical changes strengthen the safe harbor
from civil liability for institutions that report suspicious activity
to the Treasury. The provisions not only add to the protection for
reporting institutions; they also address individual privacy concerns
by making it clear that government officers may not disclose suspicious
transaction reports information except in the conduct of their official
duties. The Act also requires the issuance of suspicious transaction
reporting rules applicable to brokers and dealers in securities within
270 days of the date of enactment.
Sections 341 and 342 of the Title deal with underground banking
systems such as the Hawala, which is suspected of being a channel used
to finance the al Qaeda network. Section 341 makes it clear that
underground money transmitters are subject to the same recordkeeping
rules--and the same penalties for violating those rules--as above-
ground, recognized, money transmitters. It also directs the Secretary
of the Treasury to report to Congress, within one year, on the need for
additional legislation or regulatory controls relating to underground
banking systems. Section 342 authorizes the Secretary of the Treasury
to instruct the United States Executive Director of each of the
international financial institutions to use such Director's "voice and
vote" to support loans and other use of resources to benefit nations
that the President determines to be contributing to efforts to combat
international terrorism, and to require the auditing of each
international financial institution to ensure that funds are not paid
to persons engaged in or supporting terrorism.
Section 351 creates a new Bank Secrecy Act offense involving the bulk
smuggling of more than $10,000 in currency in any conveyance, article
of luggage or merchandise or container, either into or out of the
United States, and related forfeiture provisions. This provision has
been sought for several years by both the Departments of Justice and
Treasury.
Other provisions of the bill address relevant provisions of the
Criminal Code. These provisions were worked out with the Judiciary
Committee and are included in Title III because of their close
relationship to the provisions of Title 31 added or modified by Title
III.
The most important is section 315, which expands the list of
specified unlawful activities under 18 U.S.C. 1956 and 1957 to include
foreign corruption offenses, certain U.S. export control violations,
offenses subject to U.S. extradition obligations under multilateral
treaties, and misuse of funds of international financial institutions.
Section 316 establishes procedures to protect the rights of persons
whose property may be subject to confiscation in the exercise of the
government's anti-terrorism authority.
Section 319 treats amounts deposited by foreign banks in interbank
accounts with U.S. banks as having been deposited in the United States
for purposes of the forfeiture rules, but grants the Attorney General
authority, in the interest of fairness and consistent with the United
States' national interest, to suspend a forfeiture proceeding based on
that presumption. This closes an important forfeiture loophole.
Section 321 allows the United States to exclude any alien that the
Attorney General knows or has reason to believe is or has engaged in or
abetted certain money laundering offenses.
A third important set of provisions modernize information sharing
rules to reflect the reality of the fight against money laundering and
terrorism.
Section 314 requires the Secretary of the Treasury to issue
regulations to encourage cooperation among financial institutions,
financial regulators and law enforcement officials and to permit the
sharing of information by law enforcement and regulatory authorities
with such institutions regarding persons reasonably suspected, based on
credible evidence, of engaging in terrorist acts or money laundering
activities. The section also allows banks to share information
involving possible money laundering or terrorist activity among
themselves--with notice to the Secretary of the Treasury.
Section 335 permits, but does not require, a bank to include
information,
[[Page S10564]]
in a response to a request for an employment reference by a second
bank, about the possible involvement of a former institution-affiliated
party in potentially unlawful activity, and creates a safe harbor from
civil liability for the bank that includes such information in response
to an employment reference request, except in the case of malicious
intent. Given its different focus, it is not my intention to similarly
limit a bank's safe harbor from civil liability for the filing of
suspicious activity reports under the Bank Secrecy Act.
Section 340 contains amendments to various provisions of the Bank
Secrecy Act, the Right to Financial Privacy Act, and the Fair Credit
Reporting Act, to permit information subject to those statutes to be
used in the conduct of United States intelligence or
counterintelligence activities to protect against international
terrorism.
The modernization of our money laundering laws represented by
Subtitle III is long overdue. It is not the work of one week or one
weekend, but represents years of careful study and a bipartisan effort
to produce a piece of prudent legislation. The care taken in producing
the legislation extends to several provisions calling for reporting on
the legislation's effect and a provision for a three-year review of the
legislation's effectiveness.
Title III responds, as I've indicated, to the statement of Assistant
Attorney General Chertoff, the head of the Department of Justice's
Criminal Division, at the Banking Committee's September 26 hearing that
"[w]e are fighting with outdated weapons in the money laundering arena
today." Without this legislation, the cracks in the system of which
bin Laden boasted will remain open. We should not, indeed we can not,
allow that to happen, any more than we can delay dealing with the
financial aspects of the terrorist threat.
Title III is a balanced effort to address a complex area of national
concern. I strongly urge my colleagues to follow the unanimous
recommendation of the Banking Committee and support this important
component of the anti-terrorism package.
I ask unanimous consent that a section-by-section summary of Title
III be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Title III--International Money Laundering Abatement and Anti-Terrorist
Financing Act of 2001--Section-by-Section Summary
Sec. 301. Short title and table of contents.
Sec. 302. Findings and purposes.
Sec. 303. Provides that the provisions added and amendments
made by Title III will terminate after September 30, 2004, if
the Congress enacts a joint resolution to that effect, and
that such joint resolution will be given expedited
consideration in each Houses of Congress.
subtitle A. International Counter-Money Laundering and Related Measures
Sec. 311. Gives the Secretary of the Treasury, in
consultation with other senior government officials,
authority (in the Secretary's discretion) to impose one or
more of five new "special measures" against foreign
jurisdictions, entities, transactions and accounts that the
Secretary, after consultation with other senior federal
officials, determines to pose a "primary money laundering
concern" to the United States. The special measures include:
(1) requiring additional recordkeeping or reporting for
particular transactions, (2) requiring the identification of
the foreign beneficial owners of certain accounts at a U.S.
financial institution, (3) requiring the identification of
customers of a foreign bank who use an interbank payable-
through account opened by that foreign bank at a U.S. bank,
(4) requiring the identification of customers of a foreign
bank who use an interbank correspondent account opened by
that foreign bank at a U.S. bank, and (5) after consultation
with the Secretary of State, the Attorney General, and the
Chairman of the Federal Reserve Board, restricting or
prohibiting the opening or maintaining of certain interbank
correspondent or payable-through accounts. Measures 1-4 may
not be imposed, other than by regulation, for a period in
excess of 120 days; measure 5 may only be imposed by
regulation. Also requires the Secretary of the Treasury, in
consultation with the appropriate Federal banking agencies,
to submit to Congress, within 180 days of the date of
enactment, recommendations for the most effective way to
require foreign nationals opening a U.S. bank account to
provide identification comparable to that required when U.S.
citizens open a bank account.
Sec. 312. Requires a U.S. financial institution that
maintains a correspondent account or private banking account
for a non-United States person to establish appropriate and,
if necessary, enhanced due diligence procedures to detect and
report instances of money laundering. Creates a minimum anti-
money laundering due diligence standards for U.S. financial
institutions that enter into correspondent banking
relationships with banks that operate under offshore banking
licenses or under banking licenses issued by countries that
(a) have been found noncooperative with international counter
money laundering principles, or (b) have been the subject of
special measures authorized by Sec. 311. Creates minimum
anti-money laundering due diligence standards for
maintenance of private banking accounts by U.S. financial
institutions.
Sec. 313. Bars depository institutions and broker-dealers
operating in the United States from establishing,
maintaining, administering, or managing correspondent
accounts for foreign shell banks, other than shell bank
vehicles affiliated with recognized and regulated depository
institutions.
Sec. 314. Requires the Secretary of the Treasury to issue
regulations to encourage cooperation among financial
institutions, financial regulators and law enforcement
officials and to permit the sharing of information by law
enforcement and regulatory authorities with such institutions
regarding persons reasonably suspected, based on credible
evidence, of engaging in terrorist acts or money laundering
activities. Allows (with notice to the Secretary of the
Treasury) the sharing of information among banks involving
possible terrorist or money laundering activity.
Sec. 315. Expands the list of specified unlawful activities
under 18 U.S.C. 1956 and 1957 to include foreign corruption
offenses, certain U.S. export control violations, and misuse
of funds of the IMF.
Sec. 316. Establishes procedures to protect the rights of
persons whose property may be subject to confiscation in the
exercise of the government's anti-terrorism authority.
Sec. 317. Gives United States courts "long-arm"
jurisdiction over foreign persons committing money laundering
offenses in the United States, over foreign banks opening
United States bank accounts, and over foreign persons seizing
assets ordered forfeited by a U.S. court.
Sec. 318. Expands the definition of financial institution
for purposes of 18 U.S.C. 1956 and 1957 to include banks
operating outside the United States.
Sec. 319. Treats amounts deposited by foreign banks in
interbank accounts with U.S. banks as having been deposited
in the United States for purposes of the forfeiture rules,
but grants the Attorney General authority, in the interest of
justice and consistent with the United States' national
interest, to suspend a forfeiture proceeding based on that
presumption. Requires U.S. financial institutions to reply to
a request for information from a U.S. regulator relating to
anti-money laundering compliance within 120 hours of receipt
of such a request. Requires foreign banks that maintain
correspondent accounts in the United States to appoint agents
for service of process within the United States and
authorizes the Attorney General and the Secretary of the
Treasury to issue a summons or subpoena to any such foreign
bank seeking records, wherever located, relating to such a
correspondent account. Requires U.S. banks to sever
correspondent arrangements with foreign banks that do not
either comply with or contest any such summons or subpoena.
Authorizes United States courts to order a convicted criminal
to return property located abroad and to order a civil
forfeiture defendant to return property located abroad
pending trial on the merits. Authorizes United States
prosecutors to use a court-appointed Federal receiver to find
a criminal defendant's assets, wherever located.
Sec. 320. Permits the United States to institute forfeiture
proceedings against the proceeds of foreign criminal offenses
found in the United States.
Sec. 321. Allows the United States to exclude any alien
that the Attorney General knows or has reason to believe is
or has engaged in or abetted certain money laundering
offenses.
Sec. 322. Extends the prohibition against the maintenance
of a forfeiture proceedings on behalf of a fugitive to
include a proceeding by a corporation whose majority
shareholder is a fugitive and a proceeding in which the
corporation's claim is instituted by a fugitive.
Sec. 323. Permits the government to seek a restraining
order to preserve the availability of property subject to a
foreign forfeiture or confiscation judgment.
Sec. 324. Increases from $100,000 to $1,000,000 the maximum
civil and criminal penalties for a violation of provisions
added to the Bank Secrecy Act by sections 311 and 312 of the
Act.
Sec. 325. Directs the Secretary of the Treasury, in
consultation with the Attorney General, the Federal banking
agencies, the SEC, the CFTC and other appropriate agencies to
evaluate operation of the provisions of Subtitle A of Title
III of the Act and recommend to Congress any relevant
legislative action, within 30 months of the date of
enactment.
Sec. 326. Directs the Secretary of the Treasury to report
annually to the Senate Banking Committee and House Financial
Services Committee on measures taken pursuant to Subtitle A
of Title III of the Act.
Sec. 327. Authorizes the Secretary of the Treasury to issue
regulations concerning the
[[Page S10565]]
maintenance of concentration accounts by U.S. depository
institutions to prevent an institution's customers from
anonymously directing funds into or through such accounts.
Sec. 328. Provides criminal penalties for officials who
violate their trust in connection with the administration of
Title III.
Subtitle B. Currency Transaction Reporting Amendments and Related
Improvements
Sec. 331. Clarifies the terms of the safe harbor from civil
liability for financial institutions filing suspicious
activity reports pursuant to 31 U.S.C. 5318(g).
Sec. 332. Requires financial institutions to establish
anti-money laundering programs and grants the Secretary of
the Treasury authority to set minimum standards for such
programs.
Sec. 333. Clarifies that penalties for violation of the
Bank Secrecy Act and its implementing regulations also apply
to violation of Geographic Targeting Orders issued under 31
U.S.C. 3526, and to certain recordkeeping requirements
relating to funds transfers. Otherwise clarifies and updates
certain provisions of 31 U.S.C. 5326 relating to Geographic
Targeting Orders.
Sec. 334. Adds "money laundering related to terrorist
funding" to the list of subjects to be dealt with in the
annual National Money Laundering Strategy prepared by the
Secretary of the Treasury pursuant to the "Money Laundering
and Financial Crimes Strategy Act of 1998."
Sec. 335. Permits (but does not require) a bank to include
information, in a response to a request for an employment
reference by a second bank, about the possible involvement of
a former institution-affiliated party in potentially unlawful
activity, and creates a safe harbor from civil liability for
the bank that includes such information in response to an
employment reference request, except in the case of malicious
intent.
Sec. 336. requires the Bank Secrecy Act Advisory Group to
include a privacy advocate among its membership and to
operate under certain of the "sunshine" provisions of the
Federal Advisory Committee Act.
Sec. 337. Directs the Secretary of the Treasury and the
Federal bank regulatory agencies to submit reports to
Congress, one year after the date of enactment, containing
recommendations on possible legislation to conform the
penalties imposed on depository institutions for violations
of the Bank Secrecy Act with penalties imposed on such
institutions under section 8 of the Federal Deposit Insurance
Act.
Sec. 338. Directs the Secretary of the Treasury, after
consultation with the Securities and Exchange Commission and
the Federal Reserve Board, to promulgate regulations, within
270 days of the date of enactment, requiring broker-dealers
to file suspicious activity reports. Also requires the
Secretary of the Treasury, the SEC, Federal Reserve Board,
and the CFTC to submit jointly to Congress, within one year
of the date of enactment, recommendations for effective
application of the provisions of 31 U.S.C. 5311-30 to both
registered and unregistered investment companies.
Sec. 339. Directs the Secretary of the Treasury to submit a
report to Congress, six months after the date of enactment,
on the role of the Internal Revenue Service in the
administration of the Bank Secrecy Act, with emphasis on
whether IRS Bank Secrecy Act information processing
responsibility (for reports filed by all financial
institutions) or Bank Secrecy Act audit and examination
responsibility (for certain non-bank financial institutions)
should be retained or transferred.
Sec. 340. Contains amendments to various provisions of the
Bank Secrecy Act, the Right to Financial Privacy Act, and the
Fair Credit Reporting Act, to permit information to be used
in the conduct of United States intelligence or
counterintelligence activities to protect against
international terrorism.
Sec. 341. Clarifies that the Bank Secrecy Act treats
certain underground banking systems as financial
institutions, and that the funds transfer recordkeeping rules
applicable to licensed money transmitters also apply to such
underground systems. Directs the Secretary of the Treasury to
report to Congress, within one year of the date of enactment,
on the need for additional legislation or regulatory controls
relating to underground banking systems.
Sec. 342. Authorizes the Secretary of the Treasury to
instruct the United States Executive Director of each of the
international financial institutions (for example, the IMF
and the World Bank) to use such Director's "voice and vote"
to support loans and other use of resources to benefit
nations that the President determines to be contributing to
United States efforts to combat international terrorism, and
to require the auditing of each international financial
institution to ensure that funds are not paid to persons
engaged in or supporting terrorism.
subtitle c. currency crimes
Sec. 351. Creates a new Bank Secrecy Act offense involving
the bulk smuggling of more than $10,000 in currency in any
conveyance, article of luggage or merchandise or container,
either into or out of the United States, and related
forfeiture provisions.
subtitle d. anti-corruption measures
Sec. 361. Expresses the sense of Congress that the United
States should take all steps necessary to identify the
proceeds of foreign government corruption that have been
deposited in United States financial institutions and return
such proceeds to the citizens of the country to whom such
assets belong.
Sec. 362. Expresses the sense of Congress that the United
States must continue actively and publicly to support the
objectives of the 29-country Financial Action Task Force
Against Money Laundering.
Sec. 363. Expresses the sense of Congress that the United
States, in its deliberations and negotiations with other
countries, should promote international efforts to identify
and prevent the transmittal of funds to and from terrorist
organizations.
subtitle e. miscellaneous
Sec. 371. Expands the SEC's emergency order authority.
Sec. 372. Creates uniform protection standards for Federal
Reserve facilities.
Mr. LEAHY. Mr. President, I thank the distinguished chairman of the
Banking Committee, the senior Senator from Maryland, Mr. Sarbanes. He
did unbelievable work in this committee to pass out a money-laundering
bill--a very complex and difficult subject. He did it unanimously, I
believe, in a committee that probably has as diverse a membership--that
is an understatement--as one might find. I compliment him and thank him
for his kind words.
I reserve the remainder of my time. I see the chairman of the Senate
Intelligence Committee here, who wishes to give his opening statement.
The PRESIDING OFFICER. The Senator from Nevada is recognized.
Mr. REID. Mr. President, I conferred with Senator Daschle a few
minutes ago. It is his desire--so there is no misunderstanding of the
Members--that a number of opening statements be given: The Senator from
Florida, the chairman of the Intelligence Committee, and we understand
Senator Stabenow wishes to speak, and there may be a couple of other
opening statements.
As soon as that is done, we are going to turn to Senator Feingold to
offer the first of his amendments. After that, there will be a vote on
the first Feingold amendment.
Mr. LEAHY. Mr. President, I yield 10 minutes to the senior Senator
from Florida.
The PRESIDING OFFICER. The Senator from Florida is recognized for 10
minutes.
Mr. GRAHAM. Mr. President, I wish to commend Senators Daschle and
Lott for their leadership in bringing this critical piece of
legislation to the Senate just 1 month after the horrific events of
September 11. Senators Leahy and Hatch also deserve credit for moving
quickly to shape the judiciary components of this bill and choreograph
other provisions, including those affecting the intelligence agencies.
My remarks will focus on title IX of this legislation, which is
entitled "Improved Intelligence," as well as the other provisions in
the bill that directly affect the mission of the agencies of the
intelligence community.
Title IX is derived from S. 1448, legislation which was developed
within the intelligence community, entitled "Intelligence to Prevent
Terrorism Act of 2001."
Since long before September 11, I have been working with members of
the committee, particularly Senators Feinstein and Kyl, on
comprehensive counterterrorism legislation. Most of the provisions of
our bill, with some changes requested by the administration, have now
become title IX of S. 1510.
The provisions in title IX, as well as other provisions in the bill,
are designed to accomplish a daunting but not impossible task. That
task is to change the cultures within the Federal law enforcement and
intelligence agencies--primarily the FBI and the CIA--so they work
seamlessly together for the good of the American people.
Both the FBI and the CIA are very good. They are the standards of the
world in their own missions. But those missions are very different. The
Federal Bureau of Investigation is goal oriented. A criminal case has a
beginning, a middle, and an end. In a case that has developed the
guilty party, the end is a conviction for the crime committed. The
information collected during a criminal case is very closely held. It
is held closely because its purpose is to result in the successful
prosecution of an event that occurred in the past--not to inform
thinking about what may happen now or in the future.
The Central Intelligence Agency, on the other hand, as well as its
other companions in the intelligence community, has a global approach,
literally
[[Page S10566]]
and figuratively. The CIA is restricted to activities outside the
United States of America. The CIA collects information on a worldwide
basis, and it processes that information, analyzes that information,
and it places it in the hands of its customers. Its customers are other
Federal agencies and senior policymakers, including the President of
the United States. The purpose of that information is to allow those
senior policymakers to make more informed decisions.
Given the threats we now face, the cultures growing out of these
different missions must be melded. We cannot fight terrorism by putting
yellow tape around a bomb site, calling it a crime scene, collecting
evidence, and proceeding to trial frequently years later. We must put
the evidence collected after such an event to work for us in real time
so we can predict and prevent the next attack. If there is a single
goal of the intelligence components of this antiterrorism bill, it is
to change the focus from responding to acts that have already occurred
to preventing the acts which threaten the lives of American citizens in
this country and abroad.
It is critical that all information lawfully available to the Federal
Government be used efficiently and effectively to fight terrorism. We
cannot continue to use critical information only in a criminal trial.
Any information collected must be available to intelligence officials
to inform their operational initiatives so as to prevent the next
attack.
Along these lines, several provisions of S. 1510 are designed to
change the way information is handled within the Federal Government.
For example, section 203 permits law enforcement to share information
collected in grand jury proceedings and from title III criminal
wiretaps with intelligence agencies. Current law, as it has been
interpreted, prevents that sharing, except in very limited
circumstances.
Section 905 then complements section 203 in that it requires law
enforcement officers, FBI agents, and the Justice Department
prosecutors to provide foreign intelligence derived in the course of a
criminal investigation, including grand juries, criminal wiretaps, FBI
interviews, and the like, to the Central Intelligence Agency and to
other intelligence agencies.
A "permissive" approach is not good enough under current
circumstances. Too many lives have been lost, too many lives are at
risk. Law enforcement sharing of information with the intelligence
agencies must be mandatory.
Section 908 further complements this legislation by providing the
training of law enforcement officers at the Federal, State, and local
agencies so they will be better equipped to recognize foreign
intelligence information when they see it, and to get it to the right
place on a timely basis.
Let me give a couple of hypothetical but eerily-close-to-reality
examples. It is likely that there are, tonight, grand juries meeting at
various places in the United States to deal with issues related to the
events of September 11. Witnesses may be providing information--
information about training camps in Afghanistan, ground warfare
techniques used by al-Qaida and the Taliban, the types and quantity of
weapons available. This type of information will be critical for the
military--critical for the military now, not 2 years from now when
these cases might go to trial.
Another example is in the area of wiretaps. Let me just take two
wiretaps. One has been issued under the Foreign Intelligence
Surveillance Act because there was a finding by a Federal judge that
there was credible evidence that the telephone was being used by an
agent of a foreign power.
In the course of listening to the wiretap, this conversation comes
across: I am planning to fly from a specifically designated site in
Central America to a city in Texas. I am going to take my flight a week
from Monday. My intention is, once I arrive over that city, to
distribute chemical or biological materials that will terrorize the
people of that city by creating havoc due to the illnesses that will be
provoked.
But how are you going to pay for this? You don't have the money to
buy a plane, chemicals, or get the expertise necessary to do that?
I am going to do that because I am going to rob a bank next Monday in
order to get the money that I need to pay for this operation. The bank
is going to be located at the corner of First and Main, and I am going
to do it 3 hours after the bank closes next Monday.
The person listening to that conversation with a foreign intelligence
wiretap is under a legal obligation to make known to the appropriate
law enforcement officials that there is about to be a bank robbery at a
specific location on a specific date and time in a certain Texas city.
Conversely, if that exact conversation had taken place under a
criminal wiretap under title 3, the person listening to that
conversation would be prohibited from telling the foreign intelligence
agencies that there was about to be a terrorist attack on a date
certain against a specific Texas city originating at a specific site in
Central America.
Try to convince the American people that makes sense. It clearly does
not in today's reality. This legislation is going to make the same
requirement of mandatory sharing when the information is gathered under
a criminal wiretap that involves foreign intelligence information, as
is the case today when information gathered under a Foreign
Intelligence Surveillance Act wiretap must be made available to
appropriate law enforcement officials.
Another provision of title 9 addresses the role of the Director of
Central Intelligence in the process of collecting foreign intelligence
under the Foreign Intelligence Surveillance Act. It recognizes the need
to target limited resources, including personnel and translators
against the highest priority targets.
I ask if I can have an additional 5 minutes.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. I have about 11 minutes left that has not been committed
which I thought I might use to answer some questions. I give the
Senator 2 of my 11 minutes.
Mr. GRAHAM. I appreciate the Senator's limitations.
Mr. LEAHY. We just had one Senator ask me for 30 minutes. I am
looking at my 11. How can I give him 30? But I will give you 2 of the
11.
Mr. GRAHAM. Mr. President, I thank the Senator from Vermont.
We have a provision that the Director of Central Intelligence, the
DCI, will set the overall strategic goals for the collection of foreign
intelligence so that we can use our limited resources as effectively as
possible.
In order to complement that, we also have a provision that will
establish a national virtual translation center as a means of
increasing our woefully limited linguistic capabilities to translate
the material which we are gathering.
We will also provide for additional capability with human
intelligence. We have become very reliant on technology--eavesdropping,
satellite imagery, to the exclusion of the use of human beings. If we
want to gain information about the bin Ladens of the world, we cannot
just take a picture of bin Laden.
Today it is increasingly difficult to eavesdrop on bin Laden. What we
need to do is get a human being who is able to get close enough to bin
Laden to learn his intentions and capabilities. This gets to the
difficult issue of what kind of assets, human beings, we hire to work
for us to gather such information?
We would all like to employ the purist of people, all choir boys to
do this type of work. Unfortunately, they are not the type of people
who are likely to be able to get close to the bin Ladens of the world.
Thus, we have a provision in this legislation in the nature of a sense
of Congress which we hope will send a strong message to the
intelligence community that we are encouraging them to overcome some
previous messages from Congress and to proceed to recruit the persons
who they find to be necessary to gain access to terrorists so that we
can have the best opportunity of protecting ourselves.
With the adoption of this legislation, we have not reached the end of
our task or responsibilities to protect the American people. We are
taking a substantial step in that direction.
To reiterate, another provision of title 9 addresses the role of the
Director of Central Intelligence in the process of collecting foreign
intelligence
[[Page S10567]]
under the Foreign Intelligence Surveillance Act. It recognizes the need
to target limited resources--e.g. translators--against the highest
priority targets.
In order to ensure that scarce resources are effectively used, the
DCI--in his role as head of the Intelligence community, not as CIA
Director--will set overall strategic goals for FISA collection.
He will work with the Attorney General to ensure that FISA
information is distributed to the intelligence operators and analysts
who need it government-wide.
Of course, the operational targeting and collection using wiretaps
will be conducted by the FBI, as it has in the past; the DCI will
perform no role in those decisions.
One of the scarce resources that has plagued the Intelligence
Community, as well as law enforcement, is translation capability.
Section 907 of this bill requires the FBI and CIA to work together to
create a "National Virtual Translation Center."
Such a center would seek to remedy the chronic problem of developing
critical language abilities, and matching those resources to
intelligence collected by the wide range of techniques available.
It is not enough to be able to listen to the conversations of
terrorists and their supporters.
Those conversations must be translated, often from difficult
languages such as Urdu, and analyzed, all in a timely fashion.
Our intelligence services collect vast amounts of data every day. It
is possible that we may find that a critical clue to the September 11
attacks may have been available, but untranslated, days, weeks, or even
months before the hijackings.
We must address this problem before another specific threat is
overlooked.
Finally, I would like to mention a problem that has received a great
deal of attention in recent weeks. There has been criticism of the
intelligence agencies for placing too great a reliance on technical
intelligence collection--laws dropping, satelite photograph--in recent
years at the expense of human sources, or spies.
A corollary of this criticism is that CIA officers are to risk-averse
and that they do not aggressively recruit sources overseas that may
have access to terrorist groups because the sources may have engaged in
human rights violations or violent crimes.
As to the first problem, the Intelligence authorization bill for
fiscal year 2002, which may come to the floor next week, provides
greater resources for human source recruitment--and it is part of a 5-
year plan to beef up this method of collection.
With respect to the second problem, we in the Congress simply must
accept some of the responsibility for creating a risk-averse reaction
at CIA, if needed there is one.
The internal CIA regulations addressing the so-called "dirty asset"
problem grew out of the criticisms by Congress in the mid-1990s about
the recruitment of sources in Guatemala with sordid pasts.
We address this issue in S. 1510, section 903, by sending a strong
message to CIA Headquarters and CIA officers overseas that recruitment
of any person who has access to terrorists or terrorist groups should
be of the highest priority.
There is no place in times like these for timidity in seeking every
method available to learn the capabilities, plans, and intentions of
terrorists.
Congress needs to send a strong message that we value such efforts to
recruit sources on terrorism, even those with pasts we would not
applaud.
Section 903 sends that message.
I urge passage of S. 1510.
I again commend the Members of the Senate who have played such an
effective role.
I also thank the staff: Al Cumming, Bob Filippone, Vicki Divoll,
Steven Cash, Bill Duhnke, Paula DeSutter, Jim Hensler, and Jim Barnett.
They have been working for the past many months to bring us to the
point of this legislation being available for adoption by the Senate
tonight and for the safety of the American people.
The PRESIDING OFFICER. The time of the Senator has expired. The
Senator from Vermont.
Mr. LEAHY. I ask the distinguished Senator from Utah--I see the
distinguished senior Senator from Pennsylvania is here--perhaps after
the senior Senator from Utah, and then after the senior Senator from
Pennsylvania speaks, whether it might be possible to go to the Senator
from Wisconsin for the purpose of bringing up his amendments, and we
can then debate and vote on them. Will that be agreeable to everybody?
Mr. HATCH. It is agreeable.
Mr. LEAHY. I ask unanimous consent that after the Senator from Utah,
and the Senator from Pennsylvania, we go to the Senator from Wisconsin
for the purpose of bringing up his amendments.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Utah.
Mr. HATCH. Mr. President, in my opening remarks, I was remiss in not
mentioning the tremendous work of the distinguished chairman and vice
chairman of the Intelligence Committee. They have done a tremendous
amount of work on the intelligence aspect of this bill. As a member of
the Intelligence Committee, I express my high regard for the both of
them and the work they have done.
I also express my regard for my friend from Maryland, Senator
Sarbanes, who came to the Senate with me, for the work he has done on
the money-laundering section of this bill. He and Senator Gramm and the
Banking Committee have done yeoman's service on this, and I hope we are
able to have that as part of the final bill.
I would be remiss if I did not acknowledge the great work that has
been done--also, Senator Kyl and so many others. I felt I needed to say
that. I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. SPECTER. Mr. President, parliamentary inquiry, that I have 30
minutes under the unanimous consent request?
The PRESIDING OFFICER. The Senator is correct.
Mr. SPECTER. I yield myself 15 minutes.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I have sought recognition and asked for
this reservation of time to express my concerns about the record which
the Senate is creating so that whatever legislation we pass will pass
constitutional muster.
The Supreme Court of the United States has handed down a series of
decisions in the past decade which question the constitutionality and,
in fact, invalidate acts of Congress because there has been an
insufficient record compiled. So I make these statements and review the
record so far with a view to urging my colleagues to create a record in
this Chamber, in conference, or wherever that opportunity may present
itself.
In 1989, in the case of Sable v. FCC, the Supreme Court of the United
States struck down an act of Congress saying, "no Congressman or
Senator purported to present a considered judgment." I thought it was
a remarkable statement by the Supreme Court since Congressman Tom
Bliley in the House of Representatives had established a very
comprehensive record.
The Supreme Court in 1997, in a case captioned Reno v. ACLU, again
invalidated an act of Congress noting, "the lack of legislative
attention to the statute at issue in Sable suggests another parallel
with this case."
It was surprising to me that the Supreme Court of the United States
would invalidate an act of Congress on the ground that no Senator or
Congressman had purported to present a considered judgment, when that
is the view of the Supreme Court which is contrary to Congress.
Under our doctrine of separation of powers, it seemed to me an act of
Congress should stand unless there is some specific provision in the
Constitution which warrants invalidating it or for vagueness under the
due process clause of the fifth amendment.
The Supreme Court of the United States, in January of last year, did
it again in a case captioned Kimel v. Florida Board of Regents, a case
which involved the Age Discrimination in Employment Act. There the
Court said, "our examination of the act's legislative record confirms
that Congress' 1974 extension of the Act to the States
[[Page S10568]]
was an unwarranted response to a perhaps inconsequential problem."
Again, a remarkable holding that the Congress had an unwarranted
response and that it was an inconsequential problem, totally
contradicting the judgment of the Congress of the United States.
Then the Court went on in the Kimel case to say, "Congress had no
reason to believe that broad prophylactic legislation was necessary in
this field."
Those are only a few of the cases where the Supreme Court of the
United States has invalidated acts of Congress. There is no doubt there
is a need for legislation to expand the powers of law enforcement to
enable us to act against terrorists. My own experience in 8 years on
the Intelligence Committee, 2 years of which was as chairman, and my
work as chairman of the Judiciary Subcommittee on Terrorism have
convinced me without a doubt of the scourge of terrorism which we have
seen many times but never with the intensity which we observed on
September 11 of this year.
The act of Congress in expanding law enforcement has to be very
carefully calibrated to protect civil liberties and be in accordance
with the Constitution of the United States. Attorney General Ashcroft
met with a number of us on Wednesday, September 19, just 8 days after
the incident of September 11, and asked that we enact legislation by
the end of the week. My response at that time was I thought it could
not be done in that time frame, but I thought we could hold hearings in
the remainder of that week, perhaps on Thursday the 20th, or Friday the
21st, or Saturday the 22nd, to move ahead, understanding the import of
the administration's bill, and legislate to give them what they needed,
consistent with civil rights.
The Judiciary Committee then held a hearing on September 25 where the
Attorney General testified for about an hour and 20 minutes. At that
time, as that record will show, only a few Senators were able to ask
questions. In fact, the questioning ended after my turn came, and most
of the Judiciary Committee did not have a chance to raise questions.
On September 26, the following day, I wrote to the chairman of the
committee saying:
I write to urge that our Judiciary Committee proceed promptly with
the Attorney General's terrorism package with a view to mark up the
bill early next week so the full Senate can consider it and hopefully
act upon it by the end of the week. I am concerned that some further
act of terrorism may occur which could be attributed to our failure to
act promptly.
I then found out on October 3 that the Subcommittee on the
Constitution was having a hearing. By chance, I heard about it in the
corridors. Although we were having a hearing with Health and Human
Services Secretary Thompson on bioterrorism, I absented myself from the
bioterrorism hearing and went down the hall to the Judiciary
subcommittee hearing and participated there and expressed many of the
reservations and concerns I am commenting about today.
On that date, I again wrote to Senator Leahy. I ask unanimous consent
that the full text of my letter to him and the full text of his reply
to me of October 9 be printed in the Record at the conclusion of these
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. SPECTER. I quote only from the first sentence of Senator Leahy's
response to me:
I thank you for your letters of September 26 and October 3 and for
your participation in the September 25 hearing regarding antiterrorism
legislation. On October 3, you wrote that you were concerned about the
lack of hearings. I share that concern and have tried to notice prompt
hearings on a number of aspects of the legislative proposals at the
earliest possible time.
On this state of the record, which I hope can yet be perfected, I am
concerned about our meeting the standards of the Supreme Court of the
United States for a sufficient deliberative process.
When Attorney General Ashcroft appeared before the Judiciary
Committee on September 25, he said the only detention he wanted on
aliens was those who were subject to deportation proceedings. I then
pointed out, as the record will show, that the legislation submitted by
the Attorney General was much broader and did not limit detention
simply or exclusively to those who were subject to deportation
proceedings. So my comment was that it was necessary to analyze the
bill very carefully, not do it hurriedly, and give the Attorney General
of the Department of Justice what he needed, consistent with
constitutional rights.
The other issue which I had an opportunity to raise in the very brief
period of time I had--some 5 minutes--involved modifications to the
Foreign Intelligence Surveillance Act, where the issue was to change
the law from "the purpose," being the gathering of intelligence, to
"a purpose." Ultimately the legislation has been modified to read "a
significant purpose."
At that hearing, the Attorney General said he did not look to obtain
content from electronic surveillance unless probable cause was
established. But in the draft bill, which the Department of Justice had
submitted at that time, that was not what the bill provided. So that on
this state of the record, I think the Congress has some work to do,
tonight in conference or perhaps by other means, to see to it we have a
record which will withstand constitutional scrutiny.
On our Judiciary Committee, we have many Members who have expertise
in this field. This bill, as the Record will show, was negotiated by
the chairman and ranking member with the Department of Justice, with
the participation of the committee only to the extent of the hearing of
the full committee on September 25 and the subcommittee on October 3.
We have on our Judiciary Committee a number of Members who have had
experience as prosecuting attorneys. We have a number of lawyers who
are learned in law. We have other Members who have extensive experience
on the Judiciary Committee and a great deal of common sense which may
top some of us who have prosecutorial experience or extended experience
with probable cause and search warrants or surveillance of some sort or
another.
I express these concerns so whatever can be done by the Congress will
be done to meet the constitutional standards.
How much of the 15 minutes have I used?
The PRESIDING OFFICER. The Senator has 3 minutes 37 seconds
remaining.
Mr. SPECTER. I reserve the remainder of my time, and I yield the
floor.
Exhibit 1
U.S. Senate,
Washington, DC, September 26, 2001.
Hon. Patrick J. Leahy,
Chairman, Senate Judiciary Committee, Washington, DC.
Dear Pat: I write to urge that our Judiciary Committee
proceed promptly with the Attorney General's terrorism
package with the view to mark up the bill early next week so
the full Senate can consider it and hopefully act upon it by
the end of next week.
I am concerned that some further act of terrorism may occur
which could be attributed to our failure to act promptly.
Sincerely,
Arlen Specter.
____
U.S. Senate,
Washington, DC, October 3, 2001.
Hon. Patrick J. Leahy,
Chairman, Senate Judiciary Committee, Washington, DC.
Dear Senator Leahy: I am very much concerned about the
delay in acting on the anti-terrorism legislation and also
about the absence of hearings to establish a record for the
legislative package.
In recent decisions, the Supreme Court of the United States
has declared acts of Congress unconstitutional when there has
been an insufficient record or deliberative process to
justify the legislation.
On the anti-terrorism legislation, perhaps more than any
other, the Court engages in balancing the needs of law
enforcement with the civil rights issues so that it is
necessary to have the specification of the problems to
warrant broadening police power.
In my judgment, there is no substitute for the hearings,
perhaps in closed session, to deal with these issues.
As you know, I have been pressing for hearings. I am now
informed that Senator Hatch has convened a meeting of all
Republican senators to, in effect, tell us what is in a
proposed bill where Judiciary Committee members have had no
input.
We could still have meaningful hearings this week and get
this bill ready for prompt floor action.
Sincerely,
Arlen Specter.
[[Page S10569]]
____
U.S. Senate,
Committee on the Judiciary,
Washington, DC, October 9, 2001.
Hon. Arlen Specter,
711 Hart Senate Office Building, Washington, DC.
Dear Arlen, I thank you for your letters of September 26,
2001 and October 3, 2001 and for your participation in the
September 25, 2001 hearing regarding anti-terrorism
legislation. On October 3, 2001, you wrote that you were
concerned about the lack of hearings. I share that concern
and have tried to notice prompt hearings on a number of
aspects of the legislation proposals at the earliest possible
time.
As you know, the Attorney General consented to appear at
our September 25, 2001 hearing for only an hour and we had to
prevail upon him to stay a few extra minutes so that Senator
Feinstein and you could have a brief opportunity to ask the
Attorney General a single question. I invited him to rejoin
us the following Tuesday to complete the hearing and I
continue to extend such invitations, but he has not accepted
any of my follow up invitations. In addition, although
Members of the Committee submitted questions in writing to
the Attorney General following the September 25, 2001
hearing, they have yet to be answered. I agree with you that
these are important matters that justify a more thorough
record than we have been able to establish.
Last week, Senator Feingold chaired an important hearing on
civil liberties concerns before the Constitution
Subcommittee. This week Senators Schumer, Feinstein and
Durbin each are working to organize hearings on these matters
and Senators Kennedy and Biden are working on possible
hearings next week.
At the same time, we have continued to work nonstop to
prepare for Senate action on legislative proposals. We
suffered a setback last week when after weeks of intensive
negotiations the White House reneged on agreements reached on
Sunday, September 30, 2001, and we had to spend much of last
week renegotiating a legislative package. Finally, last
Thursday S. 1510 was introduced by the Majority Leader, the
Republican Leader, the Chairmen of the Judiciary, Banking and
Select Intelligence Committees and by Senators Hatch and
Shelby as Ranking Members. I am seeking to work closely with
the Senate leadership to be prepared to proceed to that
legislation at the earliest opportunity. The House is on a
similar track and may well consider its version of
legislation later this week, as well.
You and I both know that no legislation can guarantee
against future terrorist attacks. Nonetheless, I have
expedited work on anti-terrorism legislation, within which
the Administration has insisted on including general criminal
law measures not limited to terrorism, in order to allow the
Senate to act promptly in response to the unprecedented
attacks of September 11, 2001.
Sincerely,
Patrick Leahy,
Chairman.
Mr. LEAHY. I understand the distinguished Senator from Wisconsin is
willing to have the distinguished Senator from Michigan recognized for
5 minutes. I ask unanimous consent she be allowed to proceed preceding
the Senator from Wisconsin.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Michigan is recognized for 5 minutes.
Ms. STABENOW. I thank our distinguished chairman and my friend from
Wisconsin for allowing me to proceed before he presents his amendments.
I rise this evening to congratulate all involved in this effort. As
has been said on so many occasions, it is not perfect but we have come
together with a very positive, important step forward that we can all
celebrate this evening on a bipartisan basis.
As the Senator from Michigan, along with my colleague, Senator Levin,
we certainly celebrate the efforts along the northern border and the
important authorizations for dollars that allow us to continue to
protect and strengthen the efforts at the border. I thank my chairman
of the Banking Committee, Senator Sarbanes, for his efforts to put into
this important bill language dealing with the critical issue of money
laundering which essentially allows us to follow the money.
My colleague, Senator Levin, has been extremely involved in helping
to lead efforts to lay out the case for this. Senator Kerry and Senator
Grassley have been involved in important work. I thank them.
The antiterrorism bill before the Senate takes a significant step
forward in cutting the flow of terrorist money. As the President has
repeatedly said, stopping the flow of money is key to stopping
terrorism. That is what we are doing this evening. In particular, we
are establishing important new responsibilities, both for our
Government and for our financial institutions. The bill authorizes the
Treasury Secretary to take special measures to stop suspected money-
laundering activities. This anti-money-laundering language is
significant because it requires financial institutions to set up their
own due diligence to combat money laundering, particularly for private
and corresponding banking situations. This is a key provision of which
I was proud to be a part. I am pleased we were able to come up with
language that allows that.
Another important provision I was pleased to offer in the Banking
Committee, which is now part of the bill, was clear authority for the
Treasury Secretary to issue regulations to crack down on abuses related
to concentration accounts. These accounts are administrative accounts
used by financial institutions to combine funds from multiple
customers, various transactions. They do not require any identification
or accountability of who is involved or how much money we are talking
about.
The amendment I advocated urges the Treasury Secretary to issue
regulations ensuring these concentration accounts identify by client
name all of the client funds moving through the account to prevent
anonymous movement of the funds that might facilitate money laundering.
This is a classic case of why this is so important: Raul Salinas,
brother of former Mexican President Carlos Salinas, transferred almost
$100 million to Citibank administrative accounts in New York and London
without any documentation indicating the ownership of these funds. The
wire transfers sent the funds to Citibank and asked each transfer be
brought to the attention of a specific private banker. Later, the
private banker transferred the funds to private accounts controlled by
Mr. Salinas. The origin of this money--$100 million--was never
satisfactorily identified.
Allegations of drug money or other corporate sources persist to this
day. We know, through Senator Levin's exhaustive documentation at his
hearings, that other private banks use this practice as well. Although
financial regulators have cautioned against this practice over and over
again, they have not yet issued regulations to stop this loophole. That
is why the language in this bill is so important.
The use of these anonymous concentration accounts breaks the audit
trail associating specific funds with specific clients. Again, the
goal, as the President said, is to follow the money. We have to have
information if we are going to follow the money.
It should now be abundantly clear to Treasury that they have the
authority to stop this practice. I hope it is also abundantly clear it
is a serious problem. I am very concerned that the administration act
quickly on these anonymous accounts.
I congratulate everyone involved in this effort. I think the effort
regarding the anti-money-laundering language is a critical part of
making sure we have an effective antiterrorism bill. I thank my
colleagues for their work.
The PRESIDING OFFICER. The time of the Senator from Michigan has
expired. Who yields time?
The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I will give a brief statement before I
start my amendments, and I ask unanimous consent the time be equally
divided amongst the time I have on each of my four amendments.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, 1 month ago, we all were viciously
attacked. I am pleased and grateful that both the domestic and
international effort to respond to these attacks is fully underway. As
we recall, almost as soon as the attacks of September 11 ended, our
public discussion turned to two issues: how the United States will
respond to these terrorist acts and how we can protect ourselves
against future attacks.
Almost immediately, discussion of that second issue raised the
question of how our efforts to prevent terrorism will affect the civil
liberties enjoyed by all Americans as part of our constitutional
birthright.
I was encouraged by many of the reactions that our leaders and
Members of this body had, but especially encouraged by the words of our
colleague, Senator George Allen of Virginia who represents one of the
States struck by
[[Page S10570]]
terrorism. On the day after the attacks he said:
We must make sure that as we learn the facts, we do not
allow these attacks to succeed in tempting us in any way to
diminish what makes us a great nation. And what makes us a
great nation is that this is a country that understands that
people have God-given rights and liberties. And we cannot--in
our efforts to bring justice--diminish those liberties.
I agree with Senator Allen. I believe that one of the most important
duties of this Congress is in responding to the terrible events of
September 11, in order to protect our civil liberties, which, of
course, derive from our Constitution. That is why I am pleased that we
did not take the Attorney General's advice to enact an anti-terrorism
bill immediately without any deliberation or negotiation. I commend
Senator Leahy for all his efforts to improve this bill. It is certainly
a better and more comprehensive bill than the one the administration
originally proposed. I think even the administration recognizes that.
But I still believe we needed a more deliberative process on this
bill, and more careful consideration of the civil liberties implication
of it. I held a hearing in the Constitution Subcommittee at which many
serious and substantive concerns about the bill were raised by
commentators and experts from both sides of the political spectrum.
As the chairman of the subcommittee, I took many of those concerns
very seriously. That is why I would not consent on Tuesday night to
bringing up this bill and passing it without any amendments being
considered. I am pleased that we were able to reach agreement on a
process that will allow some of my concerns with this bill to be
debated and voted on through the amendment process.
That is not to say that no measures to strengthen law enforcement
should be enacted. They should be. We need to do it. We need to do some
very serious updating of a number of these laws. This bill does many
things to assist the Department of Justice in its mission to catch
those who helped the terrorists and prevent future attacks. We can and
we will give the FBI new and better tools. But we must also make sure
that the new tools don't become instruments of abuse.
There is no doubt that if we lived in a police state, it would be
easier to catch terrorists. If we lived in a country where the police
were allowed to search your home at any time for any reason; if we
lived in a country where the government was entitled to open your mail,
eavesdrop on your phone conversations, or intercept your email
communications; if we lived in a country where people could be held in
jail indefinitely based on what they write or think, or based on mere
suspicion that they were up to no good, the government would probably
discover and arrest more terrorists, or would be terrorists, just as it
would find more lawbreakers generally. But that would not be a country
in which we would want to live, and it would not be a country for which
we could, in good conscience, ask our young people to fight and die. In
short, that country would not be America.
I think it is important to remember that the Constitution was written
in 1789 by men who had recently won the Revolutionary War. They did not
live in comfortable and easy times of hypothetical enemies. They wrote
the Constitution and the Bill of Rights to protect individual liberties
in times of war as well as in times of peace.
There have been periods in our nation's history when civil liberties
have taken a back seat to what appeared at the time to be the
legitimate exigencies of war. Our national consciousness still bears
the stain and the scars of those events: The Alien and Sedition Acts,
the suspension of habeas corpus during the Civil War, the internment of
Japanese-Americans during World War II and the injustices perpetrated
against German-Americans and Italian-Americans, the blacklisting of
supposed communist sympathizers during the McCarthy era, and the
surveillance and harassment of antiwar protesters, including Dr. Martin
Luther King, Jr., during the Vietnam war. We must not allow this piece
of our past to become prologue.
Preserving our freedom is the reason we are now engaged in this new
war on terrorism. We will lose that war without a shot being fired if
we sacrifice the liberties of the American people in the belief that by
doing so we will stop the terrorists.
That is why this exercise of considering the administration's
proposed legislation and fine tuning it to minimize the infringement of
civil liberties is so necessary and so important. And this is a job
that only the Congress can do. We cannot simply rely on the Supreme
Court to protect us from laws that sacrifice our freedoms. We took an
oath to support and defend the Constitution of the United States. In
these difficult times that oath becomes all the more significant.
There are quite a number of things in this bill that I am concerned
about, but my amendments focus on a small discreet number of items.
At this point, I would like to turn to one of the amendments.
The PRESIDING OFFICER. The Senator is recognized.
Amendment No. 1899
Mr. FEINGOLD. I send an amendment to the desk and ask for its
immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Wisconsin [Mr. Feingold] proposes an
amendment numbered 1899.
Mr. FEINGOLD. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To make amendments to the provisions relating to interception
of computer trespasser communications)
On page 42, line 25, insert "or other" after
"contractual".
On page 43, line 2, strike "for" and insert
"permitting".
On page 43, line 8, insert "transmitted to, through, or
from the protected computer" after "computer trespasser".
On page 43, line 20, insert "does not last for more than
96 hours and" after "such interception".
Mr. FEINGOLD. I ask this time now be charged to the first amendment.
The PRESIDING OFFICER (Ms. Stabenow). The time will be charged.
Mr. FEINGOLD. Madam President, this amendment simply clarifies the
provision in the bill dealing with computer trespass, section 217, so
that it more accurately reflects the intent of the provision, as
frequently expressed by the administration. Section 217 is designed, we
have been told, to permit law enforcement to assist computer owners who
are subject to denial of service attacks or other episodes of hacking.
As currently drafted, however, this provision could allow universities,
libraries, and employers to permit government surveillance of people
who are permitted to use the computer facilities of those entities.
Such surveillance would take place without a judicial order or probable
cause to believe that a crime is being committed. Under the bill,
anyone accessing a computer "without authorization" is deemed to have
no privacy rights whatsoever, with no time limit, for as long as they
are accessing the computer at issue. Basically, the way I read this,
this provision completely eliminates fourth amendment protection for a
potentially very large set of electronic communications.
The danger that this amendment tries to address is that "accessing a
computer without authorization" could be interpreted to mean a minor
transgression of an office or library computer use policy. Let's take
an example. A working mom uses an office computer to purchase Christmas
presents on the Internet. Company policy prohibits personal use of
office computers. This person has potentially accessed a computer
without authorization and her company could give permission to law
enforcement to review all of the e-mails that she sends or receives at
work, monitor all the instant messages she sends, and record every
website she visits: No warrant, no probable cause, no fourth amendment
rights at all. My amendment makes clear that a computer trespasser is
not someone who is permitted to use a computer by the owner or operator
of that computer.
This amendment also limits the length of this unreviewed surveillance
to 96 hours, which is a longer time frame than that placed on other
emergency wiretap authorities. Again, if
[[Page S10571]]
this provision is aimed solely at responding to cyber-attacks, there is
no need to continue such surveillance beyond 96 hours--which is the
time we put in our amendment--because that time is sufficient to allow
the government to obtain a warrant to continue the surveillance. It is
not as if they cannot continue it, they simply have to get a warrant
after 4 days. Warrants based on probable cause are still the
constitutionally preferred method for conducting surveillance in
America. The need for immediate and emergency assistance during a
denial of service attack or hacking episode, which I certainly think is
a legitimate concern, cannot justify continued surveillance without
judicial supervision.
Finally, this amendment prevents law enforcement from abusing this
authority in investigations unrelated to the actual computer trespass.
The current provision potentially allows law enforcement to intercept
wire and electronic communications in many investigations where they
may not want, or be able, to secure a court order. If the government
suspects a person of committing a crime but does not have probable
cause to justify monitoring of the suspect's work computer, it could
pressure the owner or operator of the computer to find some
transgression in the suspect's computer use, allowing the government
carte blanche access to email and internet activity of the suspect. I
suspect that few small business owners will be anxious to stand up to
federal law enforcement requests for this information.
Now the administration was apparently willing to add language to deal
with employees using office computers, but it refused to recognize that
in our society many people use computers that they do not own, with
permission, but without a contractual relationship. People who don't
own their own home computers use computers at libraries. Students use
computers at school in computer labs or student centers. Without my
amendment, these innocent users could become subject to intrusive
government surveillance merely because they disobeyed a rule of the
owner of the computer concerning its use. I have been told that this is
not the administration's intent, but they would not fix this provision.
So I think it is fair to ask why. Why does the administration insist on
leaving open the possibility that this provision will be abused to
entirely eliminate the privacy of students' and library patrons'
computer communications? Is there a hidden agenda here? I sincerely
hope not, but I was very disappointed in the administration's
unwillingness to address this concern. I remain willing to negotiate on
this amendment, but if there is no further movement on it, I hope my
colleagues will recognize that this amendment will leave the publicly
expressed purpose of the computer trespass provision untouched and fix
a potentially disastrous case of overbreadth.
I reserve the remainder of my time.
I ask for the yeas and nays on the amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. FEINGOLD. Madam President, how much time do I have remaining on
my side?
The PRESIDING OFFICER. Eighteen and one-half minutes on this
amendment.
Mr. FEINGOLD. Madam President, I yield 5 minutes to the Senator from
Washington.
The PRESIDING OFFICER. The Senator from Washington is recognized.
Ms. CANTWELL. Madam President, I rise to support my colleague,
Senator Feingold, and his amendment to section 217. I think the Senator
has done a tremendous job in outlining the issues related to this bill
and the fact that haste can sometimes make waste. Haste in some
instances on very well crafted language to uphold our rights under the
Constitution can be infringed upon.
Section 217 is intended to allow computer system owners and operators
to fully engage Federal law enforcement where someone hacks or intrudes
into their system. As Senator Feingold mentioned, that could be a
business owner, or it could be a library system, or it could be a
university system.
Unfortunately, as drafted, there are few limits on what
communications the Government could intercept without showing probable
cause that a crime has been committed and without having the
opportunity for judicial review of those intercepts.
The provisions do not even limit the scope of the surveillance. Once
authorized, the Government could intercept all communications of a
person who is allegedly a trespasser. Again, let me be clear: Without
meeting the fourth amendment requirement to show probable cause.
Further, there is no time limit on the surveillance under the
provision of this legislation. For those who may be reviewing this
legislation for the first time, and understanding that as they go to
their workplace, or as they go to their educational institution, or as
they go to their library to enhance their education, they could be
under surveillance for a very long and indefinite period of time
without their knowledge.
Thus, once authorized by a computer system operator, the Government
could intercept all communications of a person forever without a proper
search warrant. Even a court order wiretap expires after 30 days.
This amendment would remedy some of the defects in this bill. It
would do that by requiring that the surveillance be only of
communications associated with the trespass and that the length of the
surveillance be limited to 96 hours, which, by the way, is twice as
long as the time limit placed on emergency wiretap authority. If the
problem continues, investigators could easily obtain additional warrant
time for the surveillance to continue.
This is a very important time in our country's history. It is a time
in which we want to act in unity and support the administration. It is
a time in which we want to act to give law enforcement the tools they
need to apprehend those who have been responsible and may be
responsible for future acts of terrorism. But we also must preserve the
right of citizens of this country when it comes to the fourth
amendment.
I encourage my colleagues to support the Feingold amendment. I yield
the floor.
The PRESIDING OFFICER. Who yields time?
Mr. FEINGOLD. Madam President, first, I want to say how important it
is to have on the committee the Senator with expertise in this area as
well as her own background. I appreciate very much her help on this
matter.
Madam President, how much time do I have remaining on my side?
The PRESIDING OFFICER. The Senator has 14\1/2\ minutes.
Mr. FEINGOLD. I am happy to yield 5 minutes to the Senator from
Minnesota.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Madam President, my colleague from Washington I think
speaks within a framework of expertise that she brings to this
particular amendment. I speak from the framework of a layperson who has
been trying to understand this bill's pluses and minuses.
I say to Senator Feingold and all colleagues, since I think there is
kind of a rush to table all of the Feingold amendments, that this
amendment is eminently reasonable. The Senator from Wisconsin is
saying: Let's put a time limit on this. That is good. Let's have some
judicial oversight. That is good as well.
There are international terrorists who have killed many Americans and
want to kill more Americans. There are a lot of provisions in this bill
which I think are right on the money, including northern border
protection which is relevant to the Chair, relevant to the Senator from
Washington, and certainly relevant to the people I represent. But I
also think there is no reason, in this rush to pass the bill, that we
can't make some changes. These are minor changes the Senator wants to
make. This just gives this piece of legislation more balance.
I will say this: There is a lot that is good in this bill and a lot
that is attractive to me as a Senator. When you add some of the
additional security provisions that help all the people we are asked to
represent in addition to the benefits--the financial help to all of the
rescue workers and all of the innocent people's families, people have
been murdered--there is much in this
[[Page S10572]]
bill that is commendable. The Senator from Wisconsin is just trying to
give it more balance.
I say to my colleagues that I hope you will support this amendment. I
want to say one other thing as well. I really believe what is good
about this bill is the provisions that focus on the people whom the
terrorists are basically trying to kill--Americans. What is not as good
is when the reach of the bill goes too far beyond that and is too
broad.
The sunset provision that passed in the House is so important, so
that we can continue to monitor this legislation as we move forward.
I think this amendment that the Senator from Wisconsin has submitted
is a step to give this piece of legislation a little more balance, and
it will be more vigilant of people's civil liberties. I think it is the
right step.
I thank the Senator for his amendment.
Mr. FEINGOLD. I thank the Senator from Minnesota for his help,
especially for making this point: All this amendment is about is making
sure that it is about the problem we face with the terrorism that is
threatening our country and our freedoms. That is all we are trying to
do--make sure it doesn't go broadly into people's rights, and into
their privacy, and into their own lives.
At this point, I am simply going to reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Madam President, let me talk a little bit about the
provision of today's legislation that has been referred to as the
"computer trespasser" exception.
This provision is a perfect example of how our laws dealing with
electronic surveillance have become outdated, and nonsensical as
applied to modern technology.
Imagine the following scenario. A terrorist decides to wreak havoc in
a major U.S. city by shutting down an electrical power grid. He uses a
computer to hack into the mainframe computer of a regional utility
company, which he plans to use to bring down the power grid. Before the
terrorist can accomplish his goal, the utility company recognizes that
an intruder is attempting to access their computer. The company quickly
calls the FBI for assistance in repelling the intruder.
Guess what? Under current law, even with the permission from the
utility company, the FBI is not permitted to monitor the terrorist's
activity on the utility company's computer, because current law
perversely grants the terrorist privacy rights with respect to his
communications on the computer he has invaded.
It is as if police could not investigate a burglary, even when
invited into the house by the victim of the burglary, because the
burglar had established privacy rights inside the home he has invaded.
It is anomalies such as this, in our current laws regarding
electronic surveillance, that today's legislation is designed to fix.
As it stands, the computer trespasser provision is defined in such a
way that the owner or operator of a computer network cannot arbitrarily
declare the user of the network at trespasser, and then invite law
enforcement in to monitor that user's communications.
The provision, as written, provides that a person is not considered a
computer trespasser if the person has an "existing contractual"
relationship for access to all or part of the computer network.
Senator Feingold's amendment would broadly amend the negotiated
exception, including within its scope anyone with a contractual or
"other" relationship to the owner or operator of a computer network.
What is meant by "other" relationship? Any hacker could make the
argument that they have a relationship with a computer operator.
Indeed, were I a defense counsel, I would argue that the mere fact that
the hacker has accessed the computer has created some form of
relationship. Clearly, the proposed amendment would broadly and
unwisely give immunity from our cyber-crime laws. This amendment
creates an exception to the criminal laws and puts law enforcement back
in the same position they currently are--that is, powerless to
investigate hacking incidents where the owner of the computer network
wants the assistance of law enforcement.
Madam President, we should not tie the hands of our law enforcement
to assist the owners of our computer networks. We should not help
hackers and cyberterrorists to get away.
If you are a victim of a burglary, shouldn't you have the right to
ask the police to investigate your house, to come to your house and
investigate?
Why should the owners of the computer not have the right to ask the
police to investigate a commuter-hacking incident, especially where it
appears it is terrorist oriented?
This act applies, as written, only to people without authorization to
be on the computer. Why should the law protect people who have invaded
a computer they have no right to be on?
Let me say one last comment about this. The proponents of this
amendment argue it will apply to students using a university computer.
That is true, but only if such students use that university computer to
hack into a place where they do not belong.
Either we have to get serious in this modern society, with these
modern computers, about terrorism or we have to ignore it. I, for one,
am not for ignoring it. I believe we need to have this language in
here--so does the Justice Department; so does the White House and the
White House Counsel's Office--in order to do what cannot be done today
to protect people in our society, and to protect our powerplants, our
dams, and so many important facilities in our society that are
vulnerable to cyber-terrorists. This law, the way it is currently
written, will help to do that.
That is all I care to say about it. But I believe we should vote down
the Senator's amendment. I know it is well intentioned. I have great
respect for the Senator from Wisconsin. He is one of the very diligent
members of our committee, and I appreciate him very much, but on this
amendment I believe we have to keep the language of the bill the way it
is written in order to give our law enforcement people the tools to be
able to stop terrorist hacking into computers.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. I thank my friend for his kind words.
Madam President, in response to the points he made, first, let me
respond that I accept the premise of this basic provision in terms of
updating the ability to get at computer hackers. That is an update. We
did not know what this was a few years ago. We did not know what risks
it posed. Nobody opposes that very important part of this bill.
But what the Senator claims is that the phrase "contractual
relationship" somehow makes sure that people are protected from being
subject to this who really should not be subject to this; but it does
it.
I can think of at least three categories of people who do not come
within the category of "contractual relationship." One is in the
context employment. It is nice if you have a contract, but a lot of
employees do not. They do not fall within the protection of a
contractual relationship.
The same goes for people who would go and use a computer at a
library. They do not have a contractual relationship to protect them in
this situation.
And finally, as the Senator conceded here, in his last example, that
certainly students, students at all our universities across the
country, are not protected by that language. And that is all we want to
do, to make it clear that this amendment is related to the problem of
computer hackers, not moms who might be buying Christmas presents on a
computer at work, even though they are not supposed to, or students who
maybe are gambling on a university computer. Of course they should not
do that, but should that subject them to extraordinary, unprecedented
intrusion by Government law enforcement authority? Of course not.
The Senator attempts to suggest that the provision in here having to
do with our desire to have the language say "contractual" or
"other" relationship would somehow allow a hacker to claim that he is
protected. The notion that a hacker would be considered as somebody who
has a relationship with the company under this amendment is an absurd
interpretation of the amendment's intent, so that clearly is not what
this amendment would do.
And finally, let me get back to the students, the example the Senator
[[Page S10573]]
from Utah mentioned. It is simply an unprecedented intrusion into
individual rights for a university to be able to allow--because of a
minor use that is not within university rules--that person to be
completely subject to this kind of intrusion.
Mr. DURBIN. Will the Senator yield for a question?
Mr. FEINGOLD. Yes.
Mr. DURBIN. I have followed this debate closely. I commend the
Senator for the hearing he had on the constitutional rights part of
this debate. But I want to make sure I understand exactly what his
amendment sets out to do.
Is my understanding correct that under the Feingold amendment there
could be surveillance of a computer for 96 hours before there is any
court approval, so that in the example given by the Senator from Utah,
the law enforcement authorities could, in fact, monitor the
communications of someone using this computer for 96 hours before ever
going to a court and asking for a warrant for that search?
Mr. FEINGOLD. That is correct. And that even troubles me for the
length of time that it is allowed--but it is far better than an
infinite position. Law Enforcement should be required to seek a warrant
as soon as possible, within reason, given the fact that what the
amendment tries to get at is emergency situations involving hackers. As
soon as possible, they should have to meet the standards that are
normally met.
But, yes, the amendment does permit that, in my view, rather
extraordinary period of time before the requirement would have to be
made.
Mr. DURBIN. And that period of time, I ask the Senator from
Wisconsin, is roughly twice the amount currently given under emergency
wiretap authority; is that correct?
Mr. FEINGOLD. That is correct.
Mr. DURBIN. One last question. I want to try to understand. I ask the
Senator do you not say, in your amendment, that a trespasser does not
include someone who is permitted to use a computer by the owner or
operator of the computer?
Mr. FEINGOLD. Correct.
Mr. DURBIN. And the difference, of course, is whether it is a
contractual relationship or just a permission to use; you are including
permission to use as well as contractual relationship?
Mr. FEINGOLD. That is correct.
Mr. DURBIN. The examples you have given are of people going to a
library, who may not have a contractual relationship with the library
but use the computer, who would be subjected to this warrantless search
of their computer communications for an indefinite period of time.
Mr. FEINGOLD. That is right, exactly. This is exactly the problem.
All we asked of the committee and of the administration yesterday was
to make it clear that they did not want to reach these people. That is
what we have been told. The purpose of this is to get at the threat of
computer hackers.
The Senator from Illinois has just illustrated, with those examples--
and he is, of course, correct--that this could be interpreted and could
be understood to include situations that not only have nothing to do
with the problem but represent a very serious departure from the
individual rights people should have in our country.
Mr. DURBIN. I thank the Senator from Wisconsin.
Mr. FEINGOLD. I thank the Senator from Illinois and reserve the
remainder of my time.
Mr. LEAHY. Madam President, I have been concerned about the scope of
the amendment carving an exception to the wiretap statute for so-called
"computer trespassers." This covers anyone who accesses a computer
"without authorization" and could allow government eavesdropping,
without a court order or other safeguards in the wiretap statute, or
Internet users who violate workplace computer use rules or online
service rules.
I was unable to reach agreement with the administration on limiting
the scope of this amendment, and the Feingold amendment makes further
refinements. It is unfortunate that the administration did not accept
this amendment.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Madam President, how much time remains?
The PRESIDING OFFICER. The Senator from Wisconsin has 4 minutes 47
seconds; the managers have 9 minutes 14 seconds.
Mr. HATCH. I am prepared to yield back whatever time we have, if it
is all right with the distinguished Senator from Vermont, with the
understanding that we are just trying to stop unauthorized hacking that
could be done by terrorists and others who are criminals that currently
cannot be stopped. I am prepared to yield back the time, if the
distinguished Senator from Vermont is.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Madam President, I ask the chairman of the committee,
after listening to the presentation by the Senator from Wisconsin, what
is the chairman's view of the incursion on law enforcement by the
limitation of 96 hours?
Mr. LEAHY. The incursion of law enforcement by the 96 hours?
Mr. SPECTER. The principal thrust of what the Senator from Wisconsin
seeks to do is to broaden the definition of a contractual relationship
to someone who may otherwise have permission. What I am trying to do is
to understand the administration's position, the law enforcement
position as to how law enforcement is adversely impacted by what the
Senator from Wisconsin seeks to do.
My concern, as expressed earlier, is that, especially in the face of
the challenge by the amendment, this is a complicated bill.
The reality is, it is hard to know all of it without the normal
hearing process. Now we have a specific challenge. What I would like to
know is, how does it inhibit law enforcement? What about the broader
definition gives problems to law enforcement? And then, what is the
difficulty in having 96 hours, which is 4 days, to see what is going on
to find some basis for seeking a warrant with probable cause?
Mr. LEAHY. Frankly, I don't have a problem with the Feingold
amendment as it is written. I do have a problem, however, with keeping
a bill together. The initial administration request had no limitations
whatsoever. It was so wide open we were concerned that someone who
might be using a computer at work to add up their accounts for the
month would be trapped by this because the company said you couldn't
use the computer to add up your checking account, for example, to use a
farfetched example, because they would be accessing the computer
without authorization and the Government could just step in and go
forward.
The administration moved partly our way. We actually ended up with a
compromise on this. I suspect what they would say to the Senator from
Pennsylvania is that these attacks last more than 96 hours and that
they would be unable to go after them if they were limited to the 96
hours.
We saw this recently 2 or 3 weeks ago where we had a continuous
roving attack on a number of Government computers. As I recall--I
didn't pay that much attention at the time--they were attacking them
one week and when we came back the following week, they were still
attacking them. So you had more than 96 hours.
Frankly, it is a case where we have reached a compromise. The
distinguished ranking member, speaking on behalf of the administration,
said this is not acceptable to them. Had this been part of the original
package, I wouldn't have found it acceptable.
Mr. HATCH. Will the Senator yield?
Mr. SPECTER. Yes.
Mr. HATCH. Basically, what the administration is after here is that
if a burglar is coming into your home and the police come to
investigate, they don't have to report to a judge within 96 hours. The
police have to act on these terrorist matters. If they find that a
terrorist has infiltrated a computer controlling an electrical grid
system, they want to get right on the ball and do something about it.
That is what they are trying to do with this provision.
There are no fourth amendment rights implicated because you have
people who have hacked into a computer that they don't have any right
to be in.
We want to give law enforcement the power to stop that. This
provision upsets that power and basically puts us back where we are
when we can't do
[[Page S10574]]
anything in a modern digital age to stop terrorists from stopping power
grids and damaging dams and a whole raft of other things.
Mr. SPECTER. Madam President, if the Senator from Utah will yield for
a question?
Mr. HATCH. Surely.
Mr. SPECTER. The Senator from Wisconsin makes the point that people
may have standing to use a computer even without a contractual
relationship. He uses the example of a student. Does the Senator from
Utah believe or does the administration represent that there are no
relationships other than contractual which give a person the legitimate
standing to use the computer?
Mr. HATCH. Under this provision, you do not have a right to hack into
another private computer, whether you are a university student or
anybody else. It only applies, the law we have written, to unauthorized
access. It does not apply to authorized access. But unauthorized
access, yes, it applies to that. If we don't put it in there, we will
be leaving a glaring error that currently exists in our laws that
prohibit us from solving some of these problems. It would be a terrible
thing to not correct at this particular time, knowing what we know
about how these terrorists are operating right now.
Mr. SPECTER. So is the Senator from Utah saying that if you have
permission, that is a form of a contractual relationship?
Mr. HATCH. I am saying that if you have permission, you are not
covered by this provision as written. In other words, you would not be
considered a hacker.
Mr. SPECTER. On its face you would seem to, unless there is a
contractual relationship?
Mr. HATCH. It comes down to authorized or unauthorized access. If it
is authorized, it is not covered under the computer trespasser
provision.
Mr. SPECTER. I thank the Senator.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, did the Senator yield back his
remaining time?
Mr. HATCH. Yes, we are prepared to yield.
Mr. LEAHY. We are prepared if the Senator from Wisconsin is.
Mr. FEINGOLD. I want to clarify a couple points, then I will be
prepared to yield the remaining time.
These were helpful exchanges on a couple of points. First of all, it
became very clear from Senator Specter's excellent questioning that, of
course, there is no guarantee, under the way this language is set up,
under the words "contractual relationship," that the provision would
not apply to students or to people who would use a computer at a
library. I can't understand why, if that is the intent of the
administration, the intent of the legislation, why they don't just
agree to language that would say so. That is all we asked for
yesterday. It could have resolved the problem. For some reason, they
won't agree to it.
Second, is this notion that a hacker could somehow get in under our
language. There is no way that a hacker has a relationship with the
computer owner that permits the use of the computer. The hacker is,
obviously, the antithesis, the opposite of an individual with a
relationship that permits use of the computer.
Finally, I am amazed at this notion that this amendment, even under
our version of it, would allow only 96 hours for surveillance when
under the example of the Senator from Utah, an ongoing hacker attack is
occurring.
Is it the Senator's contention that at the end of 96 hours, the FBI
would not have probable cause to get a warrant, when all it has been
dealing with for 4 days is this hacking of the computer? Of course, it
would. It would be the easiest thing in the world.
Section 217 is a very dramatic exception to the usual rule as derived
under our system, and expressed in the fourth amendment. Normally, you
have to come up with probable cause and a warrant. There are exceptions
because we have difficult problems sometimes. But 96 hours? At the end
of that time, with clear evidence of a hacking attempt, a warrant could
easily be obtained. Obviously, our amendment takes care of the need for
emergency authorization. In fact, I think it is too generous. I am
trying to put some kind of a time limit on this so we can have some
semblance of the normal rules that protect our citizens.
If the other side yields their time, I will yield my remaining time
as well.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. DASCHLE. Madam President, I have listened to this debate with
great interest, and I appreciate very much the arguments made by the
Senator from Wisconsin. As the Senator from Vermont and, I believe, the
Senator from Pennsylvania, have noted, there are circumstances where I
can easily see that we could be sympathetic to his amendment. He makes
an argument.
My difficulty tonight is not substantive as much as it is procedural.
There is no question, all 100 of us could go through this bill with a
fine-tooth comb and pinpoint those things which we could improve. There
is no doubt about that. I have looked at this bill, and there are a lot
of things, were I to write it alone, upon which I could improve. I know
the chairman of the committee believes that too.
I think we also have to recognize that this is the product of a lot
of work in concert with our Republican colleagues, in concert with the
administration, in concert with civil liberties groups, and in concert
with law enforcement. We have come up with what I would view as a
delicate but, yes, successful compromise.
Now, if we had opened the bill to amendment, I have no doubt there
are many colleagues who would offer amendments with which I would
vehemently disagree--in fact, so much so that I might want to
filibuster the bill. I would probably lose. I think there is a
realistic expectation that on a lot of these issues, my side would
lose. I think you could make the same case for the other side. So, we
made the best judgment we could, taking into account the very delicate
balance between civil liberties and law enforcement that we had to
achieve in bringing a bill of this complexity to the floor.
I have to say, I think our chair and ranking member and all of those
involved did a terrific job under the most difficult of circumstances.
What we did was to say: Let's take this product and work with it; let's
review it; if we have to make some changes, let's consider them; but
let's recognize that if we were to take this bill open-ended, there
would be no end to the amendments--that is the result that would most
likely occur in such a circumstance.
While I may be sympathetic to some amendments offered tonight, had it
been an open debate, there would have been a lot of amendments for
which I would not have been sympathetic.
Given those circumstances, my argument is not substantive, it is
procedural. We have a job to do. The clock is ticking. The work needs
to get done. We have to make our best judgment about what is possible,
and that process goes on.
I hope my colleagues will join me tonight in tabling this amendment
and tabling every other amendment that is offered, should he choose to
offer them tonight. Let's move on and finish this bill. Let's work with
the House and come up with the best product between the Houses. Then,
let's let law enforcement do its job, and let's use our power of
oversight to ensure that civil liberties are protected.
I make a motion to table.
Mr. LEAHY. Will the Senator withhold that motion to table for a
moment?
Mr. DASCHLE. Yes.
Mr. LEAHY. Madam President, I have served with over 250 Senators
here, and I have been proud to serve with all of them. I know of no
Senator who has a stronger commitment to our individual rights and
personal liberties than the senior Senator from South Dakota, our
majority leader. But I also know that were it not for his commitment
and efforts, we would not be here with a far better bill than the one
originally proposed by the administration. It has been because of his
willingness to back us up as we try to improve that bill, to remove
unconstitutional aspects of it, because of his willingness, we were
able to get here.
As the Senator from South Dakota, the dearest friend I have in this
body, has said, he could find parts he would do differently, and he
knows there are parts I would do differently--even on this one. I have
high regard for the
[[Page S10575]]
Senator from Wisconsin, and I would have loved to have had his
amendment. Actually, I would have done it probably differently than
that. But we had a whole lot of places where we won and some where we
lost.
I can tell you right now, if we start unraveling this bill, we are
going to lose all the parts we won and we will be back to a proposal
that was blatantly unconstitutional in many parts. So I join, with no
reluctance whatsoever, in the leader's motion.
Mr. DASCHLE. Madam President, I move to table.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, on this bill there was not a single
moment of markup or vote in the Judiciary Committee. I accepted that
because of the crisis our Nation faces. This is the first substantive
amendment in the Senate on this entire issue, one of the most important
civil liberties bills of our time, and the majority leader has asked
Senators to not vote on the merits of the issue. I understand the
difficult task he has, but I must object to the idea that not one
single amendment on this issue will be voted on the merits on the floor
of the Senate.
What have we come to when we don't have either committee or Senate
deliberation on amendments on an issue of this importance?
I yield the floor, and I yield back the remainder of my time.
The PRESIDING OFFICER. All time is yielded back.
Mr. DASCHLE. Madam President, I move to table the amendment.
Mr. LEAHY. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the motion.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms), the Senator from New Mexico (Mr. Domenici), the Senator from
South Carolina (Mr. Thurmond), and the Senator from Mississippi (Mr.
Lott) are necessary absent.
I further announce that if present and voting the Senator from North
Carolina (Mr. Helms) would vote "yea."
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 83, nays 13, as follows:
[Rollcall Vote No. 299 Leg.]
YEAS--83
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bond
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Conrad
Craig
Crapo
Daschle
DeWine
Dodd
Dorgan
Edwards
Ensign
Enzi
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Hatch
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Lieberman
Lincoln
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Stevens
Thomas
Thompson
Torricelli
Voinovich
Warner
Wyden
NAYS--13
Bingaman
Boxer
Cantwell
Collins
Corzine
Dayton
Durbin
Feingold
Harkin
Levin
Specter
Stabenow
Wellstone
NOT VOTING--4
Domenici
Helms
Lott
Thurmond
The motion was agreed to.
Mr. LEAHY. I move to reconsider the vote.
Mr. DASCHLE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. LEAHY. Madam President, so we understand where we are, there is
still a fair amount of time on the bill that the Senator from Utah and
I have and we have committed to Senators on both sides of the aisle who
need time. The remaining time is for the Senator from Wisconsin who has
three more amendments with the same time as he had in the last
amendment.
The Senator from Massachusetts has asked for 5 minutes. I understand
we have three more amendments that would take probably an hour or so
per amendment with the vote if the Senator from Wisconsin wishes to use
all his time, and he has a right to do that.
Once those are disposed of, the Senator from Utah and I are probably
prepared to yield back our time.
I yield 5 minutes to the Senator from Massachusetts.
Mr. KERRY. Madam President, it was depending entirely on what the
Senator from Wisconsin was doing. I reserve that now and see where we
are heading.
Mr. LEAHY. I yield the floor.
Mr. FEINGOLD. Madam President, it is my intention to offer two more
amendments, not the third amendment. I believe the time for each of
these amendments could be less than the full time allotted. We have a
fair amount of interest, but I didn't expect as much debate. I think
the last two could be expedited, and I am prepared to proceed, if that
is what my colleagues desire.
Amendment No. 1900
I send an amendment to the desk and ask for its immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Wisconsin [Mr. Feingold] proposes an
amendment numbered 1900.
Mr. FEINGOLD. I ask unanimous consent reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 21, line 14, insert "except that, in such
circumstances, the order shall direct that the surveillance
shall be conducted only when the target's presence at the
place where, or use of the facility at which, the electronic
surveillance is to be directed has been ascertained by the
person implementing the order and that the electronic
surveillance must be directed only at the communication of
the target," after "such other persons".
Mr. KERRY. For the purpose of planning, could the Senator give us a
sense of both amendments and how long he thinks he will talk.
Mr. FEINGOLD. I have about 12 minutes on this amendment subject to
any response to that and approximately the same on the second
amendment.
Mr. KERRY. I thank the Chair.
Mr. FEINGOLD. Madam President, this amendment has to do with what is
called roving wiretap, or multipoint surveillance authority. This is
one of the first things Attorney General Ashcroft asked for in the
first days after the September 11 attack and gave the example of a
terrorist using throwaway cell phones and the need for continued
roaming wiretap authority to allow the FBI to keep up with the ready
availability of this new technology.
First, let me say I have a lot of sympathy for the idea of updating
this area of the law. Obviously, it is needed in light of changes in
technology. It is vitally important for Members of the Senate to
understand that roving wiretap authority is already available for
criminal investigations under title III. It is in title 18, section
2518(11) and (12). The Attorney General doesn't need nor has he asked
for any new roving wiretap authority for criminal investigations. He
already has it.
What the bill does in Section 206 is provide similar authority in
investigations under the Foreign Intelligence Surveillance Act, known
as FISA. I am not opposed to expanding existing roving wiretap
authority to include FISA investigations, but I am very concerned that
Section 206 does not include a key safeguard that was part of the
roving wiretap authority when it was added to title III in 1986. That
protection minimizes the possible misuse of the authority, whether
intentional or unintentional, to eavesdrop on the conversations of
individuals who are not the subject of the investigation.
Let me read from the Senate Judiciary Committee's report on the
legislation that granted roving wiretap authority:
Proposed subsection 2518(12) of title 18 provides, with
respect to both "wire" and "oral" communications, that
where the federal government has been successful in obtaining
a relaxed specificity order, it cannot begin the interception
until the facilities or place from which the communication is
to be intercepted is ascertained by the person implementing
the interception order.
[[Page S10576]]
In other words, the actual interception could not begin until the
suspect begins or evidences an intention to begin a conversation.
It further reads:
It would be improper to use this expanded specificity order
to tap a series of telephones, intercept all conversations
over such phones and then minimize the conversations
collected as a result. This provision puts the burden on the
investigation agency to ascertain when the interception is to
take place.
It seems to me that Congress struck the right balance in that
provision. It recognized the needs of law enforcement, but also
recognized that rights of innocent people were implicated and designed
a safeguard to protect them.
When Congress passed FISA in 1978 it granted to the executive branch
the power to conduct surveillance in certain types of investigations
without meeting the rigorous probable cause standard under the Fourth
Amendment that is required for criminal investigations. Investigations
of agents of foreign powers were different. There is a lower threshold
for obtaining an order from the FISA court. But I don't think that
roving wiretap authority under FISA should be less protective of the
constitutional rights of innocent people who are not the subject of the
investigation than the authority that Congress intended to grant in a
standard criminal investigation.
My amendment takes the safeguard from Title III--from current law--
and includes it in the FISA roving wiretap authority provision. The
amendment simply provides that before conducting surveillance, the
person implementing the order must ascertain that the target of the
surveillance is actually in the house that has been bugged, or using
the phone that has been tapped.
Let me give a few examples of how this would work, which should also
show why it is necessary. Indeed, it may be constitutionally required.
If the government receives information that the target of the FISA
investigation is making phone calls from a particular bank of pay
phones in a train station, it may set up wiretaps at all the phones in
that bank, but may only listen in on a particular phone that the
subject is using. Before beginning the actual surveillance it must know
that the suspect is using a particular phone. Otherwise, on the basis
of a report that a terrorist has been using a particular bank of pay
phones, the private conversations of innumerable innocent Americans
with absolutely no connection to the investigation would be subject to
government scrutiny. That violates their Fourth Amendment rights.
Similarly, the Government should not be able to conduct surveillance on
all payphones in a neighborhood frequented by a suspected terrorist or
on a particular payphone all day long while innocent people use it.
Another example. Suppose a target of a FISA investigation has the
practice of using a neighbor's or relative's phone. Under my amendment,
the Government would not be able to listen in on all calls from that
phone, but only those taking place when the target is in that person's
home. Likewise, if the government believes that the target uses
computers in a library, it can only monitor the one that the terrorist
is actually using, not all the computers in that facility even when the
terrorist is not there.
I don't believe this amendment should affect the Government's
authorization to monitor a new cell phone obtained by the target. If
the phone is in the possession of the target or is registered to the
target, then the person implementing the surveillance has ascertained
that the facility is being used by the target. They could do it, and I
support that.
Now, it has been pointed out to me that in 1999 this safeguard was
removed from Title III with respect to wiretaps but left in place with
respect to bugs. The change was made in the conference report of an
intelligence authorization bill, without consideration by the Senate
Judiciary Committee.
I remind my colleagues again that my amendment was part of the roving
wiretap authority that Congress granted federal law enforcement in
criminal investigations in 1986. It contains a standard that as far as
we know served law enforcement adequately in conducting effective
surveillance on very sophisticated criminal organizations, including
the mafia and drug importation and distribution organizations. I submit
that if this standard is not sufficient, we would have seen an open
effort to change it, but we didn't. Even after the change made in 1999
without discussion or debate, the standard remains in effect for bugs
placed in homes or businesses. Without this protection, Section 206
threatens the rights of innocent people.
If law enforcement has been significantly impaired in conducting
effective surveillance in criminal investigations under the roving
wiretap provision in current law, we should be shown specific evidence
of its shortcomings. But if it has not been impaired, then there is no
reason not to include a similar safeguard in the roving wiretap
authority under FISA.
I urge my colleagues to take a close look at this amendment. It is
reasonable, it appropriately reflects current law, but it also allows
for updating to face the reality of new technology and all the
technologies that are implicated here. And it protects the
constitutional rights of people who are not the subjects of an
investigation.
Mr. WELLSTONE. Will the Senator yield for a question?
Mr. FEINGOLD. Yes.
Mr. WELLSTONE. Again, I am not a lawyer. I do not think I understood
exactly all the argument you were making.
Are you saying there has to be some standard of proof? That before
conducting surveillance, law enforcement has to make sure? In other
words, before you actually wiretap a phone or bug a house or a home,
the target of the surveillance has to be in that home you are bugging?
Mr. FEINGOLD. No. Let's say somebody goes to their neighbor's house
to use their phone. They do that once or twice or whatever it might be.
Our amendment makes sure this new provision doesn't open up that house
and everybody in it and every phone call they have in the house to
unlimited Government surveillance. It requires what has been normally
required under the law, that the law enforcement people ascertain that
the person is in the house at the time so it is credible that they
would be using that phone again.
Mr. WELLSTONE. In other words, other people who are in the house who
have nothing to do with the target of surveillance, their conversations
could be--
Mr. FEINGOLD. Their conversations could and undoubtedly would be,
without some protection.
Mr. WELLSTONE. And the same thing for the bugging?
Mr. FEINGOLD. Exactly.
Mr. WELLSTONE. So you are trying to minimize the misuse of authority.
It might be unintentional?
Mr. FEINGOLD. Absolutely. There are standards, as I indicated in my
statement. There have been rules about how law enforcement has to
ascertain, whether it be at a phone bank or in somebody else's home,
that there is a reasonable belief that the individual is actually
there. Without that kind of rule, what we are doing is not just
extending this authority to the reality that people have cell phones
and move around and use different phones of their own, but it takes us
into an area that, frankly, prior to September 11 we would never have
dreamed of allowing.
Mr. WELLSTONE. Madam President, if I could take 2 minutes --I ask the
Senator from Wisconsin, might I have 2 minutes?
Mr. FEINGOLD. Yes. Madam President, I ask for the yeas and nays on
the amendment.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be.
The yeas and nays were ordered.
Mr. FEINGOLD. I yield 2 minutes.
Mr. WELLSTONE. My colleague is saying we have to be very careful
about not eavesdropping on the conversations of innocent individuals.
Again, we all are painfully aware of September 11. I personally think
there is much in this bill that is good, that we need to do. But I
think all the Senator from Wisconsin is trying to do is achieve some
balance and make sure we do not go above and beyond going after
terrorists who are trying to kill Americans and instead end up
eavesdropping on innocent people in our country.
I think the vast majority of the people in the country, if they
understood what this amendment was about, would support this amendment.
I do not think passing this amendment does
[[Page S10577]]
any damage whatsoever to much of what is in this bill, which is so
important.
So, again, I hope Senators will support this amendment on the merits.
I think it is a very important amendment. I thank the Senator from
Wisconsin.
Mr. FEINGOLD. I thank the Senator from Minnesota very much for his
help, and I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time? The Senator from Utah.
Mr. HATCH. Madam President, under current law, law enforcement has
so-called-roving or multi-point surveillance authority for criminal
investigations under title III, but FISA does not have comparable
provisions for agents investigating foreign intelligence. Roving
interceptions are tied to a named person rather than to any particular
communications facility or place. Today's bill adds this vital
authority to FISA.
This authority is critical for tracking suspected spies and
terrorists who are experts in counter-surveillance methods such as
frequently changing locations and communications devices such as phones
and computer accounts.
It simply makes no sense that our wire-tapping statute recognizes
this problem, and provides roving wiretap authority for surveillance of
common criminals, but makes no provision for roving authority to
monitor terrorists under the FISA statute.
The proposed amendment would not succeed in its stated goal of
harmonizing the standard between title III wiretaps and FISA wiretaps.
The proposed amendment would put a requirement on the interception of
wire or electronic communications under a FISA warrant that does not
exist in the title III context--a requirement that the law enforcement
officer implementing the wiretapping order personally ascertain that
the target of the order is using a telephone or computer, before the
monitoring could begin.
This requirement is operationally unworkable. The way that roving
orders are implemented, requires that law enforcement officers have the
ability to spot check several different telephones in order to
determine which one is being used by the target of the order. The
language proposed in this amendment does not give law enforcement
officers the ability to do so. In fact, they would be worse off under
this proposal than they are under current law.
The goal of the roving wiretap provision is to give counter-terrorism
investigators as much authority to conduct wiretaps as their
counterparts have in conducting criminal investigations. This amendment
defeats that goal by putting new, significant obstacles in the path of
investigators attempting to investigate and prevent terrorist
activities.
Mr. LEAHY. Madam President, Senator Feingold provided invaluable
assistance to the committee during our consideration of this
legislation. He also held a hearing in his Constitution Subcommittee
last week on the critical civil liberties issues raised by the
Administration's anti-terrorism bill. I fully appreciate the depth of
his concern and his desire to improve this bill.
The Attorney General and I agreed in principal that the roving, or
multipoint, wiretap authority for criminal cases should be available
under FISA for foreign intelligence cases. The need for such authority
is especially acute to conduct surveillance of foreign spies trained in
the art of avoiding surveillance and detection.
Senator Feingold's amendment simply assures that when roving
surveillance is conducted, the Government makes efforts to ascertain
that the target is actually at the place or using the phone, being
tapped. This is required in the criminal context. It is unfortunate
that the Administration did not accept this amendment.
I hope all time could be yielded back on both sides.
Mr. FEINGOLD. It is my understanding the opponents have yielded all
time.
The PRESIDING OFFICER. The Senator is correct.
Mr. LEAHY. If the Senator is going to yield his.
Mr. FEINGOLD. I yield my time.
The PRESIDING OFFICER. The majority leader.
Mr. DASCHLE. Madam President, I will just use a minute of my leader
time to respond.
I have already made my argument on the first amendment. I, in the
interest of time, am not going to repeat it. As I said before, I am
sympathetic to many of these ideas, but I am much more sympathetic to
arriving at a product that will bring us to a point where we can pass
something into law. The record reflects the compromises that have been
put in place, the very delicate balance that we have achieved. It is
too late to open up the amendment process in a way that might destroy
that delicate balance. For that reason, I move to table this amendment.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The question is on agreeing to the motion. The clerk will call the
roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms), the Senator from South Carolina (Mr. Thurmond), and the Senator
from New Mexico (Mr. Domenici) are necessarily absent.
I further announce that if present and voting the Senator from North
Carolina (Mr. Helms) would vote "yea."
The result was announced--yeas 90, nays 7, as follows:
[Rollcall Vote No. 300 Leg.]
YEAS--90
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Dorgan
Durbin
Edwards
Ensign
Enzi
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Harkin
Hatch
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Stabenow
Stevens
Thomas
Torricelli
Voinovich
Warner
Wyden
NAYS--7
Cantwell
Corzine
Feingold
Levin
Specter
Thompson
Wellstone
NOT VOTING--3
Domenici
Helms
Thurmond
The motion was agreed to.
Mr. LEAHY. I move to reconsider the vote.
Mr. HATCH. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, I ask unanimous consent to have printed
in the Record a Statement of Administration Policy on the USA Act.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Administration Policy
(This statement has been coordinated by OMB with the concerned
agencies)
S. 1510--Uniting and Strengthening America (USA) Act of 2001
The Administration commends the Senate leadership and the
Chairman and Ranking Member of the Senate Judiciary Committee
on reaching agreement on S. 1510. This bill contains, in some
form, virtually all of the proposals made by the
Administration in the wake of the terrorist attacks
perpetrated against the United States on September 11th. The
Administration strongly supports passage of this bill.
The Administration's initial proposals, on which S. 1510 is
based, were designed to provide Federal law enforcement and
national security officials with the tools and resources
necessary to disrupt, weaken, and counter the infrastructure
of terrorist organizations, to prevent terrorist attacks, and
to punish and defeat terrorists and those who harbor them. S.
1510 includes the provisions proposed by the Administration
in three main areas: (1) information gathering and sharing;
(2) substantive criminal law and criminal procedure; and (3)
immigration procedures. The Administration strongly supports
passage of these provisions. The Administration also supports
valuable provisions, introduced by the Chairman of the
[[Page S10578]]
Senate Judiciary Committee, aimed at improving the Nation's
border protection.
Information Gathering and Sharing
Existing laws fail to provide national security authorities
and law enforcement authorities with certain critical tools
they need to fight and win the war against terrorism. For
example, technology has dramatically outpaced the Nation's
statutes. Many of the most important intelligence gathering
laws were enacted decades ago, in and for an era of rotary
telephones. Meanwhile, the Nation's enemies use e-mail, the
Internet, mobile communications and voice mail.
S. 1510 contains numerous provisions that address this
problem by helping to make the intelligence gathering and
surveillance statutes more "technology-neutral."
Specifically, the bill updates the pen-register, trap-and-
trace, and Title III-wiretap statutes to cover computer and
mobile communications more effectively, while ensuring that
the scope of the authority remains the same.
The bill also provides for nationwide scope of orders and
search warrants, and other practical changes that will enable
law enforcement to work more efficiently and effectively. In
addition, the bill contains important updates of foreign
intelligence gathering-statutes, with the identical goal of
making the statutes technology-neutral. Even more important,
the bill contains provisions to reduce existing barriers to
the sharing of information among Federal agencies where
necessary to identify and respond to terrorist threats. The
ability of law enforcement and national security personnel to
share this type of information is a critical tool for
pursuing the war against terrorism on all fronts.
Substantive Criminal Law and Criminal Procedure
S. 1510 contains important reforms to the criminal statutes
designed to strengthen law enforcement's ability to
investigate, prosecute, prevent, and punish terrorism crimes.
The bill would remove existing barriers to effective
prosecution by extending the statute of limitations for
terrorist crimes that risk or result in death or serious
injury. The bill also creates and strengthens criminal
statutes, including a prohibition on harboring terrorists and
on providing material support to terrorists, and provides for
tougher penalties, including longer prison terms and higher
conspiracy penalties for those who commit terrorist acts.
These provisions will help to ensure that the fight against
terrorism is a national priority in our criminal justice
system.
Border Protection and Immigration Procedures
S. 1510 also contains a number of provisions that would
enhance the ability of immigration officials to exclude or
deport aliens who engage in terrorist activity and improve
the Federal government's ability to share information about
suspected terrorists. Under the bill, those who contribute to
or otherwise support terrorist organizations and terrorist
activities would be denied admission to or deported from this
country, and the Attorney General would be authorized to
detain deportable persons who are suspected of terrorist
activities pending their removal from the United States. In
addition, the bill provides for access by the Department of
State and the Immigration and Naturalization Service to
criminal history records and related information maintained
by the Federal Bureau of Investigation.
Money Laundering
Title III of S. 1510 includes money laundering and other
financial infrastructure provisions, arising from a separate
legislative proposal from the Administration. These
provisions were added to this bill after unanimous approval
was reached on these provisions in the Senate Banking
Committee. The Administration supports the effort to
strengthen the money laundering statutes to help combat
terrorism, and supports virtually all of the proposals that
are now included in S. 1510.
Pay-As-You-Go Scoring
Any law that would increase direct spending is subject to
the pay-as-you-go requirements of the Balanced Budget and
Emergency Deficit Control Act. Accordingly, S. 1510, or any
substitute amendment in lieu thereof that would also increase
direct spending, will be subject to the pay-as-you-go
requirement. OMB's scoring estimates are under development.
The Administration will work with Congress to ensure that any
unintended sequester of spending does not occur under current
law or the enactment of any other proposals that meet the
President's objectives to reduce the debt, fund priority
initiatives, and grant tax relief to all income tax paying
Americans.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, I know the Senator from Wisconsin has
another amendment. I have had requests for time on our side of the
aisle from the distinguished Senator from Washington State, Ms.
Cantwell, for 7 minutes; the distinguished Senator from Massachusetts,
Mr. Kerry, for 5 minutes; the distinguished Senator from Minnesota, Mr.
Wellstone, for 5 minutes; the distinguished Senator from Michigan, Mr.
Levin, for 2 minutes.
I mention that, not to lock that in, because the time is there, but
just to give people an idea of where we are.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, is the Senator from Vermont proposing
a time agreement?
Mr. LEAHY. No. I am just saying what people are requesting for time.
I am trying to get some idea. A number of Senators have asked the
distinguished leader and myself how much longer we are going to be here
tonight.
The PRESIDING OFFICER. The majority leader.
Mr. DASCHLE. Madam President, let me just say, anybody who wishes to
speak on this bill is certainly welcome to do so, but we will be here
after the vote for anybody who wishes to accommodate any other Senator
who would like to go home.
The hour is late. We have one more amendment, and then we have final
passage. It is my hope that we can complete our work on the bill and
certainly leave open the opportunity for Senators to express
themselves. We will stay just as long as that is required. I hope,
though, we can accommodate other Senators who may not feel the need to
participate in further debate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Madam President, I had spoken earlier this evening at
some length about my concerns as to the procedures on the bill. I want
to make a very few brief comments at this time.
I am concerned about the procedures on establishing a record which
will withstand constitutional scrutiny. I shall not repeat the
citations from decisions of the Supreme Court of the United States
which I cited earlier, except to say that the Supreme Court has
invalidated acts of Congress where there is not a considered judgment.
I understand the position of the majority leader in wanting to get
this bill finished. Earlier this evening, I went through an elaborate
chronology as to what has happened here. Nine days after September 11,
the Attorney General submitted a bill. I had suggested hearings that
week. The bill was submitted on September 20. We could have had
hearings on September 21 and even on September 22, a Saturday. The
Judiciary Committee had one hearing, a very brief one, on September 25.
I wrote the chairman of the committee two letters urging hearings,
and there was ample time to have hearings to find out about the details
of this bill. There was a Judiciary subcommittee hearing on October 3.
This bill was negotiated between the chairman and ranking member and
the White House. The Judiciary Committee did not take up the bill. We
have had ample time. This bill should have been before the Senate 2
weeks ago. If we had moved on it promptly after it was submitted on the
20th, we could have had hearings, perhaps some in closed session. We
could have had a markup. We could have had an understanding of the
bill.
When the Senator from Wisconsin has offered two amendments, which I
have supported, I am inquiring as to what is the specific concern about
law enforcement to preclude the adoption of the amendments of the
Senator from Wisconsin and on the possible invasions of privacy that
may result from the amendments not being adopted.
This is a very important bill. I intend to vote for it. I served 8
years on the Intelligence Committee, 2 years as chairman. I chaired the
Subcommittee of Judiciary on Terrorism. I have been through detailed
hearings and understand the problem we face, especially in light of the
warning which was put out today, and I understand, with the approval of
the President, that a terrorist act may happen in the United States or
overseas in the next several days.
We do need adequate law enforcement powers. We should have finished
this bill some time ago. But when the majority leader says he is
concerned about procedure and not about substance, we are regrettably
establishing a record where we have not only not shown the deliberative
process to uphold constitutionality, but we are putting on the record a
disregard for constitutionality and elevating procedure over substance,
which is not the way you legislate in a constitutional area
[[Page S10579]]
where the Supreme Court of the United States balances law enforcement's
needs with the incursion on privacy.
I feel constrained to make these comments. I hope yet that we can
create a record which will withstand constitutional scrutiny.
Again, I intend to vote for the bill, but say again that this body
ought to be proceeding in a way to establish the record. The worst
thing that would happen is if we try terrorists, having used these
procedures, and have the convictions invalidated. I have had
experiences as a prosecuting attorney and know exactly what that means.
I want my concerns noted for the record. I thank the Chair and yield
the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KERRY. Madam President, I have 5 minutes, but I will not use it.
I want to make two very quick points.
One, as a former prosecutor, I am sympathetic to the comments of the
Senator from Pennsylvania. I think all of us ought to be respectful of
what the Senator from Wisconsin has been talking about this evening.
I will vote for the bill. I am particularly sensitive to what the
majority leader has said about the delicacy and the balance. Even
within that delicacy, there are some very legitimate concerns.
It is my hope that when this goes to conference, some of the
positions of the House will be thought about carefully and respected
and that the Senate may even be able to improve what we have by taking
those into account.
The second point is that there is within this legislation for the
first time a very significant effort on money laundering. I will say to
my colleagues that of all the weapons in this war and for all of our
might militarily, the most significant efforts to ferret out and stop
terrorists are going to come from the combination of information,
intelligence that we gather and process, and from our ability to take
unconventional steps, particularly those such as the money-laundering
measures.
Senator Levin has done an outstanding job of helping to frame that,
as has Senator Sarbanes. The truth is, there are banking interests that
even to this moment still resist living up to the standards of the
Basel convention and the international standards about knowing your
customer and being part of the law enforcement effort rather than a
blockade to it.
We are told there may be some effort through the House to try to
strip this out. It is my hope that the Senate will stand firm and hold
to the full measure of what President Bush has asked us to do.
This will be a long effort, a painstaking effort. If we are serious
about it, we have to have the law enforcement tools to make this
happen.
One of the most critical ones is empowering the Secretary of the
Treasury to do a reasonable, ratcheted, sort of geared process of
addressing the concerns of ferreting out money laundering and taking
the money away from these illicit interests around the globe. They are
not just in terrorism. They are linked to money laundering, to illegal
alien trafficking. They are all part of the same network which also
funds the terrorists themselves.
We recognize that three-quarters of the heroin that reaches the
United States comes from Afghanistan. The Taliban and al-Qaida were
both trafficking in that heroin. These networks and the
interconnectedness of them to the banking institutions, the financial
marketplace, are absolutely essential for us as we fight a war on
terrorism.
I hope this money-laundering component will be part of the final
terrorism bill.
I yield whatever remaining time I have.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I thank Chairman Leahy, Chairman
Sarbanes, and members of their committees, for including our very
strong anti-money-laundering provisions in the antiterrorism bill. The
antiterrorism bill is simply incomplete unless it has anti-money-
laundering provisions. Our provisions are strong provisions. They will
help prevent terrorists and other criminals from using our banks to get
their money into this country to fund their activities which are
terrorizing this country.
There apparently is going to be a continuing effort in the House of
Representatives to strip the anti-money-laundering provisions, which we
have worked so hard on, from the antiterrorism bill. It is my
understanding the White House will support keeping those provisions in
the bill. Our committees have worked very hard to keep our anti-money-
laundering provisions in the antiterrorism bill. Unless these
provisions are in there, we are providing the executive branch with
only half a tool box in the fight against terrorism.
Three years ago, the minority staff of the Permanent Subcommittee on
Investigations which I now chair, began its investigation into money
laundering using U.S. banks. Three years, three sets of hearings, two
reports and a five-volume record on correspondent banking and money
laundering was the result.
We found, not surprisingly, that U.S. banks have accounts for foreign
banks and that the customers of those foreign banks can then use the
U.S. banks to move their money. But if foreign banks do a poor job of
screening their customers, criminals and terrorists can end up using
U.S. banks for their criminal purposes.
We found that U.S. banks do a poor job in screening the foreign banks
they accept as correspondent customers. Banks told us "a bank is a
bank is a bank" but that's not true. There are good banks and bad
banks. We found numerous banks where the bank was engaged in criminal
activity or had such poor banking practices any criminal could be a
customer. If a bad bank has a correspondent account with a U.S. bank,
customers of that bad bank have access to U.S. financial system. Then
criminals, including drug traffickers and terrorists, are able to use
our financial systems to carry out their crimes.
In response to what we learned, we developed a bill--S. 1371, the
Money Laundering Abatement Act introduced in early August.
It's a bipartisan bill, and I would like to recognize my cosponsors--
in particular, Senator Chuck Grassley who has helped to lead the fight
for including this money laundering legislation on this anti-terrorism
bill. The cosponsors in addition to Senator Grassley are: Senators
Sarbanes, Kyl, DeWine, Bill Nelson, Durbin, Kerry and Stabenow. The
provisions of this bill have been included in the legislation we are
now considering.
We now know that the September 11 terrorists used our financial
institutions and systems to help accomplish their ends. They used
checks, credit cards, and wire transfers involving U.S. banks in
Florida, New York, Pennsylvania. We've seen the photos of two of the
terrorists using an ATM machine. Osama bin Laden has bragged about it.
There are reports of large, unpaid credit card bills.
We know that current law is not tough enough in area of correspondent
banking--the mechanism used to transfer money around the globe. There
are too many holes that let in bad banks and bad actors, and we need to
close them.
Look at what we've learned just in the last few days about bin Laden
and al-Qaida. Several U.S. banks have had correspondent accounts for a
Sundanese bank called the al Shamal Islamic Bank.
A 1996 State Department fact sheet states that bin Laden helped
finance the bank in the amount of $50 million. A respected
international newsletter on intelligence matters, Indigo Publications
in March 16, 2000, said bin Laden remains a leading shareholder,
although the al Shamal Bank apparently denies that.
Testimony in the February 2001 criminal trial of the 1998 terrorist
bombings of U.S. embassies in Kenya and Tanzania, revealed that a bin
Laden associate who handled financial transactions for al-Qaida
testified al-Qaida had a half dozen accounts at al Shamal bank, one
of which was in bin Laden's name. The witness at that trial said in
1994 a bin Laden associate took $100,000--in cash, U.S. Dollars--out of
the Shamal Bank gave it to the witness and told him to deliver it to an
individual in Jordan, which he did.
Another bin Ladin associate testified at the same trial that he
received $250,000 by a wire transfer from the
[[Page S10580]]
Shamal Bank to his account in a U.S. bank in Arlington, Texas, to
purchase a plane in the United States for bin Laden. He said he
personally delivered the plane to bin Laden.
Why did this bank have a correspondent account with a U.S. bank? Why
should we allow that to happen?
Even today, when you look at the al Shamal bank website, the bank is
still active and advertises an extensive correspondent bank network.
Three U.S. banks are listed. One of those banks has closed its account,
but the two other banks continue to have accounts, although the
accounts are frozen. Those accounts are now inactive because Sudan,
home country of al Shamal, is on the list of terrorist countries and
any business with the government of those countries has to be approved.
But the accounts were operational at one point in time. Moreover, al
Shamal bank has correspondent accounts with other foreign banks which
have accounts with U.S. banks.
That means al Shamal bank can still be using the U.S. financial
system through an account with a foreign bank that has a correspondent
account with a U.S. bank. We call this nesting and it's a serious
problem. It means the al Shamal bank and its customers can still use
the U.S. banking system.
The bill before us would require U.S. banks to do a lot more homework
on the banks they allow to have correspondent accounts. Under the anti-
terrorism bill, it is my belief and my hope that a bank like al Shamal
would never be granted a correspondent account at a U.S. bank.
The bill would also allow U.S. law enforcement to capture any illicit
funds in a U.S. correspondent account. Now, if a criminal or terrorist
has money in a foreign bank that has an account at U.S. bank and
illicit money is being held in a U.S. account, law enforcement can't
freeze that money unless the person is on the terrorist list or can
prove that the foreign bank with the correspondent account is part of a
criminal or terrorist act. That's an excessively hard threshold. This
legislation would allow law enforcement to freeze money in
correspondent accounts to the same extent they can freeze money in
regular, individual accounts.
We need all the tools possible in our arsenal to fight the financial
network of terrorism. The money laundering provisions in this bill
close the loopholes in existing law and provide additional tools for
law enforcement to use.
I thank Chairman Sarbanes and the other members of the Banking
Committee for including so much of the Levin-Grassley anti-money
laundering bill, S. 1371, in the Committee's bill. I also thank
Chairman Leahy and the other Judiciary Committee members for including
anti-money laundering provisions in title 3 of S. 1510, the anti-
terrorism bill. Strengthening our anti-money laundering laws will
strike a blow against terrorism by making it harder for terrorists to
get the funds they need into United States; an anti-terrorism bill
without these anti-money laundering provisions would be providing U.S.
law enforcement with only half a toolbox against terrorism.
I would like to take a few minutes to discuss a few key provisions
from the Levin-Grassley bill that have been incorporated into S. 1510.
These provisions are based on an extensive record of hearings and
reports issued in connection with investigations conducted over the
past few years by the Permanent Subcommittee on Investigations, which I
chair, into money laundering in the correspondent and private banking
fields.
The four provisions I want to focus on are provisions that would ban
foreign shell banks from the U.S. financial system; require U.S.
financial institutions to exercise due diligence; add foreign
corruption offenses to the crimes that can trigger a U.S. money
laundering prosecution; and close a major forfeiture loophole involving
foreign banks.
First is the shell bank ban in Section 313 of S. 1510. This provision
is a very important one, because it attempts to eliminate from the U.S.
financial system one category of foreign banks that carry the highest
money laundering risks in the banking world today. Those are foreign
offshore shell banks which, as defined in the bill, are banks that have
no physical presence anywhere and no affiliation with any bank that has
a physical presence. Our Subcommittee investigation found that these
shell banks carry the highest money laundering risks in the banking
world, because they are inherently unavailable for effective oversight.
There is no office where a bank regulator or law enforcement official
can go to observe bank operations, review documents, talk to bank
officials, or freeze funds. Only a few countries now issue licenses for
unaffiliated shall banks; they include Nauru, Vanuatu, and Montenegro.
Nauru alone is believed to maintain licenses for somewhere between 400
and 3,000 offshore shell banks, none of which are being actively
supervised, and some of which are suspected of laundering funds for
Russian organized crime. A staff report that we issued in February of
this year includes four detailed case histories of offshore shell banks
that were able to open correspondent accounts at U.S. banks and used
them to move funds related to drug trafficking, bribe money and
financial fraud money. The possibility that terrorists are also using
shell banks to conduct their operations is real and cannot be ignored.
That is why this provision seeks to exclude shell banks from the U.S.
financial system.
The provision flat-out prohibits U.S. financial institutions from
opening accounts for shell banks. Period. It also requires U.S.
financial institutions to take reasonable steps to make sure that other
foreign banks are not allowing shell banks to use their U.S. accounts
to gain entry to the U.S. financial system. The point is to prevent
shell banks from getting direct or indirect access to U.S. financial
accounts. The shell bank ban applies to both banks and securities firms
operating in the United States, so that it is as broad and as effective
as possible.
The provision directs the Treasury Secretary to provide regulatory
guidance to U.S. financial institutions on the reasonable steps they
have to take to guard against shell banks using accounts opened for
other foreign banks. One possible approach would be for U.S. financial
institutions to include a new section in the standard language they use
to open accounts for foreign banks asking the foreign bank to certify
that it will not allow any shell bank to use its U.S. accounts. The
U.S. financial institution could then rely on that certification,
unless it encountered evidence to the contrary indicating that a shell
bank was actually using the account, in which case the financial
institution would have to take reasonable steps to evaluate that
evidence and determine whether a shell bank was, in fact, using the
U.S. account.
The provision contains one exception to the shell bank ban, which
should be narrowly construed to protect the U.S. financial system to
the greatest extent possible. This exception allows U.S. financial
institutions to open an account for a shell bank that is both
affiliated with another bank that maintains a physical presence, and
subject to supervision by the banking regulatory of that affiliated
bank. This exception is intended to allow U.S. financial institutions
to do business with shell branches of large, established banks on the
ground that the regulator of the established bank can and does oversee
all of that bank's branches, including any shell branch.
This exception could, of course, be abused. It is possible that an
established bank in a jurisdiction with weak banking and anti-money
laundering controls could open a shell branch in another country with
equally weak controls and try to use that shell branch to launder funds
in ways that are unlikely to be detected or stopped by the bank
regulator in its home jurisdiction. In that case, while the shell bank
ban exception would not flat-out bar U.S. financial institutions from
opening an account for the shell branch, another provision would come
into play and require the U.S. financial institution to exercise
enhanced due diligence before opening an account for this shell bank. I
would hope that U.S. financial institutions would not open such an
account--that they would exercise common sense and restraint and
refrain from doing business with a shell operation that is affiliated
with a poorly regulated bank and inherently resistant to effective
oversight.
Many U.S. financial institutions already have a policy against doing
business with shell banks, but at least one
[[Page S10581]]
major U.S. bank, Citibank, has a history of taking on shell banks as
clients. In order to keep those clients, Citibank tried very hard to
expand the exception in this section to also allow U.S. accounts for
shell banks affiliated with financial service companies other than
banks, such as securities firms or financial holding companies. The
broad exception was firmly and explicitly rejected by both the Senate
Banking Committee and the House Financial Services Committee, because
it would have opened a gaping loophole in the shell bank ban and
rendered the ban largely ineffective. All a shell bank would have had
to do to evade the ban was establish an affiliated shell corporation
and call it a financial services company in order to be eligible to
open a U.S. bank account. The Citibank approach would, for example,
have allowed a shell bank established by bin Laden's financial holding
company, Taba Investments, to open accounts at U.S. banks and
securities firms. That would perpetuate the very problem that the
Senate investigation identified in two of its shell bank case histories
involving M.A. Bank and Federal Bank, each of which opened Citibank
accounts in New York and used those accounts to deposit suspect funds
associated with drug trafficking and bribery.
The exception to the shell bank ban is intended to be narrowly
construed, and U.S. financial institutions will hopefully use great
restraint in doing business with any shell bank that is not affiliated
with a well known, well regulated bank. The shell bank ban is intended
to close the U.S. financial marketplace to the money laundering risks
posed by these banks, and it is my hope that other countries and the
Financial Action Task Force on Money Laundering will follow the U.S.
lead and take the same action in other jurisdictions.
The next provision is the due diligence requirement in Section 312 of
S. 1510. This is another critical provision that tightens up U.S. anti-
money laundering controls by requiring U.S. financial institutions to
exercise due diligence when opening and managing correspondent and
private banking accounts for foreign banks and wealthy foreign
individuals.
The provision targets correspondent and private banking accounts,
because these two areas have been identified by U.S. bank regulators as
high risk areas for money laundering, and because Congressional
investigations have documented money laundering abuses through them.
For example, two weeks ago, I testified before the Banking Committee
about a high risk foreign bank in Sudan that was able to open accounts
at major banks around the world, including in the United States and, in
1994, used these accounts to funnel money to a bin Laden operative then
living in Texas. On one occasion, he used a $250,000 wire transfer from
the Sudanese bank to buy an airplane capable of transporting Stinger
missiles, fly it to Sudan and deliver the keys to bin Laden. Six months
earlier, we released a staff report with ten case histories of high
risk foreign banks that used their U.S. accounts to transfer illicit
proceeds associated with drug trafficking, financial fraud and other
crimes. A year earlier, another staff report presented four case
histories of senior foreign government officials or their relatives
opening U.S. private banking accounts and using them to deposit
millions of dollars in suspect funds. The bottom line is that U.S.
banks need to do a much better job in screening the foreign banks and
wealthy foreign individuals they allow to open accounts in the United
States.
The due diligence provision would address that problem. It would
impose an ongoing, industry-wide legal obligation on all types of
financial institutions operating in the United States to exercise
greater care when opening accounts for foreign banks and wealthy
foreign individuals. Its due diligence requirements are intended to
function as preventative measures to stop dubious banks and as well as
terrorists or other criminals from using foreign banks' U.S. accounts
to gain access to the U.S. financial system.
The general obligation to exercise due diligence with respect to all
correspondent and private banking accounts is contained in paragraph
(1). Paragraphs (2) and (3) then provide minimum standards for the
enhanced due diligence that U.S. banks must exercise with respect to
certain correspondent and private banking accounts. Paragraph (4)(B)
gives the Treasury Secretary discretionary authority to issue
regulatory guidance to further clarify the due diligence policies,
procedures and controls required by paragraph (1).
The regulatory authority granted in this section is intended to help
financial institutions understand what is expected of them. The
Secretary may want to issue regulations that help different types of
financial institutions to understand their obligations under the due
diligence provision. However, one caveat needs to be made with respect
to the Secretary's exercise of this regulatory authority, and that
involves how it is to be coordinated with Section 5318(a)(6), which
authorizes the Secretary to grant "appropriate exemptions" from any
particular money laundering requirement. There are going to be many
efforts made by various groups of financial institutions to win an
exemption from the due diligence requirements in this section--from
insurance companies, to money transmitters, to offshore affiliates of
large foreign banks. But the Committee's and the Senate's clear
intention is to cover all major financial institutions operating in the
United States. That is why Chairman Sarbanes changed the language in my
bill, S. 1371, so that the due diligence requirement did not apply just
to banks, but to all financial institutions as that term is defined in
Section 5312(a)(2) of title 31. That broad coverage is exactly what is
contemplated by this statute. The bottom line, then, is that the
Secretary is intended to apply the due diligence requirements broadly
to U.S. financial institutions, and not to grant an exemption without a
very compelling justification.
This same reasoning also applies to the shell bank ban. There will be
some that will seek one exemption or another from the ban, asking the
Treasury Secretary to use the authority available under Section
5318(a)(6). Again, the intent of the Committee and this Senate is to
enact as comprehensive a shell bank ban as possible to protect the
United States from the money laundering threat posed by shell banks.
That means that the Secretary should refrain from granting any
exemption to the shell bank ban without a very compelling
justification.
The third provision I want to discuss is the provision in Section 315
adding new foreign corruption offenses to the list of crimes that can
trigger a U.S. money laundering prosecution. This is another important
advance in U.S. anti-money laundering law. Right now, because foreign
corruption offenses are not currently on the list of crimes that can
trigger a U.S. money laundering prosecution, corrupt foreign leaders
may be targeting U.S. financial institutions as a safe haven for their
funds. This provision will make it clear to those who loot their
countries, or accept bribes, or steal from their people, that their
illicit money is not welcome here. Our banks do not want that money,
and if it is deposited in U.S. banks, it is subject to seizure and the
depositor may become subject to a money laundering prosecution.
The fourth provision would close a major forfeiture loophole in U.S.
law involving foreign banks. This provision is in Section 319(a) of S.
1510. It would make a depositor's funds in a foreign bank's U.S.
correspondent account subject to the same civil forfeiture rules that
apply to depositors funds in other U.S. bank accounts. Right now, due
to a quirk in the law, U.S. law enforcement faces a significant and
unusual legal barrier to seizing funds from a correspondent account.
Unlike a regular U.S. bank account, it is not enough for U.S. law
enforcement to show that criminal proceeds were deposited into the
correspondent account; instead, because funds in a correspondent
account are considered to be the funds of the foreign bank itself, the
government must also show that the foreign bank was somehow part of the
wrongdoing.
That's not only a tough job, that can be an impossible job. In many
cases, the foreign bank will not have been part of the wrongdoing, but
that's a strange reason for letting the foreign depositor who was
engaged in a wrongdoing escape forfeiture. And in those cases where the
foreign bank may have
[[Page S10582]]
been involved, no prosecutor will be able to allege it in a complaint
without first getting the resources needed to chase the foreign bank
abroad.
Take, for example, the case of Barclays Bank which has frozen an
account because of suspicious activity suggesting it may be associated
with terrorism. If that account had been a correspondent account in the
United States opened for Barclays Bank, U.S. law enforcement could have
been unable to freeze the particular deposits suspected of being
associated with terrorism, because the funds were in the Barclays
correspondent account and Barclays itself was apparently unaware of any
wrongdoing. That doesn't make sense. U.S. law enforcement should be
able to freeze the funds.
Section 319(a) would eliminate that quirk by placing civil
forfeitures of funds in correspondent accounts on the same footing as
forfeitures of funds in all other U.S. accounts. There is just no
reason foreign banks should be shielded from forfeitures when U.S.
banks would not be.
Section 319 has many other important provisions as well, including
provisions dealing with Federal Receivers, legal service on foreign
banks and more.
I want to again thank Senator Sarbanes and Senator Leahy and their
staffs for their hard work and cooperative spirit in bringing this bill
to the floor and including the provisions of our bill in it.
I need to add that the hard work in passing this bill will be for
naught if some of the banks have their way in the House and in
Conference Committee. I'm very concerned with reports that there is an
effort in the House to separate the money laundering and anti-terrorism
bills, so money laundering will be considered separately. The banks
should be working with us to figure out even more ways in which the
money flow of terrorists can be shut down.
Madam President, I ask unanimous consent to print letters of support
for this legislation and testimony from the FBI in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Dennis M. Lormel, Chief, Financial Crimes Section, Federal
Bureau of Investigation, Before the House Committee on Financial
Services, Washington, DC, October 3, 2001
Correspondent banking is another potential vulnerability in
the financial services sector that can offer terrorist
organizations a gateway into U.S. banks just as it does for
money launderers. As this Committee well knows, the problem
stems from the relationships many U.S. Banks have with high
risk foreign banks. These foreign banks may be shell banks
with no physical presence in any country, offshore banks with
licenses limited to transacting business with persons outside
the licensing jurisdiction, or banks licensed and regulated
by jurisdictions with weak regulatory controls that invite
banking abuses and criminal misconduct. Attempts to trace
funds through these banks are met with overwhelming
obstacles. The problem is exacerbated by the fact that once a
correspondent account is opened in a U.S. Bank, not only the
foreign bank but its clients can transact business through
the U.S. bank. As Congress has noted in the past, requiring
U.S. banks to more thoroughly screen and monitor foreign
banks as clients could help prevent much of the abuse in
correspondent bank relationships.
____
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, September 18, 2001.
Hon. Carl Levin,
Chairman, Permanent Subcommittee on Investigations, Committee
on Governmental Affairs, U.S. Senate, Washington, DC.
Hon. Charles Grassley,
Co-Chairman, Senate Drug Caucus, U.S. Senate, Washington, DC.
Dear Mr. Chairman and Mr. Co-Chairman: We are writing in
response to your recent letter to Attorney General Ashcroft
concerning S. 1371, the Money Laundering Abatement Act. We
appreciate your continued commitment to addressing the
serious problem of money laundering in this country and
abroad, as demonstrated by your introduction of S. 1371. As
you indicated in your letter, the Attorney General has
expressed the need to strengthen our money laundering laws.
In his August 7th speech, the Attorney General stated: "The
Department of Justice has identified several areas in which
our money laundering laws need to be updated to more
effectively combat organized crime and to better serve the
cause of justice."
We were very pleased to see that one of the areas
highlighted in the Attorney General's speech--the need to add
to the list of foreign offenses that constitute predicate
crimes for money laundering prosecutions--is included in S.
1371. This and other provisions in your bill would greatly
improve our money laundering laws.
As the Attorney General also indicated in his speech, the
Department of Justice has been developing its own proposal to
update our money laundering laws and we hope to provide
Congress with our own recommendations in the near future. We
look forward to working with you in pursuing our mutual goal
of strengthening and modernizing our money laundering laws to
meet the challenges of this new century.
Thank you for your attention to this matter. If we may be
of additional assistance, we trust that you will not hesitate
to call upon us. The Office of Management and Budget has
advised that there is no objection from the standpoint of the
Administration's program to the presentation of this report.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
____
U.S. Department of Justice,
Drug Enforcement Administration,
Washington, DC, September 20, 2001.
Hon. Carl Levin,
Chairman, Permanent Subcommittee on Investigations, Committee
on Governmental Affairs, U.S. Senate, Washington, DC.
Dear Mr. Chairman: Thank you for requesting our views on S.
1371, the "Money Laundering Abatement Act," which is
designed to combat money laundering and protect the United
States financial system by strengthening safeguards in
private and correspondent banking.
We greatly appreciate your initiative in this important
area and believe that several provisions of S. 1371 would be
of particular benefit to DEA's efforts to combat money
laundering. In addition, as Assistant Attorney General Bryant
recently indicated in his letter to you, the Administration
has been working for some time on a package of additional
suggested money laundering amendments, which we hope to be
able to share with you shortly.
We look forward to working with you to strengthen and
improve the Nation's money laundering laws. If I can be of
any further assistance, please do not hesitate to contact me.
The Office of Management and Budget has advised that there is
no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
Asa Hutchinson,
Administrator.
____
Federal Deposit
Insurance Corporation,
Washington, DC, September 7, 2001.
Hon. Carl Levin,
Chairman, Permanent Subcommittee on Investigations, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: Thank you for the opportunity to comment
on S. 1371, the Money Laundering Abatement Act. The Federal
Deposit Insurance Corporation shares your concern about the
damage to the U.S. financial system that may result from
money laundering activities and we congratulate you for your
leadership in this area.
As deposit insurer, the FDIC is vitally interested in
preventing insured depository institutions from being used as
conduits for funds derived from illegal activity. As you may
know, in January of this year, the FDIC, together with the
Department of the Treasury, the Board of Governors of the
Federal Reserve System, the Office of the Comptroller of the
Currency, the Office of Thrift Supervision, and the
Department of State, issued Guidance On Enhanced Scrutiny For
Transactions That May Involve The Proceeds Of Official
Corruption. The FDIC is also an active participant in other
working groups that seek more effective ways to combat money
laundering.
S. 1371 is an important step in trying to preclude foreign
entities from laundering money through U.S. financial
institutions. S. 1371 would, in several ways, require U.S.
financial institutions to identify foreign parties who open
or maintain accounts with U.S. banks, such as through
correspondent accounts or private banking accounts. The bill
would also prohibit customers from having direct access to
concentration accounts, and make it a crime to falsify the
identity of a participant in a transaction with or through
U.S. financial institutions. Correspondent and concentration
accounts have the potential to be misused so as to facilitate
money laundering, and the bill appropriately addresses these
concerns.
One point we would like to raise is in relation to Section
3 of the bill. Section 3 provides for consultation between
the Board of Governors of the Federal Reserve System and the
Secretary of the Treasury, both in regard to devising
measures to combat money laundering and defining terms
relating to anti-money laundering measures. The FDIC believes
that such consultation requirements should include the FDIC
as well as the other Federal banking agencies.
Thank you again for the opportunity to provide our views on
S. 1371. Please do not hesitate to contact Alice Goodman,
Director of our Office of Legislative Affairs, at (202) 898-
8730 if we can be of any further assistance.
Sincerely,
Donald E. Powell,
Chairman.
[[Page S10583]]
____
State of Michigan,
Department of Attorney General,
Lansing MI, September 25, 2001.
Hon: Carl Levin,
U.S. Senator, Russell Senate Office Bldg.,
Washington, DC.
Hon. Chuck Grassley,
U.S. Senator,
Hart Senate Office Bldg., Washington, DC.
Dear Senators Levin and Grassley: I write to express my
strong support for S1371, the Money Laundering Abatement Act.
This is a prevalent problem that has allowed the criminal
element to secrete the proceeds of criminal activity and to
generate funds needed to facilitate and underwrite organized
crime.
The bill will make it harder for foreign criminals to use
United States banks to launder the proceeds of their illegal
activity and allow investigators to detect, prevent, and
prosecute money laundering. In particular, the bill
strengthens existing anti-money laundering laws by adding
foreign corruption offenses, barring U.S. banks from
providing banking services to foreign shell banks, requiring
U.S. banks to conduct enhanced due diligence, and making
foreign bank depositors' funds in U.S. correspondence banks
subject to the same forfeiture rules that apply to funds in
other U.S. bank accounts.
Recent events highlighting the activities of foreign
terrorists have demonstrated the necessity for his law. My
colleagues in the U.S. Justice Department indicate that this
and similar laws are essential if we are to succeed in our
fight against organized crime, drug dealers, and terrorism.
This bill is the result of lengthy hearings and congressional
fact-finding that concluded that the regulations set forth in
the bill are needed. The bill has my support, and I would
urge its passage as soon as possible.
Sincerely yours,
Jennifer M. Granholm,
Attorney General.
____
State of Arizona,
Office of the Attorney General,
Phoenix, AZ, August 2, 2001.
Hon. Carl Levin,
Russell Senate Office Building,
U.S. Senate, Washington, DC.
Hon. Chuck Grassley,
Hart Senate Office Building,
U.S. Senate, Washington, DC.
Dear Senators Levin and Grassley: I write to express my
views on the Money Laundering Abatement Act you are planning
to introduce soon. This bill would provide much needed relief
from some of the most pressing problems in money laundering
enforcement in the international arena. The burdens it places
on the financial institutions are well considered, closely
tailored to the problems, and reasonable in light of the
public benefits involved.
The bill focuses on the structural arrangements that allow
major money launderers to operate. These include the use of
shell banks and foreign accounts, abuse of private banking,
evasion of law enforcement efforts to acquire necessary
records, and of safe foreign havens for criminal proceeds.
The approach is very encouraging, because efforts to limit
the abuse of these international money laundering tools and
techniques must come from Congress rather than the state
legislatures, and because such measures attack money
laundering at a deeper and more lasting level than simpler
measures.
The focus on structural matters means that this bill's
effects on cases actually prosecuted by state attorneys
general are a relatively small part of the substantial
effects its passage would have on money laundering as a
whole. Nevertheless, its effects on money laundering
affecting victims of crime and illegal drug trafficking would
be dramatic. I will use two examples from my Office's present
money laundering efforts.
My Office initiated a program to combat so-called "prime
bank fraud" in 1996, and continues to focus on these cases.
Some years ago, the International Chamber of Commerce
estimated that over $10 million per day is invested in this
wholly fraudulent investment scam. The "PBI" business has
grown substantially since then. To date, my Office has
recovered over $46 million in these cases, directly and in
concert with U.S. Attorneys and SEC. Prime bank fraudsters
rely heavily on the money movement and concealment techniques
that this bill would address, particularly foreign bank
accounts, shell banks, accounts in false identities, movement
of funds through "concentration" accounts, and impunity
from efforts to repatriate stolen funds. One of our targets
was sentenced recently in federal court to over eight years
in prison and ordered to make restitution of over $9 million,
but without the tools provided in this bill, there is little
hope that the victims will even see anything that was not
seized for forfeiture in the early stages of the
investigation.
My Office is now engaged in a program to control the
laundering of funds through the money transmitters in
Arizona, as part of the much larger problem of illegal money
movement to and through the Southwest border region. This
mechanism is a major facilitator of the drug smuggling
operations. Foreign bank accounts and correspondence
accounts, immunity from U.S. forfeitures, and false
ownerships are significant barriers to successful control of
money laundering in the Southwest.
Your bill is an example of the immense value of
institutions like the Permanent Subcommittee of
Investigations, because this type of bill requires a deeper
understanding of the issues that comes from long term
inquiries by professional staff. We who are involved in state
level money laundering control efforts should be particularly
supportive of such long term strategies because they are most
important to the quality of life of our citizens.
I commend your efforts for introducing this important
legislation and will assist you in anyway I can to gain its
passage.
Yours very truly,
Janet Napolitano,
Attorney General.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, I tell the distinguished Senator from
Michigan and the distinguished Senator from Massachusetts, who made
such strong and valid points on money laundering, we just received from
the administration their statement of policy saying: This includes
money laundering, other financial infrastructure provisions arising
from separate legislative proposals. These provisions were added to
this bill after unanimous approval to have these provisions in the
Senate Banking Committee. The administration supports the effort to
strengthen this--
And so on. They are extremely important, and I can assure both
Senators that I will strongly support retention of this in conference.
The PRESIDING OFFICER. The Senator from Wisconsin.
Amendment No. 1901
Mr. FEINGOLD. Mr. President, I call up amendment No. 1901, which is
at the desk.
The PRESIDING OFFICER (Mr. Miller). The clerk will report.
The legislative clerk read as follows:
The Senator from Wisconsin [Mr. Feingold] proposes an
amendment numbered 1901.
Mr. FEINGOLD. I ask unanimous consent that further reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To modify the provisions relating to access to business
records under the Foreign Intelligence Surveillance Act of 1978)
Strike section 215 and insert the following:
SEC. 215. ACCESS TO BUSINESS RECORD UNDER FOREIGN
INTELLIGENCE SURVEIL-
LANCE ACT OF 1978.
(A) In General.--Section 502 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1862) is amended--
(1) in subsection (a), by striking "authorizing a common
carrier" and all that follows through "to release records"
and inserting "requiring a business to produce any tangible
things (including books, records, papers, documents, and
other items)";
(2) in subsection (b)(2)--
(A) in subparagraph (A), by striking "and" at the end;
(B) in subparagraph (B), by striking the period at the end
and inserting: "; and"; and
(C) by adding at the end the following new subparagraph:
"(C) the records concerned are not protected by any
Federal or State law governing access to the records for
intelligence or law enforcement purposes."; and
(3) in subsection (d), by striking "common carrier, public
accommodation facility, physical storage facility, or vehicle
rental facility" each place it appears and inserting
"business".
(b) Conforming Amendment.--The text of section 501 of that
Act (50 U.S.C. 1861) is amended to read as follows:
"Sec. 501. In this title, the terms `agent of a foreign
power', `foreign intelligence information', `international
terrorism', and `Attorney General' have the meanings given
such terms in section 101.".
Mr. FEINGOLD. Mr. President, this amendment has to do with section
215 in the bill. It allows the Government, under FISA, to compel
businesses to turn over records to assist in an investigation of
terrorism or espionage. The provision makes two significant changes
from current law. Under current law, the FBI can seek records from only
a limited set of businesses--from public accommodations, such as hotels
and motels, car rental companies, storage facilities, and travel
records, such as those from airlines.
Current law also requires the FBI to demonstrate to the FISA court
that the records pertain to an agent of a foreign power. The FBI cannot
go on a fishing expedition of records of citizens of this country who
might have had incidental contact with a target of an investigation.
But under section 215 of this bill, all business records can be
compelled to be produced, including those containing sensitive personal
information such as medical records
[[Page S10584]]
from hospitals or doctors, or educational records, or records of what
books someone has taken out of the library.
This is an enormous expansion of authority, compounded by the
elimination of the requirement that the records have to pertain to an
agent of a foreign power. Under this provision, the Government can
apparently go on a fishing expedition and collect information on
anyone--perhaps someone who has worked with, or lived next door to, or
has been seen in the company of, or went to school with, or whose phone
number was called by the target of an investigation.
So we are not talking here only about the targets of the
investigation; we are talking about people who have simply had some
incidental contact with the target. All the FBI has to do is to allege
in order to get the order that the information is sought for an
investigation of international terrorism or clandestine intelligence
gathering. That is all they have to do, assert that--not to just get at
the targets, but at people who have had any contact whatsoever with
them.
On that minimal showing in an ex parte application in a secret court,
the Government can lawfully compel a doctor or a hospital to release
medical records or a library to release circulation records. This is
truly a breathtaking expansion of the police power, one that I do not
think is warranted.
My amendment does not completely strike the provision. There are
elements of it that I think have legitimacy. First, my amendment
maintains the requirement that the records pertain to a target alleged
to be an agent of a foreign power. This provides some protection for
American citizens who might otherwise become the subject of
investigations for having some innocent contact with a suspected
terrorist.
Second, while the amendment maintains the expansion of the FISA
authority to all business records, it also requires the FBI to comply
with State and Federal laws that contain a higher standard for the
disclosure of certain private information. The amendment makes it clear
that existing Federal and State statutory protections for the privacy
of certain information are not diminished or superseded by section 215.
There are certain categories of records, such as medical records or
educational records, that Congress and State legislatures have deemed
worthy of a higher level of privacy protection. Let me quickly give you
a couple of examples. In California, there is a very detailed statutory
provision governing disclosure of medical information to law
enforcement authorities. Generally, the law requires either patient
consent, or a court order, or a subpoena. Before issuing an order for
the records to be produced, the court must, among other things, find
good cause based on a determination that there is a reasonable
likelihood that the records in question will disclose material
information or evidence of substantial value in connection with the
investigation or prosecution.
Montana is another State with strong statutory, and indeed
constitutional, protections for medical records. It provides that
medical records can only be obtained with an investigative subpoena
signed by a judge, and that subpoena may be issued only when it appears
upon the affidavit of the prosecutor that a compelling State interest
requires it to be issued. In order to establish a compelling State
interest, the prosecutor must state facts and circumstances sufficient
to support probable cause to believe that an offense has been
committed, and that the information relative to the commission of that
offense is in the possession of the person or institution to whom the
subpoena is directed.
My State of Wisconsin, along with many other States, has very strong
library confidentiality laws which requires a court order for
disclosure of public library system records.
Texas, for example, permits disclosure of library records "to a law
enforcement agency or prosecutor under a court order or subpoena
obtained after a showing to a court that: (A) disclosure of the record
is necessary to protect the public safety; (B) the record is evidence
of an offense or constitutes evidence that a particular person
committed an offense."
Missouri and Nevada library records confidentiality laws both require
that a court find "that the disclosure of such record is necessary to
protect the public safety or to prosecute a crime."
South Carolina's library records confidentiality law permits
disclosure "in accordance with a proper judicial order upon finding
that disclosure of the records is necessary to protect public safety,
to prosecute a crime, or upon showing of good cause before a presiding
judge in a civil matter."
In short, our States have made policy judgments about the protection
to which certain kinds of records are justified. We have Federal laws
that express similar judgments--Federal Educational Records Privacy
Act. Indeed, as I will mention, this bill provides new standards for
the production of educational records in connection with terrorism
investigations.
So my fear is that what section 215 does is effectively trump any and
all of these State and Federal privacy protections. I think that is a
result that most of our citizens and their State representatives would
not countenance. So my amendment simply provides that this new
authority to compel the production of business records through an order
of a FISA court does not apply if another State or Federal law governs
the law enforcement or intelligence access to the records.
To the extent that the records sought have no such statutory
protection, the only effect this amendment would have is to ensure that
the records actually pertain to the target. But I strongly believe that
merely alleging that the records are needed for an intelligence
investigation should not override other protections provided by State
and Federal law.
I will quickly highlight the problem by referring to section 508 of
this bill. That section, I think, would be rendered meaningless if
section 215 is not amended as I propose.
The original version of section 508 proposed by the administration
would have given the Attorney General the right to obtain the
educational records of virtually any student without a court order. I
and many other Senators had serious problems with that provision, and
it was significantly changed before S. 1510 was introduced. Section 508
now does require a court order and does provide a specific showing that
the Attorney General must make to obtain the order to get at these
educational records. But if section 215 is enacted without my amendment
a university could be ordered to turn over such records as "tangible
things" on a much lower showing.
The administration asserts that it is too great a burden for the
Government to abide by existing privacy protections and seek court
orders to obtain certain sensitive information specifically identified
by Congress and State legislators. I remind my colleagues that the
protections I seek to preserve were carefully drafted and debated and
enacted at a time when legislators could thoughtfully consider the full
weight of granting such protections. We are now asked to set these
protections aside with scant discussion of either the merits or the
consequences of such a proposal, during a time of incredible strain on
our democratic principles, and for an indeterminate length of time.
If my amendment is adopted, law enforcement will still have access to
all of the information it seeks. But my amendment simply maintains the
integrity of protections enacted by Congress and State legislatures for
certain kinds of sensitive information to ensure that access to this
information is given only where it is necessary. It makes sure that
this provision does not become the platform or an excuse for a fishing
expedition for damaging information on American citizens who are not
the subjects of FISA surveillance.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Mr. FEINGOLD. I yield 5 minutes to the Senator.
Mr. WELLSTONE. Mr. President, I say, again, to colleagues that this
amendment the Senator from Wisconsin introduced makes sure that our
Federal and State laws regarding certain sensitive privacy areas are
not diminished or superseded by this provision.
[[Page S10585]]
The amendment of the Senator from Wisconsin goes to the heart of the
concerns that a lot of the people we represent have. I imagine that the
vote may be overwhelmingly in opposition to this amendment. That has
been the pattern.
Again, I thank the Senator from Wisconsin for raising these
questions. This is what we should be doing.
I conclude this way: I really think, in part, because of the kind of
questions the Senator from Wisconsin has raised--again, I am not a
lawyer--in looking at this bill, Mr. President, I say to Senator Leahy,
it seems to me he and others have done a great job and are doing
everything possible to make this more balanced. There are so many good
provisions in this bill that we need. I believe that.
I hope we can keep the sunset provision, which is so essential to
oversight, because I think what is good is the provisions of this
legislation that focus on combating terrorism and what is not quite so
good is the parts of this bill that reach way beyond that.
Yes, there is a lot of good. I will support it. I will reserve final
judgment of what comes out of the conference committee. I think we can
make it better.
I thank my colleagues, Senator Hatch included, for their work.
Sometimes people can honestly disagree. I know this is important. I
know where we are as a nation, but the Senator from Wisconsin has
raised important concerns tonight, and others as well. I hope we do
better in conference.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I thank the Senator from Minnesota. He
said it exactly right. Each of us who spoke on these amendments tonight
cares just as much as everybody in this room about the fight against
terrorism and stopping it. We just want to make sure we do not go
beyond that goal with unnecessary language that intrudes on our civil
liberties. That is it. That is all we are trying to do.
I am pleased to yield 5 minutes to the Senator from Washington.
The PRESIDING OFFICER. The Senator from Washington.
Ms. CANTWELL. Mr. President, I thank the Senator from Wisconsin for
the time and his energies this evening. We all know that the hour is
late and that there are many things we must accomplish in our acts to
fight terrorism. This is probably one of the most significant pieces of
legislation that affects our home-front activities in fighting that
battle.
There are many good things in this bill. I am very proud of the
authorizing language to triple the resources for our northern borders.
I am very proud of the language in the bill that basically will set a
new technology standard for our visa program so we can better identify
people coming into this country. I am very proud of the many tools in
the bill for law enforcement. I ask unanimous consent that the column
in the Washington Post be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Oct. 10, 2001]
When Care Beats Haste
The complex antiterrorism legislation that the
administration sent Congress less than a month ago could
reach the floors of both houses this week. The original
proposal has been considerably improved since its hasty
submission, but civil liberties groups continue to warn with
cause that some of the detention and surveillance provisions
would give the government more power than is either necessary
or healthy.
Some of the members of both parties who helped construct
the current compromises are likewise uneasy about their own
handiwork, but reluctant to be seen as holding up a bill the
administration insists it needs right away. The reluctance
will be the greater now that the country is engaged in
military action in Afghanistan; there is fear--we have no
doubt well-founded--of retaliation. But dangerous moments are
precisely the ones when it is most important that civil
liberties be protected.
The House Judiciary Committee has dealt with the
conflicting pressures in part by putting a kind of asterisk
after the surveillance sections of the bill. It has
"sunset" them, meaning the powers they confer will expire
after two years unless a subsequent Congress, having seen how
the powers work out, votes to extend them. The administration
opposes the sunset provision and succeeded in keeping it out
of the Senate version. But it's a reasonable compromise. A
bill such as this is a balancing of risks--the risk of
further attack versus the risk to civil liberties in seeking
to forestall the attack. If the bill is as benign as the
administration insists, it has nothing to fear from a sunset
provision, which ought to be retained.
Parts of the administration proposal were sensible and are
not in dispute: allowing the government in an age of cell
phones to seek court approval for placing a wiretap on a
person rather than a particular phone, for example. Others
were drawn too loosely, and some still need work. The
administration had sought authority to detain indefinitely
non-citizens whom the attorney general thought even might be
engaged in terrorism or other activities that endangered
national security. That power has been greatly circumscribed.
A person not charged with a crime after seven days can be
held only if the government is moving to deport him. The
question, which the bills don't clearly answer, is how long,
without judicial determination, can it hold him then?
Wiretap authority now is easier to get for foreign
intelligence than for law enforcement purposes. The
legislation would make it easier still. The question then
becomes how to make sure that the new authority isn't
abused--in fact used for law enforcement purposes or fishing
expeditions--in such a way as to make such surveillance far
more commonplace than now. Related issues have to do with the
sharing of law enforcement and intelligence information among
government officials. There are ways to provide the broader
authority the government says it needs while hedging against
its abuse; in our view, not all of those have been fully
explored.
So too with the power the bill would give law enforcement
officials to obtain records of an individual's Internet use,
including addresses of e-mail sent and received. Phone
records are now available to law enforcement agencies more or
less on request--when were calls made from phone A to phone
B? what should be the Internet analogy?
The administration was said yesterday to be pressing for
quick passage by both houses of the Senate measure; the more
careful work of the House Judiciary Committee would be set
aside. That's wrong, and an acquiescent step that in the long
run Congress likely would regret.
Ms. CANTWELL. This article said it best with the headline: "When
Care Beats Haste":
The question then becomes how to make sure that the new
authority isn't abused--in fact used for law enforcement
purposes or fishing expeditions--
Later it says that it would be wrong for us to take an acquiescent
step that in the long run would really hurt our country.
What Senator Feingold is simply trying to say is that we have already
painstakingly over many years crafted a careful balance in protecting
personal privacy. This language in section 215 changes that. It
basically says that the FBI can have access to other things, including
business records from U.S. citizens who may have had incidental contact
with someone who is defined as a terrorist.
Think about that for a second. If you are an employer and someone in
your company has now been accused of these terrorists acts and is under
investigation, your business records can also be attained if, as
Senator Feingold said, it was deemed part of this investigation, with
very minimal judicial review.
Take for another example, you happen to live across the hall from
someone who now has become a suspect. Maybe you have been over to their
house for dinner several times. Now, all of a sudden, you may be part
of that investigation, and your financial records, your medical
records, your personal records can now be part of that investigation,
again, with very minimal judicial review.
I have heard from many in my State, including my State librarian,
consumers, and businesses that are concerned, that this provision is
far too broad.
It takes little imagination, as I said, to think of all the tangible
items this would give the FBI carte blanche to examine some people's
most private and personal papers.
The bottom line is this legislation could circumvent or supersede
Federal and State privacy laws that protect student records, library
records, and health records not previously admissible under FISA.
What we are talking about in the Feingold amendment is trying to
preserve those State and Federal laws that already specify protection.
The amendment simply states where Congress or a State legislature has
enacted a law which requires an order to obtain records, that Federal
or State law stands.
That seems pretty simple. We have worked on these issues. We should
not work on them in haste.
[[Page S10586]]
This is a very complex time. It is no ordinary time for our country.
This process has to remember those fourth amendment rights that we have
so diligently fought for in the past. I urge my colleagues to support
this amendment.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I am grateful for the remarks of the
Senator from Washington. I am afraid we are going to read them in a few
years and wish maybe we listened more closely to what we are doing on
this particular provision.
I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
The Senator from Vermont.
Mr. LEAHY. Mr. President, the Senator from Utah wanted to say
something for the record.
Mr. HATCH. Mr. President, I thank my colleagues.
I oppose Senator Feingold's amendment to Section 215 of the bill.
Section 215 allows federal law enforcement to apply for a court order
to obtain records and other evidence in the course of an investigation
to protect against international terrorism or clandestine intelligence
activities. This provision has many safeguards built in to prevent its
misuse.
For instance, the application must be made by the Director of the FBI
or his designee, whose rank cannot be lower than an Assistant Special
Agent in Charge, and specify that the records concerned are sought for
an authorized investigation to protect against international terrorism
or clandestine intelligence activities. Additionally, the investigation
must be conducted pursuant to approved Attorney General guidelines and
may not be conducted on a United States person solely upon the basis of
activities protected by the first amendment to the Constitution.
As written, the provision balances the investigatory needs of the FBI
with privacy concerns and provides adequate protection, while not
allowing a host of state-law provisions to stand in the way of national
security needs. Senator Feingold's amendment would condition the
issuance of the court order on a myriad of federal and state-law
provisions. Such conditioning will have the effect of making
investigations to protect against international terrorism more
difficult than investigations of certain domestic criminal violations.
Senator Feingold's amendment purports to preserve privacy protections
in place for certain records. The amendment's effect, however, will be
to place foreign international and intelligence investigations at a
disadvantage to criminal investigations. For example, this amendment
would make it more difficult for the government to obtain business
records in a foreign-intelligence or foreign counter-intelligence
investigation through a court order than it is to obtain the same
records in a criminal health-care fraud or child pornography
investigation through a grand jury subpoena or administrative subpoena.
(see 18 U.S.C. 3486).
Federal law enforcement officers investigating the activities of a
terrorist organization or foreign intelligence target should not face a
greater burden than that imposed on investigators of health-care fraud
or child pornography.
I urge my colleagues to vote against this amendment.
Mr. LEAHY. Madam President, the administration originally wanted
administrative subpoena authority in foreign intelligence cases for
government access to any business record. I was able to reach agreement
with the administration to subject this authority to judicial review
and to bar investigations based on the basis of activities protected by
the First Amendment.
The Feingold amendment would ensure that current laws providing
safeguards for certain types of records, such as medical and
educational records, be maintained. Again, it is unfortunate that the
administration did not accept this amendment.
Mr. President, we are prepared to yield back the remainder of our
time if the Senator from Wisconsin is prepared to yield back the
remainder of his time.
Mr. FEINGOLD. If the majority leader is going to speak, I would like
to respond. If not, I will simply yield back the remainder of my time.
Mr. LEAHY. I yield back the remainder of our time.
Mr. DASCHLE. Mr. President, I move to table the amendment and ask for
the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the motion. The clerk will call the
roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms), the Senator from South Carolina (Mr. Thurmond), and the Senator
from New Mexico (Mr. Domenici), are necessarily absent.
I further announce that if present and voting the Senator from North
Carolina (Mr. Helms) would vote "yea."
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 89, nays 8, as follows:
[Rollcall Vote No. 301 Leg.]
YEAS--89
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Craig
Crapo
Daschle
DeWine
Dorgan
Durbin
Edwards
Ensign
Enzi
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Hatch
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thompson
Torricelli
Voinovich
Warner
Wyden
NAYS--8
Cantwell
Corzine
Dayton
Dodd
Feingold
Harkin
Levin
Wellstone
NOT VOTING--3
Domenici
Helms
Thurmond
Mr. LEAHY. I move to reconsider the vote.
Mr. DASCHLE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
NORTHERN BORDER SECURITY
Mr. STEVENS. Mr. President, I thank the members of the Judiciary
Committee, especially Chairman Leahy and Senator Hatch for their hard
work on this important legislation. This bill will give the
administration an increased ability to fight terrorism on many fronts.
One section of the bill that is extremely important to my state
addresses Northern Border Security. This bill will triple the number of
Border Patrol, Customs Service, and INS inspectors along America's
northern borders. It also authorizes $100 million to improve INS and
Customs technology and for additional equipment for monitoring the
northern borders. Alaska and Alaskans are in a unique position. One
section of our northern boarder stretches from Maine through, my good
friend's home state of, Vermont all the way to Washington State. A
second section is that of my home State. As you know we are the largest
State in the Nation with an enormous border with Canada that runs over
1,538 miles. We have one of the busiest international cargo airports in
the world, which has lost a number of carriers since the September 11
attacks due to grossly inadequate staffing at our secure, sterile
customs facility. We also have several major international ports
scattered throughout Alaska including the Port of Anchorage, which
handles the most container traffic in Alaska; Dutch Harbor, which is
America's busiest commercial fishing port; and Valdez, where millions
of barrels of North Slope crude oil are sent by pipeline to the "South
48." The sections of the bill that address the Northern Border
Security do not mention Alaska specifically. I intended to offer an
amendment to insure that we are part of the definition. But as my good
friend the Senator from Vermont pointed out to me, other northern
border States are not mentioned specifically either. I understand that
it is the intent of this legislation that Alaska and all other states
that border Canada
[[Page S10587]]
are "Northern Border" States and that INS, Border Patrol, U.S.
Customs service and others should look at all of these states when
addressing security issues. I would ask the manager of this bill if my
understanding is correct?
Mr. LEAHY. Mr. President, the Senator from Alaska is correct. Alaska
is definitely part of America's Northern Border and it was the intent
of the committee and the Senate that it be part of that definition.
The unfolding facts about how the terrorists who committed the
September 11 attack were able to enter this country without difficulty
are chilling. Since the attacks many have pointed to our northern
border as vulnerable to the entry of future terrorists. This is not
surprising when a simple review of the numbers shows that the northern
border has been routinely short-changed in personnel. While the number
of border patrol agents along the southern border has increased over
the last few years to over 8,000, the number at the northern border has
remained the same as a decade ago at 300. This remains true despite the
fact that Admad Ressam, the Algerian who planned to blow up the Los
Angeles International Airport in 1999, and who has been linked to those
involved in the September 11 attacks, chose to enter the United States
at our northern border. It will remain an inviting target until we
dramatically improve our security.
The USA Act includes my proposals to provide the substantial and long
overdue assistance for our law enforcement and border control efforts
along the Northern Border. My home State of Vermont has seen huge
increases in Customs and INS activity since the signing of NAFTA. The
number of people coming through our borders has risen steeply over the
years, but our staff and our resources have not.
I proposed--and this legislation authorizes in section 402--tripling
the number of Border Patrol, INS inspectors, and Customs Service
employees in each of the States along the Northern Border. Alaska is
certainly one of those States. I was gratified when 22 Senators--
Democrats and Republicans--wrote to the President supporting such an
increase, and I am pleased that the administration agreed that this
critical law enforcement improvement should be included in the bill.
Mr. STEVENS. Mr. President, I thank the Senator from Vermont. With
this clear statement of of the legislation I will not offer an
amendment to specifically name Alaska as a Northern Border State.
alien terrorist removal court
Mr. SMITH of New Hampshire. Mr. President, it had been my intention
to offer an amendment which would strengthen provisions in the bill to
deal with known terrorist aliens. As Senator Lott well remembers, we
worked in 1996, created the Alien Terrorist Removal Court, to hear
cases against aliens who were known terrorist and to allow the Justice
Department to deport these aliens without divulging classified
information to the terrorist organization.
Mr. LOTT. I know the Senator from New Hampshire has been working a
long time on this issue. In fact, when he sponsored this legislation
back in 1995, I was a cosponsor of his bill. He has been a leader on
this issue, he passed his legislation, and the Court was created.
Mr. SMITH of New Hampshire. That is correct. As the leader knows,
there are some changes that are needed to improve the law, which is
what my amendment was going to be about.
Mr. LOTT. I understand, and I agree that the law needs to be
strengthened.
Mr. SMITH of New Hampshire. Mr. President, I would say to my
colleagues, all the tools we are giving to the Justice Department in
this bill are irrelevant if we cannot deport these terrorist who are
living in our country preparing to terrorize American citizens. Page
162 of the bill says the Attorney General shall place an alien in
removal proceedings within 7 days of catching him, or charge him with a
criminal act, or else the bill says "the Attorney General shall
release the alien." Mr. President, the problem is that most of these
terrorist have not committed criminal acts until they are ready to
attack. Therefore, in most of these cases, the only option is to deport
them.
Mr. LOTT. It is my opinion, that if we can deport known terrorist, we
should do it. We cannot let the Justice Department be barred because
the evidence was too sensitive to use in Court.
Mr. SMITH of New Hampshire. That is exactly the problem. Under
current law, the Justice Department would have to give a declassified
summary of all the secret evidence used in the deportation proceedings
to the terrorist. Now, why would we compromise our intelligence sources
and methods by revealing sensitive intelligence information to a known
terrorist? The intelligence community would never allow it, and with
good reason. But as a result, the Justice Department has never once
used the alien terrorist removal court to deport anyone.
Mr. LOTT. That is my understanding, and it is a serious problem. I am
in complete agreement with the Senator.
Mr. SMITH of New Hampshire. Mr. President, I thank the Leader. As I
said, it had been my intention to offer an amendment to resolve this
problem by eliminating the requirement for the Attorney General to give
this sensitive information to the alien terrorist before deporting him.
However, upon discussions with the Attorney General, who indicated to
me that he supports this provision, and after discussions with the
Leader, I have decided in the interest of moving this legislation to
withhold my amendment at this time, with the assurance of the Leader
and the Administration that we will work to solve this problem in
conference.
Mr. LOTT. Let me say to the Senator that he can count me as a
cosponsor of this amendment. It is an excellent amendment, it is
needed, and I commit to the Senator that I will do my best to see that
it is added in conference. I would further say to the Senator that I
have also talked about this issue with the Attorney General, and he
indicated to me that the Administration supports your amendment and
that he will also work to support it in conference when we get to that
point. So, I appreciate his withholding at this time so we can get this
bill to conference where we can work to get the Smith amendment added
to greatly improve this bill.
Mr. SMITH of New Hampshire. I thank the Leader for his strong
support, and I am pleased that the administration is also supportive. I
know how many long hours the Attorney General is putting in on this
issue, and how committed he is to winning this war on terrorism. I look
forward to passing this important provision which will be an invaluable
tool for the Attorney General and the President in this war.
deterring money laundering
Mr. SCHUMER. Mr. President, I would like to clarify with Chairman
Sarbanes my understanding of the provision in Title III, the anti-money
laundering provisions in the antiterrorism package, entitled "Section
314. Cooperative Efforts to Deter Money Laundering".
As the Chairman is well aware, Section 314(b) is intended to address
concerns about regulatory barriers that stand in the way of developing
efficient mechanisms and services that financial institutions can use
to fulfill their regulatory compliance obligations. The regulations to
be issued by the Secretary, and potentially by bank and thrift
regulators as well, could further this purpose by reconciling rules
that could be interpreted in a way that places conflicting burdens on
financial institutions.
Does that comport with the Chairman's understanding of the intent of
the provision and how that intent could best be carried out by the
regulators?
Mr. SARBANES. I thank the Senator for his question. Yes, that is also
my understanding of Section 314.
Mr. CORZINE. Mr. President, I am going to support this legislation,
and I want to commend the leadership--Senators Daschle and Lott--and
Senators Leahy and Hatch, for their efforts in developing the bill.
Clearly, there is no higher priority than combating terrorism and
protecting our national security. At the same time, I do have real
concerns about the process by which this legislation has come to the
floor, and about the implications of some provisions for fundamental
civil liberties.
There are several provisions in this legislation that make a real,
positive contribution to the fight against terrorism. Other senators
have discussed
[[Page S10588]]
some of the highlights in more depth, so let me just focus on a few.
First, this bill includes legislation approved by the Senate
Committee on Banking, Housing, and Urban Affairs, on which I sit, that
will help authorities crack down on money laundering. This is essential
if we are to deprive terrorists of resources. The bill will require
additional reporting of suspicious transactions, require identification
of the foreign owners of certain U.S. accounts, and impose other
requirements on financial institutions to give authorities a greater
ability to identify and prosecute money launderers. I also note that
the bill includes a provision I authored that calls for a study into
the possibility of expanding the legislation to include hedge funds and
other investment services that also can be used by terrorists to
launder money.
Beyond the money laundering provisions, I also am pleased that this
bill provides additional funding for the victims of terrorism. Coming
from New Jersey, where thousands of our residents have been victimized
by the tragedy at the World Trade Center, this is especially important
to me. In my view, we as a nation have a responsibility to ensure that
terrorism victims and their families are not left alone and
uncompensated. That is why I am pleased that the bill would replenish
the antiterrorism emergency reserve, replace the annual cap on the
Crime Victim Fund, authorize private contributions to the fund, and
strengthen services for victims in other ways. While this is not all
that we should be doing for victims and their families, I appreciate
the work of the leaders in focusing on their needs.
I also pleased that the bill would triple the number of Border
Patrol, Customs Service and immigration inspectors at our northern
border. This would significantly enhance security over an area that,
until now, has been seriously understaffed. The bill also authorizes
$100 million to improve INS and Customs technology and additional
equipment for monitoring the U.S.-Canada border.
In addition, I want to highlight language in this bill that would
establish two new crimes related to bioterrorism, including provisions
to prohibit certain people from possessing a listed biological agent or
toxin. There are many other things we need to do to prepare for the
threat of a biological or chemical attack, and I have introduced
related legislation, S. 1508, that would require states to develop
coordinated plans, and that would provide additional resources for
hospitals and other health care providers. The threat of bioterrorism
is real, and I would hope that our leaders will bring related
legislation to the Senate floor as soon as possible.
While I support the provisions in this bill on money laundering,
victim services, border enforcement, and bioterrorism, I do have
serious concerns about the way this bill was put together, and about
other provisions that raise serious questions about the protection of
civil liberties.
It is deeply troubling to me that we would be taking up a bill that
deals with such sensitive civil liberties matters without comprehensive
hearings, and without even consideration by the relevant committee. We
are talking about a 243-page bill that was developed behind closed
doors by a handful of people operating under enormous time pressure.
This is a bill that raises fundamental questions that go to the very
essence of our democracy, and our freedoms. It's not something that
should be done in haste, with so little opportunity for input from
outside experts, the public, and all senators.
Perhaps because the legislation was developed so quickly, and in an
environment so dominated by great public anxiety about security, there
is a real risk that we will make serious mistakes.
I am especially concerned about the provisions in this bill that
require the detention of immigrants who are not terrorists, who are not
criminals, but are merely suspected of future wrongdoing. In fact,
these provisions go further than that. Lawful permanent residents who
are charged with being deportable on terrorism grounds could be held
indefinitely even if an immigration judge determines that the terrorism
charges are false.
I understand that we need to give the government sufficient authority
to protect Americans from those who pose a real threat to public
safety. But this provision goes too far. And I hope it can be corrected
in conference.
Similarly, there are other provisions of this legislation that seem
very loosely drafted, and that could, perhaps unintentionally, lead to
infringement on important civil liberties. For example, many have
raised serious questions about provisions relating to law enforcement
surveillance of Internet and telephone use, and about other provisions
that give the government extensive new powers to conduct secret
searches. These and other provisions do not seem to have received
adequate scrutiny. I am hopeful that they can be examined more closely
in conference, and any needed improvements can be made before the
legislation is sent to the President.
I also would urge our conferees to accept a provision, like one
included in the House version of this legislation, that would set a
time limit on the application of certain provisions that pose the
greatest threats to civil liberties. In my view, that's especially
important since we have rushed this legislation through the Senate so
quickly. As I said, I am hopeful that we can identify and correct any
mistakes in conference. But we still seem to be operating on a rush
basis, and I suspect that some mistakes are inevitable. Given the
stakes involved, I think it would be better to make many of these
provisions temporary, and then revisit these issues when we have more
time to thoroughly consider all their implications.
In the end, while I do have serious concerns about certain aspects of
this legislation, I have decided to support the effort to move it to
conference. Our nation has just suffered the most horrendous act of
terrorism in our history, and we are facing serious threats of other
terrorist attacks. A vast, well-organized and well-funded terrorist
network has gone to war against our nation. And while we should not
overreact, or erode basic freedoms, we do have to defend ourselves.
We must give our law enforcement officials the tools they need to
find and destroy these terrorist networks. And this legislation should
help. But we need to continue to review and improve its provision as we
go to conference. And we will need to continue to closely review the
implementation of the legislation after it is enacted.
I yield the floor.
Ms. CANTWELL. Mr. President, I support this bill, but I do so only
with some reservations.
We are giving broad new powers to our law enforcement and
intelligence communities--without the traditional safeguards of
judicial review and congressional oversight.
I believe that many provisions of the bill, particularly those
sections dealing with electronic eavesdropping and computer trespass,
remain seriously flawed and may infringe on civil liberties.
I am voting for this bill today with the strong hope that it will be
improved in a conference with the House. As it currently stands, the
Senate bill breaks down the traditional separation of domestic criminal
matters governed by the fourth amendment right against unjustified
search and seizure--from the gathering of international intelligence
information traditionally gathered without the same concern for
constitutional rights.
I strongly believe that we should have included in this bill a sunset
provision that would give Congress the opportunity to reassess whether
these new tools are yielding the intended results in the war on terror,
and I am hopeful that the final bill will emerge with this and other
improvements.
If this bill is not improved through a conference process or other
negotiation, I reserve the right to vote against a conference report.
However, I also believe this bill contains many provisions that will
significantly advance our battle against terrorism. I thank the
Chairman for his hard work on these provisions and appreciate his
efforts particularly to strengthen security on our northern border.
Among the most important provisions in this bill is the authorization
to triple staffing across our northern border.
These increases in manpower are desperately needed. The northern
border is
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patrolled by only 300 border patrol agents in contrast to the 9,000 on
the southern border. More critically, at points of entry where suspect
persons have repeatedly tried to enter or have entered, we currently
lack sufficient staffing to allow Customs and INS inspectors and INS
agents to do their job well. We place a tremendous responsibility on
the individuals charged with deciding whom to admit and whom to turn
away.
One additional new tool this bill provides is the establishment of a
visa technology standard to help secure our border. I personally worked
to get language included in this bill that requires the State
Department and the Department of Justice to develop a shared technology
standard--so that we can be certain each individual who seeks entry
into our country on a visa--is the person he or she claims to be.
American citizenship comes with deeply valued privileges and rights.
One of the most basic of those rights is privacy. To require a
fingerprint or a digital photograph of an alien seeking to enter our
country is a reasonable and effective way to improve our ability to
keep terrorists out of this country while still welcoming a vibrant
flow of legal immigrants.
Unfortunately, aspects of this bill that impose unreasonable and
unwarranted requirements on legal immigrants, greatly expand electronic
eavesdropping, and potentially provide law enforcement easy access to
some types of email communications--remain troubling.
I would like to believe that the expansion of the ability of the
government to place wiretaps on the lines of American citizens--done in
secret with insignificant reporting or opportunity for oversight by the
Congress--will not be abused.
I would like to believe that technologies like that technologies like
Carnivore will not be used to derive content from email communications.
But I am skeptical.
Several other aspects of this bill, when taken together, also have
the potential to interfere with Americans' enjoyment of their right to
privacy without providing value in the fight against terrorists.
Those of us who feel strongly about how new powers might chip away at
traditional privacy rights will closely watch how law enforcement uses
these tools.
The events of September 11 have changed us as a country forever. We
have been attacked on our own soil. Thousands have died, thousands more
have been injured. Very simply, we must do all that we can to stop
terrorism by finding and disrupting terrorist activities here and
abroad. The challenge we face is to do this without compromising the
value that make Americans unique and have allowed us to become great:
respect for personal autonomy and the rights of the individual; and
tolerance of all regardless of race or religion.
While I will vote for this bill, I also promise to engage in vigilant
oversight of these new powers, and I urge those in the law enforcement
and intelligence communities to use these powers wisely and with great
deliberation.
Mr. EDWARDS. Mr. President, I rise in support of S. 1510, the Uniting
and Strengthening America Act.
In the aftermath of September 11, we face two difficult and delicate
tasks: to strengthen our security in order to prevent future terrorist
attacks, and at the same time, to safeguard the individual liberties
that make America a beacon of freedom to all the world.
I believe that when the President signs this anti-terrorism
legislation into law, we will have achieved those two goals as best we
now can.
The act is a far-reaching bill. I will mention just a few key aspects
of that bill.
First, the legislation brings our surveillance laws into the 21st
century. Here are two of many examples. Under current law, the FBI can
use a basic search warrant to access answering machine messages, but
the FBI needs a different kind of warrant to get to voice mail. This
law says the FBI can use a traditional warrant for both. Another
example: Under current law, a Federal court can authorize many
electronic surveillance warrants only within the court's limited
jurisdiction. If the target of the investigation is in the judge's
jurisdiction, but the subject of the warrant is technically an internet
service provider located elsewhere, the warrant is no good as to that
ISP. This bill allows the court overseeing an investigation to issue
valid warrants nationwide.
Second, the act gives law enforcement officers and the foreign
intelligence community the ability to share intelligence information
with each other in defined contexts. For example, the act says that
under specified conditions, the FBI may share wiretap and grand jury
information related to foreign- and counter-intelligence. I appreciate
concerns that this information-sharing authority could be abused. Like
Chairman Leahy, I would have preferred to see greater judicial
oversight of these data exchanges. But I also believe we simply cannot
prevail in the battle against terrorism if the right hand of our
government has no idea what the left hand is doing.
Third, the act enhances intelligence authorities under the Foreign
Intelligence Surveillance Act (FISA). When I met with FBI agents in
North Carolina shortly after September 11, they told me their number
one priority was to streamline the FISA process. We've done that. We've
said, for example, that the renewal periods of certain key FISA orders
may be longer than the initial periods. This makes sure the FBI can
focus on investigations, not duplicative court applications.
A more controversial change concerns the purpose of FISA
surveillance. Under current law, a FISA wiretap order may only enter if
the primary purpose of the surveillance is foreign intelligence
gathering. The administration initially proposed changing the "primary
purpose" requirement to a requirement of "a purpose," any foreign
intelligence purpose. At a recent Intelligence Committee hearing, I was
one of several Senators to raise constitutional questions about the
Administration's initial proposal. The last thing we want is to see
FISA investigations lost, and convictions overturned, because the
surveillance is not constitutional. S. 1510 says that FISA surveillance
requires not just "a purpose," but "a significant purpose," of
foreign intelligence gathering. That new language is a substantial
improvement that I support. In applying this "significant purpose"
requirement, the FISA court will still need to be careful to enter FISA
orders only when the requirements of the Constitution as well as the
statute are satisfied. As the Department of Justice has stated in its
letter regarding the proposed FISA change, the FISA court has "an
obligation," whatever the statutory standard, "to reject FISA
applications that do not truly qualify" as constitutional. I
anticipate continued close congressional oversight and inquiry in this
area.
A forth step taken by this legislation is to triple the number of
Border Patrol, INS inspectors, and Customs Service agents along our
4,000-mile northern border. Today there are just 300 border patrol
agents to guard those 4,000 miles. Orange cones are too often our only
defenses against illegal entries. This bill will change that.
Fifth, the bill expedites the hiring of translators by the FBI. It is
unthinkable that our law enforcement agents could have critical raw
intelligence that they simply cannot understand because they do not
know the relevant language. This statute will help to change that state
of affairs.
Finally, the bill makes the criminal law tougher on terrorists. We
make it a crime to possess a biological agent or toxin in an amount
with no reasonable, peaceful purpose, a crime to harbor a terrorist, a
crime to provide material support to terrorism. And we say that when
you commit a crime of terrorism, you can be prosecuted for that crime
for the rest of your life, with no limitations period. Statutes of
limitations guarantee what lawyers call "repose." Terrorists deserve
no repose.
As Chairman Leahy and Senator Hatch have both said, this legislation
is not perfect, and the House-Senate Conference may yet make
improvements. For example, the Conference might clarify that, as to
aliens detained as national security threats, the law will secure the
due process protections and judicial review required by the
Constitution and by the Supreme Court's recent decisions in Zadvydas v.
Davis and INS v. St. Cyr. The Conference might also sensibly include a
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sunset of the new surveillance authorities, ensuring that Congress will
reconsider this bill's provisions, which touch such cherished
liberties, in light of further experience and reflection.
The bill is not perfect, but it is a good bill, it is important for
the Nation, and I am pleased to support it.
Mr. KYL. Mr. President, I rise in strong support of the antiterrorism
bill, S. 1510. The bill would provide our nation's law enforcement with
important tools to more effectively investigate and prevent further
attacks against the people of the United States.
At the outset, in response to concerns that some have raised, I want
to make clear that we are not rushing to pass ill-conceived
legislation.
During the past two Congresses, when I chaired the Judiciary
Committee's Subcommittee on Technology and Terrorism, the Subcommittee
held 19 hearings on terrorism. I want to repeat that: 19. The witnesses
who appeared before the Subcommittee included the then-Director of the
FBI Louis Freeh and representatives of all three of the
congressionally-mandated commissions on terrorism that have issued
reports over the last two years. Additional hearings on terrorism were
held by the full Judiciary Committee and by other committees.
Many of the provisions contained in the Attorney General's proposed
legislation mirror the recommendations of one or more of the major
terrorism commissions and have already been examined by the committee
of jurisdiction. In fact, some of these provisions have already been
voted on and passed by the Senate.
Indeed, as I will discuss more fully in a minute, the language sent
forward by the Attorney General to establish nationwide trap and trace
authority was included in the Hatch-Feinstein-Kyl Amendment to the
recently passed Commerce, Justice, State Appropriations bill. Much of
the remaining language in that amendment was included in the
Counterterrorism Act of 2000, which the Senate passed last fall, after
a terrorist attack on the U.S.S. Cole killed 17 American sailors and
injured another 39. That bill was based on recommendations of the
bipartisan, congressionally-mandated National Commission on Terrorism,
known as the Bremmer Commission, which was established in 1998 in
response to the embassy bombings in Tanzania and Kenya.
One particularly important provision, which was included in the both
the CJS bill and the current bill, updates the law to keep pace with
technology. The provision on pen register and trap and trace devices 1.
Would allow judges to enter pen/trap orders with nationwide scope and
2. Would codify current caselaw that holds that pen/trap orders apply
to modern communication technologies such as e-mail and the Internet,
in addition to traditional phone lines.
Nationwide jurisdiction for a court order will help law enforcement
to quickly identify other members of a criminal organization such as a
terrorist cell. Indeed, last year Director Freeh testified before the
Terrorism Subcommittee that one of the problems law enforcement faces
is "the jurisdictional limitation of pen registers and trap-and-trace
orders issued by federal courts." [Source: Hearing before the
Subcommittee on Technology, Terrorism, and Government Information of
the Senate Committee on the Judiciary, 106th Cong, 2nd Sess. (March 28,
2000), at 31.]
He continued: "Today's electronic crimes, which occur at the speed
of light, cannot be effectively investigated with procedural devices
forged in the last millennium during the infancy of the information
technology age." [Source: Id. at 32.]
Currently, to track a communication that is purposely routed through
Internet Service Providers located in different states, law enforcement
must obtain multiple court orders. This is because, under current law,
a Federal court can order only those communications carriers within its
district to provide tracing information to law enforcement.
According to Director Freeh's testimony before the Terrorism
Subcommittee, "As a result of the fact that investigators typically
have to apply for numerous court orders to trace a single
communication, there is a needless waste of time and resources, and a
number of important investigations are either hampered or derailed
entirely in those instances where law enforcement gets to a
communications carrier after that carrier has already discarded the
necessary information." [Source: Id. at 31.]
Section 216 of the Senate bill solves this problem.
I would also like to address another important provision.
Section 802 is intended more clearly to criminalize the possession of
biological and toxin agents by those who should not possess them. This
section amends the implementing legislation for the 1972 "Convention
on the Prohibition of the Development, Production, and Stockpiling of
Bactiological, Biological, and Toxin Weapons and on their
Destruction", BWC. Article I of the BWC prohibits the development,
production, stockpiling, acquisition, or retention of Microbial or
other biological agents, or toxins, whatever their origin or method of
production, of types and in quantities that have no justification for
prophylactic, protective, or other peaceful purposes. It is not the
intent of the BWC, nor is it the intent of Section 802, to prevent the
legitimate application of biological agents or toxins for prophylactic,
protective, bona fide research, or other peaceful purposes. These
purposes include, inter alia, medical and national health activities,
and such national security activities as may include the confiscation,
securing, and/or destruction of possible illegal biological substances.
Finally, let me address briefly the concern voiced by some that we
are in danger of "trampling civil liberties." I reiterate that we are
not rushing, that we have had thorough, deliberative hearings, and that
many of the proposals have already been passed by the Senate. Nothing
in the current bill impinges on civil liberties. The bill would give
Federal agencies fighting terrorism the same tools we have given those
fighting illicit drugs, or even postal fraud. Many of the tools in the
bill are modernizations of the criminal laws, necessitated by the
advent of the Internet.
While some of these tools are extremely helpful in terrorism
investigations, it makes no sense to refuse to apply these common sense
changes to other crimes that are committed, like kidnapping, drug
dealing, and child pornography. It is unwise to limit these tools to
only terrorism offenses because often, at the outset of an
investigation of a particular person or crime, law enforcement does not
know what you are dealing with. A credit-card fraud case or a false
immigration documents case may turn out to be connected to funding or
facilitating the operations of a terrorist group. We should give law
enforcement the tools it needs to have the best chance of discovering
and disrupting these activities.
We have a responsibility to the people of this nation to ensure that
those who are charged with protecting us from future terrorist attacks
are empowered to do so. This is not a zero sum game. We can both ensure
our security and protect our liberties.
We cannot afford to lose this race against terror, and we cannot
afford to give the enemy in this war a full lap head-start. I support
this bill. I commend President Bush and General Ashcroft for submitting
a sound proposal to the Senate, and for their tremendous efforts during
the past month.
Mr. President, in addition to the all of the other provisions in this
antiterrorism legislation that will provide our law enforcement
communities with the tools to weed out and stop terrorism, I want to
express my support for the immigration provisions upon which the
administration, Senators Hatch, Kennedy, Leahy and I have reached
agreement, and which are included in this bill.
Even with the passage of these provisions, however, the United States
will continue to face overwhelming infrastructure and personnel needs
at our consular offices abroad, along both the southern and northern
border, and in our immigration offices throughout the United States. In
conjunction with increasing personnel and infrastructure, the U.S. must
deprive terrorists of the ability to present altered international
documents, and improve the dissemination of information about suspected
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terrorists to all appropriate agencies. Senator Feinstein and I, in a
hearing of the Terrorism Subcommittee of the Judiciary Committee this
Friday, will continue to assess these needs by hearing from Justice and
State Department officials.
So, our actions on immigration reform as it is relates to terrorism
must go beyond the scope of this anti-terrorism package. With that
said, this bill will certainly provide a better legal framework for
keeping foreign terrorists out of the United States, and detaining them
should they enter.
First, this antiterrorism bill clarifies that the Federal Bureau of
Investigation is authorized to share data from its "most wanted
list," and any other information contained in its national crime-
information system, with the Immigration and Naturalization Service and
the State Department. This will help the INS and State Department
identify suspected terrorists before they come to the United States,
and should they gain entry, will help track them down on our soil. It
also allows the State Department, during a U.S. criminal investigation,
to give foreign governments information on a case-by-case basis about
the issuance or refusal to issue a U.S. visa.
The bill will also clarify U.S. law prohibiting the entry of, and
requiring the removal of, individual alien terrorists. It will probably
surprise the Members of this body a great deal to know that, under
current law, a terrorist alien is not considered either inadmissible
to, or deportable from, the United States even if he or she has
"endorsed or espoused terrorist activity that undermines the efforts
of the United States to fight terrorism," or has provided "material
support to a terrorist organization." Nor is an individual deportable
for being a "representative of a terrorist organization." The anti-
terrorism bill makes it clear to U.S. officials considering whether to
allow someone to come to the country, that a person meeting any one of
these criteria is not welcome here.
In addition, the anti-terrorism package that we are debating today
further defines what is considered by the United States to be a
terrorist organization. Under current law, a terrorist organization
must be designated by the Secretary of State under Section 219 of the
Immigration and Nationality Act. This process can take several months,
and has been criticized by some experts as potentially politically
corruptible. Under this Senate anti-terrorism package, Section 219
remains in effect. A separate designation process is added, whereby an
organization can be designated by the Secretary of State or the
Attorney General, in consultation with each other, with seven days'
notice to the leadership of the House and Senate and the congressional
committees of jurisdiction. Additionally, an organization, whether or
not it is formally designated by the Secretary of State or the Attorney
General, can be considered to be terrorist if it is made up of two or
more individuals who commit or plan to commit terrorist activities.
The Senate's antiterrorism package also has provisions regarding
temporary detention. It allows for the temporary detention of aliens
who the Attorney General certifies that he has "reasonable grounds to
believe is inadmissible or deportable under the terrorism grounds."
This compromise represents a bipartisan understanding that the Attorney
General of the United States needs the flexibility to detain suspected
terrorists. Under the compromise that Members have reached, the
Attorney General must charge an alien with a deportable violation or he
must release the alien. The underlying certification, and all
collateral matters, can be reviewed by the U.S. District Court of the
District of Columbia, and the Attorney General is required to report to
Congress every six months on the use of this detention provision.
Finally, the Senate package, as a result of amendments added by
Senator Byrd, will determine whether "consular shopping"--i.e.,
someone has a visa application pending from his or her home country,
but goes to another country for adjudication--is a problem. If so, the
Secretary of State must recommend ways to remedy it. Another authorizes
$36.8 million for quick implementation of the INS foreign student
tracking system, a program that I have repeatedly urged be implemented.
As former chairman and now ranking Republican of the Judiciary
Committee's Terrorism Subcommittee, I have long suggested, and strongly
supported, many of the anti-terrorism and immigration initiatives now
being advocated by Republicans and Democrats alike. In my sadness about
the overwhelming and tragic events that took thousands of precious
lives, I am resolved to push forward on all fronts to fight against
terrorism. That means delivering justice to those who are responsible
for the lives lost on September 11, and reorganizing the institutions
of government so that the law-abiding can continue to live their lives
in freedom.
Mrs. FEINSTEIN. Mr. President, I rise in strong support of the
consensus terrorism bill now on the floor of the U.S. Senate.
The people of the United States awoke on September 12 to a whole new
world, one in which we can no longer feel safe within our borders. We
awoke to a world in which our very way of life is under attack, and we
have since resolved to fight back with every tool at our disposal.
This is an unprecedented state of affairs, and it demands
unprecedented action. We must seek out and defeat individuals and
groups who would build upon the September 11 attacks with more of their
own. We simply must give law enforcement officials the tools they need
to track, to hunt down, and to capture terrorists, both in this
country, and around the world as well. And that is what this bill would
do.
Let me just describe some of the key provisions of this legislation,
and how those provisions will make an impact, even in the current
investigation into the September 11 attacks.
First, this bill makes it easier to collect foreign intelligence
information under the Foreign Intelligence Surveillance Act, FISA.
Under current law, authorities can proceed with surveillance under FISA
only if the primary purpose of the investigation is to collect foreign
intelligence.
But in today's world things are not so simple. In many cases,
surveillance will have two key goals--the gathering of foreign
intelligence, and the gathering of evidence for a criminal prosecution.
Determining which purpose is the "primary" purpose of the
investigation can be difficult, and will only become more so as we
coordinate our intelligence and law enforcement efforts in the war
against terror.
Rather than forcing law enforcement to decide which purpose is
primary--law enforcement or foreign intelligence gathering, this bill
strikes a new balance. It will now require that a "significant"
purpose of the investigation must be foreign intelligence gathering to
proceed with surveillance under FISA.
The effect of this provision will be to make it easier for law
enforcement to obtain a FISA search or surveillance warrant for those
cases where the subject of the surveillance is both a potential source
of valuable intelligence and the potential target of a criminal
prosecution. Many of the individuals involved in supporting the
September 11 attacks may well fall into both of these categories.
This language is a negotiated compromise between those who wished the
law to stay the same, and those who wished to virtually eliminate the
foreign intelligence standard entirely.
The administration originally proposed changing "primary purpose"
to "a purpose," but when I questioned Attorney General Ashcroft at
our Judiciary Committee hearing, he agreed that "significant purpose"
would represent a good compromise.
Second, this legislation will provide multi-point authority, or so-
called "roving wiretap authority" in foreign intelligence
investigations. This provision is designed to defeat attempts to evade
law enforcement by simply switching cell phones or moving locations.
Under current law, law enforcement must get a wiretap order for each
individuals phone line. Criminals and terrorists know this, so they
often manage to defeat surveillance by simply moving locations or
exchanging countless disposable or even stolen cell phones.
This legislation will now allow the surveillance to follow the
person, wherever or however that person is communicating. So, no longer
will duplicative
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wiretap orders be necessary simply to listen to the same, single target
of an investigation. This is a powerful change to the law that does not
put innocent conversations in danger, but stops the evasion of
surveillance now possible under the law.
Third, this legislation allows nationwide service of so-called "pen
register" and "trap and trace" orders. Those orders allow law
enforcement to track incoming and outgoing phone calls, and now
Internet addressing, so that the authorities can make connections
between various criminals or terrorists.
The problem with current law is that it has not kept up with
technology. Modern communications travel through many jurisdictions
before reaching their final destinations, and current law requires
court orders from every jurisdiction through which the communication
travels.
Under this new legislation, only one court order will be necessary,
eliminating the time-consuming and burdensome requirements now placed
on law enforcement simply because technology has changed the way
communications travel from one place to the other. Law enforcement
resources should be spent in the field, not filing unnecessarily
burdensome motions in courtroom after courtroom.
I should also mention one important point about this provision. The
standard necessary to get a court-ordered pen register or trap and
trace is lower than the standard necessary to get a wiretap, so it was
very important to make sure that this legislation makes it clear that
these orders do not allow law enforcement to eavesdrop on or read the
content of communication. Only the origin and destination of the
messages will be intercepted.
This legislation also authorizes the seizure of voice-mail messages
pursuant to a probable cause warrant, which is an easier standard for
law enforcement to meet than the standard required for a wiretap.
Current law treats a voice-mail like an ongoing oral communication,
and requires law enforcement to obtain a wiretap order to seize and
listen to those saved messages. E-mails, however, receive no similar
protection. In my opinion, if law enforcement can access e-mail
communications with probable cause, the same should be the case with
voice-mails. And so it will be once this legislation passes.
This legislation will also now allow for limited sharing of grand
jury and other criminal investigation information with the intelligence
community, to assist in the prevention of terrorist acts and the
apprehension of the terrorists themselves.
Under current law, law enforcement officials involved in a grand jury
investigation cannot share information gathered in the grand jury with
the intelligence community, even if that information would prevent a
future terrorist act.
Under this legislation, grand jury and other criminal investigative
information can be shared if one, the information can is foreign
intelligence and counterintelligence information, as defined by
statute; two, the information is given to an official with a need to
know in the performance of his or her official duties; and three,
limitations on public or other unauthorized disclosure would remain in
force.
This balance makes sense, I believe strongly that grand jury
information should not be leaked to the public or disclosed haphazardly
to anyone. But at the same time, it makes perfect sense to allow our
own law enforcement officials to talk to each other about ongoing
investigations, and to coordinate their efforts to capture terrorists
wherever they may be.
This legislation also contains a heavily negotiated provision
regarding the detention of aliens suspected of links to terrorism
without charging them. Agreement was reached to one, limit to 7 days
the length of time an alien may be held before being charged with
criminal or immigration violations, two, allow the Attorney General to
delegate the certification power only to the INS Commissioner, and
three, specify that the merits of the certification is subject to
judicial review.
This legislation also contains several key provisions from a bill I
introduced last month with the chairman of the Intelligence Committee,
Senator Graham. For instance, the bill: Clarifies the role of the CIA
director as the coordinator of strategies and priorities for how the
government uses its limited surveillance resources; requires that law
enforcement officers who discover foreign intelligence information in
the course of a criminal investigation share that information with the
intelligence community; includes "international terrorist activities"
in the definition of "foreign intelligence" to clarify the
authorities of the CIA; includes a sense of Congress that the CIA
should make efforts to recruit informants in the fight against
terrorism, even if some of those informants may, as is likely the case,
not be ideal citizens; requires a report from the CIA on the
feasibility of establishing a virtual translation center for use by the
intelligence community, so that translators around the country can
assist in investigations taking place far, far away. For instance, this
center would allow a translator living in Los Angeles to assist law
enforcement in New York without even leaving California; and finally,
agreement was reached to require the Attorney General, in consultation
with the CIA Director, to provide training to federal, state and local
government officials to identify foreign intelligence information
obtained in the course of their duties.
In addition, this bill also: Triples the number of Border Patrol,
Customs Service, and INS inspectors at the northern border; authorizes
$50 million to improve INS and Customs technology for monitoring the
northern border and to add equipment on the border; lifts the statute
of limitations on terrorist acts as defined by law where those crimes
resulted in, or created a risk of, death or serious bodily injury.
These crimes include bio-terrorism, attacks against airports or
airplanes, arson or bombings of U.S. facilities, and other terrorist
acts; adds this same list of terrorist crimes certain as predicates for
RICO and money laundering; creates two new bio-terrorism crimes, the
first prohibits certain restricted persons, including nonresident
aliens from countries that support terrorism, from possessing a listed
biological agent or toxin; and the second prohibits any person from
possessing a biological agent, toxin, or delivery system of a type or
in a quantity that, under the circumstances, is not reasonably
justified by a peaceful purpose.
The Attorney General and the President of the United States have
asked this Congress to give them legislation that will assist in the
war against terrorism, and I am one who believes very strongly that we
should do so, and we should do so quickly.
This bill is a product of intense negotiations, and I believe that a
good balance has been struck here. Compromises have been reached on the
most controversial provisions, roving wiretap authority; trap and trace
of computer routing information; sharing of grand jury information; and
mandatory detention of aliens suspected of terrorism.
Although I no longer believe it to be necessary now that these
compromises have been reached, I would support a five-year sunset on
the provisions I just mentioned as a valuable check on the potential
abuse of the new powers granted in the bill.
But a two-year sunset, such as the one contained in the House bill,
is simply too short to allow law enforcement to accomplish what it
needs to do to rout terrorists from this country.
The legislation before us contains provisions that could actually
help in the current investigation into Osama bin Laden and his network
in the United States and abroad.
I urge this Senate to pass this legislation and get it to the
President for his signature. We are in a sustained war against terror,
and we have waited long enough. I
FISA AND PEN REGISTER/TRAP AND TRACE
Ms. CANTWELL. Mr. President, I would like to raise several concerns
regarding the provisions of this legislation, the USA Act of 2001, that
expand wiretapping authority under the Foreign Intelligence
Surveillance Act of 1978, and amend Federal pen register and trap and
trace authorities.
Both of these changes purport to improve communication between law
enforcement and intelligence operatives. There is a difference,
however, between facilitating the sharing of information between the
law enforcement and intelligence communities, and blurring the
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line between the missions of the two communities. Where information is
sought for the purpose of law enforcement, we must ensure that fourth
amendment protections apply. Much of the fear about the legislation is
based on legitimate concern that information gathered ostensibly for
intelligence and defense purposes could be used for law enforcement
purposes. The intelligence community does not prosecute and lock up its
targets; it uses information to intervene against foreign nationals
seeking to harm America. But the law enforcement community has a
different mission, to catch and prosecute criminals in our courts of
law. Because law enforcement acts upon U.S. citizens, it must do so
within the bounds of the Constitution. The differences in these
missions must be acknowledged, and we must be vigilant to maintain the
distinctions.
We can all agree that the events on September 11 have focused America
on the fight against terrorism, and we applaud the efforts of the
administration in the weeks since that tragic day. Clearly, there were
failures in our investigative network, and this legislation will
address some of those failures, allowing greater sharing of information
that could foil terrorists before they carry out their brutal schemes
against innocent civilians.
I appreciate Chairman Leahy's tireless efforts to facilitate our
intelligence gathering authorities while preserving our constitutional
rights. The negotiations have been intense, but these are difficult and
divisive issues. Given the time frame, Chairman Leahy's charge has not
been an easy one, but I appreciate the substantial progress he has
made.
I remain concerned that some of the legislative changes fail to
balance the increased powers to law enforcement against the need to
protect the civil liberties of Americans. With these changes to FISA,
it will be much more likely that the FBI will be able to obtain secret
FISA wiretaps on American citizens. That information may not only be
used for intelligence purposes, but also in a criminal prosecution,
without complying with the normal requirements of a title III wiretap
and the safeguards it provides to adhere to the fourth amendment. Some
have warned that this language leaves room for "fishing expeditions"
rather than properly authorized law enforcement activities. I would
hope that this is not the case.
Although the language has been improved from the administration's
original proposal and now would require that "a significant," rather
than simply "a," purpose for the wiretap must be the gathering of
foreign intelligence, the possibility remains that the primary purpose
of the wiretap would be a criminal investigation, without the
safeguards of the title III wiretap law and the protections under the
fourth amendment that those fulfill.
I would like to ask the Chairman of the Judiciary Committee whether
he interprets this language in this same way.
Mr. LEAHY. Yes, the Senator from Washington is correct. While
improved, the USA Act would make it easier for the FBI to use a FISA
wiretap to obtain information where the Government's most important
motivation for the wiretap is for use in a criminal prosecution. This
is a disturbing and dangerous change in the law. The Justice Department
concedes that "the few courts that have addressed the issue have
followed a primary purpose test", October 1, 2001 Letter from Daniel
J. Bryant, Assistant Attorney General, p. 13.
I appreciate the administration's agreement to move off its original
position of changing the law to only require the FISA surveillance to
"a" purpose of collecting foreign intelligence information. Indeed,
the Justice Department's own constitutional analysis provided to the
Committee at the request of our Members does not even attempt to
justify the original proposal, but instead presents argument for why a
change to "a significant" purpose would be constitutional.
I remain disappointed with the administration's insistence on forcing
any change on this important statutory requirement. FISA was enacted
for the express purpose of clarifying that different legal standards
apply to those gathering foreign intelligence than to those seeking
criminal evidence. This new provision will blur that distinction, and
it is indeed very problematic in my mind.
Federal courts have upheld FISA on the basis that what is reasonable
under the fourth amendment may vary when national security is at risk.
Thus, a FISA wiretap does not have to be based on probable cause to
believe a crime has been or is about to be committed, and no notice is
given unless the person is prosecuted. Further, while judges review
warrants on the merits when targets are U.S. persons, the primary
purpose for the wiretap must be the protection of our national
security. Upon satisfaction of that critical condition, the statute
authorized the use of evidence obtained under a FISA wiretap for
criminal prosecution.
Ms. CANTWELL. Mr. President, although much effort has gone into
narrowing this provision to fit within the bounds of the Constitution,
it would seem to me that this legislation may not stand up to this
test, and thus may fail judicial scrutiny. Regardless, we cannot await
court review. I believe Congress must keep watch over the use of this
provision. May I ask the Chairman, do you agree that, under these
circumstances, it is incumbent upon the committee, which has
jurisdiction over the Department of Justice, to maintain vigilant
oversight of the Department in its use of FISA authorities after
enactment of this legislation?
Mr. LEAHY. I agree with you completely, and you can rest assured that
the Judiciary Committee under my chairmanship will conduct meaningful
oversight, as we already have begun to do over the summer.
Although FISA requires oversight reporting to the Intelligence
Committees, the law makes clear that other Committees may also have
oversight jurisdiction. Section 108 of FISA, 50 U.S.C. 1808, states,
"Nothing in this title shall be deemed to limit the authority and
responsibility of the appropriate committees of each House of Congress
to obtain such information as they may need to carry out their
respective functions and duties." Section 306 of FISA, 50 U.S.C. 1826,
provides for semiannual reports from the Attorney General to the
Intelligence and Judiciary Committees on the number of applications for
physical search orders made, granted, modified, or denied, and the
number of physical searches which involved the property of United
States persons. The Judiciary Committee's responsibility will be
greater under the amendment to FISA, because of the greater authority
to use FISA for law enforcement purposes.
Ms. CANTWELL. Mr. President, similarly, I am concerned that revisions
to the laws regarding pen registers and trap and trace devices may have
fourth amendment implications. Although modified since we received the
original language from the Administration, the new language could
encourage greater use of technologies such as the FBI's "Carnivore"
to access information that is protected by the fourth amendment.
The failure to properly define the term "address" in the e-mail
context to exclude information protected by the Fourth Amendment will
haunt us for a long time. And I regret this. Although it certainly can
be said that new technologies are emerging and the definition may need
be flexible, the term "address" presently is undefined and new in the
context of our Federal criminal statutes. Because of this ambiguity, we
may see law enforcement authorities take inconsistent approaches to
filtering information pursuant to this new law. There is risk that some
will obtain information, such as "subject line" information or URL
codes, that may otherwise be protected by the fourth amendment. There
is certain to be judicial scrutiny of this provision.
Mr. LEAHY. I agree with Senator Cantwell and thank her for bringing
these concerns to the attention of this body. I share these concerns.
Ms. CANTWELL. I would like to suggest to the chairman, and I would be
happy to work closely with the Chairman on this, that the General
Accounting Office provide to the Senate Judiciary Committee every six
months a report on the use of the FISA wiretap authorities, and the
expanded pen register and trap and trace authorities, by the Federal
Bureau of Investigation or other agencies within the Department of
Justice. I would certainly not suggest compromising the security of our
[[Page S10594]]
nation with such a report, so I would be content with closed-session
hearings on the findings of such reports. But only with such oversight
can we reasonably assure our constituents that the use of these new
authorities is not impinging on our fourth amendment rights.
Mr. LEAHY. I agree with Senator Cantwell and I appreciate her efforts
to suggest restraint at the Department of Justice to avoid misusing the
new authorities we are contemplating using to address terrorism. I
share her view that the GAO should undertake this important assignment
and will work with her and other Senators to see it accomplished. We
all need to make certain that these new authorities are not abused.
Ms. CANTWELL. I thank the chairman for his diligence in working to
preserve our fundamental rights.
Mr. ENZI. Mr. President, I am proud to be a co-sponsor of S. 1510,
the "Uniting and Strengthening America Act" or "USA Act." This bill
reflects a bipartisan effort to aid law enforcement, immigration, and
the intelligence community in investigating, detaining, and
apprehending suspected terrorists. This legislation follows lengthy
committee inquiry, debate, and revision of legislation Attorney General
Ashcroft proposed a few weeks ago and which sparked national debate
over whether civil rights would be violated.
During the past few weeks, Senate leaders have been working
tirelessly with Attorney General Ashcroft in order to create a bill
that strengthens our existing laws with respect to apprehending
terrorists, but still protects the civil rights of our citizens. This
is an important mission for Congress. Everyone in America understands
the need for enforcement, immigration and the intelligence community to
have the tools necessary to find terrorists, cut-off their financial
support, and bring them to Justice.
While I am committed to routing out terrorists here and abroad, I am
equally committed to making sure the rights of innocent U.S. citizens
are not violated. This includes the privacy and property rights our
constitution affords and that make this country so great. I believe
this bipartisan bill does both. This legislation strikes a balance
between protecting our civil rights and assisting Attorney General
Ashcroft and others to do their jobs. While the Senate and House may
later debate some of the provisions in this legislation, be assured
that every member of Congress is united in this mission. We are totally
committed to passing anti-terrorism legislation and apprehending the
bin Ladens of this world.
Mr. WELLSTONE. Mr. President, this is one of the most important
pieces of legislation we will consider during this Congress. The
horrific loss of life and destruction that occurred on September 11,
the crime against humanity, changed us as a country. The Uniting and
Strengthening America Act is an opportunity to help ensure that such
terrorist attacks do not occur again. We need to improve all aspects of
our domestic security, including by enhancing our intelligence
capacities so that we can identify possible future attacks in their
planning stages and prevent them from happening. We must be vigilant
and willing to invest the resources and time required to gather the
information that we need to protect ourselves and our way of life.
I appreciate the enormous amount of time and energy that my colleague
from Vermont and others have put into this legislation. They have done
their best to balance the risk of further terrorist attacks with
possible risks to civil liberties. The bill updates and improves a
number of existing laws, it creates important new security statutes,
and it authorizes new money for programs that will bring much needed
relief to victims of terrorist attacks. I have reservations about
certain provisions of the bill as they might affect civil liberties. I
wish that it were more tightly targeted to address only actions
directly related to terrorism or suspected terrorism. And I hope that
by the time it passes as a conference report the bill will contain a
sunset provision. But I support the bill today as a step toward
conference, and as an important and needed strengthening of our
security from horrific attacks such as that of September 11.
The bill expands the Regional Information Sharing Systems Program to
promote information sharing among Federal, State and local law
enforcement agencies in their anti-terrorism efforts. State and local
law enforcement have a critical role to play in preventing and
investigating terrorism, and this bill provides them benefits
appropriate to such duty. The bill streamlines and expedites the Public
Safety Officers' Benefits application process for family members of
fire-fighters, police officers and other emergency personnel who are
killed or suffer a disabling injury in connection with a future
terrorist attack. And it raises the total amount of the Public Safety
Officers' Benefit Program payments from approximately $150,000 to
$250,000.
This bill will also make an immediate difference in the lives of
victims of terrorism and their families. It refines the Victims of
Crime Act and by doing so improves the way in which its crime fund is
managed and preserved. It replenishes the emergency reserve of the
Crime Victims Fund with up to $50 million and improves the mechanism to
replenish the fund in future years. The USA Act also increases security
on our Northern Border, including the border between Canada and my
State of Minnesota. It triples the number of Border Patrol, Customs
Service and INS inspectors at the Northern Border and authorizes $100
million to improve old equipment and provide new technology to INS and
the Customs Service at that border.
On the criminal justice side, the bill clarifies existing
"cybercrime" law to cover computers outside the United States that
affect communications in this country and changes sentencing guidelines
in some of these cases. It provides prosecutors betters tools to go
after those involved in money-laundering schemes that are linked to
terrorism, and it adds certain terrorism-related crimes as predicates
for RICO and money-laundering. It creates a new criminal statute
targeting acts of terrorism on mass transportation systems, and it
strengthens our Federal laws relating to the threat of biological
weapons. The bill will enhance the Government's ability to prosecute
suspected terrorists in possession of biological agents. It will
prohibit certain persons, particularly those from countries that
support terrorism, from possessing biological agents. And it will
prohibit any person from possessing a biological agent of a type or
quantity that is not reasonably justified by a peaceful purpose.
The bill also broadens the authority of the President to impose
sanctions on the Taliban regime. Regarding criminal penalties for those
convicted of terrorist acts, it provides a fair definition of what
constitutes "terrorism" and ensures that penalties more closely
reflect the offenses committed by terrorists. Again, I'd like to thank
my colleague from Vermont and others who worked on these penalty
provisions. The administration's initial proposal was too broad in this
area, and the current bill provides a fair alternative.
I strongly support these needed provisions. Still, I do have concerns
about the possible effect on civil liberties of the bill's measures to
enhance electronic surveillance and information sharing of criminal
justice information, while at the same time reducing judicial review of
those actions. I also hope that the bill's provisions to expand the
Government's ability to conduct secret searches, as well as searches
under the Foreign Intelligence Surveillance Act, will not be abused.
I believe we will need to monitor the use of new authorities provided
to law enforcement agents to conduct surveillance of internet
communications. The same is true of the bill's changes to laws allowing
the sharing of confidential criminal justice information with various
Federal agencies. I would prefer the requirement of judicial review
before disclosure, which is contained in the House version of this
bill. Likewise, I believe the House of Representatives' decision not to
include this bill's expansion of the Government's ability to conduct
secret, or so-called "Sneak-n-Peek," searches, was correct. I hope
the safeguards against abuse we have added in our bill--such as the
prohibition against the Government seizing any tangible property or
stored electronic information unless it makes a showing of reasonable
necessity, as well as the requirement that notice be given within a
reasonable time of the
[[Page S10595]]
execution of a sneak-n-peak warrant--will prove sufficient.
The bill broadens the Foreign Intelligence Surveillance Act, FISA, by
extending FISA surveillance authority to criminal investigations, even
when the primary purpose is not intelligence gathering. The bill limits
this ability by authorizing surveillance only if a significant purpose
of it is to gather intelligence information. I hope this new FISA
authority will be used for the purpose of investigating and preventing
terrorism or suspected terrorism, and not for other domestic purposes.
Mr. President, we have done our best in this bill to maximize our
security while minimizing the impact some of these changes may have on
our civil liberties. Nearly all of us have probably said since
September 11 that if that day's terror is allowed to undermine our
democratic principles and practices, then the terrorists will have won
a victory. We should pass this bill today. And we should also commit
ourselves to monitoring its impact on civil liberties in the coming
months and years.
I believe a sunset provision that ensures that review is essential.
The bill before us today is good, but there are provisions that are too
broad. There are parts that should be more narrowly focused on
combating terrorism. I hope these are the concerns that will be
addressed in conference. Mr. President, our challenge is to balance our
security with our liberties. While it is not perfect, I believe we are
doing that in this bill.
Mr. KOHL. Mr. President, I rise today to support S. 1510, the anti-
terrorism bill.
To more effectively fight terrorism and those who perpetrate it, we
need to improve law enforcement's intelligence gathering capability and
enhance their ability to investigate and prosecute suspected
terrorists. This measure does both. But let's also be realistic about
the act. It will not solve all of law enforcement's problems in
combating terrorism nor will it severely compromise our civil
liberties. The truth lies somewhere in between.
The strongest proponents of the legislation argue that the bill
primarily consists of long overdue updates of current laws, updates
necessary because technology advances have allowed criminals and
terrorists to stay a step, or two, ahead of law enforcement. Updates
are necessary because the inability of Federal authorities to share
information on suspected terrorists hampers criminal investigations.
Updates are necessary because the penalties and limitations periods
governing many terrorist crimes have been woefully inadequate. All of
this is true. And for these reasons, I support the bill.
But, we shouldn't be lulled into thinking that this measure will
solve our problems. Indeed, I asked the Attorney General whether the
new powers granted in this bill could have prevented the events of
September 11. He answered me honestly, saying that he could not make
that guarantee. Yet, he added that these new tools would make it less
likely that terrorism could strike in the same way again.
Tougher laws and penalties are an important part of our strategy to
combat terrorism. That plan must also include more and better agents
dedicated to gathering intelligence, an aggressive approach to
preventing attacks, and patience from all Americans. Patience is
essential because we will need to understand that we might have to
temper our freedoms slightly in an effort to guarantee them.
Critics of this legislation caution us to be wary of compromising our
liberties in an effort to make our Nation safer. They comment that
sacrificing freedom gives the terrorists a victory. Those warnings do
have merit.
Some of this bill's provisions do risk our civil liberties and ask
Americans to sacrifice some privacy. This bill grants our prosecutors a
great deal of discretion in enforcing the law and asks Americans to
have faith that this power will not be abused. Most of us would rather
not have our civil liberties depend on someone else's discretion.
That's why I believe many of this bill's provisions should lapse in
two years and then be reconsidered by Congress. The House version of
this bill reconciles the need for tough law enforcement with the
concern for our civil liberties by sunsetting some of the most
objectionable portions of the bill in two years. That is a good idea.
Two years from now, we can take stock of where we are, how this bill
has affected us, and whether the trust we show in law enforcement is
warranted. I hope that the final version of this bill will adopt such a
sensible approach.
I have never doubted that our country's law enforcement is the best
in the world. They are dedicated, creative, committed, and decent. From
local beat officers to the Director of the FBI, every one of them has a
vital role to play in combating terrorism. We believe this bill will
help them prevent terrorism when possible. It will help them catch
wrongdoers. It will cut wrongdoers off from their support networks. It
will guarantee stiff punishment for their criminal acts. It will deter
others from following in the terrorists' footsteps. It is our
responsibility to give law enforcement the tools they need in an
increasingly complex world. It is their responsibility to use them
wisely.
Ms. SNOWE. Mr. President, I rise today in support of the
antiterrorism legislation we have before us.
First, let me say I am pleased to have also worked in conjunction
with Senator Bond and Senator Conrad in supporting their legislation
entitled "The Visa Integrity and Security Act." This bill addresses
many of the concerns I have, such as the importance of information
sharing among Government law enforcement and intelligence agencies with
the State Department and tightening tracking controls on those entering
the United States on student visas, including those attending flight
schools. These are critical issues, and I commend both Senators for
their efforts.
Today, our men and women in uniform are on the frontlines in the war
against terrorism. We salute their willingness to put themselves in
harm's way in defense of freedom, and we pray for their safety and
well-being. Here at home, we are working to secure our nation, and that
is why I am pleased that we will pass this legislation in the Senate
that will take strong measures to help prevent further terrorist
attacks on American soil.
With this legislation, we will take reasonable, constitutional steps
to enhance electronic and other forms of surveillance, without
trampling on the rights of Americans. We will also institute critical
measures to increase information sharing by mandating access to the
FBI's National Crime Information Center, or NCIC, by the State
Department and INS.
In our war against terrorism, Americans stand as one behind our
President. It is equally critical that, in the all-out effort to
protect our homeland, Federal agencies be united in securing American
soil.
In that light, President Bush made exactly the right decision when he
created the Office of Homeland Security, a national imperative in the
wake of the horrific tragedies of September 11, and I commend him for
appointing my former colleague, Pennsylvania Governor Tom Ridge, as its
Director.
With a seat at the Cabinet table, Governor Ridge will literally be at
the President's side, giving him the standing that will be required to
remove jurisdictional hurdles among the 40-plus agencies he will be
responsible for coordinating. Now, we will assist in that coordination
by allowing INS and the State Department access to the information they
need to make informed decisions about who we will grant entrance into
this country.
I saw firsthand the consequences of serious inadequacies in
coordination and communication during my 12 years as ranking member of
the House Foreign Affairs International Operations Subcommittee and
Chair of the subcommittee's Senate counterpart. In fact, I recently
wrote an op-ed piece concerning my findings during that time and I
would like to submit the entire text of that piece for the Record.
In conducting oversight of Embassy security as well as visa and
consular operations, I became extensively involved with the issue of
terrorism, co-drafting antiterrorism legislation with former
Representative Dan Mica in the wake of 1983 and 1984 terrorist attacks
against the U.S. Embassy and Marine barracks in Lebanon--traveling to
Belgrade, Warsaw, and East Berlin to press government officials into
helping
[[Page S10596]]
stem the flow of money to the terrorist Abu Nidal and his
organization--and investigating entry into the United States by radical
Egyptian cleric Sheikh Omar Abdel Rahman, mastermind of the 1993 World
Trade Center bombing.
As far back as our hearings on the 1985 Inman Report, commissioned by
then-Secretary of State George Shultz in response to the attacks in
Lebanon, it was abundantly clear that improved coordination and
consolidation of information from agencies such as the FBI, CIA, DEA,
Customs, INS and the State Department would be an essential step toward
removing a vulnerability in our national security. That point was
tragically underscored by our discovery that, astoundingly, in the
period since 1987 when Sheikh Rahman was placed on the State Department
lookout list, the Sheikh entered and exited the United States five
times totally unimpeded.
But it got even worse. Even after the State Department formally
issued a certification of visa revocation, he was granted permanent
residence status by the INS. When he was finally caught on July 31,
1991, reentering the United States, he was immediately released back
into U.S. society to allow him to pursue a multi-year appeal process.
As unbelievable as that may sound, just as unfathomable is the fact
that, even after the 1993 attack on the World Trade Center, membership
in a terrorist organization in and of itself--with the exception of the
PLO--was not sufficient grounds for visa denial. Rather, the
Immigration Act of 1990 required the Government to prove that an
individual either was personally involved in a terrorist act, or
planning one.
This absurd threshold made it almost impossible to block individuals,
such as Sheikh Rahman, from entering the country legally. Legislation I
introduced in 1993 removed that bureaucratic and legal obstacle--yet it
took nearly 3 more years to enact it as part of the Anti-Terrorism and
Effective Death Penalty Act of 1996.
However, provisions from my bill were enacted in 1994 to respond to
the trail of errors we uncovered requiring modernization in the State
Department's antiquated microfiche "lookout" system to keep dangerous
aliens from entering the United States.
This system required manual searches, was difficult to use, and was
subject to error. The language I crafted required the State Department
to replace the old systems with one of two forms of state-of-the-art
computerized systems. Visa fees were even increased for non-immigrants
to pay for the upgrades.
Recognizing the need to mate these new technologies with the need for
the most comprehensive, current and reliable information, we also
attempted to address the issue of access. This was all the more
pressing because, in 1990, the Justice Department had ruled that
because the State Department was not a "law enforcement agency," it
no longer had free access to the FBI's National Crime Information
Center, NCIC.
This system, which maintains arrest and criminal information from a
wide variety of Federal, State, and local sources as well as from
Canada, was used by the State Department to deny visas. Tellingly,
after it lost access to the NCIC, the visa denial rate for past
criminal activities plunged a remarkable 45 percent--stark evidence
that we can't afford to tie the hands of America's overseas line of
defense against terrorism.
Incredibly, while intelligence is frequently exchanged, no law
requires agencies like the FBI and CIA to share information on
dangerous aliens with the State Department. To address this, my 1993
bill also designated the State Department a "law enforcement agency"
for purposes of accessing the NCIC as well as other FBI criminal
records when processing any visa application, whether immigrant or non-
immigrant.
Unfortunately, a revised provision also enacted in 1994 only provided
the State Department with free access to these FBI resources for
purposes of processing immigrant visas--dropping my requirement for
non-immigrant visas eventually used by all 19 suspected hijackers.
Also of note, we discovered later in trying to understand some of
what's gone wrong that even that limited law was sunsetted in 1997 due
to a provision added by the House-Senate conference on the Foreign
Relations Authorization Act for FY 1994-1995--a conference of which I
was not a member. Subsequently, that law was extended to 1998 in the
Commerce-Justice-State Appropriations bill for fiscal year 1998, and
then was allowed to expire. This happened despite my legislation
enacted in 1996 repealing the requirement that visa applicants be
informed of the reason for a denial--a provision that law enforcement
agencies legitimately believed could impede ongoing investigations, or
reveal sources and methods. Thus, today, information sharing remains
optional and ad hoc.
Currently, U.S. posts check the lookout database called the
"Consular Lookout and Support System--Enhanced," or CLASS-E, prior to
issuing any visa. CLASS-E contains approximately 5.7 million records,
most of which originate with U.S. Embassies and consulates abroad
through the visa application process. The INS, DEA, Department of
Justice, and other Federal agencies also contribute lookouts to the
system, however, this is voluntary.
To further fortify our front-line defenses against terrorism--to turn
back terrorists at their point of origin--information sharing should be
mandatory, not voluntary. That is why I introduced a bill that would
require that law enforcement and the intelligence community share
information with the State Department and INS for the purpose of
issuing visas and permitting entry into the United States. And while my
bill would have gone farther than the legislation before us--by
including the DEA, CIA, Customs and the Department of Defense in the
mandated information-sharing network--I am pleased that this bill we
are considering does mandate access to the NCIC by INS and the State
Department.
Clearly, the catastrophic events of September 11 have catapulted us
into a different era, and everything is forever changed. We must move
heaven and earth to remove the impediments that keep us from maximizing
our defense against terrorism. The bottom line is, if knowledge is
power, we are only as strong as the weakest link in our information
network--therefore, we must ensure that the only "turf war" will be
the one to protect American turf.
That is why we need a singular, Cabinet-level authority that can help
change the prevailing system and culture, and why we need legislation
to help them do it. Ironically, the most compelling reason for an
Office of Homeland Security is also its greatest challenge--the need to
focus on the "three C's" of coordination, communication and
cooperation so that all our resources are brought to bear in securing
our Nation.
Winston Churchill, in a 1941 radio broadcast, sent a message to
President Roosevelt saying, "Give us the tools and we will finish the
job." I have no doubt that, given the tools, the men and women of our
Embassies throughout the world will get the job done and help us build
a more secure American homeland.
Finally, once a visa is issued at the point of origin, we should be
ensuring that it's the same person who shows up at the point of entry.
The fact is, we don't know how many--if any--of the 19 terrorists
implicated in the September 11 attacks entered the United States on
visas that were actually issued to someone else.
Currently, once a visa is issued by the State Department, it then
falls to INS officials at a port-of-entry to determine whether to grant
entry. The problem is, no automated system is utilized to ensure that
the person holding the visa is actually the person who was issued the
visa. In other words, the INS official has to rely solely on the
identification documents the person seeking entry is carrying--making
that officials job that much more difficult.
There is a better way, and legislation I introduced would require the
establishment of a fingerprint-based check system to be used by State
and INS to verify that the person who received the visa is the same
person at the border crossing station trying to enter the country.
Simply put, it requires the State Department and INS to jointly
create an electronic database which stores fingerprints--and that other
agencies may use as well. When a foreign national receives a visa, a
fingerprint is taken, which then is matched against the fingerprint
taken by INS upon entry to
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the United States. This is a common sense approach that would take us
one step closer to minimizing the threat and maximizing our national
security.
The fact of the matter is, fingerprint technology--one part of the
larger category of biological factors that can be used for
identification known as biometrics--is not new. In fact, the U.S.
Government has already employed biometrics to verify identities at
military and secret facilities, at ports-of-entry, and for airport
security, among many others.
The INS has already announced it was beginning to implement the new
biometric Mexican border crossing cards as required by 1996 Illegal
Immigrations Reform and Immigrant Responsibility Act. These cards have
the individual's fingerprint encoded on them and are matched to the
fingerprint of the person possessing the card at a U.S. port-of-entry.
This surely does not sound all that much different than the
legislation I have proposed. I am pleased the bill before us at least
starts us down the road toward implementing biometric technologies by
requiring a review of the feasibility of instituting such technologies,
and I hope this can be achieved as soon as possible.
Despite areas where I might have wished to strengthen this bill even
further, this legislation is vital to our national security, and I will
be proud to support it. The war on terrorism is a war on myriad fronts.
Some of the battles will be great in scale, many will be notable by
what is not seen and by what doesn't happen--namely, that individuals
who pose a serious threat to this Nation never see these shores and
never set foot on our soil.
Many of our greatest victories will be measured by the attacks that
never happen--in battles we win before they ever have a name--in
conflicts we prevent before they ever claim one American life. I hope
we will pass and enact legislation that will help make that possible. I
thank the Chair.
Mr. KENNEDY. Mr. President, a month ago today, America was attacked
by vicious terrorists bent on doing all they can to undermine our
Nation, our freedoms, and our way of life. But they have failed. Our
country has never been more united behind the ideals that make us
strong, or more committed to protecting our security.
In recent weeks, we have sought international cooperation and
received it. We have asked our men and women in uniform to protect and
defend our Nation, and they are doing it superbly. We are equally
committed to preserving our freedoms and our democracy.
The goal of this antiterrorism legislation is to achieve greater
coordination between the law enforcement and intelligence communities,
while protecting the civil liberties of American citizens. We must give
the Secretary of State and the Attorney General the tools to stop
terrorists from entering our country, while guaranteeing America's
proud tradition of welcoming immigrants from around the world.
The terrorist attacks of September 11 make it an urgent priority to
act as soon as possible. The INS and the State Department must have the
technology and intelligence information they need to make quick and
accurate decisions on whether to admit anyone to the United States.
We must also take urgent steps to improve security at our borders
with Canada and Mexico, to keep terrorists from entering the country
illegally.
These improvements in the immigration laws can make a huge and
immediate difference. Immigration security is an indispensable part of
our national security.
As we protect our country, we must also protect the founding
principles that have made our nation great. We must respond to the
current crisis in ways that protect the basic rights and liberties of
our citizens and others residing legally in the United States.
Currently, the INS has broad authority to act against any foreign
national who supports terrorism. With respect to visitors, foreign
students, and other non-immigrants, as well as immigrants already in
this country, the Federal Government has a broad range of enforcement
tools. The INS may detain certain non-citizens if they pose a threat to
national security or are a flight risk, and they may do so on the basis
of secret evidence. The INS may also deport any alien who has engaged
in terrorist activity, or supported terrorist activity in any way. If
the INS has the resources to use its existing authority fully and
fairly, we will be far closer to ensuring our national security.
Nonetheless, loopholes may exist in our current laws, and we should
close them. In recent weeks, many of us in Congress have worked closely
with the administration to strengthen the law without creating serious
civil liberties concerns. Although we have made progress, more remains
to be done. I continue to be concerned that the Attorney General has
the authority to detain even permanent residents without adequate
cause, and with very few due process protections.
We must be cautious that new measures are not enacted in haste,
undermining current law in critical and constitutionally troubling
respects. We must avoid enacting legislation with vague and overly
broad definitions or legislation that punishes individuals exercising
constitutionally protected rights.
Consistent with these basic principles, it is essential for Congress
to strengthen the criminal code in response to the September 11
attacks. We must increase penalties for terrorists and those who
support terrorist activity. We must punish those who possess biological
weapons and commit acts of violence against mass transportation
systems. We must also ensure that victim assistance and victim
compensation programs are able to help all the victims of the September
11 attacks. In fact, the current bill makes several important reforms
to the Victim of Crimes Act to achieve that goal.
I am concerned, however, that by authorizing foreign-intelligence
searches where foreign-intelligence gathering is only "a significant
purpose"--not the sole or primary purpose--of the search, the bill may
well make the Foreign Intelligence Surveillance Act unconstitutional
under the fourth amendment.
We must also ensure that, in acting to expand the powers of law
enforcement to obtain student educational records for the investigation
and prosecution of terrorism, we adequately safeguard the interests of
innocent students. We should not permit schools and colleges to
transfer student records to law enforcement agencies indiscriminately.
We have worked closely with the administration to develop measures that
strike a balance between the legitimate interests of law enforcement
and the privacy of students.
In the wake of the September 11 attacks, we have also seen a
disturbing increase in hate-motivated violence directed at Arab
Americans and Muslim Americans. The Department of Justice is currently
investigating over 90 such incidents, including several murders.
We need to do more to combat the acts of hate that cause many Arab
and Muslim Americans to live in fear. Under current law, the Department
of Justice cannot prosecute such cases as hate crimes unless it can
prove that the victim was engaged in one of six "federally protected
activities"--such as voting or attending a public university--when the
crime occurred. This requirement is an unwise and unnecessary
constraint on effective law enforcement and may hamper the Department's
ability to prosecute some of the cases it is now investigating.
The bipartisan hate crimes bill passed by the Senate last year and
approved again by the Judiciary Committee in July would remove the
"federally protected activity" requirement from the law--making it
easier for the Justice Department to prosecute hate crimes--while still
ensuring that the Federal Government is only involved when necessary
and appropriate.
Congress and the President must send a strong and unequivocal message
to the American people that hate-motivated violence in any form will
not be tolerated in our nation.
There are provisions in the Uniting and Strengthening America Act
that do not strike the correct balance between law enforcement
authority and civil liberties protection. However, I am confident that
working with the House of Representatives and the administration, we
can enact a final bill that meets these important concerns.
We can send the President a tough, comprehensive, and balanced anti-
terrorism bill. The important work we do in the coming days will
strengthen
[[Page S10598]]
America, and make America proud of its ideals as well.
Mr. KERRY. Mr. President, I am very pleased to have the opportunity
to speak for a few minutes about the Uniting and Strengthening America,
USA, Act that is before the Senate today. This legislation reflects the
hard work of the Senate Banking Committee and the Senate Judiciary
Committee, and I want to thank them for their commitment to ensuring
that Congress address this legislation as quickly as possible and for
paying great attention to the civil rights and liberties of the
American people.
Right now our Nation is strongly united. We are bound together by,
among other things, a desire to see justice brought to those who
planned the terrorist attacks and those who aided and abetted the
terrorists. And Americans are united by our desire to prevent future
terrorist attacks. At this time, more so than at any time in the past
40 years, the American people are standing firmly behind the Federal
Government and they trust government to do the right thing. The
American people support the idea that we must provide the FBI and the
Department of Justice will the tools necessary to punish the
perpetrators of the terrorist attacks and to prevent future attacks.
But as much as the American people seek a just resolution to the acts
of terror, they are adamant about protecting their rights and
liberties. We have heard it time and again since September 11: our
Nation must be secure, but must not become so at the expense of our
freedoms, our rights, and our liberties. We must not let the American
people down.
I want to thank Senator Leahy for his leadership on this legislation
and his concern with important Constitutional principles, such as due
process and unreasonable search and seizure. At Senator Leahy's urging,
the administration's anti-terrorism proposal was carefully and closely
analyzed and Senator Leahy did not yield to the political pressures
that threatened to push this legislation through the Congress without
its careful consideration. I believe that the bill before the Senate is
vastly improved from the proposal that the administration sent up, and
I appreciate that important changes were made.
Though I am grateful that important changes have been made to the
Senate bill, I am still troubled by certain provisions in the
legislation which fail to strike the proper balance between the need
for security and the need for civil liberties. Moving an anti-terrorism
bill through the Congress in a timely fashion is critically important,
particularly in light of the ongoing air strikes in Afghanistan. We all
know that a real threat exists for future terrorist attacks in this
country and passing legislation that helps the Federal Government
prevent those attacks is crucial. I support the process, I support
moving this legislation forward, and I will vote for it. But I also
believe that the bill that passed the House better balances our civil
liberties and the Federal Government's need for greater surveillance
powers, and I am hopeful that the bill that emerges from the conference
committee retains some of these provisions. I am disturbed by comments
made yesterday by the administration in which swift consideration by
both houses of Congress of the Senate bill was urged. This legislation
deserves the full measure of our attention and should not be hastily
dispensed with when the threat to our most cherished civil liberties is
so great.
The wide-ranging legislation before us would enhance domestic
surveillance powers, stiffen penalties for terrorism, increase the
penalties for money-laundering, and make it easier for law enforcement
and intelligence agencies to share information. There was broad
agreement on some elements of the administration's anti-terrorism
package, such as the need to update our anti-terrorism laws to take
account of new technologies--such as cell phones--and to ensure that
counter-terrorism investigators wield the same powers that apply to
drug trafficking and organized crime. But agreement was more difficult
to reach on other issues, like detaining foreign nationals, and I am
pleased that we are in a position to move forward on the legislation.
I am also pleased that this package includes a bill, which I
sponsored, that will provide the tools the U.S. needs to crack down on
international money laundering havens and protect the integrity of the
U.S. financial system from the influx of tainted money from abroad.
This legislation was part of a package of anti-money laundering
provisions that unanimously passed the Senate Banking Committee last
week.
Today, the global volume of laundered money is estimated to be 2 to 5
percent of global Gross Domestic Product, between $600 billion and $1.5
trillion. The effects of money laundering extend far beyond the
parameters of law enforcement, creating international political issues
and generating domestic political crises.
It is becoming more and more apparent that Osama bin Laden's
terrorist network, known as al Qaida, provided assistance to the
hijackers who attacked the World Trade Center and the Pentagon with
funding that was transported from the Middle East to the United States
through the global financial system. Al-Qaida has, for years, developed
a worldwide terrorist network by taking advantage of an open system of
international financial transactions.
The United States has declared a war on terrorism. This new war is
going to be unlike anything that we have ever engaged in previously. If
we are to lead the world in the fight against terror, we must insure
that our own laws are worthy of the difficult task ahead.
The International Counter-Money Laundering and Foreign Anti-
corruption Act of 2001, which I sponsored and which has been included
in this legislation, will stop the flow of assets through the
international financial system that have been used by bin Laden, the al
Qaeda terrorist network and other terrorist groups.
The United States has the largest and most accessible economic
marketplace in the world. Foreign financial institutions and
jurisdictions must have unfettered access to markets to effectively
work within the international economic system. The goal of this
legislation is to give the Treasury Secretary, in conjunction with our
allies in the European Union and the Financial Action Task Force, the
authority to leverage the power of our markets to force countries or
financial institutions with lax money laundering laws or standards to
reform them. If they refuse, the Secretary will have the authority to
deny foreign financial institutions or jurisdictions access to the
United States marketplace. This will help stop international criminals
from laundering the proceeds of their crimes into the United States
financial system or using the proceeds to commit terrorist acts.
Specifically, the bill will give the Secretary of the Treasury--
acting in consultation with other senior government officials--the
authority to designate a specific foreign jurisdiction, foreign
financial institution, or class of international transactions as being
of "primary money laundering concern." Then, on a case-by-case basis,
the Secretary will have the option to use a series of new tools to
combat the specific type of foreign money laundering threat we face. In
some cases, the Secretary will have the option to require banks to
pierce the veil of secrecy behind which foreign criminals hide. In
other cases, the Secretary will have the option to require the
identification of those using a foreign bank's correspondent or
payable-through accounts. If these transparency provisions were deemed
to be inadequate to address the specific problem identified, the
Secretary will have the option to restrict or prohibit U.S. banks from
continuing correspondent or payable-through banking relationships with
money laundering havens and rogue foreign banks. Through these steps,
the Secretary will help prevent laundered money from slipping
undetected into the U.S. financial system and, as a result, increase
the pressure on foreign money laundering havens to bring their laws and
practices into line with international anti-money laundering standards.
The bill provides for actions that will be graduated, discretionary,
and targeted, in order to focus actions on international transactions
involving criminal proceeds, while allowing legitimate international
commerce to continue to flow unimpeded.
[[Page S10599]]
It provides a clear warning to those who have assisted or unwittingly
assisted those involved in the al Qaeda network or other terrorist
organizations in laundering money. The United States will take whatever
actions are necessary, including denying foreign banks and
jurisdictions access to the United States economy, in order to stop
terrorists and international criminal networks from continuing to
launder money through the international financial system.
Passage of this legislation will make it much more difficult for new
terrorist organizations to develop. During the 1980s, as Chairman of
the Senate Permanent Subcommittee on Investigations, I began an
investigation of the Bank of Credit and Commerce International (BCCI),
and uncovered a complex money laundering scheme involving billions of
dollars. Fortunately, BCCI was forced to close and we were able to
bring many of those involved in to justice. However, as we have learned
since the closing of BCCI, Osama bin Laden had a number of accounts at
BCCI and we had dealt him a very serious economic blow. So as we
consider this bill as a response to recent attacks, we must not lose
sight of the potential this legislation will have to stop the
development of terrorist organizations in the future.
With the support of the United States and the European Union, the
Organization of Economic Cooperation and Development has begun a
crackdown on tax havens by targeting 36 jurisdictions which it said
participate in unfair tax competition and undermine other nations' tax
bases. The OECD approach does not punish countries just for having low
tax rates, instead, it looks for tax systems that have a lack of
transparency, a lack of effective exchange of information and those
countries that have different tax rules for foreign customers than for
its own citizens. Countries with these types of tax systems assist
terrorists and international criminal organizations looking to hide
money that was derived from the sale of drugs, weapons and other
criminal enterprises that have already been laundered in the
international financial system.
Mr. President, earlier this evening my colleague Senator Feingold
offered an amendment to the section of the USA Act that deals with the
interception of computer trespass communications. This amendment, at
its core, was intended to prevent law enforcement from abusing their
authority to monitor computer activity. The Senator from Wisconsin's
amendment would have limited the amount of time that law enforcement
could monitor suspicious activity without a court order to 96 hours,
after which time investigators would have to obtain a warrant for
continued surveillance. I support the intent of this amendment, and
regret that I felt compelled vote to table the amendment. I voted to
table the amendment for two reasons: First, I was concerned that the
amendment was overly restrictive because it prevented law enforcement
from investigations unrelated to the computer trespass. My concern is
that law enforcement authorities would, for example, be able to monitor
activity which permitted a computer hacker to establish a "dead drop"
zone for terrorists to post messages, but would not be able to monitor
the content of those messages.
I also voted to table Senator Feingold's amendment because I strongly
believe that we must move forward with this anti-terrorism legislation.
Just today the FBI issued a statement warning of terrorist attacks and
put law enforcement on the highest alert. I believe these serious
threats to our security justify our this legislation swiftly. But I
sincerely hope that an acceptable compromise can be reached--on this
and on other issues--in the final legislation.
This legislation is a crucial step toward limiting the scourge of
money laundering and to stop the development of international criminal
organizations. It is my hope that the Congress will be able to develop
anti-terrorism legislation that will provide needed protections of our
citizens without eliminating any of our cherished individual liberties.
Ms. SNOWE. Mr. President, in the war against terrorism, Americans
stand as one behind our President. Now, in the all-out effort to
protect our homeland, Federal agencies must be united in securing
American soil.
In that light, President Bush made exactly the right decision when he
created the Office of Homeland Security--a national imperative in the
wake of the horrific tragedies of September 11--and I commend him for
appointing my former colleague, Pennsylvania Governor Tom Ridge, as its
director. With a seat at the Cabinet table, Governor Ridge will
literally be at the President's side, giving him the standing that will
be required to remove jurisdictional hurdles among the forty-plus
agencies he will be responsible for coordinating.
I saw firsthand the consequences of serious inadequacies in
coordination and communication during my twelve years as ranking member
of the House Foreign Affairs International Operations Subcommittee and
Chair of the subcommittee's Senate counterpart. In conducting oversight
of embassy security as well as visa and consular operations, I became
extensively involved with the issue of terrorism, co-drafting anti-
terrorism legislation with former Representative Dan Mica, Florida, in
the wake of 1983 and 1984 terrorist attacks against the U.S. embassy
and Marine barracks in Lebanon; traveling to Belgrade, Warsaw, and East
Berlin to press government officials into helping stem the flow of
money to the terrorist Abu Nidal and his organization; and
investigating entry into the United States by radical Egyptian cleric
Sheikh Omar Abdel Rahman, mastermind of the World Trade Center bombing
in 1993.
As far back as our hearings on the 1985 Inman Report, commissioned in
response to the attacks in Lebanon, it was abundantly clear that
improved coordination and consolidation of information from agencies
such as the FBI, CIA, DEA, Customs, INS and the State Department would
be an essential step toward removing a vulnerability in our national
security. That point was tragically underscored by our discovery that,
astoundingly, in the period since 1987 when Sheikh Rahman was placed on
the State Department lookout list, the Sheikh entered and exited the
U.S. five times totally unimpeded. Even after the State Department
formally issued a certification of visa revocation, he was granted
permanent residence status by the INS. When he was finally caught on
July 31, 1991, reentering the United States, he was immediately
released back into U.S. society to allow him to pursue a multi-year
appeal process.
Just as unbelievable is the fact that, even after the 1993 attack on
the World Trade Center, membership in a terrorist organization in and
of itself--with the exception of the PLO--was not sufficient grounds
for visa denial. Rather, the Immigration Act of 1990 required the
Government to prove that an individual either was personally involved
in a terrorist act, or planning one. This absurd threshold made it
almost impossible to block individuals, such as Sheikh Rahman, from
entering the country legally. Legislation I introduced in 1993 removed
that bureaucratic and legal obstacle--yet it took nearly 3 more years
to enact it as part of the Anti-Terrorism and Effective Death Penalty
Act of 1996.
Further, to respond to the trail of errors we uncovered, provisions
from my bill were enacted in 1994 requiring modernization in the State
Department's antiquated microfiche "lookout" system to keep dangerous
aliens from entering the United States. This system required manual
searches, was difficult to use, and was subject to error. The language
I crafted required State to replace the old systems with one of two
forms of state-of-the-art computerized systems. Visa fees were even
increased for non-immigrants to pay for the upgrades.
Recognizing the need to mate these new technologies with the need for
the most comprehensive, current and reliable information, we also
attempted to address the issue of access. This was all the more
pressing because, in 1990, the Justice Department had ruled that
because the State Department was not a "law enforcement agency", it
no longer had free access to the FBI's National Crime Information
Center. This system, which maintains arrest and criminal information
from a wide variety of federal, state, and local sources as well as
from Canada, is used by the State Department to deny visas. Tellingly,
[[Page S10600]]
after it lost access to the NCIC, the visa denial rate for past
criminal activities plunged a remarkable 45 percent--stark evidence
that we can't afford to tie the hands of America's overseas line of
defense against terrorism.
Incredibly, while intelligence is frequently exchanged, no law
requires agencies like the FBI and CIA to share information on
dangerous aliens with the State Department. To address this, my 1993
bill also designated the State Department a "law enforcement agency"
for purposes of accessing the NCIC as well as other FBI criminal
records when processing any visa application, whether immigrant or non-
immigrant.
Unfortunately, a revised provision also enacted in 1994 only provided
the State Department with free access to these FBI resources for
purposes of processing immigrant visas--dropping my requirement for
non-immigrant visas eventually used by at least 16 of the 19 suspected
hijackers. Even that limited law was allowed to expire, despite my
legislation enacted in 1996 repealing the requirement that visa
applicants be informed of the reason for a denial--a provision that law
enforcement agencies legitimately believed could impede ongoing
investigations, or reveal sources and methods. Thus, today, information
sharing remains optional and ad hoc.
To further fortify our front-line defenses against terrorism, I also
propose to assist our embassies in turning-back terrorists at their
point of origin by establishing Terrorist Lookout Committees, comprised
of the head of the political section of each embassy and senior
representatives of all U.S. law enforcement and intelligence agencies.
The committees would be required to meet on a monthly basis to review
and submit names to the State Department for inclusion in the visa
lookout system.
Clearly, the catastrophic events of September 11 have catapulted us
into a different era, and everything is forever changed. We must move
heaven and earth to remove the impediments that keep us from maximizing
our defense against terrorism, and that is why we need a singular,
Cabinet-level authority that can change the prevailing system and
culture. Ironically, the most compelling reason for an Office of
Homeland Security is also its greatest challenge: the need to focus on
the "three C's" of coordination, communication and cooperation so
that all our resources are brought to bear in securing our nation. The
bottom line is, if knowledge is power, we are only as strong as the
weakest link in our information network therefore, we must ensure that
the only "turf war" will be the one to protect American turf. In our
fight against terrorism, we can do no less.
Mr. BYRD. Mr. President, in the aftermath of the terrorist attacks on
the World Trade Center and the Pentagon, the attention of the American
people has turned to the security of our national border system and how
these attackers were able to exploit that system to plot these
dastardly acts.
The September 11 attacks have highlighted numerous loopholes in our
immigration laws that have allowed terrorists to enter the United Stats
posing as students and tourists, and, in some cases, by simply walking
across an unpatrolled border. In reviewing our counter-terrorism
efforts within our intelligence community, it is also appropriate that
we look at the numerous immigration loopholes these terrorists were
able to slip through.
There are currently between 7 million and 13 million illegal aliens
living in the United States. Six out of 10 of these aliens crossed a
U.S. border illegally, and therefore were not subject to background
checks by the INS or the State Department to determine if they had a
terrorist or criminal history. In fact, exit/entry records are so
incomplete that the Immigration and Naturalization Service, INS, has no
record of 6 of the 19 suspected hijackers entering the United States.
Of the roughly 10,000 INS agents guarding our borders, only 3 percent
are stationed on our northern border with Canada. That's 334 agents
protecting a 4,000 mile border, or one agent for every 12 miles.
According to media reports, a number of the September 11 terrorists
crossed this border to enter the United States.
Of those foreign nationals who have legally entered the United
States, more than a half-a-million of them are registered as
international students at 15,000 universities, colleges, and vocational
schools across the United States. These are nuclear engineering
scholars, biochemistry students, and even pilot trainees who have
access to dangerous technology, training, and information.
The Congress passed legislation in 1996 requiring the INS to create a
database for tracking these students. The purpose was to more
efficiently monitor the immigration/visa status and whereabouts of
students from abroad. After 5 years, there is still no system in place
to monitor these 500,000 students. The current pilot program operating
at 21 schools is not expected to be fully operational for five more
years, and even that date could slip.
Without a monitoring system in place to audit schools that sponsor
these foreign students, there is nothing to prevent an alien from
entering the United States on a student visa and then just
disappearing. Consequently, one of the September 11 hijackers was able
to enter the United States on a student visa, dropped out, and remained
illegally thereafter.
Abuses of the visa system can also be found in the application
process overseas at our U.S. consulates. Foreign nationals must apply
for a visa at a U.S. consulate abroad and go through a series of
security checks before they can enter the United States. Some media
reports have raised the issue of consulate shopping, that is, foreign
nationals choosing to apply at a U.S. consulate that they believe is
most likely to grant them a visa. The "New York Times" reported in
September that Chinese nationals applying for visas at a U.S. consulate
in Beijing compare their experiences over the Internet--and even post
tips on how to act and what to say, to boost their chances of receiving
a visa.
Such an article raises the question of whether a terrorist could
travel from country to country in hopes of finding a U.S. consulate
which would be less familiar with his background and more likely to
award him a visa. One terrorist who was involved in the 1993 World
Trade Center bombing was denied a visa at the U.S. consulate in Egypt,
only to be awarded a visa by the U.S. consulate in Sudan.
And these are loopholes that exist only for those terrorists who
would risk a background check by seeking a visa at a U.S. consulate.
The United States allows 29 countries to participate in a visa-waiver
program, which effectively allows the citizens of many European
countries to bypass the initial screening process at a U.S. consulate
abroad by waiving the visa requirement. The Inspectors General for both
the State and Justice Departments have raised the possibility that a
foreign national could steal and counterfeit a visa-free passport to
bypass the visa background check altogether.
The October 8 Wall Street Journal reported that some 1,067 visa-free
passports have been stolen in recent months, presumably to be used for
entry into the United States. In fact, one of the terrorists who
plotted the bombing of the 1993 World Trade Center bombing was caught
trying to slip through this loophole in 1992 when he tried to enter the
United States using a visa-free Swedish passport.
These are just some of the loopholes that terrorists are trying to
exploit. To its credit, the Senate Judiciary Committee recognizes this
fact.
The legislation drafted by the committee would triple the number of
INS agents on our northern border. This is a worthwhile investment, and
one that should be made. However, the security of our borders depends
on more than just INS agents. The first line of defense against
terrorists are our U.S. consulates abroad.
We must address the loopholes in the visa-waiver program that would
allow a potential terrorist to enter the United States on a stolen
passport. We must prevent consulate shopping. And, we must fully
implement a system that can monitor foreign students.
The State and Justice Departments confirm that these are real
security threats that must be addressed if we are to protect our
borders from terrorists.
I have offered three amendments to address these concerns, which were
accepted by the Judiciary Committee chairman and ranking member into
the manager's package.
[[Page S10601]]
My first amendment would authorize the necessary funding so that the
Justice Department could immediately put into place a tracking system
that would require every university, college, and vocational school to
submit a name, an address, an enrollment status, and disciplinary
action taken on each of the international students that these
educational institutions sponsor. Such a database would be invaluable
to law enforcement officials who may need to identify and locate a
potential terrorist immediately.
My second amendment would tighten the visa-waiver program by
requiring that any country that participates in that program issue to
its citizens within 2 years machine-readable passports that U.S.
officials could scan into a "look out" system. This moves forward the
original statutory deadline Congress agreed to last year by 4 years.
This amendment would also require the State Department to regularly
audit the passports of these visa-free countries to ensure that
countries that participate in this program have implemented sufficient
safety precautions to prevent the counterfeiting and the theft of their
passports.
My third amendment would require the State Department to review how
it issues its visas to determine if consulate shopping is a problem,
and then require the Secretary of State to take the necessary steps to
correct the problem. The State Department has the legislative authority
it needs to fix this problem. It is now imperative that it use that
authority.
My amendments are important steps toward closing down the loopholes
in our immigration laws, and I look forward to working with my
colleagues so that we may continue to tighten the security of national
borders.
Mr. HATCH. Mr. President, three weeks ago, the President of the
United States--with the undivided support of this Congress and the
American people--announced a war on terrorism. In that address, he
asked Congress to provide our law enforcement community with the tools
that they need to wage that war effectively.
After several weeks of negotiations with the Chairman and the
Administration, I am pleased we have come to the point where we can
pass a bipartisan, measured bill that does just that.
Mr. President, each of us has, in different ways, had our lives
touched by the awful events of September 11th. Each of us has, in the
days since the attack, been shocked and appalled by the terrible images
of destruction that have reached us, by television, by newspaper--and
in many cases by our own eyes--from the sites of the attacks in
Pennsylvania, at the World Trade Center, and at the Pentagon.
Paradoxically, each of us has also been uplifted by the stories of
heroism and self-sacrifice that have emerged from around the country in
the wake of these terrible events.
As the President made clear in his address to the nation, we did not
seek this war. This war was thrust upon us--thrust upon us by an
unprovoked attack upon our civilian population in the very midst of our
greatest cities.
Just one month ago, we could not have contemplated that today,
October 11th, 2001, we would be at war. It is true that, for years,
some of us in this Congress, and around the country, have warned that
there were powerful, well-financed individuals located throughout the
world who were dedicated to the destruction of our way of life. But,
few of us could predict the horrific methods that these men would
employ in an effort to destroy us and our democratic institutions.
On September 11th, all that changed.
In the last few weeks, we have all come to acknowledge that we live
in a different and more dangerous world than the world we thought we
knew when we woke up on the morning of September 11th . . .
. . . A different world--not only because thousands of our countrymen
are dead as a result of the September 11th attacks . . .
. . . A different world--not only because many of our neighbors now
hesitate to get on an airplane, or ride in an elevator, or engage in
any one of a number of activities that we took for granted before the
attacks . . .
. . . But a different world, also, because we must acknowledge that
there remains an ongoing and serious threat to our way of life and, in
fact, to our health and well-being as a society.
As has been reported in the national media, the investigation into
the September 11th attacks has revealed there are terrorist cells that
continue to operate actively among us. It is a chilling thought, but it
is true.
The war to which we have collectively committed is a war unlike any
war in the history of this country. It is different because a
substantial part of this war must be fought on our own soil. This is
not a circumstance of our choosing. The enemy has brought the war to
us.
But we must not flinch from acknowledging the fact that, because this
is a different kind of war, it is a war that will require different
kinds of weapons, and different kinds of tactics.
The Department of Justice, and its investigatory components including
the FBI, the INS, and the Border Patrol, will continue to have the
principal responsibility for identifying and eradicating terrorist
activity within our national borders. Our intelligence community must
have access to critical information available to our law enforcement
community.
Over the last several weeks, the Attorney General has made clear to
us, in no uncertain terms, that he does not currently have adequate
weapons to fight this war. Weeks ago, the Administration sent to
Congress a legislative proposal that would give the Department of
Justice and others in law enforcement the tools they need to be
effective in tracking down and eliminating terrorist activity in this
country.
Over the last several weeks, Senator Leahy, other members of the
Judiciary Committee, and I have undertaken a painstaking review of the
anti-terrorism proposal submitted by the Administration. There have
been several hearings on this legislation in the Senate, and many
briefings by experts and advocates.
The legislation that we are about to vote upon is a product of
intense bipartisan negotiations. It is a proposal I am proud to
cosponsor with my other colleagues in the Senate and particularly the
distinguished Chairman of the Judiciary Committee, Senator Leahy.
I would like to congratulate Senator Leahy, in particular, for his
thoroughness in reviewing this legislation and his many thoughtful
comments and suggestions in our joint effort to ensure that the
proposals adequately protect the constitutional liberties of all
Americans.
Now, after weeks of fine-tuning, we have reached a final product that
accommodates the concerns of each of the Senators who has examined this
bill. The bipartisan bill that we vote on today respects the
constitutional liberties of the American people and, at the same time,
does what people around America have been calling upon us in Congress
to do--that is, give our law enforcement community the tools they need
to keep us safe in our homes, in our travels, and in our places of
business.
I would like to make a few comments regarding the process for this
legislation. Although we have considered this in a more expedited
manner than other legislation, my colleagues can be assured that this
bill has received thorough consideration. First, the fact is that the
bulk of these proposals have been requested by the Department of
Justice for years, and have languished in Congress for years because we
have been unable to muster the collective political will to enact them
into law.
No one can say whether these tools could have prevented the attacks
of September 11th. But, as the Attorney General has said, it is certain
that without these tools, we did not stop the vicious acts of last
month. I say to my colleagues, Mr. President, that if these tools could
help us now to track down the perpetrators--if they will help us in our
continued pursuit of terrorist activities within our national borders--
then we should not hesitate any further to pass these reforms into law.
As long as these reforms are consistent with our Constitution--and they
are--it is difficult to see why anyone would oppose their passage.
Furthermore, I would like to clearly dispel the myth that the reforms
in this legislation somehow abridge the Constitutional freedoms enjoyed
by law-abiding American citizens. Some press reports have portrayed
this issue
[[Page S10602]]
as a choice between individual liberties on the one hand, and on the
other hand, enhanced powers for our law enforcement institutions. This
is a false dichotomy. We should all take comfort that the reforms in
this bill are primarily directed at allowing law enforcement agents to
work smarter and more efficiently--in no case do they curtail the
precious civil liberties protected by our Constitution. I want to
assure my colleagues that we worked very hard over the past several
weeks to ensure that this legislation upholds all of the constitutional
freedoms our citizens cherish. It does.
I would like to take a minute to explain briefly a few of the most
important provisions of this critical legislation.
First, the legislation encourages information-sharing between various
arms of the federal government. I believe most of our citizens would be
shocked to learn that, even if certain government agents had prior
knowledge of the September 11th attacks, under many circumstances they
would have been prohibited by law from sharing that information with
the appropriate intelligence or national security authorities.
This legislation makes sure that, in the future, such information
flows freely within the Federal government, so tat it will be received
by those responsible for protecting against terrorist attacks.
By making these reforms, we are rejecting the outdated Cold War
paradigm that has prevented cooperation between our intelligence
community and our law enforcement agents. Current law does not
adequately allow for such cooperation, artificially hampering our
government's ability to identify and prevent acts of terrorism against
our citizens.
In this new war, Mr. President, terrorists are a hybrid between
domestic criminals and international agents. We must lower the barriers
that discourage our law enforcement and intelligence agencies from
working together to stop these terrorists. These hybrid criminals call
for new, hybrid tools.
Second, this bill updates the laws relating to electronic
surveillance. Electronic surveillance, conducted under the supervision
of a federal judge, is one of the most powerful tools at the disposal
of our law enforcement community. It is simply a disgrace that we have
not acted to modernize the laws currently on the books which govern
such surveillance, laws that were enacted before the fax machine came
into common usage, and well before the advent of cellular telephones,
e-mail, and instant messaging. The Department of Justice has asked us
for years to update these laws to reflect the new technologies, but
there has always been a call to go slow, to seek more information, to
order further studies.
This is no hypothetical problem. We now know that e-mail, cellular
telephones, and the Internet have been principal tools used by the
terrorists to coordinate their atrocious activities. We need to pursue
all solid investigatory leads that exist right now that our law
enforcement agents would be unable to pursue because they must continue
to work within these outdated laws. It is high time that we update our
laws so that our law enforcement agencies can deal with the world as it
is, rather than the world as it existed 20 years ago.
A good example of the way we are handicapping our law enforcement
agencies relates to devices called "pen registers." Pen registers may
be employed by the FBI, after obtaining a court order, to determine
what telephone numbers are being dialed from a particular telephone.
These devices are essential investigatory tools, which allow law
enforcement agents to determine who is speaking to whom, within a
criminal conspiracy.
The Supreme Court has held, in Smith v. Maryland, that the
information obtained by pen register devices is not information that is
subject to ANY constitutional protection. Unlike the content of your
telephone conversation once your call is connected, the numbers you
dial into your telephone are not private. Because you have no
reasonable expectation that such numbers will be kept private, they are
not protected under the Constitution. The Smith holding was cited with
approval by the Supreme Court just earlier this year.
The legislation under consideration today would make clear what the
federal courts have already ruled--that federal judges may grant pen
register authority to the FBI to cover, not just telephones, but other
more modern modes of communication such as e-mail or instant messaging.
Let me make clear that the bill does not allow law enforcement to
receive the content of the communication, but they can receive the
addressing information to identify the computer or computers a suspect
is using to further his criminal activity.
Importantly, reform of the pen register law does not allow--as has
sometimes been misreported in the press--for law enforcement agents to
view the content of any e-mail messages--not even the subject line of
e-mails. In addition, this legislation we are about to vote upon makes
it explicit that content can not be collected through such pen register
orders.
This legislation also allows judges to enter pen register orders with
nationwide scope. Nationwide jurisdiction for pen register orders makes
common sense. It helps law enforcement agents efficiently identify
communications facilities throughout the country, which greatly
enhances the ability of law enforcement to identify quickly other
members of a criminal organization, such as a terrorist cell.
Moreover, this legislation provides our intelligence community with
the same authority to use pen register devices, under the auspices of
the Foreign Intelligence Surveillance Act, that our law enforcement
agents have when investigating criminal offenses. It simply makes sense
to provide law enforcement with the same tools to catch terrorists that
they already possess in connection with other criminal investigations,
such as drug crimes or illegal gambling.
In addition to the pen register statute, this legislation updates
other aspects of our wiretapping statutes. It is amazing that law
enforcement agents do not currently have authority to seek wiretapping
authority from a federal judge when investigating a terrorist offense.
This legislation fixes that problem.
Moving on, I note that much has been made of the complex immigration
provisions of this bill. I know Senators Specter, Kohl and Kennedy had
questions about earlier provisions, particularly the detention
provision for suspected alien terrorists.
I want to assure my colleagues that we have worked hard to address
your concerns, and the concerns of the public. As with the other
immigration provisions of this bill, we have made painstaking efforts
to achieve this workable compromise.
Let me address some of the specific concerns. In response to the
concern that the INS might detain a suspected terrorist indefinitely,
Senator Kennedy, Senator Kyl, and I worked out a compromise that limits
the provision. It provides that the alien must be charged with an
immigration or criminal violation within seven days after the
commencement of detention or be released. In addition, contrary to what
has been alleged, the certification itself is subject to judicial
review. The Attorney General's power to detain a suspected terrorist
under this bill is, then, not unfettered.
Moreover, Senator Leahy and I have also worked diligently to craft
necessary language that provides for the deportation of those aliens
who are representatives of organizations that endorse terrorist
activity, those who use a position of prominence to endorse terrorist
activity or persuade others to support terrorist activity, or those who
provide material support to terrorist organizations. If we are to fight
terrorism, we can not allow those who support terrorists to remain in
our country. Also, I should note that we have worked hard to provide
the State Department and the INS the tools they need to ensure that no
applicant for admission who is a terrorist is able to secure entry into
the United States through legal channels.
Finally, the bill gives law enforcement agencies powerful tools to
attack the financial infrastructure of terrorism--giving our government
the ability to choke off the financing that these dangerous terrorist
organizations need to survive. It criminalizes the practice of
harboring terrorists, and puts teeth in the laws against providing
material support to terrorists
[[Page S10603]]
and terrorist organizations. It gives the President expanded authority
to freeze the assets of terrorists and terrorist organizations, and
provides for the eventual seizure of such assets. These tools are vital
to our ability to effectively wage the war against terrorism, and
ultimately to win it.
Mr. President, before this debate comes to an end, I would be remiss
if I did not acknowledge the hard work put in by my staff, the staff of
Senator Leahy, and the representatives of the Administration who were
involved in the negotiation of this bill. These people have engaged in
discussions, literally around the clock over the last 3 weeks to
produce this excellent bill, that now enjoys such widespread bipartisan
support.
I would like to thank my Chief Counsel, Makim Delrahim, who has been
instrumental in putting this bill together. I also would like to thank
my criminal counsel, Jeff Taylor, Stuart Nash, and Leah Belaire, who
have brought invaluable expertise to this process. My immigration
counsel, Dustin Pead and my legislative assistant Brigham Cannon have
provided invaluable assistance.
I would like to thank the staff of Senator Leahy--his chief counsel
Bruce Cohen, and other members of his staff--Beryl Howell, Julie
Katzman, Ed Pagano, David James, and John Eliff.
The Department of Justice has been of great assistance to us in
putting this bill together. I would like to thank Attorney General
Ashcroft and his Deputy Larry Thompson for their wise counsel, and for
their quick response to our many questions and concerns. Michael
Chertoff, the Assistant Attorney General for the Criminal Division was
a frequent participant in our meetings, as well as Assistant Attorneys
General Dan Bryant and Viet Dinh. Jennifer Newstead, John Yew, John
Elwood and Pat O'Brien were all important participants in this process.
Finally, the White House staff provided essential contributions at
all stages of this process. Judge Al Gonzales, the White House counsel
provided key guidance, with the help of his wonderful staff, including
Tim Flanagan, Courtney Elwood, and Porad Berensen.
In addition, members of the White House Congressional Liaison Office
kept this process moving forward. I would like to thank Heather
Wingate, Candy Wolff and Nancy Dorn for all the assistance they have
given us.
There have been few, if any, times in our nation's great history
where an event has brought home to so many of our citizens, so quickly,
and in such a graphic fashion, a sense of our vulnerability to
unexpected attack.
I believe we all took some comfort when President Bush promised us
that our law enforcement institutions would have the tools necessary to
protect us from the danger that we are only just beginning to perceive.
The Attorney General has told us what tools he needs. We have taken
the time to review the problems with our current laws, and to reflect
on their solutions. The time to act is now. Let us please move forward
expeditiously, and give those who are in the business of protecting us
the tools that they need to do the job.
Mr. President, I urge my colleagues' support for this important
legislation and yield the floor.
Mr. DASCHLE. Mr. President, 4 days ago, our military began strikes
against terrorist training camps and the Taliban's military
installations in Afghanistan. They are intended to disrupt the network
of terror that spreads across Afghanistan.
But these strikes are one part of a much larger battle. The network
that we seek to disrupt and ultimately destroy often operates without
borders or boundaries. Its tools are not simply the weapons it chooses
to employ. And its trails are more often electronic than physical.
This is a new kind of battle. Winning it will require a new set of
tools . . . And winning is the only acceptable outcome.
Just as we are committed to giving our men and women in uniform the
tools and training they need to do what is asked of them, we must now
make that same commitment to our justice and law enforcement officials.
After all, we are now asking them to do nothing less than protect the
American people by finding, tracking, monitoring--and ultimately
stopping--any terrorist elements that threaten our nation or our
citizens.
I believe that by passing this measure today, we are taking a swift
and significant step toward doing just that. We are also demonstrating,
once again, that the Senate can work both quickly and effectively when
we work cooperatively.
I want to thank Senator Lott, Chairmen Leahy, Graham and Sarbanes, as
well as Senators Hatch, Shelby, and Gramm for their leadership on this
bill.
I especially appreciate Chairman Leahy's management and handling of
this important and delicate process.
I also want to thank the many other Democratic and Republican
Senators whose insights and suggestions improved this legislation.
For example, Senator Kennedy's input on provisions regarding
immigration addressed concerns a number of us had about the detention
of legal permanent residents with only few due process protections.
And Senators Enzi, Leahy and Dorgan were able to improve a provision
regarding unilateral food and medical sanctions in a way that avoids
needlessly hurting American farmers.
I'll be honest, this bill is not perfect, and I hope that we will be
able to work with our House colleagues in the days ahead in order to
improve it.
Whenever we weigh civil liberties against national security, we need
to do so with the utmost care.
Among other things, I am concerned about the provisions within this
bill that allow the sharing of information gathered in grand juries and
through wiretaps without judicial check. And, as we give the
administration new legitimate powers to wiretap under the Foreign
Intelligence Surveillance Act, I believe we should do more to protect
the rights of Americans who are not suspects or targets of
investigations.
These flaws are not insubstantial, but ultimately the need for this
bill outweighs them. When it comes to an issue as central to our
democracy as the protection of our people, we must act.
This bill does several important things:
First, it will enhance the ability of law enforcement and
intelligence agencies to conduct electronic surveillance and execute
searches in order to gather critical information to fight terrorism.
Second, it will permit broader information sharing between
traditional law enforcement and foreign intelligence officers.
Third, it will increase the Attorney General's ability to deport and
detain individuals who support terrorist activity. I should note,
though, that the Senate bill requires the Attorney General either to
bring criminal or immigration charges within seven days after taking
custody of an alien or relinquish custody.
Fourth, this bill also takes significant steps to increase law
enforcement personnel on our northern border. For example, it would
triple the number of Border Patrol, Customs Service, and INS inspectors
at the northern border, who would work in concert with their Canadian
counterparts in order to enhance security in this previously
understaffed area.
Fifth, thanks in large part to Senator Leahy's hard work, this bill
makes major revisions to the Victims of Crime Act--by strengthening the
Crime Victim Fund and expediting assistance to victims of domestic
terrorism.
Sixth and finally, the Banking Committee was able to agree on, and
add to this bill, several significant counter money laundering
measures. If we are to truly fight terrorism on all fronts, we must
fight it on the financial front as well.
As you can see, this is a complex piece of legislation. But its aim
is simple: to give law enforcement the tools it needs to fight
terrorism.
It was a month ago on this day that we suffered the worst terrorist
attack in our Nation's history. In the days since, we have honored the
memories of the more than 6,000 innocent men and women who lost their
lives on that terrible day.
Hours ago, for example, we passed a resolution that designates
September 11 as a national day of remembrance.
But I believe that to truly honor those whose lives were lost, we
must match our words with action, and do all that we can in order to
prevent future attacks.
[[Page S10604]]
This bill is a significant step towards keeping that commitment, and
keeping Americans safe.
Mr. DASCHLE. It is my understanding that the managers intend now to
yield back the remainder of the time on the bill and we will go
straight to final passage.
First, I thank all Senators for their cooperation tonight. This was a
very good day. We got a lot of work done, and I appreciate the work of
all Members. There will not be rollcall votes tomorrow. In fact, we
will not be in session. We will come in on Monday, midafternoon. There
will be a vote on the motion to proceed to the foreign operations bill
and a vote on the conference report on the Interior appropriations bill
at approximately 5:30 Monday afternoon. I thank all Senators.
I yield the floor.
Mr. LEAHY. Mr. President, we are about to go to final passage. We
thought there would be a managers' package. We signed off on this side,
and apparently the other side has not, which is their right.
Mr. HATCH. We have a managers' package. It is done. It is just being
assembled and put together and will be here.
I yield the floor.
Mr. LEAHY. I am glad there will be a managers' package. We cannot
vote on final passage until the managers' package is here. I thank the
majority leader for his help. As I said before, I don't think the bill
could have gotten as far as it did without that help. I wish the
administration had kept to the agreement they made September 30. We
would have a more balanced bill. I still am not sure why the
administration backed away from their agreement. I am the old style
Vermonter: When you make an agreement, you stick with it. But they
decided not to, and it slowed us up a bit.
The PRESIDING OFFICER. Let's have order in the Senate Chamber so the
Senator can be heard.
Mr. LEAHY. I yield the floor.
Mr. DASCHLE. Mr. President, I ask unanimous consent that
notwithstanding the passage of the amendment, the managers' amendment
be considered subject to approval by both managers and both leaders.
The PRESIDING OFFICER. Is there objection?
Mr. BYRD. What is the request?
Mr. DASCHLE. Mr. President, I will repeat the request. There is a
technical amendment having to do with some of the issues that have been
worked out, that have no substantive consequence. I ask unanimous
consent that this managers' amendment be approved, notwithstanding
passage of the bill, subject to approval by the two managers and the
two leaders.
Mr. BYRD. Mr. President, I object to that.
The PRESIDING OFFICER. Objection is heard.
Mr. BYRD. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent the order for the
quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. I yield all time. I ask for the yeas and nays on final
passage.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. I ask for the yeas and nays on final passage.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The clerk will read the bill for the third
time.
Mr. FEINGOLD. Mr. President, what is the status?
The PRESIDING OFFICER. The bill is ready for third reading.
Mr. FEINGOLD. I ask the Chair if the managers' amendment has been
adopted.
The PRESIDING OFFICER. It has not.
Mr. FEINGOLD. I thank the Chair.
The PRESIDING OFFICER. There has been none submitted.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill pass?
The yeas and nays have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms), the Senator from South Carolina (Mr. Thurmond), and the Senator
from New Mexico (Mr. Domenici) are necessarily absent.
I further announce that if present and voting the Senator from North
Carolina (Mr. Helms) would vote "yea."
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 96, nays 1, as follows:
[Rollcall Vote No. 302 Leg.]
YEAS--96
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Dorgan
Durbin
Edwards
Ensign
Enzi
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Harkin
Hatch
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thompson
Torricelli
Voinovich
Warner
Wellstone
Wyden
NAYS--1
Feingold
NOT VOTING --- 3
Domenici
Helms
Thurmond
The bill (S. 1510) as passed as follows:
S. 1510
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the "Uniting
and Strengthening America Act" or the "USA Act of 2001".
(b) Table of Contents.-- The table of contents for this Act
is as follows:
Sec. 1. Short title and table of contents.
Sec. 2. Construction; severability.
TITLE I--ENHANCING DOMESTIC SECURITY AGAINST TERRORISM
Sec. 101. Counterterrorism fund.
Sec. 102. Sense of Congress condemning discrimination against Arab and
Muslim Americans.
Sec. 103. Increased funding for the technical support center at the
Federal Bureau of Investigation.
Sec. 104. Requests for military assistance to enforce prohibition in
certain emergencies.
Sec. 105. Expansion of national electronic crime task force initiative.
Sec. 106. Presidential authority.
TITLE II--ENHANCED SURVEILLANCE PROCEDURES
Sec. 201. Authority to intercept wire, oral, and electronic
communications relating to terrorism.
Sec. 202. Authority to intercept wire, oral, and electronic
communications relating to computer fraud and abuse
offenses.
Sec. 203. Authority to share criminal investigative information.
Sec. 204. Clarification of intelligence exceptions from limitations on
interception and disclosure of wire, oral, and electronic
communications.
Sec. 205. Employment of translators by the Federal Bureau of
Investigation.
Sec. 206. Roving surveillance authority under the Foreign Intelligence
Surveillance Act of 1978.
Sec. 207. Duration of FISA surveillance of non-United States persons
who are agents of a foreign power.
Sec. 208. Designation of judges.
Sec. 209. Seizure of voice-mail messages pursuant to warrants.
Sec. 210. Scope of subpoenas for records of electronic communications.
Sec. 211. Clarification of scope.
Sec. 212. Emergency disclosure of electronic communications to protect
life and limb.
Sec. 213. Authority for delaying notice of the execution of a warrant.
Sec. 214. Pen register and trap and trace authority under FISA.
Sec. 215. Access to records and other items under the Foreign
Intelligence Surveillance Act.
[[Page S10605]]
Sec. 216. Modification of authorities relating to use of pen registers
and trap and trace devices.
Sec. 217. Interception of computer trespasser communications.
Sec. 218. Foreign intelligence information.
Sec. 219. Single-jurisdiction search warrants for terrorism.
Sec. 220. Nationwide service of search warrants for electronic
evidence.
Sec. 221. Trade sanctions.
Sec. 222. Assistance to law enforcement agencies.
TITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST
FINANCING ACT OF 2001
Sec. 301. Short title.
Sec. 302. Findings and purposes.
Sec. 303. 4-Year congressional review-expedited consideration.
Subtitle A--International Counter Money Laundering and Related Measures
Sec. 311. Special measures for jurisdictions, financial institutions,
or international transactions of primary money laundering
concern.
Sec. 312. Special due diligence for correspondent accounts and private
banking accounts.
Sec. 313. Prohibition on United States correspondent accounts with
foreign shell banks.
Sec. 314. Cooperative efforts to deter money laundering.
Sec. 315. Inclusion of foreign corruption offenses as money laundering
crimes.
Sec. 316. Anti-terrorist forfeiture protection.
Sec. 317. Long-arm jurisdiction over foreign money launderers.
Sec. 318. Laundering money through a foreign bank.
Sec. 319. Forfeiture of funds in United States interbank accounts.
Sec. 320. Proceeds of foreign crimes.
Sec. 321. Exclusion of aliens involved in money laundering.
Sec. 322. Corporation represented by a fugitive.
Sec. 323. Enforcement of foreign judgments.
Sec. 324. Increase in civil and criminal penalties for money
laundering.
Sec. 325. Report and recommendation.
Sec. 326. Report on effectiveness.
Sec. 327. Concentration accounts at financial institutions.
Subtitle B--Currency Transaction Reporting Amendments and Related
Improvements
Sec. 331. Amendments relating to reporting of suspicious activities.
Sec. 332. Anti-money laundering programs.
Sec. 333. Penalties for violations of geographic targeting orders and
certain recordkeeping requirements, and lengthening
effective period of geographic targeting orders.
Sec. 334. Anti-money laundering strategy.
Sec. 335. Authorization to include suspicions of illegal activity in
written employment references.
Sec. 336. Bank Secrecy Act advisory group.
Sec. 337. Agency reports on reconciling penalty amounts.
Sec. 338. Reporting of suspicious activities by securities brokers and
dealers.
Sec. 339. Special report on administration of Bank Secrecy provisions.
Sec. 340. Bank Secrecy provisions and anti-terrorist activities of
United States intelligence agencies.
Sec. 341. Reporting of suspicious activities by hawala and other
underground banking systems.
Sec. 342. Use of Authority of the United States Executive Directors.
Subtitle D--Currency Crimes
Sec. 351. Bulk cash smuggling.
Subtitle E--Anticorruption Measures
Sec. 361. Corruption of foreign governments and ruling elites.
Sec. 362. Support for the financial action task force on money
laundering.
Sec. 363. Terrorist funding through money laundering.
TITLE IV--PROTECTING THE BORDER
Subtitle A--Protecting the Northern Border
Sec. 401. Ensuring adequate personnel on the northern border.
Sec. 402. Northern border personnel.
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.
Sec. 404. Limited authority to pay overtime.
Sec. 405. Report on the integrated automated fingerprint identification
system for points of entry and overseas consular posts.
Subtitle B--Enhanced Immigration Provisions
Sec. 411. Definitions relating to terrorism.
Sec. 412. Mandatory detention of suspected terrorists; habeas corpus;
judicial review.
Sec. 413. Multilateral cooperation against terrorists.
TITLE V--REMOVING OBSTACLES TO INVESTIGATING TERRORISM
Sec. 501. Professional Standards for Government Attorneys Act of 2001.
Sec. 502. Attorney General's authority to pay rewards to combat
terrorism.
Sec. 503. Secretary of State's authority to pay rewards.
Sec. 504. DNA identification of terrorists and other violent offenders.
Sec. 505. Coordination with law enforcement.
Sec. 506. Miscellaneous national security authorities.
Sec. 507. Extension of Secret Service jurisdiction.
Sec. 508. Disclosure of educational records.
Sec. 509. Disclosure of information from NCES surveys.
TITLE VI--PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS,
AND THEIR FAMILIES
Subtitle A--Aid to 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.
Sec. 612. Technical correction with respect to expedited payments for
heroic public safety officers.
Sec. 613. Public Safety Officers Benefit Program payment increase.
Sec. 614. Office of justice programs.
Subtitle B--Amendments to the Victims of Crime Act of 1984
Sec. 621. Crime Victims Fund.
Sec. 622. Crime victim compensation.
Sec. 623. Crime victim assistance.
Sec. 624. Victims of terrorism.
TITLE VII--INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE
PROTECTION
Sec. 711. Expansion of regional information sharing system to
facilitate Federal-State-local law enforcement response
related to terrorist attacks.
TITLE VIII--STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM
Sec. 801. Terrorist attacks and other acts of violence against mass
transportation systems.
Sec. 802. Expansion of the biological weapons statute.
Sec. 803. Definition of domestic terrorism.
Sec. 804. Prohibition against harboring terrorists.
Sec. 805. Jurisdiction over crimes committed at U.S. facilities abroad.
Sec. 806. Material support for terrorism.
Sec. 807. Assets of terrorist organizations.
Sec. 808. Technical clarification relating to provision of material
support to terrorism.
Sec. 809. Definition of Federal crime of terrorism.
Sec. 810. No statute of limitation for certain terrorism offenses.
Sec. 811. Alternate maximum penalties for terrorism offenses.
Sec. 812. Penalties for terrorist conspiracies.
Sec. 813. Post-release supervision of terrorists.
Sec. 814. Inclusion of acts of terrorism as racketeering activity.
Sec. 815. Deterrence and prevention of cyberterrorism.
Sec. 816. Additional defense to civil actions relating to preserving
records in response to government requests.
Sec. 817. Development and support of cybersecurity forensic
capabilities.
TITLE IX--IMPROVED INTELLIGENCE
Sec. 901. Responsibilities of Director of Central Intelligence
regarding foreign intelligence collected under Foreign
Intelligence Surveillance Act of 1978.
Sec. 902. Inclusion of international terrorist activities within scope
of foreign intelligence under National Security Act of
1947.
Sec. 903. Sense of Congress on the establishment and maintenance of
intelligence relationships to acquire information on
terrorists and terrorist organizations.
Sec. 904. Temporary authority to defer submittal to Congress of reports
on intelligence and intelligence-related matters.
Sec. 905. Disclosure to director of central intelligence of foreign
intelligence-related information with respect to criminal
investigations.
Sec. 906. Foreign terrorist asset tracking center.
Sec. 907. National virtual translation center.
Sec. 908. Training of government officials regarding identification and
use of foreign intelligence.
SEC. 2. CONSTRUCTION; SEVERABILITY.
Any provision of this Act held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstance, shall be construed so as to give it the maximum
effect permitted by law, unless such holding shall be one of
utter invalidity or unenforceability, in which event such
provision shall be deemed severable from this Act and shall
not affect the remainder thereof or the application of such
provision to other persons not similarly situated or to
other, dissimilar circumstances.
TITLE I--ENHANCING DOMESTIC SECURITY AGAINST TERRORISM
SEC. 101. COUNTERTERRORISM FUND.
(a) Establishment; Availability.--There is hereby
established in the Treasury of the United States a separate
fund to be known as
[[Page S10606]]
the "Counterterrorism Fund", amounts in which shall remain
available without fiscal year limitation--
(1) to reimburse any Department of Justice component for
any costs incurred in connection with--
(A) reestablishing the operational capability of an office
or facility that has been damaged or destroyed as the result
of any domestic or international terrorism incident;
(B) providing support to counter, investigate, or prosecute
domestic or international terrorism, including, without
limitation, paying rewards in connection with these
activities; and
(C) conducting terrorism threat assessments of Federal
agencies and their facilities; and
(2) to reimburse any department or agency of the Federal
Government for any costs incurred in connection with
detaining in foreign countries individuals accused of acts of
terrorism that violate the laws of the United States.
(b) No Effect on Prior Appropriations.--Subsection (a)
shall not be construed to affect the amount or availability
of any appropriation to the Counterterrorism Fund made before
the date of enactment of this Act.
SEC. 102. SENSE OF CONGRESS CONDEMNING DISCRIMINATION AGAINST
ARAB AND MUSLIM AMERICANS.
(a) Findings.--Congress makes the following findings:
(1) Arab Americans, Muslim Americans, and Americans from
South Asia play a vital role in our Nation and are entitled
to nothing less than the full rights of every American.
(2) The acts of violence that have been taken against Arab
and Muslim Americans since the September 11, 2001, attacks
against the United States should be and are condemned by all
Americans who value freedom.
(3) The concept of individual responsibility for wrongdoing
is sacrosanct in American society, and applies equally to all
religious, racial, and ethnic groups.
(4) When American citizens commit acts of violence against
those who are, or are perceived to be, of Arab or Muslim
descent, they should be punished to the full extent of the
law.
(5) Muslim Americans have become so fearful of harassment
that many Muslim women are changing the way they dress to
avoid becoming targets.
(6) Many Arab Americans and Muslim Americans have acted
heroically during the attacks on the United States, including
Mohammed Salman Hamdani, a 23-year-old New Yorker of
Pakistani descent, who is believed to have gone to the World
Trade Center to offer rescue assistance and is now missing.
(b) Sense of Congress.--It is the sense of Congress that--
(1) the civil rights and civil liberties of all Americans,
including Arab Americans, Muslim Americans, and Americans
from South Asia, must be protected, and that every effort
must be taken to preserve their safety;
(2) any acts of violence or discrimination against any
Americans be condemned; and
(3) the Nation is called upon to recognize the patriotism
of fellow citizens from all ethnic, racial, and religious
backgrounds.
SEC. 103. INCREASED FUNDING FOR THE TECHNICAL SUPPORT CENTER
AT THE FEDERAL BUREAU OF INVESTIGATION.
There are authorized to be appropriated for the Technical
Support Center established in section 811 of the
Antiterrorism and Effective Death Penalty Act of 1996 (Public
Law 104-132) to help meet the demands for activities to
combat terrorism and support and enhance the technical
support and tactical operations of the FBI, $200,000,000 for
each of the fiscal years 2002, 2003, and 2004.
SEC. 104. REQUESTS FOR MILITARY ASSISTANCE TO ENFORCE
PROHIBITION IN CERTAIN EMERGENCIES.
Section 2332e of title 18, United States Code, is amended--
(1) by striking "2332c" and inserting "2332a"; and
(2) by striking "chemical".
SEC. 105. EXPANSION OF NATIONAL ELECTRONIC CRIME TASK FORCE
INITIATIVE.
The Director of the United States Secret Service shall take
appropriate actions to develop a national network of
electronic crime task forces, based on the New York
Electronic Crimes Task Force model, throughout the United
States, for the purpose of preventing, detecting, and
investigating various forms of electronic crimes, including
potential terrorist attacks against critical infrastructure
and financial payment systems.
SEC. 106. PRESIDENTIAL AUTHORITY.
Section 203 of the International Emergency Powers Act (50
U.S.C. 1702) is amended--
(1) in subsection (a)(1)--
(A) at the end of subparagraph (A) (flush to that
subparagraph), by striking "; and" and inserting a comma
and the following:
"by any person, or with respect to any property, subject to
the jurisdiction of the United States;";
(B) in subparagraph (B)--
(i) by inserting ", block during the pendency of an
investigation" after "investigate"; and
(ii) by striking "interest;" and inserting "interest by
any person, or with respect to any property, subject to the
jurisdiction of the United States; and"; and
(C) by inserting at the end the following:
"(C) when the United States is engaged in armed
hostilities or has been attacked by a foreign country or
foreign nationals, confiscate any property, subject to the
jurisdiction of the United States, of any foreign person,
foreign organization, or foreign country that he determines
has planned, authorized, aided, or engaged in such
hostilities or attacks against the United States; and all
right, title, and interest in any property so confiscated
shall vest, when, as, and upon the terms directed by the
President, in such agency or person as the President may
designate from time to time, and upon such terms and
conditions as the President may prescribe, such interest or
property shall be held, used, administered, liquidated, sold,
or otherwise dealt with in the interest of and for the
benefit of the United States, and such designated agency or
person may perform any and all acts incident to the
accomplishment or furtherance of these purposes."; and
(2) by inserting at the end the following:
"(c) Classified Information.--In any judicial review of a
determination made under this section, if the determination
was based on classified information (as defined in section
1(a) of the Classified Information Procedures Act) such
information may be submitted to the reviewing court ex parte
and in camera. This subsection does not confer or imply any
right to judicial review.".
TITLE II--ENHANCED SURVEILLANCE PROCEDURES
SEC. 201. AUTHORITY TO INTERCEPT WIRE, ORAL, AND ELECTRONIC
COMMUNICATIONS RELATING TO TERRORISM.
Section 2516(1) of title 18, United States Code, is
amended--
(1) by redesignating 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 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 violation of section 229 (relating to
chemical weapons); or sections 2332, 2332a, 2332b, 2332d,
2339A, or 2339B of this title (relating to terrorism); or".
SEC. 202. AUTHORITY TO INTERCEPT WIRE, ORAL, AND ELECTRONIC
COMMUNICATIONS RELATING TO COMPUTER FRAUD AND
ABUSE OFFENSES.
Section 2516(1)(c) of title 18, United States Code, is
amended by striking "and section 1341 (relating to mail
fraud)," and inserting "section 1341 (relating to mail
fraud), a felony violation of section 1030 (relating to
computer fraud and abuse),".
SEC. 203. AUTHORITY TO SHARE CRIMINAL INVESTIGATIVE
INFORMATION.
(a) Authority to Share Grand Jury Information.--
(1) In general.--Rule 6(e)(3)(C) of the Federal Rules of
Criminal Procedure is amended--
(A) in clause (iii), by striking "or" at the end;
(B) in clause (iv), by striking the period at the end and
inserting "; or"; and
(C) by inserting at the end the following:
"(v) when the matters involve foreign intelligence or
counterintelligence (as defined in section 3 of the National
Security Act of 1947 (50 U.S.C. 401a)), or foreign
intelligence information (as defined in Rule 6(e)(3)(C)(ii))
to any other Federal law enforcement, intelligence,
protective, immigration, national defense, or national
security official in order to assist the official receiving
that information in the performance of his official duties.
Any Federal official who receives information pursuant to
clause (v) may use that information only as necessary in the
conduct of that person's official duties subject to any
limitations on the unauthorized disclosure of such
information.".
(2) Definition.--Rule 6(e)(3)(C) of the Federal Rules of
Criminal Procedure, as amended by paragraph (1), is amended
by--
(A) inserting "(i)" after "(C)";
(B) redesignating clauses (i) through (v) as subclauses (I)
through (IV), respectively; and
(C) inserting at the end the following:
"(ii) In this subparagraph, the term `foreign intelligence
information' means--
"(I) information, whether or not concerning a United
States person, that relates to the ability of the United
States to protect against--
"(aa) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
"(bb) sabotage or international terrorism by a foreign
power or an agent of a foreign power; or
"(cc) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power; or
"(II) information, whether or not concerning a United
States person, with respect to a foreign power or foreign
territory that relates to--
"(aa) the national defense or the security of the United
States; or
"(bb) the conduct of the foreign affairs of the United
States.".
(b) Authority To Share Electronic, Wire, and Oral
Interception Information.--
(1) Law enforcement.--Section 2517 of title 18, United
States Code, is amended by inserting at the end the
following:
"(6) Any investigative or law enforcement officer, or
attorney for the Government, who by any means authorized by
this chapter, has obtained knowledge of the contents of any
wire, oral, or electronic communication, or
[[Page S10607]]
evidence derived therefrom, may disclose such contents to any
other Federal law enforcement, intelligence, protective,
immigration, national defense, or national security official
to the extent that such contents include foreign intelligence
or counterintelligence (as defined in section 3 of the
National Security Act of 1947 (50 U.S.C. 401a)), or foreign
intelligence information (as defined in subsection (19) of
section 2510 of this title), to assist the official who is to
receive that information in the performance of his official
duties. Any Federal official who receives information
pursuant to this provision may use that information only as
necessary in the conduct of that person's official duties
subject to any limitations on the unauthorized disclosure of
such information.".
(2) Definition.--Section 2510 of title 18, United States
Code, is amended by--
(A) in paragraph (17), by striking "and" after the
semicolon;
(B) in paragraph (18), by striking the period and inserting
"; and"; and
(C) by inserting at the end the following:
"(19) `foreign intelligence information' means--
"(A) information, whether or not concerning a United
States person, that relates to the ability of the United
States to protect against--
"(i) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
"(ii) sabotage or international terrorism by a foreign
power or an agent of a foreign power; or
"(iii) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power; or
"(B) information, whether or not concerning a United
States person, with respect to a foreign power or foreign
territory that relates to--
"(i) the national defense or the security of the United
States; or
"(ii) the conduct of the foreign affairs of the United
States.".
(c) Procedures.--The Attorney General shall establish
procedures for the disclosure of information pursuant to
section 2517(6) and Rule 6(e)(3)(C)(v) of the Federal Rules
of Criminal Procedure that identifies a United States person,
as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801)).
(d) Foreign Intelligence Information.--
(1) In general.--Notwithstanding any other provision of
law, it shall be lawful for foreign intelligence or
counterintelligence (as defined section 3 of the National
Security Act of 1947 (50 U.S.C. 401a)) or foreign
intelligence information obtained as part of a criminal
investigation to be disclosed to any Federal law enforcement,
intelligence, protective, immigration, national defense, or
national security official in order to assist the official
receiving that information in the performance of his official
duties. Any Federal official who receives information
pursuant to this provision may use that information only as
necessary in the conduct of that person's official duties
subject to any limitations on the unauthorized disclosure of
such information.
(2) Definition.--In this subsection, the term "foreign
intelligence information" means--
(A) information, whether or not concerning a United States
person, that relates to the ability of the United States to
protect against--
(i) actual or potential attack or other grave hostile acts
of a foreign power or an agent of a foreign power;
(ii) sabotage or international terrorism by a foreign power
or an agent of a foreign power; or
(iii) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power; or
(B) information, whether or not concerning a United States
person, with respect to a foreign power or foreign territory
that relates to--
(i) the national defense or the security of the United
States; or
(ii) the conduct of the foreign affairs of the United
States.
SEC. 204. CLARIFICATION OF INTELLIGENCE EXCEPTIONS FROM
LIMITATIONS ON INTERCEPTION AND DISCLOSURE OF
WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS.
Section 2511(2)(f) of title 18, United States Code, is
amended--
(1) by striking "this chapter or chapter 121" and
inserting "this chapter or chapter 121 or 206 of this
title"; and
(2) by striking "wire and oral" and inserting "wire,
oral, and electronic".
SEC. 205. EMPLOYMENT OF TRANSLATORS BY THE FEDERAL BUREAU OF
INVESTIGATION.
(a) Authority.--The Director of the Federal Bureau of
Investigation is authorized to expedite the employment of
personnel as translators to support counterterrorism
investigations and operations without regard to applicable
Federal personnel requirements and limitations.
(b) Security Requirements.--The Director of the Federal
Bureau of Investigation shall establish such security
requirements as are necessary for the personnel employed as
translators under subsection (a).
(c) Report.--The Attorney General shall report to the
Committees on the Judiciary of the House of Representatives
and the Senate on--
(1) the number of translators employed by the FBI and other
components of the Department of Justice;
(2) 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
(3) the needs of the FBI for specific translation services
in certain languages, and recommendations for meeting those
needs.
SEC. 206. ROVING SURVEILLANCE AUTHORITY UNDER THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978.
Section 105(c)(2)(B) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended
by inserting ", or in circumstances where the Court finds
that the actions of the target of the application may have
the effect of thwarting the identification of a specified
person, such other persons," after "specified person".
SEC. 207. DURATION OF FISA SURVEILLANCE OF NON-UNITED STATES
PERSONS WHO ARE AGENTS OF A FOREIGN POWER.
(a) Duration .--
(1) Surveillance.--Section 105(d)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)(1))
is amended by--
(A) inserting "(A)" after "except that"; and
(B) inserting before the period the following: ", and (B)
an order under this Act for a surveillance targeted against
an agent of a foreign power, as defined in section 101(b)(A)
may be for the period specified in the application or for 120
days, whichever is less".
(2) Physical Search.--Section 304(d)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)(1))
is amended by--
(A) striking "forty-five" and inserting "90";
(B) inserting "(A)" after "except that"; and
(C) inserting before the period the following: ", and (B)
an order under this section for a physical search targeted
against an agent of a foreign power as defined in section
101(b)(A) may be for the period specified in the application
or for 120 days, whichever is less".
(b) Extension.--
(1) In general.--Section 105(d)(2) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)(2))
is amended by--
(A) inserting "(A)" after "except that"; and
(B) inserting before the period the following: ", and (B)
an extension of an order under this Act for a surveillance
targeted against an agent of a foreign power as defined in
section 101(b)(1)(A) may be for a period not to exceed 1
year".
(2) Defined term.--Section 304(d)(2) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)(2)
is amended by inserting after "not a United States person,"
the following: "or against an agent of a foreign power as
defined in section 101(b)(1)(A)".
SEC. 208. DESIGNATION OF JUDGES.
Section 103(a) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(a)) is amended by--
(1) striking "seven district court judges" and inserting
"11 district court judges"; and
(2) inserting "of whom no less than 3 shall reside within
20 miles of the District of Columbia" after "circuits".
SEC. 209. SEIZURE OF VOICE-MAIL MESSAGES PURSUANT TO
WARRANTS.
Title 18, United States Code, is amended--
(1) in section 2510--
(A) in paragraph (1), by striking beginning with "and
such" and all that follows through "communication"; and
(B) in paragraph (14), by inserting "wire or" after
"transmission of"; and
(2) in subsections (a) and (b) of section 2703--
(A) by striking "Contents of electronic" and inserting
"Contents of wire or electronic" each place it appears;
(B) by striking "contents of an electronic" and inserting
"contents of a wire or electronic" each place it appears;
and
(C) by striking "any electronic" and inserting "any wire
or electronic" each place it appears.
SEC. 210. SCOPE OF SUBPOENAS FOR RECORDS OF ELECTRONIC
COMMUNICATIONS.
Section 2703(c)(2) of title 18, United States Code, as
redesignated by section 212, is amended--
(1) by striking "entity the name, address, local and long
distance telephone toll billing records, telephone number or
other subscriber number or identity, and length of service of
the subscriber" and inserting the following: "entity the--
"(A) name;
"(B) address;
"(C) local and long distance telephone connection records,
or records of session times and durations;
"(D) length of service (including start date) and types of
service utilized;
"(E) telephone or instrument number or other subscriber
number or identity, including any temporarily assigned
network address; and
"(F) means and source of payment (including any credit
card or bank account number),
of a subscriber"; and
(2) by striking "and the types of services the subscriber
or customer utilized,".
SEC. 211. CLARIFICATION OF SCOPE.
Section 631 of the Communications Act of 1934 (47 U.S.C.
551) is amended--
[[Page S10608]]
(1) in subsection (c)(2)--
(A) in subparagraph (B), by striking "or";
(B) in subparagraph (C), by striking the period at the end
and inserting"; or"; and
(C) by inserting at the end the following:
"(D) authorized under chapters 119, 121, or 206 of title
18, United States Code, except that such disclosure shall not
include records revealing customer cable television viewing
activity."; and
(2) in subsection (h) by striking "A governmental entity"
and inserting "Except as provided in subsection (c)(2)(D), a
governmental entity".
SEC. 212. EMERGENCY DISCLOSURE OF ELECTRONIC COMMUNICATIONS
TO PROTECT LIFE AND LIMB.
(a) Disclosure of Contents.--
(1) In general.--Section 2702 of title 18, United States
Code, is amended--
(A) by striking the section heading and inserting the
following:
"Sec. 2702. Voluntary disclosure of customer communications
or records";
(B) in subsection (a)--
(i) in paragraph (2)(A), by striking "and" at the end;
(ii) in paragraph (2)(B), by striking the period and
inserting "; and"; and
(iii) by inserting after paragraph (2) the following:
"(3) a provider of remote computing service or electronic
communication service to the public shall not knowingly
divulge a record or other information pertaining to a
subscriber to or customer of such service (not including the
contents of communications covered by paragraph (1) or (2))
to any governmental entity.";
(C) in subsection (b), by striking "Exceptions.--A person
or entity" and inserting "Exceptions for disclosure of
communications.-- A provider described in subsection (a)";
(D) in subsection (b)(6)--
(i) in subparagraph (A)(ii), by striking "or";
(ii) in subparagraph (B), by striking the period and
inserting "; or"; and
(iii) by adding after subparagraph (B) the following:
"(C) if the provider reasonably believes that an emergency
involving immediate danger of death or serious physical
injury to any person requires disclosure of the information
without delay."; and
(E) by inserting after subsection (b) the following:
"(c) Exceptions for Disclosure of Customer Records.--A
provider described in subsection (a) may divulge a record or
other information pertaining to a subscriber to or customer
of such service (not including the contents of communications
covered by subsection (a)(1) or (a)(2))--
"(1) as otherwise authorized in section 2703;
"(2) with the lawful consent of the customer or
subscriber;
"(3) as may be necessarily incident to the rendition of
the service or to the protection of the rights or property of
the provider of that service;
"(4) to a governmental entity, if the provider reasonably
believes that an emergency involving immediate danger of
death or serious physical injury to any person justifies
disclosure of the information; or
"(5) to any person other than a governmental entity.".
(2) Technical and conforming amendment.--The table of
sections for chapter 121 of title 18, United States Code, is
amended by striking the item relating to section 2702 and
inserting the following:
"2702. Voluntary disclosure of customer communications or records.".
(b) Requirements for Government Access.--
(1) In general.--Section 2703 of title 18, United States
Code, is amended--
(A) by striking the section heading and inserting the
following:
"Sec. 2703. Required disclosure of customer communications
or records";
(B) in subsection (c) by redesignating paragraph (2) as
paragraph (3);
(C) in subsection (c)(1)--
(i) by striking "(A) Except as provided in subparagraph
(B), a provider of electronic communication service or remote
computing service may" and inserting "A governmental entity
may require a provider of electronic communication service or
remote computing service to";
(ii) by striking "covered by subsection (a) or (b) of this
section) to any person other than a governmental entity.
"(B) A provider of electronic communication service or
remote computing service shall disclose a record or other
information pertaining to a subscriber to or customer of such
service (not including the contents of communications covered
by subsection (a) or (b) of this section) to a governmental
entity" and inserting ")";
(iii) by redesignating subparagraph (C) as paragraph (2);
(iv) by redesignating clauses (i), (ii), (iii), and (iv) as
subparagraphs (A), (B), (C), and (D), respectively;
(v) in subparagraph (D) (as redesignated) by striking the
period and inserting "; or"; and
(vi) by inserting after subparagraph (D) (as redesignated)
the following:
"(E) seeks information under paragraph (2)."; and
(D) in paragraph (2) (as redesignated) by striking
"subparagraph (B)" and insert "paragraph (1)".
(2) Technical and conforming amendment.--The table of
sections for chapter 121 of title 18, United States Code, is
amended by striking the item relating to section 2703 and
inserting the following:
"2703. Required disclosure of customer communications or records.".
SEC. 213. AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A
WARRANT.
Section 3103a of title 18, United States Code, is amended--
(1) by inserting "(a) In General.--" before "In
addition"; and
(2) by adding at the end the following:
"(b) Delay.--With respect to the issuance of any warrant
or court order under this section, or any other rule of law,
to search for and seize any property or material that
constitutes evidence of a criminal offense in violation of
the laws of the United States, any notice required, or that
may be required, to be given may be delayed if--
"(1) the court finds reasonable cause to believe that
providing immediate notification of the execution of the
warrant may have an adverse result (as defined in section
2705);
"(2) the warrant prohibits the seizure of any tangible
property, any wire or electronic communication (as defined in
section 2510), or, except as expressly provided in chapter
121, any stored wire or electronic information, except where
the court finds reasonable necessity for the seizure; and
"(3) the warrant provides for the giving of such notice
within a reasonable period of its execution, which period may
thereafter be extended by the court for good cause shown.".
SEC. 214. PEN REGISTER AND TRAP AND TRACE AUTHORITY UNDER
FISA.
(a) Applications and Orders.--Section 402 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is
amended--
(1) in subsection (a)(1), by striking "for any
investigation to gather foreign intelligence information or
information concerning international terrorism" and
inserting "for any investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such investigation of a United
States person is not conducted solely upon the basis of
activities protected by the first amendment to the
Constitution";
(2) by amending subsection (c)(2) to read as follows:
"(2) a certification by the applicant that the information
likely to be obtained is relevant to an ongoing investigation
to protect against international terrorism or clandestine
intelligence activities, provided that such investigation of
a United States person is not conducted solely upon the basis
of activities protected by the first amendment to the
Constitution.";
(3) by striking subsection (c)(3); and
(4) by amending subsection (d)(2)(A) to read as follows:
"(A) shall specify--
"(i) the identity, if known, of the person who is the
subject of the investigation;
"(ii) the identity, if known, of the person to whom is
leased or in whose name is listed the telephone line or other
facility to which the pen register or trap and trace device
is to be attached or applied;
"(iii) the attributes of the communications to which the
order applies, such as the number or other identifier, and,
if known, the location of the telephone line or other
facility to which the pen register or trap and trace device
is to be attached or applied and, in the case of a trap and
trace device, the geographic limits of the trap and trace
order.".
(b) Authorization During Emergencies.--Section 403 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1843) is amended--
(1) in subsection (a), by striking "foreign intelligence
information or information concerning international
terrorism" and inserting "information to protect against
international terrorism or clandestine intelligence
activities, provided that such investigation of a United
States person is not conducted solely upon the basis of
activities protected by the first amendment to the
Constitution"; and
(2) in subsection (b)(1), by striking "foreign
intelligence information or information concerning
international terrorism" and inserting "information to
protect against international terrorism or clandestine
intelligence activities, provided that such investigation of
a United States person is not conducted solely upon the basis
of activities protected by the first amendment to the
Constitution".
SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT.
Title V of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861 et seq.) is amended by striking sections
501 through 503 and inserting the following:
"SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN
INTELLIGENCE AND INTERNATIONAL TERRORISM
INVESTIGATIONS.
"(a)(1) The Director of the Federal Bureau of
Investigation or a designee of the Director (whose rank shall
be no lower than Assistant Special Agent in Charge) may make
an application for an order requiring the production of any
tangible things (including books, records, papers, documents,
and other items) for an investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such investigation of a United
States person is not conducted solely upon the basis of
activities
[[Page S10609]]
protected by the first amendment to the Constitution.
"(2) An investigation conducted under this section shall--
"(A) be conducted under guidelines approved by the
Attorney General under Executive Order 12333 (or a successor
order); and
"(B) not be conducted of a United States person solely
upon the basis of activities protected by the first amendment
to the Constitution of the United States.
"(b) Each application under this section--
"(1) shall be made to--
"(A) a judge of the court established by section 103(a);
or
"(B) a United States Magistrate Judge under chapter 43 of
title 28, United States Code, who is publicly designated by
the Chief Justice of the United States to have the power to
hear applications and grant orders for the production of
tangible things under this section on behalf of a judge of
that court; and
"(2) shall specify that the records concerned are sought
for an authorized investigation conducted in accordance with
subsection (a)(2) to protect against international terrorism
or clandestine intelligence activities.
"(c)(1) Upon an application made pursuant to this section,
the judge shall enter an ex parte order as requested, or as
modified, approving the release of records if the judge finds
that the application meets the requirements of this section.
"(2) An order under this subsection shall not disclose
that it is issued for purposes of an investigation described
in subsection (a).
"(d) No person shall disclose to any other person (other
than those persons necessary to produce the tangible things
under this section) that the Federal Bureau of Investigation
has sought or obtained tangible things under this section.
"(e) A person who, in good faith, produces tangible things
under an order pursuant to this section shall not be liable
to any other person for such production. Such production
shall not be deemed to constitute a waiver of any privilege
in any other proceeding or context.
"SEC. 502. CONGRESSIONAL OVERSIGHT.
"(a) On a semiannual basis, the Attorney General shall
fully inform the Permanent Select Committee on Intelligence
of the House of Representatives and the Select Committee on
Intelligence of the Senate concerning all requests for the
production of tangible things under section 402.
"(b) On a semiannual basis, the Attorney General shall
provide to the Committees on the Judiciary of the House of
Representatives and the Senate a report setting forth with
respect to the preceding 6-month period--
"(1) the total number of applications made for orders
approving requests for the production of tangible things
under section 402; and
"(2) the total number of such orders either granted,
modified, or denied.".
SEC. 216. MODIFICATION OF AUTHORITIES RELATING TO USE OF PEN
REGISTERS AND TRAP AND TRACE DEVICES.
(a) General Limitations.--Section 3121(c) of title 18,
United States Code, is amended--
(1) by inserting "or trap and trace device" after "pen
register";
(2) by inserting ", routing, addressing," after
"dialing"; and
(3) by striking "call processing" and inserting "the
processing and transmitting of wire or electronic
communications so as not to include the contents of any wire
or electronic communications".
(b) Issuance of Orders.--
(1) In general.--Section 3123(a) of title 18, United States
Code, is amended to read as follows:
"(a) In General.--
"(1) Attorney for the government.--Upon an application
made under section 3122(a)(1), the court shall enter an ex
parte order authorizing the installation and use of a pen
register or trap and trace device anywhere within the United
States, if the court finds that the attorney for the
Government has certified to the court that the information
likely to be obtained by such installation and use is
relevant to an ongoing criminal investigation. The order,
upon service of that order, shall apply to any person or
entity providing wire or electronic communication service in
the United States whose assistance may facilitate the
execution of the order. Whenever such an order is served on
any person or entity not specifically named in the order,
upon request of such person or entity, the attorney for the
Government or law enforcement or investigative officer that
is serving the order shall provide written or electronic
certification that the order applies to the person or entity
being served.
"(2) State investigative or law enforcement officer.--Upon
an application made under section 3122(a)(2), the court shall
enter an ex parte order authorizing the installation and use
of a pen register or trap and trace device within the
jurisdiction of the court, if the court finds that the State
law enforcement or investigative officer has certified to the
court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal
investigation.".
(2) Contents of order.--Section 3123(b)(1) of title 18,
United States Code, is amended--
(A) in subparagraph (A)--
(i) by inserting "or other facility" after "telephone
line"; and
(ii) by inserting before the semicolon at the end "or
applied"; and
(B) by striking subparagraph (C) and inserting the
following:
"(C) the attributes of the communications to which the
order applies, including the number or other identifier and,
if known, the location of the telephone line or other
facility to which the pen register or trap and trace device
is to be attached or applied, and, in the case of an order
authorizing installation and use of a trap and trace device
under subsection (a)(2), the geographic limits of the order;
and".
(3) Nondisclosure requirements.--Section 3123(d)(2) of
title 18, United States Code, is amended--
(A) by inserting "or other facility" after "the line";
and
(B) by striking ", or who has been ordered by the court"
and inserting "or applied, or who is obligated by the
order".
(c) Definitions.--
(1) Court of competent jurisdiction.--Section 3127(2) of
title 18, United States Code, is amended by striking
subparagraph (A) and inserting the following:
"(A) any district court of the United States (including a
magistrate judge of such a court) or any United States court
of appeals having jurisdiction over the offense being
investigated; or".
(2) Pen register.--Section 3127(3) of title 18, United
States Code, is amended--
(A) by striking "electronic or other impulses" and all
that follows through "is attached" and inserting "dialing,
routing, addressing, or signaling information transmitted by
an instrument or facility from which a wire or electronic
communication is transmitted, provided, however, that such
information shall not include the contents of any
communication"; and
(B) by inserting "or process" after "device" each place
it appears.
(3) Trap and trace device.--Section 3127(4) of title 18,
United States Code, is amended--
(A) by striking "of an instrument" and all that follows
through the semicolon and inserting "or other dialing,
routing, addressing, and signaling information reasonably
likely to identify the source of a wire or electronic
communication, provided, however, that such information shall
not include the contents of any communication;"; and
(B) by inserting "or process" after "a device".
(4) Conforming amendment.--Section 3127(1) of title 18,
United States Code, is amended--
(A) by striking "and"; and
(B) by inserting ", and `contents' " after "electronic
communication service".
(5) Technical amendment.--Section 3124(d) of title 18,
United States Code, is amended by striking "the terms of".
SEC. 217. INTERCEPTION OF COMPUTER TRESPASSER COMMUNICATIONS.
Chapter 119 of title 18, United States Code, is amended--
(1) in section 2510--
(A) in paragraph (17), by striking "and" at the end;
(B) in paragraph (18), by striking the period and inserting
a semicolon; and
(C) by inserting after paragraph (18) the following:
"(19) `protected computer' has the meaning set forth in
section 1030; and
"(20) `computer trespasser'--
"(A) means a person who accesses a protected computer
without authorization and thus has no reasonable expectation
of privacy in any communication transmitted to, through, or
from the protected computer; and
"(B) 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 of the
protected computer for access to all or part of the protected
computer."; and
(2) in section 2511(2), by inserting at the end the
following:
"(i) It shall not be unlawful under this chapter for a
person acting under color of law to intercept the wire or
electronic communications of a computer trespasser, if--
"(i) the owner or operator of the protected computer
authorizes the interception of the computer trespasser's
communications on the protected computer;
"(ii) the person acting under color of law is lawfully
engaged in an investigation;
"(iii) the person acting under color of law has reasonable
grounds to believe that the contents of the computer
trespasser's communications will be relevant to the
investigation; and
"(iv) such interception does not acquire communications
other than those transmitted to or from the computer
trespasser.".
SEC. 218. FOREIGN INTELLIGENCE INFORMATION.
Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C.
1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence
Surveillance Act of 1978 are each amended by striking "the
purpose" and inserting "a significant purpose".
SEC. 219. SINGLE-JURISDICTION SEARCH WARRANTS FOR TERRORISM.
Rule 41(a) of the Federal Rules of Criminal Procedure is
amended by inserting after "executed" the following: "and
(3) in an investigation of domestic terrorism or
international terrorism (as defined in section 2331 of title
18, United States Code), by a Federal magistrate judge in any
district in which activities related to the terrorism may
have occurred, for a search of property or for a person
within or outside the district".
[[Page S10610]]
SEC. 220. NATIONWIDE SERVICE OF SEARCH WARRANTS FOR
ELECTRONIC EVIDENCE.
Chapter 121 of title 18, United States Code, is amended--
(1) in section 2703, by striking "under the Federal Rules
of Criminal Procedure" every place it appears and inserting
"using the procedures described in the Federal Rules of
Criminal Procedure by a court with jurisdiction over the
offense under investigation"; and
(2) in section 2711--
(A) in paragraph (1), by striking "and";
(B) in paragraph (2), by striking the period and inserting
"; and"; and
(C) by inserting at the end the following:
"(3) the term `court of competent jurisdiction' has the
meaning assigned by section 3127, and includes any Federal
court within that definition, without geographic
limitation.".
SEC. 221. TRADE SANCTIONS.
(a) In general.--The Trade Sanctions Reform and Export
Enhancement Act of 2000 (Public Law 106-387; 114 Stat. 1549A-
67) is amended--
(1) by amending section 904(2)(C) to read as follows:
"(C) used to facilitate the design, development, or
production of chemical or biological weapons, missiles, or
weapons of mass destruction.";
(2) in section 906(a)(1)--
(A) by inserting ", the Taliban or the territory of
Afghanistan controlled by the Taliban," after "Cuba"; and
(B) by inserting ", or in the territory of Afghanistan
controlled by the Taliban," after "within such country";
and
(3) in section 906(a)(2), by inserting ", or to any other
entity in Syria or North Korea" after "Korea".
(b) Application of the Trade Sanctions Reform and Export
Enhancement Act.--Nothing in the Trade Sanctions Reform and
Export Enhancement Act of 2000 shall limit the application or
scope of any law establishing criminal or civil penalties,
including any executive order or regulation promulgated
pursuant to such laws (or similar or successor laws), for the
unlawful export of any agricultural commodity, medicine, or
medical device to--
(1) a foreign organization, group, or person designated
pursuant to Executive Order 12947 of June 25, 1995;
(2) a Foreign Terrorist Organization pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996 (Public
Law 104-132);
(3) a foreign organization, group, or person designated
pursuant to Executive Order 13224 (September 23, 2001);
(4) any narcotics trafficking entity designated pursuant to
Executive Order 12978 (October 21, 1995) or the Foreign
Narcotics Kingpin Designation Act (Public Law 106-120); or
(5) any foreign organization, group, or persons subject to
any restriction for its involvement in weapons of mass
destruction or missile proliferation.
SEC. 222. ASSISTANCE TO LAW ENFORCEMENT AGENCIES.
Nothing in this Act shall impose any additional technical
obligation or requirement on a provider of wire or electronic
communication service or other person to furnish facilities
or technical assistance. 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 such
reasonable expenditures incurred in providing such facilities
or assistance.
TITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST
FINANCING ACT OF 2001.
SEC. 301. SHORT TITLE.
This title may be cited as the "International Money
Laundering Abatement and Anti-Terrorist Financing Act of
2001".
SEC. 302. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) money laundering, estimated by the International
Monetary Fund to amount to between 2 and 5 percent of global
gross domestic product, which is at least $600,000,000,000
annually, provides the financial fuel that permits
transnational criminal enterprises to conduct and expand
their operations to the detriment of the safety and security
of American citizens;
(2) money laundering, and the defects in financial
transparency on which money launderers rely, are critical to
the financing of global terrorism and the provision of funds
for terrorist attacks;
(3) money launderers subvert legitimate financial
mechanisms and banking relationships by using them as
protective covering for the movement of criminal proceeds and
the financing of crime and terrorism, and, by so doing, can
threaten the safety of United States citizens and undermine
the integrity of United States financial institutions and of
the global financial and trading systems upon which
prosperity and growth depend;
(4) certain jurisdictions outside of the United States that
offer "offshore" banking and related facilities designed to
provide anonymity, coupled with special tax advantages and
weak financial supervisory and enforcement regimes, provide
essential tools to disguise ownership and movement of
criminal funds, derived from, or used to commit, offenses
ranging from narcotics trafficking, terrorism, arms
smuggling, and trafficking in human beings, to financial
frauds that prey on law-abiding citizens;
(5) transactions involving such offshore jurisdictions make
it difficult for law enforcement officials and regulators to
follow the trail of money earned by criminals, organized
international criminal enterprises, and global terrorist
organizations;
(6) correspondent banking facilities are one of the banking
mechanisms susceptible in some circumstances to manipulation
by foreign banks to permit the laundering of funds by hiding
the identity of real parties in interest to financial
transactions;
(7) private banking services can be susceptible to
manipulation by money launderers, for example corrupt foreign
government officials, particularly if those services include
the creation of offshore accounts and facilities for large
personal funds transfers to channel funds into accounts
around the globe;
(8) United States anti-money laundering efforts are impeded
by outmoded and inadequate statutory provisions that make
investigations, prosecutions, and forfeitures more difficult,
particularly in cases in which money laundering involves
foreign persons, foreign banks, or foreign countries;
(9) the ability to mount effective counter-measures to
international money launderers requires national, as well as
bilateral and multilateral action, using tools specially
designed for that effort; and
(10) the Basle Committee on Banking Regulation and
Supervisory Practices and the Financial Action Task Force on
Money Laundering, of both of which the United States is a
member, have each adopted international anti-money laundering
principles and recommendations.
(b) Purposes.--The purposes of this title are--
(1) to increase the strength of United States measures to
prevent, detect, and prosecute international money laundering
and the financing of terrorism;
(2) to ensure that--
(A) banking transactions and financial relationships and
the conduct of such transactions and relationships, do not
contravene the purposes of subchapter II of chapter 53 of
title 31, United States Code, section 21 of the Federal
Deposit Insurance Act, or chapter 2 of title I of Public Law
91-508 (84 Stat. 1116), or facilitate the evasion of any such
provision; and
(B) the purposes of such provisions of law continue to be
fulfilled, and that such provisions of law are effectively
and efficiently administered;
(3) to strengthen the provisions put into place by the
Money Laundering Control Act of 1986 (18 U.S.C. 981 note),
especially with respect to crimes by non-United States
nationals and foreign financial institutions;
(4) to provide a clear national mandate for subjecting to
special scrutiny those foreign jurisdictions, financial
institutions operating outside of the United States, and
classes of international transactions that pose particular,
identifiable opportunities for criminal abuse;
(5) to provide the Secretary of the Treasury (in this title
referred to as the "Secretary") with broad discretion,
subject to the safeguards provided by the Administrative
Procedures Act under title 5, United States Code, to take
measures tailored to the particular money laundering problems
presented by specific foreign jurisdictions, financial
institutions operating outside of the United States, and
classes of international transactions;
(6) to ensure that the employment of such measures by the
Secretary permits appropriate opportunity for comment by
affected financial institutions;
(7) to provide guidance to domestic financial institutions
on particular foreign jurisdictions, financial institutions
operating outside of the United States, and classes of
international transactions that are of primary money
laundering concern to the United States Government;
(8) to ensure that the forfeiture of any assets in
connection with the anti-terrorist efforts of the United
States permits for adequate challenge consistent with
providing due process rights;
(9) to clarify the terms of the safe harbor from civil
liability for filing suspicious activity reports;
(10) to strengthen the authority of the Secretary to issue
and administer geographic targeting orders, and to clarify
that violations of such orders or any other requirement
imposed under the authority contained in chapter 2 of title I
of Public Law 91-508 and subchapters II and III of chapter 53
of title 31, United States Code, may result in criminal and
civil penalties;
(11) to ensure that all appropriate elements of the
financial services industry are subject to appropriate
requirements to report potential money laundering
transactions to proper authorities, and that jurisdictional
disputes do not hinder examination of compliance by financial
institutions with relevant reporting requirements;
(12) to fix responsibility for high level coordination of
the anti-money laundering efforts of the Department of the
Treasury;
(13) to strengthen the ability of financial institutions to
maintain the integrity of their employee population; and
(14) to strengthen measures to prevent the use of the
United States financial system for personal gain by corrupt
foreign officials and to facilitate the repatriation of any
stolen assets to the citizens of countries to whom such
assets belong.
[[Page S10611]]
SEC. 303. 4-YEAR CONGRESSIONAL REVIEW-EXPEDITED
CONSIDERATION.
(a) In General.--Effective on and after the first day of
fiscal year 2005, the provisions of this title and the
amendments made by this title shall terminate if the Congress
enacts a joint resolution, the text after the resolving
clause of which is as follows: "That provisions of the
International Money Laundering Abatement and Anti-Terrorist
Financing Act of 2001, and the amendments made thereby, shall
no longer have the force of law.".
(b) Expedited Consideration.--Any joint resolution
submitted pursuant to this section shall be considered in the
Senate in accordance with the provisions of section 601(b) of
the International Security Assistance and Arms Control Act of
1976. For the purpose of expediting the consideration and
enactment of a joint resolution under this section, a motion
to proceed to the consideration of any such joint resolution
after it has been reported by the appropriate committee,
shall be treated as highly privileged in the House of
Representatives.
Subtitle A--International Counter Money Laundering and Related Measures
SEC. 311. SPECIAL MEASURES FOR JURISDICTIONS, FINANCIAL
INSTITUTIONS, OR INTERNATIONAL TRANSACTIONS OF
PRIMARY MONEY LAUNDERING CONCERN.
(a) In General.--Subchapter II of chapter 53 of title 31,
United States Code, is amended by inserting after section
5318 the following new section:
"SEC. 5318A. SPECIAL MEASURES FOR JURISDICTIONS, FINANCIAL
INSTITUTIONS, OR INTERNATIONAL TRANSACTIONS OF
PRIMARY MONEY LAUNDERING CONCERN.
"(a) International Counter-Money Laundering
Requirements.--
"(1) In general.--The Secretary may require domestic
financial institutions and domestic financial agencies to
take 1 or more of the special measures described in
subsection (b) if the Secretary finds that reasonable grounds
exist for concluding that a jurisdiction outside of the
United States, 1 or more financial institutions operating
outside of the United States, 1 or more classes of
transactions within, or involving, a jurisdiction outside of
the United States, or 1 or more types of accounts is of
primary money laundering concern, in accordance with
subsection (c).
"(2) Form of requirement.--The special measures described
in--
"(A) subsection (b) may be imposed in such sequence or
combination as the Secretary shall determine;
"(B) paragraphs (1) through (4) of subsection (b) may be
imposed by regulation, order, or otherwise as permitted by
law; and
"(C) subsection (b)(5) may be imposed only by regulation.
"(3) Duration of orders; rulemaking.--Any order by which a
special measure described in paragraphs (1) through (4) of
subsection (b) is imposed (other than an order described in
section 5326)--
"(A) shall be issued together with a notice of proposed
rulemaking relating to the imposition of such special
measure; and
"(B) 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 issuance of such
order.
"(4) Process for selecting special measures.--In selecting
which special measure or measures to take under this
subsection, the Secretary--
"(A) shall consult with the Chairman of the Board of
Governors of the Federal Reserve System, any other
appropriate Federal banking agency, as defined in section 3
of the Federal Deposit Insurance Act, the Securities and
Exchange Commission, the National Credit Union Administration
Board, and in the sole discretion of the Secretary such other
agencies and interested parties as the Secretary may find to
be appropriate; and
"(B) shall consider--
"(i) whether similar action has been or is being taken by
other nations or multilateral groups;
"(ii) whether the imposition of any particular special
measure would create a significant competitive disadvantage,
including any undue cost or burden associated with
compliance, for financial institutions organized or licensed
in the United States; and
"(iii) the extent to which the action or the timing of the
action would have a significant adverse systemic impact on
the international payment, clearance, and settlement system,
or on legitimate business activities involving the particular
jurisdiction, institution, or class of transactions.
"(5) No limitation on other authority.--This section shall
not be construed as superseding or otherwise restricting any
other authority granted to the Secretary, or to any other
agency, by this subchapter or otherwise.
"(b) Special Measures.--The special measures referred to
in subsection (a), with respect to a jurisdiction outside of
the United States, financial institution operating outside of
the United States, class of transaction within, or involving,
a jurisdiction outside of the United States, or 1 or more
types of accounts are as follows:
"(1) Recordkeeping and reporting of certain financial
transactions.--
"(A) In general.--The Secretary may require any domestic
financial institution or domestic financial agency to
maintain records, file reports, or both, concerning the
aggregate amount of transactions, or concerning each
transaction, with respect to a jurisdiction outside of the
United States, 1 or more financial institutions operating
outside of the United States, 1 or more classes of
transactions within, or involving, a jurisdiction outside of
the United States, or 1 or more types of accounts if the
Secretary finds any such jurisdiction, institution, or class
of transactions to be of primary money laundering concern.
"(B) Form of records and reports.--Such records and
reports shall be made and retained at such time, in such
manner, and for such period of time, as the Secretary shall
determine, and shall include such information as the
Secretary may determine, including--
"(i) the identity and address of the participants in a
transaction or relationship, including the identity of the
originator of any funds transfer;
"(ii) the legal capacity in which a participant in any
transaction is acting;
"(iii) the identity of the beneficial owner of the funds
involved in any transaction, in accordance with such
procedures as the Secretary determines to be reasonable and
practicable to obtain and retain the information; and
"(iv) a description of any transaction.
"(2) Information relating to beneficial ownership.--In
addition to any other requirement under any other provision
of law, the Secretary may require any domestic financial
institution or domestic financial agency to take such steps
as the Secretary may determine to be reasonable and
practicable to obtain and retain information concerning the
beneficial ownership of any account opened or maintained in
the United States by a foreign person (other than a foreign
entity whose shares are subject to public reporting
requirements or are listed and traded on a regulated exchange
or trading market), or a representative of such a foreign
person, that involves a jurisdiction outside of the United
States, 1 or more financial institutions operating outside of
the United States, 1 or more classes of transactions within,
or involving, a jurisdiction outside of the United States, or
1 or more types of accounts if the Secretary finds any such
jurisdiction, institution, or transaction to be of primary
money laundering concern.
"(3) Information relating to certain payable-through
accounts.--If the Secretary finds a jurisdiction outside of
the United States, 1 or more financial institutions operating
outside of the United States, or 1 or more classes of
transactions within, or involving, a jurisdiction outside of
the United States to be of primary money laundering concern,
the Secretary may require any domestic financial institution
or domestic financial agency that opens or maintains a
payable-through account in the United States for a foreign
financial institution involving any such jurisdiction or any
such financial institution operating outside of the United
States, or a payable through account through which any such
transaction may be conducted, as a condition of opening or
maintaining such account--
"(A) to identify each customer (and representative of such
customer) of such financial institution who is permitted to
use, or whose transactions are routed through, such payable-
through account; and
"(B) to obtain, with respect to each such customer (and
each such representative), information that is substantially
comparable to that which the depository institution obtains
in the ordinary course of business with respect to its
customers residing in the United States.
"(4) Information relating to certain correspondent
accounts.--If the Secretary finds a jurisdiction outside of
the United States, 1 or more financial institutions operating
outside of the United States, or 1 or more classes of
transactions within, or involving, a jurisdiction outside of
the United States to be of primary money laundering concern,
the Secretary may require any domestic financial institution
or domestic financial agency that opens or maintains a
correspondent account in the United States for a foreign
financial institution involving any such jurisdiction or any
such financial institution operating outside of the United
States, or a correspondent account through which any such
transaction may be conducted, as a condition of opening or
maintaining such account--
"(A) to identify each customer (and representative of such
customer) of any such financial institution who is permitted
to use, or whose transactions are routed through, such
correspondent account; and
"(B) to obtain, with respect to each such customer (and
each such representative), information that is substantially
comparable to that which the depository institution obtains
in the ordinary course of business with respect to its
customers residing in the United States.
"(5) Prohibitions or conditions on opening or maintaining
certain correspondent or payable-through accounts.--If the
Secretary finds a jurisdiction outside of the United States,
1 or more financial institutions operating outside of the
United States, or 1 or more classes of transactions within,
or involving, a jurisdiction outside of the United States to
be of primary money laundering concern, the Secretary, in
consultation with the Secretary of State, the Attorney
General, and the Chairman of the Board of Governors of the
Federal Reserve System, may prohibit, or impose conditions
upon, the opening or maintaining in the United States of a
correspondent account or payable-
[[Page S10612]]
through account by any domestic financial institution or
domestic financial agency for or on behalf of a foreign
banking institution, if such correspondent account or
payable-through account involves any such jurisdiction or
institution, or if any such transaction may be conducted
through such correspondent account or payable-through
account.
"(c) Consultations and Information To Be Considered in
Finding Jurisdictions, Institutions, Types of Accounts, or
Transactions To Be of Primary Money Laundering Concern.--
"(1) In general.--In making a finding that reasonable
grounds exist for concluding that a jurisdiction outside of
the United States, 1 or more financial institutions operating
outside of the United States, 1 or more classes of
transactions within, or involving, a jurisdiction outside of
the United States, or 1 or more types of accounts is of
primary money laundering concern so as to authorize the
Secretary to take 1 or more of the special measures described
in subsection (b), the Secretary shall consult with the
Secretary of State, and the Attorney General.
"(2) Additional considerations.--In making a finding
described in paragraph (1), the Secretary shall consider in
addition such information as the Secretary determines to be
relevant, including the following potentially relevant
factors:
"(A) Jurisdictional factors.--In the case of a particular
jurisdiction--
"(i) evidence that organized criminal groups,
international terrorists, or both, have transacted business
in that jurisdiction;
(ii) the extent to which that jurisdiction or financial
institutions operating in that jurisdiction offer bank
secrecy or special tax or regulatory advantages to
nonresidents or nondomiciliaries of that jurisdiction;
"(iii) the substance and quality of administration of the
bank supervisory and counter-money laundering laws of that
jurisdiction;
"(iv) the relationship between the volume of financial
transactions occurring in that jurisdiction and the size of
the economy of the jurisdiction;
"(v) the extent to which that jurisdiction is
characterized as a tax haven or offshore banking or secrecy
haven by credible international organizations or multilateral
expert groups;
"(vi) whether the United States has a mutual legal
assistance treaty with that jurisdiction, and the experience
of United States law enforcement officials, regulatory
officials, and tax administrators in obtaining information
about transactions originating in or routed through or to
such jurisdiction; and
"(vii) the extent to which that jurisdiction is
characterized by high levels of official or institutional
corruption.
"(B) Institutional factors.--In the case of a decision to
apply 1 or more of the special measures described in
subsection (b) only to a financial institution or
institutions, or to a transaction or class of transactions,
or to a type of account, or to all 3, within or involving a
particular jurisdiction--
"(i) the extent to which such financial institutions,
transactions, or types of accounts are used to facilitate or
promote money laundering in or through the jurisdiction;
"(ii) the extent to which such institutions, transactions,
or types of accounts are used for legitimate business
purposes in the jurisdiction; and
"(iii) the extent to which such action is sufficient to
ensure, with respect to transactions involving the
jurisdiction and institutions operating in the jurisdiction,
that the purposes of this subchapter continue to be
fulfilled, and to guard against international money
laundering and other financial crimes.
"(d) Notification of Special Measures Invoked by the
Secretary.--Not later than 10 days after the date of any
action taken by the Secretary under subsection (a)(1), the
Secretary shall notify, in writing, the Committee on
Financial Services of the House of Representatives and the
Committee on Banking, Housing, and Urban Affairs of the
Senate of any such action.
"(e) Study and Report on Foreign Nationals.--
"(1) Study.--The Secretary, in consultation with the
appropriate Federal agencies, including the Federal banking
agencies (as defined in section 3 of the Federal Deposit
Insurance Act), shall conduct a study to--
"(A) determine the most timely and effective way to
require foreign nationals to provide domestic financial
institutions and agencies with appropriate and accurate
information, comparable to that which is required of United
States nationals, concerning their identity, address, and
other related information necessary to enable such
institutions and agencies to comply with the reporting,
information gathering, and other requirements of this
section; and
"(B) consider the need for requiring foreign nationals to
apply for and obtain an identification number, similar to
what is required for United States citizens through a social
security number or tax identification number, prior to
opening an account with a domestic financial institution.
"(2) Report.--The Secretary shall report to Congress not
later than 180 days after the date of enactment of this
section with recommendations for implementing such action
referred to in paragraph (1) in a timely and effective
manner.
"(f) Definitions.--Notwithstanding any other provision of
this subchapter, for purposes of this section, the following
definitions shall apply:
"(1) Bank definitions.--The following definitions shall
apply with respect to a bank:
"(A) Account.--The term `account'--
"(i) means a formal banking or business relationship
established to provide regular services, dealings, and other
financial transactions; and
"(ii) includes a demand deposit, savings deposit, or other
transaction or asset account and a credit account or other
extension of credit.
"(B) Correspondent account.--The term `correspondent
account' means an account established to receive deposits
from, make payments on behalf of a foreign financial
institution, or handle other financial transactions related
to such institution.
"(C) Payable-through account.--The term `payable-through
account' means an account, including a transaction account
(as defined in section 19(b)(1)(C) of the Federal Reserve
Act), opened at a depository institution by a foreign
financial institution by means of which the foreign financial
institution permits its customers to engage, either directly
or through a subaccount, in banking activities usual in
connection with the business of banking in the United States.
"(2) Definitions applicable to institutions other than
banks.--With respect to any financial institution other than
a bank, the Secretary shall, after consultation with the
Securities and Exchange Commission, define by regulation the
term `account', and shall include within the meaning of that
term, to the extent, if any, that the Secretary deems
appropriate, arrangements similar to payable-through and
correspondent accounts.
"(3) Regulatory definition.--The Secretary shall
promulgate regulations defining beneficial ownership of an
account for purposes of this section. Such regulations shall
address issues related to an individual's authority to fund,
direct, or manage the account (including, without limitation,
the power to direct payments into or out of the account), and
an individual's material interest in the income or corpus of
the account, and shall ensure that the identification of
individuals under this section does not extend to any
individual whose beneficial interest in the income or corpus
of the account is immaterial.".
"(4) Other terms.--The Secretary may, by regulation,
further define the terms in paragraphs (1) and (2) and define
other terms for the purposes of this section, as the
Secretary deems appropriate.".
(b) Clerical Amendment.--The table of sections for
subchapter II of chapter 53 of title 31, United States Code,
is amended by inserting after the item relating to section
5318 the following new item:
"5318A. Special measures for jurisdictions, financial institutions, or
international transactions of primary money laundering
concern.".
SEC. 312. SPECIAL DUE DILIGENCE FOR CORRESPONDENT ACCOUNTS
AND PRIVATE BANKING ACCOUNTS.
(a) In General.--Section 5318 of title 31, United States
Code, is amended by adding at the end the following:
"(i) Due Diligence for United States Private Banking and
Correspondent Bank Accounts Involving Foreign Persons.--
"(1) In general.--Each financial institution that
establishes, maintains, administers, or manages a private
banking account or a correspondent account in the United
States for a non-United States person, including a foreign
individual visiting the United States, or a representative of
a non-United States person shall establish appropriate,
specific, and, where necessary, enhanced, due diligence
policies, procedures, and controls to detect and report
instances of money laundering through those accounts.
"(2) Minimum standards for correspondent accounts.--
"(A) In general.--Subparagraph (B) shall apply if a
correspondent account is requested or maintained by, or on
behalf of, a foreign bank operating--
"(i) under an offshore banking license; or
"(ii) under a banking license issued by a foreign country
that has been designated--
"(I) as noncooperative with international anti-money
laundering principles or procedures by an intergovernmental
group or organization of which the United States is a member;
or
"(II) by the Secretary as warranting special measures due
to money laundering concerns.
"(B) Policies, procedures, and controls.--The enhanced due
diligence policies, procedures, and controls required under
paragraph (1) shall, at a minimum, ensure that the financial
institution in the United States takes reasonable steps--
"(i) to ascertain for any such foreign bank, the shares of
which are not publicly traded, the identity of each of the
owners of the foreign bank, and the nature and extent of the
ownership interest of each such owner;
"(ii) to conduct enhanced scrutiny of such account to
guard against money laundering and report any suspicious
transactions under section 5318(g); and
"(iii) to ascertain whether such foreign bank provides
correspondent accounts to other foreign banks and, if so, the
identity of those foreign banks and related due diligence
information, as appropriate under paragraph (1).
[[Page S10613]]
"(3) Minimum standards for private banking accounts.--If a
private banking account is requested or maintained by, or on
behalf of, a non-United States person, then the due diligence
policies, procedures, and controls required under paragraph
(1) shall, at a minimum, ensure that the financial
institution takes reasonable steps--
"(A) to ascertain the identity of the nominal and
beneficial owners of, and the source of funds deposited into,
such account as needed to guard against money laundering and
report any suspicious transactions under section 5318(g); and
"(B) to conduct enhanced scrutiny of any such 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 a senior foreign political figure, to
prevent, detect, and report transactions that may involve the
proceeds of foreign corruption.
"(4) Definitions and regulatory authority.--
"(A) Offshore banking license.--For purposes of this
subsection, the term `offshore banking license' means a
license to conduct banking activities which, as a condition
of the license, prohibits the licensed entity from conducting
banking activities with the citizens of, or with the local
currency of, the country which issued the license.
"(B) Regulatory authority.--The Secretary, in consultation
with the appropriate functional regulators of the affected
financial institutions, may further delineate, by regulation
the due diligence policies, procedures, and controls required
under paragraph (1).".
(b) Effective Date.--The amendments made by this section
shall take effect beginning 180 days after the date of
enactment of this Act with respect to accounts covered by
section 5318(i) of title 31, United States Code, as added by
this section, that are opened before, on, or after the date
of enactment of this Act.
SEC. 313. PROHIBITION ON UNITED STATES CORRESPONDENT ACCOUNTS
WITH FOREIGN SHELL BANKS.
(a) In General.--Section 5318 of title 31, United States
Code, is amended by inserting after section 5318(i), as added
by section 312 of this title, the following:
"(j) Prohibition on United States Correspondent Accounts
With Foreign Shell Banks.--
"(1) In general.--A financial institution described in
subparagraphs (A) through (F) of section 5312(a)(2) (in this
subsection referred to as a `covered financial institution')
shall not establish, maintain, administer, or manage a
correspondent account in the United States for, or on behalf
of, a foreign bank that does not have a physical presence in
any country.
"(2) Prevention of indirect service to foreign shell
banks.--A covered financial institution shall take reasonable
steps to ensure that any correspondent account established,
maintained, administered, or managed by that covered
financial institution in the United States for a foreign bank
is not being used by that foreign bank to indirectly provide
banking services to another foreign bank that does not have a
physical presence in any country. The Secretary shall, by
regulation, delineate the reasonable steps necessary to
comply with this paragraph.
"(3) Exception.--Paragraphs (1) and (2) do not prohibit a
covered financial institution from providing a correspondent
account to a foreign bank, if the foreign bank--
"(A) is an affiliate of a depository institution, credit
union, or foreign bank that maintains a physical presence in
the United States or a foreign country, as applicable; and
"(B) is subject to supervision by a banking authority in
the country regulating the affiliated depository institution,
credit union, or foreign bank described in subparagraph (A),
as applicable.
"(4) Definitions.--For purposes of this subsection--
"(A) the term `affiliate' means a foreign bank that is
controlled by or is under common control with a depository
institution, credit union, or foreign bank; and
"(B) the term `physical presence' means a place of
business that--
"(i) is maintained by a foreign bank;
"(ii) is located at a fixed address (other than solely an
electronic address) in a country in which the foreign bank is
authorized to conduct banking activities, at which location
the foreign bank--
"(I) employs 1 or more individuals on a full-time basis;
and
"(II) maintains operating records related to its banking
activities; and
"(iii) is subject to inspection by the banking authority
which licensed the foreign bank to conduct banking
activities.".
SEC. 314. COOPERATIVE EFFORTS TO DETER MONEY LAUNDERING.
(a) Cooperation Among Financial Institutions, Regulatory
Authorities, and Law Enforcement Authorities.--
(1) Regulations.--The Secretary shall, within 120 days
after the date of enactment of this Act, adopt regulations to
encourage further cooperation among financial institutions,
their regulatory authorities, and law enforcement
authorities, with the specific purpose of encouraging
regulatory authorities and law enforcement authorities to
share with financial institutions information regarding
individuals, entities, and organizations engaged in or
reasonably suspected based on credible evidence of engaging
in terrorist acts or money laundering activities.
(2) Contents.--The regulations promulgated pursuant to
paragraph (1) may--
(A) require that each financial institution designate 1 or
more persons to receive information concerning, and to
monitor accounts of individuals, entities, and organizations
identified, pursuant to paragraph (1); and
(B) further establish procedures for the protection of the
shared information, consistent with the capacity, size, and
nature of the institution to which the particular procedures
apply.
(3) Rule of construction.--The receipt of information by a
financial institution pursuant to this section shall not
relieve or otherwise modify the obligations of the financial
institution with respect to any other person or account.
(4) Use of information.--Information received by a
financial institution pursuant to this section shall not be
used for any purpose other than identifying and reporting on
activities that may involve terrorist acts or money
laundering activities.
(b) Cooperation Among Financial Institutions.--Upon notice
provided to the Secretary, 2 or more financial institutions
and any association of financial institutions may share
information with one another regarding individuals, entities,
organizations, and countries suspected of possible terrorist
or money laundering activities. A financial institution or
association that transmits, receives, or shares such
information for the purposes of identifying and reporting
activities that may involve terrorist acts or money
laundering activities shall not be liable to any person under
any law or regulation of the United States, any constitution,
law, or regulation of any State or political subdivision
thereof, or under any contract or other legally enforceable
agreement (including any arbitration agreement), for such
disclosure or for any failure to provide notice of such
disclosure to the person who is the subject of such
disclosure, or any other person identified in the disclosure,
except where such transmission, receipt, or sharing violates
this section or regulations promulgated pursuant to this
section.
(c) Rule of Construction.--Compliance with the provisions
of this title requiring or allowing financial institutions
and any association of financial institutions to disclose or
share information regarding individuals, entities, and
organizations engaged in or suspected of engaging in
terrorist acts or money laundering activities shall not
constitute a violation of the provisions of title V of the
Gramm-Leach-Bliley Act (Public Law 106-102).
SEC. 315. INCLUSION OF FOREIGN CORRUPTION OFFENSES AS MONEY
LAUNDERING CRIMES.
Section 1956(c)(7)(B) of title 18, United States Code, is
amended--
(1) in clause (ii), by striking "or destruction of
property by means of explosive or fire" and inserting
"destruction of property by means of explosive or fire, or a
crime of violence (as defined in section 16)";
(2) in clause (iii), by striking "1978" and inserting
"1978)"; and
(3) by adding at the end the following:
"(iv) bribery of a public official, or the
misappropriation, theft, or embezzlement of public funds by
or for the benefit of a public official;
"(v) smuggling or export control violations involving--
"(I) an item controlled on the United States Munitions
List established under section 38 of the Arms Export Control
Act (22 U.S.C. 2778); or
"(II) an item controlled under regulations under the
Export Administration Act of 1977 (15 C.F.R. Parts 730-774);
"(vi) an offense with respect to which the United States
would be obligated by a multilateral treaty, either to
extradite the alleged offender or to submit the case for
prosecution, if the offender were found within the territory
of the United States; or
"(vii) the misuse of funds of, or provided by, the
International Monetary Fund in contravention of the Articles
of Agreement of the Fund or the misuse of funds of, or
provided by, any other international financial institution
(as defined in section 1701(c)(2) of the International
Financial Institutions Act (22 U.S.C. 262r(c)(2)) in
contravention of any treaty or other international agreement
to which the United States is a party, including any articles
of agreement of the members of the international financial
institution;".
SEC. 316. ANTI-TERRORIST FORFEITURE PROTECTION.
(a) Right to Contest.--An owner of property that is
confiscated under any provision of law relating to the
confiscation of assets of suspected international terrorists,
may contest that confiscation by filing a claim in the manner
set forth in the Federal Rules of Civil Procedure
(Supplemental Rules for Certain Admiralty and Maritime
Claims), and asserting as an affirmative defense that--
(1) the property is not subject to confiscation under such
provision of law; or
(2) the innocent owner provisions of section 983(d) of
title 18, United States Code, apply to the case.
(b) Evidence.--In considering a claim filed under this
section, the Government may rely on evidence that is
otherwise inadmissible under the Federal Rules of Evidence,
if a court determines that such reliance is necessary to
protect the national security interests of the United States.
(c) Other Remedies.--Nothing in this section shall limit or
otherwise affect any other remedies that may be available to
an owner
[[Page S10614]]
of property under section 983 of title 18, United States
Code, or any other provision of law.
SEC. 317. LONG-ARM JURISDICTION OVER FOREIGN MONEY
LAUNDERERS.
Section 1956(b) of title 18, United States Code, is
amended--
(1) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively, and moving the
margins 2 ems to the right;
(2) by inserting after "(b)" the following:
"Penalties.--
"(1) In general.--";
(3) by inserting ", or section 1957" after "or (a)(3)";
and
(4) by adding at the end the following:
"(2) Jurisdiction over foreign persons.--For purposes of
adjudicating an action filed or enforcing a penalty ordered
under this section, the district courts shall have
jurisdiction over any foreign person, including any financial
institution authorized under the laws of a foreign country,
against whom the action is brought, if service of process
upon the foreign person is made under the Federal Rules of
Civil Procedure or the laws of the country in which the
foreign person is found, and--
"(A) the foreign person commits an offense under
subsection (a) involving a financial transaction that occurs
in whole or in part in the United States;
"(B) the foreign person converts, to his or her own use,
property in which the United States has an ownership interest
by virtue of the entry of an order of forfeiture by a court
of the United States; or
"(C) the foreign person is a financial institution that
maintains a bank account at a financial institution in the
United States.
"(3) Court authority over assets.--A court described in
paragraph (2) may issue a pretrial restraining order or take
any other action necessary to ensure that any bank account or
other property held by the defendant in the United States is
available to satisfy a judgment under this section.
"(4) Federal receiver.--
"(A) In general.--A court described in paragraph (2) may
appoint a Federal Receiver, in accordance with subparagraph
(B) of this paragraph, to collect, marshal, and take custody,
control, and possession of all assets of the defendant,
wherever located, to satisfy a judgment under this section or
section 981, 982, or 1957, including an order of restitution
to any victim of a specified unlawful activity.
"(B) Appointment and authority.--A Federal Receiver
described in subparagraph (A)--
"(i) may be appointed upon application of a Federal
prosecutor or a Federal or State regulator, by the court
having jurisdiction over the defendant in the case;
"(ii) shall be an officer of the court, and the powers of
the Federal Receiver shall include the powers set out in
section 754 of title 28, United States Code; and
"(iii) shall have standing equivalent to that of a Federal
prosecutor for the purpose of submitting requests to obtain
information regarding the assets of the defendant--
"(I) from the Financial Crimes Enforcement Network of the
Department of the Treasury; or
"(II) from a foreign country pursuant to a mutual legal
assistance treaty, multilateral agreement, or other
arrangement for international law enforcement assistance,
provided that such requests are in accordance with the
policies and procedures of the Attorney General.".
SEC. 318. LAUNDERING MONEY THROUGH A FOREIGN BANK.
Section 1956(c) of title 18, United States Code, is amended
by striking paragraph (6) and inserting the following:
"(6) the term `financial institution' includes--
"(A) any financial institution, as defined in section
5312(a)(2) of title 31, United States Code, or the
regulations promulgated thereunder; and
"(B) any foreign bank, as defined in section 1 of the
International Banking Act of 1978 (12 U.S.C. 3101).".
SEC. 319. FORFEITURE OF FUNDS IN UNITED STATES INTERBANK
ACCOUNTS.
(a) Forfeiture From United States Interbank Account.--
Section 981 of title 18, United States Code, is amended by
adding at the end the following:
"(k) Interbank Accounts.--
"(1) In general.--
"(A) In general.--For the purpose of a forfeiture under
this section or under the Controlled Substances Act (21
U.S.C. 801 et seq.), if funds are deposited into an account
at a foreign bank, and that foreign bank has an interbank
account in the United States with a covered financial
institution (as defined in section 5318A of title 31), the
funds shall be deemed to have been deposited into the
interbank account in the United States, and any restraining
order, seizure warrant, or arrest warrant in rem regarding
the funds may be served on the covered financial institution,
and funds in the interbank account, up to the value of the
funds deposited into the account at the foreign bank, may be
restrained, seized, or arrested.
"(B) Authority to suspend.--The Attorney General, in
consultation with the Secretary, may suspend or terminate a
forfeiture under this section if the Attorney General
determines that a conflict of law exists between the laws of
the jurisdiction in which the foreign bank is located and the
laws of the United States with respect to liabilities arising
from the restraint, seizure, or arrest of such funds, and
that such suspension or termination would be in the interest
of justice and would not harm the national interests of the
United States.
"(2) No requirement for government to trace funds.--If a
forfeiture action is brought against funds that are
restrained, seized, or arrested under paragraph (1), it shall
not be necessary for the Government to establish that the
funds are directly traceable to the funds that were deposited
into the foreign bank, nor shall it be necessary for the
Government to rely on the application of section 984.
"(3) Claims brought by owner of the funds.--If a
forfeiture action is instituted against funds restrained,
seized, or arrested under paragraph (1), the owner of the
funds deposited into the account at the foreign bank may
contest the forfeiture by filing a claim under section 983.
"(4) Definitions.--For purposes of this subsection, the
following definitions shall apply:
"(A) Interbank account.--The term `interbank account' has
the same meaning as in section 984(c)(2)(B).
"(B) Owner.--
"(i) In general.--Except as provided in clause (ii), the
term `owner'--
"(I) means the person who was the owner, as that term is
defined in section 983(d)(6), of the funds that were
deposited into the foreign bank at the time such funds were
deposited; and
"(II) does not include either the foreign bank or any
financial institution acting as an intermediary in the
transfer of the funds into the interbank account.
"(ii) Exception.--The foreign bank may be considered the
`owner' of the funds (and no other person shall qualify as
the owner of such funds) only if--
"(I) the basis for the forfeiture action is wrongdoing
committed by the foreign bank; or
"(II) the foreign bank establishes, by a preponderance of
the evidence, that prior to the restraint, seizure, or arrest
of the funds, the foreign bank had discharged all or part of
its obligation to the prior owner of the funds, in which case
the foreign bank shall be deemed the owner of the funds to
the extent of such discharged obligation.".
(b) Bank Records.--Section 5318 of title 31, United States
Code, is amended by adding at the end the following:
"(k) Bank Records Related to Anti-Money Laundering
Programs.--
"(1) Definitions.--For purposes of this subsection, the
following definitions shall apply:
"(A) Appropriate federal banking agency.--The term
`appropriate Federal banking agency' has the same meaning as
in section 3 of the Federal Deposit Insurance Act (12 U.S.C.
1813).
"(B) Incorporated terms.--The terms `correspondent
account', `covered financial institution', and `foreign bank'
have the same meanings as in section 5318A.
"(2) 120-hour rule.--Not later than 120 hours after
receiving a request by an appropriate Federal banking agency
for information related to anti-money laundering compliance
by a covered financial institution or a customer of such
institution, a covered financial institution shall provide to
the appropriate Federal banking agency, or make available at
a location specified by the representative of the appropriate
Federal banking agency, information and account documentation
for any account opened, maintained, administered or managed
in the United States by the covered financial institution.
"(3) Foreign bank records.--
"(A) Summons or subpoena of records.--
"(i) In general.--The Secretary or the Attorney General
may issue a summons or subpoena to any foreign bank that
maintains a correspondent account in the United States and
request records related to such correspondent account,
including records maintained outside of the United States
relating to the deposit of funds into the foreign bank.
"(ii) Service of summons or subpoena.--A summons or
subpoena referred to in clause (i) may be served on the
foreign bank in the United States if the foreign bank has a
representative in the United States, or in a foreign country
pursuant to any mutual legal assistance treaty, multilateral
agreement, or other request for international law enforcement
assistance.
"(B) Acceptance of service.--
"(i) Maintaining records in the united states.--Any
covered financial institution which maintains a correspondent
account in the United States for a foreign bank shall
maintain records in the United States identifying the owners
of such foreign bank and the name and address of a person who
resides in the United States and is authorized to accept
service of legal process for records regarding the
correspondent account.
"(ii) Law enforcement request.--Upon receipt of a written
request from a Federal law enforcement officer for
information required to be maintained under this paragraph,
the covered financial institution shall provide the
information to the requesting officer not later than 7 days
after receipt of the request.
"(C) Termination of correspondent relationship.--
"(i) Termination upon receipt of notice.--A covered
financial institution shall terminate any correspondent
relationship with a foreign bank not later than 10 business
days after receipt of written notice from the Secretary or
the Attorney General that the foreign bank has failed--
"(I) to comply with a summons or subpoena issued under
subparagraph (A); or
[[Page S10615]]
"(II) to initiate proceedings in a United States court
contesting such summons or subpoena.
"(ii) Limitation on liability.--A covered financial
institution shall not be liable to any person in any court or
arbitration proceeding for terminating a correspondent
relationship in accordance with this subsection.
"(iii) Failure to terminate relationship.--Failure to
terminate a correspondent relationship in accordance with
this subsection shall render the covered financial
institution liable for a civil penalty of up to $10,000 per
day until the correspondent relationship is so terminated.".
(c) Grace Period.--Financial institutions affected by
section 5333 of title 31 United States Code, as amended by
this title, shall have 60 days from the date of enactment of
this Act to comply with the provisions of that section.
(d) Requests for Records.--Section 3486(a)(1) of title 18,
United States Code, is amended by striking ", or (II) a
Federal offense involving the sexual exploitation or abuse of
children" and inserting ", (II) a Federal offense involving
the sexual exploitation or abuse of children, or (III) money
laundering, in violation of section 1956, 1957, or 1960 of
this title".
(e) Authority To Order Convicted Criminal To Return
Property Located Abroad.--
(1) Forfeiture of substitute property.--Section 413(p) of
the Controlled Substances Act (21 U.S.C. 853) is amended to
read as follows:
"(p) Forfeiture of Substitute Property.--
"(1) In general.--Paragraph (2) of this subsection shall
apply, if any property described in subsection (a), as a
result of any act or omission of the defendant--
"(A) cannot be located upon the exercise of due diligence;
"(B) has been transferred or sold to, or deposited with, a
third party;
"(C) has been placed beyond the jurisdiction of the court;
"(D) has been substantially diminished in value; or
"(E) has been commingled with other property which cannot
be divided without difficulty.
"(2) Substitute property.--In any case described in any of
subparagraphs (A) through (E) of paragraph (1), the court
shall order the forfeiture of any other property of the
defendant, up to the value of any property described in
subparagraphs (A) through (E) of paragraph (1), as
applicable.
"(3) Return of property to jurisdiction.--In the case of
property described in paragraph (1)(C), the court may, in
addition to any other action authorized by this subsection,
order the defendant to return the property to the
jurisdiction of the court so that the property may be seized
and forfeited.".
(2) Protective orders.--Section 413(e) of the Controlled
Substances Act (21 U.S.C. 853(e)) is amended by adding at the
end the following:
"(4) Order to repatriate and deposit.--
"(A) In general.--Pursuant to its authority to enter a
pretrial restraining order under this section, including its
authority to restrain any property forfeitable as substitute
assets, the court may order a defendant to repatriate any
property that may be seized and forfeited, and to deposit
that property pending trial in the registry of the court, or
with the United States Marshals Service or the Secretary of
the Treasury, in an interest-bearing account, if appropriate.
"(B) Failure to comply.--Failure to comply with an order
under this subsection, or an order to repatriate property
under subsection (p), shall be punishable as a civil or
criminal contempt of court, and may also result in an
enhancement of the sentence of the defendant under the
obstruction of justice provision of the Federal Sentencing
Guidelines.".
SEC. 320. PROCEEDS OF FOREIGN CRIMES.
Section 981(a)(1)(B) of title 18, United States Code, is
amended to read as follows:
"(B) Any property, real or personal, within the
jurisdiction of the United States, constituting, derived
from, or traceable to, any proceeds obtained directly or
indirectly from an offense against a foreign nation, or any
property used to facilitate such an offense, if the offense--
"(i) involves the manufacture, importation, sale, or
distribution of a controlled substance (as that term is
defined for purposes of the Controlled Substances Act), or
any other conduct described in section 1956(c)(7)(B);
"(ii) would be punishable within the jurisdiction of the
foreign nation by death or imprisonment for a term exceeding
1 year; and
"(iii) would be punishable under the laws of the United
States by imprisonment for a term exceeding 1 year, if the
act or activity constituting the offense had occurred within
the jurisdiction of the United States.".
SEC. 321. EXCLUSION OF ALIENS INVOLVED IN MONEY LAUNDERING.
Section 212(a)(2) of the Immigration and Nationality Act of
1952 (8 U.S.C. 1182(a)(2)) is amended by adding at the end
the following:
"(I) Money laundering activities.--Any alien who the
consular officer or the Attorney General knows or has reason
to believe is or has been engaged in activities which, if
engaged in within the United States would constitute a
violation of section 1956 or 1957 of title 18, United States
Code, or has been a knowing assister, abettor, conspirator,
or colluder with others in any such illicit activity is
inadmissible.".
SEC. 322. CORPORATION REPRESENTED BY A FUGITIVE.
Section 2466 of title 18, United States Code, is amended by
designating the present matter as subsection (a), and adding
at the end the following:
"(b) Subsection (a) may be applied to a claim filed by a
corporation if any majority shareholder, or individual filing
the claim on behalf of the corporation is a person to whom
subsection (a) applies.".
SEC. 323. ENFORCEMENT OF FOREIGN JUDGMENTS.
Section 2467 of title 28, United States Code, is amended--
(1) in subsection (d), by adding the following after
paragraph (2):
"(3) Preservation of property.--To preserve the
availability of property subject to a foreign forfeiture or
confiscation judgment, the Government may apply for, and the
court may issue, a restraining order pursuant to section
983(j) of title 18, United States Code, at any time before or
after an application is filed pursuant to subsection (c)(1).
The court, in issuing the restraining order--
"(A) may rely on information set forth in an affidavit
describing the nature of the proceeding investigation
underway in the foreign country, and setting forth a
reasonable basis to believe that the property to be
restrained will be named in a judgment of forfeiture at the
conclusion of such proceeding; or
"(B) may register and enforce a restraining order has been
issued by a court of competent jurisdiction in the foreign
country and certified by the Attorney General pursuant to
subsection (b)(2).
No person may object to the restraining order on any ground
that is the subject to parallel litigation involving the same
property that is pending in a foreign court.";
(2) in subsection (b)(1)(C), by striking "establishing
that the defendant received notice of the proceedings in
sufficient time to enable the defendant" and inserting
"establishing that the foreign nation took steps, in
accordance with the principles of due process, to give notice
of the proceedings to all persons with an interest in the
property in sufficient time to enable such persons";
(3) in subsection (d)(1)(D), by striking "the defendant in
the proceedings in the foreign court did not receive notice"
and inserting "the foreign nation did not take steps, in
accordance with the principles of due process, to give notice
of the proceedings to a person with an interest in the
property"; and
(4) in subsection (a)(2)(A), by inserting ", any violation
of foreign law that would constitute a violation of an
offense for which property could be forfeited under Federal
law if the offense were committed in the United States"
after "United Nations Convention".
SEC. 324. INCREASE IN CIVIL AND CRIMINAL PENALTIES FOR MONEY
LAUNDERING.
(a) Civil Penalties.--Section 5321(a) of title 31, United
States Code, is amended by adding at the end the following:
"(7) Penalties for international counter money laundering
violations.--The Secretary may impose a civil money penalty
in an amount equal to not less than 2 times the amount of the
transaction, but not more than $1,000,000, on any financial
institution or agency that violates any provision of
subsection (i) or (j) of section 5318 or any special measures
imposed under section 5318A.".
(b) Criminal Penalties.--Section 5322 of title 31, United
States Code, is amended by adding at the end the following:
"(d) A financial institution or agency that violates any
provision of subsection (i) or (j) of section 5318, or any
special measures imposed under section 5318A, or any
regulation prescribed under subsection (i) or (j) of section
5318 or section 5318A, shall be fined in an amount equal to
not less than 2 times the amount of the transaction, but not
more than $1,000,000.".
SEC. 325. REPORT AND RECOMMENDATION.
Not later than 30 months after the date of enactment of
this Act, the Secretary, in consultation with the Attorney
General, the Federal banking agencies (as defined at section
3 of the Federal Deposit Insurance Act), the Securities and
Exchange Commission, and such other agencies as the Secretary
may determine, at the discretion of the Secretary, shall
evaluate the operations of the provisions of this subtitle
and make recommendations to Congress as to any legislative
action with respect to this subtitle as the Secretary may
determine to be necessary or advisable.
SEC. 326. REPORT ON EFFECTIVENESS.
The Secretary shall report annually on measures taken
pursuant to this subtitle, and shall submit the report to the
Committee on Banking, Housing, and Urban Affairs of the
Senate and to the Committee on Financial Services of the
House of Representatives.
SEC. 327. CONCENTRATION ACCOUNTS AT FINANCIAL INSTITUTIONS.
Section 5318(h) of title 31, United States Code, as amended
by section 202 of this title, is amended by adding at the end
the following:
"(3) Concentration accounts.--The Secretary may issue
regulations under this subsection that govern maintenance of
concentration accounts by financial institutions, in order to
ensure that such accounts are not used to prevent association
of the
[[Page S10616]]
identity of an individual customer with the movement of funds
of which the customer is the direct or beneficial owner,
which regulations shall, at a minimum--
"(A) prohibit financial institutions from allowing clients
to direct transactions that move their funds into, out of, or
through the concentration accounts of the financial
institution;
"(B) prohibit financial institutions and their employees
from informing customers of the existence of, or the means of
identifying, the concentration accounts of the institution;
and
"(C) require each financial institution to establish
written procedures governing the documentation of all
transactions involving a concentration account, which
procedures shall ensure that, any time a transaction
involving a concentration account commingles funds belonging
to 1 or more customers, the identity of, and specific amount
belonging to, each customer is documented.".
Subtitle B--Currency Transaction Reporting Amendments and Related
Improvements
SEC. 331. AMENDMENTS RELATING TO REPORTING OF SUSPICIOUS
ACTIVITIES.
(a) Amendment Relating to Civil Liability Immunity for
Disclosures.--Section 5318(g)(3) of title 31, United States
Code, is amended to read as follows:
"(3) Liability for disclosures.--
"(A) In general.--Any financial institution that makes a
voluntary disclosure of any possible violation of law or
regulation to a government agency or makes a disclosure
pursuant to this subsection or any other authority, and any
director, officer, employee, or agent of such institution who
makes, or requires another to make any such disclosure, shall
not be liable to any person under any law or regulation of
the United States, any constitution, law, or regulation of
any State or political subdivision of any State, or under any
contract or other legally enforceable agreement (including
any arbitration agreement), for such disclosure or for any
failure to provide notice of such disclosure to the person
who is the subject of such disclosure or any other person
identified in the disclosure.
"(B) Rule of construction.--Subparagraph (A) shall not be
construed as creating--
"(i) any inference that the term `person', as used in such
subparagraph, may be construed more broadly than its ordinary
usage so as to include any government or agency of
government; or
"(ii) any immunity against, or otherwise affecting, any
civil or criminal action brought by any government or agency
of government to enforce any constitution, law, or regulation
of such government or agency.".
(b) Prohibition on Notification of Disclosures.--Section
5318(g)(2) of title 31, United States Code, is amended to
read as follows:
"(2) Notification prohibited.--
"(A) In general.--If a financial institution or any
director, officer, employee, or agent of any financial
institution, voluntarily or pursuant to this section or any
other authority, reports a suspicious transaction to a
government agency--
"(i) the financial institution, director, officer,
employee, or agent may not notify any person involved in the
transaction that the transaction has been reported; and
"(ii) no officer or employee of the Federal Government or
of any State, local, tribal, or territorial government within
the United States, who has any knowledge that such report was
made may disclose to any person involved in the transaction
that the transaction has been reported, other than as
necessary to fulfill the official duties of such officer or
employee.
"(B) Disclosures in certain employment references.--
"(i) Rule of construction.--Notwithstanding the
application of subparagraph (A) in any other context,
subparagraph (A) shall not be construed as prohibiting any
financial institution, or any director, officer, employee, or
agent of such institution, from including information that
was included in a report to which subparagraph (A) applies--
"(I) in a written employment reference that is provided in
accordance with section 18(v) of the Federal Deposit
Insurance Act in response to a request from another financial
institution, except that such written reference may not
disclose that such information was also included in any such
report or that such report was made; or
"(II) in a written termination notice or employment
reference that is provided in accordance with the rules of
the self-regulatory organizations registered with the
Securities and Exchange Commission, except that such written
notice or reference may not disclose that such information
was also included in any such report or that such report was
made.
"(ii) Information not required.--Clause (i) shall not be
construed, by itself, to create any affirmative duty to
include any information described in clause (i) in any
employment reference or termination notice referred to in
clause (i).".
SEC. 332. ANTI-MONEY LAUNDERING PROGRAMS.
Section 5318(h) of title 31, United States Code, is amended
to read as follows:
"(h) Anti-money Laundering Programs.--
"(1) In general.--In order to guard against money
laundering through financial institutions, each financial
institution shall establish anti-money laundering programs,
including, at a minimum--
"(A) the development of internal policies, procedures, and
controls;
"(B) the designation of a compliance officer;
"(C) an ongoing employee training program; and
"(D) an independent audit function to test programs.
"(2) Regulations.--The Secretary may prescribe minimum
standards for programs established under paragraph (1), and
may exempt from the application of those standards any
financial institution that is not subject to the provisions
of the rules contained in part 103 of title 31, of the Code
of Federal Regulations, or any successor rule thereto, for so
long as such financial institution is not subject to the
provisions of such rules.".
SEC. 333. PENALTIES FOR VIOLATIONS OF GEOGRAPHIC TARGETING
ORDERS AND CERTAIN RECORDKEEPING REQUIREMENTS,
AND LENGTHENING EFFECTIVE PERIOD OF GEOGRAPHIC
TARGETING ORDERS.
(a) Civil Penalty for Violation of Targeting Order.--
Section 5321(a)(1) of title 31, United States Code, is
amended--
(1) by inserting "or order issued" after "subchapter or
a regulation prescribed"; and
(2) by inserting ", or willfully violating a regulation
prescribed under section 21 of the Federal Deposit Insurance
Act or section 123 of Public Law 91-508," after "sections
5314 and 5315)".
(b) Criminal Penalties for Violation of Targeting Order.--
Section 5322 of title 31, United States Code, is amended--
(1) in subsection (a)--
(A) by inserting "or order issued" after "willfully
violating this subchapter or a regulation prescribed"; and
(B) by inserting ", or willfully violating a regulation
prescribed under section 21 of the Federal Deposit Insurance
Act or section 123 of Public Law 91-508," after "under
section 5315 or 5324)"; and
(2) in subsection (b)--
(A) by inserting "or order issued" after "willfully
violating this subchapter or a regulation prescribed"; and
(B) by inserting "or willfully violating a regulation
prescribed under section 21 of the Federal Deposit Insurance
Act or section 123 of Public Law 91-508," after "under
section 5315 or 5324),".
(c) Structuring Transactions To Evade Targeting Order or
Certain Recordkeeping Requirements.--Section 5324(a) of title
31, United States Code, is amended--
(1) by inserting a comma after "shall";
(2) by striking "section--" and inserting "section, the
reporting or recordkeeping requirements imposed by any order
issued under section 5326, or the recordkeeping requirements
imposed by any regulation prescribed under section 21 of the
Federal Deposit Insurance Act or section 123 of Public Law
91-508--";
(3) in paragraph (1), by inserting ", to file a report or
to maintain a record required by an order issued under
section 5326, or to maintain a record required pursuant to
any regulation prescribed under section 21 of the Federal
Deposit Insurance Act or section 123 of Public Law 91-508"
after "regulation prescribed under any such section"; and
(4) in paragraph (2), by inserting ", to file a report or
to maintain a record required by any order issued under
section 5326, or to maintain a record required pursuant to
any regulation prescribed under section 5326, or to maintain
a record required pursuant to any regulation prescribed under
section 21 of the Federal Deposit Insurance Act or section
123 of Public Law 91-508," after "regulation prescribed
under any such section".
(d) Lengthening Effective Period of Geographic Targeting
Orders.--Section 5326(d) of title 31, United States Code, is
amended by striking "more than 60" and inserting "more
than 180".
SEC. 334. ANTI-MONEY LAUNDERING STRATEGY.
(b) Strategy.--Section 5341(b) of title 31, United States
Code, is amended by adding at the end the following:
"(12) Data regarding funding of terrorism.--Data
concerning money laundering efforts related to the funding of
acts of international terrorism, and efforts directed at the
prevention, detection, and prosecution of such funding.".
SEC. 335. AUTHORIZATION TO INCLUDE SUSPICIONS OF ILLEGAL
ACTIVITY IN WRITTEN EMPLOYMENT REFERENCES.
Section 18 of the Federal Deposit Insurance Act (12 U.S.C.
1828) is amended by adding at the end the following:
"(v) Written Employment References May Contain Suspicions
of Involvement in Illegal Activity.--
"(1) Authority to disclose information.--Notwithstanding
any other provision of law, any insured depository
institution, and any director, officer, employee, or agent of
such institution, may disclose in any written employment
reference relating to a current or former institution-
affiliated party of such institution which is provided to
another insured depository institution in response to a
request from such other institution, information concerning
the possible involvement of such institution-affiliated party
in potentially unlawful activity.
"(2) Information not required.--Nothing in paragraph (1)
shall be construed, by itself, to create any affirmative duty
to include any information described in paragraph (1) in any
employment reference referred to in paragraph (1).
"(3) Malicious intent.--Notwithstanding any other
provision of this subsection, voluntary disclosure made by an
insured depository institution, and any director, officer,
[[Page S10617]]
employee, or agent of such institution under this subsection
concerning potentially unlawful activity that is made with
malicious intent, shall not be shielded from liability from
the person identified in the disclosure.
"(4) Definition.--For purposes of this subsection, the
term `insured depository institution' includes any uninsured
branch or agency of a foreign bank.".
SEC. 336. BANK SECRECY ACT ADVISORY GROUP.
Section 1564 of the Annunzio-Wylie Anti-Money Laundering
Act (31 U.S.C. 5311 note) is amended--
(1) in subsection (a), by inserting ", of nongovernmental
organizations advocating financial privacy," after "Drug
Control Policy"; and
(2) in subsection (c), by inserting ", other than
subsections (a) and (d) of such Act which shall apply"
before the period at the end.
SEC. 337. AGENCY REPORTS ON RECONCILING PENALTY AMOUNTS.
Not later than 1 year after the date of enactment of this
Act, the Secretary of the Treasury and the Federal banking
agencies (as defined in section 3 of the Federal Deposit
Insurance Act (12 U.S.C. 1813)) shall each submit their
respective reports to the Congress containing recommendations
on possible legislation to conform the penalties imposed on
depository institutions (as defined in section 3 of the
Federal Deposit Insurance Act) for violations of subchapter
II of chapter 53 of title 31, United States Code, to the
penalties imposed on such institutions under section 8 of the
Federal Deposit Insurance Act (12 U.S.C. 1818).
SEC. 338. REPORTING OF SUSPICIOUS ACTIVITIES BY SECURITIES
BROKERS AND DEALERS; INVESTMENT COMPANY STUDY.
(a) 270-Day Regulation Deadline.--Not later than 270 days
after the date of enactment of this Act, the Secretary of the
Treasury, after consultation with the Securities and Exchange
Commission and the Board of Governors of the Federal Reserve
System, shall issue final regulations requiring registered
brokers and dealers to file reports of suspicious financial
transactions, consistent with the requirements applicable to
financial institutions, and directors, officers, employees,
and agents of financial institutions under section 5318(g) of
title 31, United States Code.
(b) Report on Investment Companies.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, Secretary of the Treasury, the Board
of Governors of the Federal Reserve System, and the
Securities and Exchange Commission shall jointly submit a
report to Congress on recommendations for effective
regulations to apply the requirements of subchapter II of
chapter 53 of title 31, United States Code, to investment
companies, pursuant to section 5312(a)(2)(I) of title 31,
United States Code.
(2) Definition.--For purposes of this section, the term
"investment company"--
(A) has the same meaning as in section 3 of the Investment
Company Act of 1940 (15 U.S.C. 80a-3); and
(B) any person that, but for the exceptions provided for in
paragraph (1) or (7) of section 3(c) of the Investment
Company Act of 1940 (15 U.S.C. 80a-3(c)), would be an
investment company.
(3) Additional recommendations.--In its report, the
Securities and Exchange Commission may make different
recommendations for different types of entities covered by
this section.
(4) Beneficial ownership of personal holding companies.--
The report described in paragraph (1) shall also include
recommendations as to whether the Secretary should promulgate
regulations to treat any corporation or business or other
grantor trust whose assets are predominantly securities, bank
certificates of deposit, or other securities or investment
instruments (other than such as relate to operating
subsidiaries of such corporation or trust) and that has 5 or
fewer common shareholders or holders of beneficial or other
equity interest, as a financial institution within the
meaning of that phrase in section 5312(a)(2)(I) and whether
to require such corporations or trusts to disclose their
beneficial owners when opening accounts or initiating funds
transfers at any domestic financial institution.
SEC. 339. SPECIAL REPORT ON ADMINISTRATION OF BANK SECRECY
PROVISIONS.
(a) Report Required.--Not later than 6 months after the
date of enactment of this Act, the Secretary shall submit a
report to the Congress relating to the role of the Internal
Revenue Service in the administration of subchapter II of
chapter 53 of title 31, United States Code (commonly known as
the "Bank Secrecy Act").
(b) Contents.--The report required by subsection (a)--
(1) shall specifically address, and contain recommendations
concerning--
(A) whether it is advisable to shift the processing of
information reporting to the Department of the Treasury under
the Bank Secrecy Act provisions to facilities other than
those managed by the Internal Revenue Service; and
(B) whether it remains reasonable and efficient, in light
of the objective of both anti-money-laundering programs and
Federal tax administration, for the Internal Revenue Service
to retain authority and responsibility for audit and
examination of the compliance of money services businesses
and gaming institutions with those Bank Secrecy Act
provisions; and
(2) shall, if the Secretary determines that the information
processing responsibility or the audit and examination
responsibility of the Internal Revenue Service, or both, with
respect to those Bank Secrecy Act provisions should be
transferred to other agencies, include the specific
recommendations of the Secretary regarding the agency or
agencies to which any such function should be transferred,
complete with a budgetary and resources plan for
expeditiously accomplishing the transfer.
SEC. 340. BANK SECRECY PROVISIONS AND ANTI-TERRORIST
ACTIVITIES OF UNITED STATES INTELLIGENCE
AGENCIES.
(a) Amendment relating to the Purposes of the Bank Secrecy
Act.--Section 5311 of title 31, United States Code, is
amended by inserting before the period at the end the
following: ", or in the conduct of intelligence or
counterintelligence activities, including analysis, to
protect against international terrorism".
(b) Amendment Relating to Reporting of Suspicious
Activities.--Section 5318(g)(4)(B) of title 31, United States
Code, is amended by striking "or supervisory agency" and
inserting ", supervisory agency, or United States
intelligence agency for use in the conduct of intelligence or
counterintelligence activities, including analysis, to
protect against international terrorism".
(c) Amendment Relating to Availability of Reports.--Section
5319 of title 31, United States Code, is amended to read as
follows:
"Sec. 5319. Availability of reports
"The Secretary of the Treasury shall make information in a
report filed under this subchapter available to an agency,
including any State financial institutions supervisory agency
or United States intelligence agency, upon request of the
head of the agency. The report shall be available for a
purpose that is consistent with this subchapter. The
Secretary may only require reports on the use of such
information by any State financial institutions supervisory
agency for other than supervisory purposes or by United
States intelligence agencies. However, a report and records
of reports are exempt from disclosure under section 552 of
title 5.".
(d) Amendment Relating to the Purposes of the Bank Secrecy
Act Provisions.--Section 21(a) of the Federal Deposit
Insurance Act (12 U.S.C. 1829b(a)) is amended to read as
follows:
"(a) Congressional Findings and Declaration of Purpose.--
"(1) Findings.--Congress finds that--
"(A) adequate records maintained by insured depository
institutions have a high degree of usefulness in criminal,
tax, and regulatory investigations or proceedings, and that,
given the threat posed to the security of the Nation on and
after the terrorist attacks against the United States on
September 11, 2001, such records may also have a high degree
of usefulness in the conduct of intelligence or
counterintelligence activities, including analysis, to
protect against domestic and international terrorism; and
"(B) microfilm or other reproductions and other records
made by insured depository institutions of checks, as well as
records kept by such institutions, of the identity of persons
maintaining or authorized to act with respect to accounts
therein, have been of particular value in proceedings
described in subparagraph (A).
"(2) Purpose.--It is the purpose of this section to
require the maintenance of appropriate types of records by
insured depository institutions in the United States where
such records have a high degree of usefulness in criminal,
tax, or regulatory investigations or proceedings, recognizes
that, given the threat posed to the security of the Nation on
and after the terrorist attacks against the United States on
September 11, 2001, such records may also have a high degree
of usefulness in the conduct of intelligence or
counterintelligence activities, including analysis, to
protect against international terrorism.".
(e) Amendment Relating to the Purposes of the Bank Secrecy
Act.--Section 123(a) of Public Law 91-508 (12 U.S.C. 1953(a))
is amended to read as follows:
"(a) Regulations.--If the Secretary determines that the
maintenance of appropriate records and procedures by any
uninsured bank or uninsured institution, or any person
engaging in the business of carrying on in the United States
any of the functions referred to in subsection (b), has a
high degree of usefulness in criminal, tax, or regulatory
investigations or proceedings, and that, given the threat
posed to the security of the Nation on and after the
terrorist attacks against the United States on September 11,
2001, such records may also have a high degree of usefulness
in the conduct of intelligence or counterintelligence
activities, including analysis, to protect against
international terrorism, he may by regulation require such
bank, institution, or person.".
(f) Amendments to the Right to Financial Privacy Act.--The
Right to Financial Privacy Act of 1978 is amended--
(1) in section 1112(a) (12 U.S.C. 3412(a)), by inserting
", or intelligence or counterintelligence activity,
investigation or analysis related to international
terrorism" after "legitimate law enforcement inquiry"; and
(2) in section 1114(a)(1) (12 U.S.C. 3414(a)(1))--
(A) in subparagraph (A), by striking "or" at the end;
(B) in subparagraph (B), by striking the period at the end
and inserting "; or"; and
(C) by adding at the end the following:
[[Page S10618]]
"(C) a Government authority authorized to conduct
investigations of, or intelligence or counterintelligence
analyses related to, international terrorism for the purpose
of conducting such investigations or analyses.".
(g) Amendment to the Fair Credit Reporting Act.--The Fair
Credit Reporting Act (15 U.S.C. 1681 et seq.) is amended by
adding at the end the following new section:
"SEC. 626. DISCLOSURES TO GOVERNMENTAL AGENCIES FOR
COUNTERTERRORISM PURPOSES.
"(a) Disclosure.--Notwithstanding section 604 or any other
provision of this title, a consumer reporting agency shall
furnish a consumer report of a consumer and all other
information in a consumer's file to a government agency
authorized to conduct investigations of, or intelligence or
counterintelligence activities or analysis related to,
international terrorism when presented with a written
certification by such government agency that such information
is necessary for the agency's conduct or such investigation,
activity or analysis.
"(b) Form of Certification.--The certification described
in subsection (a) shall be signed by the Secretary of the
Treasury.
"(c) Confidentiality.--No consumer reporting agency, or
officer, employee, or agent of such consumer reporting
agency, shall disclose to any person, or specify in any
consumer report, that a government agency has sought or
obtained access to information under subsection (a).
"(d) Rule of Construction.--Nothing in section 625 shall
be construed to limit the authority of the Director of the
Federal Bureau of Investigation under this section.
"(e) Safe Harbor.--Notwithstanding any other provision of
this subchapter, any consumer reporting agency or agent or
employee thereof making disclosure of consumer reports or
other information pursuant to this section in good-faith
reliance upon a certification of a governmental agency
pursuant to the provisions of this section shall not be
liable to any person for such disclosure under this
subchapter, the constitution of any State, or any law or
regulation of any State or any political subdivision of any
State.".
SEC. 341. REPORTING OF SUSPICIOUS ACTIVITIES BY HAWALA AND
OTHER UNDERGROUND BANKING SYSTEMS.
(a) Definition for Subchapter.--Section 5312(a)(2)(R) of
title 31, United States Code, is amended to read as follows:
"(R) a licensed sender of money or any other person who
engages as a business in the transmission of funds, including
through an informal value transfer banking system or network
of people facilitating the transfer of value domestically or
internationally outside of the conventional financial
institutions system;".
(b) Money Transmitting Business.--Section 5330(d)(1)(A) of
title 31, United States Code, is amended by inserting before
the semicolon the following: "or any other person who
engages as a business in the transmission of funds, including
through an informal value transfer banking system or network
of people facilitating the transfer of value domestically or
internationally outside of the conventional financial
institutions system;".
(d) Applicability of Rules.--Section 5318 of title 31,
United States Code, as amended by this title, is amended by
adding at the end the following:
"(l) Applicability of Rules.--Any rules promulgated
pursuant to the authority contained in section 21 of the
Federal Deposit Insurance Act (12 U.S.C. 1829b) shall apply,
in addition to any other financial institution to which such
rules apply, to any person that engages as a business in the
transmission of funds, including through an informal value
transfer banking system or network of people facilitating the
transfer of value domestically or internationally outside of
the conventional financial institutions system.".
(e) Report.--Not later than 1 year after the date of
enactment of this Act, the Secretary of the Treasury shall
report to Congress on the need for any additional legislation
relating to informal value transfer banking systems or
networks of people facilitating the transfer of value
domestically or internationally outside of the conventional
financial institutions system, counter money laundering and
regulatory controls relating to underground money movement
and banking systems, such as the system referred to as
`hawala', including whether the threshold for the filing of
suspicious activity reports under section 5318(g) of title
31, United States Code should be lowered in the case of such
systems.
SEC. 342. USE OF AUTHORITY OF UNITED STATES EXECUTIVE
DIRECTORS.
(a) Action by the President.--If the President determines
that a particular foreign country has taken or has committed
to take actions that contribute to efforts of the United
States to respond to, deter, or prevent acts of international
terrorism, the Secretary of the Treasury may, consistent with
other applicable provisions of law, instruct the United
States Executive Director of each international financial
institution to use the voice and vote of the Executive
Director to support any loan or other utilization of the
funds of respective institutions for such country, or any
public or private entity within such country.
(b) Use of Voice and Vote.--The Secretary of the Treasury
may instruct the United States Executive Director of each
international financial institution to aggressively use the
voice and vote of the Executive Director to require an
auditing of disbursements at such institutions to ensure that
no funds are paid to persons who commit, threaten to commit,
or support terrorism.
(c) Definition.--For purposes of this section, the term
"international financial institution" means an institution
described in section 1701(c)(2) of the International
Financial Institutions Act (22 U.S.C. 262r(c)(2)).
Subtitle C--Currency Crimes
SEC. 351. BULK CASH SMUGGLING.
(a) Findings.--Congress finds that--
(1) effective enforcement of the currency reporting
requirements of chapter 53 of title 31, United States Code
(commonly referred to as the Bank Secrecy Act), and the
regulations promulgated thereunder, has forced drug dealers
and other criminals engaged in cash-based businesses to avoid
using traditional financial institutions;
(2) in their effort to avoid using traditional financial
institutions, drug dealers, and other criminals are forced to
move large quantities of currency in bulk form to and through
the airports, border crossings, and other ports of entry
where it can be smuggled out of the United States and placed
in a foreign financial institution or sold on the black
market;
(3) the transportation and smuggling of cash in bulk form
may, at the time of enactment of this Act, be the most common
form of money laundering, and the movement of large sums of
cash is one of the most reliable warning signs of drug
trafficking, terrorism, money laundering, racketeering, tax
evasion, and similar crimes;
(4) the intentional transportation into or out of the
United States of large amounts of currency or monetary
instruments, in a manner designed to circumvent the mandatory
reporting provisions of chapter 53 of title 31, United States
Code, is the equivalent of, and creates the same harm as, the
smuggling of goods;
(5) the arrest and prosecution of bulk cash smugglers is an
important part of law enforcement's effort to stop the
laundering of criminal proceeds, but the couriers who attempt
to smuggle the cash out of the United States are typically
low-level employees of large criminal organizations, and are
easily replaced, and therefore only the confiscation of the
smuggled bulk cash can effectively break the cycle of
criminal activity of which the laundering of bulk cash is a
critical part;
(6) the penalties for violations of the currency reporting
requirements of the chapter 53 of title 31, United States
Code, are insufficient to provide a deterrent to the
laundering of criminal proceeds;
(7) because the only criminal violation under Federal law
before the date of enactment of this Act was a reporting
offense, the law does not adequately provide for the
confiscation of smuggled currency; and
(8) if the smuggling of bulk cash were itself an offense,
the cash could be confiscated as the corpus delicti of the
smuggling offense.
(b) Purposes.--The purposes of this section are--
(1) to make the act of smuggling bulk cash itself a
criminal offense;
(2) to authorize forfeiture of any cash or instruments of
the smuggling offense;
(3) to emphasize the seriousness of the act of bulk cash
smuggling; and
(4) to prescribe guidelines for determining the amount of
property subject to such forfeiture in various situations.
(c) Bulk Cash Smuggling Offense.--
(1) In general.--Subchapter II of chapter 53 of title 31,
United States Code, is amended by adding at the end the
following:
"Sec. 5331. Bulk cash smuggling
"(a) Criminal Offense.--
"(1) In general.--Whoever, with the intent to evade a
currency reporting requirement under section 5316, knowingly
conceals more than $10,000 in currency or other monetary
instruments on his or her person or in any conveyance,
article of luggage, merchandise, or other container, and
transports or transfers or attempts to transport or transfer
the currency or monetary instruments from a place within the
United States to a place outside of the United States, or
from a place outside of the United States to a place within
the United States, shall be guilty of a currency smuggling
offense and subject to punishment under subsection (b).
"(b) Penalties.--
"(1) Prison term.--A person convicted of a currency
smuggling offense under subsection (a), or a conspiracy to
commit such an offense, shall be imprisoned for not more than
5 years.
"(2) Forfeiture.--
"(A) In general.--In addition to a prison term under
paragraph (1), the court, in imposing sentence, shall order
that the defendant forfeit to the United States any property,
real or personal, involved in the offense, and any property
traceable to such property, subject to subsection (d).
"(B) Applicability of other laws.--The seizure, restraint,
and forfeiture of property under this section shall be
governed by section 413 of the Controlled Substances Act (21
U.S.C. 853). If the property subject to forfeiture is
unavailable, and the defendant has no substitute property
that may be forfeited pursuant to section 413(p) of that Act,
the court shall enter a personal money judgment against the
defendant in an amount equal to the value of the unavailable
property.
"(c) Seizure of Smuggling Cash.--
"(1) In general.--Any property involved in a violation of
subsection (a), or a conspiracy
[[Page S10619]]
to commit such violation, and any property traceable thereto,
may be seized and, subject to subsection (d), forfeited to
the United States.
"(2) Applicable procedures.--A seizure and forfeiture
under this subsection shall be governed by the procedures
governing civil forfeitures under section 981(a)(1)(A) of
title 18, United States Code.
"(d) Proportionality of Forfeiture.--
"(1) Mitigation.--Upon a showing by the property owner by
a preponderance of the evidence that the currency or monetary
instruments involved in the offense giving rise to the
forfeiture were derived from a legitimate source and were
intended for a lawful purpose, the court shall reduce the
forfeiture to the maximum amount that is not grossly
disproportional to the gravity of the offense.
"(2) Considerations.--In determining the amount of the
forfeiture under paragraph (1), the court shall consider all
aggravating and mitigating facts and circumstances that have
a bearing on the gravity of the offense, including--
"(A) the value of the currency or other monetary
instruments involved in the offense;
"(B) efforts by the person committing the offense to
structure currency transactions, conceal property, or
otherwise obstruct justice; and
"(C) whether the offense is part of a pattern of repeated
violations of Federal law.
"(e) Rule of Construction.--For purposes of subsections
(b) and (c), any currency or other monetary instrument that
is concealed or intended to be concealed in violation of
subsection (a) or a conspiracy to commit such violation, any
article, container, or conveyance used or intended to be used
to conceal or transport the currency or other monetary
instrument, and any other property used or intended to be
used to facilitate the offense, shall be considered property
involved in the offense.".
(2) Clerical amendment.--The table of sections for chapter
53 of title 31, United States Code, is amended by inserting
after the item relating to section 5330 the following new
item:
"5331. Bulk cash smuggling.".
(d) Currency Reporting Violations.--Section 5317(c) of
title 31, United States Code, is amended to read as follows:
"(c) Forfeiture of Property.--
"(1) In general.--
"(A) Criminal forfeiture.--The court, in imposing sentence
for any violation of section 5313, 5316, or 5324, or any
conspiracy to commit such violation, shall order the
defendant to forfeit all property, real or personal, involved
in the offense and any property traceable thereto.
"(B) Applicable procedures.--Forfeitures under this
paragraph shall be governed by the procedures set forth in
section 413 of the Controlled Substances Act (21 U.S.C. 853),
and the guidelines set forth in paragraph (3) of this
subsection.
"(2) Civil forfeiture.--Any property involved in a
violation of section 5313, 5316, or 5324, or any conspiracy
to commit such violation, and any property traceable thereto,
may be seized and, subject to paragraph (3), forfeited to the
United States in accordance with the procedures governing
civil forfeitures in money laundering cases pursuant to
section 981(a)(1)(A) of title 18, United States Code.
"(3) Mitigation.--In a forfeiture case under this
subsection, upon a showing by the property owner by a
preponderance of the evidence that any currency or monetary
instruments involved in the offense giving rise to the
forfeiture were derived from a legitimate source, and were
intended for a lawful purpose, the court shall reduce the
forfeiture to the maximum amount that is not grossly
disproportional to the gravity of the offense. In determining
the amount of the forfeiture, the court shall consider all
aggravating and mitigating facts and circumstances that have
a bearing on the gravity of the offense. Such circumstances
include, but are not limited to, the following: the value of
the currency or other monetary instruments involved in the
offense; efforts by the person committing the offense to
structure currency transactions, conceal property, or
otherwise obstruct justice; and whether the offense is part
of a pattern of repeated violations.
(e) Conforming Amendments.--Title 18, United States Code,
is amended--
(1) in section 981(a)(1)(A) by striking "of section
5313(a) or 5324(a) of title 31, or"; and
(2) in section 982(a)(1), striking "of section 5313(a),
5316, or 5324 of title 31, or".
Subtitle E--Anticorruption Measures
SEC. 361. CORRUPTION OF FOREIGN GOVERNMENTS AND RULING
ELITES.
It is the sense of Congress that, in deliberations between
the United States Government and any other country on money
laundering and corruption issues, the United States
Government should--
(1) emphasize an approach that addresses not only the
laundering of the proceeds of traditional criminal activity
but also the increasingly endemic problem of governmental
corruption and the corruption of ruling elites;
(2) encourage the enactment and enforcement of laws in such
country to prevent money laundering and systemic corruption;
(3) make clear that the United States will take all steps
necessary to identify the proceeds of foreign government
corruption which have been deposited in United States
financial institutions and return such proceeds to the
citizens of the country to whom such assets belong; and
(4) advance policies and measures to promote good
government and to prevent and reduce corruption and money
laundering, including through instructions to the United
States Executive Director of each international financial
institution (as defined in section 1701(c) of the
International Financial Institutions Act) to advocate such
policies as a systematic element of economic reform programs
and advice to member governments.
SEC. 362. SUPPORT FOR THE FINANCIAL ACTION TASK FORCE ON
MONEY LAUNDERING.
It is the sense of Congress that--
(1) the United States should continue to actively and
publicly support the objectives of the Financial Action Task
Force on Money Laundering (hereafter in this section referred
to as the "FATF") with regard to combating international
money laundering;
(2) the FATF should identify noncooperative jurisdictions
in as expeditious a manner as possible and publicly release a
list directly naming those jurisdictions identified;
(3) the United States should support the public release of
the list naming noncooperative jurisdictions identified by
the FATF;
(4) the United States should encourage the adoption of the
necessary international action to encourage compliance by the
identified noncooperative jurisdictions; and
(5) the United States should take the necessary
countermeasures to protect the United States economy against
money of unlawful origin and encourage other nations to do
the same.
SEC. 363. TERRORIST FUNDING THROUGH MONEY LAUNDERING.
It is the sense of the Congress that, in deliberations and
negotiations between the United States Government and any
other country regarding financial, economic, assistance, or
defense issues, the United States should encourage such other
country--
(1) to take actions which would identify and prevent the
transmittal of funds to and from terrorists and terrorist
organizations; and
(2) to engage in bilateral and multilateral cooperation
with the United States and other countries to identify
suspected terrorists, terrorist organizations, and persons
supplying funds to and receiving funds from terrorists and
terrorist organizations.
TITLE IV--PROTECTING THE BORDER
Subtitle A--Protecting the Northern Border
SEC. 401. ENSURING ADEQUATE PERSONNEL ON THE NORTHERN BORDER.
The Attorney General is authorized to waive any FTE cap on
personnel assigned to the Immigration and Naturalization
Service to address the national security needs of the United
States on the Northern border.
SEC. 402. NORTHERN BORDER PERSONNEL.
There are authorized to be appropriated--
(1) such sums as may be necessary to triple the number of
Border Patrol personnel (from the number authorized under
current law), and the necessary personnel and facilities to
support such personnel, in each State along the Northern
Border;
(2) such sums as may be necessary to triple the number of
Customs Service personnel (from the number authorized under
current law), and the necessary personnel and facilities to
support such personnel, at ports of entry in each State along
the Northern Border;
(3) such sums as may be necessary to triple the number of
INS inspectors (from the number authorized on the date of
enactment of this Act), and the necessary personnel and
facilities to support such personnel, at ports of entry in
each State along the Northern Border; and
(4) an additional $50,000,000 each to the Immigration and
Naturalization Service and the United States Customs Service
for purposes of making improvements in technology for
monitoring the Northern Border and acquiring additional
equipment at the Northern Border.
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.
(a) Amendment of the Immigration and Nationality Act.--
Section 105 of the Immigration and Nationality Act (8 U.S.C.
1105) is amended--
(1) in the section heading, by inserting "; data
exchange" after "security officers";
(2) by inserting "(a)" after "Sec. 105.";
(3) in subsection (a), by inserting "and border" after
"internal" the second place it appears; and
(4) by adding at the end the following:
"(b)(1) The Attorney General and the Director of the
Federal Bureau of Investigation shall provide the Department
of State and the Service access to the criminal history
record information contained in the National Crime
Information Center's Interstate Identification Index (NCIC-
III), Wanted Persons File, and to any other files maintained
by the National Crime Information Center that may be mutually
agreed upon by the Attorney General and the agency receiving
the access, for the purpose of determining whether or not a
visa applicant or applicant for admission has a criminal
history record indexed in any such file.
"(2) Such access shall be provided by means of extracts of
the records for placement in the automated visa lookout or
other
[[Page S10620]]
appropriate database, and shall be provided without any fee
or charge.
"(3) The Federal Bureau of Investigation shall provide
periodic updates of the extracts at intervals mutually agreed
upon with the agency receiving the access. Upon receipt of
such updated extracts, the receiving agency shall make
corresponding updates to its database and destroy previously
provided extracts.
"(4) Access to an extract does not entitle the Department
of State to obtain the full content of the corresponding
automated criminal history record. To obtain the full content
of a criminal history record, the Department of State shall
submit the applicant's fingerprints and any appropriate
fingerprint processing fee authorized by law to the Criminal
Justice Information Services Division of the Federal Bureau
of Investigation.
"(c) The provision of the extracts described in subsection
(b) may be reconsidered by the Attorney General and the
receiving agency upon the development and deployment of a
more cost-effective and efficient means of sharing the
information.
"(d) For purposes of administering this section, the
Department of State shall, prior to receiving access to NCIC
data but not later than 4 months after the date of enactment
of this subsection, promulgate final regulations--
"(1) to implement procedures for the taking of
fingerprints; and
"(2) to establish the conditions for the use of the
information received from the Federal Bureau of
Investigation, in order--
"(A) to limit the redissemination of such information;
"(B) to ensure that such information is used solely to
determine whether or not to issue a visa to an alien or to
admit an alien to the United States;
"(C) to ensure the security, confidentiality, and
destruction of such information; and
"(D) to protect any privacy rights of individuals who are
subjects of such information.".
(b) Reporting Requirement.--Not later than 2 years after
the date of enactment of this Act, the Attorney General and
the Secretary of State jointly shall report to Congress on
the implementation of the amendments made by this section.
(c) Technology Standard to Confirm Identity.--
(1) In General.--The Attorney General and the Secretary of
State jointly, through the National Institute of Standards
and Technology (NIST), and in consultation with the Secretary
of the Treasury and other Federal law enforcement and
intelligence agencies the Attorney General or Secretary of
State deems appropriate, shall within 2 years after the date
of enactment of this section, develop and certify a
technology standard that can confirm the identity of a person
applying for a United States visa or such person seeking to
enter the United States pursuant to a visa.
(2) Integrated.--The technology standard developed pursuant
to paragraph (1), shall be the technological basis for a
cross-agency, cross-platform electronic system that is a
cost-effective, efficient, fully integrated means to share
law enforcement and intelligence information necessary to
confirm the identity of such persons applying for a United
States visa or such person seeking to enter the United States
pursuant to a visa.
(3) Accessible.--The electronic system described in
paragraph (2), once implemented, shall be readily and easily
accessible to--
(A) all consular officers responsible for the issuance of
visas;
(B) all Federal inspection agents at all United States
border inspection points; and
(C) all law enforcement and intelligence officers as
determined by regulation to be responsible for investigation
or identification of aliens admitted to the United States
pursuant to a visa.
(4) Report.--Not later than 18 months after the date of
enactment of this Act, and every 2 years thereafter, the
Attorney General and the Secretary of State shall jointly, in
consultation with the Secretary of Treasury, report to
Congress describing the development, implementation and
efficacy of the technology standard and electronic database
system described in this subsection.
(d) Statutory Construction.--Nothing in this section, or in
any other law, shall be construed to limit the authority of
the Attorney General or the Director of the Federal Bureau of
Investigation to provide access to the criminal history
record information contained in the National Crime
Information Center's (NCIC) Interstate Identification Index
(NCIC-III), or to any other information maintained by the
NCIC, to any Federal agency or officer authorized to enforce
or administer the immigration laws of the United States, for
the purpose of such enforcement or administration, upon terms
that are consistent with the National Crime Prevention and
Privacy Compact Act of 1998 (subtitle A of title II of Public
Law 105-251; 42 U.S.C. 14611-16) and section 552a of title 5,
United States Code.
SEC. 404. LIMITED AUTHORITY TO PAY OVERTIME.
The matter under the headings "Immigration And
Naturalization Service: Salaries and Expenses, Enforcement
And Border Affairs" and "Immigration And Naturalization
Service: Salaries and Expenses, Citizenship And Benefits,
Immigration And Program Direction" in the Department of
Justice Appropriations Act, 2001 (as enacted into law by
Appendix B (H.R. 5548) of Public Law 106-553 (114 Stat.
2762A-58 to 2762A-59)) is amended by striking the following
each place it occurs: "Provided, That none of the funds
available to the Immigration and Naturalization Service shall
be available to pay any employee overtime pay in an amount in
excess of $30,000 during the calendar year beginning January
1, 2001:".
SEC. 405. REPORT ON THE INTEGRATED AUTOMATED FINGERPRINT
IDENTIFICATION SYSTEM FOR POINTS OF ENTRY AND
OVERSEAS CONSULAR POSTS.
(a) In General.--The Attorney General, in consultation with
the appropriate heads of other Federal agencies, including
the Secretary of State, Secretary of the Treasury, and the
Secretary of Transportation, shall report to Congress on the
feasibility of enhancing the Integrated Automated Fingerprint
Identification System (IAFIS) of the Federal Bureau of
Investigation and other identification systems in order to
better identify a person who holds a foreign passport or a
visa and may be wanted in connection with a criminal
investigation in the United States or abroad, before the
issuance of a visa to that person or the entry or exit by
that person from the United States.
(b) Authorization of Appropriations.--There is authorized
to be appropriated not less than $2,000,000 to carry out this
section.
Subtitle B--Enhanced Immigration Provisions
SEC. 411. DEFINITIONS RELATING TO TERRORISM.
(a) Grounds of Inadmissibility.--Section 212(a)(3) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(3)) is
amended--
(1) in subparagraph (B)--
(A) in clause (i)--
(i) by amending subclause (IV) to read as follows:
"(IV) is a representative (as defined in clause (v)) of--
"(aa) a foreign terrorist organization, as designated by
the Secretary of State under section 219, or
"(bb) a political, social or other similar group whose
public endorsement of acts of terrorist activity the
Secretary of State has determined undermines United States
efforts to reduce or eliminate terrorist activities,";
(ii) in subclause (V), by inserting "or" after "section
219,"; and
(iii) by adding at the end the following new subclauses:
"(VI) has used the alien's position of prominence within
any country to endorse or espouse terrorist activity, or to
persuade others to support terrorist activity or a terrorist
organization, in a way that the Secretary of State has
determined undermines United States efforts to reduce or
eliminate terrorist activities, or
"(VII) is the spouse or child of an alien who is
inadmissible under this section, if the activity causing the
alien to be found inadmissible occurred within the last 5
years,";
(B) by redesignating clauses (ii), (iii), and (iv) as
clauses (iii), (iv), and (v), respectively;
(C) in clause (i)(II), by striking "clause (iii)" and
inserting "clause (iv)";
(D) by inserting after clause (i) the following:
"(ii) Exception.--Subclause (VII) of clause (i) does not
apply to a spouse or child--
"(I) who did not know or should not reasonably have known
of the activity causing the alien to be found inadmissible
under this section; or
"(II) whom the consular officer or Attorney General has
reasonable grounds to believe has renounced the activity
causing the alien to be found inadmissible under this
section.";
(E) in clause (iii) (as redesignated by subparagraph (B))--
(i) by inserting "it had been" before "committed in the
United States"; and
(ii) in subclause (V)(b), by striking "or firearm" and
inserting ", firearm, or other weapon or dangerous device";
(F) by amending clause (iv) (as redesignated by
subparagraph (B)) to read as follows:
"(iv) Engage in terrorist activity defined.--As used in
this chapter, the term `engage in terrorist activity' means,
in an individual capacity or as a member of an organization--
"(I) to commit or to incite to commit, under circumstances
indicating an intention to cause death or serious bodily
injury, a terrorist activity;
"(II) to prepare or plan a terrorist activity;
"(III) to gather information on potential targets for
terrorist activity;
"(IV) to solicit funds or other things of value for--
"(aa) a terrorist activity;
"(bb) a terrorist organization described in clauses
(vi)(I) or (vi)(II); or
"(cc) a terrorist organization described in clause
(vi)(III), unless the solicitor can demonstrate that he did
not know, and should not reasonably have known, that the
solicitation would further the organization's terrorist
activity;
"(V) to solicit any individual--
"(aa) to engage in conduct otherwise described in this
clause;
"(bb) for membership in a terrorist organization described
in clauses (vi)(I) or (vi)(II); or
"(cc) for membership in a terrorist organization described
in clause (vi)(III), unless the solicitor can demonstrate
that he did not know, and should not reasonably have known,
that the solicitation would further the organization's
terrorist activity; or
[[Page S10621]]
"(VI) to commit an act that the actor knows, or reasonably
should know, affords material support, including a safe
house, transportation, communications, funds, transfer of
funds or other material financial benefit, false
documentation or identification, weapons (including chemical,
biological, or radiological weapons), explosives, or
training--
"(aa) for the commission of a terrorist activity;
"(bb) to any individual who the actor knows, or reasonably
should know, has committed or plans to commit a terrorist
activity;
"(cc) to a terrorist organization described in clauses
(vi)(I) or (vi)(II); or
"(dd) to a terrorist organization described in clause
(vi)(III), unless the actor can demonstrate that he did not
know, and should not reasonably have known, that the act
would further the organization's terrorist activity.
This clause shall not apply to any material support the alien
afforded to an organization or individual that has committed
terrorist activity, if the Secretary of State, after
consultation with the Attorney General, or the Attorney
General, after consultation with the Secretary of State,
concludes in his sole unreviewable discretion, that this
clause should not apply."; and
(D) by adding at the end the following new clause:
"(vi) Terrorist organization defined.--As used in clause
(i)(VI) and clause (iv), the term `terrorist organization'
means an organization--
"(I) designated under section 219;
"(II) otherwise designated, upon publication in the
Federal Register, by the Secretary of State in consultation
with or upon the request of the Attorney General, as a
terrorist organization, after finding that it engages in the
activities described in subclause (I), (II), or (III) of
clause (iv), or that it provides material support to further
terrorist activity; or
"(III) that is a group of two or more individuals, whether
organized or not, which engages in the activities described
in subclause (I), (II), or (III) of clause (iv)."; and
(2) by adding at the end the following new subparagraph:
"(F) Association with terrorist organizations.--Any alien
who the Secretary of State, after consultation with the
Attorney General, or the Attorney General, after consultation
with the Secretary of State, determines has been associated
with a terrorist organization and intends while in the United
States to engage solely, principally, or incidentally in
activities that could endanger the welfare, safety, or
security of the United States is inadmissible.".
(b) Conforming Amendment.--Section 237(a)(4)(B) of the
Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(B)) is
amended by striking "section 212(a)(3)(B)(iii)" and
inserting "section 212(a)(3)(B)(iv)".
(c) Retroactive Application of Amendments.--
(1) In general.--Except as otherwise provided in this
subsection, the amendments made by this section shall take
effect on the date of enactment of this Act and shall apply
to--
(A) actions taken by an alien before, on, or after such
date; and
(B) all aliens, without regard to the date of entry or
attempted entry into the United States--
(i) in removal proceedings on or after such date (except
for proceedings in which there has been a final
administrative decision before such date); or
(ii) seeking admission to the United States on or after
such date.
(2) Special rule for aliens in exclusion or deportation
proceedings.--Notwithstanding any other provision of law, the
amendments made by this section shall apply to all aliens in
exclusion or deportation proceedings on or after the date of
enactment of this Act (except for proceedings in which there
has been a final administrative decision before such date) as
if such proceedings were removal proceedings.
(3) Special rule for section 219 organizations and
organizations designated under section
212(a)(3)(B)(vi)(II).--
(A) In general.--Notwithstanding paragraphs (1) and (2), no
alien shall be considered inadmissible under section
212(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)), or deportable under section 237(a)(4)(B) of such
Act (8 U.S.C. 1227(a)(4)(B)), by reason of the amendments
made by subsection (a), on the ground that the alien engaged
in a terrorist activity described in subclause (IV)(bb),
(V)(bb), or (VI)(cc) of section 212(a)(3)(B)(iv) of such Act
(as so amended) with respect to a group at any time when the
group was not a terrorist organization designated by the
Secretary of State under section 219 of such Act (8 U.S.C.
1189) or otherwise designated under section
212(a)(3)(B)(vi)(II).
(B) Statutory construction.--Subparagraph (A) shall not be
construed to prevent an alien from being considered
inadmissible or deportable for having engaged in a terrorist
activity--
(i) described in subclause (IV)(bb), (V)(bb), or (VI)(cc)
of section 212(a)(3)(B)(iv) of such Act (as so amended) with
respect to a terrorist organization at any time when such
organization was designated by the Secretary of State under
section 219 of such Act or otherwise designated under section
212(a)(3)(B)(vi)(II); or
(ii) described in subclause (IV)(cc), (V)(cc), or (VI)(dd)
of section 212(a)(3)(B)(iv) of such Act (as so amended) with
respect to a terrorist organization described in section
212(a)(3)(B)(vi)(III).
(4) Exception.--The Secretary of State, in consultation
with the Attorney General, may determine that the amendments
made by this section shall not apply with respect to actions
by an alien taken outside the United States before the date
of enactment of this Act upon the recommendation of a
consular officer who has concluded that there is not
reasonable ground to believe that the alien knew or
reasonably should have known that the actions would further a
terrorist activity.
(c) Designation of Foreign Terrorist Organizations.--
Section 219(a) of the Immigration and Nationality Act (8
U.S.C. 1189(a)) is amended--
(1) in paragraph (1)(B), by inserting "or terrorism (as
defined in section 140(d)(2) of the Foreign Relations
Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C.
2656f(d)(2)) or retains the capability and intent to engage
in terrorist activity or terrorism)" after
"212(a)(3)(B))";
(2) in paragraph (1)(C), by inserting "or terrorism"
after "terrorist activity";
(3) by amending paragraph (2)(A) to read as follows:
"(A) Notice.--
"(i) To congressional leaders.--Seven days before making a
designation under this subsection, the Secretary shall, by
classified communication, notify the Speaker and Minority
Leader of the House of Representatives, the President pro
tempore, Majority Leader, and Minority Leader of the Senate,
and the members of the relevant committees, in writing, of
the intent to designate an organization under this
subsection, together with the findings made under paragraph
(1) with respect to that organization, and the factual basis
therefor.
"(ii) Publication in federal register.--The Secretary
shall publish the designation in the Federal Register seven
days after providing the notification under clause (i).";
(4) in paragraph (2)(B)(i), by striking "subparagraph
(A)" and inserting "subparagraph (A)(ii)";
(5) in paragraph (2)(C), by striking "paragraph (2)" and
inserting "paragraph (2)(A)(i)";
(6) in paragraph (3)(B), by striking "subsection (c)" and
inserting "subsection (b)";
(7) in paragraph (4)(B), by inserting after the first
sentence the following: "The Secretary also may redesignate
such organization at the end of any 2-year redesignation
period (but not sooner than 60 days prior to the termination
of such period) for an additional 2-year period upon a
finding that the relevant circumstances described in
paragraph (1) still exist. Any redesignation shall be
effective immediately following the end of the prior 2-year
designation or redesignation period unless a different
effective date is provided in such redesignation.";
(8) in paragraph (6)(A)--
(A) by inserting "or a redesignation made under paragraph
(4)(B)" after "paragraph (1)";
(B) in clause (i)--
(i) by inserting "or redesignation" after "designation"
the first place it appears; and
(ii) by striking "of the designation"; and
(C) in clause (ii), by striking "of the designation";
(9) in paragraph (6)(B)--
(A) by striking "through (4)" and inserting "and (3)";
and
(B) by inserting at the end the following new sentence:
"Any revocation shall take effect on the date specified in
the revocation or upon publication in the Federal Register if
no effective date is specified.";
(10) in paragraph (7), by inserting ", or the revocation
of a redesignation under paragraph (6)," after "paragraph
(5) or (6)"; and
(11) in paragraph (8)--
(A) by striking "paragraph (1)(B)" and inserting
"paragraph (2)(B), or if a redesignation under this
subsection has become effective under paragraph (4)(B)";
(B) by inserting "or an alien in a removal proceeding"
after "criminal action"; and
(C) by inserting "or redesignation" before "as a
defense".
SEC. 412. MANDATORY DETENTION OF SUSPECTED TERRORISTS; HABEAS
CORPUS; JUDICIAL REVIEW.
(a) In General.--The Immigration and Nationality Act (8
U.S.C. 1101 et seq.) is amended by inserting after section
236 the following:
"MANDATORY DETENTION OF SUSPECTED TERRORISTS; HABEAS CORPUS;
JUDICIAL REVIEW
"Sec. 236A. (a) Detention of Terrorist Aliens.--
"(1) Custody.--The Attorney General shall take into
custody any alien who is certified under paragraph (3).
"(2) Release.--Except as provided in paragraph (5), the
Attorney General shall maintain custody of such an alien
until the alien is removed from the United States. Such
custody shall be maintained irrespective of any relief from
removal for which the alien may be eligible, or any relief
from removal granted the alien, until the Attorney General
determines that the alien is no longer an alien who may be
certified under paragraph (3).
"(3) Certification.--The Attorney General may certify an
alien under this paragraph if the Attorney General has
reasonable grounds to believe that the alien--
"(A) is described in section 212(a)(3)(A)(i),
212(a)(3)(A)(iii), 212(a)(3)(B), 237(a)(4)(A)(i),
237(a)(4)(A)(iii), or 237(a)(4)(B); or
[[Page S10622]]
"(B) is engaged in any other activity that endangers the
national security of the United States.
"(4) Nondelegation.--The Attorney General may delegate the
authority provided under paragraph (3) only to the
Commissioner. The Commissioner may not delegate such
authority.
"(5) Commencement of proceedings.--The Attorney General
shall place an alien detained under paragraph (1) in removal
proceedings, or shall charge the alien with a criminal
offense, not later than 7 days after the commencement of such
detention. If the requirement of the preceding sentence is
not satisfied, the Attorney General shall release the alien.
"(b) Habeas Corpus and Judicial Review.--Judicial review
of any action or decision relating to this section (including
judicial review of the merits of a determination made under
subsection (a)(3)) is available exclusively in habeas corpus
proceedings in the United States District Court for the
District of Columbia. Notwithstanding any other provision of
law, including section 2241 of title 28, United States Code,
except as provided in the preceding sentence, no court shall
have jurisdiction to review, by habeas corpus petition or
otherwise, any such action or decision.
"(c) Statutory Construction.--The provisions of this
section shall not be applicable to any other provisions of
the Immigration and Nationality Act.".
(b) Clerical Amendment.--The table of contents of the
Immigration and Nationality Act is amended by inserting after
the item relating to section 236 the following:
"Sec. 236A. Mandatory detention of suspected terrorist; habeas corpus;
judicial review.".
(c) Reports.--Not later than 6 months after the date of the
enactment of this Act, and every 6 months thereafter, the
Attorney General shall submit a report to the Committee on
the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate, with respect to the
reporting period, on--
(1) the number of aliens certified under section 236A(a)(3)
of the Immigration and Nationality Act, as added by
subsection (a);
(2) the grounds for such certifications;
(3) the nationalities of the aliens so certified;
(4) the length of the detention for each alien so
certified; and
(5) the number of aliens so certified who--
(A) were granted any form of relief from removal;
(B) were removed;
(C) the Attorney General has determined are no longer
aliens who may be so certified; or
(D) were released from detention.
SEC. 413. MULTILATERAL COOPERATION AGAINST TERRORISTS.
Section 222(f) of the Immigration and Nationality Act (8
U.S.C. 1202(f)) is amended--
(1) by striking "except that in the discretion of" and
inserting the following: "except that--
"(1) in the discretion of"; and
(2) by adding at the end the following:
"(2) the Secretary of State, in the Secretary's discretion
and on the basis of reciprocity, may provide to a foreign
government information in the Department of State's
computerized visa lookout database and, when necessary and
appropriate, other records covered by this section related to
information in the database--
"(A) with regard to individual aliens, at any time on a
case-by-case basis for the purpose of preventing,
investigating, or punishing acts that would constitute a
crime in the United States, including, but not limited to,
terrorism or trafficking in controlled substances, persons,
or illicit weapons; or
"(B) with regard to any or all aliens in the database,
pursuant to such conditions as the Secretary of State shall
establish in an agreement with the foreign government in
which that government agrees to use such information and
records for the purposes described in subparagraph (A) or to
deny visas to persons who would be inadmissible to the United
States.".
TITLE V--REMOVING OBSTACLES TO INVESTIGATING TERRORISM
SEC. 501. PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS ACT
OF 2001.
(a) Short Title.--This title may be cited as the
"Professional Standards for Government Attorneys Act of
2001".
(b) Professional Standards for Government Attorneys.--
Section 530B of title 28, United States Code, is amended to
read as follows:
"Sec. 530B. Professional Standards for Government Attorneys
"(a) Definitions.--In this section:
"(1) Government attorney.--The term `Government
attorney'--
"(A) means the Attorney General; the Deputy Attorney
General; the Solicitor General; the Associate Attorney
General; the head of, and any attorney employed in, any
division, office, board, bureau, component, or agency of the
Department of Justice; any United States Attorney; any
Assistant United States Attorney; any Special Assistant to
the Attorney General or Special Attorney appointed under
section 515; any Special Assistant United States Attorney
appointed under section 543 who is authorized to conduct
criminal or civil law enforcement investigations or
proceedings on behalf of the United States; any other
attorney employed by the Department of Justice who is
authorized to conduct criminal or civil law enforcement
proceedings on behalf of the United States; any independent
counsel, or employee of such counsel, appointed under chapter
40; and any outside special counsel, or employee of such
counsel, as may be duly appointed by the Attorney General;
and
"(B) does not include any attorney employed as an
investigator or other law enforcement agent by the Department
of Justice who is not authorized to represent the United
States in criminal or civil law enforcement litigation or to
supervise such proceedings.
"(2) State.--The term `State' includes a Territory and the
District of Columbia.
"(b) Choice of Law.--Subject to any uniform national rule
prescribed by the Supreme Court under chapter 131, the
standards of professional responsibility that apply to a
Government attorney with respect to the attorney's work for
the Government shall be--
"(1) for conduct in connection with a proceeding in or
before a court, or conduct reasonably intended to lead to a
proceeding in or before a court, the standards of
professional responsibility established by the rules and
decisions of the court in or before which the proceeding is
brought or is intended to be brought;
"(2) for conduct in connection with a grand jury
proceeding, or conduct reasonably intended to lead to a grand
jury proceeding, the standards of professional responsibility
established by the rules and decisions of the court under
whose authority the grand jury was or will be impaneled; and
"(3) for all other conduct, the standards of professional
responsibility established by the rules and decisions of the
Federal district court for the judicial district in which the
attorney principally performs his or her official duties.
"(c) Licensure.--A Government attorney (except foreign
counsel employed in special cases)--
"(1) shall be duly licensed and authorized to practice as
an attorney under the laws of a State; and
"(2) shall not be required to be a member of the bar of
any particular State.
"(d) Undercover Activities.--Notwithstanding any provision
of State law, including disciplinary rules, statutes,
regulations, constitutional provisions, or case law, a
Government attorney may, for the purpose of enforcing Federal
law, provide legal advice, authorization, concurrence,
direction, or supervision on conducting undercover
activities, and any attorney employed as an investigator or
other law enforcement agent by the Department of Justice who
is not authorized to represent the United States in criminal
or civil law enforcement litigation or to supervise such
proceedings may participate in such activities, even though
such activities may require the use of deceit or
misrepresentation, where such activities are consistent with
Federal law.
"(e) Admissibility of Evidence.--No violation of any
disciplinary, ethical, or professional conduct rule shall be
construed to permit the exclusion of otherwise admissible
evidence in any Federal criminal proceedings.
"(f) Rulemaking Authority.--The Attorney General shall
make and amend rules of the Department of Justice to ensure
compliance with this section.".
(c) Technical and Conforming Amendment.--The analysis for
chapter 31 of title 28, United States Code, is amended, in
the item relating to section 530B, by striking "Ethical
standards for attorneys for the Government" and inserting
"Professional standards for Government attorneys".
(d) Reports.--
(1) Uniform rule.--In order to encourage the Supreme Court
to prescribe, under chapter 131 of title 28, United States
Code, a uniform national rule for Government attorneys with
respect to communications with represented persons and
parties, not later than 1 year after the date of enactment of
this Act, the Judicial Conference of the United States shall
submit to the Chief Justice of the United States a report,
which shall include recommendations with respect to amending
the Federal Rules of Practice and Procedure to provide for
such a uniform national rule.
(2) Actual or potential conflicts.--Not later than 2 years
after the date of enactment of this Act, the Judicial
Conference of the United States shall submit to the Chairmen
and Ranking Members of the Committees on the Judiciary of the
House of Representatives and the Senate a report, which shall
include--
(A) a review of any areas of actual or potential conflict
between specific Federal duties related to the investigation
and prosecution of violations of Federal law and the
regulation of Government attorneys (as that term is defined
in section 530B of title 28, United States Code, as amended
by this Act) by existing standards of professional
responsibility; and
(B) recommendations with respect to amending the Federal
Rules of Practice and Procedure to provide for additional
rules governing attorney conduct to address any areas of
actual or potential conflict identified pursuant to the
review under subparagraph (A).
(3) Report considerations.--In carrying out paragraphs (1)
and (2), the Judicial Conference of the United States shall
take into consideration--
(A) the needs and circumstances of multiforum and
multijurisdictional litigation;
[[Page S10623]]
(B) the special needs and interests of the United States in
investigating and prosecuting violations of Federal criminal
and civil law; and
(C) practices that are approved under Federal statutory or
case law or that are otherwise consistent with traditional
Federal law enforcement techniques.
SEC. 502. ATTORNEY GENERAL'S AUTHORITY TO PAY REWARDS TO
COMBAT TERRORISM.
(a) Payment of Rewards To Combat Terrorism.--Funds
available to the Attorney General may be used for the payment
of rewards pursuant to public advertisements for assistance
to the Department of Justice to combat terrorism and defend
the Nation against terrorist acts, in accordance with
procedures and regulations established or issued by the
Attorney General.
(b) Conditions.--In making rewards under this section--
(1) no such reward of $250,000 or more may be made or
offered without the personal approval of either the Attorney
General or the President;
(2) the Attorney General shall give written notice to the
Chairmen and ranking minority members of the Committees on
Appropriations and the Judiciary of the Senate and of the
House of Representatives not later than 30 days after the
approval of a reward under paragraph (1);
(3) any executive agency or military department (as
defined, respectively, in sections 105 and 102 of title 5,
United States Code) may provide the Attorney General with
funds for the payment of rewards;
(4) neither the failure of the Attorney General to
authorize a payment nor the amount authorized shall be
subject to judicial review; and
(5) no such reward shall be subject to any per- or
aggregate reward spending limitation established by law,
unless that law expressly refers to this section, and no
reward paid pursuant to any such offer shall count toward any
such aggregate reward spending limitation.
SEC. 503. SECRETARY OF STATE'S AUTHORITY TO PAY REWARDS.
Section 36 of the State Department Basic Authorities Act of
1956 (Public Law 885, August 1, 1956; 22 U.S.C. 2708) is
amended--
(1) in subsection (b)--
(A) in paragraph (4), by striking "or" at the end;
(B) in paragraph (5), by striking the period at the end and
inserting ", including by dismantling an organization in
whole or significant part; or"; and
(C) by adding at the end the following:
"(6) the identification or location of an individual who
holds a key leadership position in a terrorist
organization.";
(2) in subsection (d), by striking paragraphs (2) and (3)
and redesignating paragraph (4) as paragraph (2); and
(3) in subsection (e)(1), by inserting ", except as
personally authorized by the Secretary of State if he
determines that offer or payment of an award of a larger
amount is necessary to combat terrorism or defend the Nation
against terrorist acts." after "$5,000,000".
SEC. 504. DNA IDENTIFICATION OF TERRORISTS AND OTHER VIOLENT
OFFENDERS.
Section 3(d)(2) of the DNA Analysis Backlog Elimination Act
of 2000 (42 U.S.C. 14135a(d)(2)) is amended to read as
follows:
"(2) In additional to the offenses described in paragraph
(1), the following offenses shall be treated for purposes of
this section as qualifying Federal offenses, as determined by
the Attorney General:
"(A) Any offense listed in section 2332b(g)(5)(B) of title
18, United States Code.
"(B) Any crime of violence (as defined in section 16 of
title 18, United States Code).
"(C) Any attempt or conspiracy to commit any of the above
offenses.".
SEC. 505. COORDINATION WITH LAW ENFORCEMENT.
(a) Information Acquired From an Electronic Surveillance.--
Section 106 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1806), is amended by adding at the end the
following:
"(k)(1) Federal officers who conduct electronic
surveillance to acquire foreign intelligence information
under this title may consult with Federal law enforcement
officers to coordinate efforts to investigate or protect
against--
"(A) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
"(B) sabotage or international terrorism by a foreign
power or an agent of a foreign power; or
"(C) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power.
"(2) Coordination authorized under paragraph (1) shall not
preclude the certification required by section 104(a)(7)(B)
or the entry of an order under section 105.".
(b) Information Acquired From a Physical Search.--Section
305 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1825) is amended by adding at the end the following:
"(k)(1) Federal officers who conduct physical searches to
acquire foreign intelligence information under this title may
consult with Federal law enforcement officers to coordinate
efforts to investigate or protect against--
"(A) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
"(B) sabotage or international terrorism by a foreign
power or an agent of a foreign power; or
"(C) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power.
"(2) Coordination authorized under paragraph (1) shall not
preclude the certification required by section 303(a)(7) or
the entry of an order under section 304.".
SEC. 506. MISCELLANEOUS NATIONAL SECURITY AUTHORITIES.
(a) Telephone Toll and Transactional Records.--Section
2709(b) of title 18, United States Code, is amended--
(1) in the matter preceding paragraph (1), by inserting
"at Bureau headquarters or a Special Agent in Charge in a
Bureau field office designated by the Director" after
"Assistant Director";
(2) in paragraph (1)--
(A) by striking "in a position not lower than Deputy
Assistant Director"; and
(B) by striking "made that" and all that follows and
inserting the following: "made that the name, address,
length of service, and toll billing records sought are
relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a United
States person is not conducted solely on the basis of
activities protected by the first amendment to the
Constitution of the United States; and"; and
(3) in paragraph (2)--
(A) by striking "in a position not lower than Deputy
Assistant Director"; and
(B) by striking "made that" and all that follows and
inserting the following: "made that the information sought
is relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a United
States person is not conducted solely upon the basis of
activities protected by the first amendment to the
Constitution of the United States.".
(b) Financial Records.--Section 1114(a)(5)(A) of the Right
to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)) is
amended--
(1) by inserting "in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent
in Charge in a Bureau field office designated by the
Director" after "designee"; and
(2) by striking "sought" and all that follows and
inserting "sought for foreign counter intelligence purposes
to protect against international terrorism or clandestine
intelligence activities, provided that such an investigation
of a United States person is not conducted solely upon the
basis of activities protected by the first amendment to the
Constitution of the United States.".
(c) Consumer Reports.--Section 624 of the Fair Credit
Reporting Act (15 U.S.C. 1681u) is amended--
(1) in subsection (a)--
(A) by inserting "in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent
in Charge of a Bureau field office designated by the
Director" after "designee" the first place it appears; and
(B) by striking "in writing that" and all that follows
through the end and inserting the following: "in writing,
that such information is sought for the conduct of an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided
that such an investigation of a United States person is not
conducted solely upon the basis of activities protected by
the first amendment to the Constitution of the United
States.";
(2) in subsection (b)--
(A) by inserting "in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent
in Charge of a Bureau field office designated by the
Director" after "designee" the first place it appears; and
(B) by striking "in writing that" and all that follows
through the end and inserting the following: "in writing
that such information is sought for the conduct of an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided
that such an investigation of a United States person is not
conducted solely upon the basis of activities protected by
the first amendment to the Constitution of the United
States."; and
(3) in subsection (c)--
(A) by inserting "in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent
in Charge in a Bureau field office designated by the
Director" after "designee of the Director"; and
(B) by striking "in camera that" and all that follows
through "States." and inserting the following: "in camera
that the consumer report is sought for the conduct of an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided
that such an investigation of a United States person is not
conducted solely upon the basis of activities protected by
the first amendment to the Constitution of the United
States.".
SEC. 507. EXTENSION OF SECRET SERVICE JURISDICTION.
(a) Concurrent Jurisdiction Under 18 U.S.C. 1030.--Section
1030(d) of title 18, United States Code, is amended to read
as follows:
"(d)(1) The United States Secret Service shall, in
addition to any other agency having
[[Page S10624]]
such authority, have the authority to investigate offenses
under this section.
"(2) The Federal Bureau of Investigation shall have
primary authority to investigate offenses under subsection
(a)(1) for any cases involving espionage, foreign
counterintelligence, information protected against
unauthorized disclosure for reasons of national defense or
foreign relations, or Restricted Data (as that term is
defined in section 11y of the Atomic Energy Act of 1954 (42
U.S.C. 2014(y)), except for offenses affecting the duties of
the United States Secret Service pursuant to section 3056(a)
of this title.
"(3) Such authority shall be exercised in accordance with
an agreement which shall be entered into by the Secretary of
the Treasury and the Attorney General.".
(b) Reauthorization of Jurisdiction under 18 U.S.C. 1344.--
Section 3056(b)(3) of title 18, United States Code, is
amended by striking "credit and debit card frauds, and false
identification documents or devices" and inserting "access
device frauds, false identification documents or devices, and
any fraud or other criminal or unlawful activity in or
against any federally insured financial institution".
SEC. 508. DISCLOSURE OF EDUCATIONAL RECORDS.
Section 444 of the General Education Provisions Act (20
U.S.C. 1232g), is amended by adding after subsection (i) a
new subsection (j) to read as follows:
"(j) Investigation and Prosecution of Terrorism.--
"(1) In general.--Notwithstanding subsections (a) through
(i) or any provision of State law, the Attorney General (or
any Federal officer or employee, in a position not lower than
an Assistant Attorney General, designated by the Attorney
General) may submit a written application to a court of
competent jurisdiction for an ex parte order requiring an
educational agency or institution to permit the Attorney
General (or his designee) to--
"(A) collect education records in the possession of the
educational agency or institution that are relevant to an
authorized investigation or prosecution of an offense listed
in section 2332b(g)(5)(B) of title 18 United States Code, or
an act of domestic or international terrorism as defined in
section 2331 of that title; and
"(B) for official purposes related to the investigation or
prosecution of an offense described in paragraph (1)(A),
retain, disseminate, and use (including as evidence at trial
or in other administrative or judicial proceedings) such
records, consistent with such guidelines as the Attorney
General, after consultation with the Secretary, shall issue
to protect confidentiality.
"(2) Application and approval.--
"(A) In general.--An application under paragraph (1) shall
certify that there are specific and articulable facts giving
reason to believe that the education records are likely to
contain information described in paragraph (1)(A).
"(B) The court shall issue an order described in paragraph
(1) if the court finds that the application for the order
includes the certification described in subparagraph (A).
"(3) Protection of educational agency or institution.--An
educational agency or institution that, in good faith,
produces education records in accordance with an order issued
under this subsection shall not be liable to any person for
that production.
"(4) Record-keeping.--Subsection (b)(4) does not apply to
education records subject to a court order under this
subsection.".
SEC. 509. DISCLOSURE OF INFORMATION FROM NCES SURVEYS.
Section 408 of the National Education Statistics Act of
1994 (20 U.S.C. 9007), is amended by adding after subsection
(b) a new subsection (c) to read as follows:
"(c) Investigation and Prosecution of Terrorism.--
"(1) In General.--Notwithstanding subsections (a) and (b),
the Attorney General (or any Federal officer or employee, in
a position not lower than an Assistant Attorney General,
designated by the Attorney General) may submit a written
application to a court of competent jurisdiction for an ex
parte order requiring the Secretary to permit the Attorney
General (or his designee) to--
"(A) collect reports, records, and information (including
individually identifiable information) in the possession of
the center that are relevant to an authorized investigation
or prosecution of an offense listed in section 2332b(g)(5)(B)
of title 18, United States Code, or an act of domestic or
international terrorism as defined in section 2331 of that
title; and
"(B) for official purposes related to the investigation or
prosecution of an offense described in paragraph (1)(A),
retain, disseminate, and use (including as evidence at trial
or in other administrative or judicial proceedings) such
information, consistent with such guidelines as the Attorney
General, after consultation with the Secretary, shall issue
to protect confidentiality.
"(2) Application and approval.--
"(A) In general.--An application under paragraph (1) shall
certify that there are specific and articulable facts giving
reason to believe that the information sought is described in
paragraph (1)(A).
"(B) The court shall issue an order described in paragraph
(1) if the court finds that the application for the order
includes the certification described in subparagraph (A).
"(3) Protection.--An officer or employee of the Department
who, in good faith, produces information in accordance with
an order issued under this subsection does not violate
subsection (b)(2) and shall not be liable to any person for
that production.".
TITLE VI--PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS,
AND THEIR FAMILIES
Subtitle A--Aid to 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.
(a) In General.--Notwithstanding the limitations of
subsection (b) of section 1201 or the provisions of
subsections (c), (d), and (e) of such section or section 1202
of title I of the Omnibus Crime Control and Safe Streets Act
of 1968 (42 U.S.C. 3796, 3796a), upon certification
(containing identification of all eligible payees of benefits
pursuant to section 1201 of such Act) by a public agency that
a public safety officer employed by such agency was killed or
suffered a catastrophic injury producing permanent and total
disability as a direct and proximate result of a personal
injury sustained in the line of duty as described in section
1201 of such Act in connection with prevention,
investigation, rescue, or recovery efforts related to a
terrorist attack, the Director of the Bureau of Justice
Assistance shall authorize payment to qualified
beneficiaries, said payment to be made not later than 30 days
after receipt of such certification, benefits described under
subpart 1 of part L of such Act (42 U.S.C. 3796 et seq.).
(b) Definitions.--For purposes of this section, the terms
"catastrophic injury", "public agency", and "public
safety officer" have the same meanings given such terms in
section 1204 of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3796b).
SEC. 612. TECHNICAL CORRECTION WITH RESPECT TO EXPEDITED
PAYMENTS FOR HEROIC PUBLIC SAFETY OFFICERS.
Section 1 of Public Law 107-37 (an Act to provide for the
expedited payment of certain benefits for a public safety
officer who was killed or suffered a catastrophic injury as a
direct and proximate result of a personal injury sustained in
the line of duty in connection with the terrorist attacks of
September 11, 2001) is amended by--
(1) inserting before "by a" the following: "(containing
identification of all eligible payees of benefits pursuant to
section 1201)";
(2) inserting "producing permanent and total disability"
after "suffered a catastrophic injury"; and
(2) striking "1201(a)" and inserting "1201".
SEC. 613. PUBLIC SAFETY OFFICERS BENEFIT PROGRAM PAYMENT
INCREASE.
(a) Payments.--Section 1201(a) of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3796) is amended by
striking "$100,000" and inserting "$250,000".
(b) Applicability.--The amendment made by subsection (a)
shall apply to any death or disability occurring on or after
January 1, 2001.
SEC. 614. OFFICE OF JUSTICE PROGRAMS.
Section 112 of title I of section 101(b) of division A of
Public Law 105-277 and section 108(a) of appendix A of Public
Law 106-113 (113 Stat. 1501A-20) are amended--
(1) after "that Office", each place it occurs, by
inserting "(including, notwithstanding any contrary
provision of law (unless the same should expressly refer to
this section), any organization that administers any program
established in title 1 of Public Law 90-351)"; and
(2) by inserting "functions, including any" after
"all".
Subtitle B--Amendments to the Victims of Crime Act of 1984
SEC. 621. CRIME VICTIMS FUND.
(a) Deposit of Gifts in the Fund.--Section 1402(b) of the
Victims of Crime Act of 1984 (42 U.S.C. 10601(b)) is
amended--
(1) in paragraph (3), by striking "and" at the end;
(2) in paragraph (4), by striking the period at the end and
inserting "; and"; and
(3) by adding at the end the following:
"(5) any gifts, bequests, or donations to the Fund from
private entities or individuals.".
(b) Formula for Fund Distributions.--Section 1402(c) of the
Victims of Crime Act of 1984 (42 U.S.C. 10601(c)) is amended
to read as follows:
"(c) Fund Distribution; Retention of Sums in Fund;
Availability for Expenditure Without Fiscal Year
Limitation.--
"(1) Subject to the availability of money in the Fund, in
each fiscal year, beginning with fiscal year 2003, the
Director shall distribute not less than 90 percent nor more
than 110 percent of the amount distributed from the Fund in
the previous fiscal year, except the Director may distribute
up to 120 percent of the amount distributed in the previous
fiscal year in any fiscal year that the total amount
available in the Fund is more than 2 times the amount
distributed in the previous fiscal year.
"(2) In each fiscal year, the Director shall distribute
amounts from the Fund in accordance with subsection (d). All
sums not distributed during a fiscal year shall remain in
reserve in the Fund to be distributed during a subsequent
fiscal year. Notwithstanding any other provision of law, all
sums deposited in the Fund that are not distributed
[[Page S10625]]
shall remain in reserve in the Fund for obligation in future
fiscal years, without fiscal year limitation.".
(c) Allocation of Funds for Costs and Grants.--Section
1402(d)(4) of the Victims of Crime Act of 1984 (42 U.S.C.
10601(d)(4)) is amended--
(1) by striking "deposited in" and inserting "to be
distributed from";
(2) in subparagraph (A), by striking "48.5" and inserting
"47.5";
(3) in subparagraph (B), by striking "48.5" and inserting
"47.5"; and
(4) in subparagraph (C), by striking "3" and inserting
"5".
(d) Antiterrorism Emergency Reserve.--Section 1402(d)(5) of
the Victims of Crime Act of 1984 (42 U.S.C. 10601(d)(5)) is
amended to read as follows:
"(5)(A) In addition to the amounts distributed under
paragraphs (2), (3), and (4), the Director may set aside up
to $50,000,000 from the amounts transferred to the Fund for
use in responding to the airplane hijackings and terrorist
acts that occurred on September 11, 2001, as an antiterrorism
emergency reserve. The Director may replenish any amounts
expended from such reserve in subsequent fiscal years by
setting aside up to 5 percent of the amounts remaining in the
Fund in any fiscal year after distributing amounts under
paragraphs (2), (3) and (4). Such reserve shall not exceed
$50,000,000.
"(B) The antiterrorism emergency reserve referred to in
subparagraph (A) may be used for supplemental grants under
section 1404B and to provide compensation to victims of
international terrorism under section 1404C.
"(C) Amounts in the antiterrorism emergency reserve
established pursuant to subparagraph (A) may be carried over
from fiscal year to fiscal year. Notwithstanding subsection
(c) and section 619 of the Departments of Commerce, Justice,
and State, the Judiciary, and Related Agencies Appropriations
Act, 2001 (and any similar limitation on Fund obligations in
any future Act, unless the same should expressly refer to
this section), any such amounts carried over shall not be
subject to any limitation on obligations from amounts
deposited to or available in the Fund.".
(e) Victims of September 11, 2001.--Amounts transferred to
the Crime Victims Fund for use in responding to the airplane
hijackings and terrorist acts (including any related search,
rescue, relief, assistance, or other similar activities) that
occurred on September 11, 2001, shall not be subject to any
limitation on obligations from amounts deposited to or
available in the Fund, notwithstanding--
(1) section 619 of the Departments of Commerce, Justice,
and State, the Judiciary, and Related Agencies Appropriations
Act, 2001, and any similar limitation on Fund obligations in
such Act for Fiscal Year 2002; and
(2) subsections (c) and (d) of section 1402 of the Victims
of Crime Act of 1984 (42 U.S.C. 10601).
SEC. 622. CRIME VICTIM COMPENSATION.
(a) Allocation of Funds for Compensation and Assistance.--
Paragraphs (1) and (2) of section 1403(a) of the Victims of
Crime Act of 1984 (42 U.S.C. 10602(a)) are amended by
inserting "in fiscal year 2002 and of 60 percent in
subsequent fiscal years" after "40 percent".
(b) Location of Compensable Crime.--Section 1403(b)(6)(B)
of the Victims of Crime Act of 1984 (42 U.S.C.
10602(b)(6)(B)) is amended by striking "are outside the
United States (if the compensable crime is terrorism, as
defined in section 2331 of title 18), or".
(c) Relationship of Crime Victim Compensation to Means-
Tested Federal Benefit Programs.--Section 1403 of the Victims
of Crime Act of 1984 (42 U.S.C. 10602) is amended by striking
subsection (c) and inserting the following:
"(c) Exclusion From Income, Resources, and Assets for
Purposes of Means Tests.--Notwithstanding any other law
(other than title IV of Public Law 107-42), for the purpose
of any maximum allowed income, resource, or asset eligibility
requirement in any Federal, State, or local government
program using Federal funds that provides medical or other
assistance (or payment or reimbursement of the cost of such
assistance), any amount of crime victim compensation that the
applicant receives through a crime victim compensation
program under this section shall not be included in the
income, resources, or assets of the applicant, nor shall that
amount reduce the amount of the assistance available to the
applicant from Federal, State, or local government programs
using Federal funds, unless the total amount of assistance
that the applicant receives from all such programs is
sufficient to fully compensate the applicant for losses
suffered as a result of the crime.".
(d) Definitions of "Compensable Crime" and "State".--
Section 1403(d) of the Victims of Crime Act of 1984 (42
U.S.C. 10602(d)) is amended--
(1) in paragraph (3), by striking "crimes involving
terrorism,"; and
(2) in paragraph (4), by inserting "the United States
Virgin Islands," after "the Commonwealth of Puerto Rico,".
(e) Relationship of Eligible Crime Victim Compensation
Programs to the September 11th Victim Compensation Fund.--
(1) In general.--Section 1403(e) of the Victims of Crime
Act of 1984 (42 U.S.C. 10602(e)) is amended by inserting
"including the program established under title IV of Public
Law 107-42," after "Federal program,".
(2) Compensation.--With respect to any compensation payable
under title IV of Public Law 107-42, the failure of a crime
victim compensation program, after the effective date of
final regulations issued pursuant to section 407 of Public
Law 107-42, to provide compensation otherwise required
pursuant to section 1403 of the Victims of Crime Act of 1984
(42 U.S.C. 10602) shall not render that program ineligible
for future grants under the Victims of Crime Act of 1984.
SEC. 623. CRIME VICTIM ASSISTANCE.
(a) Assistance for Victims in the District of Columbia,
Puerto Rico, and Other Territories and Possessions.--Section
1404(a) of the Victims of Crime Act of 1984 (42 U.S.C.
10603(a)) is amended by adding at the end the following:
"(6) An agency of the Federal Government performing local
law enforcement functions in and on behalf of the District of
Columbia, the Commonwealth of Puerto Rico, the United States
Virgin Islands, or any other territory or possession of the
United States may qualify as an eligible crime victim
assistance program for the purpose of grants under this
subsection, or for the purpose of grants under subsection
(c)(1).".
(b) Prohibition on Discrimination Against Certain
Victims.--Section 1404(b)(1) of the Victims of Crime Act of
1984 (42 U.S.C. 10603(b)(1)) is amended--
(1) in subparagraph (D), by striking "and" at the end;
(2) in subparagraph (E), by striking the period at the end
and inserting "; and"; and
(3) by adding at the end the following:
"(F) does not discriminate against victims because they
disagree with the way the State is prosecuting the criminal
case.".
(c) Grants for Program Evaluation and Compliance Efforts.--
Section 1404(c)(1)(A) of the Victims of Crime Act of 1984 (42
U.S.C. 10603(c)(1)(A)) is amended by inserting ", program
evaluation, compliance efforts," after "demonstration
projects".
(d) Allocation of Discretionary Grants.--Section 1404(c)(2)
of the Victims of Crime Act of 1984 (42 U.S.C. 10603(c)(2))
is amended--
(1) in subparagraph (A), by striking "not more than" and
inserting "not less than"; and
(2) in subparagraph (B), by striking "not less than" and
inserting "not more than".
(e) Fellowships and Clinical Internships.--Section
1404(c)(3) of the Victims of Crime Act of 1984 (42 U.S.C.
10603(c)(3)) is amended--
(1) in subparagraph (C), by striking "and" at the end;
(2) in subparagraph (D), by striking the period at the end
and inserting "; and"; and
(3) by adding at the end the following:
"(E) use funds made available to the Director under this
subsection--
"(i) for fellowships and clinical internships; and
"(ii) to carry out programs of training and special
workshops for the presentation and dissemination of
information resulting from demonstrations, surveys, and
special projects.".
SEC. 624. VICTIMS OF TERRORISM.
(a) Compensation and Assistance to Victims of Domestic
Terrorism.--Section 1404B(b) of the Victims of Crime Act of
1984 (42 U.S.C. 10603b(b)) is amended to read as follows:
"(b) Victims of Terrorism Within the United States.--The
Director may make supplemental grants as provided in section
1402(d)(5) to States for eligible crime victim compensation
and assistance programs, and to victim service organizations,
public agencies (including Federal, State, or local
governments) and nongovernmental organizations that provide
assistance to victims of crime, which shall be used to
provide emergency relief, including crisis response efforts,
assistance, compensation, training and technical assistance,
and ongoing assistance, including during any investigation or
prosecution, to victims of terrorist acts or mass violence
occurring within the United States.".
(b) Assistance to Victims of International Terrorism.--
Section 1404B(a)(1) of the Victims of Crime Act of 1984 (42
U.S.C. 10603b(a)(1)) is amended by striking "who are not
persons eligible for compensation under title VIII of the
Omnibus Diplomatic Security and Antiterrorism Act of 1986".
(c) Compensation to Victims of International Terrorism.--
Section 1404C(b) of the Victims of Crime of 1984 (42 U.S.C.
10603c(b)) is amended by adding at the end the following:
"The amount of compensation awarded to a victim under this
subsection shall be reduced by any amount that the victim
received in connection with the same act of international
terrorism under title VIII of the Omnibus Diplomatic Security
and Antiterrorism Act of 1986.".
TITLE VII--INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE
PROTECTION
SEC. 711. EXPANSION OF REGIONAL INFORMATION SHARING SYSTEM TO
FACILITATE FEDERAL-STATE-LOCAL LAW ENFORCEMENT
RESPONSE RELATED TO TERRORIST ATTACKS.
Section 1301 of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3796h) is amended--
(1) in subsection (a), by inserting "and terrorist
conspiracies and activities" after "activities";
(2) in subsection (b)--
(A) in paragraph (3), by striking "and" after the
semicolon;
[[Page S10626]]
(B) by redesignating paragraph (4) as paragraph (5);
(C) by inserting after paragraph (3) the following:
"(4) establishing and operating secure information sharing
systems to enhance the investigation and prosecution
abilities of participating enforcement agencies in addressing
multi-jurisdictional terrorist conspiracies and activities;
and (5)"; and
(3) by inserting at the end the following:
"(d) Authorization of Appropriation to the Bureau of
Justice Assistance.--There are authorized to be appropriated
to the Bureau of Justice Assistance to carry out this section
$50,000,000 for fiscal year 2002 and $100,000,000 for fiscal
year 2003.".
TITLE VIII--STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM
SEC. 801. TERRORIST ATTACKS AND OTHER ACTS OF VIOLENCE
AGAINST MASS TRANSPORTATION SYSTEMS.
Chapter 97 of title 18, United States Code, is amended by
adding at the end the following:
"Sec. 1993. Terrorist attacks and other acts of violence
against mass transportation systems
"(a) General Prohibitions.--Whoever willfully--
"(1) wrecks, derails, sets fire to, or disables a mass
transportation vehicle or ferry;
"(2) places or causes to be placed any biological agent or
toxin for use as a weapon, destructive substance, or
destructive device in, upon, or near a mass transportation
vehicle or ferry, without previously obtaining the permission
of the mass transportation provider, and with intent to
endanger the safety of any passenger or employee of the mass
transportation provider, or with a reckless disregard for the
safety of human life;
"(3) sets fire to, or places any biological agent or toxin
for use as a weapon, destructive substance, or destructive
device in, upon, or near any garage, terminal, structure,
supply, or facility used in the operation of, or in support
of the operation of, a mass transportation vehicle or ferry,
without previously obtaining the permission of the mass
transportation provider, and knowing or having reason to know
such activity would likely derail, disable, or wreck a mass
transportation vehicle or ferry used, operated, or employed
by the mass transportation provider;
"(4) removes appurtenances from, damages, or otherwise
impairs the operation of a mass transportation signal system,
including a train control system, centralized dispatching
system, or rail grade crossing warning signal;
"(5) interferes with, disables, or incapacitates any
dispatcher, driver, captain, or person while they are
employed in dispatching, operating, or maintaining a mass
transportation vehicle or ferry, with intent to endanger the
safety of any passenger or employee of the mass
transportation provider, or with a reckless disregard for the
safety of human life;
"(6) commits an act, including the use of a dangerous
weapon, with the intent to cause death or serious bodily
injury to an employee or passenger of a mass transportation
provider or any other person while any of the foregoing are
on the property of a mass transportation provider;
"(7) conveys or causes to be conveyed false information,
knowing the information to be false, concerning an attempt or
alleged attempt being made or to be made, to do any act which
would be a crime prohibited by this subsection; or
"(8) attempts, threatens, or conspires to do any of the
aforesaid acts,
shall be fined under this title or imprisoned not more than
twenty years, or both, if such act is committed, or in the
case of a threat or conspiracy such act would be committed,
on, against, or affecting a mass transportation provider
engaged in or affecting interstate or foreign commerce, or if
in the course of committing such act, that person travels or
communicates across a State line in order to commit such act,
or transports materials across a State line in aid of the
commission of such act.
"(b) Aggravated Offense.--Whoever commits an offense under
subsection (a) in a circumstance in which--
"(1) the mass transportation vehicle or ferry was carrying
a passenger at the time of the offense; or
"(2) the offense has resulted in the death of any person,
shall be guilty of an aggravated form of the offense and
shall be fined under this title or imprisoned for a term of
years or for life, or both.
"(c) Definitions.--In this section--
"(1) the term `biological agent' has the meaning given to
that term in section 178(1) of this title;
"(2) the term `dangerous weapon' has the meaning given to
that term in section 930 of this title;
"(3) the term `destructive device' has the meaning given
to that term in section 921(a)(4) of this title;
"(4) the term `destructive substance' has the meaning
given to that term in section 31 of this title;
"(5) the term `mass transportation' has the meaning given
to that term in section 5302(a)(7) of title 49, United States
Code, except that the term shall include schoolbus, charter,
and sightseeing transportation;
"(6) the term `serious bodily injury' has the meaning
given to that term in section 1365 of this title;
"(7) the term `State' has the meaning given to that term
in section 2266 of this title; and
"(8) the term `toxin' has the meaning given to that term
in section 178(2) of this title.".
(f) Conforming Amendment.--The analysis of chapter 97 of
title 18, United States Code, is amended by adding at the
end:
"1993. Terrorist attacks and other acts of violence against mass
transportation systems.".
SEC. 802. EXPANSION OF THE BIOLOGICAL WEAPONS STATUTE.
Chapter 10 of title 18, United States Code, is amended--
(1) in section 175--
(A) in subsection (b)--
(i) by striking "does not include" and inserting
"includes";
(ii) by inserting "other than" after "system for"; and
(iii) by inserting "bona fide research" after
"protective";
(B) by redesignating subsection (b) as subsection (c); and
(C) by inserting after subsection (a) the following:
"(b) Additional Offense.--Whoever knowingly possesses any
biological agent, toxin, or delivery system of a type or in a
quantity that, under the circumstances, is not reasonably
justified by a prophylactic, protective, bona fide research,
or other peaceful purpose, shall be fined under this title,
imprisoned not more than 10 years, or both. In this
subsection, the terms `biological agent' and `toxin' do not
encompass any biological agent or toxin that is in its
naturally occurring environment, if the biological agent or
toxin has not been cultivated, collected, or otherwise
extracted from its natural source.";
(2) by inserting after section 175a the following:
"SEC. 175B. POSSESSION BY RESTRICTED PERSONS.
"(a) No restricted person described in subsection (b)
shall ship or transport interstate or foreign commerce, or
possess in or affecting commerce, any biological agent or
toxin, or receive any biological agent or toxin that has been
shipped or transported in interstate or foreign commerce, if
the biological agent or toxin is listed as a select agent in
subsection (j) of section 72.6 of title 42, Code of Federal
Regulations, pursuant to section 511(d)(l) of the
Antiterrorism and Effective Death Penalty Act of 1996 (Public
Law 104-132), and is not exempted under subsection (h) of
such section 72.6, or appendix A of part 72 of the Code of
Regulations.
"(b) In this section:
"(1) The term `select agent' does not include any such
biological agent or toxin that is in its naturally-occurring
environment, if the biological agent or toxin has not been
cultivated, collected, or otherwise extracted from its
natural source.
"(2) The term `restricted person' means an individual
who--
"(A) is under indictment for a crime punishable by
imprisonment for a term exceeding 1 year;
"(B) has been convicted in any court of a crime punishable
by imprisonment for a term exceeding 1 year;
"(C) is a fugitive from justice;
"(D) is an unlawful user of any controlled substance (as
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802));
"(E) is an alien illegally or unlawfully in the United
States;
"(F) has been adjudicated as a mental defective or has
been committed to any mental institution;
"(G) is an alien (other than an alien lawfully admitted
for permanent residence) who is a national of a country as to
which the Secretary of State, pursuant to section 6(j) of the
Export Administration Act of 1979 (50 U.S.C. App. 2405(j)),
section 620A of chapter 1 of part M of the Foreign Assistance
Act of 1961 (22 U.S.C. 2371), or section 40(d) of chapter 3
of the Arms Export Control Act (22 U.S.C. 2780(d)), has made
a determination (that remains in effect) that such country
has repeatedly provided support for acts of international
terrorism; or
"(H) has been discharged from the Armed Services of the
United States under dishonorable conditions.
"(3) The term `alien' has the same meaning as in section
1010(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(3)).
"(4) The term `lawfully admitted for permanent residence'
has the same meaning as in section 101(a)(20) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(20)).
"(c) Whoever knowingly violates this section shall be
fined as provided in this title, imprisoned not more than 10
years, or both, but the prohibition contained in this section
shall not apply with respect to any duly authorized United
States governmental activity."; and
(3) in the chapter analysis, by inserting after the item
relating to section 175a the following:
"175b. Possession by restricted persons.".
SEC. 803. DEFINITION OF DOMESTIC TERRORISM.
(a) Domestic Terrorism Defined.--Section 2331 of title 18,
United States Code, is amended--
(1) in paragraph (1)(B)(iii), by striking "by
assassination or kidnapping" and inserting "by mass
destruction, assassination, or kidnapping";
(2) in paragraph (3), by striking "and";
(3) in paragraph (4), by striking the period at the end and
inserting "; and"; and
(4) by adding at the end the following:
[[Page S10627]]
"(5) the term `domestic terrorism' means activities that--
"(A) involve acts dangerous to human life that are a
violation of the criminal laws of the United States or of any
State;
"(B) appear to be intended--
"(i) to intimidate or coerce a civilian population;
"(ii) to influence the policy of a government by
intimidation or coercion; or
"(iii) to affect the conduct of a government by mass
destruction, assassination, or kidnapping; and
"(C) occur primarily within the territorial jurisdiction
of the United States.".
(b) Conforming Amendment.--Section 3077(1) of title 18,
United States Code, is amended to read as follows:
"(1) `act of terrorism' means an act of domestic or
international terrorism as defined in section 2331;".
SEC. 804. PROHIBITION AGAINST HARBORING TERRORISTS.
(a) In General.--Chapter 113B of title 18, United States
Code, is amended by adding after section 2338 the following
new section:
"Sec. 2339. Harboring or concealing terrorists
"(a) Whoever harbors or conceals any person who he knows,
or has reasonable grounds to believe, has committed, or is
about to commit, an offense under section 32 (relating to
destruction of aircraft or aircraft facilities), section 175
(relating to biological weapons), section 229 (relating to
chemical weapons), section 831 (relating to nuclear
materials), paragraph (2) or (3) of section 844(f) (relating
to arson and bombing of government property risking or
causing injury or death), section 1366(a) (relating to the
destruction of an energy facility), section 2280 (relating to
violence against maritime navigation), section 2332a
(relating to weapons of mass destruction), or section 2332b
(relating to acts of terrorism transcending national
boundaries) of this title, section 236(a) (relating to
sabotage of nuclear facilities or fuel) of the Atomic Energy
Act of 1954 (42 U.S.C. 2284(a)), or section 46502 (relating
to aircraft piracy) of title 49, shall be fined under this
title or imprisoned not more than ten years, or both.".
"(b) A violation of this section may be prosecuted in any
Federal judicial district in which the underlying offense was
committed, or in any other Federal judicial district as
provided by law.".
(b) Technical Amendment.--The chapter analysis for chapter
113B of title 18, United States Code, is amended by inserting
after the item for section 2338 the following:
"2339. Harboring or concealing terrorists.".
SEC. 805. JURISDICTION OVER CRIMES COMMITTED AT U.S.
FACILITIES ABROAD.
Section 7 of title 18, United States Code, is amended by
adding at the end the following:
"(9) With respect to offenses committed by or against a
United States national, as defined in section 1203(c) of this
title--
"(A) the premises of United States diplomatic, consular,
military or other United States Government missions or
entities in foreign States, including the buildings, parts of
buildings, and land appurtenant or ancillary thereto or used
for purposes of those missions or entities, irrespective of
ownership; and
"(B) residences in foreign States and the land appurtenant
or ancillary thereto, irrespective of ownership, used for
purposes of those missions or entities or used by United
States personnel assigned to those missions or entities.
Nothing in this paragraph shall be deemed to supersede any
treaty or international agreement in force on the date of
enactment of this paragraph with which this paragraph
conflicts. This paragraph does not apply with respect to an
offense committed by a person described in section 3261(a) of
this title.".
SEC. 806. MATERIAL SUPPORT FOR TERRORISM.
(a) In General.--Section 2339A of title 18, United States
Code, is amended--
(1) in subsection (a)--
(A) by striking ", within the United States,";
(B) by inserting "229," after "175,";
(C) by inserting "1993," after "1992,";
(D) by inserting ", section 236 of the Atomic Energy Act
of 1954 (42 U.S.C. 2284)," after "of this title";
(E) by inserting "or 60123(b)" after "46502"; and
(F) by inserting at the end the following: "A violation of
this section may be prosecuted in any Federal judicial
district in which the underlying offense was committed, or in
any other Federal judicial district as provided by law.";
and
(2) in subsection (b)--
(A) by striking "or other financial securities" and
inserting "or monetary instruments or financial
securities"; and
(B) by inserting "expert advice or assistance," after
"training,".
(b) Technical Amendment.--Section 1956(c)(7)(D) of title
18, United States Code, is amended by inserting "or 2339B"
after "2339A".
SEC. 807. ASSETS OF TERRORIST ORGANIZATIONS.
Section 981(a)(1) of title 18, United States Code, is
amended by inserting at the end the following:
"(G) All assets, foreign or domestic--
"(i) of any person, entity, or organization engaged in
planning or perpetrating any act of domestic or international
terrorism (as defined in section 2331) against the United
States, citizens or residents of the United States, or their
property, and all assets, foreign or domestic, affording any
person a source of influence over any such entity or
organization;
"(ii) acquired or maintained by any person for the purpose
of supporting, planning, conducting, or concealing an act of
domestic or international terrorism (as defined in section
2331) against the United States, citizens or residents of the
United States, or their property; or
"(iii) derived from, involved in, or used or intended to
be used to commit any act of domestic or international
terrorism (as defined in section 2331) against the United
States, citizens or residents of the United States, or their
property.".
SEC. 808. TECHNICAL CLARIFICATION RELATING TO PROVISION OF
MATERIAL SUPPORT TO TERRORISM.
No provision of the Trade Sanctions Reform and Export
Enhancement Act of 2000 (title IX of Public Law 106-387)
shall be construed to limit or otherwise affect section 2339A
or 2339B of title 18, United States Code.
SEC. 809. DEFINITION OF FEDERAL CRIME OF TERRORISM.
Section 2332b of title 18, United States Code, is amended--
(1) in subsection (f), by inserting after "terrorism" the
following: "and any violation of section 351(e), 844(e),
844(f)(1), 956(b), 1361, 1366(b), 1366(c), 1751(e), 2152, or
2156 of this title," before "and the Secretary"; and
(2) in subsection (g)(5)(B), by striking clauses (i)
through (iii) and inserting the following:
"(i) section 32 (relating to destruction of aircraft or
aircraft facilities), 37 (relating to violence at
international airports), 81 (relating to arson within special
maritime and territorial jurisdiction), 175 or 175b (relating
to biological weapons), 229 (relating to chemical weapons),
351 (a) through (d) (relating to congressional, cabinet, and
Supreme Court assassination and kidnaping), 831 (relating to
nuclear materials), 842(m) or (n) (relating to plastic
explosives), 844(f) (2) through (3) (relating to arson and
bombing of Government property risking or causing death),
844(i) (relating to arson and bombing of property used in
interstate commerce), 930(c) (relating to killing or
attempted killing during an attack on a Federal facility with
a dangerous weapon), 956(a)(1) (relating to conspiracy to
murder, kidnap, or maim within special maritime and
territorial jurisdiction of the United States), 1030(a)(1)
(relating to protection of computers), 1030(a)(5)(A)(i)
resulting in damage as defined in 1030(a)(5)(B)(ii) through
(v) (relating to protection of computers), 1114 (relating to
killing or attempted killing of officers and employees of the
United States), 1116 (relating to murder or manslaughter of
foreign officials, official guests, or internationally
protected persons), 1203 (relating to hostage taking), 1362
(relating to destruction of communication lines, stations, or
systems), 1363 (relating to injury to buildings or property
within special maritime and territorial jurisdiction of the
United States), 1366(a) (relating to destruction of an energy
facility), 1751 (a) through (d) (relating to Presidential and
Presidential staff assassination and kidnaping), 1992
(relating to wrecking trains), 1993 (relating to terrorist
attacks and other acts of violence against mass
transportation systems), 2155 (relating to destruction of
national defense materials, premises, or utilities), 2280
(relating to violence against maritime navigation), 2281
(relating to violence against maritime fixed platforms), 2332
(relating to certain homicides and other violence against
United States nationals occurring outside of the United
States), 2332a (relating to use of weapons of mass
destruction), 2332b (relating to acts of terrorism
transcending national boundaries), 2339 (relating to
harboring terrorists), 2339A (relating to providing material
support to terrorists), 2339B (relating to providing material
support to terrorist organizations), or 2340A (relating to
torture) of this title;
"(ii) section 236 (relating to sabotage of nuclear
facilities or fuel) of the Atomic Energy Act of 1954 (42
U.S.C. 2284); or
"(iii) section 46502 (relating to aircraft piracy), the
second sentence of section 46504 (relating to assault on a
flight crew with a dangerous weapon), section 46505(b)(3) or
(c) (relating to explosive or incendiary devices, or
endangerment of human life by means of weapons, on aircraft),
section 46506 if homicide or attempted homicide is involved
(relating to application of certain criminal laws to acts on
aircraft), or section 60123(b) (relating to destruction of
interstate gas or hazardous liquid pipeline facility) of
title 49.".
SEC. 810. NO STATUTE OF LIMITATION FOR CERTAIN TERRORISM
OFFENSES.
(a) In General.--Section 3286 of title 18, United States
Code, is amended to read as follows:
"Sec. 3286. Extension of statute of limitation for certain
terrorism offenses.
"(a) Eight-Year Limitation.--Notwithstanding section 3282,
no person shall be prosecuted, tried, or punished for any
noncapital offense involving a violation of any provision
listed in section 2332b(g)(5)(B) other than a provision
listed in section 3295, or a violation of section 112,
351(e), 1361, or 1751(e) of this title, or section 46504,
46505, or 46506 of title 49, unless the indictment is found
or the information is instituted within 8 years after the
offense was committed.
"(b) No Limitation.--Notwithstanding any other law, an
indictment may be found or an information instituted at any
time without limitation for any offense listed in section
2332b(g)(5)(B), if the commission of such offense resulted
in, or created a forseeable risk
[[Page S10628]]
of, death or serious bodily injury to another person.".
(b) Application.--The amendments made by this section shall
apply to the prosecution of any offense committed before, on,
or after the date of enactment of this section.
SEC. 811. ALTERNATE MAXIMUM PENALTIES FOR TERRORISM OFFENSES.
(a) Arson.--Section 81 of title 18, United States Code, is
amended in the second undesignated paragraph by striking
"not more than twenty years" and inserting "for any term
of years or for life".
(b) Destruction of an Energy Facility.--Section 1366 of
title 18, United States Code, is amended--
(1) in subsection (a), by striking "ten" and inserting
"20"; and
(2) by adding at the end the following:
"(d) Whoever is convicted of a violation of subsection (a)
or (b) that has resulted in the death of any person shall be
subject to imprisonment for any term of years or life.".
(c) Material Support to Terrorists.--Section 2339A(a) of
title 18, United States Code, is amended--
(1) by striking "10" and inserting "15"; and
(2) by striking the period and inserting "and, if the
death of any person results, shall be imprisoned for any term
of years or for life.".
(d) Material Support to Designated Foreign Terrorist
Organizations.--Section 2339B(a)(1) of title 18, United
States Code, is amended--
(1) by striking "10" and inserting "15"; and
(2) by striking the period after "or both" and inserting
"and, if the death of any person results, shall be
imprisoned for any term of years or for life.".
(e) Destruction of National-Defense Materials.--Section
2155(a) of title 18, United States Code, is amended--
(1) by striking "ten" and inserting "20"; and
(2) by striking the period at the end and inserting ",
and, if death results to any person, shall be imprisoned for
any term of years or for life.".
(f) Sabotage of Nuclear Facilities or Fuel.--Section 236 of
the Atomic Energy Act of 1954 (42 U.S.C. 2284), is amended--
(1) by striking "ten" each place it appears and inserting
"20";
(2) in subsection (a), by striking the period at the end
and inserting ", and, if death results to any person, shall
be imprisoned for any term of years or for life."; and
(3) in subsection (b), by striking the period at the end
and inserting ", and, if death results to any person, shall
be imprisoned for any term of years or for life.".
(g) Special Aircraft Jurisdiction of the United States.--
Section 46505(c) of title 49, United States Code, is
amended--
(1) by striking "15" and inserting "20"; and
(2) by striking the period at the end and inserting ",
and, if death results to any person, shall be imprisoned for
any term of years or for life.".
(h) Damaging or Destroying an Interstate Gas or Hazardous
Liquid Pipeline Facility.--Section 60123(b) of title 49,
United States Code, is amended--
(1) by striking "15" and inserting "20"; and
(2) by striking the period at the end and inserting ",
and, if death results to any person, shall be imprisoned for
any term of years or for life.".
SEC. 812. PENALTIES FOR TERRORIST CONSPIRACIES.
(a) Arson.--Section 81 of title 18, United States Code, is
amended in the first undesignated paragraph--
(1) by striking ", or attempts to set fire to or burn";
and
(2) by inserting "or attempts or conspires to do such an
act," before "shall be imprisoned".
(b) Killings in Federal Facilities.--
(1) Section 930(c) of title 18, United States Code, is
amended--
(A) by striking "or attempts to kill";
(B) by inserting "or attempts or conspires to do such an
act," before "shall be punished"; and
(C) by striking "and 1113" and inserting "1113, and
1117".
(2) Section 1117 of title 18, United States Code, is
amended by inserting "930(c)," after "section".
(c) Communications Lines, Stations, or Systems.--Section
1362 of title 18, United States Code, is amended in the first
undesignated paragraph--
(1) by striking "or attempts willfully or maliciously to
injure or destroy"; and
(2) by inserting "or attempts or conspires to do such an
act," before "shall be fined".
(d) Buildings or Property Within Special Maritime and
Territorial Jurisdiction.--Section 1363 of title 18, United
States Code, is amended--
(1) by striking "or attempts to destroy or injure"; and
(2) by inserting "or attempts or conspires to do such an
act," before "shall be fined" the first place it appears.
(e) Wrecking Trains.--Section 1992 of title 18, United
States Code, is amended by adding at the end the following:
"(c) A person who conspires to commit any offense defined
in this section shall be subject to the same penalties (other
than the penalty of death) as the penalties prescribed for
the offense, the commission of which was the object of the
conspiracy.".
(f) Material Support to Terrorists.--Section 2339A of title
18, United States Code, is amended by inserting "or attempts
or conspires to do such an act," before "shall be fined".
(g) Torture.--Section 2340A of title 18, United States
Code, is amended by adding at the end the following:
"(c) Conspiracy.--A person who conspires to commit an
offense under this section shall be subject to the same
penalties (other than the penalty of death) as the penalties
prescribed for the offense, the commission of which was the
object of the conspiracy.".
(h) Sabotage of Nuclear Facilities or Fuel.--Section 236 of
the Atomic Energy Act of 1954 (42 U.S.C. 2284), is amended--
(1) in subsection (a)--
(A) by striking ", or who intentionally and willfully
attempts to destroy or cause physical damage to";
(B) in paragraph (4), by striking the period at the end and
inserting a comma; and
(C) by inserting "or attempts or conspires to do such an
act," before "shall be fined"; and
(2) in subsection (b)--
(A) by striking "or attempts to cause"; and
(B) by inserting "or attempts or conspires to do such an
act," before "shall be fined".
(i) Interference with Flight Crew Members and Attendants.--
Section 46504 of title 49, United States Code, is amended by
inserting "or attempts or conspires to do such an act,"
before "shall be fined".
(j) Special Aircraft Jurisdiction of the United States.--
Section 46505 of title 49, United States Code, is amended by
adding at the end the following:
"(e) Conspiracy.--If two or more persons conspire to
violate subsection (b) or (c), and one or more of such
persons do any act to effect the object of the conspiracy,
each of the parties to such conspiracy shall be punished as
provided in such subsection.".
(k) Damaging or Destroying an Interstate Gas or Hazardous
Liquid Pipeline Facility.--Section 60123(b) of title 49,
United States Code, is amended--
(1) by striking ", or attempting to damage or destroy,";
and
(2) by inserting ", or attempting or conspiring to do such
an act," before "shall be fined".
SEC. 813. POST-RELEASE SUPERVISION OF TERRORISTS.
Section 3583 of title 18, United States Code, is amended by
adding at the end the following:
"(j) Supervised Release Terms for Terrorism Predicates.--
Notwithstanding subsection (b), the authorized term of
supervised release for any offense listed in section
2332b(g)(5)(B), the commission of which resulted in, or
created a foreseeable risk of, death or serious bodily injury
to another person, is any term of years or life.".
SEC. 814. INCLUSION OF ACTS OF TERRORISM AS RACKETEERING
ACTIVITY.
Section 1961(1) of title 18, United States Code, is
amended--
(1) by striking "or (F)" and inserting "(F)"; and
(2) by inserting before the semicolon at the end the
following: ", or (G) any act that is indictable as an
offense listed in section 2332b(g)(5)(B)".
SEC. 815. DETERRENCE AND PREVENTION OF CYBERTERRORISM.
(a) Clarification of Protection of Protected Computers.--
Section 1030(a)(5) of title 18, United States Code, is
amended--
(1) by inserting "(i)" after (A)";
(2) by redesignating subparagraphs (B) and (C) as clauses
(ii) and (iii), respectively;
(3) by adding "and" at the end of clause (iii), as so
redesignated; and
(4) by adding at the end the following:
"(B) caused (or, in the case of an attempted offense,
would, if completed, have caused) conduct described in clause
(i), (ii), or (iii) of subparagraph (A) that resulted in--
"(i) loss to 1 or more persons during any 1-year period
(including loss resulting from a related course of conduct
affecting 1 or more other protected computers) aggregating at
least $5,000 in value;
"(ii) the modification or impairment, or potential
modification or impairment, of the medical examination,
diagnosis, treatment, or care of 1 or more individuals;
"(iii) physical injury to any person;
"(iv) a threat to public health or safety; or
"(v) damage affecting a computer system used by or for a
Government entity in furtherance of the administration of
justice, national defense, or national security;".
(b) Penalties.--Section 1030(c) of title 18, United States
Code is amended--
(1) in paragraph (2)--
(A) in subparagraph (A) --
(i) by inserting "except as provided in subparagraph
(B)," before "a fine";
(ii) by striking "(a)(5)(C)" and inserting
"(a)(5)(A)(iii)"; and
(iii) by striking "and' at the end;
(B) in subparagraph (B), by inserting "or an attempt to
commit an offense punishable under this subparagraph," after
"subsection (a)(2)," in the matter preceding clause (i);
and
(C) in subparagraph (C), by striking "and" at the end;
(2) in paragraph (3)--
(A) by striking ", (a)(5)(A), (a)(5)(B)," both places it
appears; and
(B) by striking "and" at the end; and
(3) by striking "(a)(5)(C)" and inserting
"(a)(5)(A)(iii)"; and
(4) by adding at the end the following new paragraphs:
"(4)(A) a fine under this title, imprisonment for not more
than 10 years, or both, in the case of an offense under
subsection (a)(5)(A)(i), or an attempt to commit an offense
punishable under that subsection;
[[Page S10629]]
"(B) a fine under this title, imprisonment for not more
than 5 years, or both, in the case of an offense under
subsection (a)(5)(A)(ii), or an attempt to commit an offense
punishable under that subsection;
"(C) a fine under this title, imprisonment for not more
than 20 years, or both, in the case of an offense under
subsection (a)(5)(A)(i) or (a)(5)(A)(ii), or an attempt to
commit an offense punishable under either subsection, that
occurs after a conviction for another offense under this
section.".
(c) Definitions.--Subsection (e) of section 1030 of title
18, United States Code is amended--
(1) in paragraph (2)(B), by inserting ", including a
computer located outside the United States" before the
semicolon;
(2) in paragraph (7), by striking "and" at the end;
(3) by striking paragraph (8) and inserting the following
new paragraph (8):
"(8) the term `damage' means any impairment to the
integrity or availability of data, a program, a system, or
information;";
(4) in paragraph (9), by striking the period at the end and
inserting a semicolon; and
(5) by adding at the end the following new paragraphs:
"(10) the term `conviction' shall include a conviction
under the law of any State for a crime punishable by
imprisonment for more than 1 year, an element of which is
unauthorized access, or exceeding authorized access, to a
computer;
"(11) the term `loss' includes any reasonable cost to any
victim, including the cost of responding to an offense,
conducting a damage assessment, and restoring the data,
program, system, or information to its condition prior to the
offense, and any revenue lost, cost incurred, or other
consequential damages incurred because of interruption of
service;
"(12) the term `person' means any individual, firm,
corporation, educational institution, financial institution,
governmental entity, or legal or other entity;".
(d) Damages in Civil Actions.--Subsection (g) of section
1030 of title 18, United States Code is amended--
(1) by striking the second sentence and inserting the
following new sentences: "A suit for a violation of
subsection (a)(5) may be brought only if the conduct involves
one of the factors enumerated in subsection (a)(5)(B).
Damages for a violation involving only conduct described in
subsection (a)(5)(B)(i) are limited to economic damages.";
and
(2) by adding at the end the following: "No action may be
brought under this subsection for the negligent design or
manufacture of computer hardware, computer software, or
firmware.".
(e) Amendment of Sentencing Guidelines Relating to Certain
Computer Fraud and Abuse.--Pursuant to its authority under
section 994(p) of title 28, United States Code, the United
States Sentencing Commission shall amend the Federal
sentencing guidelines to ensure that any individual convicted
of a violation of section 1030 of title 18, United States
Code, can be subjected to appropriate penalties, without
regard to any mandatory minimum term of imprisonment.
SEC. 816. ADDITIONAL DEFENSE TO CIVIL ACTIONS RELATING TO
PRESERVING RECORDS IN RESPONSE TO GOVERNMENT
REQUESTS.
Section 2707(e)(1) of title 18, United States Code, is
amended by inserting after "or statutory authorization" the
following: "(including a request of a governmental entity
under section 2703(f) of this title)".
SEC. 817. DEVELOPMENT AND SUPPORT OF CYBERSECURITY FORENSIC
CAPABILITIES.
(a) In General.--The Attorney General shall establish such
regional computer forensic laboratories as the Attorney
General considers appropriate, and provide support to
existing computer forensic laboratories, in order that all
such computer forensic laboratories have the capability--
(1) to provide forensic examinations with respect to seized
or intercepted computer evidence relating to criminal
activity (including cyberterrorism);
(2) to provide training and education for Federal, State,
and local law enforcement personnel and prosecutors regarding
investigations, forensic analyses, and prosecutions of
computer-related crime (including cyberterrorism);
(3) to assist Federal, State, and local law enforcement in
enforcing Federal, State, and local criminal laws relating to
computer-related crime;
(4) to facilitate and promote the sharing of Federal law
enforcement expertise and information about the
investigation, analysis, and prosecution of computer-related
crime with State and local law enforcement personnel and
prosecutors, including the use of multijurisdictional task
forces; and
(5) to carry out such other activities as the Attorney
General considers appropriate.
(b) Authorization of Appropriations.--
(1) Authorization.--There is hereby authorized to be
appropriated in each fiscal year $50,000,000 for purposes of
carrying out this section.
(2) Availability.--Amounts appropriated pursuant to the
authorization of appropriations in paragraph (1) shall remain
available until expended.
TITLE IX--IMPROVED INTELLIGENCE
SEC. 901. RESPONSIBILITIES OF DIRECTOR OF CENTRAL
INTELLIGENCE REGARDING FOREIGN INTELLIGENCE
COLLECTED UNDER FOREIGN INTELLIGENCE
SURVEILLANCE ACT OF 1978.
Section 103(c) of the National Security Act of 1947 (50
U.S.C. 403-3(c)) is amended--
(1) by redesignating paragraphs (6) and (7) as paragraphs
(7) and (8), respectively; and
(2) by inserting after paragraph (5) the following new
paragraph (6):
"(6) establish requirements and priorities for foreign
intelligence information to be collected under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), and provide assistance to the Attorney General to
ensure that information derived from electronic surveillance
or physical searches under that Act is disseminated so it may
be used efficiently and effectively for foreign intelligence
purposes, except that the Director shall have no authority to
direct, manage, or undertake electronic surveillance
operations pursuant to that Act unless otherwise authorized
by statute or executive order;".
SEC. 902. INCLUSION OF INTERNATIONAL TERRORIST ACTIVITIES
WITHIN SCOPE OF FOREIGN INTELLIGENCE UNDER
NATIONAL SECURITY ACT OF 1947.
Section 3 of the National Security Act of 1947 (50 U.S.C.
401a) is amended--
(1) in paragraph (2), by inserting before the period the
following: ", or international terrorist activities"; and
(2) in paragraph (3), by striking "and activities
conducted" and inserting ", and activities conducted,".
SEC. 903. SENSE OF CONGRESS ON THE ESTABLISHMENT AND
MAINTENANCE OF INTELLIGENCE RELATIONSHIPS TO
ACQUIRE INFORMATION ON TERRORISTS AND TERRORIST
ORGANIZATIONS.
It is the sense of Congress that officers and employees of
the intelligence community of the Federal Government, acting
within the course of their official duties, should be
encouraged, and should make every effort, to establish and
maintain intelligence relationships with any person, entity,
or group for the purpose of engaging in lawful intelligence
activities, including the acquisition of information on the
identity, location, finances, affiliations, capabilities,
plans, or intentions of a terrorist or terrorist
organization, or information on any other person, entity, or
group (including a foreign government) engaged in harboring,
comforting, financing, aiding, or assisting a terrorist or
terrorist organization.
SEC. 904. TEMPORARY AUTHORITY TO DEFER SUBMITTAL TO CONGRESS
OF REPORTS ON INTELLIGENCE AND INTELLIGENCE-
RELATED MATTERS.
(a) Authority To Defer.--The Secretary of Defense, Attorney
General, and Director of Central Intelligence each may,
during the effective period of this section, defer the date
of submittal to Congress of any covered intelligence report
under the jurisdiction of such official until February 1,
2002.
(b) Covered Intelligence Report.--Except as provided in
subsection (c), for purposes of subsection (a), a covered
intelligence report is as follows:
(1) Any report on intelligence or intelligence-related
activities of the United States Government that is required
to be submitted to Congress by an element of the intelligence
community during the effective period of this section.
(2) Any report or other matter that is required to be
submitted to the Select Committee on Intelligence of the
Senate and Permanent Select Committee on Intelligence of the
House of Representatives by the Department of Defense or the
Department of Justice during the effective period of this
section.
(c) Exception for Certain Reports.--For purposes of
subsection (a), any report required by section 502 or 503 of
the National Security Act of 1947 (50 U.S.C. 413a, 413b) is
not a covered intelligence report.
(d) Notice to Congress.--Upon deferring the date of
submittal to Congress of a covered intelligence report under
subsection (a), the official deferring the date of submittal
of the covered intelligence report shall submit to Congress
notice of the deferral. Notice of deferral of a report shall
specify the provision of law, if any, under which the report
would otherwise be submitted to Congress.
(e) Extension of Deferral.--(1) Each official specified in
subsection (a) may defer the date of submittal to Congress of
a covered intelligence report under the jurisdiction of such
official to a date after February 1, 2002, if such official
submits to the committees of Congress specified in subsection
(b)(2) before February 1, 2002, a certification that
preparation and submittal of the covered intelligence report
on February 1, 2002, will impede the work of officers or
employees who are engaged in counterterrorism activities.
(2) A certification under paragraph (1) with respect to a
covered intelligence report shall specify the date on which
the covered intelligence report will be submitted to
Congress.
(f) Effective Period.--The effective period of this section
is the period beginning on the date of the enactment of this
Act and ending on February 1, 2002.
(g) Element of the Intelligence Community Defined.--In this
section, the term "element of the intelligence community"
means any element of the intelligence community specified or
designated under section 3(4) of the National Security Act of
1947 (50 U.S.C. 401a(4)).
[[Page S10630]]
SEC. 905. DISCLOSURE TO DIRECTOR OF CENTRAL INTELLIGENCE OF
FOREIGN INTELLIGENCE-RELATED INFORMATION WITH
RESPECT TO CRIMINAL INVESTIGATIONS.
(a) In General.--Title I of the National Security Act of
1947 (50 U.S.C. 402 et seq.) is amended--
(1) by redesignating subsection 105B as section 105C; and
(2) by inserting after section 105A the following new
section 105B:
"disclosure of foreign intelligence acquired in criminal
investigations; notice of criminal investigations of foreign
intelligence sources
"Sec. 105B. (a) Disclosure of Foreign Intelligence.--(1)
Except as otherwise provided by law and subject to paragraph
(2), the Attorney General, or the head of any other
department or agency of the Federal Government with law
enforcement responsibilities, shall expeditiously disclose to
the Director of Central Intelligence, pursuant to guidelines
developed by the Attorney General in consultation with the
Director, foreign intelligence acquired by an element of the
Department of Justice or an element of such department or
agency, as the case may be, in the course of a criminal
investigation.
"(2) The Attorney General by regulation and in
consultation with the Director of Central Intelligence may
provide for exceptions to the applicability of paragraph (1)
for one or more classes of foreign intelligence, or foreign
intelligence with respect to one or more targets or matters,
if the Attorney General determines that disclosure of such
foreign intelligence under that paragraph would jeopardize an
ongoing law enforcement investigation or impair other
significant law enforcement interests.
"(b) Procedures for Notice of Criminal Investigations.--
Not later than 180 days after the date of enactment of this
section, the Attorney General, in consultation with the
Director of Central Intelligence, shall develop guidelines to
ensure that after receipt of a report from an element of the
intelligence community of activity of a foreign intelligence
source or potential foreign intelligence source that may
warrant investigation as criminal activity, the Attorney
General provides notice to the Director of Central
Intelligence, within a reasonable period of time, of his
intention to commence, or decline to commence, a criminal
investigation of such activity.
"(c) Procedures.--The Attorney General shall develop
procedures for the administration of this section, including
the disclosure of foreign intelligence by elements of the
Department of Justice, and elements of other departments and
agencies of the Federal Government, under subsection (a) and
the provision of notice with respect to criminal
investigations under subsection (b).".
(b) Clerical Amendment.--The table of contents in the first
section of that Act is amended by striking the item relating
to section 105B and inserting the following new items:
"Sec. 105B. Disclosure of foreign intelligence acquired in criminal
investigations; notice of criminal investigations of
foreign intelligence sources.
"Sec. 105C. Protection of the operational files of the National
Imagery and Mapping Agency.".
SEC. 906. FOREIGN TERRORIST ASSET TRACKING CENTER.
(a) Report on Reconfiguration.--Not later than February 1,
2002, the Attorney General, the Director of Central
Intelligence, and the Secretary of the Treasury shall jointly
submit to Congress a report on the feasibility and
desirability of reconfiguring the Foreign Terrorist Asset
Tracking Center and the Office of Foreign Assets Control of
the Department of the Treasury in order to establish a
capability to provide for the effective and efficient
analysis and dissemination of foreign intelligence relating
to the financial capabilities and resources of international
terrorist organizations.
(b) Report Requirements.--(1) In preparing the report under
subsection (a), the Attorney General, the Secretary, and the
Director shall consider whether, and to what extent, the
capacities and resources of the Financial Crimes Enforcement
Center of the Department of the Treasury may be integrated
into the capability contemplated by the report.
(2) If the Attorney General, Secretary, and the Director
determine that it is feasible and desirable to undertake the
reconfiguration described in subsection (a) in order to
establish the capability described in that subsection, the
Attorney General, the Secretary, and the Director shall
include with the report under that subsection a detailed
proposal for legislation to achieve the reconfiguration.
SEC. 907. NATIONAL VIRTUAL TRANSLATION CENTER.
(a) Report on Establishment.--(1) Not later than February
1, 2002, the Director of Central Intelligence shall, in
consultation with the Director of the Federal Bureau of
Investigation, submit to the appropriate committees of
Congress a report on the establishment and maintenance within
the intelligence community of an element for purposes of
providing timely and accurate translations of foreign
intelligence for all other elements of the intelligence
community. In the report, the element shall be referred to as
the "National Virtual Translation Center".
(2) The report on the element described in paragraph (1)
shall discuss the use of state-of-the-art communications
technology, the integration of existing translation
capabilities in the intelligence community, and the
utilization of remote-connection capacities so as to minimize
the need for a central physical facility for the element.
(b) Resources.--The report on the element required by
subsection (a) shall address the following:
(1) The assignment to the element of a staff of individuals
possessing a broad range of linguistic and translation skills
appropriate for the purposes of the element.
(2) The provision to the element of communications
capabilities and systems that are commensurate with the most
current and sophisticated communications capabilities and
systems available to other elements of intelligence
community.
(3) The assurance, to the maximum extent practicable, that
the communications capabilities and systems provided to the
element will be compatible with communications capabilities
and systems utilized by the Federal Bureau of Investigation
in securing timely and accurate translations of foreign
language materials for law enforcement investigations.
(4) The development of a communications infrastructure to
ensure the efficient and secure use of the translation
capabilities of the element.
(c) Secure Communications.--The report shall include a
discussion of the creation of secure electronic
communications between the element described by subsection
(a) and the other elements of the intelligence community.
(d) Definitions.--In this section:
(1) Foreign intelligence.--The term "foreign
intelligence" has the meaning given that term in section
3(2) of the National Security Act of 1947 (50 U.S.C.
401a(2)).
(2) Element of the intelligence community.--The term
"element of the intelligence community" means any element
of the intelligence community specified or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
SEC. 908. TRAINING OF GOVERNMENT OFFICIALS REGARDING
IDENTIFICATION AND USE OF FOREIGN INTELLIGENCE.
(a) Program Required.--The Attorney General shall, in
consultation with the Director of Central Intelligence, carry
out a program to provide appropriate training to officials
described in subsection (b) in order to assist such officials
in--
(1) identifying foreign intelligence information in the
course of their duties; and
(2) utilizing foreign intelligence information in the
course of their duties, to the extent that the utilization of
such information is appropriate for such duties.
(b) Officials.--The officials provided training under
subsection (a) are, at the discretion of the Attorney General
and the Director, the following:
(1) Officials of the Federal Government who are not
ordinarily engaged in the collection, dissemination, and use
of foreign intelligence in the performance of their duties.
(2) Officials of State and local governments who encounter,
or may encounter in the course of a terrorist event, foreign
intelligence in the performance of their duties.
(c) Authorization of Appropriations.--There is hereby
authorized to be appropriated for the Department of Justice
such sums as may be necessary for purposes of carrying out
the program required by subsection (a).
Mr. REID. Mr. President, I move to reconsider the vote.
I move to lay that motion on the table.
The motion to lay on the table was agreed to.
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