[Senate Hearing 107-604]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-604

                            HOMELAND DEFENSE

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 25, 2001

                               __________

                          Serial No. J-107-40

                               __________

         Printed for the use of the Committee on the Judiciary


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                            WASHINGTON : 2002
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS



Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    28
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    29
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     4
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................    31
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    32
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    36
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................    20

                                WITNESS

Ashcroft, Hon. John, Attorney General of the United States.......     8

                       SUBMISSIONS FOR THE RECORD

Levin, Hon. Carl, a U.S. Senator from the State of Michigan, 
  statement......................................................    34
LPA, Inc., Washington, DC, statement.............................    35

 
                            HOMELAND DEFENSE

                              ----------                              


                      TUESDAY, SEPTEMBER 25, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 11:06 a.m., in 
room SD-106, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein, 
Feingold, Schumer, Durbin, Cantwell, Edwards, Hatch, Thurmond, 
Grassley, Specter, Kyl, DeWine, Sessions, and McConnell.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. I thank everybody for being 
here. I especially thank the Attorney General, with his 
schedule, for being here. I know how hard he has been working, 
and I know within his own Department, not only from others who 
were lost, but part of the Attorney General's inner circle had 
a terrible tragedy with Ms. Olson. I know the hearts of 
everybody here have gone out to the Solicitor General for his 
loss and his family's loss. I know the distinguished senior 
Republican on the Committee was there at the memorial service, 
and I agree with him on that.
    We want to hear from the Attorney General directly on this. 
This is not business as usual; this is the people's business. 
These hijackings resulted in a senseless loss of life and 
destruction. They were crimes not only against the people who 
were killed; they were crimes against humanity.
    I cannot imagine any country in the world who really cares 
about humanity not joining with us in condemning what happened. 
I think we should make it very, very clear that terrorism in 
pursuit of a political agenda is still terrorism and should be 
rejected. No matter what the group is, no matter where it is in 
the world, terrorist acts should be seen for what they are. 
They are crimes, they are murder, they are crimes against 
humanity.
    The AG has worked with us to arrange briefings throughout 
the last--well, actually, literally within hours of the 
terrible matters on September 11. I think we started working 
together in a way that we can come together with real 
enforcement tools.
    I think it was a week ago when Senator Hatch and Senator 
Specter and I and the House and Senate Republican and 
Democratic leaders met with the Attorney General to figure out 
how best to do this. We arranged meetings about the proposals. 
I think Dan Bryant probably has a telephone glued to his ear 
with the calls he has been getting as we tried to work on a 
consensus package.
    We had meetings throughout the week. We continued into the 
weekend. We have made some progress; I think that we can make 
more. I think that we can help law enforcement, I think we can 
help our intelligence community, and we can do it by at the 
same time helping ourselves by protecting our constitutional 
freedoms.
    We cannot allow terrorism to prevail by curtailing our 
constitutional democracy or our freedoms, and I commend the 
Attorney General and the President of the United States who 
have made that statement time and time again themselves.
    We are making progress on a number of things; for example, 
authorizing the use of roving or multi-point wiretaps in 
intelligence investigations under FISA, in the same way that we 
already do for criminal investigations. We have had several 
years of experience in criminal investigations and we can do it 
in these others.
    Update the money laundering, RICO and wiretap laws to make 
terrorism offenses predicates for exercising authorities under 
those laws. I am told by both intelligence people and law 
enforcement that this would help.
    Make certain that we do all we can for the families of the 
police and the firefighters and other law enforcement and 
public safety personnel on whom we depend and many of whom have 
made the ultimate sacrifice.
    We have to ensure that our definition of ``terrorism'' fits 
the crime.
    Mr. Attorney General, I remember at one of the first 
meetings we had down at the Justice Department, we asked what 
is the definition of terrorism, and I think we all realized it 
changes so much from statute to statute. We need one that law 
enforcement can use.
    We have to review the penalty structure for terrorism 
crimes. Certainly, the penalties for terrorism crimes should 
equal those for any other very serious crimes, including 
statute of limitations.
    Review immigration authorities and see how they can be 
improved; increase Federal agents and capabilities along our 
northern border. Senator Cantwell has raised in meetings we 
have had the fact that we need far, far better computer 
technology and identification, not just those that might be on 
an I.D. card, but those that are indelibly in your eyes or your 
face, things that cannot be changed. We have to condemn hate 
crimes and ethnic and racial discrimination in the strongest 
terms.
    So there are a whole lot of things we agree on, and we can 
work together on that. Senator Hatch and I have talked a great 
deal about it. I remember after the terrible events in 
Oklahoma, Senator Specter had a number of hearings, then the 
full Committee did. We considered a bill quickly within, I 
think, about 2 months after the incident, but then the House-
Senate conference lasted over a year.
    I don't want to do that. I want to make sure that we have 
consensus.
    We have all taken the same oath--you have, I have, 
everybody here has--to uphold and defend the Constitution. We 
can find ways to do it. A trial by fire can burn us, it can 
coarsen us, or it can make us stronger. If we hold to our 
ideals and values, it will strengthen us here.
    We have a United States behind us, united as I have not 
seen it united in my lifetime, and we will continue to work. 
Senator Hatch and I have been in constant contact. 
Incidentally, I want to thank Senator Hatch and his staff for 
working so closely with us, and for Senator Hatch coming in on 
Saturday, as my chief counsel said, cracking the whip over all 
of us.
    I will yield to the Senator.
    [The prepared statement of Senator Leahy follows:]

 STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF 
                                VERMONT

    We meet today to do the people's business, at a time of great 
national loss and singleness of purpose. This morning, this Committee 
and the American people will have the opportunity to hear directly from 
the Attorney General of the United States regarding the status of the 
investigations underway regarding the terrorist attacks of September 
11. Those hijackings resulting in senseless loss of life and 
destruction were crimes against humanity.
    With the cooperation of the Attorney General over the past two 
weeks we have been able to arrange briefings from time to time. We have 
also begun a constructive effort to work together on legislative 
proposals to improve law enforcement tools in the fight against 
terrorism. Less than a week ago, on Wednesday, along with Senator Hatch 
and Senator Specter, I met with the Attorney General and other leaders 
in the House and Senate to put legislative proposals on the table for 
us all to consider.
    We arranged meetings about these proposals in order to construct a 
consensus package of legislative proposals last Thursday, which 
meetings continued on Friday and into the weekend. We have made some 
progress, and I have confidence that working together we can make many 
improvements in the law and maintain a proper balance between the 
desires of law enforcement and the need to maintain fidelity to our 
constitutional rights and way of life. We cannot allow terrorism to 
prevail by curtailing our constitutional democracy or constricting our 
freedoms.
    We are making progress with respect to a number of areas of law:

         Authorizing use of ``roving'' or ``multi-point'' 
        wiretaps in intelligence investigations [under FISA], as we 
        already do for criminal investigations;
        Updating the money laundering, RICO and wiretap laws, to make 
        terrorism offenses predicates for exercising the authorities 
        under those laws;
         Making certain that we are doing all we can for the 
        families of the police, firefighters and other law enforcement 
        and public safety personnel on whom we depend and who have 
        sacrificed so much;
         Ensuring that our definition of ``terrorism'' fits the 
        crime;
         Reviewing the penalty structure for terrorism crimes;
         Reviewing immigration authorities and seeing how they 
        can be improved;
         Increasing federal agents and capabilities along our 
        Northern Border;
         Authorizing expedited hiring of needed translators at 
        the FBI;
         Condemning hate crimes and ethnic and religious 
        discrimination in the strongest terms.

    There are scores of items in agreement that we hope to consider 
very soon that can help. I have sought to avoid setting unrealistic or 
artificial deadlines for our efforts. After the meeting last Wednesday, 
the Attorney General emerged and endorsed the time frame of ``as soon 
as possible'' and we have all been working together and coming together 
to do that. We have shown the ability to act quickly and together in 
the last several days, most recently with the transportation and 
victims assistance package enacted on Friday. Working together 
Democrats and Republicans from the Senate and the House have acted 
responsibly, expeditiously and together.
    After the killing of 168 in the destruction of the federal building 
in Oklahoma City in 1995, this Committee held a series of hearings 
beginning with that chaired by Senator Specter two weeks after the 
incident and proceeding with additional full Committee and subcommittee 
hearings over the ensuing weeks. The Senate considered a bill quickly, 
within two months of the incident, but the House-Senate conference on 
that measure extended over the next year. In the wake of the violence 
at Columbine High School and the rash of school violence a few years 
ago, the House-Senate conference never reconciled the conflicting 
measures and Congress never completed its work on that legislation. To 
avoid extended proceedings or the risk that reconciliation never 
occurs, I intend to reach out to Chairman Sensenbrenner and 
Representative Conyers to see whether we might not combine our efforts 
in a coordinated and consolidated way from the outset to resolve to 
enact the best consensus measure we can design before Congress adjourns 
this year.
    The Attorney General and every Member of this Committee and of the 
Senate have taken the same oath: to ``support and defend the 
Constitution of the United States.'' In these difficult days, I caution 
that we should not lose touch with those constitutional values that 
make this the strongest, most vibrant democracy the world has even 
known. That will be a fundamental part of our mandate as we continue to 
shape the nation's legislative reaction. This challenge to our freedom 
is going to be answered by the strength of our democracy.
    Trial by fire can refine us or it can coarsen us. If we hold to our 
ideals and values, then it will strengthen us. Americans are united and 
all the free world, all civilized nations, all caring people join 
together with us. I trust that we will seek and serve justice and 
demonstrate to the world not only by our resolve but by our commitment 
to our constitutional principles that the United States remains strong 
even in the face of these terrorist atrocities.
    Like Pearl Harbor, these horrible events have galvanized our 
country and united our people with other nations throughout the world. 
I am confident we will work together to devise new and more effective 
means to defeat terrorists. This time we need to be smarter. We have to 
be vigilant to constitutional principles, not vigilantes. We need to 
focus our response on those responsible for the wrongdoing and to shun 
stereotyping and guilt by association.
    The scope and sophistication of the recent terrorist attacks on 
American soil call for all the ingenuity, energy, and determination we 
possess. The actions that we will have to consider may include a 
combination of military, law enforcement, intelligence, diplomatic and 
security measures. Developing a comprehensive response may take a 
little time, but needs to be done right. The President sounded the 
chord in his address to the Joint Session of Congress and the American 
people last week. I trust that as we go forward all United States 
Senators will work together in this effort.
    Building on the suggestions of many Members of this Committee and 
working with Senator Hatch and representatives of the Administration, 
we have been able over the course of the last week to assemble an 
impressive list of items on which we have agreement. I thank all 
Members from both sides of the aisle who have worked with us through 
the days and evenings and weekends to make significant progress. We are 
working to be in position without the passage of much time to pass 
significant legislation containing those consensus items. To the extent 
other complex proposals are in disagreement, we can continue working on 
them in the weeks and months ahead. Even if Congress were to adjourn 
next month, we can hold hearings and continue our work together during 
the recess.
    I have tried to be mindful of the demands on the time of the 
Attorney General and FBI Director. I have tried not to distract them 
from their important responsibilities in the investigation and in the 
immediate aftermath of September 11. We all appreciate the Attorney 
General making time to be with the Committee this morning.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman.
    A little over a week ago, thousands of our fellow citizens 
were murdered. Last Thursday, our President, with the undivided 
support of this Congress and the American people, announced a 
war on terrorism. As the President made clear in his address, 
we did not seek this war. This war was thrust upon us, thrust 
upon us by an unprovoked attack upon our civilization and upon 
our civilian population in the very midst of one of our 
greatest cities.
    Each of us has in different ways had our lives touched by 
the awful events of September 11. 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.
    A scant three weeks ago, we could not have contemplated 
that today, September 25, 2001, we would be at war. It is true 
that for years some of us in this Congress and around this 
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 have 
predicted the horrific methods that these men would employ in 
an effort to destroy us, destroy our liberties, and destroy our 
democratic institutions. And they have not succeeded, even 
though they have caused this destruction.
    On September 11, all that changed. In the last few days, we 
have all come to acknowledge that we live in a different and 
more dangerous world than the world we perceived when we woke 
up on the morning of September 11, a different world not only 
because thousands of our countrymen are dead as a result of the 
September 11 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 used to take 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 that there are terrorist cells that continue to 
operate actively among us. It is a chilling thought, but it is 
true.
    The way 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 the war must be fought on our own 
soil. This is not a circumstance of our own choosing.
    The United States Attorney General will be the individual 
principally responsible for leading us in that part of the 
fight that will be conducted on American soil. 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.
    The Attorney General has communicated to us, and in no 
uncertain terms has told us that he does not currently have the 
adequate weapons to fight this war. He appears before us today.
    General Ashcroft, I want to personally thank you for your 
leadership in this matter and the way you have grabbed the ball 
here, and for appearing here today and for what I consider to 
be, and I think most everybody else who has watched it, 
tireless efforts in managing this investigation over the last 
couple of weeks.
    Mr. Chairman, I want to thank and commend you for this 
prompt hearing and for proceeding in a bipartisan manner. This 
is not a partisan issue and it will not be. Some of us may 
disagree at the end of the day, and I will respect each of my 
colleagues' ultimate views.
    I should also note that the bulk of these proposals have 
been requested by the Department of Justice for years, under 
both Republican and Democrat administrations. Unfortunately, 
they have languished in Congress for one reason or another.
    I have reviewed the Attorney General's proposal and I can 
say without reservation that the administration's requested 
authorities reflect a measured and cautious response to the 
threats that we face. We have been carefully examining this and 
other proposed reforms. I applaud the Attorney General for 
moving responsibly in this area and taking care to ensure that 
the requested reforms as promised a week ago by himself and the 
President's counsel, Judge Gonzales, fit well within the bounds 
of the Constitution and do not compromise the basic liberties 
that all of us citizens of this great Nation have come to 
cherish.
    We must not repeal or impinge upon our cherished 
constitutional liberties because to do so would bring us closer 
to the joyless totalitarian society espoused by our enemies. 
The Attorney General's proposal properly takes these concerns 
into account, and at the same time does what people around 
America have been calling upon Congress to do; that is, to give 
our law enforcement community the tools they need to keep us 
safe in our homes and in our places of business.
    If we do not prevent terrorists from taking away our 
liberties, we will not have any liberties and we will not have 
the freedoms that we have all taken for granted.
    Mr. Chairman, there have been few, if any, times in our 
Nation's great history where an event has brought home to many 
of our citizens so quickly and in such a graphic fashion a 
sense of our own mortality and a sense of our vulnerability to 
unexpected attack.
    I believe we all took some comfort last week when the 
President promised us that our law enforcement institutions 
would have the tools necessary to protect us from the danger 
that we are just beginning to perceive. So I look forward to 
working with all of our colleagues to ensure that that happens.
    I want to thank the Attorney General for being here. I am 
very grateful that the leading members of the Justice 
Department are accompanying him here, and we appreciate all the 
efforts you have made so far.
    [The prepared statement of Senator Hatch follows:]

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH

    Mr. Chairman, last Thursday, our President, with the undivided 
support of this Congress and the American People, announced a war on 
terrorism.
    As the President made clear in his address, 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. 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 at the World Trade Center 
and 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.
    A scant three weeks ago, we could not have contemplated that today, 
September 25th, 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 
there were few of us who comprehended the true depths of the hatred 
directed at us by these evil men. Few of us could predict the horrific 
methods that these men would employ in an effort to destroy us, destroy 
our liberties and destroy our democratic institutions.
    On September 11th, all that changed.
    In the last few days, we have all come to acknowledge that we live 
in a different and more dangerous world than the world we perceived 
when we woke up on the morning of September 11th.
    A different world--not only because thousands of our county-men 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 used to take 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 that 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 tools, and different kinds of tactics.
    The United States Attorney General will be the individual 
principally responsible for leading us in that part of the fight that 
will be conducted on American soil. 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.
    The Attorney General has communicated to us, and in no uncertain 
terms, has told us that he does not currently have the adequate weapons 
to fight this war. He appears before us today--and General Ashcroft I 
want to personally thank you for appearing here today, and for your 
tireless efforts in managing this investigation over the last couple of 
weeks. The Attorney General will again request today that he be given 
the basic weapons, that many of us have supported over the years, that 
he requires to wage effectively this vital war against terrorism. I 
urge my colleagues to heed his words.
    Mr. Chairman, I want to thank and commend you for this prompt 
hearing and for proceeding in a bipartisan manner. You and your staff 
have worked diligently and in good faith throughout the past week, and 
indeed over the years on these matters. This is not a partisan issue 
and it will not be. Some of us may disagree at the end of the day and I 
will respect each of my colleague's views. That is each of our 
principled beliefs and it is based on our views on the proper balance 
between the role of law enforcement and our civil liberties. And I 
should also note that the bulk of these proposals have been requested 
by the Department of Justice for years--under both Republican and 
Democratic Administrations. Unfortunately, they have languished in 
Congress, for one reason or another.
    Back to the proposal before us--I have reviewed the Attorney 
General's proposal, and I can say without reservation, that the 
Administration's requested authorities reflects a measured and cautious 
response to the events of the last couple of weeks. We have been 
carefully examining this and other proposed reforms. I applaud the 
Attorney General for moving responsibly in this area, and taking care 
to ensure that the requested reforms--as promised a week ago--fit well 
within the bounds of the Constitution and do not compromise the basic 
liberties that all of us as citizens of this great nation cherish.
    As the Attorney General has recognized, we must not change our way 
of life, because to do so would be to signal our defeat. That is 
exactly what our enemy seeks to bring about.
    We must not repeal or impinge upon our cherished constitutional 
liberties, because to do would only bring us closer to the joyless 
totalitarian society espoused by our enemy.
    The Attorney General's proposal properly takes these concerns into 
account and, at the same time, does what people around America have 
been calling upon Congress to do--that is, to give our law enforcement 
community the tools they need to keep us safe in our homes and in our 
places of business.
    If we do not prevent terrorists from taking away our liberties, we 
will have no freedom.
    I would like to briefly comment on the general thrust of the more 
familiar proposals in the Administrations legislation--namely, 
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 unfortunate that the laws 
currently on the books which govern such surveillance were enacted 
before the fax machine came into common usage, and well before the 
advent of cellular telephones, e-mail, and instant messaging. All of 
these modern modes of communication we now know were principal tools 
used by the terrorists to coordinate their deadly attacks.
    The Department of Justice has asked us for years to update these 
laws to reflect the new technologies, but there has always been a 
reason to go slow, to seek more information, to order further studies. 
We simply cannot afford to wait anymore!
    I would like to dispel a myth that the reforms somehow require an 
abridgment of the Constitutional freedoms enjoyed by law-abiding 
American citizens. Many in the media 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. The reforms requested by the Attorney General are 
primarily directed at allowing law enforcement agents to work smarter 
and more efficiently--in no case do they, as I have reviewed them, 
curtail the precious civil liberties protected by our Constitution.
    Mr. Chairman, 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 own 
mortality, and a sense of our vulnerability to unexpected attack. I 
believe we all took some comfort last week, when the President promised 
us that our law enforcement institutions would have the tools necessary 
to protect us from the danger that we are just beginning to perceive.
    I look forward to working with our colleagues to ensure that 
happens.

    Chairman Leahy. Thank you, Senator Hatch.
    General we are, first and foremost, United States Senators 
and we represent today a United States, more united, as I said, 
than I have ever seen in my lifetime.
    General we appreciate all you have done. I thank you both 
privately and publicly for what you have done. The floor is 
yours. Please, if you can, summarize your statement to allow 
for as many questions as possible.

STATEMENT OF HON. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED 
                             STATES

    General Ashcroft. Chairman Leahy, thank you, and Senator 
Hatch, thank you.
    I must express my deep appreciation for the fact that we 
have been collaborating on the way to do two important tasks 
from the moments after this tragic, criminal act of war was 
perpetrated against the United States. You have been to the 
Justice Department and I have been to the Hill, and we have 
been back and forth and we have seen each other night and day. 
Frankly, Chairman Leahy and Senator Hatch, I want to thank you 
for that level of collaboration. It is very important.
    In his address to Congress and to the Nation and to the 
world last Thursday, President Bush declared war on terrorism. 
As Attorney General, it is my duty to respond to this call to 
action by ensuring the capacity of the United States law 
enforcement community to perform two related, critical tasks. 
The first task is to prevent more terrorism; the second is to 
bring terrorists to justice.
    The American people do not have the luxury of unlimited 
time in erecting the necessary defenses to future or further 
terrorist attacks. The danger that has darkened the United 
States of America and the civilized world on September 11 did 
not pass with the atrocities committed that day. Terrorism is a 
clear and present danger to Americans today.
    Intelligence information available to the FBI indicates a 
potential for additional terrorist incidents, and I testified 
at the House Judiciary Committee yesterday regarding the 
possibility of attacks using crop-dusting aircraft.
    Today, I can report to you that our investigation has 
uncovered several individuals, including individuals who may 
have links to the hijackers, who fraudulently have obtained or 
attempted to obtain hazardous material transportation licenses. 
Given the current threat environment, the FBI has advised all 
law enforcement agencies to remain alert to these threats.
    I urge Americans to notify immediately the FBI of any 
suspicious circumstances that may come to your attention 
regarding hazardous materials, crop-dusting aircraft, or any 
possible terrorist threat. The FBI website: www.ifccfbi.gov. 
www.ifccfbi.gov. And we do have a toll-free incoming line for 
individuals. That is 866-483-5137.
    The new terrorist threat to America is on our soil, and 
that makes it a turning point in history. It is a new challenge 
to law enforcement. Our fight against terrorism is not merely 
or primarily a criminal justice endeavor. It has to be a 
defensive and prevention endeavor. We cannot wait for 
terrorists to strike to begin investigations. The death tolls 
are too high, the consequences are too great. We must prevent 
first, prosecute second.
    I can assure the Committee and the American people we are 
conducting this effort with a total commitment to protect the 
rights, the constitutional rights, and the privacy of all 
Americans. We will respect, we will safeguard the 
constitutional protections which we hold dear.
    In the past, when American law enforcement confronted 
challenges to our safety and security from espionage, from drug 
trafficking, from organized crime, this Congress and law 
enforcers met those challenges in ways that preserved our 
fundamental freedoms and our civil liberties.
    And today we seek to meet the challenge of terrorism with 
the same meticulous, careful regard for the constitutional 
rights of Americans and respect for all human beings. Just as 
American rights and freedoms have been preserved throughout 
previous law enforcement campaigns, they must be preserved 
throughout this war on terrorism.
    The Justice Department will not waiver in our defense of 
the Constitution, nor will we relent in our defense of civil 
rights.
    As the members of this Committee understand, the 
deficiencies in our current laws on terrorism reflect two 
facts:
    First, our laws fail to make defeating terrorism a national 
priority. Indeed, we have tougher laws against organized crime 
and drug trafficking than we do against terrorism.
    Second, technology has dramatically outpaced our statutes. 
As the Chairman mentioned, law enforcement tools created 
decades ago were crafted for rotary telephones, not e-mail or 
the Internet or mobile communications and voice mail.
    Every day that passes--every day that passes--with outdated 
statutes and the old rules of engagement is a day that 
terrorists have a competitive advantage. Until Congress makes 
these changes, we are fighting an unnecessarily uphill battle. 
Members of the committee, I regret to inform you that we are 
today sending our troops into the modern field of battle with 
antique weapons. But that need not be our condition long.
    The anti-terrorism proposals that have been submitted by 
the administration--and, very frankly, informed by and shaped 
by collaboration with members of this Committee and other 
Members of the Congress--represent careful, balanced, and in 
many cases long overdue improvements to our capacity to combat 
terrorism. It is not a wish list. It is a set of essential 
proposals, focusing on five broad objectives, which I will 
briefly summarize.
    Number one, law enforcement needs a strengthened and 
streamlined ability for our intelligence-gathering agencies to 
gather information necessary to disrupt, weaken, and eliminate 
the infrastructure of terrorist organizations. Critically, we 
need the authority for law enforcement to share vital 
information with our National security agencies in order to 
prevent future terrorist attacks.
    Terrorist organizations have increasingly used technology 
to facilitate their criminal acts and hide their 
communications. Intelligence-gathering laws that were written 
for the era of land-line telephone communications need 
changing.
    Our proposal creates a more efficient, yet technology-
neutral standard for intelligence gathering, ensuring law 
enforcement's ability to trace the communications of terrorists 
over cell phones, computer networks, and new technologies in 
the same way we have been able to trace communications of 
individuals over the analog technologies of the past.
    We do not seek changes in the underlying protections in the 
law for the privacy of law-abiding citizens. The information 
captured by the proposed technology-neutral standard would be 
limited to the kind of information that is now capturable in 
analog settings, the kind of information you might find in a 
phone bill. The content of the communications would remain off-
limits to monitoring by intelligence authorities, except when 
current legal standards are met.
    Our proposal would allow a Federal court to issue a single 
order that would apply to all providers in a communications 
chain, including those outside the region where the court is 
located. And the Chairman has already discussed this, the need 
for multi-point. Basically we don't want a court order that is 
specific to equipment so that we monitor a piece of equipment. 
We want a court order that is specific to a person so that we 
monitor the communications of a person.
    Second, we must make fighting terrorism a national priority 
in our criminal justice system. We must make that priority a 
reflection of our laws.
    Our laws treat certain criminals and certain individuals in 
this society more toughly now than they treat terrorists.
    We would, for example, make harboring a terrorist a crime. 
Currently, for instance, harboring persons engaged in espionage 
is a specific criminal offense, but not harboring a terrorist.
    Third, we seek to enhance the authority of the Immigration 
and Naturalization Service to detain or remove suspected alien 
terrorists from within our borders.
    The ability of terrorists to move freely across our borders 
and to operate within the United States is critical to their 
capacity to inflict damage on citizens and facilities in the 
United States. And I am pleased that the Committee is concerned 
about the rather porous nature of our borders. Under current 
law, the existing grounds for removal of aliens for terrorism 
are limited to direct material support for an individual 
terrorist. We propose to expand these grounds for removal to 
include material support for terrorist organizations.
    Fourth, law enforcement must be able to follow the money. 
Just to compress that, we not only need to be able to freeze 
the assets of terrorists, but we need to be able to seize those 
assets, just like we have for those individuals involved in 
drug trafficking.
    Finally, we need the ability for the President and the 
Department of Justice to provide swift emergency relief to the 
families of the victims of terrorism and to the victims 
themselves, the surviving victims.
    Mr. Chairman, I also want to report to you one other thing 
on the status of the Department of Justice's activities 
regarding the civil rights of Americans. Since September the 
11th, the Civil Rights Division, working closely with the 
United States Attorneys across the country and the FBI, has 
opened over 60 investigations into acts involving force or 
threats of force committed in retaliation for the events of 
September the 11th. All of these acts include 
killings, assaults, the destruction or attempted destruction of 
businesses, attacks on mosques and worshipers, and death 
threats.
    The Department of Justice is firmly committed to pursuing 
these misguided wrongdoers vigorously. The Civil Rights 
Division and FBI officials have met with the leaders of Arab 
American, Muslim, and Sikh communities, and we have established 
in the Civil Rights Division an initiative to combat post-
terrorism discrimination to ensure that all allegations of 
violence or discrimination are addressed promptly and 
effectively.
    Let there be no mistake: The Department of Justice will not 
tolerate acts of violence or discrimination against people in 
this country based on their race, national origin, or religion.
    We have all witnessed this savage attack that would seek to 
destroy America. The challenge falls on us, in the name of 
freedom, those of us who cherish freedom, to ensure our 
Nation's capacity to defend ourselves. Today I call upon this 
Committee and the Congress to strengthen our ability to fight 
this evil wherever it exists and to ensure that the line 
between the civil and the savage is so brightly drawn that it 
will not be crossed as it was on September the 11th.
    Thank you.
    [The prepared statement of General Ashcroft follows.]

 STATEMENT OF HON. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES

    Chairman Leahy, Senator Hatch, Senators: thank you for the 
opportunity to discuss the Administration's proposed changes in the law 
to give law enforcement the tools we need to fight terrorism.
    In his address to Congress and the nation last Thursday, President 
Bush declared war on terrorism. As Attorney General, it is my duty to 
respond to this call to action by ensuring the capacity of United 
States law enforcement to perform two related critical tasks: First, 
prevent more terrorism, and second, to bring terrorists to justice.
    The American people do not have the luxury of unlimited time in 
erecting the necessary defenses to future terrorist acts. The danger 
that darkened the United States of America and the civilized world on 
September 11 did not pass with the atrocities committed that day. 
Terrorism is a clear and present danger to Americans today.
    Intelligence information available to the FBI indicates a potential 
for additional terrorist incidents. I testified before the House 
Judiciary Committee yesterday regarding the possibility of attacks 
using crop dusting aircraft.
    Today I can report to you that our investigation has uncovered 
several individuals, including individuals who may have links to the 
hijackers, who fraudulently have obtained, or attempted to obtain, 
hazardous material transportation licenses.
    Given the current threat environment, the FBI has advised all law 
enforcement agencies to remain alert to this threat.
    And, I urge Americans to notify immediately the FBI of any 
suspicious circumstances that may come to your attention regarding 
hazardous materials, crop dusting aircraft or any other possible 
terrorist threat. The FBI website is www.ifccfbi.gov. That's 
www.ifccfbi.gov. Our toll-free telephone number is 866-483-5137. Again, 
the toll-free number is 866-483-5137.
    This new terrorist threat to Americans on our soil is a turning 
point in America's history. It is a new challenge for law enforcement. 
Our fight against terrorism is not merely or primarily a criminal 
justice endeavor--it is defense of our nation and its citizens. We 
cannot wait for terrorists to strike to begin investigations and make 
arrests. The death tolls are too high, the consequences too great. We 
must prevent first, prosecute second.
    I can assure the Committee and the American people we are 
conducting this effort with a total commitment to protect the rights 
and privacy of all Americans and the Constitutional protections we hold 
dear.
    In the past, when American law enforcement confronted challenges to 
our safety and security from espionage, drug trafficking and organized 
crime, we met those challenges in ways that preserved our fundamental 
freedoms and civil liberties.
    Today we seek to meet the challenge of terrorism with the same 
careful regard for the Constitutional rights of Americans and respect 
for all human beings. Just as American rights and freedoms have been 
preserved throughout previous law enforcement campaigns, they must be 
preserved throughout this war on terrorism.
    This Justice Department will never waiver in our defense of the 
Constitution nor relent our defense of civil rights.
    As the members of this Committee understand, the deficiencies of 
our current laws on terrorism reflect two facts:
    First, our laws fail to make defeating terrorism a national 
priority. Indeed, we have tougher laws against organized crime and drug 
trafficking than terrorism.
    Second, technology has dramatically outpaced our statutes. Law 
enforcement tools created decades ago were crafted for rotary 
telephones--not email, the internet, mobile communications and voice 
mail.
    Every day that passes with outdated statutes and the old rules of 
engagement is a day that terrorists have a competitive advantage. Until 
Congress makes these changes, we are fighting an unnecessarily uphill 
battle. Members of the Committee, I regret to inform you that we are 
today sending our troops into the modem field of battle with antique 
weapons.
    The anti-terrorism proposals that have been submitted by the 
Administration represent careful, balanced, and long overdue 
improvements to our capacity to combat terrorism, it is not a wish 
list: It is a modest set of essentials, focusing on five broad 
objectives, which I will briefly summarize.
    First, law enforcement needs a strengthened and streamlined ability 
for our intelligence gathering agencies to gather the information 
necessary to disrupt, weaken and eliminate the infrastructure of 
terrorist organizations. Critically, we also need the authority for law 
enforcement to share vital information with our national security 
agencies in order to prevent future terrorist attacks.
    Terrorist organizations have increasingly used technology to 
facilitate their criminal acts and hide their communications from law 
enforcement. Intelligence gathering laws that were written for the era 
of land-line telephone communications are ill-adapted for use in 
communications over multiple cell phones and computer networks.
    Our proposal creates a more efficient, technology-neutral standard 
for intelligence gathering, ensuring law enforcement's ability to trace 
the communications of terrorists over cell-phones, computer networks 
and new technologies that may be developed in the coming years.
    These changes would streamline intelligence gathering procedures 
only. We do not seek changes in the underlying protections in the law 
for the privacy of law-abiding citizens. The information captured by 
the proposed technology-neutral standard would be limited to the kind 
of information you might find in a phone bill. The content of these 
communications would remain off-limits to monitoring by intelligence 
authorities, except for under current legal standards.
    Our proposal would allow a federal court to issue a single order 
that would apply to all providers in a communications chain, including 
those outside the region where the court is located. We need speed in 
identifying and tracking down terrorists. Time is of the essence. The 
ability of law enforcement to trace communications into different 
jurisdictions without obtaining an additional court order can be the 
difference between life and death for American citizens.
    Second, we must make fighting terrorism a national priority in our 
criminal justice system.
    Our current laws make it easier to prosecute members of organized 
crime than to crack down on terrorists who can kill thousands of 
Americans in a single day. The same is true of drug traffickers and 
individuals involved in espionage--our laws treat these criminals and 
those who aid and abet them more severely than terrorists.
    We would make harboring a terrorist a crime. Currently, for 
instance, harboring persons engaged in espionage is a criminal offense, 
but harboring terrorists is not.
    Third, we seek to enhance the authority of the Immigration and 
Naturalization Service to detain or remove suspected alien terrorists 
from within our borders.
    The ability of terrorists to move freely across borders and operate 
within the United States is critical to their capacity to inflict 
damage on the citizens and facilities in the United States. Under 
current law, the existing grounds for removal of aliens for terrorism 
are limited to direct material support of an individual terrorist. We 
propose to expand these grounds for removal to include material support 
to terrorist organizations.
    Fourth, law enforcement must be able to ``follow the money'' in 
order to identify and neutralize terrorist networks.
    We need the capacity for more than a freeze. We must be able to 
seize. Consistent with the President's action yesterday, our proposal 
gives law enforcement the ability to seize their terrorist assets.
    Finally, we seek the ability for the President and the Department 
of Justice to provide swift emergency relief to the victims of 
terrorism and their families.
    Mr. Chairman, I also want to report to you on the status of the 
DOJ's activities regarding protecting the civil rights of all 
Americans. Since September 11, the Civil Rights Division, working 
closely with the United States Attorneys and the FBI, has opened over 
60 investigations into acts involving force or threats of force 
committed in retaliation for the events of September 11. All of these 
acts include killings, assaults, the destruction or attempted 
destruction of businesses, attacks on mosques and worshipers and death 
threats.
    The Department of Justice is firmly committed to pursuing these 
misguided wrongdoers vigorously. The Civil Rights Division and FBI 
officials have met with leaders of the Arab American, Muslim and Sikh 
communities and we have established in the Civil Rights Division an 
initiative to combat post-terrorism discrimination to ensure that all 
allegations of violence or discrimination are addressed promptly and 
effectively.
    Let there be no mistakes the Department of Justice will not 
tolerate acts of violence or discrimination against people in this 
country based on their race, national origin or religion.
    Among the high honors of my life has been the opportunity I have 
had over the past days and weeks to be in the company of these heroes, 
these friends of freedom; to meet with and work side-by-side with men 
and women who have exerted themselves beyond fatigue, who have set 
aside their own personal agendas and their personal safety to answer 
our nation's call. The nation has found new leaders--and new role 
models--in these brave Americans.
    Now it falls to us, in the name of freedom and those who cherish 
it, to ensure our nation's capacity to defend ourselves from 
terrorists. Today I call upon Congress to act to strengthen our ability 
to fight this evil wherever it exists, and to ensure that the line 
between the civil and the savage, so brightly drawn on September 11, is 
never crossed again.

    Chairman Leahy. General, thank you very much, and I will 
place in the record a statement by Senator Levin, the Chairman 
of the Permanent Subcommittee on Investigations that has been 
dealing for 3 years with the problems of international money 
launderers, along with Senators Grassley, Sarbanes, DeWine, 
Bill Nelson, Kyl, and Durbin. He has introduced a bill, the 
Money Laundering Abatement Act, which is another one to look 
at.
    Chairman Leahy. General, I couldn't help but think, as I 
heard your statement, as I read your statement, and as you and 
I have had discussions, that we have an enormous number of 
areas where you and I agree, and I expect you and the majority 
of this committee, Republicans and Democrats, agree.
    Would you also agree with me that we have made some fairly 
significant progress in our staffs working together, on some 
occasions with you coming in and also working with us, to find 
the areas that unite us? Is that correct?
    General Ashcroft. I am delighted to report that our work 
with you has been very productive, with Senator Hatch, has been 
most valuable. We feel that the collaboration has been 
important, and we are where we are today because of it. And we 
are grateful for it. It began moments after this tragedy 
struck, and it has been a working relationship that has been 
superior to any that I have known.
    Well, General, frankly, I have been very, very pleased that 
you have been there, as I told you privately. I will say 
publicly what I told you privately as we were walking down the 
hall the other day of the Justice Department. I am glad you are 
there leading this effort.
    General Ashcroft. Thank you.
    Chairman Leahy. We know that in the last decade, according 
to the press, the FBI has tripled spending to stop terrorism, 
quintupled the number of intelligence gatherers, and has tried 
to change its bureaucracy to share information about terrorists 
across the Government. I know that was a key priority of former 
Director Freeh, who worked very, very hard at it and deserves 
our thanks for that, and it is of Director Mueller.
    Now, the press reports indicate that two of the suspected 
terrorists from the September 11th attack were on 
the FBI watch list. Does the FBI or the Department of Justice 
normally give these watch lists to the FAA, the Federal 
Aviation Administration?
    General Ashcroft. Well, the watch list has basically been a 
list that is provided to the Immigration and Naturalization 
Service for monitoring people coming in and out of the country.
    When the FBI received these names, it was determined that 
the individuals had already gotten into the country, so that 
these individuals were sought, having previously entered the 
country before the watch listing of the names.
    Let me inquire of the experts here as to whether or not 
this list goes to the FAA or whether it just goes to the 
immigration officials.
    [Pause.]
    General Ashcroft. It has not been the practice in the past 
for the FAA to be the recipient of the watch list.
    Chairman Leahy. General, could I suggest that in a whole 
new and changed world--and I have heard Ms. Garvey talk about 
this, too--that there be an effort first in the 
administration--this is something we won't do legislatively, 
but the administration find out when such lists should be given 
to the FAA and what steps the FAA does to give them to 
airlines.
    General Ashcroft. Air carriers.
    Chairman Leahy. And then what steps the airlines follow, 
which goes to what Senator Cantwell and others have said about 
having the equipment, the computer banks and so on to do this, 
what they do to check on it. We are in a whole new world where 
a terrorist in one part of the world can be in downtown Chicago 
a day later from anywhere else in the world. We have to know 
who is doing that.
    I have circulated a proposal with a number of steps that I 
think would be practical--and I think of this especially as 
Prime Minister Chretien of Canada is in town--to increase the 
number of Border Patrol agents on the Northern border, increase 
the number of judges involved in reviewing foreign intelligence 
surveillance reports from the seven that we now have, perhaps 
doubling that and keeping a number of those here in the area 
closer to the headquarters of the Department that would be 
making the request, to expedite the hiring of translators at 
the FBI and realize that if you have somebody who speaks a 
language very well and they are in a wheelchair or blind or 
whatever else, if they can do the translation, we should be 
very broad in what is required to hire them because we want 
their translating skills.
    Would you agree that these are all important things that we 
could do?
    General Ashcroft. I think those are very important 
considerations. We have, you know, taken for granted our 
Northern border with the excellent friends we have in Canada. 
But, for example, we have 9,000 people basically supervising 
border enforcement on our Southern border and fewer than 500 
people supervising enforcement along the Northern border.
    I have conferred with Commissioner Zigler of the INS about 
this, and we are working on plans to help provide greater 
security for our Northern border, which has become a transit 
point for several individuals involved in terrorism.
    Chairman Leahy. As one who lives on the Northern border--
and I see several others who do are here--obviously we are 
concerned. Canada is our largest trading partner, and it is a 
place we are very friendly with. We want to keep that up. But 
we also don't want this to be an area of vulnerability. I think 
we can do both. We can keep traffic moving quickly through it, 
but with the proper equipment, people, personnel, computers and 
so on, we can do a far better job.
    My time is up, and I will keep a tight connection on time, 
so I will yield to Senator Hatch. I would also note that 
Senator Biden is going to have to leave for a funeral, and 
Senator Biden has been one who has worked as hard on these 
issues as anybody else in this committee.
    Senator Hatch?
    Senator Hatch. I would be happy to yield.
    Senator Biden. Just for 10 seconds. I want to explain to 
the Attorney General that I appreciated his call. I am looking 
forward to working with you on this legislation. But a young 
man who was killed in the Pentagon bombing, a young 21-year-old 
Navy guy, I am going up to his funeral in Newark, Delaware. So 
I am going to have to leave now, but with your permission, Mr. 
Chairman, I would like to be able to submit my questions in 
writing.
    Chairman Leahy. Thank you. And when General Ashcroft and I 
spoke this morning, he said that all of the questions submitted 
for the record, they will do everything possible to get them 
back today, which I appreciate. Obviously, something that is 
that complex, we are not going to hold you to that, but it will 
help us work.
     I want to yield to Senator Hatch. I am told that the 
lights are not working. I would ask staff of each Senator to 
hand them a note--and they will also hand me a note--when 5 
minutes is up. And please help us with this.
    Senator Hatch?
    Senator Hatch. Well, thank you, Mr. Chairman.
    General Ashcroft, I have looked over the suggestions that 
you have made, the statutory language you have suggested, and I 
think it is a measured, targeted response to what we are facing 
here, and it is something that is long overdue and something 
that, like I say, both Democrat and Republican administrations 
have been requesting for so many years.
    Now, there are some misapprehensions and there are some 
misunderstandings that I think occasionally show up in some of 
the media. So let me just say, for instance, I know that some 
of my constituents have expressed concerns that the legislative 
proposal grants the FBI broad new powers to engage in 
unsupervised wiretapping of U.S. citizens. Now, in order to 
clear away some misperceptions regarding this bill, I would 
like to ask you or your Deputy, Mr. Thompson, or Mr. Chertoff, 
the head of the Criminal Division, or all three of you, do any 
of the provisions you have requested allow law enforcement 
agencies to engage in electronic surveillance without getting 
approval from a Federal judge?
    General Ashcroft. No, they don't. What we have tried to do 
is to bring into parity some of the communications and records 
of communications, not the content of communications, that are 
on the Internet now that used to be done over the telephone. So 
we have tried to develop a technology-neutral framework, and 
with FISA, Foreign Intelligence Surveillance Act, we have 
sought to get the multi-point reforms made in terms of coverage 
that this Committee provided last year for telephone 
communications, and in the non-FISA area.
    Senator Hatch. And to follow up, General Ashcroft, is it 
ever possible for law enforcement agents to engage in any sort 
of electronic surveillance without making a certification to a 
judge that the information is relevant to a criminal 
investigation or to an investigation involved in foreign 
counterintelligence?
    General Ashcroft. The standard required for FISA 
applications and for normal criminal settings should be 
relevant to the investigation. That is the criminal standard 
that we now have, and that is the standard which we think is 
appropriate. That would not be a change in the way in which 
constitutional rights of individuals are regarded by our courts 
and by the country.
    Senator Hatch. And in each case, you are going to have to 
get a judge's approval?
    General Ashcroft. You have to allege to the judge that the 
information sought and that the conduct is relevant to an 
appropriate inquiry, and the judge has to issue then an order.
    Senator Hatch. General Ashcroft, I would like to just take 
a few minutes to talk about little devices called pen 
registers. As you know, 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. And I 
know that these devices are critical investigatory tools.
    Correct me if I am wrong, but my review of the Constitution 
and of the case law shows that 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. Is that correct?
    General Ashcroft. Well, I believe that to be correct, and 
we do not seek to really change the substantive law here. We 
need to extend the pen registry type of information to the new 
technology, but this is the kind of information that has been 
available in law enforcement for quite some time.
    Senator Hatch. Well, unlike the content of your telephone 
conversation, once a call is connected, the numbers you dial 
into your telephone are not private. You are sharing them with 
the telephone company in order to allow the telephone company 
to make the connection and, of course, to bill you for the 
call. Because you have no reasonable expectation that such 
numbers will be kept private, as I understand it, they are not 
protected by the Constitution. Now, the Smith holding was cited 
with approval by the Supreme Court just earlier this year, as I 
understand it.
    Now, as I understand it, the thrust of your proposed reform 
regarding pen registers would make clear what the Federal 
courts have already ruled, that the 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, or get just routing information.
    General Ashcroft. That is true. Let me just clarify this. 
Pen registers or trap and trace information, which doesn't 
include the content of communication--it includes the person 
making the communication and--it doesn't even include the 
person. It includes the number from which a call was made and 
the number to which it was made. These have a standard that you 
have to assert the relevance to an investigation before the 
court orders that procedure.
    When you want the content of calls, then you have to be 
able to go to the court and convince the court that there is 
probable cause, and that is a much higher standard. So when you 
are looking just for this information, which you have indicated 
properly the courts have indicated is not really--it is 
information shared with the phone company, not private 
information, not in the exclusive control of the subject. Those 
things are appropriately--the standard of relevance covers 
them, and to extend it to the new technologies is not a giant 
step or leap.
    Content calls will always require probable cause, content 
of calls, and the content of other communications should.
    Senator Hatch. Thank you, Mr. Attorney General. My time is 
up.
    Chairman Leahy. Senator Kennedy?
    Senator Kennedy. Thank you very much.
    General welcome.
    General Ashcroft. Thank you, Senator.
    Senator Kennedy. And I think all of us recognize the new 
nature of the threat, and we want to be able to get the 
authority to law enforcement officials to hunt down the 
terrorists and those that support the terrorists. And we want 
to work closely with you, and we thank our Chairman and Ranking 
Member for the work that they have done and for the work you 
have done in exchange.
    General Ashcroft. Thank you.
    Senator Kennedy. I am concerned about the immigration 
provisions, and I will come back to that, and also on the 
questions of the wiretap. As you remember from the Foreign 
Intelligence Surveillance Act, there is quite a difference in 
the proposal now from what it has been, from the primary 
purpose being foreign to just the ability to have a purpose, 
and it also does, as I understand it, permit the exchange of 
information in terms of the criminal investigation. So there 
may be just issues of clarification, but I think that is an 
area which I know our members will have.
    I want to also thank you for the pursuit of the Justice 
Department, the President's strong support, in terms of these 
hate crimes. This is an issue which our Committee has wrestled 
with over some period of time. We have had some very serious 
situations in my own State in the last few days, and we want to 
make sure you have all the totals. As you know, that is 
something that we can get into at another time.
    But in the time that I have, I would like to just focus 
first of all on the issues on the mandatory detention and 
judicial review. Obviously, anyone who is suspected of engaging 
in terrorist activity should be vigorously investigated and 
prosecuted when adequate evidence has been obtained. Many of 
us, however, have serious concerns about the administration's 
proposal to give the Government broad powers to detain a person 
indefinitely on the mere suspicion that the person may engage 
in terrorist activity without any realistic review of the 
decision.
    So can you explain what your proposal's evidentiary 
requirements are for certifying that the Attorney General has 
reason to believe that an alien may be involved in terrorist 
activity and, therefore, be subject to mandatory indefinite 
detention?
    General Ashcroft. I thank the Senator for this question 
because this is an area of importance.
    When a person is being the subject of adjudication for 
deportment, for being deported on grounds that are other than 
terrorism grounds, frequently that individual is not detained. 
The provision that we have in this proposal is that if the 
Attorney General determines that the individual meets a 
standard of being a threat to national security, et cetera, 
when that person during the pendency of the adjudication of 
being deported on other grounds, that person can be held in 
custody, and that is the nature of this provision.
    Very frequently, individuals who may be associated with or 
parts of activities which could be terrorist-oriented are 
individuals whose status is not appropriate. They are subject 
to deportation for other reasons.
    If we are in the process of deporting an individual for 
other reasons, during the pendency of those proceedings this 
provision provides that that individual, if determined to be 
the kind of threat that we have described in the bill, could be 
held in custody while that proceeding was being concluded. That 
is the extent of the so-called indefinite ability of the 
Attorney General to hold individuals in immigration 
proceedings.
    Senator Kennedy. Well, I thought, General, you have that 
power at the present time, I understand, to hold an individual. 
I understand you have got the power that you have just 
described under current law at the present time. But I will be 
glad--what I am interested in is others that you may want to be 
able to hold, that could be permanent resident aliens or could 
be--that are not subject to the deportation kinds of hearings. 
You have new authority and new powers, and that is the 
principal one that I am interested in pursuing.
    The standard which you will use on this, I was interested 
in hearing from you what you thought the standard, the 
evidentiary standard would be.
    Let me just move on, if there is something in addition you 
would like to add.
    General Ashcroft. I believe we are talking about 
individuals who are the subject of an adjudication regarding 
their being deported----
    Senator Kennedy. They are the only ones you are going to 
extend this power to----
    General Ashcroft. Now, they may be the subject of it 
because their visa has expired. I am not talking about 
necessarily having alleged in the proceeding that the subject 
of the proceeding is terrorism, but if they are the subject of 
a deportation proceeding, then upon the determination by the 
Attorney General. I don't mean to take additional time. I know 
you want to move on.
    Senator Kennedy. All right. I would welcome the opportunity 
to clarify that with you.
    General Ashcroft. Certainly. We will be very happy to 
confer on it.
    Senator Kennedy. Let me ask on this, what kind of assurance 
can you give us that that determination will be made by someone 
at a high level in the Justice Department, you know, like 
yourself or your Deputy? Can you give us any assurance that 
that kind of judgment in terms of the indefinite delay will be 
made by someone--frequently under the existing law, it can be 
made by a relatively low level, and then the cases which have 
been tried in the past, those cases have generally been 
overturned.
    I would be glad to talk about it. I don't want to fly-speck 
you on this kind of thing about what particular part. But if we 
can have assurance that it is going to be made at a level in 
the Department from someone that has----
    General Ashcroft. I would be very happy to work with you on 
that.
    Senator Kennedy. Okay.
    General Ashcroft. I am not interested in this becoming a 
matter of course determination as a means of holding people who 
otherwise should not be held.
    Senator Kennedy. Just on the question of review, on the 
habeas corpus review, on these kinds of cases, could you 
describe a little bit what kind of review they will be subject 
to? As I understand, under the administration's, it will be 
just the question, it will be habeas corpus review, but it will 
only be with regards to the individual, whether we have the 
right individual or not, a review on the reason that they are 
being held. That is the difference. Again, I will bring that to 
your attention. These are complicated and difficult ones, but 
if we could----
    General Ashcroft. I would be very happy to work with you on 
that. Habeas can be a very broad remedy, and you can allege 
virtually anything in a petition. You could allege that the 
Attorney General either relied on false documents or bad 
information or made an arbitrary rather than a discretionary 
decision. But we should work--if that is a problem, I would be 
very happy to collaborate to resolve that issue.
    Senator Kennedy. My time is up. I thank the Chair.
    Chairman Leahy. Thank you.
    We have been joined by Senator Thurmond, the most senior 
member of the committee. Senator Grassley would have gone next. 
With his courtesy, his usual courtesy, we will go next to 
Senator Thurmond.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE 
                       OF SOUTH CAROLINA

    Senator Thurmond. Mr. Chairman, today the security of our 
Nation is at risk from an enemy unlike any we have faced 
before. The President is doing an excellent job in responding 
to the threat. We in the Congress have a duty to assist the 
President and our Nation at this time of great need. We are 
providing resources, but we also need to reform our laws to 
help law enforcement track down terrorists and prevent future 
attacks.
    The Attorney General's proposals are reasonable and 
entirely consistent with the Constitution. Many of them have 
been considered for years based on computer crime and other 
threats. Also, this legislation will allow intelligence and law 
enforcement communities to share more information which would 
have helped in advance of the tragedy of September the 11th. 
These reforms are overdue. This is not a time for endless 
deliberation and delay. This is a time to act.
    Thank you.
    General Ashcroft. I thank the Senator.
    Chairman Leahy. Thank you, Senator Thurmond.
    Senator Kohl?
    Senator Kohl. Thank you, Mr. Chairman. And, Mr. Attorney 
General, it is good to see you here today.
    The terrorist attacks demonstrated a total breakdown in our 
intelligence, one that cannot be excused and must never be 
forgotten. Given the limited time available, I just have a few 
questions to pose to you.
    Mr. Attorney General, shouldn't we be focusing our 
attention first on improving human intelligence in an attempt 
to prevent terrorism? A former CIA official was quoted in the 
Post yesterday as saying that, ``Wiretaps do no good if you 
have no one who can translate or be able to understand what 
they are hearing.''
    In addition, published reports indicate that plans for the 
1993 World Trade Center bombing were outlined in documents 
collected in a different case. But because the prosecutors 
could not translate the documents from Arabic, the information 
was ignored.
    So can you tell us today what the Department is doing to 
improve its intelligence capabilities immediately?
    General Ashcroft. First of all, Senator, I agree with you 
that human intelligence is very important, and I believe that 
from what I can tell the Congress has been responding to that 
need, and we intend to. The Director of the Federal Bureau of 
Investigation has indicated the need for us to recruit 
individuals with backgrounds and awarenesses of the culture 
that will help us prevent these kinds of events. We have also 
made an appeal for individuals with the appropriate language 
skills.
    I happen to know that--I have talked to the Director of the 
Bureau about looking down the road for the next couple decades 
to anticipate what kind of cultural and language capacities we 
are going to be needing. It is very apparent that we need 
additional individuals so that intelligence we get can be 
digested and translated immediately, but we also ought to be 
looking to the next decade and the one beyond to make sure that 
our intelligence operations and our enforcement capacity, which 
will provide the foundation for our prevention, that those 
things be in place. You can't wait for a threat and then run 
out and learn a language that is very tough. And we are 
beginning to look with the kind of foresight that I think you 
are suggesting in your question. We are very eager to work 
together that done and have begun that process already.
    Senator Kohl. Mr. Attorney General, you have provided us 
with a significant list of requests for changes in criminal 
law. The Department, however, must have a few priorities from 
among that list. If the average American asked you what three 
or four or five items in the bill the Justice Department really 
needed to make a difference in preventing terrorism and 
bringing terrorists to justice today, what would you tell that 
person?
    General Ashcroft. Well, there are a couple concepts that I 
think are understandable to the American people, and that is 
that we need terrorism to be a priority for law enforcement. 
And in order to do that, we need for the laws regarding 
terrorism to have at least as tough teeth and as strong an 
enforcement and prevention capacity as exists for laws against 
organized gambling or laws against organized crime or laws 
relating to drug trafficking. So that is a priority, to bring 
the laws relating to terrorism up to speed with the rest of the 
laws.
    The constitutionality has already been established in these 
other arenas, so it is a matter of just bringing these up to 
date.
    The second thing is to make sure that our technology, which 
is being widely used by the criminal element and terrorists in 
particular, hasn't outpaced the format for gaining information, 
so making unavailable today the kind of information that we had 
a year or two ago when the law and the technology were focused 
on the same rules.
    Those are the two main things that are priorities that I 
think we need to have understood.
    Senator Kohl. All right. Mr. Attorney General, can you say 
with any confidence that there is anything in the Justice 
Department's bill that would have prevented these attacks or 
made them demonstrably less likely to have occurred?
    General Ashcroft. It is impossible to say that had we had 
every one of these provisions that we would have avoided the 
attack. We know that without the provisions we did not avoid 
the attack. We know that these provisions would strengthen our 
ability to know and to intercept and to monitor and prevent, to 
thwart and disrupt. But there is no way for me to guarantee 
that even with all of these items we would have known about 
this particular attack.
    It is a complex effort. I think much of the planning may 
have been done overseas, the execution carried out here, and it 
demonstrates the new world in which we live where there is an 
interrelationship between the international and the domestic. 
For a long time we have said that the CIA has information that 
deals with things overseas and the FBI has information that 
deals with things at home. But I think we have learned that 
there are those things that are happening overseas that are 
very, very threatening to the way in which we live at home.
    So I can't guarantee that any of these things would have 
prevented it. We know that without these things we did not 
prevent it. I do know that these are valuable tools and that 
without them we are fighting a war or a battle that is 
unnecessarily uphill.
    Senator Kohl. Thank you.
    Mr. Chairman, my time has expired.
    Chairman Leahy. Thank you, and the lights are working 
again.
    Senator Grassley?
    Senator Grassley. General Ashcroft, I would like to go 
back----
    General Ashcroft. If you had called me ``Senator,'' I would 
have considered it a compliment.
    Senator Grassley. Senator Ashcroft, I want to go back to 
where Senator Hatch left off for just a little further 
clarification. As I recall, you stated that e-mail routers 
should be treated the same as the telephone numbers that are 
captured by a pen register or a trap and trace. The fact is 
they are not the same.
    Doesn't the e-mail router contain some information about 
what is contained within and then really goes further than 
what, it seems to me, you want to go? Because you want to know 
who is communicating, but you don't want to know what the 
message is.
    General Ashcroft. We are very cognizant of the need for a 
different standard for the content, any indication of the 
content of the call. So the only thing we seek to discover 
based on the trap and trace and the pen registry is the address 
of the sender and the address of the recipient.
    Senator Grassley. Since that information also includes some 
information about what is the message contained, don't you then 
go a little bit further than what you anticipate going, or what 
you--and I am not questioning your veracity. I just want to 
understand. Do we understand that you might be going further 
than you intend to go, then, based upon your statement?
    General Ashcroft. Our view is that the subject line would 
require us to have a Title 3 or the higher-level authority, and 
we do not want that line as a result of our pen register or 
trap and trace. We want this to be technology-neutral. We don't 
think that there should be a competitive advantage to people 
using the digital circumstance that gives them an impunity that 
they didn't have in the analog world. But we are not seeking--
and I don't believe the legislation--I would be happy to confer 
on this, and if there are ways that we need to adjust it, we 
will. We are not asking that we get content or an 
identification of the possible content or even the titling of 
the message. We want to know the instrument from which it was 
made and the instrument to which it was directed.
    Senator Grassley. I want to get at a point on another issue 
about whether or not there is adequate coordination and sharing 
of information from FBI investigators with top officials.
    There was a September 14th news briefing in 
which Director Mueller represented that if the FBI had 
understood that the hijackers had received flight training in 
this country, they could have possibly averted the tragedy. 
However, information has now surfaced that the FBI indeed had 
information from the U.S. Embassy bombing trial, from flight 
schools who called the FBI, and from interviews that agents 
conducted at flight schools.
    So far, we have highlighted that there is a need for better 
coordination between Federal agencies, but first it seems to me 
that the FBI needs to be doing a better job internally of 
disseminating critical information, namely, key information 
gathered by investigators isn't being passed on to top 
officials, who then are in a position of giving an inaccurate 
statement about facts.
    I know that I share the concern that you have that an 
investigation of this magnitude is receiving adequate oversight 
and supervision, and in return, that the top officials are 
hearing everything they need to know about the case. So could 
you address this and whether there is any remedy that we need 
to take to the problem?
    General Ashcroft. Well, as you well know, we have thousands 
of FBI agents, over 10,000 agents, and they all come into 
various levels of information. And making sure that the 
information is sent up the chain so that it could be understood 
as it relates to what another agent, instead of Agent 10,000, 
Agent 7 also gets something that is similar. That is the big 
challenge in these things, not to lose information and yet not 
to be swamped by it.
    I can just assure you that we are painfully aware of the 
need to understand what is important in one section in terms of 
what might be found in another. We have learned that--knowing 
what we know now about flight training and about individuals 
seeking flight training, we act on that information far 
differently and more aggressively.
    When we learned about individuals in the crop-dusting 
setting, looking at and getting training and having information 
about dispersing chemical or other agents as a result of--
pardon me, through an aerosol way, we sent out a warning all 
across the country.
    And that is the big challenge for us. We will work to do it 
as well as it can be done, and that is, coordinating what one 
agent learns in one part of the country with information that 
is developed in another part of the country to decide whether 
there is a pattern that suggests that we have a special 
vulnerability. The costs of not getting that done can be very 
substantial.
    Senator Grassley. Thank you. My time is up.
    Chairman Leahy. Thank you.
    Because of the Attorney General's schedule, we are only 
going to have time for questions by Senator Feinstein and 
Senator Specter to accommodate his schedule.
    Senator Feinstein?
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Mr. Attorney General, let me say right up front that I 
think you have done a very fine job.
    General Ashcroft. Thank you.
    Senator Feinstein. Let me say that I am one that wants to 
see you have what you need to do the job that all Americans 
know needs to be done. Having said that, as you know, there are 
some controversial parts of some of this, and it occurs to me 
that a way to go might be to put a sunset on those 
controversial parts. So let's say they sunset in 5 years, and 
we then have an opportunity to take a look and see that they 
weren't misused after that 5-year period.
    This really involves some of the technical aspects of it, 
and in my next question, I am going to ask you specifically 
about Section 153. Mr. Kris gave very good testimony yesterday 
before the Intelligence Committee on this particular section, 
which I think concerned Senator Edwards as well as myself at 
that hearing.
    But let me ask the first question. How would you feel if in 
some of these, particularly with the wiretaps, we put a 5-year 
sunset on those sections?
    General Ashcroft. Well, Senator, I thank you for your 
concern, and I know what you are seeking to do is to balance 
the system to make sure that we have it done well.
    The risk of having these kinds of tools expire at a moment 
when it would be very difficult for us perhaps to explain 
publicly why they shouldn't expire and the risks of being 
caught without these protections are very high. If I thought 
the risk of terrorism was going to sunset in several years, I 
would be glad to say we ought to have a sunset provision.
    So I don't believe an automatic sunset is the answer here. 
I do believe that this Committee and other aspects of the U.S. 
Congress in exercising their responsibility to the public to 
monitor the ways in which these items are implemented, and if 
at any time prior to--if after a short period or a long period, 
adjustment is the business of Government and free people. So I 
guess I would say that we need to err on the side of having 
these tools available, but also with the superintending 
responsibility of Congress to make sure that these are being 
used in ways that respect the need for security and the civil 
rights and liberties of American citizens.
    Senator Feinstein. If I may, I thank you for that. I would 
like to ask the same question I asked yesterday of Mr. Kris, 
really with the intention of really bringing this to your 
attention, and this is on Section 153, the foreign intelligence 
information, and that section aims to clarify that the 
certification of a FISA request is supportable where foreign 
intelligence gathering is ``a purpose of the investigation.''
    Now, the primary purpose test, as you well know, has often 
been cited as one of the reasons that FISA meets the 
constitutional requirements under the Fourth Amendment, and we 
are concerned that the elimination of the test might place FISA 
in danger of being struck down by a court.
    Now, Mr. Kris testified that the Department does not 
believe that will be the case, but I would like to ask this 
question: What would your view be if, instead of adopting the 
Attorney General's proposal, FISA was amended to allow for a 
substantial or significant purpose?
    General Ashcroft. Well, frankly, I think these are very 
good questions. These are questions over which we have labored. 
The Keith case, as it is known, from 1972 went into these 
things, and the Troung case more recently.
    It is important to remember that FISA applies only to 
foreign governments or the agents of foreign governments. This 
is not something that is broad in terms of its application. The 
overlap of criminal and terrorist activities, I think, is the 
reason we see for having FISA operative as a purpose, being the 
foreign intelligence surveillance purpose, and criminal 
activity being susceptible, as well, because a number of the 
terrorist operations that we encounter support themselves with 
criminal activity.
    If we don't have the capacity of having purposes other than 
the foreign intelligence purpose, we find that we might have to 
discontinue in order to prosecute some of these coverages, and 
given the fact that frequently the terrorist activity is 
planning more than one activity, so that we would like to be 
able to continue surveillance for subsequent activities.
    I think if I were forced to say if we are going to make a 
change here, I think we would move toward thinking to say that 
if ``a purpose'' isn't satisfactory, say ``a significant 
purpose'' reflects a considered judgment that would be the kind 
of balancing that I think we are all looking to find. If I were 
having to choose one of your words, I think that is the one I 
would choose.
    Senator Feinstein. Thank you. That is very helpful.
    Thank you, Mr. Chairman.
    Senator Schumer. Mr. Chairman, I know we won't have time 
today, but will the Attorney General be willing to come back? 
We have so many other questions.
    Chairman Leahy. So that members can know, anybody can 
submit any questions they wish today to anybody here, and I 
welcome our former Senator officer, Jim Ziglar, here, too, in 
that regard.
    Senator Hatch wants to meet with his side, and I with ours, 
and we will work out whatever seems to be the most appropriate 
way. Please let the two of us talk and then all of us, the 
members, can talk about that.
    Is that right, Orrin?
    Senator Hatch. Yes, that is right, but we do have other 
people here who can talk to these issues--The Deputy, the head 
of the Criminal Division.
    Chairman Leahy. I think we want to give a chance for the 
General--for example, he made a very significant point on the 
FISA taps just now. I would really like to have it at this 
level. I want to thank all of his people in his office who have 
worked very closely with a number of us as we have been going 
through this.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Senator Schumer. Mr. Chairman, I tend to agree with some of 
the things in the Attorney General's bill. The trap and trace 
part is the exact same language that Senator Kyl and I had, 
different than yours.
    But this is such an important issue that I would just urge, 
with all due respect, that we be able to have the Attorney 
General himself come back so that we can answer questions 
before we move this bill. I am sure I speak for all of us who 
didn't get a chance to ask any that we would come back at a 
time of his convenience.
    Chairman Leahy. I tend to agree with the senior Senator 
from New York and that is what we want to work out, if Senator 
Hatch and I could work together with the Attorney General on 
doing that.
    Now, Senator Specter, you get the last word here.
    Senator Specter. Thank you, Mr. Chairman.
    Attorney General Ashcroft, or Senator Ashcroft--last year 
you were on this side of the dais--you are performing more 
important work now, so we thank you for what you are doing.
    The consensus is we want to give the authority to law 
enforcement which it needs, consistent with the Constitution. 
As I have listened to your answers on two points, I have a 
question as to whether the statutes do what you have thought 
that they do, and we have to work through the details on this.
    With respect to the mandatory detention of suspected 
terrorists, Section 202, that section gives broader powers than 
just having mandatory detention of someone thought to be a 
terrorist who is being held for deportation on some other 
lines.
    Section 202 defines detention of terrorist aliens and 
authorizes the Attorney General to certify that an alien may be 
detained who he ``has reason to believe may commit further...or 
facilitate acts described in sections''--a number of sections 
are listed and they all relate to terrorism.
    So on the face of this statute, it appears that the 
authority to detain on that very generalized standard without 
any evidentiary base or probable cause would be beyond somebody 
who is subject to deportation on other grounds.
    General Ashcroft. Senator, we will be happy to work on the 
language here if it is unclear or if we are mistaken. 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 grounds, which the law provides clearly is a 
mandatory detention.
    Senator Specter. Well, I think the law now gives you 
authority to detain if you are proceeding to deport. But on 
this phase, it goes well beyond that just on those where you 
have some rather vague----
    General Ashcroft. Well, this is the concern expressed by 
Senator Kennedy, and obviously we need to clarify this because 
we don't want to have something which has an effect which we 
don't intend.
    Senator Specter. Let me pick up on Section 153. You 
testified in response to an earlier question that ``content 
always requires probable cause.'' But the way 153 would be 
structured, and under the Foreign Intelligence Surveillance 
Act, this was a big issue which arose on the Wen Ho Lee 
investigation, where Attorney General Reno testified about a 
Foreign Intelligence Surveillance Act warrant. There, when you 
have a foreign government involved and an individual is working 
for the foreign government, you don't have to show probable 
cause that that individual is engaged in criminal activity.
    So you may need further authority and it may withstand a 
constitutional test. Candidly, I doubt it, but it might. But I 
think we really have to face up squarely to the point that 
where you change ``primary'' to ``a,'' or even if you change 
``primary'' to ``significant,'' you are deviating from a 
statute which has been in existence a long time and subject to 
a lot of interpretation, so that you will be reaching content 
without a statement of probable cause. And if that is what you 
want, we are going to have to scrutinize it very, very closely.
    General Ashcroft. Well, we will be happy to work with you, 
both to provide the appropriate respect for content and the 
appropriate respect for the Constitution. Under FISA, the 
probable cause provision is the probable cause that the 
individual is an agent of the foreign power.
    Senator Specter. Well, traditionally, you can reach that 
through a FISA warrant, but you can't use the oral content--as 
you put it, content always requires probable cause--you can't 
use that probable cause, then, in a proceeding against a 
terrorist on a criminal charge.
    Attorney General Ashcroft, I see Mr. Thompson giving you 
some notes. I would be glad to pursue this with him because the 
red light is on.
    General Ashcroft. Well, I am pleased to have you say that. 
Let me conclude. For a United States person to be a FISA 
target, we must show that there is probable cause that he may 
be involved in criminal activity, and the note says 50 U.S.C. 
1801(b)(2). You know I don't have that clarity----
    Senator Specter. I know that section very well.
    [Laughter.]
    General Ashcroft. You know it well, you know it well, and 
the reason I have brought these----
    Chairman Leahy. I read that every night before I go to bed.
    [Laughter.]
    General Ashcroft. I thank you. May I just say a word to 
thank the Committee for the seriousness with which it addresses 
these issues. The concerns are very serious to all of us about 
constitutionality, and they are about preventing additional 
terrorist acts and bringing to justice those who perpetrate 
them. We are eager to continue our work together to achieve the 
kind of safety and security for this Republic that Americans 
and our freedom deserve.
    Senator Specter. If I may ask a very non-technical 
question, would you think that the problems on hate crimes 
which you have described would warrant Federal legislation on 
that subject which has been pending for some time?
    General Ashcroft. Well, this is perhaps the most massive 
hate crime ever perpetrated, and this is the kind of activity 
which we not only need to be able to prosecute, but we must be 
able to prevent.
    Chairman Leahy. General, I should note that when we come 
back, it will be Senator Feingold and Senator Kyl.
    I want to thank you personally for all the time you have 
spent. I also want to compliment the staffs--yours, the 
Senators' staffs, mine, Senator Hatch's, and others--who have 
worked virtually around the clock since September 11. As I have 
told you a number of times, I don't know when you are sleeping 
because you and I have talked at some awfully weird hours 
during the past week.
    I do want to thank you and I want to thank the President 
for rallying the country the way you have. We will try to make 
sure you have the tools, but we want to make sure we have tools 
that protect all of us for decades to come. I know you and I 
agree on that. I thank you for being here.
    General Ashcroft. Thank you.
    Chairman Leahy. All statements submitted by Senators will 
be included in the record.
    We stand in recess.
    [Whereupon, at 12:22 p.m., the Committee was adjourned.]
    [Submissions for the record follow.]

                       SUBMISSIONS FOR THE RECORD

   STATEMENT OF HON. RUSS FEINGOLD, A U.S. SENATOR FROM THE STATE OF 
                               WISCONSIN

    Mr. Chairman, as our nation mourns, we are also struggling to 
understand what went wrong, how this attack could have been detected or 
even prevented, and what we can do to prevent future attacks against 
our nation. It is clear that there is room for improvement. For 
example, I believe we should move expeditiously to remove the statute 
of limitations for certain international terrorism crimes and to 
provide the Immigration and Naturalization Service with greater access 
to the FBI's National Crime Information Center (NCIC) database to 
determine whether visa applicants and applicants for admission have 
criminal history records. There are many commonsense improvements we 
can make without delay to help this investigation and assist the 
eventual, and I believe inevitable, prosecution and punishment of the 
perpetrators of this attack who are still alive.
    But I am concerned about some proposals that do not appear to 
strike the right balance between respecting our civil liberties and 
ensuring public safety. Our Constitution faces its greatest test at 
times of crises. This is surely such a test.
    For example, the indefinite mandatory detention provisions in the 
immigration piece of the Administration's proposed bill raise serious 
due process concerns. The bill also appears to make ``guilt by 
association'' a basis for deportation. I am also concerned about 
provisions that would unnecessarily broaden the government's ability to 
conduct surveillance without a warrant. Judicial review of law 
enforcement activity is an important check that helps guarantee that 
constitutional protections are observed. One provision that is 
especially troubling would allow private education records to be 
disclosed to the government without a court order.
    As the Chairman of the Constitution Subcommittee of this Committee, 
I feel a special duty to defend our Constitution against proposals, 
born of an understandable desire for vengeance and justice, that would 
undermine the constitutional liberties that make this country what it 
is. Let us remember that the Constitution was written in 1789 by men 
who had won the Revolutionary War. They did not live in comfortable and 
easy times of hypothetical enemies. They wrote a Constitution 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: 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 of 
antiwar protesters, including Dr. Martin Luther King, Jr., during the 
Vietnam War. Let us not allow this piece of our past to become 
prologue.
    We must show those who would have us live in fear that they have 
failed to achieve their goal. Just as we are resolved to seek justice 
for the victims of the September 11th attacks, we must 
resolve to uphold our values. We must not temper our unwavering support 
for democracy, basic human rights, and the rule of law.
    I am not alone in expressing these concerns. Over 150 
organizations, 300 law professors and 40 computer scientists have 
formed a coalition, ``In Defense of Freedom,'' to express their concern 
about taking steps that would erode our constitutional rights and 
freedoms. These groups represent a range of views on the political 
spectrum, including the American Civil Liberties Union, the American 
Conservative Union, Americans for Tax Reform, and People for the 
American Way. Mr. Chairman, I ask unanimous consent that a copy of the 
declaration of In Defense of Freedom and list of supporting 
organizations and individuals be placed in the record.
    The words of the Supreme Court nearly 40 years ago seem apt today. 
In the case of Kennedy v. Mendoza-Martinez, the Court said:

        It is fundamental that the great powers of Congress to conduct 
        war and to regulate the Nation's foreign relations are subject 
        to the constitutional requirements of due process. The 
        imperative necessity for safeguarding these rights to 
        procedural due process under the gravest of emergencies has 
        existed throughout our constitutional history, for it is then, 
        under the pressing exigencies of crisis, that there is the 
        greatest temptation to dispense with fundamental constitutional 
        guarantees which, it is feared, will inhibit governmental 
        action. ``The Constitution of the United States is a law for 
        rulers and people, equally in war and in peace, and covers with 
        the shield of its protection all classes of men, at all times, 
        and under all circumstances.'' ``If society is disturbed by 
        civil commotion--if the passions of men are aroused and the 
        restraints of law weakened, if not disregarded--these 
        safeguards need, and should receive, the watchful care of those 
        intrusted with the guardianship of the Constitution and laws. 
        In no other way can we transmit to posterity unimpaired the 
        blessings of liberty, consecrated by the sacrifices of the 
        Revolution.'' [Kennedy v. Mendoza-Martinez (quoting Ex Parte 
        Milligan)]
    Mr. Chairman, I am pleased that you are holding this hearing 
because I believe it is essential that this Committee give deliberate, 
thoughtful consideration to legislation proposed in response to the 
terrorist attacks on our nation. I look forward to hearing from the 
Attorney General this morning and to working with him and his staff in 
formulating legislative changes that are both effective and respectful 
of our cherished constitutionally protected freedoms. Thank you.

                                

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA

    Mr. Chairman, before I begin with my comments on combating 
terrorism, I think it is important to commend the congressional 
leadership of both parties for the way in which they have banded 
together in a unified front to support the President and the country. I 
wish we could approach all of the nation's business with such a 
cooperative spirit.
    I also want to specifically commend Attorney General Ashcroft, 
Director Mueller and all the dedicated men and women at the Department 
of Justice and FBI for their hard work in investigating the recent 
terrorist attacks perpetrated on New York and the Pentagon. The law can 
be improved to provide certain tools for law enforcement that will be 
beneficial for them to possess in their effort to investigate and 
punish those who perpetrate acts of terror. I'm glad that we're holding 
today's hearing to discuss the Justice Department's proposal.
    President Bush also deserves a great deal of praise for the steady 
and thoughtful way that he has lead the country during this time of 
confusion and grief. His decision to create an Office of Homeland 
Security is a good first step in the effort to prevent terrorist acts 
from occurring here again, and naming Governor Ridge as its first 
director was a particularly good choice. This cabinet level office will 
be able to help remedy the problems of inadequate communication and 
coordination that currently exists between federal, state and local 
governments and international agencies dedicated to combating 
terrorism. I'm glad to see that the President did not place the 
coordination of all our federal anti-terrorism efforts in one 
department or agency, but wisely recognized the important work that is 
not only performed by the Justice Department, but also the State 
Department, the Treasury Department, the Department of Defense, and 
many others that contribute to the counter-terrorism effort.
    This agency will go a long way toward protecting our shores, but we 
need the intelligence that will alert us to terrorist attempts on the 
United States long before they are attempted. It's time to reconsider 
and change the way we conduct our war against these killers. No longer 
can we rely solely on superior technology or military might. It's just 
not enough. When you are facing an enemy who is willing to die when he 
attacks you, who is totally and utterly committed to your destruction 
at any cost, you must use all the resources and methods at your 
disposal.
    We're not doing that. Our battle against terror has been missing 
the ``human intelligence'' factor for about six years. By this, I mean 
the United States lacks any kind of extensive network of informants 
inside terrorist organizations.
    Since 1995, the CIA and the entire intelligence and law enforcement 
community have been working with one hand tied behind their backs 
because of restrictive rules about recruiting informants and spies. 
These rules prohibit recruiting and paying intelligence agents who have 
committed terrorist acts or other crimes, or human rights abuses. These 
agents, often called ``unsavory characters,'' are an essential element 
of human intelligence. Maybe these rules seemed to make sense at the 
time, but not anymore. We just can't afford it. The recommendation to 
use human intelligence, which is now absolutely necessary, isn't brand-
new. We've been hearing this for years from a broad coalition of law 
enforcement and intelligence officials, elected leaders, and experts in 
the private sector and academics.
    In addition to changing the rules on the use of unsavory 
characters, there are a number of changes that the Department of 
Justice has asked this Committee to consider. Well, I agree that there 
are a number of changes in the law that can better promote effective 
detection, investigation and punishment of terrorists. I'd like to 
touch on some of what I see to be the more important changes.
    The first change that is needed is an expanded ability to conduct 
electronic surveillance. While we contemplate the proposed enhancements 
to wire-tap laws and electronic surveillance procedures, we must be 
careful to strike a delicate balance between preserving our citizen's 
constitutional liberties and providing federal law enforcement with the 
proper tools to do their jobs. We must also be mindful of the possible 
consequences of crafting immediate remedies to assist in this 
particular terrorism investigation. We have a duty not only to this 
generation, but to the generations to follow, to deliberate these 
matters carefully and with an eye toward their long-term impact. Yet at 
the same time, we need to work in an expeditious manner to produce 
legislate proposals to help our law enforcement community protect our 
country in this time of war against terrorism. Have no doubt, this is 
serious business. The threat is immediate. We are at war.
    Most of the Justice Department wire-tap proposals currently on the 
table appear to Be common sense enhancements that our law enforcement 
agencies need to even the playing field in the battle against terrorism 
and to keep up with the rapid changes in communications technology. 
Some have raised constitutional questions about some of these 
proposals. We should look carefully at these provisions. I say this 
because history teaches us that the application of these laws can he 
problematic. In addition, once legislative changes are made, Congress 
has an oversight responsibility to ensure that the law is properly 
followed. An example of this is the current matter of the Department of 
Justice issuing a subpoena for the telephone toll records of a member 
of the news media. This is a circumstance where the Department of 
Justice believes that the public's interest in a free press is 
outweighed by their interest in effective law enforcement. I've taken 
issue with whether the Department properly followed internal procedures 
and applied those procedures in this matter, and I continue to await 
their response to my inquiry.
    I believe it's also essential that Congress take action to 
strengthen the tools that are currently available to find and halt 
money laundering. Money laundering isn't a new challenge, nor is it a 
simple one. It isn't something the United States can do alone, but 
neither is it a case where we need to depend on others before we can 
act. Before September 11, the Senate had two good proposals on the 
table. They were good ideas then. They are priorities now.
    The bill that we are discussing here today contains a few proposals 
that will strengthen existing law enforcement options. I'm pleased to 
see these, but I think the entire section would be strengthened by 
adopting the legislation introduced by Senators Kerry and Levin. I'm a 
co-sponsor of each of these bills, and I urge the committee to join me 
in adding them to this piece of legislation. Mr. Chairman, I will speak 
more on the specifics later. But for now, suffice it to say, we need to 
combine all our strengths and capabilities. Circumstances demand 
meaningful action now, and these bills give us important tools for our 
tool kit.
    Finally, it's my hope that the INS will be able to work with other 
agencies to protect United States citizens from international threats. 
We need to enhance cooperation among the agencies to better coordinate 
our efforts and better enforce the systems we have in place. Last 
Friday, my colleagues and I introduced bipartisan legislation that 
would provide the INS and State Department access to criminal records 
maintained by the FBI. Action on this legislation can and should be 
taken right away.
    In the meantime, terrorists are taking advantage of our immigration 
system. They roam freely within our borders under the radar screen of 
the INS. While there is unanimous agreement that we must secure our 
borders, I strongly believe that our government needs to more closely 
monitor those we have let in. For example, the INS can act on simple 
visa violations and document discrepancy rules which the terrorists 
exploited.
    America will continue to be a nation of immigrants and a land of 
possible dreams. And we will show the rest of the world that democracy 
will prevail.
    Nevertheless, we will have to make changes in our current policies 
so that our intelligence and law enforcement agents will have an 
increased ability to prevent another day like September 11, 2001. We 
must continue this cooperative effort to make sure that our 
intelligence and law enforcement agencies have the resources they need 
to combat terrorism. In doing that, we need to consider how the federal 
government can benefit from involving state and local law enforcement 
in this effort. My office is already receiving calls from state and 
local police in Iowa asking how they can help. Likewise, we need to 
make sure that they have the training and resources they need to assist 
in this effort. We're all in this boat together. This is a fight for 
all Americans and as such we on this committee should cooperate with 
the administration to ensure that federal law enforcement has every 
tool it needs and that the Constitution allows in this fight against 
terrorism.

                                

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF 
                             MASSACHUSETTS

    Mr. Chairman, thank you for holding today's hearing on these very 
important issues involving the security of our country.
    Two weeks ago today, the nation was attacked by terrorists who 
sought to disrupt our government and our way of life. But they failed 
and they will always fail. Our country has never been more united 
behind the ideals that make us strong, or more committed to protecting 
our security.
    Those who murder American citizens must find no hiding place, and 
those who harbor terrorists must pay the price. America must be 
decisive and effective in apprehending terrorists and identifying and 
punishing those who give them support.
    Congress has already approved a strong bipartisan resolution 
authorizing the use of force. Any terrorist attack of this scale is a 
declaration of war on the American people, and our nation should 
respond accordingly. However, we cannot and must not be indiscriminate. 
We can only act when we are certain who the perpetrators of this 
atrocity are.
    The President has wisely concluded that we should not limit our 
response to military action. We need to make full use of the many other 
resources at our disposal, particularly international intelligence and 
international cooperation, in order to identify and eliminate the 
networks of terrorists operating around the world.
    Continuing alliances with other nations in all parts of the world 
will be indispensable in achieving these all-important goals. In our 
effort to end support for terrorism, we will need the assistance of 
allies throughout the world. We must act in our national interest, but 
we must recognize our allies' concerns as well.
    In pursuing our international efforts, we need to be especially 
mindful of the complex relationships in the Middle East, and we need to 
take the views of the governments and peoples in the region into 
consideration. We need to consider how our actions will affect them. We 
want them to work with us as we proceed with our efforts against the 
perpetrators of the terrorist attacks, and we will need their 
assistance and cooperation to succeed.
    We know we will continue to be vulnerable to terrorist attacks on 
our own soil. The need is urgent to improve all aspects of our domestic 
security. That's why it's especially urgent and important to strengthen 
our intelligence capabilities, so that we can identify possible future 
attacks in their planning stages and prevent them from happening.
    It is clear that Congress must provide the FBI and other law 
enforcement agencies with additional powers to identify terrorists and 
those who support terrorism. We must update our surveillance laws to 
deal with new technologies and new patterns of behavior by terrorist 
organizations. At the same time, we must maintain the dividing line 
that separates surveillance powers in foreign intelligence gathering, 
and surveillance powers used against Americans.
    It is clearly appropriate to increase criminal penalties for those 
who engage in or support terrorist activity. We must be careful, 
however, to see that these laws apply only to terrorists--not, for 
example, to Americans engaged in protest activities unrelated to 
terrorism. We must also see that the courts retain appropriate 
authority to supervise the conduct of law enforcement.
    As we respond to the current crisis, we must do so in ways that 
protect the nation's ideals and the basic rights and liberties of our 
citizens.
    Similarly, the INS and the State Department must have the tools and 
the intelligence information they need to make informed and accurate 
decisions on visa applications and the admission of foreign nationals 
into the United States. Current security programs must be fully 
implemented, and Congress must allocate the funds to do so.
    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 here, 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. Clearly, the INS must use its 
existing authority fully and fairly.
    Nonetheless, loopholes may exist in our current laws and changes 
may well be needed. I look forward to working with the Administration 
to develop careful and thoughtful measures that give the Department of 
Justice the authority needed to detain suspected terrorists, without 
violating basic rights and liberties.
    We must be cautious that new measures are not enacted in haste, 
altering current immigration law in critical and constitutionally 
troubling respects. We must avoid enacting legislation that subjects 
non-citizens to deportation, without providing them with notice of the 
charges against them.
    I am concerned about the proposed expansion of the Attorney 
General's authority to detain and remove even lawful permanent 
residents, if there is reason to believe they could in the future 
facilitate terrorism. This action can be taken without probable cause 
or reasonable suspicion, and with very few due process protections.
    The President and members of Congress on both sides of the aisle 
have spoken eloquently about the need to focus our attention on the 
perpetrators of these vicious acts, not on innocent persons. The 
immigration laws we enact must target the perpetrators or supporters of 
terrorist activities. We must avoid sweeping changes that harm the 
innocent and diminish the civil rights and liberties of all Americans.
    In the wake of the September 11th attacks, we have seen 
a disturbing increase in hate-motivated violence directed at Arab and 
Muslim Americans. The Department of Justice is currently investigating 
over 50 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.
    Now is the time for Congress and the President to send a strong and 
unequivocal message to the American people that hate-motivated violence 
in any form will not be tolerated in our nation.
    I'm confident that Congress and the President can work together to 
pass a tough, comprehensive, and balanced antiterrorism bill. The 
important work we do now and in the coming weeks will make America 
proud of its ideals.
    Thank you, Mr. Chairman, and I look forward to the Attorney 
General's testimony.

                                

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF ARIZONA

    I commend the Chairman for wasting no time in calling this hearing 
on the counter-terrorism recommendations presented to Congress by the 
Attorney General last week. As we are all aware, we are in a race to 
ensure the safety and security of our citizens, and there is literally 
no time to lose.
    Sadly, the events of September 11 demonstrated, as no other recent 
occurrence has been able to do, that we must put aside the typical, 
painfully-slow process that often seems to rule here in times of peace. 
We cannot continue to yield the advantage of time to those who will 
continue to murder Americans and our allies until we stop them.
    Fortunately, we are not rushing forward with ill-conceived 
legislation. We are finally putting in place important tools that will 
enable our nation's law- enforcement personnel to more effectively 
investigate and prevent further attacks on the people of the United 
States. Since September of 1998, the Senate Judiciary Committee or its 
Subcommittee on Technology, Terrorism and Government Information has 
held thirteen hearings on terrorism. The witnesses who appeared before 
the Committee in those hearings included Louis Freeh, former Director 
of the FBI, and representatives of all three of the congressionally-
mandated commissions on terrorism that have issued reports over the 
last two years.
    Most of the provisions contained in the Attorney General's proposed 
legislation have already been examined by the committee of 
jurisdiction. These provisions mirror the recommendations of one or 
more of the major terrorism commissions. In fact, some of these 
provisions have already been voted on and passed by the Senate.
    The language sent forward by the Attorney General to establish 
nationwide trap and trace authority is included, verbatim, 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 a bill we passed in the Senate last fall, 
entitled the ``Counterterrorism Act of 2000.'' We passed that bill, S. 
3205, after significant debate and numerous hearings.
    Nearly a year after we passed it the first time, and two full weeks 
after the unspeakable acts of terror that occurred on September 11, we 
still have members of this body dragging their feet and saying we are 
moving too quickly to pass counter-terrorism legislation. Thursday's 
New York Times included an article that quoted one of my colleagues 
saying he, ``would not be rushed, noting that Congress took almost two 
months to pass antiterrorism legislation in response to the Oklahoma 
City bombing in 1995.''
    I appreciate the fact that some of my colleagues do not like to be 
rushed, but we are talking about legislation that has been requested by 
both Democratic and Republican administrations (and debated ad nauseum) 
since 1995. Some of it, the Senate has already voted to enact. My 
friends, taking two months to pass antiterrorism legislation in 
response to the Oklahoma City bombing is not something of which we 
should be proud. And if we take another two months to act after an even 
more heinous act of terrorism, we will be giving terrorists who are 
already around the first turn, a full lap advantage in this race. That 
is not what the American people are expecting from their leaders at 
this time.
    Let me address briefly the concerns voiced by some of my 
colleagues. Namely, that we are in danger of ``trampling civil 
liberties'' in our rush to pass counter-terrorism legislation. I 
reiterate that we are not rushing. The legislation we have already 
passed, and the legislation now offered by the administration, was 
under consideration long before the events of September 11. We have 
already held numerous hearings on these issues. Most importantly, there 
is nothing being requested that broadly impinges on the rights and 
liberties of U.S. citizens or raises any constitutional questions.
    Most of what is being requested would give federal agencies 
fighting terrorism the same tools we have given those fighting illicit 
drugs, or even postal fraud. In most instances, the Attorney General is 
not asking for new authority, he is simply asking to apply existing 
authority to the crime of terrorism. The powers requested, in almost 
every case, would be subject to the ruling of a federal judge before 
action could be taken by law-enforcement personnel. That is entirely 
consistent with the system of checks and balances provided by the 
Constitution.
    I support the request of the Attorney General, and I urge my 
colleagues to give this body due credit for the work that has already 
been done over the last six years, in several committees, to bring 
credible counter-terrorism legislation to the floor. I urge the Senate 
conferrees to the upcoming Commerce, Justice, State appropriations 
conference to support the carefully-crafted language included in the 
Hatch-Feinstein-Kyl Amendment. We have a responsibility to the people 
of this nation to act, and to act with all prudent haste, to ensure 
that those who are charged with protecting us from future terrorist 
attacks are empowered to do so.
    My friends, 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.

                                

STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE OF MICHIGAN

    Over the past 3 years the Permanent Subcommittee on Investigations, 
which I chair, has conducted an extensive investigation into the use of 
U.S. banks for money laundering purposes. We've held three sets of 
hearings and produced two extensive reports as well as a five volume 
record on how correspondent banking can be used as a tool of money 
laundering. To address the problems we uncovered, I have, along with 
colleagues from both parties--Senators Grassley, Sarbanes, DeWine, Bill 
Nelson, Kyl and Durbin--sponsored S. 1371, the Money Laundering 
Abatement Act. I hope the Committee will include the provisions of S. 
1371 in the antiterrorism bill now being considered.
    A consensus has emerged that any effective anti-terrorism campaign 
must include tracking the money supply that funds terrorism and 
shutting it down. Disrupting terrorists' financial networks is vital to 
ending their ability to carry out massive terrorist operations like the 
September 11th tragedy.
    One financial network involves correspondent banking. Correspondent 
banking occurs when one bank has an account at another bank in order to 
be able to transfer funds between the two banks. For example if a bank 
in London has a client who wants to be able to have dollars available 
to him or her in the United States, the London bank needs a 
correspondent account with a U.S. bank to make those dollars available 
in the U.S. That means the U.S. bank has to agree to open and manage an 
account for the London bank.
    We found that U.S. banks often did an inadequate due diligence 
review of foreign banks seeking to open a correspondent account in the 
U.S. Too often the U.S. banks assumed--and we heard this verbatim--that 
a bank is a bank is a bank. But that's not the reality. There are good 
banks and there are bad banks, and we found numerous situations where 
U.S. banks held accounts for foreign banks engaged in criminal activity 
or with such sloppy banking practices that they provided an open 
invitation for criminals to bank with them. Criminals can then use 
these bad banks to gain access to the U.S. banking system through their 
U.S. correspondent accounts. My bill aimed at tightening the systems 
allowing foreign banks to open correspondent accounts at U.S. banks.
    Another tool for moving illicit funds is a shell bank. Shell banks 
are unaffiliated with any other bank and have no physical presence in 
any jurisdiction. They are licensed by a handful of jurisdictions 
around the world including Nauru, Vanuatu and Montenegro. My 
Subcommittee's investigation found that shell banks carry the highest 
money laundering risks in the banking world because they are inherently 
resistant to effective oversight. There is no office where a bank 
regulator or law enforcement official can visit to observe bank 
operations or review documents. Essentially no one but the shell bank's 
owners know what the bank is up to. Our staff report provides four 
detailed case histories of shell banks that opened U.S. correspondent 
accounts and used them to move funds related to drug trafficking, bribe 
money and financial fraud money. The possibility that terrorists are 
using such banks to conduct their operations is one that cannot be 
ignored.
    S. 1371 would make a number of important changes in our money 
laundering laws.
    Unidentified Foreign Accountholders. It would require U.S. banks 
and U.S. branches of foreign banks opening or managing a bank account 
in the United States for a foreign person to keep a record in the 
United States identifying the account owner.
    Foreign Shell Banks. It would bar U.S. banks and U.S. branches of 
foreign banks from providing direct or indirect banking services to 
foreign shell banks that have no physical presence in any country and 
no bank affiliation.
    Foreign Private Bank and Correspondent Accounts. It would require 
U.S. banks and U.S. branches of foreign banks that open a private bank 
account with $1 million or more for a foreign person, or a 
correspondent account for an offshore bank or foreign bank in a country 
posing high money laundering risks, to conduct enhanced due diligence 
reviews of those accounts to guard against money laundering.
    Foreign Bank Forfeitures. It would modify forfeiture rules for 
foreign banks' correspondent accounts by making 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.
    Foreign Corruption. It would expand the list of foreign crimes 
triggering a U.S. money laundering offense to include foreign 
corruption offenses such as bribery and misappropriation of government 
funds.
    Prosecution Assistance. It would make it easier for prosecutors to 
prosecute money laundering cases by giving them such basic tools as 
simpler pleading requirements, clear long-arm jurisdiction over foreign 
money launderers acting inside the United States, easier ways to serve 
legal papers on foreign banks with U.S. accounts, and the assistance of 
court-appointed federal receivers to find money laundering assets 
hidden at home or abroad.
    Enactment of this legislation is critical if we are to stop 
terrorists and other criminals from benefiting from the safety, 
soundness, efficiency and profitability of the U.S. banking system. In 
addition, we need to galvanize the international community to join us 
in our efforts to chase down terrorist assets and deny terrorists 
access to international financial networks.
    We must deny terrorists access to our banks, to our credit cards, 
to our stock brokers and to all of the other modern financial tools 
we've developed to move money around the world. This committee plays an 
important role in that effort, and I appreciate the opportunity to 
present these prepared remarks.

                                

                STATEMENT OF LPA, INC., WASHINGTON, D.C.

    Mr. Chairman and Members of the Committee:
    LPA applauds the bipartisan efforts of this committee and the 
Congress to make prompt and appropriate changes to federal 
investigative and law enforcement authority to effectively detect, 
combat and stop terrorism against the United States. Our members stand 
ready to assist the Committee, Congress and the Bush Administration to 
do our part to prevent terrorist attacks from occurring on U.S. soil 
and elsewhere around the globe. We are pleased to submit this testimony 
to provide our members' perspectives on how these initiatives relate to 
employer communications networks, the fight against cyberterrorism, and 
the monitoring of workplace communications.
    LPA is an association of the senior human resource executives of 
more than 200 leading corporations in the United States. LPA's purpose 
is to ensure that U.S. employment policy supports the competitive goals 
of its member companies and their employees. LPA member companies 
employ more than 12 million employees, or 12 percent of the private 
sector workforce. Our members have a substantial interest in how 
criminal law, such as the Electronic Communication Privacy Act, also 
known as the Wiretap Act, affects their policies with respect to their 
telephone and computer networks and facilitates their ability to 
cooperate with law enforcement officials where necessary.

              Preventing Cyberterrorism Against Employers

    LPA recently held discussions with its members regarding the 
employment-related issues that arose in the aftermath of the Attack on 
America. One of the questions raised was how employers should deal with 
the threat of cyberterrorism. As you know, the terrorists that 
perpetrated the attacks were computer savvy, and it is not unrealistic 
to speculate that terrorists may look to attack computer networks at 
some point in the future.
    Recent news articles have indicated that the proposed anti-
terrorism legislation would make it easier for federal law enforcement 
authorities to access the voice mail and e-mail messages of suspected 
terrorists. In addition to this authority, LPA members would appreciate 
any assistance that the federal government could provide in detecting 
and eliminating the threat of cyberterrorism. Although our members are 
sophisticated and have elaborate computer security procedures, it would 
be helpful if the government could set up a clearinghouse employers 
could access for unclassified information on cyberterrorism. It would 
also be helpful if victims of cyberterrorism could request help from 
federal investigative authorities when electronic foul play is 
suspected.
    We understand from news accounts that there is a limited provision 
along these lines in the legislation drafted by the Justice Department. 
LPA urges the committee to review this issue either now or at some 
point in the future to prevent an attack that could have severe 
economic implications for individual companies and the country as a 
whole. Working together the private sector and the federal government 
can be a formidable force against terrorist acts.

   Expanded Wiretap Authority and Electronic Monitoring by Employers

    The news articles describing the anti-terrorism legislation also 
have indicated that the legislation would allow investigators to 
monitor the suspect's Internet or e-mail provider anywhere in the 
country by securing the approval of a judge in one jurisdiction. 
Presumably, an employer that maintains a voice mail, e-mail and 
Internet service that its employees use for business would be 
considered an Internet or e-mail provider under the legislation, 
meaning that employers may be required to provide access to their 
electronic systems in the interest of law enforcement. The need for 
such authority is understandable following the atrocities of September 
11.
    However, LPA wants to ensure that in the course of providing 
investigators access to this vital information, the anti-terrorism 
legislation does not impose unnecessary burdens on an employer's 
ability to monitor workplace communications. We do not believe that now 
is the time to engage in such a debate. Additionally, statistical and 
anecdotal information demonstrates that there is no need for such 
requirements.
    Employers monitor their employees' use of workplace electronic 
communications primarily to protect against legal liability. According 
to a 2001 American Management Association survey,\1\ 62 percent of 
employers engage in some type of computer and Internet monitoring and 
68 percent of those monitor to protect against legal liability, 
especially liability based on sexual harassment. Employers also monitor 
to protect the security of company assets and maintain productivity. 
Defense contractors monitor to protect against leaks of classified 
information, and other employers seek to eliminate online gambling, 
excessive day trading, and participation in online auctions. Employers 
have even found employees running separate businesses using company-
provided Internet service.
---------------------------------------------------------------------------
    \1\ American Management Association, 2001 AMA Survey: Workplace 
Monitoring & Surveillance: Policies and Practice, Aug. 2001, available 
at .
---------------------------------------------------------------------------
    According to the AMA survey, nearly 90 percent of employers who 
monitor their employees give them notice. Employer notice helps educate 
employees about the employer's policy and reduces improper use of the 
employer's computer and telephone systems. In addition, this notice 
ensures that employees do not have false expectations of privacy.
    Although the vast majority of employers provide their employees 
with notice of their monitoring practices, there have been recent 
legislative attempts to impose limits on how employers may monitor 
their employees. It would be unfortunate if, in the rush to complete 
action on the terrorism legislation, the committee also added language 
that imposed unnecessary burdens on employer monitoring practices. LPA 
believes instead that Congress should focus on the task at hand: 
completing the terrorism legislation and grappling with the other 
issues raised by the September 11 attacks.

                               Conclusion

    Mr. Chairman, LPA supports your efforts to provide the tools needed 
by federal law enforcement and intelligence agencies to eliminate the 
threat of terrorism in the United States. We recommend that either now 
or in the near future, you look for ways to provide useful information 
and resources to employers on cyberterrorism. We also urge you to 
pursue your objective without imposing unnecessary burdens on 
employers' current workplace monitoring practices. LPA stands by to do 
our part in this important effort and in the larger war against 
terrorism.

                                

   STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF 
                                ALABAMA

    Mr. Chairman, I commend you for holding this hearing on homeland 
defense and calling the Attorney General and other members of the 
Justice Department to testify before this Committee. The Justice 
Department's antiterrorism bill is very important legislation before 
Congress, and we would be remiss in our duty not to address it as a top 
priority. Our goal must be to review current law and see if there are 
weaknesses or gaps that hamper our nation's effort to protect its 
citizens without eroding our great constitutional protections.

                    Center for Domestic Preparedness

    But before I address the anti-terrorism bill, I wanted to call the 
attention of the Committee to the non-controversial and until 
yesterday, littleknown Center for Domestic Preparedness (CDP) in 
Anniston, AL. Yesterday, however, it was the subject of a front page 
article in the Wall Street Journal.
    The CDP trains first responders--firefighters, police officers, and 
emergency medical professionals--including first responders in New York 
and Washington, to deal with chemical, biological, nuclear, explosive 
and other weapons of mass destruction. Located on the former U.S. Army 
base of Fort McClellan, the CDP is the only facility in the United 
States that conducts live-agent training of first responders for 
chemical and biological weapons.
    I have been to the CDP on several occasions. It is a world-class 
facility, and as others are discovering, an invaluable asset in our 
fight against chemical and biological terrorist attacks.
    The threat of chemical and biological terrorist attacks is very 
real. Yesterday, the Attorney General testified to the House Judiciary 
Committee that the FBI has evidence that one of the hijackers and 
perhaps other suspected terrorists had obtained information about crop 
dusters. The FBI alerted and the FAA grounded all crop dusters in the 
country this weekend because of the threat of chemical or biological 
attacks using crop dusters.
    Also, yesterday the World Health Organization (WHO) rushed out its 
report on the HEALTH ASPECTS OF BIOLOGICAL AND CHEMICAL WEAPONS. The 
WHO report stated, ``The magnitude of possible impacts on civilian 
populations of their use or threatened use obliges governments both to 
seek prevention and to prepare response plans.''
    Last week, Virginia Governor James S. Gilmore, Chairman of the 
National Advisory Panel to Assess Domestic Response Capabilities to 
Terrorism, stated that ``[a] biological attack is the most severe we 
can imagine. We have to take measures to protect ourselves.'' See Karen 
Crummy, War on Terrorism; Panel: Prepare to Thwart Bio Attack, THE 
BOSTON HERALD, Sept. 18, 2001, at 30.
    On September 12, 2001, the Congressional Research Service noted 
``[r]epeated U.S. government reports on the proliferation of CBW 
[chemical or biological weapons] technology and intelligence threat 
assessments that anticipate a CBW terrorist attack in the next 
decade.'' Steve Bowman, CHEMICAL/BIOLOGICAL THREAT (Gong. Research 
Service Sept. 12, 2001).
    Last year, the Center of Strategic and International Studies issued 
a report entitled, DEFENDING AMERICA IN THE 21ST CENTURY: NEW 
CHALLENGES, NEW ORGANIZATIONS, AND NEW POLICIES that assessed a 
credible and increasing threat that ``terrorists ... can directly 
attack the United States' homeland'' and that the ``resulting attack 
... can ... exploit chemical, biological, radiological, or nuclear 
weapons ....'' The report noted that the ``potential use of biological 
agents--anthrax, plague, mycotoxins, for example--is particularly 
troubling.'' (Emphases added.)
    As reported on the front-page of the Wall Street Journal yesterday, 
the CDP has been funded sufficiently to train only 6,000 first 
responders in the last three years. There are currently 11 million 
first responders in America. See Vulnerability Exposed, U.S. Confronts 
`Maze' of Homeland Defenses, WALL STREET JOURNAL, Sept. 24, 2001, at 
Al.
    The Senate recently increased the funding for CDP from $15 million 
to $30 million. This will enable CDP to ramp up its capacity to train 
first responders to chemical and biological attacks from 2,500 first 
responders per year to 10,000 per year.
    I intend to introduce legislation that will authorize the 
Department of Justice to expand the capabilities of the CDP to train 
even more first responders as our intelligence, awareness, and 
appreciation of the chemical and biological threat increases.

                       DOJ's Anti-Terrorism Bill

    In addressing the Department of Justice's ability to combat 
terrorism in this country, the Senate must meet the needs of the 
Government in protecting our citizens while guarding the civil 
liberties of those citizens. Some have charged that the portions of the 
Justice Department's anti-terrorism bill that expand the ability of law 
enforcement to conduct surveillance or deport aliens trample on our 
constitutional rights. See, e.g., The Home Front Security and Liberty. 
New York Times, Sept. 23, 2001, at 4:16; Finding the Balance Between 
Liberty and Security, TAMPA TRIBUNE, Sept. 20, 2001, at 18; ACLU Says 
Congress Should Treat Administration Proposal Carefully; Says Many 
Provisions Go Far Beyond Anti-Terrorism Needs, (visited on Sept 24, 
2001).
    Having spent 15 years as a federal prosecutor, I am somewhat 
familiar with the rules for obtaining pen registers, which allow law 
enforcement to track the numbers dialed by a phone, and administrative 
subpoenas, which allow law enforcement to obtain business and other 
records of a suspected criminal from third-parties such as banks and 
telephone companies.
    Pen Registers--In Smith v. Maryland, 442 U.S. 735 (1979), the 
Supreme Court held that the use of pen registers by law enforcement to 
record outgoing numbers dialed from a telephone does not violate the 
Constitution because there is no reasonable expectation of privacy in 
numbers that are dialed out of a telephone. The telphone in a house 
sends electronic instructions through the phone lines to the telphone 
company. Thus, the numbers are not located in the house and no content 
of the conversations are collected. Pen Registers have long been used 
to gather this non-private information, and they do not infringe upon 
Fourth Amendment rights. 18 U.S.C. Sec. 3121 et seq. This does not 
trample on the Constitution.
    Administrative Suponenas--In SEC v. O'Brien, 467 U.S. 735 (1984), 
Justice Thurgood Marshall wrote for a unanimous Supreme Court that the 
use of administrative subpoenas to gather records from third-party 
record holders does not violate the Fourth, Fifth, or sixth Amendment 
rights of a suspect. Such subpoenas are commonly used today in drug 
investigations and in Child sexual abuseinvestigations. See 
21.S.C.U.S.C.Sec. 876; 18 U.S.C. Sec. 3486. This does not trample on 
the Contitution.
    Mobile Wiretaps--Further, the Justice Department's bill updates the 
wiretap statutes to follow targets of criminal investigation, not a 
single stationary telephone. The use of wiretraps that record the 
content of telephone conversations directly implicates the privacy 
interests protected by the Fourth Amendment. See Katz v. United States, 
389 U.S. 347 (1967). The Justice Department's bill makes no attempt to 
change the constitutional standard for seeking a wiretap, only the 
geographical area over wiretap order applies. Thus, the order will 
follow the criminal whether he is using a land-line telephone in one 
location, or several cell phones in locations across the country. This 
bill will maintain the requirement that a judge approve of a wiretap 
before it is put in place. This does not trample on the Constitution.
    Deportation of Aliens--The Justice Department's bill subjects 
aliens to deportation from the United States if they provide material 
support to a terrorist organization. In Reno v. American-Arab Anti-
Discrimination Committee, 525 U.S. 471, 491-92 (1999), the Supreme 
Court held that ``when an alien's continuing presence in this country 
is in violation of the immigration laws, the Government does not offend 
the Constitution by deporting him for the additional reason that it 
believes him to be a member of an organization that supports terrorist 
activity.'' While we should never punish a person because of his race, 
there is no constitutional impediment to deporting a non-citizen who 
supports terrorists. I note that the Justice Department's bill retains 
habeas corpus review for such aliens who are determined to be 
deportable. This is fully constitutional.

                               Conclusion

    I commend Attorney General Ashcroft and the entire Department of 
Justice for the outstanding work they have done in crafting this 
legislation in such an expedited manner. I also commend him for working 
with Chairman Leahy and Ranking Member Hatch to address their concerns 
with this bill. By working together, we can act within our Constitution 
to increase the capabilities of the Government to fight terrorism and 
respect the civil liberties of our citizens. We will bring the rule of 
law to bear on those who believe they can escape its reach.

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