[Congressional Record Volume 141, Number 91 (Tuesday, June 6, 1995)]
[Senate]
[Pages S7752-S7763]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMPREHENSIVE TERRORISM PREVENTION ACT
The PRESIDING OFFICER. The clerk will report the pending business.
The legislative clerk read as follows:
A bill (S. 735) to prevent and punish acts of terrorism,
and for other purposes.
The Senate continued with the consideration of the bill.
Mr. DOLE. Mr. President, can I just indicate to my colleagues on both
sides, I thank the managers of the bill. They have been spending the
last hour or so trying to work on some amendments. They are ready to
accept a number of amendments. There will probably be a vote on the
amendment about to be offered by the Senator from Connecticut. We hope
to get a short time agreement on that amendment and finish all the
amendments, except the habeas corpus amendments, tonight. So there will
be votes tonight. I advise and urge my colleagues, if they have to
leave the Capitol, to take their beepers so we can notify them when the
votes will occur.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Mr. President, as I understand it, I believe there is a
Senator Robert Kerrey amendment pending; is that the pending business?
[[Page S7753]]
The PRESIDING OFFICER. That is the pending amendment.
Mr. HATCH. Mr. President, we are prepared to accept that amendment.
Mr. BIDEN. Mr. President, if the Senator will yield, we are prepared
at the same time to accept Hatch amendment No. 1233 relative to airline
carriers. I urge that both of these amendments be accepted. They are
both at the desk.
The PRESIDING OFFICER. The Chair advises the Senator from Delaware
that one amendment has not been called up.
Amendment No. 1233 to Amendment No. 1199
(Purpose: To ensure air carrier security)
Mr. HATCH. Mr. President, I call up amendment No. 1233, the airline
carriers amendment, and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Utah [Mr. Hatch] proposes an amendment
numbered 1233 to amendment No. 1199.
Mr. HATCH. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 160, between lines 11 and 12, insert the following:
SEC. 901. FOREIGN AIR TRAVEL SAFETY.
Section 44906 of title 49, United States Code, is amended
to read as follows:
``Sec. 44906. Foreign air carrier security programs
``The Administrator of the Federal Aviation Administration
shall continue in effect the requirement of section 129.25 of
title 14, Code of Federal Regulations, that a foreign air
carrier must adopt and use a security program approved by the
Administrator. The Administrator shall only approve a
security program of a foreign air carrier under section
129.25, or any successor regulation, if the Administrator
decides the security program provides passengers of the
foreign air carrier a level of protection identical to the
level those passengers would receive under the security
programs of air carriers serving the same airport. The
Administrator shall prescribe regulations to carry out this
section.''.
Mr. FORD. Mr. President, first, let me state my support for the
amendment being offered concerning aviation security requirements to
the substitute to S. 735, the terrorism prevention bill, offered by
Senator Hatch. I know that Senator Hatch has worked hard to include an
aviation safety issue in the bill, and I appreciate the chance to
express my support for those efforts.
On December 21, 1988, Pan Am flight 103 was blown up over Lockerbie,
Scotland, killing 270 people. This terrorist act triggered a time
consuming, all-out effort to find the people responsible. It also
triggered legislation enacted in 1990, to improve security for
international and domestic air travelers.
Unfortunately, during negotiations over one particular provision, we
were unable to agree with the Department of Transportation on ensuring
that all international passengers traveling to and from the United
States would have the same types of protection. As a result, section
105 of the Aviation Security Improvement Act of 1990, Public Law 101-
604, required the Administrator to develop a system of protection for
U.S. carriers and a similar system for foreign carriers. In using the
word ``similar,'' Congress did not intend that there would be enormous
disparities in security programs between U.S. and foreign airlines
serving the United States. The security protection sought was intended
to be as close to the same for all passengers, regardless of who
actually provided the service. However, the administration, at the
time, insisted that section 105 use the word ``similar'' to give the
FAA some discretion to address possible differences between foreign
carrier requirements and U.S. carrier requirements. Unfortunately, the
regulations issued by the Department and FAA to implement section 105
were not stringent enough. As a result, what we have seen is a wide
disparity in how foreign carriers screen passengers and how U.S.
carriers screen passengers.
Let me give my colleagues an example to show the differences. Let us
say that Mr. and Mrs. Jones from Lexington, KY want to go to Germany
for a vacation. They decide to take two different carriers. Mr. Jones
takes a United States carrier, and Mrs. Jones takes a German carrier.
Both leave from Cincinnati. Mr. Jones has to get to the airport at
least 2 hours in advance to go through all of the U.S. air carrier
security requirements, including security interviews, searches of
baggage, x-rays of baggage, and additional security questions at the
gate. On average, these types of procedures can take any where from 90
to 120 minutes. Mrs. Jones, however, does not have to go through most
if not all of those procedures. Her process time takes on average 20 to
30 minutes. Certainly both Mr. and Mrs. Jones want the highest level of
protection reasonably necessary, but why should the procedures be
different? They should not, and Senator Hatch is attempting to correct
this imbalance.
Over the last several years, we have seen numerous terrorist
incidents against foreign airlines, while the number against U.S.
airlines has dropped. It seems the procedures may be working for our
airlines. We now should extend those same types of protection to other
airlines that transport U.S. citizens to and from our country. The goal
of the legislation was to protect all of our citizens and all of those
people traveling to and from our country. The amendment restates and
restores that goal.
Senator Hatch has addressed the imbalance by requiring the same types
of security screens for U.S. airlines and for foreign airlines serving
the United States. I support the change and appreciate his willingness
to address the issue in a nonaviation bill.
Vote on Amendments Nos. 1208 and 1233, En Bloc
Mr. HATCH. Mr. President, I urge adoption of the Kerrey amendment No.
1208 and the Hatch amendment No. 1233.
The PRESIDING OFFICER. Is there objection to adopting the amendments
en bloc? Without objection, it is so ordered.
The question is on agreeing to the amendments.
The amendments (Nos. 1208 and 1233) were agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote by which the
amendments were agreed to.
Mr. BIDEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HATCH. Mr. President, I understand the distinguished Senator from
Connecticut is prepared to proceed.
Submitted Amendment No. 1244
Mr. BIDEN. Mr. President, if the Senator will yield for a moment, I
say to my friend from Utah, we are prepared to accept several
additional amendments that are on the Republican list and the
Republican manager, as I understand, is close to being prepared to
accept several amendments on the list of the Democrats.
Senator Levin has indicated on his amendment No. 1244 that he is
willing to withdraw that amendment under an assertion by the chairman
of the Judiciary Committee that he would hold hearings on the Levin-
Nunn-Inouye amendment.
Mr. HATCH. Mr. President, I think that is a very important issue. It
is the issue concerning lying to Congress, whether it should be only
those who lie under oath or those not under oath. I think it would be
an interesting hearing. We will commit to holding a hearing for Senator
Levin and the rest of the Senate on that issue.
Mr. BIDEN. Mr. President, I do not think I have to ask unanimous
consent, but on behalf of Senator Levin then, I ask that his amendment
No. 1244 be withdrawn.
The PRESIDING OFFICER. Without objection, the amendment is withdrawn.
So the amendment (No. 1244) was withdrawn.
Mr. LEVIN. Mr. President, I was unaware of the fact that the managers
of the bill had already introduced a statement relative to amendment
No. 1244, which I had submitted with Senator Nunn and Senator Inouye.
That amendment would provide some additional tools to Congress
investigating terrorism and other activities that are of importance.
Under Hubbard versus United States, decades of case law was
overturned wherein lying to Congress was illegal. This amendment would
have restored the law to what it was prior to Hubbard, wherein lying to
Congress was illegal. I think we will have to restore that law so that
we have the investigative tools we need against terrorism.
[[Page S7754]]
However, what I have agreed to do is to introduce this in the form of
a bill. The Senator from Utah has agreed that the committee would hold
hearings into this bill and I thank him for that. I thank the Senator
from Delaware.
Mr. President, to reiterate I introduced today a bill on behalf of
myself, Senator Nunn, and Senator Inouye to strengthen Congress'
ability to investigate terrorism. The purpose of this legislation is to
ensure that Congress has the tools needed to investigate terroist acts
and other matters of important public policy and obtain truthful
testimony.
The bill would accomplish four specific goals.
Let me discuss briefly each of the four provisions.
First, the bill would make it clear that false statements to Congress
are a criminal offense under 18 U.S.C. 1001. This clarification is
needed because a recent Supreme Court decision, Hubbard versus United
States, overturned decades of case law including its own precedent,
United States versus Bramblett, and held that the plain wording of
section 1001 limits it to false statements made to the executive
branch. The bill would make it clear that the statute prohibits false
statements to the ``executive, legislative or judicial branch of the
United States,'' including ``any department, agency, committee,
subcommittee or office thereof.'' This language is intended to restore
the courts' interpretation of section 1001 prior to the Hubbard
decision. In applying section 1001 to the judicial branch, the bill
would also incorporate the existing case law in a majority of circuits
which, prior to Hubbard, had established a judicial function exception
to the statute.
In the wake of the Oklahoma City bombing and other incidents in
recent years, Congress needs to take a close look at the causes and
solutions to terrorist acts. In examining witnesses, Congress needs to
have the most familiar of prosecutorial weapons to combat false
testimony, section 1001. At the same time, restoring the statute's
application to Congress as it existed prior to the Hubbard decision is
not to say that section 1001 can't be improved. I understand the Senate
Judiciary Committee is planning hearings on this statute and may wish
to legislate some changes. I support that process. The question is what
happens in the meantime--do we leave section 1001 off the books for
some time or do we get it back on the books now with respect to
Congress?
False statements to Congress ought to be illegal, and we ought to act
now to get that law back on the books.
Getting the law back on the books is also important, by the way, for
another reason. Last month, every Senator filed a financial disclosure
statement. Until we amend section 1001, none of those financial
disclosure statements are subject to criminal enforcement under section
1001. In this time of low public confidence in Congress, we shouldn't
be letting ourselves off the hook by failing to take this opportunity
to apply section 1001's prohibition on false statements to ourselves,
in the same way we apply it to the executive branch.
Second, the bill would make it clear that obstruction of a
congressional inquiry by an individual acting alone is a criminal
offense under 18 U.S.C. 1505. This clarification is needed because a
1991 D.C. Circuit Court of Appeals decision, United States versus
Poindexter, held that section 1505 ``is too vague to provide
constitutionally adequate notice that it prohibits lying to the
Congress.'' The decision reasoned that, by using the term
``corruptly,'' section 1505 may prohibit only those actions which
induce another person to obstruct congressional inquiry, and not those
which, in themselves, obstruct Congress. In other words, the court held
that a person who induces another to lie to obstruct Congress violates
section 1505, but a person who alone obstructs Congress is outside the
reach of the statute.
No other Federal circuit has taken a similar approach. In fact, other
circuits have interpreted ``corruptly'' to prohibit false or misleading
statements not only in section 1505, but in other Federal obstruction
statutes as well, including section 1503 prohibiting obstruction of a
Federal grand jury. These circuits have also interpreted the Federal
obstruction statutes to prohibit the withholding, concealing, altering,
or destroying documents.
Our bill would affirm the interpretations of these other circuits.
Specifically, the amendment would include a definition of ``corruptly''
in section 1515 of title 18 which provides definitions for the entire
chapter of Federal statutes prohibiting obstruction of Federal
inquiries. This definition would make it clear that section 1505 is
intended to prohibit the obstruction of a congressional investigation
by a
person acting alone as well as when inducing another to obstruct
Congress, and that this prohibition includes making false or misleading
statements to Congress as well as withholding, concealing, altering, or
destroying documents requested by Congress.
This bill is not intended to expand section 1505, but to clarify the
conduct it was always meant to prohibit. Moreover, by limiting the
definition of ``corruptly'' to how it is used in section 1505, we are
not intending to limit how this term is interpreted in other chapter 73
obstruction provisions. The definition applies only to section 1505
because the Poindexter decision interprets only that section, and we
are unaware of any similar limitation on any other Federal obstruction
statute.
Third, the bill would make it clear that any Federal employee or
officer, acting in an official capacity, who resists a Senate subpoena
under 28 U.S.C. 1365 by claiming some type of privilege must have the
written approval of the Attorney General and relevant agency head in
order to avoid enforcement. This issue arose in one past congressional
investigation, for example, when a Federal employee attempted to assert
executive privilege without having any authorization to do so. That's
why, in 1988, the Senate adopted by unanimous consent a bill authored
by Senator Rudman and Senator Inouye, S. 2350, containing this
clarification. That bill was never taken up by the House--now is a good
time to resurrect it.
The Senate currently has explicit statutory authority, under 28
U.S.C. 1365, to obtain court enforcement of subpoenas issued to private
individuals and State officials. This statute does not, however,
provide for enforcement of subpoenas to Federal employees or officers
acting in an official capacity, in order to keep what may be political
disputes between the legislative and executive branches out of the
courtroom. The problem has been to determine when an employee is acting
within his or her official capacity. Requiring written support for the
employee's actions from the Attorney General and agency head ensures
that the individual is acting in compliance with and not contrary to
the decisions of his or her superiors.
By establishing this procedural requirement, the bill does not
address the underlying issue of which executive branch officials have
the authority to assert particular types of privilege--it simply says
that without having at least the written authorization of the Attorney
General and agency head, no subpoenaed Federal employee, acting in his
official capacity, has a legal basis for resisting enforcement of that
subpoena. In the case of executive privilege, for example, I and other
colleagues believe that only the President may assert that privilege.
On the other hand, it is possible that other statutory privileges may
provide grounds for resisting a subpoena, such as the Privacy Act, and
may be properly asserted without the President's personal involvement.
The bill to section 1365(a) does not attempt to resolve these types of
issues. Rather it says that a Federal employee can avoid enforcement of
a Senate subpoena only by having the written authorization of the
Attorney General and agency head to assert any privilege in opposition
to that subpoena.
The fourth and final provision of the bill is also taken from the
Rudman-Inouye bill that passed the Senate. This provision would make it
clear that Congress may compel an immunized individual to provide
truthful testimony in depositions as well as hearings. In the past,
some individual granted immunity from criminal prosecution by Congress
have refused to provide testimony in any setting other than a hearing
on the ground that the relevant statute, 28 U.S.C. 6005, was limited to
appearances ``before'' a committee, while the comparable judicial
[[Page S7755]] immunity statute applied to proceedings ``before or
ancillary to'' court or grand jury appearances. The bill would reword
the congressional immunity statute to parallel the language in the
judicial immunity statute, and make it clear that Congress can grant
immunity and compel testimony not only in proceedings before a
committee but also in depositions conducted by committee members of
staff. Again, this provision was approved by unanimous consent as part
of the Rudman-Inouye bill that passed the Senate in 1988, but was never
considered by the House.
If Congress is to investigate terrorism or any other issue important
to the public, congressional committees must have clear authority to
punish false statements and obstruction, enforce subpoenas and compel
truthful testimony. Our bill would help provide that clear authority.
The text of the amendment is printed in today's Record under
``Amendments Submitted.''
Amendment No. 1205
Mr. HATCH. Mr. President, I believe there is a Pressler amendment No.
1205 that has been called up but set aside; is that correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. HATCH. I have been authorized by the distinguished Senator from
South Dakota, Senator Pressler, to withdraw that amendment.
The PRESIDING OFFICER. The amendment No. 1205 is withdrawn.
So the amendment (No. 1205) was withdrawn.
Mr. BIDEN. Mr. President, for the benefit of my Democratic
colleagues, I believe that we will be able to accept--and we are
clearing this now--the Brown amendment No. 1229, as amended, and the
McCain-Leahy amendment No. 1240 that relates to special assessments,
and the Shelby amendment No. 1230.
It is my hope and expectation that the Republican manager of the bill
may be able to accept, with some possible modification, Senator Nunn's
amendment No. 1213 on posse comitatus, and Senator Leahy's amendment
No. 1247 on foreign policy.
But while we are trying to work that out, I suggest that maybe it is
appropriate for the Senator from Connecticut to proceed. Mr. President,
if I have not already, I ask unanimous consent to be added as a primary
cosponsor to the Senator's amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, I spoke to this amendment at length earlier
today and yesterday. I yield the floor.
Amendment No. 1247, As Modified, to Amendment No. 1199
(Purpose: To give the President authority to waive the prohibition on
assistance to countries that aid terrorists)
Mr. HATCH. Mr. President, I send to the desk on behalf of Senator
Leahy a modification to the Leahy amendment No. 1247.
The PRESIDING OFFICER. Without objection, the amendment will be so
modified.
The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Utah [Mr. Hatch], for Mr. Leahy, proposes
an amendment numbered 1247, as modified.
Mr. HATCH. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 18, strike lines 18 through 24 and insert the
following:
``SEC. 620G. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT AID
TERRORIST STATES.
``(a) Prohibition.--No assistance under this Act shall be
provided to the government of any country that provides
assistance to the government of any other country for which
the Secretary of State has made a determination under section
620A''.
``(b) Waiver.--Assistance prohibited by this section may be
furnished to a foreign government described in subsection (a)
if the President determines that furnishing such assistance
is important to the national interests of the United States
and, not later than 15 days before obligating such
assistance, furnishes a report to the appropriate committees
of Congress including--
``(1) a statement of the determination;
``(2) a detailed explanation of the assistance to be
provided;
``(3) the estimated dollar amounts of the assistance; and
``(4) an explanation of how the assistance furthers United
States national interests.''.
Mr. HATCH. Mr. President, I urge adoption of the amendment, as
modified.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment, as modified.
The amendment (No. 1247), as modified, was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. BIDEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BIDEN. Mr. President, we are just awaiting the modification
language on Senator Brown's amendment 1229. As soon as we have that and
have a chance to look at it, it will be sent to the desk. We will ask
that it be considered and we will accept that as well.
We will also accept in a moment, I believe, Senator Shelby's
amendment relating to fertilizer research, amendment No. 1230.
Now that we have interrupted the Senator from Connecticut 12 times--
but we are making progress here; we are accepting important
amendments--I will at the end of the comments by my friend from
Connecticut urge we accept additional amendments.
Mr. HATCH. Mr. President, I ask unanimous consent that we proceed to
the Lieberman amendment No. 1215, pursuant to a 20-minute time
agreement to be divided equally between both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Connecticut is recognized.
Mr. LIEBERMAN. Mr. President, I thank the Chair. Let me express my
thanks and gratitude to the Senate majority leader, to the Democratic
leader, the chairman of the Judiciary Committee, and to the ranking
Democratic member for breaking what looked to be the coming of gridlock
on an issue and a problem on which none of us want gridlock, and we
should not allow it to exist. I think we have now limited the number of
amendments, and we have clearly accepted some across party lines. And
we are quite appropriately moving toward doing something to put us
squarely against those who would terrorize America.
Mr. President, when I came to the Senate, I got interested in this
threat of terrorism because it seemed to me, particularly after the
cold war ended, that we in America might surprisingly find our security
threatened more directly, our lives threatened more directly by
terrorists than we had enduring the long years of the cold war by a
heavily armed enemy. The reason is that there are extremist movements
throughout the world. There are, sadly, extremist movements within our
own country who practice acts of terrorism either to carry out a
political purpose or to create panic and insecurity and chaos in our
society.
I thought we ought to begin to act and do something about that. We
conducted hearings and we visited with experts. Mr. President, these
inquiries into the problem of terrorism led me to this sad conclusion,
which is that it is very difficult to defend against terrorists in a
way that gives absolute security in the sense that they, by their
nature, as we have seen in our time, will strike at undefended targets.
In the aftermath of the events in Oklahoma City, we might increase
security at Federal and public buildings, and one could imagine that we
can surround every public building in America with security guards, and
yet the terrorist bent on destruction and chaos will tragically go down
the street and strike at a public building or an office building or a
place where people gather.
So it seems to me that the best defense against terrorism,
international and domestic, is an offense. And the offense is to be
prepared, to keep an eye and an ear out for those who would commit
terrorist acts.
None of us wants to stop people from saying what they believe in this
great democracy and writing and demonstrating what they believe. But
when some group has indicated or given reason to law enforcement
authorities to believe that they are capable of, or are planning or
considering a criminal act, I want our Government to be there. I want
our Government to be listening. I want our Government to have
undercover agents there so that we can [[Page S7756]] strike to stop
those terrorist acts, those violent acts, such as the awful assault in
Oklahoma City, before they occur.
Mr. President, that is the purpose of this amendment.
Amendment No. 1215 to Amendment No. 1199
(Purpose: To amend the bill with respect to revisions of existing
authority for multipoint wiretaps)
Mr. LIEBERMAN. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Connecticut [Mr. Lieberman], for himself
and Mr. Biden, proposes an amendment numbered 1215 to
Amendment No. 1199.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Insert at the appropriate place in the amendment the
following new section:
SEC. . REVISION TO EXISTING AUTHORITY FOR MULTIPOINT
WIRETAPS.
(a) Section 2518(11)(b)(ii) of title 18 is amended: by
deleting ``of a purpose, on the part of that person, to
thwart interception by changing facilities.'' and inserting
``that the person had the intent to thwart interception or
that the person's actions and conduct would have the effect
of thwarting interception from a specified facility.''
(b) Section 2518(11)(b)(iii) is amended to read:
``(iii) the judge finds that such showing has been
adequately made.''
Mr. LIEBERMAN. Mr. President, this amendment deals with what in law
enforcement circles is called a multipoint wiretap. It is a very rare
kind of electronic surveillance that is tied to the movements of the
suspected criminal rather than to the particular telephone line he or
she is using.
For all other wiretaps except these rare multipoint taps, law
enforcement officers have to convince a court that there is probable
cause to believe that a specific phone is being used to facilitate an
ongoing crime, where a judge is persuaded that a criminal is moving
around and using different phones or locations for the purpose, on the
part of that person, to thwart interception, which is the wording in
the law today. However, the judge may authorize a multipoint wiretap.
With such a court order, the criminal's conversations can be listened
to through wiretaps on those telephones that the criminal actually ends
up using.
Let me point out again that what has to be shown here is that the
person is moving around and using different phones or locations for the
purpose of thwarting electronic interception. Now, no interceptions may
take place until a specifically named individual is using the phone. So
law enforcement officers must first establish, through physical
surveillance, through observation during the 30-day life of these
orders--they are limited to 30 days--that the targeted individual is
actually using the phone. If someone else begins to use the phone and
the targeted individual is not part of that conversation, the wiretap
must stop--even, surprisingly, if other criminal activity is being
discussed.
Now, because of these standards, these obstacles, these requirements,
multipoint wiretaps are actually quite rarely used. They have, however,
proved, according to testimony submitted by Deputy Attorney General
Jamie Gorelick to the Judiciary Committee, highly effective tools in
prosecuting today's highly mobile criminals who may switch phones
frequently for many reasons. Some may move from one cellular phone to
another in order to defraud the phone company. Others may switch from
phone to phone because it is consistent with the kind of ruthless lives
they lead. Others may be changing phones to avoid being tapped, and
those are the people --particularly if they are considering carrying
out a terrorist act of violence--that I am concerned about in
introducing this amendment. Changes in technology make the likelihood
that anyone, including criminals, of course, is going to use many
different phone lines in the course of a day.
Under current law, unless law enforcement can establish that
criminals are switching phones with the specific intent to thwart
detection, surveillance, a wiretap, a multipoint wiretap cannot be
obtained from a court. That is the law. Proving specific intent in such
a situation is very difficult--even where someone may be moving so
frequently that a standard wiretap on a particular phone is effectively
useless.
So my amendment would allow courts to authorize multipoint wiretaps,
either where law enforcement could persuade a judge that a criminal was
changing phones frequently for the purpose of avoiding interception, or
where the very fact that the criminal was moving around and changing
phones had the effect of thwarting surveillance, regardless of why he
or she is doing it. And that would ease the difficult task of proving
the intention of the criminal to thwart detection. It captures
situations also where the target is frequently moving and changes
phones for any reason.
Mr. President, my amendment does not change, in any respect,
protections in existing law against abuse of these multipoint wiretaps.
For instance, no application for a multipoint wiretap may be filed by
any Federal law enforcement officer without the approval of top Justice
Department officials. They have to go right to the top for approval.
And, of course, a judge cannot authorize a multipoint tap without
finding probable cause that a specific person is committing a crime or
criminal act.
So this is not going to invite any wanton abuse of wiretap authority.
The wiretap cannot begin until law enforcement has verified that the
target--even after the court orders it--is using the particular phone
and only the communications of that person can be intercepted. If other
conversations are heard and a conversation involving a target person,
for instance, turns out to be personal, the tap has to be turned off.
Given the highly secretive nature of most terrorists, given the fact
that they are operating in a sophisticated way, and just as all the
rest of us, moving around using phones, cellular phones, electronic
surveillance is one of our best weapons once we have reason to believe
that a criminal act, terrorist act, is being carried out, to find out
what the intention of the perpetrator or terrorist is, and to stop that
act before any innocent victims are hurt or, God forbid, killed.
The amendment that I am offering was in the President's original
bill. I think it is modest and narrowly circumscribed, but enhances the
ability of law enforcement officers to help.
Mr. President, how much of the 10 minutes remains?
The PRESIDING OFFICER (Mr. DeWINE). The Senator has 3 minutes and 50
seconds.
Mr. LIEBERMAN. Mr. President, finally, under current law, let me say
that these tools are used very sparingly but effectively. I certainly
do not anticipate their being used very often in our battle against
terrorism, whether the terrorists be domestically or internationally
inspired.
However, I do want to be sure that when our law enforcement
officials--fighting and working to protect our safety--need these
tools, that they will be ready and waiting so that swift and certain
preventive action can be taken.
We owe that to our law enforcement officials. But truly more to the
point, we owe it to the millions and millions of Americans, innocent
people going about their daily lives, who deserve as best we are able
to be protected from the hard and thoughtless hand of death that
terrorism would wreak upon them.
Mr. President, that concludes my statement.
I yield so much of the remainder of my time as desired by the
distinguished ranking Democrat of the Judiciary Committee, the Senator
from Delaware [Mr. Biden].
Mr. BIDEN. I thank my friend from Connecticut.
The way I look at this, this is real simple. Real simple and basic.
There is nothing real complicated about this. Right now, this can be
done. Right now, all that has to be proven is there is an intent to
evade. All we are saying is if the effect is evasion, and the effect is
avoiding the tap on the phone that they think may be tapped, that they
be able to do it based on the effect, not having to prove an intent to
thwart eavesdropping. I want to make that clear to everyone here.
This still requires an initial finding that this guy is probably a
bad guy. It still requires a judge to say that there [[Page S7757]] is
probable cause to look at this guy. This is no great leap in anything.
Civil libertarians should not worry, law enforcement should be
encouraged, and the American people should feel some mild additional
sense of security in being able to do what the Senator from Connecticut
is suggesting that the President very badly wants, and that was deleted
from the bill.
It is my hope that our friends on the Republican side may be able to
accept this amendment. If there is any time left, I ask that it be
reserved.
Mr. President, I rise in support of Senator Lieberman's amendment,
which I believe will improve the current authority for what are known
as roving, or multipoint, wiretap orders. This provision was proposed
by the President, but is not included in the Republican substitute.
Multipoint wiretaps allow law enforcement officers to obtain a
judicial order to intercept the communications of a particular person--
not just for one specified phone, as with most wiretap orders, but on
any phone that person may use.
A recent prosecution will help illustrate how multipoint wiretaps
work. In that case, involving one of the world's biggest international
drug traffickers, agents determined that a courier was contacting his
bosses by using a number of randomly chosen public phones around his
home.
A multipoint wiretap was obtained and up to 25 phones were identified
to prepare for the chance that the target would use one of them.
Anytime he used one of those phones, the agents were able to initiate a
wiretap. Interceptions obtained in this way led to 53 Federal
indictments and a 19-ton cocaine seizure.
Under current law, the Government can get a multipoint wiretap order
only if it can show that the defendant is intending to thwart
surveillance--usually by switching from phone to phone.
The Senator's amendment would allow multipoint wiretaps where the
defendant's conduct has the effect of thwarting surveillance--
regardless of the defendant's intent.
This small change is desperately needed by law enforcement--because
while officers will often be able to show that the individual is
changing telephones frequently enough to make a standard wiretap
impossible, it may be difficult to prove that he is doing so with
intent to thwart a wiretap.
Changes in technology have made this proof even more difficult. A
target may use more than one phone for reasons other than avoiding
surveillance.
The current intent requirement virtually requires an officer to wait
to apply for a multipoint wiretap until the officer somehow hears the
target say ``I am changing phones because I don't want the cops to tap
this conversation.''
Let me give you an example of one ongoing case in which a multipoint
wiretap order could not be obtained because of the requirement to prove
intent to thwart surveillance.
In this case, the targets are using electronic scanning equipment to
capture cellular phone and identification numbers from unsuspecting and
innocent phone users.
The particular targets in this case are cloning a new phone number--
allowing them to use it without authority--every 2 weeks or so and
thereby effectively avoiding surveillance.
The officers are hard-pressed to prove that every time the target
clones a new number, he did so for the purpose of thwarting
interception--rather than simply to avoid paying for the calls.
Because wiretaps are extraordinarily powerful and intrusive, the law
contains numerous protections against abuse.
The Government must, of course, prove probable cause that a specific
person is committing a crime--as with any wiretap application.
The application must be approved by a top Justice Department
official--the Attorney General, the Deputy Attorney General, the
Associate Attorney General, an Assistant Attorney General, or an Acting
Assistant Attorney General;
The judge must find that the standards for issuing a multipoint order
have been met;
The application must identify the person believed to be committing
the offense and whose communications are to be intercepted;
The Government must minimize the intrusiveness of a wiretap--by
turning the wiretap off when the conversation is personal, for
instance; and
Any interception cannot begin until law enforcement has clearly
determined that the target is using that particular phone. And once the
target is off the phone, the interception must end.
In practice, this latter requirement means that if the agents are out
on surveillance and they see their target move to a new phone, they can
begin interception of the new phone. It also means that if their target
hands the phone to his buddy, they must stop the interception
immediately.
A multipoint wiretap order does not allow the police to intercept a
slew of different telephones in a number of places and monitor every
conversation on those phones.
The amendment proposed by the administration, and offered in modified
form by Senator Lieberman, would not change any of the basic
protections in the current multipoint wiretap statute.
The narrow, but necessary change that the Senator's amendment would
make is not intended to make this authority a run-of-the-mill everyday
surveillance technique.
I understand that multipoint wiretaps are used sparingly--in fact,
the Justice Department reports that last year only 10 multipoint
wiretaps were conducted and that only 4 have been approved to date this
year.
The new authority provided by this amendment must be utilized
responsibly. And I reiterate that Senator Lieberman's amendment will
not change any of the protections built into the multipoint wiretap
statute besides broadening the intent standard to include an effects
standard.
We must provide law enforcement with the tools they need to meet the
demands of an ever-complex and changing criminal element. In today's
increasingly mobile and high-technology world, we need to provide law
enforcement with the ability to move with the criminals. It is now
simply too easy for law enforcement to get left behind as the criminals
move from place to place and from phone to phone.
At the same time we must be cautious not to infringe on civil
liberties. I believe the amendment Senator Lieberman offers today
accomplishes both of these goals.
It is a narrow but necessary expansion of the multipoint wiretap
authority--but one that also includes protections against abuse.
I urge my colleagues to support this amendment.
Mr. HATCH. Mr. President, how much time remains on both sides?
The PRESIDING OFFICER. The Senator from Utah has 10 minutes; the
Senator from Connecticut has 1 minute and 6 seconds.
Mr. HATCH. Mr. President, initially I opposed the President's version
of this amendment. It is a fundamental tenet that the right of the
people to be secure in their persons, house, papers, and effects
against unreasonable searches and seizures limit the permissibility in
Government interception of electronic communications.
In other words, the Government cannot listen to our private telephone
conversations whenever it feels like it.
Indeed, because wiretaps are so intrusive in conducting in secret and
under circumstances in which the subject generally has a reasonable
expectation of privacy, the courts and Congress have required that
Federal law enforcement officers meet a heightened burden of necessity
before using a wiretap.
At the same time, we have to recognize that no one has a right to
engage in illegal activity. Criminals consistently adapt the latest
technology to further the aim of completing their illegal acts without
detection.
As the criminal use of technology has evolved so, too, must we,
enhancing the capabilities of law enforcement who, after all, must
protect our citizens from these types of crimes.
The balance between a person's right to be free from unreasonable
searches and his or her expectation to live free from crime is a
delicate one. We have to consider seriously any proposal with the
potential to upset the balance.
Now, I believe that the President's language could very well have
done that. Briefly, the President's original proposal would have
provided law enforcement with an expanded authority [[Page S7758]] to
tap phones in a narrow subset of cases in which the target would be
subject to a normal wiretap, but changes phones so quickly it is
difficult to get a separate wiretap order for each phone.
These are the so-called roving wiretaps. Essentially, this enables
the Government to follow a person around and listen to that person's
telephone conversation regardless of what phone the person is using.
I think this is problematic. So, our staff has worked with Senator
Biden and his staff to narrow the provision considerably.
Now, under this provision, the Government can receive a court-ordered
wiretap if the suspect knows he is under surveillance and intentionally
thwarts that surveillance. That is country law.
The proposed amendment, which is substantially different from the
President's language, permits law enforcement to get a multipoint
wiretap only if the suspect intends to thwart surveillance, or if by
the course of his conduct he effectively thwarts surveillance.
I think this is a reasonable compromise. It is important that we give
law enforcement the critical tools it needs to combat terrorism and
protect our free society, but because we are a free society we must be
leery of expanding the surveillance powers of law enforcement
intemperately. We must not, even in the aftermath of tragedy such as
Oklahoma City, trade off our constitutional protections for a generic
promise of increased security.
I, personally, am confident that the proposed amendment by my friend
and colleague from Connecticut satisfies civil liberty concerns and
meets the needs of law enforcement at the same time.
I intend to vote for this amendment. I know there are others who feel
deeply that they do not want to vote for it. As manager of the bill on
our side, I intend to vote for it. I would encourage others to do so,
as well.
I am prepared to yield back the balance of my time and to stack the
vote at some later time at the decision of the majority leader.
Mr. LIEBERMAN. Mr. President, first let me thank my friend from Utah
for his support of the amendment. I appreciate the terms at which the
support was given, that this is a balanced amendment.
It gives extra authority to law enforcement to protect the rest of
us, but does so in a way that gives proper regard to the liberties that
we all cherish.
Again, this extra wiretap authority cannot be used unless such judge
has concluded there is probable cause to believe that the individual
who will be the target of this multipoint tap is, in fact, committing a
criminal act.
Mr. President, I would be happy to yield back the time that I have
remaining.
Mr. HATCH. I yield back the balance, and I ask unanimous consent that
the vote on or in relation to the pending Lieberman amendment occur
later this evening at a time to be determined by the two leaders.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. COVERDELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1210, As Modified
Mr. COVERDELL. Mr. President, I ask unanimous consent to modify my
amendment No. 1210. I send the modification to the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 1210), as modified, is as follows:
At the appropriate place in the amendment, insert the
following new section:
SEC. . PROOF OF CITIZENSHIP.
Prohibition of Voter Registration as Proof of
Citizenship.--Notwithstanding any other provision of law, a
Federal, State, or local government agency may not use a
voter registration card (or other related document) that
evidences registration for an election for Federal office, as
evidence to prove United States citizenship.
Mr. COVERDELL. Mr. President, I ask for its immediate consideration.
Mr. HATCH. Mr. President, on this side, we find this a good
amendment. We are prepared to accept it. I understand the other side is
acceptable to that, as well.
Mr. BIDEN. Mr. President, after consulting with Senator Ford and
others, we are prepared to accept the modification. We thank the
Senator from Georgia for so modifying. We accept the amendment as sent
to the desk.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment of the Senator from Georgia, as modified.
The amendment (No. 1210), as modified, was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. BIDEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1230 to Amendment No. 1199 and Amendment No. 1241, En
Bloc
Mr. BIDEN. Mr. President, we are prepared to accept Shelby amendment
No. 1230, the fertilizer research study, and I understand that the
Republican side is willing to accept the Heflin amendment numbered 1241
related to sarin gas.
I ask unanimous consent that both of them be called up, and then at
the appropriate time, I am willing to accept them both en bloc.
Mr. HATCH. We are prepared to accept both of those amendments.
The PRESIDING OFFICER. Without objection, the amendments will now be
considered en bloc.
The clerk will report.
The bill clerk read as follows:
The Senator from Delaware [Mr. Biden], for Mr. Heflin for
himself, and Mr. Shelby, proposes an amendment numbered 1230
to amendment No. 1199, and for Mr. Heflin, proposes an
amendment numbered 1241, en bloc.
The amendments are as follows:
Amendment No. 1230
At the appropriate place, insert the following: ``In
conducting any portion of the study relating to the
regulation and use of fertilizer as a pre-explosive material,
the Secretary of the Treasury shall consult with and receive
input from non-profit fertilizer research centers and include
their opinions and findings in the report required under
subsection (c).''.
Amendment No. 1241
At the end of the bill, add the following:
SEC. . LISTING OF NERVE GASES SARIN AND VX AS A HAZARDOUS
WASTE.
(a) In General.--Section 3001(e) of the Solid Waste
Disposal Act (42 U.S.C. 6921(e)) is amended by adding at the
end the following:
``(3) Nerve gases.--
``(A) Listing.--The Administrator shall list under
subsection (b)(1) the nerve gases sarin and VX.
``(B) Application of regulatory requirements.--Standards
and permit requirements under this Act and regulations issued
under this Act relating to the nerve gases sarin and VX shall
not apply to--
``(i) any sarin or VX production facility of the Department
of Defense that is in existence on the date of enactment of
this paragraph; or
``(ii) the storage of sarin or VX at any Department of
Defense designated chemical weapons stockpile in existence
prior to the date of enactment of this Act.''.
(b) Immediate Action.--The listing of the nerve gases sarin
and VX required by the amendment made by subsection (a) shall
be deemed to be made immediately on enactment of this Act,
and the Administrator of the Environmental Protection Agency
shall in fact make the listing as soon as practicable after
enactment of this Act.
(c) No Studies or Proceedings.--Notwithstanding any other
law, it shall not be necessary for the Administrator of the
Environmental Protection Agency to make any studies, engage
in any rulemaking or other proceedings, or meet any other
requirement under the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.) or any other law in support of the directive
made by subsection (b).
(d) Criminal Penalty for Mere Possession.--Section
3008(d)(2) of the Solid Waste Disposal Act (42 U.S.C.
6928(d)(2)) is amended by inserting ``or knowingly possesses
the nerve gas sarin or the nerve gas VX'' after ``subtitle''.
Mr. BIDEN. Mr. President, while I have strong reservations about the
amendment offered by Senators Heflin and Shelby, I have also been
informed that the amendment has been cleared by all other Senators--
including Senators, from both sides, representing the committee of
jurisdiction, the Committee on Environment and Public Works.
For these reasons, I will not object to the amendment offered by
Senators Heflin and Shelby and require a roll [[Page S7759]] call vote.
But, I would simply note my opposition for the Record.
Mr. HATCH. Mr. President, I urge adoption of the amendments.
Mr. BIDEN. We urge the adoption of both amendments.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendments.
The amendments (Nos. 1230 and 1241) were agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote by which the
amendments were agreed to.
Mr. BIDEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1240
Mr. BIDEN. Mr. President, on behalf of Senators McCain and Leahy, I
call up an amendment numbered 1240 and ask for its immediate
consideration.
Mr. HATCH. Has that amendment been accepted?
The PRESIDING OFFICER. The Senator is advised that it has not been
agreed to.
The question is on agreeing to the amendment.
The amendment (No. 1240) was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. BIDEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BIDEN. Mr. President, I understand that the distinguished
chairman of the Judiciary Committee is working on the possibility of
accepting or working out an agreement on the Nunn-Biden amendment on
posse comitatus. Is that correct?
Mr. HATCH. That is correct. There is some language difficulty. We are
trying to work it out. We hope that we can.
Mr. BIDEN. I say to the Senator from Michigan that I would like to
accept his amendment No. 1228. We are attempting to find out whether
that can be cleared. If we can clear that amendment, it will take
another few minutes to determine that.
I suggest, with the majority leader here, that while we are clearing
some of these additional amendments, if there is anyone who has an
amendment that we cannot clear who is ready to go with their amendment,
I would encourage them to move on their amendments.
Mr. DOLE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Parliamentary inquiry: Is the Leahy amendment No. 1238 at
the desk?
The PRESIDING OFFICER. That amendment is pending.
Amendment No. 1238
Mr. HATCH. Mr. President, I believe both sides are in a position to
accept that. Our side will accept it if the distinguished Senator from
Delaware will.
Mr. BIDEN. Mr. President, we are prepared to accept it as well.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 1238) was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. BIDEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1206, As Modified, to Amendment No. 1199
(Purpose: To authorize assistance to foreign nations to procure
explosives detection equipment)
Mr. BIDEN. Mr. President, the Senator from Pennsylvania is here. He
has an amendment, No. 1206, relating to foreign assistance. We have
been discussing this with him. We think it is a good amendment. We have
suggested a few minor changes relative to the amount of distribution
under the amendment.
I understand the Senator from Pennsylvania is prepared to send his
amended amendment to the desk, and we are prepared to accept it.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, the referenced amendment would provide
U.S. assistance to other countries to procure explosives detection
devices and other counterterrorism technology. At the request of the
State Department, it has been broadened to include support for joint
counterterrorism research and development with allied countries.
This amendment would be very effective for counterterrorism
internationally by providing up to $3 million in assistance to foreign
governments to work on counterterrorism technologies. Obviously, when
you talk about counterterrorism and explosives- detection devices at
airports, U.S. citizens, for that matter citizens and residents all
over the world, will be affected by the availability of the sort of
counterterrorism technology that will be supported under this
amendment.
It has very broad support. I am pleased that the distinguished
chairman of the committee and the distinguished ranking member are
prepared to accept it.
The amendment has been modified to limit the amount of support to $3
million annually because the total authorization under the program is
$15 million. I urge the adoption of the amendment.
Mr. BIDEN. Mr. President, does the Senator need to send that
amendment to the desk?
Mr. SPECTER. I send the modification to the desk, Mr. President.
The PRESIDING OFFICER. Without objection, the amendment is so
modified.
Without objection, the amendment is agreed to.
The amendment (No. 1206), as modified, was agreed to, as follows:
On page 22, between lines 18 and 19, insert the following:
``(b)(1) Assistance to Foreign Countries To Procure
Explosives Detection Devices and Other Counterterrorism
Technology.--Subject to section 575(b), up to $3,000,000 in
any fiscal year may be made available--
``(A) to procure explosives detection devices and other
counterterrorism technology; and
``(B) for joint counterterrorism research and development
projects on such technology conducted with NATO and major
non-NATO allies under the auspices of the Technical Support
Working Group of the Department of State.
``(2) As used in this subsection, the term `major non-NATO
allies' means those countries designated as major non-NATO
allies for purposes of section 2350a(i)(3) of title 10,
United States Code.
On page 22, line 19, strike ``(b)'' and insert ``(c)''.
Mr. HATCH. Parliamentary inquiry: Has the amendment been adopted,
because we still have a problem on this side, I have been informed. I
ask unanimous consent that the amendment still be considered pending.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. HATCH. The amendment is cleared. I urge adoption.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
So the amendment (No. 1206), as modified, was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. BIDEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HATCH. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HARKIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HARKIN. I am one Senator who is wondering what is going on here.
I do not know if there are going to be votes or not. We have been here
all day. What is happening? Can I go home and have dinner with my kids?
That is what I wanted to know. Are we really going to stay and vote, or
are we going to stack them?
Mr. DOLE. We are going to vote tonight. We worked out about a dozen
amendments. We have made a lot of progress in the last 2 or 3 hours. We
[[Page S7760]] hope to dispose of all of the amendments, with the
exception of the habeas corpus amendment, which we will do tomorrow
morning. We will vitiate the cloture vote and do habeas. We need to
complete action tonight. I think it may be another hour before the
votes begin. If you ate fast, you might make it.
Mr. HARKIN. Well, I ask the distinguished majority leader, if we are
going to have votes, why not stack them in the morning.
Mr. DOLE. We do that every day around here and we never finish
anything. I would like to do the voting tonight on all but habeas and
vitiate the cloture and finish habeas and start on telecommunications
sometime tomorrow morning.
We have some momentum now that we do not want to lose. A lot of
people may not be willing to do this in the morning.
Mr. HARKIN. If this is momentum, I would hate to see this place
really move.
I just wanted to know if we could stack them in the morning.
Mr. DOLE. You could try to go home, but you probably would not be
able to eat much.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. We started off about 4 hours ago with 60-some amendments.
We are down to--not counting the habeas--about four or five. So we
really have been working in his absence. I wanted to assure him of
that.
Mr. HARKIN. I appreciate that.
Mr. DORGAN. Mr. President, I understand that, and I think the
progress is commendable. I think the Senator from Iowa and others would
appreciate knowing if we are going to stack votes. Do we have any
notion of when the votes might be stacked?
Mr. DOLE. We hope that by 9 o'clock we will start voting. There will
probably be three or four votes.
Mr. DORGAN. But that is not locked in at this point?
Mr. DOLE. One vote has been ordered.
Mr. BIDEN. Yes. No time is set. It was tonight. I believe we are
going to have several more votes. We are waiting for a couple Senators
to come and offer their amendments. There are very tight time
constraints on each of the amendments. If they get here --quite
frankly, what happened is we have come over here and people have
started to offer amendments and they have ended up being accepted. So
that seems to work as a catalyst to get them accepted, too.
There is one vote ordered for tonight without a time certain on it.
There are probably going to be two or three additional votes.
Mr. DOLE. If the Senator will yield. If the managers continue to work
as they have, and we only had one vote left, I would put that off until
tomorrow. But I am not certain when we are going to be able to tell
people that. If we have two, three, or four, I would like to complete
the votes tonight. That will save us a couple of hours in the morning.
I think if the managers will continue to be flexible on these
amendments, and we will avoid a lot of votes.
Mr. BIDEN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I have expressed in the past concern
about the provisions of the pending legislation which authorize secret
proceedings in certain instances. It had been my hope that we might
have been able to deal with the problem of suspected terrorists without
being involved in secret proceedings.
I had been working on an amendment which would have dealt with people
who were in the United States illegally, who could be proceeded against
and deported because of their illegal status without the need for the
government to rely on secret evidence.
I have very grave concerns about the constitutionality of any
deportation proceeding in which secret evidence is used and there is
not a right of confrontation. Technically, deportation proceedings are
civil in nature and therefore do not require the full scope of
confrontation rights which are available in criminal cases.
Notwithstanding the fact that deportation proceedings are civil in
nature, the courts have held that due process does attach to a
deportation proceeding. It may well be when the case reaches the
Supreme Court of the United States that this due process requirement
will be found to pick up the right of confrontation under the sixth
amendment.
Certainly, the due process clause of the 14th amendment, which is
applied to the States, does pick up the confrontation provision of the
sixth amendment. By analogy, it may well pick up confrontation rights
as it is applies to deportation proceedings, as well.
But in reviewing the existing deportation laws, there would be a much
broader change necessary to deport those who are here simply illegally
without getting into the question of evidence as to terrorism.
There is obviously a grave concern about disclosure of confidential
information involving terrorism, because sources and methods could be
compromised. I understand the Senator from Illinois, Senator Simon, is
going to offer an amendment which will require a summary of the
classified information being relied on by the government in the
deportation proceeding. Frankly, that does not go as far as I would
like to see the protections go, but that may be all that can be
accomplished under the current bill.
We will subsequently be taking up the immigration laws generally and
it may be that at that time we can craft procedures which will protect
the public interest of getting out of the country people who are known
terrorists, where there is substantial evidence to that effect, even
though that evidence cannot be produced in a context of confrontation,
which someone would be entitled to under a criminal proceeding.
I am also concerned about the reliance on classified evidence in
cases involving the Secretary of the Treasury's designation of foreign
organizations as terrorist organizations. The substitute represents a
substantial improvement to the bill as introduced. Under the procedures
in the substitute, there is de novo review by the courts of the
Secretary's designation. That means a court will take a fresh look to
see if the designation by the Secretary of the Treasury of an
organization as a terrorist organization is, in fact, well founded.
Under the provisions which have been added to the substitute, a
summary of the classified evidence presented to the judge will be
provided to the organization, and in such cases there will be a
requirement that the evidence be clear and convincing that the
organization is, in fact, a terrorist organization. The summary will
have to be sufficient to allow the organization an opportunity to
defend.
I think that these provisions have gone about as far as is possible
with the practicalities at hand, and that they would really be risking
very sensitive information and sources and methods if full
confrontation was possible where someone is to be deported, and where
the witnesses would have to be produced where there is a designation by
the Secretary of the Treasury of an organization as being engaged in or
supporting terrorist activities.
I think, Mr. President, we really are dealing as much as we can under
the present legislation. A good bit of this bill will have to be tested
in court, and I do express these concerns about the constitutionality
of some of these provisions.
I yield the floor.
Amendment No. 1203 Withdrawn
Mr. HATCH. Mr. President, I would like to resolve one of the issues
that I think is resolvable, on the Smith amendment.
What the Senator is concerned about is he wanted a floor on the
amount of damage, so that incidental damage by citizens who are engaged
in peaceful or nonviolent demonstrations or protests would not trigger
the antiterrorism language of this bill.
I ask my colleague from Delaware if he would agree that a definition
of ``terrorist'' in this legislation is not intended to apply to
American citizens [[Page S7761]] engaged in a nonviolent or peaceful
demonstration, or demonstrations or protests where incidental damage to
property may occur.
Mr. BIDEN. Mr. President, I agree with the Senator from Utah that
that is not the intention.
Mr. HATCH. I think the real thing the Senator has been worried about
is whether if pro-choice and right-to-life people are picketing and
exercising their rights of free speech, and some incidental damage
occurs--just to choose two organizations in society--that if there is
no intention to commit terrorist actions, and if the demonstrations are
intended to be peaceful and nonviolent, that somehow or another this
law would not be triggered.
Mr. BIDEN. Mr. President, I say to my friend, this is not intended to
capture incidental damage. Say someone in a peaceful protest trips over
a hedge or tromps on a flowerbed. That is not the intention here. The
key here is ``incidental damage'' that is not intended. That would not
be captured by this legislation, as I read the legislation.
Mr. SMITH. Will the Senator yield?
Mr. HATCH. I am happy to yield to the distinguished Senator.
Mr. SMITH. I thank the Senator from Utah and the Senator from
Delaware. They have alleviated my concerns. We talked about this quite
some period of time, and I very much appreciate it. We have gone now to
the spirit and intent of what we mean by a ``terrorist,'' and I am
satisfied and more than delighted to withdraw the amendment.
I thank my colleagues.
The PRESIDING OFFICER (Mr. Ashcroft). Without objection, it is so
ordered.
The amendment (No. 1203) was withdrawn.
Mr. HATCH. I thank the distinguished Senator from New Hampshire for
working on this. We are making a great deal of headway here. If we can
just continue for a short while, we might be able to finish this phase
of the bill within a relatively short period of time.
Mr. BIDEN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1243 to Amendment No. 1199
(Purpose: To amend the penalty provisions for the use of explosives or
arson crimes)
Mr. HATCH. Mr. President, it is my understanding that both sides are
willing to clear the Levin amendment No. 1243. So, on behalf of the
Senator from Michigan, I call up that amendment, No. 1243, at this
time.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Utah [Mr. HATCH], for Mr. Levin, proposes
an amendment numbered 1243.
Mr. HATCH. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 15, strike lines 1 through 25 and insert the
following:
``(f)(1) Whoever maliciously damages or destroys, or
attempts to damage or destroy, by means of fire or an
explosive, any building, vehicle, or other personal or real
property in whole or in part owned or possessed by, or leased
to, the United States, or any department or agency thereof,
shall be imprisoned for not less than 5 years and not more
than 20 years. The court may order a fine of not more than
the greater of $100,000 or the cost of repairing or replacing
any property that is damaged or destroyed.
``(2) Whoever engages in conduct prohibited by this
subsection, and as a result of such conduct directly or
proximately causes personal injury to any person, including
any public safety officer performing duties, shall be
imprisoned not less than 7 years and not more than 40 years.
The court may order a fine of not more than the greater of
$200,000 or the cost of repairing or replacing any property
that is damaged or destroyed.
``(3) Whoever engages in conduct prohibited by this
subsection, and as a result of such conduct directly or
proximately causes the death of any person, including any
public safety officer performing duties, shall be imprisoned
for a term of years or for life, or sentenced to death. The
court may order a fine of not more than the greater of
$200,000 or the cost of repairing or replacing any property
that is damaged or destroyed.''.
Mr. LEVIN. Mr. President, I thank the Senator from Utah. The
amendment I am offering would amend an important penalty provision in
this bill. Section 107 of the bill amends title 18, section 844 of the
United States Code, which establishes penalties for anyone who damages
or destroys or attempts to damage or destroy by fire or explosive any
building, vehicle or real or personal property of the U.S. Government.
The current law establishes a penalty of imprisonment up to 20 years or
a fine or both. And if death results, a sentence of life imprisonment
or death can be imposed.
The Hatch substitute does two things. It establishes a minimum amount
for the fine that can be imposed and it establishes a minimum number of
years for a prison sentence, 5 years in a case involving only the loss
of property and 7 years in a case involving injury to a person. It
returns the current penalty for cases in which death results.
The concern here is that the amendment seems to provide that a court
could impose a fine without the minimum prison sentence that the bill
provides. What this amendment does is make it clear that the minimum
prison sentence, which is provided for in the bill, must be provided
and if a fine is imposed it is not and cannot be in lieu of a prison
sentence but must be on top of a prison sentence.
I think that is the way it should be when we do have minimum prison
sentences, that we should not in the same provision allow for there to
be a fine in lieu thereof, but it must be in addition to such a minimum
sentence.
I understand this has been cleared on both sides.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1243) was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Illinois.
Amendment No. 1250
Mr. SIMON. Mr. President, I have an amendment. I am working with
Senator Specter on his version. I think we will have a Specter-Simon
amendment very shortly.
What it does is it changes the provision if an alien is to be
deported. Under the present bill, if there is classified information
that alien is not informed of anything. That is a clear violation of
due process and I think the courts would toss it out.
What we have suggested, and we are working on the precise language
now, but what we are suggesting is that the Attorney General would
provide an unclassified synopsis and the court would have access to the
classified information to make sure the unclassified synopsis is
accurate. And then that would be given to the person who is charged
with being deported. That gives some reasonable access. We provide for
review and appeal procedures. We are still working on some details.
Senator Specter may want to comment on this. We may offer the
amendment tomorrow or later tonight, I am not sure, but I think we are
very close to an accord.
I might add the accord is in line with the original draft of the
legislation that is before us. But I think the legislation, if it is
not amended, frankly, the courts would toss it out as violating due
process.
My colleague from Pennsylvania may want to comment on that.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, in comments a few moments ago before the
distinguished Senator from Illinois came to the floor, I had referred
to my concerns about deportation with secret evidence. I had referred
at that time to an amendment which Senator Simon was considering. We
have since conferred and are really joining forces in the amendment
which I had filed with the amendment which Senator Simon has just
referred to.
I believe this amendment goes a substantial distance in protecting
the rights of someone who is subject to deportation. As I had said
earlier this evening, I have great concerns about the fairness of the
procedure where [[Page S7762]] there was not confrontation, that is
where the evidence is alleged to be present that the person is a
terrorist but that evidence is not presented because it would disclose
a source very injurious to the Government. So what we are trying to do
here is to find an accommodation.
If this were a criminal proceeding, there is no doubt that there
would be a requirement of confrontation under the U.S. Constitution.
But deportation proceedings are classified as civil proceedings. But
notwithstanding the classification of deportation proceedings as civil,
the courts have also said that there has to be due process even in a
civil proceeding. It is entirely possible when this provision is
reviewed in court that it may be determined that due process will
require confrontation just as the due process clause of the 14th
amendment is applicable. The States picks up the requirement of
confrontation applicable to the Federal Government in a criminal
proceeding. But I think that the amendment which Senator Simon and I
will be offering will go a long way to raising the standard of
fairness.
The one item which we are still wrestling with on the drafting is
whether there will be a requirement that the evidence be clear and
convincing in order to deport someone without confrontation on the
evidence which is presented as to terrorism. But however we work out
that last detail, we are in the process of having the drafting
finalized now.
We are doing this because Senator Simon and I have just put these two
amendments together trying to work them out. Perhaps it might be even
be acceptable to the managers. But that remains to be seen. But that is
the sense of what we are doing at this moment.
Mr. SIMON. Mr. President, my hope is that it would be acceptable to
the managers. I think this is in the line of the spirit of what is
being offered. It is in line with the original draft. It certainly is
in line with the sentiments over the years that I have worked with
Senator Biden, and I also believe Senator Hatch also would find this
acceptable.
Mr. BIDEN. Mr. President, I would like to speak very briefly to the
point.
First of all, I would like to thank both Senators for moving such an
important amendment in this hour, and at a time in which I do not think
people fully understand how significant this amendment is. Our
adversarial system of justice requires that defendants be given
evidence to be used against them so that they can prepare a defense. It
is kind of a basic element of our entire system. At trial that is what
cross-examination is all about, to test the reliability and the basis
of information given by a witness. The right to see and confront the
evidence against oneself is I think a fundamental premise of the due
process clause of the Constitution. Unseen and unheard evidence simply
cannot be defended against. How does one defend themselves? The courts
have recognized that fact time and again.
The Supreme Court has said that secrecy is not congenial to truth
seeking. No better instrument has been devised for arriving at the
truth than to give a person in jeopardy every serious notice of the
case against him and an opportunity to meet him. That was in the Joint
Anti-Fascist Refugee Committee versus McGrath, 1951.
The court also said:
Certain principles have remained relatively immutable in
our jurisprudence. One of these is that where the Government
action seriously injures an individual and the reasonableness
of the action depends on factfinding, the evidence used to
prove the Government's case must be disclosed to the
individual so that he has an opportunity to show that it is
untrue.
That was in Green versus McGlory, 1959.
So to sum it up all, the dangers posed by secret evidence are neither
hypothetical nor are they imagined. Shortly after World War II an
American soldier sought to bring his German bride back to the United
States. She was excluded at the border on the grounds that she was a
security risk. The Supreme Court concluded secret evidence could be
used against her since persons first entering the United States do not
have the same right. However, the public outrage forced the Government
to give her a hearing. And the supplier of the secret evidence turned
out to be a jilted lover and she was admitted.
Secret evidence runs counter to all the principles underlying due
process of law and our judicial system, and it cheapens our system by
placing in doubt the accuracy of its decision.
So I urge my colleagues to reject the secret evidence and to vote to
return this provision to the form in which Senators Dole and Hatch
first introduced it.
I urge my colleagues to support the Specter-Simon amendment.
I yield the floor.
Mr. DOLE. Mr. President, as I understand it, on the Democratic side
there are four nonhabeas corpus amendments remaining including the one
that is pending. So that would be three. On Senator Kennedy's amendment
there is an effort to try to reconcile that. Also, Senator Lieberman is
to be voted on. Simon, immigration; Kennedy, immigration; Lieberman;
and the others are all habeas.
On the Republican side, how many amendments? Senator Abraham; Senator
Brown; Senator Kyl; Senator Smith has been resolved; and two Specter
amendments. But I understand that one of those may have been drafted
and is the pending amendment, and the other one may not be offered.
Mr. BIDEN. Mr. President, that is my understanding. I ask my friend
from Pennsylvania. But amendment No. 1237, secret proceedings, has been
folded into the Specter-Simon amendment.
Is that correct?
Mr. SPECTER. That is correct.
Mr. BIDEN. So the only one is the terrorist organization amendment of
the Senator from Pennsylvania, No. 1239. Is that correct?
Mr. SPECTER. Mr. President, as I had commented earlier, I am
satisfied now that the revision of the bill is about as far as we can
go in providing the addition of the de novo hearing by the court, that
the classifications of terrorist organizations is well-founded
factually, and there again that the evidence which is not subject to
confrontation meets a similar standard with respect to Specter-Simon.
Mr. BIDEN. Mr. President, I understand the Senator will not move his
terrorist organization amendment because he is now satisfied.
Mr. SPECTER. That is correct.
Mr. BIDEN. If I could respond to the leader, on the disposition of
this amendment, in all probability we are prepared to accept the
Abraham amendment, and I would urge Senator Brown to come and offer his
amendment on Ireland now.
Senator Nunn has just come in the Chamber. Hopefully, he can work out
with the Republicans their concerns, and if not I hope we would be
prepared to move that.
So as I look down the Republican list, the only nonhabeas amendments
left--because we have accepted most of them--are the Abraham amendment,
which I believe we can accept, and the Brown amendment, which I hope
Senator Brown will come and offer. There are no other nonhabeas
amendments on that side.
On the Democratic side, the Kennedy immigration deportation
proceeding, I hope we will be able to accept, and hopefully the Nunn
provision will be accepted. And they are the only two nonhabeas
amendments that we have left after we vote on Specter-Simon and
Lieberman. I guess that is it. They are the only two we have--and
Brown. If we can get Senator Brown to come and offer his amendment, it
will be very helpful.
Mr. DOLE. Let me indicate to Senator Brown, wherever he may be, that
we would very much appreciate his coming to the floor and offering his
amendment.
Senator Nunn is here so maybe we can negotiate, if he is willing to
negotiate that amendment, or if not have a debate on that amendment.
I understand Senator Specter and Senator Simon will be ready
momentarily to offer their amendment.
Mr. BIDEN. Mr. President, again to review the bidding, the only
amendment that Senator Specter has remaining is the one that he and
Senator Simon just debated. The Simon amendment listed as S. 1234 also
drops because that has been merged. So Senator Simon has no other
amendment, other than the pending amendment, left. And that would
leave, as I said, again only for debate Brown and possibly Nunn, Biden,
and possibly Kennedy, but I hope we can accept the
[[Page S7763]] Kennedy amendment. I believe we will be able to accept
the Abraham amendment in a moment.
Mr. DOLE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I ask unanimous consent that I may be
permitted to proceed for 5 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________