[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.
  

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