[Congressional Record Volume 146, Number 136 (Thursday, October 26, 2000)]
[Senate]
[Pages S11117-S11120]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE COUNTERTERRORISM ACT OF 2000

  Mr. LEAHY. Mr. President, Senator Kyl spoke on the floor yesterday 
about the Counterterrorism Act of 2000, S. 3205, which he introduced 
two weeks ago on October 12, 2000. I had planned to speak to him 
directly about this legislation when I got into the office yesterday, 
but before I had the opportunity to speak to him, even by telephone, my 
colleague instead chose to discuss this matter on the Senate floor.
  I have worked with Senator Kyl to pass a number of matters of 
importance to him in past Congresses and in this one. Most recently, 
for example, the Senate passed on November 19, 1999, S. 692, the 
Internet Gambling Prohibition Act, and on September 28, 2000, S. 704, 
the Federal Prisoner Health Care Copayment Act. Moreover, in the past 
few months, we have worked together to get four more judges in Arizona. 
I was happy to help Senator Kyl clear each of those matters.
  Unlike the secret holds that often stop good bills from passing often 
for no good reason, I have had no secret hold on S. 3205. On the 
contrary, when asked, I have made no secret about the concerns I had 
with this legislation.
  An earlier version of this legislation, which Senator Kyl tried to 
move as part of the Intelligence Authorization bill, S. 2507, prompted 
a firestorm of controversy from civil liberties and human rights 
organizations, as well as the Department of Justice. I will include 
letters from the Department of Justice, the Center for Democracy and 
Technology, the Center for National Security Studies and the American 
Civil Liberties Union for the Record at the end of my statement. I 
shared many of the concerns of those organizations and the Justice 
Department.
  I learned late last week that Senator Kyl was seeking to clear S. 
3207 for passage by the Senate, even though it had been introduced only 
the week before. I do not believe the Senate should move precipitously 
to pass a bill that has garnered so much serious opposition before 
having the opportunity to review it in detail and ensure that earlier 
pitfalls had been addressed. Let me say that having reviewed the bill 
introduced by Senator Kyl, it is apparent that he has made efforts to 
address some of those serious and legitimate concerns.
  Senator Kyl has suggested that if the Justice Department was 
satisfied with his legislation, I or my staff had earlier indicated 
that I would be satisfied. I respect the expertise of the Department of 
Justice and the many fine lawyers and public servants who work there 
and, where appropriate, seek out their views, as do many Members. That 
does not mean that I always share the views of the Department of 
Justice or follow the Department's preferred course and recommendations 
without exercising my own independent judgment. I would never represent 
that if the Justice Department were satisfied with his bill, I would 
automatically defer to their view. Furthermore, my staff has advised me 
that no such representation was ever made.
  That being said, I should note that the Department of Justice has 
advised me about inaccurate and incorrect statements in Senator Kyl's 
bill, S. 3205, which are among the items that should be fixed before 
the Senate takes up and passes this measure.
  I have shared those items and other suggestions to improve this 
legislation with the cosponsor of the bill, Senator Feinstein, whose 
staff requested our comments earlier this week. My staff provided 
comments to Senator Feinstein, and understood that at least in the view 
of that cosponsor of this bill, some of those comments were well-taken 
and would be discussed with Senator Kyl and his staff. Indeed, my staff 
received their first telephone call about S. 3205 from Senator Kyl's 
staff just yesterday morning, returned the call without finding Senator 
Kyl's

[[Page S11118]]

staff available, and hoped to have constructive conversations to 
resolve our remaining differences. Yet, before these conversations 
could even begin, Senator Kyl chose to conduct our discussions on the 
floor of the Senate. There may be more productive matters on which the 
Senate should focus its attention, but I respect my colleague's choice 
of forum and will lay out here the continuing concerns I have with his 
legislation.
  First, the bill contains a sense of the Congress concerning the 
tragic attack on the U.S.S. Cole that refers to out-dated numbers of 
sailors killed and injured. I believe that each of the 17 sailors 
killed and 39 sailors injured deserve recognition and that the full 
scope of the attack should be properly reflected in this Senate bill. I 
have urged the sponsors of the bill to correct this part of the bill. I 
note that last week the Senate passed at least two resolutions on this 
matter, expressing the outrage we all feel about the bombing attack on 
that Navy ship.
  Second, this sense of the Congress urges the United States Government 
to ``take immediate actions to investigate rapidly the unprovoked 
attack on the'' U.S.S. Cole, without acknowledging the fact that such 
immediate action has been taken. The Navy began immediate investigative 
steps shortly after the attack occurred, and the FBI established a 
presence on the ground and began investigating within 24 hours. The 
Director himself went to Yemen to guide this investigation. That 
investigation is active and ongoing, and no Senate bill should reflect 
differently, as this one does. We should be commending the 
Administration for the swift and immediate actions taken to this attack 
and the strong statements made by the President making clear that no 
stone will be left unturned to find the criminals who planned this 
bloody attack.
  Third, as I previously indicated, the Department of Justice has 
suggested several corrections to the ``Findings'' section of this bill. 
For example, the bill suggests there are ``38 organizations'' 
designated as Foreign Terrorist Organizations (FTOs) when there are 
currently 29. The bill also states that ``current practice is to update 
the list of FTOs every two years'' when in fact the statute requires 
redesignation of FTOs every two years. The bill also states that 
current controls on the transfer and possession of biological pathogens 
were ``designed to prevent accidents, not theft,'' which according to 
the Justice Department is simply not accurate.
  Fourth, the bill requires reports on issues within the jurisdiction 
of the Senate Judiciary Committee without any direction that those 
reports be submitted to that Committee. For example, section 9 of the 
bill would require the FBI to submit to the Select Committees on 
Intelligence of the Senate and the House a feasibility report on 
establishing a new capability within the FBI for the dissemination of 
law enforcement information to the Intelligence community. I have 
suggested that this report also be required to be submitted to the 
Judiciary Committees. As the Chairman of the Senate Judiciary 
Subcommittee on Technology, Terrorism and Government Information, I 
would have expected that Senator Kyl would support this suggested 
change.
  Fifth, the bill would require reports, with recommendations for 
appropriate legislative or regulation changes, by the Attorney General 
and the Secretary of Health and Human Services on safeguarding 
biological pathogens at research labs and other facilities in the 
United States. No definition of ``biological pathogen'' is included in 
the bill and the scope could therefore cover a vast array of biological 
materials. I have suggested that the focus of these requested reports 
could be better directed by more carefully defining this term.
  Finally, the bill would require reimbursement for professional 
liability insurance for law enforcement officers performing official 
counterterrorism duties and for intelligence officials performing such 
duties outside the United States. I have asked for an explanation for 
this provision. I have scoured the record in vain for explanatory 
statements by the sponsors of this bill for this provision. It is 
unclear to me why law enforcement officers conducting investigations 
here in the United States need such insurance, let alone intelligence 
officers acting overseas. There may be a good reason why these officers 
need this special protection, beyond the limited immunity they already 
have and beyond what other law enforcement and intelligence officers 
are granted. I need to know the reason for this special protection 
before any of us are able to evaluate the merits of this proposal.
  I stand ready, as I always have, to work with the sponsors of S. 3205 
to improve their bill.
  I ask unanimous consent to print in the Record the two letters to 
which I referred.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                               September 25, 2000.
     Hon. Richard C. Shelby,
     Chairman, Senate Select Committee on Intelligence, Hart 
         Senate Office Bldg., Washington, DC,
     Hon. Richard H. Bryan,
     Vice Chairman, Senate Select Committee on Intelligence, Hart 
         Senate Office Bldg, Washington, DC.
       Dear Mr. Chairman and Mr. Vice Chairman: We are writing to 
     express our opposition to the ``Counterterrorism Act of 
     2000,'' which we understand Senators Kyl and Feinstein are 
     seeking to add to the intelligence authorization bill. At 
     least three provisions of the Act pose grave threats to 
     constitutional rights, and others raise serious questions as 
     well.


                               Section 10

       Section 10 of the Counterterrorism Act would amend the 
     federal wiretap statute (``Title III'') to allow law 
     enforcement agencies conducting wiretaps within the United 
     States to share information obtained from such surveillance 
     with the intelligence agencies. The provision breaches the 
     well-established and constitutionally vital line between law 
     enforcement and intelligence activities. The provision has no 
     meaningful limitations. It allows the CIA and other 
     intelligence agencies to acquire, index, use and disseminate 
     information collected within the US about American citizens. 
     It is not subject to any meaningful judicial controls.
       Efforts have been underway for a number of years to improve 
     the sharing of information between law enforcement and 
     intelligence agencies, particularly in areas concerning 
     terrorism and trans-national criminal activity. Significant 
     improvements have been achieved. However, it has been 
     recognized consistently in all these efforts that the 
     fundamental distinction between intelligence and law 
     enforcement serves important values and must be maintained.
       Paramount among the reasons why we distinguish between law 
     enforcement and intelligence agencies, and confine them to 
     their separate spheres, is to protect civil and 
     constitutional rights. The intelligence agencies operate in 
     secret without many of the checks and balances, the judicial 
     review and the public accountability that our Constitution 
     demands for most exercises of government power. The 
     secretive data gathering, storage and retention practices 
     of the intelligence agencies are appropriate only when 
     conducted overseas for national defense and foreign policy 
     purposes and only when directed against people who are not 
     US citizens or permanent residents.
       Therefore, we have always maintained strict rules against 
     intelligence agency activities in the US or directed against 
     US citizens and residents. From the outset, the National 
     Security Act of 1947 has specifically provided that the 
     Central Intelligence Agency shall ``have no police, subpoena 
     or law enforcement powers or internal security functions.'' 
     This was intended to prevent the CIA from collecting 
     information on Americans. Likewise, the National Security 
     Agency has very strict rules about the collection or 
     dissemination of information concerning Americans.
       This prohibition against intelligence agencies collecting 
     and disseminating information about people in the US would be 
     rendered meaningless if the FBI could give personally 
     identifiable information about US citizens to the CIA or NSA, 
     which then could retain the information in files retrievable 
     by name. Yet that is what the proposed amendment does. The 
     proposed amendment contains no meaningful limitations. It 
     does not say that the information to be shared can relate 
     only to non-US persons. It does not say that the information 
     could be kept by the receiving intelligence agencies only in 
     non-personally retrievable form (a restriction that 
     increasingly loses meaning anyhow as agencies develop the 
     capability to search the full next of their files).
       Moreover, this breach would involve one of the most 
     intrusive of law enforcement techniques--electronic 
     interception of telephone conversations, e-mail and other 
     electronic communications. In recognition of the especially 
     intrusive nature of wiretapping, section 2.4 of E.O. 12333 
     expressly states that the CIA is not authorized to conduct 
     electronic surveillance within the United States. All Title 
     III interceptions take place in the US. The overwhelming 
     majority of targets of law enforcement wiretapping are US 
     persons. In this information age, when so much sensitive 
     personal information is exchanged electronically, the 
     American public is increasingly concerned about the breadth 
     and intrusiveness of government wiretapping.

[[Page S11119]]

       The problems posed by the proposed Section 10 are 
     compounded by the secrecy with which the intelligence 
     agencies operate. There is little likelihood that a person 
     who was the subject of a file at the CIA would ever learn 
     about it, and even less likelihood that they would ever learn 
     that information in the file was obtained by a law 
     enforcement wiretap. So there would be little opportunity for 
     uncovering abuses and little recourse to the judiciary for 
     misuse of the information.
       The provision stands in fundamental contradiction to the 
     specificity and minimization requirements of Title III, which 
     are central to the privacy protection scheme of that law. The 
     minimization rule requires every wiretap to be ``conducted in 
     such a way as to minimize the interception of communications 
     not otherwise subject to interception'' under Title III. 
     18 U.S.C. 2518(5). Every order under Title III must 
     include ``a particular description of the type of 
     communication sought to be intercepted and a statement of 
     the particular offense to which it relates,'' 18 U.S.C. 
     2518(4)(c). Together, these provisions make it illegal to 
     intercept under Title III communications that do not 
     relate to a criminal offense. Yet the proposed amendment 
     would seem to mean either that officials conducting Title 
     III wiretaps would be intercepting communications 
     involving foreign intelligence that is not relevant to 
     crimes in the U.S. or the CIA would be compiling 
     information about crimes, including crimes inside the 
     U.S., in violation of the National Security Act.


                               section 9

       Section 9 of the Counterterrorism Act of 2000 also 
     threatens to erase the dividing line between law enforcement 
     and intelligence agencies that protects individuals in the 
     U.S. against secret domestic intelligence activity. Section 9 
     would require the Director of the FBI to submit to Congress a 
     report on the feasibility of establishing within the Bureau a 
     comprehensive intelligence reporting function having the 
     responsibility for disseminating to the intelligence agencies 
     information collected and assembled by the FBI on 
     international terrorism and other national security matters.
       But Section 9 calls for far more than an objective study. 
     It requires the FBI to submit a proposal for such an 
     information sharing function, including a budget, an 
     implementation proposal and a discussion of the legal 
     restrictions associated with disseminating law enforcement 
     information to the intelligence agencies. This is putting the 
     cart before the horse. With the emphasis in recent years on 
     cooperation between the FBI and the CIA, the factual 
     predicate has not been established for even concluding that 
     the FBI is not already properly sharing intelligence 
     information. Further, only recently the FBI adopted a 
     strategy that stresses intelligence collection and analysis--
     it would be prudent first to examine the effectiveness and 
     civil liberties implications of that strategy before 
     directing the FBI to design a new intelligence sharing 
     mechanism. Then it would be prudent to draw distinctions 
     among the various types of information that the FBI is 
     collecting, to ensure that information sharing does not 
     infringe on the rights of Americans and does not involve the 
     intelligence agencies in domestic law enforcement matters. 
     All of these nuances are missing from Section 9. All of them 
     could be accomplished by the relevant Congressional 
     committees in a neutral and objective fashion without the 
     need for this amendment.
       The provision does not draw a distinction between 
     information collected by the FBI under its 
     counterintelligence authority and information collected by 
     the Bureau in criminal matters. While there are overlaps 
     between foreign intelligence and criminal investigations, 
     especially in international terrorism matters, there are 
     nonetheless important and long-standing rules intended to 
     enforce the distinction. Since the period of COINTELPRO and 
     the Church Committee, it has been recognized that the 
     rights of American are better protected (and the FBI may 
     be more effective) when international terrorism and 
     national security investigations are conducted under the 
     rules for criminal investigations. Section 9 is flawed for 
     failing to recognize this distinction and seeming to 
     encourage its obliteration.


                               Section 11

       Section 11 of the bill is essentially a direction to the 
     Executive Branch to be more aggressive in investigating 
     ``terrorist fundraising'' of an undefined nature. Fundraising 
     to support violent activities is properly a crime. But in the 
     1996 Antiterrorism and Effective Death Penalty Act, Congress 
     also made it a crime to support the legal, peaceful political 
     activities of groups that the Executive Branch designates as 
     terrorist organizations. The 1996 Act was supposed to allow 
     the government to respond to fundraising in the US on behalf 
     of terrorist groups. At the time, opponents of the law argued 
     that there was no evidence that extensive fundraising of this 
     nature occurred and worried that the law would be used as an 
     excuse to launch intimidating investigations into the 
     political activities of Arab immigrants and other ethnic 
     communities. We opposed the 1996 Act on the ground that it 
     unconstitutionally criminalized support activities that were 
     protected under the First Amendment. The proposed amendment 
     to the intelligence authorization bill reaches even more 
     broadly than the 1996 Act.
       Section 11 of the bill essentially tells the Executive 
     Branch to go out and punish fundraising conduct where little 
     or none has been found. The recent case of Wen Ho Lee 
     highlights the dangers of Congress telling the Executive 
     Branch to be more aggressive in investigating and prosecuting 
     a particular crime. The last time something like this 
     happened was in the 1980s, when some in Congress urged the 
     FBI to be more aggressive in investigating what they believed 
     to be a Communist-supported conspiracy in the US to support 
     terrorism in El Salvador. The resulting ``CISPES'' 
     investigation intruded on the First Amendment rights of 
     thousands of Americans peacefully opposed to US policy in 
     Central America, turned up no evidence of wrongdoing, and 
     proved a major embarrassment for the FBI. This danger is 
     exacerbated by the proposed amendment, which encourages the 
     Executive Branch to use Civil and administrative remedies, 
     including the tax laws, that are not subject to the 
     protections of criminal due process. It is further 
     exacerbated since the amendment encourages the commingling of 
     criminal information and intelligence information collected 
     with the most intrusive of techniques and such secrecy that 
     the targets of any adverse action may have a hard time 
     defending themselves.
       We also have concerns with other sections of the proposed 
     amendment: (1) Section 6, concerning the guidelines on 
     recruitment of CIA informants, implicitly questions the 
     historical lessons and value judgments reflected in the 
     guidelines and is clearly intended to be seen as a signal 
     from Congress that the CIA should be freer in recruiting 
     informants who are human rights abusers. This practice has 
     embarrassed our country in the past and would embarrass us 
     again if the practice were renewed, undercutting American 
     foreign policy support for the rule of law and our efforts 
     to discourage and resolve violence in emerging democracies 
     and other transitional societies. (2) Section 12 would 
     require IHIS to take ``actions'' to make standards for the 
     physical protection and security of biological pathogens 
     ``as rigorous as the current standards'' for critical 
     nuclear materials.'' The questions posed by the threat of 
     biological weapons require a far more carefully designed 
     policy than a blanket direction to establish for 
     ``biological pathogens'' the same protections that apply 
     to critical nuclear materials. Take the case of West Nile 
     virus, or the AIDS virus. Are these ``biological 
     pathogens?'' Does section 12 mean that all medical 
     research and all medical facilities handling research and 
     treatment of the West Nile or AIDS viruses must institute 
     the security clearance checks, polygraphs, and pre-
     publication review requirements (all of which raise 
     serious constitutional due process, privacy and civil 
     liberties concerns) that apply to workers at nuclear 
     weapons facilities?
       For these reasons, we urge you to oppose the addition of 
     the Counterterrorism Act to the intelligence authorization 
     bill.
           Respectfully,

                                              Laura W. Murphy,

                                                         Director,
       American Civil Liberties Union, Washington National Office.

                                             James X. Dempsey,

                                             Senior Staff Counsel,
                              Center for Democracy and Technology.

                                                  Kate Martin,

                                               Executive Director,
     Center for National Security Studies.
                                  ____

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                               Washington, DC, September 28, 2000.
     Hon. Richard Shelby,
     Chairman, Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: This letter expresses the views of the 
     Justice Department on the proposed counterterrorism amendment 
     (the ``Counterterrorism Act of 2000'') to S. 2507, the 
     ``Intelligence Authorization Act for Fiscal Year 2001.'' The 
     Department opposes the amendment.
       Section 10 would amend 18 U.S.C. Sec. 2517 to permit the 
     sharing of foreign intelligence or counterintelligence 
     information, collected by investigative or law enforcement 
     officers under title III, with the intelligence community. We 
     oppose this provision, Although we recognize the arguments 
     for allowing title III information to be shared as a 
     permissive matter, this would be a major change to existing 
     law and could have significant implications for prosecutions 
     and the discovery process in litigation. Any consideration of 
     the sharing of law enforcement information with the 
     intelligence community must accommodate legal constraints 
     such as Criminal Rule 6(e) and the need to protect equities 
     relating to ongoing criminal investigations. While we 
     understand the concerns of the Commission on Terrorism, we 
     believe that law enforcement agencies have authority under 
     current law to share title III information regarding 
     terrorism with intelligence agencies when the information is 
     of overriding importance to the national security.
       Section 10 also raises significant issues regarding the 
     sharing with intelligence agencies of information collected 
     about United States persons. Such a change to title III 
     should not be made lightly, without full discussion of the 
     issues and implications.
       Section 9 of the amendment presumptively would give the FBI 
     60 days to resolve these and other concerns in a report to 
     Congress on the feasibility of establishing a dissemination 
     center within the FBI for information collected and assembled 
     by the FBI on international terrorism and other national 
     security matters. In our view, the issues involved

[[Page S11120]]

     in the dissemination of this information do not avail 
     themselves of resolution in this very short time frame. In 
     addition, we note that law enforcement officials 
     conducting operations that result in the collection or 
     assembly of this kind of information often will not be in 
     a position to discern whether the information they have 
     gathered actually qualifies as pertinent to foreign 
     intelligence or counterintelligence. Accordingly, to the 
     extent that disclosure becomes mandatory, we anticipate 
     that a substantial and costly effort would be necessary to 
     create the necessary screening process.
       Section 11 of the amendment would require the creation of a 
     joint task force to disrupt the fundraising activities of 
     international terrorist organizations. We believe that this 
     type of rigid, statutory mandate would interfere with the 
     need for flexibility in tailoring enforcement strategies and 
     mechanisms to fit the enforcement needs of the particular 
     moment.
       Section 12 of the amendment would require the Attorney 
     General to submit a report on the means of improving controls 
     of biological pathogens and the equipment necessary to 
     produce biological weapons. Subsection 12(a)(2)(A) would 
     require that the report include a list of equipment critical 
     to the development, production, and delivery of biological 
     weapons. We question the utility of such a list because it is 
     our understanding that much of this equipment is dual-use and 
     widely used for peaceful purposes. Section 12(b) directs the 
     Secretary of Health and Human Services to undertake certain 
     actions relating to protection and security of biological 
     pathogens described in subsection (a). In keeping with the 
     concerns regarding Executive branch authority, as discussed 
     above, and the complexity and scope of this matter, the 
     Administration believes that any authority should be vested 
     in the President.
       Moreover, section 12(a)(2)(B) would purport to require that 
     the Attorney General submit a report to Congress on 
     biological weapons that ``shall include'' the following:
       (B) Recommendations for legislative language to make 
     illegal the possession of the biological pathogens;
       (C) Recommendations for legislative language to control the 
     domestic sale and transfer of the equipment so identified 
     under subparagraph A;
       (D) Recommendations for legislative language to require the 
     tagging or other means of marking of the equipment identified 
     under subsection A.
       We believe that these provisions are invalid under the 
     Recommendations Clause, which provides that the President 
     ``shall from time to time . . . recommend to [Congress] . . . 
     such Measures as he shall judge necessary and expedient.'' 
     U.S. Const. art. II, Sec. 3. Legislation requiring the 
     President to provide the Congress with policy recommendations 
     or draft legislation infringes on powers reserved to the 
     President by the Recommendations Clause, including the power 
     to decline to offer any recommendation if, in the President's 
     judgment, no recommendation is necessary or expedient. 
     Legislation that requires the President's subordinates to 
     provide Congress with policy recommendations or draft 
     legislation interferes with the President's efforts to 
     formulate and present his own recommendations and proposals 
     and to control the policy agenda of his Administration.
       The constitutional concerns raised by the proposed 
     amendment would be addressed by revising these provisions in 
     either of the following ways: (1) provide that the reports 
     the Attorney General submits may, instead of shall, include 
     recommendations or (2) provide that ``the Attorney General 
     shall, to the extent that she deems it appropriate,'' submit 
     such recommendations to Congress.
       More generally, we understand that this amendment may 
     bypass the hearing and referral process and be appended 
     immediately to S. 2507, the Intelligence Authorization bill, 
     now headed for consideration on the floor of the Senate. 
     Given the complexity of the issues, we would welcome a more 
     considered dialogue between the branches of Government.
       Thank you for the opportunity to present our views. The 
     Office of Management and Budget has advised us that from the 
     perspective of the Administration's program, there is no 
     objection to submission of this letter.
           Sincerely,
                                                     Robert Raben,
     Assistant Attorney General.

                          ____________________