[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.
____________________