[Congressional Record Volume 146, Number 149 (Wednesday, December 6, 2000)]
[Senate]
[Pages S11651-S11654]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               PRESIDENTIAL THREAT PROTECTION ACT OF 2000

  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the Chair 
lay before the Senate a message from the House to accompany H.R. 3048, 
to amend section 879 of title 18, United States Code, to provide 
clearer coverage over threats against former Presidents and members of 
their families, and for other purposes.
  There being no objection, the Presiding Officer laid before the 
Senate the following message from the House of Representatives:

       Resolved, That the House agree to the amendments of the 
     Senate numbered 1 and 3 to the bill (H.R. 3048) entitled ``An 
     Act to amend section 879 of title 18, United States Code, to 
     provide clearer coverage over threats against former 
     Presidents and members of their families, and for other 
     purposes.''
       Resolved, That the House disagree to the amendments of the 
     Senate numbered 2 and 4 to the aforesaid bill.
       Resolved, That the House agree to the amendment of the 
     Senate numbered 5 to the aforesaid bill, with the following:
       In lieu of the matter inserted by the Senate amendment 
     numbered 5, insert the following:

     SEC. 6. FUGITIVE APPREHENSION TASK FORCES.

       (a) In General.--The Attorney General shall, upon 
     consultation with appropriate Department of Justice and 
     Department of the Treasury law enforcement components, 
     establish permanent Fugitive Apprehension Task Forces 
     consisting of Federal, State, and local law enforcement 
     authorities in designated regions of the United States, to be 
     directed and coordinated by the United States Marshals 
     Service, for the purpose of locating and apprehending 
     fugitives.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Attorney General for the United 
     States Marshals Service to carry out the provisions of this 
     section $30,000,000 for the fiscal year 2001, $5,000,000 for 
     fiscal year 2002, and $5,000,000 for fiscal year 2003.
       (c) Other Existing Applicable Law.--Nothing in this section 
     shall be construed to limit any existing authority under any 
     other provision of Federal or State law for law enforcement 
     agencies to locate or apprehend fugitives through task forces 
     or any other means.

     SEC. 7. STUDY AND REPORTS ON ADMINISTRATIVE SUBPOENAS.

       (a) Study on Use of Administrative Subpoenas.--Not later 
     than December 31, 2001, the Attorney General, in consultation 
     with the Secretary of the Treasury, shall complete a study on 
     the use of administrative subpoena power by executive branch 
     agencies or entities and shall report the findings to the 
     Committees on the Judiciary of the Senate and the House of 
     Representatives. Such report shall include--
       (1) a description of the sources of administrative subpoena 
     power and the scope of such subpoena power within executive 
     branch agencies;
       (2) a description of applicable subpoena enforcement 
     mechanisms;
       (3) a description of any notification provisions and any 
     other provisions relating to safeguarding privacy interests;
       (4) a description of the standards governing the issuance 
     of administrative subpoenas; and
       (5) recommendations from the Attorney General regarding 
     necessary steps to ensure that administrative subpoena power 
     is used and enforced consistently and fairly by executive 
     branch agencies.
       (b) Report on Frequency of Use of Administrative 
     Subpoenas.--
       (1) In general.--The Attorney General and the Secretary of 
     the Treasury shall report in January of each year to the 
     Committees on the Judiciary of the Senate and the House of 
     Representatives on the number of administrative subpoenas 
     issued by them under this section and the identity of the 
     agency or component of the Department of Justice or the 
     Department of the Treasury issuing the subpoena and imposing 
     the charges.
       (2) Expiration.--The reporting requirement of this 
     subsection shall terminate in 3 years after the date of 
     enactment of this section.

  Mr. THURMOND. Mr. President, I am pleased that today the Senate is 
considering H.R. 3048, the Presidential Threat Protection Act. This is 
important legislation that will benefit both the Secret Service and the 
Marshals Service, and I hope it becomes law without further delay.
  I have fought this entire year to pass legislation that will help the 
Marshals Service place an increased focus on fighting dangerous 
fugitives. It has been estimated that 50 percent of the crime in 
America is caused by 5 percent of the offenders. It is these hard-core, 
repeat criminals, many of whom are fugitives, that law enforcement must 
address today. As we discussed at a hearing that I chaired earlier this 
year before the Judiciary Criminal Justice Oversight Subcommittee on 
this matter, the number of dangerous fugitives is rising, even as crime 
rates continue to decline. There are over 525,000 felony or other 
serious Federal and State fugitives listed in the database of the 
National Crime Information Center. This number has doubled just since 
1987.
  The act we are considering today helps make these criminals a top 
priority by requiring the Attorney General to establish permanent 
fugitive apprehension task forces to be run by the Marshals Service. 
The task forces will be a combined effort of Federal and State law 
enforcement agencies, each bringing their own expertise to this 
critical task.
  These task forces will operate across district lines in the areas of 
the country where the problem is most acute. They will be operated by 
the Marshals Service as a national effort, rather than through 
particular districts, so that other activities cannot interfere in 
these efforts to apprehend fugitives. Also, the task forces should not 
duplicate existing fugitive work of the Marshals Service or other 
Federal and State law enforcement agencies. Moreover, as was discussed 
during our hearing on this matter, they should work closely with other 
government agencies. Everyone who is involved in or can contribute to 
fugitive apprehension must work together to make these specialized 
fugitive initiatives efficient and effective.
  H.R. 3048 provides important, limited administrative subpoena 
authority for the Secret Service to track down those who threaten the 
President. I worked hard this year to try to create similar 
administrative subpoena authority for the Department of Justice to 
better enable the Marshals Service and others to locate fugitives.
  In the Senate, we passed S. 2516, the Fugitive Apprehension Act, 
which I sponsored, as a free-standing bill to accomplish this task. 
Later, in the Senate, we also passed a more limited version of S. 2516 
as part of H.R. 3048. I thought it was most appropriate that we expand 
administrative subpoena authority as part of one combined bill.
  Unfortunately, the House did not include the administrative subpoena 
authority for fugitives when passing H.R. 3048 again last week. Some 
claims were made about the fugitive subpoena authority late in the 
session that were misinformed or incorrect. We worked closely with our 
counterparts in the House and tried very hard to alleviate any 
legitimate concerns by narrowing the scope of the bill and creating 
even more checks on its use. However, we were not fully able to reach a 
consensus on this provision this year. We must continue our efforts in 
the next Congress.
  Subpoena authority has existed for years to help authorities 
investigate drug offenses, child abuse, and even health care fraud. 
After H.R. 3048 passes, the authority will also exist regarding certain 
threats against the President. As law enforcement continues to use the 
subpoena authority in these areas in a responsible, targeted manner, I 
hope those who have concerns about subpoena authority will come to 
realize that it is a critical law enforcement tool in certain 
circumstances. This should be especially clear when law enforcement 
must track down dangerous fugitives who have warrants out for their 
arrest and are evading justice.
  In closing, I am pleased that this year we have made progress in 
helping law enforcement address dangerous fugitives. The task forces 
are one part of this vital larger bill that will benefit Federal law 
enforcement in their tireless efforts to fight crime.
  Mr. LEAHY. Mr. President, The Presidential Threat Protection Act, 
H.R. 3048, is a high priority for the Secret Service and the Service's 
respected Director, Brian Stafford, and I am pleased that this 
legislation is passing the Senate today, along with legislation that 
Senators Thurmond, Hatch

[[Page S11652]]

and I have crafted to establish task forces, under the direction of the 
U.S. Marshals Service, to apprehend fugitives.
  H.R. 3048 would expand or clarify the Secret Service's authority in 
four ways. First, the bill would amend current law to make clear it is 
a federal crime, which the Secret Service is authorized to investigate, 
to threaten any current or former President or their immediate family, 
even if the person is not currently receiving Secret Service protection 
and including those people who have declined continued protection, such 
as former Presidents, or have not yet received protection, such as 
major Presidential and Vice-Presidential candidates and their families.
  Second, the bill would incorporate in statute certain authority, 
which is currently embodied in a classified Executive Order, PDD 62, 
clarifying that the Secret Service is authorized to coordinate, design, 
and implement security operations for events deemed of national 
importance by the President ``or the President's designee.''
  Third, the bill would establish a ``National Threat Assessment 
Center'' within the Secret Service to provide training to State, local 
and other Federal law enforcement agencies on threat assessments and 
public safety responsibilities.
  Finally, the bill authorizes the Secretary of the Treasury to issue 
administrative subpoenas for investigations of ``imminent'' threats 
made against an individual whom the Service is authorized to protect. 
The Secret Service has requested that the Congress grant this 
administrative subpoena authority to expedite investigation procedures 
particularly in situations where an individual has made threats against 
the President and is en route to exercise those threats.
  ``Administrative subpoena'' is the term generally used to refer to a 
demand for documents or testimony by an investigative entity or 
regulatory agency that is empowered to issue the subpoena independently 
and without the approval of any grand jury, court or other judicial 
entity. I am generally skeptical of administrative subpoena power. 
Administrative subpoenas avoid the strict grand jury secrecy rules and 
the documents provided in response to such subpoenas are, therefore, 
subject to broader dissemination. Moreover, since investigative agents 
usually issue such subpoenas directly, without review by a judicial 
officer or even a prosecutor, fewer ``checks'' are in place to ensure 
the subpoena is issued with good cause and not merely as a fishing 
expedition.
  Current law already provides for administrative subpoena authority in 
certain types of cases. Specifically, the FBI has been granted 
authority granted to issue administrative subpoenas to obtain 
information that may be relevant in investigations of child abuse, 
child sexual exploitation, or Federal health care offenses. See 18 
U.S.C. Sec. Sec.  3486 and 3486A. In child abuse and child exploitation 
cases, the FBI is authorized to use an administrative subpoena to 
require an Internet Service Provider to disclose the name, address, 
local and long distance telephone toll billing records, telephone 
number or other subscriber number or identity, length of service of a 
subscriber to or customer of the service and the types of services used 
by the subscriber or customer. 18 U.S.C. Sec.  3486A(a)(1)(A). Pursuant 
to those provisions in current law, the Attorney General is authorized 
to compel compliance with the administrative subpoena in federal court 
and any failure to obey is punishable as contempt of the court. Current 
law also provides blanket immunity from civil liability to any person 
who complies with the administrative subpoena and produces documents, 
without disclosing that production to the customer to whom the 
documents pertain.
  I have over the years resisted persistent law enforcement requests 
for additional administrative subpoena authority. The House bill grants 
the request of the Secret Service for new, limited administrative 
subpoena authority and simultaneously imposes the following new 
procedural safeguards on both the FBI's current administrative subpoena 
authority and the Secret Service's new authority:
  The new administrative subpoena authority in threat cases may only be 
exercised by the Secretary of the Treasury upon determination of the 
Director of the Secret Service that the threat is ``imminent,'' and the 
Secret Service must notify the Attorney General of the issuance of each 
subpoena. I should note that these requirements will help ensure that 
administrative subpoenas will be used in only the most significant 
Secret Service investigations. In most cases, for which the threshold 
showing of ``imminent'' threat cannot be established, the Secret 
Service will not be authorized to use administrative subpoenas and will 
instead simply go to the local U.S. Attorney's office to get a grand 
jury subpoena, as is current practice and law.
  The bill would allow a person who receives an administrative subpoena 
to contest the subpoena in court by petitioning a federal judge to 
modify or set aside the subpoena and any order of nondisclosure of the 
production.
  The bill would authorize a court to order nondisclosure of the 
administrative subpoena to for up to 90 days (and up to a 90 day 
extension) upon a showing that disclosure would adversely affect the 
investigation in enumerated ways.
  Upon written demand, the agency must return the subpoenaed records or 
things if no case or proceedings arise from the production of records 
``within a reasonable time.''
  The administrative subpoena may not require production in less than 
24 hours after service so agencies may have to wait for at least a day 
before demanding production.

  As originally passed by the House of Representatives, H.R. 3048 
provided that violation of the administrative subpoena is punishable by 
fine or up to five years' imprisonment. The Senate eliminated this 
provision in an amendment that passed the Senate on October 13, 2000 
and I am glad to see that the House has approved that Senate amendment 
in the version of this bill returned by the House and considered by the 
Senate today. This penalty provision in the House version of the bill 
was both unnecessary and excessive since current law already provides 
that failure to comply with the subpoena may be punished as a contempt 
of court--which is either civil or criminal. See 18 U.S.C. Sec.  
3486(c). Under current law, the general term of imprisonment for some 
forms of criminal contempt is up to six months. See, e.g., 18 U.S.C. 
Sec.  402.
  The House has approved the part of the Hatch-Leahy-Thurmond amendment 
to H.R. 3048 requiring the Attorney General to report for the next 
three years to the Judiciary Committees of both the House and Senate on 
the following information about the use of administrative subpoenas, 
including information on the number of such subpoenas issued and by 
which agency. In this way, the Congress will be able to monitor the use 
by federal law enforcement officials within the Justice and Treasury 
Departments of administrative subpoenas.
  Finally, the House has approved the part of the Hatch-Leahy-Thurmond 
amendment to H.R. 3048 requiring the Attorney General to provide a 
report on the use of administrative subpoenas by executive branch 
agencies. I am not aware of any recent effort to compile an overview or 
inventory of the current administrative subpoena powers in the Federal 
government, but understand that the United States Code contains more 
then 700 references to subpoena powers, many subject to various forms 
of administrative delegation. In addition, there are various 
commissions and other independent and quasi-judicial components of the 
federal government, which are also vested with subpoena powers not 
requiring grand jury or federal court involvement. In short, a variety 
of administrative subpoena authorities exist in multiple forms in 
multiple agencies, without uniform rules on scope, enforcement, or 
other due process safeguards. It is time for the Congress to review 
this situation, and this report by the Attorney General will be a good 
start.
  On the fugitive apprehension task forces, the House has approved in 
the version of H.R. 3048, which the Senate considers today, parts of 
the Thurmond-Biden-Leahy amendment that passed the Senate on October 
13, 2000.
  As a former prosecutor, I am well aware that fugitives from justice 
are an important problem and that their capture is an essential 
function of law enforcement. According to the FBI, nearly 550,000 
people are currently fugitives from justice on federal, state, and

[[Page S11653]]

local felony charges combined. This means that there are almost as many 
fugitive felons as there are citizens residing in my home state of 
Vermont.
  The fact that we have more than one half million fugitives from 
justice, a significant portion of whom are convicted felons in 
violation of probation or parole, who have been able to flaunt court 
order and avoid arrest, breeds disrespect for our laws and poses 
undeniable risks to the safety of our citizens.
  Our Federal law enforcement agencies should be commended for the job 
they have been doing to date on capturing Federal fugitives and helping 
the States and local communities bring their fugitives to justice. The 
U.S. Marshals Service, our oldest law enforcement agency, has arrested 
over 120,000 Federal, State and local fugitives in the past four years, 
including more Federal fugitives than all the other Federal agencies 
combined. In prior years, the Marshals Service spearheaded special 
fugitive apprehension task forces, called FIST Operations, that 
targeted fugitives in particular areas and was singularly successful in 
arresting over 34,000 fugitive felons.
  Similarly, the FBI has established twenty-four Safe Streets Task 
Forces exclusively focused on apprehending fugitives in cities around 
the country. Over the period of 1995 to 1999, the FBI's efforts have 
resulted in the arrest of a total of 65,359 state fugitives. 
Nevertheless, the number of outstanding fugitives is too large.
  The House has approved in the version of H.R. 3048, which the Senate 
considers today the Hatch-Leahy-Thurmond amendment authorizing the 
Attorney General to establish fugitive task forces. This amendment 
would authorize $40,000,000 over 3 years for the Attorney General to 
establish multi-agency task forces, which will be coordinated by the 
Director of the Marshals Service, in consultation with the Secretary of 
the Treasury and the States, so that the Secret Service, BATF, the FBI 
and the States are able to participate in the Task Forces to find their 
fugitives.
  The Hatch-Leahy-Thurmond amendment to H.R. 3048 will help law 
enforcement with increased resources for regional fugitive apprehension 
task forces to bring to justice both federal and state fugitives who, 
by their conduct, have demonstrated a lack of respect for our nation's 
criminal justice system.
  Regarding the Secret Service protective function privilege, while 
passage of this legislation will assist the Secret Service in 
fulfilling its critical mission, this Congress is unfortunately coming 
to a close without addressing another significant challenge to the 
Secret Service's ability to fulfill its vital mission of protecting the 
life and safety of the President and other important persons. I refer 
to the misguided and unfortunately successful litigation of Special 
Counsel Kenneth Starr to compel Secret Service agents to answer 
questions about what they may have observed or overheard while 
protecting the life of the President.
  As a result of Mr. Starr's zealous efforts, the courts refused to 
recognize a protective function privilege and required that at least 
seven Secret Service officers appear before a federal grand jury to 
respond to questions regarding President Clinton, and others. In re 
Grand Jury Proceedings, 1998 W.L. 272884 (May 22, 1998 D.C.), affirmed 
1998 WL 370584 (July 7, 1998 D.C. Cir)(per curiam). These recent court 
decisions, which refused to recognize a protective function privilege, 
could have a devastating impact upon the Secret Service's ability to 
provide effective protection. The Special Counsel and the courts 
ignored the voices of experience--former Presidents, Secret Service 
Directors, and others--who warned of the potentially deadly 
consequences. The courts disregarded the lessons of history. We cannot 
afford to be so cavalier; the stakes are just too high.

  In order to address this problem, I introduced the Secret Service 
Protective Privilege Act, S. 1360, on July 13, 1999, to establish a 
Secret Service protective function privilege so Secret Service agents 
will not be put in the position of revealing private information about 
protected officials as Special Prosecutor Kenneth Starr compelled the 
Secret Service to do with respect to President Clinton. Unfortunately, 
the Senate Judiciary Committee took no action on this legislation in 
this Congress.
  Few national interests are more compelling than protecting the life 
of the President of the United States. The Supreme Court has said that 
the Nation has ``an overwhelming interest in protecting the safety of 
its Chief Executive and in allowing him to perform his duties without 
interference from threats of physical violence.'' Watts v. United 
States, 394 U.S. 705, 707 (1969). What is at stake is not merely the 
safety of one person: it is the ability of the Executive Branch to 
function in an effective and orderly fashion, and the capacity of the 
United States to respond to threats and crises. Think of the shock 
waves that rocked the world in November 1963 when President Kennedy was 
assassinated. The assassination of a President has international 
repercussions and threatens the security and future of the entire 
Nation.
  The threat to our national security and to our democracy extends 
beyond the life of the President to those in direct line of the Office 
of the President--the Vice President, the President-elect, and the Vice 
President elect. By Act of Congress, these officials are required to 
accept the protection of the Secret Service--they may not turn it down. 
This statutory mandate reflects the critical importance that Congress 
has attached to the physical safety of these officials.
  Congress has also charged the Secret Service with responsibility for 
protecting visiting heads of foreign states and foreign governments. 
The assassination of a foreign head of state on American soil could be 
catastrophic from a foreign relations standpoint and could seriously 
threaten national security.
  The bill I introduced, S. 1360, would enhance the Secret Service's 
ability to protect these officials, and the nation, from the risk of 
assassination. It would do this by facilitating the relationship of 
trust between these officials and their Secret Service protectors that 
is essential to the Secret Service's protective strategy. Agents and 
officers surround the protectee with an all-encompassing zone of 
protection on a 24-hour-a-day basis. In the face of danger, they will 
shield the protectee's body with their own bodies and move him to a 
secure location.
  That is how the Secret Service averted a national tragedy on March 
30, 1981, when John Hinckley attempted to assassinate President Reagan. 
Within seconds of the first shot being fired, Secret Service personnel 
had shielded the President's body and maneuvered him into the waiting 
limousine. One agent in particular, Agent Tim McCarthy, positioned his 
body to intercept a bullet intended for the President. If Agent 
McCarthy had been even a few feet farther from the President, history 
might have gone very differently.
  For the Secret Service to maintain this sort of close, unremitting 
proximity to the President and other protectees, it must have their 
complete, unhesitating trust and confidence. Secret Service personnel 
must be able to remain at the President's side even during confidential 
and sensitive conversations, when they may overhear military secrets, 
diplomatic exchanges, and family and private matters. If our Presidents 
do not have complete trust in the Secret Service personnel who protect 
them, they could try to push away the Secret Service's ``protective 
envelope'' or undermine it to the point where it could no longer be 
fully effective.
  This is more than a theoretical possibility. Consider what former 
President Bush wrote in April, 1998, after hearing of the independent 
counsel's efforts to compel Secret Service testimony:

       The bottom line is I hope that [Secret Service] agents will 
     be exempted from testifying before the Grand Jury. What's at 
     stake here it the protection of the life of the President and 
     his family and the confidence and trust that a President must 
     have in the [Secret Service]. If a President feels that 
     Secret Service agents can be called to testify about what 
     they might have seen or heard then it is likely that the 
     President will be uncomfortable having the agents near by. I 
     allowed the agents to have proximity first because they had 
     my full confidence and secondly because I knew them to be 
     totally discreet and honorable. . . . I can assure you that 
     had I felt they would be compelled to testify as to what they 
     had seen or heard, no matter what the subject, I would not 
     have felt comfortable having them close in. . . . I feel very

[[Page S11654]]

     strongly that the [Secret Service] agents should not be made 
     to appear in court to discuss that which they might or might 
     not have seen or heard. What's at stake here is the 
     confidence of the President in the discretion of the [Secret 
     Service]. If that confidence evaporates the agents, denied 
     proximity, cannot properly protect the President.

  As President Bush's letter makes plain, requiring Secret Service 
agents to betray the confidence of the people whose lives they protect 
could seriously jeopardize the ability of the Service to perform its 
crucial national security function.
  The possibility that Secret Service personnel might be compelled to 
testify about their protectees could have a particularly devastating 
affect on the Service's ability to protect foreign dignitaries. The 
mere fact that this issue has surfaced is likely to make foreign 
governments less willing to accommodate Secret Service both with 
respect to the protection of the President and Vice President on 
foreign trips, and the protection of foreign heads of state traveling 
in the United States.
  The security of our chief executive officers and visiting foreign 
heads of state should be a matter that transcends all partisan politics 
and I regret that this legislation does not do more to help the Secret 
Service by providing a protective function privilege.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the Senate 
recede from its amendments numbered 2 and 4 and agree to the House 
amendment to the Senate amendment numbered 5.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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