[Congressional Record Volume 147, Number 134 (Tuesday, October 9, 2001)]
[Senate]
[Pages S10365-S10377]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           THE UNITING AND STRENGTHENING AMERICA ACT OF 2001

  Mr. LEAHY. Madam President, last Thursday, October 4, I was pleased 
to introduce with the Majority Leader, Senator Daschle, and the 
Chairmen of the Banking and Intelligence Committees, as well as the 
Minority Leader, Senator Lott, and Senator Hatch and Senator Shelby, 
the United and Strengthening America, or USA Act. This is not the bill 
that I, or any of the sponsors, would have written if compromise was 
unnecessary. Nor is the bill the administration initially proposed and 
the Attorney General delivered to us on September 19, at a meeting in 
the Capitol.
  We were able to refine and supplement the administration's original 
proposal in a number of ways. The administration accepted a number of 
the practical steps I had originally proposed on September 19 to 
improve our security on the Northern Border, assist our Federal, State 
and local law enforcement officers and provide compensation to the 
victims of terrorist acts and to the public safety officers who gave 
their lives to protect ours. This USA Act also provides important 
checks on the proposed expansion of government powers that were not 
contained in the Attorney General's initial proposal.
  In negotiations with the administration, I have done my best to 
strike a

[[Page S10366]]

reasonable balance between the need to address the threat of terrorism, 
which we all keenly feel at the present time, and the need to protect 
our constitutional freedoms. Despite my misgivings, I have acquiesced 
in some of the administration's proposals because it is important to 
preserve national unity in this time of crisis and to move the 
legislative process forward.
  The result of our labors still leaves room for improvement. Even 
after the Senate passes judgment on this bill, the debate will not be 
finished. We will have to consider the important judgments made by the 
House Judiciary Committee in the version of the legislation making its 
way through the House. Moreover, I predict that some of these 
provisions will face difficult tests in the courts and that we in 
Congress will have to revisit these issues at some time in the future 
when, as we all devoutly hope, the present crisis has passed. I also 
intend as Chairman of the Judiciary Committee to exercise careful 
oversight of how the Department of Justice, the FBI and other executive 
branch agencies are using the newly-expanded powers that this bill will 
give them.
  The negotiations on this bill have not been easy. Within days of the 
September 11 attacks, I instructed my staff to begin work on 
legislation to address security needs on the Northern Border, the needs 
of victims and State and local law enforcement, and criminal law 
improvements. A week after the attack, on September 19, the Attorney 
General and I exchanged the outlines of the legislative proposals and 
pledged to work together towards our shared goal of putting tools in 
the hands of law enforcement that would help prevent another terrorist 
attack.
  Let me be clear: No one can guarantee that Americans will be free 
from the threat of future terrorist attacks, and to suggest that this 
legislation--or any legislation--would or could provide such a 
guarantee would be a false promise. I will not engage in such false 
promises, and those in the administration who make such assertions do a 
disservice to the American people.
  I have also heard claims that if certain powers had been previously 
authorized by the Congress, we could somehow have prevented the 
September 11 attacks. Given this rhetoric it may be instructive to 
review efforts that were made a few years ago in the Senate to provide 
law enforcement with greater tools to conduct surveillance of 
terrorists and terrorist organizations. In May 1995, Senator Lieberman 
offered an amendment to the bill that became the Antiterrorism and 
Effective Death Penalty Act of 1996 that would have expanded the 
Government's authority to conduct emergency wiretaps to cases of 
domestic or international terrorism and added a definition of domestic 
terrorism to include violent or illegal acts apparently intended to 
``intimidate, or coerce the civilian population.'' The consensus, 
bipartisan bill that we consider today contains a very similar 
definition of domestic terrorism.
  In 1995, however, a motion to table Senator Lieberman's amendment was 
agreed to in a largely party-line vote, with Republicans voting against 
the measure. In fact, then Senator Ashcroft voted to table that 
amendment, and my good friend from Utah, Senator Hatch, spoke against 
it and opined, ``I do not think we should expand the wiretap laws any 
further.'' I recall Senator Hatch's concern then that ``We must ensure 
that in our response to recent terrorist acts, we do not destroy the 
freedoms that we cherish.'' I have worked very hard to maintain that 
balance in negotiations concerning the current legislation.
  Following the exchange on September 19 of our legislative proposals, 
we have worked over the last two weeks around the clock with the 
administration to put together the best legislative package we could. I 
share the administration's goal of providing promptly the legal tools 
necessary to deal with the current terrorist threat. While some have 
complained publicly that the negotiations have gone on for too long, 
the issues involved are of great importance, and we will have to live 
with the laws we enact for a long time to come. Demands for action are 
irresponsible when the road-map is pointed in the wrong direction. As 
Ben Franklin once noted, ``if we surrender our liberty in the name of 
security, we shall have neither.''
  Moreover, our ability to make rapid progress was impeded because the 
negotiations with the administration did not progress in a straight 
line. On several key issues that are of particular concern to me, we 
had reached an agreement with the administration on Sunday, September 
30. Unfortunately, within two days, the administration announced that 
it was reneging on the deal. I appreciate the complex task of 
considering the concerns and missions of multiple federal agencies, and 
that sometimes agreements must be modified as their implications are 
scrutinized by affected agencies. When agreements made by the 
administration must be withdrawn and negotiations on resolved issues 
reopened, those in the administration who blame the Congress for delay 
with what the New York Times described last week as ``scurrilous 
remarks,'' do not help the process move forward.
  We have expedited the legislative process in the Judiciary Committee 
to consider the administration's proposals. In daily news conferences, 
the Attorney General has referred to the need for such prompt 
consideration. I commend him for making the time to appear before the 
Judiciary Committee at a hearing September 25 to respond to questions 
that Members from both parties have about the administration's initial 
legislative proposals. I also thank the Attorney General for extending 
the hour and a half he was able to make in his schedule for the hearing 
for another fifteen minutes so that Senator Feinstein and Senator 
Specter were able to ask questions before his departure. I regret that 
the Attorney General did not have the time to respond to questions from 
all the Members of the Committee either on September 25 or last week, 
but again thank him for the attention he promised to give to the 
written questions Members submitted about the legislation. We have not 
received answers to those written questions yet, but I will make them a 
part of the hearing record whenever they are sent.
  The Chairman of the Constitution Subcommittee, Senator Feingold, also 
held an important hearing on October 3 on the civil liberties 
ramifications of the expanded surveillance powers requested by the 
administration. I thank him for his assistance in illuminating these 
critical issues for the Senate.
  Rule 14: To accede to the administration's request for prompt 
consideration of this legislation, the leaders decided to hold the USA 
Act at the desk rather than refer the bill to the committee for markup, 
as is regular practice. Senator Hatch specifically urged that this 
occur, and I support this decision. Indeed, when the Senate considered 
the anti-terrorism act in 1995 after the Oklahoma City bombing, we 
bypassed committee in order to deal with the legislation more promptly 
on the floor.
  Given the expedited process that we have used to move this bill, I 
will take more time than usual to detail its provisions.
  The heart of every American aches for those who died or have been 
injured because of the tragic terrorist attacks in New York, Virginia, 
and Pennsylvania on September 11. Even now, we cannot assess the full 
measure of this attack in terms of human lives, but we know that the 
number of casualties is extraordinarily high.
  Congress acted swiftly to help the victims of September 11. Within 10 
days, we passed legislation to establish a Victims Compensations 
Program, which will provide fair compensation to those most affected by 
this national tragedy. I am proud of our work on that legislation, 
which will expedite payments to thousands of Americans whose lives were 
so suddenly shattered.
  But now more than ever, we should remember the tens of thousands of 
Americans whose needs are not being met--the victims of crimes that 
have not made the national headlines. Just one day before the events 
that have so transformed our nation, I came before this body to express 
my concern that we were not doing more for crime victims. I noted that 
the pace of victims legislation had slowed, and that many opportunities 
for progress had been squandered. I suggested that this year, we had a 
golden opportunity to make significant progress in this area by passing 
S.783, the Leahy-Kennedy Crime Victims Assistance Act of 2001.
  I am pleased, therefore, that the antiterrorism package now before 
the

[[Page S10367]]

Senate contains substantial portions of S.783 aimed at refining the 
Victims of Crime Act of 1984, VOCA, and improving the manner in which 
the Crime Victims Fund is managed and preserved. Most significantly, 
section 621 of the USA Act will eliminate the cap on VOCA spending, 
which has prevented more than $700 million in fund deposits from 
reaching victims and supporting essential services.
  Congress has capped spending from the fund for the last two fiscal 
years, and President Bush has proposed a third cap for fiscal year 
2002. These limits on VOCA spending have created a growing sense of 
confusion and unease by many of those concerned about the future of the 
Fund.
  We should not be imposing artificial caps on VOCA spending while 
substantial unmet needs continue to exist. Section 621 of the USA Act 
replaces the cap with a self-regulating system that will ensure 
stability and protection of Fund assets, while allowing more money to 
be distributed to the States for victim compensation and assistance.
  Other provisions included from S. 783 will also make an immediate 
difference in the lives of victims, including victims of terrorism. 
Shortly after the Oklahoma City bombing, I proposed and the Congress 
adopted the Victims of Terrorism Act of 1995. This legislation 
authorized the Office for Victims of Crime (OVC) to set aside an 
emergency reserve of up to $50 million as part of the Crime Victims 
Fund. The emergency reserve was intended to serve as a ``rainy day'' 
fund to supplement compensation and assistance grants to States to 
provide emergency relief in the wake of an act of terrorism or mass 
violence that might otherwise overwhelm the resources of a State's 
crime victim compensation program and crime victim assistance services. 
Last month's disaster created vast needs that have all but depleted the 
reserve. Section 621 of the USA Act authorizes OVC to replenish the 
reserve with up to $50 million, and streamlines the mechanism for 
replenishment in future years.
  Another critical provision of the USA Act will enable OVC to provide 
more immediate and effective assistance to victims of terrorism and 
mass violence occurring within the United States. I proposed this 
measure last year as an amendment to the Justice for Victims of 
Terrorism Act, but was compelled to drop it to achieve bipartisan 
consensus. I am pleased that we are finally getting it done this year.
  These and other VOCA reforms in the USA Act are long overdue. Yet, I 
regret that we are not doing more. In my view, we should pass the Crime 
Victims Assistance Act in its entirety. In addition to the provisions 
that are included in today's antiterrorism package, this legislation 
provides for comprehensive reform of Federal law to establish enhanced 
rights and protections for victims of Federal crime. It also proposes 
several programs to help States provide better assistance for victims 
of State crimes.
  I also regret that we have not done more for other victims of recent 
terrorist attacks. While all Americans are numbed by the heinous acts 
of September 11, we should not forget the victims of the 1998 Embassy 
bombings in East Africa. Eleven Americans and many Kenyan and Tanzanian 
nationals employed by the United States lost their lives in that tragic 
incident. It is my understanding that compensation to the families of 
these victims has in many instances fallen short. It is my hope that 
OVC will use a portion of the newly replenished reserve fund to remedy 
any inequity in the way that these individuals have been treated.
  Hate Crimes: We cannot speak of the victims of the September 11 
without also noting that Arab-Americans and Muslims in this country 
have become the targets of hate crimes, harassment, and intimidation. I 
applaud the President for speaking out against and condemning such 
acts, and visiting a mosque to demonstrate by action that all religions 
are embraced in this country. I also commend the FBI Director for his 
periodic reports on the number of hate crime incidents against Arab-
American and Muslims that the FBI is aggressively investigating and 
making clear that this conduct is taken seriously and will be punished.
  The USA Act contains, in section 102, a sense of the Congress that 
crimes and discrimination against Arab and Muslim Americans are 
condemned. Many of us would like to do more, and finally enact 
effective hate crimes legislation, but the administration has asked 
that the debate on that legislation be postponed. One of my greatest 
regrets regarding the negotiations in this bill was the objections that 
prevented the Local Law Enforcement Enhancement Act, S. 625, from being 
included in the USA Act.
  The administration's initial proposal was entirely focused on Federal 
law enforcement. Yet, we must remember that State and local law 
enforcement officers have critical roles to play in preventing and 
investigating terrorist acts. I am pleased that the USA Act we consider 
today recognizes this fact.
  As a former State prosecutor, I know that State and local law 
enforcement officers are often the first responders to a crime. On 
September 11, the Nation saw that the first on the scene were the 
heroic firefighters, police officers and emergency personnel in New 
York City. These New York public safety officers, many of whom gave the 
ultimate sacrifice, remind us of how important it is to support our 
State and local law enforcement partners. The USA Act provides three 
critical measures of Federal support for our State and local law 
enforcement officers in the war against terrorism.
  First, we streamline and expedite the Public Safety Officers' 
Benefits application process for family members of fire fighters, 
police officers and rescue workers who perish or suffer a disabling 
injury in connection with prevention, investigation, rescue or recovery 
efforts related to a future terrorist attack.
  The Public Safety Officers' Benefits Program provides benefits for 
each of the families of law enforcement officers, firefighters, and 
emergency response crew members who are killed or disabled in the line 
of duty. Current regulations, however, require the families of public 
safety officers who have fallen in the line of duty to go through a 
cumbersome and time-consuming application process. In the face of our 
national fight against terrorism, it is important that we provide a 
quick process to support the families of brave Americans who selflessly 
give their lives so that others might live before, during and after a 
terrorist attack.
  This provision builds on the new law championed by Senator Clinton, 
Senator Schumer and Congressman Nadler to speed the benefit payment 
process for families of public safety officers killed in the line of 
duty in New York City, Virginia, and Western Pennsylvania, on September 
11.
  Second, we have raised the total amount of Public Safety Officers' 
Benefit Program payments from approximately $150,000 to $250,000. This 
provision retroactively goes into effect to provide much-needed relief 
for the families of the brave men and women who sacrificed their own 
lives for their fellow Americans during the year. Although this 
increase in benefits can never replace a family's tragic loss, it is 
the right thing to do for the families of our fallen heroes. I want to 
thank Senator Biden and Senator Hatch for their bipartisan leadership 
on this provision.
  Third, we expand the Department of Justice Regional Information 
Sharing Systems Program to promote information sharing among Federal, 
State and local law enforcement agencies to investigate and prosecute 
terrorist conspiracies and activities and authorize a doubling of 
funding for this year and next year. The RISS Secure Intranet is a 
nationwide law enforcement network that already allows secure 
communications among the more than 5,700 Federal, State and local law 
enforcement agencies. Effective communication is key to effective law 
enforcement efforts and will be essential in our national fight against 
terrorism.
  The RISS program enables its member agencies to send secure, 
encrypted communications--whether within just one agency or from one 
agency to another. Federal agencies, such as the FBI, do not have this 
capability, but recognize the need for it. Indeed, on September 11, 
2001, immediately after the terrorist attacks, FBI Headquarters called 
RISS officials to request ``Smartgate'' cards and readers to secure 
their communications systems. The FBI agency in Philadelphia called 
soon after to request more Smartgate cards and readers as well.

[[Page S10368]]

  The Regional Information Sharing Systems Program is a proven success 
that we need to expand to improve secure information sharing among 
Federal, State and local law enforcement agencies to coordinate their 
counter-terrorism efforts.
  Our State and local law enforcement partners welcome the challenge to 
join in our national mission to combat terrorism. We cannot ask State 
and local law enforcement officers to assume these new national 
responsibilities without also providing new Federal support. The USA 
Act provides the necessary Federal support for our State and local law 
enforcement officers to serve as full partners in our fight against 
terrorism.
  I am deeply troubled by continuing reports that information is not 
being shared with state local law enforcement. In particular, the 
testimony of Baltimore Police Chief Ed Norris before the House 
Government Reform Committee last week highlighted the current problem.
  The unfolding facts about how the terrorists who committed the 
September 11 attack were able to enter this country without difficulty 
are chilling. Since the attacks many have pointed to our northern 
border as vulnerable to the entry of future terrorists. This is not 
surprising when a simple review of the numbers shows that the northern 
border has been routinely short-changed in personnel. While the number 
of Border Patrol agents along the southern border has increased over 
the last few years to over 8,000, the number at the northern border has 
remained the same as a decade ago at 300. This remains true despite the 
fact that Admad Ressam, the Algerian who planned to blow up the Los 
Angeles International Airport in 1999, and who has been linked to those 
involved in the September 11 attacks, chose to enter the United States 
at our northern border. It will remain an inviting target until we 
dramatically improve our security.
  The USA Act includes my proposals to provide the substantial and long 
overdue assistance for our law enforcement and border control efforts 
along the Northern Border. My home State of Vermont has seen huge 
increases in Customs and INS activity since the signing of NAFTA. The 
number of people coming through our borders has risen steeply over the 
years, but our staff and our resources have not.
  I proposed--and this legislation authorizes in section 402--tripling 
the number of Border Patrol, INS inspectors, and Customs Service 
employees in each of the States along the 4,000-mile Northern Border. I 
was gratified when 22 Senators--Democrats and Republicans--wrote to the 
President supporting such an increase, and I am pleased that the 
administration agreed that this critical law enforcement improvement 
should be included in the bill. Senators Cantwell and Schumer in the 
Committee and Senators Murray and Dorgan have been especially strong 
advocates of these provisions and I thank them for their leadership. In 
addition, the USA Act, in section 401, authorizes the Attorney General 
to waive the FTE cap on INS personnel in order to address the national 
security needs of the United States on the northern border. Now more 
than ever, we must patrol our border vigilantly and prevent those who 
wish America harm from gaining entry. At the same time, we must work 
with the Canadians to allow speedy crossing to legitimate visitors and 
foster the continued growth of trade which is beneficial to both 
countries.
  In addition to providing for more personnel, this bill also includes, 
in section 402(4), my proposal to provide $100 million in funding for 
both the INS and the Customs Service to improve the technology used to 
monitor the Northern Border and to purchase additional equipment. The 
bill also includes, in section 403(c), an important provision from 
Senator Cantwell directing the Attorney General, in consultation with 
other agencies, to develop a technical standard for identifying 
electronically the identity of persons applying for visas or seeking to 
enter the United States. In short, this bill provides a comprehensive 
high-tech boost for the security of our nation.
  This bill also includes important proposals to enhance data sharing. 
The bill, in section 403, directs the Attorney General and the FBI 
Director to give the State Department and INS access to the criminal 
history information in the FBI's National Crime Information Center, 
NCIC, database, as the administration and I both proposed. The Attorney 
General is directed to report back to the Congress in two years on 
progress in implementing this requirement. We have also adopted the 
administration's language, in section 413, to make it easier for the 
State Department to share information with foreign governments for aid 
in terrorist investigations.
  The USA Act contains a number of provisions intended to improve and 
update the federal criminal code to address better the nature of 
terrorist activity, assist the FBI in translating foreign language 
information collected, and ensure that federal prosecutors are 
unhindered by conflicting local rules of conduct to get the job done. I 
will mention just a few of these provisions.
  FBI Translators: The truth certainly seems self-evident that all the 
best surveillance techniques in the world will not help this country 
defend itself from terrorist attack if the information cannot be 
understood in a timely fashion. Indeed, within days of September 11, 
the FBI Director issued an employment ad on national TV by calling upon 
those who speak Arabic to apply for a job as an FBI translator. This is 
a dire situation that needs attention. I am therefore gratified that 
the administration accepted my proposal, in section 205, to waive any 
federal personnel requirements and limitations imposed by any other law 
in order to expedite the hiring of translators at the FBI.
  This bill also directs the FBI Director to establish such security 
requirements as are necessary for the personnel employed as 
translators. We know the effort to recruit translators has a high 
priority, and the Congress should provide all possible support. 
Therefore, the bill calls on the Attorney General to report to the 
Judiciary Committees on the number of translators employed by the 
Justice Department, any legal or practical impediments to using 
translators employed by other Federal, State, or local agencies, on a 
full, part-time, or shared basis; and the needs of the FBI for specific 
translation services in certain languages, and recommendations for 
meeting those needs.
  Federal Crime of Terrorism: The administration's initial proposal 
assembled a laundry list of more than 40 Federal crimes ranging from 
computer hacking to malicious mischief to the use of weapons of mass 
destruction, and designated them as ``Federal terrorism offenses,'' 
regardless of the circumstances under which they were committed. For 
example, a teenager who spammed the NASA website and, as a result, 
recklessly caused damage, would be deemed to have committed this new 
``terrorism'' offense. Under the administration's proposal, the 
consequences of this designation were severe. Crimes on the list would 
carry no statute of limitations. The maximum penalties would shoot up 
to life imprisonment, and those released earlier would be subject to a 
lifetime of supervised release. Moreover, anyone who harbored a person 
whom he had ``reasonable grounds to suspect'' had committed, or was 
about to commit, a ``Federal terrorism offense''--whether it was the 
Taliban or the mother of my hypothetical teenage computer hacker--would 
be subject to stiff criminal penalties. I worked closely with the 
administration to ensure that the definition of ``terrorism'' in the 
USA Act fit the crime.

  First, we have trimmed the list of crimes that may be considered as 
terrorism predicates in section 808 of the bill. This shorter, more 
focused list, to be codified at 18 U.S.C. Sec. 2332(g)(5)(B), more 
closely reflects the sorts of offenses committed by terrorists.
  Second, we have provided, in section 810, that the current 8-year 
limitations period for this new set of offenses will remain in place, 
except where the commission of the offense resulted in, or created a 
risk of, death or serious bodily injury.
  Third, rather than make an across-the-board, one-size-fits-all 
increase of the penalties for every offense on the list, without regard 
to the severity of the offense, we have made, in section 811, more 
measured increases in maximum penalties where appropriate, including 
life imprisonment or lifetime supervised release in cases in which the

[[Page S10369]]

offense resulted in death. We have also added, in section 812, 
conspiracy provisions to a few criminal statutes where appropriate, 
with penalties equal to the penalties for the object offense, up to 
life imprisonment.
  Finally, we have more carefully defined the new crime of harboring 
terrorists in section 804, so that it applies only to those harboring 
people who have committed, or are about to commit, the most serious of 
Federal terrorism-related crimes, such as the use of weapons of mass 
destruction. Moreover, it is not enough that the defendant had 
``reasonable grounds to suspect'' that the person he was harboring had 
committed, or was about to commit, such a crime; the Government must 
prove that the defendant knew or had ``reasonable grounds to believe'' 
that this was so.
  McDade Fix: The massive investigation underway into who was 
responsible for and assisted in carrying out the September 11 attacks 
stretches across State and national boundaries. While the scope of the 
tragedy is unsurpassed, the disregard for State and national borders of 
this criminal conspiracy is not unusual. Federal investigative officers 
and prosecutors often must follow leads and conduct investigations 
outside their assigned jurisdictions. At the end of the 105th Congress, 
a legal impediment to such multi-jurisdiction investigations was 
slipped into the omnibus appropriations bill, over the objection at the 
time of every member of the Senate Judiciary Committee.
  I have spoken many times over the past two years of the problems 
caused by the so-called McDade law, 28 U.S.C. Sec. 530B. According to 
the Justice Department, the McDade law has delayed important criminal 
investigations, prevented the use of effective and traditionally-
accepted investigative techniques, and served as the basis of 
litigation to interfere with legitimate federal prosecutions. At a time 
when we need Federal law enforcement authorities to move quickly to 
catch those responsible for the September 11 attacks, and to prevent 
further attacks on our country, we can no longer tolerate the drag on 
Federal investigations and prosecutions caused by this ill-considered 
legislation.
  On September 19, I introduced S. 1437, the Professional Standards for 
Government Attorneys Act of 2001, along with Senators Hatch and Wyden. 
This bill proposes to modify the McDade law by establishing a set of 
rules that clarify the professional standards applicable to government 
attorneys. I am delighted that the administration recognized the 
importance of S. 1437 for improving Federal law enforcement and 
combating terrorism, and agreed to its inclusion as section 501 of the 
USA Act.
  The first part of section 501 embodies the traditional understanding 
that when lawyers handle cases before a Federal court, they should be 
subject to the Federal court's standards of professional 
responsibility, and not to the possibly inconsistent standards of other 
jurisdictions. By incorporating this ordinary choice-of-law principle, 
the bill preserves the Federal courts' traditional authority to oversee 
the professional conduct of Federal trial lawyers, including Federal 
prosecutors. It thus avoids the uncertainties presented by the McDade 
law, which potentially subjects Federal prosecutors to State laws, 
rules of criminal procedure, and judicial decisions which differ from 
existing Federal law.
  Another part of section 501 specifically addresses the situation in 
Oregon, where a State court ruling has seriously impeded the ability of 
Federal agents to engage in undercover operations and other covert 
activities. See In re Gatti, 330 Or. 517 (2000). Such activities are 
legitimate and essential crime-fighting tools. The Professional 
Standards for Government Attorneys Act ensures that these tools will be 
available to combat terrorism.
  Finally, section 501 addresses the most pressing contemporary 
question of government attorney ethics--namely, the question of which 
rule should govern government attorneys' communications with 
represented persons. It asks the Judicial Conference of the United 
States to submit to the Supreme Court a proposed uniform national rule 
to govern this area of professional conduct, and to study the need for 
additional national rules to govern other areas in which the 
proliferation of local rules may interfere with effective Federal law 
enforcement. The Rules Enabling Act process is the ideal one for 
developing such rules, both because the Federal judiciary traditionally 
is responsible for overseeing the conduct of lawyers in Federal court 
proceedings, and because this process would best provide the Supreme 
Court an opportunity fully to consider and objectively to weigh all 
relevant considerations.
  The problems posed to Federal law enforcement investigations and 
prosecutions by the McDade law are real and urgent. The Professional 
Standards for Government Attorneys Act provides a reasonable and 
measured alternative: It preserves the traditional role of the State 
courts in regulating the conduct of attorneys licensed to practice 
before them, while ensuring that Federal prosecutors and law 
enforcement agents will be able to use traditional Federal 
investigative techniques. We need to pass this corrective legislation 
before more cases are compromised.
  Terrorist Attacks Against Mass Transportation Systems: Another 
provision of the USA Act that was not included in the administration's 
initial proposal is section 801, which targets acts of terrorism and 
other violence against mass transportation systems. Just last week, 
a Greyhound bus crashed in Tennessee after a deranged passenger slit 
the driver's throat and then grabbed the steering wheel, forcing the 
bus into the oncoming traffic. Six people were killed in the crash. 
Because there are currently no Federal laws addressing terrorism of 
mass transportation systems, however, there may be no Federal 
jurisdiction over such a case, even if it were committed by suspected 
terrorists. Clearly, there is an urgent need for strong criminal 
legislation to deter attacks against mass transportation systems. 
Section 801 will fill this gap.

  Cybercrime: The Computer Fraud and Abuse Act, 18 U.S.C. section 1030, 
is the primary Federal criminal statute prohibiting computer frauds and 
hacking. I worked with Senator Hatch in the last Congress to make 
improvements to this law in the Internet Security Act, which passed the 
Senate as part of another bill. Our work is included in section 815 of 
the USA Act. This section would amend the statute to clarify the 
appropriate scope of federal jurisdiction. First, the bill adds a 
definition of ``loss'' to cover any reasonable cost to the victim in 
responding to a computer hacker. Calculation of loss is important both 
in determining whether the $5,000 jurisdictional hurdle in the statute 
is met, and, at sentencing, in calculating the appropriate guideline 
range and restitution amount.
  Second, the bill amends the definition of ``protected computer,'' to 
include qualified computers even when they are physically located 
outside of the United States. This clarification will preserve the 
ability of the United States to assist in international hacking cases.
  Finally, this section eliminates the current directive to the 
Sentencing Commission requiring that all violations, including 
misdemeanor violations, of certain provisions of the Computer Fraud and 
Abuse Act be punished with a term of imprisonment of at least 6 months.
  Biological Weapons: Borrowing from a bill introduced in the last 
Congress by Senator Biden, the USA Act contains a provision in section 
802 to strengthen our Federal laws relating to the threat of biological 
weapons. Current law prohibits the possession, development, or 
acquisition of biological agents or toxins ``for use as a weapon.'' 
This section amends the definition of ``for use as a weapon'' to 
include all situations in which it can be proven that the defendant had 
any purpose other than a peaceful purpose. This will enhance the 
Government's ability to prosecute suspected terrorists in possession of 
biological agents or toxins, and conform the scope of the criminal 
offense in 18 U.S.C. section 175 more closely to the related forfeiture 
provision in 18 U.S.C. section 176. This section also contains a new 
statute, 18 U.S.C. section 175b, which generally makes it an offense 
for certain restricted persons, including non-resident aliens from 
countries that support international terrorism, to possess a listed 
biological agent or toxin.

[[Page S10370]]

  Of greater consequence, section 802 defines another additional 
offense, punishable by up to 10 years in prison, of possessing a 
biological agent, toxin, or delivery system ``of a type or in a 
quantity that, under the circumstances,'' is not reasonably justified 
by a peaceful purpose. As originally proposed by the administration, 
this provision specifically stated that knowledge of whether the type 
or quantity of the agent or toxin was reasonably justified was not an 
element of the offense. Thus, although the burden of proof is always on 
the government, every person who possesses a biological agent, toxin, 
or delivery system was at some level of risk. I am pleased that the 
administration agreed to drop this portion of the provision.
  Nevertheless, I remain troubled by the subjectivity of the 
substantive standard for violation of this new criminal prohibition, 
and question whether it provides sufficient notice under the 
Constitution. I also share the concerns of the American Society for 
Microbiology and the Association of American Universities that this 
provision will have a chilling effect upon legitimate scientific 
inquiry that offsets any benefit in protecting against terrorism. While 
we have tried to prevent against this by creating an explicit exclusion 
for ``bona fide research,'' this provision may yet prove unworkable, 
unconstitutional, or both. I urge the Justice Department and the 
research community to work together on substitute language that would 
provide prosecutors with a more workable tool.
  Secret Service Jurisdiction: Two sections of the USA Act were added 
at the request of the United States Secret Service, with the support of 
the administration. I was pleased to accommodate the Secret Service by 
including these provisions in the bill to expand Electronic Crimes Task 
Forces and to clarify the authority of the Secret Service to 
investigate computer crimes.
  The Secret Service is committed to the development of new tools to 
combat the growing areas of financial crime, computer fraud, and 
cyberterrorrism. Recognizing a need for law enforcement, private 
industry and academia to pool their resources, skills and vision to 
combat criminal elements in cyberspace, the Secret Service created the 
New York Electronic Crimes Task Force, NYECTF. This highly successful 
model is comprised of over 250 individual members, including 50 
different Federal, State and local law enforcement agencies, 100 
private companies, and 9 universities. Since its inception in 1995, the 
NYECTF has successfully investigated a range of financial and 
electronic crimes, including credit card fraud, identity theft, bank 
fraud, computer systems intrusions, and e-mail threats against 
protectees of the Secret Service. Section 105 of the USA Act authorizes 
the Secret Service to develop similar task forces in cities and regions 
across the country where critical infrastructure may be vulnerable to 
attacks from terrorists or other cyber-criminals.
  Section 507 of the USA Act gives the Secret Service concurrent 
jurisdiction to investigate offenses under 18 U.S.C. section 1030, 
relating to fraud and related activity in connection with computers. 
Prior to the 1996 amendments to the Computer Fraud and Abuse Act, the 
Secret Service was authorized to investigate any and all violations of 
section 1030, pursuant to an agreement between the Secretary of 
Treasury and the Attorney General. The 1996 amendments, however, 
concentrated Secret Service jurisdiction on certain specified 
subsections of section 1030. The current amendment would return full 
jurisdiction to the Secret Service and would allow the Justice and 
Treasury Departments to decide on the appropriate work-sharing balance 
between the two. This will enable the Secret Service to investigate a 
wide range of potential White House network intrusions, as well as 
intrusions into remote sites, outside of the White House, that could 
impact the safety and security of its protectees, and to continue its 
missions to protect the Nation's critical infrastructure and financial 
payment systems.

  Counter-terrorism Fund: The USA Act also authorizes, for the first 
time, a counter-terrorism fund in the Treasury of the United States to 
reimburse Justice Department for any costs incurred in connection with 
the fight against terrorism.
  Specifically, this counter-terrorism fund will : one, reestablish an 
office or facility that has been damaged as the result of any domestic 
or international terrorism incident; two, provide support to counter, 
investigate, or prosecute domestic or international terrorism, 
including paying rewards in connection with these activities; three, 
conduct terrorism threat assessments of Federal agencies; and four, for 
costs incurred in connection with detaining individuals in foreign 
countries who are accused of acts of terrorism in violation of United 
States law.
  I first authored this counter-terrorism fund in the S. 1319, the 21st 
Century Department of Justice Appropriations Authorization Act, which 
Senator Hatch and I introduced in August.
  The USA Act provides enhanced surveillance procedures for the 
investigation of terrorism and other crimes. The challenge before us 
has been to strike a reasonable balance to protect both security and 
the liberties of our people. In some respects, the changes made are 
appropriate and important ones to update surveillance and investigative 
procedures in light of new technology and experience with current law. 
Yet, in other respects, I have deep concerns that we may be increasing 
surveillance powers and the sharing of criminal justice information 
without adequate checks on how information may be handled and without 
adequate accountability in the form of judicial review.
  The bill contains a number of sensible proposals that should be not 
be controversial.
  Wiretap Predicates: For example, sections 201 and 202 of the USA Act 
would add to the list of crimes that may be used as predicates for 
wiretaps certain offenses which are specifically tailored to the 
terrorist threat. In addition to crimes that relate directly to 
terrorism, the list would include crimes of computer fraud and abuse 
which are committed by terrorists to support and advance their illegal 
objectives.
  FISA Roving Wiretaps: The bill, in section 206, would authorize the 
use of roving wiretaps in the course of a foreign intelligence 
investigation and brings FISA into line with criminal procedures that 
allow surveillance to follow a person, rather than requiring a separate 
court order identifying each telephone company or other communication 
common carrier whose assistance is needed. This is a matter on which 
the Attorney General and I reached early agreement. This is the kind of 
change that has a compelling justification, because it recognizes the 
ease with which targets of investigations can evade surveillance by 
changing phones. In fact, the original roving wiretap authority for use 
in criminal investigations was enacted as part of the Electronic 
Communications Privacy Act, ECPA, in 1986. I was proud to be the 
primary Senate sponsor of that earlier law.
  Paralleling the statutory rules applicable to criminal 
investigations, the formulation I originally proposed made clear that 
this roving wiretap authority must be requested in the application 
before the FISA court was authorized to order such roving surveillance 
authority. Indeed, the administration agrees that the FISA court may 
not grant such authority sua sponte. Nevertheless, we have accepted the 
administration's formulation of the new roving wiretap authority, which 
requires the FISA court to make a finding that the actions of the 
person whose communications are to be intercepted could have the effect 
of thwarting the identification of a specified facility or place. While 
no amendment is made to the statutory directions for what must be 
included in the application for a FISA electronic surveillance order, 
these applications should include the necessary information to support 
the FISA court's finding that roving wiretap authority is warranted.
  Search Warrants: The USA Act, in section 219, authorizes nationwide 
service of search warrants in terrorism investigations. This will allow 
the judge who is most familiar with the developments in a fast-breaking 
and complex terrorism investigation to make determinations of probable 
cause, no matter where the property to be searched is located. This 
will not only save time by avoiding having to bring up-to-speed another 
judge in another jurisdiction where the property is located, but also

[[Page S10371]]

serves privacy and fourth amendment interests in ensuring that the most 
knowledgeable judge makes the determination of probable cause. The 
bill, in section 209, also authorizes voice mail messages to be seized 
on the authority of a probable cause search warrant rather than through 
the more burdensome and time-consuming process of a wiretap.
  Electronic Records: The bill updates the laws pertaining to 
electronic records in three primary ways. First, in section 210, the 
bill authorizes the nationwide service of subpoenas for subscriber 
information and expands the list of items subject to subpoena to 
include the means and source of payment for the service.
  Second, in section 211, the bill equalizes the standard for law 
enforcement access to cable subscriber records on the same basis as 
other electronic records. The Cable Communications Policy Act, passed 
in 1984 to regulate various aspects of the cable television industry, 
did not take into account the changes in technology that have occurred 
over the last 15 years. Cable television companies now often provide 
Internet access and telephone service in addition to television 
programming. This amendment clarifies that a cable company must comply 
with the laws governing the interception and disclosure of wire and 
electronic communications just like any other telephone company or 
Internet service provider. The amendments would retain current 
standards that govern the release of customer records for television 
programming.
  Finally, the bill, in section 212, permits, but does not require, an 
electronic communications service to disclose the contents of and 
subscriber information about communications in emergencies involving 
the immediate danger of death or serious physical injury. Under 
current law, if an ISP's customer receives an e-mail death threat from 
another customer of the same ISP, and the victim provides a copy of the 
communication to the ISP, the ISP is limited in what actions it may 
take. On one hand, the ISP may disclose the contents of the forwarded 
communication to law enforcement, or to any other third party as it 
sees fit. See 18 U.S.C. section 2702(b)(3). On the other hand, current 
law does not expressly authorize the ISP to voluntarily provide law 
enforcement with the identity, home address, and other subscriber 
information of the user making the threat. See 18 U.S.C. section 
2703(c)(1)(B),(C), permitting disclosure to government entities only in 
response to legal process. In those cases where the risk of death or 
injury is imminent, the law should not require providers to sit idly 
by. This voluntary disclosure, however, in no way creates an 
affirmative obligation to review customer communications in search of 
such imminent dangers.

  Also, under existing law, a provider even one providing services to 
the public may disclose the contents of a customer's communications--to 
law enforcement or anyone else--in order to protect its rights or 
property. See 18 U.S.C. section 2702(b)(5). However, the current 
statute does not expressly permit a provider voluntarily to disclose 
non-content records, such as a subscriber's login records, to law 
enforcement for purposes of self-protection. See 18 U.S.C. Section 
2703(c)(1)(B). Yet the right to disclose the content of communications 
necessarily implies the less intrusive ability to disclose non-content 
records. Cf. United States v. Auler, 539 F.2d 642, 646 n.9, 7th Cir. 
1976, phone company's authority to monitor and disclose conversations 
to protect against fraud necessarily implies right to commit lesser 
invasion of using, and disclosing fruits of, pen register device, 
citing United States v. Freeman, 524 F.2d 337, 341, 7th Cir. 1975. 
Moreover, as a practical matter providers must have the right to 
disclose the facts surrounding attacks on their systems. When a 
telephone carrier is defrauded by a subscriber, or when an ISP's 
authorized user launches a network intrusion against his own ISP, the 
provider must have the legal ability to report the complete details of 
the crime to law enforcement. The bill clarifies that service providers 
have the statutory authority to make such disclosures.
  Pen Registers: There is consensus that the existing legal procedures 
for pen register and trap-and-trace authority are antiquated and need 
to be updated. I have been proposing ways to update the pen register 
and trap and trace statutes for several years, but not necessarily in 
the same ways as the administration initially proposed. In fact, in 
1998, I introduced with then-Senator Ashcroft, the E-PRIVACY Act, S. 
2067, which proposed changes in the pen register laws. In 1999, I 
introduced the E-RIGHTS Act, S. 934, also with proposals to update the 
pen register laws.
  Again, in the last Congress, I introduced the Internet Security Act, 
S. 2430, on April 13, 2000, that proposed: one, changing the pen 
register and trap and trace device law to give nationwide effect to pen 
register and trap and trace orders obtained by Government attorneys and 
obviate the need to obtain identical orders in multiple Federal 
jurisdictions; two, clarifying that such devices can be used for 
computer transmissions to obtain electronic addresses, not just on 
telephone lines; and three, as a guard against abuse, providing for 
meaningful judicial review of government attorney applications for pen 
registers and trap and trace devices.
  As the outline of my earlier legislation suggests, I have long 
supported modernizing the pen register and trap and trace device laws 
by modifying the statutory language to cover the use of these orders on 
computer transmissions; to remove the jurisdictional limits on service 
of these orders; and to update the judicial review procedure, which, 
unlike any other area in criminal procedure, bars the exercise of 
judicial discretion in reviewing the justification for the order. The 
USA Act, in section 216, updates the pen register and trap and trace 
laws only in two out of three respects I believe are important, and 
without allowing meaningful judicial review. Yet, we were able to 
improve the administration's initial proposal, which suffered from the 
same problems as the provision that was hastily taken up and passed by 
the Senate, by voice vote, on September, 13, 2001, as an amendment to 
the Commerce Justice State Appropriations Act.
  Nationwide Service: The existing legal procedures for pen register 
and trap-and-trace authority require service of individual orders for 
installation of pen register or trap and trace device on the service 
providers that carried the targeted communications. Deregulation of the 
telecommunications industry has had the consequence that one 
communication may be carried by multiple providers. For example, a 
telephone call may be carried by a competitive local exchange carrier, 
which passes it at a switch to a local Bell Operating Company, which 
passes it to a long distance carrier, which hands it to an incumbent 
local exchange carrier elsewhere in the U.S., which in turn may finally 
hand it to a cellular carrier. If these carriers do not pass source 
information with each call, identifying that source may require 
compelling information from a host of providers located throughout the 
country.
  Under present law, a court may only authorize the installation of a 
pen register or trap device ``within the jurisdiction of the court.'' 
As a result, when one provider indicates that the source of a 
communication is a carrier in another district, a second order may be 
necessary. The Department of Justice has advised, for example, that in 
1996, a hacker, who later turned out to be launching his attacks from a 
foreign country, extensively penetrated computers belonging to the 
Department of Defense. This hacker was dialing into a computer at 
Harvard University and used this computer as an intermediate staging 
point in an effort to conceal his location and identity. Investigators 
obtained a trap and trace order instructing the phone company, Nynex, 
to trace these calls, but Nynex could only report that the 
communications were coming to it from a long-distance carrier, MCI. 
Investigators then applied for a court order to obtain the connection 
information from MCI, but since the hacker was no longer actually using 
the connection, MCI could not identify its source. Only if the 
investigators could have served MCI with a trap and trace order while 
the hacker was actively on-line could they have successfully traced 
back and located him.
  In another example provided by the Department of Justice, 
investigators

[[Page S10372]]

encountered similar difficulties in attempting to track Kevin Mitnick, 
a criminal who continued to hack into computers attached to the 
Internet despite the fact that he was on supervised release for a prior 
computer crime conviction. The FBI attempted to trace these electronic 
communications while they were in progress. In order to evade arrest, 
however, Mitnick moved around the country and used cloned cellular 
phones and other evasive techniques. His hacking attacks would often 
pass through one of two cellular carriers, a local phone company, and 
then two Internet service providers. In this situation, where 
investigators and service providers had to act quickly to trace Mitnick 
in the act of hacking, only many repeated attempts--accompanied by an 
order to each service provider--finally produced success. Fortunately, 
Mitnick was such a persistent hacker that he gave law enforcement many 
chances to complete the trace.

  This duplicative process of obtaining a separate order for each link 
in the communications chain can be quite time-consuming, and it serves 
no useful purpose since the original court has already authorized the 
trace. Moreover, a second or third order addressed to a particular 
carrier that carried part of a prior communication may prove useless 
during the next attack: in computer intrusion cases, for example, the 
target may use an entirely different path, i.e., utilize a different 
set of intermediate providers, for his or her subsequent activity.
  The bill would modify the pen register and trap and trace statutes to 
allow for nationwide service of a single order for installation of 
these devices, without the necessity of returning to court for each new 
carrier. I support this change.
  Second, the language of the existing statute is hopelessly out of 
date and speaks of a pen register or trap and trace ``device'' being 
``attached'' to a telephone ``line.'' However, the rapid 
computerization of the telephone system has changed the tracing 
process. No longer are such functions normally accomplished by physical 
hardware components attached to telephone lines. Instead, these 
functions are typically performed by computerized collection and 
retention of call routing information passing through a communications 
system.
  The statute's definition of a ``pen register'' as a ``device'' that 
is ``attached'' to a particular ``telephone line'' is particularly 
obsolete when applied to the wireless portion of a cellular phone call, 
which has no line to which anything can be attached. While courts have 
authorized pen register orders for wireless phones based on the notion 
of obtaining access to a ``virtual line,'' updating the law to keep 
pace with current technology is a better course.
  Moreover, the statute is ill-equipped to facilitate the tracing of 
communications that take place over the Internet. For example, the pen 
register definition refers to telephone ``numbers'' rather than the 
broader concept of a user's communications account. Although pen 
register and trap orders have been obtained for activity on computer 
networks, Internet service providers have challenged the application of 
the statute to electronic communications, frustrating legitimate 
investigations. I have long supported updating the statute by removing 
words such as ``numbers . . . dialed'' that do not apply to the way 
that pen/trap devices are used and to clarify the statute's proper 
application to tracing communications in an electronic environment, but 
in a manner that is technology neutral and does not capture the content 
of communications. That being said, I have been concerned about the FBI 
and Justice Department's insistence over the past few years that the 
pen/trap devices statutes be updated with broad, undefined terms that 
continue to flame concerns that these laws will be used to intercept 
private communications content.
  The administration's initial pen/trap device proposal added the terms 
``routing'' and ``addressing'' to the definitions describing the 
information that was authorized for interception on the low relevance 
standard under these laws. The administration and the Department of 
Justice flatly rejected my suggestion that these terms be defined to 
respond to concerns that the new terms might encompass matter 
considered content, which may be captured only upon a showing of 
probable cause, not the mere relevancy of the pen/trap statute. 
Instead, the administration agreed that the definition should expressly 
exclude the use of pen/trap devices to intercept ``content,'' which is 
broadly defined in 18 U.S.C. 2510(8).
  While this is an improvement, the FBI and Justice Department are 
short-sighted in their refusal to define these terms. We should be 
clear about the consequence of not providing definitions for these new 
terms in the pen/trap device statutes. These terms will be defined, if 
not by the Congress, then by the courts in the context of criminal 
cases where pen/trap devices have been used and challenged by 
defendants. If a court determines that a pen register has captured 
``content,'' which the FBI admits such devices do, in violation of the 
Fourth Amendment, suppression may be ordered, not only of the pen 
register evidence by any other evidence derived from it. We are leaving 
the courts with little or no guidance of what is covered by 
``addressing'' or ``routing.''
  The USA Act also requires the government to use reasonably available 
technology that limits the interceptions under the pen/trap device laws 
``so as not to include the contents of any wire or electronic 
communications.'' This limitation on the technology used by the 
government to execute pen/trap orders is important since, as the FBI 
advised me June, 2000, pen register devices ``do capture all electronic 
impulses transmitted by the facility on which they are attached, 
including such impulses transmitted after a phone call is connected to 
the called party.'' The impulses made after the call is connected could 
reflect the electronic banking transactions a caller makes, or the 
electronic ordering from a catalogue that a customer makes over the 
telephone, or the electronic ordering of a prescription drug.
  This transactional data intercepted after the call is connected is 
``content.'' As the Justice Department explained in May, 1998 in a 
letter to House Judiciary Committee Chairman Henry Hyde, ``the 
retrieval of the electronic impulses that a caller necessarily 
generated in attempting to direct the phone call" does not constitute a 
``search'' requiring probable cause since ``no part of the substantive 
information transmitted after the caller had reached the called party'' 
is obtained. But the Justice Department made clear that ``all of the 
information transmitted after a phone call is connected to the called 
party . . . is substantive in nature. These electronic impulses are the 
`contents' of the call: They are not used to direct or process the 
call, but instead convey certain messages to the recipient.''
  When I added the direction on use of reasonably available technology, 
codified as 18 U.S.C. 3121(c), to the pen register statute as part of 
the Communications Assistance for Law Enforcement Act, CALEA, in 1994, 
I recognized that these devices collected content and that such 
collection was unconstitutional on the mere relevance standard. 
Nevertheless, the FBI advised me in June 2000, that pen register 
devices for telephone services ``continue to operate as they have for 
decades'' and that ``there has been no change . . . that would better 
restrict the recording or decoding of electronic or other impulses to 
the dialing and signaling information utilized in call processing.'' 
Perhaps, if there were meaningful judicial review and accountability, 
the FBI would take the statutory direction more seriously and actually 
implement it.
  Judicial Review: Due in significant part to the fact that pen/trap 
devices in use today collect ``content,'' I have sought in legislation 
introduced over the past few years to update and modify the judicial 
review procedure for pen register and trap and trace devices. Existing 
law requires an attorney for the Government to certify that the 
information likely to be obtained by the installation of a pen register 
or trap and trace device will be relevant to an ongoing criminal 
investigation. The court is required to issue an order upon seeing the 
prosecutor's certification. The court is not authorized to look behind 
the certification to evaluate the judgement of the prosecutor.
  I have urged that government attorneys be required to include facts 
about their investigations in their applications for pen/trap orders 
and allow

[[Page S10373]]

courts to grant such orders only where the facts support the relevancy 
of the information likely to be obtained by the orders. This is not a 
change in the applicable standard, which would remain the very low 
relevancy standard. Instead, this change would simply allow the court 
to evaluate the facts presented by a prosecutor, and, if it finds that 
the facts support the Government's assertion that the information to be 
collected will be relevant, issue the order. Although this change will 
place an additional burden on law enforcement, it will allow the courts 
a greater ability to assure that government attorneys are using such 
orders properly.
  Some have called this change a ``roll-back'' in the statute, as if 
the concept of allowing meaningful judicial review was an extreme 
position. To the contrary, this is a change that the Clinton 
administration supported in legislation transmitted to the Congress 
last year. This is a change that the House Judiciary Committee also 
supported last year. In the Electronic Communications Privacy Act, H.R. 
5018, that Committee proposed that before a pen/trap device ``could be 
ordered installed, the government must first demonstrate to an 
independent judge that `specific and articulable facts reasonably 
indicate that a crime has been, is being, or will be committed, and 
information likely to be obtained by such installation and use . . . is 
relevant to an investigation of that crime.' '' Report 106-932, 106th 
Cong. 2d Sess., Oct. 4, 2000, p. 13. Unfortunately, the Bush 
administration has taken a contrary position and has rejected this 
change in the judicial review process.
  Computer Trespasser: Currently, an owner or operator of a computer 
that is accessed by a hacker as a means for the hacker to reach a third 
computer, cannot simply consent to law enforcement monitoring of the 
computer. Instead, because the owner or operator is not technically a 
party to the communication, law enforcement needs wiretap authorization 
under Title III to conduct such monitoring. I have long been interested 
in closing this loophole. Indeed, when I asked about this problem, the 
FBI explained to me in June, 2000, that:

       This anomaly in the law creates an untenable situation 
     whereby providers are sometimes forced to sit idly by as they 
     witness hackers enter and, in some situations, destroy or 
     damage their systems and networks while law enforcement 
     begins the detailed process of seeking court authorization to 
     assist them. In the real world, the situation is akin to a 
     homeowner being forced to helplessly watch a burglar or 
     vandal while police seek a search warrant to enter the 
     dwelling.

  I therefore introduced as part of the Internet Security Act, S. 2430, 
in 2000, an exception to the wiretap statute that would explicitly 
permit such monitoring without a wiretap if prior consent is obtained 
from the person whose computer is being hacked through and used to send 
``harmful interference to a lawfully operating computer system.''
  The administration initially proposed a different formulation of the 
exception that would have allowed an owner/operator of any computer 
connected to the Internet to consent to FBI wiretapping of any user who 
violated a workplace computer use policy or online service term of 
service and was thereby an ``unauthorized'' user. The administration's 
proposal was not limited to computer hacking offenses under 18 U.S.C. 
1030 or to conduct that caused harm to a computer or computer system. 
The administration rejected these refinements to their proposed wiretap 
exception, but did agree, in section 217 of the USA Act, to limit the 
authority for wiretapping with the consent of the owner/operator to 
communications of unauthorized users without an existing subscriber or 
other contractual relationship with the owner/operator.
  Sharing Criminal Justice Information: The USA Act will make 
significant changes in the sharing of confidential criminal justice 
information with various Federal agencies. For those of us who have 
been concerned about the leaks from the FBI that can irreparably damage 
reputations of innocent people and frustrate investigations by alerting 
suspects to flee or destroy material evidence, the administration's 
insistence on the broadest authority to disseminate such information, 
without any judicial check, is disturbing. Nonetheless, I believe we 
have improved the administration's initial proposal in responsible 
ways. Only time will tell whether the improvements we were able to 
reach agreement on are sufficient.
  At the outset, we should be clear that current law allows the sharing 
of confidential criminal justice information, but with close court 
supervision. Federal Rule of Criminal Procedure 6(e) provides that 
matters occurring before a grand jury may be disclosed only to an 
attorney for the government, such other government personnel as are 
necessary to assist the attorney and another grand jury. Further 
disclosure is also allowed as specifically authorized by a court.
  Similarly, section 2517 of title 18, United States Code provides that 
wiretap evidence may be disclosed in testimony during official 
proceedings and to investigative or law enforcement officers to the 
extent appropriate to the proper performance of their official duties. 
In addition, the wiretap law allows disclosure of wiretap evidence 
``relating to offenses other than specified in the order'' when 
authorized or approved by a judge. Indeed, just last year, the Justice 
Department assured us 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.'' Letter from Robert Raben, 
Assistant Attorney General, September 28, 2000.
  For this reason, and others, the Justice Department at the time 
opposed an amendment proposed by Senators Kyl and Feinstein to S. 2507, 
the ``Intelligence Authorization Act for fiscal year 2001 that would 
have allowed the sharing of foreign intelligence and 
counterintelligence information collected from wiretaps with the 
intelligence community.'' I deferred to the Justice Department on this 
issue and sought changes in the proposed amendment to address the 
Department's concern that this provision was not only unnecessary but 
also ``could have significant implications for prosecutions and the 
discovery process in litigation,'' ``raises significant issues 
regarding the sharing with intelligence agencies of information 
collected about United States persons'' and jeopardized ``the need to 
protect equities relating to ongoing criminal investigations.'' In the 
end, the amendment was revised to address the Justice Department's 
concerns and passed the Senate as a free-standing bill, S. S. 3205, the 
Counterterrorism Act of 2000. The House took no action on this 
legislation.
  Disclosure of Wiretap Information: The administration initially 
proposed adding a sweeping provision to the wiretap statute that 
broadened the definition of an ``investigative or law enforcement 
officer'' who may receive disclosures of information obtained through 
wiretaps to include Federal law enforcement, intelligence, national 
security, national defense, protective and immigration personnel and 
the President and Vice President. This proposal troubled me because 
information intercepted by a wiretap has enormous potential to infringe 
upon the privacy rights of innocent people, including people who are 
not even suspected of a crime and merely happen to speak on the 
telephone with the targets of an investigation. For this reason, the 
authority to disclose information obtained through a wiretap has always 
been carefully circumscribed in law.
  While I recognize that appropriate officials in the executive branch 
of government should have access to wiretap information that is 
important to combating terrorism or protecting the national security, I 
proposed allowing such disclosures where specifically authorized by a 
court order. Further, with respect to information relating to 
terrorism, I proposed allowing the disclosure without a court order as 
long as the judge who authorized the wiretap was notified as soon as 
practicable after the fact. This would have provided a check against 
abuses of the disclosure authority by providing for review by a neutral 
judicial official. At the same time, there was a little likelihood that 
a judge would deny any requests for disclosure in cases where it was 
warranted.
  On Sunday, September 30, the administration agreed to my proposal, 
but within two days, it backed away from its agreement. I remain 
concerned that the resulting provision will allow the unprecedented, 
widespread disclosure

[[Page S10374]]

of this highly sensitive information without any notification to or 
review by the court that authorizes and supervises the wiretap. This is 
clearly an area where our committee will have to exercise close 
oversight to make sure that the newly-minted disclosure authority is 
not being abused.

  The administration offered three reasons for reneging on the original 
deal. First, they claimed that the involvement of the court would 
inhibit Federal investigators and attorneys from disclosing information 
needed by intelligence and national security officials. Second, they 
said the courts might not have adequate security and therefore should 
not be told that information was disclosed for intelligence or national 
security purposes. And third, they said the President's constitutional 
powers under Article II give him authority to get whatever foreign 
intelligence he needs to exercise his national security 
responsibilities.
  I believe these concerns are unfounded. Federal investigators and 
attorneys will recognize the need to disclose information relevant to 
terrorism investigations. Courts can be trusted to keep secrets and 
recognize the needs of the President.
  Current law requires that such information be used only for law 
enforcement purpose. This provides an assurance that highly intrusive 
invasions of privacy are confined to the purpose for which they have 
been approved by a court, based on probable cause, as required by the 
Fourth Amendment. Current law calls for minimization procedures to 
ensure that the surveillance does not gather information about private 
and personal conduct and conversations that are not relevant to the 
criminal investigation.
  When the administration reneged on the agreement regarding court 
supervision, we turned to other safeguards and were more successful in 
changing other questionable features of the administration's bill. The 
administration accepted my proposal to strike the term ``national 
security'' from the description of wiretap information that may be 
shared throughout the executive branch and replace it with ``foreign 
intelligence'' information. This change is important in clarifying what 
information may be disclosed because the term ``foreign intelligence'' 
is specifically defined by statute whereas ``national security'' is 
not.
  Moreover, the rubric of ``national security'' has been used to 
justify some particularly unsavory activities by the government in the 
past. We must have at least some assurance that we are not embarked on 
a course that will lead to a repetition of these abuses because the 
statute will now more clearly define what type of information is 
subject to disclosure. In addition, Federal officials who receive the 
information may use it only as necessary to the conduct of their 
official duties. Therefore, any disclosure or use outside the conduct 
of their official duties remains subject to all limitations applicable 
to their retention and dissemination of information of the type of 
information received. This includes the Privacy Act, the criminal 
penalties for unauthorized disclosure of electronic surveillance 
information under chapter 119 of title 18, and the contempt penalties 
for unauthorized disclosure of grand jury information. In addition, the 
Attorney General must establish procedures for the handling of 
information that identifies a United States person, such as the 
restrictions on retention and dissemination of foreign intelligence and 
counterintelligence information pertaining to United States persons 
currently in effect under Executive Order 12333.
  While these safeguards do not fully substitute for court supervision, 
they can provide some assurance against misuse of the private, 
personal, and business information about Americans that is acquired in 
the course of criminal investigations and that may flow more widely in 
the intelligence, defense, and national security worlds.
  Disclosure of Grand Jury Information: The wiretap statute was not the 
only provision in which the administration sought broader authority to 
disclose highly sensitive investigative information. It also proposed 
broadening Rule 6(e) of the Federal Rules of Criminal Procedure to 
allow the disclosure of information relating to terrorism and national 
security obtained from grand jury proceedings to a broad range of 
officials in the executive branch of government. As with wiretaps, few 
would disagree that information learned in a criminal investigation 
that is necessary to combating terrorism or protecting the national 
security ought to be shared with the appropriate intelligence and 
national security officials. The question is how best to regulate and 
limit such disclosures so as not to compromise the important policies 
of secrecy and confidentiality that have long applied to grand jury 
proceedings.
  I proposed that we require judicial review of requests to disclose 
terrorism and foreign intelligence information to officials in the 
executive branch beyond those already authorized to receive such 
disclosures. Once again, the administration agreed to my proposal on 
Sunday, September 30, but reneged within two days. As a result, the 
bill does not provide for any judicial supervision of the new 
authorization for dissemination of grand jury information throughout 
the executive branch. The bill does contain the safeguards that I have 
discussed with respect to law enforcement wiretap information. However, 
as with the new wiretap disclosure authority, I am troubled by this 
issue and plan to exercise the close oversight of the Judiciary 
Committee to make sure it is not being abused.
  Foreign Intelligence Information Sharing: The administration also 
sought a provision that would allow the sharing of foreign intelligence 
information throughout the executive branch of the government 
notwithstanding any current legal prohibition that may prevent or limit 
its disclosure. I have resisted this proposal more strongly than 
anything else that still remains in the bill. What concerns me is that 
it is not clear what existing prohibitions this provision would affect 
beyond the grand jury secrecy rule and the wiretap statute, which are 
already covered by other provisions in the bill. Even the 
administration, which wrote this provision, has not been able to 
provide a fully satisfactory explanation of its scope.
  If there are specific laws that the administration believes impede 
the necessary sharing of information on terrorism and foreign 
intelligence within the executive branch, we should address those 
problems through legislation that is narrowly targeted to those 
statutes. Tacking on a blunderbuss provision whose scope we do not 
fully understand can only lead to consequences that we cannot foresee. 
Further, I am concerned that such legislation, broadly authorizing 
the secret sharing of intelligence information throughout the executive 
branch, will fuel the unwarranted fears and dark conspiracy theories of 
Americans who do not trust their government. This was another provision 
on which the administration reneged on its agreement with me; it agreed 
to drop it on September 30, but resurrected it within two days, 
insisting that it remain in the bill. I have been able to mitigate its 
potential for abuse somewhat by adding the same safeguards that apply 
to disclosure of law enforcement wiretap and grand jury information.

  ``Sneak and Peek'' Search Warrants: Another issue that has caused me 
serious concern relates to the administration's proposal for so-called 
``sneak and peek'' search warrants. The House Judiciary Committee 
dropped this proposal entirely from its version of the legislation. 
Normally, when law enforcement officers execute a search warrant, they 
must leave a copy of the warrant and a receipt for all property seized 
at the premises searched. Thus, even if the search occurs when the 
owner of the premises is not present, the owner will receive notice 
that the premises have been lawfully searched pursuant to a warrant 
rather than, for example, burglarized.
  Two circuit courts of appeal, the Second and the Ninth Circuits, have 
recognized a limited exception to this requirement. When specifically 
authorized by the issuing judge or magistrate, the officers may delay 
providing notice of the search to avoid compromising an ongoing 
investigation or for some other good reason. However, this authority 
has been carefully circumscribed.
  First, the Second and Ninth Circuit cases have dealt only with 
situations where the officers search a premises without seizing any 
tangible property. As the Second Circuit explained, such

[[Page S10375]]

searches are ``less intrusive than a conventional search with physical 
seizure because the latter deprives the owner not only of privacy but 
also of the use of his property.'' United States v. Villegas, 899 F.2d 
1324, 1337 (2d Cir. 1990).
  Second, the cases have required that the officers seeking the warrant 
must show good reason for the delay. Finally, while the courts have 
allowed notice of the search may be delayed, it must be provided within 
a reasonable period thereafter, which should generally be no more than 
seven days. The reasons for these careful limitations were spelled out 
succinctly by Judge Sneed of the Ninth Circuit: ``The mere thought of 
strangers walking through and visually examining the center of our 
privacy interest, our home, arouses our passion for freedom as does 
nothing else. That passion, the true source of the Fourth Amendment, 
demands that surreptitious entries be closely circumscribed.'' See 
United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).
  The administration's original proposal would have ignored some of the 
key limitations created by the caselaw for sneak and peek search 
warrants. First, it would have broadly authorized officers not only to 
conduct surreptitious searches, but also to secretly seize any type of 
property without any additional showing of necessity. This type of 
warrant, which has never been addressed by a published decision of a 
federal appellate court, has been referred to in a law review article 
written by an FBI agent as a ``sneak and steal'' warrant. See K. Corr, 
``Sneaky But Lawful: The Use of Sneak and Peek Search Warrants,'' 43 U. 
Kan. L. Rev. 1103, 1113 (1995). Second, the proposal would simply have 
adopted the procedural requirements of 18 U.S.C. section 2705 for 
providing delayed notice of a wiretap. Among other things, this would 
have extended the permissible period of delay to a maximum of 90 days, 
instead of the presumptive seven-day period provided by the caselaw on 
sneak and peek warrants.
  I was able to make significant improvements in the administration's 
original proposal that will help to ensure that the government's 
authority to obtain sneak and peek warrants is not abused. First, the 
provision that is now in section 213 of the bill prohibits the 
government from seizing any tangible property or any wire or electronic 
communication or stored electronic information unless it makes a 
showing of reasonable necessity for the seizure. Thus, in contrast to 
the administration's original proposal, the presumption is that the 
warrant will authorize only a search unless the government can make a 
specific showing of additional need for a seizure. Second, the 
provision now requires that notice be given within a reasonable time of 
the execution of the warrant rather than giving a blanket authorization 
for up to a 90-day delay. What constitutes a reasonable time, of 
course, will depend upon the circumstances of the particular case. But 
I would expect courts to be guided by the teachings of the Second and 
the Ninth Circuits that, in the ordinary case, a reasonable time is no 
more than seven days.
  Several changes in the Foreign Intelligence Surveillance Act, FISA, 
are designed to clarify technical aspects of the statutory framework 
and take account of experience in practical implementation. These 
changes are not controversial, and they will facilitate the collection 
of intelligence for counterterrorism and counterintelligence purposes. 
Other changes are more significant and required careful evaluation and 
revision of the administration's proposals.
  The USA Act, in section 207, changes the duration of electronic 
surveillance under FISA in cases of an agent of a foreign power, other 
than a United States persons, who acts in the United States as an 
officer or employee of a foreign power or as a member of an 
international terrorist group. Current law limits court orders in these 
cases to 90 days, the same duration as for United States persons. 
Experience indicates, however, that after the initial period has 
confirmed probable cause that the foreign national meets the statutory 
standard, court orders are renewed repeatedly and the 90-day renewal 
becomes an unnecessary procedural for investigators taxed with far more 
pressing duties.
  The administration proposed that the period of electronic 
surveillance be changed from 90 days to one year in these cases. This 
proposal did not ensure adequate review after the initial stage to 
ensure that the probable cause determination remained justified over 
time. Therefore, the bill changes the initial period of the 
surveillance 90 to 120 days and changes the period for extensions from 
90 days to one year. The initial 120-day period provides for a review 
of the results of the surveillance or search directed at an individual 
before one-year extensions are requested. These changes do not affect 
surveillance of a United States person.
  The bill also changes the period for execution of an order for 
physical search under FISA from 45 to 90 days. This change applies to 
United States persons as well as foreign nationals. Experience since 
physical search authority was added to FISA in 1994 indicates that 45 
days is frequently not long enough to plan and carry out a covert 
physical search. There is no change in the restrictions which provide 
that United States persons may not be the targets of search or 
surveillance under FISA unless a judge finds probable cause to believe 
that they are agents of foreign powers who engage in specified 
international terrorist, sabotage, or clandestine intelligence 
activities that may involve a violation of the criminal statutes of the 
United States.
  The bill, in section 208, seeks to ensure that the special court 
established under FISA has sufficient judges to handle the workload. 
While changing the duration of orders and extensions will reduce the 
number of cases in some categories, the bill retains the court's role 
in pen register and trap and trace cases and expands the court's 
responsibility for issuing orders for records and other tangible items 
needed for counterintelligence and counter terrorism investigations. 
Upon reviewing the court's requirements, the administration requested 
an increase in the number of Federal district judges designated for the 
court from seven to 11 of whom no less than 3 shall reside within 20 
miles of the District of Columbia. The latter provision ensures that 
more than one judge is available to handle cases on short notice and 
reduces the need to invoke the alternative of Attorney General approval 
under the emergency authorities in FISA.
  Other changes in FISA and related national security laws are more 
controversial. In several areas, the bill reflects a serious effort to 
accommodate the requests for expanded surveillance authority with the 
need for safeguards against misuse, especially the gathering of 
intelligence about the lawful political or commercial activities of 
Americans. One of the most difficult issues was whether to eliminate 
the existing statutory ``agent of a foreign power'' standards for 
surveillance and investigative techniques that raise important privacy 
concerns, but not at the level that the Supreme Court has held to 
require a court order and a probable cause finding under the fourth 
amendment. These include pen register and trap and trace devices, 
access to business records and other tangible items held by third 
parties, and access to records that have statutory privacy protection. 
The latter include telephone, bank, and credit records.
  The ``agent of a foreign power'' standard in existing law was 
designed to ensure that the FBI and other intelligence agencies do not 
use these surveillance and investigative methods to investigate the 
lawful activities of Americans in the name of an undefined authority to 
collect foreign intelligence or counterintelligence information. The 
law has required a showing of reasonable suspicion, less than probable 
cause, to believe that a United States person is an ``agent of a 
foreign power'' engaged in international terrorism or clandestine 
intelligence activities.
  However, the ``agent of a foreign power'' standard is more stringent 
than the standard under comparable criminal law enforcement procedures 
which require only a showing of relevance to a criminal investigation. 
The FBI's experience under existing laws since they were enacted at 
various time over the past 15 years has been that, in practice, the 
requirement to show reasonable suspicion that a person is an ``agent of 
a foreign power'' has been almost as burdensome as the

[[Page S10376]]

requirement to show probable cause required by the fourth amendment for 
more intrusive techniques. The FBI has made a clear case that a 
relevance standard is appropriate for counterintelligence and 
counterterrorism investigations, as well as for criminal 
investigations.
  The challenge, then, was to define those investigations. The 
alternative proposed by the administration was to cover any 
investigation to obtain foreign intelligence information. This was 
extremely broad, because the definition includes any information with 
respect to a foreign power that relates to, and if concerning a United 
States person is necessary to, the national defense or the security of 
the United States or the conduct of the foreign affairs of the United 
States. This goes far beyond FBI counterintelligence and 
counterterrorism requirements. Instead, the bill requires that use of 
the surveillance technique or access to the records be relevant to an 
investigation to protect against international terrorism or clandestine 
intelligence activities.
  In addition, an investigation of a United States person may not be 
based solely on activities protected by the first amendment. This 
framework applies to pen registers and trap and trace under section 
215, access to records and other items under section 215, and the 
national security authorities for access to telephone, bank, and credit 
records under section 506. Lawful political dissent and protest by 
American citizens against the government may not be the basis for FBI 
counterintelligence and counterterrorism investigations under these 
provisions.
  A separate issue for pen registers and trap and trace under FISA is 
whether the court should have the discretion to make the decision on 
relevance. The administration has insisted on a certification process. 
I discussed this issue as it comes up in the criminal procedures for 
pen registers and trap and trace under title 18, and my concerns apply 
to the FISA procedures as well.
  The most controversial change in FISA requested by the administration 
was the proposal to allow surveillance and search when ``a purpose'' is 
to obtain foreign intelligence information. Current law requires that 
the secret procedures and different probable cause standards under FISA 
be used only if a high-level executive official certifies that ``the 
purpose'' is to obtain foreign intelligence formation. The 
administration's aim was to allow FISA surveillance and search for law 
enforcement purposes, so long as there was at least some element of a 
foreign intelligence purpose. This proposal raised constitutional 
concerns, which were addressed in a legal opinion provided by the 
Justice Department, which I insert in the record at the end of my 
statement.
  The Justice Department opinion did not defend the constitutionality 
of the original proposal. Instead, it addressed a suggestion made by 
Senator Feinstein to the Attorney General at the Judiciary Committee 
hearing to change ``the purpose'' to ``a significant purpose.'' No 
matter what statutory change is made even the Department concedes that 
the court's may impose a constitutional requirement of ``primary 
purpose'' based on the appellate court decisions upholding FISA against 
constitutional challenges over the past 20 years.
  Section 218 of the bill adopts ``significant purpose,'' and it will 
be up to the courts to determine how far law enforcement agencies may 
use FISA for criminal investigation and prosecution beyond the scope of 
the statutory definition of ``foreign intelligence information.''
  In addition, I proposed and the administration agreed to an 
additional provision in Section 505 that clarifies the boundaries for 
consultation and coordination between officials who conduct FISA search 
and surveillance and Federal law enforcement officials including 
prosecutors. Such consultation and coordination is authorized for the 
enforcement of laws that protect against international terrorism, 
clandestine intelligence activities of foreign agents, and other grave 
foreign threats to the nation. Protection against these foreign-based 
threats by any lawful means is within the scope of the definition of 
``foreign intelligence information,'' and the use of FISA to gather 
evidence for the enforcement of these laws was contemplated in the 
enactment of FISA. The Justice Department's opinion cites relevant 
legislative history from the Senate Intelligence Committee's report in 
1978, and there is comparable language in the House report.
  The administration initially proposed that the Attorney General be 
authorized to detain any alien indefinitely upon certification of 
suspicion to links to terrorist activities or organizations. Under 
close questioning by both Senator Kennedy and Senator Specter at the 
Committee hearing on September 25, the Attorney General said that his 
proposal was intended only to allow the Government to hold an alien 
suspected of terrorist activity while deportation proceedings were 
ongoing. In response to a question by Sen. Specter, the Attorney 
General said: ``Our intention is to be able to detain individuals who 
are the subject of deportation proceedings on other grounds, to detain 
them as if they were the subject of deportation proceedings on 
terrorism.'' The Justice Department however continued to insist on 
broader authority, including the power to detain even if the alien was 
found not to be deportable.
  I remain concerned about the provision, in section 412, but I believe 
that it is has been improved from the original proposal offered by the 
administration. Specifically, the Justice Department must now charge an 
alien with an immigration or criminal violation within seven days of 
taking custody, and the merits of the Attorney General's certification 
of an alien under this section is subject to judicial review. Moreover, 
the Attorney General can only delegate this power to the Commissioner 
of the INS, ensuring greater accountability and preventing the 
certification decision from being made by low-level officials. 
Nonetheless, I would have preferred that this provision not be 
included, and I would urge the Attorney General and his successors to 
employ great discretion in using this new power.
  In addition, the administration initially proposed a sweeping 
definition of terrorist activity and new powers for the Secretary of 
State to certify an organization as a terrorist organization for 
purposes of immigration law. We were able to work with the 
administration to refine this definition to limit its application to 
individuals with innocent contacts to non-certified organizations. We 
also limited the retroactive effect of these new definitions. If an 
alien solicited funds or membership, or provided material support for 
an organization that was not certified at that time by the Secretary of 
State, the alien will have the opportunity to show that he did not know 
and should have known that his action would further the organizations 
terrorist activity. This is a substantially more protective than the 
administration's proposal, which by its terms, would have empowered INS 
to deport someone who raised money for the African National Congress. 
Throughout our negotiations on these issues, Senator Kennedy provided 
steadfast help. Although neither of us are pleased with the final 
product, it is far better than it would have been without his 
leadership.
  I was disappointed that the administration's initial proposal 
authorizing the President to impose unilateral food and medical 
sanctions would have undermined a law we passed last year with 
overwhelming bipartisan support.
  Under that law, the President already has full authority to impose 
unilateral food and medicine sanctions during this crisis because of 
two exceptions built into the law that apply to our current situation. 
Nevertheless, the administration sought to undo this law and obtain 
virtually unlimited authority in the future to impose food and medicine 
embargoes, without making any effort for a multi-lateral approach in 
cooperation with other nations. Absent such a multi-lateral approach, 
other nations would be free to step in immediately and take over 
business from American firms and farmers that they are unilaterally 
barred from pursuing.
  Over 30 farm and export groups, including the American Farm Bureau 
Federation, the Grocery Manufacturers of America, the National Farmers 
Union, and the U.S. Dairy Export Council, wrote to me and explained 
that the administration proposal would ``not achieve its intended 
policy goal.''

[[Page S10377]]

  I worked with Senator Enzi, and other Senators, on substitute 
language to give the administration the tools it needs in this crisis. 
This substitute has been carefully crafted to avoid needlessly hurting 
American farmers in the future, yet it will assure that the United 
States can engage in effective multilateral sanctions.
  This bipartisan agreement limits the authority in the bill to 
existing laws and executive orders, which give the President full 
authority regarding this conflict, and grants authority for the 
President to restrict exports of agricultural products, medicine or 
medical devices. I continue to agree with then-Senator Ashcroft, who 
argued in 1999 that unilateral U.S. food and medicine sanctions simply 
do not work when he introduced the ``Food and Medicine for the World 
Act.'' As recently as October 2000, then-Senator Ashcroft pointed out 
how broad, unilateral embargoes of food or medicine are often 
counterproductive. Many Republican and Democratic Senators made it 
clear just last year that the U.S. should work with other countries on 
food and medical sanctions so that the sanctions will be effective in 
hurting our enemies, instead of just hurting the U.S. I am glad that 
with Senator Enzi's help, we were able to make changes in the trade 
sanctions provision to both protect our farmers and help the President 
during this crisis.
  I have done my best under the circumstances to confine the amendment 
demands to those matters that are consensus legal improvements. I 
concede that my efforts have not been completely successful and there 
are a number of provisions on which the administration has insisted 
with which I disagree. Frankly, the agreement that was made September 
30, 2001 would have led to a better balanced bill. I could not stop the 
administration from reneging on the agreement any more than I could 
have sped the process to reconstitute this bill in the aftermath of 
those breaches.
  In these times we need to work together to face the challenges of 
international terrorism. I have sought to do so in good faith.

                          ____________________