[Congressional Record Volume 148, Number 135 (Tuesday, October 15, 2002)]
[Senate]
[Pages S10425-S10432]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         AMENDING THE FISA LAW

  Mr. KYL. Mr. President, I would like to speak in morning business for 
as long as I might consume to discuss some legislation Senator Schumer 
and I have introduced and to discuss my intention to seek to have that 
legislation added to the conference of the intelligence authorization 
bill which, hopefully, will come before this body for our deliberation 
and acceptance by the end of this week--again, hopefully.
  This legislation not only will reauthorize the intelligence community 
activities that are funded by the Congress, but also, perhaps, will 
include an agreement on an outside commission that will later be 
established to look into the events prior to September 11.
  So there are some important elements to this bill. One of the items I 
would like to add to it also deals with the subject of terrorism, the 
Schumer-Kyl bill--that I will describe in just a moment--which is a 
very small provision in the so-called FISA law that would be 
appropriately added in this conference as an additional way we can help 
win the war on terror.
  Let me begin by discussing just a little bit what this legislation is 
and why it is necessary, and then I will discuss a little bit further 
how we would like to have it considered.
  The bill number is S. 2568, called the Schumer-Kyl bill. It would add 
three words to the FISA legislation under which we are now able to 
gather information that is useful in conducting our war on terror.
  The Foreign Intelligence Surveillance Act, or FISA, is a law which 
provides a special way of gathering this evidence against terrorists, 
and its origins are back in the 1970s. But it deals with a different 
situation today in terrorism than it did back then.
  Let me just go back in time. The idea was if you were working for a 
foreign government, we ought to have a little better ability to 
investigate you than through the probable cause requirements of the 4th 
amendment that we would ordinarily apply in a title III court 
situation. So the FISA law was established to say if you have evidence 
someone is working for a foreign government or an international 
terrorist organization, then you can involve the FISA Court, the 
special court, to ask that court for a warrant to do a wiretap or to 
search a home or to search a computer, or whatever the case might be.
  Back in the 1970s, when this was first started, it was a fairly 
straightforward proposition. If you thought, for example, you might be 
dealing with a foreign spy, somebody working for the then-Soviet Union, 
you could go to the FISA Court and get a warrant for the information 
you were seeking, and it was a little easier to obtain than through a 
regular court.
  Secondly, the information was all classified, secret; it did not have 
to be shared with anyone else, and these judges were cleared to receive 
that information. So we were able to keep these kinds of investigations 
classified, and obviously that was a key element to be able to 
prosecute these counterterrorism types of cases. But back then the 
classical FISA target would be either a Soviet agent or perhaps one of 
the sort of hierarchical terrorist organizations such as the Bader-
Meinhof gang in West Germany or the Red Army faction or a group of that 
sort. Today, as you know, the situation is very different.

  We have in the world today amorphous terrorist groups that have 
spread throughout the entire world that are very loosely affiliated, 
sometimes not affiliated at all. It is not even clear frequently 
whether individual people are directly connected to the terrorist group 
or actually members of the terrorist group. And when we speak of 
``members of,'' I am not even sure anybody can define a member of a 
terrorist organization. You do not pay dues and have a card that 
identifies you as a member of al-Qaida or Hamas or Hezbollah or the 
Islamic Jihad or any of these other organizations.
  Now, it is true within the group there, you would have to be accepted 
as someone they could trust, but I do not necessarily think they look 
at the people with whom they work as members of the organization.
  So we wrote a statute back in the 1970s for a different type of enemy 
than the enemy we face today. What we are finding is sometimes it is 
very difficult to connect up a particular terrorist either with a 
foreign country or with a particular terrorist organization. We know 
there are state sponsors of terrorism, and I suppose if we had evidence 
somebody here in the United States was planning to commit an act of 
terror, and they were employed by the Government of, let's say, Iran, 
we could probably get a FISA warrant because we could connect them 
pretty easily to a foreign country that has been known to conduct state 
terrorism. But it is a lot more difficult when you have somebody such 
as Zacarias Moussaoui, for example, the alleged 20th hijacker. His is 
an actual case in point used by many to demonstrate the fact that our 
law enforcement agencies did not act quickly enough in order to obtain 
a FISA warrant against him. The reason they did not is precisely 
because of the difficulty of connecting him to a foreign country or a 
particular international terrorist organization, which is what the FISA 
statute requires.
  Now, bear in mind one of the rationales for being able to accelerate 
and short circuit the procedures here with a FISA warrant, as opposed 
to a regular title III type warrant, is you are dealing with a foreign 
country. You are not dealing with an American citizen. You are dealing 
with a threat from without or an international terrorist organization. 
So that is the theory.
  But in the case of someone such as Zacarias Moussaoui, even though he 
was a foreign person--not a United States citizen--we could not connect 
him with Algeria or France or any of the other countries of the world. 
We thought his activities looked very suspicious and that they could be 
terrorist-type planning, but not connected to a particular country. Nor 
was it possible to connect him to al-Qaida. We did not have information 
connecting him to al-Qaida. We had some information that in an around-
about way connected him to terrorists in a particular place but not an 
international terrorist organization.
  So here you had a situation where he was talking to some terrorists, 
he looked to be interested in engaging in activity that could result in 
terrorism here in the United States, but the two requirements to get a 
warrant--either that he was involved in state-sponsored terror with a 
particular country or a particular international terror organization--
could not be proved. And as a result, either legitimately or not 
legitimately, the FBI did not authorize a warrant to search his 
computer, notwithstanding the fact there were some in our law 
enforcement community who wished to do that. And, of course, his 
computer was not searched until after September 11.
  What the Schumer-Kyl bill does is to correct this one little 
deficiency in the statute to bring it up to date, literally from the 
time it was created back in the cold war days, to today's environment 
in which you have amorphous terrorist groups floating around with 
individuals freely associating amongst them, or perhaps even not at all 
with them but engaged in terror.
  What it does is to correct this problem with the statute by adding 
just three words--``or foreign person''--to the targets of the warrant. 
So an individual would be the subject of a warrant if you could show 
you had probable cause to believe the individual was engaged in or 
planning to engage in an act of terrorism and either was doing so on 
behalf of another country, an international terrorist organization, or 
the person himself is a foreign person.
  So you have the connection of two things. You have a potential act of 
terror and a foreign person. And that is

[[Page S10426]]

basically the same rationale that exists with respect to the rationale 
for the original FISA law and warrants authorized thereunder.
  By adding to the definition of ``foreign power,'' a ``foreign 
person,'' ``a foreign person,'' you include the kind of case Moussaoui 
presented to us where we knew we wanted to look into his affairs. We 
could not do so under FISA because we couldn't connect him to a foreign 
power or terrorist organization, and yet as the facts definitely 
indicated, it was somebody we should have been able to, whose computer 
we should have been able to search prior to September 11.
  Let me be a little more specific about this case because there are 
those who will wonder whether or not maybe we are opening the FISA 
statute up to potential abuse of American citizens--the answer to that 
is no--by our definition, or that guests of the United States, foreign 
persons who were here on, let's say, a nonimmigrant visa, such as 
Moussaoui--that maybe their rights would be violated. I want to make it 
clear that that would not be the case.
  We are familiar with the FBI special agent from Minneapolis, Coleen 
Rowley, who wrote the famous memo relating to Zacarias Moussaoui. She 
testified before the Intelligence and Judiciary Committees that she 
believed this kind of additional authority not only was warranted but 
was necessary for people like her in the field offices to do their work 
and she did not believe that would raise any additional questions; that 
it was an essential part of the tools the individuals in her position 
would need.
  Director Mueller of the FBI, as well, indicated in testimony that he 
believed the current limited foreign power definition would have made 
it difficult for the FBI to secure a FISA warrant against any of the 
September 11 hijackers. And in fact he noted to the committee:

       Prior to September 11, of the 19 or 20 hijackers, we had 
     very little information as to any one of the individuals 
     being associated with a particular terrorist group.

  So what this amendment does is deal with two situations. The first is 
where you literally have the lone wolf, a terrorist acting on his or 
her own behalf unconnected to an international terrorist organization 
or foreign power but who is a foreign person in this country planning 
to commit an act of terrorism against Americans. That is exactly what 
the FISA warrants are supposed to be getting at or are supposed to 
enable us to collect information on. Yet under the current statute that 
would not be possible. This solves the lone wolf problem.
  It also solves the Moussaoui problem, which is the case of an 
individual who you think is associated with terrorists but you cannot 
prove that, but you definitely have the probable cause to think there 
is an act of terror being planned and, therefore, you seek the warrant. 
It would be authorized under the foreign persons provision we are 
adding, and you then could connect the individual to an international 
terrorist organization or foreign power. That is what eventually 
occurred with respect to Moussaoui.
  The point is, we are no longer just looking at the FISA warrant to 
prosecute someone for a crime that has been committed. The entire 
effort of the Congress, the intelligence community, and the 
administration after September 11 was to add a mission as a superior 
mission to the law enforcement after-the-fact-prosecution-of-crime 
mission of the FBI, and that new mission was to try to prevent or 
preempt crimes from occurring in the first instance. So the FBI has 
been reorganized to go out and seek information on potential terrorists 
and be able to prevent the terrorist attack before it occurs.

  If it occurs, they can still do the second function, which is to 
prosecute after the fact. But the first object of the game is to 
prevent it from happening in the first place. That is the way they have 
been reorganized.
  What they are now going to try to do is, using statutes such as the 
FISA statute, to uncover information with respect to people about to 
commit acts of terror and stop it from occurring. But without the 
change in the Schumer-Kyl bill, we are leaving one great big loophole 
available to the terrorists. That is the terrorist who is either acting 
on his own or the terrorist who, while acting on behalf of an 
international terrorist organization or state, has not yet clearly 
signalled that to our law enforcement officials to the point that we 
can succeed in getting a FISA warrant.
  Our change will enable us to get the warrant and then tie the 
individual to the international terrorist organization or foreign 
state, if that, in fact, is the state of information.
  Let me go on with respect to the Moussaoui case to illustrate how 
this would work. The agent from the Minneapolis FBI office described to 
the Judiciary and Intelligence Committees how that office opened the 
investigation of Moussaoui on August 15, 2001. The dates are very 
important. This was a month before the attack on the World Trade Center 
and the Pentagon. The Minneapolis agents arrested Moussaoui on 
immigration charges at that time and applied for a FISA warrant to 
search his belongings.
  But as the FBI's deputy general counsel stated before the two 
committees, although Moussaoui was found to have some association with 
Chechen terrorists, the evidence was inadequate to show that he served 
as an agent of that group or that he had any links whatsoever to al-
Qaida.
  So as the FBI deputy general counsel confirmed, it was the strength 
of Moussaoui's connection to the Chechens, not a misunderstanding of 
whether they constituted a recognized foreign power for FISA purposes, 
as the Washington Post originally suggested, that ultimately prevented 
the issuance of a warrant. As a result, for 3 weeks prior to the 
September 11 attack, the FBI was unable to search Moussaoui's computer 
or his papers.
  After the trade center and Pentagon attacks, and largely because of 
them, the FBI received a criminal warrant to search Moussaoui. Among 
other things, the information in his effects linked him to two of the 
actual hijackers and to a high-level organizer of the attacks recently 
arrested in Pakistan.
  Nobody can say whether this information necessarily would have 
allowed us to stop the September 11 conspiracy. But everyone would 
agree that access to this information would have been very helpful and 
could have enabled us to do more than we did. Once they had evidence 
that he was involved in international terrorism, the full FISA tools 
would have been available to them, regardless of whether they could be 
linked to a particular group. But instead, the outdated and unnecessary 
requirement in the statute to link him to a specific international 
group prevented the FBI agents from pursuing what turned out to be the 
very best lead they had prior to the September 11 attacks.
  We have looked into this. We have had several people testify before 
our committee on behalf of the administration in support of this three-
word change to the FISA statute. Yet it has been very difficult for us 
to get action.
  It is true that the legislation has not been marked up in the 
Judiciary Committee, but, frankly, the chairman has not afforded us 
that opportunity. Notwithstanding the fact that we have had testimony 
in several different hearings of two different committees, we have not 
been able to get the bill as a freestanding bill to the floor for 
consideration by the Senate.

  There is an opportunity for us to attach it as an amendment. As I 
said, the best opportunity is the authorization bill of the 
intelligence community. This is the perfect opportunity for us to do 
so.
  There will be those who will say the bill has not gone through the 
regular order of the committees and, therefore, it should not be 
included on the authorization bill of the intelligence community.
  The response to that is twofold: First of all, at this stage in the 
session, in these last few days, we will see hundreds of bills come 
through here, hotlined--the phrase we use--bills that will be put at 
the desk. Members will be asked whether they have any objection to 
these bills. If there are no objections, they will pass by unanimous 
consent bills that never saw a markup in committee. Some legislation 
will be brought over from the House of Representatives that was not 
even considered in a hearing in a Senate committee. That is the way at 
the end of the session a lot of legislation is dealt with. There would 
be no reason for

[[Page S10427]]

something such as this not to be dealt with in the same way.
  The second reason I submit is, we are in a war. Certainly we should 
not put form above substance in these circumstances. If we all agree 
that it makes sense to do what the FBI and the Justice Department and 
the intelligence community are asking for--to add three words to the 
FISA statute so that we don't have another case like the Moussaoui 
case, so that we are able to look at the effects of someone who we 
believe is engaged in terrorism against Americans or is planning to be 
engaged in it, even though we can't connect them yet to a specific 
terrorist organization--if we believe that that is a good thing, then 
we should find the very first legislative vehicle we can to attach this 
amendment in order to effect that change.
  Time is very short. We will have to get it over to the House of 
Representatives, which will have to act in the same truncated fashion 
in order to send the bill to the President. We can do that if it is 
part of the intelligence authorization conference report because both 
bodies can approve the legislation at the same time and have it sent to 
the President and signed in a matter of days. So this is the best 
opportunity for us to do that--unless we are going to put form over 
substance.
  Let me make this sober point. A lot of our colleagues have pointed 
fingers at different people in the intelligence community. They have 
criticized procedures and policies of the intelligence community, and 
by that I mean our law enforcement community has been criticized, even 
by name.
  It has been said there was a massive intelligence failure prior to 
September 11. I am part of a joint investigative committee looking into 
the events from an Senate Intelligence Committee standpoint--events 
prior to September 11--as a member of the Senate Intelligence 
Committee.
  Almost every one of us has spoken at one time or another about what 
we believe were defects in the way our law enforcement and intelligence 
community approached events prior to September 11. There has been 
enough information uncovered by now to know that things could have been 
done better. A lot of different people could have done better than they 
did.
  Could we have prevented September 11? Nobody has gone that far. We 
could have come a lot closer. The Zacarias Moussaoui case is a good 
example of it. Today, we are in a situation where the Moussaoui kind of 
case could easily be replicated tomorrow. It could be the situation 
that is underway right now. It could be that someone such as this plans 
an attack and, God forbid, even carries out an attack, and later people 
are going to ask the question: What could we have done about that?
  If we don't find a way to make this change now, in the last very few 
days of this legislative session, we are going to be passing up an 
opportunity to save American lives. We would not be able to look at 
ourselves in the mirror if something similar to this happened again and 
we had failed to make this change. It is certainly not a preposterous 
thought that it could happen. It has already happened.
  Our law enforcement community and intelligence community have told us 
this is a problem in today's environment. It is no longer the cold war, 
where you were just dealing with the Soviet Union or the Red Brigade. 
You are dealing now with people who have very loose affiliations--if 
any at all--but they are still terrorists. Our law didn't contemplate 
that when it was written. So now we have to fix the law.
  There is no reason not to make this change. Violate American civil 
rights? No. By its definition, it only applies to foreign persons. It 
cannot possibly violate the constitutional rights of any American--by 
its definition, it cannot.
  Are we concerned about the constitutional rights of a non-American?
  Now, non-Americans do have certain rights in this country, but they 
do not have the right of the fourth amendment search and seizure 
prohibitions in the context of a statute such as the FISA statute, 
which has been upheld as constitutional.
  So as long as there is the foreign nexus there, and you are not 
talking about a U.S. citizen, again, it is impossible to be violating 
somebody's rights. The warrant request still has to be made to a judge. 
The judge still has to sign off on it. You still have to have the 
evidence backing up your belief that the individual is planning to or 
is in the act of engaging in an act of terror. So this isn't just some 
two-bit street criminal you are talking about. It has to be somebody on 
whom you have some evidence with respect to terrorism. It has to be a 
foreign person. If that person is in the United States, and if the 
terrorist act is focused on Americans, then you should have the right 
under the FISA statute to look further.

  That is all this statute does. It enables you to go to a judge and 
say: Judge, will you please issue a warrant so that we can open up this 
guy's computer and see whether he really is engaged in an act of 
terrorism against American citizens?
  That is what we are talking about, and it is all we are talking 
about. I just ask any Member of this body who disagrees with me to 
please come down here, if not tonight, then tomorrow or the next day or 
approach me in the hallway or call my office and tell me why they would 
not support us.
  What I don't want to happen is that there is some anonymous 
objection--a so-called hold--put on the bill, so that I have to try to 
track down who it is who anonymously objects to what we are trying to 
do. This is too important for the sake of America's security.
  By the way, I have no idea that any one of my colleagues necessarily 
objects to what I am trying to accomplish. But what I am saying is that 
we don't have time now to fool around with this and go through the 
delays that sometimes accompany the consideration of legislation toward 
the end of a session. I need to know who, if anyone, really does have 
an objection so I can meet with that individual and try to assure her 
or him that there is no problem with this piece of legislation.
  It has been vetted by the administration. The administration supports 
it. It has the support of those who have testified before our 
committees. The Office of Legal Counsel has confirmed that the 
amendment is well within the Constitution. I will quote that in a 
moment.
  So if there is any objection, we need to know what it is. We intend 
to include it in the Intelligence Committee authorization bill, and, 
obviously, that is a bill that must pass the Senate and the House. We 
don't want it to be held up because of somebody's concern about our 
particular amendment.
  With regard to this question of constitutionality, I direct your 
attention to a July 31, 2002, letter presenting the views of the U.S. 
Department of Justice on S. 2586. It announces the Department's support 
for the bill and provides ``a detailed analysis of the relevant fourth 
amendment case law in support of the Department's conclusion that the 
bill would satisfy constitutional requirements.''
  So there is no reason for anyone to object to the bill on 
constitutional grounds, and, obviously, I can see no other grounds on 
which anyone would raise any questions. The Department of Justice, in 
particular, emphasized that ``anybody monitored pursuant to the bill 
would be someone who, at the very least, is involved in terrorist acts 
that transcend national boundaries in terms of the means by which they 
are accomplished, the persons they appear intended to coerce or 
intimidate, or the locale in which the perpetrators operate or seek 
asylum''--50 U.S.C., section 1801(c)(3).
  As a result, the Department says:

       A FISA warrant would still be limited to collecting forward 
     intelligence for the international responsibilities of the 
     United States and the duties of the Federal Government to the 
     States in matters involving foreign terrorists.

  That is the test supplied by U.S. v. Duggan, a Second Circuit case, 
1984, which presents the relevant test. Therefore:

       The same interests and considerations that support the 
     constitutionality of FISA as it now stands would provide the 
     constitutional justification for S. 2568.

  Mr. President, I think there is no question of constitutionality, 
there is no question of need, and there is no question about the timing 
requirement that we act now. Therefore, I urge my colleagues to support 
the Schumer-Kyl legislation to enable us to include it as part of the 
authorization bill for our Intelligence Committee. If there is any 
question about whether or not their support would be there, bring that 
to

[[Page S10428]]

my attention at the earliest moment so that we won't have an issue.
  I have assured Senator Graham of Florida, chairman of the Select 
Committee on Intelligence, of my commitment to ensure that the 
authorization bill is passed and not to allow anything to interfere 
with that. At the same time, it seems to me our proposal here is so 
required, so commonsense, so timely, that it is appropriate to include 
it in the legislation and that the burden should be on someone who 
objects to demonstrate to us why they object, if in fact they do.
  Mr. President, I ask unanimous consent to print in the Record at the 
conclusion of my remarks two documents: One is a Dear Colleague letter 
dated September 26, 2002, that was sent by Senator Schumer and I to our 
colleagues that describes in some detail S. 2586; and the other 
document is a statement for the Record of Marion E. ``Spike'' Bowman, 
Deputy General Counsel, the Federal Bureau of Investigation, in 
testimony before the Senate Select Committee on Intelligence, July 31, 
2002.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. KYL. Mr. President, let me note a little bit what the second 
document is, and then I will conclude. What the Deputy General Counsel 
of the FBI testified before our committee was how terrorism has changed 
from the time the FISA statute was first enacted to what we see today. 
Let me quote a little bit from his statement:

       When FISA was enacted, terrorism was very different from 
     what we see today. In the 1970s, terrorism more often 
     targeted individuals, often carefully selected. This was the 
     usual pattern of the Japanese Red Army, the Red Brigades and 
     similar organizations listed by name in the legislative 
     history of FISA. Today we see terrorism far more lethal and 
     far more indiscriminate than could have been imagined in 
     1978. It takes only the events of September 11, 2001, to 
     fully comprehend the difference of a couple of decades. But 
     there is another difference as well. Where we once saw 
     terrorism formed solely around organized groups, today we 
     often see individuals willing to commit indiscriminate acts 
     of terror. It may be that these individuals are affiliated 
     with groups we do not see, but it may be that they are simply 
     radicals who desire to bring about destruction.

  Mr. President, he goes on then to relate that to the legislation that 
Senator Schumer and I introduced. Let me quote a little more. What he 
says is:

       . . . we are increasingly seeing terrorist suspects who 
     appear to operate at a distance from these organizations. In 
     perhaps an oversimplification, but illustrative nevertheless, 
     what we see today are (1) agents of foreign powers in the 
     traditional sense who are associated with some organization 
     or discernible group (2) individuals who appear to have 
     connections with multiple terrorist organizations but who do 
     not appear to owe allegiance to any one of them, but rather 
     owe allegiance to the International Jihad movement----

  Parenthetically, Mr. President, which is not a terrorist 
organization----
       and (3) individuals who appear to be personally oriented 
     toward terrorism but with whom there is no known connection 
     to a foreign power.

  Let me skip in the interest of time. Agent Bowman goes on to say:

       During the decade-long Soviet/Afghan conflict, anywhere 
     from 10,000 to 25,000 Muslim fighters representing some 
     forty-three countries put aside substantial cultural 
     differences to fight alongside each other in Afghanistan. The 
     force drawing them together was the Islamic concept of 
     ``umma'' or Muslim community. In this concept, nationalism is 
     secondary to the Muslim community as a whole. As a result, 
     Muslims from disparate cultures trained together, formed 
     relationships, sometimes assembled in groups that otherwise 
     would have been at odds with one another and acquired common 
     ideologies. . . .
       Following the withdrawal of the Soviet forces 
     in Afghanistan, many of these fighters returned to their 
     homelands, but they returned with new skills and dangerous 
     ideas. They now had newly-acquired terrorist training as 
     guerrilla warfare was the only way they could combat the 
     more advanced Soviet forces.

  These are the forces that after the Soviets were defeated in 
Afghanistan became a force that coalesced around, among others, Osama 
bin Laden, but not all of them associated specifically with Bin Laden. 
I quote further:

       Information from a variety of sources repeatedly carries 
     the theme from Islamic radicals that expresses the opinion 
     that we just don't get it. Terrorists world-wide speak of 
     jihad and wonder why the western world is focused on groups 
     rather than on concepts that make them a community.

  This is the way we have organized our statutes. What he is telling us 
is we are not seeing it the way our enemies see it. They do not 
organize in groups. They do not have membership cards that say they are 
a member of al-Qaida. They have coalesced around an idea, not a group.
  The agent concludes this way:

       The lesson to be taken from this is that al-Qaida is far 
     less a large organization than a facilitator, sometimes 
     orchestrator of Islamic militants around the globe. These 
     militants are linked by ideas and goals, not by 
     organizational structure.

  He concludes by saying:

       The United States and its allies, to include law 
     enforcement and intelligence components world-wide have had 
     an impact on the terrorists, but they are adapting to 
     changing circumstances. Speaking solely from an operational 
     perspective, investigation of these individuals who have no 
     clear connection to organized terrorism, or tenuous ties to 
     multiple organizations, is becoming increasingly difficult.
       The current FISA statute has served the nation well, but 
     the International Jihad Movement demonstrates the need to 
     consider whether a different formulation is needed to address 
     the contemporary terrorist problem.

  That is the end of that quotation, Mr. President. Of course, he and 
others representing the Department of Justice went on to specifically 
endorse the Schumer-Kyl legislation to bring our current FISA statute 
up to date to conform to this new challenge about which Agent Bowan 
testified. That is the change we are trying to make.
  To wrap this up, there are three words we would add to the FISA 
statute: ``or foreign person,'' so that if you can prove the terrorist 
is either a terrorist for an international terrorist organization or is 
a terrorist for another state, a country, or is acting for himself ``or 
foreign person'' are the words we use--in other words, he is a 
terrorist and a foreign person--any one of those three circumstances 
enable you to go to the judge and say: Here is our evidence that this 
individual is planning to engage in terrorism against people in the 
United States. Will you give us a warrant to search his computer, to 
search his personal effects, his home, or to put a wiretap on his 
telephone, whatever the case might be? The judge will then make a 
decision under the law, whether it is authorized or not.
  If the court authorizes the issuance of the warrant, we can then look 
further to determine what this individual is seeking to do. We may find 
out it is an innocent situation or we may find out that the individual 
is just acting on his own but is a radical terrorist meaning to do harm 
to Americans or we may find, as in the case of Zacarias Moussaoui, that 
it turns out he is engaged as part of an international conspiracy with 
a specific organization, in this case al-Qaida, but we do not know that 
and cannot prove it going in. That is why the change we seek is so 
critical.

  I ask my colleagues to support the inclusion of this amendment as 
part of the authorization bill for the intelligence community, and if 
there is any problem that anybody sees, to bring it to our attention so 
we can deal with that prior to that bill coming to the floor because we 
do not want to slow that bill down or stop it from being considered 
favorably on the Senate floor.
  Mr. President, I urge my colleagues to support our amendment. It is 
for the good of the country, for our national security, and I say this 
in conclusion: If we fail to do this and it was our fault that someone 
utilized our legal system to plan an act of terror against Americans, 
and Americans are killed or injured as a result of our failure, then we 
would have nobody but ourselves to blame.
  I am going to try as hard as I can to get this done, but anyone who 
stands in the way is going to have to stand accountable if, God forbid, 
something should happen and we are unable to get this accomplished 
before we close our session.
  I urge my colleagues to please support Senator Schumer and me in 
ensuring we can get this important amendment accomplished before we 
adjourn for the year.

                               Exhibit 1

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                               Washington, DC, September 26, 2002.
       Dear Colleague: We have introduced S. 2586--the Schumer/Kyl 
     ``Moussaoui exception'' bill--as an amendment to the Homeland 
     Security bill. S. 2586 would amend the

[[Page S10429]]

     Foreign Intelligence Surveillance Act (FISA) to reach any 
     foreign visitor to the United States who is believed to be 
     involved in international terrorism, regardless of whether 
     that person is known to be an agent of a foreign government 
     or terror group. The bill is designed to make it easier for 
     the FBI to monitor suspected lone-wolf terrorists such as 
     alleged 20th hijacker Zaccarias Moussaoui.
       The Senate Select Committee on Intelligence held a hearing 
     on S. 2586 on July 31, 2002. The Department of Justice has 
     endorsed the bill in a Statement of Administration Policy, 
     which we have attached for your review. Below is our 
     explanation of the workings of the bill and an examination of 
     those facts that we believe show that this change is 
     necessary. We hope that you will join us in supporting this 
     important legislation.
       The Foreign Intelligence Surveillance Act requires that in 
     order for a warrant to issue under that law, a court must 
     find probable cause to believe that the target of the warrant 
     is either an agent of, or is himself, a ``foreign power''--a 
     term that is currently defined to only include foreign 
     governments or international terrorist organizations. 
     Requiring a link to governments or established organizations 
     may have made sense when FISA was enacted in 1978; in that 
     year, the prototypical FISA target was a Soviet spy or a 
     member of one of the hierarchical, military-style terror 
     groups of that era, such as West Germany's Baader-Meinhof 
     gang or the Red Army Faction. Today, however, the United 
     States faces a much different threat. We are principally 
     confronted not by a specific group or government, but by a 
     movement. This movement--of Islamist extremists--does not 
     maintain a fixed structure or membership list, and its 
     adherents do not always advertise their affiliation with this 
     cause.
       S. 2586 will help the United States to meet this threat by 
     expanding FISA's definition of ``foreign power.'' In addition 
     to governments and organized groups, that term, under the 
     bill, would also include ``any person, other than a United 
     States person, or group that is engaged in international 
     terrorism or activities in preparation therefor.'' With this 
     change, U.S. intelligence agents would be able to secure a 
     FISA warrant to monitor a foreign visitor to the United 
     States who is involved in international terrorism--even if 
     his links to foreign government or known terror groups remain 
     obscure.
       The role of the foreign-power requirement in obstructing 
     pre-September 11 investigations of Zaccarias Moussaoui was 
     confirmed in dramatic testimony before the House and Senate 
     Intelligence Committees on Tuesday of this week. An agent 
     from the Minneapolis FBI office described to the Committees 
     how that office opened an investigation of Moussaoui on 
     August 15, 2001. Minneapolis agents arrested Moussaoui on 
     immigration charges and applied for a FISA warrant to search 
     his belongings. But as the FBI's Deputy General Counsel 
     stated on Tuesday before the Committees, although Moussaoui 
     was found to have some associations with Chechen terrorists, 
     the evidence was inadequate to show that he served as an 
     agent of that group--or that he had any links to Al Qaeda. 
     (Thus, as the FBI's Deputy General Counsel has confirmed, it 
     was the strength of Moussaoui's connection to the Chechens--
     not a ``misunderstanding'' of whether the Chechens constitute 
     a ``recognized'' foreign power for FISA purposes, as 
     yesterday's Washington Post story suggested--that ultimately 
     prevented the issuance of a warrant.) As a result, for three 
     weeks prior to the September 11 attacks, the FBI was unable 
     to search Moussaoui's computer or his papers.
       After the Trade Center and Pentagon attacks--and largely 
     because of them--the FBI received a criminal warrant to 
     search Moussaoui. Among other things, the information in his 
     effects linked Moussaoui to two of the actual hijackers, and 
     to a high-level organizer of the attacks who was recently 
     arrested in Pakistan.
       No one can say whether this information would have allowed 
     the FBI to stop the September 11 conspiracy. But all must 
     agree that the FBI should have access to this information. 
     Once U.S. agents had evidence that Moussaoui was involved in 
     international terrorism, the full tools of FISA should have 
     been available to them--regardless of whether Moussaoui could 
     be linked to a particular group. Instead, this outdated and 
     unnecessary requirement blocked U.S. intelligence agents from 
     pursuing their best lead on the eve of the September 11 
     attacks. Indeed, according to FBI Director Mueller, the 
     current standard probably would have prevented the FBI from 
     using FISA against any of the September 11 hijackers. As the 
     Director noted in his testimony before the Judiciary 
     Committee earlier this year, ``prior to September 11, [of] 
     the 19 or 20 hijackers, * * * we had very little information 
     as to any one of the individuals being associated with * * * 
     * a particular terrorist group.''
       Several congressional Committees have now conducted 
     investigations and held hearings examining why our 
     intelligence services failed to prevent the September 
     attacks. Those hearings and investigations uncovered a 
     substantial defect in the current law--a defect that may have 
     prevented the United States from stopping that conspiracy, 
     and is likely to hinder future investigations. Simply put, 
     our laws are no longer suited to the type of threat that we 
     face. It is now incumbent on Congress to act on what it has 
     learned.
       We hope that you will join us in supporting our ``Moussaoui 
     fix'' amendment to the Homeland Security bill, should a roll 
     call vote on that amendment be required.
       If you have any questions, please contact Jim Flood in 
     Senator Schumer's office at 4-7425 or Joe Matal in Senator 
     Kyl's office at 4-6791.
           Sincerely,
     Charles Schumer.
     Jon Kyl.
                                  ____

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                    Washington, DC, July 31, 2002.
     Hon. Bob Graham,
     Chairman, Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
     Hon. Richard C. Shelby,
     Vice-Chairman, Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman and Mr. Vice Chairman: The letter 
     presents the views of the Justice Department on S. 2586, a 
     bill ``[t]o exclude United States persons from the definition 
     of `foreign power' under the Foreign Intelligence 
     Surveillance Act of 1978 relating to international 
     terrorism.'' The bill would extend the coverage of the 
     Foreign Intelligence Surveillance Act (``FISA'') to 
     individuals who engage in international terrorism or 
     activities in preparation therefor without a showing of 
     membership in or affiliation with an international terrorist 
     group. The bill would limit this type of coverage to non-
     United States persons. The Department of Justice supports S. 
     2586.
       We note that the proposed title of the bill is potentially 
     misleading. The current title is ``To exclude United States 
     persons from the definition of `foreign power' under the 
     Foreign Intelligence Surveillance Act of 1978 relating to 
     international terrorism.'' A better title, in keeping with 
     the function of the bill, would be something along the 
     following lines: ``To expand the Foreign Intelligence 
     Surveillance Act of 1978 (`FISA') to reach individuals other 
     than United States persons who engage in international 
     terrorism without affiliation with an international terrorist 
     group.''
       Additionally, we understand that a question has arisen as 
     to whether S. 2586 would satisfy constitutional requirements. 
     We believe that it would.
       FISA allows a specially designated court to issue an order 
     approving an electronic surveillance or physical search, 
     where a significant purpose of the surveillance or search is 
     ``to obtain foreign intelligence information.'' Id 
     Sec. Sec. 1804(a)(7)(B), 1805(a). Given this purpose, the 
     court makes a determination about probable cause that differs 
     in some respects from the determination ordinarily underlying 
     a search warrant. The court need not find that there is 
     probable cause to believe that the surveillance or search, in 
     fact, will lead to foreign intelligence information, let 
     alone evidence of a crime, and in many instances need not 
     find probable cause to believe that the target has committed 
     a criminal act. The court instead determines, in the case of 
     electronic surveillance, whether there is probable cause to 
     believe that ``the target of the electronic surveillance is a 
     foreign power or an agent of a foreign power,'' id. 
     Sec. 1805(a)(3)(A), and that each of the places at which the 
     surveillance is directed ``is being used, or about to be 
     used, by a foreign power or an agent of a foreign power,'' 
     id. Sec. 1805(a)(3)(B). The court makes parallel 
     determinations in the case of a physical search. Id. 
     Sec. 1824(a)(3) (A), (B).
       The terms ``foreign power'' and ``agent of a foreign 
     power'' are defined at some length, id. Sec. 1801(a), (b), 
     and specific parts of the definitions are especially 
     applicable to surveillances or searches aimed at collecting 
     intelligence about terrorism. As currently defined, ``foreign 
     power'' includes ``a group engaged in international terrorism 
     or activities in preparation therefor,'' id. Sec. 1801(a)(4) 
     (emphasis added), and an ``agent of a foreign power'' 
     includes any person who ``knowingly engages in sabotage or 
     international terrorism or activities that are in preparation 
     therefor, for or on behalf of a foreign power,'' id. 
     Sec. 1801(b)(2)(C). ``International terrorism'' is defined to 
     mean activities that
       (1) involve violent acts or acts dangerous to human life 
     that are a violation of the criminal laws of the United 
     States or of any State, or that would be a criminal violation 
     if committed within the justification of the United States or 
     any State;
       (2) appear to be intended--
       (A) to intimidate or coerce a civilian population;
       (B) to influence the policy of a government by intimidation 
     or coercion; or
       (C) to affect the conduct of a government by assassination 
     or kidnapping; and
       (3) occur totally outside the United States, or transcend 
     national boundaries in terms of the means by which they are 
     accomplished, the persons they appear intended to coerce or 
     intimidate, or the locale in which their perpetrators operate 
     or seek asylum.
       Id. Sec. 1801(c).
       S. 2586 would expand the definition of ``foreign power'' to 
     reach persons who are involved in activities defined as 
     ``international terrorism,'' even if these persons cannot be 
     shown to be agents of a ``group'' engaged in international 
     terrorism. To achieve this expansion, the bill would add the 
     following italicized words to the current definition of 
     ``foreign power'': ``any person other than a United States 
     person who is, or a group that is, engaged in international 
     terrorism or activities in preparation therefor.''
       The courts repeatedly have upheld the constitutionality, 
     under the Fourth Amendment, of the FISA provisions that 
     permit

[[Page S10430]]

     issuance of an order based on probable cause to believe that 
     the target of a surveillance or search is a foreign power or 
     agent of a foreign power. The question posed by S. 2586 would 
     be whether the reasoning of those cases precludes expansion 
     of the term ``foreign power'' to include individual 
     international terrorists who are unconnected to a terrorist 
     group.
       The Second Circuit's decision in United States v. Duggan, 
     743 F. 2d 59 (2d Cir. 1984), sets out the fullest explanation 
     of the ``governmental concerns'' that had led to the 
     enactment of the procedures in FISA. To identify these 
     concerns, the court first quoted from the Supreme Court's 
     decision in United States v. United States District Court, 
     407 U.S. 297, 308 (1972) (``Keith''), which addressed 
     ``domestic national security surveillance'' rather than 
     surveillance of foreign powers and their agents, but which 
     specified the particular difficulties in gathering ``security 
     intelligence'' that might justify departures from the usual 
     standards for warrants: ``[Such intelligence gathering] is 
     often long range and involves the interrelation of various 
     sources and types of information. The exact targets of such 
     surveillance may be more difficult to identify than in 
     surveillance operations against many types of crime specified 
     in Title III [dealing with electronic surveillance in 
     ordinary criminal cases]. Often, too, the emphasis of 
     domestic intelligence gathering is on the prevention of 
     unlawful activity or the enhancement of the government's 
     preparedness for some possible future crisis or emergency. 
     Thus the focus of domestic surveillance may be less precise 
     than that directed against more conventional types of 
     crime.'' Duggan, 743 F.2d at 72 (quoting Keith, 407 U.S. at 
     322). The Second Circuit then quoted a portion of the Senate 
     Committee Report on FISA. ``[The] reasonableness [of FISA 
     procedures] depends, in part, upon an assessment of the 
     difficulties of investigating activities planned, directed, 
     and supported from abroad by foreign intelligence services 
     and foreign-based terrorist groups. . . Other factors include 
     the international responsibilities of the United States, the 
     duties of the Federal Government to the States in matters 
     involving foreign terrorism, and the need to maintain the 
     secrecy of lawful counterintelligence sources and methods.'' 
     Id. at 73 (quoting S. Rep. No. 95-701, at 14-15, reprinted in 
     1978 (U.S.C.C.A.N. 3973, 3983) (``Senate Report''). The court 
     concluded:
       ``Against this background, [FISA] requires that the FISA 
     Judge find probable cause to believe that the target is a 
     foreign power or an agent of a foreign power, and that the 
     place at which the surveillance is to be directed is being 
     used or is about to be used by a foreign power or an agent of 
     a foreign power; and it requires him to find that the 
     application meets the requirements of [FISA]. These 
     requirements make it reasonable to dispense with a 
     requirement that the FISA Judge find probable cause to 
     believe that surveillance will in fact lead to the gathering 
     of foreign intelligence information.''
       Id. at 73. The court added that, a fortiori, it 
     ``reject[ed] defendants' argument that a FISA order may not 
     be issued consisted with the requirements of the Fourth 
     Amendment unless there is a showing of probable cause to 
     believe the target has committed a crime.'' Id. at n.5. See 
     also, e.g., United States v. Pelton, 835 F.2d 1067, 1075 (4th 
     Cir. 1987); United States v. Cavanagh, 807 F.2d 787, 790-91 
     (9th Cir. 1987) (per then-Circuit Judge Kennedy); United 
     States v. Nicholson, 955 F. Supp. 588, 590-91 (E.D. Va. 
     1997).
       We can conceive of a possible argument for distinguishing, 
     under the Fourth Amendment, the proposed definition of 
     ``foreign power'' from the definition approved by the courts 
     as the basis for a determination of probable cause under FISA 
     as now written. According to this argument, because the 
     proposed definition would require no tie to a terrorist 
     group, it would improperly allow the use of FISA where an 
     ordinary probable cause determination would be feasible and 
     appropriate--where a court could look at the activities of a 
     single individual without having to assess ``the 
     interrelation of various sources and types of information,'' 
     see Keith, 407 U.S. at 322, or relationships with foreign-
     based groups, see Duggan, 743 F.2d at 73; where there need to 
     be no inexactitude in the target or focus of the 
     surveillance, see Keith, 407 U.S. at 322; and where the 
     international activities of the United States are less likely 
     to be implicated, see Duggan, 743 F.2d at 73. However, we 
     believe that this argument would not be well-founded.
       The expanded definition shall would be limited to 
     collecting foreign intelligence for the ``international 
     responsibilities of the United States, [and] the duties of 
     the Federal Government to the States in matters involving 
     foreign terrorism.'' Id. at 73 (quoting Senate Report at 14). 
     The individuals covered by S. 2586 would not be United States 
     persons, and the ``international terrorism'' in which they 
     would be involved would continue to ``occur totally outside 
     the United States, to transcend national boundaries in terms 
     of the means by which they are accomplished, the persons they 
     appear intended to coerce or intimidate, or the locale in 
     which their perpetrators operate or seek asylum.'' 50 U.S.C. 
     Sec. 1801(c)(3). These circumstances would implicate the 
     ``difficulties of investigating activities planned, directed, 
     and supported from abroad,'' just as current law implicates 
     such difficulties in the case of foreign intelligence 
     services and foreign-based terrorist groups. Duggan, 743 F.2d 
     at 73 (quoting Senate Report at 14). To overcome those 
     difficulties, a foreign intelligence investigation ``often 
     [will be] long range and involved[] the interrelation of 
     various sources and types of information.'' Id. at 72 
     (quoting Keith, 407 U.S. at 322). This information frequently 
     will require special handling, as under the procedures of the 
     FISA court, because of ``the need to maintain the secrecy of 
     lawful counterintelligence sources and methods.'' Id. at 73 
     (quoting Keith, 407 U.S. at 322). Furthermore, because in 
     foreign intelligence investigations under the expanded 
     definition ``[o]ften . . . the emphasis . . . [will be] on 
     the prevention of unlawful activity or the enhancement of the 
     government's preparedness for some possible future crisis or 
     emergency,'' the ``focus of . . . surveillance may be less 
     precise than that directed against more conventional types of 
     crime.'' Id. at 73 (quoting Keith, 407 U.S. at 322). 
     Therefore, the same interests and considerations that support 
     the constitutionality of FISA as it now stands would provide 
     the constitutional justification for the S. 2586.
       Indeed, S. 2586 would add only a modest increment to the 
     existing coverage of the statute. As the House Committee 
     Report on FISA suggested, a ``group' of terrorist covered by 
     current law might be as small as two or three persons. H.R. 
     Rep. No. 95-1283, at pt. 1, 74 and n. 38 (1978). The interest 
     that the courts have found to justify the procedures of FISA 
     are not likely to differ appreciably as between a case 
     involving such a group of two or three persons and a case 
     involving a single terrorist.
       The events of the past few months point to one other 
     consideration on which courts have not relied previously in 
     upholding FISA procedures--the extraordinary level of harm 
     that an international terrorist can do to our Nation. The 
     touchstone for the constitutionality of searches under the 
     Fourth Amendment is whether they are ``reasonable.'' As the 
     Supreme Court has discussed in the context of ``special needs 
     cases,'' whether a search is reasonable depends on whether 
     the government's interests outweigh any intrusion into 
     individual privacy interests. In light of the efforts of 
     international terrorists to obtain weapons of mass 
     destruction, it does not seem debatable that we could suffer 
     terrible injury at the hands of a terrorist whose ties to an 
     identified ``group'' remained obscure. Even in the criminal 
     context, the Court has recognized the need for flexibility is 
     cases of terrorism. See Indianapolis v. Edmond, 531 U.S. 32, 
     44 (2000) (``the Fourth Amendment would almost certainly 
     permit an appropriately tailored roadblock set up to thwart 
     an imminent terrorist attack''). Congress could legitimately 
     judge that even a single international terrorist, who intends 
     ``to intimidate or coerce a civilian population'' or ``to 
     influence the policy of a government by intimidation or 
     coercion'' or ``to affect the conduct of a government by 
     assassination or kidnapping,'' 50 U.S.C. Sec. 1801(c)(2), 
     acts with the power of a full terrorist group or foreign 
     nation and should be treated as a ``foreign power'' subject 
     to the procedures of FISA rather than those applicable to 
     warrants in criminal cases.
       Thank you for the opportunity to present our views. Please 
     do not hesitate to call upon us if we may be additional 
     assistance. The Office of Management and Budget has advised 
     us that from the perspective of the Administration's program, 
     there is no objection to submission of this letter.
           Sincerely,
                                                 Daniel J. Bryant,
     Assistant Attorney General.
                                  ____


 Statement for the Record of Marion E. (Spike) Bowman, Deputy General 
  Counsel, Federal Bureau of Investigation, Before the Senate Select 
                Committee on Intelligence, July 31, 2002

       Mr. Chairman and members of the Committee, thank you for 
     inviting me here today to testify on the legislative 
     proposals concerning the Foreign Intelligence Surveillance 
     Act (FISA). Holding this hearing demonstrates your collective 
     and individual commitment to improving the security of our 
     Nation. The Federal Bureau of Investigation greatly 
     appreciates your leadership, and that of your colleagues in 
     other committees on this very important topic.
       The Foreign Intelligence Surveillance Act was written more 
     than two decades ago. When adopted, the Act brought a degree 
     of closure to fifty years of discussion concerning 
     constitutional limits on the President's power to order 
     electronic surveillance for national security purposes. A 
     subsequent amendment brought physical search under the Act. 
     In keeping with our standards of public governance, the 
     proposals for the Act were publicly debated over a 
     substantial period of time, compromises were reached and a 
     statute eventually adopted. In the final analysis the 
     standards governing when and how foreign intelligence 
     surveillance or search would be conducted was a political one 
     because it involved weighting of important public policy 
     concerns surrounding both personal liberty and national 
     security. That is how it should be.
       In the intervening years FISA has proved its worth on 
     countless occasions in preventing the occurrence or the 
     continuation of harm to the national security. It has been a 
     very effective tool and time has proved that this cooperative 
     effort of the three branches of government can serve to 
     protect the public without eroding civil liberties. Indeed, 
     the legislative history shows that Congress intended that the 
     Executive Branch

[[Page S10431]]

     keep a focus on civil liberties by giving great care and 
     scrutiny every application before it is presented to a judge. 
     We believe that intent has been fulfilled. The fact that an 
     Article III judge is the final arbiter of compliance serves 
     to give additional confidence to the public that the intent 
     of the statute is fulfilled.
       When FISA was enacted, terrorism was very different from 
     what we see today. In the 1970s, terrorism more often 
     targeted individuals, often carefully selected. This was the 
     usual pattern of the Japanese Red Army, the Red Brigades and 
     similar organizations listed by name in the legislative 
     history of FISA. Today we see terrorism as far more lethal 
     and far more indiscriminate than could have been imagined in 
     1978. It takes only the events of September 11, 2001 to fully 
     comprehend the difference of a couple of decades. But there 
     is another difference as well. Where we once saw terrorism 
     formed solely around organized groups, today we often see 
     individuals willing to commit indiscriminate acts of terror. 
     It may be that these individuals are affiliated with groups 
     we do not see, but it may be that they are simply radicals 
     who desire to bring about destruction. That brings us to the 
     legislation being considered today.
       The FBI uses investigative tools to try to prevent acts of 
     terrorism wherever we can, but particularly to prevent 
     terrorism directed at Americans or American interests. Most 
     of our investigations occur within the United States and, for 
     the most part, focus on individuals. Historically, terrorism 
     subjects of FBI investigation have been associated with 
     terrorist organizations. As a result, FBI has usually been 
     able to associate an individual with a terrorist organization 
     pled, for FISA purposes, as a foreign power. To a substantial 
     extent, that remains true today. However, we are increasingly 
     seeing terrorist suspects who appear to operate at a distance 
     from these organizations. In perhaps an oversimplification, 
     but illustrative nevertheless, what we see today are (1) 
     agents of foreign powers in the traditional sense who are 
     associated with some organization or discernible group, (2) 
     individuals who appear to have connections with multiple 
     terrorist organizations but who do not appear to owe 
     allegiance to any one of them, but rather owe allegiance to 
     the international Jihad movement and (3) individuals who 
     appear to be personally oriented toward terrorism but with 
     whom there is no known connection to a foreign power.
       This phenomenon, which we have seen to be growing for the 
     past two or three years, appears to stem from a social 
     movement that began at some imprecise time, but certainly 
     more than a decade ago. It is a global phenomenon which the 
     FBI refers to as the International Jihad Movement. By way of 
     background we believe we can see the contemporary development 
     of this movement, and its focus on terrorism, rooted in the 
     Soviet invasion of Afghanistan.


                               BACKGROUND

       During the decade-long Soviet/Afghan conflict, anywhere 
     from 10,000 to 25,000 Muslim fighters representing some 
     forty-three countries put aside substantial cultural 
     differences to fight alongside each other in Afghanistan. The 
     force drawing them together was the Islamic concept of 
     ``umma'' or Muslim community. In this concept, nationalism is 
     secondary to the Muslim community as a whole. As a result, 
     Muslims from disparate cultures trained together, formed 
     relationships, sometimes assembled in groups that otherwise 
     would have been at odds with one another and acquired common 
     ideologies. They were also influenced by radical spiritual 
     and temporal leaders, one of whom has gained prominence on a 
     global scale--Usama Bin Liden.
       Following the withdrawal of the Soviet forces from 
     Afghanistan, many of these fighters returned to their 
     homelands, but they returned with new skills and dangerous 
     ideas. They now had newly-acquired terrorist training as 
     guerrilla warfare was the only way they could combat the more 
     advanced Soviet forces. They also returned with new concepts 
     of community that had little to do with nationalism. Those 
     concepts of community fed naturally into opposition to the 
     adoption, and toleration, of western culture. As a result, 
     many of the Arab-Afghan returnees united, or reunited, with 
     indigenous radical Islamic groups they had left behind when 
     they went to Afghanistan. These Arab-Afghan mujahedin, 
     equipped with extensive weapons and explosives training, 
     infused radicals and already established terrorist groups, 
     resulting in the creation of significantly better trained and 
     more highly motivated cells dedicated to jihad.
       Feeding the radical element was the social fact that this 
     occurred in nations where there was widespread poverty and 
     unemployment. The success of the Arab intervention in 
     Afghanistan was readily apparent, so when the Arab-Afghan 
     returnees came home they discovered populations of young 
     Muslims who increasingly were ready and even eager to view 
     radical Islam as the only viable means of improving 
     conditions in their countries. Seizing on widespread 
     dissatisfaction with regimes that were brimming with un-
     Islamic ways, regimes that hosted foreign business and 
     foreign military, many young Muslim males became eager to 
     adopt the successful terrorist-related activities that had 
     been successfully used in Afghanistan in the name of 
     Islam. It was only a matter of time before these young 
     Muslin males began to seek out the military and explosives 
     training that the Arab-Afghan returnees possessed.


                            usama bin laden

       Usama bin Laden gained prominence during the Afghan war in 
     large measure for his logistical support to the resistance. 
     He financed recruitment, transportation and training of Arab 
     nations who volunteered to fight alongside the Afghan 
     mujahedin. The Afghan war was clearly a defining experience 
     in his life. In a May, 1996 interview with Time Magazine, UBL 
     stated: ``in our religion there is a special place in the 
     hereafter for those who participate in jihad. One day in 
     Afghanistan was like 1,000 days in an ordinary mosque.''
       Although bin Laden was merely one leader among many during 
     the Soviet-Afghan conflict, he was a wealthy Saudi who fought 
     alongside the mujahedin. In consequence, his statute with the 
     fighters was high during the war and he continued to rise in 
     prominence such that, by 1998, he was able to announce a 
     ``fatwa'' (religious ruling) that would be respected by far-
     flung Islamic radicals. In short, he stated that it is the 
     duty of all Muslims to kill Americans: ``in compliance with 
     God's order, we issue the following fatwa to all Muslims: the 
     ruling to kill the Americans and their allies, including 
     civilians and military, is the individual duty for every 
     Muslim who can do it in any country in which it is possible 
     to do it.''
       Bin Laden was not alone in issuing this fatwa. It was 
     signed as well by a coalition of leading Islamic militants to 
     include Ayman Al-Zawahiri (at the time the leader of the 
     Egyptian Islamic Jihad), Abu Yasr Rifa'i Ahmad Taha (Islamic 
     Group leader) and Sheikh Fazl Ur Rahman (Harakat Ul Ansar 
     leader). The fawa was issued under the name of the 
     International Islamic Front for Jihad on the Jews and 
     Christians. This fawa was significant as it was the first 
     public call for attacks on Americans, both civilian and 
     military, and because it reflected a unified position among 
     recognized leaders in the radical Sunni Islamic community. In 
     essence, the fatwa reflected the globalization of radical 
     Islam.
       There is a terrorist network of extremists that has been 
     evolving in the murky terrain of Southwest Asia that uses its 
     extremist views of Islam to justify terrorism. His 
     organization, al Qaeda is but one example of this network.


                                al qaeda

       Although Al-Qaeda functions independent of other terrorist 
     organizations, it also functions through some of the 
     terrorist organizations that operate under its umbrella or 
     with its support, including: the Al-Jihad, the Al-Gamma Al-
     Islamiyya (Islamic Group--led by Sheik Omar Abdel Rahman and 
     later by Ahmed Refai Taha, a/k/a ``Abu Yasser al Masri,''), 
     Egyptian Islamic Jihad, and a number of jihad groups in other 
     countries, including the Sudan, Egypt, Saudi Arabia, Yemen, 
     Somalia, Eritrea, Djibouti, Afghanistan, Pakistan, Bosnia, 
     Croatia, Albania, Algeria, Tunisia, Lebanon, the Philippines, 
     Tajikistan, Azerbaijan, the Kashmiri region of India, and the 
     Chechen region of Russia. Al-Qaeda also maintained cells and 
     personnel in a number of countries to facilitate its 
     activities, including in Kenya, Tanzania, the United Kingdom, 
     Canada, and the United States. By banding together, Al-Qaeda 
     proposed to work together against the perceived common 
     enemies in the West--particularly the United States which Al-
     Qaeda regards as an ``infidel'' state which provides 
     essential support for other ``infidel'' governments. Al-Qaeda 
     responded to the presence of United States armed forces in 
     the Gulf and the arrest, conviction and imprisonment in the 
     United States of persons belonging to Al-Qaeda by issuing 
     fatwas indicating that attacks against U.S. interests, 
     domestic and foreign, civilian and military, were both proper 
     and necessary. Those fatwas resulted in attacks against U.S. 
     nationals in locations around the world including Somalia, 
     Kenya, Tanzania, Yemen, and now in the United States. Since 
     1993, thousands of people have died in those attacks.


                           the training camps

       With the globalization of radical Islam now well begun, the 
     next task was gain adherents and promote international jihad. 
     A major tool selected for this purpose was the promotion of 
     terrorism training camps that had long been established in 
     Afghanistan. It is important to note, that while terrorist 
     adherents to what we have come to know as al Qaeda trained in 
     the camps, many others did as well. For example, according to 
     the convicted terrorist Ahmed Ressam, representatives of the 
     Algerian Armed Islamic Group (GIA) and its off-shoot the 
     Salafi Groups for Call and Combat (GSPC), HAMAS, Hizballah, 
     the Egyptian Islamic Jihad (EIJ) and various other terrorists 
     trained at the camps.
       Ressam also reports that cells were formed, dependent, in 
     part, on the timing of the arrival of the trainees, rather 
     than on any cohesive or pre-existing organizational 
     structure. As part of the training, cleric and other 
     authority figures advised the cells of the targets that are 
     deemed valid and proper. The training they received included 
     placing bombs in airports, attacks against U.S. military 
     installations, U.S. warships, embassies and business 
     interests of the United States and Israel. Specifically 
     included were hotels holding conferences of VIPs, military 
     barracks, petroleum targets and information/technology 
     centers. As part of the training, scenarios were developed 
     that included all of these targets.

[[Page S10432]]

       Ressam, who a not a member of al Qaeda, has stated that the 
     cells were independent, but were given lists of the types of 
     targets that were approved and were initiated into the 
     doctrine of the international Jihad. Ressam explicitly noted 
     that his own terrorism attack did not have bin Laden's 
     blessing or his money, but he believed it would have been 
     given had he asked for it. He did state that bin Laden urged 
     more operations within the United States.


                        The International Jihad

       We believe the suicide hijackers of September 11, 2001 
     acted in support of the 1998 fatwa which, in turn describes 
     what we believe is the international jihad. During 1997 UBL 
     described the ``international jihad'' as follows:
       ``The influence of the Afghan jihad on the Islamic world 
     was so great and it necessitates that people should rise 
     above many of their differences and unite their efforts 
     against their enemy. Today, the nation is interacting well by 
     uniting their efforts through jihad against the U.S. which 
     has in collaboration with the Israeli government led the 
     ferocious campaign against the Islamic world in occupying the 
     holy sites of the Muslims. . . . [A]ny act of aggression 
     against any of this land of a span of the hand measure makes 
     it a duty for Muslims to send a sufficient number of their 
     sons to fight off that aggression.''
       In May of 1988, UBL gave an interview in which he stated 
     ``God willing, you will see our work on the news. . . .'' The 
     following August the East African embassy bombings occurred. 
     That was bin Laden speaking, but it should be remembered that 
     the call to harm America is not limited to al Qaeda. Shortly 
     after September 11 Mullah Omar said ``the plan [to destroy 
     America] is going ahead and God willing it is being 
     implemented. . . .'' Sheikh Ikrama Sabri, a Palestinian 
     Mufti, said in a radio sermon in 1997, ``Oh Allah, destroy 
     America, her agents, and her allies! Cast them into their own 
     traps, and cover the White House with black! '' Ali 
     Khameine'i, in 1998, said ``The American regime is the enemy 
     of [Iran's] Islamic government and our revolution.'' There 
     are many other examples, but the lesson to be drawn is that 
     al Qaeda is but one faction of a larger and very amorphous 
     radical anti-western network that uses al Qaeda members as 
     well as others sympathetic to al Qaeda's ideas or that share 
     common hatreds.
       Information from a variety of sources repeatedly carries 
     the theme from Islamic radicals that expresses the opinion 
     that we just don't get it. Terrorists world-wide speak of 
     jihad and wonder why the western world is focused on groups 
     rather than on the concepts that make them a community. One 
     place to look at the phenomenon of the ``international 
     jihad'' is the web. Like many other groups, Muslim extremists 
     have found the Internet to be a convenient tool for spreading 
     propaganda and helpful hints for their followers around the 
     world. Web sites calling for jihad, or holy war, against the 
     West are not uncommon.
       One of the larger jihad-related Internet offers primers 
     including ``How Can I Train Myself for Jihad.'' Traffic on 
     this site, which is available in more than a dozen languages, 
     increased 10-fold following the attacks, according to a 
     spokesman for the site.
       The lesson to be taken from this is that al Qaeda is far 
     less a large organization than a facilitator, sometimes 
     orchestrator, of Islamic militants around the globe. These 
     militants are linked by ideas and goals, not be 
     organizational structure. The intent is establishment of a 
     state, or states ruled by Islamic law and free of western 
     influence. Bin Laden's contribution to the Islamic jihad is a 
     creature of the modern world. He has spawned a global network 
     of individuals with common, radical ideas, kept alive through 
     modern communications and sustained through forged documents 
     and money laundering activities on a global scale. While some 
     may consider extremist Islam to be in retreat at the moment, 
     its roots run deep and exceedingly wide. Those roots take 
     many forms, one of which is the focus of this hearing.
       In the final analysis, the International Jihad movement is 
     comprised of dedicated individuals committed to establishing 
     the umma through terrorist means. Many of these are persons 
     who attended university together, trained in the camps 
     together, traveled together. Al Qaeda and the international 
     terrorists remain focused on the United States as their 
     primary target. The United States and its allies, to include 
     law enforcement and intelligence components worldwide have 
     had an impact on the terrorists, but they are adapting to 
     changing circumstances. Speaking solely from an operational 
     perspective, investigation of these individuals who have no 
     clear connection to organized terrorism, or tenuous ties to 
     multiple organizations, is becoming increasingly difficult.
       The current FISA statute has served the nation well, but 
     the International Jihad Movement demonstrates the need to 
     consider whether a different formulation is needed to address 
     the contemporary terrorism problem. While I cannot discuss 
     specific cases in a public hearing, the FBI has encountered 
     individuals who cannot be sufficiently linked to a terrorist 
     group or organization as required by FISA. The FBI greatly 
     appreciates the Committee's consideration of this issue and 
     looks forward to working with the Committee to find the best 
     approach for appropriate investigation of such individuals.

  Mr. KYL. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________