[Congressional Record Volume 149, Number 68 (Thursday, May 8, 2003)]
[Senate]
[Pages S5899-S5907]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 FOREIGN INTELLIGENCE SURVEILLANCE ACT

  The PRESIDING OFFICER. Under the previous order, the hour of 11:30 
having arrived, S. 113 is referred to the Committee on Intelligence, 
and the committee is discharged from further consideration of the 
measure, and the Senate will now proceed to consider the measure, which 
the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 113) to exclude United States persons from the 
     definition of foreign power under the Foreign Intelligence 
     Surveillance Act of 1978 relating to international terrorism.

  The Senate proceeded to consider the bill, which had been reported 
from the Committee on the Judiciary, with an amendment to the title and 
an amendment to strike all after the enacting clause and inserting in 
lieu thereof the following:
  [Strike the part shown in black brackets and insert the part shown in 
italic.]

                                 S. 113

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     [SECTION 1. EXCLUSION OF UNITED STATES PERSONS FROM 
                   DEFINITION OF FOREIGN POWER IN FOREIGN 
                   INTELLIGENCE SURVEILLANCE ACT OF 1978 RELATING 
                   TO INTERNATIONAL TERRORISM.

       [Paragraph (4) of section 101(a) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)) is 
     amended to read as follows:
       [``(4) a person, other than a United States person, or 
     group that is engaged in international terrorism or 
     activities in preparation therefor;''].

     SECTION 1. TREATMENT AS AGENT OF A FOREIGN POWER UNDER 
                   FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 
                   OF NON-UNITED STATES PERSONS WHO ENGAGE IN 
                   INTERNATIONAL TERRORISM WITHOUT AFFILIATION 
                   WITH INTERNATIONAL TERRORIST GROUPS.

       (a) In General.--Section 101(b)(1) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) 
     is amended by adding at the end the following new 
     subparagraph:
       ``(C) engages in international terrorism or activities in 
     preparation therefor; or''.
       (b) Sunset.--The amendment made by subsection (a) shall be 
     subject to the sunset provision in section 224 of the USA 
     PATRIOT Act of 2001 (Public Law 107-56; 115 Stat. 295), 
     including the exception provided in subsection (b) of such 
     section 224.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, I appreciate the opportunity to take up this 
bill. It is under a unanimous consent agreement. Pursuant to that 
agreement, we are going to have some opening statements. I will take 
about 15 minutes and then Senator Schumer, the cosponsor of the 
amendment, will be presenting his remarks. After that, anyone who would 
like to speak for or against this bill can do so.
  There will be two amendments in order. One will be an accepted 
amendment offered by the Senator from Wisconsin, Mr. Feingold, and 
another will be offered by Senator Feinstein of California on which 
there is, I believe, a total of 4 hours authorized for debate. I do not 
think we will need that much time, but when the time comes, I urge my 
colleagues to oppose and defeat the Feinstein amendment so we can go to 
final passage of this legislation.
  I will briefly describe what the bill does and why we need it. Then I 
will get into some of the procedure involved. It is actually very 
simple. It involves an existing law that we passed in 1978 called the 
Foreign Intelligence Surveillance Act, known by the acronym FISA. FISA 
allows us to get warrants, among other things, and allows us to surveil 
people we suspect of committing acts of terrorism against us; for 
example, to get a warrant to search their computer or their home.
  There are two instances where the law currently applies. The 
underlying predicate is that there has to be probable cause that 
somebody is committing, about to commit, or planning to commit some 
kind of criminal act, a terrorism kind of act. It applies to two kinds 
of people: somebody who is either working for a foreign government or 
somebody who is working for a foreign terrorist organization.
  That leaves a little loophole because there are some terrorists who 
are not on the membership list, shall we say, or who are not card-
carrying members of a foreign terrorist organization or a foreign 
government; people such as Zacarias Moussaoui, for example, whom we now 
believe to have been loosely involved in the al-Qaida attack of 
September 11.
  At the time, it was not possible to prove that he was involved with a 
foreign intelligence organization. It may

[[Page S5900]]

well be that at the end of the day he was, in fact, a lone wolf, 
operating on his own, but very loosely affiliated with the radical 
Islamic movement which has underpinned a lot of the terrorism which 
threatens the United States and the rest of the world today.
  The law as written in 1978 was intended to apply to a very specific 
group of people, the Soviet spies, for example, or the Baader-Meinhof 
gang or the Red Brigade or the Red Army. There were a lot of these 
organizations back then, and they were very tightly knit organizations. 
If somebody was involved in one of these groups, they were involved. 
But today's radical Islamic movement around the world that associates 
itself with terrorism is much more amorphous. As I factitiously said, 
these people do not have cards identifying themselves as members of 
these organizations. They are people who hate the West and the United 
States. They move in and out of the different countries of the world. 
They will take training in a certain place. They will affiliate a 
little while with a group and then move on to support some other group.
  The bottom line is that it is very difficult, sometimes impossible, 
to prove that they are affiliated with a specific group. In some cases, 
they are not. They are simply acting on their own. But they are still 
terrorists. They are still foreign terrorists. They still mean to do us 
harm on the international stage and should be covered by the Foreign 
Intelligence Surveillance Act.

  We close this loophole by providing that not only does it cover the 
person working for a foreign government, or who we can prove at that 
point is working for a foreign terrorist organization, it also includes 
the so-called lone wolf terrorist, or the individual we cannot yet 
prove is directly affiliated with one of these amorphous groups. That 
is really all the bill does.
  I will give a specific example. I mentioned Zacarias Moussaoui. 
Remember all of the criticism. He was a person who was taking flying 
lessons. It was under very suspicious circumstances. We understood this 
prior to September 11. There were people who wanted to get a Foreign 
Intelligence Surveillance Act warrant to search his computer. It went 
to the FBI, and somebody in the FBI concluded that, yes, all of this 
information looked good in the warrant except that they could not 
specifically tie him to a specific international group. Quite a bit of 
time was used following up leads that led to some group of Chechen 
rebels, but that ended up to be kind of a dry hole. Meanwhile, the 
attack of September 11 occurred.
  Immediately after that attack, we were able to get the warrant. His 
case is pending in Northern Virginia at this time. He was not able to 
hook up with the attackers of September 11, but clearly his is an 
example of a case to which this kind of provision should apply.
  I will quote something from some of the testimony that we had with 
regard to the need for this legislation. Spike Bowman, who is the 
Deputy General Counsel of the FBI, testified at a Senate Select 
Committee on Intelligence hearing on the predecessor bill to the one 
that is before us right now. I will quote at length from his testimony. 
He said:

       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 the 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 that we do not see, but it may be that they are 
     simply radicals who desire to bring about destruction.
       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 any 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 . . . growing for the 
     past two or three years, appears to stem from a social 
     movement that began 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.
       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 and 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 
     guerilla warfare [had been] the only way they could combat 
     the more advanced Soviet forces.
       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.
       The lesson to be taken from how [Islamic terrorists share 
     information] 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.
       The United States and its allies, to include law 
     enforcement and intelligence components worldwide[,] have had 
     an impact on the terrorists, but [the terrorists] 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.
  Of course, the different way we are approaching it is by adding a 
third element to the FISA statute. If you are a non-United States 
person and otherwise we have probable cause to believe you are planning 
an act of or executing an act of terrorism, we have the right to seek a 
warrant in the FISA court to search you, surveil you, whatever the 
warrant might request.
  That is the essence of this legislation. As I said, when FISA was 
enacted in 1978, this international movement around an idea had not yet 
evolved and we were focused on organizations. Now we need to add to the 
statute, in addition to nations and specific organizations, non-United 
States persons--in other words, foreign persons--who we believe are 
carrying out some terrorist plan with international roots, directed at 
the United States, sufficient to bring it under the aegis of the FISA 
statute.
  It is the responsibility of Congress to adapt our laws to these 
changes. It is this challenge that Senator Schumer and I are attempting 
to address by this amendment.
  I introduced this bill with Senator Schumer in the 107th Congress on 
June 5, 2002, so it has been around almost a full year. The current 
bill is the identical bill introduced in the previous Congress. We held 
a Select Committee on Interrogation hearing July 2002, the testimony 
from which I just quoted, and we heard testimony from six witnesses.
  There was no Judiciary markup in the previous Congress, but in the 
108th Congress, when we reintroduced the bill January 9, the Senate 
Judiciary Committee held a markup. This bill, by the way, was 
cosponsored by Chairman Hatch, Senators DeWine, Schumer, myself, 
Chambliss, Sessions, and there may be others of whom I am not aware.
  March 6, the Judiciary Committee marked up the bill at an executive 
session and adopted a substitute amendment, which is the bill we have 
before the Senate now, rejected a Feingold amendment by a vote of 11 to 
4, and voted to report the bill unanimously by a vote of 19 to 0 to the 
Senate. That is where we are today.
  We hope to call anyone who has an interest in this to the floor to 
express their ideas. As I say, we are going to

[[Page S5901]]

accept one amendment and we will be debating a second amendment, which 
I hope we defeat. There will be a break in our consideration here for 
some other business in the middle of the day. We will return in 
midafternoon to complete the work on the bill. It should be done by the 
late afternoon.
  Until Senator Schumer arrives, I make another point. There has been a 
worry on the part of some that this expands the Foreign Intelligence 
Surveillance Act to private American citizens. I make it crystal clear 
that is not true.
  By definition, we could not do that. This is a law that is only 
justified because it relates to international terrorism. So if you come 
here from a foreign country, you are a non-U.S. person, you come from a 
foreign country, intending to do harm to Americans, as part of this 
international movement, whether you are a member of some specific 
organization or not, the act will be allowed to be used to determine 
whether we should take further action against you. It is not pertaining 
to U.S. citizens; it is only to non-U.S. citizens and only in this 
particular context.
  Second, you cannot just do this willy-nilly, like every other 
warrant. Whether under FISA or not, we have to have probable cause. 
That requirement is not changed one iota. If anyone suggests there is 
anything improper, certainly it is not unconstitutional, but to the 
extent anyone suggests that we are ready to recite the reasons why, 
that is not true.
  I note the Department of Justice has sent a letter announcing its 
support for this legislation. Among those testifying in favor of it, 
the U.S. Attorney General, the Director of the Bureau of Investigation, 
former CIA Director, and any number of officials in our intelligence 
and law enforcement community have endorsed the bill.
  I direct Members' attention to a letter I will later put into the 
Record, dated July 31, 2002, which presented the Department of 
Justice's views on the bill and announced its support for the 
legislation. It provides a detailed analysis of this question about the 
fourth amendment and whether or not there would be any constitutional 
issues.
  The Department concluded that the bill would satisfy constitutional 
requirements specifically related to the fourth amendment. In 
particular, the Department emphasized that anyone monitored pursuant to 
the bill would be someone who had at the very least been involved in 
terrorist acts that transcends national boundaries in term of the means 
they are accomplished, the persons they appear intended to coerce or 
intimidate, or the locale in which the perpetrators operate or seek 
asylum.
  As a result, it would still 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, to wit, protecting the American 
citizens from people who come here to do us harm.
  Let me conclude these remarks by noting that I have enjoyed the 
cooperation, as usual, of my colleague who serves on the Judiciary 
Committee, the Senator from New York, Mr. Schumer, who has been a 
strong advocate of this kind of provision for a long time and whose 
assistance in this matter has been extraordinarily helpful.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, first, I thank my colleague, Senator Kyl 
from Arizona, for his great work on this and many other issues.
  We live in a new world. It is a post-September 11 world. We have to 
adjust to those realities. I believe we can do both, have security and 
liberty, the great concern of our Founding Fathers. I think this bill, 
in a careful and thoughtful way, readjusts that balance.
  My colleague from Arizona has been a leader on these issues. We do 
not always agree, but we often do. It is a pleasure to work with him. 
His persistence and dedication to making this country secure and 
maintaining its freedom at the same time is something I share and I 
respect.
  As I mentioned, the age-old debate between security and freedom is at 
the nub of the Constitution. It was probably debated more by the 
Founding Fathers than any other issue. They realized that in times of 
crisis, in times of war, in times of attack, the pendulum could swing 
more to the security side and at other times to the freedom side. They 
realized, as Benjamin Franklin said, that giving up even an ounce of 
precious freedom is a very serious thing to do.
  FISA is a debate about that. While I certainly believe, as I think 
most of my colleagues do, given the fact that what we have learned 
since September 11, that terrorists can strike in our heartland, that 
small groups of people empowered by technology can do the kind of 
damage we have never seen before, which my city suffered on September 
11. We remember the losses every day. We do have to reexamine this, 
particularly when there has been one law for people overseas and one 
law for people in this country because the walls have changed.
  That is a general debate on FISA. I know some of my colleagues have 
wanted to do that today. My colleague from Wisconsin says the law has 
shifted too far one way. My colleague from Utah thinks it has shifted 
the other way. Senator Kyl and I are not debating that. We do not give 
up any liberty in this bill. The very standards that are now in the law 
with FISA remain, standards of what must be done to get a FISA warrant. 
Those do not change. The only change is our recognition that in these 
new post-9/11 years, technology has allowed small groups unknown 
before, or even lone wolf individuals, to commit terrorism, and if they 
are doing the same thing as established terrorist groups or established 
terrorist nations, there seems to be no reason why they shouldn't be 
susceptible to the same type of surveillance of other groups. That is 
at the nub of this issue.

  We are informed by history. Again, those who say don't do anything to 
change don't look at history, in my judgment. We learned from the 
disclosures regarding Zacarias Moussaoui, the so-called 20th hijacker, 
that the FBI had abundant reason to be suspicious of him before 9/11, 
but they did not act, they did not do what Agent Rowley wanted them to 
do. She, of course, has been heralded as a great leader and a great 
American for what she has done, and I join in that. But they didn't 
want to do what she wanted, which was pursue a warrant to dig up 
evidence that may have been the thread which, if pulled, would have 
unraveled the terrorists' plans.
  The anguish she felt then, and so many of us feel afterwards, that 
this might have been stopped but wasn't because of a provision in the 
FISA law that quickly became archaic as terrorists advanced and we 
learned that small groups could do such damage, is what motivates this 
legislation.
  One reason we have been given--and Agent Rowley agrees with this, I 
believe--why the FBI did not seek the warrant is the bar for getting 
those warrants when it came to those not affiliated with known 
terrorist groups or known terrorist countries was set too high.
  That is why Senator Kyl and I introduced this amendment to FISA. We 
intend to make it easier for law enforcement to get warrants against 
non-U.S. citizens--this does not affect a single U.S. citizen--who are 
suspected of preparing to commit acts of terrorism.
  As I mentioned, we leave two of the standards in place, the ones that 
measure the bar. Right now, the FBI is required to show three things 
before they can get a warrant: They must show the target is engaging in 
or preparing to engage in international terrorism. We keep that 
requirement. It does not change. They must show a significant purpose 
of the surveillance is foreign-intelligence gathering. We are keeping 
that requirement, too, that foreign-intelligence gathering is a 
significant purpose.
  Here is the problem. They also must show under present law that the 
target is an agent of a foreign power, such as Iraq, or a known foreign 
terrorist group, such as Hamas or al-Qaida. That is the hurdle we are 
removing. If that requirement had not been in place, there is no 
question the FBI could have gotten a warrant to do electronic 
surveillance on Zacarias Moussaoui and, who knows, not certainly but 
perhaps, 9/11 might not have occurred.
  That is the anguish we all face. Right now we know there may be 
terrorists plotting on American soil. We may have all kinds of reasons 
to believe

[[Page S5902]]

they are preparing to commit acts of terrorism. But we cannot do the 
surveillance we need if we cannot tie them to a foreign power or an 
international terrorist group. It is a catch-22. We need the 
surveillance to get the information we need to be able to do the 
surveillance. It makes no sense. The simple fact is, it should not 
matter whether we can tie someone to a foreign power. Whether our 
intelligence is just not good enough or whether the terrorist is acting 
as a lone wolf or it is a new group of 10 people who have not been 
affiliated with any known terrorist group, should not affect whether we 
can do surveillance, should not affect whether they are a danger to the 
United States, should not affect whether they are preparing to do 
terrorism. Engaging in international terrorism should be enough for our 
intelligence experts to start surveillance.
  It is important to note if we remove this last requirement now it 
will immeasurably aid law enforcement without exposing American 
citizens or those who hold green cards to the slightest additional 
surveillance. Let me repeat, because I know we get some who write that 
this is the unraveling of the Constitution and it befuddles me because 
it is not, it does not affect a single American citizen or those who 
have green cards.

  It is fair. It is reasonable. It is a smart fix to a serious problem. 
It passed out of the Judiciary Committee with unanimous support. It is 
supported by the administration as well.
  One final word. This is about an amendment from my good friend, a 
colleague from California, Senator Feinstein, which we will debate. She 
is introducing an amendment that would allow some gray into the law, 
rather than making it black or white. Her amendment would leave the 
decision whether or not to grant the FBI a FISA warrant against a lone 
wolf, she would leave that up to a particular judge.
  I do not believe we can afford any more uncertainty. We saw what 
uncertainty did when the Zacarias Moussaoui case occurred. The FBI, so 
worried that they might overstep, said no. We need clarity in the law 
when it comes to fighting terrorism.
  Therefore, I urge my colleagues to oppose the Feinstein amendment and 
support the bipartisan bill which is before us today.
  Mr. President, I yield the floor and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER (Mr. Fitzgerald). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Order of Procedure

  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I ask unanimous consent that Senator DeWine 
be recognized at 1 p.m. for 15 minutes of morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, I ask unanimous consent that in the debate on 
the pending business involving the Foreign Intelligence Surveillance 
Act, a letter from the Department of Justice dated July 31, 2002, be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       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 Surveillence 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 risen as to 
     whether S. 2586 would satisfy constitutional requirements. We 
     believe that it would.
       FISA allows a specially designated court to issue an order 
     appoving 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 cause 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 jurisdiction 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) occurs 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 of intimidate, or the locale in 
     which their perpetrators operate or seek asylum.
       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 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 versus 
     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 versus 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

[[Page S5903]]

     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 consistent 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 versus Pelton, 835 F.2d 1067, 1075 
     (4th Cir. 1987); United States versus Cavanagh, 807 F.2d 787, 
     790-91 (9th Cir. 1987) (per then-Circuit Judge Kennedy); 
     United States versus 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 access ``the 
     interrelation of various sources and types of information,'' 
     see Keith, 407 U.S. at 322, or relationships with foreign-
     based groups, see Daggan, 743 F.2d at 73; where there need be 
     no inexactitude in the target or focus of the surveillance, 
     see Keigh, 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 still 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, 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.'' 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 involve[] 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 terrorists 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 
     interests 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 in 
     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 of 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.

  Mr. KYL. Mr. President, I would like to advise Members that under the 
unanimous consent agreement for the consideration of this bill there is 
a period of 2 hours general debate and 4 hours equally divided on the 
Feinstein amendment. We would like to ask Members who have comments to 
make about this legislation to come to the floor and express themselves 
so that we can conclude this bill today under the unanimous consent. I 
will continue to discuss the bill. But if other Members would like to 
come, I will yield the floor to them. I would ask that those who have 
amendments that are authorized by the unanimous consent agreement to 
lay those amendments down so Members who wish to speak to those 
amendments could also address that.
  In the meantime, let me continue some of the conversation Senator 
Schumer and I had before. We are talking about a bill which would plug 
a loophole in the existing law--the Foreign Intelligence Surveillance 
Act--which currently authorizes warrants to be obtained in two specific 
situations. We make it clear that there is a third situation as well. 
The two specific situations are where you either have somebody you 
suspect is involved in international terrorism because they work for a 
foreign government--that is a situation like the old Soviet spy--or 
they work for some international terrorist organization. Remember that 
this law was created at the time when we had organized groups such as 
the Red Brigade and the Meinhof gang, and those types of groups. That 
is why those two definitions in the statute were included in the way 
they were. What was not anticipated is that we would also have people 
coming from abroad to the United States to commit acts of terrorism 
against American citizens as part of this rather amorphus Islamic Jihad 
movement rather than an organization of people affiliated around a 
culture or an idea or a movement.
  As a result, the statute needs to include that third group of people, 
as we know, after September 11. We have specific cases of people in 
which warrants were sought but were not obtained because we couldn't 
make that connection to either a specific country or a very specific 
terrorist organization. Instead, the individual had relationships with 
various people and organizations involved in terrorism but certainly we 
couldn't say he was a card-carrying member in the sense that the 
statute was originally drafted. So the same requirements, as Senator 
Schumer said, would pertain. It doesn't apply to U.S. citizens. It only 
applies to foreign terrorism. But it would include a person coming here 
from another country--not a U.S. citizen--and we have probable cause to 
believe is engaged in or about to engage in an act of terrorism.
  In that case, the law enforcement authorities can go to the court and 
seek a warrant just as they do in any other criminal court. But the 
difference here is the Foreign Intelligence Surveillance Act. One of 
the reasons a special

[[Page S5904]]

court is set up for that is because the information which the Justice 
Department frequently presents is highly classified. Clearly, here you 
are dealing with foreign threats--either an international spy spying on 
us from another country or some kind of terrorist like Zacarias 
Moussaoui, and the information you have that enables the warrant to be 
sought was obtained obviously through intelligence work. You don't want 
to compromise either the sources or the methods of intelligence. As a 
result, you can't just file publicly in the regular court system for a 
warrant.
  That is why the Foreign Intelligence Surveillance Act court was 
established. These are judges just like any other judge, but they have 
special intelligence clearances. They have been cleared to handle 
classified material. By the rules of the court, that material is kept 
in the court. Once allegations have been filed against people, then the 
matter can be debated in camera, which is to say in private--not in 
public hearings. Proceedings remain classified, at least until the 
matter is included; perhaps thereafter as well.

  This is the way in which these highly sensitive intelligence matters 
are handled. It takes a special procedure and a special court to do 
that. But there is nothing antithetical to a constitutional right 
simply because we have to handle it that way.
  There are other situations, as well, in which in our court system can 
handle things nonpublicly. There are sometimes sensitive matters 
between litigants that have to be handled in camera; that is to say, in 
effect in the judge's chambers and not out in public. Certainly, I 
think everybody can recognize that in some of the big spy cases and 
international terrorism cases you just can't take the evidence you 
gathered by the intelligence mechanism which we have and produce all of 
that information in open court. That is why you have these special 
procedures. But the underlying legal requirements to obtain the warrant 
remain essentially the same. They are slightly different in the 
classified court than in a regular court.
  In all candor, they are a little bit easier to obtain. But the basic 
element of probable cause and belief that a crime is being committed or 
is about to be committed or is planned remains. Nothing is changed.
  As Senator Schumer pointed out, our legislation doesn't change 
anything relating to the standard of proof, the burden of proof, or 
anything of that sort in the existing law that works so well. What we 
do is ensure that the warrant can be obtained not just against the spy 
for a specific country, or the terrorist whom you can identify as a 
member of a particular terrorist organization--sort of an anachronistic 
concept in today's terrorist situation--but also pertains to the non-
U.S. citizen, a foreign person who comes here from abroad with the 
intent to commit some act of terrorism against U.S. citizens.

  When you have those elements, you have the same foreign terrorist 
nexus to the law that our Constitution permits included within the 
Foreign Intelligence Surveillance Act for purposes of obtaining 
warrants or obtaining other surveillance of the individuals. That is 
all we do. That is all that is done by this legislation.
  So those of us--including I think every one of us on the Judiciary 
Committee--who consider ourselves civil libertarians need not be 
concerned that this statute or that this legislation, in any way, would 
impact on our constitutional rights, nor that it would diminish the 
constitutional rights of non-U.S. persons who are not engaged in 
terrorism. But if we have probable cause to believe you are engaged in 
an act of terrorism, then, yes, you would be subject to provisions of 
this law.
  This legislation has an interesting history, as I alluded to earlier, 
because it was assigned to the Intelligence Committee, and it was 
almost included as a part of the Intelligence Authorization Act of last 
year. And the chairman of the Intelligence Committee this year was kind 
enough to offer to include it in this year's legislation as well.
  Since we were able to also have the bill marked up in the Judiciary 
Committee and brought to the floor as a result of that markup, that was 
not deemed necessary. That is why the bill is here--actually as a 
result of action by the Judiciary Committee.
  So both the Intelligence Committee and the Judiciary Committee have 
been involved in this legislation, the former having a hearing and the 
latter having marked up the bill. Having been a member of the 
Intelligence Committee and sitting, as I do, on the Judiciary 
Committee, I can tell you it was also the subject of additional 
comments and hearings that were held for broader purposes of examining 
the terrorism issue. That is why I mentioned the fact that the 
legislation had actually been supported publicly by various Government 
officials who testified before either the full Judiciary Committee or 
the subcommittee I chair on terrorism and technology. They had 
testified before our committee on terrorism issues generally, and I 
specifically asked whether they supported the legislation in question; 
the response to the questions, of course, was that they did.
  Another interesting hearing, which was a joint hearing, as I recall, 
between the Judiciary and the Intelligence Committees had testimony 
from Coleen Rowley, referred to by Senator Schumer earlier. You will 
recall, she was the agent from Indianapolis who was very exercised 
about the fact that she could not get a warrant against Zacarias 
Moussaoui and complained bitterly that the FBI headquarters had 
prevented her from doing that. She thought the conditions warranted the 
issuance of the warrant.
  It is a debatable point. But it would not have been debatable if our 
proposal had been law. It would have been very clear. We had the 
probable cause. The only question was, Can we tie this person to some 
international terrorist organization? As I said before, we spent a lot 
of time and a lot of effort trying to run around tracing his contacts 
with Chechen rebels, and at the end of the day it just was not specific 
enough to be able to use the statute to get the warrant against him.

  Right after 9/11, when essentially the same warrant was sent forward, 
then we had additional information of contacts this individual had, as 
a result of which the warrant was obtained. But that would not have 
occurred had September 11 not occurred--or at least it is doubtful it 
would have occurred. Let me put it that way.
  Would that have prevented the September 11 attacks? No one knows for 
sure. I suspect not, but at least a plausible case can be made that we 
would have known a lot more about the planning of September 11 had we 
been able to get into Moussaoui's computers and questioned him and 
ascertained what he was up to and, furthermore, traced the contacts we 
were later able to trace from Moussaoui to others involved in the al-
Qaida movement that would have painted a much clearer picture of what 
was being planned prior to September 11 than the information that we 
had.
  The point is, we do not want to be in that position again. So whether 
it would have prevented 9/11 is really beside the point. We had the 
ability to get information which can protect the American people 
against acts of international terrorism. Why wouldn't we want to take 
advantage of that opportunity?
  As I said, the Judiciary Committee unanimously voted this bill out of 
committee to send it to the floor so we could deal with that precise 
issue. I am certain my colleagues will agree that this is important to 
do and that we will do it a little bit later on this day. When we do, I 
think we can be very proud of the fact that this is another in a series 
of things we will have done to help prepare our country against the 
international terrorist threat.
  We know that in the whole matter of homeland security you can only 
provide so much defense, that it really is about taking the fight to 
the enemy. Because our country is so big, it is so open, we have such 
broad freedoms in this country--and thankfully so--it is virtually 
impossible to absolutely protect us from a terrorist who would come 
here to do us harm. One of the ways we can help to protect against that 
is by getting good intelligence on people who come here from abroad and 
who we find out mean us ill. This provision today is a way to help us 
do that.
  So this is a tool in the war on terror that will really help us 
ensure that we deal with as many of these threats as we possibly can. 
Are we always going to find out enough to even get a warrant? Not 
necessarily so. That is why

[[Page S5905]]

the efforts of the administration to go after these terrorists all 
around the world are so important.
  But what has helped us in that regard is that we have had cooperation 
from other governments. And as much as we have been critical of some of 
our allies for not supporting us as we would like to have had them do--
such as the situation in Iraq--I will tell you, virtually every country 
in the world has been supportive in one way or another in supplying us 
with information about terrorists in their countries or terrorists of 
whom they are aware who might be affiliated in some way in this 
international movement that threatens us all.
  One of the things we discovered, however, in talking to legislators 
and parliamentarians from these other countries, and intelligence 
officials, and law enforcement officials, is that they have legal 
inhibitions just like the United States does. Their laws only permit 
them to go so far in tracking down these terrorists in their country.

  In the case of Germany, for example, which has been very helpful to 
the United States, they were able to change one of their laws to make 
it easier for them to go after these terrorists. There was another law 
they also needed to change, and at last count I do not recall whether 
they were able to get that done.
  But the point is, if we are able to change our law, as we did with 
the Border Security Act and the USA Patriot Act, we can demonstrate a 
seriousness of purpose to these other countries to convince them that 
all of us need to make these kinds of changes in our laws so that we 
can go after these terrorists.
  The analogy is, we won the war in Iraq in a most amazing way. We sent 
our troops with the best equipment and the best training ever in the 
history of the world. And I wish I could share some of that, the 
information about that equipment publicly. But I think we have all, 
through the embedded reporters, come to appreciate how just one 
American soldier, with all of the technology at his disposal, can make 
a tremendous difference.
  We also have helped protect them. They have special flak vests, 
bulletproof vests that protect them against a lot of incoming. We try 
to protect them with the special chemical gear in the event of a 
chemical attack, and so on.
  We want to send our troops into battle protected in the very best way 
and with the very best means of accomplishing their mission. Why would 
we deny our law enforcement and intelligence officials the very same 
kinds of weapons in the battle that we send them out to win?
  I guarantee you that the next time there is a case like Zacarias 
Moussaoui or some other terrorist about whom we have some information 
but we don't go after strongly enough, and he does something to us, the 
recrimination will be great. Oh, the accusations will fly: Why didn't 
we do something about that when we could have?
  So our response today is going to be: We did. We came together as a 
Senate and we enacted another law, another piece--it is a small piece, 
but it is an important piece--to help us fight this war on terror. We 
did not shirk our responsibility. When we became aware of the loophole 
in the law, we acted to fill it.
  Now, we have to do that in order to be able to take this credit, 
obviously, but I believe strongly that the House of Representatives 
will act similarly and that we will be able to get this to the 
President's desk in very short order, so at the end of the day today we 
can say we have done something very important to advance our ability to 
fight the war on terror and protect the American people.
  Again, I urge my colleagues, if there is no opposition--and I hope 
there isn't--that is fine. But anybody, either in opposition or in 
favor of the legislation, come forward so that we can have whatever 
debate is necessary. And I especially ask the proponents of amendments 
to come forward so that we can begin to debate them.
  I will take this moment to press some of the comments that will be 
made about the two amendments.
  Senator Feingold has proposed an amendment that we will accept and 
the Senate should accept which requires that the warrants obtained 
under this law generally--not just the provision we are talking about 
today, but if we obtain a warrant under either of the other provisions 
as well, that the information be compiled and shared with the Senate; 
specifically, that the information be sent to the Intelligence 
Committee--it is classified information, obviously--and that the 
cleared people on the Judiciary Committee who are appropriate to view 
the information have full access to that so we can evaluate whether 
these provisions are being used, abused, how often they are being used, 
how effectively, and so on. I believe his amendment calls for an annual 
report which we could examine. That is very useful information for us 
to have.
  One thing we found was that prior to 9/11, this statute had not been 
used very often. It is not a particularly easy statute with which to 
comply. You do really have to have your information together before you 
seek the warrant because you don't ever want to be turned down. I don't 
believe the Justice Department ever was turned down. That is evidence 
of the fact that they were careful. Since 9/11, there have been a lot 
more cases in which this has been used. That information will be 
available to us, and therefore I will support Senator Feingold in 
offering the amendment.
  The other amendment that is in order under the unanimous consent 
agreement, with all due respect to my great friend and colleague 
Senator Feinstein, would gut the bill and would be bad. It would really 
undermine the whole FISA process. We should reject it. I know she 
offers this amendment not for that purpose. Of all the people in the 
Senate with whom I have worked who share my strong conviction that we 
need to do everything we can to support our intelligence and law 
enforcement communities, Senator Feinstein is equaled by none. She is 
the ranking member of the Terrorism Subcommittee, and she and I have 
cosponsored numerous bills or amendments designed to enhance law 
enforcement and intelligence capabilities. She is a very strong 
advocate of giving our intelligence and law enforcement communities the 
very best tools possible.
  She just has a different point of view about how this FISA warrant 
process should work. I will let her describe it. I will offer my view 
that it has no place in the FISA situation. What her amendment purports 
to do really might have some applicability in a court setting because 
it talks about a presumption. As lawyers know, presumptions arise when 
you have two parties to litigation and one party comes forward with a 
particular piece of evidence or allegation which then changes the 
burden of going forward with the evidence or the burden of proof in the 
case. A presumption is established, and then the other side has to 
overcome it. That has no place in an ex parte hearing where the 
Government is seeking a warrant against a party who is not even aware 
that the warrant is being sought. Obviously, you don't get a search 
warrant by notifying him that you are about to do that.

  What her amendment pertains to does not really have application to 
the situation presented in an application for a FISA warrant and would 
seriously undermine the Government's ability to obtain it. You could 
either read it one of two ways. Either it would be totally 
meaningless--and I know that that is not intended--or else it would be 
very pernicious because it would create the suggestion in court that 
the material presented to it is not, is no more than a presumption, 
that it is not to be accepted on its face.
  Specifically, the Government would be asserting that the person 
against whom the warrant is sought is a non-U.S. citizen, a foreign 
person under the definition of the statute. If that information is 
presented in sufficient form for a court to issue the warrant, it makes 
no sense at all to have the information merely a presumption that the 
individual is a foreign person. How does that advance the ball? How 
does it help the court? How does it protect anybody? The court is still 
going to have to answer the very same question: Do I believe the 
information the Government is presenting to me that this is a non-U.S. 
citizen? Either he is or he isn't. It is not a matter of a presumption.
  If the court is not convinced that the Government's information is 
correct,

[[Page S5906]]

then the court is not going to issue the warrant. It would be improper 
to do so. If the court is convinced that the person is a non-U.S. 
citizen, then the court can issue the warrant if the other requirements 
are met. I don't believe Senator Feinstein attacks the other 
requirements.
  Either you are a foreign-born person, or a non-U.S. person, or you 
are not. The court has to make that decision. And creating a 
presumption about it is really irrelevant to this particular process. 
If it is more than irrelevant, there is some kind of a problem. 
Obviously, you don't want the court to have to somehow independently 
verify the information that is presented to it by the Justice 
Department. That is not a part of; that is not the way the court works. 
The court does not do this sua sponte, or on its own. The court has the 
information before it, and it either has to accept the information or 
not. It doesn't have to accept the Justice Department's word for it. 
The Justice Department cannot simply make the assertion. It has to 
offer the proof. If the proof is not satisfactory, the warrant will not 
issue. Later, if it is found that the evidence was not satisfactory, 
then there is always some question about whether the evidence obtained, 
of course, could be used, say, in a later prosecution.
  The bottom line is that that amendment does not help. It could 
seriously hurt the application of the entire FISA statute. It is not 
just limited to the amendment we are offering today. I urge my 
colleagues, when the time comes, to reject the Feinstein amendment, not 
because it is not well intended--I am confident that it is--but, 
rather, that its effects are ill understood at best and, at worst, 
would be pernicious to the application of the statute.
  I have said all I need to say at this point on the legislation. I 
would note that time will run against the time allotted under the bill. 
Since both Senator Schumer and I control the time, anyone who wishes to 
come to speak to the legislation either for or against, I ask unanimous 
consent that if neither Senator Schumer nor I are here, they should be 
permitted to do so without specific acquiescence by Senator Schumer or 
myself.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Unless there is someone else who wishes to speak at this 
time, I ask unanimous consent that the time consumed in the quorum call 
be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. 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. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Order of Procedure

  Mr. REID. Mr. President, shortly the distinguished Senator from Ohio 
is going to speak for 15 minutes as in morning business. I ask 
unanimous consent that the time, even though in morning business, be 
charged against the underlying bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. 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. DeWINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, I ask unanimous consent that at 1:25 p.m. 
today there be 20 minutes for debate equally divided between the 
chairman and ranking member of the Judiciary Committee prior to the 
cloture vote at 1:45 p.m.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, today--on the 58th Anniversary of the 
unconditional surrender of Germany and the end of World War II in 
Europe--a flag will be flown over this Capitol building here in 
Washington, DC, to honor the men who served in Company K, the most 
decorated company in the 409th Regiment of the 103rd Infantry Division, 
6th Corps of the 7th Army. The members of the Company will display this 
flag at their reunion later this year in Green Bay, Wisconsin, and at 
all future reunions, in memory of the men from K Company who fell on 
the field of battle, the men who did not return home.
  Though it has been 58 years nearly 6 decades, since these men served 
and fought and lived and died together, the men of K Company, now in 
their late 70s and 80s, continue to remember and honor their brothers 
who died in battle.
  The members of K Company--the men who did return home--the men who 
were able to lead their lives and have families and grow old and spend 
time with their children and grandchildren and now even great-
grandchildren--these men have great reverence for those who died. As 
Bill Gleason, who was a Private in Company K, so eloquently once wrote 
in the Southtown Economist in May 1988:

       Some in our Company were denied the chance to reach old 
     age. They didn't make it to adulthood. They never were old 
     enough to vote in an election. They died then--there in 
     France or Germany. . . . They are frozen in time as they 
     were--forever youthful.

  I would like to take a moment to read the names of those men of K 
Company, the men who perished during battle, the men who remain, as Mr. 
Gleason so fittingly wrote, forever youthful: Wilson F. Rogers from 
Tacoma, WA.; James Rosenbarger from Corydon, IN; Rosco Fry from 
Spickard, MO; Stanley Berdinski from Muskegon, MI; Bruno Pashisky from 
Chicago, IL; Sherman Sprague from Clinton, IA; Alex Hurtiz from El 
Paso, TX; Charles Frakes from Kokomo, IN; Abe Umansky from San Diego, 
CA; Edwin Byron from Akron, OH; and Albert Strang.
  K Company was no ordinary company. It was recognized as the Most 
Decorated Company in the 409th Regiment. The soldiers of K Company 
fought valiantly in France, Germany, and Austria. They saw combat in 
the Rhineland from September 15, 1944 to March 12, 1945 and in Central 
Europe from March 22, 1945 to May 11, 1945.
  Two books have been written about the Company--one by Bill Gleason, 
called Task Force Kommando: Camp Howze, Texas to Jenbach Austria; and A 
Combat Infantryman in World War II, by Otis Cannon, who also served in 
the Company. Both books provide an excellent perspective of an Infantry 
company in combat during World War II. They describe the reality of the 
War that these brave, young Infantrymen on the frontlines faced. They 
paint us a picture of what life was really like for these men--how they 
struggled and endured fierce fighting, rugged terrain, and miserable 
conditions until they helped secure the ultimate victory 58 years ago 
today.
  I had the opportunity to read both of these books this past weekend. 
Both of them provide insightful understanding of what life was like for 
these men during that period of time.
  The one book, ``Task Force Kommando,'' by Private Gleason, was 
written shortly after the end of World War II. Both books were written 
by the men who engaged in the combat. It goes almost in a day-by-day 
chronicle describing that combat. It gives us an understanding of what 
the combat was like.
  K Company's commander was Captain Joseph Bell, who hailed from 
Topeka, KS. By all accounts, Captain Bell was a man among men. He was 
fearless. He was a brilliant tactician. And, he was respected and 
admired by those who served under him.
  I was quite taken by a description of Captain Bell that I read from a 
recent e-mail exchange between two former K Company soldiers. In this 
e-mail, one of the men recalled his first impressions of Captain Bell 
and how this man and how this Company have had a lasting impact on his 
life. I think that this depiction captures a very colorful image of 
Captain Bell and how he was looked up to and admired by his men. I'd 
like to take a few moments to read from that e-mail. It begins as a 
young, World War II Army Private, who has recently arrived in Europe, 
awaits his company assignment:

       We were told that the next morning, we would be assigned to 
     some infantry company. That night, we went into a bar and

[[Page S5907]]

     were bought some beer by some GI's who knew we were (for want 
     of a better word) very uptight. All they talked about was 
     Captain Bell and his K Company. They told us that if we 
     wanted to do a lot of fighting that would be the company to 
     be assigned to. That was really not what [my buddy, Ernie 
     Dessecker] and I had in mind!
       A little before dark, someone on the other side of the room 
     yelled that Captain Bell was walking down the street and 
     every single soldier in that bar got up and crammed the 
     windows to get a look at him. He had a couple of other 
     officers on both sides of him, but he was walking a step or 
     two ahead. It was a dirt muddy street, but he looked like he 
     was walking on a parade ground. After he went by, you could 
     hear Captain Bell stories all over the bar.
       The next day, we were loaded on a truck and at each town, 
     it would stop and some names were called to get off. When 
     Dess and I were told to get off, the first thing we asked 
     was, ``What company is this?'' When told it was Company K, we 
     both wished we could climb back on that truck and head for 
     the rear echelon! Of course, in a very short time, we were so 
     very proud to be part of Captain Bell's Company K, and that 
     pride continues to this day.
       I was assigned to John Miller's squad in the second platoon 
     with Sergeant Hart and Lieutenant Monk as platoon leaders. 
     They were very kind and excellent leaders. I learned a lot 
     from them that has stayed with me all these years.

  Mr. President, leaders like Captain Bell and John Miller and Sergeant 
Hart and Lieutenant Monk were tough soldiers, but they had to be, and 
all the men who served under them came to understand that.
  As Bill Gleason wrote about Captain Bell:

       We understood . . . that if we made it through the war, we 
     would owe our lives to him. And, we do. . . . [H]e kept us 
     alive simply because he insisted we stay alive.

  Leaders, like Captain Bell, made all the difference.
  As Memorial Day approaches, I ask my colleagues to think about 
Captain Bell and the men of K Company. I ask my colleagues to think 
about and remember all the men and women who served our Nation during 
World War II--and to think about and remember all the men and women who 
have defended our Nation since that time. Memorial Day is a time to 
honor and remember these individuals. They fought, and therefore all of 
us now know peace and freedom--our children and our grandchildren know 
peace and freedom. We owe them our respect and, we give them our 
thanks.
  I am grateful for the men of Company K.
  I am grateful that they fought so that I can be here today in a free 
country--that I can stand here today on the Floor of the United States 
Senate in the world's greatest Democracy.
  And, I am grateful that we can continue to enjoy Life, Liberty, and 
the Pursuit of Happiness because of their efforts nearly 60 years ago.
  I thank them.
  I thank all the men of K Company and especially one man who served in 
the Company--the author of the e-mail I quoted just a moment ago--a 
Private named Richard DeWine. To him, I will simply say:
  Thanks, Dad.
  Mr. President, I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Bunning). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________