[Congressional Record Volume 149, Number 68 (Thursday, May 8, 2003)]
[Senate]
[Pages S5914-S5928]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
amendment no. 537
(Purpose: To propose a substitute)
Mrs. FEINSTEIN. Mr. President, I call up amendment No. 537.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from California [Mrs. Feinstein], for herself
and Mr. Rockefeller, Mr. Leahy, Mr. Edwards, Mr. Feingold,
Mr. Dodd, Mr. Wyden, and Mrs. Boxer, proposes an amendment
numbered 537.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. PRESUMPTION THAT CERTAIN NON-UNITED STATES PERSONS
ENGAGING IN INTERNATIONAL TERRORISM ARE AGENTS
OF FOREIGN POWERS FOR PURPOSES OF THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Presumption.--(1) The Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting
after section 101 the following new section:
``Presumption of treatment of certain non-united states persons engaged
in international terrorism as agents of foreign powers
``Sec. 101A. Upon application by the Federal official
applying for an order under this Act, the court may presume
that a non-United States person who is knowingly engaged in
sabotage or international terrorism, or activities that are
in preparation therefor, is an agent of a foreign power under
section 101(b)(2)(C).''.
(2) The table of contents for that Act is amended by
inserting after the item relating to section 101 the
following new item:
``Sec. 101A. Presumption of treatment of certain non-United States
persons engaged in international terrorism as agents of
foreign powers.''.
(b) Sunset.--The amendments 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.
Mrs. FEINSTEIN. Mr. President, I rise to offer a substitute amendment
to S. 113, the Kyl-Schumer FISA bill. I ask you to bear with me because
the explanation goes on for a while.
I am also pleased that Senator Rockefeller, the ranking member on the
Intelligence Committee, and Senator Leahy, the ranking member of the
Judiciary Committee, are cosponsors of this amendment. I am pleased to
also acknowledge that Senators Dodd, Edwards, Feingold, Boxer, and
Wyden are also cosponsors of the amendment.
Let me try to briefly describe the difference between current law, S.
113, and my amendment.
S. 113 is the Kyl-Schumer FISA amendment. First, the Kyl-Schumer
amendment only applies to non-U.S. persons. I want to make clear that
it does not cover green card holders under that amendment.
Under current law, the FISA court may only grant a FISA application
against a non-U.S. person if the Government can show probable cause
that the target is working on behalf of a foreign power or a terrorist
group. The Government also has to certify that it is seeking foreign
intelligence information that can't be obtained by any other means.
As I understand the Kyl-Schumer bill, it drops a primary requirement
for FISA warrants; that is, the individual or the target be agents of a
foreign power. Under Kyl-Schumer, this prerequisite is gone. That is
what the so-called lone wolf deals with.
This would then give the FISA court no discretion to deny
applications for FISA orders against a true so-called lone wolf. These
are alleged international terrorists operating completely on their own.
This is confusing. In other words, current law gives the FISA court no
discretion to grant FISA orders in closed cases. But S. 113--Kyl-
Schumer--gives judges no discretion to deny FISA the FISA court
application in closed cases. Both of these circumstances raise certain
problems.
My amendment is essentially a compromise. It grants the court a
presumption. So the FISA court may presume that a target is an agent of
a foreign power, or the court may choose not to invoke that
presumption. The bottom line is the court is given some discretion.
In other words, the court may choose to grant a FISA order despite a
lack of evidence that a target is working on behalf of a foreign power.
Similarly, the court may choose to deny an order against a true lone
wolf. It is up to the court.Federal judges in title III criminal cases
have similar discretion. Although the standard there is about whether
the Government can show probable cause that a person has committed a
crime or will commit a crime, that is a very different standard than
under FISA. Federal judges have not abused that discretion and, in
fact, in rare cases have been able to act as a check on the Government
to prevent overreaching and abuse.
Why do the sponsors of S. 113 show less trust for FISA judges in the
FISA content? In fact, such trust is even more warranted in the FISA
content. Not only is the FISA process secret and hard to keep
accountable, but the FISA court has only denied one FISA application in
its 25-year history.
Such a lack of trust is even less necessary given the fact that even
if the Government is unable to get a FISA order against a target, it
remains completely free to use all the tools of the criminal process
under title III to get search and wiretap orders against the target.
The bottom line is, our amendment preserves FISA's agent-of-a-
foreign-power requirement without jeopardizing our security. Our
amendment allows the Government to get FISA orders against suspected
international terrorists even in close cases where the Government
cannot show the target is working on behalf of a foreign power or
terrorist group. However, unlike S. 113, the amendment also ensures the
FISA court is more than a rubberstamp and has discretion to deny a FISA
application if the Government overreaches by attempting to use FISA
authority.
I now would like to discuss the issue in somewhat greater detail.
Mr. President, at times of crisis, it is possible the Government can
overreach in both legislative and executive decisionmaking with respect
to our criminal and intelligence laws. That can have unfortunate
consequences for both our security and individual rights.
The Foreign Intelligence Surveillance Act, or FISA, was passed in
1978. It was the first statute ever passed in
[[Page S5915]]
the United States to provide a statutory procedure for the
authorization of clandestine activities of our Government to obtain
foreign intelligence.
Before it passed, then-Attorney General Griffin Bell testified in
favor of the bill before Congress. He noted the ``delicate balance''
that needed to be struck between ``adequate intelligence to guarantee
our Nation's security on the one hand and preservation of basic human
rights on the other.''
He stated:
In my view this bill strikes the balance, sacrifices
neither our security nor our civil liberties, and assures
that the abuses of the past will remain in the past. . . .
Now, what does he mean by ``abuses of the past''? Decades earlier,
America saw what happened in World War II with Japanese Americans who
were removed from their homes, their businesses, and their schools, and
placed in interment camps in violation of their rights. We do not want
that to happen ever again in this country.
I am not saying this is an identically similar situation. I am
concerned, however, about zealousness and overreach because now we are
engaged in a global war on terror. In conducting this war, we must be
careful that we not overreach when the temptations are so great.
This kind of war is unprecedented for the United States. It is
unprecedented and unbelievable that anybody could fly four big planes,
three into buildings, and kill 3,000 people. This is beyond our ken.
America and Americans want to protect our homeland and our individuals,
notwithstanding this is an entirely secret process and, as such, the
laws that govern it must be balanced, must be carefully crafted, and
must prevent it, lest someone use them to overreach. It has happened in
the past, so you can assume it could well happen in the future. This is
especially true, as I said, with FISA.
I supported reporting S. 113, the Kyl-Schumer FISA bill we are
debating, in the Judiciary Committee. I agree with my colleagues--there
is a clear problem here, needing a solution; namely, the potential
difficulty the Government may have in obtaining FISA orders against
certain international terrorist so-called ``lone wolves.'' These are
people who have no affiliation with a terrorist group, no affiliation
as an agent of a foreign power.
Under FISA, a ``foreign power'' is simply defined as ``two people
conspiring,'' so it is a very easy goal and target. A problem arises in
cases where the Government knows of a foreign individual who may be
involved in terrorism but cannot yet prove a connection to foreign
groups or governments. This problem stems from the proof requirement
under FISA in current law.
To get a FISA order against a foreign visitor to the United States
under current law, the Government needs to show two key things:
First, that the individual is a foreign power or an agent of a
foreign power. Again, that is defined as two people working together. A
foreign power could be a foreign government or an international
terrorist group as defined.
And second, that it is seeking ``foreign intelligence information''
that cannot be obtained by other means.
This symbolizes the very purpose of FISA: to gather foreign
intelligence. Criminal courts are for criminal cases, and the FISA
court was set up specially to deal with cases where the Government
wishes to obtain information or intelligence about the activities of
foreign powers.
The problem is this: Under this current standard, it may well be
difficult for the Government to meet the foreign power requirement if
the Government does not yet have enough evidence of a connection to a
foreign group, entity, or power. Some have described this problem as
the ``false lone wolf'' problem, where you have an individual who may
appear at first to be operating as a ``lone wolf,'' even though that
individual is really an agent of a larger group.
That was one of the alleged problems with the pre-September 11
investigation into Zacarias Moussaoui. The FBI did not learn until
after September 11 that Moussaoui had links to al-Qaida and may have
been the intended 20th hijacker.
As a result, the Government may have been reluctant to request a FISA
warrant because they did not think the intelligence they had could
connect Moussaoui to an international group or government.
So there is no question in my mind that we need to amend FISA to fix
this problem. And I applaud my colleagues, Senators Kyl and Schumer,
for working so diligently to solve it. But the Kyl-Schumer bill also
redefines ``agent of a foreign power'' to include any non-U.S.
individual preparing to engage in international terrorism. In other
words, it essentially eliminates the foreign power requirement
altogether.
This change would allow the Government to get a FISA search or
wiretap order against any foreign individual in the United States who
is preparing to engage in international terrorism, regardless of
whether the person is really an agent of a foreign government or terror
group, and regardless of whether there is any potential to gather
foreign intelligence.
Again, it is this foreign intelligence component that defines the
very purpose of FISA. As a result, I believe this change goes too far.
Under S. 113, for the first time ever, the Government will be able to
use FISA against any non-U.S. citizen preparing to engage in
international terrorism--even individuals whom the Government knows
have no connection at all to anyone else engaged in international
terrorism.
There would be no check at all on the Government's use of FISA
against many common criminals who just happen to be noncitizens and,
therefore, the Government might be able to use this secret FISA court
to obtain warrants that: (A) are easier to get; (B) last longer; and
(C) are less subject to normal judicial scrutiny than criminal warrants
under title III or regular criminal statutes.
FISA wiretap orders, for instance, are good for 4 times longer than
normal criminal warrants--120 days versus 30 days--giving the
Government a clear incentive to use this process even against common
criminals. These orders can be reauthorized indefinitely each year for
1-year periods. The same is true for physical search orders under FISA,
although these are good for 90 days, and 1-year extensions are subject
to the requirement in current law that the judge find ``probable cause
to believe that no property of any United States person will be
acquired during the period.''
Under FISA, as modified by S. 113, the Government must show by
probable cause only that a foreign national is engaged in international
terrorism or preparation thereof. You might listen to that and you
might think: What is wrong with that? We all want that. I want it, too.
But in many instances, this probable cause standard will be easier to
meet than the traditional criminal probable cause standard.
For example, for a title III wiretap, the Government must show that
there is probable cause to believe an individual is about to commit or
has committed an enumerated crime. To get a search order, the
Government must show probable cause that the search will result in the
discovery of offending items connected with the criminal activity.
However, under S. 113, the Government need only show probable cause
that the person is engaging in ``activities in preparation'' for
international terrorism. Many ``activities in preparation'' for
international terrorism are not crimes.
For example, a foreign visitor who bought a one-way airline ticket
and a box cutter would arguably qualify as a person engaging in
activities in preparation for international terrorism, even in the
absence of other evidence that he or she might be an international
terrorist.
However, these two activities, taken alone, would clearly not
demonstrate probable cause that the person would commit a crime. These
activities may be entirely innocent. As a result--and I don't believe
this is anyone's intent--S. 113 could easily serve as a clarion call to
all aggressive prosecutors who want to listen in on or search the homes
of targets of investigation without ever having to prove that any crime
may be committed or that foreign intelligence may be gathered.
By allowing FISA to be used against all solo suspected international
terrorists, S. 113 runs counter to the whole purpose of FISA, which is
to allow the Government to get foreign intelligence by searching and
wiretapping people
[[Page S5916]]
working for other countries and groups against U.S. interests.
S. 113 essentially eliminates any discretion the FISA court has to
turn down a case--this is my big problem with it--thus enabling the
Government to overreach. I am not saying that it will overreach. But
because it is a secret process, the laws we pass have to prevent that
overreach.
By nullifying the requirement that the target of an investigation has
some connection, any connection, to a foreign entity or government,
this legislation essentially makes the FISA court a rubberstamp. The
court will be required to grant a FISA order, even if there is no
probable cause to indicate a connection to a foreign power; indeed,
even if there is clear evidence that the individual is operating
completely on their own. In fact, even if the Government admits that
the terrorist is operating alone and that there is no foreign
intelligence to be gathered, the FISA court must still grant the order
under S. 113.
That is not what FISA is meant to be. Put simply: The
legislation goes too far.
Let me be clear: We who are sponsoring this amendment are not trying
to protect international terrorists, and our amendment does nothing to
protect them. The vast resources of the Federal Government and the
powerful tools of the criminal process remain available to target and
investigate any terrorist against whom the Government is unable to get
a FISA order.
What our amendment will do is retain the original purpose of FISA--
the seeking of foreign intelligence. S. 113 would not.
Our amendment is simple. Rather than simply eliminating the foreign
power requirement altogether, our amendment would allow the FISA court
judge to presume that a foreign terrorist is also an agent of a foreign
power, even if there is no evidence supporting that presumption. On the
other hand, under our amendment, the FISA court could also refuse to
presume this connection in troubling cases of Government overreach.
Thus, a FISA court judge would have some discretion.
What does this mean? In the Moussaoui case, for instance, even though
the Government did not yet have evidence that Moussaoui was acting as
an agent of a foreign power, both our amendment and S. 113 would allow
the Government to get a warrant. The only difference is that our
amendment would allow the judge to carefully look at the case and, if
the court determined Moussaoui was clearly acting alone, the warrant
could be denied.
I know some will argue that this casts too much doubt upon the
outcome of cases and that, as a result, FISA orders will be too hard to
obtain. But in most cases, if you think about it, the outcome will be
exactly the same, whether under our amendment or the underlying bill.
Others may argue that this amendment might give liberal judges too
much power to deny FISA orders in every case or, as Senator Schumer put
it today, ``inject gray into the statute.'' But in reality, I believe
these judges should have some discretion. This is an entirely secret
process. By providing this presumption, we give judges that discretion.
That is, in fact, a good thing.
Liberal judges can always find ways to deny a FISA order, even under
S. 113, if they are determined to do so. For instance, a judge could
simply decide there is no probable cause showing that an individual is
engaged in international terrorism. That is a requirement in both S.
113 and our amendment.
The bottom line is that we can and should preserve the foreign power
requirement of FISA without jeopardizing our security. Under either
approach, the Government will be able to get FISA orders against
international terrorists, even if the Government cannot meet the
foreign power requirement.
Bottom line, again: The only difference between the two approaches is
that our amendment preserves some limited discretion so the FISA court
could stop the Government from overreaching against those individuals
who have no connection to a foreign conspiracy. Let me say, if they
have no connection to a foreign conspiracy, you can get the title III
criminal warrant.
I urge my colleagues to support the amendment and, therefore, support
the underlying purposes of FISA.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mrs. FEINSTEIN. I yield such time as the Senator from Vermont, the
ranking member of the Judiciary Committee, requires.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, I thank the distinguished Senator. I will
not speak long.
In times of national stress there is an understandable impulse for
the government to ask for more power. Sometimes more power is needed,
but sometimes it is not.
After the September 11 attacks, we worked together in a bipartisan
fashion and with unprecedented speed to craft and enact the USA PATRIOT
Act, which enhanced the government's surveillance powers.
Now, as we consider S. 113--and we anticipate a possible sequel to
the USA PATRIOT Act--it is vital for us first to examine and understand
how Federal agencies are using the power that they already have. We
must answer two questions: First, is that power being used effectively?
Our citizens want not only to feel safer, but to be safer. They need
results, not rhetoric.
Second, is that power being used appropriately, so that our liberties
are not sacrificed, the openness of our society and our government are
preserved, and our tax dollars are not squandered?
Unfortunately, the FBI and the Department of Justice have either been
unwilling or unable to help us to answer these basic questions.
Moreover, the information that we have gleaned on our own through our
bipartisan oversight efforts has not inspired confidence.
In February, Chairman Grassley, Chairman Specter and I released a
detailed report based on the oversight that the Judiciary Committee
conducted in the 107th Congress. That report distilled our bipartisan
findings and conclusions from numerous hearings, classified briefings
and other oversight activities. Our oversight demonstrated the pressing
need for reform of the FBI. In particular, it focused on the FBI's
failures in implementing what is already in FISA.
The administration's response to our bipartisan oversight report has
been to dismiss it as ``old news'' relating to problems that are all
already fixed. In short, ``everything is fine'' at the FBI and they
plan to do nothing to respond to the systemic criticisms in the
Specter, Grassley, Leahy report. Predictably, however, Congress is
asked yet again to expand the FISA statute.
The bill that we are considering, S.113, adopts a ``quick fix''
approach. With slick names like the ``Moussaoui fix,'' and the ``lone
wolf'' bill, it is aimed at making Americans feel safer, but it does
nothing to address the problems that actually plague our intelligence
gatherers. It does nothing to fix the real problems that plagued the
FBI before 9/11 and that continue at the FBI.
In private briefings, even FBI representatives have stated that they
do not need this change in the law in order to protect against
terrorism. They are getting all the warrants they want under the
current law.
Sunset provisions, such as the one I helped add during the Judiciary
Committee markup, allow us to adopt such measures as S. 113 on a
temporary basis. The reporting requirement that is being added to the
bill on the floor is another welcome improvement, which will help us to
ascertain whether this surveillance tool is working properly or not.
The reporting requirement is similar to those proposed in a bill I
introduced with Senators Grassley and Specter--S. 436, the Domestic
Surveillance Oversight Act.
While there is little evidence that this bill is necessary, it does
create significant problems. First, it tears FISA from one of its most
basic moorings. FISA was intended to assist in gathering intelligence
about foreign powers and their agents. The Kyl-Schumer proposal would
simply read that requirement out of the law for a whole class of FISA
cases.
As introduced, the bill essentially said that a ``person'' is now a
``foreign power,'' which makes little sense as a matter of logic or
policy. As reported by the Judiciary Committee, the bill's wording
makes more sense, but the fundamental policy problem remains.
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Second, in the rare case of a true ``lone wolf,'' our federal law
enforcement agents already have potent tools at their disposal,
including the title III wiretap, the rule 41 search warrant, and the
grand jury subpoena. These provide ample means to combat isolated
criminal acts, but with more accountability and judicial supervision
than the FISA surveillance authorities.
Far from addressing a true problem, then, all that S.113 would do is
encourage the use of the secret, unchecked FISA process for an entire
class of cases that are more appropriately handled as criminal matters.
To the extent that some believe that there is a problem that needs to
be addressed, I support the more measured and practical approach that
Senator Feinstein developed, and that I was pleased to cosponsor. The
Feinstein approach is to create a statutory presumption to assist the
FBI in terrorism cases.
Using this approach, when the government shows probable cause to
believe that a non-U.S. person is engaging in international terrorism,
the FISA Court may presume that the person is also an agent of a
foreign power. This permissive presumption would allow law enforcement
some extra leeway in international terrorism cases, but without simply
removing the foreign power nexus from a huge class of FISA matters
altogether.
I commend Senator Feinstein for her work on this amendment. I believe
it is a constructive and reasonable compromise. It would give the FBI
what it claims to need as a practical matter, to ensure that it can use
FISA against individuals like Zacarias Moussaoui, whose ties to a
foreign power may be difficult to prove.
At the same time, the amendment would preserve some discretion on the
part of the FISA court to determine that an individual should not be
subject to surveillance because he is not, in fact, an agent of a
foreign power. The FISA court should not become an automatic adjunct of
the executive branch. That would destroy the checks and balances that
keep us all free. Let's make sure they have the ability to act as a
court.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. FEINGOLD. Mr. President, I ask the Senator from California to
yield me some time so I can speak in support of the amendment.
Mrs. FEINSTEIN. I am happy to yield as much time as the Senator
requires.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, I agree with the Senator from California
that S. 113 is the wrong way to fix the Foreign Intelligence
Surveillance Act. The approach taken in S. 113 would eliminate the
current requirement in FISA that the individual who is the target of a
warrant must be an agent of a foreign power. This means that S. 113 may
very well result in FISA serving as a substitute for some of the most
important criminal laws we have in this country. Senator Feinstein's
permissive presumption amendment would allow the Government to obtain
FISA warrants against suspected lone wolf international terrorists
without unnecessarily eliminating an essential element of FISA, and
that is the agent of a foreign power requirement.
FISA, as the Senator from California has very carefully and
effectively pointed out, represents an important exception to
traditional constitutional restraints on criminal investigations,
allowing the Government to gather foreign intelligence information
without having probable cause that a crime has been or is going to be
committed. I will repeat that. This is something the Government can do
without having probable cause that a crime has been or is going to be
committed. That is a major exception to our normal understanding about
how criminal proceedings should be conducted under our Constitution.
The courts have permitted the Government to proceed with surveillance
in this country under FISA's lesser standard of suspicion because the
power is limited to investigations of foreign powers and their agents.
Senator Feinstein ably pointed out the history behind this and the
careful balance that Attorney General Griffin Bell discussed at the
time, and how important that balance was for such an unusual exception
to be made to our rules about criminal proceedings.
S. 113 writes out of the statute a key requirement necessary to the
lawfulness of intrusive surveillance powers that would otherwise simply
be unconstitutional.
FISA's own appellate court, the Foreign Intelligence Surveillance
Court of Review, discussed in a November 2002 decision why a FISA
warrant does not require a showing of probable cause of criminal
activity. The court stated that FISA is constitutional in part because
it provides ``another safeguard . . . that is, the requirement that
there be probable cause to believe the target is acting `for or on
behalf of a foreign power.' '' So this is supposed to be about people
acting in connection with a foreign power. S. 113, as currently
drafted, simply eliminates that safeguard.
Even if S. 113 survived constitutional challenge, it would mean that
non-U.S. persons could have either electronic surveillance and searches
authorized against them using the lesser standards of FISA, even though
there is no conceivable foreign intelligence aspect to their case. S.
113 will then likely result in a dramatic increase in the use of FISA
warrants in situations that do not justify such extraordinary
Government power.
I think Senator Feinstein's amendment is a thoughtful and reasonable
alternative to make sure that FISA can be used against a lone wolf
terrorist, which I commend the Senator from Arizona and the Senator
from New York for trying to address. But at the same time her amendment
means we can do this without eliminating the important agent of a
foreign power requirement. The amendment would create a permissive
presumption that if there is probable cause to believe a non-U.S.
person is engaged in or preparing to engage in international terrorism,
the individual can be considered to be an agent of a foreign power even
if the evidence of a connection to a foreign power is not clear. The
use of a permissive presumption, rather than eliminating the foreign
power requirement, maintains judicial oversight and review on a case-
by-case basis on the question of whether the target of the surveillance
is an agent of a foreign power. The permissive presumption would permit
the FISA judge to decide, in a given case, if the Government has gone
too far in requesting a FISA warrant.
I want to be clear about one point that apparently came up this
morning. I understand the Senator from Arizona argued this morning that
this amendment would weaken or impact on the FISA law as a whole. That
is just not true. This amendment applies only to the changes made in
the bill to address the lone wolf problem. It is a narrow, carefully
drafted, very important amendment to this bill.
Any concern that the FISA judges would not use their discretion
wisely is, I think--as the Senator from California pointed out--
misplaced. What is the reason for any concern whatsoever about the
proper use of this provision by judges? In the 23 years that the FISA
court has been reviewing FISA applications, they have only declined to
issue the warrant on one occasion. In that case, the decision of the
court was reversed on appeal. The FISA judges clearly take their
responsibility seriously and execute it carefully. The experience of
the last two decades shows we can trust them not to the deny FISA
applications too hastily. We should also be able to trust them enough
to maintain their power to serve as a reasonable check on Government
overreaching.
We are told that one of the inspirations for this bill was the case
of Zacarias Moussaoui, the alleged 20th hijacker. One of the FBI's
excuses for not seeking a warrant to search Mr. Moussaoui's computer
prior to September 11 was that they could not identify a foreign power
or group with which Moussaoui was associated. In other words, they
could not meet the agent of a foreign power requirement to get a FISA
warrant. In the case of Moussaoui, a warrant application was never even
submitted to the FISA court.
As Senator Specter pointed out, many legal observers think the FBI
simply misread the law, and it could and should have obtained a FISA
warrant against Mr. Moussaoui if it had tried.
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No matter, in any event, Senator Feinstein's amendment would fix the
so-called Moussaoui problem just as well as the current bill. The
permissive presumption would still ensure that future investigators do
not need to show specific evidence of a particular foreign power or
group for which the individual was an agent if they have other good
evidence that the subject is preparing to engage in international
terrorism, as they did in Moussaoui's case, but have not been able to
identify the specific agent of a foreign power.
At the same time, Senator Feinstein's formulation would put some
limit on the Government's ability to use this new power to dramatically
extend FISA's reach. If the Government comes to a conclusion that an
individual is truly acting on his or her own, then our criminal laws
concerning when electronic surveillance and searches can be used, in my
view, and I think in the view of many, are more than sufficient. True
lone wolves can and should be investigated and prosecuted in our
criminal justice system.
Under this amendment, the FISA court could presume that any non-U.S.
person preparing to engage in international terrorism is an agent of a
foreign power. At the time of the initial warrant application, and
perhaps even later, this presumption makes sense. It is somewhat
difficult to envision a foreigner in the United States planning an
international terrorist attack who is not an agent of a foreign power,
which includes a terrorist organization. But one can envision a
situation where, at the time of a request for a reauthorization, a FISA
warrant is made, the Government has now determined that the suspect is
truly a lone wolf.
In those situations where the person is simply a lone wolf in every
sense of the word and is not connected with a foreign power or
terrorist organization, FISA should not apply. The Government should
then use all the tools of the criminal process because--and this is the
key issue--in that circumstance, the foreign intelligence rationale,
the entire basis for the creation of a FISA law, that entire rationale
for FISA's lesser standard no longer exists.
Senator Feinstein's amendment retains FISA's agent of a foreign power
requirement, maintains the independence of the FISA court, and
preserves judicial oversight of the abuse of the new power. It protects
national security by addressing the lone wolf problem, and it does not
threaten the constitutional freedoms we cherish.
I am grateful to the Senator from California for her leadership role
on this important amendment. I strongly urge my colleagues to support
this reasonable amendment that will simply make this a much better bill
and, frankly, a bill that would cause many of us to feel comfortable
supporting the bill.
I urge my colleagues who are proponents of this bill to consider how
important it is that we have as many Senators as possible support such
a bill. This goes right to the heart of the question of whether in
times of crisis this Nation is going to get the balance right between
civil liberties and our Constitution and the important paramount issue
of fighting terrorism. We need as many people supporting this to send a
message to the American people that we are getting this right. The
Feinstein amendment is a reasonable, modest attempt to achieve that
kind of consensus. I urge my colleagues to support it.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER (Mr. Sununu). The Senator from New York.
Mr. SCHUMER. I thank the Chair.
Mr. President, I rise in reluctant, but considered, opposition to the
amendment of my good friend from California. I thank her and the
Senator from Wisconsin for their roles in this area. My colleague from
California and I usually share many of the same views on law
enforcement issues, and we work closely together. I say usually, it is
the other way around. I am on one side, and she is trying to put
together the compromise. Now she is trying to put another compromise
together. I respect her for that.
I say to the Senator from California and the Senator from Wisconsin,
who is a devout believer in the freedom and liberty this country
cherishes and a constant watchdog on our committee, I have great
respect for both of them. This is a good debate because in our brave
new post-9/11 world, we have to balance liberty and security and,
obviously, some adjustments have to be made.
The Founding Fathers knew that in times of war, in times of crisis,
security might gain a little. I do not think this is an issue of
security versus liberty, though. I do think it is an issue of the new
technologies that are available and allows individuals or small groups
of individuals unknown before to do real damage to America. Then 10
years ago, you knew who was going to hurt you. It would be a nation. It
would be an established group of terrorists. But today, any small group
can pop up, even individuals, and do such damage. That is what has
caused the Senator from Arizona and I to change the law.
I think the Feinstein amendment is well-intentioned, and honestly it
recalibrates the balance in a little different way than I would. This
is what the debate is about. My guess is, if Washington, Jefferson, or
Madison were looking down on the Senate Chamber, they would want us to
have this debate. It is a good thing we are having this debate. I
appreciate it.
I am going to be brief. I know we want to deal with this amendment.
My objection to the amendment of the Senator from California is that
it does leave discretion in the hands of the judge--the very purpose of
the amendment. I do not think there ought to be discretion when there
is probable cause that some individual or small group, whether they can
be connected to a terrorist group, a known terrorist group, a terrorist
organization or not--I do not think there should be discretion in
getting that FISA warrant. Obviously, the judge will have discretion,
so to speak, in determining if probable cause is there. So this is
hardly a straitjacket, even the amendment we have proposed.
If the judge does not find probable cause to engage or prepare to
engage in terrorist activity, there is not going to be a warrant.
The other point I want to stress, of course, and this matters to me--
I know some in the civil liberties community say everyone who is
dealing with American law should have the same rights. This does not
affect citizens or those who hold green cards. I think it strikes a
fair balance. The idea of giving the judge discretion, the so-called
permissive presumption, in my judgment, goes too far.
One of the problems we had with the Moussaoui case was that the FBI
was unsure that they could seek a warrant. They did not think the law
allowed them to seek a warrant. That is what brought up our amendment.
With the Feinstein amendment, they would still not have that
certainty. You also might get in the very same case a judge in
California ruling one way and a judge in New York ruling another way. I
do not think we want confusion, differing opinions, judicial discretion
when clearly probable cause is met.
I realize that my good friend from California seeks an ability to
check on the abuse of FISA. I agree with her. I argue this is the wrong
way to do it. Again, if probable cause is established, it should not
matter if it is a lone wolf or a known terrorist group or a known
terrorist organization. To have different judges come to different
conclusions about that I do not think helps move our law, move our
safety, or, for that matter, further protect our liberties.
I urge my colleagues to vote against this amendment. It is well
intentioned. It does seek to understand the balance between liberty and
security, but it would do it in a way that I think is not advised,
particularly in our post-9/11 world. I urge my colleagues to vote down
the amendment.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, first let me address Senator Feingold. He is
correct about the misstatement I made this morning. I do recall making
this statement that the Feinstein amendment would apply generally to
the section of law rather than just S. 113. The Senator from Wisconsin
is correct. What I said was in error. It does not detract from my
primary argument, but that is correct, and I appreciate him pointing
that out.
I wish to respond to the three primary arguments we have heard. First
[[Page S5919]]
of all, Senator Leahy primarily was making the point that we should see
if the Patriot Act is working before we make the changes that Senator
Schumer and I and others are trying to make.
First, I note that the vote in the Judiciary Committee was 16 to 0.
It was unanimous. I appreciate the bipartisan support from people such
as Senator Leahy and would note that we have had that kind of
bipartisan support from the very day that Senator--in fact, 2 years ago
it was Schumer-Kyl, now it is Kyl-Schumer, for obvious reasons.
Secondly, this has nothing to do with the PATRIOT Act. The FISA law
was put into effect in 1978, I believe it was. So this is a law that
has been in effect for a long time. The problem with it is that a
significant change has occurred on the international stage. As has been
pointed out, the law was originally intended to deal with Soviet spies,
foreign powers, or international terrorist organizations such as the
Red Brigade, the Baader-Meinhof gang and people like that.
In that day, it was a tight-knit group of people who actually worked
as a terrorist organization. But today, as the testimony before the
Intelligence Committee went into in detail, it is now a worldwide
Islamic jihadist movement. It is about a cause rather than an
organization.
The FBI Director, whose testimony I read this morning, went into a
great deal about how, therefore, the people who work in this
international cause are very different from the old members of the
gangs or the Soviet spy network, and to try to pigeon hole a FISA
warrant against these individual people into the provisions of the law
as it was originally drafted is really not possible. That is why the
FBI would not go after a warrant for Zacarias Moussaoui. It is why
Agent Rowley was very upset about it. But at the end of the day,
headquarters was probably right not to try to make out the case that
Zacarias Moussaoui was somehow connected to an international terrorist
organization. They found some tenuous connections with some Chechen
rebels but at the stage that the warrant was corrected they could never
tie it into an international terrorist organization. We now know
subsequent to the issuance of the warrant that there were some ties to
al-Qaida, but he may be a good example of the lone-wolf terrorist.
So that is why times have changed. The law has to change to keep up
with this. Otherwise, we would not be suggesting this rather modest
change in the law.
The people against whom we are now directing our surveillance with
respect to international terrorism are a very different group of
people. Much of the time they do not act in concert and sometimes they
enact as lone wolves.
That gets me to the next point. As I understand it, Senator
Feingold's primary argument is that we should have this kind of
surveillance against agents of foreign powers, but that we should not
have it against lone wolves. Of course, the Feinstein amendment
provides a presumption that the lone wolf is an agent of a foreign
power.
That is not our point. We are not trying to prove the lone wolf is an
agent of a foreign power. I do not want to have a presumption in there
that presumes something that we are not even alleging. Sometimes our
U.S. Government is going to say, we do not have any reason to believe
this person is connected to an international terrorist organization or
a foreign power, country. We are not alleging that. We are alleging
that he is a person engaged in or about to engage in a terrorist
action, we have probable cause to believe that. That standard remains
the same and, therefore, we want to, what, prosecute him? No, get a
warrant to see what else he is doing.
So this amendment does not match up with what we are trying to do. We
are not trying to prove that they are agents of a foreign power. We are
providing the court with evidence that a non-U.S. person is engaging in
or about to engage in activities involving terrorism against the United
States and, therefore, the court is warranted in allowing us to
investigate it further. We do not want the presumption because in many
cases that is not what we are trying to prove.
The important point is a point I would like to make in response to
Senator Feingold and that is that there still has to be international
terrorism involved. It is not as if we are going after people because
we do not like their nationality or something of that sort. We are
dealing with a very sophisticated court that is not a kangaroo court;
it is the FISA court, and they have not turned down warrants because
the Justice Department has been very careful to make sure they have all
the evidence that is needed.
I will tell my great friend Senator Feinstein and just make a
footnote--I said it this morning but I will say it again--I cannot
remember a time that she and I disagreed on a matter involving
intelligence or law enforcement activities. It just does not happen
except this one time. I guess the exception proves the rule. There is
nobody in the Senate with whom I have enjoyed working more on these
matters. Witness the fact that Senator Feinstein and I have been the
chairman and ranking member alternately of the Terrorism, Technology,
and Homeland Security Subcommittee of the Judiciary Committee ever
since I came to the Senate. It has been a wonderful relationship, and
there is nobody in this body that I admire more.
So I want to answer this question very specifically, because if I
understood one of her arguments, it was that we have changed the
probable cause standard, and we have absolutely not done that. In fact,
in response, I think to a suggestion of one of our Democratic
colleagues, we had the language exactly tracked in the statute, and I
will read it precisely. This is in 50 United States Code, section 1801,
the definitions section under foreign power. I will not read the whole
thing, but No. 4 is ``a group engaged in international terrorism or
activities in preparation therefor.''
Then, under ``agent of foreign power''--and, remember, this is where
we have the definition of a non-U.S. person. We had the third category.
We tracked the language precisely--``engages in international terrorism
or activities in preparation therefor.'' It is the exact same language.
So the probable cause standard remains identical. In very simple
terms, this is what the U.S. attorney would have to say: Judge, here is
my affidavit and what it says is that Joe Blow is a non-U.S. citizen.
Here is the documentation for that, and here are the activities that we
have probable cause to believe he is engaging in.
So it is the probable cause standard. What would satisfy that test?
Let me be very precise in the order that I present this.
Under this section of definitions--and our bill is the same as S.
2568, which the Justice Department was referring to when it made this
comment, someone who 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 their
perpetrators operate or seek asylum.
This is quoting from 50 United States Code, section 1801(c)(3):
As a result, a FISA warrant 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.
That is quoting from a court case that interpreted the provision.
Therefore, according to the Justice Department, the same interests
and considerations that support the constitutionality of FISA as it now
stands would provide the constitutional justification for S. 2568,
which is the predecessor to S. 113, which is the bill before us.
So the definition is the same, the probable cause standard is the
same, and the nexus to international terrorism is the same. None of
that changes. The only thing that changes is that we add non-U.S.
person so you can get to the lone wolf and do not have to either assert
that the person is involved with an international terrorist
organization or foreign power or presume that the individual is,
because that person may well not be.
Finally, Senator Feinstein made the point that under proper
circumstances, S. 113 would allow the search of a solo international
terrorist and the answer is, yes, that is exactly what it would allow.
And especially with today's
[[Page S5920]]
weapons, which allow even a solo terrorist to be able to cause enormous
destruction, the FBI should be able to monitor such a terrorist if it
can convince the court that probable cause exists that would otherwise
be the standard in any kind of FISA warrant request.
I think those are the answers to the allegations that have been made
in support of the Feinstein amendment. I think it gets right down to
what Senator Feingold said, which is that there is simply disagreement
about whether the lone wolf should be the subject of this
statute. Obviously, if the amendment were to be adopted, we have our
purpose, which is to add the third category.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from
Arizona for his personal comments. He knows I have thoroughly enjoyed
working with him. It is unusual--as a matter of fact, I cannot remember
in all these years when we have ever been on opposite sides of one of
these questions.
Let me state to the Senator my great fear. We all forget beneath the
surface this Government has tremendous power. When that power is
exercised against a person in this country, alone as a visitor, has no
rights, it is enormous what can happen. What my deep concern is that
overzealous prosecutors will use this where they should use title III
and get a criminal warrant instead of a FISA warrant because of the
removal of the agent of the foreign power. We keep the connection with
the basics of the FISA statute which is surveillance related to an
agent of the foreign power. We keep that. That is the justification for
FISA. We give the judge the ability to make that as a presumption--
ergo, giving the judge some discretion not to make it, and therefore
the individual seeks the warrant--an FBI agent or whoever it is--goes
to title III and gets a criminal warrant.
Once you get a FISA warrant, the benefits from the law enforcement
side of the FISA warrant are much greater than the title III warrant.
It is a small protection. I don't believe, in my heart of hearts--and
if this were to pass and the Senator from Arizona showed me that it did
in any way prevent the FISA court from exercising its discretion just
as you want it to, I will change it. I would be the first one to come
back.
It prevents this misuse of a prosecutor who should be getting a title
III warrant, who will come to the FISA court instead because the FISA
court will be a rubberstamp, and because myself, a visiting Indian,
Pakistani, Muslim, Frenchman, Italian, anybody in Los Angeles who
happens to have in their pocket a one-way ticket and maybe a pocket
knife--a box cutter may be out of date--and somebody has a suspicion,
they do not have to prove anything. And they can surveil me, they can
wiretap me, they can exert all of the surveillance powers that are used
under FISA. They do not know whether I am going to commit a criminal
act and they have no evidence of anything else. That is what title III
is for. Title III has a little heavier cause burden, but as the Senator
said, there is probable cause in both.
But the benefits of the FISA warrant are superior to the benefits of
the title III warrant in their duration. So you can do all this to
somebody for 90 days instead of 30 days and you do not have to come
back and renew the warrant once every year. That is my concern.
As I read your legislation, there is no discretion. That is the
problem I have with it. This is such a slight change, it is kind of a
little tweak that a judge can say, hey, now, let's wait and see what
you are doing here.
If the Senator would like to respond, I am happy to yield.
Mr. KYL. If I could, the Senator from California has been talking
about discretion, and I guess I begin by asking a question.
Does the Senator intend the presumption language would apply both to
the definition of the individual as an agent of a foreign power and
relative to the activities in which the individual is allegedly
engaging?
Mrs. FEINSTEIN. The presumption would be that the target or the
individual would be an agent of a foreign power. Otherwise, you could
have this against the Unabomber, Oklahoma City. Of course, they are
American citizens, so I understand that does not apply, but that same
kind of situation.
Mr. KYL. There are two things the court will have to determine.
First, that this is a warrant that should be issued, that there is
probable cause the underlying crime is being committed or activities
engaged in for the preparation of a crime. And second, it lies against
a particular kind of person we are talking about. In regular title III
court you do not have the second requirement, but in FISA court you
have to prove the person is either an agent of a foreign power or
foreign intelligence organization, and we are adding this third
criteria.
So the court has to make a 100 percent determination in both of those
matters. If the court cannot find any evidence in the affidavit that
the individual is not a United States citizen, for example, the court
would have no discretion and have to deny the warrant. But if the court
found part of the warrant was satisfied, this person is clearly a non-
United States citizen, then, number two is satisfied; go back to number
one, which is the question, Do we have probable cause to believe the
person is engaging in the kind of activities that the statute discusses
here.
That is not necessarily a matter of discretion so much as it is a
matter of a court weighing the affidavit presentation and determining
whether it is sufficient to meet the probable cause standard.
Mrs. FEINSTEIN. What I don't understand is why you do not want to
give the judge that small bit of discretion with a presumption. The
judge can presume it. We both know the history and the history is 100
percent if you include the appeal of FISA judges in granting warrants.
So there will not be a problem there.
I am concerned about the overreach. I am concerned about the misuse.
And the only way we could figure to counter that was to keep the agent
a foreign power, provide this presumption that a judge could use in
that one case.
Senator, neither you nor Senator Feingold nor I would ever know if
there was an overreach. That is what makes this far more dangerous, the
fact that it is so secret.
Mr. KYL. If I could respond to the last point.
The matter about which the court has some degree of discretion is in
the way it weighs the affidavit presentation relative to the underlying
predicate for the warrant, the activities that are being engaged in,
the purchase of the ticket, the presence of box cutters, all that
information. The court weighs all that. It is presented in the
affidavit, and the court makes a decision. It is enough or it is not
enough. To some extent, you can say that is discretion. It is really
applying the evidence to the probable cause test, weighing it and
determining whether the evidence meets the case. In any event, that is
where the court has some leeway to decide.
Where the court does not have any leeway is to something that is
either a fact or it is not. That is, Does this person qualify or not?
That is to say, is the person an appropriate subject for the warrant or
not?
If you were asserting, for example, that the individual was a member
of the Baader-Meinhoff gang, there would have to be evidence in the
affidavit that is clear enough for the court to reach that conclusion
or the court would say, sorry, this person does not qualify for a FISA
warrant. I cannot find enough evidence in here that he is a member of
the Baader-Meinhoff gang or a spy for the Soviet Union.
But with respect to whether this person is a non-United States
person, that is something that will either be fairly true or not. It is
either going to be true or not. The court is either going to be faced
with a situation where the evidence is overwhelmingly clear in the
affidavit and the United States attorney says it is very clear this
person is not a United States citizen, here is the evidence we have,
and the court will say, I agree. Or the court will say, all you have
done is assert that the person is a non-United States citizen. I don't
have any basis to know that or not. Where is your evidence to know that
he is a non-U.S. citizen? So I am not going to grant the warrant. But
that is the basis on which the court is going to make that judgment.
[[Page S5921]]
The court is not going to say there is a provision here that says I
can presume that this individual is an agent of a foreign power and
therefore I can have some leeway here to decide whether or not the
warrant lies against this individual. The Government is either going to
assert that the person is an agent of a foreign power or not. If the
Government is saying no, we don't think this person is working for some
foreign power, we think he is working on his own or at least we don't
have any evidence to suggest he is anything other than an international
terrorist traveling all around the world training and picking up
different things and so on, but he is a dangerous guy and here is the
reason we believe he is dangerous, a presumption at this point doesn't
get you anywhere.
The court has no direction to go in. If you say there is a
presumption that he is an agent of a foreign power and the Government
is not trying to prove he is acting for a foreign power, what has this
definition gained us? There are situations in which the Government
simply isn't going to allege that the person is an agent of a foreign
power; it is only going to allege that he is a lone wolf, but look at
all the bad things he has done or is doing. If they are sufficient to
grant a warrant, if there is probable cause there, the court can do it.
If the court says it is not quite sufficient yet, get some more
information, then he will deny the warrant.
The PRESIDING OFFICER. Who yields time?
Mrs. FEINSTEIN. I will yield time, Mr. President, and I will be very
happy to have Senator Feingold in this.
I think this is really the kind of discussion that we should be
having. I welcome the free flow.
If I knew a better way of solving the problem Senator Kyl mentioned,
I would do it. But my view and what Intelligence staff and others have
said to me is that the way it is worded creates a rubberstamp out of a
FISA judge, once you take out that agent of a foreign power connection.
I guess the reason they believe that is that it puts them into the
other side, the title III side.
If I could think of another way, I would. But it is one added
guarantee against an overreach. You and I have both known zealous
prosecutors. You and I have both known people who would misuse this.
The question comes, How do we prevent misuse from happening?
I am happy to yield to Senator Feingold.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I again thank the Senator from
California for yielding time and for her leadership. I thank the
Senator from Arizona. He is a person of great integrity, and the way he
concedes if he didn't say something exactly perfectly this morning is
an example of exactly the kind of relationship I have with him on these
debates. They are good debates. I appreciate that.
It is also true the Senator from California and the Senator from
Arizona almost always agree on these kinds of issues. They are one of
the most formidable combinations here in the Senate, in a bipartisan
combination. I take great pride in the bipartisan work I have had a
chance to do with people such as the other Senator from Arizona and the
Senators from Maine.
So I take my hat off to them for having done that. I have often been
on the other side of their view, which is not easy because they are
well prepared and they are very dedicated and they like to get things
done.
I guess that is why I think this is kind of a significant moment,
when Senator Feinstein and I actually agree on a point, when the two of
you so frequently agree. I think it is a sign that there is something
that needs to be fixed in this bill.
It is modest, but it is very important. I remind the Senator from
Arizona that I think I essentially said this: I voted for this in
committee in the hope it would be fixed on the floor.
My goal here is not to kill this bill. I do know how to vote against
bills I don't like. My goal is to fix it because I think there is a
problem with this issue. That is where we are with this amendment. This
is an attempt to fix this bill on a very important point without, in my
view, doing any serious harm at all to the goal of the Senator from
Arizona and the goal of the Senator from New York.
The way I understand this operates is that in these cases the FISA
court is going to grant this warrant upfront, essentially every time in
the first request, because there will be the evidence or the
presumption that there is a problem.
Where this, the Feinstein amendment, has a real impact is where they
come back later and they have to come back for a renewal. If after a
couple of years there is just no evidence at all or virtually no sign
at all that the original belief about what this guy was about to do
isn't bearing any fruit at all, in that case, and only in that case,
should this, in terms of our laws and our tradition, be returned to the
regular criminal court--only in that circumstance.
In other words, yes, the Government was trying to protect the
American people, as they should. They had a person here who they
believed might have a connection to a foreign power or be connected to
a terrorist organization. But it turns out after some period of time
that it just didn't happen to be one of those cases where that was
true.
It is still a person who intended, perhaps, to do something very
wrong. It is still a person who should be prosecuted. But it is a
person who deserves the protections of the laws of the United States--
because I am sure the Senator from Arizona agrees with me, barring this
unusual kind of circumstance that is the basis for the FISA law,
everyone who commits a crime on our soil, whether an American citizen
or not, is entitled to the protections of our Constitution and the Bill
of Rights in a criminal proceeding.
The FISA law is only a narrow exception to that. So let's be very
clear on the record. I do want to get at these lone wolves who may have
some connection to international actors, such as foreign powers, or to
terrorist organizations. As the Senator from California pointed out, if
it is simply a person committing a bad act on our soil, a person who is
not an American citizen, that is what our criminal courts are for. That
is what title III is for. That is the foundation of our system.
This is really an incredibly narrow exception, a backstop, a
safeguard to make sure that the good intentions of what this bill is
all about don't go too far. That is what the Senator from California
said, so that there is not overreaching.
I have just one other point about what the Senator from New York
said. He seemed to be setting up a scenario where there might be a
conflict between the FISA judges, almost as if there were different
circuits like in the regular courts. That is not the way the FISA
courts are set up. There are different FISA judges, but together they
constitute the appeals courts. There would not be different areas of
the country that would have different laws of this kind of thing that
would present any kind of problem in terms of a conflict in the
circuits. I don't think this argument holds up.
Let me return to the point. The Senator from California has been so
careful in making sure this is just a safeguard down the line, when
somebody has been identified as a potential lone wolf and it does not
really pan out, that there is some discretion rather than a permanent
warrant into perpetuity for eavesdropping on somebody who certainly
maybe needs to be evesdropped upon, but for whom that authority should
be obtained through the normal criminal procedure, not on the basis of
a law that was crafted under the assumption that this is a foreign
threat to our Nation.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Arizona.
Mr. KYL. Mr. President, first of all, I thank Senator Feingold for
the kind words he had for me and my colleague from Arizona, Senator
McCain. I just spoke with Senator Feinstein.
I don't think either of us has a whole lot more to say here. I think
Senator Rockefeller may wish to speak and there may be others.
I urge anyone who would like to speak to this amendment to come to
the floor and speak because otherwise I think we are getting close to
the time when we could vote.
I inquire of the Chair, how much time remains on both sides on this
amendment?
[[Page S5922]]
The PRESIDING OFFICER. The Senator from Arizona has 98 minutes
remaining. The Senator from California has 68 minutes remaining.
Mr. KYL. I think there is a little time left on the debate time as
well, but I am prepared to yield that back when we are done with this
amendment, as would Senator Schumer.
We could either note the absence of a quorum and wait a few minutes
for somebody else or I could yield the floor to someone?
Mrs. FEINSTEIN. Mr. President, I suggest the absence of a quorum. I
know Senator Rockefeller is on his way.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I thank the distinguished Presiding
Officer. I thank the Senator from California whose amendment to S. 113
I rise to support. I am a cosponsor of her amendment.
We live in a time in which we can never feel completely safe. There
are terrorists throughout the world and here at home who have sworn to
kill Americans. That is what they are trained to do. That is what they
want to do. That is what they plan to do. We fight a war knowing that
it may increase the terrorist threat against us. We buy duct tape and
plastic sheeting. We plan escape routes for our families. We make
decisions about whether to go to public events or ride a subway, or do
all kinds of things. Does it change our lives or not? We are not even
sure of that yet.
In times such as this, we in Congress have a special responsibility.
We must be vigilant in our lawmaking and our oversight to make certain
that the executive branch, our intelligence, and law enforcement
agencies have all the legitimate tools to do their jobs in an efficient
and effective way.
But our responsibility does not end there. It is easy to write laws
to remove obstacles to prevent the Government from obtaining
information. We have done that. Our challenge is to write laws that
strengthen our security without undermining privacy and liberty. This
is something our Nation has never faced before in the way which it is
now going to be facing for the next several years.
It is our responsibility to look very closely at every piece of
legislation related to fighting terrorism and ask: Do we need it? Does
it make us feel safer? Yes. But do we really need it? Does it
accomplish the goals we are seeking? And does it go too far?
I have cosponsored the Feinstein substitute amendment to S. 113
because I believe the language of the substitute is crafted carefully--
very carefully--to accomplish our goals in the fight against terrorism
without going too far.
Mr. President, I would like to explain why I believe that.
The Foreign Intelligence Surveillance Act of 1978 was designed to
regulate the collection of foreign intelligence inside the United
States using electronic wiretaps. Later, physical searches were added
to the law.
Before FISA, the Foreign Intelligence Surveillance Act, the executive
branch ran wiretaps for national security purposes without judicial
review, without approval of any sort. Such wiretaps were potentially
unconstitutional and, because of that, threatened the viability of
espionage prosecutions and raised serious questions regarding civil
liberties.
The Congress enacted FISA with the recognition that our national
security required the collection of foreign intelligence in the United
States through intrusive means under different circumstances and using
different standards than in the criminal warrant context, and the
courts have upheld the constitutionality of FISA.
The purpose of FISA is the collection of foreign intelligence. The
standard used to distinguish between FISA collection and wiretaps
related to criminal activity involves a determination that the target
is a ``foreign power'' or linked to a ``foreign power.'' In the case of
terrorists, the Government must show the target is an ``agent of a
foreign power,'' a terrorist group operating overseas.
Both S. 113 and the Feinstein substitute address and solve the
following problem: What if you have a non-U.S. person in the United
States who is engaging in or preparing to engage in international
terrorist activities, but the Government does not have enough evidence
to link him to an overseas group?
Both S. 113 and the Feinstein substitute eliminate the requirement
that the Government produce to the FISA court evidence showing a direct
link between the target and a foreign terrorist group.
So why is the Feinstein substitute better?
Under S. 113, the Kyl-Schumer bill, a key principle of FISA is
eliminated. Even if the Government has actual evidence that the target
is not connected to a foreign terrorist group, under Kyl-Schumer, the
Government can still get a FISA wiretap order. This simply goes too
far, and it is not necessary, in the judgment of this Senator.
If we know for certain a person really has no foreign connections, if
he or she is a true ``lone wolf''--a foreign ``Unabomber,'' for
example--then it is a straightforward criminal investigation. There is
no foreign intelligence to be gotten at all, and that person is not a
valid target under FISA.
The Feinstein substitute gets the Government everything it wants
without changing FISA in a way that damages its basic premise; to wit,
FISA is for the collection of foreign intelligence and should not be
used when the only objective at hand is the collection of criminal
evidence.
Mr. President, I commend the carefully crafted solution offered by
the Senator from California to a very difficult problem. As the vice
chairman of the Intelligence Committee, I am proud to cosponsor this
amendment, and I urge my colleagues to vote for it.
I thank the Presiding Officer and yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, first, I ask unanimous consent to have
printed in the Record a letter dated April 30, 2003, to Chairman Orrin
Hatch from the Department of Justice relative to this legislation, and
specifically an analysis of the amendment proposed by Senator Feinstein
on pages 5 and 6.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Department of Justice,
Office of Legislative Affairs,
Washington, DC, April 30, 2003.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: This is in response to your request for
the Administration's views on various proposed amendments to
S. 113, a bill that would amend the Foreign Intelligence
Surveillance Act of 1978 to permit electronic surveillance
and physical searches of so-called ``lone wolf''
international terrorists--i.e., non-United States persons who
engage in international terrorism or activities in
preparation therefor without any demonstrable affiliation
with an international terrorist group or other foreign power.
On March 5, 2003, the Administration sent a letter indicating
its support for S. 113 (copy attached). The Administration,
however, is greatly concerned that this important FISA
amendment would be subject to a sunset provision included in
the USA PATRIOT Act of 2001. The Administration opposes the
sunset language, and looks forward to working with Congress
to ensure that this FISA amendment and those other portions
of the USA PATRIOT Act subject to the sunset provision are
addressed at the appropriate time. For reasons set forth
below, we oppose the proposed amendments to S. 113. In
particular, the Administration is concerned that the proposed
amendments would weaken the FISA as an important instrument
in the arsenal of the United States Government in combating
terrorism and the espionage activities of foreign powers.
Authority of the FISC and FISCR. The first proposed
amendment to S. 113, entitled ``Sec. 2. Additional
Improvements to Foreign Intelligence Surveillance Act of
1978,'' would add a provision to 50 U.S.C. Sec. 1803 to grant
the Foreign Intelligence Surveillance Court (``FISC'')
authority to ``establish such rules and procedures, and take
such actions, as are reasonably necessary to administer their
responsibilities under this Act.'' The Administration opposes
this grant of authority to a court that has an extremely
limited statutory function of approving or disapproving
applications made by the Government of orders with respect to
electronic surveillance and search. Granting rulemaking
authority by statute to the FISC and the FISCR--courts that
operate in secret and that are of
[[Page S5923]]
very limited jurisdiction that is specified in detail in the
FISA--is inappropriate.
Reporting Requirements. A second group of related
amendments would require additional reporting concerning the
use of FISA. Each is objectionable for reasons discussed
below.
a. The first reporting amendment would require public
disclosure of the number of United States persons targeted
under various provisions of FISA. Under current law, the
Department publicly reports the annual aggregate number of
FISA searches and surveillances, but does not disclose
publicly how many of those searches and surveillances
involved United States persons. See 50 U.S.C. Sec. Sec. 1807,
1826. The proposal also would require public disclosure of
the number of times the Attorney General authorized the use
of FISA information in a criminal proceeding--a statistic
that currently is reported to the Intelligence Committees as
part of a longstanding, carefully constructed, and balanced
accommodation between the Executive and Legislative branches
and in accordance with the FISA itself. See 50 U.S.C.
Sec. 1808(a)(2)(A). Finally, the provision would require
disclosure of portions of FISA pleadings and orders that deal
with significant questions of law (not including discussion
of facts) ``in a manner consistent with the protection of the
national security of the United States.'' Each of these three
reporting requirements is addressed below.
We oppose a requirement to disclose publicly the number of
FISA targets that are United States persons. Congress has in
the past considered and rejected proposals to require
disclosure of this information to the general public rather
than to the Intelligence Committees. In 1984, the Senate
Select Committee on Intelligence was ``asked by the American
Civil Liberties Union to consider making public the number of
U.S. persons who have been FISA surveillance targets.'' S.
Rep. No. 98-660, 98th Cong., 2d Sess. 25 (1984). The
Committee rejected that proposal because ``the benefits of
such disclosure for public understanding of FISA's impact
would [not] outweigh the damage to FBI foreign
counterintelligence capabilities that can reasonably by
expected to result.'' Ibid. As the Committee explained,
``[a]ny specific or approximate figure would provide
significant information about the extent of the FBI's
knowledge of the existence of hostile foreign intelligence
agents in this country. As in other areas of intelligence
oversight, the Committee must attempt to strike a proper
balance between the need for public accountability and the
secrecy required for effective intelligence operations.''
Ibid. This analysis is at least as applicable to foreign
terrorist organizations today as for foreign intelligence
organizations and the Administration continues to support the
balance that was struck in 1978 and reaffirmed in 1984.
We also oppose a requirement to disclose publicly the
number of times the Attorney General has authorized the
disclosure of FISA information for law enforcement purposes.
This provision is problematic primarily because it is not
confined to cases in which FISA information is actually used
in a proceeding. Revealing the number of Attorney General
authorizations for such use--as opposed to the use itself--is
troubling because that information could involve
classified and non-public matters with ongoing operational
significance--e.g., an investigation that has not yet
resulted in a public indictment or trial, or in which no
indictment or trial ever will occur. Thus, these numbers
potentially could reveal information about the
Department's classified, operational efforts to protect
against the activities of foreign spies and terrorists.
Finally, we believe that the disclosure of FISA pleadings
and orders that deal with significant questions of law is
inherently inconsistent with ``the protection of the national
security of the United States.'' Virtually the entirety of
each application to the FISC discusses the facts, techniques,
or pleading of highly classified FISA operations. As we noted
in our letter of August 6, 2002, on predecessor legislation
in the 107th Congress, ``[a]n interpretation by the FISC of
the applicability of FISA to a technique or circumstance, no
matter how conceptually drawn, could provide our adversaries
with clues to relative safe harbors from the reach of FISA.''
A copy of our earlier letter is attached for your
convenience.
b. A separate but similar proposal, entitled ``Sec. 2.
Public Reporting Requirements Under the Foreign Intelligence
Surveillance Act of 1978'' and proposed by Senator Feingold,
also would impose public reporting obligations. Instead of
requiring the Department to report the number of FISA targets
who are United States persons, it would require reporting of
the number who are not United States persons, broken out by
the type of FISA activity involved--e.g., electronic
surveillance and physical search. This proposal also would
require the Department to identify individuals who ``acted
wholly alone.'' Like the proposal discussed above, this
proposal would require the Department to report the number of
times the Attorney General authorized the use of FISA
information in a criminal proceeding, and portions of FISA
pleadings and orders that deal with significant questions of
law ``in a manner consistent with the protection of the
national security of the United States.'' The objections set
forth above apply equally to this proposal.
c. Finally, a very recent reporting proposal, also proposed
by Senator Feingold, would require an annual report on FISA
to the Intelligence and Judiciary Committees. The report
would include the classified statistical information
described above--including numbers of non-U.S. persons
targeted under each major provision of FISA--and would also
require submission of portions of FISA pleadings and court
orders. For reasons stated above and in our letter of August
6, 2002, we continue to oppose any requirement to submit
portions of FISA pleadings and orders. More broadly, we
strongly oppose the amendment because it threatens to upset
the delicate balance between the Executive and Legislative
Branches of government in the area of intelligence and
intelligence-related oversight and reporting.
The FISA statute prescribes the types of information that
must routinely be provided to the Judiciary Committees. Under
current law, the Department of Justice provides to the
Judiciary Committees and makes public ``the total number of
applications made for orders and extensions of orders''
approving electronic surveillance and physical searches
under FISA, and ``the total number of such orders and
extensions either granted, modified, or denied.'' 50
U.S.C. Sec. 1807; see 50 U.S.C. Sec. 1826; 50 U.S.C.
Sec. 1846 (similar reporting requirement for numbers of
pen-trap applications and orders); 50 U.S.C. Sec. 1862
(similar reporting requirement for numbers of applications
and orders for tangible things). The Department has, of
course, consistently met these statutory requirements.
The FISA reporting obligations concerning the Intelligence
Committees are much broader. Under 50 U.S.C. Sec. 1808, the
Attorney General must ``fully inform'' the House and Senate
Intelligence Committees ``concerning all electronic
surveillance'' conducted under FISA, and under 50 U.S.C.
Sec. 1826 he must do so ``concerning all physical searches''
conducted under the statute. In keeping with this standard,
the Department submits extremely lengthy and detailed semi-
annual reports to the Intelligence Committees, including
specific information on ``each criminal case in which
information acquired [from a FISA electronic surveillance]
has been authorized for use at trial,'' 50 U.S.C.
Sec. 1808(a)(2)(B), and ``the number of physical searches
which involved searches of the residences, offices, or
personal property of United States persons,'' 50 U.S.C.
Sec. 1826(3). The reports also review significant legal and
operational developments that have occurred during the
previous six months. These classified reports are
painstakingly prepared in the Justice Department and are
obviously, from the questions and comments they generate,
closely scrutinized by the Intelligence Committees. See
generally S. Res. No. 400, 94th Cong., 2d Sess. (1976); H.R.
Res. No. 658, 95th Cong., 1st Sess. (1977).
The ``fully inform'' standard that governs Intelligence
Committee oversight of FISA is the same standard that governs
Congressional oversight of the Intelligence Community in
general. See S. Rep. No. 95-604, 95th Cong., 1st Sess. 60-61
(1977); S. Rep. No. 95-701, 95th Cong., 2d Sess. 67-68
(1978); see also H.R. Rep. No. 95-1283, Pt. 1, 95th Cong., 2d
Sess. 96 (1978). The requirement to ``fully inform'' the
Intelligence Committees, rather than Congress as a whole, is
consistent with the long-standing legal framework and
historical practice for Intelligence Community reporting to,
and oversight by, Congress on matters relating to
intelligence and intelligence-related activities of the
United States government. Consistent with the President's
constitutional authority to protect national security
information, Congress and the President established reporting
and oversight procedures that balance Congress' oversight
responsibility with the need to restrict access to sensitive
information regarding intelligence sources and methods. The
delicate compromise--embodied in FISA and more generally in
Title V of the National Security Act of 1947, 50 U.S.C.
Sec. Sec. 413-415, and based on the preexisting practice of
providing only the intelligence committees with sensitive
information regarding intelligence operations--established
procedures for keeping Congress ``fully and currently
informed'' of intelligence and intelligence-related
activities. Under these procedures, the Intelligence
Community provides general, substantive, and, often,
classified finished intelligence information to several
committees of Congress, but generally provides classified
operational information only to the Intelligence committees.
Even with regard to the Intelligence Committees, the Director
of Central Intelligence and the heads of other intelligence
agencies are, under Title V, to provide such information only
``to the extent consistent with due regard for the protection
from unauthorized disclosure of classified information
relating to sensitive intelligence sources and methods or
other exceptionally sensitive matters. 50 U.S.C.
Sec. Sec. 413a(a), 413b(b).
Senator Feingold's reporting proposals would, in sum,
distort and damage the effective, longstanding accommodation
between the President and Congress, and between the
Intelligence and Judiciary Committees, over the handling of
classified operational intelligence information within
Congress. It is noteworthy that the current leadership of
both the House and Senate Judiciary Committees have expressed
their approval of the existing accommodation. In a press
release dated October 17, 2002, the Chairman of the House
Judiciary Committee stated that the existing accommodation
provides for ``reasonable, limited access, subject to
appropriate security procedures, to FISA information through
[the House Intelligence Committee].'' In addition, your
letter of February 27, 2003, to Senators Leahy, Grassley
[[Page S5924]]
and Specter on FISA matters stated that the existing
congressional oversight standards relating to FISA reflect a
``careful balance between the need for meaningful oversight
and the need for secrecy and information security in the
government's efforts to protect this country from foreign
enemies.'' Moreover, you stated that your years of service on
both the Senate Judiciary Committee and the Senate Select
Committee on Intelligence have led you to conclude that the
existing accommodation allows Congress to exercise
``appropriate, vigorous, robust and detailed oversight of the
FISA process.''
Reporting on National Security Letters. The next proposed
amendment to S. 113, entitled ``Sec. 3. Improvement of
Congressional Oversight of Surveillance Activities,'' would
require additional reporting specifically addressing the use
of 18 U.S.C. Sec. 2709(e) in the context of requests made to
schools and public libraries. We are concerned that a
reporting requirement at this level of formality and
specificity would unduly increase the risk of public exposure
of the information, thereby jeopardizing our
counterintelligence and counterterrorism efforts.
Presumption. Another proposal is presumably intended as a
substitute for S. 113 and would create a ``presumption that
certain non-United States persons engaging in international
terrorism are agents of foreign powers for purposes of the
Foreign Intelligence Surveillance Act of 1978.'' Under the
proposal, the FISC would be instructed that it ``may
presume'' that a non-United States person engaged in
international terrorism or activities in preparation therefor
``is an agent of a foreign power'' as defined in FISA.
By providing that the FISC ``may presume'' the target is
acting for or on behalf of an international terrorist group,
the proposal would confer discretion on the FISC without any
standards to guide the exercise of that discretion.
Accordingly, the effect of the proposal is uncertain. It is
conceivable that the FISC (or a reviewing court) would
indulge the presumption only where the Government had
established probable cause or something near to probable
cause that the target in fact was working for or on behalf of
a terrorist group. In that event, the proposal would be
useless or nearly useless. The unpredictability inherent in
the proposal also would significantly reduce its value even
if, in the end, the FISC and later courts interpreted it more
expansively in any particular case.
Nor do we believe that there is a reason to use a
presumption--even a mandatory presumption--instead of the
straightforward approach of S. 113 itself. In particular, we
see no constitutional benefit likely to arise from the use of
a presumption. Our letter of July 31, 2002 (copy attached),
which explained the constitutionality of an earlier version
of S. 113 (which would have made a lone-wolf terrorist a
``foreign power'' rather than an ``agent of a foreign
power'') applies equally to the current version of S. 113. We
do not believe that the use of a presumption significantly
changes the constitutional analysis, nor adds any significant
protection to civil liberties, except to the extent that the
presumption is read narrowly to mirror current law, in which
case the presumption is of little or no value for reasons
explained in the previous paragraph.
Discovery. The next proposal would change the standards
governing discovery of FISA materials in suppression
litigation arising from the use of FISA information in a
legal proceeding such as a criminal trial. We strongly object
to this proposal. The proposal could harm the national
security by inhibiting cooperation between intelligence and
law enforcement efforts to stop foreign spies and terrorists.
It could deter the Government from using information obtained
or derived from FISA in any proceeding--civil, criminal,
immigration, administrative, or even internal Executive
branch proceedings. These overwhelming and potentially
catastrophic costs would be incurred for very little benefit,
because current law amply protects individual rights.
It may be helpful to begin by reviewing current law in this
area and the ways in which it protects individual rights.
Currently, FISA requires high-level approval from the
Executive and Judicial branches before the Government
conducts a search or surveillance. Each FISA application must
contain a certification signed individually and personally by
the Director of the FBI (or another high-ranking official
accountable to the President) and must be individually and
personally approved by the Attorney General or the Deputy
Attorney General. 50 U.S.C. Sec. Sec. 1804(a), 1823(a),
1801(g). Under the statute, the Government must apply to a
judge of the FISC for approval before conducting electronic
surveillance or physical searches of foreign powers or agents
of foreign powers inside the United States. 50 U.S.C.
Sec. Sec. 1804-1805 (electronic surveillance), 1823-1824
(physical searches). Judges of the FISC are selected by the
Chief Justice from among the judges on United States District
Courts, who as United States district judges are protected
by Article III of the Constitution. 50 U.S.C.
Sec. Sec. 1803(a), 1822(c).
A second round of judicial review occurs before the
Government may use FISA information in any proceeding. The
Government must provide notice to the FISA target or other
person whose communications were intercepted or whose
property was searched before using any information obtained
or derived from the surveillance or search in any proceeding
against that person ``before any court, department, officer,
agency, regulatory body, or other authority of the United
States.'' 50 U.S.C. Sec. Sec. 1806(c), 1825(d). After
receiving notice, the person may file a motion to suppress in
a United States District Court and may seek discovery of the
FISA applications filed by the Government and the
authorization orders issued by the FISC. 50 U.S.C.
Sec. Sec. 1806(e)-(f), 1825(f)(g). Discovery may be granted
freely unless the Attorney General personally files an
affidavit under oath asserting that discovery would harm the
national security. If the Attorney General files such an
affidavit, as he has in every case litigated to date, the
district judge must review the FISA application and order in
camera, without granting discovery, unless ``disclosure is
necessary to make an accurate determination of the legality''
of the search or surveillance. 50 U.S.C. Sec. Sec. 1806(f),
1825(g). If discovery is granted, the court must impose
``appropriate security procedures and protective orders.''
Ibid. No court has ever ordered disclosure.
Congress established this standard for discovery after
extensive and careful deliberation in 1978. See H.R. Rep. No.
1283, Part I, 95th Cong., 2d Sess. 90 (1978) (hereinafter
House Report); S. Rep. No. 604, 95th Cong., 1st Sess. 57-59
(1977) (hereinafter Senate Judiciary Report); S. Rep. No.
701, 95th Cong., 2d Sess. 62-65 (1978) (hereinafter Senate
Intelligence Report). As the 1978 conference report on FISA
explains, ``an in camera and ex parte proceeding is
appropriate for determining the lawfulness of electronic
surveillance in both criminal and civil cases . . . [and] the
standard for disclosure . . . adequately protects the rights
of the aggrieved person.'' H.R. Rep. No. 1720, 95th Cong., 2d
Sess. 32 (1978) (hereinafter Conference Report). As the
Senate Judiciary Committee explained in 1978: ``The Committee
views the procedures set forth in this subsection as striking
a reasonable balance between an entirely in camera proceeding
which might adversely affect the defendants's ability to
defend himself, and mandatory disclosure, which might
occasionally result in the wholesale revelation of sensitive
foreign intelligence information.'' Senate Judiciary Report
at 58.
The proposal would replace FISA's current standard with a
new one under which discovery is required unless it ``would
not assist in determining any legal or factual issue'' in the
litigation. The ``would not assist'' standard is
inappropriate for use in FISA, in particular, because it is
lower than the standard for disclosure of informants' names
in ordinary criminal cases. That standard at least requires a
balancing of the public interest in confidentiality against
the individual defendant's interest in disclosure. As the
Supreme Court explained in McCray v. Illinois, 386 U.S. 300,
311 (1967), extending its earlier decision in Roviaro v.
United States, 353 U.S. 53, 60-61 (1957), ``this Court was
unwilling to impose any absolute rule requiring disclosure of
an informer's identity even in formulating evidentiary rules
for federal criminal trials [in Roviaro]. Much less has the
Court ever approached the formulation of a federal
evidentiary rule of compulsory disclosure where the issue
is the preliminary one of probable cause.'' Indeed, the
``would not assist'' standard is lower even than the
standards that govem various civil privileges, all of
which require some kind of balancing of the interests in
disclosure against the interests in confidentiality. See,
e.g., In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir.
1997). In effect, the ``would not assist''' standard is
the appropriate standard for discovery of unclassified and
non-privileged information, because no discovery of any
kind is justified unless it would assist the litigation.
The ``would not assist'' standard could have very dangerous
consequences for the national security. At the outset, we are
concerned that the standard could lead to discovery being
granted in nearly every case, because it is extremely hard to
prove the negative fact that disclosure ``would not assist''
in any way. Such routine disclosure could be catastrophic:
FISC applications contain some of the Government's most
sensitive national security information, including
information concerning human intelligence sources,
sophisticated technical collection methods, and the details
of ongoing investigations. Given the enormous sensitivity of
that information and the details of ongoing investigations.
Given the enormous sensitivity of that information, when the
Attorney General personally files an affidavit under oath
asserting that disclosure would harm the national security,
ordering disclosure unless it ``would not assist'' in any way
is inappropriate. In view of the protections in FISC and the
requirement of an affidavit filed personally by the Attorney
General, the ``necessary'' standard of current law should be
retained.
Indeed, precisely because it may lead to discovery in
virtually every case, the proposal would create an incentive
for the Government to withhold sensitive information from its
FISC applications. Under the ``would not assist'' standard,
the Government might have to choose between excluding
sensitive information from an application and risking a
denial of search and surveillance authority from the FISC, or
including the sensitive information and risking public
disclosure of that information. Thus, the proposal could
fundamentally alter the relationship between the Government
and the FISC and could eviscerate the significance of the
FISC's careful information security procedures, which are
designed to give the Government confidence that full
disclosure to the FISC will not result in a compromise of
sensitive information.
[[Page S5925]]
Since the Government can never completely sanitize a FISC
application, the ``would not assist'' standard would also
create strong incentives to avoid suppression litigation and
the expanded risk of discovery. That means the Government
would lean away from prosecution of a FISC target, even where
that was the best way to protect the country. It would
thereby reduce the Government's ability to keep the country
safe, distorting the vital tactical judgments that must be
made. Indeed, the proposal would inhibit more than just
prosecutions. In keeping with the scope of FISC's suppression
remedy, the proposal would limit the use of FISC information
in any proceeding, including immigration proceedings, or even
in intemal adjudications of security clearances under
Executive Order 12968. Here again the Government would face a
difficult choice between using FISC information to protect
national security and risking disclosure of the information
as the cost of doing so.
We appreciate your continuing leadership in ensuring that
the Department of Justice and other Federal agencies have the
authority they need to combat terrorism effectively. Please
do not hesitate to contact me if I can be of further
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,
Jamie E. Brown,
Acting Assistant Attorney General.
Mr. HATCH. Mr. President, I rise in opposition to Senator Feinstein's
amendment. While I appreciate the efforts by Senator Feinstein to draft
a fix to the lone wolf terrorist problem under the Foreign Intelligence
Surveillance Act of 1978, referred to as ``FISA'', the amendment simply
will not do the job and will continue to expose our country to great
national security risks. I will not and cannot accept such risks.
Let me be more specific as to my concerns. First, as drafted, the
amendment would create only a permissive presumption to authorize a
court to approve a Foreign Intelligence Surveillance Act, ``FISA'',
application when presented with a lone wolf situation. As drafted, the
proposal would provide only that the court ``may'' find the existence
of a ``presumption'' that a non-U.S. person engaged in sabotage or
international terrorism is an agent of a foreign power under FISA.
A permissive presumption creates a significant risk that the FISA
court may not be authorized--or may feel constrained to exercise its
discretion--to approve a FISA application when presented with a lone
wolf terrorist who would otherwise be covered by the Kyl-Schumer-Biden-
DeWine approach.
Second, the amendment does not clearly delineate how a permissive
presumption would be applied by the FISA court. Assuming that the FISA
court exercises its discretion and makes a finding that the presumption
applies, the FISA court would then have to consider additional evidence
in order to grant the application.
The amendment does not specify beyond the permissive presumption what
specific evidence or what other findings would have to be made in order
for the FISA court to approve the application.
In sum, by injecting a significant level of uncertainty into the FISA
process, the amendment simply creates or even exacerbates the problem
which it is intended to fix. We simply cannot take such a risk given
the potential devastating consequences posed by the lone wolf
terrorist.
I would note here that in a letter dated April 30, 2003, the
administration opposed this proposal, citing the fact that the effect
of the proposal was unclear and that the proposal did not provide any
standards to the FISA court to guide the exercise or its discretion.
In contrast, the Kyl-Schumer-Biden-DeWine proposal creates clear
definitions and would minimize uncertainty in an area where ambiguity
could have devastating consequences--that is, where we are in danger of
a terrorist attack by a lone wolf.
For these reasons, I oppose the Feinstein amendment and urge my
colleagues to vote against the Feinstein amendment.
I yield the floor.
Mr. KYL. Mr. President, the proponents of the bill urge our
colleagues to vote against the Feinstein amendment. And from our
perspective, I think we are ready to have that vote.
I ask Senator Feinstein if she is ready, as well?
Mrs. FEINSTEIN. Through the Chair, I think we can yield back the
remainder of our time, I say to the Senator, and hold the vote, if
everybody so desires.
Mr. KYL. Mr. President, I yield back the remainder of my time on both
the amendment and on the bill itself.
The PRESIDING OFFICER. All time has been yielded back.
The question is on agreeing to amendment No. 537.
Mr. REID. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Alaska, (Ms.
Murkowski) is necessarily absent.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr.
Kennedy), the Senator from Massachusetts (Mr. Kerry) and the Senator
from Connecticut (Mr. Lieberman) are necessarily absent.
I further announce that, if present and voting, the Senator from
Delaware (Mr. Biden) would vote ``no.''
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``aye.''
The result was announced--yeas 35, nays 59, as follows:
[Rollcall Vote No. 145 Leg.]
YEAS--35
Akaka
Baucus
Bayh
Bingaman
Boxer
Byrd
Cantwell
Clinton
Corzine
Daschle
Dayton
Dodd
Durbin
Edwards
Feingold
Feinstein
Harkin
Hollings
Jeffords
Johnson
Lautenberg
Leahy
Levin
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Rockefeller
Sarbanes
Stabenow
Sununu
Wyden
NAYS--59
Alexander
Allard
Allen
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Carper
Chafee
Chambliss
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Dorgan
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Kohl
Kyl
Landrieu
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Nickles
Roberts
Santorum
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Talent
Thomas
Voinovich
Warner
NOT VOTING--6
Biden
Graham (FL)
Kennedy
Kerry
Lieberman
Murkowski
The amendment (No. 537) was rejected.
Mr. BIDEN. Mr. President, I am pleased to support final passage of S.
113, a bill to amend the Foreign Intelligence Surveillance Act, FISA,
to provide needed tools to detect and combat terrorists bent on
attacking this Nation and killing our citizens. First, let me commend
my colleagues, Senators Kyl and Schumer, for their relentless efforts
in bringing this important issue to the floor of the U.S. Senate. Since
the tragic events of September 11, all of us have tried to turn a
critical eye toward our laws and the workings of government to discern
how we might avert such a dreadful attack in the future. That attempt
to fix what may be wrong with our existing system of intelligence-
gathering and law enforcement is perhaps the greatest tribute we can
offer to the victims of that fateful day and their families.
This bill, as amended, is a good example of how we can make basic,
common-sense changes to existing law that will have a tremendous impact
on our fight against terrorism. I was proud to be one of the authors of
FISA in 1978. We worked long and hard to strike the right balance
between protecting civil liberties on the one hand and deterring
terrorist acts on the other. Since FISA permits the physical and
electronic surveillance of suspected foreign agents, in some instances
under a more generous standard than that allowed in Title III
surveillances, an amendment to FISA should be carefully tailored to
maintain its careful balance. I do not take lightly amending FISA, but
believe that this bill does so in a manner that is both constitutional
and narrowly tailored.
[[Page S5926]]
I want to thank the sponsors of this legislation for their
willingness to work with me to improve their original bill. I proposed
two amendments, both of which were accepted by Senators Kyl and
Schumer--and which the Judiciary Committee adopted without a dissenting
vote on April 29, 2003. I believe my amendments improve S. 113 in three
ways:
First, the original legislation--which would have amended FISA to
expand the definition of ``foreign power'' under 50 U.S.C.
Sec. 1801(a)(4) to include non-U.S. persons who are engaged in
international terrorism--would have allowed the government to extend
the initial surveillance order for a period up to 1 year. The 1-year
period constitutes the maximum period allowed under the statute and is
only invoked under certain circumstances typically limited to groups
and entities. More commonly, an order to conduct surveillance of
individuals is only extended for a period up to 90 days. Instead, the
amendment we offered on April 29, 2003, amended the definition for
``agent of a foreign power'' by creating a new 50 U.S.C.
Sec. 1801(b)(1)(C). This amendment would apply the default 90-day
period to this new category of surveillance targets, which is far more
sensible and consistent with the way we treat other individual targets,
as opposed to groups, under the statute.
Second, by amending 50 U.S.C. Sec. 1801(a), the original legislation
would have precluded individuals who are improperly subjected to
surveillance or about whom surveillance information has been
inappropriately disclosed from filing suit. My amendment, on the other
hand, allowed aggrieved individuals who are improperly targeted under
this new provision to seek redress in the courts and, where
appropriate, recover damages. This modification to Senator Kyl's
original bill is consistent with the typical and intended treatment of
individuals under 18 U.S.C. Sec. 1801(b). See H.R. Rep. No. 95-1283, at
pt. 1, 98 (1978) (noting that the only aggrieved persons ``barred from
the civil remedy will be primarily those persons who are themselves
immune from criminal or civil liability because of their diplomatic
status'').
Third, my amendment added a sunset provision to the legislation,
forcing Congress to re-visit this issue no later than December 31,
2005. The USA Patriot Act (which the Senate overwhelmingly passed a
year and a half ago) includes a similar sunset provision for the FISA
provisions contained therein. My amendment simply insures that this
body will reevaluate the FISA measure on which we are voting today, in
the context of its broader re-consideration of those other FISA
provisions. Such a review is consistent with our oversight function
and, plainly put, ensures that our actions are thoughtful and informed.
Again, I am pleased that Senators Kyl and Schumer accepted these
important revisions to the original text and, on that basis, am happy
to support the amended bill that is before the Senate today.
I also would like to commend my colleague, Senator Feinstein, for her
efforts to engage this issue responsibly and thoughtfully. She has
proposed an alternative, which makes an important contribution to the
debate but with which I happen to disagree, for several reasons.
First, my good friend from California asserts that criminal
prosecutors will abuse the FISA process by securing FISA surveillance--
with its lower burdens of proof--against garden variety criminal
targets, rather than pursuant to Title III. I am simply not persuaded
that this will be the case. It should be noted that the new section
created in this bill has a very high standard, higher indeed than that
required by Title III. That is, the government must show probable cause
that the FISA target has engaged in acts of ``international
terrorism,'' which the statute defines as acts which (i) are a
violation of the criminal law under the laws of the United States or
any state; (ii) appear intended to influence our government or
intimidate our citizens; and (iii) which occur outside the United
States or transcend national boundaries. Thus, I doubt that a
prosecutor would ever be able to seek a FISA warrant under this section
where he would not also be able to obtain a Title III warrant. Morever,
I am not convinced that a prosecutor would seek a FISA warrant where
their real interest is, not obtaining foreign intelligence information,
but rather the eventual prosecution of the FISA target. Given the
strict exclusionary rules FISA imposes, prosecutors would be loathe to
ever seek a FISA warrant for a target they seek to prosecute out of
fear that the judge would suppress the surveillance in a criminal
prosecution which was improperly ``boot-strapped'' from a FISA
investigation.
Second, the Feinstein amendment asserts that, under the Kyl-Schumer
bill, a judge would be a mere ``rubber-stamp'' for a governmental
request for a FISA warrant. The amendment presumes that judges do not
now have discretion to refuse the government's request, which is not
true. Under current law, the judge still must determine that probable
cause exists that the individual is an agent of a foreign power engaged
in, or in preparation for, acts of international terrorism. S. 113 does
nothing to alter that existing requirement. Rather, it makes it clear
that any non-U.S. citizen who engages in terrorism or is preparing to
engage in terrorism would fall within the definition of an ``agent of a
foreign power.'' Nothing in this bill would curtail a judge's ability
to second-guess, or look behind, the assertions advanced by the
government in its application for a warrant. If there is no basis to
believe that probable cause exists, the application would be properly
denied. Indeed, we rely on judges for this very purpose--namely, to
ascertain the veracity of the facts presented by the government.
As opposed to clarifying the definition of ``agent of a foreign
power,'' as the Kyl-Schumer bill does, the Feinstein amendment would
allow--but not require--a judge to ``presume'' that an individual is
such an agent, which in my view creates a difference without a real
distinction. Rather than afford individual targets any added
protections, the Feinstein amendment would inject a considerable amount
of murkiness into an otherwise certain process and may result in
inconsistent rulings by different judges. Likewise, FISA judges may
simply decline to apply the presumption in cases where the government
cannot show much, if any, link between the non-U.S. citizen and a
foreign power. There has been considerable disagreement over whether
the Federal Bureau of Investigation had sufficient evidence to show
that Zacarias Moussaoui, the so-called ``20th Hijacker,'' was an agent
of a foreign power. Yet, I am concerned that a FISA judge might decline
to exercise the ``permissive presumption'' in Senator Feinstein's
amendment, and hence deny a FISA warrant, in the case of a true ``lone-
wolf'' terrorist who cannot be shown to have any links to a foreign
power. As such, the FISA ``loophole'' S. 113 seeks to close would be
left open. On that basis, I am forced to vote against the amendment.
That is not to say, however, that there is not much more work to be
done in this area. We must search for creative ways to give
investigators the tools they need to gather information and seek out
terrorists living among us, while at the same time vigilantly protect
important civil rights and liberties. Toward that end, I welcome the
oversight hearings that my friend Senator Hatch, chairman of the
Judiciary Committee, has pledged to convene on the implementation of
FISA and offer my continued service.
It is my hope that the Senate's action today will assist our
government in its effort to detect and root out foreign terrorists bent
on violent acts against this great country. I support this bill and
urge my colleagues to vote for it.
Mr. HATCH. Mr. President, I commend Senators Kyl, Schumer, Biden and
DeWine for their bipartisan cooperation in supporting S. 113. This bill
will provide a critical tool needed by law enforcement and intelligence
agencies to fight the war against terrorism. Specifically, S. 113 will
address a glaring omission in the Foreign Intelligence Surveillance Act
of 1978 referred to as FISA, to authorize the gathering of foreign
intelligence information relating to a lone-wolf terrorist, that is, a
non-U.S. person who is engaged in international terrorism or
preparation thereof. In recognition of the critical need to support law
enforcement and intelligence agencies in
[[Page S5927]]
the war against terrorism, the Judiciary Committee passed S. 113 by a
bipartisan, unanimous vote of 19 to 0.
This bipartisan proposal will enhance the ability of the FBI and
intelligence agencies to investigate, detect, and prevent terrorists
from carrying out devastating attacks on our country. Specifically, S.
113 will amend the Foreign Intelligence Survelliance Act to include
lone-wolf terrorists who engage in international terrorism or
activities in preparation thereof without a showing of membership in or
affiliation with an international terrorist group. A significant gap in
the current statute exists with respect to application of the foreign
power requirement to lone-wolf terrorists. S. 113 would authorize FISA
surveillance or searches when law enforcement and intelligence agents
identify an individual involved in international terrorism but cannot
link the terrorist to a specific group.
The administration strongly supports amending FISA to include non-
U.S. lone-wolf terrorists. On March 4, 2003, at a Judiciary Committee
hearing examining the war on terrorism, both Attorney General Ashcroft
and FBI Director Mueller indicated their strong support for fixing this
glaring omission in the FISA statute. In fact, Director Mueller
testified, both before the Judiciary Committee and previously before
the Senate Select Committee on Intelligence, there is an increasing
threat of lone extremists who have the motive and ability to carry out
devastating attacks against our country.
We need to provide law enforcement and intelligence agencies with the
tools needed to protect our country from deadly terrorist attacks. With
our recent success in the war against Iraq, the risk of terrorist
attacks against our country may well rise. We need to ensure that our
country has the ability to investigate and prevent such attacks if
carried out by a lone extremist.
While some interest groups that oppose this measure suggest that such
a fix is not needed or claim that the FBI failed to properly apply the
law in the Moussaoui investigation, that is simply beside the point:
The September 11 attack against our country highlighted the need to
fill in this gap in the FISA statute.
FISA provides that electronic surveillance or physical searches may
be authorized when there is probable cause to believe that the target
is either an agent of, or is himself, a ``foreign power''--a term that
is currently defined to include only foreign government or
international terrorist organizations. Requiring a link to government
or international terrorist organizations may have made sense when FISA
was enacted in 1978; in that year, the typical FISA target was a Soviet
spy or a member of one of the hierarchical, military-style terror
groups of that era.
Today the United States faces a much different threat. We are
principally confronted not by specific groups or governments, but by a
movement of Islamist extremists which does not maintain a fixed
structure or membership list, and its adherents do not always advertise
their affiliation with this cause. Moreover, in response to our
country's efforts to fight terrorism worldwide, terrorists are
increasingly operating in a more decentralized manner, far different
from the terrorist threat that existed in 1978. The threat posed by a
lone terrorist may be very real and may involve devastating
consequences, even beyond those suffered by our country on September
11. Given this increasing threat, we have to ensure that intelligence
and law enforcement agencies have sufficient tools to meet this new--
and even more dangerous--challenge.
While I support S. 113, as passed by the Judiciary Committee, I wish
to note my concerns about the amendment offered by Senator Feingold,
which has been agreed to, as part of consideration of this matter.
The Feingold amendment would impose new FISA reporting requirements
on the Justice Department, and require: (1) reports on the number of
U.S. persons targeted by FISA order, by specific categories of
surveillance, for example, electronic surveillance, physical searches,
pen registers, and access to records; (2) identification of individuals
who ``acted wholly alone;'' (3) disclosure of the number of times FISA
material was used in a criminal proceeding; and (4) disclosure of
portions of FISA pleadings and orders that deal with significant
questions of law ``in a manner consistent with the protection of the
national security of the United States.''
As I have indicated on other occasions, I support reporting
requirements when necessary for Congress to exercise responsible
oversight. We have a duty to conduct meaningful oversight of the FISA
process, and I am committed to such oversight and ensuring proper
reporting requirements are imposed on the Justice Department.
My concern with the Feingold amendment is that the operation of the
amendment is unclear and may create confusion rather than bringing
clarity to the issue. I would have preferred that we conduct a more
deliberate examination of this issue to ensure that the reporting
requirements are not harmful and will not create any significant risk
of harm to sensitive law enforcement and intelligence operations
against terrorists.
More significantly, I am concerned that the Feingold amendment will
alter well-established procedures for Congress's review and handling of
classified operational intelligence information, in contrast to
Congress's review and handling of ``finished'' intelligence
information. For many years, and in fact the reason for the creation of
the Senate Select Committee on Intelligence was to establish a
professional, dedicated Intelligence Committee staff which would handle
sensitive operational intelligence information. Congress did so to
minimize the potential risk of harm to foreign counterintelligence
operations. The accidental or inadvertent disclosure of such material
could have a devastating impact on extremely sensitive CIA or FBI
counterintelligence operations.
Further, the Senate Select Committee on Intelligence rejected a
similar reporting proposal in 1984 because ``the benefits of such
disclosure for public understanding of FISA's impact would not outweigh
the damage to FBI foreign counterintelligence capabilities that can be
reasonably expected to result.''
The FISA statute already sets forth detailed and specific
requirements for the reporting of information to the Intelligence and
Judiciary Committees, and there is simply no need to disrupt long-
established processes and procedures for FISA reporting between the
executive branch and the Intelligence and Judiciary Committees relating
to the handling of classified operations intelligence information.
While I have these concerns about the Feingold amendment, on balance,
I believe that fixing the FISA statue to address the long-wolf
terrorist problem is more important than remedying the deficiencies in
the Feingold amendment. The potential harm to our country from a lone-
wolf terrorist attack is significant and we must act--and act now by
passing A. 113.
Again, I commend Senators Kyl, Schumer, Biden, and DeWine for this
important piece of legislation which reflects our bipartisan commitment
to ensuring the safety of our country and the need to be vigilant in
protecting our country from deadly and devastating terrorist attacks. I
urge my colleagues to vote in favor of S. 113.
The PRESIDING OFFICER (Mr. Enzi). Under the previous order, the
committee amendment, as amended, is agreed to.
The committee amendment, in the nature of a substitute, as amended,
was agreed to.
The PRESIDING OFFICER. Under the previous order, the question is on
the engrossment and third reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
Mr. REID. Mr. President, I yield back all of our time.
The PRESIDING OFFICER. All time has been yielded back.
Mrs. FEINSTEIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The bill having been read the third time, the question is, Shall the
bill, as amended, pass? The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Alaska (Ms.
Murkowski) is necessarily absent.
[[Page S5928]]
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr.
Kennedy), the Senator from Massachusetts (Mr. Kerry), and the Senator
from Connecticut (Mr. Lieberman) are necessarily absent.
I further announce that, if present and voting, the Senator from
Delaware (Mr. Biden) and the Senator from Massachusetts (Mr. Kerry)
would each vote ``Aye''.
The result was announced--yeas 90, nays 4, as follows:
[Rollcall Vote No. 146 Leg.]
YEAS--90
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Campbell
Cantwell
Carper
Chafee
Chambliss
Clinton
Cochran
Coleman
Collins
Conrad
Cornyn
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Dole
Domenici
Dorgan
Edwards
Ensign
Enzi
Feinstein
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murray
Nelson (FL)
Nelson (NE)
Nickles
Pryor
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
Wyden
NAYS--4
Byrd
Durbin
Feingold
Harkin
NOT VOTING--6
Biden
Graham (FL)
Kennedy
Kerry
Lieberman
Murkowski
The bill (S. 113), as amended, was passed, as follows:
The title was amended so as to read:
To amend the Foreign Intelligence Surveillance Act of 1978
to cover individuals, other than United States persons, who
engage in international terrorism without affiliation with an
international terrorist group.
____________________