[Congressional Record Volume 155, Number 138 (Tuesday, September 29, 2009)]
[Senate]
[Pages S9933-S9936]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL. (for himself and Mr. Cornyn):
  S. 1726. A bill to reauthorize the expiring intelligence tools of the 
USA PATRIOT Improvement and Reauthorization Act of 2005 and defend 
against terrorism through improved classified procedures and criminal 
law reforms, and for other purposes; to the Committee on the Judiciary.
  Mr. KYL. Mr. President, earlier this month, we paid homage to those 
who lost their lives in the terrorist attacks on September 11, 2001. 
Those attacks changed our nation forever, including how we combat the 
very real and continuing threat of terrorism. One of the most important 
changes that we made in the wake of September 11 was the enactment of 
the PATRIOT Act. That legislation, which had strong bipartisan support 
in the Congress, provided for a number of common sense changes designed 
to give our national security intelligence community the same tools our 
police and FBI agents can use against drug dealers and organized crime. 
Although many of the PATRIOT Act's provisions are now permanent, three 
critical national security tools--the ``wiretap'' authority contained 
in Section 206 of the PATRIOT Act; the ``business records'' authority 
contained in Section 215 of the PATRIOT Act; and the ``lone wolf'' 
authority contained in Section 6001 of the Intelligence Reform and 
Terrorism Prevention Act of 2004--will expire on December 31 of this 
year.
  The tools in the PATRIOT Act are as necessary today as they were when 
first enacted. Just this month, the government confirmed that the 
Foreign Intelligence Surveillance Act of 1978, FISA, which includes 
PATRIOT Act provisions, was used to build a case against Najibullah 
Zazi. Although many details remain classified, it appears as if 
Najibullah Zazi was an al Qaeda associate who was planning to detonate 
bombs within the U.S.
  Similarly, it has been reported that the FBI likely used its roving 
wiretap and business records authorities--two of the PATRIOT Act's 
expiring provisions--to thwart a terrorist plot uncovered earlier this 
year in New York, in which four former convicts who converted to 
radical Islam plotted to use

[[Page S9934]]

explosives to blow up synagogues and shoot down airplanes with surface-
to-air missiles.
  Those are two high-profile examples from just this year. There are no 
doubt countless of other instances, not known to the public, where 
PATRIOT Act authorities have been used by our national security 
professionals to keep Americans safe. Recognizing the importance of 
these tools, the Department of Justice has written the Chairman of the 
Judiciary Committee to urge renewal of the expiring provisions of the 
PATRIOT Act. In addition, FBI Director Mueller and David Kris, the 
Assistant Attorney General for the National Security Division, both 
expressed their strong support for these authorities in testimony 
before the Judiciary Committee this month.
  The reality is that the war on terrorism is not going to sunset. 
Neither should the tools that our investigators and analysts rely upon 
to prevent attack. That is why Mr. Cornyn and I are introducing today 
the USA PATRIOT Reauthorization and Additional Weapons Against 
Terrorism Act of 2009. This legislation permanently renews the three 
expiring PATRIOT Act provisions and addresses other critical national 
security needs.


                I. Renewing the Roving Wiretap Authority

  The roving wiretap authority allows the Government, in certain 
circumstances, to focus surveillance efforts on monitoring a particular 
target rather than a particular telephone number. Gone are the days 
when you used only one phone at home or in the office. Cell phones are 
ubiquitous. The point is to intercept the calls of a particular person, 
not a particular phone. Even so, the Government may have such authority 
only in limited circumstances. It must provide the FISA Court with 
``specific facts'' indicating that the ``actions of the target of the 
application may have the effect of thwarting the identification'' of 
third parties necessary to accomplish the ordered surveillance. This 
tool helps ensure that investigators and analysts may overcome a 
target's efforts to avoid surveillance, for example, rapidly switching 
cell phone numbers.
  As the Department of Justice noted in its September 14, 2009, letter 
to Chairman Leahy, the roving wiretap authority has ``proven an 
important intelligence-gathering tool in a small but significant subset 
of FISA electronic surveillance orders.'' The Department's letter 
explains that the authority has been used judiciously--on average, only 
22 applications for roving wiretaps have been made per year--and that 
``the basic justification offered to Congress in 2001 for the roving 
authority remains valid today. . . . Any effective surveillance 
mechanism must incorporate the ability to rapidly address an 
unanticipated change in the target's communications behavior.''


              II. Renewing the Business Records Authority

  The business records authority allows the FISA Court, under 
appropriate circumstances, to compel the production of needed business 
records. In its September 14 letter, the Department of Justice 
expressed its strong support for the business records provision, 
stating that it ``addresses a gap in intelligence collection 
authorities and has proven valuable in a number of contexts.'' The 
Department stated that some of the acquired ``orders were used to 
support important and highly sensitive intelligence collection 
operations, of which both Members of the Intelligence Committee and 
their staffs are aware.'' Although some have questioned the scope and 
use of this authority, it is important to acknowledge that no one has 
challenged a business records order in court, even though an explicit 
right to file such a challenge took effect in 2006. Such authority also 
exists in at least 300 federal government investigative contexts.


                 III. Renewing the Lone Wolf Authority

  The ``lone wolf'' provision fills a critical intelligence gap in 
situations where the government can establish that a non-United States 
person is engaged in international terrorism but cannot yet identify 
the foreign power or terrorist group to which he belongs. Although this 
authority has not yet been used, the Department of Justice made clear 
in its September 14 letter that there are foreseeable situations in 
which such an authority ``would be the only avenue to effective 
surveillance.'' The Department stated that ``it is essential to have 
the tool available for the rare situation in which it is necessary 
rather than to delay surveillance of a terrorist in the hopes that the 
necessary links are established.'' Had we had this authority at the 
time, we could have examined the computer of Zacarias Moussaoui, 
perhaps gaining enough information to provide some warning of 9/11. 
Terrorists do not carry membership cards in organizations, but it does 
not make them any less dangerous.


              IV. Addressing Other National Security Needs

  In addition to reauthorizing these important national security tools, 
this legislation responds to several other national security needs. For 
example, it clarifies what kind of information and disclosures trigger 
the procedures of the Classified Information Procedures Act, CIPA. This 
clarification is designed to resolve the difficulties created by the 
Fourth Circuit's approach in United States v. Moussaoui. The 
legislation also prohibits individuals from providing material 
support--for example, providing money to support a suicide bomber's 
family--to international terrorism efforts. It makes it illegal to 
conspire to violate the current prohibition on receiving military-type 
training from a foreign terrorist organization. It prohibits the use, 
transfer, mass transfer, production, and trafficking of false travel 
documents. Finally, it ensures that convicted terrorists and sex 
offenders will not be released pending sentencing or appeal.
  These are good, common sense provisions that all members should be 
able to support. I look forward to working with my colleagues on both 
sides to ensure that our national security professionals have the tools 
they need to continue finding and apprehending terrorists before they 
attack.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1726

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``USA 
     PATRIOT Reauthorization and Additional Weapons Against 
     Terrorism Act of 2009''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.

            TITLE I--USA PATRIOT REAUTHORIZATION ACT OF 2009

Sec. 101. Short title.
Sec. 102. USA Patriot Improvement and Reauthorization Act repeal of 
              sunset provisions.
Sec. 103. Repeal of sunset relating to individual terrorists as agents 
              of foreign powers.

         TITLE II--CLASSIFIED INFORMATION PROCEDURES REFORM ACT

Sec. 201. Short title.
Sec. 202. Definitions.
Sec. 203. Ex parte authorizations under the Classified Information 
              Procedures Act.
Sec. 204. Application of Classified Information Procedures Act to 
              nondocumentary information.
Sec. 205. Interlocutory appeals under the Classified Information 
              Procedures Act.

     TITLE III--ADDITIONAL GOVERNMENT WEAPONS AGAINST TERRORISM ACT

Sec. 301. Short title.
Sec. 302. Prevention and deterrence of material support for terrorist 
              suicide bombings.
Sec. 303. Prohibiting attempts and conspiracies to obtain military-type 
              training from a foreign terrorist organization.
Sec. 304. Prohibiting use of false travel documents.
Sec. 305. Preventing unwarranted release of convicted terrorists and 
              sex offenders pending sentencing or appeal.

            TITLE I--USA PATRIOT REAUTHORIZATION ACT OF 2009

     SEC. 101. SHORT TITLE.

       This title may be cited as the ``USA PATRIOT 
     Reauthorization Act of 2009''.

     SEC. 102. USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT 
                   REPEAL OF SUNSET PROVISIONS.

       Section 102(b) of the USA PATRIOT Improvement and 
     Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C. 
     1805 note, 50 U.S.C. 1861 note, and 50 U.S.C. 1862 note) is 
     repealed.

     SEC. 103. REPEAL OF SUNSET RELATING TO INDIVIDUAL TERRORISTS 
                   AS AGENTS OF FOREIGN POWERS.

       Section 6001(b) of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (Public Law 108-458; 50 U.S.C. 1801 
     note) is repealed.

[[Page S9935]]

         TITLE II--CLASSIFIED INFORMATION PROCEDURES REFORM ACT

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Classified Information 
     Procedures Reform Act of 2009''.

     SEC. 202. DEFINITIONS.

       (a) In General.--Section 1 of the Classified Information 
     Procedures Act (18 U.S.C. App.) is amended--
       (1) by redesignating subsection (b) as subsection (c); and
       (2) by inserting after subsection (a) the following:
       ``(b) `Disclosure', as used in this Act--
       ``(1) means the release, transmittal, or making available 
     of, or providing access to, classified information to any 
     person (including a defendant or counsel for a defendant) 
     during discovery, or to a participant or member of the public 
     at any proceeding; and
       ``(2) does not include the release, transmittal, or making 
     available of, or providing access to, classified information 
     by the defendant to an attorney representing the defendant in 
     a matter who has received--
       ``(A) the necessary security clearance to receive the 
     classified information; and
       ``(B) if the classified information has been designated as 
     sensitive compartmented information or special access program 
     information, any additional required authorization to receive 
     the classified information, .''.
       (b) Technical and Conforming Amendment.--Section 501(3) of 
     the Immigration and Nationality Act (8 U.S.C. 1531(3)) is 
     amended by striking ``section 1(b)'' and inserting ``section 
     1''.

     SEC. 203. EX PARTE AUTHORIZATIONS UNDER THE CLASSIFIED 
                   INFORMATION PROCEDURES ACT.

       Section 4 of the Classified Information Procedures Act (18 
     U.S.C. App.) is amended--
       (1) in the second sentence--
       (A) by striking ``may'' and inserting ``shall''; and
       (B) by striking ``authorization in the form of a written 
     statement to be inspected'' and inserting ``authorization, 
     together with any argument in support of that request, in the 
     form of a statement made ex parte and to be considered''; and
       (2) in the third sentence--
       (A) by striking ``If the court enters an order granting 
     relief following such an ex parte showing, the'' and 
     inserting ``The''; and
       (B) inserting ``, and the transcript of any argument and 
     any summary of the classified information the defendant seeks 
     to obtain,'' after ``text of the statement of the United 
     States''.

     SEC. 204. APPLICATION OF CLASSIFIED INFORMATION PROCEDURES 
                   ACT TO NONDOCUMENTARY INFORMATION.

       Section 4 of the Classified Information Procedures Act (18 
     U.S.C. App.), as amended by section 203 of this Act, is 
     amended--
       (1) in the section heading, by inserting ``and access to'' 
     after ``of'';
       (2) by inserting ``(a) In General.--'' before ``The court, 
     upon''; and
       (3) by adding the following at the end the following:
       ``(b) Access to Other Classified Information.--(1) If the 
     defendant seeks access through deposition under the Federal 
     Rules of Criminal Procedure or otherwise to nondocumentary 
     information from a potential witness or other person which 
     the defendant knows or reasonably believes is classified, the 
     defendant shall notify the attorney for the United States and 
     the district court in writing. Such notice shall specify with 
     particularity the classified information sought by the 
     defendant and the legal basis for such access. At a time set 
     by the court, the United States may oppose such access to the 
     classified information.
       ``(2) If, after consideration of any objection raised by 
     the United States, including any objection asserted on the 
     basis of privilege, the court determines that the defendant 
     is legally entitled to have access to the information 
     specified in a notice made under paragraph (1), the United 
     States may request the substitution of a summary of the 
     classified information or the substitution of a statement 
     admitting relevant facts that the classified information 
     would tend to prove.
       ``(3) The court shall permit the United States to make an 
     objection to access to classified information under paragraph 
     (1) or a request for a substitution under paragraph (2) in 
     the form of a statement made ex parte and to be considered by 
     the court alone. The entire text of the statement of the 
     United States, and any summary of the classified information 
     the defendant seeks to obtain, shall be sealed and preserved 
     in the records of the court and made available to the 
     appellate court in the event of an appeal.
       ``(4) A court shall grant the request of the United States 
     to substitute a summary of the classified information or to 
     substitute a statement admitting relevant facts that the 
     classified information would tend to prove under paragraph 
     (2) if the court finds that the summary or statement will 
     provide the defendant with substantially the same ability to 
     make a defense as would disclosure of the specific classified 
     information.
       ``(5) A defendant may not obtain access to classified 
     information subject to this subsection except as provided in 
     this subsection. Any proceeding, whether by deposition under 
     the Federal Rules of Criminal Procedure or otherwise, in 
     which a defendant seeks to obtain access to classified 
     information subject to this subsection not previously 
     authorized by a court for disclosure under this subsection 
     shall be discontinued or may proceed only as to lines of 
     inquiry not involving the classified information.''.

     SEC. 205. INTERLOCUTORY APPEALS UNDER THE CLASSIFIED 
                   INFORMATION PROCEDURES ACT.

       Section 7(a) of the Classified Information Procedures Act 
     (18 U.S.C. App.) is amended by adding the following at the 
     end: ``The right of the United States to appeal under this 
     subsection applies without regard to whether the order 
     appealed from was entered under this Act.''.

     TITLE III--ADDITIONAL GOVERNMENT WEAPONS AGAINST TERRORISM ACT

     SEC. 301. SHORT TITLE.

       This title may be cited as the ``Additional Government 
     Weapons Against Terrorism Act of 2009''.

     SEC. 302. PREVENTION AND DETERRENCE OF MATERIAL SUPPORT FOR 
                   TERRORIST SUICIDE BOMBINGS.

       (a) In General.--Chapter 113B of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 2339E. Providing material support to international 
       terrorism

       ``(a) Definitions.--In this section--
       ``(1) the term `facility of interstate or foreign commerce' 
     has the meaning given that term in section 1958;
       ``(2) the term `material support or resources' has the 
     meaning given that term in section 2339A;
       ``(3) the term `perpetrator of an act' includes any person 
     who--
       ``(A) commits the act;
       ``(B) aids, abets, counsels, commands, induces, or procures 
     the commission of the act; or
       ``(C) attempts, plots, or conspires to commit the act; and
       ``(4) the term `serious bodily injury' has the meaning 
     given that term in section 1365.
       ``(b) Prohibition.--Whoever, in a circumstance described in 
     subsection (c), provides, or attempts or conspires to 
     provide, material support or resources to the perpetrator of 
     an act of international terrorism, to a family member of the 
     perpetrator of an act of international terrorism, or to any 
     other person, with the intent to facilitate, reward, or 
     encourage that act or other acts of international terrorism, 
     shall be fined under this title, imprisoned not more than 15 
     years, or both, and, if death results, shall be imprisoned 
     for any term of years or for life.
       ``(c) Jurisdictional Bases.--A circumstance referred to in 
     this subsection is that--
       ``(1) the offense occurs in or affects interstate or 
     foreign commerce;
       ``(2) the offense involves the use of the mails or a 
     facility of interstate or foreign commerce;
       ``(3) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that affects 
     interstate or foreign commerce or would have affected 
     interstate or foreign commerce had the act been consummated;
       ``(4) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that violates the 
     criminal laws of the United States;
       ``(5) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that is designed 
     to influence the policy or affect the conduct of the United 
     States Government;
       ``(6) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that occurs in 
     part within the United States and is designed to influence 
     the policy or affect the conduct of a foreign government;
       ``(7) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that causes or is 
     designed to cause death or serious bodily injury to a 
     national of the United States while that national is outside 
     the United States, or substantial damage to the property of a 
     legal entity organized under the laws of the United States 
     (including any State, district, commonwealth, territory, or 
     possession of the United States) while that property is 
     outside of the United States;
       ``(8) the offense occurs in whole or in part within the 
     United States, and an offender intends to facilitate, reward, 
     or encourage an act of international terrorism that is 
     designed to influence the policy or affect the conduct of a 
     foreign government; or
       ``(9) the offense occurs in whole or in part outside of the 
     United States, and an offender is a national of the United 
     States, a stateless person whose habitual residence is in the 
     United States, or a legal entity organized under the laws of 
     the United States (including any State, district, 
     commonwealth, territory, or possession of the United 
     States).''.
       (b) Technical and Conforming Amendments.--
       (1) Table of sections.--The table of sections for chapter 
     113B of title 18, United States Code, is amended by adding at 
     the end the following:

``2339D. Receiving military-type training from a foreign terrorist 
              organization.
``2339E. Providing material support to international terrorism.''.
       (2) Other amendment.--Section 2332b(g)(5)(B)(i) of title 
     18, United States Code, is amended by inserting ``2339E 
     (relating to providing material support to international 
     terrorism),'' before ``or 2340A (relating to torture)''.

[[Page S9936]]

     SEC. 303. PROHIBITING ATTEMPTS AND CONSPIRACIES TO OBTAIN 
                   MILITARY-TYPE TRAINING FROM A FOREIGN TERRORIST 
                   ORGANIZATION.

       Section 2339D(a) of title 18, United States Code, is 
     amended by inserting ``, or attempts or conspires to do so,'' 
     after ``foreign terrorist organization''.

     SEC. 304. PROHIBITING USE OF FALSE TRAVEL DOCUMENTS.

       (a) In General.--Section 1028 of title 18, United States 
     Code, is amended--
       (1) in the section heading, by inserting ``false travel 
     documents,'' after ``identification documents,'';
       (2) in subsection (a)--
       (A) in paragraph (1), by striking ``or a false 
     identification document'' and inserting ``false 
     identification document, or false travel document'';
       (B) in paragraph (2), by striking ``or a false 
     identification document'' and inserting ``false 
     identification document, or false travel document'';
       (C) in paragraph (3), by striking ``or false identification 
     documents'' and inserting ``false identification documents, 
     or false travel documents'';
       (D) in paragraph (5), by inserting ``, false travel 
     document,'' after ``false identification document''; and
       (E) in paragraph (8), by inserting ``false travel 
     documents,'' after ``false identification documents,'';
       (3) in subsection (b)--
       (A) in paragraph (1)(B), by striking ``or false 
     identification documents'' and inserting ``false 
     identification documents, or false travel documents''; and
       (B) in paragraph (2)(A)--
       (i) by striking ``document,,'' and inserting ``document,''; 
     and
       (ii) by striking ``or a false identification document'' and 
     inserting ``a false identification document, or a false 
     travel document'';
       (4) in subsection (c)(3)(B), by inserting ``false travel 
     document,'' after ``false identification document,'';
       (5) in subsection (d)--
       (A) in paragraph (11), by striking ``and'' at the end;
       (B) in paragraph (12), by striking the period at the end 
     and inserting ``; and''; and
       (C) by adding at the end the following:
       ``(13) the term `false travel document' means a document 
     issued for the use of a particular, identified individual and 
     of a type intended or commonly accepted for the purposes of 
     passage on a commercial aircraft or mass transportation 
     vehicle, including a ticket or boarding pass, that--
       ``(A) was not issued by or under the authority of a 
     commercial airline or mass transportation provider, but 
     appears to be issued by or under the authority of a 
     commercial airline or mass transportation provider; or
       ``(B) was issued by or under the authority of a commercial 
     airline or mass transportation provider, and was subsequently 
     altered for purposes of deceit.''; and
       (6) in subsection (h), by inserting ``false travel 
     documents,'' after ``identification documents,''.
       (b) Technical Amendment.--The table of sections for chapter 
     47 of title 18, United States Code, is amended by striking 
     the item related to section 1028 and inserting the following:

``1028. Fraud and related activity in connection with identification 
              documents, false travel documents, authentication 
              features, and information.''.

     SEC. 305. PREVENTING UNWARRANTED RELEASE OF CONVICTED 
                   TERRORISTS AND SEX OFFENDERS PENDING SENTENCING 
                   OR APPEAL.

       (a) In General.--Section 3145 of title 18, United States 
     Code, is amended by adding at the end the following:
       ``(d) Application.--No person shall be eligible for release 
     under subsection (c) based on exceptional reasons if the 
     person is being detained pending sentencing or appeal in a 
     case involving--
       ``(1) an offense under section 2332b of this title;
       ``(2) an offense listed in section 2332b(g)(5)(B) of this 
     title for which a maximum term of imprisonment of 10 years or 
     more is prescribed; or
       ``(3) an offense involving a minor victim under section 
     1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 
     2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 
     2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of 
     this title.''.

                          ____________________