[Congressional Record (Bound Edition), Volume 147 (2001), Part 16]
[Senate]
[Pages 22010-22026]
[From the U.S. Government Publishing Office, www.gpo.gov]


[[Page 22010]]

          INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2002

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now proceed to the consideration of S. 1428, which the 
clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 1428) to authorize appropriations for fiscal 
     year 2002 for intelligence and intelligence-related 
     activities of the United States Government, the Community 
     Management Account of the Director of Central Intelligence, 
     and the Central Intelligence Agency Retirement and Disability 
     System, and for other purposes.
  The Senate proceeded to consider the bill which had been reported 
from the Select Committee on Intelligence without amendment and the 
Committee on Armed Services with amendments, as follows:
  (The parts of the bill intended to be inserted are shown in italic.)

                                S. 1428

       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 
     ``Intelligence Authorization Act for Fiscal Year 2002''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.

                    TITLE I--INTELLIGENCE ACTIVITIES

Sec. 101. Authorization of appropriations.
Sec. 102. Classified schedule of authorizations.
Sec. 103. Personnel ceiling adjustments.
Sec. 104. Community Management Account.

 TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM

Sec. 201. Authorization of appropriations.

                     TITLE III--GENERAL PROVISIONS

Sec. 301. Increase in employee compensation and benefits authorized by 
              law.
Sec. 302. Restriction on conduct of intelligence activities.
Sec. 303. Judicial review under Foreign Narcotics Kingpin Designation 
              Act.
Sec. 304. Modification of positions requiring consultation with 
              Director of Central Intelligence in appointments.
Sec. 305. Modification of reporting requirements for significant 
              anticipated intelligence activities and significant 
              intelligence failures.
Sec. 306. Modification of authorities for protection of intelligence 
              community employees who report urgent concerns to 
              Congress.
Sec. 307. Review of protections against the unauthorized disclosure of 
              classified information.
Sec. 308. Modification of authorities relating to official immunity in 
              interdiction of aircraft engaged in illicit drug 
              trafficking.
Sec. 309. One-year suspension of reorganization of Diplomatic 
              Telecommunications Service Program Office.
Sec. 310. Presidential approval and submission to Congress of National 
              Counterintelligence Strategy and National Threat 
              Identification and Prioritization Assessments.
Sec. 311. Preparation and submittal of reports, reviews, studies, and 
              plans relating to Department of Defense intelligence 
              activities.

                 TITLE IV--CENTRAL INTELLIGENCE AGENCY

Sec. 401. One-year extension of Central Intelligence Agency Voluntary 
              Separation Pay Act.
Sec. 402. Modifications of central services program.

                    TITLE I--INTELLIGENCE ACTIVITIES

     SEC. 101. AUTHORIZATION OF APPROPRIATIONS.

       Funds are hereby authorized to be appropriated for fiscal 
     year 2002 for the conduct of the intelligence and 
     intelligence-related activities of the following elements of 
     the United States Government:
       (1) The Central Intelligence Agency.
       (2) The Department of Defense.
       (3) The Defense Intelligence Agency.
       (4) The National Security Agency.
       (5) The Department of the Army, the Department of the Navy, 
     and the Department of the Air Force.
       (6) The Department of State.
       (7) The Department of the Treasury.
       (8) The Department of Energy.
       (9) The Federal Bureau of Investigation.
       (10) The National Reconnaissance Office.
       (11) The National Imagery and Mapping Agency.

     SEC. 102. CLASSIFIED SCHEDULE OF AUTHORIZATIONS.

       (a) Specifications of Amounts and Personnel Ceilings.--The 
     amounts authorized to be appropriated under section 101, and 
     the authorized personnel ceilings as of September 30, 2002, 
     for the conduct of the intelligence and intelligence-related 
     activities of the elements listed in such section, are those 
     specified in the classified Schedule of Authorizations 
     prepared to accompany the conference report on the bill ____ 
     of the One Hundred Seventh Congress.
       (b) Availability of Classified Schedule of 
     Authorizations.--The Schedule of Authorizations shall be made 
     available to the Committees on Appropriations of the Senate 
     and House of Representatives and to the President. The 
     President shall provide for suitable distribution of the 
     Schedule, or of appropriate portions of the Schedule, within 
     the executive branch.

     SEC. 103. PERSONNEL CEILING ADJUSTMENTS.

       (a) Authority for Adjustments.--With the approval of the 
     Director of the Office of Management and Budget, the Director 
     of Central Intelligence may authorize employment of civilian 
     personnel in excess of the number authorized for fiscal year 
     2002 under section 102 when the Director of Central 
     Intelligence determines that such action is necessary to the 
     performance of important intelligence functions, except that 
     the number of personnel employed in excess of the number 
     authorized under such section may not, for any element of the 
     intelligence community, exceed 2 percent of the number of 
     civilian personnel authorized under such section for such 
     element.
       (b) Notice to Intelligence Committees.--The Director of 
     Central Intelligence shall notify promptly the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives and the Select Committee on Intelligence of 
     the Senate whenever the Director exercises the authority 
     granted by this section.

     SEC. 104. COMMUNITY MANAGEMENT ACCOUNT.

       (a) Authorization of Appropriations.--There is authorized 
     to be appropriated for the Community Management Account of 
     the Director of Central Intelligence for fiscal year 2002 the 
     sum of $238,496,000. Within such amount, funds identified in 
     the classified Schedule of Authorizations referred to in 
     section 102(a) for the advanced research and development 
     committee shall remain available until September 30, 2003.
       (b) Authorized Personnel Levels.--The elements within the 
     Community Management Account of the Director of Central 
     Intelligence are authorized 343 full-time personnel as of 
     September 30, 2002. Personnel serving in such elements may be 
     permanent employees of the Community Management Account or 
     personnel detailed from other elements of the United States 
     Government.
       (c) Classified Authorizations.--
       (1) Authorization of appropriations.--In addition to 
     amounts authorized to be appropriated for the Community 
     Management Account by subsection (a), there are also 
     authorized to be appropriated for the Community Management 
     Account for fiscal year 2002 such additional amounts as are 
     specified in the classified Schedule of Authorizations 
     referred to in section 102(a). Such additional amounts shall 
     remain available until September 30, 2003.
       (2) Authorization of personnel.--In addition to the 
     personnel authorized by subsection (b) for elements of the 
     Community Management Account as of September 30, 2002, there 
     are hereby authorized such additional personnel for such 
     elements as of that date as are specified in the classified 
     Schedule of Authorizations.
       (d) Reimbursement.--Except as provided in section 113 of 
     the National Security Act of 1947 (50 U.S.C. 404h), during 
     fiscal year 2002 any officer or employee of the United States 
     or a member of the Armed Forces who is detailed to the staff 
     of the Community Management Account from another element of 
     the United States Government shall be detailed on a 
     reimbursable basis, except that any such officer, employee, 
     or member may be detailed on a nonreimbursable basis for a 
     period of less than one year for the performance of temporary 
     functions as required by the Director of Central 
     Intelligence.
       (e) National Drug Intelligence Center.--
       (1) In general.--Of the amount authorized to be 
     appropriated in subsection (a), $27,000,000 shall be 
     available for the National Drug Intelligence Center. Within 
     such amount, funds provided for research, development, 
     testing, and evaluation purposes shall remain available until 
     September 30, 2003, and funds provided for procurement 
     purposes shall remain available until September 30, 2004.
       (2) Transfer of funds.--The Director of Central 
     Intelligence shall transfer to the Attorney General funds 
     available for the National Drug Intelligence Center under 
     paragraph (1). The Attorney General shall utilize funds so 
     transferred for the activities of the National Drug 
     Intelligence Center.
       (3) Limitation.--Amounts available for the National Drug 
     Intelligence Center may not be used in contravention of the 
     provisions of section 103(d)(1) of the National Security Act 
     of 1947 (50 U.S.C. 403-3(d)(1)).
       (4) Authority.--Notwithstanding any other provision of law, 
     the Attorney General shall retain full authority over the 
     operations of the National Drug Intelligence Center.

[[Page 22011]]



 TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM

     SEC. 201. AUTHORIZATION OF APPROPRIATIONS.

       There is authorized to be appropriated for the Central 
     Intelligence Agency Retirement and Disability Fund for fiscal 
     year 2002 the sum of $212,000,000.

                     TITLE III--GENERAL PROVISIONS

     SEC. 301. INCREASE IN EMPLOYEE COMPENSATION AND BENEFITS 
                   AUTHORIZED BY LAW.

       Appropriations authorized by this Act for salary, pay, 
     retirement, and other benefits for Federal employees may be 
     increased by such additional or supplemental amounts as may 
     be necessary for increases in such compensation or benefits 
     authorized by law.

     SEC. 302. RESTRICTION ON CONDUCT OF INTELLIGENCE ACTIVITIES.

       The authorization of appropriations by this Act shall not 
     be deemed to constitute authority for the conduct of any 
     intelligence activity which is not otherwise authorized by 
     the Constitution or the laws of the United States.

     SEC. 303. JUDICIAL REVIEW UNDER FOREIGN NARCOTICS KINGPIN 
                   DESIGNATION ACT.

       Section 805 of the Foreign Narcotics Kingpin Designation 
     Act (title VIII of Public Law 106-120; 113 Stat. 1629; 21 
     U.S.C. 1904) is amended by striking subsection (f).

     SEC. 304. MODIFICATION OF POSITIONS REQUIRING CONSULTATION 
                   WITH DIRECTOR OF CENTRAL INTELLIGENCE IN 
                   APPOINTMENTS.

       Section 106(b)(2) of the National Security Act of 1947 (50 
     U.S.C. 403-6(b)(2)) is amended by striking subparagraph (C) 
     and inserting the following new subparagraphs:
       ``(C) The Director of the Office of Intelligence of the 
     Department of Energy.
       ``(D) The Director of the Office of Counterintelligence of 
     the Department of Energy''.

     SEC. 305. MODIFICATION OF REPORTING REQUIREMENTS FOR 
                   SIGNIFICANT ANTICIPATED INTELLIGENCE ACTIVITIES 
                   AND SIGNIFICANT INTELLIGENCE FAILURES.

       Section 502 of the National Security Act of 1947 (50 U.S.C. 
     413a) is amended--
       (1) by inserting ``(a) In General.--'' before ``To the 
     extent''; and
       (2) by adding at the end the following new subsections:
       ``(b) Form and Contents of Certain Reports.--Any report 
     relating to a significant anticipated intelligence activity 
     or a significant intelligence failure that is submitted to 
     the intelligence committees for purposes of subsection (a)(1) 
     shall be in writing, and shall contain the following:
       ``(1) A concise statement of any facts pertinent to such 
     report.
       ``(2) An explanation of the significance of the 
     intelligence activity or intelligence failure covered by such 
     report.
       ``(c) Standards and Procedures for Certain Reports.--The 
     Director of Central Intelligence, in consultation with the 
     heads of the departments, agencies, and entities referred to 
     in subsection (a), shall establish standards and procedures 
     applicable to reports covered by subsection (b).''.

     SEC. 306. MODIFICATION OF AUTHORITIES FOR PROTECTION OF 
                   INTELLIGENCE COMMUNITY EMPLOYEES WHO REPORT 
                   URGENT CONCERNS TO CONGRESS.

       (a) Authority of Inspector General of Central Intelligence 
     Agency.--Section 17(d)(5) of the Central Intelligence Agency 
     Act of 1949 (50 U.S.C. 403q(d)(5)) is amended--
       (1) in subparagraph (B), by striking the second sentence 
     and inserting the following new sentence: ``Upon making the 
     determination, the Inspector General shall transmit to the 
     Director notice of the determination, together with the 
     complaint or information.''; and
       (2) in subparagraph (D)(i), by striking ``does not 
     transmit,'' and all that follows through ``subparagraph 
     (B),'' and inserting ``does not find credible under 
     subparagraph (B) a complaint or information submitted under 
     subparagraph (A), or does not transmit the complaint or 
     information to the Director in accurate form under 
     subparagraph (B),''.
       (b) Authorities of Inspectors General of the Intelligence 
     Community.--Section 8H of the Inspector General Act of 1978 
     (5 U.S.C. App.) is amended--
       (1) in subsection (b), by striking the second sentence and 
     inserting the following new sentence: ``Upon making the 
     determination, the Inspector General shall transmit to the 
     head of the establishment notice of the determination, 
     together with the complaint or information.''; and
       (2) in subsection (d)(1), by striking ``does not 
     transmit,'' and all that follows through ``subsection (b),'' 
     and inserting ``does not find credible under subsection (b) a 
     complaint or information submitted to the Inspector General 
     under subsection (a), or does not transmit the complaint or 
     information to the head of the establishment in accurate form 
     under subsection (b),''.

     SEC. 307. REVIEW OF PROTECTIONS AGAINST THE UNAUTHORIZED 
                   DISCLOSURE OF CLASSIFIED INFORMATION.

       (a) Requirement.--The Attorney General shall, in 
     consultation with the Secretary of Defense, Secretary of 
     State, Secretary of Energy, Director of Central Intelligence, 
     and heads of such other departments, agencies, and entities 
     of the United States Government as the Attorney General 
     considers appropriate, carry out a comprehensive review of 
     current protections against the unauthorized disclosure of 
     classified information, including--
       (1) any mechanisms available under civil or criminal law, 
     or under regulation, to detect the unauthorized disclosure of 
     such information; and
       (2) any sanctions available under civil or criminal law, or 
     under regulation, to deter and punish the unauthorized 
     disclosure of such information.
       (b) Particular Considerations.--In carrying out the review 
     required by subsection (a), the Attorney General shall 
     consider, in particular--
       (1) whether the administrative regulations and practices of 
     the intelligence community are adequate, in light of the 
     particular requirements of the intelligence community, to 
     protect against the unauthorized disclosure of classified 
     information; and
       (2) whether recent developments in technology, and 
     anticipated developments in technology, necessitate 
     particular modifications of current protections against the 
     unauthorized disclosure of classified information in order to 
     further protect against the unauthorized disclosure of such 
     information.
       (c) Report.--(1) Not later than May 1, 2002, the Attorney 
     General shall submit to Congress a report on the review 
     carried out under subsection (a). The report shall include 
     the following:
       (A) A comprehensive description of the review, including 
     the findings of the Attorney General as a result of the 
     review.
       (B) An assessment of the efficacy and adequacy of current 
     laws and regulations against the unauthorized disclosure of 
     classified information, including whether or not 
     modifications of such laws or regulations, or additional laws 
     or regulations, are advisable in order to further protect 
     against the unauthorized disclosure of such information.
       (C) Any recommendations for legislative or administrative 
     action that the Attorney General considers appropriate, 
     including a proposed draft for any such action, and a 
     comprehensive analysis of the Constitutional and legal 
     ramifications of any such action.
       (2) The report shall be submitted in unclassified form, but 
     may include a classified annex.

     SEC. 308. MODIFICATION OF AUTHORITIES RELATING TO OFFICIAL 
                   IMMUNITY IN INTERDICTION OF AIRCRAFT ENGAGED IN 
                   ILLICIT DRUG TRAFFICKING.

       (a) Certification Required for Immunity.--Subsection (a)(2) 
     of section 1012 of the National Defense Authorization Act for 
     Fiscal Year 1995 (Public Law 103-337; 108 Stat. 2837; 22 
     U.S.C. 2291-4) is amended by striking ``, before the 
     interdiction occurs, has determined'' and inserting ``has, 
     during the 12-month period ending on the date of the 
     interdiction, certified to Congress''.
       (b) Annual Reports.--That section is further amended--
       (1) by redesignating subsection (c) as subsection (d); and
       (2) by inserting after subsection (b) the following new 
     subsection (c):
       ``(c) Annual Reports.--(1) Not later than February 1 each 
     year, the President shall submit to Congress a report on the 
     assistance provided under subsection (b) during the preceding 
     calendar year. Each report shall include for the calendar 
     year covered by such report the following:
       ``(A) A list specifying each country for which a 
     certification referred to in subsection (a)(2) was in effect 
     for purposes of that subsection during any portion of such 
     calendar year, including the nature of the illicit drug 
     trafficking threat to each such country.
       ``(B) A detailed explanation of the procedures referred to 
     in subsection (a)(2)(B) in effect for each country listed 
     under subparagraph (A), including any training and other 
     mechanisms in place to ensure adherence to such procedures.
       ``(C) A complete description of any assistance provided 
     under subsection (b).
       ``(D) A summary description of the aircraft interception 
     activity for which the United States Government provided any 
     form of assistance under subsection (b).
       ``(2) Each report under paragraph (1) shall be submitted in 
     unclassified form, but may include a classified annex.''.

     SEC. 309. ONE-YEAR SUSPENSION OF REORGANIZATION OF DIPLOMATIC 
                   TELECOMMUNICATIONS SERVICE PROGRAM OFFICE.

       Notwithstanding any provision of subtitle B of title III of 
     the Intelligence Authorization Act for Fiscal Year 2001 
     (Public Law 106-567; 114 Stat. 2843; 22 U.S.C. 7301 et seq.), 
     relating to the reorganization of the Diplomatic 
     Telecommunications Service Program Office, no provision of 
     that subtitle shall be effective during the period beginning 
     on the date of the enactment of this Act and ending on 
     October 1, 2002.

     SEC. 310. PRESIDENTIAL APPROVAL AND SUBMISSION TO CONGRESS OF 
                   NATIONAL COUNTERINTELLIGENCE STRATEGY AND 
                   NATIONAL THREAT IDENTIFICATION AND 
                   PRIORITIZATION ASSESSMENTS.

       The National Counterintelligence Strategy, and each 
     National Threat Identification

[[Page 22012]]

     and Prioritization Assessment, produced under Presidential 
     Decision Directive 75, dated December 28, 2000, entitled 
     ``U.S. Counterintelligence Effectiveness--Counterintelligence 
     for the 21st Century'', including any modification of the 
     Strategy or any such Assessment, shall be approved by the 
     President, and shall be submitted to the appropriate 
     committees of Congress.

     SEC. 311. PREPARATION AND SUBMITTAL OF REPORTS, REVIEWS, 
                   STUDIES, AND PLANS RELATING TO DEPARTMENT OF 
                   DEFENSE INTELLIGENCE ACTIVITIES.

       (a) Consultation in Preparation.--The Director of Central 
     Intelligence shall ensure that any report, review, study, or 
     plan required to be prepared or conducted by a provision of 
     this Act, including a provision of the classified Schedule of 
     Authorizations or a classified annex to this Act, that 
     involves the intelligence or intelligence-related activities 
     of the Department of Defense shall be prepared or conducted 
     in consultation with the Secretary of Defense or an 
     appropriate official of the Department designated by the 
     Secretary for that purpose.
       (b) Submittal.--Any report, review, study, or plan referred 
     to in subsection (a) shall be submitted, in addition to any 
     other committee of Congress specified for submittal in the 
     provision concerned, to the following committees of Congress:
       (1) The Committees on Armed Services and Appropriations and 
     the Select Committee on Intelligence of the Senate.
       (2) The Committees on Armed Services and Appropriations and 
     the Permanent Select Committee on Intelligence of the House 
     of Representatives.

                 TITLE IV--CENTRAL INTELLIGENCE AGENCY

     SEC. 401. ONE-YEAR EXTENSION OF CENTRAL INTELLIGENCE AGENCY 
                   VOLUNTARY SEPARATION PAY ACT.

       Section 2 of the Central Intelligence Agency Voluntary 
     Separation Pay Act (50 U.S.C. 403-4 note) is amended--
       (1) in subsection (f), by striking ``September 30, 2002'' 
     and inserting ``September 30, 2003''; and
       (2) in subsection (i), by striking ``or 2002'' and 
     inserting ``2002, or 2003''.

     SEC. 402. MODIFICATIONS OF CENTRAL SERVICES PROGRAM.

       (a) Annual Audits.--Subsection (g)(1) of section 21 of the 
     Central Intelligence Agency Act of 1949 (50 U.S.C. 403u) is 
     amended--
       (1) by striking ``December 31'' and inserting ``January 
     31''; and
       (2) by striking ``conduct'' and inserting ``complete''.
       (b) Permanent Authority.--Subsection (h) of that section is 
     amended--
       (1) by striking paragraph (1);
       (2) by redesignating paragraphs (2) and (3) as paragraphs 
     (1) and (2), respectively;
       (3) in paragraph (1), as so redesignated, by striking 
     ``paragraph (3)'' and inserting ``paragraph (2)''; and
       (4) in paragraph (2), as so redesignated, by striking 
     ``paragraph (2)'' and inserting ``paragraph (1)''.

  The ACTING PRESIDENT pro tempore. The Senator from Florida.
  Mr. GRAHAM. Mr. President, with my friend and colleague, Senator 
Shelby, I bring to the Senate S. 1428, the Intelligence Authorization 
Act for the fiscal year 2002.
  The tragic events of the past months and the reality that our Nation 
is engaged in a war against global terrorism make this year's 
intelligence authorization bill especially important. We all realize 
that good and timely intelligence is our first and sometimes our only 
line of defense against terrorism.
  It is not enough for us to attempt to determine who was the culprit 
and to bring that culprit to justice. What the American people want 
most is the capability to prevent acts of terrorism, which necessitates 
the best intelligence information on a timely basis so that actions to 
interrupt terrorist activities can take place before more Americans are 
attacked.
  To accomplish this prevention of terrorism strategy, we must provide 
our intelligence community with the resources and the authorities it 
needs to meet the expectations of the American people.
  Many of those authorities were contained in the antiterrorism act 
which the President signed the last Friday of October. Today we are 
going to be talking about the resources that will give life to those 
authorities and to the ongoing activities of the intelligence 
community.
  Our Select Committee on Intelligence marked up this bill on September 
6, submitted it to the Armed Services Committee, and the Armed Services 
Committee has now reported the bill as submitted.
  Even though we took legislative action before September 11, we noted 
at the time that international terrorism was not a crisis--with it, the 
connotation that it is a short-term passing phenomenon--rather, 
international terrorism is a condition with which we will have to deal 
on a long-term basis.
  The committee strongly encouraged the intelligence community to 
orient itself accordingly by implementing policies under the control of 
the Director of Central Intelligence for regulating the various roles 
of the elements of the intelligence community that participate in the 
fight against terrorism. To that end, our legislation authorizes 
activities that will rebuild the foundation of our intelligence 
community so we can meet our long-term challenges.
  In the process of preparing this year's intelligence authorization 
bill, the committee spent considerable time reviewing the current 
status of the intelligence community.
  At this point, I recognize our vice chairman, Senator Shelby. He, of 
course, had been the chairman of this committee for a considerable 
period of time and started much of this process of in-depth review of 
the intelligence community which then put us in a position to take 
advantage of that work to provide what today will be some of the 
prescriptions based on the diagnosis of the problems. I particularly 
recognize Senator Shelby and the work in which he led the committee and 
our staff for many months.
  As a result of this review, we concluded that the intelligence 
community has been underfunded over the past decade--basically, the 
decade since the fall of the Berlin Wall--and its ability to conduct 
certain core missions had deteriorated.
  In order to correct these deficiencies, the committee identified four 
priorities to receive special emphasis in this year's bill: One, 
revitalization of the National Security Agency; two, correcting 
deficiencies in human intelligence; three, addressing the imbalance 
between collection and analysis; and four, providing sufficient funding 
for a robust research and development series of initiatives. These four 
priorities underpin the work of the intelligence committee in all 
areas, including counterterrorism.
  The committee believes that providing additional resources in these 
priorities is critical to assuring that the intelligence community is 
capable of providing our political and military decisionmakers with the 
accurate and timely intelligence they require to make the best 
decisions in the interest of the American people.
  By providing proper resources and attention to these four priorities, 
we will be able to support effectively the requirements placed on the 
intelligence community, including fighting global terrorism, but also a 
list of other challenging responsibilities: countering the 
proliferation of weapons of mass destruction and their delivery system; 
stopping the flow of illicit narcotics; and understanding the 
capabilities, potential, and intentions of potential adversaries and 
foreign powers.
  It is important to note that the committee recognizes that a 
consistent and predictable funding stream is necessary to rebuild and 
maintain these priority areas.
  In preparing this year's legislation, the committee outlined a 5-year 
plan for each of these priorities. We believe this plan is consistent 
with the capacity of the various agencies within the intelligence 
community to absorb these additional funds and use them effectively, 
and that will result in a substantial new foundation under our 
intelligence community over the next 5 years in order to meet the 
challenges of the next decades. We know that our commitment to rebuild 
our intelligence community must be sustained over the long-term or our 
efforts this year will be wasted.
  Let me briefly explain what we are doing in each of these four 
priority areas.
  First, we are continuing the revitalization of the National Security 
Agency, or the NSA. The committee, under the leadership of Senator 
Shelby, has been pressing for this revitalization over the past 3 
years. The NSA is the agency of our intelligence community

[[Page 22013]]

that is responsible for assuring the security of United States 
communications, as well as collecting foreign electronic signals. In 
the parlance of intelligence, this is the signals agency.
  Five years from now, the NSA must have the ability to collect and 
exploit electronic signals in a vastly different communications 
environment than that in which we spent most of the second half of the 
20th century. Along with significant investment in technology, this 
means closer collaboration with clandestine human collectors.
  If I could explain briefly, during the Cold War, the United States 
became extremely adept at intercepting electronic communications. Our 
system was largely based on communications that would move over the 
airwaves. We would put a listening device between the sender and 
receiver and could absorb massive amounts of information with relative 
impunity.
  Today, the computer and telecommunication systems that NSA employees 
will be attempting to intercept are much more difficult because they do 
not use the old over-the-airwaves system. To have the same level of 
electronic surveillance today that we did even 10 years ago is going to 
require a significant investment in new technology. I mentioned, also, 
the linkage to human intelligence. It was relatively easy to eavesdrop 
on the old communication technology. The new communication technologies 
will frequently require a human being to first gain access to the 
machine that you are trying to surveil, and then have that person who 
has gained access have sufficient technical capacity to be able to 
install the devices that are necessary to gain the information. So we 
are going to have to have a new generation of human intelligence that 
has a significantly higher component of technical expertise, especially 
in the communications area.
  The analysts--the ones who take this information that is collected--
must have sophisticated software tools to allow them to fully exploit 
the amount of data that will be available in the future. So our first 
objective is a continuation of the 3-year effort to revitalize the 
National Security Agency.
  Second, we must correct deficiencies in our human intelligence 
capabilities. In 5 years, our human intelligence collection efforts 
must be designed to meet the increasingly complex and growing set of 
human intelligence collection requirements.
  Most of the history of our intelligence community is since the Second 
World War. During World War II, we established America's first 
professional intelligence agency under the direction of the military. 
As soon as the war was over, it was disbanded. Two years later, 
President Truman, recognizing the rise of the Soviet Union, asked the 
Congress to establish a civilian agency and designate a director of 
central intelligence. Under that director, there were a number of 
agencies, such as the Central Intelligence Agency. For the next 40 
years, we focused on one big target: the Soviet Union and its Warsaw 
pact allies.
  As I indicated, in the area of signals intelligence, we became very 
adept at listening to that big target. People were speaking basically 
in Russian. It was a culture that we understood and with which we had a 
long association since John Quincy Adams was our Ambassador to the 
czarist court in St. Petersburg.
  Now, in the post-Berlin Wall period, we are dealing with a wide 
diversity of targets, not just one. Many of these are targets with 
which we have not had a great deal of national history, and they speak 
many languages. In Afghanistan, for instance, in addition to English 
and Arabic, there are at least six major domestic languages. We are 
very deficient in our capabilities as a nation in many of these 
languages.
  We must increase the diversity of our human intelligence, our spies. 
We must recruit more effectively to operate in many places around the 
world where U.S. interests are threatened. The human intelligence 
system must be integrated into our other collection systems, 
particularly, as I indicated, with our National Security Agency, in 
order to gain effective access to new communications technology.
  In addition, the Director of Central Intelligence must conduct a 
rigorous analytical review of human intelligence collection 
requirements in the future so that we can be proactive with the 
resources necessary to meet those requirements. The Director of Central 
Intelligence must implement a performance measurement system to assure 
that our collection efforts are meeting the highest priority needs of 
our ultimate customers for intelligence--the President and military 
decisionmakers.
  Our third priority is addressing the growing imbalance between 
collection and analysis. Even with the deficiencies that I have 
mentioned in signals intelligence and human intelligence, we are still 
collecting a massive amount of information on an hourly basis. But the 
percentage of this collected information to that which is analyzed and 
converted into effective intelligence has been steadily declining since 
1990. Collection systems are becoming more and more capable as our 
investment in analysis erodes. This disparity threatens to overwhelm 
our ability to analyze and use the information collected.
  The nightmare of the review of the events of September 11 would be if 
we find that there was a wiretap, for instance, on a foreign resident 
whom we had reason to suspect might be involved in some potential 
terrorist plot against the United States but that wiretap had not been 
listened to, translated from its foreign language--frequently it is an 
encrypted foreign language--into English and then analyzed in terms of 
what did it mean in terms of American security, and then that analysis 
is transferred to an effective law enforcement agency which could do 
something about the threat to American security. That nightmare 
underscores the importance of having the adequate capacity to analyze 
and convert information into intelligence.
  To address this problem, the committee has added funds for the 
Assistant Director of the Central Intelligence Agency for Analysis and 
Production to finance promising new analytical initiatives that will be 
beneficial across the intelligence community.
  The amount authorized is a downpayment on a 5-year spending profile 
to rebuild the community's all-source analytical capability. The words 
``all-source'' refer to the fact that today there is a growing volume 
of information which is not clandestine, which is available through the 
newspapers, through other forms of public information, through the 
Internet. The challenge for the analysts of today is to take that open-
source information and add to it the clandestine information gathered 
by our variety of sources and then produce a final intelligence 
document which will add to the ability of the ultimate decisionmaker, 
whether it is a military officer planning a combat action or whether it 
is the President of the United States attempting to set a strategic 
direction for American foreign policy. That decisionmaker will be in a 
better position to make an informed judgment to benefit the people of 
America.
  The committee has also included funding to implement the National 
Imagery and Mapping Agency, known as NIMA, which is the agency that 
collects imagery for intelligence purposes. We will fund internal 
modernization plans to support this imagery analysis associated with 
the future imagery architecture of our satellite system.
  The fourth and final priority for the intelligence community is 
providing additional funding for a robust research and development 
initiative. Over history, one of the hallmarks of American intelligence 
has been its leadership role in world technology. The U-2, which was 
groundbreaking in terms of aviation technology, was built by the CIA in 
just a matter of weeks when it was recognized that we needed to have an 
overhead capacity to observe the Soviet Union, particularly during the 
period that the Soviet Union was accelerating its nuclear program.
  Many of the telecommunications advances we now utilize and take for 
granted were first developed by the National Security Agency as part of 
our intelligence effort.

[[Page 22014]]

  Over the decade since the fall of the Berlin Wall, it has been stated 
that the intelligence community has often used its research and 
development budget as a bill payer for funding shortfalls in other 
programs and that we have sacrificed the modernization and the 
innovation of technology in the process.
  The committee has outlined a plan to reverse the intelligence 
community's declining investment in advanced research and development. 
The committee's classified annex includes a requirement for a review of 
several emerging technologies to determine what will provide the best 
long-term return on our investment.
  The committee also encourages a symbiotic relationship between the 
intelligence community and the private sector using innovative 
approaches, such as the CIA's In-Q-Tel. In-Q-Tel is a venture capital 
fund, largely funded by the U.S. intelligence community, to stimulate 
new technologies through private sector entrepreneurs. It shows great 
promise.
  I should also mention that there is a fifth priority we have 
identified but to which we have not yet given the specific emphasis in 
this year's legislation as we will in the next. This area is referred 
to as MASINT. It is the newest form of intelligence collection; that 
is, the collection of measurements and signatures intelligence.
  MASINT encompasses a variety of technical and intelligence 
disciplines that are particularly important in countering the 
proliferation of weapons of mass destruction and their delivery system. 
While the committee recognizes the importance of this vital area of 
intelligence, we are awaiting the completion of a community-wide review 
of our MASINT capabilities which was required by the fiscal year 2000 
intelligence authorization bill. This study will include 
recommendations for building a robust MASINT capability that will meet 
the challenges of the 21st century.
  Admiral Wilson, the Director of the Defense Intelligence Agency, is 
leading this effort and has assured the committee this review will be 
completed and forwarded to the Congress in time to be considered as we 
prepare next year's authorization bill. We expect that rebuilding our 
MASINT capability will be a priority item in next year's legislation.
  I am confident we have outlined a 5-year plan that will rebuild and 
reenergize our intelligence community so that it can meet the 
challenges before it. The events of September 11 have increased the 
complexity as well as the quantity of those challenges to our 
intelligence community. I urge my colleagues to support this 
legislation and help it move to the President's desk as expeditiously 
as possible so that the resources we are authorizing can get to the 
community which needs them.
  I conclude by thanking some of those who have helped in the 
production of this important legislation. First, as I have indicated, 
much of this legislation is built on the foundation of the work that 
has been done over the past several years by our vice chairman, Senator 
Richard Shelby. He has been a valued partner and a good friend as we 
have worked through this legislation, as well as some of the other 
challenges the committee has faced this year. The members of the 
committee have played an active and constructive role in the 
development of this legislation.
  Our staff director, Al Cumming, our deputy director, Bob Filippone, 
and chief counsel, Vicki Divoll, have led the effort to put this bill 
together, as have our budget director, Melvin Dubee, chief clerk, 
Kathleen McGhee, and security director, Jim Wolfe.
  I might say, our security director has been especially challenged in 
the last few weeks as our offices are in the hot zone of the Hart 
Building, and we have been evacuated for the past 3 weeks while still 
maintaining security over a large volume of very sensitive documents.
  I also thank Senator Shelby's staff director, Bill Duhnke, for his 
work and assistance in putting this legislation together. This 
committee has had a long history of bipartisanship. We do not have a 
Democratic staff or Republican staff; we have ``a staff,'' and they 
work together effectively to serve the Senate and the American people.
  We have faced some unique challenges this year. The shift of control 
in the Senate was handled professionally and smoothly by our members as 
well as our staff. I again thank Senator Shelby for his great 
contribution to that effort.
  The comprehensive review of the defense and intelligence budgets 
caused us to receive the administration's budget request later than 
normal. This required our staff to work through the August recess and 
over the Labor Day weekend to prepare for our September 6 markup.
  The anthrax contamination in the Hart Building has forced us out of 
our offices for an extended period of time. Again, our staff has met 
the challenge and continues to fulfill its obligations under these 
challenging circumstances.
  I thank Mike DeSilvestro and his staff in the Office of Senate 
Security who have handed over some of their space and have shared their 
offices with our committee.
  I also thank Congressman Porter Goss, the chairman of our House 
counterpart committee, and his staff who have been equally 
accommodating.
  I am deeply indebted to all of these individuals and to our entire 
committee staff for their dedication, professionalism, and commitment 
to public service.
  I commend to our colleagues in the Senate the legislation which is 
the Intelligence Authorization Act for this fiscal year and urge its 
adoption.
  The PRESIDING OFFICER (Mr. Corzine). The Senator from Alabama.
  Mr. SHELBY. Mr. President, the world is a very different place than 
it was the last time Congress passed an intelligence authorization 
bill. As we all know, we are now at war, but we are not only at war, we 
are in a particular kind of war: A war against global terrorism in 
which the lives of thousands of innocent Americans have already been 
lost.
  This war has turned some of the conventional wisdom on its head. In 
past wars, intelligence agencies served to support the warfighter. In 
this war, however, the intelligence agencies are on the front lines all 
over the world.
  Good intelligence has always been critical in wartime, but the war we 
fight today is an intelligence-driven one to a degree we have never 
seen before. This war has no front lines and the field of combat is 
global.
  Wherever terrorists and their supporters can be found, that is the 
battlefield. Never before have we demanded or have we needed so much 
from our intelligence services. I have been privileged to serve as the 
chairman, and now the vice chairman, of the Senate Intelligence 
Committee. I treasure my relationship with the chairman, Senator 
Graham. He has brought great, steady leadership to the committee. He is 
a veteran of the committee. He has been there a long time, we have 
worked together on a lot of initiatives, and we are going to continue 
to do that.
  Some of what I have learned about our intelligence community over the 
last 7 years that I have been on the committee is very encouraging. It 
has many truly outstanding people doing very good work. Today it is 
working, actually right now, to respond vigorously to the unprecedented 
demands this war places upon it. But our intelligence community has 
changed far less rapidly than the world around it. In too many 
important ways, it remains structured as it was during the cold war.
  The U.S. intelligence services were crucial to our victory in the 
cold war, but times have changed and they keep changing.
  Our intelligence system still remains wedded to the institutional 
fiefdoms and information stovepipes of the past. Our intelligence 
community is still too little of a community and too much of a 
freewheeling federation that lacks effective, centralized control and 
management.
  We have a nominal Director of Central Intelligence who has and 
apparently is resigned to having little authority over the community he 
is supposed to head. Although the press of events since the September 
11 events

[[Page 22015]]

have prompted our agencies to communicate and to cooperate with each 
other much better, we still have a very long way to go before U.S. 
intelligence can effectively meet this new challenge.
  Helping our intelligence community overcome these problems will be a 
challenge for this Congress and the President in the months and years 
ahead. This bill before us today embodies the Senate's continued 
support for the intelligence community, authorizing its appropriations 
for the next fiscal year. It also represents a small first step in what 
will be our role in driving significant reforms in U.S. intelligence, 
by helping set the stage for improved oversight.
  This bill, for example, increases Congress's ability to evaluate 
allegations of wrongdoing within the Central Intelligence Agency by 
requiring the CIA Inspector General to notify the Director of credible 
complaints against the agency.
  Building upon the report our committee recently produced on CIA 
activities in interdicting illegal drug flights in Peru, the bill 
before us also requires special reporting and certifications by the 
President for such interdiction operations.
  Additionally, the bill requires that national counterintelligence 
strategies and threat reports be approved by the President before being 
submitted to the Congress.
  This bill is not a bill to revolutionize the intelligence community. 
That effort will take time, but I believe it is now inevitable. This is 
a bill to keep the intelligence community on an even keel while it 
tries to respond to the challenges it faces today, and while we work to 
help it change in the right ways.
  I have long been a strong supporter of U.S. intelligence, and I am 
pleased that we in the Senate continue to support it with special vigor 
in this time of crisis. We have more to do, however, and Congress will 
continue its tradition of assertive oversight. It must. Today, more 
than ever, we need an intelligence community that is able to overcome 
the tyranny of its conceptual and institutional stovepipes. We need one 
that does not merely respond to our present emergency by doing more of 
the same, just with more money and more people. That will not be 
enough. A bigger and better funded status quo is not good enough. The 
status quo has not and will not serve us well in a world of increasing 
and more diverse threats.
  I believe we need management that is able and willing to fight for 
the intelligence community within the administration and to reach out 
to unconventional thinkers. The time for ``steady as you go'' is over, 
and we need leaders who are not afraid to take on the ossified 
bureaucracies.
  I believe Chairman Graham and I agree that change must come, and it 
will. Again, I commend Chairman Graham for his efforts in getting this 
bill to the Senate today and managing it in a professional way. Senator 
Graham's steady leadership of our committee has been instrumental 
during a turbulent period on Capitol Hill and throughout the Nation. I 
thank him again for his efforts and look forward to continuing our 
close working relationship.
  At the end of the debate on this bill, I urge my colleagues to 
support it. It will permit our intelligence community to continue its 
current operations while we work to lay the foundations for a more 
capable intelligence community that can meet the challenges ahead.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  I have not had the opportunity while in the Senate to serve on the 
Intelligence Committee. It is a tremendous honor to serve on that 
committee. The things worked on in that committee are extremely 
important to our country. They always have been, but even more so the 
last 2 months. I have great admiration and respect for the bipartisan 
manner in which the Senator from Florida and the Senator from Alabama 
have handled this committee, especially during these most difficult 
times.
  I read in this morning's paper there are efforts being made to do 
some consolidation within the intelligence-gathering community in our 
country. As someone not on the inside of what goes on in the 
intelligence community, from the outside it looked like a pretty good 
idea. I think one thing that should be done, and I have spoken both to 
the chairman and the ranking member of the committee, is this country 
needs to recognize terrorism is here for awhile. We as a country need 
to recognize there are certain things we need to do to better prepare 
to handle what these evil people are doing. As a first step, we need to 
consolidate the training of our Nation's first responders as well. I 
believe the Nevada Test is the best place to do that.
  I have spoken, as I said, to the two managers of this bill about this 
ideas. I have also spoken to Governor Ridge, the terrorism czar, about 
this idea. I have spoken to the CIA Director.
  This Nevada Test Site has played an important part in helping our 
nation win the cold war. As you know, I was born and raised in Nevada. 
As a little boy, I can remember getting up in my town of Searchlight 
because we knew an atomic blast was going to go off. We could see this 
bright orange thing in the sky, and then we could feel the force of 
that blast. We could not always feel it because sometimes it would 
bounce over us, but generally we could. Those nuclear devices were set 
off in the desert north of Las Vegas at the Nevada Test Site.
  The Nevada Test Site area is larger than the State of Rhode Island. 
This area has mountains, valleys, dry lakes. It already has a facility 
for testing chemicals. It has been there for a number of years. It has 
worked extremely well. You have large dormitories and restaurants 
handle the first responders who will come to train there.
  The facility also has a network of tunnels through the mountains. 
They were developed originally to set off nuclear devices and they can 
now be used as a place where training could be done. Now they can be 
used to simulate hardened underground bunkers like we saw in Iraq.
  We need a top gun school for training first responders. There is a 
tremendous facility in Alabama at Fort McClellan, but it is limited as 
to what it can handle. We need a facility that can handle all the 
training necessary for first responders. The Nevada Test Site can do 
that. Already, first responders and special operations training is 
occurring there. The energy and water bill we just completed includes 
$10 million to help expand existing capabilities into a national 
antiterrorism center. There is also money in the Commerce-State-Justice 
bill for this.
  A National Center for Combating Terrorism will offer all the people 
and organizations combating terrorism and the local first responders to 
the larger Federal resources a place to come together and train for the 
wars taking place today and in the future. It has it all: Caves, 
tunnels, mountains, valleys. It is very cold in the winter, very hot in 
the summer. The Nevada Test Site, without question, helped us win the 
cold war.
  I hope we will look at the Nevada Test Site. I have a parochial 
interest, no question. It is quite obvious. But I haven't heard anyone 
tell me why this idea is wrong. I think it needs to be done. It is a 
facility that has tremendous potential.
  The Nevada Test Site served our nation and helped it win the cold 
war. It can now help us fight the new wars we face today and will face 
tomorrow.
  I appreciate the consideration the two managers of this bill have 
given me in my conversations with them. I certainly stand ready, as do 
the contractor and the Department of Energy, to make the facility 
available for those purposes.
  The PRESIDING OFFICER. The Senator from Florida.

[[Page 22016]]


  Mr. GRAHAM. I appreciate the remarks our colleague from Nevada, 
Senator Reid, has made regarding the contribution the Nevada Test Site 
has made to our development of weapons that were so critical to our 
success in the cold war and its potential for serving a role in the new 
war against terrorism. I appreciate the Senator's interest in 
increasing our capabilities to wage and win this war. I assure him our 
committee will give full attention to this opportunity. I very much 
appreciate the Senator having brought this to our attention.
  As the Senator from Nevada mentioned at the beginning of his remarks, 
this will be a period of some fundamental questions about the future of 
the intelligence community and how it can be best organized to deal 
with the new world in which we will be living, as opposed to the world 
in which it has spent most of its life to date, which was the world of 
a single enemy that we knew a lot about and that we had considerable 
experience in attempting to understand and respond to.
  Mr. REID. Will the Senator yield?
  Mr. GRAHAM. I yield.
  Mr. REID. The chairman of this committee, the Senator from Florida, 
has been Governor of one of the biggest States in the United States. 
The State of Florida is not only large area-wise but has the fourth or 
fifth largest number of people in America. That gives me confidence 
that the Senator, who has had to administer an extremely large 
government, understands what is happening with our intelligence 
capability. Forty different entities are gathering intelligence 
information.
  I have significant confidence in the Senator from Florida being 
chair. Because of the Senator's administrative experience, he is a 
great legislator, although being a great legislator does not always 
mean being a good administrator. It is extremely important for me to 
hear his thoughts based on experiences as the Governor of the State of 
Florida, and learning how to consolidate our intelligence information. 
I appreciate the Senator being willing to take the chairmanship of this 
most important committee. When the Senator took the chairmanship, he 
had no idea, as any of us, we would be in this war at this time. I look 
forward to improvements being made basically because of our special 
abilities.
  Mr. GRAHAM. I appreciate those kind remarks. We do have a major 
challenge to see that the architecture of our intelligence agencies 
encourages innovative thinking, that the Senator's idea which he brings 
forward today will stimulate.
  I, too, was impressed with the article that appeared in today's 
Washington Post about the recommendations being made to the President 
by a man for whom I have great respect, Gen. Brent Scowcroft, which, as 
reported, will call for a closer collaboration among the intelligence 
agencies. That is something that has long been recommended but 
difficult to achieve because we are asking agencies that have a piece 
of current intelligence jurisdiction to release their hold.
  However, if we are to do things as suggested by the Senator from 
Nevada, new ways of thinking, of training for a new and continuous 
war--not only a war being fought over there but a war that is being 
fought right here on the homeland of the United States--we are going to 
need to have new organizational relationships. Eventually it will be 
the responsibility of the Congress, since it was the Congress which 
created the old architecture, to be the principal architect if we are 
to rebuild our intelligence capabilities to deal with the new 
challenges we face.
  I look forward to working with Senator Reid, Senator Shelby, and our 
colleagues in doing that in the most effective way and to be willing to 
put aside old ideas--not because old necessarily means they are bad 
ideas but be willing to challenge those ideas with new thinking to 
prepare to deal with new challenges.
  Mr. NELSON of Florida. Mr. President, will the Senator yield?
  Mr. GRAHAM. I yield.
  Mr. NELSON of Florida. Mr. President, I want to echo the assistant 
majority leader's comments about the right man who rises to the top for 
the times.
  Just to give an example in addition to the one the Senator from 
Nevada has already given about our former Governor having that unique 
experience because of his experience in State government, he 
understands now, uniquely, the vulnerability of the 300 deep-water 
ports that we have in this Nation because Florida itself has 14 deep-
water ports.
  We have passed out of our Commerce Committee a port security bill. It 
is coming to the floor, hopefully, very soon. Senator Graham and I and 
Senator Hollings will be offering an amendment to significantly 
increase the Federal grants for security and loan guarantees to the 
tune of some several hundreds of millions of dollars of grants, and to 
the tune, over a 5-year period, of some $3.3 billion in loan 
guarantees. To do what? To try to make those ports more secure through 
badging, through sophisticated detection devices, through fencing, 
through guards, through gates, in addition to what the Coast Guard is 
already doing.
  It is just another example of the leadership offered by the former 
Governor of Florida, now our senior Senator from Florida, and the 
chairman of the Intelligence Committee.
  I wanted to add that one comment to the comments of the Senator from 
Nevada about the right man for the time. I would only say: Accolades to 
his ranking Republican on the committee as well, Senator Shelby, who 
has been a dear personal friend of mine since we came to Congress 
together in 1978. I am confident in the leadership of our Intelligence 
Committee.
  I yield the floor.
  Mr. GRAHAM. Mr. President, obviously I am very touched by those kind 
remarks by my friend, colleague, and fellow Floridian, Senator Nelson.
  To speak to the broader point he made, using the example of seaport 
security, one of the things we as a nation cannot allow ourselves to 
lapse into is a practice of waiting until one of our infinite number of 
vulnerabilities has actually been attacked before we start the process 
of attempting to make it more secure. We have been attacked in the last 
2 months basically in two areas: The conversion of commercial aircraft 
into weapons of mass destruction, and the use of the Postal Service to 
distribute anthrax. We don't know yet what the origin of that second 
attack was. We are now responding.
  We have passed massive economic assistance to the airline industry. 
We have now in conference legislation passed by both Houses in the area 
of airline and airport security. We will soon have a major bioterrorism 
bill before us, largely in response to the anthrax issue. Our Postal 
Service is now moving at the fastest possible pace to install 
technologies to check our mail to see that it is safe.
  While we are doing that, and that is certainly appropriate, we cannot 
forget all these other vulnerabilities. If you had asked me 5 years ago 
what I thought was the more likely to be the target of a terrorist, a 
commercial airline or a container delivered at an American seaport, I 
would have said the container. Why would I have said that? Because the 
security standards in our seaports are substantially less rigorous than 
at airports and airlines, even before September 11.
  Just a few statistics. We have 361 seaports, as Senator Nelson has 
outlined. Into those 361 seaports today and every day are delivered an 
average of 16,000 containers from noncontiguous nations; that is, not 
from Mexico or Canada but from the rest of the noncontiguous world. Of 
those 16,000, less than 3 percent are subject to close inspection. If a 
terrorist wanted to use one of those containers as a weapon of mass 
destruction, as 757s were used as weapons of mass destruction on 
September 11, frankly his chances of detection would be minimal.
  I have gotten some criticism making that same statement, suggesting 
that I am disclosing some confidential information of which the 
terrorists might rush to take advantage. I am certain the terrorists 
are well aware of those statistics because they have been widely 
reported.
  Mr. President, I ask unanimous consent to have printed in the Record 
an

[[Page 22017]]

article which appeared in yesterday's New York Times, based on their 
analysis of one relatively moderate-size port in America, the one at 
Portland, ME, and its vulnerabilities.
  There being no objection, the article ordered to be printed in the 
Record, as follows:

                [From The New York Times, Nov. 7, 2001]

    The Seaports--On the Dock, Holes in the Security Net Are Gaping

                         (By Peter T. Kilborn)

       Portland, Me., Nov. 3.--The big cargo ships and ships with 
     truck-size containers pull up to docks where no one inspects 
     their contents. Brown tankers from the Middle East steam into 
     the bay, slide under a drawbridge that bisects the Fore River 
     and tie up by terminals, tanks and a pipeline that carries 
     the oil that heats Montreal.
       In warmer weather, cruise ships like the QE2 and the Royal 
     Empress with up to 3,000 tourists park at piers on busy 
     Commercial Street, right next to Portland's lively downtown.
       For Portland's officials, the scene, at least before Sept. 
     11, was a point of pride, the sign of a strong economy and a 
     proud maritime heritage. Now it evokes fear and uncertainty. 
     The unscrutinized containers, the bridge, the oil tanks, the 
     dormant but still-radioactive nuclear power plant 20 miles 
     north of the harbor--all form a volatile mix in a time of 
     terrorism.
       The usual barrier is chain-link fence. ``It keeps out the 
     honest people,'' said Paul D. Merrill, owner of a cargo 
     terminal. ``That's what it comes down to.'' The Port of 
     Portland, Police Chief Michael Chitwood said, ``is a 
     tinderbox.''
       Remote as it seems on the northeastern ear of the nation, 
     Portland is not particularly exceptional among the nation's 
     361 seaports. The ports of New York and New Jersey, Miami, 
     Long Beach, Calif., and Los Angeles are much bigger and 
     busier. Yet like most ports, the one here is near a 
     population center and it is packed with bridges, power 
     plants, and combustible and hazardous materials.
       All that makes ports among the country's greatest points of 
     vulnerability.
       Even so, no national plan exists to thwart attacks against 
     them, to respond if one happens or to organize a community 
     afterward. No federal agency regulates seaports the way the 
     Federal Aviation Administration manages airports. They are 
     managed locally, often by the private businesses that use 
     them. All are overseen by a patchwork of agencies, already 
     stretched thin, some monitoring hundreds of ships a day.
       Compared with the attention being given to airline 
     security, security at the ports has gone largely unnoticed, 
     even though they handle 95 percent of the cargo that enters 
     from places other than Canada and Mexico. A bill to tighten 
     port security has passed a Senate committee. The full Senate 
     could vote on the bill within two weeks, but the debate has 
     yet to begin in the House of Representatives.
       ``People in Congress don't have any idea it's a problem,'' 
     said Senator Ernest F. Hollings, Democrat of South Carolina, 
     who is chairman of the Commerce Committee and co-sponsor of 
     the bill with Senator Bob Graham, Democrat of Florida. ``I've 
     got folks who don't have ports in their states. It's hard to 
     get it in front of their heads.''
       Port officials are aware of various threats, like using a 
     tanker or fuel-loaded cruise liner as a bomb, secreting 
     weapons and explosives in containers, hijacking a ship and 
     ramming it into a nuclear plant on the shores of a river or 
     infesting a cargo of grain or seeds with a biological weapon.
       Given the potential dangers, the security measures in place 
     are far from adequate.
       ``We're looking for needles in a haystack,'' said Dean 
     Boyd, a spokesman for the United States Customs Service. 
     ``And the haystack has doubled.'' International trade has 
     doubled since 1995 while the number of people to handle 
     inspections has remained roughly constant, he said.
       The Coast Guard patrols coasts and harbors but little of 
     the land or the cargo. It checks out ships coming in from the 
     open sea but has no way of thoroughly searching everything 
     that comes by.
       The Customs Service says it can inspect only 2 percent of 
     the 600,000 cargo containers that enter seaports each a day 
     on more than 500 ships. Of the 2 percent, many are not 
     inspected until they reach their final destination, sometimes 
     on the opposite coast, where they travel unguarded by rail, 
     barge and truck.
       Last year, a government commission on crime and security at 
     seaports found similar weaknesses. The commission surveyed 12 
     major ports including those of New York and New Jersey, 
     Miami, Los Angeles, New Orleans and Charleston.
       While withholding their identities for security reasons, 
     the report found that only three of the ports tightly 
     controlled access from the land and that access from the 
     water was completely unprotected at nine of them.
       The report also emphasized the hazards posed by materials 
     unloaded from ships. ``The influx of goods through U.S. ports 
     provides a venue for the introduction of a host of 
     transnational threats into the nation's infrastructures,'' 
     the report said.
       A tangled chain of authority further compromised security, 
     the commission said, a point echoed by the authorities in 
     Portland.
       ``No one's in charge,'' said Jeffrey W. Monroe, director of 
     transportation for the city. ``There's no central guidance.''
       And ports have a strong economic incentive to limit 
     control. With the taxes that cruise ships, tankers and other 
     businesses pay, ports are the lifeblood of their communities. 
     Port authorities' principal constituencies are private 
     industry and economic development offices, whose mission is 
     growth, not security. ``They win if they move more cargo,'' 
     Senator Hollings said.
       In Portland, the seaport has been a boon, generating 
     millions of dollars a year in revenues, Mr. Monroe said that 
     in the past year the bulk cargo business grew 10 percent, 
     passenger traffic and oil imports both rose by 20 percent. 
     But the stalling economy and now the cost of heightened 
     security have wiped out nearly all that the seaport and 
     airport contribute to the city budget.
       In Congress, the Hollings-Graham legislation would help 
     cities meet some of the cost of securing their ports. It 
     would give the Coast Guard regulatory control over ports, 
     require background checks of waterfront workers and provide 
     for 1,500 new Customs agents.
       Before the September attacks, the seaport industry's 
     principal lobby, the American Association of Port 
     Authorities, fought the legislation, arguing that it would 
     impose one-size-fits-all security systems for all seaports.
       Though the group now supports many provisions of the bill, 
     it still has questions over the matter of who controls 
     security. Meanwhile, ports have taken their own steps to 
     improve security. In Florida, Gov. Jeb Bush announced he 
     would deploy the National Guard to oversee four of the 
     state's busiest ports. In California, Gov. Gray Davis 
     tightened security around bridges.
       In Portland, officials and businesses have taken similar 
     steps. Minutes before the drawbridge opens for a tanker, 
     police officers arrive to monitor both sides of the bridge. 
     Fences are being repaired and installed.
       At the city's International Marine Terminal, where from May 
     to October the Scotia Prince carries 170,000 passengers on 
     11-hour cruises between Portland and Yarmouth, Nova Scotia, 
     visitors used to roam freely around the pier. Now only 
     passengers are allowed there, and then only after they and 
     their baggage are cleared by metal detectors and bomb dogs. 
     The pilings below the pier are now illuminated at night.
       For its part, the Coast Guard now focuses primarily on 
     harbor security. It requires vessels weighing more than 300 
     tons to notify the port 96 hours before arrival. The big 
     ships also must fax crew lists, said Lt. Cmdr. Wyman W. 
     Briggs, executive officer of the guard's facilities in 
     Portland. The crews of fishing boats must carry picture ID's.
       For all this, much tighter seaport security may prove 
     impossible. Seaports cannot be secured like airport, said 
     Brian Nutter, administrator for the Maine Port Authority in 
     Augusta. ``You can't fence off the whole state of Maine,'' 
     Mr. Nutter said.

  Mr. GRAHAM. I think what we need to do is, yes, we need to pass the 
Seaport Protection Act and others. But our mentality needs to be one of 
anticipation and prevention, not one of waiting to be hit and then 
respond. The adoption of the Seaport Protection Act would be an example 
that we have not lapsed into a defensive mode but that we are on the 
offensive; that we are preparing to protect the American people before 
they are subject to attack.
  Mr. NELSON of Florida. If the Senator will yield, I only underscore 
the importance of his comments about the vulnerability of our deep-
water seaports which are so often co-located with military facilities. 
As we look at the Port of Jacksonville, there are major military 
facilities; Pensacola, the same; Port Canaveral, right adjacent to the 
Cape Canaveral Air Force Test Station as well as the Trident submarine 
turning base.
  As Senator Graham has pointed out, we have a real risk. How do we go 
about determining what is in the container that might have started at 
Singapore, comes to the Port of Lisbon, is transferred around onto a 
different ship, and ultimately comes into one of our American ports?
  On the reverse we have had quite a bit of success. Indeed, through a 
machine called a gamma ray machine which was set up initially to try to 
stop the smuggling and stealing--smuggling of stolen automobiles--the 
gamma ray machine takes an x-ray picture of the container without the 
harmful side effects of radiation from x-rays. You can see exactly what 
is in the container as the truck pulls up between two poles. The 
picture is there. The guard can check that against the

[[Page 22018]]

manifest of what is supposed to be in the truck.
  Lo and behold, on the east coast of Florida there are some four or 
five gamma ray machines now set up, and it has virtually stopped all of 
the smuggling of stolen automobiles going out of those ports.
  If we can do that on the outbound cargo, clearly we have to figure 
out something for the inbound cargo because the vulnerability is there.
  I appreciate so much the leadership of my senior Senator from 
Florida. It is a privilege for me to join with him and Senator Hollings 
to try to enhance this legislation as it comes to the floor.
  Mr. GRAHAM. Mr. President, if I could just conclude with, again, my 
appreciation for the very generous remarks of my friend and colleague, 
and also to relate what he has just said to the subject that is before 
us, which is the intelligence authorization bill.
  The PRESIDING OFFICER (Mr. Nelson of Florida). The Senator from 
Florida.
  Mr. GRAHAM. The fact is, even with the sophisticated technology that 
our now-Presiding Officer just described, there is still a tremendous 
burden on intelligence.
  I visited some time ago in the course of my interest in seaport 
security what is the largest port in the world at Rotterdam, which uses 
a very advanced level of technology. But they can only inspect a 
relatively small percentage of all the containers that come into that 
port. So they must depend upon intelligence information to allow them 
to identify which of those thousands of containers that are arriving 
every day at Rotterdam are the ones that are the most suspicious and, 
therefore, need to have this advanced technology applied.
  While part of the Sea Port Security Act is going to give, hopefully 
as quickly as possible, to all of our ports significantly better 
technology, we are still going to be relying on intelligence to focus 
on which of those containers to which that technology would need to be 
applied. The legislation before us is a significant step in increasing 
our capability to provide that intelligence to seaports as well as to 
thousands of other American vulnerabilities.
  Mr. ROCKEFELLER. Mr. President, I rise to support S. 1428, which is 
the intelligence authorization bill, and to congratulate particularly 
Senator Bob Graham from the State of Florida for his excellent 
leadership on this whole matter.
  We all know the work of the Intelligence Committee and the work of 
the intelligence community, more particularly, is incredibly important 
at all times and, obviously, after September 11, it has become a matter 
of national survival in many respects. So this is an extremely 
important bill and a very good one.
  We rely on the people in the intelligence community in every way. We 
often do not think about it, although we have thought about it more in 
the last couple of months. They support the U.S. military actions in 
Afghanistan; they work with other countries to track down and arrest 
terrorists and disrupt all kinds of attacks which we may not hear about 
because they did not occur; they assist law enforcement agencies with 
the anthrax investigation; they follow the finances of terrorist 
organizations allowing the Department of the Treasury to freeze assets 
with accurate and proper information, and they are leading the hunt for 
the leaders of al-Qaida.
  The intelligence community has surged its efforts to support this 
war, but it is also now obviously been called on for enormous amounts 
of new resources just to meet the day-to-day requirements they had 
before September 11.
  We continue to collect and analyze counterproliferation, 
counternarcotics and international organized crime. We collect 
intelligence regarding our traditional state adversaries, such as North 
Korea and Cuba, and we keep a very close eye on hot spots around the 
world, obviously including places such as the Middle East.
  There are four priorities in the bill. They should remain our 
priorities. The first is we revitalize the National Security Agency. 
That was done.
  We correct deficiencies in human intelligence. That is being 
addressed.
  We address the imbalance between collection and analysis. We have 
talked about that for a long time.
  We provide sufficient funding for research and development. All of 
those are addressed.
  As I indicated, we need the resources not just now, but there will be 
probably more needs in the future. That is being done through the 
supplemental appropriations process, as it should be, but I just put 
our colleagues on notice this is going to be a continuing situation.
  This is my first year on the Intelligence Committee. I have to say I 
am extraordinarily impressed by the diligence of the committee, by the 
people who are on it, including the Presiding Officer, and the vigor 
and emphasis which they bring to their work. It is a committee that not 
a lot of people know a great deal about, but it does very important 
work.
  I urge my colleagues to support this bill. I thank the Presiding 
Officer, and I yield the floor.
  Mrs. FEINSTEIN. Mr. President, I rise in strong support of Senator 
Graham's bill authorizing appropriations for intelligence for fiscal 
year 2002.
  The Senate Select Committee on Intelligence, on which I serve, and 
which Senator Graham chairs, is a unique expression of the vital role 
the United States plays in the critical field of national security. 
Much of our proceedings are, by necessity, secret, and our committee's 
business is often conducted behind closed doors. That said, I am proud 
of the fact that in this country the activities of the intelligence 
services, so important to national security, but potentially so 
dangerous to our precious civil liberties, are authorized by the 
people's representatives in Congress.
  The bill before us today is the result of that process. Under the 
able leadership of Chairman Graham and Vice Chairman Shelby, the 
Intelligence Committee has delved deeply into the activities of our 
intelligence agencies, reviewing their operational efforts, their 
resource needs, and the legal and regulatory structure within which 
they operate. This bill was crafted in the light of that inquiry, and I 
believe represents a well-conceived and workable plan to support the 
critical intelligence needs of our country.
  Many have said that, after the tragic events of September 11, 
``everything changed.'' That is not completely true, for an effective 
and well-supervised intelligence structure was essential to our 
national security before September 11, and remains so after the 
attacks. What did change, however, is the sense of urgency, and the 
general understanding of the importance of intelligence, particularly 
in the area of terrorism. This bill addresses those needs, and I am 
certain will provide a framework which will allow the intelligence 
community to work towards protecting our Nation from those who would do 
it harm, whether rogue nations or sub-national terrorist groups.
  The bill addresses some of the difficult issues that confronted the 
committee during the past year with balance and firmness.
  It contains language that addresses the specific, and systemic, 
shortcomings which led to the tragedy last spring when a civilian 
airplane was accidentally shot down in the course of a CIA-sponsored 
counterdrug operation. It accomplishes this by requiring the President 
to certify that appropriate safety procedures are in place, adhered to, 
and that the program, should it continue, is necessary to our national 
security.
  The bill contains language directing the Department of Justice to 
perform a thorough review of current law concerning the unauthorized 
disclosure of classified information. This will allow the 
administration to carefully address the pernicious problem of recurring 
unauthorized disclosures in a measured and thoughtful manner. Should it 
be necessary for the Congress to revisit this issue, our efforts will 
be assisted by the results of the Department of Justice review.

[[Page 22019]]

  The bill, and its classified annex, authorizes funding appropriate to 
the extensive, and often expensive, responsibilities we have asked the 
intelligence community to carry out. There has been much said publicly 
about the size and scope of our intelligence budget, and there remains 
reasonable arguments on both sides as to whether the intelligence 
budget should remain classified. However, I want to take this 
opportunity to assure my colleagues, and all Americans, that the 
intelligence budget is not created in a shadowy vacuum, but in a 
process that allows the legislative branch meaningful insight into, and 
final authority on, the intelligence budget.
  Finally, I look forward to working with my colleagues on the 
committee in performing the necessary follow-on to passage of this 
bill--the vigorous oversight of the operational and analytic efforts 
that will carry out the authorized direction contained in this bill.
  The PRESIDING OFFICER. Without objection, the two reported committee 
amendments are agreed to.
  The Senator from New Hampshire.


                           Amendment No. 2114

  Mr. SMITH of New Hampshire. Mr. President, I send an amendment to the 
desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from New Hampshire [Mr. Smith] proposes an 
     amendment numbered 2114.

  Mr. SMITH of New Hampshire. 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:

   (Purpose: To provide for new procedures for the removal of alien 
     terrorists and the protection of United States citizens from 
                        international terrorism)

       At the appropriate place in the bill, insert the following:

     SEC. __. ALIEN TERRORIST REMOVAL ACT OF 2001

       (a) Short Title.--This section may be cited as the ``Alien 
     Terrorist Removal Act of 2001''.
       (b) Findings.--Congress makes the following findings:
       (1) In 1993, international terrorists targeted and bombed 
     the World Trade Center in New York City.
       (2) In 1996, Congress enacted the Antiterrorism and 
     Effective Death Penalty Act, which established the Alien 
     Terrorist Removal Court for the purpose of removing alien 
     terrorists from the United States based on classified 
     information.
       (3) On May 28, 1997, the Court adopted ``Rules for the 
     Alien Terrorist Removal Court of the United States'' which 
     was later amended on January 4, 1999.
       (4) The Court is comprised of 5 United States District 
     Judges who are designated by the Chief Justice of the United 
     States to hear cases in which the United States seeks the 
     removal of alien terrorists.
       (5) On September 11, 2001, terrorists hijacked 4 civilian 
     aircraft, crashing 2 of the aircraft into the towers of the 
     World Trade Center in the New York City, and a third into the 
     Pentagon outside Washington, D.C.
       (6) Thousands of innocent Americans and citizens of other 
     countries were killed or injured as a result of these 
     attacks, including the passengers and crew of the 4 aircraft, 
     workers in the World Trade center and in the Pentagon, rescue 
     worker, and bystanders.
       (7) These attacks destroyed both towers of the World Trade 
     Center, as well as adjacent buildings, and seriously damaged 
     the Pentagon.
       (8) These attacks were by fair the deadliest terrorist 
     attacks ever launched against the United States and, by 
     targeting symbols of America, clearly were intended to 
     intimidate our Nation and weaken its resolve.
       (9) As of September 11, 2001, the United States had not 
     brought any cases before the Alien Terrorist Removal Court.
       (10) The Court has never been used because the United 
     States is required to submit for judicial approval an 
     unclassified summary of the classified evidence against the 
     alien. If too general, this summary will be disapproved by 
     the Judge. If too specific, this summary will compromise the 
     underlying classified information.
       (11) The notice provisions of the Alien Terrorist Removal 
     Court should be modified to remove the barrier to the Justice 
     Department's effective use of the Court.
       (c) Alien Terrorist Removal Hearing.--Section 504(e)(3) of 
     the Immigration and Nationality Act (8 U.S.C. 1534(e)(3)) is 
     amended--
       (1) by striking ``(A) Use.--''.
       (2) by striking ``other than through reference to the 
     summary provided pursuant to this paragraph''; and
       (3) by striking subparagraphs (B) through (F).
       (d) Reports to Congress.--Beginning 6 months after the date 
     of enactment of this Act, and every 6 months thereafter, the 
     Attorney General shall submit a report to Congress on the 
     utilization of the Alien Terrorist Removal Court for the 
     purposes of removing alien terrorists from the United States 
     through the use of classified information.

  Mr. SMITH of New Hampshire. Mr. President, this amendment really has 
two very simple provisions. There exists now what is called an Alien 
Terrorist Removal Court which was set up to remove alien terrorists 
from our country. The problem is no one is using the court. The reason 
for that is we are required under the law to submit to the terrorists a 
summary of the intelligence we gathered on him and how we got it. 
Obviously, if the terrorist gets that information, then the people who 
provided that information are going to be killed or their lives will be 
at risk.
  My amendment provides that an independent Federal judge would take a 
look at the information and decide that it could not be shared but that 
the person should be deported.
  That is the first provision of my amendment.
  The second one provides that every 6 months we get a report back from 
Justice on how the terrorist court is working, how often the court is 
being used, and so forth.
  That is really all there is.
  I want everyone to understand that the amendment is quite simple. We 
are trying to work out an agreement on both sides. So far, that has not 
occurred. In view of the fact that we still have not done that, I am 
going to ask for the yeas and nays on my amendment at this time.
  The PRESIDING OFFICER. Is there a sufficient second?
  At the moment, there is not a significant second.
  Mr. SMITH of New Hampshire. Mr. President, in the way of 
introduction, I applaud the efforts of our intelligence community to 
fight this war against terrorism. Under very difficult circumstances, 
they are doing an outstanding job. They have a tough assignment, not 
knowing from one day to the next where a terrorist may strike. We know 
there is a network of terrorists right now in America. There are a lot 
of brave people in the intelligence community who are working night and 
day to make sure the events of September 11 are never repeated. Of 
course, we can't make those guarantees. The best way to have a 
situation where we can see that it doesn't happen again is to provide 
the support the intelligence community needs to fight this war against 
terrorism.
  My amendment under the intelligence authorization bill is a 
tremendous tool in that fight against terrorism and to see to it that 
aliens are deported--not U.S. citizens, but aliens who are in this 
country participating, if you can believe it, in these networks of 
terrorism. All we are asking for is that they be deported--sent back 
home.
  That is what the amendment does. It will remove provisions from the 
Alien Terrorist Removal Court that render the court ineffective and 
useless.
  Let me repeat again that today under the Alien Terrorist Removal 
Court, if we gather information that an alien terrorist may be 
committing a crime, or is prepared to commit a crime, or is getting 
ready to do some terrorist act against the United States, that 
individual must have the intelligence summary presented to him, which 
could and many times does compromise the sources and methods of 
gathering intelligence.
  My amendment would say that a judge would look at that summary, and 
that judge would say, yes, this would compromise their sources and 
methods. So we will deport the alien--not a U.S. citizen--based on the 
recommendation of the judge.
  The second provision is that we get a report every 6 months on how 
often this court is being used. That will allow us to track the 
effectiveness of how this court is working. Right now it is not working 
at all. We have a court, and no one is using it because the 
intelligence community simply will not

[[Page 22020]]

compromise their people, nor should they, nor their sources and 
methods.
  In 1994, to provide a little history, I sponsored legislation to 
create this court. The legislation established specific procedures for 
the removal of alien terrorists without disclosing sensitive 
intelligence data and also protected those sources and methods. I 
didn't get anywhere with it in 1994. In 1996, I succeeded in getting a 
version of this legislation added to the Antiterrorism Act. That bill 
became law. The court was established.
  The intent was to set up a Federal court that specialized in the 
identification and expulsion of aliens who are terrorists from the 
territories of the United States. But my idea never became reality. We 
created the court, and nobody used the court because of this business 
about the summary having to be provided under the law. We need to go to 
the next level beyond the court. We created the court. Now let's allow 
the court to work and allow the intelligence community to do what it 
has to do to get these people deported.
  The Alien Terrorist Removal Court is staffed with judges and is 
empowered to prosecute alien terrorists. As you well know, since that 
1996 law was passed there have been zero prosecutions.
  It is hard to believe, especially today, that this mechanism to fight 
terrorism has yet to be utilized by the Federal Government to prosecute 
even one alien terrorist. That is the part that frustrates me. It is 
not a comment against the intelligence community. They are put in the 
position. They come in, and they say, we have this information that 
this person or that person is going to do something. They are damned if 
they do and damned if they don't because if they provide the 
information, they compromise their own sources and methods. If they 
don't provide it, we can't deport them. So they stay.
  I believe there are some aliens we have been able to deport. 
Perhaps--who knows. We will never know--some of the ones who committed 
that heinous act on September 11.
  But there are legitimate reasons the court has not prosecuted any 
cases. Some of the reasons are from weakening amendments that were made 
prior to the bill becoming law, which also was disturbing. But I don't 
want to go back and criticize. Hindsight is cheap, and armchair-Monday-
morning quarterbacking is not what I want to do. I don't want to go 
back and complain to any Senator or to any Congressman about weakening 
legislation. But we are in a different world now. The world has 
changed. September 11 changed us forever. We need to respond to that 
change and be willing to take a new look, a fresh look at this.
  I am not casting stones at anybody. If we could all predict the 
future, we would probably all be doing something other than what we are 
doing. So I want to make it very clear, this is not about criticizing 
anybody's position in the past or criticizing the intelligence 
community at all.
  But the most glaring shortfall of the court is that too many 
procedural protections are given to the accused alien at the expense of 
the rest of us. These are not U.S. citizens. I make that clear.
  I have been informed that the notice requirements and other 
procedural obstacles that force the Federal Government to disclose 
classified information just basically renders the court useless. The 
court can be a very effective tool in our antiterrorism program, 
including everything we have been talking about, not only in this bill 
but in the other legislation that we just passed in the antiterrorism 
bill. We can make it so much more effective with this kind of support.
  Case in point: I wrote a letter to Attorney General Ashcroft on 
September 17, which, of course, was right after the terrorist attacks, 
and informed him of this whole issue of the Alien Terrorist Removal 
Court and what was needed.
  Mr. President, I ask unanimous consent that letter be printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                  U.S. Senate,

                               Washington, DC, September 17, 2001.
     Hon. John Ashcroft,
     Attorney General,
     Washington, D.C. 20530.
       Dear John: Please accept my heartfelt appreciation for the 
     hard work that you and the rest of the Department are doing 
     to hunt down the terrorists who have attacked our great 
     nation. It is a sincere comfort to me, as I know it is for 
     other Americans, to know that we have such a capable team in 
     place to lead us through this trying time. My prayers are 
     with you.
       In 1994, I sponsored legislation to create an Alien 
     Terrorist Removal Court. This legislation established 
     specific procedures for the removal of alien terrorists 
     without disclosing sensitive intelligence data to the 
     terrorist and his organization. In 1996, I succeeded in 
     getting a version of this legislation added to the 
     Antiterrorism and Effective Death Penalty Act (8 U.S.C. 1531-
     1537). That bill became law and the court was established. My 
     intent was to set up a Federal court to specialize in the 
     identification and expulsion of alien terrorists from the 
     territory of the United States. Unfortunately, my idea never 
     became a reality.
       The Alien Terrorist Removal Court is staffed with judges 
     and is empowered to prosecute alien terrorists. As you well 
     know, however, in the years since that 1996 law was passed, 
     there have been zero prosecutions by the court. It is hard to 
     believe, especially today, that this mechanism to fight 
     terrorism has yet to be utilized by the Federal government to 
     prosecute one alien terrorist.
       There are legitimate reasons why this court has never 
     prosecuted one case--many resulting from weakening amendments 
     that were made prior to the bill becoming law. The most 
     glaring shortfall of the court is that too many rights are 
     given to the accused alien terrorist. I have been informed 
     that the notice requirements and other procedural obstacles 
     that force the Federal government to disclose classified 
     information render this court useless. I believe this Court 
     can be an effective tool in our terrorism program, and I want 
     to work with you to remedy any problems with the law, and 
     begin using the Court to rid our nation of terrorists.
       I would appreciate your suggestions for improvements that 
     would make this court an effective instrument in the fight 
     against terrorism. Again, John, thank you for all of your 
     exemplary work on this issue and I look forward to working 
     with you.
           Sincerely,
                                                        Bob Smith.

  Mr. SMITH of New Hampshire. Subsequent to that letter, I had a 
conversation with the Attorney General. The Attorney General is 
supportive of this provision because it will help them to do their 
work.
  Republican Leader Lott and I had a colloquy in this Chamber during a 
recent debate on antiterrorism. We had a conversation in which he 
agreed with me and supported my provision.
  Mr. President, I ask unanimous consent that colloquy be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Congressional Record, Oct. 11, 2001]


                     alien terrorist removal court

  Mr. Smith of New Hampshire. Mr. President, it had been my intention 
to offer an amendment which would strengthen provisions in the bill to 
deal with known terrorist aliens. As Senator Lott well remembers, we 
worked in 1996, created the Alien Terrorist Removal Court, to hear 
cases against aliens who were known terrorist and to allow the Justice 
Department to deport these aliens without divulging classified 
information to the terrorist organization.
  Mr. Lott. I know the Senator from New Hampshire has been working a 
long time on this issue. In fact, when he sponsored this legislation 
back in 1995, I was a cosponsor of his bill. He has been a leader on 
this issue, he passed his legislation, and the Court was created.
  Mr. Smith of New Hampshire. That is correct. As the leader knows, 
there are some changes that are needed to improve the law, which is 
what my amendment was going to be about.
  Mr. Lott. I understand, and I agree that the law needs to be 
strengthened.
  Mr. Smith of New Hampshire. Mr. President, I would say to my 
colleagues, all the tools we are giving to the Justice Department in 
this bill are irrelevant if we cannot deport these terrorist who are 
living in our country preparing to terrorize American citizens. Page 
162 of the bill says the Attorney General shall place an alien in 
removal proceedings within 7 days of

[[Page 22021]]

catching him, or charge him with a criminal act, or else the bill says 
``the Attorney General shall release the alien.'' Mr. President, the 
problem is that most of these terrorist have not committed criminal 
acts until they are ready to attack. Therefore, in most of these cases, 
the only option is to deport them.
  Mr. Lott. It is my opinion, that if we can deport known terrorist, we 
should do it. We cannot let the Justice Department be barred because 
the evidence was too sensitive to use in Court.
  Mr. Smith of New Hampshire. That is exactly the problem. Under 
current law, the Justice Department would have to give a declassified 
summary of all the secret evidence used in the deportation proceedings 
to the terrorist. Now, why would we compromise our intelligence sources 
and methods by revealing sensitive intelligence information to a known 
terrorist? The intelligence community would never allow it, and with 
good reason. But as a result, the Justice Department has never once 
used the alien terrorist removal court to deport anyone.
  Mr. Lott. That is my understanding, and it is a serious problem. I am 
in complete agreement with the Senator.
  Mr. Smith of New Hampshire. Mr. President, I thank the Leader. As I 
said, it had been my intention to offer an amendment to resolve this 
problem by eliminating the requirement for the Attorney General to give 
this sensitive information to the alien terrorist before deporting him. 
However, upon discussions with the Attorney General, who indicated to 
me that he supports this provision, and after discussions with the 
Leader, I have decided in the interest of moving this legislation to 
withhold my amendment at this time, with the assurance of the Leader 
and the Administration that we will work to solve this problem in 
conference.
  Mr. Lott. Let me say to the Senator that he can count me as a 
cosponsor of this amendment. It is an excellent amendment, it is 
needed, and I commit to the Senator that I will do my best to see that 
it is added in conference. I would further say to the Senator that I 
have also talked about this issue with the Attorney General, and he 
indicated to me that the Administration supports your amendment and 
that he will also work to support it in conference when we get to that 
point. So, I appreciate his withholding at this time so we can get this 
bill to conference where we can work to get the Smith amendment added 
to greatly improve this bill.
  Mr. Smith of New Hampshire. I thank the Leader for his strong 
support, and I am pleased that the administration is also supportive. I 
know how many long hours the Attorney General is putting in on this 
issue, and how committed he is to winning this war on terrorism. I look 
forward to passing this important provision which will be an invaluable 
tool for the Attorney General and the President in this war.

  Mr. SMITH of New Hampshire. This court was created in 1996, as I 
said, as part of the Antiterrorism and Effective Death Penalty Act. 
Since 1996, the Justice Department has used the court, as I said 
before, not once--not even one time--to deport any alien terrorist or 
suspected alien terrorist. Again, the reason is because they have to 
compromise their sources and methods to do it. They do not want to do 
that and I don't blame them. Therefore, the alien stays here, and we 
have to wait until he commits a crime before we can then arrest him or 
deport him, whatever the courts chose to do.
  So, again, this amendment that I am offering strikes the provision of 
existing law that allows an alien terrorist to get access to a summary 
of classified information.
  It is interesting because you will hear some critics of my amendment 
say: A summary is OK. We can take a summary and we can modify it, and 
we can take out sources and methods. We can do all these necessary 
things to make this good.
  I submit to you, in some cases summaries are acceptable. We get them 
all the time. I know that the Senator from Florida, the chairman of the 
Intelligence Committee, gets them. We see summaries. Sometimes you can 
take a summary and get enough information. Oftentimes, Senators look at 
summaries of intelligence. We do not see the raw intelligence and that 
is fine.
  But in this case, it is not fine because, let's say, for example--and 
this is a totally fictitious example--there is a conversation taking 
place between four people, and one of those people is a U.S. 
intelligence agent, and the three others are in a terrorist network. If 
we reference any of that conversation, even in a summary, the others 
are going to know that one of the four is a U.S. agent. If they know 
that, then a bin Laden might wipe everybody out just to be sure we get 
the suspect here. So it does risk our intelligence personnel, and we 
cannot afford that.
  So my intent is to prevent the so-called ``sleeper cell'' of alien 
terrorists from committing an act of terrorism. A ``sleeper cell'' 
means they are out there; they have not committed an act yet, but we 
know who they are. Why not deport them. These are not U.S. citizens. We 
are not taking away their rights. We are taking away their visas. They 
are guests in our country. They have visas.
  Those terrorists who committed those crimes were guests in our 
country, if you can believe that. They were guests. So why can't we 
take their visas and send them back to some other place where, if they 
want to commit it wherever they came from, fine, but keep them out of 
here. That is what we need to do. Let the other countries they came 
from take care of them and stop them, but don't let them come in here 
with their visas and do these kinds of horrible things. That is what I 
am trying to do, get at this sleeper cell, the network out there. 
Frankly, we are spying on them. Of course we are. And it is the right 
thing to do. But they are aliens. We do it with good reason--because we 
have specific information from our intelligence community.
  The intelligence community gets this, and they cannot act on it 
because to act on it would compromise their own people and their 
methods of collection. To not act on it means they stay here. So that 
is where we are. That is why not one case has been brought to court 
since my legislation created it in 1996.
  Who are these sleeper cells? We have seen a lot of them. These are 
guys that took flying lessons in Florida, who seemed to be reputable 
people, with families, just going about their business. They could be a 
student here on a visa. They could be here on a work visa. And they are 
very careful; they do not break any laws. They do not want to bring any 
attention to themselves. They do not get speeding tickets or rob banks 
or commit murders. They stay nice and cool and stay out of trouble. 
They are good. They keep their hands clean. Then they focus on the 
horrible act of terrorism, as we saw on September 11.
  These are smart people. They know what they are doing. And we have 
smart people who know how to catch them. But we have to give the 
intelligence community the tools to do that.
  So how does the Government prosecute an alien who is planning an act 
of terrorism--an alien who has committed no criminal act, nor has that 
alien violated his or her visa? How do we get them? Again, with the 
Alien Terrorist Removal Court. They have good Federal judges. Our court 
has one judge. If somebody wants to make that two or three judges, I do 
not object to that. I trust that the Federal judge can look at that 
intelligence and say: Whoops, wait a minute, we cannot provide that. We 
have to get this guy out of Dodge, get him out of here.
  These sleeper cells are law-abiding. That is the interesting part. 
They are law-abiding. I want to make sure they are not given access to 
any classified information at that hearing which is going to cause them 
to take the lives of those who have provided that information or 
somehow compromise the methods of collection.
  I also want to make sure they do not get to do the terrible things 
that they are planning to do, as they did on September 11.
  So my amendment provides for reports to Congress on the Justice 
Department's utilization of the court. If

[[Page 22022]]

we can put a provision in there that says--I want my chairman to 
understand this because I know he may have a concern or two--if we can 
say to the court, report back to Congress and let us know how you are 
utilizing the court, if it is abused, we are going to know that. If we 
do not think the alien got the right decision from the judge, we are 
going to hear about that.
  We are going to be able to monitor this every 6 months. If we can 
trust Federal judges to enforce our Federal laws in our country, we 
ought to be able to trust them to look at a piece of intelligence and 
decide whether somebody should be removed or not without sharing that 
intelligence. So I am hopeful we can get this done.
  Let me address the issue of due process because this always comes up. 
I have been criticized for being somebody who wants to take the civil 
liberties from every American. I am not trying to take anybody's 
rights. I am trying to take their visas before they take our lives. Is 
there anything wrong with that?
  Let me repeat that because it is very important. I am not taking away 
anybody's due process. I am not taking away their rights. I am taking 
their visas. They are guests in our country. They have been law-abiding 
people who have not committed a crime but are plotting one--as we saw 
on September 11, a big crime, a massive crime, a horrible, detestable 
act against innocent Americans.
  If we had a court--and we don't know that we would have gotten those 
people--that had the ability, maybe we would have broken up that 
network. I am not saying we would have or could have, but we might 
have. That is really the issue: Are there any more plans such as this? 
Who can we monitor? How many people are out there who we are watching 
right now that we would like to deport but cannot deport without 
compromising those methods?
  I think this passes constitutional muster. There will be some who 
will differ. That is the beauty of the Senate. We have people who 
differ on everything. It is like two lawyers. They won't agree on 
everything. They always find something to disagree about. I respect 
that, but I believe it passes constitutional muster. I believe others 
do as well and who have said so.
  Remember, we are talking about a civil and not a criminal matter. We 
are talking about aliens who have no constitutional right to a quasi-
criminal proceeding to remove that alien if that alien is involved in 
terrorism. That is important to understand. We are not talking about 
U.S. citizens. That is another issue. That is another venue, another 
court, another methodology. That does not apply. Both the fifth and 
fourteenth amendments prohibit Government actions which would deprive 
``any person of life, liberty or property without due process of law.'' 
The Alien Terrorist Removal Court has the necessary procedural 
safeguards to protect an alien terrorist's due process rights.
  If life, liberty, or property is at stake, the individual has a right 
to a fair procedure. Again, this is not about his life. This is not 
about his liberty. This is not about his property. It is about his 
visa.
  The interesting irony is that--and I hesitate to use the term ``law-
abiding citizens''--but these horrible people who did these things on 
September 11, at the time, were law-abiding citizens. They were very 
careful to keep their noses clean in America until they did what they 
did. That is why we must deport them when we know they are involved in 
planning, plotting, thinking about plotting, or are involved in 
meetings that are plotting, or whatever, terrorist acts.
  So this court has the necessary procedural safeguards to protect an 
alien's due process. And I am very confident about that.
  Liberty is freedom of action by physically restraining an 
individual--deporting or imprisoning--or a denial of a right with 
special constitutional protection, such as freedom of speech.
  From the case Mathews v. Eldridge, 1976, there is a procedural due 
process test. There are three factors: No. 1, private interest; No. 2, 
risk of deprivation of interest; and, No. 3, Government's interest.
  The Government's interest in these cases is our interest. The 
Government has an interest in deporting terrorists who may commit these 
crimes because the Government's interest is to protects us. That is 
what we have a Government for, to protect us, and they cannot because 
they cannot use the tool that we have given them, which is the court. 
They cannot use it because they have to compromise their sources and 
methods to do it.
  So the Alien Terrorist Removal Court does provide these protections. 
An alien terrorist gets the evidentiary hearing before a Federal judge. 
Even though he is an alien, he gets an evidentiary hearing. This 
hearing is afforded to the alien terrorist, and the judge is allowed to 
see all classified information--the judge, not the terrorist. This is 
under my amendment. But the way it is now, the terrorist gets to see 
the classified information. Can you believe that? That is true. But 
they do not see it because the intelligence community does not give it 
to them. Therefore, the terrorist stays in America, and we wait for the 
acts to be committed.
  The Federal judge, not the alien terrorist, has access to view all 
the classified information, and he or she can make a determination on 
the merits of the Government's claim. The Government's interest in not 
disclosing highly classified and sensitive information is outweighed by 
the alien terrorist's right to see the evidence. Think about that. Let 
me repeat that: Under current law, the Government's interest in not 
disclosing highly classified and sensitive information is outweighed by 
the alien terrorist's right to see the evidence. That shouldn't be. It 
should be the other way around. The Government's interest should 
outweigh the terrorist's interest. It is the people's interest, not 
just the Government. It is the interest of 260 million American people.
  When one balances the interest of the alien terrorist versus the 
interest of the Government to prevent the disclosure of sources and 
methods to terrorist cells, such as al-Qaeda, and to prevent the 
killing of human resources by these terrorist organizations, that is 
when this should kick in. It is the rights of the terrorist versus the 
rights of the Government and the people. Sometimes they clash. In the 
case of a person committing or persons wanting to commit a terrorist 
act, they have clashed. It is more important that we protect the 
information and err on the side of caution, that we don't cost more 
lives. That is what my amendment is about.
  I have an article which I ask unanimous consent to print in the 
Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                     [From U.S. News, Oct. 1, 2001]

                     Finger-pointing, Fingerprints


The hunt for evidence and, hard on its heels, charges about who screwed 
                                   up

                (By Edward T. Pound and Chitra Ragavan)

       In the spring of 1996, Congress gave law enforcement 
     officials a new and seemingly important tool to combat 
     terrorism. It created the Alien Terrorist Removal Court, 
     assigning the special federal court the task of deporting 
     terrorists operating on American soil. After the World Trade 
     Center bombing in 1993, and the growing suspicion that foot 
     soldiers for Osama bin Laden were slipping into the United 
     States, the establishment of the court seemed an eminently 
     sensible thing to do.
       But terrorists had nothing to worry about--because the 
     court is a court in name only. In the five years since its 
     creation, U.S. News has learned, the five-judge panel has 
     never deported a single terrorist. For that matter, it has 
     never even heard a case. The Justice Department, the agency 
     principally responsible for monitoring terrorists' movements 
     within the United States, has never filed an application with 
     the court seeking to deport a terrorist.
       Former Justice Department officials say the agency couldn't 
     use the court because the law requires disclosure of 
     sensitive information to terrorists--evidence, they say, that 
     would compromise intelligence gathering and identify sources. 
     But critics say the government's refusal to bring suspected 
     terrorists before the special court is a glaring example of 
     its inability to use its vast counterterrorism resources 
     effectively. In the past few years, Congress has authorized 
     billions of dollars for new equipment and for thousands of 
     personnel in law enforcement and intelligence agencies. This 
     year alone

[[Page 22023]]

     Congress authorized $10 billion before the attacks for 
     counterterrorism efforts.
       American law enforcement and intelligence agencies have 
     scored several big wins against terrorists, jailing some and 
     foiling the plots of others, Michael Cherkasky, a former New 
     York state prosecutor who investigated terrorist activities, 
     says federal agents have known for years that suicide bombers 
     had changed their habits, living seemingly normal lives here, 
     but says agents failed to understand the terrorists' deadly 
     intentions.
       Cherkasky cites the evidence introduced in a recent 
     terrorist trial in New York--a training manual from bin 
     Laden's al Qaeda terrorist network. ``The al Qaeda manual 
     says you have to act nonreligious,'' Cherkasky explains, 
     ``shave your beards, fit in as middle class.''
       But it wasn't just behavior, it was targets that went 
     undetected. The government was caught flat-footed in several 
     major terrorist attacks, current and former intelligence 
     official say. Among them; the bombing of the USS Cole last 
     year, the bombings of the two East African embassies in 1998, 
     and the September 11 attacks on the World Trade Center and 
     the Pentagon. A review of the government's efforts against 
     international terrorism shows that they have been hobbled by 
     bungled investigations and poor intelligence analysis--or, in 
     some cases, no analysis at all of critical documents 
     accumulated by investigators.
       That disturbs several former senior Justice Department and 
     FBI officials who were actively involved in counterterrorism 
     investigations during their careers. They believe that U.S. 
     intelligence agencies may have had sufficient information to 
     prevent the deadly attacks on the World Trade Center and the 
     Pentagon--if only they had understood what they had. John 
     Martin, the former top national security prosecutor for the 
     Justice Department, says the government eventually will get 
     to the bottom of why intelligence and law enforcement 
     agencies did not prevent the attack. And, he thinks, they 
     will conclude that government agencies ``were collecting the 
     intelligence, they were deciphering it, but they were sending 
     it to the field late and in muddled, ambiguous terms.'' Jamie 
     Gorelick, the No. 2 Justice Department official in President 
     Clinton's first term, sounds a similar theme. ``We have a 
     very robust intelligence collection effort,'' she says. ``But 
     we don't have a commensurate analytical capability. I am 
     certain that when we are able to digest what we have 
     collected, we will find information which surely could have 
     or might have prevented'' the attacks.
       Red alert. That may be, and there's growing evidence that 
     Washington should have been better prepared. There were 
     warning signs, say former counterterrorism officials. Court 
     files show that operatives linked to bin Laden or other 
     militants have been planning for some time to make the United 
     States their primary theater of operations. Now the FBI is 
     finding that its failure to analyze the intelligence amassed 
     during earlier investigations is slowing its efforts to 
     locate conspirators or associates of the hijackers.
       With many leads not producing much, U.S. law enforcement 
     agencies are looking overseas for help. One big break came 
     late last week when an Algerian pilot named Lotfi Raissi, 27, 
     was arrested in London for allegedly lying on his application 
     for a pilot's license in the United States. British 
     authorities say they have linked him to four of the 
     hijackers. A prosecutor told a London court that Raissi's job 
     was to ensure that the hijackers were ``capable and 
     trained.''
       The United States has the most sophisticated intelligence 
     collection capability in the world, but it appears to have 
     failed utterly in this instance. The supersecret National 
     Security Agency intercepts phone calls and messages thousands 
     of miles from its sprawling complex in suburban Maryland near 
     Washington. Yet there has been no indication from U.S. 
     officials that the NSA intercepted any information on the 
     alleged hijackers who were operating in its shadow, just a 
     few miles away, in the days before the attacks.
       When the dust settles, Congress undoubtedly will examine 
     what U.S. intelligence and law enforcement agencies knew 
     before the hijackers produced their carnage. The Bush 
     administration says it had no advance warning that the 
     attacks would take place. But it is clear that the FBI and 
     Justice Department had developed information on some of the 
     hijackers before the attacks--just how much isn't known, and 
     the government isn't saying.
       Three former top intelligence officials say it is clear 
     that some of the hijackers and possible associates were on 
     FBI watch lists prior to the September 11 attacks. There 
     seems to be little doubt of that. On August 23, the CIA sent 
     the FBI the names of two suspected terrorists, Khalid 
     Almihdhar and Nawaf Alhazmi. But the bureau was unable to 
     apprehend them before they helped hijack the airliner that 
     crashed into the Pentagon. FBI officials did not respond to 
     several requests for interviews.
       Officials say the CIA and FBI now are rushing to improve 
     their intelligence capabilities. One intelligence source says 
     the CIA is bringing back retirees to fill the massive demand 
     for qualified help. Meanwhile, the FBI has put out the word 
     that it badly needs people who can translate Arabic, Farsi, 
     and Pashto. ``They are scouting everywhere for translators,'' 
     says a law enforcement involved in the government's massive 
     manhunt. One reason: In the past, the bureau hasn't had 
     sufficient personnel to translate and interpret critical 
     documents, or vast amounts of intelligence, that could have 
     shed light on terrorist plots. In some ways, the FBI must 
     shoulder the blame. The bureau has very few Arab-American 
     agents and translators, and funds intended for hiring 
     translators were diverted to hiring more agents to fight 
     street crime, several former Justice Department officials 
     say. ``The language problem is prodigious,'' says the 
     intelligence source, ``at both the CIA and the FBI.''
       That's true, too, at other intelligence agencies in the 
     Defense Department, including the NSA. In a report issued 
     last week, the House Intelligence Committee said American spy 
     agencies ``have all admitted they do not have the language 
     talents . . . to fully and effectively accomplish their 
     missions.''
       Surveillance. Apart from the language needs, Attorney 
     General John Ashcroft now wants Congress--in addition to the 
     $20 billion more in counterterrorism funding it has committed 
     since the attacks--to give law enforcement even more powers 
     to wiretap immigrants and monitor their activities in the 
     United States. At the same time, some lawmakers are pushing 
     the government to use the Washington-based Alien Terrorist 
     Removal Court, composed of sitting judges, to help rid the 
     country of suspected terrorists. Sen. Bob Smith, a Republican 
     from New Hampshire, is spearheading that effort.
       Under the current law, a suspected terrorist brought before 
     the court must be given an unclassified summary of the 
     deportation charges. Smith plans to introduce a provision 
     this week that would allow the government to use classified 
     information in the court proceeding without sharing any 
     information with the suspect. The proposal is likely to spark 
     a hot debate in Congress, where some members deplore the use 
     of secret evidence and have been trying to outlaw the 
     practice. Smith couldn't care less. ``We need to bring these 
     terrorists to court and deport them,'' he says. Smith 
     persuaded Congress to approve the creation of the court in 
     April 1996. But its powers were weakened, he adds, by 
     amendments requiring suspected terrorists to be given a 
     summary of the charges against them. As a result, the Justice 
     Department never used the court, fearing that disclosure of 
     intelligence would expose sources. Current officials would 
     not comment for this story.
       Civil libertarians say the department has found it easier 
     to deport or imprison suspected terrorists through other 
     administrative immigration proceedings. Secret evidence, 
     which is anathema to Arab-Americans and civil rights 
     activists, can be used in those proceedings when the 
     government seeks to deport aliens on other grounds, such as 
     ``garden variety'' immigration violations, says a former top 
     immigration official. In the terrorist court, suspects would 
     have more safeguards--the right to counsel and the option to 
     challenge the constitutionality of the secret evidence, says 
     Timothy Edgar, a top lawyer for the American Civil Liberties 
     Union. No such rights are available in immigration court 
     proceedings, he says. Given the choice, he says, the 
     terrorist court is the least distasteful.
       Immigration officials say that secret evidence is seldom 
     used, perhaps only 10 to 12 times a year out of 300,000 cases 
     in the immigration courts. Steven R. Valentine, a former 
     Justice Department official who oversaw the Office of 
     Immigration Litigation, says the government must deport or 
     detain terrorist suspects--especially in light of the recent 
     tragic attacks. In the past, he says, because of legal 
     challenges, the Justice Department has been unable to deport 
     known terrorists. ``That,'' he adds, ``is insane.''

  Mr. SMITH of New Hampshire. This was written by Ed Pound and Chitra 
Ragavan. It is a U.S. News article of a few weeks back.
  In the article, which is entitled ``Finger-pointing, fingerprints,'' 
Mr. Pound goes into a lot of detail and history about the fact that the 
court has not been used. I hope my colleagues will read it. It is a 
good history and a summation.
  It is pretty simple. This provides that the court we now have created 
to remove alien terrorists can be used. That is what I am hoping.
  I ask again for the yeas and nays on my amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  Mr. GRAHAM. Mr. President, could the request be restated?
  Mr. SMITH of New Hampshire. I asked for the yeas and nays.
  The PRESIDING OFFICER. The Senator asked for the yeas and nays on his 
amendment. Is there a sufficient second?

[[Page 22024]]

  At the moment, there is not a sufficient second.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. GRAHAM. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Clinton). Without objection, it is so 
ordered.
  Mr. NELSON of Florida. Madam President, I ask unanimous consent that 
I be allowed to speak for about 5 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Nelson of Florida are printed in today's Record 
under ``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, I have listened closely to some aspects 
of this debate, especially the amendment presently pending, raised by 
my distinguished colleague from my neighboring State of New Hampshire.
  I had the honor of serving for 8 years on the Senate Intelligence 
Committee, where I was vice chairman. I have enormous regard for the 
current chairman and vice chairman of the committee. I have also served 
as both ranking member and chairman of the Judiciary Committee.
  As I listened to the debate, something sounded familiar. Indeed, this 
amendment was raised during the debate in preparation of the 
antiterrorism bill that the Congress passed and the President signed 
last month. There was no enthusiasm for it from Republicans or 
Democrats. We looked at it, the White House looked at it, and the 
Justice Department looked at it. None of us were interested in 
including it in what became the USA Patriot Act.
  The idea of having a quasi-secret court, and making only limited 
evidence available to the defendant, as is true under existing law, is 
constitutionally questionable enough. But to say that we will not tell 
the defendant any of the evidence against him in the court, as Senator 
Smith proposes, is the kind of thing we rail against when other 
countries do it. Our government officials have gone all the way to the 
head of state level to register complaints when Americans have been 
held in other countries without being informed of the charges against 
them. Every President I have known has been forced at one time or 
another to raise such issues with another head of state. We should not 
make this task more difficult by approving of the amendment Senator 
Smith has offered here.
  Let us look at a little bit of history. The Alien Terrorist Removal 
Court was created in 1996. It was done largely through the efforts of 
Senators Hatch and Dole. It exists to provide a way for the Government 
to remove terrorist aliens whom it believes it cannot attempt to remove 
through public hearings, to balance the Government's need to maintain 
its existing intelligence sources while giving some rights to the 
accused.
  Under the law as it presently exists, the accused does not see the 
actual evidence against him but does receive an unclassified summary of 
that evidence. The law states very clearly that that unclassified 
summary has to be ``sufficient to enable the alien to prepare a 
defense.''
  Under the amendment that Senator Smith has presented, an alien 
accused of being a terrorist would receive no information about the 
basis of the charges against him, not even the limited summary provided 
in existing law.
  If we were to pass something of this nature, there is no way the 
President of the United States or the Secretary of State or the 
Attorney General could go to any other country holding an American on 
undisclosed evidence and demand to see that evidence. That nation could 
simply say that it is doing what the United States, the country seen as 
the bulwark of freedom, is doing, the United States that has had a 
written Constitution that has survived for all these years. The U.S. 
Constitution, as written and interpreted over the last two centuries, 
makes it clear that the government cannot bring somebody into a court 
and say: ``We have all this information against you, but we are not 
going to tell you what it is. Are you guilty of what we have against 
you? I am not going to tell you what it is we have against you, but I 
want to know, are you guilty or not? And, if you are not guilty, then 
defend yourself against these charges we have brought. Sorry, you can't 
see the charges. Sorry, you can't hear the evidence. Sorry, we can't 
let you know what is going on. But we will give you a chance to defend 
yourself.''
  It doesn't quite work that way. Anybody in this body who has been 
either a prosecutor or defense attorney, on either side, would not want 
that.
  The distinguished Presiding Officer knows as well as any Senator here 
the terrible nature of September 11. Her State was impacted in a 
horrible way, as were the surrounding States of New Jersey and 
Connecticut, just as the State of Virginia has been horribly harmed by 
the attack on the Pentagon. Nobody has stated the horror, the anger, 
and the feelings left in the wake of the September 11 attacks in a more 
articulate way than the distinguished Presiding Officer. We all share 
those feelings. But nobody here has ever suggested that we somehow 
abandon all our laws, all our rules, our Constitution and everything we 
stand for, the very democracy that got the terrorists to attack us. In 
effect, we would say, ``We surrender.''
  The Senator from New York, the Senator from Vermont, the Senator from 
Florida, all 100 of us--none of us is about to surrender. We understand 
there is a problem with terrorism. I suspect throughout my lifetime we 
will face threats. But let's answer the threats in the ways that 
comport with what our constitutional history and our history as a 
nation.
  The Alien Terrorist Removal Court has not been used, but that is not 
because an unclassified summary has to be provided to the defendant. 
The Justice Department talked to us about why the court is not being 
used, and did not mention this. When the Department was given the 
opportunity to consider this amendment at the time of the terrorism 
bill, it did not want it. I suspect that this lack of interest is 
related to concerns within the Justice Department about constitutional 
challenges to the court itself, as it is formulated under existing law. 
Surely the Justice Department knows that if we approve this amendment 
those constitutional challenges will basically be irrefutable.
  We provide substantial new powers to the Justice Department with 
regard to terrorist aliens through the antiterrorism legislation we 
just passed, legislation I voted for, the distinguished senior Senator 
from Florida voted for, his colleague, the other Senator from Florida 
voted for; the distinguished Presiding Officer voted for it--98 of us 
voted for it. That legislation should make it easier for the Justice 
Department to use this court.
  But as chairman of the Judiciary Committee, I could never support 
this amendment, which has already been rejected once by the 
administration and by Republicans and Democrats who negotiated the 
antiterrorism bill. I certainly could not accept it absent any showing 
of why it is needed.
  I say to my friend from Florida, the distinguished chairman, that I 
have no problem calling upon the administration to notify the Judiciary 
Committee if it really believes a change in the law is needed. The 
administration did not believe this a couple of weeks ago. But if the 
Attorney General now believes he needs something such as this, I will 
be glad to hold hearings on the issue and bring his concerns forward. 
But to do something of such constitutional magnitude in an amendment on 
the floor, without any hearings in the Judiciary Committee or 
Intelligence Committee, is simply inappropriate.
  Madam President, we need to go back to basic constitutional law 101 
here. The idea of giving the government the ability to bring removal 
proceedings against someone and force him to defend himself without 
telling him of the

[[Page 22025]]

evidence against him flies in the face of all of our principles.
  We must not tell the rest of the world that the only way we can 
defend ourselves is to accuse somebody but not tell him what the 
evidence is against him. Back in the 1700s, we fought a revolution to 
ensure a much different principle. All of us share the terror of what 
happened. All of us are opposed to terrorists. All of us want to defend 
the United States. But we must not let our enthusiasm to defend our 
Nation lead us to do things that will hurt us further.
  Frankly, I would be delighted to have the Attorney General take a 
look at Senator Smith's amendment and see what he thinks. But I tell my 
friend from Florida that I certainly do not support this amendment, 
because the constitutional questions raised are of such enormous 
magnitude. To do so without any request from the administration and 
without any hearings would not be a responsible action for this body to 
take.
  I yield the floor.
  Mr. GRAHAM. Madam President, it is our hope that we will develop a 
second-degree amendment to this amendment which essentially would ask 
the Attorney General to review this legislation that has been part of 
our statute since 1996, which the Senator from New Hampshire has stated 
has not been effective, and to give us his assessment as to the 
effectiveness of this legislation, if he believes that changes are 
needed. They might be changes in the law. They might be changes in the 
resources that are devoted to carrying out this law or for any other 
impediments.
  I note, as has the Senator from Vermont, that in the antiterrorism 
act which was just signed last Friday of October by President Bush, 
there are changes in the underlying definition of what constitutes an 
alien terrorist and an alien terrorist activity. Those changes have 
been stated to potentially have an effect on the efficacy of this 1996 
act. That would be another subject on which we would ask the Attorney 
General's opinion.
  We are today taking up a very major change in our law without the 
kind of prudent, thoughtful consideration for which the Senate is 
established to provide. I believe this process of requesting a review 
and then making the judgment based on the response to that request as 
to whether legislative, appropriations, or other activity is called for 
would be consistent with the history of this body.
  Speaking of history, I point out that one of the first controversies 
which politically helped to establish that we would have a two-party 
system was called the Alien and Sedition Acts which was enacted in the 
late 1790s. I refer to the biography of John Adams. He was the 
President when the Alien and Sedition Acts was passed by the Congress. 
He had not supported the Alien and Sedition Acts, but he signed it into 
law as our second President and paid a very heavy price, including his 
defeat when he ran for reelection in 1800 with this being one of the 
major issues used against his reelection.
  This is an issue of how to treat aliens in this country, which has a 
very long political history. It is an issue about Americans, whether 
they are citizens or any of the variety of categories that come under 
the generic term ``alien.'' They might be defined as a permanent 
resident who has been in the country for decades, as well as a refugee 
who just recently arrived seeking protection against political 
persecution in their home country. That whole wide range of people come 
under the generic term of ``alien.'' How aliens should be treated has a 
long history in this country.
  We are now participating in a debate on the most current topic of 
that. When it is available, I believe that our second-degree amendment, 
which will call for a temperate, thoughtful review of this by the 
highest legal officer in our executive branch, would be an appropriate 
manner for those of us who are privileged to serve in the Senate to 
proceed to determine whether, and if so, what changes in this law or 
the circumstances that surround this law, we should undertake.
  Awaiting the completion of the drafting of that amendment, I suggest 
the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. GRAHAM. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 2115 to Amendment No. 2114

  Mr. GRAHAM. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The amendment is in the nature of a second-degree amendment to the 
amendment of the Senator from New Hampshire.
  The PRESIDING OFFICER. The clerk will report.
  The senior assistant bill clerk read as follows:

       The Senator from Florida (Mr. Graham), for himself and Mr. 
     Shelby, proposes an amendment numbere 2115 to amendment No. 
     2114.

  Mr. GRAHAM. Madam President, I ask unanimous consent 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 word ``sec'' and insert the following:
       Section 504 of the Immigration and Nationality Act (8 
     U.S.C. 1534) is amended by adding the following subsection 
     after subsection (K):
       ``(L) No later than 3 months from the date of enactment of 
     this Act, the Attorney General shall submit a report to 
     Congress concerning the effect and efficacy of Alien 
     Terrorist Removal proceedings, including the reasons why 
     proceedings pursuant to this section have not been used by 
     the Attorney General in the past and the effect on the use of 
     these proceedings after the enactment of the U.S.A. PATRIOT 
     Act of 2001.''

  Mr. GRAHAM. Madam President, as I indicated in my preliminary 
remarks, this amendment calls upon the Attorney General, within 3 
months of the enactment of this legislation, to report to the Congress 
on the 1996 Alien Act--that is the act that provides the procedure that 
the Senator from New Hampshire has outlined for the deportation of 
aliens--and within that report to indicate what recommendations the 
Attorney General would make to the Congress relative to any changes in 
the law.
  It draws particular attention to the fact that we have just enacted a 
major antiterrorism act, which contains modifications of the definition 
of ``alien terrorists'' which have in the past been cited as a reason 
why this 1996 statute has not been utilized.
  I offer this amendment on behalf of myself and the vice chairman of 
the committee, Senator Shelby, and ask for its immediate consideration. 
The Senator from New Hampshire has remarks he would like to make.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SMITH of New Hampshire. Madam President, I thank the chairman for 
his cooperation. I will not take more than a minute or two and will not 
ask for any recorded vote.
  I also thank the chairman of the Judiciary Committee for making a 
commitment to me that we can have a hearing on this, if the Attorney 
General chooses to come and talk about the issue after the report comes 
back.
  To summarize, the amendment I offered dealt with this terrorist 
removal court which is not being used because of the fact that it would 
compromise intelligence if we did use it.
  I had hoped we could pass it to change that court, but given the fact 
that there is some information coming in on different views as to who 
believes what way about this and the issue as to how this court would 
or should work, I am prepared to and will accept the second-degree 
language offered by the Senator from Florida.
  I hope we can get this done. It is a 3-month report. I am a little 
concerned about the length of time, but realizing it takes time to do a 
report, I am also worried about the fact that something else could 
happen. Given the circumstances, it is good that we now have the 
attention of not only the Senate and the Congress but also the Justice 
Department, and I hope we can

[[Page 22026]]

hear from the intelligence community as well on this issue, which we 
will do in the hearings when we have them.
  I thank my colleagues for their cooperation and look forward to 
passage of the amendment and yield the floor.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, the question is on agreeing to amendment No. 2115.
  The amendment (No. 2115) was agreed to.
  Mr. GRAHAM. Madam President, I ask now for a vote on the underlying 
Smith amendment, as amended.
  The PRESIDING OFFICER. The question is on agreeing to the Smith 
amendment No. 2114, as amended.
  The amendment (No. 2114), as amended, was agreed to.
  Mr. GRAHAM. Madam President, I move to reconsider the vote on the 
Smith amendment.
  Mr. SMITH of New Hampshire. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 2116

  Mr. GRAHAM. Madam President, I am not aware of any other amendments 
to be offered to the bill. I have a managers' amendment I offer at this 
time.
  The PRESIDING OFFICER. The clerk will report.
  The senior assistant bill clerk read as follows:

       The Senator from Florida (Mr. Graham) proposes an amendment 
     numbered 2116.

  The amendment is as follows:

       Insert at the appropriate place in the bill:
       The DCI shall provide, prior to conference, any technical 
     modifications to existing legal authorities needed to 
     facilitate Intelligence Community counterterrorism efforts.

  Mr. GRAHAM. Madam President, the purpose of this amendment, which has 
been suggested by Senator Kyl, is to assure that if, in light of the 
rapidly changing world in which we are living, there are other 
proposals that need to be considered during the course of the 
conference, the conference committee will have the liberty to do so. I 
urge adoption of the amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  The question is on agreeing to the amendment.
  The amendment (No. 2116) was agreed to.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Senator Graham has mentioned there are no further 
amendments to the bill. I ask that the bill be read a third time.
  The PRESIDING OFFICER. 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.
  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of H.R. 2883, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 2883) to authorize appropriations for fiscal 
     year 2002 for intelligence and intelligence-related 
     activities of the United States Government, the Community 
     Management Account, and the Central Intelligence Agency 
     Retirement and Disability System, and for other purposes.

  The PRESIDING OFFICER. Under the previous order, all after the 
enacting clause of H.R. 2883 is stricken, the text of the Senate bill 
S. 1428, as amended, is inserted in lieu thereof, and the bill is 
deemed read the third time.
  Mr. REID. I know the House bill has been read a third time. I ask for 
the yeas and nays on H.R. 2883, as amended.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. REID. I further ask unanimous consent that the vote on passage of 
the bill occur at 2 p.m. today, with rule XII, paragraph 4, being 
waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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