[Congressional Record (Bound Edition), Volume 149 (2003), Part 8]
[Senate]
[Pages 10812-10826]
[From the U.S. Government Publishing Office, www.gpo.gov]





                           amendment no. 537

                   (Purpose: To propose a substitute)

  Mrs. FEINSTEIN. Mr. President, I call up amendment No. 537.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from California [Mrs. Feinstein], for herself 
     and Mr. Rockefeller, Mr. Leahy, Mr. Edwards, Mr. Feingold, 
     Mr. Dodd, Mr. Wyden, and Mrs. Boxer, proposes an amendment 
     numbered 537.

  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. PRESUMPTION THAT CERTAIN NON-UNITED STATES PERSONS 
                   ENGAGING IN INTERNATIONAL TERRORISM ARE AGENTS 
                   OF FOREIGN POWERS FOR PURPOSES OF THE FOREIGN 
                   INTELLIGENCE SURVEILLANCE ACT OF 1978.

       (a) Presumption.--(1) The Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting 
     after section 101 the following new section:


``Presumption of treatment of certain non-united states persons engaged 
         in international terrorism as agents of foreign powers

       ``Sec. 101A. Upon application by the Federal official 
     applying for an order under this Act, the court may presume 
     that a non-United States person who is knowingly engaged in 
     sabotage or international terrorism, or activities that are 
     in preparation therefor, is an agent of a foreign power under 
     section 101(b)(2)(C).''.
       (2) The table of contents for that Act is amended by 
     inserting after the item relating to section 101 the 
     following new item:

``Sec. 101A. Presumption of treatment of certain non-United States 
              persons engaged in international terrorism as agents of 
              foreign powers.''.
       (b) Sunset.--The amendments made by subsection (a) shall be 
     subject to the sunset provision in section 224 of the USA 
     PATRIOT Act of 2001 (Public Law 107-56; 115 Stat. 295), 
     including the exception provided in subsection (b) of such 
     section 224.

  Mrs. FEINSTEIN. Mr. President, I rise to offer a substitute amendment 
to S. 113, the Kyl-Schumer FISA bill. I ask you to bear with me because 
the explanation goes on for a while.
  I am also pleased that Senator Rockefeller, the ranking member on the 
Intelligence Committee, and Senator Leahy, the ranking member of the 
Judiciary Committee, are cosponsors of this amendment. I am pleased to 
also acknowledge that Senators Dodd, Edwards, Feingold, Boxer, and 
Wyden are also cosponsors of the amendment.
  Let me try to briefly describe the difference between current law, S. 
113, and my amendment.
  S. 113 is the Kyl-Schumer FISA amendment. First, the Kyl-Schumer 
amendment only applies to non-U.S. persons. I want to make clear that 
it does not cover green card holders under that amendment.
  Under current law, the FISA court may only grant a FISA application 
against a non-U.S. person if the Government can show probable cause 
that the target is working on behalf of a foreign power or a terrorist 
group. The Government also has to certify that it is seeking foreign 
intelligence information that can't be obtained by any other means.
  As I understand the Kyl-Schumer bill, it drops a primary requirement 
for FISA warrants; that is, the individual or the target be agents of a 
foreign power. Under Kyl-Schumer, this prerequisite is gone. That is 
what the so-called lone wolf deals with.
  This would then give the FISA court no discretion to deny 
applications for FISA orders against a true so-called lone wolf. These 
are alleged international terrorists operating completely on their own. 
This is confusing. In other words, current law gives the FISA court no 
discretion to grant FISA orders in closed cases. But S. 113--Kyl-
Schumer--gives judges no discretion to deny FISA the FISA court 
application in closed cases. Both of these circumstances raise certain 
problems.
  My amendment is essentially a compromise. It grants the court a 
presumption. So the FISA court may presume that a target is an agent of 
a foreign power, or the court may choose not to invoke that 
presumption. The bottom line is the court is given some discretion.
  In other words, the court may choose to grant a FISA order despite a 
lack of evidence that a target is working on behalf of a foreign power. 
Similarly, the court may choose to deny an order against a true lone 
wolf. It is up to the court.Federal judges in title III criminal cases 
have similar discretion. Although the standard there is about whether 
the Government can show probable cause that a person has committed a 
crime or will commit a crime, that is a very different standard than 
under FISA. Federal judges have not abused that discretion and, in 
fact, in rare cases have been able to act as a check on the Government 
to prevent overreaching and abuse.
  Why do the sponsors of S. 113 show less trust for FISA judges in the 
FISA content? In fact, such trust is even more warranted in the FISA 
content. Not only is the FISA process secret and hard to keep 
accountable, but the FISA court has only denied one FISA application in 
its 25-year history.
  Such a lack of trust is even less necessary given the fact that even 
if the Government is unable to get a FISA order against a target, it 
remains completely free to use all the tools of the criminal process 
under title III to get search and wiretap orders against the target.
  The bottom line is, our amendment preserves FISA's agent-of-a-
foreign-power requirement without jeopardizing our security. Our 
amendment allows the Government to get FISA orders against suspected 
international terrorists even in close cases where the Government 
cannot show the target is working on behalf of a foreign power or 
terrorist group. However, unlike S. 113, the amendment also ensures the 
FISA court is more than a rubberstamp and has discretion to deny a FISA 
application if the Government overreaches by attempting to use FISA 
authority.

[[Page 10813]]

  I now would like to discuss the issue in somewhat greater detail.
  Mr. President, at times of crisis, it is possible the Government can 
overreach in both legislative and executive decisionmaking with respect 
to our criminal and intelligence laws. That can have unfortunate 
consequences for both our security and individual rights.
  The Foreign Intelligence Surveillance Act, or FISA, was passed in 
1978. It was the first statute ever passed in the United States to 
provide a statutory procedure for the authorization of clandestine 
activities of our Government to obtain foreign intelligence.
  Before it passed, then-Attorney General Griffin Bell testified in 
favor of the bill before Congress. He noted the ``delicate balance'' 
that needed to be struck between ``adequate intelligence to guarantee 
our Nation's security on the one hand and preservation of basic human 
rights on the other.''
  He stated:

       In my view this bill strikes the balance, sacrifices 
     neither our security nor our civil liberties, and assures 
     that the abuses of the past will remain in the past. . . .

  Now, what does he mean by ``abuses of the past''? Decades earlier, 
America saw what happened in World War II with Japanese Americans who 
were removed from their homes, their businesses, and their schools, and 
placed in interment camps in violation of their rights. We do not want 
that to happen ever again in this country.
  I am not saying this is an identically similar situation. I am 
concerned, however, about zealousness and overreach because now we are 
engaged in a global war on terror. In conducting this war, we must be 
careful that we not overreach when the temptations are so great.
  This kind of war is unprecedented for the United States. It is 
unprecedented and unbelievable that anybody could fly four big planes, 
three into buildings, and kill 3,000 people. This is beyond our ken. 
America and Americans want to protect our homeland and our individuals, 
notwithstanding this is an entirely secret process and, as such, the 
laws that govern it must be balanced, must be carefully crafted, and 
must prevent it, lest someone use them to overreach. It has happened in 
the past, so you can assume it could well happen in the future. This is 
especially true, as I said, with FISA.
  I supported reporting S. 113, the Kyl-Schumer FISA bill we are 
debating, in the Judiciary Committee. I agree with my colleagues--there 
is a clear problem here, needing a solution; namely, the potential 
difficulty the Government may have in obtaining FISA orders against 
certain international terrorist so-called ``lone wolves.'' These are 
people who have no affiliation with a terrorist group, no affiliation 
as an agent of a foreign power.
  Under FISA, a ``foreign power'' is simply defined as ``two people 
conspiring,'' so it is a very easy goal and target. A problem arises in 
cases where the Government knows of a foreign individual who may be 
involved in terrorism but cannot yet prove a connection to foreign 
groups or governments. This problem stems from the proof requirement 
under FISA in current law.
  To get a FISA order against a foreign visitor to the United States 
under current law, the Government needs to show two key things:
  First, that the individual is a foreign power or an agent of a 
foreign power. Again, that is defined as two people working together. A 
foreign power could be a foreign government or an international 
terrorist group as defined.
  And second, that it is seeking ``foreign intelligence information'' 
that cannot be obtained by other means.
  This symbolizes the very purpose of FISA: to gather foreign 
intelligence. Criminal courts are for criminal cases, and the FISA 
court was set up specially to deal with cases where the Government 
wishes to obtain information or intelligence about the activities of 
foreign powers.
  The problem is this: Under this current standard, it may well be 
difficult for the Government to meet the foreign power requirement if 
the Government does not yet have enough evidence of a connection to a 
foreign group, entity, or power. Some have described this problem as 
the ``false lone wolf'' problem, where you have an individual who may 
appear at first to be operating as a ``lone wolf,'' even though that 
individual is really an agent of a larger group.
  That was one of the alleged problems with the pre-September 11 
investigation into Zacarias Moussaoui. The FBI did not learn until 
after September 11 that Moussaoui had links to al-Qaida and may have 
been the intended 20th hijacker.
  As a result, the Government may have been reluctant to request a FISA 
warrant because they did not think the intelligence they had could 
connect Moussaoui to an international group or government.
  So there is no question in my mind that we need to amend FISA to fix 
this problem. And I applaud my colleagues, Senators Kyl and Schumer, 
for working so diligently to solve it. But the Kyl-Schumer bill also 
redefines ``agent of a foreign power'' to include any non-U.S. 
individual preparing to engage in international terrorism. In other 
words, it essentially eliminates the foreign power requirement 
altogether.
  This change would allow the Government to get a FISA search or 
wiretap order against any foreign individual in the United States who 
is preparing to engage in international terrorism, regardless of 
whether the person is really an agent of a foreign government or terror 
group, and regardless of whether there is any potential to gather 
foreign intelligence.
  Again, it is this foreign intelligence component that defines the 
very purpose of FISA. As a result, I believe this change goes too far.
  Under S. 113, for the first time ever, the Government will be able to 
use FISA against any non-U.S. citizen preparing to engage in 
international terrorism--even individuals whom the Government knows 
have no connection at all to anyone else engaged in international 
terrorism.
  There would be no check at all on the Government's use of FISA 
against many common criminals who just happen to be noncitizens and, 
therefore, the Government might be able to use this secret FISA court 
to obtain warrants that: (A) are easier to get; (B) last longer; and 
(C) are less subject to normal judicial scrutiny than criminal warrants 
under title III or regular criminal statutes.
  FISA wiretap orders, for instance, are good for 4 times longer than 
normal criminal warrants--120 days versus 30 days--giving the 
Government a clear incentive to use this process even against common 
criminals. These orders can be reauthorized indefinitely each year for 
1-year periods. The same is true for physical search orders under FISA, 
although these are good for 90 days, and 1-year extensions are subject 
to the requirement in current law that the judge find ``probable cause 
to believe that no property of any United States person will be 
acquired during the period.''
  Under FISA, as modified by S. 113, the Government must show by 
probable cause only that a foreign national is engaged in international 
terrorism or preparation thereof. You might listen to that and you 
might think: What is wrong with that? We all want that. I want it, too. 
But in many instances, this probable cause standard will be easier to 
meet than the traditional criminal probable cause standard.
  For example, for a title III wiretap, the Government must show that 
there is probable cause to believe an individual is about to commit or 
has committed an enumerated crime. To get a search order, the 
Government must show probable cause that the search will result in the 
discovery of offending items connected with the criminal activity. 
However, under S. 113, the Government need only show probable cause 
that the person is engaging in ``activities in preparation'' for 
international terrorism. Many ``activities in preparation'' for 
international terrorism are not crimes.
  For example, a foreign visitor who bought a one-way airline ticket 
and a box cutter would arguably qualify as a person engaging in 
activities in preparation for international terrorism, even in the 
absence of other evidence that he or she might be an international 
terrorist.

[[Page 10814]]

  However, these two activities, taken alone, would clearly not 
demonstrate probable cause that the person would commit a crime. These 
activities may be entirely innocent. As a result--and I don't believe 
this is anyone's intent--S. 113 could easily serve as a clarion call to 
all aggressive prosecutors who want to listen in on or search the homes 
of targets of investigation without ever having to prove that any crime 
may be committed or that foreign intelligence may be gathered.
  By allowing FISA to be used against all solo suspected international 
terrorists, S. 113 runs counter to the whole purpose of FISA, which is 
to allow the Government to get foreign intelligence by searching and 
wiretapping people working for other countries and groups against U.S. 
interests.
  S. 113 essentially eliminates any discretion the FISA court has to 
turn down a case--this is my big problem with it--thus enabling the 
Government to overreach. I am not saying that it will overreach. But 
because it is a secret process, the laws we pass have to prevent that 
overreach.
  By nullifying the requirement that the target of an investigation has 
some connection, any connection, to a foreign entity or government, 
this legislation essentially makes the FISA court a rubberstamp. The 
court will be required to grant a FISA order, even if there is no 
probable cause to indicate a connection to a foreign power; indeed, 
even if there is clear evidence that the individual is operating 
completely on their own. In fact, even if the Government admits that 
the terrorist is operating alone and that there is no foreign 
intelligence to be gathered, the FISA court must still grant the order 
under S. 113.
  That is not what FISA is meant to be. Put simply: The legislation 
goes too far.
  Let me be clear: We who are sponsoring this amendment are not trying 
to protect international terrorists, and our amendment does nothing to 
protect them. The vast resources of the Federal Government and the 
powerful tools of the criminal process remain available to target and 
investigate any terrorist against whom the Government is unable to get 
a FISA order.
  What our amendment will do is retain the original purpose of FISA--
the seeking of foreign intelligence. S. 113 would not.
  Our amendment is simple. Rather than simply eliminating the foreign 
power requirement altogether, our amendment would allow the FISA court 
judge to presume that a foreign terrorist is also an agent of a foreign 
power, even if there is no evidence supporting that presumption. On the 
other hand, under our amendment, the FISA court could also refuse to 
presume this connection in troubling cases of Government overreach. 
Thus, a FISA court judge would have some discretion.
  What does this mean? In the Moussaoui case, for instance, even though 
the Government did not yet have evidence that Moussaoui was acting as 
an agent of a foreign power, both our amendment and S. 113 would allow 
the Government to get a warrant. The only difference is that our 
amendment would allow the judge to carefully look at the case and, if 
the court determined Moussaoui was clearly acting alone, the warrant 
could be denied.
  I know some will argue that this casts too much doubt upon the 
outcome of cases and that, as a result, FISA orders will be too hard to 
obtain. But in most cases, if you think about it, the outcome will be 
exactly the same, whether under our amendment or the underlying bill.
  Others may argue that this amendment might give liberal judges too 
much power to deny FISA orders in every case or, as Senator Schumer put 
it today, ``inject gray into the statute.'' But in reality, I believe 
these judges should have some discretion. This is an entirely secret 
process. By providing this presumption, we give judges that discretion. 
That is, in fact, a good thing.
  Liberal judges can always find ways to deny a FISA order, even under 
S. 113, if they are determined to do so. For instance, a judge could 
simply decide there is no probable cause showing that an individual is 
engaged in international terrorism. That is a requirement in both S. 
113 and our amendment.
  The bottom line is that we can and should preserve the foreign power 
requirement of FISA without jeopardizing our security. Under either 
approach, the Government will be able to get FISA orders against 
international terrorists, even if the Government cannot meet the 
foreign power requirement.
  Bottom line, again: The only difference between the two approaches is 
that our amendment preserves some limited discretion so the FISA court 
could stop the Government from overreaching against those individuals 
who have no connection to a foreign conspiracy. Let me say, if they 
have no connection to a foreign conspiracy, you can get the title III 
criminal warrant.
  I urge my colleagues to support the amendment and, therefore, support 
the underlying purposes of FISA.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mrs. FEINSTEIN. I yield such time as the Senator from Vermont, the 
ranking member of the Judiciary Committee, requires.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I thank the distinguished Senator. I will 
not speak long.
  In times of national stress there is an understandable impulse for 
the government to ask for more power. Sometimes more power is needed, 
but sometimes it is not.
  After the September 11 attacks, we worked together in a bipartisan 
fashion and with unprecedented speed to craft and enact the USA PATRIOT 
Act, which enhanced the government's surveillance powers.
  Now, as we consider S. 113--and we anticipate a possible sequel to 
the USA PATRIOT Act--it is vital for us first to examine and understand 
how Federal agencies are using the power that they already have. We 
must answer two questions: First, is that power being used effectively? 
Our citizens want not only to feel safer, but to be safer. They need 
results, not rhetoric.
  Second, is that power being used appropriately, so that our liberties 
are not sacrificed, the openness of our society and our government are 
preserved, and our tax dollars are not squandered?
  Unfortunately, the FBI and the Department of Justice have either been 
unwilling or unable to help us to answer these basic questions. 
Moreover, the information that we have gleaned on our own through our 
bipartisan oversight efforts has not inspired confidence.
  In February, Chairman Grassley, Chairman Specter and I released a 
detailed report based on the oversight that the Judiciary Committee 
conducted in the 107th Congress. That report distilled our bipartisan 
findings and conclusions from numerous hearings, classified briefings 
and other oversight activities. Our oversight demonstrated the pressing 
need for reform of the FBI. In particular, it focused on the FBI's 
failures in implementing what is already in FISA.
  The administration's response to our bipartisan oversight report has 
been to dismiss it as ``old news'' relating to problems that are all 
already fixed. In short, ``everything is fine'' at the FBI and they 
plan to do nothing to respond to the systemic criticisms in the 
Specter, Grassley, Leahy report. Predictably, however, Congress is 
asked yet again to expand the FISA statute.
  The bill that we are considering, S. 113, adopts a ``quick fix'' 
approach. With slick names like the ``Moussaoui fix,'' and the ``lone 
wolf'' bill, it is aimed at making Americans feel safer, but it does 
nothing to address the problems that actually plague our intelligence 
gatherers. It does nothing to fix the real problems that plagued the 
FBI before 9/11 and that continue at the FBI.
  In private briefings, even FBI representatives have stated that they 
do not need this change in the law in order to protect against 
terrorism. They are getting all the warrants they want under the 
current law.
  Sunset provisions, such as the one I helped add during the Judiciary 
Committee markup, allow us to adopt such

[[Page 10815]]

measures as S. 113 on a temporary basis. The reporting requirement that 
is being added to the bill on the floor is another welcome improvement, 
which will help us to ascertain whether this surveillance tool is 
working properly or not. The reporting requirement is similar to those 
proposed in a bill I introduced with Senators Grassley and Specter--S. 
436, the Domestic Surveillance Oversight Act.
  While there is little evidence that this bill is necessary, it does 
create significant problems. First, it tears FISA from one of its most 
basic moorings. FISA was intended to assist in gathering intelligence 
about foreign powers and their agents. The Kyl-Schumer proposal would 
simply read that requirement out of the law for a whole class of FISA 
cases.
  As introduced, the bill essentially said that a ``person'' is now a 
``foreign power,'' which makes little sense as a matter of logic or 
policy. As reported by the Judiciary Committee, the bill's wording 
makes more sense, but the fundamental policy problem remains.
  Second, in the rare case of a true ``lone wolf,'' our federal law 
enforcement agents already have potent tools at their disposal, 
including the title III wiretap, the rule 41 search warrant, and the 
grand jury subpoena. These provide ample means to combat isolated 
criminal acts, but with more accountability and judicial supervision 
than the FISA surveillance authorities.
  Far from addressing a true problem, then, all that S. 113 would do is 
encourage the use of the secret, unchecked FISA process for an entire 
class of cases that are more appropriately handled as criminal matters.
  To the extent that some believe that there is a problem that needs to 
be addressed, I support the more measured and practical approach that 
Senator Feinstein developed, and that I was pleased to cosponsor. The 
Feinstein approach is to create a statutory presumption to assist the 
FBI in terrorism cases.
  Using this approach, when the government shows probable cause to 
believe that a non-U.S. person is engaging in international terrorism, 
the FISA Court may presume that the person is also an agent of a 
foreign power. This permissive presumption would allow law enforcement 
some extra leeway in international terrorism cases, but without simply 
removing the foreign power nexus from a huge class of FISA matters 
altogether.
  I commend Senator Feinstein for her work on this amendment. I believe 
it is a constructive and reasonable compromise. It would give the FBI 
what it claims to need as a practical matter, to ensure that it can use 
FISA against individuals like Zacarias Moussaoui, whose ties to a 
foreign power may be difficult to prove.
  At the same time, the amendment would preserve some discretion on the 
part of the FISA court to determine that an individual should not be 
subject to surveillance because he is not, in fact, an agent of a 
foreign power. The FISA court should not become an automatic adjunct of 
the executive branch. That would destroy the checks and balances that 
keep us all free. Let's make sure they have the ability to act as a 
court.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. FEINGOLD. Mr. President, I ask the Senator from California to 
yield me some time so I can speak in support of the amendment.
  Mrs. FEINSTEIN. I am happy to yield as much time as the Senator 
requires.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, I agree with the Senator from California 
that S. 113 is the wrong way to fix the Foreign Intelligence 
Surveillance Act. The approach taken in S. 113 would eliminate the 
current requirement in FISA that the individual who is the target of a 
warrant must be an agent of a foreign power. This means that S. 113 may 
very well result in FISA serving as a substitute for some of the most 
important criminal laws we have in this country. Senator Feinstein's 
permissive presumption amendment would allow the Government to obtain 
FISA warrants against suspected lone wolf international terrorists 
without unnecessarily eliminating an essential element of FISA, and 
that is the agent of a foreign power requirement.
  FISA, as the Senator from California has very carefully and 
effectively pointed out, represents an important exception to 
traditional constitutional restraints on criminal investigations, 
allowing the Government to gather foreign intelligence information 
without having probable cause that a crime has been or is going to be 
committed. I will repeat that. This is something the Government can do 
without having probable cause that a crime has been or is going to be 
committed. That is a major exception to our normal understanding about 
how criminal proceedings should be conducted under our Constitution. 
The courts have permitted the Government to proceed with surveillance 
in this country under FISA's lesser standard of suspicion because the 
power is limited to investigations of foreign powers and their agents.
  Senator Feinstein ably pointed out the history behind this and the 
careful balance that Attorney General Griffin Bell discussed at the 
time, and how important that balance was for such an unusual exception 
to be made to our rules about criminal proceedings.
  S. 113 writes out of the statute a key requirement necessary to the 
lawfulness of intrusive surveillance powers that would otherwise simply 
be unconstitutional.
  FISA's own appellate court, the Foreign Intelligence Surveillance 
Court of Review, discussed in a November 2002 decision why a FISA 
warrant does not require a showing of probable cause of criminal 
activity. The court stated that FISA is constitutional in part because 
it provides ``another safeguard . . . that is, the requirement that 
there be probable cause to believe the target is acting `for or on 
behalf of a foreign power.''' So this is supposed to be about people 
acting in connection with a foreign power. S. 113, as currently 
drafted, simply eliminates that safeguard.
  Even if S. 113 survived constitutional challenge, it would mean that 
non-U.S. persons could have either electronic surveillance and searches 
authorized against them using the lesser standards of FISA, even though 
there is no conceivable foreign intelligence aspect to their case. S. 
113 will then likely result in a dramatic increase in the use of FISA 
warrants in situations that do not justify such extraordinary 
Government power.
  I think Senator Feinstein's amendment is a thoughtful and reasonable 
alternative to make sure that FISA can be used against a lone wolf 
terrorist, which I commend the Senator from Arizona and the Senator 
from New York for trying to address. But at the same time her amendment 
means we can do this without eliminating the important agent of a 
foreign power requirement. The amendment would create a permissive 
presumption that if there is probable cause to believe a non-U.S. 
person is engaged in or preparing to engage in international terrorism, 
the individual can be considered to be an agent of a foreign power even 
if the evidence of a connection to a foreign power is not clear. The 
use of a permissive presumption, rather than eliminating the foreign 
power requirement, maintains judicial oversight and review on a case-
by-case basis on the question of whether the target of the surveillance 
is an agent of a foreign power. The permissive presumption would permit 
the FISA judge to decide, in a given case, if the Government has gone 
too far in requesting a FISA warrant.
  I want to be clear about one point that apparently came up this 
morning. I understand the Senator from Arizona argued this morning that 
this amendment would weaken or impact on the FISA law as a whole. That 
is just not true. This amendment applies only to the changes made in 
the bill to address the lone wolf problem. It is a narrow, carefully 
drafted, very important amendment to this bill.
  Any concern that the FISA judges would not use their discretion 
wisely is, I think--as the Senator from California pointed out--
misplaced. What is the reason for any concern whatsoever about the 
proper use of this provision by judges? In the 23 years that the

[[Page 10816]]

FISA court has been reviewing FISA applications, they have only 
declined to issue the warrant on one occasion. In that case, the 
decision of the court was reversed on appeal. The FISA judges clearly 
take their responsibility seriously and execute it carefully. The 
experience of the last two decades shows we can trust them not to the 
deny FISA applications too hastily. We should also be able to trust 
them enough to maintain their power to serve as a reasonable check on 
Government overreaching.
  We are told that one of the inspirations for this bill was the case 
of Zacarias Moussaoui, the alleged 20th hijacker. One of the FBI's 
excuses for not seeking a warrant to search Mr. Moussaoui's computer 
prior to September 11 was that they could not identify a foreign power 
or group with which Moussaoui was associated. In other words, they 
could not meet the agent of a foreign power requirement to get a FISA 
warrant. In the case of Moussaoui, a warrant application was never even 
submitted to the FISA court.
  As Senator Specter pointed out, many legal observers think the FBI 
simply misread the law, and it could and should have obtained a FISA 
warrant against Mr. Moussaoui if it had tried.
  No matter, in any event, Senator Feinstein's amendment would fix the 
so-called Moussaoui problem just as well as the current bill. The 
permissive presumption would still ensure that future investigators do 
not need to show specific evidence of a particular foreign power or 
group for which the individual was an agent if they have other good 
evidence that the subject is preparing to engage in international 
terrorism, as they did in Moussaoui's case, but have not been able to 
identify the specific agent of a foreign power.
  At the same time, Senator Feinstein's formulation would put some 
limit on the Government's ability to use this new power to dramatically 
extend FISA's reach. If the Government comes to a conclusion that an 
individual is truly acting on his or her own, then our criminal laws 
concerning when electronic surveillance and searches can be used, in my 
view, and I think in the view of many, are more than sufficient. True 
lone wolves can and should be investigated and prosecuted in our 
criminal justice system.
  Under this amendment, the FISA court could presume that any non-U.S. 
person preparing to engage in international terrorism is an agent of a 
foreign power. At the time of the initial warrant application, and 
perhaps even later, this presumption makes sense. It is somewhat 
difficult to envision a foreigner in the United States planning an 
international terrorist attack who is not an agent of a foreign power, 
which includes a terrorist organization. But one can envision a 
situation where, at the time of a request for a reauthorization, a FISA 
warrant is made, the Government has now determined that the suspect is 
truly a lone wolf.
  In those situations where the person is simply a lone wolf in every 
sense of the word and is not connected with a foreign power or 
terrorist organization, FISA should not apply. The Government should 
then use all the tools of the criminal process because--and this is the 
key issue--in that circumstance, the foreign intelligence rationale, 
the entire basis for the creation of a FISA law, that entire rationale 
for FISA's lesser standard no longer exists.
  Senator Feinstein's amendment retains FISA's agent of a foreign power 
requirement, maintains the independence of the FISA court, and 
preserves judicial oversight of the abuse of the new power. It protects 
national security by addressing the lone wolf problem, and it does not 
threaten the constitutional freedoms we cherish.
  I am grateful to the Senator from California for her leadership role 
on this important amendment. I strongly urge my colleagues to support 
this reasonable amendment that will simply make this a much better bill 
and, frankly, a bill that would cause many of us to feel comfortable 
supporting the bill.
  I urge my colleagues who are proponents of this bill to consider how 
important it is that we have as many Senators as possible support such 
a bill. This goes right to the heart of the question of whether in 
times of crisis this Nation is going to get the balance right between 
civil liberties and our Constitution and the important paramount issue 
of fighting terrorism. We need as many people supporting this to send a 
message to the American people that we are getting this right. The 
Feinstein amendment is a reasonable, modest attempt to achieve that 
kind of consensus. I urge my colleagues to support it.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from New York.
  Mr. SCHUMER. I thank the Chair.
  Mr. President, I rise in reluctant, but considered, opposition to the 
amendment of my good friend from California. I thank her and the 
Senator from Wisconsin for their roles in this area. My colleague from 
California and I usually share many of the same views on law 
enforcement issues, and we work closely together. I say usually, it is 
the other way around. I am on one side, and she is trying to put 
together the compromise. Now she is trying to put another compromise 
together. I respect her for that.
  I say to the Senator from California and the Senator from Wisconsin, 
who is a devout believer in the freedom and liberty this country 
cherishes and a constant watchdog on our committee, I have great 
respect for both of them. This is a good debate because in our brave 
new post-9/11 world, we have to balance liberty and security and, 
obviously, some adjustments have to be made.
  The Founding Fathers knew that in times of war, in times of crisis, 
security might gain a little. I do not think this is an issue of 
security versus liberty, though. I do think it is an issue of the new 
technologies that are available and allows individuals or small groups 
of individuals unknown before to do real damage to America. Then 10 
years ago, you knew who was going to hurt you. It would be a nation. It 
would be an established group of terrorists. But today, any small group 
can pop up, even individuals, and do such damage. That is what has 
caused the Senator from Arizona and I to change the law.
  I think the Feinstein amendment is well-intentioned, and honestly it 
recalibrates the balance in a little different way than I would. This 
is what the debate is about. My guess is, if Washington, Jefferson, or 
Madison were looking down on the Senate Chamber, they would want us to 
have this debate. It is a good thing we are having this debate. I 
appreciate it.
  I am going to be brief. I know we want to deal with this amendment.
  My objection to the amendment of the Senator from California is that 
it does leave discretion in the hands of the judge--the very purpose of 
the amendment. I do not think there ought to be discretion when there 
is probable cause that some individual or small group, whether they can 
be connected to a terrorist group, a known terrorist group, a terrorist 
organization or not--I do not think there should be discretion in 
getting that FISA warrant. Obviously, the judge will have discretion, 
so to speak, in determining if probable cause is there. So this is 
hardly a straitjacket, even the amendment we have proposed.
  If the judge does not find probable cause to engage or prepare to 
engage in terrorist activity, there is not going to be a warrant.
  The other point I want to stress, of course, and this matters to me--
I know some in the civil liberties community say everyone who is 
dealing with American law should have the same rights. This does not 
affect citizens or those who hold green cards. I think it strikes a 
fair balance. The idea of giving the judge discretion, the so-called 
permissive presumption, in my judgment, goes too far.
  One of the problems we had with the Moussaoui case was that the FBI 
was unsure that they could seek a warrant. They did not think the law 
allowed them to seek a warrant. That is what brought up our amendment.
  With the Feinstein amendment, they would still not have that 
certainty. You also might get in the very same

[[Page 10817]]

case a judge in California ruling one way and a judge in New York 
ruling another way. I do not think we want confusion, differing 
opinions, judicial discretion when clearly probable cause is met.
  I realize that my good friend from California seeks an ability to 
check on the abuse of FISA. I agree with her. I argue this is the wrong 
way to do it. Again, if probable cause is established, it should not 
matter if it is a lone wolf or a known terrorist group or a known 
terrorist organization. To have different judges come to different 
conclusions about that I do not think helps move our law, move our 
safety, or, for that matter, further protect our liberties.
  I urge my colleagues to vote against this amendment. It is well 
intentioned. It does seek to understand the balance between liberty and 
security, but it would do it in a way that I think is not advised, 
particularly in our post-9/11 world. I urge my colleagues to vote down 
the amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, first let me address Senator Feingold. He is 
correct about the misstatement I made this morning. I do recall making 
this statement that the Feinstein amendment would apply generally to 
the section of law rather than just S. 113. The Senator from Wisconsin 
is correct. What I said was in error. It does not detract from my 
primary argument, but that is correct, and I appreciate him pointing 
that out.
  I wish to respond to the three primary arguments we have heard. First 
of all, Senator Leahy primarily was making the point that we should see 
if the Patriot Act is working before we make the changes that Senator 
Schumer and I and others are trying to make.
  First, I note that the vote in the Judiciary Committee was 16 to 0. 
It was unanimous. I appreciate the bipartisan support from people such 
as Senator Leahy and would note that we have had that kind of 
bipartisan support from the very day that Senator--in fact, 2 years ago 
it was Schumer-Kyl, now it is Kyl-Schumer, for obvious reasons.
  Secondly, this has nothing to do with the PATRIOT Act. The FISA law 
was put into effect in 1978, I believe it was. So this is a law that 
has been in effect for a long time. The problem with it is that a 
significant change has occurred on the international stage. As has been 
pointed out, the law was originally intended to deal with Soviet spies, 
foreign powers, or international terrorist organizations such as the 
Red Brigade, the Baader-Meinhof gang and people like that.
  In that day, it was a tight-knit group of people who actually worked 
as a terrorist organization. But today, as the testimony before the 
Intelligence Committee went into in detail, it is now a worldwide 
Islamic jihadist movement. It is about a cause rather than an 
organization.
  The FBI Director, whose testimony I read this morning, went into a 
great deal about how, therefore, the people who work in this 
international cause are very different from the old members of the 
gangs or the Soviet spy network, and to try to pigeon hole a FISA 
warrant against these individual people into the provisions of the law 
as it was originally drafted is really not possible. That is why the 
FBI would not go after a warrant for Zacarias Moussaoui. It is why 
Agent Rowley was very upset about it. But at the end of the day, 
headquarters was probably right not to try to make out the case that 
Zacarias Moussaoui was somehow connected to an international terrorist 
organization. They found some tenuous connections with some Chechen 
rebels but at the stage that the warrant was corrected they could never 
tie it into an international terrorist organization. We now know 
subsequent to the issuance of the warrant that there were some ties to 
al-Qaida, but he may be a good example of the lone-wolf terrorist.
  So that is why times have changed. The law has to change to keep up 
with this. Otherwise, we would not be suggesting this rather modest 
change in the law.
  The people against whom we are now directing our surveillance with 
respect to international terrorism are a very different group of 
people. Much of the time they do not act in concert and sometimes they 
enact as lone wolves.
  That gets me to the next point. As I understand it, Senator 
Feingold's primary argument is that we should have this kind of 
surveillance against agents of foreign powers, but that we should not 
have it against lone wolves. Of course, the Feinstein amendment 
provides a presumption that the lone wolf is an agent of a foreign 
power.
  That is not our point. We are not trying to prove the lone wolf is an 
agent of a foreign power. I do not want to have a presumption in there 
that presumes something that we are not even alleging. Sometimes our 
U.S. Government is going to say, we do not have any reason to believe 
this person is connected to an international terrorist organization or 
a foreign power, country. We are not alleging that. We are alleging 
that he is a person engaged in or about to engage in a terrorist 
action, we have probable cause to believe that. That standard remains 
the same and, therefore, we want to, what, prosecute him? No, get a 
warrant to see what else he is doing.
  So this amendment does not match up with what we are trying to do. We 
are not trying to prove that they are agents of a foreign power. We are 
providing the court with evidence that a non-U.S. person is engaging in 
or about to engage in activities involving terrorism against the United 
States and, therefore, the court is warranted in allowing us to 
investigate it further. We do not want the presumption because in many 
cases that is not what we are trying to prove.
  The important point is a point I would like to make in response to 
Senator Feingold and that is that there still has to be international 
terrorism involved. It is not as if we are going after people because 
we do not like their nationality or something of that sort. We are 
dealing with a very sophisticated court that is not a kangaroo court; 
it is the FISA court, and they have not turned down warrants because 
the Justice Department has been very careful to make sure they have all 
the evidence that is needed.
  I will tell my great friend Senator Feinstein and just make a 
footnote--I said it this morning but I will say it again--I cannot 
remember a time that she and I disagreed on a matter involving 
intelligence or law enforcement activities. It just does not happen 
except this one time. I guess the exception proves the rule. There is 
nobody in the Senate with whom I have enjoyed working more on these 
matters. Witness the fact that Senator Feinstein and I have been the 
chairman and ranking member alternately of the Terrorism, Technology, 
and Homeland Security Subcommittee of the Judiciary Committee ever 
since I came to the Senate. It has been a wonderful relationship, and 
there is nobody in this body that I admire more.
  So I want to answer this question very specifically, because if I 
understood one of her arguments, it was that we have changed the 
probable cause standard, and we have absolutely not done that. In fact, 
in response, I think to a suggestion of one of our Democratic 
colleagues, we had the language exactly tracked in the statute, and I 
will read it precisely. This is in 50 United States Code, section 1801, 
the definitions section under foreign power. I will not read the whole 
thing, but No. 4 is ``a group engaged in international terrorism or 
activities in preparation therefor.''
  Then, under ``agent of foreign power''--and, remember, this is where 
we have the definition of a non-U.S. person. We had the third category. 
We tracked the language precisely--``engages in international terrorism 
or activities in preparation therefor.'' It is the exact same language.
  So the probable cause standard remains identical. In very simple 
terms, this is what the U.S. attorney would have to say: Judge, here is 
my affidavit and what it says is that Joe Blow is a non-U.S. citizen. 
Here is the documentation for that, and here are the

[[Page 10818]]

activities that we have probable cause to believe he is engaging in.
  So it is the probable cause standard. What would satisfy that test? 
Let me be very precise in the order that I present this.
  Under this section of definitions--and our bill is the same as S. 
2568, which the Justice Department was referring to when it made this 
comment, someone who is involved in terrorist acts:

       That transcend national boundaries in terms of the means by 
     which they are accomplished, the persons they appear intended 
     to coerce or intimidate, or the locale in which their 
     perpetrators operate or seek asylum.

  This is quoting from 50 United States Code, section 1801(c)(3):

       As a result, a FISA warrant would still be limited to 
     collecting foreign intelligence for the international 
     responsibilities of the United States, and the duties of the 
     Federal Government to the States in matters involving foreign 
     terrorism.

  That is quoting from a court case that interpreted the provision.
  Therefore, according to the Justice Department, the same interests 
and considerations that support the constitutionality of FISA as it now 
stands would provide the constitutional justification for S. 2568, 
which is the predecessor to S. 113, which is the bill before us.
  So the definition is the same, the probable cause standard is the 
same, and the nexus to international terrorism is the same. None of 
that changes. The only thing that changes is that we add non-U.S. 
person so you can get to the lone wolf and do not have to either assert 
that the person is involved with an international terrorist 
organization or foreign power or presume that the individual is, 
because that person may well not be.
  Finally, Senator Feinstein made the point that under proper 
circumstances, S. 113 would allow the search of a solo international 
terrorist and the answer is, yes, that is exactly what it would allow. 
And especially with today's weapons, which allow even a solo terrorist 
to be able to cause enormous destruction, the FBI should be able to 
monitor such a terrorist if it can convince the court that probable 
cause exists that would otherwise be the standard in any kind of FISA 
warrant request.
  I think those are the answers to the allegations that have been made 
in support of the Feinstein amendment. I think it gets right down to 
what Senator Feingold said, which is that there is simply disagreement 
about whether the lone wolf should be the subject of this statute. 
Obviously, if the amendment were to be adopted, we have our purpose, 
which is to add the third category.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from 
Arizona for his personal comments. He knows I have thoroughly enjoyed 
working with him. It is unusual--as a matter of fact, I cannot remember 
in all these years when we have ever been on opposite sides of one of 
these questions.
  Let me state to the Senator my great fear. We all forget beneath the 
surface this Government has tremendous power. When that power is 
exercised against a person in this country, alone as a visitor, has no 
rights, it is enormous what can happen. What my deep concern is that 
overzealous prosecutors will use this where they should use title III 
and get a criminal warrant instead of a FISA warrant because of the 
removal of the agent of the foreign power. We keep the connection with 
the basics of the FISA statute which is surveillance related to an 
agent of the foreign power. We keep that. That is the justification for 
FISA. We give the judge the ability to make that as a presumption--
ergo, giving the judge some discretion not to make it, and therefore 
the individual seeks the warrant--an FBI agent or whoever it is--goes 
to title III and gets a criminal warrant.
  Once you get a FISA warrant, the benefits from the law enforcement 
side of the FISA warrant are much greater than the title III warrant.
  It is a small protection. I don't believe, in my heart of hearts--and 
if this were to pass and the Senator from Arizona showed me that it did 
in any way prevent the FISA court from exercising its discretion just 
as you want it to, I will change it. I would be the first one to come 
back.
  It prevents this misuse of a prosecutor who should be getting a title 
III warrant, who will come to the FISA court instead because the FISA 
court will be a rubberstamp, and because myself, a visiting Indian, 
Pakistani, Muslim, Frenchman, Italian, anybody in Los Angeles who 
happens to have in their pocket a one-way ticket and maybe a pocket 
knife--a box cutter may be out of date--and somebody has a suspicion, 
they do not have to prove anything. And they can surveil me, they can 
wiretap me, they can exert all of the surveillance powers that are used 
under FISA. They do not know whether I am going to commit a criminal 
act and they have no evidence of anything else. That is what title III 
is for. Title III has a little heavier cause burden, but as the Senator 
said, there is probable cause in both.
  But the benefits of the FISA warrant are superior to the benefits of 
the title III warrant in their duration. So you can do all this to 
somebody for 90 days instead of 30 days and you do not have to come 
back and renew the warrant once every year. That is my concern.
  As I read your legislation, there is no discretion. That is the 
problem I have with it. This is such a slight change, it is kind of a 
little tweak that a judge can say, hey, now, let's wait and see what 
you are doing here.
  If the Senator would like to respond, I am happy to yield.
  Mr. KYL. If I could, the Senator from California has been talking 
about discretion, and I guess I begin by asking a question.
  Does the Senator intend the presumption language would apply both to 
the definition of the individual as an agent of a foreign power and 
relative to the activities in which the individual is allegedly 
engaging?
  Mrs. FEINSTEIN. The presumption would be that the target or the 
individual would be an agent of a foreign power. Otherwise, you could 
have this against the Unabomber, Oklahoma City. Of course, they are 
American citizens, so I understand that does not apply, but that same 
kind of situation.
  Mr. KYL. There are two things the court will have to determine. 
First, that this is a warrant that should be issued, that there is 
probable cause the underlying crime is being committed or activities 
engaged in for the preparation of a crime. And second, it lies against 
a particular kind of person we are talking about. In regular title III 
court you do not have the second requirement, but in FISA court you 
have to prove the person is either an agent of a foreign power or 
foreign intelligence organization, and we are adding this third 
criteria.
  So the court has to make a 100 percent determination in both of those 
matters. If the court cannot find any evidence in the affidavit that 
the individual is not a United States citizen, for example, the court 
would have no discretion and have to deny the warrant. But if the court 
found part of the warrant was satisfied, this person is clearly a non-
United States citizen, then, number two is satisfied; go back to number 
one, which is the question, Do we have probable cause to believe the 
person is engaging in the kind of activities that the statute discusses 
here.
  That is not necessarily a matter of discretion so much as it is a 
matter of a court weighing the affidavit presentation and determining 
whether it is sufficient to meet the probable cause standard.
  Mrs. FEINSTEIN. What I don't understand is why you do not want to 
give the judge that small bit of discretion with a presumption. The 
judge can presume it. We both know the history and the history is 100 
percent if you include the appeal of FISA judges in granting warrants. 
So there will not be a problem there.
  I am concerned about the overreach. I am concerned about the misuse. 
And the only way we could figure to counter that was to keep the agent 
a foreign power, provide this presumption that a judge could use in 
that one case.
  Senator, neither you nor Senator Feingold nor I would ever know if

[[Page 10819]]

there was an overreach. That is what makes this far more dangerous, the 
fact that it is so secret.
  Mr. KYL. If I could respond to the last point.
  The matter about which the court has some degree of discretion is in 
the way it weighs the affidavit presentation relative to the underlying 
predicate for the warrant, the activities that are being engaged in, 
the purchase of the ticket, the presence of box cutters, all that 
information. The court weighs all that. It is presented in the 
affidavit, and the court makes a decision. It is enough or it is not 
enough. To some extent, you can say that is discretion. It is really 
applying the evidence to the probable cause test, weighing it and 
determining whether the evidence meets the case. In any event, that is 
where the court has some leeway to decide.
  Where the court does not have any leeway is to something that is 
either a fact or it is not. That is, Does this person qualify or not? 
That is to say, is the person an appropriate subject for the warrant or 
not?
  If you were asserting, for example, that the individual was a member 
of the Baader-Meinhoff gang, there would have to be evidence in the 
affidavit that is clear enough for the court to reach that conclusion 
or the court would say, sorry, this person does not qualify for a FISA 
warrant. I cannot find enough evidence in here that he is a member of 
the Baader-Meinhoff gang or a spy for the Soviet Union.
  But with respect to whether this person is a non-United States 
person, that is something that will either be fairly true or not. It is 
either going to be true or not. The court is either going to be faced 
with a situation where the evidence is overwhelmingly clear in the 
affidavit and the United States attorney says it is very clear this 
person is not a United States citizen, here is the evidence we have, 
and the court will say, I agree. Or the court will say, all you have 
done is assert that the person is a non-United States citizen. I don't 
have any basis to know that or not. Where is your evidence to know that 
he is a non-U.S. citizen? So I am not going to grant the warrant. But 
that is the basis on which the court is going to make that judgment.
  The court is not going to say there is a provision here that says I 
can presume that this individual is an agent of a foreign power and 
therefore I can have some leeway here to decide whether or not the 
warrant lies against this individual. The Government is either going to 
assert that the person is an agent of a foreign power or not. If the 
Government is saying no, we don't think this person is working for some 
foreign power, we think he is working on his own or at least we don't 
have any evidence to suggest he is anything other than an international 
terrorist traveling all around the world training and picking up 
different things and so on, but he is a dangerous guy and here is the 
reason we believe he is dangerous, a presumption at this point doesn't 
get you anywhere.
  The court has no direction to go in. If you say there is a 
presumption that he is an agent of a foreign power and the Government 
is not trying to prove he is acting for a foreign power, what has this 
definition gained us? There are situations in which the Government 
simply isn't going to allege that the person is an agent of a foreign 
power; it is only going to allege that he is a lone wolf, but look at 
all the bad things he has done or is doing. If they are sufficient to 
grant a warrant, if there is probable cause there, the court can do it. 
If the court says it is not quite sufficient yet, get some more 
information, then he will deny the warrant.
  The PRESIDING OFFICER. Who yields time?
  Mrs. FEINSTEIN. I will yield time, Mr. President, and I will be very 
happy to have Senator Feingold in this.
  I think this is really the kind of discussion that we should be 
having. I welcome the free flow.
  If I knew a better way of solving the problem Senator Kyl mentioned, 
I would do it. But my view and what Intelligence staff and others have 
said to me is that the way it is worded creates a rubberstamp out of a 
FISA judge, once you take out that agent of a foreign power connection. 
I guess the reason they believe that is that it puts them into the 
other side, the title III side.
  If I could think of another way, I would. But it is one added 
guarantee against an overreach. You and I have both known zealous 
prosecutors. You and I have both known people who would misuse this. 
The question comes, How do we prevent misuse from happening?
  I am happy to yield to Senator Feingold.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I again thank the Senator from 
California for yielding time and for her leadership. I thank the 
Senator from Arizona. He is a person of great integrity, and the way he 
concedes if he didn't say something exactly perfectly this morning is 
an example of exactly the kind of relationship I have with him on these 
debates. They are good debates. I appreciate that.
  It is also true the Senator from California and the Senator from 
Arizona almost always agree on these kinds of issues. They are one of 
the most formidable combinations here in the Senate, in a bipartisan 
combination. I take great pride in the bipartisan work I have had a 
chance to do with people such as the other Senator from Arizona and the 
Senators from Maine.
  So I take my hat off to them for having done that. I have often been 
on the other side of their view, which is not easy because they are 
well prepared and they are very dedicated and they like to get things 
done.
  I guess that is why I think this is kind of a significant moment, 
when Senator Feinstein and I actually agree on a point, when the two of 
you so frequently agree. I think it is a sign that there is something 
that needs to be fixed in this bill.
  It is modest, but it is very important. I remind the Senator from 
Arizona that I think I essentially said this: I voted for this in 
committee in the hope it would be fixed on the floor.
  My goal here is not to kill this bill. I do know how to vote against 
bills I don't like. My goal is to fix it because I think there is a 
problem with this issue. That is where we are with this amendment. This 
is an attempt to fix this bill on a very important point without, in my 
view, doing any serious harm at all to the goal of the Senator from 
Arizona and the goal of the Senator from New York.
  The way I understand this operates is that in these cases the FISA 
court is going to grant this warrant upfront, essentially every time in 
the first request, because there will be the evidence or the 
presumption that there is a problem.
  Where this, the Feinstein amendment, has a real impact is where they 
come back later and they have to come back for a renewal. If after a 
couple of years there is just no evidence at all or virtually no sign 
at all that the original belief about what this guy was about to do 
isn't bearing any fruit at all, in that case, and only in that case, 
should this, in terms of our laws and our tradition, be returned to the 
regular criminal court--only in that circumstance.
  In other words, yes, the Government was trying to protect the 
American people, as they should. They had a person here who they 
believed might have a connection to a foreign power or be connected to 
a terrorist organization. But it turns out after some period of time 
that it just didn't happen to be one of those cases where that was 
true.
  It is still a person who intended, perhaps, to do something very 
wrong. It is still a person who should be prosecuted. But it is a 
person who deserves the protections of the laws of the United States--
because I am sure the Senator from Arizona agrees with me, barring this 
unusual kind of circumstance that is the basis for the FISA law, 
everyone who commits a crime on our soil, whether an American citizen 
or not, is entitled to the protections of our Constitution and the Bill 
of Rights in a criminal proceeding.
  The FISA law is only a narrow exception to that. So let's be very 
clear on the record. I do want to get at these

[[Page 10820]]

lone wolves who may have some connection to international actors, such 
as foreign powers, or to terrorist organizations. As the Senator from 
California pointed out, if it is simply a person committing a bad act 
on our soil, a person who is not an American citizen, that is what our 
criminal courts are for. That is what title III is for. That is the 
foundation of our system.
  This is really an incredibly narrow exception, a backstop, a 
safeguard to make sure that the good intentions of what this bill is 
all about don't go too far. That is what the Senator from California 
said, so that there is not overreaching.
  I have just one other point about what the Senator from New York 
said. He seemed to be setting up a scenario where there might be a 
conflict between the FISA judges, almost as if there were different 
circuits like in the regular courts. That is not the way the FISA 
courts are set up. There are different FISA judges, but together they 
constitute the appeals courts. There would not be different areas of 
the country that would have different laws of this kind of thing that 
would present any kind of problem in terms of a conflict in the 
circuits. I don't think this argument holds up.
  Let me return to the point. The Senator from California has been so 
careful in making sure this is just a safeguard down the line, when 
somebody has been identified as a potential lone wolf and it does not 
really pan out, that there is some discretion rather than a permanent 
warrant into perpetuity for eavesdropping on somebody who certainly 
maybe needs to be evesdropped upon, but for whom that authority should 
be obtained through the normal criminal procedure, not on the basis of 
a law that was crafted under the assumption that this is a foreign 
threat to our Nation.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Arizona.
  Mr. KYL. Mr. President, first of all, I thank Senator Feingold for 
the kind words he had for me and my colleague from Arizona, Senator 
McCain. I just spoke with Senator Feinstein.
  I don't think either of us has a whole lot more to say here. I think 
Senator Rockefeller may wish to speak and there may be others.
  I urge anyone who would like to speak to this amendment to come to 
the floor and speak because otherwise I think we are getting close to 
the time when we could vote.
  I inquire of the Chair, how much time remains on both sides on this 
amendment?
  The PRESIDING OFFICER. The Senator from Arizona has 98 minutes 
remaining. The Senator from California has 68 minutes remaining.
  Mr. KYL. I think there is a little time left on the debate time as 
well, but I am prepared to yield that back when we are done with this 
amendment, as would Senator Schumer.
  We could either note the absence of a quorum and wait a few minutes 
for somebody else or I could yield the floor to someone?
  Mrs. FEINSTEIN. Mr. President, I suggest the absence of a quorum. I 
know Senator Rockefeller is on his way.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I thank the distinguished Presiding 
Officer. I thank the Senator from California whose amendment to S. 113 
I rise to support. I am a cosponsor of her amendment.
  We live in a time in which we can never feel completely safe. There 
are terrorists throughout the world and here at home who have sworn to 
kill Americans. That is what they are trained to do. That is what they 
want to do. That is what they plan to do. We fight a war knowing that 
it may increase the terrorist threat against us. We buy duct tape and 
plastic sheeting. We plan escape routes for our families. We make 
decisions about whether to go to public events or ride a subway, or do 
all kinds of things. Does it change our lives or not? We are not even 
sure of that yet.
  In times such as this, we in Congress have a special responsibility. 
We must be vigilant in our lawmaking and our oversight to make certain 
that the executive branch, our intelligence, and law enforcement 
agencies have all the legitimate tools to do their jobs in an efficient 
and effective way.
  But our responsibility does not end there. It is easy to write laws 
to remove obstacles to prevent the Government from obtaining 
information. We have done that. Our challenge is to write laws that 
strengthen our security without undermining privacy and liberty. This 
is something our Nation has never faced before in the way which it is 
now going to be facing for the next several years.
  It is our responsibility to look very closely at every piece of 
legislation related to fighting terrorism and ask: Do we need it? Does 
it make us feel safer? Yes. But do we really need it? Does it 
accomplish the goals we are seeking? And does it go too far?
  I have cosponsored the Feinstein substitute amendment to S. 113 
because I believe the language of the substitute is crafted carefully--
very carefully--to accomplish our goals in the fight against terrorism 
without going too far.
  Mr. President, I would like to explain why I believe that.
  The Foreign Intelligence Surveillance Act of 1978 was designed to 
regulate the collection of foreign intelligence inside the United 
States using electronic wiretaps. Later, physical searches were added 
to the law.
  Before FISA, the Foreign Intelligence Surveillance Act, the executive 
branch ran wiretaps for national security purposes without judicial 
review, without approval of any sort. Such wiretaps were potentially 
unconstitutional and, because of that, threatened the viability of 
espionage prosecutions and raised serious questions regarding civil 
liberties.
  The Congress enacted FISA with the recognition that our national 
security required the collection of foreign intelligence in the United 
States through intrusive means under different circumstances and using 
different standards than in the criminal warrant context, and the 
courts have upheld the constitutionality of FISA.
  The purpose of FISA is the collection of foreign intelligence. The 
standard used to distinguish between FISA collection and wiretaps 
related to criminal activity involves a determination that the target 
is a ``foreign power'' or linked to a ``foreign power.'' In the case of 
terrorists, the Government must show the target is an ``agent of a 
foreign power,'' a terrorist group operating overseas.
  Both S. 113 and the Feinstein substitute address and solve the 
following problem: What if you have a non-U.S. person in the United 
States who is engaging in or preparing to engage in international 
terrorist activities, but the Government does not have enough evidence 
to link him to an overseas group?
  Both S. 113 and the Feinstein substitute eliminate the requirement 
that the Government produce to the FISA court evidence showing a direct 
link between the target and a foreign terrorist group.
  So why is the Feinstein substitute better?
  Under S. 113, the Kyl-Schumer bill, a key principle of FISA is 
eliminated. Even if the Government has actual evidence that the target 
is not connected to a foreign terrorist group, under Kyl-Schumer, the 
Government can still get a FISA wiretap order. This simply goes too 
far, and it is not necessary, in the judgment of this Senator.
  If we know for certain a person really has no foreign connections, if 
he or she is a true ``lone wolf''--a foreign ``Unabomber,'' for 
example--then it is a straightforward criminal investigation. There is 
no foreign intelligence to be gotten at all, and that person is not a 
valid target under FISA.
  The Feinstein substitute gets the Government everything it wants 
without changing FISA in a way that damages its basic premise; to wit, 
FISA is

[[Page 10821]]

for the collection of foreign intelligence and should not be used when 
the only objective at hand is the collection of criminal evidence.
  Mr. President, I commend the carefully crafted solution offered by 
the Senator from California to a very difficult problem. As the vice 
chairman of the Intelligence Committee, I am proud to cosponsor this 
amendment, and I urge my colleagues to vote for it.
  I thank the Presiding Officer and yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, first, I ask unanimous consent to have 
printed in the Record a letter dated April 30, 2003, to Chairman Orrin 
Hatch from the Department of Justice relative to this legislation, and 
specifically an analysis of the amendment proposed by Senator Feinstein 
on pages 5 and 6.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                            Department of Justice,


                                Office of Legislative Affairs,

                                   Washington, DC, April 30, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: This is in response to your request for 
     the Administration's views on various proposed amendments to 
     S. 113, a bill that would amend the Foreign Intelligence 
     Surveillance Act of 1978 to permit electronic surveillance 
     and physical searches of so-called ``lone wolf'' 
     international terrorists--i.e., non-United States persons who 
     engage in international terrorism or activities in 
     preparation therefor without any demonstrable affiliation 
     with an international terrorist group or other foreign power. 
     On March 5, 2003, the Administration sent a letter indicating 
     its support for S. 113 (copy attached). The Administration, 
     however, is greatly concerned that this important FISA 
     amendment would be subject to a sunset provision included in 
     the USA PATRIOT Act of 2001. The Administration opposes the 
     sunset language, and looks forward to working with Congress 
     to ensure that this FISA amendment and those other portions 
     of the USA PATRIOT Act subject to the sunset provision are 
     addressed at the appropriate time. For reasons set forth 
     below, we oppose the proposed amendments to S. 113. In 
     particular, the Administration is concerned that the proposed 
     amendments would weaken the FISA as an important instrument 
     in the arsenal of the United States Government in combating 
     terrorism and the espionage activities of foreign powers.
       Authority of the FISC and FISCR. The first proposed 
     amendment to S. 113, entitled ``Sec. 2. Additional 
     Improvements to Foreign Intelligence Surveillance Act of 
     1978,'' would add a provision to 50 U.S.C. Sec. 1803 to grant 
     the Foreign Intelligence Surveillance Court (``FISC'') 
     authority to ``establish such rules and procedures, and take 
     such actions, as are reasonably necessary to administer their 
     responsibilities under this Act.'' The Administration opposes 
     this grant of authority to a court that has an extremely 
     limited statutory function of approving or disapproving 
     applications made by the Government of orders with respect to 
     electronic surveillance and search. Granting rulemaking 
     authority by statute to the FISC and the FISCR--courts that 
     operate in secret and that are of very limited jurisdiction 
     that is specified in detail in the FISA--is inappropriate.
       Reporting Requirements. A second group of related 
     amendments would require additional reporting concerning the 
     use of FISA. Each is objectionable for reasons discussed 
     below.
       a. The first reporting amendment would require public 
     disclosure of the number of United States persons targeted 
     under various provisions of FISA. Under current law, the 
     Department publicly reports the annual aggregate number of 
     FISA searches and surveillances, but does not disclose 
     publicly how many of those searches and surveillances 
     involved United States persons. See 50 U.S.C. Sec. Sec. 1807, 
     1826. The proposal also would require public disclosure of 
     the number of times the Attorney General authorized the use 
     of FISA information in a criminal proceeding--a statistic 
     that currently is reported to the Intelligence Committees as 
     part of a longstanding, carefully constructed, and balanced 
     accommodation between the Executive and Legislative branches 
     and in accordance with the FISA itself. See 50 U.S.C. 
     Sec. 1808(a)(2)(A). Finally, the provision would require 
     disclosure of portions of FISA pleadings and orders that deal 
     with significant questions of law (not including discussion 
     of facts) ``in a manner consistent with the protection of the 
     national security of the United States.'' Each of these three 
     reporting requirements is addressed below.
       We oppose a requirement to disclose publicly the number of 
     FISA targets that are United States persons. Congress has in 
     the past considered and rejected proposals to require 
     disclosure of this information to the general public rather 
     than to the Intelligence Committees. In 1984, the Senate 
     Select Committee on Intelligence was ``asked by the American 
     Civil Liberties Union to consider making public the number of 
     U.S. persons who have been FISA surveillance targets.'' S. 
     Rep. No. 98-660, 98th Cong., 2d Sess. 25 (1984). The 
     Committee rejected that proposal because ``the benefits of 
     such disclosure for public understanding of FISA's impact 
     would [not] outweigh the damage to FBI foreign 
     counterintelligence capabilities that can reasonably by 
     expected to result.'' Ibid. As the Committee explained, 
     ``[a]ny specific or approximate figure would provide 
     significant information about the extent of the FBI's 
     knowledge of the existence of hostile foreign intelligence 
     agents in this country. As in other areas of intelligence 
     oversight, the Committee must attempt to strike a proper 
     balance between the need for public accountability and the 
     secrecy required for effective intelligence operations.'' 
     Ibid. This analysis is at least as applicable to foreign 
     terrorist organizations today as for foreign intelligence 
     organizations and the Administration continues to support the 
     balance that was struck in 1978 and reaffirmed in 1984.
       We also oppose a requirement to disclose publicly the 
     number of times the Attorney General has authorized the 
     disclosure of FISA information for law enforcement purposes. 
     This provision is problematic primarily because it is not 
     confined to cases in which FISA information is actually used 
     in a proceeding. Revealing the number of Attorney General 
     authorizations for such use--as opposed to the use itself--is 
     troubling because that information could involve classified 
     and non-public matters with ongoing operational 
     significance--e.g., an investigation that has not yet 
     resulted in a public indictment or trial, or in which no 
     indictment or trial ever will occur. Thus, these numbers 
     potentially could reveal information about the Department's 
     classified, operational efforts to protect against the 
     activities of foreign spies and terrorists.
       Finally, we believe that the disclosure of FISA pleadings 
     and orders that deal with significant questions of law is 
     inherently inconsistent with ``the protection of the national 
     security of the United States.'' Virtually the entirety of 
     each application to the FISC discusses the facts, techniques, 
     or pleading of highly classified FISA operations. As we noted 
     in our letter of August 6, 2002, on predecessor legislation 
     in the 107th Congress, ``[a]n interpretation by the FISC of 
     the applicability of FISA to a technique or circumstance, no 
     matter how conceptually drawn, could provide our adversaries 
     with clues to relative safe harbors from the reach of FISA.'' 
     A copy of our earlier letter is attached for your 
     convenience.
       b. A separate but similar proposal, entitled ``Sec. 2. 
     Public Reporting Requirements Under the Foreign Intelligence 
     Surveillance Act of 1978'' and proposed by Senator Feingold, 
     also would impose public reporting obligations. Instead of 
     requiring the Department to report the number of FISA targets 
     who are United States persons, it would require reporting of 
     the number who are not United States persons, broken out by 
     the type of FISA activity involved--e.g., electronic 
     surveillance and physical search. This proposal also would 
     require the Department to identify individuals who ``acted 
     wholly alone.'' Like the proposal discussed above, this 
     proposal would require the Department to report the number of 
     times the Attorney General authorized the use of FISA 
     information in a criminal proceeding, and portions of FISA 
     pleadings and orders that deal with significant questions of 
     law ``in a manner consistent with the protection of the 
     national security of the United States.'' The objections set 
     forth above apply equally to this proposal.
       c. Finally, a very recent reporting proposal, also proposed 
     by Senator Feingold, would require an annual report on FISA 
     to the Intelligence and Judiciary Committees. The report 
     would include the classified statistical information 
     described above--including numbers of non-U.S. persons 
     targeted under each major provision of FISA--and would also 
     require submission of portions of FISA pleadings and court 
     orders. For reasons stated above and in our letter of August 
     6, 2002, we continue to oppose any requirement to submit 
     portions of FISA pleadings and orders. More broadly, we 
     strongly oppose the amendment because it threatens to upset 
     the delicate balance between the Executive and Legislative 
     Branches of government in the area of intelligence and 
     intelligence-related oversight and reporting.
       The FISA statute prescribes the types of information that 
     must routinely be provided to the Judiciary Committees. Under 
     current law, the Department of Justice provides to the 
     Judiciary Committees and makes public ``the total number of 
     applications made for orders and extensions of orders'' 
     approving electronic surveillance and physical searches under 
     FISA, and ``the total number of such orders and extensions 
     either granted, modified, or denied.'' 50 U.S.C. Sec. 1807; 
     see 50 U.S.C. Sec. 1826; 50 U.S.C. Sec. 1846 (similar 
     reporting requirement for numbers of pen-trap applications 
     and orders); 50 U.S.C. Sec. 1862 (similar reporting 
     requirement for numbers of applications and orders for 
     tangible things). The Department has, of course, consistently 
     met these statutory requirements.

[[Page 10822]]

       The FISA reporting obligations concerning the Intelligence 
     Committees are much broader. Under 50 U.S.C. Sec. 1808, the 
     Attorney General must ``fully inform'' the House and Senate 
     Intelligence Committees ``concerning all electronic 
     surveillance'' conducted under FISA, and under 50 U.S.C. 
     Sec. 1826 he must do so ``concerning all physical searches'' 
     conducted under the statute. In keeping with this standard, 
     the Department submits extremely lengthy and detailed semi-
     annual reports to the Intelligence Committees, including 
     specific information on ``each criminal case in which 
     information acquired [from a FISA electronic surveillance] 
     has been authorized for use at trial,'' 50 U.S.C. 
     Sec. 1808(a)(2)(B), and ``the number of physical searches 
     which involved searches of the residences, offices, or 
     personal property of United States persons,'' 50 U.S.C. 
     Sec. 1826(3). The reports also review significant legal and 
     operational developments that have occurred during the 
     previous six months. These classified reports are 
     painstakingly prepared in the Justice Department and are 
     obviously, from the questions and comments they generate, 
     closely scrutinized by the Intelligence Committees. See 
     generally S. Res. No. 400, 94th Cong., 2d Sess. (1976); H.R. 
     Res. No. 658, 95th Cong., 1st Sess. (1977).
       The ``fully inform'' standard that governs Intelligence 
     Committee oversight of FISA is the same standard that governs 
     Congressional oversight of the Intelligence Community in 
     general. See S. Rep. No. 95-604, 95th Cong., 1st Sess. 60-61 
     (1977); S. Rep. No. 95-701, 95th Cong., 2d Sess. 67-68 
     (1978); see also H.R. Rep. No. 95-1283, Pt. 1, 95th Cong., 2d 
     Sess. 96 (1978). The requirement to ``fully inform'' the 
     Intelligence Committees, rather than Congress as a whole, is 
     consistent with the long-standing legal framework and 
     historical practice for Intelligence Community reporting to, 
     and oversight by, Congress on matters relating to 
     intelligence and intelligence-related activities of the 
     United States government. Consistent with the President's 
     constitutional authority to protect national security 
     information, Congress and the President established reporting 
     and oversight procedures that balance Congress' oversight 
     responsibility with the need to restrict access to sensitive 
     information regarding intelligence sources and methods. The 
     delicate compromise--embodied in FISA and more generally in 
     Title V of the National Security Act of 1947, 50 U.S.C. 
     Sec. Sec. 413-415, and based on the preexisting practice of 
     providing only the intelligence committees with sensitive 
     information regarding intelligence operations--established 
     procedures for keeping Congress ``fully and currently 
     informed'' of intelligence and intelligence-related 
     activities. Under these procedures, the Intelligence 
     Community provides general, substantive, and, often, 
     classified finished intelligence information to several 
     committees of Congress, but generally provides classified 
     operational information only to the Intelligence committees. 
     Even with regard to the Intelligence Committees, the Director 
     of Central Intelligence and the heads of other intelligence 
     agencies are, under Title V, to provide such information only 
     ``to the extent consistent with due regard for the protection 
     from unauthorized disclosure of classified information 
     relating to sensitive intelligence sources and methods or 
     other exceptionally sensitive matters. 50 U.S.C. 
     Sec. Sec. 413a(a), 413b(b).
       Senator Feingold's reporting proposals would, in sum, 
     distort and damage the effective, longstanding accommodation 
     between the President and Congress, and between the 
     Intelligence and Judiciary Committees, over the handling of 
     classified operational intelligence information within 
     Congress. It is noteworthy that the current leadership of 
     both the House and Senate Judiciary Committees have expressed 
     their approval of the existing accommodation. In a press 
     release dated October 17, 2002, the Chairman of the House 
     Judiciary Committee stated that the existing accommodation 
     provides for ``reasonable, limited access, subject to 
     appropriate security procedures, to FISA information through 
     [the House Intelligence Committee].'' In addition, your 
     letter of February 27, 2003, to Senators Leahy, Grassley and 
     Specter on FISA matters stated that the existing 
     congressional oversight standards relating to FISA reflect a 
     ``careful balance between the need for meaningful oversight 
     and the need for secrecy and information security in the 
     government's efforts to protect this country from foreign 
     enemies.'' Moreover, you stated that your years of service on 
     both the Senate Judiciary Committee and the Senate Select 
     Committee on Intelligence have led you to conclude that the 
     existing accommodation allows Congress to exercise 
     ``appropriate, vigorous, robust and detailed oversight of the 
     FISA process.''
       Reporting on National Security Letters. The next proposed 
     amendment to S. 113, entitled ``Sec. 3. Improvement of 
     Congressional Oversight of Surveillance Activities,'' would 
     require additional reporting specifically addressing the use 
     of 18 U.S.C. Sec. 2709(e) in the context of requests made to 
     schools and public libraries. We are concerned that a 
     reporting requirement at this level of formality and 
     specificity would unduly increase the risk of public exposure 
     of the information, thereby jeopardizing our 
     counterintelligence and counterterrorism efforts.
       Presumption. Another proposal is presumably intended as a 
     substitute for S. 113 and would create a ``presumption that 
     certain non-United States persons engaging in international 
     terrorism are agents of foreign powers for purposes of the 
     Foreign Intelligence Surveillance Act of 1978.'' Under the 
     proposal, the FISC would be instructed that it ``may 
     presume'' that a non-United States person engaged in 
     international terrorism or activities in preparation therefor 
     ``is an agent of a foreign power'' as defined in FISA.
       By providing that the FISC ``may presume'' the target is 
     acting for or on behalf of an international terrorist group, 
     the proposal would confer discretion on the FISC without any 
     standards to guide the exercise of that discretion. 
     Accordingly, the effect of the proposal is uncertain. It is 
     conceivable that the FISC (or a reviewing court) would 
     indulge the presumption only where the Government had 
     established probable cause or something near to probable 
     cause that the target in fact was working for or on behalf of 
     a terrorist group. In that event, the proposal would be 
     useless or nearly useless. The unpredictability inherent in 
     the proposal also would significantly reduce its value even 
     if, in the end, the FISC and later courts interpreted it more 
     expansively in any particular case.
       Nor do we believe that there is a reason to use a 
     presumption--even a mandatory presumption--instead of the 
     straightforward approach of S. 113 itself. In particular, we 
     see no constitutional benefit likely to arise from the use of 
     a presumption. Our letter of July 31, 2002 (copy attached), 
     which explained the constitutionality of an earlier version 
     of S. 113 (which would have made a lone-wolf terrorist a 
     ``foreign power'' rather than an ``agent of a foreign 
     power'') applies equally to the current version of S. 113. We 
     do not believe that the use of a presumption significantly 
     changes the constitutional analysis, nor adds any significant 
     protection to civil liberties, except to the extent that the 
     presumption is read narrowly to mirror current law, in which 
     case the presumption is of little or no value for reasons 
     explained in the previous paragraph.
       Discovery. The next proposal would change the standards 
     governing discovery of FISA materials in suppression 
     litigation arising from the use of FISA information in a 
     legal proceeding such as a criminal trial. We strongly object 
     to this proposal. The proposal could harm the national 
     security by inhibiting cooperation between intelligence and 
     law enforcement efforts to stop foreign spies and terrorists. 
     It could deter the Government from using information obtained 
     or derived from FISA in any proceeding--civil, criminal, 
     immigration, administrative, or even internal Executive 
     branch proceedings. These overwhelming and potentially 
     catastrophic costs would be incurred for very little benefit, 
     because current law amply protects individual rights.
       It may be helpful to begin by reviewing current law in this 
     area and the ways in which it protects individual rights. 
     Currently, FISA requires high-level approval from the 
     Executive and Judicial branches before the Government 
     conducts a search or surveillance. Each FISA application must 
     contain a certification signed individually and personally by 
     the Director of the FBI (or another high-ranking official 
     accountable to the President) and must be individually and 
     personally approved by the Attorney General or the Deputy 
     Attorney General. 50 U.S.C. Sec. Sec. 1804(a), 1823(a), 
     1801(g). Under the statute, the Government must apply to a 
     judge of the FISC for approval before conducting electronic 
     surveillance or physical searches of foreign powers or agents 
     of foreign powers inside the United States. 50 U.S.C. 
     Sec. Sec. 1804-1805 (electronic surveillance), 1823-1824 
     (physical searches). Judges of the FISC are selected by the 
     Chief Justice from among the judges on United States District 
     Courts, who as United States district judges are protected by 
     Article III of the Constitution. 50 U.S.C. Sec. Sec. 1803(a), 
     1822(c).
       A second round of judicial review occurs before the 
     Government may use FISA information in any proceeding. The 
     Government must provide notice to the FISA target or other 
     person whose communications were intercepted or whose 
     property was searched before using any information obtained 
     or derived from the surveillance or search in any proceeding 
     against that person ``before any court, department, officer, 
     agency, regulatory body, or other authority of the United 
     States.'' 50 U.S.C. Sec. Sec. 1806(c), 1825(d). After 
     receiving notice, the person may file a motion to suppress in 
     a United States District Court and may seek discovery of the 
     FISA applications filed by the Government and the 
     authorization orders issued by the FISC. 50 U.S.C. 
     Sec. Sec. 1806(e)-(f), 1825(f)(g). Discovery may be granted 
     freely unless the Attorney General personally files an 
     affidavit under oath asserting that discovery would harm the 
     national security. If the Attorney General files such an 
     affidavit, as he has in every case litigated to date, the 
     district judge must review the FISA application and order in 
     camera, without granting discovery, unless ``disclosure is 
     necessary to make an accurate determination of the legality'' 
     of the search or surveillance. 50 U.S.C. Sec. Sec. 1806(f), 
     1825(g). If discovery is granted, the court must impose 
     ``appropriate security procedures and protective orders.'' 
     Ibid. No court has ever ordered disclosure.

[[Page 10823]]

       Congress established this standard for discovery after 
     extensive and careful deliberation in 1978. See H.R. Rep. No. 
     1283, Part I, 95th Cong., 2d Sess. 90 (1978) (hereinafter 
     House Report); S. Rep. No. 604, 95th Cong., 1st Sess. 57-59 
     (1977) (hereinafter Senate Judiciary Report); S. Rep. No. 
     701, 95th Cong., 2d Sess. 62-65 (1978) (hereinafter Senate 
     Intelligence Report). As the 1978 conference report on FISA 
     explains, ``an in camera and ex parte proceeding is 
     appropriate for determining the lawfulness of electronic 
     surveillance in both criminal and civil cases . . . [and] the 
     standard for disclosure . . . adequately protects the rights 
     of the aggrieved person.'' H.R. Rep. No. 1720, 95th Cong., 2d 
     Sess. 32 (1978) (hereinafter Conference Report). As the 
     Senate Judiciary Committee explained in 1978: ``The Committee 
     views the procedures set forth in this subsection as striking 
     a reasonable balance between an entirely in camera proceeding 
     which might adversely affect the defendants's ability to 
     defend himself, and mandatory disclosure, which might 
     occasionally result in the wholesale revelation of sensitive 
     foreign intelligence information.'' Senate Judiciary Report 
     at 58.
       The proposal would replace FISA's current standard with a 
     new one under which discovery is required unless it ``would 
     not assist in determining any legal or factual issue'' in the 
     litigation. The ``would not assist'' standard is 
     inappropriate for use in FISA, in particular, because it is 
     lower than the standard for disclosure of informants' names 
     in ordinary criminal cases. That standard at least requires a 
     balancing of the public interest in confidentiality against 
     the individual defendant's interest in disclosure. As the 
     Supreme Court explained in McCray v. Illinois, 386 U.S. 300, 
     311 (1967), extending its earlier decision in Roviaro v. 
     United States, 353 U.S. 53, 60-61 (1957), ``this Court was 
     unwilling to impose any absolute rule requiring disclosure of 
     an informer's identity even in formulating evidentiary rules 
     for federal criminal trials [in Roviaro]. Much less has the 
     Court ever approached the formulation of a federal 
     evidentiary rule of compulsory disclosure where the issue is 
     the preliminary one of probable cause.'' Indeed, the ``would 
     not assist'' standard is lower even than the standards that 
     govern various civil privileges, all of which require some 
     kind of balancing of the interests in disclosure against the 
     interests in confidentiality. See, e.g., In re Sealed Case, 
     121 F.3d 729, 738 (D.C. Cir. 1997). In effect, the ``would 
     not assist''' standard is the appropriate standard for 
     discovery of unclassified and non-privileged information, 
     because no discovery of any kind is justified unless it would 
     assist the litigation.
       The ``would not assist'' standard could have very dangerous 
     consequences for the national security. At the outset, we are 
     concerned that the standard could lead to discovery being 
     granted in nearly every case, because it is extremely hard to 
     prove the negative fact that disclosure ``would not assist'' 
     in any way. Such routine disclosure could be catastrophic: 
     FISC applications contain some of the Government's most 
     sensitive national security information, including 
     information concerning human intelligence sources, 
     sophisticated technical collection methods, and the details 
     of ongoing investigations. Given the enormous sensitivity of 
     that information and the details of ongoing investigations. 
     Given the enormous sensitivity of that information, when the 
     Attorney General personally files an affidavit under oath 
     asserting that disclosure would harm the national security, 
     ordering disclosure unless it ``would not assist'' in any way 
     is inappropriate. In view of the protections in FISC and the 
     requirement of an affidavit filed personally by the Attorney 
     General, the ``necessary'' standard of current law should be 
     retained.
       Indeed, precisely because it may lead to discovery in 
     virtually every case, the proposal would create an incentive 
     for the Government to withhold sensitive information from its 
     FISC applications. Under the ``would not assist'' standard, 
     the Government might have to choose between excluding 
     sensitive information from an application and risking a 
     denial of search and surveillance authority from the FISC, or 
     including the sensitive information and risking public 
     disclosure of that information. Thus, the proposal could 
     fundamentally alter the relationship between the Government 
     and the FISC and could eviscerate the significance of the 
     FISC's careful information security procedures, which are 
     designed to give the Government confidence that full 
     disclosure to the FISC will not result in a compromise of 
     sensitive information.
       Since the Government can never completely sanitize a FISC 
     application, the ``would not assist'' standard would also 
     create strong incentives to avoid suppression litigation and 
     the expanded risk of discovery. That means the Government 
     would lean away from prosecution of a FISC target, even where 
     that was the best way to protect the country. It would 
     thereby reduce the Government's ability to keep the country 
     safe, distorting the vital tactical judgments that must be 
     made. Indeed, the proposal would inhibit more than just 
     prosecutions. In keeping with the scope of FISC's suppression 
     remedy, the proposal would limit the use of FISC information 
     in any proceeding, including immigration proceedings, or even 
     in internal adjudications of security clearances under 
     Executive Order 12968. Here again the Government would face a 
     difficult choice between using FISC information to protect 
     national security and risking disclosure of the information 
     as the cost of doing so.
       We appreciate your continuing leadership in ensuring that 
     the Department of Justice and other Federal agencies have the 
     authority they need to combat terrorism effectively. Please 
     do not hesitate to contact me if I can be of further 
     assistance. The Office of Management and Budget has advised 
     us that from the perspective of the Administration's program, 
     there is no objection to submission of this letter.
           Sincerely,
                                                   Jamie E. Brown,
                                Acting Assistant Attorney General.

  Mr. HATCH. Mr. President, I rise in opposition to Senator Feinstein's 
amendment. While I appreciate the efforts by Senator Feinstein to draft 
a fix to the lone wolf terrorist problem under the Foreign Intelligence 
Surveillance Act of 1978, referred to as ``FISA'', the amendment simply 
will not do the job and will continue to expose our country to great 
national security risks. I will not and cannot accept such risks.
  Let me be more specific as to my concerns. First, as drafted, the 
amendment would create only a permissive presumption to authorize a 
court to approve a Foreign Intelligence Surveillance Act, ``FISA'', 
application when presented with a lone wolf situation. As drafted, the 
proposal would provide only that the court ``may'' find the existence 
of a ``presumption'' that a non-U.S. person engaged in sabotage or 
international terrorism is an agent of a foreign power under FISA.
  A permissive presumption creates a significant risk that the FISA 
court may not be authorized--or may feel constrained to exercise its 
discretion--to approve a FISA application when presented with a lone 
wolf terrorist who would otherwise be covered by the Kyl-Schumer-Biden-
DeWine approach.
  Second, the amendment does not clearly delineate how a permissive 
presumption would be applied by the FISA court. Assuming that the FISA 
court exercises its discretion and makes a finding that the presumption 
applies, the FISA court would then have to consider additional evidence 
in order to grant the application.
  The amendment does not specify beyond the permissive presumption what 
specific evidence or what other findings would have to be made in order 
for the FISA court to approve the application.
  In sum, by injecting a significant level of uncertainty into the FISA 
process, the amendment simply creates or even exacerbates the problem 
which it is intended to fix. We simply cannot take such a risk given 
the potential devastating consequences posed by the lone wolf 
terrorist.
  I would note here that in a letter dated April 30, 2003, the 
administration opposed this proposal, citing the fact that the effect 
of the proposal was unclear and that the proposal did not provide any 
standards to the FISA court to guide the exercise or its discretion.
  In contrast, the Kyl-Schumer-Biden-DeWine proposal creates clear 
definitions and would minimize uncertainty in an area where ambiguity 
could have devastating consequences--that is, where we are in danger of 
a terrorist attack by a lone wolf.
  For these reasons, I oppose the Feinstein amendment and urge my 
colleagues to vote against the Feinstein amendment.
  I yield the floor.
  Mr. KYL. Mr. President, the proponents of the bill urge our 
colleagues to vote against the Feinstein amendment. And from our 
perspective, I think we are ready to have that vote.
  I ask Senator Feinstein if she is ready, as well?
  Mrs. FEINSTEIN. Through the Chair, I think we can yield back the 
remainder of our time, I say to the Senator, and hold the vote, if 
everybody so desires.
  Mr. KYL. Mr. President, I yield back the remainder of my time on both 
the amendment and on the bill itself.
  The PRESIDING OFFICER. All time has been yielded back.
  The question is on agreeing to amendment No. 537.

[[Page 10824]]


  Mr. REID. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Alaska, (Ms. 
Murkowski) is necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr. 
Kennedy), the Senator from Massachusetts (Mr. Kerry) and the Senator 
from Connecticut (Mr. Lieberman) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Delaware (Mr. Biden) would vote ``no.''
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``aye.''
  The result was announced--yeas 35, nays 59, as follows:

                      [Rollcall Vote No. 145 Leg.]

                                YEAS--35

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Byrd
     Cantwell
     Clinton
     Corzine
     Daschle
     Dayton
     Dodd
     Durbin
     Edwards
     Feingold
     Feinstein
     Harkin
     Hollings
     Jeffords
     Johnson
     Lautenberg
     Leahy
     Levin
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Stabenow
     Sununu
     Wyden

                                NAYS--59

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Kohl
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Nickles
     Roberts
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Talent
     Thomas
     Voinovich
     Warner

                             NOT VOTING--6

     Biden
     Graham (FL)
     Kennedy
     Kerry
     Lieberman
     Murkowski
  The amendment (No. 537) was rejected.
  Mr. BIDEN. Mr. President, I am pleased to support final passage of S. 
113, a bill to amend the Foreign Intelligence Surveillance Act, FISA, 
to provide needed tools to detect and combat terrorists bent on 
attacking this Nation and killing our citizens. First, let me commend 
my colleagues, Senators Kyl and Schumer, for their relentless efforts 
in bringing this important issue to the floor of the U.S. Senate. Since 
the tragic events of September 11, all of us have tried to turn a 
critical eye toward our laws and the workings of government to discern 
how we might avert such a dreadful attack in the future. That attempt 
to fix what may be wrong with our existing system of intelligence-
gathering and law enforcement is perhaps the greatest tribute we can 
offer to the victims of that fateful day and their families.
  This bill, as amended, is a good example of how we can make basic, 
common-sense changes to existing law that will have a tremendous impact 
on our fight against terrorism. I was proud to be one of the authors of 
FISA in 1978. We worked long and hard to strike the right balance 
between protecting civil liberties on the one hand and deterring 
terrorist acts on the other. Since FISA permits the physical and 
electronic surveillance of suspected foreign agents, in some instances 
under a more generous standard than that allowed in Title III 
surveillances, an amendment to FISA should be carefully tailored to 
maintain its careful balance. I do not take lightly amending FISA, but 
believe that this bill does so in a manner that is both constitutional 
and narrowly tailored.
  I want to thank the sponsors of this legislation for their 
willingness to work with me to improve their original bill. I proposed 
two amendments, both of which were accepted by Senators Kyl and 
Schumer--and which the Judiciary Committee adopted without a dissenting 
vote on April 29, 2003. I believe my amendments improve S. 113 in three 
ways:
  First, the original legislation--which would have amended FISA to 
expand the definition of ``foreign power'' under 50 U.S.C. 
Sec. 1801(a)(4) to include non-U.S. persons who are engaged in 
international terrorism--would have allowed the government to extend 
the initial surveillance order for a period up to 1 year. The 1-year 
period constitutes the maximum period allowed under the statute and is 
only invoked under certain circumstances typically limited to groups 
and entities. More commonly, an order to conduct surveillance of 
individuals is only extended for a period up to 90 days. Instead, the 
amendment we offered on April 29, 2003, amended the definition for 
``agent of a foreign power'' by creating a new 50 U.S.C. 
Sec. 1801(b)(1)(C). This amendment would apply the default 90-day 
period to this new category of surveillance targets, which is far more 
sensible and consistent with the way we treat other individual targets, 
as opposed to groups, under the statute.
  Second, by amending 50 U.S.C. Sec. 1801(a), the original legislation 
would have precluded individuals who are improperly subjected to 
surveillance or about whom surveillance information has been 
inappropriately disclosed from filing suit. My amendment, on the other 
hand, allowed aggrieved individuals who are improperly targeted under 
this new provision to seek redress in the courts and, where 
appropriate, recover damages. This modification to Senator Kyl's 
original bill is consistent with the typical and intended treatment of 
individuals under 18 U.S.C. Sec. 1801(b). See H.R. Rep. No. 95-1283, at 
pt. 1, 98 (1978) (noting that the only aggrieved persons ``barred from 
the civil remedy will be primarily those persons who are themselves 
immune from criminal or civil liability because of their diplomatic 
status'').
  Third, my amendment added a sunset provision to the legislation, 
forcing Congress to re-visit this issue no later than December 31, 
2005. The USA Patriot Act (which the Senate overwhelmingly passed a 
year and a half ago) includes a similar sunset provision for the FISA 
provisions contained therein. My amendment simply insures that this 
body will reevaluate the FISA measure on which we are voting today, in 
the context of its broader re-consideration of those other FISA 
provisions. Such a review is consistent with our oversight function 
and, plainly put, ensures that our actions are thoughtful and informed.
  Again, I am pleased that Senators Kyl and Schumer accepted these 
important revisions to the original text and, on that basis, am happy 
to support the amended bill that is before the Senate today.
  I also would like to commend my colleague, Senator Feinstein, for her 
efforts to engage this issue responsibly and thoughtfully. She has 
proposed an alternative, which makes an important contribution to the 
debate but with which I happen to disagree, for several reasons.
  First, my good friend from California asserts that criminal 
prosecutors will abuse the FISA process by securing FISA surveillance--
with its lower burdens of proof--against garden variety criminal 
targets, rather than pursuant to Title III. I am simply not persuaded 
that this will be the case. It should be noted that the new section 
created in this bill has a very high standard, higher indeed than that 
required by Title III. That is, the government must show probable cause 
that the FISA target has engaged in acts of ``international 
terrorism,'' which the statute defines as acts which (i) are a 
violation of the criminal law under the laws of the United States or 
any state; (ii) appear intended to influence our government or 
intimidate our citizens; and (iii) which occur outside the United 
States or transcend national boundaries. Thus, I doubt that a 
prosecutor would ever be able to seek a FISA warrant under this section 
where he would not also be able to obtain a Title III warrant. Morever, 
I am not convinced that a prosecutor would seek a FISA warrant where 
their real interest is, not

[[Page 10825]]

obtaining foreign intelligence information, but rather the eventual 
prosecution of the FISA target. Given the strict exclusionary rules 
FISA imposes, prosecutors would be loathe to ever seek a FISA warrant 
for a target they seek to prosecute out of fear that the judge would 
suppress the surveillance in a criminal prosecution which was 
improperly ``boot-strapped'' from a FISA investigation.
  Second, the Feinstein amendment asserts that, under the Kyl-Schumer 
bill, a judge would be a mere ``rubber-stamp'' for a governmental 
request for a FISA warrant. The amendment presumes that judges do not 
now have discretion to refuse the government's request, which is not 
true. Under current law, the judge still must determine that probable 
cause exists that the individual is an agent of a foreign power engaged 
in, or in preparation for, acts of international terrorism. S. 113 does 
nothing to alter that existing requirement. Rather, it makes it clear 
that any non-U.S. citizen who engages in terrorism or is preparing to 
engage in terrorism would fall within the definition of an ``agent of a 
foreign power.'' Nothing in this bill would curtail a judge's ability 
to second-guess, or look behind, the assertions advanced by the 
government in its application for a warrant. If there is no basis to 
believe that probable cause exists, the application would be properly 
denied. Indeed, we rely on judges for this very purpose--namely, to 
ascertain the veracity of the facts presented by the government.
  As opposed to clarifying the definition of ``agent of a foreign 
power,'' as the Kyl-Schumer bill does, the Feinstein amendment would 
allow--but not require--a judge to ``presume'' that an individual is 
such an agent, which in my view creates a difference without a real 
distinction. Rather than afford individual targets any added 
protections, the Feinstein amendment would inject a considerable amount 
of murkiness into an otherwise certain process and may result in 
inconsistent rulings by different judges. Likewise, FISA judges may 
simply decline to apply the presumption in cases where the government 
cannot show much, if any, link between the non-U.S. citizen and a 
foreign power. There has been considerable disagreement over whether 
the Federal Bureau of Investigation had sufficient evidence to show 
that Zacarias Moussaoui, the so-called ``20th Hijacker,'' was an agent 
of a foreign power. Yet, I am concerned that a FISA judge might decline 
to exercise the ``permissive presumption'' in Senator Feinstein's 
amendment, and hence deny a FISA warrant, in the case of a true ``lone-
wolf'' terrorist who cannot be shown to have any links to a foreign 
power. As such, the FISA ``loophole'' S. 113 seeks to close would be 
left open. On that basis, I am forced to vote against the amendment.
  That is not to say, however, that there is not much more work to be 
done in this area. We must search for creative ways to give 
investigators the tools they need to gather information and seek out 
terrorists living among us, while at the same time vigilantly protect 
important civil rights and liberties. Toward that end, I welcome the 
oversight hearings that my friend Senator Hatch, chairman of the 
Judiciary Committee, has pledged to convene on the implementation of 
FISA and offer my continued service.
  It is my hope that the Senate's action today will assist our 
government in its effort to detect and root out foreign terrorists bent 
on violent acts against this great country. I support this bill and 
urge my colleagues to vote for it.
  Mr. HATCH. Mr. President, I commend Senators Kyl, Schumer, Biden and 
DeWine for their bipartisan cooperation in supporting S. 113. This bill 
will provide a critical tool needed by law enforcement and intelligence 
agencies to fight the war against terrorism. Specifically, S. 113 will 
address a glaring omission in the Foreign Intelligence Surveillance Act 
of 1978 referred to as FISA, to authorize the gathering of foreign 
intelligence information relating to a lone-wolf terrorist, that is, a 
non-U.S. person who is engaged in international terrorism or 
preparation thereof. In recognition of the critical need to support law 
enforcement and intelligence agencies in the war against terrorism, the 
Judiciary Committee passed S. 113 by a bipartisan, unanimous vote of 19 
to 0.
  This bipartisan proposal will enhance the ability of the FBI and 
intelligence agencies to investigate, detect, and prevent terrorists 
from carrying out devastating attacks on our country. Specifically, S. 
113 will amend the Foreign Intelligence Survelliance Act to include 
lone-wolf terrorists who engage in international terrorism or 
activities in preparation thereof without a showing of membership in or 
affiliation with an international terrorist group. A significant gap in 
the current statute exists with respect to application of the foreign 
power requirement to lone-wolf terrorists. S. 113 would authorize FISA 
surveillance or searches when law enforcement and intelligence agents 
identify an individual involved in international terrorism but cannot 
link the terrorist to a specific group.
  The administration strongly supports amending FISA to include non-
U.S. lone-wolf terrorists. On March 4, 2003, at a Judiciary Committee 
hearing examining the war on terrorism, both Attorney General Ashcroft 
and FBI Director Mueller indicated their strong support for fixing this 
glaring omission in the FISA statute. In fact, Director Mueller 
testified, both before the Judiciary Committee and previously before 
the Senate Select Committee on Intelligence, there is an increasing 
threat of lone extremists who have the motive and ability to carry out 
devastating attacks against our country.
  We need to provide law enforcement and intelligence agencies with the 
tools needed to protect our country from deadly terrorist attacks. With 
our recent success in the war against Iraq, the risk of terrorist 
attacks against our country may well rise. We need to ensure that our 
country has the ability to investigate and prevent such attacks if 
carried out by a lone extremist.
  While some interest groups that oppose this measure suggest that such 
a fix is not needed or claim that the FBI failed to properly apply the 
law in the Moussaoui investigation, that is simply beside the point: 
The September 11 attack against our country highlighted the need to 
fill in this gap in the FISA statute.
  FISA provides that electronic surveillance or physical searches may 
be authorized when there is probable cause to believe that the target 
is either an agent of, or is himself, a ``foreign power''--a term that 
is currently defined to include only foreign government or 
international terrorist organizations. Requiring a link to government 
or international terrorist organizations may have made sense when FISA 
was enacted in 1978; in that year, the typical FISA target was a Soviet 
spy or a member of one of the hierarchical, military-style terror 
groups of that era.
  Today the United States faces a much different threat. We are 
principally confronted not by specific groups or governments, but by a 
movement of Islamist extremists which does not maintain a fixed 
structure or membership list, and its adherents do not always advertise 
their affiliation with this cause. Moreover, in response to our 
country's efforts to fight terrorism worldwide, terrorists are 
increasingly operating in a more decentralized manner, far different 
from the terrorist threat that existed in 1978. The threat posed by a 
lone terrorist may be very real and may involve devastating 
consequences, even beyond those suffered by our country on September 
11. Given this increasing threat, we have to ensure that intelligence 
and law enforcement agencies have sufficient tools to meet this new--
and even more dangerous--challenge.
  While I support S. 113, as passed by the Judiciary Committee, I wish 
to note my concerns about the amendment offered by Senator Feingold, 
which has been agreed to, as part of consideration of this matter.
  The Feingold amendment would impose new FISA reporting requirements 
on the Justice Department, and require: (1) reports on the number of 
U.S.

[[Page 10826]]

persons targeted by FISA order, by specific categories of surveillance, 
for example, electronic surveillance, physical searches, pen registers, 
and access to records; (2) identification of individuals who ``acted 
wholly alone;'' (3) disclosure of the number of times FISA material was 
used in a criminal proceeding; and (4) disclosure of portions of FISA 
pleadings and orders that deal with significant questions of law ``in a 
manner consistent with the protection of the national security of the 
United States.''
  As I have indicated on other occasions, I support reporting 
requirements when necessary for Congress to exercise responsible 
oversight. We have a duty to conduct meaningful oversight of the FISA 
process, and I am committed to such oversight and ensuring proper 
reporting requirements are imposed on the Justice Department.
  My concern with the Feingold amendment is that the operation of the 
amendment is unclear and may create confusion rather than bringing 
clarity to the issue. I would have preferred that we conduct a more 
deliberate examination of this issue to ensure that the reporting 
requirements are not harmful and will not create any significant risk 
of harm to sensitive law enforcement and intelligence operations 
against terrorists.
  More significantly, I am concerned that the Feingold amendment will 
alter well-established procedures for Congress's review and handling of 
classified operational intelligence information, in contrast to 
Congress's review and handling of ``finished'' intelligence 
information. For many years, and in fact the reason for the creation of 
the Senate Select Committee on Intelligence was to establish a 
professional, dedicated Intelligence Committee staff which would handle 
sensitive operational intelligence information. Congress did so to 
minimize the potential risk of harm to foreign counterintelligence 
operations. The accidental or inadvertent disclosure of such material 
could have a devastating impact on extremely sensitive CIA or FBI 
counterintelligence operations.
  Further, the Senate Select Committee on Intelligence rejected a 
similar reporting proposal in 1984 because ``the benefits of such 
disclosure for public understanding of FISA's impact would not outweigh 
the damage to FBI foreign counterintelligence capabilities that can be 
reasonably expected to result.''
  The FISA statute already sets forth detailed and specific 
requirements for the reporting of information to the Intelligence and 
Judiciary Committees, and there is simply no need to disrupt long-
established processes and procedures for FISA reporting between the 
executive branch and the Intelligence and Judiciary Committees relating 
to the handling of classified operations intelligence information.
  While I have these concerns about the Feingold amendment, on balance, 
I believe that fixing the FISA statue to address the long-wolf 
terrorist problem is more important than remedying the deficiencies in 
the Feingold amendment. The potential harm to our country from a lone-
wolf terrorist attack is significant and we must act--and act now by 
passing A. 113.
  Again, I commend Senators Kyl, Schumer, Biden, and DeWine for this 
important piece of legislation which reflects our bipartisan commitment 
to ensuring the safety of our country and the need to be vigilant in 
protecting our country from deadly and devastating terrorist attacks. I 
urge my colleagues to vote in favor of S. 113.
  The PRESIDING OFFICER (Mr. Enzi). Under the previous order, the 
committee amendment, as amended, is agreed to.
  The committee amendment, in the nature of a substitute, as amended, 
was agreed to.
  The PRESIDING OFFICER. Under the previous order, the question is on 
the engrossment and third reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. REID. Mr. President, I yield back all of our time.
  The PRESIDING OFFICER. All time has been yielded back.
  Mrs. FEINSTEIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The bill having been read the third time, the question is, Shall the 
bill, as amended, pass? The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Alaska (Ms. 
Murkowski) is necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr. 
Kennedy), the Senator from Massachusetts (Mr. Kerry), and the Senator 
from Connecticut (Mr. Lieberman) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Delaware (Mr. Biden) and the Senator from Massachusetts (Mr. Kerry) 
would each vote ``aye''.
  The result was announced--yeas 90, nays 4, as follows:

                      [Rollcall Vote No. 146 Leg.]

                                YEAS--90

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Edwards
     Ensign
     Enzi
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                                NAYS--4

     Byrd
     Durbin
     Feingold
     Harkin

                             NOT VOTING--6

     Biden
     Graham (FL)
     Kennedy
     Kerry
     Lieberman
     Murkowski
  The bill (S. 113), as amended, was passed, as follows:
  The title was amended so as to read:

       To amend the Foreign Intelligence Surveillance Act of 1978 
     to cover individuals, other than United States persons, who 
     engage in international terrorism without affiliation with an 
     international terrorist group.

                          ____________________