S10990 CONGRESSIONAL RECORD — SENATE October 25, 2001 CONCLUSION OF MORNING Trade Towers, and, of course, those at We added more comprehensive vic- BUSINESS the Pentagon in Virginia, including tims assistance; The PRESIDENT pro tempore. Is those in Maryland and the District of We added measures to fight cybercrime; there further morning business? Columbia, and actually the whole Na- We added measures to fight terrorism If there is no further morning busi- tion. against mass transportation systems; ness, morning business is closed. Today we consider H.R. 3162, the sec- ond House-passed version of the ‘‘Unit- We added important measures to use f ing and Strengthening of America Act’’ technology to make our borders more secure; USA PATRIOT ACT OF 2001 or ‘‘USA Act of 2001.’’ Senate passage of this measure without amendment Finally, and most importantly, we The PRESIDENT pro tempore. Under will amount to final passage of this im- were able to include additional impor- the previous order, the Senate will now portant legislation, and the bill will be tant checks on the proposed expansion proceed to consideration of H.R. 3162, sent to the President for his signature. of government powers contained in the which the clerk will report. We complete our work six weeks after Attorney General’s initial proposal. In negotiations with the Administra- The bill clerk read as follows: the September 11 attacks and months tion, I did my best to strike a reason- A bill (H.R. 3162) to deter and punish ter- ahead of final action following the de- able balance between the need to ad- rorist acts in the United States and around struction of the Federal Building in the world, to enhance law enforcement inves- dress the threat of terrorism, which we Oklahoma City in 1995. The American tigatory tools, and for other purposes. all keenly feel at the present time, and people and the Members of this body The PRESIDENT pro tempore. The the need to protect our constitutional deserve fast work and final action. freedoms. Despite my misgivings, I ac- senior Senator from Vermont, Mr. On October 4, I was pleased to intro- quiesced in some of the Administra- LEAHY, is recognized. duce with the Majority Leader, Sen- tion’s proposals to move the legislative Mr. LEAHY. Mr. President, what is ator DASCHLE, and the Chairmen of the process forward. That progress has the time agreement that we now have Banking and Intelligence Committees, been rewarded by a bill we have been before us? as well as the Republican Leader, Sen- The PRESIDENT pro tempore. The able to improve further during discus- ator LOTT, and Senator HATCH and Sen- sions over the last two weeks. chairman and ranking member of the ator SHELBY, the Uniting and Strength- Judiciary Committee have 90 minutes The Senate passed the original ening America, or USA Act. This was version of the USA Act, S. 1510, by a each; the Senator from Michigan, Mr. not the bill that I, or any of the spon- LEVIN, has 10 minutes; the Senator vote of 96–1 on October 11. The House sors, would have written if compromise passed a similar bill, based largely on from Minnesota, Mr. WELLSTONE, has 10 was unnecessary. Nor was it the bill minutes; the Senator from Maryland, the USA Act, the following day. The the Administration had initially pro- Majority Leader and I both strongly Mr. SARBANES, has 20 minutes; the Sen- posed and the Attorney General deliv- believed that a conference would have ator from Wisconsin, Mr. FEINGOLD, ered to us on September 19, at a meet- has 1 hour; the Senator from Florida, been the better and faster way to rec- ing in the Capitol. oncile the differences between the bills, Mr. GRAHAM, has 15 minutes; and the We were able to refine and supple- and to consider the proposals that had Senator from Pennsylvania, Mr. SPEC- ment the Administration’s original been included in the managers’ amend- TER, has 15 minutes. proposal in a number of ways in the ment to S. 1510, which Republicans did Mr. LEAHY. I thank the Presiding original USA Act, and have continued not approve in time for consideration Officer, the President pro tempore of that process in the development of H.R. and passage with the Senate bill. The the Senate. 3162. The Administration accepted a House did not request a conference Mr. President, I yield myself such number of the practical steps I had when it passed the bill, however, and time as I may need out of my 90 min- originally proposed on September 19 to despite the understanding among utes. improve our security on the Northern House and Senate leadership, the Mr. REID. Will the Senator yield? Border, assist our Federal, State and House leadership abruptly incorporated Mr. LEAHY. Of course. local law enforcement officers, and pro- the product of our discussions in a new Mr. REID. Mr. President, I ask unan- vide compensation to the victims of bill rather than proceed to a quick con- imous consent that during the day, terrorist acts and to the public safety ference. when quorum calls are initiated, the officers who gave their lives to protect Yesterday, the House passed H.R. time be charged proportionately, not ours. This final version of the USA Act 3162, which was based upon informal only against the person who asked for further improves the compromise by agreements reached by Senate and the quorum to be initiated, but that it including additional important checks House negotiators, but which did not be charged proportionately against all on the proposed expansion of govern- include additional important provi- people who have time under the agree- ment powers that were not contained sions to make the Justice Department ment that is now in effect. in the Attorney General’s initial pro- more efficient and effective in its anti- The PRESIDENT pro tempore. Is posal. terrorism efforts and to reduce domes- there objection? Let me outline just ten ways in tic demand for illegal drugs, some of The Chair hears no objection. That which we in the bicameral, bipartisan which are produced and supplied from will be the order of the Senate. negotiations were able to supplement Taliban-controlled regions of Afghani- The Senator from Vermont, Mr. and improve this legislation from the stan. I am disappointed that the com- LEAHY, is recognized. original proposal we received from the mitment we received to hold a con- (Mrs. CLINTON assumed the chair.) Administration. ference—at which these proposals could Mr. LEAHY. Thank you, Mr. Presi- We improved security on the North- have been considered more fully—was dent. I agree with the distinguished ern Border; not honored. Nonetheless, H.R. 3162, Democratic leader in his request be- We added money laundering; which the House passed yesterday, con- cause we do want to have discussion of We added programs to enhance infor- tains additional improvements to the this piece of legislation, but there is no mation sharing and coordination with USA Act that had been negotiated on a question we will vote on this piece of State and local law enforcement, bicameral, bipartisan basis, and de- legislation today and we will pass this grants to State and local governments serves the support of the Senate. legislation today. to respond to bioterrorism, and to in- I do believe that some of the provi- I think it is only fitting the Senator crease payments to families of fallen sions contained both in this bill and from New York is now in the chair as firefighters, police officers and other the original USA Act will face difficult we begin discussion of this legislation public safety workers; tests in the courts, and that we in Con- because her State was one of those that We added humanitarian relief to im- gress may have to revisit these issues was badly impacted, terribly impacted, migrant victims of the September 11 at some time in the future when the tragically impacted on September 11, terrorist attacks; present crisis has passed, the sunset as were the people of New Jersey and We added help to the FBI to hire has expired or the courts find an infir- Connecticut, who worked in the World translators; mity in these provisions. I also intend

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S10991 as Chairman of the Judiciary Com- we have worked over the last month quested by the Administration. I thank mittee to exercise careful oversight of around the clock with the Administra- him for his assistance in illuminating how the Department of Justice, the tion to put together the best legisla- these critical issues for the Senate. FBI and other executive branch agen- tive package we could. I share the Ad- To accede to the Administration’s re- cies are using the newly-expanded pow- ministration’s goal of providing quest for prompt consideration of the ers that this bill will give them. I know promptly the legal tools necessary to USA Act, the Leaders decided to hold that other members of the Judiciary deal with the current terrorist threat. the bill at the desk rather than refer it Committee—including Senator SPEC- While some have complained publicly to the Committee for markup, as is TER, Senator GRASSLEY, and Senator that the negotiations have gone on for regular practice. Senator HATCH spe- DURBIN—appreciate the importance of too long, the issues involved are of cifically urged that this occur. Indeed, such oversight. great importance, and we will have to when the Senate considered the anti- The negotiations on anti-terrorism live with the laws we enact for a long terrorism act in 1995 after the Okla- legislation have not been easy. Within time to come. Demands for action are homa City bombing, we bypassed the days of the September 11 attacks, I irresponsible when the roadmap is Committee in order to deal with the began work on legislation to address pointed in the wrong direction. As Ben legislation more promptly on the floor. security needs on the Northern Border, Franklin once noted, ‘‘if we surrender After Senate consideration and pas- the needs of victims and State and our liberty in the name of security, we sage on the one-month anniversary of local law enforcement, and criminal shall have neither.’’ the terrorist attack, the House Repub- law improvements. A week after the Moreover, our ability to make rapid lican leadership decided to proceed attack, on September 19, the Attorney progress was impeded because the ne- with a version of the Senate-passed bill General and I exchanged the outlines of gotiations with the Administration did rather than the bill reported by the the legislative proposals and pledged to not progress in a straight line. On sev- House Judiciary Committee. H.R. 2975 work together toward our shared goal eral key issues that are of particular passed the House with opposition on of putting tools in the hands of law en- concern to me, we had reached an October 12. Unfortunately, the House forcement that would help prevent an- agreement with the Administration on did not take the traditional step of re- other terrorist attack. Sunday, September 30. Unfortunately, questing a conference to reconcile the Let me be clear: No one can guar- over the next two days, the Adminis- bills. In an apparent effort by the Ad- antee that Americans will be free from tration announced that it was reneging ministration and House Republican the threat of future terrorist attacks, on the deal. I appreciate the complex leadership to try to pressure the Sen- and to suggest that this legislation—or task of considering the concerns and ate to accept that version of the bill, any legislation—would or could provide missions of multiple Federal agencies, without strong money laundering or bi- such a guarantee would be a false and that sometimes agreements must ological weapons provisions and with a promise. I will not engage in such false be modified as their implications are promises, and those who make such as- 5-year sunset, the House failed to take scrutinized by affected agencies. When sertions do a disservice to the Amer- the procedural steps necessary to con- agreements made by the Administra- ican people. vene a conference. Had a conference I have also heard claims that if cer- tion must be withdrawn and negotia- been requested and begun, a final bill tain powers had been previously au- tions on resolved issues reopened, those would have been passed last week. In- thorized by the Congress, we could in the Administration who blame the stead, without a structure or process, somehow have prevented the Sep- Congress for delay with what the New discussions were less concentrated and tember 11 attacks. Given this rhetoric York Times described as ‘‘scurrilous it was only after a leadership meeting it may be instructive to review efforts remarks,’’ do not help the process late last week that the major outline that were made a few years ago in the move forward. of the measure was agreed upon. We expedited the legislative process Senate to provide law enforcement During the negotiations over the past with greater tools to conduct surveil- in the Judiciary Committee to consider two weeks, the Administration sought lance of terrorists and terrorist organi- the Administration’s proposals. In to eliminate the sunset altogether, but daily news conferences prior to the zations. In May 1995, Senator LIEBER- that effort failed. The House insisted original passage of the USA Act, the MAN offered an amendment to the bill that the amendments to the so-called that became the Antiterrorism and Ef- Attorney General referred to the need ‘‘McDade law’’ be dropped, and the Ad- fective Death Penalty Act of 1996 that for such prompt consideration. He ministration acquiesced. Eventually, would have expanded the government’s made time to appear before the Judici- the House accepted the Senate’s posi- authority to conduct emergency wire- ary Committee at a hearing September tion on the need to include both money taps to cases of domestic or inter- 25 to respond to questions that Mem- laundering and biological weapons pro- national terrorism and added a defini- bers from both parties had about the visions. Even then, the House Repub- tion of domestic terrorism to include Administration’s initial legislative lican leadership reneged on the agree- violent or illegal acts apparently in- proposals. I thank the Attorney Gen- ment to proceed by way of a tradi- tended to ‘‘intimidate, or coerce the ci- eral for extending the hour and a half tional House-Senate conference. In- vilian population.’’ The consensus, bi- he was able to make in his schedule for stead, they opted to proceed by a new partisan bill that we consider today the hearing for another 15 minutes so bill passed by the House in short order contains a very similar definition of that Senator FEINSTEIN and Senator and sent to the Senate as an amendable domestic terrorism. SPECTER were able to ask questions be- measure. That brings us to today. In 1995, however, a motion to table fore his departure. I regret that the At- Given the expedited process that has Senator LIEBERMAN’s amendment was torney General did not have the time been used to move this legislation agreed to in a largely party-line vote, to respond to questions from all the through the House and now to the Sen- with Republicans voting against the Members of the Committee either on ate, I will take more time than usual measure. In fact, then Senator September 25 or at any time since. He to detail its provisions. ASHCROFT voted to table that amend- promised to answer the written ques- This bill has raised serious and legiti- ment, and one Republican colleague tions Members submitted about the mate concerns about the expansion of spoke against it and opined, ‘‘I do not legislation promptly, but we did not re- authorities for government surveil- think we should expand the wiretap ceive any answers before passage of S. lance and intelligence gathering within laws any further.’’ He further said that 1510, H.R. 2975, or H.R. 3162. I will make this country. Indeed, this bill will ‘‘We must ensure that in our response those answers a part of the hearing change surveillance and intelligence to recent terrorist acts, we do not de- record whenever they are received even procedures for all types of criminal and stroy the freedoms that we cherish.’’ I after final passage of the legislation. foreign intelligence investigations, not have worked very hard to maintain The Chairman of the Constitution just for terrorism cases. Significantly, that balance in negotiations con- Subcommittee, Senator FEINGOLD, also the sunset provision included in the cerning the current legislation. held an important hearing on October 3 final bill calls for vigilant legislative Following the exchange on Sep- on the civil liberties ramifications of oversight, so that the Congress will tember 19 of our legislative proposals, the expanded surveillance powers re- know how these legal authorities are

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S10992 CONGRESSIONAL RECORD — SENATE October 25, 2001 used and whether they are abused over The provisions on the disclosure of itor. Where regulatory or tax laws the next four years. ‘‘foreign intelligence’’ from Federal carry criminal penalties, investigators We should be clear at the outset that criminal investigations make funda- probe the confidential financial details while the sunset applies to the ex- mental changes in the rules for the of business transactions and records. panded surveillance authorities under handling of highly sensitive personal, Federal criminal investigators have FISA, it does not apply to other con- political and business information ac- enormous discretion, with little statu- troversial provisions in the bill. As quired for law enforcement purposes. tory or constitutional guidance for how originally passed by the House, the Such information may now be disclosed they interview people, conduct phys- sunset did not apply to the provisions to intelligence, defense, and national ical surveillance, recruit informants in on sharing grand jury information with security agencies. The law is changed organizations, and request access to intelligence agencies, in section 203(a), not only to permit the wider sharing of records they consider ‘‘relevant’’ to an and the so-called ‘‘sneak and peak’’ au- information from grand juries, domes- investigation. All that information thority for surreptitious search and tic law enforcement wiretaps, and would be eligible to be disseminated seizure, in section 213. The final bill, criminal investigations generally (in widely within the government, beyond H.R. 3162, removes two more provisions section 203), but also to require Federal the purposes of the criminal investiga- from the sunset—the expanded scope of law enforcement agencies to share this tion, if it meets the definition of ‘‘for- subpoenas for records of electronic information with intelligence agencies eign intelligence’’ or ‘‘foreign intel- communications, in section 210, and through the Director of Central Intel- ligence information.’’ the new authority for pen registers and ligence, unless the Attorney General The risks of misusing this informa- trap and trace devices in criminal in- makes exceptions (in section 905). tion were documented 25 years ago, vestigations, in section 216. There would be far less controversy if when the Congress made public the Congressional oversight is especially these provisions were limited to infor- record of Cold War abuses of investiga- necessary to monitor the implementa- mation about domestic or inter- tive powers by Federal agencies acting tion of these new authorities. I agree national terrorism or espionage. In- in the name of national security. The with Leader ARMEY that the sunset stead, they potentially authorize the Senate created a Select Committee To will help ensure that law enforcement disclosure throughout intelligence, Study Governmental Affairs With Re- is responsive to congressional over- military, and national security organi- spect to Intelligence Communities, sight and inquiries on use of these new zations of a far broader range informa- chaired by Senator Frank Church, to authorities and that a full record is de- tion about United States persons, in- conduct a year-long investigation with veloped on their efficacy and necessity. cluding citizens, permanent resident extensive public hearings and detailed The Senate Judiciary Committee has aliens, domestic political groups, and reports on the investigations of lawful the challenging duty to establish and companies incorporated in the United political dissent and protest. The maintain an oversight regime that al- States. The information may be shared Church Committee found that the lows the Congress to know how these if it fits the broad definitions of ‘‘for- FBI’s internal security and domestic powers are exercised. eign intelligence’’ and ‘‘foreign intel- intelligence programs compiled mas- This bill will authorize the expanded ligence information.’’ sive files on activities protected by the sharing with intelligence agencies of The term ‘‘foreign intelligence’’ is First Amendment and the political information collected as part of a defined to mean ‘‘information relating opinions of Americans. criminal investigation, and the ex- to the capabilities, intentions, or ac- During the height of antiwar protest panded use of foreign intelligence sur- tivities of foreign governments or ele- and urban unrest in the late 1960’s, veillance tools and information in ments thereof, foreign organizations, Army intelligence joined the FBI in criminal investigations. Where foreign- or foreign persons, or international ter- monitoring domestic political activity. sponsored terrorism is the target of an rorist activities.’’ The term ‘‘foreign National intelligence agencies such as investigation, criminal and foreign in- intelligence information’’ is defined to CIA and NSA received extensive report- telligence jurisdictions clearly overlap include information about a United ing from the FBI and the military, as and agencies must coordinate their ef- States person that concerns a foreign well as from their own intelligence forts accordingly. This bill enters new power or foreign territory and ‘‘that gathering on critics of government pol- and uncharted territory by breaking relates to the national defense or the icy. Other law enforcement agencies down traditional barriers between law security of the United States’’ or ‘‘the such as the Internal Revenue Service enforcement and foreign intelligence. conduct of the foreign affairs of the were used to selectively investigate or- This is not done just to combat inter- United States.’’ Therefore, potentially, ganizations based on their political national terrorism, but for any crimi- whenever a criminal investigation ac- views. Under President’s of both par- nal investigation that overlaps a broad quires information about an American ties, these agencies disseminated infor- definition of ‘‘foreign intelligence.’’ citizen’s relationship with a foreign mation to the White House about the Yet, before final passage of this bill, country or its government, that infor- lawful political activities and opinions the Senate should recall our nation’s mation is eligible to be disseminated of critics of Administration policy—all unfortunate experience with domestic widely as ‘‘foreign intelligence infor- under the rubric of protecting the na- surveillance and intelligence abuses mation’’—even if the information is tional security. The scope of intel- that came to light in the mid-1970s. about entirely lawful activities, busi- ligence gathering swept up environ- Until Watergate and the Vietnam war, ness transactions, political relation- mental groups, women’s liberation ac- Congress allowed the Executive branch ships, or personal opinions. tivists, and virtually any organization virtually a free hand in using the FBI, Criminal investigations acquire volu- that mounted peaceful protest dem- the CIA, and other intelligence agen- minous information about persons who onstrations. cies to conduct domestic surveillance are not involved in illegal activity. During this unfortunate period in our in the name of national security. It Many individuals are investigated and history, the government did more than was the Cold War, Members of Congress later cleared. Many cases are inves- just gather information about protest were reluctant to take on FBI Director tigated and never prosecuted. Many and dissent. The FBI developed a sys- J. Edgar Hoover, and oversight was witnesses are interviewed whose testi- tematic program to disrupt domestic non-existent. One of the few safeguards mony never surfaces at trial. Immu- groups and discredit their leaders, enacted into law drew a sharp line be- nity is granted to compel testimony known as ‘‘COINTELPRO.’’ The FBI’s tween foreign intelligence and law en- before grand juries about people who efforts included the selective sharing of forcement. The National Security Act are never indicted. Wiretaps and micro- information from its investigations to of 1947, which established the Central phone ‘‘bugs’’ and computer commu- deny people employment and smear Intelligence Agency, said—and still nications intercepts pick up extensive their reputations. Beginning with Com- says today—that the CIA ‘‘shall have information about activities and opin- munist and socialist groups, the FBI’s no police, subpoena, or law enforce- ions and personal lives that have no COINTELPRO operations spread in the ment powers or internal security func- relevance to the criminal activity that 1960s to the Klan, the ‘‘new left,’’ and tions.’’ they are authorized to detect or mon- black militants. Elements of the civil

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S10993 rights and antiwar movements were has not allowed previous abuses to ment does not normally apply to such targeted for disruption because of sus- recur. techniques and the FBI has comparable picion that they were ‘‘influenced’’ by The most significant legislative re- authority in its criminal investiga- communists; others because of their sult of the Church Committee inves- tions. However, I have insisted that strident rhetoric. When some targets tigation was the Foreign Intelligence this authority to investigate U.S. per- were suspected of engaging in violence, Surveillance Act of 1978 which required sons be limited to counterintelligence the FBI’s tactics went so far as to court orders for national security elec- investigations conducted to protect place lives in jeopardy by passing false tronic surveillance in the United against international terrorism and allegations that individuals were gov- States. No longer did the Executive spying activities and that such inves- ernment informants. branch have exclusive control over the tigations may not be based solely on The most notorious case was J. vast powers of U.S. intelligence to con- activities protected by the First Edgar Hoover’s vendetta against Dr. duct wiretapping, bugging, and other Amendment. None of the changes in Martin Luther King, Jr. The Church communications monitoring in this FISA would authorize investigations of Committee documented the FBI’s ef- country. Surveillance was limited to Americans for the broader, more am- fort to discredit Dr. King by disclosing foreign powers and agents of foreign biguous purpose of collecting ‘‘foreign confidential information that was ob- powers, and the statutory probable intelligence’’ generally. In that re- tained from wiretaps and microphones cause standard for targeting an Amer- spect, the bill adheres to the basic targeted against him. The wiretaps ican as an ‘‘agent of a foreign power’’ principles recommended by the Church were justified to the Kennedy and required a showing of clandestine intel- Committee. Johnson Administrations on the ligence activities, sabotage, or inter- The gravest departure from that grounds that some of Dr. King’s advi- national terrorist activities on behalf framework, and the one with most po- sors were Communists, but this excuse of a foreign power. Americans could tential for abuses, is the new and un- allowed the FBI to mount continuous not be targeted solely on the basis of precedented statutory authority for political surveillance to undermine Dr. activities protected by the First sharing of ‘‘foreign intelligence’’ from King’s effectiveness. The FBI dissemi- Amendment. Surveillance of Ameri- criminal investigations with ‘‘any nated allegedly derogatory information cans under FISA was limited to coun- other Federal law enforcement, intel- not only within the government, but to terintelligence purposes to defend the ligence, protective, immigration, na- media and other private organizations nation against foreign spying and ter- tional defense, or national security of- including efforts to deny Dr. King the rorism. Americans could not be consid- ficial.’’ The Church Committee warned Nobel Peace Prize. Most vicious of all ered ‘‘agents of a foreign power’’ on the of the political abuse of the dissemina- was the FBI’s preparation of a com- basis of their lawful business or polit- tion of intelligence from domestic in- posite tape recording that was sent to ical relationships with foreign govern- vestigations. Intelligence was dissemi- him anonymously with an apparent in- ments or organizations. nated to the White House to track the vitation to commit suicide. During the The Congress has been cautious in contacts of members of Congress with 1964 Democratic National Convention the decades following the revelations particular foreign embassies. Informa- in Atlantic City where the greatest of the Church Committee about allow- tion was volunteered to the White controversy involved seating the Mis- ing use of criminal justice information House about Administration critics sissippi Freedom Democratic Party for other purposes and, specifically, on and other political figures. The Church delegates, the FBI provided the John- sharing such information with intel- Committee found ‘‘excessive dissemi- son White House a continuous flow of ligence agencies. In 1979 Attorney Gen- nation of large amounts of relatively political intelligence from the wiretaps eral Benjamin Civiletti testified before useless or totally irrelevant informa- on Dr. King’s telephones in Atlantic the House Judiciary Subcommittee on tion’’ to the White House that was not City. Constitutional Rights that the guide- evaluated and ‘‘thus exaggerated the These methods of domestic political lines for ‘‘any dissemination outside dangers.’’ surveillance and covert manipulation the Bureau . . . will have to be very, and disruption have no place in a free very specific. We will have to be very The Church Committee recommended society. They are lawful for the CIA to certain the dissemination is lawful, permitting FBI dissemination of per- use against terrorists abroad, under meets the same standards of certainty, sonally identifiable information about Presidential authorization and over- of intent, which is the basic reason for Americans to intelligence, military sight by the Intelligence Committees. the collection of the information and and other national security agencies in In the United States, however, such the investigation. . . .’’ On the issue of two areas—‘‘preventive criminal inves- surveillance activities by our govern- FBI sharing with the CIA, Attorney tigations of terrorist activities’’ and ment offends our fundamental First General Civiletti said ‘‘you have to be ‘‘preventive intelligence investigations Amendment rights of speech and asso- extremely careful in working out, pur- of hostile foreign intelligence activi- ciation, and undermines our demo- suant to the law, the information ties.’’ This has been substantially the cratic values. Since the Church Com- which is being exchanged, what its pur- practice under the Attorney General’s mittee investigation, one of the main pose is, how it was obtained and col- guidelines and Executive order proce- reasons for maintaining barriers be- lected, so that you are not inadvert- dures since then. tween domestic criminal investigations ently, out of a sense of cooperation or The new authority to disseminate and foreign intelligence operations has efficiency, perverting or corrupting the ‘‘foreign intelligence’’ from criminal been a concern that the no-hold-barred fact that the CIA’s main duty is for- investigations, including grand juries methods used abroad must not be eign intelligence, and they have no and law enforcement wiretaps, is an in- brought back into this country. charter, no responsibility, and not duty vitation to abuse without special safe- The Church Committee recommended performance, no mission to investigate guards. Fortunately, the final bill in- a series of safeguards to restrict the criminal acts in the United States.’’ cludes a provision, which was not in collection of information about Ameri- The bill we are passing today makes the Administration’s original proposal, cans by the CIA, the National Security potentially sweeping changes in the re- to maintain some degree of judicial Agency, and other U.S. intelligence lationships between the law enforce- oversight of the dissemination of grand agencies. The Attorney General issued ment and intelligence agencies. In the jury information. Within a ‘‘reasonable guidelines for FBI investigations and current crisis, there is justification for time’’ after the disclosure of grand jury Presidents issued Executive Orders re- expanding authority specifically for information, a government attorney quiring procedures approved by the At- counterintelligence to detect and pre- ‘‘shall file under seal a notice with the torney General for the collection and vent international terrorism. I support court stating the fact that such infor- retention of information about Ameri- the FBI request for broader authority mation was disclosed and the depart- cans by U.S. intelligence agencies. under FISA for pen registers and access ments, agencies, or entities to which These guidelines and procedures have to records without having to meet the the disclosure was made.’’ No such ju- served for the past 25 years as a stable statutory ‘‘agent of a foreign power’’ dicial role is provided for the disclo- framework that, with rare exceptions, standard, because the Fourth Amend- sure of information from wiretaps and

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S10994 CONGRESSIONAL RECORD — SENATE October 25, 2001 other criminal investigative tech- ask the Attorney General and the Di- because of the tragic terrorist attacks niques including the infiltration of or- rector of Central Intelligence to advise in New York, Virginia, and Pennsyl- ganizations with informants. However, the Judiciary Committee of their im- vania on September 11. Even now, we that authority to disclose without judi- plementation plans and practices every cannot assess the full measure of this cial review is subject to the sunset in step of the way. attack in terms of human lives, but we four years. The final bill includes a long overdue know that the number of casualties is Other safeguards can, if used prop- remedy for unauthorized disclosure of extraordinarily high. erly, minimize the unnecessary disclo- information obtained from electronic Congress acted swiftly to help the sure of ‘‘foreign intelligence’’ that surveillance under FISA and under victims of September 11. Within 10 identifies an American. When the in- criminal procedures. If the government days, we passed legislation to establish formation comes from grand juries or monitors the conversations of a person a Victims Compensations Program, wiretaps, the Attorney General is re- under the electronic surveillance pro- which will provide fair compensation quired under the bill to establish proce- cedures of title 18 or FISA and that in- to those most affected by this national dures for the disclosure of information formation is disclosed without proper tragedy. I am proud of our work on that identifies a United States person. authority, the aggrieved person may that legislation, which will expedite The Senate Judiciary Committee will recover money damages from the Fed- payments to thousands of Americans want to take a very close look at these eral Government. Such improper dis- whose lives were so suddenly shattered. procedures. Although not required closure is what happened in the past But now more than ever, we should under the bill, such procedures would when the FBI passed information from remember the tens of thousands of also be desirable for disclosure of infor- the electronic surveillance of Dr. Mar- Americans whose needs are not being mation from criminal investigations tin Luther King to selected private in- met—the victims of crimes that have generally, as permitted under section dividuals and organizations in an effort not made the national headlines. Just 203(d). In section 905, where the bill re- to discredit Dr. King. The government one day before the events that have so quires disclosure to intelligence agen- itself would be liable, in addition to in- transformed our nation, I came before cies from criminal investigations, the dividual employees, if something like this body to express my concern that Attorney General is authorized to this ever happens again. we were not doing more for crime vic- make exceptions and must issue imple- This provision is especially valuable tims. I noted that the pace of victims menting procedures. Again, these pro- in this bill, because of the expanded legislation had slowed, and that many cedures will be closely examined by the sharing of information from electronic opportunities for progress had been Senate Judiciary Committee. surveillance in criminal cases to agen- squandered. I suggested that this year, These procedures will be critical in cies with intelligence, military, and we had a golden opportunity to make determining the scope and impact of other national security responsibil- significant progress in this area by these provisions. Will they focus the ities. When this kind of sensitive infor- passing S. 783, the Leahy-Kennedy sharing of information on inter- mation is disseminated more widely, Crime Victims Assistance Act of 2001. national terrorism, which is the imme- the risk increases that it will be I am pleased, therefore, that the diate and compelling need before us, or leaked. antiterrorism package now before the will they sweep more broadly? Will As a deterrent against malicious Senate contains substantial portions of they permit automatic dissemination leaks, this provision wisely includes S. 783 aimed at refining the Victims of to intelligence agencies of any infor- procedures for administrative dis- Crime Act of 1984 (VOCA), and improv- cipline as well as the civil remedy mation about foreign governments, for- ing the manner in which the Crime against the Government. When a court eign organizations, or foreign persons Victims Fund is managed and pre- or the appropriate agency determines that is obtained in FBI investigations served. Most significantly, section 621 that there is serious question about of the USA Act will eliminate the cap of international organized crime and whether or not an employee willfully on VOCA spending, which has pre- white collar crime? What are the spe- disclosed information without proper vented more than $700 million in Fund cific circumstances under which con- authority, disciplinary proceedings deposits from reaching victims and fidential information collected by par- must be initiated. If the agency head supporting essential services. ticular agencies, such as the Internal decides that discipline is not war- Congress has capped spending from Revenue Service or the Bureau of Alco- ranted, he or she must notify the In- the Fund for the last two fiscal years, hol, Tobacco and Firearms, will be dis- spector General with jurisdiction over and President Bush has proposed a seminated to the U.S. Military or other the agency and provide the reasons for third cap for fiscal year 2002. These agencies? What will be the guidelines the decision not to impose discipline. limits on VOCA spending have created for including information that identi- Representative BARNY FRANK de- a growing sense of confusion and fies United States persons? How will serves credit for developing this pro- unease by many of those concerned need-to-know decisions be made on the posal, and the Department of Justice about the future of the Fund. handling of this information, and how has worked with Representative FRANK We should not be imposing artificial will access be controlled? What will be to ensure that the procedures for civil caps on VOCA spending while substan- done to ensure compliance with the discovery take into account the needs tial unmet needs continue to exist. 1947 ban on CIA having ‘‘police, sub- for protecting related criminal inves- Section 621 of the USA Act replaces the poena, or law enforcement powers or tigations or prosecutions and classified cap with a self-regulating system that internal security functions?’’ operations under the Foreign Intel- will ensure stability and protection of These and many other questions ligence Surveillance Act. Fund assets, while allowing more must be the subject of the Judiciary When Congress authorized electronic money to be distributed to the States Committee’s oversight of the imple- surveillance in 1968 under title 18 and for victim compensation and assist- mentation of the surveillance and in- in 1978 under FISA, the legislation im- ance. telligence provisions of this bill. Our posed civil and criminal sanctions for Other provisions included from S. 783 government is entering uncharted ter- violations by individuals. This bill will also make an immediate difference ritory. Much of the government’s expe- takes the law two steps forward by in the lives of victims, including vic- rience from the Cold War era before the adding government liability and ad- tims of terrorism. Shortly after the mid-1970s warns us of the risks of ministrative discipline against govern- Oklahoma City bombing, I proposed abuse. Reasonable measures that we ment employees. Along with the sunset and the Congress adopted the Victims are taking to protect against inter- provision, judicial oversight of the of Terrorism Act of 1995. This legisla- national terrorism may have far-reach- sharing of grand jury information, and tion authorized the Office for Victims ing ramifications beyond the imme- other improvements, the Frank amend- of Crime (OVC) to set aside an emer- diate crisis. There has never been a ment reflects the valuable contribution gency reserve of up to $50 million as greater need for Congressional vigi- of the House of Representatives to- part of the Crime Victims Fund. The lance to ensure against unnecessary wards making this a balanced bill. emergency reserve was intended to and improper use of the wide discretion The heart of every American aches serve as a ‘‘rainy day’’ fund to supple- being granted by a new law. I intend to for those who died or have been injured ment compensation and assistance

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S10995 grants to States to provide emergency Americans. Many of us would like to do never replace a family’s tragic loss, it relief in the wake of an act of ter- more, and finally enact effective hate is the right thing to do for the families rorism or mass violence that might crimes legislation, but the Administra- of our fallen heroes. I want to thank otherwise overwhelm the resources of a tion has asked that the debate on that Senator BIDEN and Senator HATCH for State’s crime victim compensation legislation be postponed. One of my their bipartisan leadership on this pro- program and crime victim assistance greatest regrets regarding the negotia- vision. services. Last month’s disaster created tions in this bill was that objections We expand the Department of Justice vast needs that have all but depleted prevented the Local Law Enforcement Regional Information Sharing Systems the reserve. Section 621 of the USA Act Enhancement Act, S. 625, from being Program to promote information shar- authorizes OVC to replenish the re- included in the USA Act. ing among Federal, State and local law serve with up to $50 million, and The Administration’s initial proposal enforcement agencies to investigate streamlines the mechanism for replen- was entirely focused on Federal law en- and prosecute terrorist conspiracies ishment in future years. forcement. Yet, we must remember and activities and authorize a doubling Another critical provision of the USA that State and local law enforcement of funding for this year and next year. Act will enable OVC to provide more officers have critical roles to play in The RISS Secure Intranet is a nation- immediate and effective assistance to preventing and investigating terrorist wide law enforcement network that al- victims of terrorism and mass violence acts. I am pleased that the bill we con- ready allows secure communications occurring within the United States. I sider today recognizes this fact. among the more than 5,700 Federal, proposed this measure last year as an As a former State prosecutor, I know State and local law enforcement agen- amendment to the Justice for Victims that State and local law enforcement cies. Effective communication is key of Terrorism Act, but was compelled to officers are often the first responders to effective law enforcement efforts drop it to achieve bipartisan consensus. to a crime. On September 11, the na- and will be essential in our national I am pleased that we are finally getting tion saw that the first on the scene fight against terrorism. it done this year. were the heroic firefighters, police offi- The RISS program enables its mem- These and other VOCA reforms in the cers and emergency personnel in New ber agencies to send secure, encrypted USA Act are long overdue. Yet, I regret York City. These New York public safe- communications—whether within just that we are not doing more. In my ty officers, many of whom gave the ul- one agency or from one agency to an- view, we should pass the Crime Victims timate sacrifice, remind us of how im- other. Federal agencies, such as the Assistance Act in its entirety. In addi- portant it is to support our State and FBI, do not have this capability, but tion to the provisions that are included local law enforcement partners. The recognize the need for it. Indeed, on in today’s bill, this legislation provides USA Act provides three critical meas- September 11, immediately after the for comprehensive reform of Federal ures of Federal support for our State terrorist attacks, FBI Headquarters law to establish enhanced rights and and local law enforcement officers in called RISS officials to request protections for victims of Federal the war against terrorism. ‘‘Smartgate’’ cards and readers to se- crime. It also proposes several pro- We streamline and expedite the Pub- cure their communications systems. grams to help States provide better as- lic Safety Officers’ Benefits application The FBI agency in Philadelphia called sistance for victims of State crimes. process for family members of fire soon after to request more Smartgate I also regret that we have not done fighters, police officers and rescue cards and readers as well. more for other victims of recent ter- workers who perish or suffer a dis- The Regional Information Sharing rorist attacks. While all Americans are abling injury in connection with pre- Systems Program is a proven success numbed by the heinous acts of Sep- vention, investigation, rescue or recov- that we need to expand to improve se- tember 11, we should not forget the vic- ery efforts related to a future terrorist cure information sharing among Fed- tims of the 1998 embassy bombings in attack. eral, State and local law enforcement East Africa. Eleven Americans and The Public Safety Officers’ Benefits agencies to coordinate their counter- many Kenyan and Tanzanian nationals Program provides benefits for each of terrorism efforts. employed by the United States lost the families of law enforcement offi- During negotiations following initial their lives in that tragic incident. It is cers, firefighters, and emergency re- passage of the Senate and House bills, my understanding that compensation sponse crew members who are killed or we added two new provisions to support to the families of these victims has in disabled in the line of duty. Current State and local governments in the many instances fallen short. It is my regulations, however, require the fami- final legislation. At Senator BIDEN’s hope that OVC will use a portion of the lies of public safety officers who have request, the First Responders Assist- newly replenished reserve fund to rem- fallen in the line of duty to go through ance Act, was added as section 1005 of edy any inequity in the way that these a cumbersome and time-consuming ap- H.R. 3062. This provision authorizes a individuals have been treated. plication process. In the face of our na- $25 million Department of Justice pro- We cannot speak of the victims of the tional fight against terrorism, it is im- gram to authorize grants to State and September 11 without also noting that portant that we provide a quick proc- local authorities to respond to and pre- Arab-Americans and Muslims in this ess to support the families of brave vent acts of terrorism. country have become the targets of Americans who selflessly give their I authored section 1014 of H.R. 3062 to hate crimes, harassment, and intimida- lives so that others might live before, authorize a Department of Justice tion. I applaud the President for speak- during, and after a terrorist attack. grant program for State and local do- ing out against and condemning such This provision builds on the new law mestic preparedness support. These acts, and for visiting a mosque to dem- championed by Senator CLINTON, Sen- grants will help each State prepare for onstrate by action that all religions ator SCHUMER and Congressman NAD- and respond to terrorist acts including are embraced in this country. I also LER to speed the benefit payment proc- but not limited to events of terrorism commend the FBI Director for his peri- ess for families of public safety officers involving weapons of mass destruction odic reports on the number of hate killed in the line of duty in New York and biological, nuclear, radiological, crime incidents against Arab-American City, Virginia, and Western Pennsyl- incendiary, chemical, and explosive de- and Muslims that the FBI is aggres- vania, on September 11. vices. This provision improves an ap- sively investigating and making clear We have raised the total amount of propriated program to provide: 1, addi- that this conduct is taken seriously Public Safety Officers’ Benefit Pro- tional flexibility to purchase needed and will be punished. gram payments from approximately equipment; 2, training and technical The USA Act contains, in section 102, $150,000 to $250,000. This provision assistance to State and local first re- a sense of the Congress that crimes and retroactively goes into effect to pro- sponders; and 3, a more equitable allo- discrimination against Arab and Mus- vide much-needed relief for the fami- cation of funds to all States. lim Americans are condemned, and in lies of the brave men and women who Our State and local law enforcement section 1002, a provision suggested by sacrificed their own lives for their fel- partners welcome the challenge to join Senator DURBIN that condemns vio- low Americans during the year. Al- in our national mission to combat ter- lence and discrimination against Sikh though this increase in benefits can rorism. We cannot ask State and local

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This bill provides five key pro- strong advocates of these provisions This bill also directs the FBI Direc- visions for necessary Federal support and I thank them for their leadership. tor to establish such security require- for our State and local law enforce- In addition, the USA Act, in section ments as are necessary for the per- ment officers to serve as full partners 401, authorizes the Attorney General to sonnel employed as translators. We in our fight against terrorism. waive the FTE cap on INS personnel in know the effort to recruit translators I am deeply troubled by continuing order to address the national security has a high priority, and the Congress reports that critical information is not needs of the United States on the should provide all possible support. being shared with State and local law northern border. Now more than ever, Therefore, the bill calls on the Attor- enforcement. In particular, the recent we must patrol our border vigilantly ney General to report to the Judiciary testimony of Baltimore Police Chief Ed and prevent those who wish America Committees on the number of trans- Norris before the House Government harm from gaining entry. At the same lators employed by the Justice Depart- Reform Committee highlighted the time, we must work with the Cana- ment; any legal or practical impedi- current problem. I have also spoken to dians to allow speedy crossing to legiti- ments to using translators employed Mayor Giuliani and to Senator SCHU- mate visitors and foster the continued by other Federal, State, or local agen- MER and Senator CLINTON about the growth of trade which is beneficial to cies, on a full, part-time, or shared need for better coordination and infor- both countries. basis; and the needs of the FBI for spe- mation sharing between the FBI and In addition to providing for more per- cific translation services in certain State and local law enforcement au- sonnel, this bill also includes, in sec- languages, and recommendations for thorities who are being called upon to tion 402(4), my proposal to provide $100 meeting those needs. assist in the current terrorism inves- million in funding for both the INS and The Administration’s initial proposal tigations. This is no time for turf bat- the Customs Service to improve the assembled a laundry list of more than tles. The FBI must recognize the con- technology used to monitor the North- 40 Federal crimes ranging from com- tributions of other law enforcement au- ern Border and to purchase additional puter hacking to malicious mischief to thorities and facilitate their continued equipment. The bill also includes, in the use of weapons of mass destruction, cooperation in this national effort. section 403(c), an important provision and designated them as ‘‘Federal ter- The unfolding facts about how the from Senator CANTWELL directing the rorism offenses,’’ regardless of the cir- terrorists who committed the Sep- Attorney General, in consultation with cumstances under which they were tember 11 attack were able to enter other agencies, to develop a technical committed. For example, a teenager this country without difficulty are standard for identifying electronically who spammed the NASA website and, chilling. Since the attacks many have the identity of persons applying for as a result, recklessly caused damage, pointed to our northern border as vul- visas or seeking to enter the United would be deemed to have committed nerable to the entry of future terror- States. In short, this bill provides a this new ‘‘terrorism’’ offense. Under ists. This is not surprising when a sim- comprehensive high-tech boost for the the Administration’s proposal, the con- ple review of the numbers shows that security of our nation. sequences of this designation were se- the northern border has been routinely This bill also includes important pro- vere. Crimes on the list would carry no short-changed in personnel. While the posals to enhance data sharing. The statute of limitations. The maximum number of border patrol agents along bill, in section 403, directs the Attor- penalties would shoot up to life impris- the southern border has increased over ney General and the FBI Director to onment, and those released earlier the last few years to over 8,000, the give the State Department and INS ac- would be subject to a lifetime of super- number at the northern border has re- cess to the criminal history informa- vised release. Moreover, anyone who mained the same as a decade ago at 300. tion in the FBI’s National Crime Infor- harbored a person whom he had ‘‘rea- This remains true despite the fact that mation Center (NCIC) database, as the sonable grounds to suspect’’ had com- Admad Ressam, the Algerian who Administration and I both proposed. mitted, or was about to commit, a planned to blow up the Los Angeles The Attorney General is directed to re- ‘‘Federal terrorism offense’’—whether International Airport in 1999, and who port back to the Congress in two years it was the Taliban or the mother of my has been linked to those involved in on progress in implementing this re- hypothetical teenage computer hack- the September 11 attacks, chose to quirement. We have also adopted the er—would be subject to stiff criminal enter the United States at our north- Administration’s language, in section penalties. I worked closely with the ern border. That border will remain an 413, to make it easier for the State De- Administration to ensure that the defi- inviting target until we dramatically partment to share information with nition of ‘‘terrorism’’ in the USA Act improve our security. foreign governments for aid in terrorist fit the crime. The USA Act includes my proposals investigations. First, we have trimmed the list of to provide the substantial and long The USA Act contains a number of crimes that may be considered as ter- overdue assistance for our law enforce- provisions intended to improve and up- rorism predicates in section 808 of the ment and border control efforts along date the Federal criminal code to ad- bill. This shorter, more focused list, to the Northern Border. My home State of dress better the nature of terrorist ac- be codified at 18 U.S.C. § 2332(g)(5)(B), Vermont has seen huge increases in tivity and assist the FBI in translating more closely reflects the sorts of of- Customs and INS activity since the foreign language information collected. fenses committed by terrorists. signing of the North American Free I will mention just a few of these provi- Second, we have provided, in section Trade Agreement. The number of peo- sions. 809, that the current 8-year limitations ple coming through our borders has The truth certainly seems self-evi- period for this new set of offenses will risen steeply over the years, but our dent that all the best surveillance remain in place, except where the com- staff and our resources have not. techniques in the world will not help mission of the offense resulted in, or I proposed—and this legislation au- this country defend itself from ter- created a risk of, death or serious bod- thorizes in section 402—tripling the rorist attack if the information cannot ily injury. number of Border Patrol, INS inspec- be understood in a timely fashion. In- Third, rather than make an across- tors, and Customs Service employees in deed, within days of September 11, the the-board, one-size-fits-all increase of each of the States along the 4,000-mile FBI Director issued an employment ad the penalties for every offense on the Northern Border. I was gratified when on national TV calling upon Arabic list, without regard to the severity of 22 Senators—Democrats and Repub- speakers to apply for a job as an FBI the offense, we have made, in section licans—wrote to the President sup- translator. This is a dire situation that 810, more measured increases in max- porting such an increase, and now hope needs attention. I am therefore grati- imum penalties where appropriate, in- that the Administration will fully fund fied that the final bill contains my pro- cluding life imprisonment or lifetime this critical law enforcement improve- posal, in section 205, to waive any Fed- supervised release in cases in which the ment. eral personnel requirements and limi- offense resulted in death. We have also

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S10997 added, in section 811, conspiracy provi- after a deranged passenger slit the other than a peaceful purpose. This sions to a few criminal statutes where driver’s throat and then grabbed the will enhance the government’s ability appropriate, with penalties equal to steering wheel, forcing the bus into on- to prosecute suspected terrorists in the penalties for the object offense, up coming traffic. Six people were killed possession of biological agents or tox- to life imprisonment. in the crash. Because there are cur- ins, and conform the scope of the Finally, we have more carefully de- rently no Federal laws addressing ter- criminal offense in 18 U.S.C. § 175 more fined the new crime of harboring ter- rorism of mass transportation systems, closely to the related forfeiture provi- rorists in section 803, so that it applies however, there may be no Federal ju- sion in 18 U.S.C. § 176. This section also only to those harboring people who risdiction over such a case, even if it contains a new statute, 18 U.S.C. § 175b, have committed, or are about to com- were committed by suspected terror- which generally makes it an offense for mit, the most serious of Federal ter- ists. Clearly, there is an urgent need certain restricted persons, including rorism-related crimes, such as the use for strong criminal legislation to deter non-resident aliens from countries that of weapons of mass destruction. More- attacks against mass transportation support international terrorism, to over, it is not enough that the defend- systems. Section 801 will fill this gap. possess a listed biological agent or ant had ‘‘reasonable grounds to sus- The Computer Fraud and Abuse Act, toxin. pect’’ that the person he was harboring 18 U.S.C. § 1030, is the primary Federal Of greater consequence, section 817 had committed, or was about to com- criminal statute prohibiting computer defines another additional offense, pun- mit, such a crime; the government frauds and hacking. I worked with Sen- ishable by up to 10 years in prison, of must prove that the defendant knew or ator HATCH in the last Congress to possessing a biological agent, toxin, or had ‘‘reasonable grounds to believe’’ make improvements to this law in the delivery system ‘‘of a type or in a that this was so. Internet Security Act, which passed quantity that, under the cir- I am deeply disappointed that the the Senate as part of another bill. Our cumstances,’’ is not reasonably justi- amendments to the so-called McDade work is included in section 814 of the fied by a peaceful purpose. As origi- law, which were included in the origi- USA Act. This section would amend nally proposed by the Administration, nal USA Act, S. 1510, which passed the the statute to clarify the appropriate this provision specifically stated that Senate, are not included in the bill be- scope of Federal jurisdiction. (1) The knowledge of whether the type or fore the Senate today. Well before Sep- bill adds a definition of ‘‘loss’’ to cover quantity of the agent or toxin was rea- tember 11, the Justice Department has any reasonable cost to the victim in re- sonably justified was not an element of said that the McDade law—which sub- sponding to a computer hacker. Cal- the offense. Thus, although the burden jects Federal prosecutors to multiple culation of loss is important both in of proof is always on the government, and potentially conflicting State bar determining whether the $5,000 juris- every person who possesses a biological rules—has delayed important criminal dictional hurdle in the statute is met, agent, toxin, or delivery system was at investigations, prevented the use of ef- and, at sentencing, in calculating the some level of risk. At my urging, the fective and traditionally-accepted in- appropriate guideline range and res- Administration agreed to drop this por- vestigative techniques, and served as titution amount. tion of the provision. the basis of litigation to interfere with (2) The bill amends the definition of Nevertheless, I remain troubled by legitimate Federal prosecutions. De- ‘‘protected computer,’’ to include the subjectivity of the substantive spite this record of opposition, and the qualified computers even when they standard for violation of this new increasing demands upon Federal pros- are physically located outside of the criminal prohibition, and question ecutors in the wake of the terrorist at- United States. This clarification will whether it provides sufficient notice tacks, the Administration simply ac- preserve the ability of the United under the Constitution. I also share the ceded to House demands to remove this States to assist in international hack- concerns of the American Society for provision of the USA Act. This aban- ing cases and finally, this section Microbiology and the Association of donment has removed a critical law en- eliminates the current directive to the American Universities that this provi- forcement provision from the bill. No Sentencing Commission requiring that sion will have a chilling effect upon le- one in the Senate knows more about all violations, including misdemeanor gitimate scientific inquiry that offsets the importance of this provision than violations, of certain provisions of the any benefit in protecting against ter- Senator WYDEN, who worked strenu- Computer Fraud and Abuse Act be pun- rorism. While we have tried to prevent ously to include the McDade law in ished with a term of imprisonment of against this by creating an explicit ex- this bill. But his efforts and mine at least six months. clusion for ‘‘bona fide research,’’ this proved unavailing without Administra- Borrowing from a bill introduced in provision may yet prove unworkable, tion backing through the entire proc- the last Congress by Senator BIDEN, unconstitutional, or both. I urge the ess. the USA Act contains a provision in Justice Department and the research The McDade law has a dubious his- section 817 to strengthen our Federal community to work together on sub- tory, to say the least. At the end of the laws relating to the threat of biological stitute language that would provide 105th Congress, it was slipped into an weapons. At a time when the national prosecutors with a more workable tool. omnibus appropriations bill over the headlines are filled with news about Two sections of the USA Act were objection of every member of the Sen- anthrax and other biological threats, it added at the request of the United ate Judiciary Committee. Since it was is fitting that the House added this States Secret Service, with the support adopted, it has caused numerous prob- provision back to the bill after drop- of the Administration. I was pleased to lems for Federal prosecutors, and we ping it from H.R. 2975. Unfortunately, accommodate the Secret Service by in- must find a way to amend it before the bill does not contain certain regu- cluding these provisions in the bill to more cases are compromised. At a time latory provisions that the Administra- expand Electronic Crimes Task Forces when we need Federal law enforcement tion initially proposed and later with- and to clarify the authority of the Se- authorities to move quickly to catch drew, apparently due to its inability to cret Service to investigate computer those responsible for the September 11 resolve inter-agency conflicts. Given crimes. attacks, and to prevent further attacks the grave importance of this issue, I The Secret Service is committed to on our country, we can no longer tol- urge the Administration to resolve the development of new tools to com- erate the drag on Federal investiga- these disputes and work with the Con- bat the growing areas of financial tions and prosecutions caused by this gress to provide these additional pro- crime, computer fraud, and ill-considered legislation. tections. cyberterrorism. Recognizing a need for Another provision of the USA Act Current law prohibits the possession, law enforcement, private industry and that was not included in the Adminis- development, or acquisition of biologi- academia to pool their resources, tration’s initial proposal is section 801, cal agents or toxins ‘‘for use as a weap- skills, and vision to combat criminal which targets acts of terrorism and on.’’ Section 817 amends the definition elements in cyberspace, the Secret other violence against mass transpor- of ‘‘for use as a weapon’’ to include all Service created the New York Elec- tation systems. Earlier this month, a situations in which it can be proven tronic Crimes Task Force (NYECTF). Greyhound bus crashed in Tennessee that the defendant had any purpose This highly successful model includes

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S10998 CONGRESSIONAL RECORD — SENATE October 25, 2001 over 250 individual members, including reasonable balance to protect both the Section 220 of this bill authorizes na- 50 different Federal, State and local security and the liberties of our people. tionwide service of search warrants in law enforcement agencies, 100 private In some respects, the changes made are terrorism investigations. This will companies, and 9 universities. Since its appropriate and important ones to up- allow the judge who is most familiar inception in 1995, the NYECTF has suc- date surveillance and investigative with the developments in a fast-break- cessfully investigated a range of finan- procedures in light of new technology ing and complex terrorism investiga- cial and electronic crimes, including and experience with current law. Yet, tion to make determinations of prob- credit card fraud, identity theft, bank as I noted at the beginning of my state- able cause, no matter where the prop- fraud, computer systems intrusions, ment, in other respects, I have deep erty to be searched is located. This will and e-mail threats against protectees concerns that we may be increasing not only save time by avoiding having of the Secret Service. Section 105 of the surveillance powers and the sharing of to bring up-to-speed another judge in USA Act authorizes the Secret Service criminal justice information without another jurisdiction where the prop- to develop similar task forces in cities adequate checks on how information erty is located, but also serves privacy and regions across the country where may be handled and without adequate and Fourth Amendment interests in critical infrastructure may be vulner- accountability in the form of judicial ensuring that the most knowledgeable able to attacks from terrorists or other review. judge makes the determination of cyber-criminals. The bill contains a number of sen- probable cause. The bill, in section 209, Section 506 of the USA Act gives the sible proposals that should not be con- also authorizes voice mail messages to Secret Service concurrent jurisdiction troversial. be seized on the authority of a probable to investigate offenses under 18 U.S.C. For example, sections 201 and 202 of cause search warrant rather than § 1030 relating to fraud and related ac- the USA Act would add to the list of through the more burdensome and tivity in connection with computers. crimes that may be used as predicates time-consuming process of a wiretap. for wiretaps certain offenses which are Prior to the 1996 amendments to the The bill updates the laws pertaining specifically tailored to the terrorist Computer Fraud and Abuse Act, the to electronic records in three primary threat. In addition to crimes that re- Secret Service was authorized to inves- ways. First, in section 210, the bill au- late directly to terrorism, the list tigate any and all violations of section thorizes the nationwide service of sub- would include crimes of computer 1030, pursuant to an agreement be- poenas for subscriber information and fraud and abuse which are committed expands the list of items subject to tween the Secretary of Treasury and by terrorists to support and advance subpoena to include the means and the Attorney General. The 1996 amend- their illegal objectives. ments, however, concentrated Secret The bill, in section 206, would author- source of payment for the service. In section 211, the bill equalizes the Service jurisdiction on certain speci- ize the use of roving wiretaps in the standard for law enforcement access to fied subsections of section 1030. The course of a foreign intelligence inves- cable subscriber records on the same current amendment would return full tigation and brings FISA into line with basis as other electronic records. The jurisdiction to the Secret Service and criminal procedures that allow surveil- Cable Communications Policy Act, would allow the Justice and Treasury lance to follow a person, rather than passed in 1984 to regulate various as- Departments to decide on the appro- requiring a separate court order identi- priate work-sharing balance between fying each telephone company or other pects of the cable television industry, the two. This will enable the Secret communication common carrier whose did not take into account the changes Service to investigate a wide range of assistance is needed. This is a matter in technology that have occurred over potential White House network intru- on which the Attorney General and I the last fifteen years. Cable television sions, as well as intrusions into remote reached early agreement. This is the companies now often provide Internet sites (outside of the White House) that kind of change that has a compelling access and telephone service in addi- could impact the safety and security of justification, because it recognizes the tion to television programming. This its protectees, and to continue its mis- ease with which targets of investiga- amendment clarifies that a cable com- sions to protect the nation’s critical tions can evade surveillance by chang- pany must comply with the laws gov- infrastructure and financial payment ing phones. In fact, the original roving erning the interception and disclosure systems. wiretap authority for use in criminal of wire and electronic communications The USA Act also authorizes, for the investigations was enacted as part of just like any other telephone company first time, a counter-terrorism fund in the Electronic Communications Pri- or Internet service provider. The the Treasury of the United States to vacy Act, ECPA, in 1986. I was proud to amendments would retain current reimburse Justice Department for any be the primary Senate sponsor of that standards that govern the release of costs incurred in connection with the earlier law. customer records for television pro- fight against terrorism. I first au- Paralleling the statutory rules appli- gramming. thored this counter-terrorism fund in cable to criminal investigations, the Finally, the bill, in section 212, per- S. 1319, the 21st Century Department of formulation I originally proposed made mits, but does not require, an elec- Justice Appropriations Authorization clear that this roving wiretap author- tronic communications service to dis- Act, which Senator HATCH and I intro- ity must be requested in the applica- close the contents of and subscriber in- duced in August. tion before the FISA court was author- formation about communications in Specifically, this counter-terrorism ized to order such roving surveillance emergencies involving the immediate fund may be used: (1) to reestablish an authority. Indeed, the Administration danger of death or serious physical in- office or facility that has been dam- agrees that the FISA court may not jury. Under current law, if an ISP’s aged as the result of any domestic or grant such authority sua sponte. Nev- customer receives an e-mail death international terrorism incident; (2) to ertheless, we have accepted the Admin- threat from another customer of the provide support to counter, inves- istration’s formulation of the new rov- same ISP, and the victim provides a tigate, or prosecute domestic or inter- ing wiretap authority, which requires copy of the communication to the ISP, national terrorism, including paying the FISA court to make a finding that the ISP is limited in what actions it rewards in connection with these ac- the actions of the person whose com- may take. On one hand, the ISP may tivities; (3) to conduct terrorism threat munications are to be intercepted disclose the contents of the forwarded assessments of Federal agencies; and could have the effect of thwarting the communication to law enforcement (or (4) for costs incurred in connection identification of a specified facility or to any other third party as it sees fit). with detaining individuals in foreign place. While no amendment is made to See 18 U.S.C. §2702(b)(3). On the other countries who are accused of acts of the statutory directions for what must hand, current law does not expressly terrorism in violation of United States be included in the application for a authorize the ISP to voluntarily pro- law. FISA electronic surveillance order, vide law enforcement with the iden- This bill provides enhanced surveil- these applications should include the tity, home address, and other sub- lance procedures for the investigation necessary information to support the scriber information of the user making of terrorism and other crimes. The FISA court’s finding that roving wire- the threat. See 18 U.S.C. challenge before us has been to strike a tap authority is warranted. §2703(c)(1)(B),(C) (permitting disclosure

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S10999 to government entities only in re- As the outline of my earlier legisla- identify its source. Only if the inves- sponse to legal process). In those cases tion suggests, I have long supported tigators could have served MCI with a where the risk of death or injury is im- modernizing the pen register and trap trap and trace order while the hacker minent, the law should not require pro- and trace device laws by modifying the was actively on-line could they have viders to sit idly by. This voluntary statutory language to cover the use of successfully traced back and located disclosure, however, in no way creates these orders on computer trans- him. an affirmative obligation to review missions; to remove the jurisdictional In another example provided by the customer communications in search of limits on service of these orders; and to Department of Justice, investigators such imminent dangers. update the judicial review procedure, encountered similar difficulties in at- Also, under existing law, a provider which, unlike any other area in crimi- tempting to track Kevin Mitnick, a (even one providing services to the pub- nal procedure, bars the exercise of judi- criminal who continued to hack into lic) may disclose the contents of a cus- cial discretion in reviewing the jus- computers attached to the Internet de- tomer’s communications—to law en- tification for the order. The USA Act, spite the fact that he was on supervised forcement or anyone else—in order to in section 216, updates the pen register release for a prior computer crime con- protect its rights or property. See 18 and trap and trace laws only in two out viction. The FBI attempted to trace U.S.C. §2702(b)(5). However, the current of three respects I believe are impor- these electronic communications while statute does not expressly permit a tant, and without allowing meaningful they were in progress. In order to evade provider voluntarily to disclose non- judicial review. Yet, we were able to arrest, however, Mitnick moved around content records (such as a subscriber’s improve the Administration’s initial the country and used cloned cellular login records) to law enforcement for proposal, which suffered from the same phones and other evasive techniques. purposes of self-protection. See 18 problems as the provision that was His hacking attacks would often pass U.S.C. §2703(c)(1)(B). Yet the right to hastily taken up and passed by the through one of two cellular carriers, a disclose the content of communica- Senate, by voice vote, on September, local phone company, and then two tions necessarily implies the less intru- 13, 2001, as an amendment to the Com- Internet service providers. In this situ- sive ability to disclose non-content merce Justice State Appropriations ation, where investigators and service records. Cf. United States v. Auler, 539 Act. providers had to act quickly to trace F.2d 642, 646 n.9 (7th Cir. 1976) (phone The existing legal procedures for pen Mitnick in the act of hacking, only company’s authority to monitor and register and trap-and-trace authority many repeated attempts—accompanied disclose conversations to protect require service of individual orders for by an order to each service provider— against fraud necessarily implies right installation of pen register or trap and finally produced success. Fortunately, to commit lesser invasion of using, and trace device on the service providers Mitnick was such a persistent hacker disclosing fruits of, pen register device) that carried the targeted communica- that he gave law enforcement many (citing United States v. Freeman, 524 tions. Deregulation of the tele- chances to complete the trace. F.2d 337, 341 (7th Cir. 1975)). Moreover, communications industry has had the This duplicative process of obtaining as a practical matter providers must consequence that one communication a separate order for each link in the have the right to disclose the facts sur- may be carried by multiple providers. communications chain can be quite rounding attacks on their systems. For example, a telephone call may be time-consuming, and it serves no use- When a telephone carrier is defrauded carried by a competitive local ex- ful purpose since the original court has by a subscriber, or when an ISP’s au- change carrier, which passes it at a already authorized the trace. More- thorized user launches a network in- switch to a local Bell Operating Com- over, a second or third order addressed trusion against his own ISP, the pro- pany, which passes it to a long distance to a particular carrier that carried part vider must have the legal ability to re- of a prior communication may prove carrier, which hands it to an incum- port the complete details of the crime useless during the next attack: in com- bent local exchange carrier elsewhere to law enforcement. The bill clarifies puter intrusion cases, for example, the in the U.S., which in turn may finally that service providers have the statu- target may use an entirely different hand it to a cellular carrier. If these tory authority to make such disclo- path (i.e., utilize a different set of in- carriers do not pass source information sures. termediate providers) for his or her with each call, identifying that source There is consensus that the existing subsequent activity. legal procedures for pen register and may require compelling information The bill would modify the pen reg- trap-and-trace authority are anti- from a host of providers located ister and trap and trace statutes to quated and need to be updated. I have throughout the country. allow for nationwide service of a single Under present law, a court may only been proposing ways to update the pen order for installation of these devices, register and trap and trace statutes for authorize the installation of a pen reg- without the necessity of returning to several years, but not necessarily in ister or trap device ‘‘within the juris- court for each new carrier. I support the same ways as the Administration diction of the court.’’ As a result, when this change. initially proposed. In fact, in 1998, I in- one provider indicates that the source The language of the existing statute troduced with then-Senator Ashcroft, of a communication is a carrier in an- is hopelessly out of date and speaks of the E-PRIVACY Act, S. 2067, which other district, a second order may be a pen register or trap and trace ‘‘de- proposed changes in the pen register necessary. The Department of Justice vice’’ being ‘‘attached’’ to a telephone laws. In 1999, I introduced the E- has advised, for example, that in 1996, a ‘‘line.’’ However, the rapid comput- RIGHTS Act, S. 934, also with pro- hacker (who later turned out to be erization of the telephone system has posals to update the pen register laws. launching his attacks from a foreign changed the tracing process. No longer Again, in the last Congress, I intro- country) extensively penetrated com- are such functions normally accom- duced the Internet Security Act, S. puters belonging to the Department of plished by physical hardware compo- 2430, on April 13, 2000, that proposed: 1, Defense. This hacker was dialing into a nents attached to telephone lines. In- changing the pen register and trap and computer at Harvard University and stead, these functions are typically trace device law to give nationwide ef- used this computer as an intermediate performed by computerized collection fect to pen register and trap and trace staging point in an effort to conceal his and retention of call routing informa- orders obtained by Government attor- location and identity. Investigators ob- tion passing through a communica- neys and obviate the need to obtain tained a trap and trace order instruct- tions system. identical orders in multiple Federal ju- ing the phone company, Nynex, to The statute’s definition of a ‘‘pen risdictions; 2, clarifying that such de- trace these calls, but Nynex could only register’’ as a ‘‘device’’ that is ‘‘at- vices can be used for computer trans- report that the communications were tached’’ to a particular ‘‘telephone missions to obtain electronic address- coming to it from a long-distance car- line’’ is particularly obsolete when ap- es, not just on telephone lines; and 3, rier, MCI. Investigators then applied plied to the wireless portion of a cel- as a guard against abuse, providing for for a court order to obtain the connec- lular phone call, which has no line to meaningful judicial review of govern- tion information from MCI, but since which anything can be attached. While ment attorney applications for pen reg- the hacker was no longer actually courts have authorized pen register or- isters and trap and trace devices. using the connection, MCI could not ders for wireless phones based on the

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11000 CONGRESSIONAL RECORD — SENATE October 25, 2001 notion of obtaining access to a ‘‘virtual tions under the pen/trap device laws tor’s certification. The court is not au- line,’’ updating the law to keep pace ‘‘so as not to include the contents of thorized to look behind the certifi- with current technology is a better any wire or electronic communica- cation to evaluate the judgement of course. tions.’’ This limitation on the tech- the prosecutor. Moreover, the statute is ill-equipped nology used by the government to exe- I have urged that government attor- to facilitate the tracing of communica- cute pen/trap orders is important since, neys be required to include facts about tions that take place over the Internet. as the FBI advised me in June 2000, pen their investigations in their applica- For example, the pen register defini- register devices ‘‘do capture all elec- tions for pen/trap orders and allow tion refers to telephone ‘‘numbers’’ tronic impulses transmitted by the fa- courts to grant such orders only where rather than the broader concept of a cility on which they are attached, in- the facts support the relevancy of the user’s communications account. Al- cluding such impulses transmitted information likely to be obtained by though pen register and trap orders after a phone call is connected to the the orders. This is not a change in the have been obtained for activity on called party.’’ The impulses made after applicable standard, which would re- computer networks, Internet service the call is connected could reflect the main the very low relevancy standard. providers have challenged the applica- electronic banking transactions a call- Instead, this change would simply tion of the statute to electronic com- er makes, or the electronic ordering allow the court to evaluate the facts munications, frustrating legitimate in- from a catalogue that a customer presented by a prosecutor, and, if it vestigations. I have long supported up- makes over the telephone, or the elec- finds that the facts support the govern- dating the statute by removing words tronic ordering of a prescription drug. ment’s assertion that the information such as ‘‘numbers . . . dialed’’ that do This transactional data intercepted to be collected will be relevant, issue not apply to the way that pen/trap de- after the call is connected is ‘‘con- the order. Although this change will vices are used and to clarify the stat- tent.’’ As the Justice Department ex- place an additional burden on law en- ute’s proper application to tracing plained in a May 1998 letter to then- forcement, it will allow the courts a communications in an electronic envi- House Judiciary Committee Chairman greater ability to assure that govern- ronment, but in a manner that is tech- HENRY HYDE, ‘‘the retrieval of the elec- ment attorneys are using such orders nology neutral and does not capture tronic impulses that a caller nec- properly. the content of communications. That essarily generated in attempting to di- Some have called this change a ‘‘roll- being said, I have been concerned about rect the phone call’’ does not con- back’’ in the statute, as if the concept the FBI and Justice Department’s in- stitute a ‘‘search’’ requiring probable of allowing meaningful judicial review sistence over the past few years that cause since ‘‘no part of the substantive was an extreme position. To the con- the pen/trap devices statutes be up- information transmitted after the call- trary, this is a change that the Clinton dated with broad, undefined terms that er had reached the called party’’ is ob- Administration supported in legisla- continue to flame concerns that these tained. But the Justice Department tion transmitted to the Congress last laws will be used to intercept private made clear that ‘‘all of the information year. This is a change that the House communications content. transmitted after a phone call is con- Judiciary Committee also supported The Administration’s initial pen/trap nected to the called party . . . is sub- last year. In the Electronic Commu- device proposal added the terms ‘‘rout- stantive in nature. These electronic nications Privacy Act, H.R. 5018, that ing’’ and ‘‘addressing’’ to the defini- impulses are the ‘contents’ of the call: Committee proposed that before a pen/ tions describing the information that They are not used to direct or process trap device ‘‘could be ordered installed, was authorized for interception on the the call, but instead convey certain the government must first demonstrate low relevance standard under these messages to the recipient.’’ to an independent judge that ‘specific laws. The Administration and the De- When I added the direction on use of and articulable facts reasonably indi- partment of Justice flatly rejected my reasonably available technology (codi- cate that a crime has been, is being, or suggestion that these terms be defined fied as 18 U.S.C. 3121(c)) to the pen reg- will be committed, and information to respond to concerns that the new ister statute as part of the Commu- likely to be obtained by such installa- terms might encompass matter consid- nications Assistance for Law Enforce- tion and use . . . is relevant to an in- ered content, which may be captured ment Act (CALEA) in 1994, I recognized vestigation of that crime.’’ (Report 106– only upon a showing of probable cause, that these devices collected content 932, 106th Cong. 2d Sess., Oct. 4, 2000, p. not the mere relevancy of the pen/trap and that such collection was unconsti- 13). Unfortunately, the Bush Adminis- statute. Instead, the Administration tutional on the mere relevance stand- tration has taken a contrary position agreed that the definition should ex- ard. Nevertheless, the FBI advised me and has rejected this change in the ju- pressly exclude the use of pen/trap de- in June 2000, that pen register devices dicial review process. vices to intercept ‘‘content,’’ which is for telephone services ‘‘continue to op- Currently, an owner or operator of a broadly defined in 18 U.S.C. 2510(8). erate as they have for decades’’ and computer that is accessed by a hacker While this is an improvement, the that ‘‘there has been no change . . . as a means for the hacker to reach a FBI and Justice Department are short- that would better restrict the record- third computer, cannot simply consent sighted in their refusal to define these ing or decoding of electronic or other to law enforcement monitoring of the terms. We should be clear about the impulses to the dialing and signaling computer. Instead, because the owner consequence of not providing defini- information utilized in call proc- or operator is not technically a party tions for these new terms in the pen/ essing.’’ Perhaps, if there were mean- to the communication, law enforce- trap device statutes. These terms will ingful judicial review and account- ment needs wiretap authorization be defined, if not by the Congress, then ability, the FBI would take the statu- under Title III to conduct such moni- by the courts in the context of crimi- tory direction more seriously and actu- toring. I have long been interested in nal cases where pen/trap devices have ally implement it. closing this loophole. Indeed, when I been used and challenged by defend- Due in significant part to the fact asked about this problem, the FBI ex- ants. If a court determines that a pen that pen/trap devices in use today col- plained to me in June 2000 that: register has captured ‘‘content,’’ which lect ‘‘content,’’ I have sought in legis- This anomaly in the law creates an unten- the FBI admits such devices do, in vio- lation introduced over the past few able situation whereby providers are some- lation of the Fourth Amendment, sup- years to update and modify the judicial times forced to sit idly by as they witness pression may be ordered, not only of review procedure for pen register and hackers enter and, in some situations, de- trap and trace devices. Existing law re- stroy or damage their systems and networks the pen register evidence by any other while law enforcement begins the detailed evidence derived from it. We are leav- quires an attorney for the government process of seeking court authorization to as- ing the courts with little or no guid- to certify that the information likely sist them. In the real world, the situation is ance of what is covered by ‘‘address- to be obtained by the installation of a akin to a homeowner being forced to help- ing’’ or ‘‘routing.’’ pen register or trap and trace device lessly watch a burglar or vandal while police The USA Act also requires the gov- will be relevant to an ongoing criminal seek a search warrant to enter the dwelling. ernment to use reasonably available investigation. The court is required to I therefore introduced as part of the technology that limits the intercep- issue an order upon seeing the prosecu- Internet Security Act, S. 2430, in 2000,

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11001 an exception to the wiretap statute terrorism with intelligence agencies but within two days, it backed away that would explicitly permit such mon- when the information is of overriding from its agreement. I remain con- itoring without a wiretap if prior con- importance to the national security.’’ cerned that the resulting provision will sent is obtained from the person whose (Letter from Robert Raben, Assistant allow the unprecedented, widespread computer is being hacked through and Attorney General, September 28, 2000). disclosure of this highly sensitive in- used to send ‘‘harmful interference to a For this reason, and others, the Jus- formation without any notification to lawfully operating computer system.’’ tice Department at the time opposed or review by the court that authorizes The Administration initially pro- an amendment proposed by Senators and supervises the wiretap. This is posed a different formulation of the ex- KYL and FEINSTEIN to S. 2507, the Intel- clearly an area where our Committee ception that would have allowed an ligence Authorization Act for FY 2001, will have to exercise close oversight to owner/operator of any computer con- that would have allowed the sharing of make sure that the newly-minted dis- nected to the Internet to consent to foreign intelligence and counterintel- closure authority is not being abused. FBI wiretapping of any user who vio- ligence information collected from The Administration offered three lated a workplace computer use policy wiretaps with the intelligence commu- reasons for reneging on the original or online service term of service and nity. I deferred to the Justice Depart- deal. First, they claimed that the in- was thereby an ‘‘unauthorized’’ user. ment on this issue and sought changes volvement of the court would inhibit The Administration’s proposal was not in the proposed amendment to address Federal investigators and attorneys limited to computer hacking offenses the Department’s concern that this from disclosing information needed by under 18 U.S.C. 1030 or to conduct that provision was not only unnecessary but intelligence and national security offi- caused harm to a computer or com- also ‘‘could have significant implica- cials. Second, they said the courts puter system. The Administration re- tions for prosecutions and the dis- might not have adequate security and covery process in litigation,’’ ‘‘raises jected these refinements to their pro- therefore should not be told that infor- significant issues regarding the sharing posed wiretap exception, but did agree, mation was disclosed for intelligence with intelligence agencies of informa- in section 217 of the USA Act, to limit or national security purposes. And tion collected about United States per- the authority for wiretapping with the third, they said the President’s con- sons,’’ and jeopardized ‘‘the need to consent of the owner/operator to com- stitutional powers under Article II give protect equities relating to ongoing munications of unauthorized users criminal investigations.’’ In the end, him authority to get whatever foreign without an existing subscriber or other the amendment was revised to address intelligence he needs to exercise his contractual relationship with the the Justice Department’s concerns and national security responsibilities. owner/operator. I believe these concerns are un- passed the Senate as a free-standing This bill will make significant founded. Federal investigators and at- bill, S. 3205, the Counterterrorism Act changes in the sharing of confidential torneys will recognize the need to dis- of 2000. The House took no action on criminal justice information with var- close information relevant to terrorism this legislation. ious Federal agencies. For those of us The Administration initially pro- investigations. Courts can be trusted who have been concerned about the posed adding a sweeping provision to to keep secrets and recognize the needs leaks from the FBI that can irrep- the wiretap statute that broadened the of the President. arably damage reputations of innocent definition of an ‘‘investigative or law Current law requires that such infor- people and frustrate investigations by enforcement officer’’ who may receive mation be used only for law enforce- alerting suspects to flee or destroy ma- disclosures of information obtained ment purposes. This provides an assur- terial evidence, the Administration’s through wiretaps to include Federal ance that highly intrusive invasions of insistence on the broadest authority to law enforcement, intelligence, national privacy are confined to the purpose for disseminate such information, without security, national defense, protective which they have been approved by a any judicial check, is disturbing. None- and immigration personnel and the court, based on probable cause, as re- theless, I believe we have improved the President and Vice President. This pro- quired by the Fourth Amendment. Cur- Administration’s initial proposal in re- posal troubled me because information rent law calls for minimization proce- sponsible ways. Only time will tell intercepted by a wiretap has enormous dures to ensure that the surveillance whether the improvements we were potential to infringe upon the privacy does not gather information about pri- able to reach agreement on are suffi- rights of innocent people, including vate and personal conduct and con- cient. people who are not even suspected of a versations that are not relevant to the At the outset, we should be clear that crime and merely happen to speak on criminal investigation. current law allows the sharing of con- the telephone with the targets of an in- When the Administration reneged on fidential criminal justice information, vestigation. For this reason, the au- the agreement regarding court super- but with close court supervision. Fed- thority to disclose information ob- vision, we turned to other safeguards eral Rule of Criminal Procedure 6(e) tained through a wiretap has always and were more successful in changing provides that matters occurring before been carefully circumscribed in law. other questionable features of the Ad- a grand jury may be disclosed only to While I recognize that appropriate of- ministration’s bill. The Administration an attorney for the government, such ficials in the executive branch of gov- accepted my proposal to strike the other government personnel as are nec- ernment should have access to wiretap term ‘‘national security’’ from the de- essary to assist the attorney and an- information that is important to com- scription of wiretap information that other grand jury. Further disclosure is bating terrorism or protecting the na- may be shared throughout the execu- also allowed as specifically authorized tional security, I proposed allowing tive branch and replace it with ‘‘for- by a court. such disclosures where specifically au- eign intelligence’’ information. This Similarly, section 2517 of title 18, thorized by a court order. Further, change is important in clarifying what United States Code provides that wire- with respect to information relating to information may be disclosed because tap evidence may be disclosed in testi- terrorism, I proposed allowing the dis- the term ‘‘foreign intelligence’’ is spe- mony during official proceedings and closure without a court order as long cifically defined by statute whereas to investigative or law enforcement of- as the judge who authorized the wire- ‘‘national security’’ is not. ficers to the extent appropriate to the tap was notified as soon as practicable Moreover, the rubric of ‘‘national se- proper performance of their official du- after the fact. This would have pro- curity’’ has been used to justify some ties. In addition, the wiretap law al- vided a check against abuses of the dis- particularly unsavory activities by the lows disclosure of wiretap evidence closure authority by providing for re- government in the past. We must have ‘‘relating to offenses other than speci- view by a neutral judicial official. At at least some assurance that we are fied in the order’’ when authorized or the same time, there was a little likeli- not embarked on a course that will approved by a judge. Indeed, just last hood that a judge would deny any re- lead to a repetition of these abuses be- year, the Justice Department assured quests for disclosure in cases where it cause the statute will now more clearly us that ‘‘law enforcement agencies was warranted. define what type of information is sub- have authority under current law to On Sunday, September 30, the Ad- ject to disclosure. In addition, Federal share title III information regarding ministration agreed to my proposal, officials who receive the information

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11002 CONGRESSIONAL RECORD — SENATE October 25, 2001 may use it only as necessary to the of foreign intelligence information searches are ‘‘less intrusive than a con- conduct of their official duties. There- throughout the executive branch of the ventional search with physical seizure fore, any disclosure or use outside the government notwithstanding any cur- because the latter deprives the owner conduct of their official duties remains rent legal prohibition that may pre- not only of privacy but also of the use subject to all limitations applicable to vent or limit its disclosure. I have re- of his property.’’ United States v. their retention and dissemination of sisted this proposal more strongly than Villegas, 899 F.2d 1324, 1337 (2d Cir. 1990). information of the type of information anything else that still remains in the Second, the cases have required that received. This includes the Privacy bill. What concerns me is that it is not the officers seeking the warrant must Act, the criminal penalties for unau- clear what existing prohibitions this show good reason for the delay. Fi- thorized disclosure of electronic sur- provision would affect beyond the nally, while the courts have allowed veillance information under chapter 119 grand jury secrecy rule and the wiretap notice of the search may be delayed, it of title 18, and the contempt penalties statute, which are already covered by must be provided within a reasonable for unauthorized disclosure of grand other provisions in the bill. Even the period thereafter, which should gen- jury information. In addition, the At- Administration, which wrote this pro- erally be no more than seven days. The torney General must establish proce- vision, has not been able to provide a reasons for these careful limitations dures for the handling of information fully satisfactory explanation of its were spelled out succinctly by Judge that identifies a United States person, scope. Sneed of the Ninth Circuit: ‘‘The mere such as the restrictions on retention If there are specific laws that the Ad- thought of strangers walking through and dissemination of foreign intel- ministration believes impede the nec- and visually examining the center of ligence and counterintelligence infor- essary sharing of information on ter- our privacy interest, our home, arouses mation pertaining to United States rorism and foreign intelligence within our passion for freedom as does nothing else. That passion, the true source of persons currently in effect under Exec- the executive branch, we should ad- the Fourth Amendment, demands that utive Order 12333. dress those problems through legisla- While these safeguards do not fully tion that is narrowly targeted to those surreptitious entries be closely cir- substitute for court supervision, they statutes. Tacking on a blunderbuss cumscribed.’’ United States v. Freitas, can provide some assurance against provision whose scope we do not fully 800 F.2d 1451, 1456 (9th Cir. 1986). The Administration’s original pro- understand can only lead to con- misuse of the private, personal, and posal would have ignored some of the business information about Americans sequences that we cannot foresee. Fur- key limitations created by the case law that is acquired in the course of crimi- ther, I am concerned that such legisla- for sneak and peek search warrants. nal investigations and that may flow tion, broadly authorizing the secret First, it would have broadly authorized more widely in the intelligence, de- sharing of intelligence information officers not only to conduct surrep- fense, and national security worlds. throughout the executive branch, will titious searches, but also to secretly The wiretap statute was not the only fuel the unwarranted fears and dark seize any type of property without any provision in which the Administration conspiracy theories of Americans who additional showing of necessity. This sought broader authority to disclose do not trust their government. This type of warrant, which has never been highly sensitive investigative informa- was another provision on which the Ad- addressed by a published decision of a tion. It also proposed broadening Rule ministration reneged on its agreement Federal appellate court, has been re- 6(e) of the Federal Rules of Criminal with me; it agreed to drop it on Sep- ferred to in a law review article writ- Procedure to allow the disclosure of in- tember 30, but resurrected it within ten by an FBI agent as a ‘‘sneak and formation relating to terrorism and na- two days, insisting that it remain in steal’’ warrant. See K. Corr, ‘‘Sneaky tional security obtained from grand the bill. I have made efforts to miti- But Lawful: The Use of Sneak and jury proceedings to a broad range of of- gate its potential for abuse somewhat Peek Search Warrants,’’ 43 U. Kan. L. ficials in the executive branch of gov- by adding the same safeguards that Rev. 1103, 1113 (1995). Second, the pro- ernment. As with wiretaps, few would apply to disclosure of law enforcement posal would simply have adopted the disagree that information learned in a wiretap and grand jury information. procedural requirements of 18 U.S.C. § criminal investigation that is nec- Another issue that has caused serious 2705 for providing delayed notice of a essary to combating terrorism or pro- concern relates to the Administration’s wiretap. Among other things, this tecting the national security ought to proposal for so-called ‘‘sneak and would have extended the permissible be shared with the appropriate intel- peek’’ search warrants. The House Ju- period of delay to a maximum of 90 ligence and national security officials. diciary Committee dropped this pro- days, instead of the presumptive seven- The question is how best to regulate posal entirely from its version of the day period provided by the caselaw on and limit such disclosures so as not to legislation. Normally, when law en- sneak and peek warrants. compromise the important policies of forcement officers execute a search I was able to make significant im- secrecy and confidentiality that have warrant, they must leave a copy of the provements in the Administration’s long applied to grand jury proceedings. warrant and a receipt for all property original proposal that will help to en- I proposed that we require judicial seized at the premises searched. Thus, sure that the government’s authority review of requests to disclose terrorism even if the search occurs when the to obtain sneak and peek warrants is and foreign intelligence information to owner of the premises is not present, not abused. First, the provision that is officials in the executive branch be- the owner will receive notice that the now in section 213 of the bill prohibits yond those already authorized to re- premises have been lawfully searched the government from seizing any tan- ceive such disclosures. Once again, the pursuant to a warrant rather than, for gible property or any wire or electronic Administration agreed to my proposal example, burglarized. communication or stored electronic in- on Sunday, September 30, but reneged Two circuit courts of appeal, the Sec- formation unless it makes a showing of within two days. As a result, the bill ond and the Ninth Circuits, have recog- reasonable necessity for the seizure. does not provide for any judicial super- nized a limited exception to this re- Thus, in contrast to the Administra- vision of the new authorization for dis- quirement. When specifically author- tion’s original proposal, the presump- semination of grand jury information ized by the issuing judge or magistrate, tion is that the warrant will authorize throughout the executive branch. The the officers may delay providing notice only a search unless the government bill does contain the safeguards that I of the search to avoid compromising an can make a specific showing of addi- have discussed with respect to law en- ongoing investigation or for some tional need for a seizure. Second, the forcement wiretap information. How- other good reason. However, this au- provision now requires that notice be ever, as with the new wiretap disclo- thority has been carefully cir- given within a reasonable time of the sure authority, I am troubled by this cumscribed. execution of the warrant rather than issue and plan to exercise the close First, the Second and Ninth Circuit giving a blanket authorization for up oversight of the Judiciary Committee cases have dealt only with situations to a 90-day delay. What constitutes a to make sure it is not being abused. where the officers search a premises reasonable time, of course, will depend The Administration also sought a without seizing any tangible property. upon the circumstances of the par- provision that would allow the sharing As the Second Circuit explained, such ticular case. But I would expect courts

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11003 to be guided by the teachings of the ed for counterintelligence and counter proposed by the Administration was to Second and the Ninth Circuits that, in terrorism investigations. Upon review- cover any investigation to obtain for- the ordinary case, a reasonable time is ing the court’s requirements, the Ad- eign intelligence information. This was no more than seven days. ministration requested an increase in extremely broad, because the defini- Several changes in the Foreign Intel- the number of Federal district judges tion includes any information with re- ligence Surveillance Act, FISA, are de- designated for the court from seven to spect to a foreign power that relates signed to clarify technical aspects of 11 of whom no less than three shall re- to, and if concerning a United States the statutory framework and take ac- side within 20 miles of the District of person is necessary to, the national de- count of experience in practical imple- Columbia. The latter provision ensures fense or the security of the United mentation. These changes are subject that more than one judge is available States or the conduct of the foreign af- to the four-year sunset. to handle cases on short notice and re- fairs of the United States. This goes far The USA Act, in section 207, changes duces the need to invoke the alter- beyond FBI counterintelligence and the duration of electronic surveillance native of Attorney General approval counterterrorism requirements. In- under FISA in cases of an agent of a under the emergency authorities in stead, the bill requires that use of the foreign power, other than a United FISA. surveillance technique or access to the States persons, who acts in the United Other changes in FISA and related records concerning a United States per- States as an officer or employee of a national security laws are more con- son be relevant to an investigation to foreign power or as a member of an troversial. In several areas, the bill re- protect against international terrorism international terrorist group. Current flects a serious effort to accommodate or clandestine intelligence activities. law limits court orders in these cases the requests for expanded surveillance In addition, an investigation of a to 90 days, the same duration as for authority with the need for safeguards United States person may not be based United States persons. Experience indi- against misuse, especially the gath- solely on activities protected by the cates, however, that after the initial ering of intelligence about the lawful First Amendment. This framework ap- period has confirmed probable cause political or commercial activities of plies to pen registers and trap and that the foreign national meets the Americans. One of the most difficult trace under section 215, access to issues was whether to eliminate the ex- statutory standard, court orders are re- records and other items under section isting statutory ‘‘agent of a foreign newed repeatedly and the 90-day re- 215, and the national security authori- power’’ standards for surveillance and newal becomes an unnecessary proce- ties for access to telephone, bank, and investigative techniques that raise im- dural for investigators taxed with far credit records. Lawful political dissent portant privacy concerns, but not at more pressing duties. and protest by American citizens the level that the Supreme Court has The Administration proposed that against the government may not be the held to require a court order and a the period of electronic surveillance be basis for FBI counterintelligence and probable cause finding under the changed from 90 days to one year in counterterrorism investigations under Fourth Amendment. These include pen these cases. This proposal did not en- these provisions. register and trap and trace devices, ac- sure adequate review after the initial A separate issue for pen registers and cess to business records and other tan- stage to ensure that the probable cause trap and trace under FISA is whether gible items held by third parties, and determination remained justified over the court should have the discretion to access to records that have statutory time. Therefore, the bill changes the make the decision on relevance. The privacy protection. The latter include initial period of the surveillance from Administration has insisted on a cer- telephone, bank, and credit records. 90 to 120 days and changes the period The ‘‘agent of a foreign power’’ tification process. I discussed this issue for extensions from 90 days to one year. standard in existing law was designed as it comes up in the criminal proce- The initial 120-day period provides for a to ensure that the FBI and other intel- dures for pen registers and trap and review of the results of the surveillance ligence agencies do not use these sur- trace under title 18, and my concerns or search directed at an individual be- veillance and investigative methods to apply to the FISA procedures as well. fore one-year extensions are requested. investigate the lawful activities of Among the more controversial These changes do not affect surveil- Americans in the name of an undefined changes in FISA requested by the Ad- lance of a United States person. authority to collect foreign intel- ministration was the proposal to allow The bill also changes the period for ligence or counterintelligence informa- surveillance and search when ‘‘a pur- execution of an order for physical tion. The law has required a showing of pose’’ is to obtain foreign intelligence search under FISA from 45 to 90 days. reasonable suspicion, less than prob- information. Current law requires that This change applies to United States able cause, to believe that a United the secret procedures and different persons as well as foreign nationals. States person is an ‘‘agent of a foreign probable cause standards under FISA Experience since physical search au- power’’ engaged in international ter- be used only if a high-level executive thority was added to FISA in 1994 indi- rorism or clandestine intelligence ac- official certifies that ‘‘the purpose’’ is cates that 45 days is frequently not tivities. to obtain foreign intelligence forma- long enough to plan and carry out a However, the ‘‘agent of a foreign tion. The Administration’s aim was to covert physical search. There is no power’’ standard is more stringent allow FISA surveillance and search for change in the restrictions which pro- than the standard under comparable law enforcement purposes, so long as vide that United States persons may criminal law enforcement procedures there was at least some element of a not be the targets of search or surveil- which require only a showing of rel- foreign intelligence purpose. This pro- lance under FISA unless a judge finds evance to a criminal investigation. The posal raised constitutional concerns, probable cause to believe that they are FBI’s experience under existing laws which were addressed in a legal opinion agents of foreign powers who engage in since they were enacted at various provided by the Justice Department. specified international terrorist, sabo- time over the past 15 years has been The Justice Department opinion did tage, or clandestine intelligence activi- that, in practice, the requirement to not defend the constitutionality of the ties that may involve a violation of the show reasonable suspicion that a per- original proposal. Instead, it addressed criminal statutes of the United States. son is an ‘‘agent of a foreign power’’ a suggestion made by Senator FEIN- The bill, in section 208, seeks to en- has been almost as burdensome as the STEIN to the Attorney General at the sure that the special court established requirement to show probable cause re- Judiciary Committee hearing to under FISA has sufficient judges to quired by the Fourth Amendment for change ‘‘the purpose’’ to ‘‘a significant handle the workload. While changing more intrusive techniques. The FBI has purpose.’’ No matter what statutory the duration of orders and extensions made a clear case that a relevance change is made even the Department will reduce the number of cases in standard is appropriate for counter- concedes that the court may impose a some categories, the bill retains the intelligence and counterterrorism in- constitutional requirement of ‘‘pri- court’s role in pen register and trap vestigations, as well as for criminal in- mary purpose’’ based on the appellate and trace cases and expands the court’s vestigations. court decisions upholding FISA against responsibility for issuing orders for The challenge, then, was to define constitutional challenges over the past records and other tangible items need- those investigations. The alternative 20 years.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11004 CONGRESSIONAL RECORD — SENATE October 25, 2001 Section 218 of the bill adopts ‘‘signifi- custody. Second, the Attorney General ing any effort for a multi-lateral ap- cant purpose,’’ and it will be up to the can only delegate the power to certify proach in cooperation with other na- courts to determine how far law en- an alien to the Deputy Attorney Gen- tions. Absent such a multi-lateral ap- forcement agencies may use FISA for eral, ensuring greater accountability proach, other nations would be free to criminal investigation and prosecution and preventing the certification deci- step in immediately and take over beyond the scope of the statutory defi- sion from being made by low-level offi- business from American firms and nition of ‘‘foreign intelligence informa- cials. Third, the Attorney General farmers that they are unilaterally tion.’’ must review his certification of an barred from pursuing. In addition, I proposed and the Ad- alien every six months. Fourth, an Over 30 farm and export groups, in- ministration agreed to an additional alien who is found to be removable but cluding the American Farm Bureau provision in Section 505 that clarifies has not been removed, and whose re- Federation, the Grocery Manufacturers the boundaries for consultation and co- moval is unlikely in the reasonably of America, the National Farmers ordination between officials who con- foreseeable future, may be detained Union, and the U.S. Dairy Export duct FISA search and surveillance and only if the Attorney General dem- Council, wrote to me and explained Federal law enforcement officials in- onstrates that release of the alien will that the Administration proposal cluding prosecutors. Such consultation adversely affect national security or would ‘‘not achieve its intended policy and coordination is authorized for the the safety of the community or any goal.’’ enforcement of laws that protect person. This improvement is essential I worked with Senator ENZI, and against international terrorism, clan- to preserve the constitutionality of the other Senators, on substitute language destine intelligence activities of for- bill. Fifth, habeas corpus review of de- to give the Administration the tools it eign agents, and other grave foreign tention is made available in the Dis- needs in this crisis. This substitute has threats to the nation. Protection trict where the detention is occurring, been carefully crafted to avoid need- against these foreign-based threats by instead of only in the District Court in lessly hurting American farmers in the any lawful means is within the scope of the District of Columbia. Despite these future, yet it will assure that the U.S. can engage in effective multilateral the definition of ‘‘foreign intelligence improvements, this remains a major sanctions. information,’’ and the use of FISA to and controversial new power for the gather evidence for the enforcement of This bipartisan agreement limits the Attorney General, and I would urge authority in the bill to existing laws these laws was contemplated in the en- him and his successors to employ great actment of FISA. The Justice Depart- and executive orders, which give the discretion in using it. President full authority regarding this ment’s opinion cites relevant legisla- In addition, the Administration ini- conflict, and grants authority for the tive history from the Senate Intel- tially proposed a sweeping definition of President to restrict exports of agricul- ligence Committee’s report in 1978, and terrorist activity and new powers for tural products, medicine or medical de- there is comparable language in the the Secretary of State to designate an vices. I continue to agree with then- House report. organization as a terrorist organiza- The Administration initially pro- Senator Ashcroft, who argued in 1999 tion for purposes of immigration law. that unilateral U.S. food and medicine posed that the Attorney General be au- We were able to work with the Admin- thorized to detain any alien indefi- sanctions simply do not work when he istration to refine this definition to introduced the ‘‘Food and Medicine for nitely upon his certification that the limit its application to individuals who alien met the criteria of the terrorism the World Act.’’ As recently as October had innocent contacts with non-des- 2000, then-Senator Ashcroft pointed out grounds of the Immigration and Na- ignated organizations. We also limited tionality Act, or was engaged in any how broad, unilateral embargoes of the retroactive effect of these new defi- food or medicine are often counter- other activity endangering the na- nitions. If an alien solicited funds or productive. Many Republican and tional security of the United States. membership, or provided material sup- Democratic Senators made it clear just Under close questioning by both Sen- port for an organization that was not last year that the U.S. should work ator KENNEDY and Senator SPECTER at designated at that time by the Sec- with other countries on food and med- the Committee hearing on September retary of State, the alien will have the ical sanctions so that the sanctions 25, the Attorney General said that his opportunity to show that he did not will be effective in hurting our en- proposal was intended only to allow know and should have known that his emies, instead of just hurting the U.S. the government to hold an alien sus- acts would further the organization’s I am glad that with Senator ENZI’s pected of terrorist activity while de- terrorist activity. This is substantially help, we were able to make changes in portation proceedings were ongoing. In better than the administration’s pro- the trade sanctions provision to both response to a question by Senator posal, which by its terms, would have protect our farmers and help the Presi- SPECTER, the Attorney General said: empowered the INS to deport someone dent during this crisis. ‘‘Our intention is to be able to detain who raised money for the African Na- Title III of this bill contains money individuals who are the subject of de- tional Congress in the 1980s. laundering provisions agreed upon by portation proceedings on other Throughout our negotiations on the relevant House and Senate commit- grounds, to detain them as if they were these issues, Senator KENNEDY pro- tees. I commend the Chairman of the the subject of deportation proceedings vided steadfast leadership. Although Senate Banking Committee, Senator on terrorism.’’ The Justice Depart- neither of us are entirely pleased with SARBANES, for working with the House ment, however, continued to insist on the final product, it is far better than to produce a balanced and effective broader authority, including the power it would have been without his active package of measures to combat inter- to detain even if the alien was found involvement. national money laundering and the fi- not to be deportable. I was disappointed that the Adminis- nancing of terrorism. I remain concerned about the provi- tration’s initial proposal authorizing The Senate included money laun- sion, in section 412, but I believe that the President to impose unilateral food dering provisions in the original USA we have twice improved it from the and medical sanctions would have un- Act, but those provisions were removed original proposal offered by the Admin- dermined a law we passed last year from the bill the House passed the fol- istration, first in S. 1510 and second in with overwhelming bipartisan support. lowing day. Instead, the House passed a the bill we pass today. S. 1510 provided Under that law, the President al- separate money laundering bill, H.R. that the Justice Department had to ready has full authority to impose uni- 3004, on October 17. House and Senate charge an alien with an immigration or lateral food and medicine sanctions negotiators then met to resolve the dif- criminal violation within seven days of during this crisis because of two excep- ferences between the bills and produce taking custody, and that the merits of tions built into the law that apply to the language contained in the bill the the Attorney General’s certification our current situation. Nevertheless, Senate considers today. were subject to judicial review. The the Administration sought to undo this I am very pleased that the House has bill we vote on today is further im- law and obtain virtually unlimited au- agreed to include money laundering proved. First, if an alien is found not to thority in the future to impose food provisions in anti-terrorism legisla- be removable, he must be released from and medicine embargoes, without mak- tion. Preventing money laundering is a

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11005 crucial part of our efforts to defeat ter- Baird and Beth Stein with Senator gencies. Both the House and Senate bills in- rorism, and it was important for Con- CANTWELL. Finally, I would like to cluded this provision to authorize the Attor- gress to develop a bipartisan approach thank my own Judiciary Committee ney General to request military assistance in to strengthening our laws. This bill staff, especially Bruce Cohen, Beryl support of Department of Justice activities relating to the enforcement of 18 U.S.C. contains such an approach. Howell, Julie Katzman, Ed Pagano, § 2332a during an emergency situation involv- I am also pleased that a number of John Elliff, David James, Ed Barron, ing a weapon of mass destruction. Current provisions that would have undermined Tim Lynch, Susan Davies, Manu law references a statute that was repealed in the Civil Asset Forfeiture Act of 2000, Bhardwaj, Liz McMahon, and Tara 1998, relating to chemical weapons. Not in which I sponsored in the Senate, have Magner. original Administration proposal. been removed. In addition, this bill I ask unanimous consent that a sec- Sec. 105. Expansion of National Electronic does not include language that would tion-by-section analysis be printed in Crime Task Force Initiative. Both the House have unduly expanded administrative the RECORD. and Senate bills included this provision to allow the Secret Service to develop a na- subpoena powers in all money laun- There being no objection, the mate- rial was ordered to be printed in the tional network of electronic crime task dering cases. A more targeted approach forces, based on the highly successful New was necessary, and has been produced. RECORD, as follows: York Electronic Crimes Task Force model, This measure could not be considered THE UNITING AND STRENGTHENING AMERICA BY for the purpose of preventing, detecting, and today and would not be in the im- PROVIDING APPROPRIATE TOOLS REQUIRED investigating various forms of electronic proved condition it is without the TO INTERCEPT AND OBSTRUCT TERRORISM crimes, including potential terrorist attacks steadfast commitment of our Majority (USA PATRIOT) ACT OF 2001, H.R. 3162—SEC- against critical infrastructure and financial TION-BY-SECTION ANALYSIS Leader. Senator DASCHLE deserves all payment systems. Not in original Adminis- Sec. 1. Short title and table of contents. the credit for all that is good in this tration proposal. Both S. 1510 passed by the Senate on October Sec. 106. Presidential authority. Both the bill. Without his commitment and 11, 2001 (the ‘‘Senate bill’’), and H.R. 2975 House and Senate bills included this provi- focus, we simply would not be in the passed by the House of Representatives on sion to give to the President, in limited cir- position to pass this bill today. October 12, 2001, included this section con- cumstances involving armed hostilities or On my behalf and more importantly taining the short title ‘‘Uniting and attacks against the United States, the power on behalf of the American people, I Strengthening America (USA) Act of 2001’’ to confiscate and vest in the United States want to publicly acknowledge his vital and the table of contents for the Act. H.R. the property of enemies of the United States role in this legislation. 3162, the bill subsequently passed by the during times of national emergency, which House on October 24, 2001 (the ‘‘House bill’’), was permitted by the Trading with the I have done my best under the cir- changed the title to the ‘‘Uniting and cumstances and want to thank espe- Enemy Act, 50 app. U.S.C. § 5(b), until 1977, Strengthening America by Providing Appro- when the International Economic Emer- cially Senator KENNEDY for his leader- priate Tools Required to Intercept and Ob- gency Act was passed. The new provision ship on the Immigration parts of the struct Terrorism (USA PATRIOT) Act of permits the President, when the United bill. My efforts have not been com- 2001.’’ States is engaged in military hostilities or pletely successful and there are a num- Sec. 2. Construction; severability. Both the has been subject to attack, to confiscate ber of provisions on which the Admin- House and Senate bills included this rule of property of any foreign country, person or construction to provide that any portion of organization involved in hostilities or at- istration has insisted with which I dis- this Act found to be invalid or unenforceable agree. Frankly, the agreement of Sep- tacks on the United States. This section also by its terms, or as applied to any person or permits courts, when reviewing determina- tember 30, 2001 on the sharing of crimi- circumstance, shall be construed to give it tions made by the executive branch, to con- the maximum effect permitted by law and nal justice information would have led sider classified evidence ex parte and in cam- that any portion found invalid or unenforce- to a better balanced bill. I could not era. Same as original Administration pro- able in its entirety shall be severable from stop the Administration from reneging posal. the rest of the Act. on the agreement any more than I TITLE II—ENHANCED SURVEILLANCE TITLE I—ENHANCING DOMESTIC SECURITY could have sped the process to reconsti- PROCEDURES AGAINST TERRORISM tute this bill in the aftermath of those Sec. 101. Counterterrorism fund. Both the [Note: Elimination of original Administra- breaches. In these times we need to House and Senate bills included this provi- tion proposal to allow government use of work together to face the challenges of sion to establish a counterterrorism fund in wiretap information on U.S. citizens ob- international terrorism. I have sought the Treasury of the United States, without tained illegally overseas in violation of the to do so in good faith. affecting prior appropriations, to reimburse Fourth Amendment and of foreign govern- We have worked around the clock for Department of Justice components for costs ment laws.] the past month to put forward the best incurred in connection with terrorism and Sec. 201. Authority to intercept wire, oral, terrorism prevention, rebuild any Justice and electronic communications relating to legislative package we could. While I terrorism. Both the House and Senate bills share the administration’s goal of Department component damaged or de- stroyed as a result of a terrorism incident, included this provision to add criminal viola- promptly providing the tools necessary pay terrorism-related rewards, conduct ter- tions relating to terrorism to the list of to deal with the current terrorist rorism threat assessments, and reimburse predicate statutes in the criminal procedures threat, I feel strongly that our respon- Federal agencies for costs incurred in con- for interception of communications under sibilities include equipping such tools nection with detaining suspected terrorists chapter 119 of title 18, United States Code. with safety features to ensure that in foreign countries. Not in original Admin- Not in original Administration proposal. istration proposal. Sec. 202. Authority to intercept wire, oral, these tools do not cause harm and are and electronic communications relating to not misused. Sec. 102. Sense of Congress condemning dis- crimination against Arab and Muslim Amer- computer fraud and abuse offenses. Both the I want to conclude my remarks with icans. Both the House and Senate bills in- House and Senate bills included this provi- thanks for the efforts of many staff cluded this provision to condemn acts of vio- sion to add criminal violations relating to members who have worked tirelessly lence and discrimination against Arab Amer- computer fraud and abuse to the list of pred- under unusual and enormously incon- icans, American Muslims, and Americans icate statutes in the criminal procedures for venient circumstances to help us craft from South Asia, and to declare that every interception of communications under chap- the legislation before us today. In par- effort must be taken to protect their safety. ter 119 of title 18, United States Code. Not in ticular, I want to thank Mark Not in original Administration proposal. original Administration proposal. Sec. 203. Authority to share criminal inves- Childress and Andrea LaRue on the Sec. 103. Increased funding for the tech- nical support center at the Federal Bureau of tigative information. Both the House and staff of Majority Leader DASCHLE, and Investigation. Both the House and Senate Senate bills included provisions amending David Hoppe on the staff of Republican bills included this provision to authorize the criminal procedures for interception of Leader LOTT. I would also like to $200,000,000 per year for fiscal years 2002, 2003 communications under chapter 119 of title 18, thank Makan Delrahim, Jeff Taylor, and 2004 for the Technical Support Center es- United States Code, and the grand jury pro- Stuart Nash, and Leah Belaire with tablished in section 811 of the Antiterrorism cedures under Rule 6(e) of the Federal Rules Senator HATCH, the Ranking Member and Effective Death Penalty Act of 1996 to of Criminal Procedures to authorize disclo- of the Judiciary Committee, Melody help meet the demands of activities to com- sure of foreign intelligence information ob- tained by such interception or by a grand Barnes and Esther Olavarria with Sen- bat terrorism and enhance the technical sup- port and tactical operations of the FBI. Not jury to any Federal law enforcement, intel- ator KENNEDY, Neil McBride and Eric in original Administration proposal. ligence, national security, national defense, Rosen with Senator BIDEN, Bob Schiff Sec. 104. Requests for Military Assistance protective or immigration personnel to as- with Senator FEINGOLD, and Stacy to Enforce Prohibition in Certain Emer- sist the official receiving that information in

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11006 CONGRESSIONAL RECORD — SENATE October 25, 2001 the performance of his official duties. Sec- the ordinary period for physical searches reasonably believes that an emergency in- tion 203(a) requires that within a reasonable under FISA from 45 to 90 days. Narrower volving immediate danger of death or serious time after disclosure of any grand jury infor- than Administration proposal which sought physical injury to any person requires the mation, an attorney for the government no- to eliminate the initial 90-day limitation and disclosure of the information without delay. tify the court of such disclosure and the de- authorize surveillance for up to one year This section also corrects an anomaly in the partments, agencies or entities to which dis- from the outset. current law by clearly permitting a provider closure was made. Section 203(b) pertains to Sec. 208. Designation of judges. Both the to disclose non-content records (such as a foreign intelligence information obtained by House and Senate bills included this provi- subscriber’s log-in records) as well as the intercepting communications pursuant to a sion to increase the number of Federal dis- contents of the customer’s communications court-ordered wiretap. Section 203(c) also au- trict judges designated to serve on the FISA to protect their computer systems. Same as thorizes such disclosure of information ob- court from seven to 11, and requires that no original Administration proposal. tained as part of a criminal investigation less that 3 of the judges reside within 20 Sec. 213. Authority for delaying notice of notwithstanding any other law. miles of the District of Columbia. Not in the execution of a warrant. Both the House The information must meet statutory defi- original Administration proposal. and Senate bills included this provision to nitions of foreign intelligence or counter- Sec. 209. Seizure of voice-mail messages amend 18 U.S.C. §3103a to authorize a court intelligence or foreign intelligence informa- pursuant to warrants. Both the House and to issue a search warrant in which the gov- tion. Recipients may use that information Senate bills included this provision to au- ernment is permitted to delay providing no- only as necessary for their official duties, thorize government access to voice mails tice of the warrant’s execution. Consistent and use of the information outside those lim- with a court order supported by probable with the requirements of case law from the its remains subject to applicable penalties, cause in the same way e-mails currently may Second and Ninth Circuits, this section also such as penalties for unauthorized disclosure be accessed, and authorizes nationwide serv- provides several limitations on this author- under chapter 119, contempt penalties under ice with a single search warrant for voice ity. See United States v. Villegas, 899 F.2d 1324 Rule 6(e) and the Privacy Act. The Attorney mails. Current law, 18 U.S.C. § 2510(1), defines (2d Cir. 1990); United States v. Freitas, 800 F.2d General must establish procedures for disclo- ‘‘wire communication’’ to include ‘‘any elec- 1451 (9th Cir. 1986). First, delayed notice is sure of information that identifies a United tronic storage of such communication,’’ with authorized only in cases where the govern- States person, such as the current proce- the result that the government must apply ment has demonstrated reasonable cause to dures established under Executive Order for a Title III wiretap order before it may ob- believe that providing immediate notice 12333 for the intelligence community. Modi- tain unopened voice mail messages held by a would have an adverse result as defined in 18 fied Administration proposal to limit scope service provider. This section amends the U.S.C. §2705. Second, the provision prohibits of personnel eligible to receive information. definition of ‘‘wire communication’’ so that the government from seizing any tangible In case of grand jury information, limited it no longer includes stored communications. property or any wire or electronic commu- proposal to require notification to court It also amends 18 U.S.C. § 2703 to specify that nication or stored wire or electronic commu- after disclosure. the government may use a search warrant nication unless it makes a showing of rea- Sec. 204. Clarification of intelligence ex- (instead of a wiretap order) to compel the sonable necessity for the seizure. Third, the ceptions from limitations on interception production of unopened voicemail, thus har- warrant must require the giving of notice and disclosure of wire, oral, and electronic monizing the rules applicable to stored voice within a reasonable time of the execution of communications. Both the House and Senate and non-voice (e.g., e-mail) communications. the search. Narrower than original Adminis- bills included this provision to amend the Same as Administration proposal. tration proposal, which would have per- criminal procedures for interception of wire, Sec. 210. Scope of subpoenas for records of mitted delay as law enforcement saw fit. oral, and electronic communications in title electronic communications. Both the House Sec. 214. Pen register and trap and trace 18, United States Code, to make clear that and Senate bills included this provision to authority under FISA. Both the House and these procedures do not apply to the collec- broaden the types of records that law en- Senate bills included this provision to mod- tion of foreign intelligence information forcement may obtain, pursuant to a sub- ify FISA provisions for pen register and trap under the statutory foreign intelligence au- poena, from electronic communications serv- and trace to eliminate the requirement to thorities. Not in original Administration ice providers by requiring providers to dis- show to the court that the target is in con- proposal. close the means and source of payment, in- tact with an ‘‘agent of a foreign power.’’ It Sec. 205. Employment of translators by the cluding any bank account or credit card replaces this requirement with a determina- Federal Bureau of Investigation. Both the numbers. Current law allows the government tion that the pen register or trap and trace House and Senate bills included this provi- to use a subpoena to compel communications is relevant to an investigation to protect sion to authorize the FBI Director to expe- providers to disclose a small class of records against international terrorism or clandes- dite the employment of personnel as trans- that pertain to electronic communications, tine intelligence activities or to obtain for- lators to support counterterrorism investiga- limited to such records as the customer’s eign intelligence information not concerning tions and operations without regard to appli- name, address, and length of service. 18 U.S. persons. Any investigation of a United cable Federal personnel requirements and U.S.C. § 2703(c)(1)(C). Investigators may not States person may not be based solely on ac- limitations. Not in original Administration use a subpoena to obtain such records as tivities protected by the First Amendment. proposal. credit card number or other form of payment Narrower than original Administration pro- Sec. 206. Roving surveillance authority and must use a court order. In many cases, posal, which would simply have removed the under the Foreign Intelligence Surveillance users register with Internet service providers ‘‘agent of a foreign power’’ requirement. Act of 1978. Both the House and Senate bills using false names, making the form of pay- Sec. 215. Access to records and other items included this provision to modify the For- ment critical to determining the user’s true under the FISA. Both the House and Senate eign Intelligence Surveillance Act (‘‘FISA’’) identity. Same as original Administration bills included this provision to remove the to allow surveillance to follow a person who proposal. ‘‘agent of a foreign power’’ standard for uses multiple communications devices or lo- Sec. 211. Clarification of scope. Both the court-ordered access to certain business cations, a modification which conforms House and Senate bills included provisions to records under FISA and expands the scope of FISA to the parallel criminal procedure for amend the Cable Communications Policy court orders to include access to other electronic surveillance in 18 U.S.C. Act to clarify that when a cable company records and tangible items. The authority §2518(11)(b). The court order need not specify acts as a telephone company or an Internet may be used for an investigation to protect the person whose assistance to the surveil- service provider, it must comply with the against international terrorism or clandes- lance is required (such as a particular com- same laws governing the interception and tine intelligence activities or to obtain for- munications common carrier), where the disclosure of wire and electronic communica- eign intelligence information not concerning court finds that the actions of the target tions that apply to any other telephone com- U.S. persons. An investigation of a United may have the effect of thwarting the identi- pany or Internet service provider. This sec- States person may not be based solely on ac- fication of a specified person. Same as origi- tion also expressly provides, however, that tivities protected by the First Amendment. nal Administration proposal. authorized disclosures under this provision Narrower than original Administration pro- Sec. 207. Duration of FISA surveillance of do not include records that reveal customer posal, which would have removed require- non-United States persons who are agents of cable viewing activity. Modified original Ad- ments of court order and the ‘‘agent of a for- foreign power. Both the House and Senate ministration proposal to specify that targets eign power’’ showing. bills included this provision to change the do not receive advance notice of wiretap Sec. 216. Modification of authorities relat- initial period of a FISA order for a surveil- order and amends title 47 to accomplish ing to use of pen registers and trap and trace lance or physical search targeted against an same purpose as administration proposal. devices. Both the House and Senate bills in- agent of a foreign power from 90 to 120 days, Sec. 212. Emergency disclosure of elec- cluded this provision to authorize courts to and changes the period for extensions from tronic communications to protect life and grant pen register and trap and trace orders 90 days to one year. One-year extensions for limb. Both the House and Senate bills in- that are valid anywhere in the nation. It also physical searches are subject to the require- cluded this provision to amend 18 U.S.C. ensures that the pen register and trap and ment in current law that the judge find §2702 to authorize providers of electronic trace provisions apply to facilities other ‘‘probable cause to believe that no property communications services to disclose the than telephone lines (e.g., the Internet). It of any United States person will be acquired communications (or records of such commu- specifically provides, however, that the during the period.’’ Section 207 also changes nications) of their subscribers if the provider grant of authority to capture ‘‘routing’’ and

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11007 ‘‘addressing’’ information for Internet users impose any additional technical require- the Secretary, after consultation with Sec- does not authorize the interception of the ments on a provider of a wire or electronic retary of State and the Attorney General, content of any such communications. It fur- communication service and that a provider determines to pose a ‘‘primary money laun- ther requires the government to use the lat- of a wire or electronic communication serv- dering concern’’ to the United States. The est available technology to insure that a pen ice, landlord, custodian or other person who special measures include: (1) requiring addi- register or trap and trace device does not furnishes facilities or technical assistance tional recordkeeping or reporting for par- intercept the content of any communica- pursuant to section 216 shall be reasonably ticular transactions; (2) requiring the identi- tions. Finally, it provides for a report to the compensated for expenditures incurred in fication of the foreign beneficial owners of court on each use of ‘‘Carnivore’’-like de- providing such facilities or assistance. Not in certain accounts at a U.S. financial institu- vices on packet-switched data networks. original Administration proposal. tion; (3) requiring the identification of cus- Makes a number of improvements over Ad- Sec. 223. Civil liability for certain unau- tomers of a foreign bank who use an inter- ministration proposal, including exclusion of thorized disclosures. H.R. 2975 included this bank payable-through account opened by content, exclusion of ISP liability, and Car- provision to create civil liability for viola- that foreign bank at a U.S. bank; (4) requir- nivore report. tions, including unauthorized disclosures, by ing the identification of customers of a for- Sec. 217. Interception of computer tres- law enforcement authorities of the elec- eign bank who use an interbank cor- passer communications. Both the House and tronic surveillance procedures set forth in respondent account opened by that foreign Senate bills included this provision to allow title 18, United States Code (e.g., unauthor- bank at a U.S. bank; and (5) after consulta- computer service providers who are victims ized disclosure of pen trap, wiretap, stored tion with the Secretary of State, the Attor- of attacks by computer trespassers to au- communications), or FISA information. Also ney General, and the Chairman of the Fed- thorize persons acting under color of law to requires administrative discipline of officials eral Reserve Board, restricting or prohib- monitor trespassers on their computer sys- who engage in such unauthorized disclosures. iting the opening or maintaining of certain tems in a narrow class of cases. A computer Not in original Administration proposal. interbank correspondent or payable-through trespasser is defined as a person who ac- Sec. 224. Sunset. H.R. 2975 included a provi- accounts. Measures (1) through (4) may not cesses a protected computer without author- sion to sunset certain amendments made by be imposed for more than 120 days except by ization and thus has no reasonable expecta- this title in 3 to 5 years. H.R. 3162 provides a regulation, and measure (5) may only be im- tion of privacy in any communications 4-year sunset for sections 206, 201, 202, 203(b), posed by regulation. transmitted to, through, or from the pro- 204, 206, 207, 209, 210, 212, 214, 215, 217, 218, 220, Sec. 312. Special due diligence for cor- tected computer. However, it does not in- 223—at the end December 31, 2005, with the respondent accounts and private banking ac- clude a person known by the owner or oper- authorities ‘‘grandfathered’’ as to particular counts. Section 312, included in both the ator of the protected computer to have an investigations based on offenses occurring Senate bill and H.R. 3004, adds a new sub- existing contractual relationship with the prior to sunset. No sunset provided in origi- section (i) to 31 U.S.C. §5318, to require a U.S. owner or operator for access to all or part of nal Administration proposal or S. 1510, and financial institution that maintains a cor- the protected computer. Narrower than four-year sunset shorter than the five-year respondent account or private banking ac- original Administration proposal, which did sunset in H.R. 2975. count for a non-United States person to es- tablish appropriate and, if necessary, en- not exclude service provider subscribers from TITLE III—INTERNATIONAL MONEY LAUNDERING hanced due diligence procedures to detect definition of trespasser and did not limit ABATEMENT AND ANTI-TERRORIST FINANCING and report instances of money laundering. interception authority to only those commu- ACT OF 2001 The new provision also creates minimum nications through the computer in question. [Note: Elimination of original Administra- Sec. 218. Foreign intelligence information. anti-money laundering due diligence stand- tion proposals to allow broad disclosure of Both the House and Senate bills included ards for U.S. financial institutions that individual tax return information; pre-trial this provision to amend FISA to require a enter into correspondent banking relation- restraint of legitimately obtained property certification that ‘‘a significant purpose’’ ships with banks that operate under offshore in all criminal forfeiture cases; carve-out of rather than ‘‘the purpose’’ of a surveillance banking licenses or under banking licenses tobacco companies from RICO liability for or search under FISA is to obtain foreign in- issued by countries that (1) have been des- foreign excise taxes; and creation of new telligence information. Narrower than Ad- ignated as noncooperative with international criminal offense to misrepresent identifica- ministration proposal, which would have al- counter money laundering principles by an tion when opening bank account. The Ad- lowed FISA surveillance if intelligence gath- international body with the concurrence of ministration bill contained none of the ering was merely ‘‘a’’ purpose. the U.S. representative to that body, or (2) Sec. 219. Single-jurisdiction search war- money laundering provisions contained in ei- have been the subject of special measures au- rants for terrorism. Both the House and Sen- ther the Senate bill or H.R. 3004.] thorized by section 311. Finally, the new pro- Sec. 301. Short title. This section contains ate bills included this provision to amend vision creates minimum anti-money laun- the short title of Title III, ‘‘International Federal Rule of Criminal Procedure 41(a) to dering due diligence standards for mainte- Money Laundering Abatement and Financial provide that warrants relating to the inves- nance of private banking accounts by U.S. fi- Anti-Terrorism Act of 2001,’’ which merges tigation of terrorist activities may be ob- nancial institutions. New section 31 U.S.C the short title of Title III of the Senate bill tained in any district in which the activities §5318(i) will take effect 270 days after the with the short title of H.R. 3004, which related to the terrorism may have occurred, date of enactment; the Secretary of the passed the House of Representatives on Octo- regardless of where the warrants will be exe- Treasury is required to issue regulations (in ber 17, 2001 (‘‘H.R. 3004’’). This section also cuted. Same as Administration proposal. consultation with the appropriate Federal Sec. 220. Nationwide service of search war- contains the table of contents for Title III. functional regulators) within 180 days of en- Sec. 302. Findings and purposes. The Sen- rants for electronic surveillance. Both the actment further delineating the require- ate bill included this provision, which states House and Senate bills included this provi- ments of the new subsection, but the statute the legislative findings and purposes in sup- sion to amend 18 U.S.C. § 2703(a) to authorize is to take effect whether or not such regula- port of Title III. courts with jurisdiction over the offense to tions are issued, and failure to issue final Sec. 303. 4-Year congressional review; expe- issue search warrants for electronic commu- regulations shall in no way affect the en- dited consideration. Section 303, included in nications in electronic storage anywhere in forceability of §5318(i) as added by section the Senate bill, provides that the provisions the United States, without requiring the 312. added and amendments made by Title III intervention of their counterparts in the dis- Sec. 313. Prohibition on United States cor- will terminate after September 30, 2004, if tricts where Internet service providers are respondent accounts with foreign shell the Congress enacts a joint resolution to located. Narrower than Administration pro- banks. Section 313, included in both the Sen- that effect, and that any such joint resolu- posal in that it limits forum shopping prob- ate bill and H.R. 3004, adds a new subsection tion will be given expedited consideration by lem by limiting to courts with jurisdiction (j) to 31 U.S.C. §5318, to bar depository insti- the Congress. over the offense. tutions and brokers and dealers in securities Sec. 221. Trade sanctions. Both the House Subtitle A—International Counter-Money operating in the United States from estab- and Senate bills included this provision to Laundering and Related Measures lishing, maintaining, administering, or man- authorize the President unilaterally to re- Sec. 311. Special measures for jurisdic- aging correspondent accounts for foreign strict exports of agricultural products, medi- tions, financial institutions, or international shell banks, other than shell bank vehicles cine or medical devices to the Taliban or the transactions or accounts of primary money affiliated with recognized and regulated de- territory of Afghanistan controlled by the laundering concern. Section 311, included in pository institutions. The new 31 U.S.C. Taliban. Narrower than original Administra- both the Senate bill and H.R. 3004, adds a §5318(j) takes effect 60 days after enactment. tion proposal which would have undermined new section 5318A to the Bank Secrecy Act, The House receded to the Senate with re- the congressional approval requirement, con- to give the Secretary of the Treasury, in spect to differences in the language of the ferring upon the President control of agricul- consultation with other senior government versions of the provision in the Senate bill tural and medical exports ‘‘to all designated officials, authority (in the Secretary’s dis- and H.R. 3004. terrorists and narcotics entities wherever cretion), to impose one or more of five new Sec. 314. Cooperative efforts to deter they are located.’’ ‘‘special measures’’ against foreign jurisdic- money laundering. Section 314, contained in Sec. 222. Assistance to law enforcement tions, foreign financial institutions, trans- the Senate bill, requires the Secretary of the agencies. Both the House and Senate bills in- actions involving such jurisdictions or insti- Treasury to issue regulations, within 120 cluded this provision that this Act does not tutions, or one more types of accounts, that days of the date of enactment, to encourage

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11008 CONGRESSIONAL RECORD — SENATE October 25, 2001 cooperation among financial institutions, fi- laundering compliance within 120 hours of regulation, jointly with each Federal func- nancial regulators and law enforcement offi- receipt of such a request, and to require for- tional regulator, minimum standards for fi- cials, and to permit the sharing of informa- eign banks that maintain correspondent ac- nancial institutions and their customers re- tion by law enforcement and regulatory au- counts in the United States to appoint garding the identity of the customer that thorities with such institutions regarding agents for service of process within the shall apply in connection with the opening of persons reasonably suspected, based on cred- United States. The new 31 U.S.C. 5318(k) au- an account at a financial institution; the ible evidence, of engaging in terrorist acts or thorizes the Attorney General and the Sec- minimum standards shall require financial money laundering activities. This section retary of the Treasury to issue a summons or institutions to implement, and customers also allows (with notice to the Secretary of subpoena to any such foreign bank seeking (after being given adequate notice) to com- the Treasury) the sharing of information records, wherever located, relating to such a ply with, reasonable procedures concerning among banks involving possible terrorist or correspondent account, and it requires U.S. verification of customer identity, mainte- money laundering activity, and requires the banks to sever correspondent arrangements nance of records of identity verification, and Secretary of the Treasury to publish, at with foreign banks that do not either comply consultation at account opening of lists of least semiannually, a report containing a de- with or contest any such summons or sub- known or suspected terrorists provided to tailed analysis of patterns of suspicious ac- poena. Finally, section 319 amends section the financial institution by a government tivity and other appropriate investigative in- 413 of the Controlled Substances Act to au- agency. The required regulations are to be sights derived from suspicious activity re- thorize United States courts to order a con- issued within one year of the date of enact- ports and law enforcement investigations. victed criminal to return property located ment. The final text of this section includes section abroad and to order a civil forfeiture defend- Section 326(b), included in both the Senate 203 (Reports to the Financial Services Indus- ant to return property located abroad pend- bill and H.R. 3004, requires the Secretary of try on Suspicious Financial Activities) and ing trial on the merits. With respect to the the Treasury, again in consultation with the portions of section 205 (Public-Private Task provisions requiring a response to certain re- Federal functional regulators (as well as Force on Terrorist Financing Issues) of H.R. quests for information by U.S. regulators other appropriate agencies), to submit a re- 3004. within 120 hours of receipt and the require- port to Congress within six months of the Sec. 315. Inclusion of foreign corruption of- ment that correspondent relationships with date of enactment containing recommenda- fenses as money laundering crimes. Section foreign banks that do not either respond or tions about the most effective way to require 315, included in both the Senate bill and H.R. challenge subpoenas issued under new 31 foreign nationals to provide financial insti- 3004 in somewhat different language, amends U.S.C. § 5318(k) must be terminated, the tutions in the United States with accurate 18 U.S.C. §1956 to include foreign corruption House receded to the Senate. With respect to identity information, comparable to that re- offenses, certain U.S. export control viola- the power to order convicted criminals to re- quired to be provided by U.S. nationals, and tions, certain customs and firearm offenses, turn property located abroad, the Senate re- to obtain an identification number that certain computer fraud offenses, and felony ceded to the House. would function similarly to a U.S. national’s violations of the Foreign Agents Registra- Sec. 320. Proceeds of foreign crimes. Sec- tax identification number. tion Act of 1938, to the list of crimes that tion 320, included in both the Senate bill and Sec. 327. Consideration of anti-money laun- constitute ‘‘specified unlawful activities’’ for H.R. 3004, amends 18 U.S.C. § 981 to permit dering record. Section 327, included in H.R. purposes of the criminal money laundering the United States to institute forfeiture pro- 3004, amends section 3(c) of the Bank Holding provisions. ceedings against the proceeds of foreign Company Act of 1956, and section 18(c) of the Sec. 316. Anti-terrorist forfeiture protec- criminal offenses found in the United States. Federal Deposit Insurance Act to require the tion. Section 316, included in the Senate bill, Sec. 321. Financial institutions specified in Federal Reserve Board and the Federal De- establishes procedures to protect the rights subchapter II of chapter 53 of Title 31, United posit Insurance Corporation, respectively, to of persons whose property may be subject to States Code. Section 321, included in H.R. consider the effectiveness of a bank holding confiscation in the exercise of the govern- 3004, amends 31 U.S.C. § 5312(2) to add credit company or bank (within the jurisdiction of ment’s anti-terrorism authority. unions, futures commission merchants, com- the appropriate agency) in combating money Sec. 317. Long-arm jurisdiction over for- modity trading advisors, or commodity pool laundering activities, including in overseas eign money launderers. Section 317, which operators to the definition of financial insti- branches, in ruling on any merger or similar was included in both the Senate bill and H.R. tution for purposes of the Bank Secrecy Act, application by the bank or bank holding 3004, amends 18 U.S.C. § 1956 to give United and to provide that the term ‘‘Federal func- company. The Senate receded to the House, States courts ‘‘long-arm’’ jurisdiction over tional regulator’’ includes the Commodity with the agreement that the amendments foreign persons committing money laun- Futures Trading Commission for purposes of will apply only to applications submitted dering offenses in the United States, over the Bank Secrecy Act. after December 31, 2001. foreign banks opening U.S. bank accounts, Sec. 322. Corporation represented by a fugi- Sec. 328. International cooperation on iden- and over foreign persons who convert assets tive. Section 322, included in both the Senate tification of originators of wire transfers. ordered forfeited by a U.S. court. It also per- bill and H.R. 3004, extends the prohibition Section 328, included in H.R. 3004, requires mits a Federal court dealing with such for- against the maintenance of a forfeiture pro- the Secretary of the Treasury, in consulta- eign persons to issue a pre-trial restraining ceeding on behalf of a fugitive to include a tion with the Attorney General and the Sec- order or take other action necessary to pre- proceeding by a corporation whose majority retary of State, to take all reasonable steps serve property in the United States to sat- shareholder is a fugitive and a proceeding in to encourage foreign governments to require isfy an ultimate judgment. The Senate, but which the corporation’s claim is instituted the inclusion of the name of the originator not the House, bill included language permit- by a fugitive. in wire transfer instructions sent to the ting the appointment by a Federal court of a Sec. 323. Enforcement of foreign judg- United States, and to report annually to the receiver to collect and take custody of assets ments. Section 323, included in both the Sen- House Committee on Financial Services and of a defendant to satisfy criminal or civil ate bill and H.R. 3004, permits the govern- the Senate Committee on Banking, Housing, money laundering or forfeiture judgments; ment to seek a restraining order to preserve and Urban Affairs concerning progress to- with respect to the latter provision, the the availability of property subject to a for- ward that goal. House receded to the Senate. eign forfeiture or confiscation judgment. Sec. 329. Criminal penalties. Section 329, Sec. 318. Laundering money through a for- Sec. 324. Report and recommendation. Sec- included in the Senate bill, provides criminal eign bank. Section 318, included in both the tion 324, included in the Senate bill, directs penalties for officials who violate their trust Senate bill and H.R. 3004, expands the defini- the Secretary of the Treasury, in consulta- in connection with the administration of tion of financial institution for purposes of tion with the Attorney General, the Federal Title III. 18 U.S.C. §§ 1956 and 1957 to include banks op- banking agencies, the SEC, and other appro- Sec. 330. International cooperation in in- erating outside of the United States. priate agencies to evaluate operation of the vestigations of money laundering, financial Sec. 319. Forfeiture of funds in United provisions of subtitle A of Title III of the Act crimes, and the finances of terrorist groups. States interbank accounts. Section 319 com- and recommend to Congress any relevant Section 330, included in H.R. 3004, states the bines sections 111, 112, and 113 of H.R. 3004 legislative action, within 30 months of the sense of the Congress that the President with section 319 of the Senate bill. This sec- date of enactment. should direct the Secretary of State, the At- tion amends 18 U.S.C. § 981 to treat amounts Sec. 325. Concentration accounts at finan- torney General, or the Secretary of the deposited by foreign banks in interbank ac- cial institutions. Section 325, included in Treasury, as appropriate and in consultation counts with U.S. banks as having been depos- both the Senate bill and H.R. 3004, authorizes with the Federal Reserve Board, to seek ne- ited in the United States for purposes of the the Secretary of the Treasury to issue regu- gotiations with foreign financial supervisory forfeiture rules, but grants the Attorney lations concerning the maintenance of con- agencies and other foreign officials, to en- General authority, in the interest of justice centration accounts by U.S. depository insti- sure that foreign financial institutions main- and consistent with the United States’ na- tutions, to prevent an institution’s cus- tain adequate records relating to any foreign tional interest, to suspend a forfeiture pro- tomers from anonymously directing funds terrorist organization or its membership, or ceeding, based on that presumption. This into or through such accounts. any person engaged in money laundering or section also adds a new subsection (k) to 31 Sec. 326. Verification of identification. Sec- other financial crimes, and make such U.S.C. § 5318 to require U.S. financial institu- tion 326(a), included in H.R. 3004, adds a new records available to U.S. law enforcement tions to reply to a request for information subsection (l) to 31 U.S.C. §5318 to require the and financial supervisory personnel when ap- from a U.S. regulator relating to anti-money Secretary of the Treasury to prescribe by propriate.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11009 Subtitle B—Bank Secrecy Act Amendments Reserve Board, to publish proposed regula- bat international terrorism, and to require and Related Improvements tions, on or before December 31, 2001, and the auditing of each international financial Sec. 351. Amendments relating to reporting final regulations on or before July 1, 2002, re- institution to ensure that funds are not paid of suspicious activities. Section 351, included quiring broker-dealers to file suspicious ac- to persons engaged in or supporting ter- in both the Senate bill and H.R. 3004, re- tivity reports. The Senate receded to the rorism. states 31 U.S.C. §5318(g)(3) to clarify the House with respect to the specific time re- Sec. 361. Financial crimes enforcement terms of the safe harbor from civil liability quirements in section 356(a). network. Section 361, included in H.R. 3004, for financial institutions filing suspicious Sec. 356(b), included in H.R. 3004, author- adds a new § 310 to subchapter I of chapter 3 activity reports pursuant to 31 U.S.C. izes the Secretary of the Treasury, in con- of title 31, United States Code, to make the §5318(g). The amendments to subsection (g)(3) sultation with the Commodity Futures Trad- Financial Crimes Enforcement Network also create a safe harbor from civil liability ing Commission, to prescribe regulations re- (‘‘FinCEN’’) a bureau within the Department for banks that provide information in em- quiring futures commission merchants, com- of the Treasury, to specify the duties of ployment references sought by other banks modity trading advisors, and certain com- FinCEN’s Director, and to require the Sec- modity pool operators to submit suspicious pursuant to the amendment to the Federal retary of the Treasury to establish operating activity reports under 31 U.S.C. § 5318(g). Deposit Insurance Act made by section 355. procedures for the government-wide data ac- Sec. 356(c), included in the Senate bill, re- cess service and communications center that The House receded to the Senate with re- quires the Secretary of the Treasury, the spect to minor differences in wording be- FinCEN maintains. Section 361 also author- SEC and Federal Reserve Board to submit izes appropriations for FinCEN for fiscal tween the House and Senate versions of the jointly to Congress, within one year of the provision. years 2002 through 2005. Finally, this section date of enactment, recommendations for ef- requires the Secretary to study methods for Sec. 352. Anti-money laundering programs. fective regulations to apply the provisions of Section 352, included in both the Senate bill improving compliance with the reporting re- 31 U.S.C. §§ 5311–30 to both registered and un- quirements for ownership of foreign bank and H.R. 3004, amends 31 U.S.C. §5318(h) to re- registered investment companies, as well as quire financial institutions to establish anti- and brokerage accounts by U.S. nationals recommendations as to whether the Sec- imposed by regulations issued under 31 money laundering programs and grants the retary should promulgate regulations treat- Secretary of the Treasury authority to set U.S.C. § 5314. The required report is to be sub- ing personal holding companies as financial mitted within six months of the date of en- minimum standards for such programs. The institutions that must disclose their bene- Senate recedes to the House with respect to actment and annually thereafter. ficial owners when opening accounts or initi- Sec. 362. Establishment of highly secure a provision in H.R. 3004 that the anti-money ating funds transfers at any domestic finan- laundering program requirement take effect network. Section 362, included in H.R. 3004, cial institution. directs the Secretary of the Treasury to es- at the end of the 180-day period beginning on Sec. 357. Special report on administration the date of enactment of the Act and a re- tablish, within nine months of enactment, a of bank secrecy provisions. Section 357, in- secure network with FinCEN that will allow lated provision that the Secretary of the cluded in the Senate bill, directs the Sec- Treasury shall prescribe regulations before financial institutions to file suspicious ac- retary of the Treasury to submit a report to tivity reports and provide such institutions the end of that 180-day period that consider Congress, six months after the date of enact- the extent to which the requirements im- with information regarding suspicious ac- ment, on the role of the IRS in the adminis- tivities warranting special scrutiny. posed under amended § 5318(h) are commensu- tration of the Bank Secrecy Act, with em- rate with the size, location, and activities of Sec. 363. Increase in civil and criminal pen- phasis on whether IRS Bank Secrecy Act in- alties for money laundering. Section 363, in- the financial institutions to which the regu- formation processing responsibility (for re- lations apply. cluded in the Senate bill, increases from ports filed by all financial institutions) or $100,000 to $1,000,000 the maximum civil and Sec. 353. Penalties for violations of geo- Bank Secrecy Act audit and examination re- graphic targeting orders and certain record- criminal penalties for a violation of provi- sponsibility (for certain non-bank financial sions added to the Bank Secrecy Act by sec- keeping requirements, and lengthening effec- institutions) should be retained or trans- tive period of geographic targeting orders. tions 311 and 312 of this Act. ferred. Sec. 364. Uniform protection authority for Section 353, included generally in both the Sec. 358. Bank Secrecy provisions and ac- Senate bill and H.R. 3004, amends 31 U.S.C. Federal Reserve facilities. Section 364, in- tivities of the United States intelligence cluded in H.R. 3004, authorizes certain Fed- §§ 5321, 5322, and 5324 to clarify that penalties agencies. Section 358, included in the same for violation of the Bank Secrecy Act and its eral Reserve personnel to act as law enforce- general terms in both the Senate bill and ment officers and carry firearms to protect implementing regulations also apply to vio- H.R. 3004, contains amendments to various lations of Geographic Targeting Orders and safeguard Federal Reserve employees provisions of the Bank Secrecy Act, the and premises. issued under 31 U.S.C. § 3526, and to certain Right to Financial Privacy Act, and the Fair recordkeeping requirements relating to Sec. 365. Reports relating to coins and cur- Credit Reporting Act, to permit information rency received in nonfinancial trade or busi- funds transfers. The House receded to a pro- to be used in the conduct of United States vision in the Senate bill that also amends 31 ness. Section 365, included in H.R. 3004, adds intelligence or counterintelligence activities 31 U.S.C. § 5331 (and makes related and con- U.S.C. § 5326 to make the period of a geo- to protect against international terrorism. graphic target order 180 days. forming changes) to the Bank Secrecy Act to This section combines the Senate and House require any person who receives more than Sec. 354. Anti-money laundering strategy. provisions, with each body receding to the Section 354, included in the Senate bill, $10,000 in coins or currency, in one trans- other in the case of particular language in- action or two or more related transactions in amends 31 U.S.C. § 5341(b) to add ‘‘money cluded in one version of the provision but laundering related to terrorist funding’’ to the course of that person’s trade or business, not the other. to file a report with respect to such trans- the list of subjects to be dealt with in the an- Sec. 359. Reporting of suspicious activities action with FinCEN. Regulations imple- nual National Money Laundering Strategy by underground banking systems. Section menting the new reporting requirement are prepared by the Secretary of the Treasury 359, included in both the Senate bill and H.R. to be promulgated within six months of en- pursuant to the Money Laundering and Fi- 3004, clarifies that the Bank Secrecy Act actment. nancial Crimes Strategy Act of 1998. treats certain underground banking systems Sec. 366. Efficient use of currency trans- Sec. 355. Authorization to include sus- as financial institutions, and that the funds action report system. Section 366, included picions of illegal activity in written employ- transfer recordkeeping rules applicable to li- in H.R. 3004, requires the Secretary of the ment references. Section 355, included in censed money transmitters also apply to Treasury to report to the Congress before both the Senate bill and H.R. 3004, amends such underground systems. This section also the end of the one year period beginning on § 18 of the Federal Deposit Insurance Act to directs the Secretary of the Treasury to re- the date of enactment containing the results permit (but not require) a bank to include port to Congress, within one year of the date of a study of the possible expansion of the information, in a response to a request for an of enactment, on the need for additional leg- statutory system for exempting transactions employment reference by a second bank, islation or regulatory controls relating to from the currency transaction reporting re- about the possible involvement of a former underground banking systems. The House re- quirements and ways to improve the use by institution-affiliated party in potentially ceded to the Senate with respect to certain financial institutions of the statutory ex- unlawful activity. The House receded to the technical changes in the definition of the un- emption system as a way of reducing the vol- Senate with respect to a provision that the derground banking systems at issue. ume of unneeded currency transaction re- safe harbor from civil liability for a bank Sec. 360. Use of authority of the United ports. that provides information to a second bank States Executive Directors. Section 360, in- applies unless the first bank acts with mali- cluded in Senate bill, authorizes the Sec- Subtitle C—Currency Crimes cious intent. retary of the Treasury to instruct the United Sec. 371. Bulk cash smuggling into or out Sec. 356. Reporting of suspicious activities States Executive Director of each of the of the United States. Section 371, included in by securities brokers and dealers; invest- international financial institutions (for ex- both the Senate bill and H.R. 3004, but with ment company study. Section 356(a), in- ample, the IMF and the World Bank) to use different language relating to forfeiture, cre- cluded generally in both the Senate bill and such Director’s ‘‘voice and vote’’ to support ates a new Bank Secrecy Act offense, 31 H.R. 3004, directs the Secretary of the Treas- loans and other use of resources to benefit U.S.C. § 5332, involving the bulk smuggling of ury, after consultation with the Securities nations that the President determines to be more than $10,000 in currency in any convey- and Exchange Commission and the Federal contributing to United States efforts to com- ance, article of luggage or merchandise or

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11010 CONGRESSIONAL RECORD — SENATE October 25, 2001 container, either into or out of the United tained in the National Crime Information them from custody. An alien who is charged States, and related forfeiture provisions. The Center’s Interstate Identification Index, but ultimately found not to be removable is Senate receded to the House language. Wanted Persons File, and any other informa- to be released from custody. An alien who is Sec. 372. Forfeiture in currency reporting tion mutually agreed upon between the At- found to be removable but has not been re- cases. Section 372, included in the Senate bill torney General and the agency receiving ac- moved, and whose removal is unlikely in the and H.R. 3004 with different language con- cess. Same as original Administration pro- reasonably foreseeable future, may be de- cerning mitigation, amends 31 U.S.C. § 5317 to posal. tained if the Attorney General demonstrates permit confiscation of funds in connection Sec. 404. Limited authority to pay over- that release of the alien will adversely affect with currency reporting violations con- time. Both the House and Senate bills in- national security or the safety of the com- sistent with existing civil and criminal for- cluded this provision to allow the Attorney munity or any person. Judicial review of any feiture procedures. The Senate receded to General to authorize overtime pay for INS action taken under this section, including the House language. employees in an amount in excess of $30,000 review of the merits of the certification, is Sec. 373. Illegal money transmitting busi- during calendar year 2001, to ensure that ex- available through habeas corpus proceedings, nesses. Section 373, included in H.R. 3004, perienced personnel are available to handle with appeal to the U.S. Court of Appeals for amends 18 U.S.C. § 1960 to clarify the terms of the increased workload generated by the the D.C. Circuit. The Attorney General shall the offense stated in that provision, relating events of September 11, 2001. Same as origi- review his certification of an alien every six to knowing operation of an unlicensed (under nal Administration proposal but based on a months. Narrower than original Administra- state law) or unregistered (under Federal Leahy-Conyers proposal. tion proposal in numerous ways, including law) money transmission business. This sec- Sec. 405. Report on the integrated auto- placing a 7-day limit on detention without tion also amends 18 U.S.C. § 981(a) to author- mated fingerprint identification system for charge, ordering release of aliens found not ize the seizure of funds involved in a viola- points of entry and overseas consular posts. to be removable, and more meaningful judi- tion of 18 U.S.C. § 1960. Both the House and Senate bills included cial review of Attorney General’s determina- Sec. 374. Counterfeiting domestic currency this provision to require the Attorney Gen- tion of national security risk posed by alien. Sec. 413. Multilateral cooperation against and obligations. Section 374, included in H.R. eral to report to Congress on the feasibility terrorists. Both the House and Senate bills 3004, makes a number of changes to the pro- of enhancing the FBI’s Integrated Auto- included this provision to provide new excep- visions of 18 U.S.C. §§ 470–473 relating to the mated Fingerprint Identification System or tions to the laws regarding disclosure of in- maximum sentences for various counter- other identification systems to identify for- formation from State Department records feiting offenses, and adds to the definition of eign passport and visa holders who may be pertaining to the issuance of or refusal to counterfeiting in 18 U.S.C. § 474 the making, wanted in connection with a criminal inves- issue visas to enter the U.S., and allows the acquiring, etc. of an analog, digital, or elec- tigation in the United States or abroad be- sharing of this information with a foreign tronic image of any obligation or other secu- fore issuing a visa to that person or their government on a case-by-case basis for the rity of the United States. entry or exit from the United States. Not in purpose of preventing, investigating, or pun- Sec. 375. Counterfeiting Foreign Currency original Administration proposal. ishing acts of terrorism. Based on original and Obligations. Section 375, included in Subtitle B—Enhanced Immigration Administration proposal. H.R. 3004, makes a number of changes to the Provisions Sec. 414. Visa integrity and security. This provisions of 18 U.S.C. §§ 478–480 relating to Sec. 411. Definitions relating to terrorism. section expresses the sense of the Congress the maximum sentences for various counter- Both the House and Senate bills included that the Attorney General, in consultation feiting offenses involving foreign obligations this provision to amend the definition of with the Secretary of State, should fully im- or securities and adds to the definition of ‘‘engage in terrorist activity’’ to clarify that plement the entry/exit system as expedi- counterfeiting in 18 U.S.C. § 481 the making, an alien who solicits funds or membership or tiously as practicable. Particular focus acquiring, etc. of an analog, digital, or elec- provides material support to a certified ter- should be given to the utilization of biomet- tronic image of any obligation or other secu- rorist organization is inadmissible and re- ric technology and the development of tam- rity of a foreign government. movable. Aliens who solicit funds or mem- per-resistant documents. Not in original Ad- Sec. 376. Laundering the proceeds of ter- bership or provide material support to orga- ministration proposal. rorism. This provision expands the scope of nizations not designated as terrorist organi- Sec. 415. Participation of Office of Home- predicate offenses for laundering the pro- zations have the opportunity to show that land Security on Entry-Exit Task Force. ceeds of terrorism to include ‘‘providing ma- they did not know and should not have This section includes the new Office of terial support or resources to terrorist orga- known that their actions would further ter- Homeland Security as a participant in the nizations,’’ as that crime is defined in 18 rorist activity. This section also creates a Entry and Exit Task Force established by U.S.C. § 2339B of the criminal code. Same as definition of ‘‘terrorist organization,’’ which the Immigration and Naturalization Service original Administration proposal. Data Management Improvement Act of 2000. Sec. 377. Extraterritorial jurisdiction. This is not defined under current law, for pur- poses of making an alien inadmissible or re- Not in original Administration proposal. provision applies the financial crimes prohi- Sec. 416. Foreign student monitoring pro- movable. It defines a terrorist organization bitions to conduct committed abroad in situ- gram. This section seeks to implement the as one that is (1) designated by the Secretary ations where the tools or proceeds of the of- foreign student monitoring program created of State as a terrorist organization under the fense pass through or are in the United in 1996 by temporarily supplanting the col- States. Same as original Administration pro- process supplied by current law; (2) des- lection of user fees mandated by the statute posal. ignated by the Secretary of State as a ter- with an appropriation of $36,800,000 for the rorist organization for immigration pur- express purpose of fully and effectively im- TITLE IV—PROTECTING THE BORDER poses; or (3) a group of two or more individ- Subtitle A—Protecting the Northern Border plementing the program through January uals that commits terrorist activities or 2003. Thereafter, the program would be fund- Sec. 401. Ensuring adequate personnel on plans or prepares to commit (including lo- ed by user fees. Currently, all institutions of the Northern border. Both the House and cating targets for) terrorist activities. The higher education that enroll foreign students Senate bills included this provision to au- changes made by this section will apply to or exchange visitors are required to partici- thorize the Attorney General to waive any actions taken by an alien before enactment pate in the monitoring program. This section cap on the number of full time employees as- with respect to any group that was at that expands the list of institutions to include air signed to the INS on the northern border. time certified by the Secretary of State. flight schools, language training schools, and Not in original Administration proposal. Narrower than original Administration pro- vocational schools. Not in original Adminis- Sec. 402. Northern border personnel. Both posal by allowing an alien to show support tration proposal. the House and Senate bills included this pro- for non-designated organization was offered Sec. 417. Machine readable passports. This vision to authorize additional appropriations without knowledge of organization’s ter- section requires the Secretary of State to to allow for a tripling in personnel for the rorist activity. conduct an annual audit to assess pre- Border Patrol, INS Inspectors, and the US Sec. 412. Mandatory detention of suspected cautionary measures taken to prevent the Customs Service in each State along the terrorists; habeas corpus; judicial review. counterfeiting and theft of passports among northern border, and an additional $50 mil- Both the House- and Senate-passed bills in- countries that participate in the visa waiver lion each to the INS and the US Customs cluded provisions to grant the Attorney Gen- program, and ascertain that designated Service to improve technology and acquire eral the authority to certify that an alien countries have established a program to de- additional equipment for use at the northern meets the criteria of the terrorism grounds velop tamper-resistant passports. Results of border. Not in original Administration pro- of the Immigration and Nationality Act, or the audit will be reported to Congress. This posal. is engaged in any other activity that endan- provision would advance the deadline for Sec. 403. Access by the Department of gers the national security of the United participating nations to develop machine State and the INS to certain identifying in- States, upon a ‘‘reasonable grounds to be- readable passports to October 1, 2003, but formation in the criminal history records of lieve’’ standard, and take such aliens into permit the Secretary of State to waive the visa applicants and applicants for admission custody. This authority is delegable only to requirements imposed by the deadline if he to the United States. Both the House and the Deputy Attorney General. The Attorney finds that the program country is making Senate bills included this provision to give General must either begin removal pro- sufficient progress to provide their nationals the State Department and INS access to the ceedings against such aliens or bring crimi- with machine-readable passports. Not in criminal history record information con- nal charges within seven days, or release original Administration proposal.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11011 Sec. 418. Prevention of consulate shopping. children of an alien who died as a direct re- this subtitle. Not in original Administration This section directs the State Department to sult of the terrorist attacks. The Act pro- proposal. examine what concerns, if any, are created vides that an alien who was lawfully present Sec. 427. No Benefits to Terrorists or Fam- by the practice of certain aliens to ‘‘shop’’ as a nonimmigrant at the time of the ter- ily Members of Terrorists. This section for a visa between issuing posts. Not in origi- rorist attacks will be granted 60 additional states that no benefit under this subtitle nal Administration proposal. days to file an application for extension or shall be provided to anyone culpable for the Subtitle C—Preservation of Immigration change of status if the alien was prevented terrorist attacks on September 11 or to any family member of such an individual. Not in Benefits for Victims of Terrorism from so filing as a direct result of the ter- rorist attacks. Also, an alien who was law- original Administration proposal. [Note: This subtitle was not in original Ad- fully present as a nonimmigrant at the time Sec. 428. Definitions. This section defines ministration proposal. It is certain that of the attacks but was then unable to timely the term ‘specified terrorist activity’ as any some aliens fell victim to the terrorist at- depart the United States as a direct result of terrorist activity conducted against the Gov- tacks on the U.S. on September 11. For many the attacks will be considered to have de- ernment or the people of the United States families, these tragedies will be compounded parted legally and will not be considered to on September 11, 2001. Not in original Ad- by the trauma of husbands, wives, and chil- have been unlawfully present for the pur- ministration proposal. dren losing their immigration status due to poses of section 212(a)(9) of the INA if depar- TITLE V—REMOVING OBSTACLES TO the death or serious injury of a family mem- ture occurs before November 11. Not in origi- INVESTIGATING TERRORISM ber. These family members are facing depor- nal Administration proposal. Sec. 501. Attorney General’s authority to tation because they are out of status: they Sec. 423. Humanitarian relief for certain pay rewards to combat terrorism. Both the no longer qualify for their current immigra- surviving spouses and children. Current law House and Senate bills included this provi- tion status or are no longer eligible to com- provides that an alien who was the spouse of sion to authorize the Attorney General to plete the application process because their a U.S. citizen for at least 2 years before the offer rewards—payments to individuals who loved one was killed or injured in the Sep- citizen died shall remain eligible for immi- offer information pursuant to a public adver- tember 11 terrorist attack. Others are grant status as an immediate relative. This tisement—to gather information to combat threatened with the loss of their immigra- also applies to the children of the alien. This terrorism and defend the nation against ter- tion status, through no fault of their own, section provides that if the citizen died as a rorist acts without any dollar limitation due to the disruption of communication and direct result of the terrorist attacks, the 2- (Current law limits rewards to $2 million). transportation that has resulted directly year requirement is waived. This section pro- Rewards of $250,000 or more require the per- from the terrorist attacks. Because of these vides that if an alien spouse, child, or un- sonal approval of the Attorney General or disruptions, people have been and will be un- married adult son or daughter had been the President and notice to Congress. Narrower able to meet important deadlines, which will beneficiary of an immigrant visa petition than original Administration proposal. mean the loss of eligibility for certain bene- filed by a permanent resident who died as a Sec. 502. Secretary of State’s authority to fits and the inability to maintain lawful sta- direct result of the terrorist attacks, the pay rewards. Both the House and Senate bills tus, unless the law is changed. alien will still be eligible for permanent resi- included this provision to authorize the Sec- At the request of Congressman Conyers dence. In addition, if an alien spouse, child, retary of State to offer rewards—payments and Senator Leahy, this new subtitle (sec- or unmarried adult son or daughter of a per- to individuals who offer information pursu- tions 421–428) was included in the final bill to manent resident who died as a direct result ant to a public advertisement—to gather in- modify the immigration laws to provide the of the terrorist attacks was present in the formation to combat terrorism and defend humanitarian relief to these victims and United States on September 11 but had not the nation against terrorist acts without any their family members in preserving their im- yet been petitioned for permanent residence, dollar limitation (Current law limits rewards migration status.] the alien can self-petition for permanent res- to $5 million). Rewards of $100,000 or more re- Sec. 421. Special immigrant status. This idence. The section also provides that an quire the personal approval of the Secretary section provides permanent resident status alien spouse or child of an alien who (1) died of State and notice to Congress. Narrower to an alien who was the beneficiary of a peti- as a direct result of the terrorist attacks and than original Administration proposal. Sec. 503. DNA identification of terrorists tion filed (on or before September 11) to (2) was a permanent resident (petitioned-for and other violent offenders. Both the House grant the alien permanent residence as a by an employer) or an applicant for adjust- and Senate bills included this provision to family-sponsored immigrant or employer- ment of status for an employment-based im- authorize the collection of DNA samples sponsored immigrant, or of an application migrant visa, may have his or her applica- from any person convicted of certain ter- for labor certification (filed on or before Sep- tion for adjustment adjudicated despite the rorism-related offenses and other crimes of tember 11), if the petition or application was death (if the application was filed prior to rendered null because of the disability of the violence, for inclusion in the national DNA the death). Not in original Administration database. Modified from original Adminis- beneficiary or loss of employment of the ben- proposal. eficiary due to physical damage to, or de- tration proposal. Sec. 424. ‘‘Age-out’’ protection for children. Sec. 504. Coordination with law enforce- struction of, the business of the petitioner or Under current law, certain visas are only ment. Both the House and Senate bills in- applicant as a direct result of the terrorist available to an alien until the alien’s 21st cluded this provision to amend FISA to au- attacks on September 11, or because of the birthday. This section provides that an alien thorize consultation between FISA officers death of the petitioner or applicant as a di- whose 21st birthday occurs this September and law enforcement officers to coordinate rect result of the terrorist attacks. Perma- and who is a beneficiary for a petition or ap- efforts to investigate or protect against nent residence would be granted to an alien plication filed on or before September 11 international terrorism, clandestine intel- who was the spouse or child of an alien who shall be considered to remain a child for 90 ligence activities, or other grave hostile acts was the beneficiary of a petition filed on or days after the alien’s 21st birthday. For an of a foreign power or an agent of a foreign before September 11 to grant the beneficiary alien whose 21st birthday occurs after this power. Not in original Administration pro- permanent residence as a family-sponsored September, (and who had a petition for appli- posal. immigrant (as long as the spouse or child fol- cation filed on his or her behalf on or before Sec. 505. Miscellaneous national security lows to join not later than September 11, September 11) the alien shall be considered authorities. Both the House and Senate bills 2003). Permanent residence would be granted to remain a child for 45 days after the alien’s included this provision to modify current to the beneficiary of a petition for a non- 21st birthday. Not in original Administration statutory provisions on access to telephone, immigrant visa as the spouse or the fiance´ proposal. bank, and credit records in counterintel- (and their children) of a U.S. citizen where Sec. 425. Temporary administrative relief. ligence investigations to remove the ‘‘agent the petitioning citizen died as a direct result This section provides that temporary admin- of a foreign power’’ standard. The authority of the terrorist attack. This section also pro- istrative relief may be provided to an alien may be used only for investigations to pro- vides permanent resident status to the who was lawfully present on September 10, tect against international terrorism or clan- grandparents of a child both of whose par- was on that date the spouse, parent or child destine intelligence activities, and an inves- ents died as a result of the terrorist attacks, of someone who died or was disabled as a di- tigation of a United States person may not if either of such deceased parents was a U.S. rect result of the terrorist attacks, and is be based solely on activities protected by the citizen or a permanent resident. Not in origi- not otherwise entitled to relief under any First Amendment. Narrower than original nal Administration proposal. other provision of this legislation. Not in Administration proposal which simply re- Sec. 422. Extension of filing or reentry original Administration proposal. moved ‘‘agent of foreign power’’ require- deadlines. This section provides that an alien Sec. 426. Evidence of death, disability, or ment. who was legally in a nonimmigrant status loss of employment. This section instructs Sec. 506. Extension of Secret Service juris- and was disabled as a direct result of the ter- the Attorney General to establish appro- diction. Both the House and Senate bills in- rorist attacks on September 11 (and his or priate standards for evidence demonstrating cluded this provision to give the Secret Serv- her spouse and children) may remain law- that a death, disability, or loss of employ- ice concurrent jurisdiction to investigate of- fully in the United States (and receive work ment due to physical damage to, or destruc- fenses relating to fraud and related activity authorization) until the later of the date tion of, a business, occurred as a direct re- in connection with computers, and perma- that his or her status normally terminates sult of the terrorist attacks on September 11. nently extends its current authority to in- or September 11, 2002. Such status is also The Attorney General is not required to pro- vestigate financial institution fraud. Not in provided to the nonimmigrant spouse and mulgate regulations prior to implementing original Administration proposal.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11012 CONGRESSIONAL RECORD — SENATE October 25, 2001 Sec. 507. Disclosure of educational records. Modified from original Administration pro- State and local law enforcement agencies to Both the House and Senate bills included posal. investigate and prosecute terrorist conspir- this provision to require application to a Subtitle B—Amendments to the Victims of acies and activities and doubles its author- court to obtain educational records in the Crime Act of 1984 ized funding for FY2002 and FY2003. Cur- possession of an educational agency or insti- [Note: The original Administration pro- rently, 5,700 Federal, State and local law en- tution if it is determined by the Attorney posal did not include most of the provisions forcement agencies participate in the RISS General or Secretary of Education (or their of this subtitle to streamline the administra- Program. Not in original Administration designee) that doing so could reasonably be tion of the Crime Victims Fund.] proposal. expected to assist in investigating or pre- Sec. 621. Crime victims fund. Both the TITLE VIII—STRENGTHENING THE CRIMINAL venting a federal terrorism offense or domes- House and Senate bills included this provi- LAWS AGAINST TERRORISM tic or international terrorism. Limited im- sion to authorize the Office for Victims of Sec. 801. Terrorist attacks and other acts munity is given to persons producing such Crime (OVC) to replenish the antiterrorism of violence against mass transportation sys- information acting in good faith, and the At- emergency reserve with up to $50 million and tems. Both the House and Senate bills in- torney General is directed to issue guidelines establishes a mechanism to allow for replen- cluded this provision to create a new statute to protect confidentiality. Narrower than ishment in future years. Funds added to the (to be codified at 18 U.S.C. § 1993) to make original Administration proposal. Crime Victims Fund to respond to the Sep- punishable acts of terrorism and other vio- Sec. 508. Disclosure of information from tember 11 attacks shall not be subject to the lence against mass transportation vehicles, NCES surveys. Both the House and Senate cap or the new formula provisions. A tech- systems, facilities, employees and pas- bills included this provision to require appli- nical clarification includes the September sengers; the reporting of false information cation to a court to obtain reports, records 11th Victim Compensation Fund established about such activities; and attempts and con- and information in the possession of the Na- in Public Law 107–42 as one of the Federal spiracies to commit such offenses. Violations tional Center for Educational Statistics that benefits that should be a primary payer to are punishable by a fine and term imprison- are relevant to an authorized investigation the States. This section also replaces the an- ment of 20 years; however, the mass trans- or prosecution of terrorism. Limited immu- nual cap on the Fund with a self-regulating portation vehicle was carrying a passenger nity is given to persons producing such infor- system that ensures stability in the amounts at the time of the attack, or if death re- mation acting in good faith, and the Attor- distributed while preserving the amounts re- sulted from the offense, the maximum term ney General is directed to issue guidelines to maining for use in future years; it authorizes of imprisonment is increased to life. Not in protect confidentiality. Narrower than origi- private gift-giving to the Fund; and it in- original Administration proposal. nal Administration proposal. creases the portion of the Fund available for Sec. 802. Definition of domestic terrorism. TITLE VI—PROVIDING FOR VICTIMS OF TER- discretionary grants and assistance to vic- Both the House and Senate bills included RORISM, PUBLIC SAFETY OFFICERS, AND THEIR tims of Federal crime. Significant expansion this provision to define the term ‘‘domestic FAMILIES of original Administration proposal. terrorism’’ as a counterpart to the current Subtitle A—Aid for Families of Public Sec. 622. Crime victim compensation. Both definition of ‘‘international terrorism’’ in 18 Safety Officers the House and Senate bills included this pro- U.S.C. § 2331. The new definition for ‘‘domes- Sec. 611. Expedited payment for public vision to increase the minimum threshold tic terrorism’’ is for the limited purpose of safety officers involved in the prevention, in- for the annual grant to State compensation providing investigative authorities (i.e., vestigation, rescue, or recovery efforts re- programs. It clarifies that a payment of com- court orders, warrants, etc.) for acts of ter- lated to a terrorist attack. Both the House pensation to a victim shall not used in rorism within the territorial jurisdiction of and Senate bills included this provision to means tests for Federal benefit programs. A the United States. Such offenses are those streamline the Public Safety Officers Bene- technical clarification removes the dual re- that are ‘‘(1) dangerous to human life and fits Program application process for family quirement that State crime victim com- violate the criminal laws of the United members of law enforcement officers, fire- pensation programs cover victims of ter- States or any state; and (2) appear to be in- fighters, and emergency personnel who per- rorism occurring outside the United States. tended (or have the effect)—to intimidate a ished or suffered serious injury in connection Not in original Administration proposal. civilian population; influence government with prevention, investigation, rescue or re- Sec. 623. Crime victim assistance. Both the policy intimidation or coercion; or affect covery efforts related to a terrorist attack. House and Senate bills included this provi- government conduct by mass destruction, as- The Public Safety Officers Benefits Program sion to authorize States to give VOCA funds sassination, or kidnapping (or a threat of).’’ provides benefits for each of the families of to U.S. Attorney’s Offices in jurisdictions Same as Administration proposal. law enforcement officers, fire fighters, emer- where the U.S. Attorney is the local pros- Sec. 803. Prohibition against harboring ter- gency response squad members, ambulance ecutor. It prohibits victim assistance pro- rorists. Both the House and Senate bills in- crew members who are killed or permanently grams from discriminating against certain cluded this provision to establish a new and totally disabled in the line of duty victims; authorizes grants to eligible victim criminal prohibition against harboring ter- ($151,635 in FY 2001). Current regulations, assistance programs for program evaluation rorists, similar to the current prohibition in however, require the families of public safety and compliance efforts; and allows use of 18 U.S.C. § 792 against harboring spies, and officers who have fallen in the line of duty to funds for fellowships, clinical internships makes it an offense when someone harbors or go through a cumbersome and time-con- and training programs. Not in original Ad- conceals another they know or should have suming application process. Not in original ministration proposal. known had engaged in or was about to en- Sec. 624. Victims of terrorism. Both the Administration proposal. gage in federal terrorism offenses. Narrower Sec. 612. Technical correction with respect House and Senate bills included this provi- than Administration’s proposal except that to expedited payments for heroic public safe- sion to conform VOCA’s domestic terrorism the final bill removes the Administration’s ty officers. Both the House and Senate bills section to the international terrorism sec- original proposal to make it an offense to included this provision to make technical tion, giving OVC the flexibility to deliver harbor someone merely suspected of engag- corrections to Public Law 107–37 to provide timely and critically-needed assistance to ing in terrorism. sufficient information to make expedited victims of terrorism and mass violence oc- Sec. 804. Jurisdiction over crimes com- Public Safety Officers Benefits Program pay- curring within the United States. It also mitted at U.S. facilities abroad. Both the ments to the fallen firefighters, emergency makes a technical correction to recent legis- House and Senate bills included this provi- personnel and law enforcement officers who lation that inadvertently reversed the exist- sion to extend the special maritime and ter- perished or were disabled during the rescue ing exclusion under VOCA of individuals eli- ritorial jurisdiction of the United States to and recovery efforts related to the terrorist gible for other Federal compensation under cover, with respect to offenses committed by attacks of September 11, 2001. Modified from the Omnibus Diplomatic Security and or against a U.S. national, U.S. diplomatic, original Administration proposal. Antiterrorism Act of 1986. Expansion of consular and military missions, and resi- Sec. 613. Public safety officers benefits pro- original Administration proposal. dences used by U.S. personnel assigned to gram payment increase. Both the House and TITLE VII—INCREASED INFORMATION SHARING such missions. Based on original Administra- Senate-passed bills included this provision to FOR CRITICAL INFRASTRUCTURE PROTECTION tion proposal. raise the total amount of Public Safety Offi- [Note: The original Administration pro- Sec. 805. Material support for terrorism. cers Benefits Program payment to $250,000 posal did not include this subtitle to expand Both the House and Senate bills included and is effective for any death or disability regional information sharing to facilitate this provision to amend 18 U.S.C. § 2339A, occurring on or after January 1, 2001. Not in Federal-state-local law enforcement re- which prohibits providing material support original Administration proposal. sponses to terrorism.] to terrorists, in four respects. First, it adds Sec. 614. Office of Justice programs. Both Sec. 701. Expansion of regional information three terrorism-related offenses to the list of the House and Senate bills included this pro- sharing system to facilitate Federal-State- § 2339A predicates. Second, it provides that vision to amend the Office of Justice Pro- local law enforcement response related to § 2339A violations may be prosecuted in any gram’s authorities to enhance the authority terrorist attacks. Both the House and Senate Federal judicial district in which the predi- of the Assistant Attorney General to coordi- bills included this provision to expand the cate offense was committed. Third, it clari- nate and manage emergency response activi- Department of Justice Regional Information fies that monetary instruments, like cur- ties of its various components including the Sharing Systems (RISS) Program to facili- rency and other financial securities, may Public Safety Officers Benefits Program. tate information sharing among Federal, constitute ‘‘material support or resources’’

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11013 for purpose of § 2339A. Fourth, it explicitly period of supervised release for certain ter- Central Intelligence (‘‘DCI’’) with respect to prohibits providing terrorists with ‘‘expert rorism-related offenses that resulted in, or the overall management of collection goals, advice or assistance,’’ such as flight train- created a foreseeable risk of, death or serious analysis and dissemination of foreign intel- ing, knowing or intending that it will be bodily injury to another person. Narrower ligence gathered pursuant to the Foreign In- used to prepare for or carry out an act of ter- than original Administration proposal. telligence Surveillance Act, in order to en- rorism. Same as original Administration Sec. 813. Inclusion of acts of terrorism as sure that FISA is properly and efficiently proposal. racketeering activity. Both the House and used for foreign intelligence purposes. It re- Sec. 806. Assets of terrorists organizations. Senate bills included this provision to amend quires the DCI to assist the Attorney Gen- Both the House and Senate bills included the RICO statute to include certain ter- eral in ensuring that FISA efforts are con- this provision to provide that the assets of rorism-related offenses within the definition sistent with constitutional and statutory individuals and organizations engaged in of ‘‘racketeering activity,’’ thus allowing civil liberties. The DCI will have no oper- planning or perpetrating acts of terrorism multiple acts of terrorism to be charged as a ational authority with respect to implemen- against the United States, as well as the pro- pattern of racketeering for RICO purposes. tation of FISA, which will continue to reside ceeds and instrumentalities of such acts, are This section expands the ability of prosecu- with the FBI. Not in original Administration subject to civil forfeiture. Same as original tors to prosecute members of established, on- proposal. Administration proposal. going terrorist organizations that present Sec. 902. Inclusion of international ter- Sec. 807. Technical clarification relating to the threat of continuity that the RICO stat- rorism activities within scope of foreign in- provision of material support to terrorism. ute was designed to permit prosecutors to telligence under National Security Act of Both the House and Senate bills included combat. Narrower than original Administra- 1947. Both the House and Senate bills in- this provision to clarify that the provisions tion proposal. cluded this provision to revise the National of the Trade Sanctions Reform and Export Sec. 814. Deterrence and prevention of Security Act definitions section to include Enhancement Act of 2000 (title IX of Public cyberterrorism. Both the House and Senate ‘‘international terrorism’’ as a subset of Law 106–387) do not limit or otherwise affect bills included this provision to clarify the ‘‘foreign intelligence.’’ This change will clar- the criminal prohibitions against providing criminal statute prohibiting computer hack- ify the DCI’s responsibility for collecting material support to terrorists or designated ing, 18 U.S.C. § 1030, to cover computers lo- foreign intelligence related to international terrorist organizations, 18 U.S.C. §§ 2339A & cated outside the United States when used in terrorism. Not in original Administration 2339B. Same as original Administration pro- a manner that affects the interstate com- proposal. posal. merce or communications of this country, Sec. 903. Sense of Congress on the estab- Sec. 808. Definition of Federal crime of ter- update the definition of ‘‘loss’’ to ensure full lishment and maintenance of intelligence re- rorism. Both the House and Senate bills in- costs to victims of hacking offenses are lationships to acquire information on terror- cluded this provision to update the list of counted, clarify the scope of civil liability ists and terrorist organizations. Both the predicate offenses under the current defini- and eliminate the current mandatory min- House and Senate bills included this provi- tion of ‘‘Federal crime of terrorism,’’ 18 imum sentence applicable in some cases. Not sion to express the Sense of Congress that U.S.C. § 2332b(g)(5). Narrower than original in original Administration proposal. the CIA should make efforts to recruit in- Administration proposal. Sec. 815. Additional defense to civil actions formants to fight terrorism. Not in original Sec. 809. No statute of limitation for cer- relating to preserving records in response to Administration proposal. tain terrorism offenses. Both the House and Government requests. Both the House and Sec. 904. Temporary authority to defer sub- Senate bills included this provision to elimi- Senate bills included this provision to pro- mittal to Congress of reports on intelligence nate the statute of limitations for certain vide an additional defense under 18 U.S.C. and intelligence-related matters. Both the terrorism-related offenses, if the commission § 2707(e)(1) to civil actions relating to pre- House and Senate bills included this provi- of such offense resulted in, or created a fore- serving records in response to Government sion to allow the Secretary of Defense, the seeable risk of, death or serious bodily injury requests. Not in original Administration pro- Attorney General and the DCI to defer the to another person. Narrower than original posal. submittal of certain reports to Congress Administration proposal. Sec. 816. Development and support of cy- until February 1, 2002. Not in original Ad- Sec. 810. Alternative maximum penalties bersecurity forensic capabilities. Both the ministration proposal. for terrorism offenses. Both the House and House and Senate bills included this provi- Sec. 905. Disclosure to Director of Central Senate bills included this provision to raise sion to require the Attorney General to es- Intelligence of foreign intelligence-related the maximum prison terms to 15 or 20 years tablish regional computer forensic labora- information with respect to criminal inves- or, if death results, life, in the following tories and to support existing computer fo- tigations. Both the House and Senate bills criminal statutes: 18 U.S.C. § 81 (arson within rensic laboratories to help combat computer included this provision to create a responsi- the special maritime and territorial jurisdic- crime. Not in original Administration pro- bility for law enforcement agencies to notify tion of the United States); 18 U.S.C. § 1366 posal. the Intelligence Community when a criminal (destruction of an energy facility); 18 U.S.C. Sec. 817. Expansion of the biological weap- investigation reveals information of intel- § 2155(a) (destruction of national-defense ma- ons statute. The Senate-passed bill included ligence value. Regularizes existing ad hoc terials); 18 U.S.C. §§ 2339A & 2339B (provision this provision to amend the definition of ‘‘for notification, and makes clear that constitu- of material support to terrorists and ter- use as a weapon’’ in the current biological tional and statutory prohibitions of certain rorist organizations); 42 U.S.C. § 2284 (sabo- weapons statute, 18 U.S.C. § 175, to include types of information sharing apply. Not in tage of nuclear facilities or fuel); 19 U.S.C. all situations in which it can be proven that original Administration proposal. § 46505(c) (killings on aircraft); 49 U.S.C. the defendant had any purpose other than a Sec. 906. Foreign Terrorist Asset Tracking § 60123(b) (destruction of interstate gas or prophylactic, protective, or peaceful pur- Center. Both the House and Senate bills in- hazardous liquid pipeline facility). Narrower pose. This section also creates a new crimi- cluded this provision to regularize the exist- than original Administration proposal. nal statute, 18 U.S.C. § 175b, which generally ing Foreign Terrorist Asset Tracking Center Sec. 811. Penalties for terrorist conspir- makes it an offense for certain restricted by creating an element within the Depart- acies. Both the House and Senate-passed persons, including non-resident foreign na- ment of Treasury designed to review all- bills included this provision to ensure ade- tionals of countries that support inter- source intelligence in support of both intel- quate penalties for certain terrorism-related national terrorism, to possess a listed bio- ligence and law enforcement efforts to conspiracies by adding conspiracy provisions logical agent or toxin. Finally, this section counter terrorist financial support networks. to the following criminal statutes: 18 U.S.C. provides that the Department of Health and Not in original Administration proposal. § 81 (arson within the special maritime and Sec. 907. National Virtual Translation Cen- Human Services enhance its role in bioter- territorial jurisdiction of the United States); ter. Both the House and Senate bills included rorism prevention by establishing and en- 18 U.S.C. § 930(c) (killings in Federal facili- this provision to direct the submission of a forcing standards and procedures governing ties); 18 U.S.C. § 1362 (destruction of commu- report on the feasibility of establishing a vir- the possession, use, and transfer of certain nications lines, stations, or systems); 18 tual translation capability, making use of biological agents that have a high national U.S.C. § 1363 (destruction of property within cutting-edge communications technology to security risk, including safeguards to pre- the special maritime and territorial jurisdic- link securely translation capabilities on a vent access to such agents for use in domes- tion of the United States); 18 U.S.C. § 1992 nationwide basis. Not in original Adminis- tic or international terrorism. Modified from (wrecking trains); 18 U.S.C. § 2339A (material tration proposal. original Administration proposal, which did support to terrorists); 18 U.S.C. § 2340A (tor- Sec. 908. Training of government officials not require the government to establish the ture); 42 U.S.C. § 2284 (sabotage of nuclear fa- regarding identification and use of foreign mens rea of the defendant to prove the crime cilities or fuel); 49 U.S.C. § 46504 (interference intelligence. Both the House and Senate bills of possession of the biological weapon. with flight crews); 49 U.S.C. § 46505 (carrying included this provision to direct the Attor- weapons or explosives on aircraft); 49 U.S.C. TITLE IX—IMPROVED INTELLIGENCE ney General, in consultation with the DCI, § 60123 (destruction of interstate gas or haz- Sec. 901. Responsibilities of Director of to establish a training program for Federal, ardous liquid pipeline facility). Narrower Central Intelligence regarding foreign intel- State and local officials on the recognition than original Administration proposal. ligence collected under the Foreign Intel- and appropriate handling of intelligence in- Sec. 812. Post-release supervision of terror- ligence Surveillance Act of 1978. Both the formation discovered in the normal course of ists. Both the House and Senate bills in- House and Senate bills included this provi- their duties. Not in original Administration cluded this provision to authorize extended sion to clarify the role of the Director of proposal.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11014 CONGRESSIONAL RECORD — SENATE October 25, 2001 TITLE X—MISCELLANEOUS Department of Transportation to obtain ing of the Federal Building in Okla- Sec. 1001. Review of the Department of Jus- background records checks for any indi- homa City in 1995. It took a year to tice. This provision authorizes the Inspector vidual applying for a license to transport complete the legislation after that. We General of the Department of Justice to des- hazardous materials in interstate commerce. have done this in 6 weeks. But there ignate one official to review information and Not in original Administration proposal. has been a lot of cooperation. There receive complaints alleging abuses of civil Sec. 1013. Expressing the sense of the Sen- ate concerning the provision of funding for have been a lot of Senators and a lot of rights and civil liberties by employees and House Members in both parties and officials of the Department of Justice. Not in bioterrorism preparedness and response. This original Administration proposal. provision expresses the sense of the Senate dedicated staff who have worked Sec. 1002. Sense of Congress. This provision that the United States should make a sub- around the clock. condemns discrimination and acts of vio- stantial new investment this year toward I think of my own staff—and this lence against Sikh-Americans. Not in origi- improving State and local preparedness to could be said of many others, including nal Administration proposal. respond to potential bioterrorism attacks. the Presiding Officer’s staff and the Sec. 1003. Definition of ‘‘electronic surveil- Not in original Administration proposal. ranking member’s staff—who were lance.’’ This provision authorizes the use of Sec. 1014. Grant program for State and forced out of their offices because of the new computer trespass authority under local domestic preparedness support. This provision authorizes an appropriated Depart- the recent scares on Capitol Hill, and FISA. Not in original Administration pro- they continue to work literally in posal. ment of Justice program to provide grants to States to prepare for and respond to terrorist phone booths and in hallways and from Sec. 1004. Venue in money laundering their homes and off laptops and cell cases. This provision clarifies the judicial acts including but not limited to events of districts in which money laundering prosecu- terrorism involving weapons of mass de- phones. tions under 18 U.S.C. §§ 1956 and 1957 may be struction and biological, nuclear, radio- I made a joke in my own hide-away brought. Not in original Administration pro- logical, incendiary, chemical, and explosive office. To those who have ever watched posal. devices. The authorization revises this grant ‘‘The X-Files,’’ there is a group called Sec. 1005. First responders assistance act. program to provide: (1) additional flexibility ‘‘the lone gunmen,’’ who are sort of This provision authorizes grants to State to purchase needed equipment; (2) training these computer nerds who meet in a and local authorities to respond to and pre- and technical assistance to State and local small house trailer. I am seeing some first responders; and (3) a more equitable al- vent acts of terrorism. Not in original Ad- puzzled looks around the Senate as I ministration proposal. location of funds to all States. Not in origi- nal Administration proposal. say this. But they have all these wires Sec. 1006. Inadmissibility of aliens engaged hanging from the ceiling and laptops in money laundering. This provision makes Sec. 1015. Expansion and reauthorization of inadmissible to the United States any alien the Crime Identification Technology Act for and all, and they do great things. That who a consular officer or the Attorney Gen- antiterrorism grants to States and localities. is the way our office looked. But they eral knows, or has reason to believe, is in- This provision adds an additional were working around the clock on this volved in a Federal money laundering of- antiterrorism purpose for grants under the legislation to get something better. fense. Not in original Administration pro- Crime Identification Technology Act, and There was some unfortunate rhetoric posal. authorizes grants under that Act through fis- cal year 2007. Not in original Administration along the way, but again, the reality Sec. 1007. Authorization of funds for DEA overcame it. We have a good piece of police training in South and Central Asia. proposal. Sec. 1016. Critical infrastructures protec- legislation. This provision authorizes money for anti- tion. This provision establishes a National As we look back to when we began drug training in the Republic of Turkey, and Infrastructure Simulation and Analysis Cen- for increased precursor chemical control ef- discussions with the administration ter (NISAC) to address critical infrastruc- forts in the South and Central Asia region. about this bill, there were sound and ture protection and continuity through sup- Not in original Administration proposal. legitimate concerns on both sides of port for activities related to counterter- Sec. 1008. Feasibility study on use of bio- the Capitol, both sides of the aisle, rorism, threat assessment, and risk mitiga- metric identifier scanning system with ac- about the legislation’s implication for tion. Not in original Administration pro- cess to the FBI Integrated automated finger- posal. America’s rights and freedoms. There print identification system at overseas con- was also a sincere and committed be- sular posts and points of entry to the United Mr. LEAHY. After that terrible day lief that we needed to find a way to States. This provision directs the Attorney of September 11, we began looking at give law enforcement authority new General to report to Congress on the feasi- our laws, and what we might do. Unfor- tools in fighting terrorism. bility of using a biometric identifier (finger- tunately, at first, rhetoric overcame print) scanning system, with access to the This is a whole new world. It is not reality. We had a proposal sent up, and similar to the days of the cold war FBI fingerprint database, at consular offices we were asked to pass it within a day abroad and at points of entry into the United where we worried about armies march- States. Not in original Administration pro- or so. Fortunately for the country, and ing against us or air forces flying posal. actually ironically beneficial to both against us or navies sailing against us. Sec. 1009. Study of access. This provision the President and the Attorney Gen- This is not that world. Nobody is going directs the FBI to report to Congress on the eral who asked for such legislation, we to do that because we are far too pow- feasibility of providing airlines with com- took time to look at it, we took time erful. Since the end of the cold war, puter access to the names of suspected ter- to read it, and we took time to remove with the strength of our military, no- rorists. Not in original Administration pro- those parts that were unconstitutional body is going to do a frontal attack. posal. and those parts that would have actu- Sec. 1010. Temporary authority to contract But as the Presiding Officer and every- with local and State governments for per- ally hurt liberties of all Americans. one else knows, a small dedicated formance of security functions at United I say that because I think of what group of terrorists, with state-sup- States military installations. This provision Benjamin Franklin was quoted as say- ported efforts, can wreak havoc in an provides temporary authority for the De- ing at a time when he literally had his open and democratic Nation such as partment of Defense to enter contracts for neck on the line, where he would have ours. the performance of security functions at any been hanged if our revolution had Anybody who has visited the sites of military installation of facility in the failed. He said: A people who would these tragedies doesn’t need to be told United States with a proximately located give up their liberty for security de- the results. We know our Nation by its local or State government. Not in original Administration proposal. serve neither. very nature will always be vulnerable Sec. 1011. Crimes against charitable Ameri- What we have tried to do in this leg- to these types of attacks. None of us cans. This provision amends the Tele- islation is to balance the liberties we serving in the Senate today will, marketing and Consumer Fraud and Abuse enjoy as Americans and those liberties throughout our service, no matter how Prevention Act to require any person en- that have made us the greatest democ- long it is, see a day where we are to- gaged in telemarketing for the solicitation racy in history but at the same time to tally free of such terrorist attacks. of charitable contributions to disclose to the enhance our security so we can main- That is the sad truth. Our children and person receiving the call that the purpose of tain that democracy and maintain the our grandchildren will face the possi- the call is to solicit charitable contribu- leadership we have given the rest of the tions, and to make such other disclosures as bilities of such terrorist attacks be- the FTC considers appropriate. Not in origi- world. cause that is the only way the United nal Administration proposal. We completed our work 6 weeks after States can be attacked. But that Sec. 1012. Limitation on issuance of the September 11 attacks. I compare doesn’t mean we are defenseless. It hazmat licenses. This provision allows the this to what happened after the bomb- doesn’t mean we suddenly surrender.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11015 We have the ability, with our intel- resentatives in Congress, grant the ad- We can never know whether these ligence agencies and our law enforce- ministration our trust that they are tools would have prevented the attack ment, to seek out and stop people be- not going to be misused. It is a two- on America, but, as the Attorney Gen- fore this happens. We are in an open way street. We are giving powers to the eral has said, it is certain that without session today, so I won’t go into the administration; we will have to extend these tools we did not stop the vicious number of times we have done that. some trust that they are not going to acts of last month. But in the last 10 years, we have had, be misused. I personally believe that if these time and time again, during the former The way we guarantee that is con- tools had been in law—and we have Bush administration, during the Clin- gressional oversight. Congressional been trying to get them there for ton administration, and in the present oversight is going to be crucial in en- years—we would have caught those ter- administration, potential terrorist at- forcing this compact. If I might para- rorists. If these tools could help us now tacks thwarted. People have either phrase former President Reagan: We to track down the perpetrators—if they been apprehended or eliminated. will entrust but with oversight. will help us in our continued pursuit of Everybody in America knows our life We will do this. The Republican terrorists—then we should not hesitate has changed. Whether the security chairman and his ranking member in to enact these measures into law. God checks and the changes in our airlines the House of Representatives intend to willing, the legislation we pass today are effective or not, we know they are have very close oversight. I can assure will enhance our abilities to protect reality. We know travel is not as easy you that I and our ranking member and prevent the American people from as it once was. We will be concerned will have tight oversight in the Senate. ever again being violated as we were on about opening mail. We will worry Interestingly enough, the 4-year sun- September 11. This legislation truly represents the when we hear the sirens in the night. set provision included in this final product of intense, yet bipartisan, ne- But we are not going to retreat into agreement will be an enforcement gotiations. Senator LEAHY and I car- fortress America. We are going to re- mechanism for adequate oversight. We did not have a sunset provision in ried out a painstaking review of the main a beacon of democracy to the rest the Senate bill. The House included a 5- antiterrorism proposal submitted by of the world. Americans don’t run and year provision. The administration the administration. There have been hide. Americans face up, as we have, to wanted even 10 years. We compromised several hearings on this legislation in adversities, whether they be economic on 4. It makes sense. It makes sense be- the Senate—not just this year, but in or wars or anything else. cause with everybody knowing there is prior years—on some of the provisions We began this process knowing how that sunset provision, everybody and features that we have in here, in- we had to protect Americans. It was knows they are going to have to use cluding discussions during the enact- not that we were intending to see how these powers carefully and in the best ment of the 1996 Antiterrorism Effec- much we could take out of the adminis- way. If they do that, then they can tive Death Penalty Act, called the tration’s proposal, but it was with a de- have extensions. If they don’t, they Dole-Hatch bill. termination to find sensible, workable won’t. It also enhances our power for We have heard from countless experts ways to do the same things to protect oversight. and advocates on all sides of this issue America the administration wanted This is not precisely the bill that in this debate. Of late, we have also but with checks and balances against Senator HATCH would have written. It worked closely with Chairman SENSEN- abuse. We have seen at different times is not precisely the bill I would have BRENNER in the House, Mr. CONYERS, in this Nation’s history how good in- written, or not precisely the bill the the ranking member on the House Ju- tentions can be abused. We saw it dur- Presiding Officer or others on the floor diciary Committee, and others in our ing the McCarthy era. would have written. But it is a good effort to complete legislation that Following the death of J. Edgar Hoo- bill. It is a balanced bill. It is a greatly could receive near unanimous approval ver, we found how much totalitarian improved piece of legislation. It is one and support in the Congress. Although control of the FBI hurt so many inno- that sets up the checks and balances I do not expect every Senator to vote cent people without enhancing our se- necessary in a democratic society that in favor of this legislation, Senator curity. We saw it during the excesses of allow us to protect and preserve our se- LEAHY and I have worked tirelessly to the special prosecutor law enacted with curity but also protect and preserve accommodate every concern. While good intentions. our liberties. Members ultimately may differ on We wanted to find checks and bal- I reserve the remainder of my time. some of these proposals, I know we all ances. We wanted to make sure we The PRESIDING OFFICER. The Sen- share the same overriding concern, and could go after terrorism. We wanted to ator from Utah. that is protecting our country from make sure we could go after those who Mr. HATCH. Madam President, short- further harm. would injure our society, those who ly after the September 11 attack on The bill before us, which I hope we would strike at the very democratic America, the President of the United will pass today, differs in several re- principles that ironically make us a States asked Congress to pass legisla- spects from the legislation we passed in target. But we wanted to do it with tion that would provide our law en- the Senate 2 weeks ago. These changes checks and balances against abuse. forcement and intelligence agencies result from negotiations with our That is what we did. In provision after the tools they needed to wage war on House counterparts, and some of the provision, we added those safeguards the terrorists in our midst. These tools changes are certainly not objection- that were missing from the administra- represent the domestic complement to able. For example, we have included tion’s plan. the weapons our military currently is language requiring prosecutors to no- By taking the time to read and im- bringing to bear on the terrorists’ asso- tify Federal courts when they have dis- prove the antiterrorism bill, Congress ciates overseas. At the same time, the closed grand jury information to other has done the administration a great President asked that, in crafting these Federal agencies for national security favor in correcting the problems that tools, we remain vigilant in protecting purposes. Also, the bill includes a pro- were there. We have used the time the constitutional freedoms of all vision requiring law enforcement to wisely. We have produced a far better Americans—certainly of all law-abid- provide detailed reports concerning bill than the administration proposed. ing Americans. their use of the FBI’s so-called Carni- Actually, it is a better bill than either After several weeks of negotiations vore computer surveillance system. this body or the House initially pro- with Chairman LEAHY, the House of These changes will properly encourage posed. The total is actually greater Representatives, and the administra- the law enforcement community to use than the sum of the parts. tion, we have developed bipartisan con- these tools responsibly. We have done our utmost to protect sensus legislation that will accomplish Unfortunately, not all of the changes Americans against abuse of these new both of these goals. It enhances our are welcome. For instance, our effort law enforcement tools, and there are ability to find, track, monitor, and to mitigate the unforeseen problems new law enforcement tools involved. In prosecute terrorists operating here in created by a change in the law gov- granting these new powers, the Amer- the U.S. without in any way under- erning the discipline of Federal pros- ican people but also we, their rep- mining civil liberties. ecutors was rebuffed by the House of

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11016 CONGRESSIONAL RECORD — SENATE October 25, 2001 Representatives. As a result, Federal years in particular. We have worked It was not that long ago that Amer- prosecutors will continue to be ham- hard to craft language that allows the ica was beset by the scourge of orga- pered by the myriad and often con- Attorney General to be proactive, rath- nized crime. Many of our communities tradictory State bar rules, and some- er than reactive, without sacrificing had been seriously invaded by these in- times very politicized State bar rules. the civil liberties of noncitizens. sidious influences of organized crime. Even more alarming, Federal law en- In total, the amendments made by People, many of whom occupy the forcement authorities in the State of this legislation to the Immigration and chairs that we now occupy in this very Oregon will continue to be prohibited Nationality Act reflect, and account Chamber, decided a half century or from engaging in legitimate under- for, the complex and often mutating more ago that was intolerable and we cover activity—even undercover activ- nature of terrorist groups by expanding would take the necessary steps to re- ity designed to infiltrate a terrorist the class of inadmissible and deport- capture the essential values of our cell. That is ridiculous. Nevertheless, able aliens and providing a workable country. we could not get our House counter- mechanism by which the Attorney I think it is fair to say we live in a parts to resolve that problem. General may take into custody sus- much safer and more secure America Another troublesome change con- pected alien terrorists. Further, the because of those efforts. I hope that in cerns the 4-year sunset provision. As legislation breaks down some of the years in the future those who occupy my colleagues know, the legislation barriers that have in the past pre- this Chamber will look back with a that passed the Senate 2 weeks ago by vented the State Department, the Im- similar belief that the actions we are a vote of 96–1 did not contain a sunset. migration and Naturalization Service, taking now have had a similar effect in This omission was intentional and the FBI, and others from effectively terms of making this a more secure, wise. In my opinion, a sunset will un- communicating with each other. If we not just America but world for our dermine the effectiveness of the tools are to fight terrorism, we cannot allow children and grandchildren. we are creating here and send the terrorists, or those who support terror- With that hope, I wish to talk about wrong message to the American public ists, to enter or to remain in our coun- a few of the provisions of this legisla- that somehow these tools are extraor- try. tion that relate directly to America’s dinary. Finally, the bill provides the admin- intelligence community and the role it One hardly understands the need to istration with powerful tools to attack will play in securing that future. sunset legislation that both provides the financial infrastructure of ter- First, a bit of history. For most of critically necessary tools and protects rorism. For instance, the legislation America’s history, we have been ex- our civil liberties. Furthermore, as the expands the President’s authority to tremely uncomfortable with the idea of Attorney General stated, how can we freeze the assets of terrorists and ter- clandestine intelligence. It ran con- sunset these tools when we know full rorist organizations and provides for trary to our basic spirit of national well that the terrorists will not sunset the eventual seizure of such assets. openness. While the British have had a their evil intentions? I sincerely hope These financial tools will give our Gov- well-developed intelligence system we undertake a thorough review and ernment the ability to choke off the fi- since the Napoleonic wars, our first ad- further extend the legislation once the nancing that these dangerous organiza- venture in this field really is a product 4-year period expires. At least, we will tions need in order to survive. of the Second World War, and as soon have 4 years of effective law enforce- The legislation provides numerous as the war was over, the military intel- ment against terrorism that we cur- other tools—too many to mention ligence services were essentially col- rently do not have. here—to aid our war against terrorism. lapsed. Despite these provisions, the legisla- Many of these were added at the re- Two years later, President Truman tion before us today deserves unani- quest of our Senate colleagues, and I recognized that with the advent of the mous support. The core provisions of commend all of them for their input. Soviet Union and the development of the legislation we passed in the Senate Before I yield the floor, I must take what we came to know as the Iron Cur- 2 weeks ago remain firmly in place. For a moment to acknowledge the hard tain that separated the Soviet Union instance, in the future, our law en- work by my staff, the staff of Senator from the free world, we were going to forcement and intelligence commu- LEAHY, and the representatives of the have to have some capability to under- nities will be able to share information administration, from the White House stand what this large adversary was and cooperate fully in protecting our and the Justice Department and else- about and therefore prepare ourselves. Nation against terrorist attacks. where, who were involved in the nego- So in 1947 the National Security Act Our laws relating to electronic sur- tiation of this bill. These people have was adopted which created the Central veillance also will be updated. Elec- engaged in discussions literally around Intelligence Agency and from that the tronic surveillance conducted under the clock over the 6 weeks to produce other intelligence agencies which now the supervision of a Federal judge hap- this legislation. So I thank everybody constitute America’s intelligence com- pens to be one of the most powerful who has worked on this legislation. munity. tools at the disposal of our law enforce- This is a major anticrime, For 40 years that intelligence com- ment community. We now know that e- antiterrorism bill. It is probably the munity was focused on one target: the mail, cellular telephones, and the most important bill we will enact this Soviet Union and its Warsaw Pact al- Internet have been the principal tools year, certainly with regard to national lies. We knew that community. The used by terrorists to coordinate their security and terrorism. I thank every- United States had been dealing with attacks, and our law enforcement and body involved, and I will make further Russia since even before John Quincy intelligence agencies have been ham- remarks about that later in the debate. Adams was our Ambassador in St. Pe- strung by laws that were enacted long With that, I yield the floor and re- tersburg. It was a homogenous enemy. before the advent of these technologies. serve the remainder of my time. Most of the countries spoke Russian, This bill will modernize our laws so our The PRESIDING OFFICER. The Sen- and therefore if we had command of law enforcement agencies can deal ator from Florida. that language, we could understand with the world as it is, rather than Mr. GRAHAM. Madam President, it what most of the Warsaw Pact nations with the world as it existed 20 years is my hope that today as we pass this were saying. It was also an old style ago. antiterrorism legislation and as we will symmetrical enemy: We were matching Also, the legislation retains the com- in future days take action on issues of tanks for tanks, nukes for nukes. promise immigration proposals that I resources to fight antiterrorism and With the fall of the Berlin Wall, the negotiated with Senator LEAHY, Sen- changes in organizational structure, we world changed in terms of intelligence ator KENNEDY, Senator KYL, Senator will be making as significant a na- requirements. Suddenly, instead of one BROWNBACK, and also Senator FEIN- tional statement about our will and de- enemy, we had dozens of enemies. Sud- STEIN, who has played a significant termination to eliminate the scourge denly, instead of having command of role. She and Senator KYL have both of global terrorism as previous genera- one language which made us linguis- played significant roles leading up to tions did about other scourges that af- tically competent, there were scores of this particular bill, and over the last 5 flicted our country. languages we had to learn to speak. In

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11017 Afghanistan alone, there are more than ligence is the head coach, the leader nous figure such as Osama bin Laden, a half dozen languages with which one with the ability to command and con- frankly, it is probably somebody who is must have some familiarity in order to trol the intelligence community. In pretty similar to bin Laden. It is some- understand what is being said there. fact, because of other authorities, in- one who can gain his confidence. That And instead of symmetrical relation- cluding budget authority and personnel may well mean he has been an asso- ships, we now have small groups of a authorities and some culture of indi- ciate of bin Laden in the past, has en- dozen or a hundred or a thousand or so viduality by agencies, the Director of gaged in some of the activities we so against a nation the size of the United Central Intelligence has not been fully abhor. States of America. So our intelligence empowered. Today there is a sense within the in- community has been challenged to re- We take a step in this legislation to- telligence community we should not spond to this new reality. This legisla- wards giving the Director of Central hire people who have that kind of back- tion is going to accelerate that re- Intelligence greater authority and in a ground because they are potentially sponse. very significant area. We have a lim- unreliable but also because they bring Let me focus, in my limited time, on ited capability to eavesdrop on the a dirty background. three areas within this legislation that communication of potential adver- This legislation, through a sense-of- I think will be significantly beneficial. saries, including terrorists. Under the the-Congress statement, reverses that The first goes to the reality that we current structure, it is primarily the and says our priority goal in employing have had, in large part, out of this his- responsibility of the Federal Bureau of persons to assist in our antiterrorism tory of unease with dealing with clan- Investigation, which actually operates activity should be to acquire services destine information, an orientation to and targets our electronic surveillance, of persons who can be of greatest as- treat terrorist activities as crimes and as to which target will be listened to sistance to us in determining the plans put up yellow tape, secure the crime first if we cannot listen to everybody and intentions of the terrorists, even if scene, hold the information very close because we do not have, for instance, it means we might have to hire some- because we did not want to have it in- enough people who can understand the one with whom we would not person- fected so that the evidence could not be exotic language in which the commu- ally like to have a social or other rela- used at a subsequent trial that would nication is being spoken. tionship. lead to the conviction of the perpe- This legislation will establish the That is a statement of our commit- trator. In the course of that, we also fact it is the Director of Central Intel- ment to this intelligence community; shut off the ability to share informa- ligence who will decide what the stra- that we, the Congress, are prepared to tion which might allow us to antici- tegic priorities for the use of our elec- back them up when they take some of pate the future actions of those same tronic surveillance will be. So if the these high-risk undertakings and that perpetrators and interdict an act of Director of Central Intelligence is we will understand there is the risk of terrorism before it had occurred. aware we face a terrorist attack from a failure but it is better to risk failure We take some significant steps to specific terrorist organization which than to be cowered by the unwilling- overcome that orientation by the pro- speaks a specific language, those com- ness to engage in important but high- visions contained in this legislation munications will be given the priority risk ventures. which will require the sharing of crimi- for purposes of how we will use our So those are three illustrative provi- nal justice information with intel- available electronic surveillance capa- sions which are in the intelligence sec- ligence agencies. I underscore the word bility. tion of this legislation, which I think ‘‘require’’ because even as recently as The Director of Central Intelligence have the potential of the same impact today’s Washington Post, there is an will then also, at the back end of that on our capacity to rid the world of the article describing the legislation which process, have the primary responsi- scourge of terrorism as similar actions uses the term ‘‘the authority to share,’’ bility for determining how to dissemi- have so contributed to our ability to as if this were a permissive require- nate that information. The nightmare reduce the influence of organized crime ment. that exists, and will exist until we within this Nation. In fact, the legislation very explic- complete a full review of what hap- I urge the adoption of this conference itly makes it mandatory. I refer to pened on September 11, is we are going report. page 308 beginning at line 9 where it to find someplace a tape of a conversa- The PRESIDING OFFICER. Who states that the Attorney General or the tion we secured which will disclose yields time? head of any other Department or Agen- what would have been key information Mr. HATCH. Madam President, I cy of the Federal Government with law as to what was being prepared, what yield 5 minutes to the Senator from enforcement responsibilities shall plot was being matured which resulted Kansas. —shall—expeditiously disclose to the in the terror of September 11. The PRESIDING OFFICER. The Sen- Director of Central Intelligence pursu- These provisions are intended to ator from Kansas. ant to guidelines developed foreign in- prioritize, on the front end, what we Mr. BROWNBACK. Madam President, telligence acquired by an element of will gather information against and, on I thank my colleague, Senator HATCH the Department of Justice or any ele- the back end, who will be first in line of Utah, for giving me time to speak in ment of such Department or Agency, as to get the information that has come support of the bill. I want to particu- the case may be, in the course of a from that surveillance. larly direct attention to the immigra- criminal investigation. A third provision goes to the criti- tion provisions in the bill. We are closing that gap which has in cism that the intelligence community Last month, our Nation was attacked the past been a major source of limita- has become risk adverse; that we have by extremists who hoped to undermine tion and frustration to our ability to been reticent to take on the hardest our way of life and the liberties we predict and interdict future actions. targets because they are hard, because enjoy. These individuals and the groups Second, we are dealing with the issue they may result in failure and non- they represent want our country to re- of the empowerment of the Director of accomplishment of the mission. As coil in terror and capitulate to fear. Central Intelligence. We tend to think President Kennedy said as we started This we will not do. of the CIA as being the lead agency for our space program, we start this not We have before us today legislation our intelligence community. In fact, because it is easy but because it is hard that stands firm before those who that is not correct. If one looks at an and it will challenge us to our fullest. mean us harm. This antiterrorism organizational chart, across the top is One of the areas in which we have be- package, the product of an earnest bi- the Director of Central Intelligence. come risk adverse has been the area of partisan effort, is an intelligent and Under the Director of Central Intel- hiring foreign nationals to do work thorough response to the immediate se- ligence is a series of agencies, of which which it is very difficult for Americans curity needs of our Nation. I commend the CIA is one, which have operational to do, not because we are not smart, in particular the immigration provi- responsibility. capable people, but if we are going to sions of this legislation, which will If one looks at that chart, one as- hire someone or secure the services of strengthen our immigration laws to sumes the Director of Central Intel- someone who can get close to an omi- better combat terrorism.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11018 CONGRESSIONAL RECORD — SENATE October 25, 2001 My heartfelt gratitude is to my col- against the threat of terrorism we face There being no objection, the mate- leagues on the Immigration Sub- today. rial was ordered to be printed in the committee and to the committee’s I urge my colleagues to support the RECORD, as follows: leadership—Senator HATCH, Senator legislation and note as well we are con- SAME OLD FBI LEAHY, and others—for their dedication tinuing to refine further other poten- Behind the facade of cooperation following and diligence in crafting what I think tial areas where we can make changes the Sept. 11 attacks, less than amicable rela- is fine legislation. in our immigration laws to better be tions between New York Mayor Rudolph This antiterrorist package will en- able to catch those who seek to enter Giuliani and the FBI have further deterio- hance the ability of our consuls over- our country to do us harm. Senator rated. According to New York City sources, seas and our immigration officers at KENNEDY and I are working on bipar- the mayor has engaged in more than one tisan legislation to do just that. We shouting match with FBI Assistant Director home to intercept and remove both Barry Mawn. alien terrorists and those who support hope to introduce this next week. It’s the same old problem because it’s the them. This is a daunting task. I appreciate the opportunity to ad- same old FBI. Newly appointed, much ac- We had a hearing last week on trying dress my colleagues on this important claimed Director Robert Mueller makes lit- to intercept people coming into this legislation. I reserve the remainder of tle difference. The bureau refuses to share country who mean us harm, and it is our time, and I yield the floor. information with local police agencies. It difficult in the sense we have nearly 350 The PRESIDING OFFICER. The Sen- won’t permit security clearances for high million people a year, non-U.S. citi- ator from Vermont. local officials. Law enforcement officers zens, who enter this country, and we Mr. LEAHY. Madam President, I around the country say that attitude lent itself to catastrophe on Sept. 11 and could are looking for those few who mean us yield myself such time as I may need. I see the Senator from Wisconsin, so permit further disasters. harm. This is a difficult task. This leg- I am only going to take 2 or 3 minutes Last Friday in Washington, Mueller—ami- islation helps to make it easier. We are at this point. able and agreeable—sat down with big city looking for a needle in a haystack, and police chiefs and promised things will get A number of Senators have asked better. The chiefs doubt whether Mueller or this legislation helps us in finding that some of the areas where this changes. or gives us a bigger magnet to be able Tom Ridge, the new homeland security di- We had a separate, bipartisan, bi- rector, can change the bureau’s culture, de- to find it. cameral negotiation, and we shaped This legislation will capture not only scribed to me by one police chief as ‘‘elitist and changed the legislation as origi- and arrogant.’’ Efforts to enlist members of those individuals who commit acts of nally proposed by the Attorney Gen- Congress into pressing for reform find politi- terror but also those who enhance, en- eral and the administration. I will cians awed by the FBI mystique. able, and finance them. It does so speak at greater length as we go on. The FBI’s big national security section in through several forceful changes to our We improved security on the north- New York City long has grappled with the current immigration laws. Among New York Police Department. ‘‘the FBI’s at- ern border, the 4,000-mile wonderful titude has been that if you need to know, those changes is an expanded definition border between our country and Can- of terrorism, one that encompasses not we’ll tell you,’’ one New York police source ada, another democratic nation. The told me. That ‘‘need’’ never occurs, with the only the acts of terrorism but the net- State of the Presiding Officer borders FBI adamant against any local anti-ter- work of terrorism. Canada, as does mine. It is just a short rorism activity. The locals, in turn, com- This legislation will also permit the drive from the Canadian border. Many plain about the feds failing to follow impor- Attorney General to promptly take members of my wife’s family came tant leads. into custody and detain those aliens from Canada. We have always had his- Giuliani is not venting his outrage in this who pose a threat to the safety or secu- toric and economic ties with Canada. time of crisis, but sources report a high pri- vate decibel level by the mayor. The com- rity of this Nation. At the same time, Partly because we have taken so much it will provide the Secretary of State plaint to Mawn is that the NYPD is out of for granted, we have also shortchanged the loop, its senior officers not even granted with better information and better this relationship. We should look at security clearances. tools to identify terrorists and to deny the border for our sake and for the Such complaints are common across the them access to our country. sake of Canada. We have greatly im- country, but only a few police chiefs speak Perhaps most important of all, this proved security on the northern border publicly—notably Edward Norris of Balti- legislation will improve the flow of in- by adding better technology, more Cus- more (who complained in congressional tes- formation between the Immigration toms and INS agents. That helps. timony), Michael Chitwood of Portland, and Naturalization Service, the De- We added something the administra- Maine, and Dan Oates of Ann Arbor, Mich. partment of State, and the law enforce- Chitwood’s experience is most bizarre. He tion did not include—money laun- was infuriated to learn that the FBI knew of ment and intelligence communities. dering. I learned as a prosecutor—and a visit to Portland by two Sept. 11 hijackers This is important. What we have is sev- most Members know this—if you want but did not inform him. When his police pur- eral stovepipes of information, and we to learn something, follow the money. sued a witness of that visit, the FBI threat- need to be able to get those collected If you want to stop terrorism, one way ened to arrest the chief. ‘‘I ignored them,’’ to be able to stop the terrorists before is to cut off the money supply. Chitwood told me. Has cooperation with the they enter our land. Third, we have added programs to en- bureau improved? ‘‘Not a bit,’’ he said. Only This increased flow of information hance information sharing in coordina- Tuesday he learned from reading his local newspaper about a plane under federal sur- will allow those agencies tasked with tion with State and local law enforce- protecting our borders to better coordi- veillance parked at the Portland airport for ment, grants for local governments to seven weeks. nate and thereby thwart any terrorist respond to bioterrorism, to increase Oates is familiar with the FBI, having seeking to reach our shores. This is not payments to families of fallen fire- tried to work with the feds during 21 years to say this legislation is unmindful of fighters, police officers, and other pub- with the NYPD before retiring this year to innocent visitors or the lawful perma- lic safety officers. That is important. go to Ann Arbor. As a deputy chief who was nent residents of our country. To the Cooperation is necessary. The mayor commanding officer of NYPD intelligence, he contrary. These immigration provi- of New York City, Mayor Giuliani, describes the FBI as ‘‘obsessed with turf.’’ sions contain appropriate safeguards to Closing doors to police officers particu- called me saying the police commis- larly infuriates Oates. ‘‘The security clear- protect the liberties of persons whom sioner has justifiable concerns about ance issue is a tired old excuse that allows we want in this country. the previous lack of cooperation from the FBI not to share,’’ he told me. ‘‘They I am pleased to report this legisla- the Federal Government in their own should hand out 10,000 security clearances to tion is carefully crafted to combat ter- antiterrorism efforts, although New cops around the country.’’ Oates and other rorism without compromising the val- York City has one of the best police chiefs believe Sept. 11 might have ues or the economy of the United antiterrorist units in the country. The been averted had the FBI alerted local police States or the values that guide our im- mayor of Baltimore has called, as have agencies about a Minnesota flight school’s migration laws. This legislation rep- report of an Arab who wanted instructions other mayors. for steering a big jet but not for landing or resents a profound and essential im- I ask unanimous consent to have taking off. provement in our immigration laws. printed in the RECORD the Washington Police chiefs would open the FBI to the We need these changes if our immigra- Post op-ed piece by Robert D. Novak in same probing of decisions and actions that tion laws are to be an effective defense today’s paper entitled ‘‘Same Old FBI.’’ they routinely perform after the fact. They

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11019 also would like the same rules for the bureau late. We will do that, but we will do it events to be sure we are not rewarding that govern most of the nation’s police de- protecting the foundations of our Con- these terrorists and weakening our- partments. In the FBI, nobody takes the fall stitution and freedom which made us selves by giving up the cherished free- for blundering. such a great democracy in the first doms that they seek to destroy. A promise that things will change in the The second caution I issued was a FBI was implicit in Director Mueller’s re- place. marks to city police chiefs last Friday. None of us have any idea how long we warning against the mistreatment of Philadelphia Police Commissioner John will be in the Senate. I hope my col- Arab Americans, Muslim Americans, Timoney, another NYPD veteran who is leagues are willing to stay here as long South Asians, or others in this coun- more cautious in his criticism of the feds as they can. When I leave the Senate, try. Already, one day after the attacks, than his former colleague Oates, sounded as I will, I want to leave knowing I we were hearing news reports that mis- skeptical after the meeting. ‘‘I’m hopeful,’’ have done my best to protect our free- guided anger against people of these he told me, but he would make no pre- doms. I have said over and over again, backgrounds had led to harassment, vi- dictions. olence, and even death. What he hopes for is the safety of the the Senate is the conscience of the Na- tion. As much as any piece of legisla- I suppose I was reacting instinctively American people. The police chiefs of Amer- to the unfolding events in the spirit of ica want a top-to-bottom cleaning of the FBI tion, this has to reflect our conscience. that will require leadership from the Oval I reserve the remainder of my time. the Irish statesman John Philpot Office. If George W. Bush doubts the ur- The PRESIDING OFFICER. The Sen- Curran, who said: gency, he should talk to Rudy Giulianai. ator from Wisconsin. The condition upon which God hath given Mr. LEAHY. We have to dramatically Mr. FEINGOLD. Madam President, I liberty to man is eternal vigilance. increase that cooperation or stop the have asked for this time to speak about During those first few hours after the noncooperation and start cooperating. the antiterrorism bill, H.R. 3162. As we attacks, I kept remembering a sen- We have added humanitarian relief to address this bill, of course, we are espe- tence from a case I had studied in law immigrant victims of the September 11 cially mindful of the terrible events of school. Not surprisingly, I didn’t re- terrorist attacks. A lot of immigrants September 11 and beyond, which led to member which case it was, who wrote became victims of that attack. They this bill’s proposal and its quick con- the opinion, or what it was about, but suddenly became orphans or were sideration in the Congress. I did remember these words: spouses of people killed. This has been a tragic time in our While the Constitution protects against in- vasions of individual rights, it is not a sui- We added help to the FBI to hire country. Before I discuss this bill, let cide pact. translators. I shudder to think how me first pause to remember, through I took these words as a challenge to much information was available before one small story, how September 11 has my concerns about civil liberties at September 11 that was never translated irrevocably changed so many lives. In a such a momentous time in our history; that might have prevented this. letter to the Washington Post recently, that we must be careful to not take We have added more comprehensive a man, as he went jogging near the civil liberties so literally that we allow victims assistance; measures to fight Pentagon, came across the makeshift ourselves to be destroyed. cyber-crime; measures to fight ter- memorial built for those who lost their But upon reviewing the case itself, rorism against mass transportation lives. He slowed to a walk as he took in Kennedy v. Mendoza-Martinez, I found systems; important measures to use the sight before him, the red, white, that Justice Arthur Goldberg had made technology to make our borders more and blue flowers covering the struc- this statement but then ruled in favor secure. ture. Off to the side, was a smaller me- of the civil liberties position in the Last, Madam President, and I cannot morial with a card that read: Happy case, which was about draft evasion. He emphasize this enough, the Senate birthday, Mommy. Although you died elaborated: should never give a blank check to our and are no longer with me, I feel as if It is fundamental that the great powers of law enforcement or to any President or I still have you in my life. I think Congress to conduct war and to regulate the Attorney General of either party. We about you every day. Nation’s foreign relations are subject to the have to protect the liberties of our peo- After reading the card, the man felt constitutional requirements of due process. ple. Who watches the watchers? We as if he were ‘‘drowning in the names of The imperative necessity for safeguarding watch. dead mothers, fathers, sons, and daugh- these rights to procedural due process under the gravest of emergencies has existed I said earlier, as Benjamin Franklin ters.’’ The author of this letter shared throughout our constitutional history, for it once said, a nation that would trade its a moment in his own life that so many is then, under the pressing exigencies of cri- liberties for security deserves neither. of us have had, the moment where tele- sis, that there is the greatest temptation to We can have our security and we can vised pictures of the destruction are dispense with fundamental constitutional protect our liberties but only if we made painfully real to us. You read a guarantees which, it is feared, will inhibit have adequate checks and balances. card, see the anguished face of a loved governmental action. People who are professional law en- one, and then, suddenly, we feel the The Justice continued: forcement say give us the checks and enormity of what has happened to so The Constitution of the United States is a balances. We give enormous power to many American families and to all of law for rulers and people, equally in war and Federal, State, and local law enforce- us as a people. peace, and covers with the shield of its pro- tection all classes of men, at all times, and ment, but with that there have to be We also had our initial reactions to under all circumstances . . . In no other way checks and balances. We have all seen the attack. My first and most powerful can we transmit to posterity unimpaired the times where if law enforcement is un- emotion was a solemn resolve to stop blessings of liberty, consecrated by the sac- checked, innocent people can be hurt. these terrorists. That remains my prin- rifices of the Revolution. I was a prosecutor for 8 years, and I cipal reaction to these events. But I I have approached the events of the know we have to have checks and bal- also quickly realized, as many did, that past month and my role in proposing ances. We have done that. You cannot two cautions were necessary. I raised and reviewing legislation relating to it simply have a case and say: Do this, we them on the Senate floor the day after in this spirit. I believe we must, we will set aside this pesky Constitution the attacks. must, redouble our vigilance. We must for the moment. The first caution was that we must redouble our vigilance to ensure our se- We cannot do that. We built in continue to respect our Constitution curity and to prevent further acts of checks and balances that were not in and protect our civil liberties in the terror. But we must also redouble our the original proposal. Ultimately, that wake of the attacks. vigilance to preserve our values and will be the best thing for the country. As the chairman of the Constitution the basic rights that make us who we We will give law enforcement trans- subcommittee of the Judiciary Com- are. lators, tools, computers, and other mittee I recognize fully that this is a The Founders who wrote our Con- things necessary to help them. We different world, with different tech- stitution and Bill of Rights exercised stand united as a nation. We know the nologies, different issues, and different that vigilance even though they had re- only way to protect ourselves is to stop threats. cently fought and won the Revolu- the terrorists before they strike. Going Yet we must examine every item tionary War. They did not live in com- to the funerals after the strike is too that is proposed in response to these fortable and easy times of hypothetical

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11020 CONGRESSIONAL RECORD — SENATE October 25, 2001 enemies. They wrote a Constitution of be told, and an official acknowledg- East and South Asia do. But as the limited powers and an explicit Bill of ment as well with regard to what had great jurist Learned Hand said in a Rights to protect liberty in times of happened to them. I hope, that we will speech in New York’s Central Park war, as well as in times of peace. move to pass this important legislation during World War II: Of course, there have been periods in early next year. We must deal with our The spirit of liberty is the spirit which our nation’s history when civil lib- nation’s past, even as we move to en- seeks to understand the minds of other men erties have taken a back seat to what sure our nation’s future. and women; the spirit of liberty is the spirit appeared at the time to be the legiti- (Mrs. STABENOW assumed the which weighs their interests alongside its mate exigencies of war. Our national chair.) own without bias. . . . consciousness still bears the stain and Mr. FEINGOLD. Now some may say, Was it not at least partially bias, the scars of those events: The Alien indeed we may hope, that we have however, when passengers on a North- and Sedition Acts, the suspension of come a long way since those days of in- west Airlines flight in Minneapolis a habeas corpus during the Civil War, the fringements on civil liberties. But month ago insisted that Northwest re- internment of Japanese-Americans, there is ample reason for concern. And move from the plane three Arab men German-Americans, and Italian-Ameri- I have been troubled in the past 6 who had cleared security? cans during World War II, the black- weeks by the potential loss of commit- Of course, given the enormous anx- listing of supposed communist sympa- ment in the Congress and the country iety and fears generated by the events of September 11, it would not have been thizers during the McCarthy era, and to traditional civil liberties. difficult to anticipate some of these re- the surveillance and harassment of As it seeks to combat terrorism, the actions, both by our government and antiwar protesters, including Dr. Mar- Justice Department is making extraor- some of our people. Some have said tin Luther King Jr., during the Viet- dinary use of its power to arrest and rather cavalierly that in these difficult nam War. We must not allow these detain individuals, jailing hundreds of times we must accept some reduction pieces of our past to become prologue. people on immigration violations and in our civil liberties in order to be se- Even in our great land, wartime has arresting more than a dozen ‘‘material sometimes brought us the greatest cure. witnesses’’ not charged with any crime. Of course, there is no doubt that if we tests of our Bill of Rights. For exam- Although the Government has used lived in a police state, it would be easi- ple, during the Civil War, the Govern- these authorities before, it has not er to catch terrorists. If we lived in a ment arrested some 13,000 civilians, im- done so on such a broad scale. Judging country that allowed the police to plementing a system akin to martial from Government announcements, the search your home at any time for any law. President Lincoln issued a procla- Government has not brought any reason; if we lived in a country that al- mation ordering the arrest and mili- criminal charges related to the attacks lowed the government to open your tary trial of any persons ‘‘discouraging with regard to the overwhelming ma- mail, eavesdrop on your phone con- volunteer enlistments, or resisting mi- jority of these detainees. versations, or intercept your email litia drafts.’’ Wisconsin provided one of For example, the FBI arrested as a communications; if we lived in a coun- the first challenges of this order. Draft material witness the San Antonio radi- try that allowed the government to protests rose up in Milwaukee and She- ologist Albader Al-Hazmi, who has a hold people in jail indefinitely based on boygan. And an anti-draft riot broke name like two of the hijackers, and what they write or think, or based on out among Germans and who tried to book a flight to San Diego mere suspicion that they are up to no Luxembourgers in Port Washington, for a medical conference. According to good, then the government would no WI. When the government arrested one his lawyer, the Government held Al- doubt discover and arrest more terror- of the leaders of the riot, his attorney Hazmi incommunicado after his arrest, ists. sought a writ of habeas corpus. His and it took 6 days for lawyers to get But that probably would not be a military captors said that the Presi- access to him. After the FBI released country in which we would want to dent had abolished the writ. The Wis- him, his lawyer said: live. And that would not be a country consin Supreme Court was among the This is a good lesson about how frail our for which we could, in good conscience, first to rule that the President had ex- processes are. It’s how we treat people in dif- ask our young people to fight and die. ceeded his authority. ficult times like these that is the true test of In short, that would not be America. In 1917, the Postmaster General re- the democracy and civil liberties that we Preserving our freedom is one of the voked the mailing privileges of the brag so much about throughout the world. main reasons we are now engaged in newspaper the Milwaukee Leader be- I agree with those statements. this new war on terrorism. We will lose cause he felt that some of its articles Now, it so happens—and I know the that war without firing a shot if we impeded the war effort and the draft. Presiding Officer is aware of that be- sacrifice the liberties of the American Articles called the President an aris- cause she has been very helpful on this people. tocrat and called the draft oppressive. issue—that since early 1999, I have been That is why I found the antiterrorism Over dissents by Justices Brandeis and working on another bill that is poign- bill originally proposed by Attorney Holmes, the Supreme Court upheld the antly relevant to recent events: legisla- General Ashcroft and President Bush action. tion to prohibit racial profiling, espe- to be troubling. We all know during World War II, cially the practice of targeting pedes- The administration’s proposed bill President Roosevelt signed orders to trians or drivers for stops and searches contained vast new powers for law en- incarcerate more than 110,000 people of based on the color of their skin. Before forcement, some seemingly drafted in Japanese origin, as well as some rough- September 11, people spoke of the issue haste and others that came from the ly 11,000 of German origin and 3,000 of mostly in the context of African-Amer- FBI’s wish list that Congress has re- Italian origin. icans and Latino-Americans who had jected in the past. You may remember Earlier this year, I introduced legis- been profiled. But after September 11, that the Attorney General announced lation to set up a commission to review the issue has taken on a new context his intention to introduce a bill shortly the wartime treatment of Germans, and a new urgency. after the September 11 attacks. He pro- Italians, and other Europeans during Even as America addresses the de- vided the text of the bill the following that period. That bill came out of manding security challenges before us, Wednesday, and urged Congress to heartfelt meetings in which constitu- we must strive mightily also to guard enact it by the end of the week. That ents told me their stories. They were our values and basic rights. We must was plainly impossible, but the pres- German-Americans, who came to me guard against racism and ethnic dis- sure to move on this bill quickly, with- with some trepidation. They had wait- crimination against people of Arab and out deliberation and debate, has been ed 50 years to raise the issue with a South Asian origin and those who are relentless ever since. member of Congress. They did not want Muslim. It is one thing to shortcut the legis- compensation. But they had seen the We who do not have Arabic names or lative process in order to get Federal Government’s commission on the war- do not wear turbans or headscarves financial aid to the cities hit by ter- time internment of people of Japanese may not feel the weight of these times rorism. We did that, and no one com- origin, and they wanted their story to as much as Americans from the Middle plained that we moved too quickly. It

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11021 is quite another to press for the enact- permit—prior to conviction—the freez- peek’’ search, they can come in your ment of sweeping new powers for law ing of assets entirely unrelated to an house, look around, and leave, and may enforcement that directly affect the alleged crime. The Justice Department never have to tell you that ever hap- civil liberties of the American people has wanted this authority for years, pened. without due deliberation by the peo- and Congress has never been willing to That bothers me. I bet it bothers ples’ elected representatives. give it. For one thing, it touches on the most Americans. Fortunately, cooler heads prevailed right to counsel, since assets that are Another very troubling provision has at least to some extent, and while this frozen cannot be used to pay a lawyer. to do with the effort to combat com- bill has been on a fast track, there has The courts have almost uniformly re- puter crime. I want the effort to stop been time to make some changes and jected efforts to restrain assets before computer crime. The bill allows law reach agreement on a bill that is less conviction unless they are assets enforcement to monitor a computer objectionable than the bill that the ad- gained in the alleged criminal enter- with the permission of its owner or op- ministration originally proposed. prise. This proposal, in my view, was erator, without the need to get a war- As I will discuss in a moment, I have simply an effort on the part of the De- rant or show probable cause. concluded that this bill still does not partment to take advantage of the I want to tell you, Madam President, strike the right balance between em- emergency situation and get something I have been at pains to point out things powering law enforcement and pro- that they’ve wanted to get for a long I can support in this bill. I think that tecting civil liberties. But that does time. power is fine in a case of a so-called de- not mean that I oppose everything in As I have indicated, the foreign wire- nial of service attack. What is that? the bill. By no means. Indeed many of tap and criminal forfeiture provisions That is plain old computer hacking. its provisions are entirely reasonable, were dropped from the bill that we con- You bet. We need to be able to get at and I hope they will help law enforce- sidered in the Senate. Other provisions that kind of crime. ment more effectively counter the were rewritten based on objections Computer owners should be able to threat of terrorism. that I and others raised about them. give the police permission to monitor For example, it is entirely appro- For example, the original bill con- communications coming from what priate that with a warrant the FBI be tained sweeping permission for the At- amounts to a trespasser on the com- able to seize voice mail messages as torney General to get copies of edu- puter, a real trespasser. But we tried to point out as calmly well as tap a phone. It is also reason- cational records without a court order. and as constructively as possible on able, even necessary, to update the fed- The final bill requires a court order the floor that, as drafted in this bill, eral criminal offense relating to pos- and a certification by the Attorney the provision might permit an em- session and use of biological weapons. General that he has reason to believe ployer to give permission to the police It made sense to make sure that phone that the records contain information to monitor the e-mails of an employee conversations carried over cables that is relevant to an investigation of who has used her computer at work to would not have more protection from terrorism. shop for Christmas gifts. She violated So the bill before us is certainly im- surveillance than conversations carried the rules of her employer regarding proved from the bill that the adminis- over phone lines. And it made sense to personal use of the computer. Or some- tration sent to us on September 19, and stiffen penalties and lengthen or elimi- one who uses a computer at a library wanted us to pass on September 21. But nate statutes of limitation for certain or at a school and happens to go to a terrorist crimes. again, in my judgement, it does not gambling or pornography site in viola- There are other non-controversial strike the right balance between em- tion of the Internet use policies of the provisions in the bill that I support— powering law enforcement and pro- library or the university might also be those to assist the victims of crime, to tecting constitutional freedoms. Let subjected to Government surveil- streamline the application process for me take a moment to discuss some of lance—without probable cause and public safety officers benefits and in- the shortcomings of the bill. without any time limit at all. With First, the bill contains some very sig- crease those benefits, to provide more this one provision, fourth amendment nificant changes in criminal procedure funds to strengthen immigration con- protections are potentially eliminated trols at our Northern borders—some- that will apply to every federal crimi- for a broad spectrum of electronic com- thing that the Presiding Officer and I nal investigation in this country, not munications. understand—to expedite the hiring of just those involving terrorism. One I am also very troubled by the broad translators at the FBI, and many other provision would greatly expand the cir- expansion of Government power under such provisions. cumstances in which law enforcement the Foreign Intelligence Surveillance In the end, however, my focus on this agencies can search homes and offices Act, known as FISA. When Congress bill, as Chair of the Constitution Sub- without notifying the owner prior to passed FISA in 1978, it granted to the committee of the Judiciary Committee the search. The longstanding practice executive branch the power to conduct in the Senate, was on those provisions under the fourth amendment of serving surveillance in foreign intelligence in- that implicate our constitutional free- a warrant prior to executing a search vestigations without having to meet doms. And it was in reviewing those could be easily avoided in virtually the rigorous probable cause standard provisions that I came to feel that the every case, because the government under the fourth amendment that is re- administration’s demand for haste was would simply have to show that it had quired for criminal investigations. inappropriate; indeed, it was dan- ‘‘reasonable cause to believe’’ that pro- There is a lower threshold for obtain- gerous. Our process in the Senate, as viding notice ‘may’ seriously jeop- ing a wiretap order from the FISA truncated as it was, did lead to the ardize an investigation.’’ This is a sig- court because the FBI is not inves- elimination or significant rewriting of nificant infringement on personal lib- tigating a crime, it is investigating a number of audacious proposals that I erty. foreign intelligence activities. But the and many other members found objec- Notice is a key element of fourth law currently requires that intel- tionable. amendment protections. It allows a ligence gathering be the primary pur- For example, the original adminis- person to point out mistakes in a war- pose of the investigation in order for tration proposal contained a provision rant and to make sure that a search is this much lower standard to apply. that would have allowed the use in U.S. limited to the terms of a warrant. Just The bill changes that requirement. criminal proceedings against U.S. citi- think about the possibility of the po- The Government now will only have to zens of information obtained by foreign lice showing up at your door with a show that intelligence is a ‘‘significant law enforcement agencies in wiretaps warrant to search your house. You look purpose’’ of the investigation. So even that would be illegal in this country. at the warrant and say, ‘‘yes, that’s my if the primary purpose is a criminal in- In other words, evidence obtained in an address, but the name on the warrant vestigation, the heightened protections unconstitutional search overseas was isn’t me.’’ And the police realize a mis- of the fourth amendment will not to be allowed in a U.S. court. take has been made and go away. If apply. Another provision would have broad- you’re not home, and the police have It seems obvious that with this lower ened the criminal forfeiture laws to received permission to do a ‘‘sneak and standard, the FBI will be able to try to

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11022 CONGRESSIONAL RECORD — SENATE October 25, 2001 use FISA as much as it can. And, of tions I expressed on the day after the tion and deportation of people engag- course, with terrorism investigations, attacks. These are two very troubling ing in innocent associational activity. that won’t be difficult because the ter- provisions dealing with our immigra- It would allow for the detention and rorists are apparently sponsored or at tion laws in the bill. deportation of individuals who provide least supported by foreign govern- First, the administration’s original lawful assistance to groups that are ments. So this means the fourth proposal would have granted the Attor- not even designated by the Secretary amendment rights will be significantly ney General extraordinary powers to of State as terrorist organizations but curtailed in many investigations of ter- detain immigrants indefinitely, includ- instead have engaged in something rorist acts. ing legal permanent residents. The At- vaguely defined as ‘‘terrorist activity’’ The significance of the breakdown of torney General could do so based on sometime in the past. To avoid depor- the distinction between intelligence mere suspicion that the person is en- tation, the immigrant is required to and criminal investigations becomes gaged in terrorism. I believe the ad- prove a negative: That he or she did apparent when you see other expan- ministration was really overreaching not know, and should not have known, sions of Government power under FISA here. I am pleased that our distin- that the assistance would further ter- in this bill. guished chairman of the Judiciary rorist activity. Another provision that troubles me a Committee, Senator LEAHY, was able I think this language creates a very lot is one that permits the Govern- to negotiate some protections. The bill real risk that truly innocent individ- ment, under FISA, to compel the pro- now requires the Attorney General to uals could be deported for innocent as- duction of records from any business charge the immigrant within 7 days sociations with humanitarian or polit- regarding any person if that informa- with a criminal offense or immigration ical groups that the Government later tion is sought in connection with an in- violation. In the event the Attorney chooses to regard as terrorist organiza- vestigation of terrorism or espionage. General does not charge the immi- tions. Groups that could fit this defini- I want to be clear here, as well, we grant, the immigrant must be released. tion could include Operation Rescue, are not talking about travel records di- This protection is an improvement, Greenpeace, and even the Northern Al- rectly pertaining to a terrorist suspect, but the provision remains fundamen- liance fighting the Taliban in northern which we can all see obviously can be tally flawed. Even with this 7-day Afghanistan. So this really amounts to highly relevant to an investigation of a charging requirement, the bill would a provision of ‘‘guilt by association,’’ terrorist plot. FISA already gives the nevertheless continue to permit the in- which I think violates the first amend- FBI the power to get airline, train, definite detention in two situations. ment. hotel, car rental, and other records of a First, immigrants who win their depor- Speaking of the first amendment, suspect. tation cases may be continued to be under this bill, a lawful permanent But this bill does much more. Under held if the Attorney General continues resident who makes a controversial this bill, the Government can compel to have suspicions. Second, this provi- speech that the Government deems to the disclosure of the personal records sion creates a deep unfairness to immi- be supportive of terrorism might be of anyone—perhaps someone who grants who are found not to be deport- barred from returning to his or her worked with, or lived next door to, or able for terrorism but have an immi- family after taking a trip abroad. went to school with, or sat on an air- gration status violation, such as over- Despite assurances from the adminis- plane with, or had been seen in the staying a visa. If the immigration tration at various points in this proc- judge finds that they are eligible for re- company of, or whose phone number ess that these provisions that impli- lief from deportation, and therefore was called by—the target of the inves- cate associational activity would be can stay in the country—for example, tigation. improved, there have been no changes Under this new provision, all busi- if they have longstanding family ties in the bill on these points since it ness records can be compelled, includ- here—nonetheless, the Attorney Gen- passed the Senate. Here is where my caution in the ing those containing sensitive personal eral can continue to hold them indefi- nitely. aftermath of the terrorist attacks and information, such as medical records I am pleased that the final version of my concern about the reach of the from hospitals or doctors, or edu- the legislation includes a few improve- antiterrorism bill come together. To cational records, or records of what ments over the bill that passed the the extent that the expansion of new books somebody has taken out from Senate. In particular, the bill would re- immigration powers that the bill the library. We are not talking about quire the Attorney General to review grants the Attorney General are sub- terrorist suspects, we are talking about the detention decision every 6 months. ject to abuse, who do we think is most people who just may have come into And it would only allow the Attorney likely to bear the brunt of that abuse? some kind of casual contact with the General or the Deputy Attorney Gen- It probably won’t be immigrants from person in that situation. This is an eral—not lower level officials—to make Ireland. It probably won’t be immi- enormous expansion of authority under that determination. grants from El Salvador or Nicaragua a law that provides only minimal judi- While I am pleased these provisions or immigrants from Haiti or Africa. cial supervision. are included in the bill, I believe it still Most likely it will be immigrants from Under this provision, the Govern- falls short of meeting even basic con- Arab, Muslim and South Asian coun- ment can apparently go on a fishing ex- stitutional standards of due process tries. pedition and collect information on and fairness. In the wake of these terrible events, virtually anyone. All it has to allege, The bill continues to allow the Attor- our Government has been given vast in order to get an order for these ney General to detain persons based on new powers, and they may fall most records from the court, is that the in- mere suspicion. Our system normally heavily on a minority of our popu- formation is sought for an investiga- requires higher standards of proof for a lation who already feel particularly, tion of international terrorism or clan- deprivation of liberty. For example, de- acutely the pain of this disaster. destine intelligence gathering. That is portation proceedings themselves are Concerns of this kind have been it. They just have to say that. On that subject to a clear and convincing evi- raised with the administration. Sup- minimal showing, in an ex parte appli- dence standard. And, of course, crimi- porters of this bill have just told us: cation to a secret court, with no show- nal convictions require proof beyond a Don’t worry, the FBI would never do ing even that the information is rel- reasonable doubt. The bill also con- that. I call on the Attorney General evant to the investigation, the Govern- tinues to deny detained persons a trial and the Justice Department to ensure ment can lawfully compel a doctor or a or a hearing where the Government that my fears are not borne out. hospital to release medical records or a would be required to prove that that The antiterrorism bill we consider in library to release circulation records. person is, in fact, engaged in terrorist the Senate today, of course, highlights This is truly a breathtaking expansion activity. I think this is unjust and in- the march of technology and how that of police power. consistent with the values of our sys- march cuts both for and against per- Let me turn to a final area of real tem of justice that we hold dearly. sonal liberty. But Justice Brandeis concern about this legislation, which I Another provision in the bill that foresaw some of the future in a 1928 dis- think brings us full circle to the cau- deeply troubles me allows the deten- sent when he wrote:

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11023 The progress of science in furnishing the The Senator from Utah. forcement people, within the con- Government with means of espionage is not Mr. HATCH. I rise to address briefly straints of the Constitution, have the likely to stop with wire-tapping. Ways may a couple of the points made by the dis- optimum law enforcement tools they some day be developed by which the Govern- tinguished Senator from Wisconsin. need to do the job. ment, without removing papers from secret First, what he called a ‘‘sneak and drawers, can reproduce them in court, and by As the past few weeks have made which it will be enabled to expose to a jury peek’’ search warrant, these warrants clear, these terrorists still have a gun the most intimate occurrences of the home. are already used throughout the United pointed at the heads of all the Amer- . . . Can it be that the Constitution affords States, throughout our whole country. ican people. Under such circumstances, no protection against such invasions of indi- The bill simply codifies and clarifies it is our sworn duty to do everything in vidual security? the practice making certain that only our power, within the bounds of the We must grant law enforcement the a Federal court, not an agent or pros- Constitution, to protect and defend our tools that it needs to stop this terrible ecutor, can authorize such a warrant. people. That is what this bill does. threats, but we must give them only Let me be clear. Courts already allow The Senator from Wisconsin worries those extraordinary tools that they warrants under our fourth amendment. about the ‘‘possible’’ loss of civil lib- need and that relate specifically to the It is totally constitutional. It has been erties. That is laudable. But I am more task at hand. held so almost from the beginning of concerned about the actual loss of the In the play, ‘‘A Man for All Seasons,’’ this country; some will say from the thousands of lives that have been lost Sir Thomas More questions the bound- beginning of this country. Together and the potential of other lives that er Roper whether he would level the with Senator LEAHY, we carefully may be lost because we don’t give law forest of English laws to punish the drafted a provision that standardizes enforcement the tools they need. Devil. ‘‘What would you do?’’ More this widely accepted practice. This bill protects us, to the extent asks, ‘‘Cut a great road through the Second, to respond to the suggestion that we possibly can, against further law to get after the Devil?’’ Roper af- that the legislation is not properly attacks such as occurred on September firms, ‘‘I’d cut down every law in Eng- mindful of our constitutional lib- 11 and many, many other potential at- land to do that.’’ To which More re- erties—my friend from Wisconsin talks tacks as well. plies: theoretically about maybe the loss of I think most people in this country And when the last law was down, and the some civil liberties—I would like to would be outraged to know that var- Devil turned round on you—where would you talk concretely about the loss of lib- ious agencies of Government, the intel- hide, Roper, the laws all being flat? This erty of almost 6,000 people because of ligence community, and law enforce- country’s planted thick with laws from coast the terrorist acts on September 11. I ment community, under current law— to coast . . . and if you cut them down . . . am a little bit more concerned right until this bill is passed—cannot ex- d’you really think you could stand upright now about their loss of life. I am even change information that might help in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own more concerned now that they have interdict and stop terrorism. People safety’s sake. lost their lives that thousands of other are outraged when they hear this. And We must maintain our vigilance to Americans don’t lose their lives be- they ought to be. The fact is that that is the situation. preserve our laws and our basic rights. cause we fail to act and fail to give law I know the heads of the Criminal Divi- We in this body have a duty to analyze, enforcement the tools that are essen- sion of the Justice Department have to test, to weigh new laws that the tial. said that: Unless we can share this in- zealous and often sincere advocates of It is a nice thing to talk about the- formation, we cannot pick up the peo- security would suggest to us. That is ory. But we have to talk about reality. ple who are terrorists, whom we need what I have tried to do with the anti- We have written this bill so the con- to stop, in time to stop them. I think terrorism bill, and that is why I will stitutional realities are that the Con- they would be outraged to know that, vote against this bill when the roll is stitution is not infringed upon and under title III, you cannot electroni- called. civil liberties are not infringed upon Protecting the safety of the Amer- except to the extent that the Constitu- cally surveil a terrorist unless there is ican people is a solemn duty of the tion permits law enforcement to cor- some underlying criminal predicate. In Congress. We must work tirelessly to rect difficulties. many cases, there is no underlying prevent more tragedies like the dev- Yes, I think we must protect the criminal predicate, so you can’t do to astating attacks of September 11. We Constitution, and that has been at the terrorists what we can do for health must prevent more children from los- top of my list all through my 25 years care fraud, or for sexual exploitation of ing their mothers, more wives from los- in the Congress. This bill does just children, or for the Mafia, or for drug ing their husbands, and more fire- that. Nothing in this bill undermines dealers. fighters from losing their heroic col- constitutional liberty. Nothing in this People would be amazed to know we leagues. But the Congress will fulfill bill comes remotely close to the Alien treat terrorism with kid gloves in the its duty only when it protects both the and Sedition Act, which, of course, was current criminal code. This bill stops American people and the freedoms at held to be unconstitutional, or the in- that. I think most people would be the foundation of American society. ternment of Japanese prisoners of war, amazed to know that pen register trap- So let us preserve our heritage of which was a disgrace—there is no ques- and-trace devices are not permitted basic rights. Let us practice as well as tion about it, but at that point it was against terrorists under provisions of preach that liberty, and let us fight to held to be constitutional—or the other the law today. You can’t get the num- maintain that freedom that we call outrages that have occurred in the past bers called out of the phone and you America. that were mentioned by the distin- can’t get the numbers called into the Madam President, I reserve the re- guished Senator from Wisconsin. phone. That is what that means. This mainder of my time. The tools we are promoting in this bill remedies that so we can get these The PRESIDING OFFICER. Who legislation have been carefully crafted numbers and do what has to be done. yields time? to protect civil liberties. In addition to I think most people are shocked to Mr. REID. Madam President, on be- protecting civil liberties, give law en- find out that you can’t electronically half of Senator LEAHY, I yield 10 min- forcement the tools they need so we, to surveil the terrorists. You have to go utes to the Senator from North Da- the extent we possibly can, will be able after the phone, and then you have to kota. to protect our citizens from events and get a warrant in every jurisdiction Mr. HATCH. May I make a few com- actions such as happened on September where that phone shows up. Terrorists ments before? 11 of this year. don’t pay any attention to those anti- Mr. REID. When the Senator from Thousands of Americans died that quated laws. They just buy 10 cell Utah finishes his remarks, I ask that day, thousands. That is real. We have phones, talk for a while, and throw it the Senator from North Dakota be rec- been told there may be some other ac- out the window. We have to be able to ognized for 10 minutes. tions taken by terrorists. That may be track terrorists. Under current law, we The PRESIDING OFFICER. Without real. To the extent that may be real, cannot do that with the efficiency that objection, it is so ordered. we sure want to make sure our law en- needs to be used here. I don’t see any

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11024 CONGRESSIONAL RECORD — SENATE October 25, 2001 civil liberties violated there, but I see ate bill. It was a worthwhile provision some of its resources—and it appears some of them protected. I think of the that I think we need to include later, that 10 percent of the resources of civil liberties of those approximately since we can’t do it on this bill at this OFAC is devoted to chasing little old 6,000 people who lost their lives, and point. I will support him in every way ladies in tennis shoes from Illinois who potentially many others if we don’t possible to get this done in the future. join a bicycle club from Canada and go give law enforcement the tools they I commend the Senator for bringing bicycling in Cuba and 15 months later need to do the job. That is what this this to the attention of this body be- get a letter from the Treasury Depart- bill does. cause I have to say the House abso- ment that they have a $9,500 fine. That I will have more to say, perhaps, on lutely would not permit us to put that is one example of a retired teacher this later. I wanted to make these par- in the bill. from Illinois. OFAC is chasing retired ticular points. I am happy to retain the Mr. DORGAN. I inquire of the Sen- folks who go on a bicycling trip to remainder of my time. ator from Utah, what possibly could be Cuba with a Canadian bicycling Club, The PRESIDING OFFICER. The Sen- their motive to not want this in the and she was fined $9,500. I talked to her ator from North Dakota is recognized. antiterrorism bill? and others who have been fined. Mr. WELLSTONE. I ask unanimous Mr. HATCH. I think it came down to There was a $55,000 fine for someone consent that I may follow the Senator a jurisdictional argument. That is my who was with some friends in the Cay- from North Dakota. opinion. We understand that around man Islands and they decided to go to The PRESIDING OFFICER. Without here, but we are trying to solve ter- Cuba for the weekend. This guy is won- objection, it is so ordered. rorism now. The Senator’s point is a dering what on Earth has happened. He Mr. DORGAN. I understand we are very good point. My main reason for was not supposed to travel to Cuba, but under a time agreement and I am allot- interrupting him at this point is to he didn’t know it. OFAC is supposed to ted 10 minutes; is that correct? commend him and tell him I will do ev- be tracking terrorists, but they are The PRESIDING OFFICER. The Sen- erything in my power to get that chasing retired schoolteachers from Il- ator is correct. passed. I think it is critical that the linois for taking a bicycling trip in Mr. DORGAN. Madam President, the other 15 percent be made mandatory, Cuba. legislation that is on the floor is legis- that they have to comply, because Let’s stop this foolishness and track lation I will vote for and support. I most of the airlines comply on a vol- the trail of terrorists. It doesn’t make think it advances our country’s inter- untary basis. sense to be doing what OFAC has been ests in dealing with the issue of ter- I am sorry to interrupt the Senator. doing. First of all, it is embarrassing. I rorism. But I don’t want to talk about I reserve my time. understand the restrictions on travel, what is in the bill; I want to talk about Mr. DORGAN. Madam President, I which we should change and we will something that is not now in the bill appreciate the comments of the Sen- change, but should we be using 10 per- and should be. I want to ask the ques- ator from Utah. It is not his fault. I un- cent of the assets of OFAC to track tion, Why? derstand he strongly supports this. I these people down and levy civil fines I came to the floor an hour ago and kind of felt blind-sided an hour ago at a time when terrorists are designing was surprised to find out that some- when I was told this wasn’t in the bill approaches to kill Americans? What on thing about which I care very much, we are discussing because we had Earth is going on here? something agreed to in the Senate, is cleared it. Apparently, some folks from I say to Treasury and OFAC, if they now no longer in this legislation. Here the other side of this Capitol have this are listening: Get busy doing the right is the issue. I held and chaired a hear- notion of muscle flexing with respect things. Get right about public policy ing in my subcommittee on Appropria- to jurisdictional standards. Frankly, I initiatives that we are funding you to tions a couple weeks ago. The Customs don’t understand that on an issue that do. Service was there and Immigration was is this important. We need advance Let me mention one additional item, there. They said we have a system in passenger information clearing—not on if I may, and again it relates to this country called the advance pas- a voluntary basis but on a mandatory antiterrorism, not necessarily just to senger information system. It is a sys- basis. Somehow it got left out. this bill, and that is the issue of north- tem under which international air car- I thank the Senator from Utah for ern border security. We have a 4,000- riers electronically transmit to the his cooperation because we are going to mile border between the United States Customs Service passenger and cargo get this done. This needs to be done. If and Canada, with 128 ports of entry, manifests, so that before they enter we have a few small-minded people in and 100 of them are not staffed at and are cleared for departure, we know this Capitol simply protecting their night. At 10 o’clock at night, the secu- who is on that plane and what is on turf and who don’t seem to worry about rity between the United States and that plane, so we can determine wheth- combating terrorism, we will move be- Canada is an orange rubber cone, just a er there are people who should not be yond them and we are not going to pay big old orange rubber cone. It cannot allowed to enter this country. That is much attention to their concerns. talk. It cannot walk. It cannot shoot. the advance passenger information sys- If I might ask, how much time re- It cannot tell a terrorist from a tow tem. It works, but it is voluntary and mains on my 10 minutes? truck. It is just a big fat dumb rubber only 85 percent of the carriers are com- The PRESIDING OFFICER. The Sen- cone sitting in the middle of the road. plying. ator has 61⁄2 minutes. Those who want to come in illegally I asked at my hearing of Customs Mr. DORGAN. I want to mention two at 11 or 12 o’clock at night and are po- and Immigration: Should this be man- other issues, and they don’t relate di- lite about it will stop in front of the datory? They said: Absolutely, we need rectly to this bill. They are very im- rubber cone, remove the rubber cone, you to make this mandatory. portant to me. drive through, and replace it. Those When we had the antiterrorism bill We are talking about antiterrorism who do not care will shred it at 60 on the floor of the Senate, I had activities. We have an organization miles an hour. That is supposed to be cleared an amendment in the man- down at the Treasury Department’s Of- security in this country. agers’ package that would make this fice of Foreign Asset Control. I happen We know a terrorist came across that mandatory. Let me tell you of the air- to fund that area, as I am chairman of northern border at Port Angeles. This lines that do not comply, for which we the Appropriations subcommittee that particular Middle Eastern terrorist was don’t get advance passenger informa- funds that. I want to say something I going to create substantial bombing tion: Saudi Arabia, Kuwait, Royal Jor- said before the terrorist attacks of Sep- activities of public facilities at the danian, Pakistani International, to tember 11. OFAC, in my judgment, turn of the millennium in Los Angeles. name a few airlines that do not comply ought to be using its resources to track We know the terrorists know where it under the voluntary standard and give terrorists and track the trail left by is easy to get through our border and us no advance passenger information. terrorists with the movement of money where it is not. Mr. HATCH. If the Senator will yield, around the globe. Having said all that, that a rubber I commend the Senator. I think he is But in August I pointed out that cone is no substitute for security, the absolutely right. We had it in the Sen- what OFAC was doing—at least with Treasury Department has said to this

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11025 Congress that none of the $20 billion we I appreciate the enormous amount of fer a disabling injury in connection appropriated for security is going to go time and energy that my colleagues in with a future terrorist attack. And it for increased resources at the northern both Chambers have put into this legis- raises the total amount of the Public border for Customs. The other side, Im- lation. They have done their best to Safety Officers’ Benefit Program pay- migration and Border Patrol, are going balance the risk of further terrorist at- ments from approximately $150,000 to to get increased resources, but the tacks with possible risks to civil lib- $250,000. Treasury Department says: No, we do erties. This comprehensive bill in- This bill will also make an imme- not need additional resources with the cludes measures to enhance surveil- diate difference in the lives of victims Customs Service. lance; improve the working relation- of terrorism and their families. It re- Nothing could be further from the ship among Federal, State, and local fines the Victims of Crime Act and by truth. I am just asking these people agencies; strengthen border control; doing so improves the way in which its who are thinking through these issues permit the detention of certain sus- crime fund is managed and preserved. to start thinking the right way. We do pects who may be the subject of inves- It replenishes the emergency reserve of need additional resources. That is why tigative efforts; help crime victims; re- the Crime Victims Fund with up to $50 we provided the $20 billion. We do need spond to bioterrorism; and crack down million and improves the mechanism additional security on the northern on money laundering. to replenish the fund in future years. border. Yes, orange rubber cones are I am especially supportive of two new The USA Act also increases security on inexpensive. They are also ineffective. important provisions added in con- our northern border, including the bor- They are no substitute for security in ference that will enhance domestic pre- der between Canada and my State of this country. I know I am going a bit paredness against future attacks, at Minnesota. It triples the number of afield from this bill, but I wanted to the local level: the First Responders Border Patrol, Customs Service, and make the other two points about OFAC Assistance Act, and the Grant Program INS inspectors at the northern border and what it is doing and northern bor- for State and Local Domestic Pre- and authorizes $100 million to improve der security because that, too, relates paredness Support. These provisions old equipment and provide new tech- to the issue of antiterrorism and this authorize grants to State and local au- nology to INS and the Customs Service country’s ability to deal with the ter- thorities to respond and prevent acts of at that Border. rorist threats. terrorism, particularly for terrorism On the criminal justice side, the bill I conclude by saying I came here to involving weapons of mass destruction clarifies existing ‘‘cybercrime’’ law to talk about the advance passenger infor- and biological, nuclear, and chemical cover computers outside the United mation system. I, again, feel terrible it devices; and revises an existing grant States that affect communications in was left out of this bill because we had program to provide 1, additional flexi- this country and changes sentencing agreement in the Senate. I understand bility to purchase needed equipment; 2, guidelines in some of these cases. It some folks in the House refused to training and technical assistance to provides prosecutor better tools to go move on this issue. State and local first responders; and 3, after those involved in money laun- One way or another I am going to get a more equitable allocation of funds to dering schemes that are linked to ter- this done in the next couple of weeks. all States. rorism, and it adds certain terrorism- I will find a bill, a vehicle. This is Last week I traveled to Moorhead, related crime as predicates for RICO going to get done. I appreciate the will- Mankato and Rochester, MN and and money-laundering. At the same ingness of the Senator from Vermont talked with firefighters and first-re- time, the bill establishes procedures to and the Senator from Utah to help me sponders about this very issue. They protect the rights of persons whose do that. That is a glaring omission told me they desperately need training property may be subject to confisca- from this bill, and if the House does and equipment to address our new ter- tion in the exercise of the govern- not want to do it on this bill, we will rorism risks. These local grants are ex- ment’s antiterrorism authority. It force them to do it on another bill. tremely important to address the needs strengths our Federal laws relating to Madam President, I yield the floor. the threat of biological weapons and The PRESIDING OFFICER. The Sen- our most important asset in the fight enhances the Government’s ability to ator from Nevada. against terrorism: those law enforce- Mr. REID. Madam President, on be- ment and emergency personnel on the prosecute suspected terrorists in pos- half of senator LEAHY, I yield 10 min- front lines. session of biological agents. It will pro- utes to the Senator from Massachu- Although I still have some reserva- hibit certain persons, particularly setts, and I ask unanimous consent tions about certain provisions of the those from countries that support ter- that his remarks follow—there is an bill as they might affect civil liberties, rorism, from possessing biological order already in effect for Senator and wish that it were more tightly tar- agents. And it will prohibit any person WELLSTONE to be heard now—the re- geted to address only actions directly from possessing a biological agent of a marks of Senator WELLSTONE. related to terrorism or suspected ter- type of quantity that is not reasonably The PRESIDING OFFICER. Without rorism, I am pleased with the inclusion justified by a peaceful purpose. objection, it is so ordered. of several key civil liberty safeguards. I support these much-needed meas- The Senator from Minnesota. The bill requires certain electronic re- ures. And I especially support the four- Mr. WELLSTONE. I thank the Chair. ports to go to a judge when pen reg- year sunset provision for several of the Madam President, this is one of the isters are used on the internet; in- electronic surveillance provisions. I do most important pieces of legislation we cludes provisions requiring notification wish, however, that some provisions will consider during this Congress. The to a court when grand jury information were might tightly targeted to address horrific loss of life and destruction is disclosed; and contains a 4-year sun- only actions directly related to ter- that occurred on September 11, the set with limited grandfathering for sev- rorism or suspected terrorism. It is for crime against humanity, changed us as eral of the electronic surveillance pro- this reason, I believe we will need to a country. The Uniting and Strength- visions. monitor the use of new authorities pro- ening America Act is an opportunity to The bill expands the Regional Infor- vided to law enforcement agents to help ensure that such terrorist attacks mation Sharing Systems Program to conduct surveillance. The bill broadens do not occur again. We need to improve promote information sharing among the Foreign Intelligence Surveillance all aspects of our domestic security, in- Federal, State, and local law enforce- Act, FISA, by extending FISA surveil- cluding by enhancing our intelligence ment have a critical role to play in pre- lance authority to criminal investiga- capacities so that we can identify pos- venting and investigating terrorism, tions, even when the primary purpose sible future attacks in their planning and this bill provides them benefits ap- is not intelligence gathering. The bill stages and prevent them from hap- propriate to such duty. The bill limits this ability by authorizing sur- pening. We must be vigilant and will- streamlines and expedites the Public veillance only if a significant purpose ing to invest the resources and time re- Safety Officers’ Benefits application of it is to gather intelligence informa- quired to gather the information that process for family members of fire tion. I hope this new FISA authority we need to protect ourselves and our fighters, police officers and other emer- will be used for the purpose of inves- way of life. gency personnel who are killed or suf- tigating and preventing terrorism or

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When it I will say this one more time: From We have done our best in this bill to comes to the detention of certain sus- my point of view, this legislation is maximize our security while mini- pects who may be the subject of inves- better than it was when it passed the mizing the impact some of these tigative efforts, there are safeguards Senate. The sunset provision is criti- changes may have on our civil lib- against unlimited detention. cally important. Ultimately, where I erties. Nearly all of us have probably I thank Senator LEAHY and Senator come down is if we do not take some of said since September 11 that if that HATCH and others for pulling back from these steps with some of the provisions day’s terror is allowed to undermine some of the original proposals which I have outlined, which are very impor- our democratic principles and prac- made this a much better piece of legis- tant, very positive in protecting peo- tices, then the terrorists will have won lation. ple, and more people are killed and a victory. We should pass this bill There is a crackdown on money laun- there is more loss of life of innocent today. And we should also commit our- dering. I thank Senator SARBANES and people, you cannot bring those lives selves to monitoring its impact of civil Senator KERRY and others for their back. liberties in the coming months and fine work. I am not a lawyer, and this is my years. There is another provision that is layperson way of analyzing this. If Our challenge is to balance our secu- very important. The First Responders there are some abuses with the surveil- rity with our liberties. While it is not Assistance Act and grant program all lance, we monitor it, we can pass new perfect, I believe we are doing that in go together. When I traveled to greater legislation, and we can change it. It this bill. Minnesota last week, when I went to sunsets in 4 years. That is reversible. I Madam President, it is a jarring Moorhead, Mankato, Rochester, and err on the side of protection for people. analogy, but I use it to explain how I Duluth, I spoke with fire chiefs and all I wish we did not even have to con- arrived at my decision on this legisla- said: We are the first responders. We sider this legislation. I wish we were tion. In 1940 and 1941, the Germans en- know that from New York. Please get not even living in these times. I believe gaged in an unprecedented attack on some resources back to the local level. terrorism is going to be a part of our the civilian population of Great Brit- It is a local public safety model where lives. I think it is going to be a part of ain. The goal was to weaken citizens in our children’s lives. I think it is going if you give us the resources, let us as- their fight against Nazism. At the end to be a part of our grandchildren’s sess our needs—we have the training; of that attack, 20,000 people were lives. I think this is going to be the we may need additional equipment—if killed. On September 11 in our country, struggle for several generations to you are going to talk about the ways close to 6,000 innocent people were come. No one action and no one step is we can best protect people, we are massacred. going to end it. I think that is now the going to protect people where they It is absolutely the right thing to world, unfortunately, in which we live. live, where they work, or where their take the necessary steps to try to pre- That is now the world in which all of children go to school. Getting the re- vent this from happening and to pro- God’s children live. vide protection to people in our coun- sources to the local community, the There are some things we are going try. fire chiefs, and police chiefs is criti- to have to do differently and, as I said, There are many provisions in this cally important. we must be vigilant. Where there are legislation with which I agree. They As I said, there are some key civil excesses, we need to change that. I do are important to people in Minnesota, liberty safeguards. The bill requires believe this legislation is an important Michigan, and around the country, by certain electronic reports to go to a step in the direction of trying to pre- way of what we need to do to protect judge when pen registers are used on vent this and providing protection to our citizens. the Internet. It includes provisions re- our citizens. When it comes to electronic surveil- quiring notification to a court when I yield the floor. lance, as Senator FEINGOLD has stated grand jury information is disclosed, The PRESIDING OFFICER (Mr. NEL- with considerable eloquence, the legis- and it contains the 4-year sunset when SON of Nebraska). The Senator from lation goes too far and goes beyond it comes to the electronics surveillance Massachusetts. world terrorists, who I think are a real provisions. That is critically impor- Mr. KERRY. Mr. President, I support threat to people in our country and tant. the conference report before the Senate other nations as well. The bill streamlines and expedites today. It reflects an enormous amount How do I balance it out? My view is the public safety officers benefits ap- of hard work by the members of the that I support this legislation because plication for the firefighters and the Senate Banking Committee and the all of the positive issues, which I will police officers and others who were Senate Judiciary Committee. I con- go into in a moment, that are so im- killed and suffered disabling injuries. gratulate them and thank them for portant to the people I represent have It raises the total amount of the Pub- that work. to do with protecting the lives of peo- lic Safety Officers’ Benefits Program. I particularly thank Senator ple. If we do not take this action and The Victims Crime Act is in this bill. DASCHLE, Senator LEAHY, Senator SAR- we are not able to protect people, then It improves the way the crime fund is BANES, Senator HATCH, and Senator more people can die, more people will managed. It replenishes the emergency LEVIN for their work in developing this be murdered. That is irreversible. We fund for crime victims up to $50 mil- legislation. I am pleased the Con- cannot bring those lives back. lion. This is really important. ference Report includes what I consider This legislation has a 4-year sunset. I These are the important provisions. to be a very important provision re- said when the Senate passed the bill On the other hand, I do wish some of garding money laundering that has that I would reserve final judgment as the provisions were more tightly tar- been hard fought over and, frankly, to whether I vote for the final product geted to address only actions directly long awaited for. We have been work- based on whether there will be a 4-year related to terrorism or suspected ter- ing on this for quite a few years, al- sunset when it comes to electronic sur- rorism. It is for this reason that I most 10 years or more when I was a veillance. We can monitor—there will think it is critically important each member of the Banking Committee and be some abuses, I think—we can mon- and every Senator and Representative within the Foreign Relations Com- itor that, and if there are abuses, it is monitor the use of new authorities pro- mittee where I was Chairman of the reversible; we can change it. That is vided to the law enforcement agency to Subcommittee on Narcotics, Terrorism why I err on the side of protecting peo- conduct surveillance. and International Operations. This ple, and it is why I support this legisla- We are going to have to monitor this really is the culmination of much of tion. aspect very closely. It has been said, that work.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11027 I am pleased at the compromise we for the purpose of attracting capital il- I think the Secretary will have a have reached on the antiterrorism leg- licitly, as well as legally. By having number of different options and it will islation, as a whole, which includes the the legal capital that is attracted by provide a transparency and an account- sunset provision on the wiretapping virtue of the haven that is created, ability that is absent today. and electronic surveillance component. they provide the cover for all of the il- Let me comment on one criticism It has been a source of considerable licit money. There are places not so far that is often raised by some opponents concern for people, and I think the sun- away from us, islands in the Caribbean of this legislation who do not like the set provision provides Congress a and elsewhere, which at last count I re- idea that the United States should chance to come back and measure the member $400 billion of assets that sup- somehow put in place sanctions against record appropriately, and that is appro- posedly belong to this island in about 1 an entity that has a lower tax rate priate. square mile of the downtown area, than we happen to have. I emphasize The reason I think the money-laun- most of which was the property of enti- there is nothing in this legislation that dering provision is so important is it ties that had a brass plate on a door empowers us to take action because an- permits the United States—it really and a fax machine inside, perhaps a other government has a lower tax rate. authorizes and gives to the Secretary telephone number, and that was sort of That is their privilege. It is healthy, as of the Treasury the power to be able to the full extent of the corporate entity. all Members know, to have competi- enforce the interests of the United So there is $400 billion on an island tion in the marketplace of taxes, too. States. It allows the Secretary to deny that everybody knows is not on the is- The Chair is a former Governor and he banks and jurisdictions access to our land. Where does it go? It goes back knows well the competition between economy if in the last measure they into the financial marketplace where it States. States will say: We will not are not cooperative in other ways to earns interest, is invested, goes into le- have a sales tax; we will not have an prevent money laundering from being a gitimate efforts, much of it legitimate excise tax; we will try to make our- tool available to terrorists. money to begin with but a whole por- selves more business friendly. We want This is a bill I introduced several tion of it not. I might add, with the to be as competitive and as low tax as years ago that assists our ability to be knowledge of people involved in those we conceivably can be. able to crack down on the capacity for businesses and many of the banks that We are not seeking to try to address criminal elements, not just terrorists, receive it. those jurisdictions that simply make who are criminals themselves. But also So if one is going to cope with an al- themselves more competitive on a tax narcotics traffickers, arms prolif- Qaida, with a terrorist entity such as basis. What we are trying to address erators, people who traffic in people Osama bin Laden, who moves his are those jurisdictions that not only themselves. There are all kinds of money into this legitimate market- have lower taxes but use the lower criminal enterprises which benefit place, law enforcement has to have the taxes, coupled with a complete absence from access to the American financial ability to be able to hold people ac- of accountability, a complete absence system. All of these will now be on no- countable where it is legitimate to do of transparency, a complete absence of tice that our law enforcement commu- so. living by the law enforcement stand- Now obviously we do not want to do nity has additional tools to use to be ards of other parts of the world, to that where there is a legitimate enter- able to close the incredible benefits of knowingly attract the illicit gains that prise, and we do not want to create a access to the American financial mar- come from criminal activity or that at- crossing of the line of the corporate ketplace. tract and move terrorist money The global volume of laundered veil that has been protected for a long through the world. money staggers the imagination. It is period of time, and I am not urging estimated to be 2 to 5 percent of the that we do that. But we do have to We are simply putting into place the gross domestic product of the United have a system in place, where probable standards by which most of the devel- States. That is $600 billion to $1.5 tril- cause exists, for law enforcement enti- oped world is living. Ultimately we lion that is laundered, that comes into ties. hope all countries will adopt appro- the country or passes through banks I spent a number of years as a pros- priate money laundering standards so without accountability. Those funds ecutor. We make pretty good judg- we can all live in a safer world. escape the tax system, for one thing. ments in the law enforcement commu- Passage of this legislation is going to So for legitimate governments strug- nity about probable cause. They are make it a lot more difficult for new gling to fairly distribute the tax base not always without question, and they terrorist organizations to develop. I while the average citizen who gets are not, obviously, without error at can remember a number of years ago their paycheck deducted or those good times. We understand that. We have a when I was chairing the subcommittee corporate citizens and others who live pretty good system in the United on Narcotics, Terrorism and Inter- by the rules, they are literally being States to protect against that. What national Operations, I conducted an in- required to assume a greater burden we are trying to do with this legisla- vestigation into a bank called BCCI, because other people using the laun- tion is to put those protections in the Bank of Credit Commerce Inter- dering and lack of accountability es- place, but even as we put in a series of national. We uncovered a complex cape that responsibility. steps that allow the Secretary of the money-laundering scheme involving The effects of money laundering go Treasury to be able to target a par- billions of dollars. Fortunately, BCCI far beyond the parameters of law en- ticular area as a known money-laun- was forced to close. We were able to forcement, creating international po- dering problem, and then be able to re- bring many of those involved in it to litical issues and generating very gen- quire of the government of that entity, justice. But we have learned since the uine domestic political crises. Inter- a cooperative effort. It is only if the closing that BCCI was a bank that had national criminals have taken advan- entity or government’s cooperative ef- a number of Osama bin Laden’s ac- tage of the technology and the weak fi- fort at several different stages is not counts. We learned when BCCI closed, nancial supervision in many jurisdic- forthcoming that the Secretary would we dealt Osama bin Laden a very seri- tions to simply smuggle their funds ultimately consider exercising the ous blow. into our system. Globalization and ad- power to denying that entity as a So as the Congress gives final ap- vances in communications and tech- whole, or individual banks or other fi- proval to this legislation in response to nologies have allowed them to move nancial institutions, access to our fi- these attacks, we need to keep in our their illicit gains with much more se- nancial marketplace and to its bene- focus the benefits that will come to us crecy, much faster, commingled, and in fits. by pressing these money laundering other ways that avoid or complicate I believe this leverage will be critical standards on banks. With the passage significantly the ability of prosecutors in our ability to wage a war on ter- of this legislation, terrorist organiza- to be able to do their job. rorism, as well as to be able to wage a tions will not be able to move funds as Many nations, some of them remote, sufficient law enforcement effort easily and they will not be able to have small islands that have no real assets against the criminal enterprises that their people move within our country of their own, have passed laws solely exist on a global basis. with bank accounts that we cannot

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11028 CONGRESSIONAL RECORD — SENATE October 25, 2001 penetrate, with major sources of fund- the identification of those using a for- and criminal offense on par with struc- ing transferred to them from the Mid- eign bank’s payable-through account turing generally; and extends the pre- dle East or elsewhere to empower them with a domestic financial institution; sumptive GTO period from 60 to 180 to be able to do the kind of things they requiring the identification of those days. did on September 11. using a foreign bank’s correspondent Finally, section 355 of the conference I also point out this bill will require account with a domestic financial in- report includes a provision that grants the U.S. financial institutions to use stitution; and restricting or prohib- financial institutions civil immunity appropriate caution and diligence when iting the opening or maintaining of for including suspicions of criminal opening and managing accounts for for- certain corresponding accounts for for- wrongdoing in a written reference on a eign financial institutions. It will actu- eign financial institutions. The special current or former employer. ally prohibit foreign shell banks, those measure relating to the restriction or It has been brought to my attention who have no physical location in any prohibition of accounts can only be im- that this bill, as originally passed by country, from opening an account in posed by regulation. However, nothing the House, contained a rule of con- the United States. Think about that. in this legislation will in any way re- struction which could have limited our We currently allow a bank that has no strict the right of the Secretary of the ability to provide assistance and co- physical presence anywhere—a bank— Treasury to impose a rule immediately operation to our foreign allies in their to open an account in the United and to ask for comment at the same battle against money laundering. The States. That is today. With this legis- time. The other four special measures House-passed rule of construction lation, that will change. It is high may not remain in effect for more than could have potentially limited the ac- time. 120 days, except pursuant to a rule pro- cess of foreign jurisdictions to our The conference report expands the mulgated on or before the end of the courts and could have required them to list of money-laundering crimes and 120-day period beginning on the date of negotiate a treaty in order to be able will assist our law enforcement efforts the issuance of such order. to take advantage of our money-laun- in making it easier to prosecute those In choosing which ‘‘special measure’’ dering laws in their fight against crime crimes. It requires the Federal Reserve to impose and how to tailor it, the Sec- and terrorism. The conference report to take into consideration the effec- retary shall consider the extent to did not include a rule of construction tiveness financial institutions in com- which they are used to facilitate or because the Congress has always recog- bating money-laundering activities be- promote money laundering, the extent nized the fundamental right of friendly fore any merger is approved. We will to which they are used for legitimate nations to have access to our courts to have an ability to judge the road trav- business purposes and the extent to enforce their rights. Foreign jurisdic- eled before we open up new opportuni- which such action will sufficiently tions have never needed a treaty to ties for financial institutions. guard against money laundering. The have access to our courts. Since some The following is a description of the Secretary is also to consult with the of the money-laundering conducted in legislative intent of the Counter Money Chairman of the Board of Governors of the world today also defrauds foreign Laundering and Foreign Anti-Corrup- the Federal Reserve. If the Secretary is governments, it would be hostile to the tion Act of 2001 which was included in considering prohibiting or restricting intent of this bill for us to interject section 311 of subtitle A—International correspondent accounts, he is also to into the statute any rule of construc- Counter Money Laundering and Re- consult with the Secretary of State tion of legislative language which lated Measures of the conference re- and the Attorney General. The Sec- would in any way limit our foreign al- port. First, the Secretary of the Treas- retary is also obligated to consider lies access to our courts to battle ury determines whether ‘‘reasonable three factors: whether other countries against money laundering. That is why grounds exist for concluding’’ that a or multilateral groups are taking simi- we did not include a rule of construc- foreign jurisdiction, a financial institu- lar actions; whether the imposition of tion in the conference report. That is tion operating in a foreign jurisdiction, the measure would create a significant why we today clarify that it is the in- or a type of international transaction, competitive disadvantage for U.S. tent of the legislature that our allies is of ‘‘primary money laundering con- firms, including any significant cost or will have access to our courts and the cern.’’ In making this determination, compliance; the extent to which the ac- use of our laws if they are the victims the Secretary must consult with the tion would have an adverse systemic of smuggling, fraud, money laundering, Secretary of State, the Attorney Gen- impact on the payment system and le- or terrorism. I make these remarks eral, the Secretary of Commerce, and gitimate business; and the effect of today because there should be no con- the United States Trade Representa- such action on United States national fusion on this issue and comments tive. The Secretary is also directed to security and foreign policy. made by others should not be con- consider any relevant factor, including Within 10 days of invoking any of the strued as a reassertion of this rule of the quality of a jurisdiction’s bank se- special measures against a primary construction which we have soundly re- crecy, bank supervision, and anti- money laundering concern, the Sec- jected. Our allies have had and must money laundering laws and administra- retary must notify the House and Sen- continue to have the benefit of U.S. tion, the extent to which a particular ate Banking Committees of any such laws in this fight against money laun- institution or type of transaction is in- action taken. dering and terrorism. volved in money laundering as com- The conference report includes a pro- Smuggling, money laundering, and pared to legitimate banking oper- vision within section 351 relating to re- fraud against our allies are an impor- ations, whether the U.S. has a mutual porting of suspicious transactions tant part of the schemes by which ter- legal assistance treaty with the juris- which clarifies that the ‘‘safe harbor’’ rorism is financed. It is essential that diction and whether the jurisdiction from civil liability for filing a Sus- our money laundering statutes have has high levels of official or internal picious Activity Report (SAR) applies appropriate scope so our law enforce- corruption. in any litigation, including suit for ment can fight money laundering wher- Second, if a jurisdiction, institution, breach of contract or in an arbitration ever it is found and in any form it is or transaction is found to be a ‘‘pri- proceeding and clarifies the prohibition found. By expanding the definition of mary money laundering concern,’’ the on disclosing that a SAR has been ‘‘Specified Unlawful Activity’’ to in- Secretary then selects from a menu of filed. clude a wide range of offenses against five ‘‘special measures’’ to address the Section 353 of the conference report friendly nations who are our allies in identified issue. these five special also includes a provision that increases the war against terrorism, we are con- measures are: requiring additional penalties for violation of Geographic firming that our money laundering record keeping and/or reporting on par- Targeting Orders (GTO) by making it a statutes prohibit anyone from using ticular transactions; requiring reason- civil and criminal offense on par with the United States as a platform to able and practicable steps to identify existing law to file reports required by commit money laundering offenses the beneficial foreign owner of an ac- a Geographic Targeting Order; requir- against foreign jurisdictions in what- count opened or maintained in a do- ing structuring transactions to fall ever form that they occur. it should be mestic financial institution; requiring below a GTO-lowered threshold a civil clear that our intention that the

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11029 money laundering statues of the —will not be abused. I would like to be- the fight against terrorism, and we ap- United States are intended to insure lieve that technologies like Carnivore plaud the efforts of the administration that all criminals and terrorists cannot will not be used to derive content from in the weeks since that tragic day. circumvent our laws. We shall continue email communications. But I am skep- Clearly, there were failures in our in- to give our full cooperation to our al- tical. vestigative network, and this legisla- lies in their efforts to combat smug- Several other aspects of this bill, tion will help avoid such failures in the gling and money laundering, including when taken together, could also inter- future, allowing greater sharing of in- access to our courts and the unimpeded fere with Americans’ enjoyment of formation that could foil terrorists be- use of our criminal and civil laws. their right to privacy without pro- fore they carry out their brutal Ms. CANTWELL. Mr. President, we viding value in the fight against terror- schemes against innocent civilians. must act on many fronts to wage a suc- ists. Those of us who feel strongly The question then becomes how to cessful fight against terrorism. The about how new powers might chip away make sure that the new authority isn’t USA Patriot Act of 2001 will provide at traditional privacy rights will pay abused—in fact used for law enforce- our law enforcement agencies with sig- close attention to how law enforcement ment purposes or fishing expeditions. nificant new tools to fight this battle uses these tools. Over many years and with great effort, on the home front. There are many The bill’s ostensible purpose in re- we have crafted a careful balance in good things in this bill. I am especially gard to searches of personal commu- protecting personal privacy. The bot- pleased that the bill includes language nication is to facilitate the sharing of tom line is this legislation could cir- to allow the tripling of manpower on information gathered in a law enforce- cumvent or supersede Federal and our northern border. The bill also in- ment context with the intelligence State privacy laws that have balanced cludes a provision to set a new tech- community. There is a difference, how- law enforcement needs and privacy nology standard for our visa program ever, between facilitating the sharing concerns, going well beyond the so we can better identify people com- of information between the law en- changes to the law needed for intel- ing into this country. I am very proud forcement and intelligence commu- ligence gathering. This is no ordinary of the many tools in the bill for law en- nities, and blurring the line between time for our country. But in this proc- forcement. This legislation increases the missions of the two communities. ess we must remember those Fourth the number of FISA judges to speed Where information is sought for the Amendment rights that we have so law enforcement’s ability to get taps in purpose of law enforcement, we must diligently fought for in the past. I am proud of this Congress for act- place and going and contains excellent ensure that fourth amendment protec- ing promptly and thoughtfully in re- new provisions to help law enforcement tions apply. Our fear about the legisla- sponse to the horrific events of Sep- and banks better track and freeze fi- tion comes from a legitimate concern tember 11. That day was an awakening nancial assets of terrorists. Further, that information gathered ostensibly to Americans, signaling the urgency the bill provides for expedited hiring for intelligence and defense purposes for this government to change how we and training of FBI translators. Fi- could be used for law enforcement pur- deal with terrorism. This legislation nally, the legislation takes steps to poses. The intelligence community does much to facilitate better informa- allow better sharing of information be- does not prosecute and lock up its tar- tion gathering and sharing between our tween the law enforcement and intel- gets; it uses information to intervene law enforcement and intelligence com- ligence communities, although I be- against foreign nationals seeking to munities and greater protection of our lieve this sharing and coordination harm America or Americans. But the borders from the intrusion of terror- would be better accomplished with a law enforcement community has a dif- ists. I am hopeful that those of us in process for judicial review. ferent mission, to catch and prosecute government have the wisdom and pru- But I have my concerns, as well, with criminals in our courts of law. Because dence to use these new powers in such the scope and the pace of these sweep- law enforcement acts upon U.S. citi- a way as to not undermine the free- ing changes. We may have gone further zens, it must do so within the bounds of doms we seek to protect. than we really need to go to address the Constitution. The differences in Mr. President, currently, there is no terrorism. Thanks to the extremely these missions must be acknowledged, single technology standard in place hard work of Senator LEAHY and his and we must be vigilant to maintain that allows the Federal Government to staff, Senator HATCH and others in both the distinctions. confirm with certainty the identity of houses of Congress, this legislation is Last week, Senator LEAHY and I dis- aliens seeking entry into the United much more carefully tailored to ad- cussed here on the floor the need to States through the visa program. In- dressing terrorism than the legislation maintain strict oversight of the law en- sufficient identification technology is proposed by the Administration only a forcement community’s use of new au- available to our consular officers re- short month ago. But I remain con- thorities enumerated in this legisla- sponsible for reviewing visa applica- cerned about several provisions such as tion. Today I want to reiterate the tions to facilitate a comprehensive those involving wiretap authorities, need for that oversight, the need for background check of persons applying pen register and trap and trace, com- regular Government Accounting Office for a United States visa. Consular offi- puter trespass, access to business reports to Congress of the use of the cers lack the technology to verify that records and other new legal authorities new authorities under FISA and pen a person seeking a visa has not pre- which will not require a showing by the register and trap and trace law and the viously sought or received a visa using government of probable cause or allow need for the Committee on the Judici- another name or identity. Similarly, for any meaningful judicial review. The ary to scrutinize the use of these new there is no widely implemented tech- scope of these provisions may make authorities regularly. I am pleased nology that allows United States bor- them susceptible to abuse—allowing that many members of the Senate be- der inspectors to confirm the identity inappropriate, possibly unconstitu- lieve we must pursue this duty dili- of persons seeking admittance into the tional, intrusion into the privacy of gently. United States using a visa. American citizens. I am pleased that I am also pleased that the final Pursuant to Section 403(c) of the some of the most disconcerting provi- version of this legislation incorporates USA PATRIOT Act of 2001, the Federal sions of this legislation will expire in a four-year limit on the applicability Government is required to develop and four years. This ‘‘sunset’’ provision of these and many other search au- implement a technology standard that will give Congress the opportunity to thorities. With this ‘‘sunset,’’ law en- can facilitate extremely high con- evaluate the implementation of these forcement and intelligence agencies fidence in confirming the identity of an new laws, and reassess the need for the will be able to use new powers to iden- alien seeking a visa or seeking entry changes. tify and act on terrorist efforts and into the United States pursuant to a I would like to believe that the gov- Congress will have the ability to re- visa. ernment’s new ability to place wiretaps view fully the implications of the new The standard required by these provi- on the lines of American citizens—in law. sions will facilitate the capture and secret with limited reporting and op- We can all agree that the events on sharing of all relevant identity infor- portunity for oversight by Congress September 11 have focused America on mation regarding the alien applicant,

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11030 CONGRESSIONAL RECORD — SENATE October 25, 2001 including biometrics, and information reporting process described in para- do a better job of seeing who comes relevant to determining the eligibility graph (4) of this subsection. into this country to make sure people of such a person for entry into the This technology standard will enable who wish to do us harm are, if possible, United States from and between all rel- the Department of State to confirm screened out before they get here so evant departments and agencies that a person seeking a visa is not people who are visitors from abroad through compatible, interoperable sys- known to the Federal Government as a who engage in things that are inappro- tems. person ineligible for a visa, or is a per- priate, who violate the terms of their The purpose of this subsection is to son who has sought or obtained a visa visas or their other status, can be re- ensure that United States Government using a different name or identity. The moved. will establish a technology standard to technology standard will also enable So after the September 11 incident allow: 1, the State Department, at the Federal inspectors at all ports of entry happened and people started talking time a person applies for a United and preclearance locations to confirm about problems in immigration, I spent States visa, to do a comprehensive that a person seeking entry to the a full day traveling with representa- background check against databases of United States using a visa is the same tives from the INS in my State. We are known aliens ineligible for entry into as the person to which the Department in the heartland, but Missouri is di- the United States; 2, the State Depart- of State issued the visa, and is not a rectly involved because many of these ment to verify the identity of a person person sought by the Federal Govern- visitors come to Missouri as well. I applying for a United States visa as a ment to be excluded from entry to the know the people at our major ports person who has not on a previous occa- United States. have even greater problems, but we saw sion sought a visa using a different The technology standard must be de- the problems firsthand. name or identity; and 3, United States veloped and certified by NIST within I said: Why can’t you get somebody border inspectors and preclearance two years of the date of enactment of out of the country if they overstay agents to confirm that a person seek- this subsection. their visa? ing entry to the United States on the Paragraph (2) provides that the tech- And they asked a very logical ques- basis of a visa is the same person who nology standard described in paragraph tion: How do you know where they are? obtained the visa from the Department (1) shall be the basis for a cross-agency, We don’t have a good system. of State. cross-platform electronic database sys- I said: Is it possible? Although it is understood by Con- tem that is a cost-effective, efficient, They said: You probably could not gress that technological advances may fully integrated means to share law en- give us enough INS enforcement agents require revisions to any standard forcement and intelligence information to make sure we could find every per- adopted pursuant to this provision, it necessary to confirm the identity of a son. They come in, they say they are is expected that the standard will ini- person applying for a United States going to go to Branson, MO, or they are tially incorporate appropriate biomet- visa, or such a person seeking to enter going to visit the Arch in Missouri, and ric technologies to compare identity the United States using a visa. they may go to one or two other lesser information provided by the visa appli- Paragraph (3) requires that the sys- tourist attractions across the country, cant to criminal, immigration and in- tem described in paragraph (2) shall be and we don’t know where they are. telligence databases that use a finger- implemented in a manner that is read- As a result of discussions with them print biometric or a facial recognition ily and easily accessible to all consular and some great assistance I received biometric. officers responsible for the issuance of from my cosponsors, Senator CONRAD Further, to obtain the greatest pro- United States visas; all Federal inspec- and Senator SNOWE, we put together tection of United States citizens by ex- tion agents at United States border in- what we think are some significant im- cluding persons ineligible for entry spection points (including any provements in the way we deal with into the United States, the Department preclearance locations); and all law en- visitors to this country to lessen the of State, the Department of Justice forcement and intelligence officers re- likelihood that they will be able to par- and other appropriate departments of sponsible for investigation or identi- ticipate in causing harm to citizens of the Federal Government should work fication of aliens admitted to the the United States. So we have put to- with the governments of other coun- United States pursuant to a visa, pro- gether the Visa Integrity and Security tries to encourage such countries to vided that such officers are provided Act. I express our sincere appreciation adopt the standard established pursu- access to this system pursuant to regu- to the managers of this bill and to our ant to this subparagraph and to estab- lation. colleagues in the House for adopting lish international interoperability of Paragraph (4) provides that the At- these principles and putting them into identity databases. In particular, it torney General and the Secretary of the bill. will be beneficial to the United States State jointly and in consultation with This is not going to be a total solu- to facilitate adoption of this tech- the Secretary of the Treasury, shall re- tion. Nobody can expect that we are nology standard for appropriate iden- port to Congress within 18 months of going to do a 100-percent job. But when tity information exchange with Canada the date of enactment of this Act, and we look at what has happened in the and Mexico. It would further benefit every two years thereafter, describing past, we think this is going to be a sig- the security of United States citizens the development, implementation and nificant improvement. to encourage adoption of this standard efficacy of the technology standard de- As Senator SNOWE pointed out, Sheik by those countries for whose citizens scribed in this subsection. The report Rahman, who has been in prison for his the United States, Canada or Mexico do must also consider the privacy implica- part in the first bombing of the World not require a visa to enter the respec- tions and applicability of Federal pri- Trade Center, had been on a watch list, tive country. vacy laws. the Foreign Intelligence Watch List, Paragraph (1) requires the Depart- The PRESIDING OFFICER. Who for years, and nobody told the State ment of Justice and Department of yields time? Department or the INS, and they gave State, through the National Institute Mr. HATCH. I yield the Senator as him permanent status in the United of Standards and Technology (NIST), much time as he requires. States. That was after he had been and in consultation with other Federal The PRESIDING OFFICER. The Sen- identified. law enforcement and intelligence agen- ator from Missouri. We are saying the criminal agencies, cies deemed appropriate by the Attor- Mr. BOND. I thank the Senator from the law enforcement agencies have to ney General or the Secretary of State, Utah, the leader on our side on this talk with the State Department, the to develop a technology standard to fa- committee. people who are issuing these visas, and cilitate confirmation of the identity of I want to talk just in specifics about let them know we should not let this persons seeking a visa or persons using one area with which this bill deals. We guy back into the United States. He a visa to enter the United States. The know that as a result of the tragedy of came and went five times. That is just Departments of Justice and State shall September 11 and the continuing prob- not acceptable. also consult with Congress in the de- lems we are having with anthrax and I also trust the State Department velopment of this standard through the other threats from abroad, we need to will change the directions in their

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11031 manual which has said in recent years a contact with a law enforcement agen- Let me say a brief word about stu- that merely urging terrorist activities cy, this rings a bell: You are out of sta- dent visa holders. The foreign students or belonging to a terrorist organization tus. You stayed too long. Or if a stu- who come to this land are a vitally im- do not disqualify you from coming to dent leaves the school, departs the portant part of our educational system. the United States. I mean, if you are a school which he or she is supposed to We are very proud in Missouri to have member of al-Qaida, you say: Oh, well, attend or an H–1B visa holder leaves a number of schools with a significant he may not be one of the murderers? the job he or she is supposed to have, number of foreign students who bring Give me a break. If there is any that is reported to the INS and they their culture, their experience, and ground for keeping somebody out of can turn over that information. Any their knowledge to this country. In my the United States, it ought to be that law enforcement official in the United view, one of the best foreign relation they are a member of al-Qaida. I hope States who comes in contact with him tools we have is to share education in the future we can share that infor- will know that person is out of status. with the future leaders of other coun- mation and make sure they do not Somebody says: Why is it important tries. come in. to know if they are out of status? Many I have traveled extensively in Asia. I So one of the things we require is people who are out of status and per- have found that many of the govern- that the FBI share the National Crimi- forming activities that are highly sus- mental leaders, scientific leaders, and nal Information System with the State picious may not rise to the level of leaders in journalism have studied in Department and the INS. We are going criminal indictment or for a criminal my State. They come up to me and ask to ask the Director of Homeland Secu- information to be filed against them, how the Missouri Tigers are doing. rity to report to Congress on the need but if they are involved in suspicious They know what we are about. We have for any other Federal agencies, intel- activities and they are out of status, a good basis to talk with them. ligence agencies, to share or feed their they are violating the terms of their I was in Malaysia in August to talk information into this database. visa and they can be deported and we about the potential that we have to One of the things we know now is potentially can avoid problems before gain great medical insight and perhaps that people can come in under one they actually occur. advances through biotechnology using name and then change names and we This is not going to be 100 percent ef- the information in genes in the Malay- don’t know exactly who they are. We fective. But when people are out of sta- sian rain forest. Two of the leaders don’t have a foolproof method of iden- tus, particularly if they are acting sus- graduated from the University of Mis- tifying these people who come into the piciously, we will have a record on souri. United States. Isn’t it about time we them, and we need to tighten up the These are in the bill. The visa waiver know for certain, before they even system to know when they leave. Right program needs to be tightened up so come in, who they are? Doesn’t it make now, it just depends upon the airlines, countries that just send their citizens sense that we know for certain who making sure they tell us who leaves into our country without going they are when they are in the United the country. That is not good enough. through the visa process—we need to States? We need to keep a record of who comes work with them and negotiate with I talked with the dean of the engi- in and who leaves so we know who is them so they have a strong, positive neering school at the University of overstaying their visa. They say 4 to 6 identifier, and so we have the same Missouri at Columbia. He said 10 years million people are here illegally be- kind of identification with them as we ago it wouldn’t be possible but now, cause they overstayed their visa, and do with these other states. clearly, we have the technology to do we don’t have any idea how to find I know many people want to speak on this. So this bill instructs the Attorney them. At least if we have a biometric this. I, again, express my appreciation General to implement an automated card, when they come in contact with a to the managers of the bill. I thank my system to track the entry and exit of law enforcement agency, then we can cosponsors, Senator CONRAD and Sen- visa holders, to make sure who they do that. ator SNOWE. I urge adoption of this Student visas are another thing. A are, where they are, and what their sta- measure which I think is going to move lot of people focused on the student tus is. us significantly in the right direction visas. That is a small portion of the Back in my time, we used to talk of preventing terrorist activities in the people who come to the United States. about fingerprints. Now the term is a future. There were a couple of people involved biometric system. There are a number The PRESIDING OFFICER. The Sen- in the September 11 tragedy who were of different systems to review. There ator from Vermont is recognized. here on student visas. can be digitized facial profiles, Mr. LEAHY. Mr. President, I will Hanni Hanjour came here supposedly take a moment. How much time is re- digitized photos of the iris of the eye, to study English in California and whatever is most feasible and effective maining to the Senator from Vermont? never showed up at school. The school The PRESIDING OFFICER. The Sen- there—to select that. We need to put didn’t know he was coming. They ator from Vermont has 43 minutes re- some money in putting the machinery didn’t tell anybody. The next time we maining. in our consular offices overseas so heard from him he was apparently pi- Mr. LEAHY. Mr. President, I know when somebody comes in and presents loting the plane that went into the the distinguished senior Senator from himself to get a visa to get into the Pentagon. New York has been waiting on the floor country, we can find out and make a It is not the student visas that are for some time. How much time is the record, permanently, of who they are. the problem. All visas are problems. Senator from New York going to want? No more using stolen passports. But in this bill we authorize almost $37 Mr. SCHUMER. I ask for 7 minutes. One of our partners in Western Eu- million to implement the system that Mr. LEAHY. I see the distinguished rope who operates under the visa waiv- Congress dictated 4 or 5 years ago to senior Senator from California. How er system has a problem with 60,000 track the people who come into the much time does she want? stolen passports. Right now, if you buy United States and to get a solid track- Mrs. FEINSTEIN. I will take 1 addi- a passport or take somebody else’s ing system to know if they are over- tional minute; 8 minutes. visa, we have a tough time tracking staying their visa. If they do not show That was meant to be a joke. them. But once they get that biometric up for school, then the schools would Mr. LEAHY. I am trying to think card, we know positively. We have a have to notify the INS. It would apply how to react to that, considering the modern-day thumbprint on them. We the same requirements to language size of the State of Vermont—other can check them out overseas; we can schools, to vocational schools, and, than to say that when Vermont was ad- check them in our records. When they yes, especially to flight schools. So we mitted to the Union it had twice the come to the port of entry, we check would know who was coming in. population of California when Cali- them at the port of entry to make sure This data system which has been put fornia was admitted to the Union. they are who they say they are. And if on the slow road is to be speeded up Every day now California gains the they do not get out of the country in and to be fully in effect by the begin- population of Vermont. time, we turn that information over to ning of January 2003. So we will have a Mr. President, I ask that 8 minutes of law enforcement agencies, so if there is better system. my time be given to the Senator from

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11032 CONGRESSIONAL RECORD — SENATE October 25, 2001 New York and 8 minutes to the Senator piece of work that we have before us. As to information sharing, again, we from California, both of whom are val- Balance and reason have prevailed. need to share information more quick- ued members of the Senate Judiciary This is the Senate working at its best ly and more rapidly among our various Committee. under a crisis situation but still with law enforcement agencies and between Mr. CONRAD. Mr. President, will the care and an appropriate degree of delib- law enforcement and intelligence agen- manager of the bill and others who are eration. cies. waiting permit me 15 seconds to men- It is also an example of the two par- When we are facing a war where it is tion what has occurred? ties coming together, and of the admin- more likely that more civilians will die The PRESIDING OFFICER. Without istration and the Congress coming to- than military personnel, the homefront objection, it is so ordered. gether. In a sense, in this bill there is is a warfront. The old high wall be- The Senator from North Dakota. something for everyone to like and tween foreign intelligence and domes- Mr. CONRAD. Mr. President, I thank something for everyone to dislike, tic law enforcement has to be modified. the manager of the bill for including which may well show that it will end The bill does a good job of that. the provisions that Senator BOND, my- up in the right place. There is a provision that would im- self, and Senator SNOWE authored to I would like to talk about a few parts prove communication between Federal tighten our borders, to provide coordi- of the bill. The trap-and-trace provi- law enforcement and local law enforce- nation with schools and employers sion is basically a proposal that Sen- ment, which Senator CLINTON and I be- when visa holders come to this coun- ator KYL and I put together a couple lieve needs tightening up. There were try, to coordinate the work of our in- years ago which is basically in the bill procedural, not substantive, objections telligence agencies with the INS and intact. It is vital. If you ask law en- raised to it. We hope to bring that the State Department so we are con- forcement what they need, they need a measure back either as a freestanding fident of who is coming in, and to im- standard when they have somebody measure or as part of some other legis- pose these new provisions using bio- who is a terrorist or a potential ter- lation. metrics so we really know who is com- rorist, that would allow a wiretap to be The other provisions in the bill are ing to our country. made so they can find that person. good as well. I believe in immigration. I thank the managers very much, and In the old days it was easy. It was I think immigrants are great for Amer- not easy to get a new telephone. You I thank Senator BOND for his leader- ica. But immigrants do not have the had to go to the phone company to get ship. exact same rights as citizens. They one, and it would take a few weeks. Mr. LEAHY. Mr. President, I thank never have, nor should they. To say Now people have cell phones; and any- Senator BOND. I thank Senator CONRAD that somebody who is not a U.S. cit- one, for an illicit or bad purpose, can and Senator BYRD. izen and might be suspicious should be get a cell phone every day. In fact, we The PRESIDING OFFICER. The Sen- detained for a short period of time know some of the hijackers regularly ator from New York. while law enforcement checks them Mr. SCHUMER. Thank you, Mr. bought new cell phones. Without this new process, without out—after all, they are trying to enter President. nationalizing trap-and-trace authority the country, which is a privilege, not a Mr. President, first, let me thank our so you can follow the numbers that are right—makes sense. To say they should senior Senator from Vermont and our called—you still cannot look at con- be detained indefinitely without going senior Senator from Utah for their tent without going to a judge—law en- to a judge cuts too far against the leadership on this bill; and also the forcement would be powerless. It still grain of the freedoms we have. Once many who have worked on it. confounds me that a simple provision again, this bill seeks a balance. It is good that we have brought this such as this, which does not change the Finally, as to the sunset, I was very bill in a timely fashion before the Sen- balance but simply updates the tech- much opposed to the House 2-year sun- ate. On the one hand, we didn’t rush so nology we need, had been held up for so set. How could we have law enforce- much that we did the bill in a day or long. Fortunately, it is here now. Or ment adapt to a new law knowing that two. On the other hand, we didn’t have unfortunately, it took an awful inci- by the time they get geared up, it is al- a great need to wait in terms of secu- dent to make it happen. most going to be sunsetted? In fact, I rity. I think it is coming to the floor at Most of the terrorists—and other think you do it the other way. If a law the right time with enough delibera- criminals as well: money launderers, is good, you put it on the books perma- tion and care but at the same time not drug dealers—are pretty techno- nently, and then you reexamine it. You delaying too much because the security logically savvy. To put handcuffs on do not automatically have it off the problems America faces are large and law enforcement so they cannot be as books. That means you do not trust the at times seem almost overwhelming. technologically savvy, would make no product you put together. If there is one key word that under- sense. Four years is about the minimum scores this bill, it is ‘‘balance.’’ In the I was also proud to work on the amount of time that would be accept- new post-September 11 society that we money laundering provision. Law en- able to me. I thought 5 would be better, face, balance is going to be a key word. forcement has often said: Show me the or, frankly, no sunset. Putting the bur- Technology has forced us to recalibrate money, and I will show you the terror- den of proof the other way would have in many different ways. The tech- ists. Let’s be honest about it. The made more sense, still. But a 4-year nology that allowed these horrible peo- money-laundering provision is not sunset, again, shows compromise. ple to do what they did to my city and going to stop the flow of money com- Mr. President, I have said this in this to America and the technology that al- pletely to the terrorists. They can still Chamber before. In this new world in lows law enforcement to try to catch have couriers and packets and things which we live, everyone has to give a up with them changes rapidly. No law such as that. But what it does do, No. little bit. We are asking our citizens to can sit still as that technology changes 1, is make it harder, and, No. 2, it gives give a little bit. We are asking our and still be effective. us information, the ability to find in- Armed Forces to give a lot. And that The balance between the need to up- formation, and find the flow of who is applies to us as well. date our laws given the new challenges connected to whom, how, where, why, I hope and pray—and I believe it has and the need to maintain our basic and when. happened in this bill—there is a bit of freedoms which distinguish us from our Again, the late Senator Coverdell and a new attitude. Even if you cannot get enemies is real. I had a money-laundering bill that is everything your way, at least you give There have been some on the right not terribly different than the provi- the benefit of the doubt to the com- who have said just pass anything. We sions in this bill. We had introduced it promise that has been put together be- just have to go after the terrorists and a couple years ago. cause we have to move things forward, forget about our freedoms and our civil I see my friend from Michigan. He and this bill does that. liberties. There are some on the left has come to the Chamber. He has done In conclusion, the scourge of ter- who say only look at the civil liberties great work in relation to money laun- rorism is going to be with us for a aspect. They are both wrong. Fortu- dering, as has the Senator from Massa- while. Law enforcement has a lot of nately, neither prevailed in this fine chusetts, and so many others. catching up to do. There is no question

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11033 about it. In this bill, at least, we give cess to them. Technology, as it law enforcement, from all Federal them fair and adequate tools that do changes, changes the ability to conduct agencies will go. That database will be not infringe on our freedoms but, at an intelligence surveillance. This bill for every visa holder, every person who the same time, allows them to catch up attempts to keep a very careful bal- crosses borders coming in and out of a lot more quickly. ance between the personal right to pri- this country. The legislation will pro- Mr. President, I yield back the re- vacy and the Government’s right to vide for ‘‘smart visa cards’’, reform the mainder of my time. know, in an emergency situation, to be visa waiver program, reform the un- The PRESIDING OFFICER. The Sen- able to protect its citizens. regulated student program, and im- ator from California. It also increases information sharing prove and beef up identity documents. Mr. LEVIN. Mr. President, I wonder between the intelligence community I passed around at the press con- if the Senator from California would and law enforcement. As a matter of ference a pilot’s license, easily repro- yield for a unanimous consent request. fact, it mandates it. Criminal inves- ducible, no biometric data, no photo- Mrs. FEINSTEIN. I would be happy tigations often result in foreign intel- graph, perforated around the edges to yield. ligence. This information, up to this showing that it had been removed from The PRESIDING OFFICER. The Sen- point, is not shared with the intel- a bigger piece. This is the pilot’s li- ator from Michigan. ligence community. After this bill be- cense that every 747 pilot carries, every Mr. LEVIN. Mr. President, I ask comes law, it must be shared. private pilot carries. It is amazing to unanimous consent that after the re- And it makes it easier for law en- me that this can be a Federal docu- marks of the Senator from California, I forcement to defeat those who would ment and be as sloppy as it is in this be recognized for the time allotted to use the computers of others to do mis- time. We intend to see that identity docu- me. chief. The PRESIDING OFFICER. Without For example, with the Zombie com- ments are strengthened to provide not only photographs, but biometric data objection, it is so ordered. puter, I invade your computer and, by as well (such as fingerprints or facial Mr. LEVIN. I thank the Senator. invading your computer, go into 1,000 recognition information). And the data The PRESIDING OFFICER. The Sen- other computers and am able to get system would be such that it is flexible ator from California. one of them to open the floodgates of a Mrs. FEINSTEIN. Mr. President, and scalable so as biometric tech- dam. This bill prevents that. nology and requirements progress, the Americans tend to be a very open peo- Overall, this bill gives law enforce- database can keep up. ple. Americans, to a great extent, have ment and the intelligence community Both Senator KYL and I also met looked at Government, saying: Just the tools they need to go after what is with Larry Ellison, the CEO of Oracle. leave me alone. Keep Government out an increasingly sophisticated terrorist Oracle has stated that they are willing of my life. At least that is the way it element. to devote some 1,500 engineers to de- was before September 11. What I hear I am very pleased this legislation velop a national identity database. post-September 11 are people saying: also includes a number of provisions I What we are proposing is different from What is my Government going to do to drafted with Senator GRAHAM well be- that. He said they would devote their protect me? fore the events on September 11—title 9 software free of charge. As we look back at that massive, ter- of this bill. These provisions give the The PRESIDING OFFICER. The time rible incident on September 11, we try Director of the CIA, as head of the in- of the Senator has expired. to ascertain whether our Government telligence community, a larger role Mrs. FEINSTEIN. If I may just have had the tools necessary to ferret out with regard to the analysis and dis- 1 minute to conclude. the intelligence that could have, per- semination of foreign intelligence The PRESIDING OFFICER. Without haps, avoided those events. The only gathered under FISA. These mandate objection, it is so ordered. answer all of us could come up with, that law enforcement share informa- Mrs. FEINSTEIN. We are not pro- after having briefing after briefing, is tion with the intelligence community. posing a national identity card, but we we did not have those tools. This bill And title 9 improves the existing do believe this kind of database could aims to change that. This bill is a bill Foreign Terrorist Asset Tracking Cen- be prepared by a company such as Ora- whose time has come. This bill is a nec- ter which helps locate terrorist assets. cle—they have offered to give it to the essary bill. And I, as a Senator from It authorizes additional resources to Government for free or by NEC, which California, am happy to support it. help train local law enforcement to did a state-of-the-art fingerprint sys- This legislation brings our criminal recognize and handle foreign intel- tem for San Francisco. We believe this and national security laws in line with ligence. should be under the auspices of the developing technologies so that terror- We now have these anti-terrorist Homeland Security Director, that ists will no longer be able to stay one teams throughout the country. They these decisions need to be made rap- step ahead of law enforcement. And be- need to be trained, and they need to idly, and that we need to get cracking lieve me, they can today. learn the tools of the trade and get the to close the loopholes that have made Right now, for example, terrorists security clearances so they can tap the United States of America one giant can evade Foreign Intelligence Surveil- into these databases. sieve. lance Act wiretaps, which are device- I agree with the 4-year sunset in- This bill, which I am so happy to sup- port, takes a giant step forward in that specific, by simply switching cell cluded for certain surveillance provi- direction. I thank both the chairman of phones every few hours. This legisla- sions in the bill. In committee I sug- the committee and the ranking mem- tion fixes that and allows for roving gested a 5-year sunset. The House had 2 ber for their diligence on this bill. FISA wiretaps, the same as are cur- years. It is now 4 years. That is an ap- I yield the floor. rently allowed for suspected criminals propriate time. It gives us the time to The PRESIDING OFFICER. Under under the domestic law enforcement review whether there were any out- the previous order, the Senator from portions of the law known as title III. rageous uses of these provisions or Michigan is recognized. And because modern communications whether uses were appropriate under Mr. LEVIN. Mr. President, the often travel through countless jurisdic- the basic intent of the bill. antiterrorism bill which the Senate is tions before reaching their final des- Let me briefly touch on a related about to pass reflects the sentiments tination, investigators must now get topic of great importance in the war the American people have expressed court orders from every one of those against terrorism. As an outgrowth of since the events of September 11—that jurisdictions. They can have to get 15, the Technology, Terrorism, and Gov- we must act swiftly and strongly to de- 20 court orders to carry out a wiretap. ernment Information Subcommittee, fend our country without sacrificing This bill would change that, allowing today Senator JON KYL of Arizona and our most cherished values. The Senate for just one court order from the origi- I held a press conference indicating a antiterrorism legislation meets that nating jurisdiction. bill we will shortly introduce to create test. It responds to these dangerous And the bill recognizes that voice a new, central database, a database times by giving law enforcement agen- mails and e-mails should be treated that is a lookout database into which cies important new tools to use in com- alike when law enforcement seeks ac- information from intelligence, from bating terrorism without denigrating

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Each of the Fein- large cash transactions—will have a I would like to comment on in order to gold amendments would have strength- legal obligation to exercise due dili- explain their intent and impact. ened privacy protections for American gence before allowing a foreign finan- First is the shell bank ban in Section citizens without undermining law en- cial institution to open a cor- 313 of the final bill. That provision ap- forcement efforts to investigate terror- respondent account with them and peared in both the House and Senate ists. One amendment would have main- thereby gain entry into the U.S. finan- bills, with only a few differences. The tained limits in Federal and State law cial system. primary difference is that the House on law enforcement access to personal For the first time, U.S. banks and se- provision applied only to ‘‘depository records, particularly with regards to curities firms will be barred from open- institutions,’’ while the Senate bill was sensitive medical and financial infor- ing accounts for foreign shell banks intended to ban both U.S. banks and mation. A second amendment would that have no physical presence any- have required law enforcement to as- U.S. securities firms from opening ac- where and no affiliation with another counts for shell banks. The final bill certain that a surveillance target bank. under the antiterrorism bill’s expanded takes the broader approach advocated For the first time, U.S. prosecutors by the Senate and applies the shell wiretap authority was actually in the will be able to freeze and seize a deposi- house that was bugged or using the bank ban to both U.S. banks and U.S. tor’s funds in a foreign financial insti- securities firms. This broader ban is in- phone that was tapped before surveil- tution’s correspondent account to the lance could be initiated. The third tended to make sure that neither U.S. same extent under civil forfeiture laws banks nor U.S. securities firms open amendment that I supported would as a depositor’s funds in other U.S. fi- have placed sensible limits on the gov- accounts for shell banks, which carry nancial accounts. the highest money laundering risks in ernment’s ability to intercept com- For the first time, foreign corruption puter communications. Among these the banking world. This broader ban offenses such as bribery and misappro- means, for example, that a bank that limits were the type of investigation priation of funds by a public official and the length of surveillance in which had shell banks as clients and was re- will qualify as predicate offenses that quired to close those accounts under the government could utilize new sur- can trigger a U.S. money laundering veillance authority provided in the this provision would not be able to cir- prosecution. cumvent the ban simply by switching antiterrorism bill. Still other provisions in the bill give While the amendments I supported its shell bank clients to accounts at an U.S. law enforcement a host of new were not adopted the bill before us is affiliated broker-dealer. The goal in- tools to investigate and prosecute much stronger from a civil liberties stead is to close off the U.S. financial money laundering crimes, especially standpoint than the legislation that system to shell banks and institute a crimes involving a foreign financial in- was initially proposed by the adminis- broad ban on shell bank accounts. stitution. tration. This is due in large part to the Here are some of the other key provi- In my floor statement of October 11, strong commitment to civil liberties sions in the bill that make landmark I explained the related requirement in and the tireless efforts of Senate Judi- changes in U.S. anti-money laundering Section 313 that U.S. financial institu- ciary Committee Chairman PATRICK laws. tions take reasonable steps to ensure LEAHY. For the first time, all U.S. financial that other foreign banks are not allow- The bill also bolsters Federal crimi- institutions will have a legal obliga- ing their U.S. accounts to be used by nal laws against terrorism in several shell banks. The purpose of this lan- important areas, including extending tion to verify the identity of their cus- tomers, and all customers will have a guage is to prevent shell banks from the statute of limitations for terrorist getting indirect access to the U.S. fi- offenses and modernizing surveillance legal obligation to tell the truth about who they are. nancial system by operating through a laws to permit investigators to keep correspondent account belonging to an- pace with new technologies like cell For the first time, all U.S. financial institutions will be required to have other foreign bank. That requirement phones and the Internet. was included in both the House and Michigan’s economy and security de- anti-money laundering programs. For the first time, the U.S. Treasury Senate bills, and in the final version of pend on the Federal Government pro- the legislation. It is a key provision be- viding adequate resources for inspec- Secretary will have legal authority to designate specific foreign financial in- cause it will put pressure on all foreign tion and law enforcement at the financial institutions that want to do State’s northern border. I am pleased stitutions, jurisdictions, transactions or accounts as a ‘‘primary money laun- business in the United States to cut off that the final bill now before us also the access that shell banks now enjoy includes significant new funding to in- dering concern’’ and use special meas- ures to restrict or prohibit their access in too many countries around the crease security and improve traffic world. flow at the northern border. to the U.S. marketplace. Finally, this legislation includes a For the first time, bulk cash smug- I also explained on October 11 that landmark set of provisions that I have gling over U.S. borders will be a pros- the shell bank ban contains one excep- been proud to sponsor that will ecutable crime, and suspect funds will tion that is intended to be narrowly strengthen and modernize U.S. anti- be subject to forfeiture proceedings. construed to protect the U.S. financial money laundering laws. Osama bin Just like we are tightening our bor- system from shell banks to the great- Laden has boasted that his modern new der controls to restrict access to the est extent possible. This exception, recruits know the ‘‘cracks’’ in ‘‘West- United States across its physical bor- which is identical in both the House ern financial systems’’ like they know ders, the bill’s anti-money laundering and Senate bills and is unchanged in the ‘‘lines in their hands.’’ Enactment provisions will tighten our financial the final version of the legislation, al- of this bill will help seal the cracks controls to restrict access into the U.S. lows U.S. financial institutions to open that allow terrorists and other crimi- financial system. They will require our an account for a shell bank that meets nals to use our financial systems financial institutions to take new two tests: the shell bank is affiliated against us. steps, to do more work, and to exercise with another bank that maintains a The final money laundering provi- greater caution before opening up the physical presence, and the shell bank is sions appear in Title 3 of the bill and financial system of the United States. subject to supervision by the banking represent a significant advance over When the anti-money laundering pro- regulator of that affiliated bank. The existing law. Here are some of the anti- visions first passed the Senate on Octo- intent of this exception is to allow U.S. money laundering provisions that I au- ber 11, I gave a floor statement explain- financial institutions to do business thored and that are included in the ing a number of the provisions that had with shell branches of large, estab- final bill. been taken from the Levin-Grassley lished banks on the understanding that

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11035 the bank regulator of the large, estab- 5312(a)(2) of the Bank Secrecy Act, in- but encompass accounts opened for any lished bank will also supervise the es- cludes not only banks, but also securi- ‘‘foreign financial institution.’’ This tablished bank’s branch offices world- ties firms, insurance companies, money broader reach is in keeping with the ef- wide, including any shell branch. As exchanges, and many other businesses fort of the Senate Banking Committee explained in my earlier floor state- that transfer funds or carry out large and the House Financial Services Com- ment, U.S. financial institutions are cash transactions. The House Financial mittee to expand the due diligence re- cautioned not to abuse this exception, Services Committee adopted the same quirement to apply to all financial in- to exercise both restraint and common approach as the Senate Committee, stitutions, not just banks. It means, for sense in using it, and to refrain from using the term ‘‘financial institution’’ example, that U.S. financial institu- doing business with any shell operation in its due diligence provision rather tions must use due diligence when that is affiliated with a poorly regu- than, for example, the term ‘‘deposi- opening accounts not only for foreign lated bank. tory institution’’ which the House banks, but also for foreign securities The House-Senate negotiations also Committee used in its version of the firms, foreign insurance companies, added a new provision to Section 313 shell bank ban. The bottom line, then, foreign exchange houses, and other for- giving U.S. financial institutions a 60- is that both the House and Senate ex- eign financial businesses. day period to wind up and close any ex- panded the due diligence provision to Section 311(e)(4) authorizes the isting accounts for shell banks and to apply to all U.S. financial institutions, Treasury Secretary to further define institute the reasonable procedures not just banks. terms used in subsection (e)(1), and called for to ensure that other cor- During the House-Senate negotia- Treasury may want to use that author- respondent accounts with foreign fi- tions on the final version of the anti- ity to issue regulatory guidance clari- nancial institutions are not being used money laundering legislation, Section fying the scope of the term ‘‘foreign fi- by shell banks. As I suggested on Octo- 311(e) of the bill was amended to make nancial institution’’ to help U.S. finan- ber 11, one possible approach with re- it applicable to both the due diligence cial institutions understand the extent spect to other correspondent accounts requirement created by Section 312 and of their due diligence obligation under would be for the U.S. financial institu- to the shell bank ban created by Sec- the new 31 U.S.C. 5318(i). In fashioning tion to develop standard language ask- tion 313. Section 311(e) establishes sev- this regulatory guidance, Treasury ing the foreign financial institution to eral new definitions for such terms as should keep in mind the intent of Con- certify that it is not and will not allow ‘‘account’’ and ‘‘correspondent ac- gress in issuing this new due diligence any shell bank to use its U.S. accounts count,’’ and also directs or authorizes requirement—to require all U.S. finan- and then to rely on that certification the Treasury Secretary to issue regula- cial institutions to use greater care absent any evidence to the contrary. tions to clarify other terms. By mak- when allowing any foreign financial in- A second provision I want to discuss ing those definitions and regulatory stitution inside the U.S. financial sys- in detail is the due diligence require- authority applicable to the due dili- tem. ment in Section 312 of the final bill. gence requirement and shell bank ban, The significance of applying the This provision also appeared in both the House-Senate negotiators helped ‘‘correspondent account’’ definition to the House and Senate bills, again with ensure that the same terms would be the shell bank ban is, again, to ensure only a few differences in wording. This used consistently across Sections 311, that the ban applies widely to bar a provision is intended to tighten U.S. 312 and 313. In addition, the change shell bank from opening virtually any anti-money laundering controls by re- helps clarify the scope of the due dili- type of financial account available at a quiring all U.S. financial institutions gence and shell bank provisions in sev- U.S. financial institution. to exercise due diligence when opening eral respects. or managing correspondent or private First, the change makes the defini- Third, due to the change made by banking accounts for foreign financial tion of ‘‘account’’ applicable to the due House-Senate negotiators, Section institutions or wealthy foreign individ- diligence requirement. This definition 311(e)(3) directs the Treasury Secretary uals. The purpose of this requirement makes it clear that the due diligence to issue regulations defining ‘‘bene- is to function as a preventative meas- requirement is intended to apply to a ficial ownership of an account’’ for pur- ure to stop rogue foreign financial in- wide variety of bank accounts provided poses of both the new 31 U.S.C. 5318A stitutions, terrorists or other criminals to foreign financial institutions or pri- and the new subsections (i) and (j) of 31 from using U.S. financial accounts to vate banking clients, including check- U.S.C. 5318. How the regulations define gain access to the U.S. financial sys- ing accounts, savings accounts, invest- ‘‘beneficial ownership’’ will have pro- tem. ment accounts, trading accounts, or found implications for these new provi- The most important change made to accounts granting lines of credit or sions as well as for other aspects of the due diligence requirement during other credit arrangements. The clear U.S. anti-money laundering laws. Sec- the House-Senate negotiations was to message is that, before opening any tion 311(e)(3) directs Treasury to ad- make the definitional provisions in type of account for a foreign financial dress three sets of issues in defining section 311 also apply to section 312. institution or a wealthy foreign indi- beneficial ownership: the significance Specifically, the House and Senate ne- vidual and giving that account holder of ‘‘an individual’s authority to fund, gotiators amended what is now Section access to the United States financial direct, or manage the account’’; the 311(e) to make sure that its provisions system, U.S. financial institutions significance of ‘‘an individual’s mate- would be applied to both the new 31 must use due diligence to evaluate the rial interest in the income or corpus of U.S.C. 5318A and the new subsections money laundering risk, to detect and the account’’; and the exclusion of indi- (i) and (j) of 31 U.S.C. 5318 created by report possible instances of money viduals whose beneficial interest in the Sections 311, 312 and 313 of the final laundering, and to deny access to ter- income or corpus of the account is im- bill. rorists or other criminals. material.’’ As I mentioned in my floor state- The definition also ensures that the The issue of beneficial ownership is ment on October 11, one of the key shell bank ban applies widely to bar a at the heart of the fight against terror- changes that the Senate Banking Com- shell bank from attempting to open ists and other criminals who want to mittee made to the due diligence re- virtually any type of financial account use our financial institutions against quirement when they took that provi- available at a U.S. financial institu- us. Terrorists and other criminals want sion from the Levin-Grassley bill, S. tion. to hide their identity as well as the 1371, was to make the due diligence re- Second, the change makes it clear criminal origin of their funds so that quirement apply to all U.S. financial that the definition of ‘‘correspondent they can use their U.S. accounts with- institutions, not just banks. The Bank- account’’ applies to the due diligence out alerting law enforcement. They ing Committee expanded the scope of requirement. This clarification is im- want to use U.S. and international pay- the due diligence requirement by delet- portant, because the definition makes ment systems to move their funds to ing the Levin-Grassley references to it clear that ‘‘correspondent accounts’’ their operatives with no questions ‘‘banks’’ and substituting the term ‘‘fi- are not confined to accounts opened for asked. They want to deposit their nancial institutions’’ which, in Section foreign banks, as specified in S. 1371, funds in interest-bearing accounts to

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11036 CONGRESSIONAL RECORD — SENATE October 25, 2001 increase the financial resources avail- lators, other countries with beneficial try can be designated as raising money able to them. They want to set up cred- ownership requirements and, of course, laundering concerns. The first way is if it card accounts and lines of credit from our own financial community. a country is formally designated by an that can be used to finance their illegal Fourth, Section 311(e)(2) directs the intergovernmental group or organiza- activities. Above all, they do not want Treasury Secretary to issue regula- tion of which the United States is a U.S. financial institutions determining tions clarifying how the term ‘‘ac- member. Currently, the most well who exactly is the owner of their ac- count’’ applies to financial institutions known such group is the Financial Ac- counts, since that information can lead other than banks. This authority tion Task Force on Money Laundering, to closure of the accounts, seizure of should be read in conjunction with Sec- also known as FATF, which is com- assets, exposure of terrorist or crimi- tion 311(e)(4) which allows, but does not posed of about 30 countries and is the nal organizations, and other actions by require, the Secretary to issue regula- leading international group fighting law enforcement. tions defining other terms in the new money laundering. In 2000, after a After the September 11 attack, it is 31 U.S.C. 5318A and the new subsections lengthy fact-finding and consultative more critical than ever that U.S. finan- (i) and (j) of 31 U.S.C. 5318. These two process, FATF began issuing a list of cial institutions determine exactly who regulatory sections should, in turn, be countries that FATF’s member coun- is the beneficial owner of the accounts read in conjunction with Section tries formally agreed to designate as they open. Another provision of the 312(b)(1) which directs the Secretary to noncooperative with international final bill, Section 326 which was au- issue regulations further clarifying the anti-money laundering principles and due diligence policies, procedures and thored by House Financial Services procedures. This list, which names be- controls required under that section. Committee Chairman OXLEY, requires tween 12 and 15 countries, is updated Together, these grants of regulatory financial institutions to verify the periodically and has become a powerful authority provide the Treasury Sec- identify of their customers. That provi- force for effecting change in the listed retary with ample authority to issue sion gets at the same issue—that our regulatory guidance to help different jurisdictions. The second way a coun- financial institutions need to know types of financial institutions under- try may be designated for purposes of who they are dealing with and who stand what is expected of them in the the enhanced due diligence require- they are performing services for. area of due diligence. Such guidance ment is if the country is so designated Some financial institutions have may be needed by banks, securities by the Treasury Secretary under the pointed out the difficulties associated firms, insurance companies, exchange procedures provided in the new Section with determining the beneficial owner houses, money service businesses and 5318A. This second alternative enables of certain accounts. But these are not other financial institutions. The guid- the United States to act unilaterally as new issues, and they can be dealt with ing principle, again, is to ensure that well as multilaterally to require U.S. in common sense ways. U.S. tax admin- U.S. financial institutions exercise ap- financial institutions to take greater istrators and financial regulators have propriate due diligence before opening care in opening correspondent accounts years of experience in framing owner- accounts for foreign financial institu- for foreign banks in jurisdictions of ship issues. Switzerland has had a ben- tions or wealthy foreign individuals concern. eficial ownership requirement in place seeking access to the U.S. financial The House and Senate bills contained for years, and in fact requires system. one minor difference in the wording of accountholders to sign a specific docu- These grants of regulatory authority the provision regarding foreign country ment, called ‘‘Form A,’’ declaring the can also be used by Treasury to ensure designations by an intergovernmental identify of the account’s beneficial that the shell bank ban established by group or organization under the new 31 owner. The difficulties associated with Section 313 is as broad and effective as U.S.C. 5318(i)(2)(A)(ii)(I). The House bill determining beneficial ownership can possible to keep shell banks out of the included a phrase, not in the Senate be addressed. U.S. financial system. bill, stating that the foreign country There will, of course, be questions of Next is due diligence and cor- designation had to be one with which interpretation. No one wants financial respondent banking. Section 312 im- the Secretary of Treasury concurred, institutions to record the names of the poses an ongoing, industry-wide legal apparently out of concern that an stockholders of publicly traded compa- obligation on all types of financial in- intergovernmental group or organiza- nies. No one wants financial institu- stitutions operating in the United tion might designate a country as non- tions to identify the beneficiaries of States to exercise appropriate care cooperative over the objection of the widely held mutual funds. That is why when opening and operating cor- United States. The final version of the this section directs the Treasury Sec- respondent accounts for foreign finan- provision includes the House approach, retary to issue regulatory guidance in cial institutions to safeguard the U.S. but uses statutory language making it this area. financial system from money laun- clear that U.S. concurrence in the for- At the same time, there are those dering. The general obligation to estab- who are hoping to convince Treasury eign country designation may be pro- lish appropriate and specific due dili- vided by the U.S. representative to the to turn the definition of beneficial gence policies, procedures and controls ownership inside out, and declare that relevant international group or organi- when opening correspondent accounts zation, whether or not that representa- attorneys or trustees or asset man- is codified in a new 31 U.S.C. 5318(i)(1). agers who direct payments into or out tive is the Secretary of Treasury or Subsection 5318(i)(2) specifies addi- some other U.S. official. of an account on behalf of unnamed tional, minimum standards for en- parties can somehow qualify as the hanced due diligence policies, proce- The new 31 U.S.C. 5318(i)(2) states ‘‘beneficial owner of the account.’’ Oth- dures and controls that must be estab- that the enhanced due diligence poli- ers will want to convince Treasury lished by U.S. financial institutions for cies, procedures and controls that U.S. that offshore shell corporations or correspondent accounts opened for two financial institutions must establish trusts can qualify as the beneficial specific categories of foreign banks: for correspondent accounts with off- owner of the accounts they open. But banks operating under offshore bank- shore banks and banks in jurisdictions those are exactly the types of accounts ing licenses and banks operating in for- designated as raising money laundering that terrorists and criminals use to eign countries that have been des- concerns must include at least three hide their identities and infiltrate U.S. ignated as raising money laundering elements. They must require the U.S. financial institutions. And those are concerns. These two categories of for- financial institution to ascertain the exactly the accounts for which U.S. fi- eign banks were identified due to their foreign bank’s ownership, to carefully nancial institutions need to verify and higher money laundering risks, as ex- monitor the account to detect and re- evaluate the real beneficial owners. plained in the extensive staff report port any suspicious activity, and to de- The beneficial ownership regulation and hearing record of the Permanent termine whether the foreign bank is al- will be a challenging undertaking. But Subcommittee on Investigations, cop- lowing any other banks to use its U.S. there is plenty of expertise to draw ies of which I released earlier this year. correspondent account and, if so, the upon, from FATF, the Basel Com- Subsection 5318(i)(2) provides two al- identity of those banks and related due mittee, U.S. financial and tax regu- ternative ways in which a foreign coun- diligence information.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11037 The three elements specified in Sec- report any suspicious activity. If the or accounts, or engage in other finan- tion 5318(i)(2) for enhanced due dili- account is opened for or on behalf of a cial transactions that carry money gence policies, procedures and controls senior foreign political figure or a close laundering risks. Because it is the in- are not meant to be comprehensive. family member or associate of the po- tent of Congress to strengthen due dili- Additional reasonable steps would be litical figure, the U.S. financial insti- gence controls and protect the U.S. fi- appropriate before opening or oper- tution must use enhanced due diligence nancial system to the greatest extent ating accounts for these two categories policies, procedures and controls with possible in the private banking area, of foreign banks, including steps to respect to that account, including the private banking definition should check the foreign bank’s past record closely monitoring the account to de- be interpreted in ways that will maxi- and local reputation, the jurisdiction’s tect and report any transactions that mize the due diligence efforts of U.S. regulatory environment, the bank’s may involve the proceeds of foreign financial institutions. major lines of business and client base, corruption. The enhanced due diligence Finally, the House-Senate nego- and the extent of the foreign bank’s requirements for private banking ac- tiators adjusted the effective date of anti-money laundering program. More- counts involving senior foreign polit- the due diligence provision. The new over, other categories of foreign finan- ical figures are intended to work in effective date gives the Treasury Sec- cial institutions will also require use of tandem with the guidance issued on retary 180 days to issue regulations enhanced due diligence policies, proce- this subject by Treasury and federal clarifying the due diligence policies, dures and controls including, for exam- banking regulators in January 2001. procedures and controls required under The accounts covered by the private ple, offshore broker-dealers or invest- the new 31 U.S.C. 5318(i). These regula- banking definition are not confined to ment companies, foreign money ex- tions are, again, intended to provide accounts at U.S. banks, but also cover changes, foreign casinos, and other for- regulatory guidance to the range of accounts opened at other types of fi- eign money service businesses. U.S. financial institutions that will be Now I would like to discuss due dili- nancial institutions, including securi- compelled to exercise due diligence be- gence and private banking. The new ties firms which have developed lines fore opening a private banking or cor- Section 5318(i) also addresses due dili- of business offering similar types of ac- respondent banking account. Section gence requirements for private banking counts to wealthy foreign individuals. 312(b) states that, whether or not the accounts. The private banking staff re- In addition, the section is intended to Treasury Secretary meets the 180-day port issued by the Permanent Sub- cover not only private banking ac- deadline for regulations, the due dili- committee on Investigations explains counts physically located inside the gence requirement will go into effect why these types of private banking ac- United States, but also private banking no later than 270 days after the date of counts are especially vulnerable to accounts that are physically located enactment of the legislation. That money laundering and why initial and outside of the United States but man- means, whether or not the Treasury ongoing due diligence reviews are need- aged by U.S. personnel from inside the Secretary issues any regulations, after ed to detect and report any suspicious United States. For example, the pri- 270 days, U.S. financial institutions activity. vate banking investigation conducted will be legally required to establish ap- The House and Senate versions of by my Subcommittee found that it was propriate and specific due diligence this provision were very similar. The a common practice for some U.S. pri- policies, procedures and controls for primary difference between them is vate banks to open private banking ac- their private banking and cor- that the House bill included a defini- counts for foreign clients in an offshore respondent accounts, including en- tion of ‘‘private banking accounts’’ or bank secrecy jurisdiction, but then hanced due diligence policies, proce- that originally appeared in the Levin- to manage those accounts using pri- dures and controls where necessary. Grassley bill, S. 1371, while the Senate vate bankers located inside the United left the term undefined. The final States. In such cases, the U.S. financial In addition to due diligence and the version of Section 5318(i) includes the institution is required to exercise the Shell Bank provisions, my October 11 House definition. It has three elements. same degree of due diligence in opening floor statement discusses several other First, the account in question must re- and managing those private banking bill provisions including those that add quire a $1 million minimum aggregate accounts as it would if those accounts foreign corruption offenses to the list of deposits. Second, the account must were physically located within the of crimes that can trigger a U.S. be opened on behalf of living individ- United States. money laundering prosecution, and uals with a direct or beneficial owner- Another area of inquiry involves the those that close a forfeiture loophole ship interest in the account. Third, the $1 million threshold. Some financial in- applicable to correspondent accounts account must be assigned to, adminis- stitutions have asked whether the $1 for foreign financial institutions. I will tered, or managed in part by, a finan- million minimum would be met if an not repeat that legislative history cial institution employee such as a pri- account initially held less than the re- again, but I do want to mention one vate banker, relationship manager or quired threshold, or the account’s total other provision that I authored to ex- account officer. The purpose of this deposits dipped below the threshold pand use of Federal receivers in money definition is to require U.S. financial amount on one or more occasions, or laundering and forfeiture proceedings. institutions to exercise due diligence the same individual held accounts both The Federal receivers provision is when opening and operating private inside and outside the private bank and contained in Section 317 of the final banking accounts with large balances kept the private bank account’s total bill, and I want to make three points controlled by wealthy foreign individ- deposits below the threshold amount. about it. First, this provision comes uals with direct access to the financial Such inquires are reminiscent of struc- out of the work of the Permanent Sub- professionals responsible for their ac- turing efforts undertaken to avoid cer- committee on Investigations which counts. tain anti-money laundering reporting found that many money laundering U.S. financial institutions with pri- requirements. Such structuring efforts crimes include such complex flows of vate banking accounts are required by have not been found acceptable in money across international lines that the new Section 5318(i)(1) to establish avoiding other anti-money laundering the average prosecutor does not have appropriate and specific due diligence requirements, and the language of the the time or resources needed to chase policies, procedures and controls with private banking provision is intended down the money, even when that respect to those accounts. Section to preclude such maneuvering here. money represents savings stolen or de- 5318(i)(3) states that, at a minimum, The purpose of the private banking frauded from hundreds of crime victims the due diligence policies, procedures provision is to require U.S. financial in the United States. In too many and controls must include reasonable institutions to exercise due diligence money laundering cases, the crime vic- steps to ascertain the identity of the when opening or managing accounts tims will never see one dime of their accountholders, including the bene- with large deposits for wealthy foreign lost savings. The Federal receiver pro- ficial owners; to ascertain the source of individuals who can use the services of vision in Section 317 is intended to pro- funds deposited into the account; and a private banker or other employee to vide Federal prosecutors and the Fed- to monitor the account to detect and move funds, open offshore corporations eral and State regulators working with

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11038 CONGRESSIONAL RECORD — SENATE October 25, 2001 them the option of using a court-ap- nancial institutions and, in the case of DEWINE, BILL NELSON, DURBIN, STABE- pointed receiver to chase down the the Oxley provision, to all financial ac- NOW, and KERRY. laundered funds. counts. Both represent important ad- The major elements of S. 1371 are Second, the provision is intended to vances in U.S. anti-money laundering part of the legislation we are now con- allow any U.S. district court to appoint laws by codifying basic anti-money sidering. a Federal receiver in a money laun- laundering requirements. I commend Finally, Mr. President, I want to give dering or forfeiture proceeding, wheth- my colleagues for enacting these basic a few thank-yous. First, I thank Sen- er criminal or civil, if so requested by anti-money laundering controls into ator SARBANES, chairman of the Senate the Federal prosecutor or Federal or law and filling in some of the gaps that Banking Committee. He saw the sig- State regulator associated with the have made our anti-money laundering nificance of the money laundering proceeding. The only restriction is that safeguards less comprehensive than issue in the fight against terrorism, the court must have jurisdiction over they need to be. and I thank him for his quick action, the defendant whose assets the receiver The clear intention of both the House his bipartisan inclusive approach, and will be pursuing. Jurisdiction may be and the Senate bills, and the final bill his personal dedication to producing determined in the context of the crimi- being enacted by Congress today, is to tough, meaningful legislation. I also nal or civil proceeding before the impose anti-money laundering require- thank him for allowing my staff to par- court, including under new language in ments across the board that reach vir- ticipate fully in the negotiations to other parts of Section 317 making it tually all U.S. financial institutions. reconcile the anti-money-laundering clear that a district court has jurisdic- Congress has determined that broad legislation passed by the House and the tion over any foreign financial institu- anti-money laundering controls appli- Senate. tion that has a correspondent account cable to virtually all U.S. financial in- I extend my thanks and congratula- at a U.S. financial institution; over stitutions are needed to seal the cracks tions to the Senate Banking Com- any foreign person who has committed in our financial systems that terrorists mittee and the House Financial Serv- a money laundering offense involving a and other criminals are all too ready to ices Committee for a fine bipartisan financial transaction occurring in exploit. product that will strengthen, mod- whole or in part in the United States; There are many other noteworthy ernize, and revitalize U.S. anti-money- and over any foreign person that has provisions of this legislation, from re- laundering laws. Congressman OXLEY converted to their own use property quirements involving legal service of and Congressman LAFALCE jumped that is the subject of a U.S. forfeiture subpoenas on foreign banks with U.S. right into the issue, committed them- order, as happened in the Swiss Amer- accounts, to new ways to prosecute selves to producing strong legislation, ican Bank case described in the Sub- money laundering crimes, to new ar- and did the hard work needed to committee’s staff report. rangements to increase cooperation produce it. The negotiations were a The third point about the Federal re- among U.S. financial institutions, reg- ceiver provision is that it is intended model of House-Senate collaboration, ulators and law enforcement to stop with bipartisan, productive discussions to make it clear that Federal receivers terrorists and other criminals from appointed under U.S. money laundering leading to a legislative product that is gaining access to the U.S. financial stronger than the legislation passed by laws may make requests and may ob- system. There just is not sufficient tain financial information from the either House and which is legislation in time to go into them all. which this Congress can take pride. U.S. Financial Crimes Enforcement To reiterate, the antiterrorism bill Network in Treasury and from foreign we have before us today would be very I also extend my thanks to Senator countries as if the receiver were stand- incomplete—only half of a toolbox— DASCHLE, Senator LOTT, and Senator ing in the shoes of a federal prosecutor. without a strong anti-money-laun- LEAHY for taking the actions that were This language is essential to increase dering title to prevent foreign terror- essential to ensure that the anti- the effectiveness of receivers who often ists and other criminals from using our money-laundering title was included in have to work quickly, in foreign juris- financial institutions against us. With the antiterrorism bill. Senator dictions, in cooperation with foreign the anti-money-laundering provisions DASCHLE made it very clear that with- law enforcement and financial regu- in this bill, the antiterrorism bill gives out these provisions no antiterrorism latory personnel, and who need clear our enforcement authorities a valuable bill would be complete. Senator LEAHY statutory authority to make use of set of additional tools to fight those took actions of all kinds to make sure international information sharing ar- who are attempting to terrorize this that, in fact, the anti-money laun- rangements available to assist U.S. law country. dering provisions were included in the enforcement. The provision is intended Osama bin Laden has boasted that final bill. to make it clear that the Federal re- his modern new recruits know, in his I thank Senator GRASSLEY who ceiver has the same access to inter- words, the ‘‘cracks’’ in ‘‘Western finan- joined me in this effort early on and national law enforcement assistance as cial systems’’ like they know the who worked with me every step of the a Federal prosecutor would if the pros- ‘‘lines in their own hands.’’ Enactment way win enactment of the anti-money ecutor were personally attempting to of this bill with these provisions will laundering legislation into law. recover the laundered funds. The lan- help seal those cracks that allow ter- Senator STABENOW I thank for her guage is also intended to make it clear rorists and other criminals to use our quick and decisive action during the that Federal receivers are bound by the own financial systems against us. Banking Committee’s consideration of same policies and procedures that bind The intention of this bill is to impose this bill. Without her critical assist- all Federal prosecutors in such mat- anti-money-laundering requirements ance, we would not be where we are ters, and that Federal receivers have across the board that reach virtually today. I also thank Senator KERRY for no authority to exceed any restrictions all U.S. financial institutions. his consistent, strong and informed set by the Attorney General. Our Permanent Subcommittee on In- role in fashioning this landmark legis- Finally, I would like to take note of vestigations, which I chair, spent 3 lation. two other provisions that are included years examining the weaknesses and Finally I want to give a few thank- in the final bill. They are Section 352 the problems in our banking system yous to staff. Elise Bean of my staff authored by Senate Banking Com- with respect to money laundering by first and foremost deserves all of our mittee Chairman SARBANES to require foreign customers, including foreign thanks for her heroic efforts on this all U.S. financial institutions to estab- banks. Through 6 days of hearings and legislation. She and Bob Roach of our lish anti-money laundering programs, 2 major reports, one of which contained Subcommittee staff led the Sub- and Section 326 authored by House Fi- case studies on 10 offshore banks, we committee investigations into money nancial Services Committee Chairman developed S. 1371 to strengthen our laundering and did very detailed work OXLEY to require all U.S. financial in- anti-money-laundering laws. A strong on private banking and correspondent stitutions to verify the identity of bipartisan group of Senators joined me banking that laid the groundwork for their customers. Both are strong re- in pressing for its enactment, including the legislation we are passing today. I quirements that apply to all U.S. fi- Senators GRASSLEY, SARBANES, KYL, want to thank them both.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11039 I want to thank Bill Olson of Senator Mr. SARBANES. Mr. President, I rise This legislation takes up that chal- GRASSLEY’s office for jumping in when- in very strong support of this legisla- lenge in a balanced and forceful way. ever needed and lending strong support tion—in particular, title III, the Inter- Title III contains, among other provi- to this legislative effort. Similar national Money Laundering Abatement sions, authority to take targeted ac- thanks go to John Phillips of Senator and Financial Antiterrorism Act, tion against countries, institutions, KERRY’s office who was there at all which was included as part of the transactions, or types of accounts the hours to make sure this legislation antiterrorism legislation. Of course, Secretary of the Treasury finds to be of happened. that bill was approved yesterday by the primary money-laundering concern. Similar thanks go to Senator SAR- House of Representatives and will be It also contains critical requirements BANES’ staff on the Senate Banking approved very shortly by this body. of due diligence standards directed at Committee—especially Steve Harris, Title III represents the most signifi- correspondent accounts opened at U.S. Marty Gruenberg, Patience Singleton cant anti-money-laundering legislation banks by foreign offshore banks and and Steve Kroll, who put in long hours, in many, many years—certainly since banks in jurisdictions that have been maintained a high degree of both com- money laundering was first made a found to fall significantly below inter- petency and professionalism, and pro- crime in 1986. The Senate Committee national anti-money-laundering stand- vided an open door for my staff to work on Banking, Housing, and Urban Af- ards. with them. fairs, which I have the privilege of It prohibits U.S. correspondent ac- I also want to thank the staff of the chairing, marked up and unanimously counts for offshore shell banks, those House Financial Services Committee— approved the key anti-money-laun- banks that have no physical presence Ike Jones, Carter McDowell, Jim dering provisions on October 4. Those or employees anywhere and that are Clinger and Cindy Fogleman. They put provisions were approved unanimously, not part of a regulated and recognized in long hours, knew the subject, and 21–0. Those were approved as Title III banking company. were dedicated to achieving a finished of S. 1510, the Uniting and Strength- The title also contains an important product of which we could all be proud. ening America Act on October 11 by a provision from the House bill that re- Our thanks also go to Laura Ayoud of vote of 96–1. H.R. 3004, the Financial quires the issuance of regulations re- the Senate Legislative Counsel’s office Antiterrorism Act, which contained quiring minimum standards for who literally worked around the clock many of the same provisions and added verifying the identity of customers during the negotiations on this legisla- important additional provisions, passed opening and maintaining accounts at tion and, through it all, kept a clear the House of Representatives by a vote U.S. financial institutions, and it very eye and a cheerful personality. Her of 412–1 on October 17. straightforwardly requires all financial work was essential to this product. Title III of this conference report institutions to establish appropriate The PRESIDING OFFICER. The Sen- represents a skillful melding of the two anti-money-laundering programs. ator from Maryland is recognized. bills and is a result of the strong con- Title III also includes several provi- Mr. SARBANES. Before I make my tribution made by House Financial sions to enhance the ability of the Gov- statement and before Senator LEVIN Services Committee and chairman MI- ernment to share more specific infor- leaves the floor, I wish to acknowledge CHAEL OXLEY and ranking member mation with banks, and the ability of the very substantial contribution that JOHN LAFALCE, working with Senator banks to share information with one Senator LEVIN made to the money- GRAMM, the ranking member of the another relating to potential terrorist laundering title that is in this bill, Senate committee, and myself. or money-laundering activities. which I think is an extremely impor- President Bush said on September 24, In addition, it provides important tant title. In fact, you can’t watch any when he took executive branch action technical improvements in anti- program on television that has experts on the money-laundering issue: money-laundering statutes, existing talking about what we ought to be We have launched a strike on the financial statutes, and mandates to the Depart- doing with respect to this terrorism foundation of the global terror network. ment of the Treasury to act or formu- challenge when either the first or sec- Title III of our comprehensive late recommendations to improve our ond thing they mention is to dry up the antiterrorism package supplies the ar- anti-money-laundering programs. financial sources of the terrorists, and mament for that strike on the finan- This is carefully considered legisla- that, of course, comes right back to the cial foundation of the global terror net- tion. While the committee moved expe- money laundering. work. Terrorist attacks require major ditiously, its movement was based Senator LEVIN, over a sustained pe- investments of time, planning, train- upon and reflects the efforts which riod of time, in the government oper- ing, practice, and financial resources to have been made over a number of years ations committee, held some very im- pay the bills. Osama bin Laden may on this issue. portant hearings, issued very signifi- have boasted, ‘‘Al-Qaida includes mod- As I indicated earlier, Senator CARL cant reports, and formulated a number ern, educated youth who are as aware LEVIN, Senator KERRY, and in addition, of recommendations. This title is, in of the cracks inside the Western finan- Senator CHARLES GRASSLEY have led part, built on the recommendations cial system as they are aware of the farsighted efforts to keep money-laun- that Senator LEVIN put forward at an lines in their hands,’’ but with title III, dering issues on the front burner. Oth- earlier time. I simply acknowledge his we are sealing up those cracks. ers in the Congress have also been in- extraordinary contribution to this Money laundering is the trans- volved with this issue over time. The issue. I acknowledge Senator KERRY as mission belt that gives terrorists the House Banking Committee, under the well. There were two proposals. They resources to carry out their campaigns leadership of then-Chairman JIM LEACH both had legislation in them and we of carnage, but we intend, with the and ranking member JOHN LAFALCE, used those as building blocks in formu- money-laundering title of this bill, to approved a money-laundering bill in lating this title. We think it is a very end that transmission belt in its abil- June of 2000 by a vote of 31–1. It was strong title and that it can be a very ity to bring resources to the networks very similar to the legislation intro- effective tool in this war against ter- that enable terrorists to carry out duced by Senator KERRY. rorism, and against drugs, and against their campaigns of violence. As the successor to Congressman organized crime. It should have been I need not bring to the attention of LEACH, House Financial Services Chair- done a long time ago, but it is being my colleagues the fact that public sup- man OXLEY has continued the commit- done now. port across the country for anti- ment to fighting money launderers to Before the able Senator from Michi- money-laundering legislation is ex- maintain the integrity of our financial gan leaves the floor, I thank him and tremely strong. Jim Hoagland put it system and, now, to help ensure the acknowledge his tremendous contribu- plainly in the Washington Post: safety of our citizens. We have been guided in our work by tion. This crisis offers Washington an oppor- Mr. LEVIN. Again, I thank Senator tunity to force American and international the testimony presented to the com- SARBANES for his great leadership, banks to clean up concealment and laun- mittee on September 26. We heard from along with Senator LEAHY, which made dering practices they now tolerate or encour- a number of expert witnesses and from this possible. age, and which terrorism can exploit. the Under Secretary of the Treasury

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00051 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11040 CONGRESSIONAL RECORD — SENATE October 25, 2001 Gurule, Assistant Attorney General utmost accuracy and professionalism. I bank accounts from especially prob- Chertoff, and Ambassador Stuart must say, I think the Senate is ex- lematic jurisdictions. The statute Eizenstat, the former Deputy Sec- tremely fortunate to have professionals specifies the considerations the Sec- retary of the Treasury. All of the wit- of the caliber of Mrs. Ayoud in the Leg- retary must take into account in using nesses advocated stronger and more islative Counsel’s office. I tip my hat the new authority and contains provi- modern money-laundering laws. not only to her, but to the extraor- sions to supplement the Administra- Before describing the provisions of dinary record of professionalism and tive Procedure Act to assure that any Title III in greater detail, I want to dedicated service which the Legislative remedies—except certain short-term single out a number of our colleagues Counsel’s office renders to the Senate. measures—are subject to full comment and their staffs for their extraordinary Title III addresses all aspects of our from all affected persons. contributions. defenses against money laundering. This new provision gives the Sec- I have already spoken about House Those defenses generally fall into three retary real authority to act to close Financial Services Committee Chair- parts. The first is the Bank Secrecy overseas loopholes through which U.S. man OXLEY and ranking member LA- Act passed in 1970. It requires financial financial institutions are abused. At FALCE, but I want to note their per- institutions to keep standardized present the Secretary has no weapons sonal willingness and that of their transaction records and report large except Treasury Advisories, which do staffs to work overtime to ensure that currency transactions and suspicious not impose specific requirements, or the House and Senate reached agree- transactions, and it mandates report- full economic sanctions which suspend ment on this important legislation. In ing of the movement of more than financial and trade relations with of- fact, last week when the office build- $10,000 in currency into and out of our fending targets. President Bush’s invo- ings were closed down, we met here in country. cation of the International Economic a room in the Capitol on Wednesday The Bank Secrecy Act is so named Emergency Powers Act, IEEPA, several evening, well beyond midnight, and re- because it bars bank secrecy in Amer- weeks ago was obviously appropriate. sumed early the next morning and con- ica by preventing financial institutions But there are many other situations in tinued throughout the day on Thurs- from maintaining opaque records or which we will not want to block all day, finally resolving all of our issues disregarding their records altogether. transactions, but where we will want to by the end of that afternoon. Secrecy is a hiding place for crime, and do more than simply advise financial I am truly grateful to all the mem- Congress has barred our institutions institutions about under-regulated for- bers of the Senate Banking Committee from allowing those hiding places. eign financial institutions or holes in for their strong, positive, and construc- The second part of our money-laun- foreign countermoney laundering ef- tive contributions to the Senate-ap- dering defenses are the criminal stat- forts. Former Deputy Secretary proved version of Title III. I indicated utes first enacted in 1986 that make it Eizenstat testified before the Com- it was approved by the committee on a a crime to launder money and that mittee in September that adding this 21–0 vote. Ranking member Senator allow criminal and civil forfeiture of tool to the Secretary’s arsenal was es- GRAMM provided critical support. the proceeds of crime. sential. Senators STABENOW, JOHNSON, and The third part is a statutory frame- Section 312 focuses on another aspect HAGEL were instrumental in producing work that allows information to be of the fight against money laundering, a compromise to resolve a dispute over communicated to and between law en- the financial institutions that make one of the package’s most important forcement officials. Our goal must be the initial decisions about what foreign provisions. to assure, to the greatest extent con- banks to allow inside the United Senator ENZI brought his expertise as sistent with reasonable privacy protec- States. It requires U.S. financial insti- an accountant to bear in refining an- tions—and we understood the necessity tutions to exercise appropriate due other critical provision. of balancing these considerations—to diligence when dealing with private Senator SCHUMER, who has been in- assure ourselves that necessary infor- banking accounts and interbank cor- volved in past efforts to address mation can be used by the right per- respondent relationships with foreign money-laundering activities, played an sons in real time to cut off terrorism banks. With respect to foreign banks, important role, as did Senators DODD, and crime. the section requires U.S. financial in- BAYH, CARPER, CORZINE, ALLARD, and Title III modernizes provisions in all stitutions to apply appropriate due CRAPO who either offered amendments three areas to meet today’s threats in diligence to all correspondent accounts or made other important contributions a global economy. Its provisions are di- with foreign banks, and enhanced due for improvements in this title. vided into three subtitles dealing re- diligence for accounts sought by off- I also want to take a moment to rec- spectively with international counter- shore banks or banks in jurisdictions ognize those members of our staff who money-laundering measures, sections found to have substandard money laun- devoted so many hours to crafting this 311 through 330; Bank Secrecy Act dering controls or which the Secretary important and comprehensive legisla- amendments and related improve- determines to be of primary money tion, literally all night in a couple of ments, sections 351 through 366; and laundering concern under the new au- instances along the way in the legisla- currency crimes and protections, sec- thority given him by section 311. tive process: Steve Kroll, Patience Sin- tions 371 through 377. The section also specifies certain gleton, Steve Harris, Lynsey Graham, There are 46 provisions in Title III. minimum standards for the enhanced Vince Meehan, Marty Gruenberg, and At this time, I want to summarize due diligence that U.S. financial insti- Jesse Jacobs on the Banking Commit- some of the bill’s most important pro- tutions are required to apply to ac- tee’s majority staff. And on the Bank- visions. counts opened for two categories of for- ing Committee’s minority staff, I want Section 311 gives the Secretary of the eign banks with high money laundering to underscore the work of Wayne Aber- Treasury, in consultation with other risks—offshore banks and banks in ju- nathy, Linda Lord, and Madelyn Sim- senior government officials, authority risdictions with weak anti-money laun- mons. to impose one or more of five new ‘‘spe- dering and banking controls. These I also thank Elise Bean from Senator cial measures’’ against foreign jurisdic- minimum standards were developed LEVIN’s staff and John Phillips from tions, entities, transactions or ac- from, and are based upon, the factual JOHN KERRY’s staff who worked closely counts that in the determination of the record and analysis contained in the with us and made significant contribu- Secretary, after consultation with comprehensive report on correspondent tions. other senior federal officials, poses a banking and money laundering that Finally, I take special note of Laura ‘‘primary money laundering concern’’ was prepared by the staff of the Senate Ayoud of the Legislative Counsel’s of- to the United States. The special meas- Permanent Subcommittee on Inves- fice. Mrs. Ayoud worked countless ures all involve special recordkeeping tigations, which Senator LEVIN chairs. hours from the very beginning so that and reporting measures—to eliminate Section 312 is essential to title III. It the committee print and a substitute the curtains behind which launderers addresses, with appropriate flexibility, for the Banking Committee markup hide. In extreme cases the Secretary is mechanisms whose very importance for were all produced on time and with the permitted to bar certain kinds of inter- the conduct of commercial banking

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00052 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11041 makes them special targets of money ness through U.S. correspondent ac- shoulders of the Nation’s financial in- launderers, as illustrated in Senator counts: be prepared, if you want to use stitutions, without placing any obliga- LEVIN’s extensive reports and hearings. our banking facilities, to operate in ac- tions on their customers. The con- The intent of the statute is to provide cordance with U.S. law. templated regulations should therefore special due diligence rules which will Section 313 of title III also builds on include provisions relating to the obli- apply to correspondent relationships the factual record before the Banking gations of individuals to provide accu- maintained for foreign financial insti- Committee to bar from the United rate information in connection with tutions not merely by domestic banks States financial system pure ‘‘brass- account-opening procedures, so that in but by all types of financial institu- plate’’ shell banks created outside the appropriate cases penalties may apply tions operating in the United States, U.S. that have no physical presence under the Bank Secrecy Act to cus- subject to the authority of the Sec- anywhere and are not affiliated with tomers who willfully mislead bank offi- retary of the Treasury to define the ap- any recognized banking institution. cials about matters of customer iden- propriate correspondent relationships These shell banks carry the highest tity. by regulation where appropriate. Given money laundering risks in the banking Section 352 requires financial institu- the scope of the applicable definition of world because they are inherently un- tions to establish minimum antimoney correspondent account, in new section available for effective oversight—there laundering programs that include ap- 5318A (which also applies for purposes is no office where a bank regulator or propriate internal policies, manage- of new section 5318(i)), the general due law enforcement official can go to ob- ment, employee training, and audit diligence obligations of new section serve bank operations, review docu- features. This is not a ‘‘one-size-fit-all’’ 5318(i)(1) apply to all correspondent ac- ments or freeze funds. Thus the ban on requirement; in fact its very generality counts maintained by U.S. financial in- provision of correspondent banking recognizes that different types of pro- stitutions for any foreign financial in- services for such brass-plate institu- grams will be appropriate for different stitution (i.e., not simply foreign de- tions is a particularly important part types and sizes of institutions. It is our pository institutions). of title III. New 31 U.S.C. 5318(j) is in- intention, by using general language in The statutory intent with respect to tended to be vigorously enforced and the amended provision, that the con- private banking accounts is similar; strictly applied, especially in light of tent of the relevant antimoney laun- that is, the statute is intended to pro- dering programs will necessarily vary the relief provided in the statute for vide special due diligence rules for pri- with the details of the particular finan- special banking vehicles that are affili- vate banking accounts maintained for cial institutions involved and the ated with operating institutions and non-United States persons not merely money laundering risks to which the are subject to financial supervision by depository institutions operating in nature of such institution and its fi- along with those institutions. nancial products exposes the institu- the United States, but by all types of Section 325 permits the Secretary to tion. Treasury regulations pursuant to financial institutions operating in the deal with abuse of another recognized United States and defined in 31 U.S.C. this section should allow adjustment of commercial banking mechanism—con- 5312, subject to the authority of the the extent of antimoney laundering centration accounts that are used to Secretary of the Treasury to define the programs for smaller businesses but commingle related funds temporarily appropriate definitions of the relevant not exempt businesses from the re- in one place pending disbursement or terms by regulation. quirement altogether simply because The question has been raised whether the transfer of funds into individual of their size. the due diligence provisions of section client accounts. Concentration ac- A number of improvements are made 312 are ‘‘discretionary.’’ The answer is counts have been used to launder to the suspicious activity reporting no. The provisions are to apply wheth- funds, and the bill authorizes the Sec- rules. First, technical changes er or not any rules are issued by the retary to issue rules to bar the use of strengthen the safe harbor from civil Treasury or whether the Treasury concentration accounts to move client liability for institutions that report takes any other implementing action funds anonymously, without docu- suspicious activity to the Treasury, (in contradistinction to the provisions mentation linking particular funds to Sec. 351. The provisions not only add to of new section 5318A, which must be af- their true owners. I believe that the the protection for reporting institu- firmatively invoked by the Secretary. Secretary must move promptly to exer- tions; they also address individual pri- The Secretary is given authority to cise the regulatory authority granted vacy concerns by making it clear that issue regulations ‘‘further delineating’’ by this section. government officers may not disclose the ‘‘due diligence policies, procedures, Section 326 will help ensure that indi- suspicious transaction reports informa- and controls’’ required by new sub- viduals opening accounts with U.S. fi- tion except in the conduct of their offi- section 5318(i), but those regulations nancial institutions provide informa- cial duties. Section 356 also requires must of course be consistent with the tion adequate to enable law enforce- the issuance of final suspicious trans- statutory language and intent to re- ment and supervisory agencies to iden- action reporting rules applicable to quire all U.S. financial institutions to tify accounts maintained by individ- brokers and dealers in securities by exercise the required standard of care uals suspected of terrorist activities. July 1, 2002; senior officials of the rel- in dealing with the risk of the misuse The section requires the Secretary of evant agencies must meet expedi- of the financial mechanisms with the Treasury to prescribe regulations tiously to resolve the policy issues which the subsection deals. in consultation with each federal func- raised at staff levels about the content A provision of section 319 of title III tional regulators to set minimum of the necessary regulations and the requires foreign banks that maintain standards and procedures concerning extent to which suspicious transaction correspondent accounts in the United the verification of customers’ identity, reporting rules should be the same for States to appoint agents for service of maintenance of records of identity banking and securities. process within the United States and verification, and consultation at ac- Sections 359 and 373 of the title deal authorizes the Attorney General and count opening of lists of known or sus- with underground banking systems the Secretary of the Treasury to issue pected terrorists provided to the finan- such as the Hawala, which is suspected a summons or subpoena to any such cial institution by a government agen- of being a channel used to finance the foreign bank seeking records, wherever cy. This section also requires the Sec- al Qaeda network. Section 359 makes it located, relating to such a cor- retary of the Treasury to submit rec- clear that underground money trans- respondent account. U.S. banks must ommendations to Congress, within 6 mitters are subject to the same record- sever correspondent arrangements with months of enactment, on the most ef- keeping rules—and the same penalties foreign banks that do not either com- fective way to require foreign nationals for violating those rules—as above- ply with or contest any such summons to provide financial institutions in the ground, recognized, money transmit- or subpoena, upon notification from United States with accurate identity ters. It also directs the Secretary of the Attorney General or Secretary of information. the Treasury to report to Congress, the Treasury. It is the intent of section 326 that within 1 year, on the need for addi- All of these provisions send a simple regulations pursuant to that section do tional legislation or regulatory con- message to foreign banks doing busi- not place obligations solely on the trols relating to underground banking

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Section 373 clarifies that op- encourage cooperation among financial him, Under Secretary Gurule at the erators of a money transmitter busi- institutions, financial regulators and Treasury, and his associates for their ness can be prosecuted under Federal law enforcement officials and to permit help in this effort. law for operating an illegal money the sharing of information by law en- At the hearing on September 26, As- transmitting business if they do not forcement and regulatory authorities sistant Attorney General Chertoff said, have a required State license. with such institutions regarding per- and I quote him, ‘‘We are fighting with Section 360 authorizes the Secretary sons reasonably suspected, based on outdated weapons in the money-laun- of the Treasury to instruct the United credible evidence, of engaging in ter- dering arena today.’’ Without this leg- States Executive Director of each of rorist acts or money laundering activi- islation, the cracks in the financial the international financial institutions ties. The section also allows banks to system of which bin Laden spoke would to use such Director’s ‘‘voice and vote’’ share information involving possible remain open. We should not, indeed we to support loans and other use of re- money laundering or terrorist activity cannot, allow that to continue. And sources to benefit nations that the among themselves—with notice to the that is why enactment of this legisla- President determines to be contrib- Secretary of the Treasury. tion is so important. uting to efforts to combat inter- Section 330 states the sense of Con- Title III is a balanced effort to ad- national terrorism, and to require the gress that the President should direct dress a complex area of national con- auditing of each international finan- certain cabinet officers to seek nego- cial institution to ensure that funds cern. It is the result of a truly bipar- tiations with foreign supervisory agen- tisan effort on both sides of Congress are not paid to persons engaged in or cies to ensure that foreign institutions supporting terrorism. working closely with the executive maintain adequate records relating to branch, with the White House, with the Section 371 creates a new Bank Se- any foreign terrorist organization or crecy Act offense involving the bulk Department of the Treasury, and the person engaged in any financial crime Department of Justice. I very strongly smuggling of more than $10,000 in cur- and to make such records available to rency in any conveyance, article of lug- urge support for this essential compo- U.S. law enforcement and financial su- nent of the antiterrorism package. gage or merchandise or container, ei- pervisory personnel. ther into or out of the United States, Section 355 permits but does not re- I ask unanimous consent that a sec- and related forfeiture provisions. This quire, a bank to include information, tion-by-section summary be printed in provision has been sought for several in a response to a request for an em- the RECORD. years by both the Departments of Jus- ployment reference by a second bank, There being no objection, the mate- tice and Treasury. about the possible involvement of a rial was ordered to be printed in the Other provisions of the bill address former institution-affiliated party in RECORD, as follows: relevant provisions of the Criminal potentially unlawful activity, and cre- TITLE III—INTERNATIONAL MONEY LAUN- Code. These provisions were worked ates a safe harbor from civil liability DERING ABATEMENT AND FINANCIAL ANTI- out with the House and Senate Judici- for the bank that includes such infor- TERRORISM ACT OF 2001—SECTION-BY-SEC- ary Committees and are included in mation in response to an employment TION SUMMARY title III because of their close relation- reference request, except in the case of Section 301. Short title and table of contents ship to the provisions of title 31 added malicious intent. Section 302. Findings and purposes or modified by title III. Section 358 contains amendments to The most important is section 315, Section 303. 4-Year congressional review-expe- various provisions of the Bank Secrecy dited consideration which expands the list of specified un- Act, the Right to Financial Privacy lawful activities under 18 U.S.C. 1956 Section 313 provides that the provisions Act, and the Fair Credit Reporting Act and 1957 to include foreign corruption added and amendments made by Title III to permit information subject to those offenses, certain U.S. export control will terminate after September 30, 2004, if statutes to be used in the conduct of the Congress enacts a joint resolution to violations, offenses subject to U.S. ex- United States intelligence or counter- that effect, and that any such joint resolu- tradition obligations under multilat- intelligence activities to protect tion will be considered by the Congress expe- eral treaties, and various other of- against international terrorism. ditiously. fenses. The Department of Justice Section 361 seeks to enhance the abil- SUBTITLE A. INTERNATIONAL COUNTER-MONEY should make use of the expanded au- ity of FinCEN to address money laun- LAUNDERING AND RELATED MATTERS thority, created by section 315, to dering and terrorism. The section make the risk of detection to foreign Section 311. Special measures for jurisdictions, makes FinCEN a bureau of the Treas- financial institutions, or international kleptocrats immediate and palpable. ury and requires the Secretary to es- transactions or accounts of primary money Section 316 establishes procedures to laundering concern protect the rights of persons whose tablish operating procedures for the property may be subject to confisca- government-wide data access service Section 311 adds a new section 31 U.S.C. tion in the exercise of the govern- and communications center that 5318A, entitled ‘‘Special measures for juris- FinCEN operates. In recognizing dictions, financial institutions, or inter- ment’s antiterrorism authority. This national transactions of primary money provision is designed to assure that FinCEN’s evolution and maturity, it is not our intention to require existing laundering concern,’’ to the Bank Secrey there is no situation in which the de- Act. The new section gives the Secretary of fendant in a forfeiture action will lack delegations of authority to be reissued the Treasury, in consultation with other sen- the opportunity to challenge the for- simply because FinCEN’s organiza- ior government officials, authority (in the feiture simply because of the authority tional status has changed from Treas- Secretary’s discretion), to impose one or under which the forfeiture is sought. ury office to Treasury bureau. more of five new ‘‘special measures’’ against Section 319 treats amounts deposited The modernization of our money- foreign jurisdictions, foreign financial insti- by foreign banks in interbank accounts laundering laws represented by Title tutions, transactions involving such jurisdic- III is long overdue. It is not the work tions or institutions or one more types of ac- with U.S. banks as having been depos- counts, that the Secretary, after consulta- ited in the United States for purposes of one or two weeks but represents years of careful study and a bipartisan tion with Secretary of State and the Attor- of the forfeiture rules, but grants the ney General, determines to pose a ‘‘primary Attorney General authority, in the in- effort to produce prudent and effective money laundering concern’’ to the United terest of fairness and consistent with legislation. The care taken in pro- States. The special measures include: (1) re- the United States’ national interest, to ducing the legislation extends to sev- quiring additional recordkeeping or report- suspend a forfeiture proceeding based eral provisions calling for reporting on ing for particular transactions, (2) requiring on that presumption. This closes an the effect of the legislation and a pro- the identification of the foreign beneficial important forfeiture loophole. vision for a three-year review of the ef- owners of certain accounts at a U.S. finan- A third important set of provisions fectiveness of the legislation. Title III cial institution, (3) requiring the identifica- responds, as I have indicated, to the tion of customers of a foreign bank who use modernize information-sharing rules to an interbank payable-through account reflect the reality of the flight against statement of Assistant Attorney Gen- opened by that foreign bank at a U.S. bank, money laundering and terrorism. eral Chertoff, the head of the Depart- (4) requiring the identification of customers Section 314 requires the Secretary of ment of Justice’s Criminal Division. I of a foreign bank who use an interbank cor- the Treasury to issue regulations to want to express my appreciation to respondent account opened by that foreign

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11043 bank at a U.S. bank, and (5) after consulta- count, as needed to guard against money Section 314. Cooperative efforts to deter money tion with the Secretary of State, the Attor- laundering and report any suspicious trans- laundering ney General, and the Chairman of the Fed- actions under the terms of 31 U.S.C. 5318(g). Section 314 requires the Secretary of the eral Reserve Board, restricting or prohib- Second, the U.S. financial institution must Treasury to issue regulations, within 120 iting the opening or maintaining of certain take reasonable steps to conduct enhanced days of the date of enactment, to encourage interbank correspondent or payable through scrutiny, that is reasonably designed to de- cooperation among financial institutions, fi- accounts. Measures 1–4 may not be imposed tect and report transactions that may in- nancial regulators and law enforcement offi- for more than 120 days except by regulation, volve the proceeds of foreign corruption, for cials, and to permit the sharing of informa- and measure 5 may only be imposed by regu- any private banking account that is re- tion by law enforcement and regulatory au- lation. quested or maintained by, or on behalf of, a thorities with such institutions regarding Section 312. Special due diligence for cor- senior foreign political figure (or any imme- persons reasonably suspected, based on cred- respondent accounts and private banking diate family member or close associate of ible evidence, of engaging in terrorist acts or accounts such a political figure). money laundering activities. Section 314 also Section 312(a) of the Act adds a new sub- A private banking account for this purpose allows (with notice to the Secretary of the section (1), entitled ‘‘Due Diligence for is any account or combination of accounts Treasury) the sharing of information among United States Private Banking and Cor- that requires a minimum aggregate deposit banks involving possible terrorist or money respondent Banking Accounts involving For- of at least $1 million, is established on behalf laundering activity, and requires the Sec- eign Persons,’’ to 31 U.S.C. 5318. The new sub- of one or more individuals who have either a retary of the Treasury to publish, at least section requires a U.S. financial institution direct or beneficial ownership interest in the semiannually, a report containing a detailed that maintains a correspondent account or account, and that is assigned to, or adminis- analysis of patterns of suspicious activity private banking account for a non-United tered or managed by, in whole or in part, an and other appropriate investigative insights States person (or that person’s representa- officer, employee or agent of a financial in- derived from suspicious activity reports and tive) to establish appropriate, specific, and, stitution who serves as liaison between the law enforcement investigations. where necessary, enhanced due diligence pro- institution and the account’s direct or bene- Section 315. Inclusion of foreign corruption of- cedures that are reasonably designed to de- ficial owner or owners. fenses as money laundering crimes tect and report instances of money laun- Effective Date; Regulations.—31 U.S.C. 5318(j) Section 315 amends 18 U.S.C. 1956 to in- dering through such accounts. For this pur- will take effect 270 days after the date of en- clude foreign corruption offenses, certain pose, a correspondent account is defined in actment of Title III as part of the Uniting to U.S. export control violations, certain cus- the new section 5318A, added to the Bank Se- Save America Act and will apply to other- toms and firearm offenses, certain computer crecy Act by section 311 of Title III. wise covered correspondent and private fraud offenses, and felony violations of the The general requirement is supplemental banking accounts, whether opened before, Foreign Agents Registration Act of 1938, to by two additional, more specific, due dili- on, or after the date of enactment. Section the list of crimes that constitute ‘‘specified gence standards that are required for certain 312(b) of Title III requires the Secretary of unlawful activities’’ for purposes of the types of correspondent and private banking the Treasury, in consultation with the ap- criminal money laundering provisions. These accounts. propriate federal functional regulators of the changes in law mean that the U.S. will no Correspondent Accounts.—In the case of cer- affected financial institutions, to further de- longer allow a rapacious foreign dictator to tain correspondent accounts, the additional lineate, by regulation, the due diligence poli- bring his funds to the U.S. and hide them standards required by subsection 5318(i)(2) re- cies, procedures, and controls required under without fear of detection or prosecution. quire a U.S. financial institution to, at a new subsection 5318(j), not later than 180 Section 316. Anti-terrorist forfeiture protection minimum, do three things. First, it must as- days of the date of enactment. However, the certain the identity, and the nature and ex- new subsection will take effect whether or Section 316 establishes procedures to pro- tent of the ownership interests, of the own- not final regulations are issued before the tect the rights of persons whose property ers of any foreign bank correspondent whose 270th day following enactment, and any fail- may be subject to confiscation in the exer- shares are not publicly traded. Second, it ure to issue regulations whether before or cise of the government’s anti-terrorism au- must conduct enhanced scrutiny of the cor- after the effective date is in no way to affect thority. respondent account to guard against money the enforceability of subsection 5318(j). Section 317. Long-arm jurisdiction over foreign money launderers laundering and satisfy its obligation to re- Section 313. Prohibition on United States cor- port suspicious transactions under the terms respondent accounts with foreign shell Section 317 amends 18 U.S.C. 1956 to give of 31 U.S.C. 5318(g). Third, it must ascertain banks United States courts ‘‘long-arm’’ jurisdiction whether any foreign bank correspondent in over foreign persons committing money turn provides correspondent accounts to Section 313(a) of the Act adds a new sub- laundering offenses in the United States, third party foreign banks; if so the U.S. fi- section (j), entitled ‘‘Prohibition on United over foreign banks opening U.S. bank ac- nancial institution must ascertain the iden- States Correspondent Accounts with Foreign counts, and over foreign persons who convert tity of those third party foreign banks and Shell Banks’’ to 31 U.S.C. 5318. The new sub- assets ordered forfeited by a U.S. court. The related due diligence information required section bars any depository institution or amendments made by section 317 also permit under the general rules of paragraph registered broker-dealer in securities, oper- a federal court dealing with such foreign per- 5318(i)(1). ating in the United States, from estab- sons to issue a pre-trial restraining order or These additional standards apply to cor- lishing, maintaining, administering, or man- take other action necessary to preserve prop- respondent accounts requested or main- aging a correspondent account in the United erty in the United States to satisfy an ulti- tained by or on behalf of any foreign bank States for a foreign bank, if the foreign bank mate judgment. Finally, the amendment operating under (i) an offshore banking li- does not have ‘‘a physical presence in any also permits the appointment by a federal cense (defined by the statute as a banking li- country.’’ The subsection also includes a re- court of a receiver to collect and take cus- cense that bars the licensee from conducting quirement that any financial institution tody of a defendant’s assets to satisfy crimi- banking activities with citizens of, or in the covered by the subsection must take reason- nal or civil money laundering or forfeiture local currency of, the jurisdiction that able steps (as delineated by Treasury regula- judgments. tions) to ensure that it is not providing the issued the license), or (ii) under a banking li- Section 318. Laundering money through a for- prohibited services indirectly to a ‘‘no-phys- cense issued (A) by any country designated eign bank as noncooperative with international anti- ical presence bank,’’ through a third party money laundering principles by an intergov- foreign bank correspondent of the U.S. insti- Section 318 expands the definition of finan- ernmental body of which the United States tution. The prohibition does not apply, how- cial institution for purposes of 18 U.S.C. 1956 is a member, with the concurrence of the ever, to a correspondent account provided by and 1957 to include banks operating outside U.S. representative to such body, or (B) by a a U.S. institution to a foreign ‘‘no physical of the United States. country that has been designated by the Sec- presence’’ bank if that foreign bank is an af- Section 319. Forfeiture of funds in United States retary of the Treasury as warranting special filiate of a depository institution (including interbank accounts measures (i.e., the special measures author- a credit union or foreign bank) that does Section 319 contains a number of provi- ized by new section 31 U.S.C. 5318A, added by have a physical presence in some country sions that are designed to deal with practical section 311 of Title III), due to money laun- and if the foreign shell bank is subject to su- issues raised by money laundering control dering concerns. pervision by a banking authority that regu- and financial transparency, relating pri- Private Banking Accounts.—In the case of lates its ‘‘physical presence’’ affiliate in that marily to correspondent accounts at U.S. fi- private banking accounts, the additional country. Both the terms ‘‘affiliate’’ and nancial institutions. standards required by subsection 5318(i)(3) re- ‘‘physical presence’’ are defined in the new First, section 319 amends 18 U.S.C. 981 to quire a U.S. financial institution to, at a subsection. treat amounts deposited by foreign banks in minimum, do two things. First, the U.S. fi- Section 313(b) provides that the ban on pro- interbank accounts with U.S. banks as hav- nancial institution must take reasonable vision of correspondent accounts for brass- ing been deposited in the United States for steps to ascertain the identity of the nomi- plate banks will take effect at the end of the purposes of the forfeiture rules, but grants nal and beneficial owners of the account and 60 day period ending on the date of enact- the Attorney General authority, in the inter- the source of funds deposited into the ac- ment. est of justice and consistent with the United

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11044 CONGRESSIONAL RECORD — SENATE October 25, 2001 States’ national interest, to suspend a for- Treasury to prescribe by regulation, jointly civil liability for financial institutions filing feiture proceeding that is otherwise based on with each federal functional regulator, min- suspicious activity reports pursuant to 31 the ‘‘U.S. deposit’’ presumption. imum standards for financial institutions U.S.C. 5318(g). The amendments to paragraph Second, section 319 adds a new subsection and their customers regarding the identity (g)(3) also create a safe harbor from civil li- (k) to 31 U.S.C. 5318 to require U.S. financial of the customer that shall apply in connec- ability for banks that provide information in institutions to reply to a request for infor- tion with the opening of an account at a fi- employment references sought by other mation from a U.S. regulator relating to nancial institution; the minimum standards banks pursuant to the amendment to the anti-money laundering compliance within shall require financial institutions to imple- Federal Deposit Insurance Act made by Sec- 120 hours of receipt of such a request, and to ment, and customers (after being given ade- tion 355 of Title III. require foreign banks that maintain cor- quate notice) to comply with, reasonable Section 352. Anti-money laundering programs respondent accounts in the United States to procedures concerning verification of cus- appoint agents for service of process within tomer identity, maintenance of records of Section 352 amends 31 U.S.C. 5318(h) to re- the United States; the new 31 U.S.C. 5318(k) identity verification, and consultation at ac- quire financial institutions to establish anti- authorizes the Attorney General and the count opening of lists of known or suspected money laundering programs and grants the Secretary of the Treasury to issue a sum- terrorists provided to the financial institu- Secretary of the Treasury authority to set mons or subpoena to any such foreign bank tion by a government agency. The required minimum standards for such programs. The seeking records, wherever located, relating regulations are to be issued within one year anti-money laundering program requirement to such a correspondent account. Finally, of the date of enactment. takes effect at the end of the 180 day period the provision requires the U.S. depository in- Section 326(b) requires the Secretary of the beginning on the date of enactment of the stitution or broker-dealer that maintains Treasury, again in consultation with the fed- Act and the Secretary of the Treasury is to the account to sever correspondent arrange- eral functional regulators (as well as other prescribe regulations before the end of that ments with any foreign bank within 10 days appropriate agencies), to submit a report to 180 day period that consider the extent to of notification by the Attorney General or Congress within six months of the date of en- which the requirements imposed under the Secretary of the Treasury (each after actment containing recommendations about amended section 5318(h) are commensurate consultation with the other) that the foreign the most effective way to require foreign na- with the size, location, and activities of the bank has neither complied with nor con- tionals to provide financial institutions in financial institutions to which the regula- tested any such summons or subpoena. the United States with accurate identity in- tions apply. Finally, Section 319 amends section 413 of formation, comparable to that required to be Section 353. Penalties for violations of geo- the Controlled Substances Act to authorize provided by U.S. nationals, and to obtain an graphic targeting orders and certain record- United States courts to order a convicted identification number that would function keeping requirements, and lengthening ef- criminal to return property located abroad similarly to a U.S. national’s tax identifica- fective period of geographic targeting orders and to order a civil forfeiture defendant to tion number. return property located abroad pending trial Section 327. Consideration of anti-money laun- Section 353 amends 31 U.S.C. 5321, 5322, and on the merits. dering record 5324 to clarify that penalties for violation of the Bank Secrecy Act and its implementing Section 320. Proceeds of foreign crimes Section 327 amends section 3(c) of the Bank regulations also apply to violations of Geo- Section 320 amends 18 U.S.C. 981 to permit Holding Company Act of 1956, and section graphic Targeting orders issued under 31 the United States to institute forfeiture pro- 18(c) of the Federal Deposit Insurance Act to U.S.C. 5326, and to certain recordkeeping re- ceedings against the proceeds of foreign require the Federal Reserve Board and the quirements relating to funds transfers. Sec- criminal offenses found in the United States. Federal Deposit Insurance Corporation, re- tion 353 also amends 31 U.S.C. 5326 to make Section 321. Financial institutions specified in spectively, to consider the effectiveness of a the period of a geographic target order 180 subchapter II of chapter 53 of Title 31, bank holding company or bank (within the days. United States Code jurisdiction of the appropriate agency) in Section 321 amends 31 U.S.C. 5312(2) to add combating money laundering activities, in- Section 354. Anti-money laundering strategy credit unions, futures commission mer- cluding in overseas branches, in ruling on Section 354 amends 31 U.S.C. 5341(b) to add chants, commodity trading advisors, and any merger or similar application by the ‘‘money laundering related to terrorist fund- registered commodity pool operators to the bank or bank holding company. ing’’ to the list of subjects to be dealt with definition of ‘‘financial institution’’ for pur- Section 328. International cooperation on iden- in the annual National Money Laundering poses of the Bank Secrecy Act, and to in- tification of originators of wire transfers Strategy prepared by the Secretary of the clude the Commodity Futures Trading Com- Section 328 requires the Secretary of the Treasury pursuant to the Money Laundering mission within the term ‘‘federal functional Treasury, in consultation with the Attorney and Financial Crimes Strategy Act of 1998. regulator’’ for purposes of the Bank Secrecy General and the Secretary of State, to take Section 355. Authorization to include suspicions Act. all reasonable steps to encourage govern- of illegal activity in written employment ref- Section 322. Corporation represented by a fugi- ments to require the inclusion of the name of erences tive the originator in wire transfer instructions Section 355 amends section 18 of the Fed- Section 322 extends the existing prohibi- sent to the United States, and to report an- eral Deposit Insurance Act to permit (but tion, in 18 U.S.C. 2466, against the mainte- nually to the House Committee on Financial not require) a bank to include information, nance of a forfeiture proceeding on behalf of Services and the Senate Committee on in a response to a request for an employment a fugitive to include a proceeding by a cor- Banking, Housing, and Urban Affairs con- reference by a second bank, about the pos- poration whose majority shareholder is a fu- cerning progress toward that goal. sible involvement of a former institution-af- gitive and a proceeding in which the corpora- Section 329. Criminal penalties filiated party in potentially unlawful activ- tion’s claim is instituted by a fugitive. Section 329 provides criminal penalties for ity. A bank that provides information to a Section 323. Enforcement of foreign judgments officials who violate their trust in connec- second bank under the terms of this amend- Section 323 permits the government to tion with the administration of Title III. ment is protected from civil liability arising seek a restraining order to preserve the Section 330. International cooperation in in- from the provision of the information unless availability of property subject to a foreign vestigations of money laundering, financial the first bank acts with malicious intent. forfeiture or confiscation judgment. crimes, and the finances of terrorist groups Section 356. Reporting of suspicious activities by Section 324. Report and recommendation Section 330 states the sense of the Congress securities brokers and dealers; investment Section 324 directs the Secretary of the that the President should direct the Sec- company study Treasury, in consultation with the Attorney retary of State, the Attorney General, or the Section 356(a) directs the Secretary of the General, the Federal banking agencies, the Secretary of the Treasury, as appropriate Treasury, after consultation with the Securi- SEC, and other appropriate agencies to and in consultation with the Federal Reserve ties and Exchange Commission and the Fed- evaluate operation of the provisions of Sub- Board, to seek negotiations with foreign fi- eral Reserve Board, to publish proposed regu- title A of Title III of the Act and recommend nancial supervisory agencies and other for- lations, on or before December 31, 2002, and to Congress any relevant legislative action, eign officials, to ensure that foreign finan- final regulations on or before July 1, 2002, re- within 30 months of the date of enactment. cial institutions maintain adequate records quiring broker-dealers to file suspicious ac- Section 325. Concentration accounts at finan- relating to any foreign terrorist organization tivity reports. cial institutions or its membership, or any person engaged in Section 356(b) authorizes the Secretary of Section 325 amends 31 U.S.C. 5318(h) to au- money laundering or other financial crimes, the Treasury, in consultation with the Com- thorize the Secretary of the Treasury to and make such records available to U.S. law modity Futures Trading Commission, to pre- issue regulations concerning the mainte- enforcement and financial supervisory per- scribe regulations requiring futures commis- nance of concentration accounts by U.S. de- sonnel when appropriate. sion merchants, commodity trading advisors, pository institutions, to prevent an institu- SUBTITLE B. BANK SECRECY ACT AMENDMENTS and certain commodity pool operators to tion’s customers from anonymously direct- AND RELATED IMPROVEMENTS submit suspicious activity reports under 31 ing funds into or through such accounts. Section 351. Amendments relating to reporting of U.S.C. 5318(g). To a significant extent, the Section 326. Verification of identification suspicious activities authorization clarifies and restates the Sec, 326(a) adds a new subsection (l) to 31 Section 351 restates 31 U.S.C. 5318(g)(3) to terms of existing law, but it also signals our U.S.C. 5318 to require the Secretary of the clarify the terms of the safe harbor from concern that the Treasury move quickly to

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00056 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11045 determine the extent to which suspicious for FinCEN for fiscal years 2002 through 2005. licensed (under state law) or unregistered transaction reporting by commodities firms Finally, Section 361 requires the Secretary (under federal law) money transmission busi- is necessary as a part of the nation’s anti- to study methods for improving compliance ness. Section 373 also amends 18 U.S.C. 981(a) money laundering programs. with the reporting requirements for owner- to authorize the seizure of funds involved in Section 356(c) requires the Secretary of the ship of foreign bank and brokerage accounts a violation of 18 U.S.C. 1960. Treasury, the SEC and Federal Reserve by U.S. nationals imposed by regulations Section 374. Counterfeiting domestic currency Board to submit jointly to Congress, within issued under 31 U.S.C. 5314; the required re- and obligations. one year of the date of enactment, rec- port is to be submitted within six months of Section 374 makes a number of changes to ommendations for effective regulations to the date of enactment and annually there- the provisions of 18 U.S.C. 470–473 relating to apply the provisions of 31 U.S.C. 5311–30 to after. the maximum sentences for various counter- both registered and unregistered investment Section 362. Establishment of highly secure feiting offenses, and adds to the definition of companies, as well as recommendations as to network. counterfeiting in 18 U.S.C. 474 the making, whether the Secretary should promulgate Section 362 directs the Secretary of the acquiring, etc. of an analog, digital, or elec- regulations treating personal holding compa- Treasury to establish, within nine months of tronic image of any obligation or other secu- nies as financial institutions that must dis- enactment, a secure network with FinCEN rity of the United States. close their beneficial owners when opening that will allow financial institutions to file Section 375. Counterfeiting foreign currency accounts or initiating funds transfers at any suspicious activity reports and provide such and obligations. domestic financial institution. institutions with information regarding sus- Section 375 makes a number of changes to Section 357. Special report on administration of picious activities warranting special scru- the provisions of 18 U.S.C. 478–480 relating to Bank Secrecy provisions tiny. the maximum sentences for various counter- Section 357 directs the Secretary of the Section 363. Increase in civil and criminal pen- feiting offenses involving foreign obligations Treasury to submit a report to Congress, six alties for money laundering. or securities and adds to the definition of months after the date of enactment, on the Section 363 increases from $100,000 to counterfeiting in 18 U.S.C. 481 the making, role of the Internal Revenue Service in the acquiring, etc. of an analog, digital, or elec- administration of the Bank Secrecy Act, $1,000,000 the maximum civil and criminal penalties for a violation of provisions added tronic image of any obligation or other secu- with emphasis on whether IRS Bank Secrecy rity of a foreign government. Act information processing responsibility to the Bank Secrecy Act by sections 311, 312 and 313 of this Act. Section 376. Laundering the proceeds of ter- (for reports filed by all financial institu- rorism. tions) or Bank Secrecy Act audit and exam- Section 364. Uniform protection authority for Section 376 amends 18 U.S.C. 1956 to add ination responsibility (for certain non-bank Federal Reserve facilities. the provision of support to designated for- financial institutions) should be retained or Section 364 authorizes certain Federal Re- eign terrorist organizations to the list of transferred. serve personnel to act as law enforcement of- crimes that constitute ‘‘specified unlawful Section 358. Bank Secrecy provisions and anti- ficers and carry fire arms to protect and activities’’ for purposes of the criminal terrorist activities of the United States intel- safeguard Federal Reserve employees and money laundering statute. (This provision ligence agencies premises. was originally included in another title of Section 358 contains amendments to var- Section 365. Reports relating to coins and cur- the terrorism legislation.) ious provisions of the Bank Secrecy Act, the rency received in nonfinancial trade or busi- Section 377. Extraterritorial jurisdiction. ness. Right to Financial Privacy Act, and the Fair Section 377 amends 18 U.S.C. 1029 to vest Credit Reporting Act, to permit information Section 365 adds 31 U.S.C. 5331 (and makes United States authorities with to be used in the conduct of United States related and conforming changes) to the Bank extraterritorial jurisdiction over acts involv- intelligence or counterintelligence activities Secrecy Act to require any person who re- ing access device, credit card and similar to protect against international terrorism. ceives more than $10,000 in coins or currency, frauds that would be crimes if committed Section 359. Reporting of suspicious activities by in one transaction or two or more related within the United States and that are di- underground banking systems transactions in the course of that person’s rected at U.S. entities or linked to U.S. ac- Section 359 amends various provisions of trade or business, to file a report with re- tivities. the Bank Secrecy Act to clarify that the spect to such transaction with FinCEN; reg- The PRESIDING OFFICER. The Sen- Bank Secrecy Act treats certain under- ulations implementing the new reporting re- quirement are to be promulgated within six ator from Nevada. ground banking systems as financial institu- Mr. REID. Mr. President, what Sen- tions, and that the funds transfer record- months of enactment. ator DASCHLE would like to do, and this keeping rules applicable to licensed money Section 366. Efficient use of current trans- transmitters also apply to such underground action report system. has been cleared with the two man- systems. Section 359 also directs the Sec- Section 366 requires the Secretary of the agers, is have a vote before 2 p.m. retary of the Treasury to report to Congress, Treasury to report to the Congress before today, approximately 5 minutes to 2 within one year of the date of enactment, on the end of the one year period beginning on p.m. There is a meeting at the White the need for additional legislation or regu- the date of enactment containing the results House. There are a number of very im- latory controls relating to underground of a study of the possible expansion of the portant hearings, one including the banking systems. statutory system for exempting transactions Secretary of State. We are waiting for Section 360. Use of authority of the United from the currency transaction reporting re- one more Senator who has 15 minutes. quirements and ways to improve the use by States Executive Directors. We understand that Senator SPECTER is financial institutions of the statutory ex- Section 360 authorizes the Secretary of the on his way. Treasury to instruct the United States Exec- emption system as a way of reducing the vol- ume of unneeded currency transaction re- I ask unanimous consent that the utive Director of each of the international fi- vote on passage of the Counterter- nancial institutions (for example, the IMF ports. rorism Act occur at 1:55 p.m. Further, and the World Bank) to use such Director’s SUBTITLE C. CURRENCY CRIMES that there be 10 minutes of closing de- ‘‘voice and vote’’ to support loans and other Section 371. Bulk cash smuggling. use of resources to benefit nations that the bate. I will alter that by saying what- Section 371 creates a new Bank Secrecy President determines to be contributing to ever time Senator SPECTER does not Act offense, 31 U.S.C. 5332, involving the bulk United States efforts to combat inter- smuggling of more than $10,000 in currency use, it will be divided between the two national terrorism, and to require the audit- in any conveyance, article of luggage or mer- managers of the bill. ing of each international financial institu- chandise or container, either into or out of The PRESIDING OFFICER. Without tion to ensure that funds are not paid to per- the United States, and related forfeiture pro- objection, it is so ordered. sons engaged in or supporting terrorism. visions. Mr. REID. I suggest the absence of a Section 361. Financial Crimes Enforcement Section 372. Forfeiture in currency reporting quorum. Network. cases. The PRESIDING OFFICER. The Section 361 adds a new section 310 to Sub- Section 372 amends 31 U.S.C. 5317 to permit clerk will call the roll. chapter I of chapter 3 of title 31, United confiscation of funds in connection with cur- The legislative clerk proceeded to States Code, to make the Financial Crimes rency reporting violations consistent with call the roll. Enforcement Network (‘‘FinCEN’’) a bureau existing civil and criminal forfeiture proce- Mr. SPECTER. Mr. President, I ask within the Department of the Treasury, to dures. specify the duties of FinCEN’s Director, and unanimous consent that the order for to require the Secretary of the Treasury to Section 373. Illegal money transmitting busi- the quorum call be rescinded. establish operating procedures for the gov- ness. The PRESIDING OFFICER. Without ernment-wide data access service and com- Section 373 amends 18 U.S.C. 1960 to clarify objection, it is so ordered. munications center that FinCEN maintains. the terms of the offense stated in that provi- Mr. SPECTER. Mr. President, I have Section 361 also authorizes appropriations sion, relating to knowing operation of an un- sought recognition to state my support

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11046 CONGRESSIONAL RECORD — SENATE October 25, 2001 for the pending legislation. This is very enable us to see how this expanded and Naturalization Service (INS) may assign important legislation in response to power will work out and will require to the northern border. the atrocious terrorist attacks of Sep- reauthorization, new legislation, if we Section 402 Northern Border Personnel tember 11. We will at some date in the wish to continue it beyond. This section triples the number of Border future conduct congressional oversight The provisions on immigration are Patrol agents, INS Inspectors, and Customs to make a determination as to whether important, requiring the Department Service employees in each state along the there were any deficiencies in our in- of Justice and the FBI to share certain northern border. It also funds any additional telligence operations prior to the Sep- information with the State Depart- staff and facilities needed to support north- tember 11 attacks. However, we should ment and INS. The issues regarding de- ern border personnel. Further, this section provides $50 million to the INS and $50 mil- wait until the appropriate time be- tention, I think, have been very sub- lion to the Customs Service to improve tech- cause our intelligence entities are busy stantially improved to be sure that nology to monitor the northern border and now collecting intelligence to avoid there is a protection of constitutional to acquire additional equipment for this pur- any recurrence of the terrorist attacks. rights while giving law enforcement an pose. But it is important that law enforce- adequate opportunity to conduct the Section 403 Requiring Sharing by the Federal ment have appropriate tools at their inquiries which they need. Bureau of Investigation of Certain Criminal disposal to combat terrorists. In the The provisions on money laundering, Record Extracts with Other Federal Agen- United States that means careful legis- I think, are very important additions cies in Order to Enhance Border Security lation which is in accordance with our to take a stand, to stop terrorist orga- This section provides the State Depart- constitutional rights and our civil lib- nizations such as al-Qaida and terror- ment and the INS with electronic access to erties. ists such as Osama bin Laden not to be the information contained in the Federal Bu- I believe Congress has responded ap- financed through the laundering which reau of Investigation’s National Crime Infor- propriately in this matter with due de- has been possible through laxity of the mation Center Interstate Identification Index (NCIC–III), Wanted Persons File, and liberation. There is obviously a temp- banking regulations. other files maintained by the National Crime tation in the face of what occurred on In short, I believe this is a very sig- Information Center. This information is to September 11 to respond spontaneously nificant step forward. There is a very be used in determining whether a visa appli- or reflexively, but we have undertaken heavy overhang over Washington, DC, cant or an applicant for admission to the this legislation, I think, with appro- today with what is happening here United States has a criminal history. priate care and now have a good prod- with our efforts to respond in so many Under this section, the FBI must provide uct. ways to September 11. Now with the the State Department and the INS with ex- I had expressed concerns when the anthrax, we are all concerned about tracts from its criminal history records and bill was on the Senate floor that there what may happen in the future. periodically update those extracts. Within four months of enactment of this legislation, could be some question about the ade- Having served as chairman of the In- the State Department must issue regulations quacy of the deliberative process be- telligence Committee back in the 1995– regarding the proper use of the information cause the Supreme Court of the United 1996 time period and chairing the ap- provided by the FBI. Within two years of en- States has held acts of Congress uncon- propriations subcommittee on ter- actment, the Attorney General and the Sec- stitutional where they questioned the rorism, I am glad to see us move for- retary of State will report to Congress on thoroughness or deliberation. I think ward with this legislation which will the implementation of this section. this bill as presented today does meet give law enforcement the tools which Further, this section directs the Attorney that standard. would give them a better opportunity General and the Secretary of State, working The legislation has very important with the National Institute of Standards and to prevent any more sneak attacks, Technology (NIST) and other agencies, to de- provisions under the Foreign Intel- any recurrence of the dastardly deeds velop and certify a technology standard that ligence Surveillance Act where a modi- of September 11. can conform the identity of a visa applicant fication has been made to authorize I thank the Chair, and I yield the or applicant for admission. As these agencies electronic surveillance where there is a floor. do not utilize a single technology, the devel- ‘‘significant’’ rather than a ‘‘primary’’ Mr. KENNEDY. Mr. President, I ask opment of a technology standard will facili- purpose, allowing use of the Foreign unanimous consent that a joint memo- tate the collection and sharing of relevant Intelligence Surveillance Act. randum on the immigration provisions identity information between all the perti- nent agencies. In particular, this section in- I chaired the Judiciary sub- of H.R. 3162 be printed in the RECORD. There being no objection, the mate- structs those agencies to investigate the use committee, which did Department of of biometric technology. The technology Justice oversight, getting into the For- rial was ordered to be printed in the standard must be developed and certified by eign Intelligence Surveillance Act in RECORD, as follows: NIST within two years of the date of enact- some detail with respect to the Wen Ho JOINT MEMORANDUM OF SENATOR EDWARD M. ment of this subsection. Lee case. This is a change which is nec- KENNEDY AND SENATOR SAM BROWNBACK ON Section 404 Limited Authority to Pay Overtime THE IMMIGRATION PROVISIONS OF ‘‘THE essary, and I believe it is a change This section eliminates the $30,000 limit on UNITING AND STRENGTHENING AMERICA BY which will pass constitutional muster. overtime pay for INS personnel during 2001. PROVIDING APPROPRIATE TOOLS REQUIRED The electronic surveillance adds ter- The limit was contained in the 2001 Depart- TO INTERCEPT AND OBSTRUCT TERRORISM rorism to wiretap predicates. It is rath- ment of Justice Appropriations Act, which ACT OF 2001’’ er surprising that terrorism, or allega- did not contemplate the extraordinary de- The U.S.A. PATRIOT Act of 2001 contains tions of terrorism, have not been suffi- mands that have been placed on the INS certain immigration provisions worked out since the terrorist attacks of September 11. cient to authorize electronic surveil- between the Administration and members of lance in the past. This corrects a long- both parties. Because the legislation was de- Section 405 Report on the Intergrated Auto- standing deficiency. veloped outside the ordinary committee mated Fingerprint Identification System for The pen register has been expanded process, it was not accompanied by the usual Points of Entry and Overseas Consular for nationwide orders, which makes reports elaborating on the background and Posts sense on an administrative level and purpose of its provisions. This memorandum This provision instructs the Attorney Gen- does not conflict with any issues of is accordingly submitted on behalf of the eral, in consultation with the heads of other federal agencies, to report to Congress on the civil liberties or constitutional rights. Chairman and Ranking Member of the Sub- committee on Immigration of the Senate feasibility of enhancing the FBI’s Integrated The bill increases the civil liability for Committee on the Judiciary to provide some Automated Fingerprint Identification Sys- unauthorized disclosure of wiretapping background and explanations for these provi- tem (IAFIS), and other identification sys- information, which I think is impor- sions. tems, to better identify foreign nationals tant. TITLE IV: PROTECTING THE BORDER wanted in connection with criminal inves- tigations in the United States and abroad. One of the key provisions of the bill SUBTITLE A—PROTECTING THE NORTHERN is the sunset provisions relating to the BORDER SUBTITLE B: ENHANCED IMMIGRATION Foreign Intelligence Surveillance Act, Section 401 Ensuring Adequate Personnel on PROVISIONS electronic surveillance, and informa- the Northern Border Section 411 Definitions Relating to Terrorism tion sharing which expire on December This section permits the Attorney General Under current law, unless otherwise speci- 31, 2005, with an appropriate exception to lift the cap on the number of ‘‘full time fied, an alien is inadmissible and deportable for ongoing investigations. This will equivalent’’ employees that the Immigration for engaging in terrorist activity only when

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11047 the alien has used explosives or firearms. Be- Further, it permits certification of aliens expeditiously as practicable, with particular cause a terrorist can use a knife, a box-cut- whom the Attorney General has ‘‘reasonable focus on the utilization of biometric tech- ter, or an airplane in a terrorist act, this sec- grounds to believe’’ are described under the nology and the development of tamper-re- tion expands the definition of terrorist activ- terrorism grounds of the INA or are engaged sistant documents. To that end, this section ity to include the use of any ‘‘other weapon in any other activity that endangers the na- also authorizes the appropriation of such or dangerous device.’’ The language looks to tional security of the United States. ‘‘Rea- funds as may be necessary to implement this the purpose, not the instrument, in deter- sonable grounds’’ is a higher standard than system. mining whether an activity is terrorist in mere ‘‘reason to believe’’ and requires objec- The entry/exit system will notify the INS nature. tive, articulatable grounds. whether foreign nationals departed the Current immigration law contains no pro- The Attorney General must, in certified United States under the terms of their visas. vision acknowledging organized terrorist cases, either initiate removal proceedings Since the vast majority of persons who enter threats per se and therefore contains no within seven days or release the alien. In the United States do not pose a threat to our ground for inadmissibility or deportability cases not involving an alien certified by the safety or security, this provision requires based on activities involving ‘‘terrorist orga- Attorney General, proceedings should con- that the information obtained from the nizations.’’ Section 411 defines terrorist or- tinue to be initiated within the time pro- entry/exit system be interfaced with intel- ganization to include: (1) an organization ex- vided by the regulations. See 66 Fed. Reg. ligence and law enforcement databases to en- pressly designated by the Secretary of State 48335 (amending 8 CFR § 237.3(d)). The seven- able authorities to focus on apprehending under current section 219 of the INA; (2) an day window to initiate proceedings is limited those few who do pose a threat. organization otherwise designated as a ter- to cases certified under section 236A and Federal intelligence and law enforcement rorist organization by the Secretary of should be used judiciously, with charges filed agencies maintain ‘‘look out lists’’ con- State, in consultation with the Attorney as promptly as possible. taining the names of foreign nationals who General, after finding that such organization For aliens whose removal is unlikely in the pose safety or security threats. Not all crit- engages in terrorist activities, as defined by reasonably foreseeable future, the Attorney ical information is currently shared with the section 212(a)(3)(iv)(I), (II) and (III), or pro- General is required to demonstrate that re- INS and the State Department, which are vides material support to further terrorist lease of the alien will adversely affect na- the two agencies charged with determining activity; or (3) any group of two of more in- tional security or the safety of the commu- who is granted a visa or admitted to the dividuals that commits, plans, or prepares to nity or any person before detention may con- United States. This provision requires the commit terrorist activities. tinue beyond the removal period. Indefinite Office of Homeland Security to submit a re- This section adds three grounds of inad- detention of aliens is permitted only in ex- port to Congress assessing the information missibility for individuals who, while not traordinary circumstances. Zadvydas v. that these two agencies need to effectively members of terrorist organizations, may ad- Davis, 121 S. Ct. 2491 (2001). screen out those who might pose a threat to vocate terrorism. These include (1) under The Attorney General shall review the cer- the United States. new INA section 212(a)(3)(B)(i)(IV)(bb), being tification of an alien every six months and, Section 415 Participation of Office of Home- a representative of a group ‘‘whose public en- when appropriate, revoke the certification land Security on Entry Task Force dorsement of terrorist activity’’ the Sec- and release the alien under such conditions retary of State has determined undermines as the Attorney General deems appropriate. This section includes the new Office of United States efforts to combat terrorism; The alien may submit documentation or Homeland Security as a participant in the (2) under new INA section 212(a)(3)(B)(i)(VI), other evidence to be considered by the Attor- Entry and Exit Task Force established by using one’s ‘‘position of prominence within ney General in reviewing his or her certifi- the Immigration and Naturalization Service any country to endorse or espouse terrorist cation. Data Management Improvement Act of 2000. activity, or persuade others to support ter- The Attorney General’s decision to certify Section 416 Foreign Student Monitoring Pro- rorist activity or a terrorist organization, in and detain an alien is subject to judicial re- gram a way that the Secretary of State deter- view in habeas corpus proceedings. This re- In 1996, Congress established a program to mines’’ undermines United States efforts to view encompasses both procedural protec- monitor foreign students and exchange visi- combat terrorism; or (3) under new INA sec- tions and the merits of the Attorney Gen- tors to the United States, funded by user tion 212(a)(3)(B)(i)(VII), being a spouse or eral’s certification decision and any decision fees. While a pilot phase of this program child of a person inadmissible under this sec- to extend detention beyond the expiration of ended in 1999, this system has not been im- tion, unless the spouse or child did not know the removal period where removal is un- plemented nationwide. This section requires or reasonably should not have known of the likely in the reasonably foreseeable future. the system to be fully implemented and tem- activity causing the inadmissibility, or the Habeas corpus review is permitted in any ap- porarily funds the program through January spouse or child has renounced such activity. propriate district court of the United States, This section clarifies the circumstances 2003. but appeals are limited to the United States Currently, all institutions of higher edu- under which the provision of material sup- Court of Appeals for the District of Colum- port, solicitation of funds, or solicitation of cation that enroll foreign students or ex- bia, with review available in the United change visitors are required to participate in membership for a terrorist organization can States Supreme Court by petition for certio- be the basis for a charge permitting the re- the monitoring program. This section also rari or by original petition for habeas cor- expands the list of institutions to include air moval of an alien. It provides that, after an pus. Restricting appellate review to a single organization is designated as a terrorist or- flight schools, language training schools, and court protects the government’s interest in vocational schools. ganization by the Secretary of State, any uniformity, while providing an alien with a Section 417 Machine Readable Passports provision of material support or solicitation meaningful opportunity to seek judicial re- of funds or membership, as defined in sub- view. The Visa Waiver Program permits nation- section (iv) of INA section 212(a)(3)(B), for a als of participating countries to enter the Section 413 Multilateral Cooperation Against designated organization may be the basis for United States without obtaining non- Terrorists a charge of removal. With respect to activity immigrant visas. Countries participating in prior to the designation of the organization, The records of the State Department per- the program must have low nonimmigrant or with respect to non-designated organiza- taining to the issuance of or refusal to issue visa refusal rates, have machine readable tions under section 212(a)(3)(B)(vi)(III), only visas to enter the United States are con- passport programs, and not compromise the activity that was or is intended to further fidential and can be used only in the formu- law enforcement interests of the United terrorist activity of the organization is pro- lation and enforcement of U.S. law. This sec- States. hibited by this section. tion allows the State Department to provide This section requires the Secretary of Section 412 Mandatory Detention of Suspected such records to a foreign government on a State to conduct an annual audit of the pro- Terrorists; Habeas Corpus; Judicial Review case-by-case basis for the purpose of pre- gram to assess measures to prevent the The section creates INA section 236A, giv- venting, investigation, or punishing acts of counterfeiting and theft of passports and to ing the Attorney General the authority to terrorism. ascertain whether participating countries certify and therefore detain persons who Section 414 Visa Integrity and Security have established a program to develop tam- pose a terrorist or security threat to the In 1996, Congress enacted legislation man- per-resistant passports. Results of the audit United States. The power to certify is lim- dating the development of an automated will be reported to Congress. ited to the Attorney General and the Deputy entry/exit control system to record the entry Currently, nationals of participating coun- Attorney General. This section also provides and departure of every non-U.S. citizen ar- tries have until October 1, 2007 to obtain ma- judicial review of this authority in habeas riving in the United States. The INS lacks chine-readable passports to seek admission corpus proceedings. the technology and funding to implement to the United States. This section advances This section sets forth the standards for this measure at all ports of entry, especially the deadline to October 1, 2003, but permits certification, custody, and detention. All on the land border. Last year Congress the Secretary of State to waive the require- persons certified under these new provisions amended the law to establish reasonable im- ments imposed by the deadline for all na- shall be placed in custody and detained until plementation deadlines. This provision di- tionals of a program country, if that country removed or decertified. Persons who are not rects the Attorney General, in consultation is making sufficient progress to provide removable would be released from custody with the Secretary of State, to fully imple- their nationals with machine-readable pass- upon conclusion of the proceedings. ment the entry/exit system, as amended, as ports.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11048 CONGRESSIONAL RECORD — SENATE October 25, 2001 Section 418 Prevention of Consulate Shopping on constitutes death, disability, or loss of It allows law enforcement to keep up This section directs the State Department employment ‘‘as a direct result’’ of the ter- with the modern technology these ter- to examine the concerns, if any, created by rorist attacks. Regulations are not required rorists are using. The bill contains sev- the practice of certain aliens to ‘‘shop’’ for a to implement the provisions of this subtitle. eral provisions which are identical or visa between issuing posts. Section 427 No Benefit to Terrorists or Family nearly identical to those I previously SUBTITLE C: PRESERVATION OF IMMIGRATION Members of Terrorists proposed. BENEFITS FOR VICTIMS OF TERRORISM No benefit under this subtitle will be pro- For example: it allows the FBI to get Section 421 Special Immigrant Status vided to anyone involved in the terrorist at- wiretaps to investigate terrorists, just tacks on September 11 or to any family The section provides permanent residence like they do for the Mafia or for drug member of such an individual. as special immigrants to the spouses and kingpins; it allows the FBI to get a children of certain victims of the terrorist Section 428 Definitions roving wiretap to investigate terror- attacks. They include aliens who would have The term ‘specified terrorist activity’ ists—so they can follow a particular obtained permanent residence through a means any terrorist activity conducted against the United States, its government, suspect, regardless of how many dif- family or employment-based category, but ferent forms of communication that for death, disability, or loss of employment or its people of the United States on Sep- as a direct result of the terrorist attacks on tember 11, 2001. person uses; and it allows terrorists to be charged with Federal ‘‘racketeering September 11, 2001. Permanent residence TITLE VIII would be granted to the fiance´ or fiancee offenses,’’ serious criminal charges Mr. GRAHAM. Mr. President, several available against organizations which (and children) of a U.S. citizen who died in provisions of title VIII would establish the attacks. Permanent residence would also engage in criminal conduct as a group, be granted to the grandparents of a child criminal prohibitions or expand exist- for their crimes. whose parents died in attacks, if either par- ing criminal laws to deter terrorist I am pleased that the final version of ent was a U.S. citizen or a permanent resi- conduct. My understanding is that the the bill we are considering today con- dent. Senate certainly does not intend title tains three provisions that I fought for. Section 422 Extension of Filing or Reentry VIII to criminalize otherwise lawful First, section 613 incorporates a bill Deadlines and authorized United States Govern- that Senator HATCH and I introduced This section creates safeguards so that ment activities. Would the Senator earlier this year, S. 899. Named in aliens seeking immigration benefits are not confirm my understanding of the in- honor of Delaware State trooper adversely affected by the terrorist attacks. tent and effect of title VIII? Francis Collender, who was tragically For aliens in lawful nonimmigrant status at Mr. LEAHY. The Senator’s under- killed while on a traffic stop in Odessa, the time of the terrorist attacks, this sec- standing is absolutely correct. Unless DE this past February, S. 899 and sec- tion extends the filing deadline for an exten- expressly provided, none of the general tion 613 of this bill will raise the one- sion of status request or change of status re- quest where the alien was unable to meet the restrictions in title VIII are intended time death benefit paid to the families filing deadline due to the terrorist attacks. to criminalize lawful and authorized of slain or permanently disabled law Deadlines are similarly extended for aliens United States Government activities. enforcement officers. For too long, this unable to reenter in time to request an ex- Mr. BIDEN. Mr. President, 6 years benefit has stood at $100,000. It was in- tension of status, aliens unable to enter dur- ago I stood on this floor and called dexed for inflation and currently ing the period of visa validity or parole, and upon the Senate to join the fight stands at $151,000, but even this is far aliens unable to depart within their period of against terrorism in the wake of the too low for the families of these heroes lawful status or voluntary department. The horrific bombing in Oklahoma City. to make ends meet. The bill we con- section also protects recipients of diversity Back then some argued terrorism was sider today raises this benefit to visas who were adversely affected by the ter- $250,000, continues to index it for infla- rorist attacks. something that usually happened far away, in distant lands, over distant tion, and makes it applicable to the Section 423 Humanitarian Relief for Certain family of any law enforcement or fire Surviving Spouses and Children conflicts. Well, that’s all changed. Terrorism has come to America. personnel who lost their life on or after Current law provides that an alien who was We have to be a little proactive now. January 1, 2001. It’s the least we can do the spouse of a U.S. citizen for at least two years before the citizen died shall remain eli- Back then, I proposed a series of pre- for the Collender family, the least we gible for immigrant status as an immediate cise anti-terrorism tools to help law can do for the hundreds of families who relative. This eligibility also applies to the enforcement catch terrorists before tragically lost a loved one on Sep- children of the alien. This section provides they commit their deadly act, not ever tember 11, and I’m grateful my col- that if the U.S. citizen died as a direct result imagining the events of September 11. leagues have agreed we need to include of the terrorist attacks, the alien can seek In particular, I said that it simply my bill in this larger anti-terrorism permanent residence even if the marriage did not make sense that many of our bill today. was less than two years old. law enforcement tools were not avail- Second, section 817 is based on legis- This section also protects the spouse and able for terrorism cases. lation I introduced in the 106th Con- unmarried sons and daughters of a perma- gress, S. 3202. It may shock my col- nent resident killed in the terrorist attacks For example, the FBI could get a by allowing them to seek permanent resi- wiretap to investigate the mafia, but leagues that under current law, any- dence either through a pending visa petition they could not get one to investigate one, including convicted felons, fugi- (filed by or on behalf of the deceased) or by terrorists. To put it bluntly, that was tives, and aliens from terrorist-spon- filing a ‘‘self-petition’’ based on their rela- crazy! What’s good for the mob should soring states, can possess anthrax or tionship to the deceased permanent resident. be good for terrorists. other biological agents. And under cur- Section 424 ‘Age-Out’ Protection for Children Anyway, some of my proposals were rent law, the FBI has no tool at its dis- By providing a brief filing extension, this enacted into law in 1996, a number were posal to charge someone with posses- provision ensures that no alien will ‘‘age out not. sion of anthrax. Possession of anthrax, of eligibility to immigrate as the result of There were those who decided that or any other dangerous biological the terrorist attacks. Aliens who turn 21 the threat to Americans was appar- agent, is legal, unless the FBI can years of age while their applications are ently not serious enough to give the make a case that the suspect intended pending are no longer considered children President all the changes in law be re- to use the agent as a weapon. This far under the INA, and therefore ‘‘age out’’ of eligibility to immigrate. quested. too high a hurdle for our investigators Today, 5 years later, I again call on to overcome in many cases, and indeed Section 425 Temporary Administrative Relief my colleagues to provide law enforce- the FBI has informed me it has hin- This section provides temporary adminis- ment with a number of the tools which dered several of their past bioweapons trative relief to an alien lawfully present on September 10, who was the spouse, parent, or they declined to pass back then. The investigations. Section 817 closes this child of someone killed or disabled by the anti-terrorism bill we consider today is loophole. It prohibits certain classes of terrorist attacks and otherwise not entitled measured and prudent. It has been individuals, felons, illegal aliens, fugi- to relief. strengthened considerably since the tives and others, from ever possessing Section 426 Evidence of Death, Disability, or Administration originally proposed it these dangerous biological agents. And Loss Employment in mid-September. It takes a number of for everyone else, my provision says This section directs the Attorney General important steps in waging an effective you need to be able to show you pos- to establish evidentiary standards regarding war on terrorism. sessed this stuff with a peaceful or

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11049 bona fide research reason. If not, We should be extending 48-hour emer- over the last two years. Additional you’re going to be charged with a fel- gency wiretaps and pen-registers, call- hearings on terrorism were held by the ony and you face up to ten years in er-ID-type devices that track incoming full Judiciary Committee and by other Federal prison. and outgoing phone calls from sus- committees. Finally, section 1005 of this bill in- pects, to terrorism crimes. This would Many of the provisions proposed by corporates my First Responders Assist- allow police, in an emergency situa- the Attorney General, and included in ance Act. I have spoken with too many tion, to immediately obtain a surveil- the legislation we sent to the President local police officers, chiefs, firemen lance order against a terrorist, pro- today, mirror the recommendations of and women, and others who feel left vided the police go to a judge within 48 one or more of the major terrorism out of our fight against terrorism. I hours and show that they had the right commissions and have already been ex- commend FBI Director Mueller for re- to get the wiretap and that emergency amined by the committee of jurisdic- cently pledging to do a better job shar- circumstances prevented them from tion. In fact, some of these provisions ing information with our State and going to the judge in the first place. had already been voted on and passed local law enforcement people, but Now, this emergency tool is available by the Senate in other legislation. clearly more needs to be done. Who re- only for organized crime cases and the Indeed, as I will discuss more fully in sponds first to a terrorist incident? On bill we consider today does not expand a minute, the language sent forward by September 11 it was the New York City this power to terrorist investigations. the Attorney General to establish na- and Arlington County, VA police and We should be extending the Supreme tionwide trap and trace authority was fire departments. That’s always going Court’s ‘‘good faith’’ exception to wire- included in the Hatch-Feinstein-Kyl to be the case, local law enforcement is taps. This well-accepted doctrine pre- Amendment to the recently passed our first line of defense against terror- vents criminals in other types of of- Commerce, Justice, State Appropria- ists, and we need to give them the tools fenses from going free when the police tions bill. Much of the remaining lan- they need to get that job done well. make an honest mistake in seizing evi- guage in that amendment was included My provision will, for the first time, dence or statements from a suspect. We in the Counterterrorism Act of 2000, give State and local enforcement and should apply this good faith exception which the Senate passed last fall, after fire personnel the opportunity to apply to terrorist crimes as well, to prevent a terrorist attack on the U.S.S. Cole directly to the Justice Department to terrorists from getting away when the killed 17 American sailors and injured receive terrorism prevention assist- police make an honest mistake in ob- another 39. That bill was based on rec- ance. Specifically, departments will taining a wiretap. ommendations of the bipartisan, con- now be able to get help purchasing gas I’m pleased Chairman LEAHY and the gressionally-mandated National Com- masks, hazardous material suits, intel- Administration were able to reach con- mission on Terrorism, known as the ligence-gathering equipment, twenty- sensus on the two areas which gave me Bremmer Commission, which was es- first century communications devices some pause in the Administration’s tablished in 1998 in response to the em- and other tools to help them respond to original proposal: those provisions bassy bombings in Tanzania and terrorist threats. This section also cre- dealing with mandatory detention of il- Kenya. ates a new anti-terrorism training legal aliens and with greater informa- One particularly important provi- grant program that will fund seminars tion sharing between the intelligence sion, which was included in both the and other training sessions to help and law enforcement communities. CJS bill and the current bill, updates local police departments better analyze The agreement reached has satisfied the law to keep pace with technology. intelligence information they come me that these provisions will not upset The provision on pen registers and trap across, help local fire departments ac- the balance between strong law en- and trace devices: one, would allow quire the knowledge they need to re- forcement and protection of our valued judges to enter pen/trap orders with na- spond to critical incidents, and assist civil liberties. tionwide scope; and two, would codify those agencies who may be called upon This bill is not perfect. No one here current case law that holds that pen/ to stabilize a community after a ter- claims it embodies all the answers to trap orders apply to modern commu- rorist incident. It is my intent that the question of how best to fight ter- nication technologies such as e-mail these funds go to professional law en- rorism. But I am confident that by up- and the Internet, in addition to tradi- forcement organizations who are in dating our surveillance laws, by taking tional phone lines. some instances already delivering this terrorism as seriously as we do orga- type of training. The Department of nized crime, and by recognizing the im- Nationwide jurisdiction for a court Justice’s Office for Domestic Prepared- portant role state and local law en- order will help law-enforcement to ness does some of this, but their pro- forcement has to play in this cam- quickly identify other members of a gram is a block grant sent to the Gov- paign, that we are taking a step in the criminal organization such as a ter- ernor. I want to involve local police right direction by passing this bill rorist cell. Indeed, last year Director and fire departments directly in the today. Freeh testified before the Terrorism fight against terrorism, and this sec- ANTITERRORISM Subcommittee that one of the prob- tion is an important step towards Mr. KYL. Mr. President, I rise in lems law-enforcement faces is ‘‘the ju- meeting that goal. The funds author- strong support of the anti-terrorism risdictional limitation of pen registers ized, $100 million over the next four bill. The bill will provide our Nation’s and trap-and-trace orders issued by fed- years, may not be enough to get the law-enforcement personnel with impor- eral courts.’’ job done, but it’s a good start. I thank tant tools to more effectively inves- He continued: ‘‘Today’s electronic the Police Executives Research Forum tigate and prevent further attacks crimes, which occur at the speed of for working with me to craft this pro- against the people of the United light, cannot be effectively inves- posal, and I look forward to seeing sig- States. tigated with procedural devices forged nificant dollars allocated to it in fu- At the outset, I want to make clear in the last millennium during the in- ture spending bills. that we did not rush to pass ill-con- fancy of the information technology So this bill contains many provisions ceived legislation. age.’’ critical to law enforcement. Some may During the past two Congresses, Prior to the legislation we passed say it doesn’t go far enough. when I chaired the Judiciary Commit- today, in order to track a communica- I have to say, I was disappointed that tee’s Subcommittee on Technology and tion that was purposely routed through the Administration dropped some pro- Terrorism, the Subcommittee held 19 Internet Service Providers located in posals from an early draft of its bill, hearings on terrorism. I want to repeat different States, law-enforcement was measures which I called for five years that: 19. The witnesses who appeared required to obtain multiple court or- ago. Those measures are not in the bill before the Subcommittee included the ders. This is because, under existing we consider today, but I continue to then-Director of the FBI Louis Freeh law, a Federal court can order only believe that they’re common-sense and representatives of all three of the those communications carriers within tools we ought to be giving to our men congressionally-mandated commissions its district to provide tracing informa- and women of law enforcement. on terrorism that have issued reports tion to law enforcement.

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11050 CONGRESSIONAL RECORD — SENATE October 25, 2001 According to Director Freeh’s testi- Senate Judiciary Terrorism Sub- tees of jurisdiction. Additionally, an mony before the Terrorism Sub- committee Chairwoman DIANNE FEIN- organization, whether or not it is for- committee, ‘‘As a result of the fact STEIN and I will soon introduce legisla- mally designated by the Secretary of that investigators typically have to tion to better equip our government State or the Attorney General, can be apply for numerous court orders to with the tools necessary to make our considered to be terrorist if it is made trace a single communication, there is immigration and visa processing sys- up of two or more individuals who com- a needless waste of time and resources, tems more secure. mit or plan to commit terrorist activi- and a number of important investiga- With that said, the anti-terrorism ties. tions are either hampered or derailed bill will certainly provide a better This anti-terrorism package also has entirely in those instances where law legal framework for keeping foreign provisions regarding temporary deten- enforcement gets to a communications terrorists out of the United States, and tion. It allows for the temporary deten- carrier after that carrier has already detaining them should they enter. tion of aliens who the Attorney Gen- discarded the necessary information.’’ First, this anti-terrorism bill clari- eral certifies that he has ‘‘reasonable This bill solves the problem. fies that the Federal Bureau of Inves- grounds to believe is inadmissible or I would also like to address another tigation is authorized to share data deportable under the terrorism important provision. from its ‘‘most wanted list,’’ and any grounds.’’ This compromise represents The bill will more clearly to crim- other information contained in its na- a bipartisan understanding that the inalize the possession of biological and tional crime-information system, with Attorney General of the United States toxin agents by those who should not the Immigration Naturalization Serv- needs the flexibility to detain sus- possess them. The bill would amend the ice and the State Department. This pected terrorists. Under the com- implementing legislation for the 1972 will help the INS and State Depart- promise that Members have reached, ‘‘Convention on the Prohibition of the ment identify suspected terrorists be- the Attorney General must charge an Development, Production, and Stock- fore they come to the United States, alien with a deportable violation or he piling of Bacteriological, Biological, and, should they gain entry, will help must release the alien. In this final and Toxin Weapons and on their De- track them down on our soil. It also al- version, if the charge is not sustained, struction,’’ BWC. Article I of the BWC lows the State Department, during a or if withholding of deportation is prohibits the development, production, U.S. criminal investigation, to give granted by an immigration judge then stockpiling, acquisition, or retention foreign governments information on a the alien must be released. In addition, of Microbial or other biological agents, case-by-case basis about the issuance the underlying certification, and all or toxins, whatever their origin or or refusal to issue a U.S. visa. collateral matters, can be reviewed by method of production, of types and in The bill will also clarify U.S. law pro- any U.S. District Court and any ap- quantities that have no justification hibiting the entry of, and requiring the peals can be heard by U.S. Appeals for prophylactic, protective, or other removal of, individual alien terrorists. Court for the District of Columbia. The peaceful purposes. It is not the intent It will probably surprise the Members Attorney General, under this final of the BWC, nor is it the intent of Sec- of this body a great deal to know that, version, is required to review all indi- tion 802, to prevent the legitimate ap- under current law, a terrorist alien is vidual certifications every six months, plication of biological agents or toxins not considered either inadmissible to, and any alien certified can ask that the for prophylactic, protective, bona fide or deportable from, the United States Attorney General review the case. research, or other peaceful purposes. even if he or she has ‘‘endorsed or es- Finally, this package will determine These purposes include, inter alia, poused terrorist activity that under- whether ‘‘consular shopping,’’ i.e. medical and national health activities, mines the efforts of the United States someone has a visa application pending and such national security activities as to fight terrorism,’’ or has provided from his or her home country, but goes may include the confiscation, securing, ‘‘material support to a terrorist orga- to another country for adjudication, is and/or destruction of possible illegal nization.’’ Nor is an individual deport- a problem. If so, the Secretary of State biological substances. able for being a ‘‘representative of a must recommend ways to remedy it. In addition to the other provisions in terrorist organization.’’ The anti- ter- Another provision prevents countries this anti-terrorism legislation that will rorism bill makes it clear to U.S. offi- that do not have machine-readable provide our law enforcement commu- cials considering whether to allow passports from participating in the nities with the tools to weed out and someone to come to the country, that Visa Waiver Program, although the stop terrorism, I want to express my a person meeting any one of these cri- Secretary of State is allowed to pro- support for the immigration provisions teria is not welcome to come here. Al- vide a waiver for countries that do not upon which the administration, key though the final bill prohibits admis- provide such passports. I do not sup- members of the House Judiciary Com- sion of individuals who have endorsed port the waiver authority, but am mittee, Senators HATCH, KENNEDY, terrorism or are representatives of a pleased that the overall requirement is LEAHY and I have reached agreement, terrorist organization, neither of those included. Another provision authorizes and which are included in this bill. criteria will make such an individual $36.8 million for quick implementation We must not forget, however, that deportable. I will work to make it clear of the INS foreign student tracking the United States will continue to face that such criteria are deportable. system, a program that I have repeat- overwhelming infrastructure and per- In addition, the anti-terrorism pack- edly urged be implemented. The final sonnel needs at our consular offices age that we are debating today further package also includes relief for immi- abroad, along both the southern and defines what is considered by the grants, who but for the tragic events of northern border, and in our immigra- United States to be a terrorist organi- September 11, are here legally and tion offices throughout the United zation. Under current law, a terrorist could now lose their legal status. States. And, in addition to the provi- organization must be designated by the As former chairman and now ranking sions included in this anti-terrorism Secretary of State under Section 219 of Republican of the Judiciary Commit- bill, the U.S. government will need ad- the Immigration and Nationality Act. tee’s Terrorism Subcommittee, I have ditional tools to keep terrorists out of This process can take several months, long suggested, and strongly supported, the country and, once they are in the and has been criticized by some experts many of the anti-terrorism and immi- country, find them and remove them. as potentially politically corruptible. gration initiatives now being advo- That means, among other things, Under this final package, Section 219 cated by Republicans and Democrats eliminating the ability of terrorists to designations will remain in effect. A alike. In my sadness about the over- present altered international docu- separate designation process is added, whelming and tragic events that took ments, and improving the dissemina- whereby an organization can be des- thousands of precious lives, I am re- tion of information about suspected ignated by the Secretary of State or solved to push forward to make the terrorists to all appropriate agencies. the Attorney General, in consultation United States a safer place for its mil- After hearing first-hand about the ex- with each other, with seven days’ no- lions of law-abiding citizens and legal traordinary weaknesses of our immi- tice to the leadership of the House and immigrants. That means delivering gration and visa processing systems, Senate and the congressional commit- justice to those who are responsible for

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11051 the lives lost on September 11, and re- plained following a Congressional di- aliens from entering our country, and organizing our institutions of govern- rective to do so, in regulations issued we must do more to deport those who ment so that the law-abiding can con- by the Secretary for notice and com- are already here illegally. Our previous tinue to live their lives in freedom. ment. efforts, such as the 1996 Immigration Finally, let me address briefly the Mr. HOLLINGS. Does the section Act, have proven to be inadequate. concern voiced by some that we are in make clear what standards will be ap- This is not only a matter of uphold- danger of ‘‘trampling civil liberties.’’ I plied to determine if a security risk is ing our laws, it is a matter of main- reiterate that we did not rush, that we presented by an individual? taining the safety and security of our have had thorough, deliberative hear- Mr. LEAHY. At this time the section country. We do not even know how ings, and that many of the proposals does not and that matter should be some of the September 11 hijackers got within this bill have already been clarified in subsequent legislation. into the country. This is not accept- passed by the Senate. Nothing in the Mr. HOLLINGS. I am concerned that able. We must do more to track and current bill impinges on civil liberties. the review process could be delayed and keep out those who wish to harm our The bill will give Federal agencies a person seeking renewal of a hazmat country and terrorize our citizens. fighting terrorism the same tools we license could be unable to work due to The Antiterrorism Act we are consid- have given those fighting illicit drugs, matters beyond his or her control. ering today contains some reforms in or even postal fraud. Many of the tools Mr. LEAHY. The gentleman is cor- this area and is a step in the right di- in the bill are modernizations of the rect. Regulations need to be issued by rection. It expands the number of Bor- criminal law, necessitated by the ad- the Secretary specifying time periods der Patrol agents, INS inspectors, and vent of the Internet. and making it clear that delays not Customs agents along the Northern While some of these tools are ex- due to the applicant should not force Border. Also, it provides for greater tremely helpful in terrorism investiga- him to be out of work and that his ex- data-sharing, including giving the INS tions, it makes no sense to refuse to isting hazmat license will remain in ef- easier access to the criminal history apply these common sense changes to fect pending completion of the security information contained in the NCIC other crimes that are committed, like risk review process. database. Moreover, it grants the At- kidnaping, drug dealing, and child por- Mr. HOLLINGS. I am troubled by the torney General greater authority to de- nography. It is unwise to limit these lack of due process protections for the tain those who may be involved in ter- tools to only terrorism offenses be- applicant. What is the gentleman’s rorist activity, although we should cause often, at the outset of an inves- opinion on this subject? continue to review this issue and grant tigation of a particular person or Mr. LEAHY. I agree with the gen- the Attorney General greater power in crime, law enforcement does not know tleman. The section needs to be clari- the future. what you are dealing with. A credit- fied by legislation and regulations In addition to immigration, this bill card fraud case or a false immigration issued making clear that any applicant contains other crucial reforms that documents case may turn out to be denied a hazmat license because of a will update our wiretapping laws and connected to funding or facilitating security risk will be advised of the rea- allow greater sharing of intelligence the operations of a terrorist group. We sons for such denial and given an op- and law enforcement information. I should give law enforcement the tools portunity to present any comments he strongly supported this bill during Ju- it needs to have the best chance of dis- or she deems appropriate. We need to diciary Committee hearings, including covering and disrupting these activi- provide the applicant with a right to in one hearing in the Constitution Sub- ties. challenge the Secretary’s decision and committee of which I am Ranking We have a responsibility to the peo- insure due process is protected. Member. I am pleased that we are fi- ple of this nation to ensure that those Mr. HOLLINGS. Finally, isn’t there a nalizing this bill today. who are charged with protecting us concern that foreign drivers trans- However, this bill is only a begin- from future terrorist attacks are em- porting hazmat present an equal, if not ning. It is a move in the right direc- powered to do so. This is not a zero a greater, security risk than that pre- tion, not an end in itself. Much more sum game. We can both ensure our se- sented by U.S. drivers? If so, how will needs to be done to protect our nation curity and protect our liberties. we deal with foreign drivers because from illegal immigration. We cannot afford to lose this race they do not appear to be covered by I believe one important measure against terror, and we cannot afford to section 1012. could be to return to annual registra- give the enemy in this war a full lap Mr. LEAHY. I fully agree with the tion for immigrants who are in the head-start. I support this bill. I com- gentleman. The legislation must ad- United States. Requiring immigrants mend President Bush and General dress foreign drivers to cover ade- to register each year would help the Ashcroft for submitting a sound pro- quately the security risks applicable to INS keep track of where immigrants posal to the Senate, and for their tre- hazmat transportation. are in the United States, and whether mendous efforts during the past month. Mr. THURMOND. Mr. President, the they have overstayed their visas. In ad- SECTION 1012 September 11 terrorist attack has dition, it would benefit aliens by help- Mr. HOLLINGS. I have a number of brought to the forefront numerous ing them prove how long they have questions about the substance, scope flaws in how we control and manage been in the United States. and procedure of section 1012 of the immigration in this country. It is now An alien registration system existed USA PATRIOT Act of 2001. I am con- clear that the control of our borders before 1981. However, the system be- cerned that there are some significant has become a matter of national secu- came inactive at that time due to lack issues which this provision has not ad- rity. of funds and administrative difficul- dressed, notwithstanding its noble in- Let me first state that I have no ties. I think the time has come to re- tentions. Would the gentleman be able doubt that most aliens who enter this consider this program. Recent tech- to clarify some of these issues for me? country are innocent, hard-working nology, such as scanners, can help ad- Mr. LEAHY. I will do my best to people who make important contribu- dress some of the record-keeping prob- clarify the intent and operation of this tions to our society. America can con- lems that harmed the old system. section for the gentleman. tinue our tradition of supporting rea- There are many other reform possi- Mr. HOLLINGS. Would the gen- sonable legal immigration, but I am bilities. Currently, when an alien com- tleman please explain how the Sec- concerned that we are allowing illegal mits a crime in the United States and retary of DOT will determine whether immigration to get out of control. is ordered deported, some home coun- an individual seeking an original or re- According to the most recent census tries refuse to take him back. This cre- newed license presents a security risk? data, there are at least 7 and possibly ates huge difficulties for us, especially Mr. LEAHY. The Secretary will rely as many as 8 million illegal aliens in when the alien has completed his pris- upon the background records check to the United States. The number has at on sentence. I believe the United be done by the Justice Department. least doubled just since 1990. This trend States should respond in kind by not Any further analysis to be done by the is very troubling and has to be re- granting visas to countries that have Secretary on this issue should be ex- versed. We must do more to stop illegal such a policy. This would encourage

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11052 CONGRESSIONAL RECORD — SENATE October 25, 2001 countries to live up to their respon- DoD, that may have information the the only ‘‘turf war’’ will be the one to sibilities. Also, we need to look into ex- State Department and INS need, but protect American turf. panding the use of identification cards are still not required to share informa- Another important issue is that of for aliens, including more tion. In short, by only providing access verifying the identity of a visa holder. fingerprinting. to the FBI’s NCIC system, we are not Once a visa is issued at the point of ori- The antiterrorism bill demonstrates summoning the sum total of U.S. Gov- gin, we should be ensuring that it is that the Congress is committed to ad- ernment information on individual the same person who shows up at the dressing the problems we face regard- aliens which is now needed in our war point of entry. The fact is, we don’t ing immigration. I look forward to on terrorism. know how many, if any, of the 19 ter- working with my colleagues to con- I saw firsthand the consequences of rorists implicated in the September 11 tinue our important work in this area. serious inadequacies in coordination attacks entered the U.S. on visas that It must remain a top priority. We and communication during my 12 years were actually issued to someone else. should not rest until we have illegal as ranking member of the House For- Currently, once a visa is issued by immigration under control in this eign Affairs International Operations the State Department, it then falls to country. Subcommittee and chair of the sub- INS officials at a port-of-entry to de- Ms. SNOWE. Mr. President, I rise committee’s Senate counterpart. termine whether to grant entry. The today in support of the anti-terrorism Access to the FBI’s NCIC system by problem is, no automated system is legislation we have before us, the USA the State Department is a first step, utilized to ensure that the person hold- PATRIOT Act. I supported the Senate and one that I advocated in 1993, after ing the visa is actually the person who bill when it passed 2 weeks ago, and the Justice Department ruled that be- was issued the visa. In other words, the this bill—which was overwhelmingly cause the State Department was not a INS official has to rely solely on the passed by the House yesterday—retains ‘‘law enforcement agency,’’ it no longer identification documents the person key provisions that give our Govern- had free access to the NCIC. Tellingly, seeking entry is carrying—making that ment the tools it needs to combat ter- after ruling, the visa denial rate for official’s job that much more difficult. rorism. past criminal activities plunged a re- There is a better way, and legislation One of the key issues during the markable 45 percent—stark evidence I introduced would require the estab- House-Senate negotiations was that of that we can’t afford to tie the hands of lishment of a fingerprint-based check the so-called ‘‘sunset.’’ While the Sen- America’s overseas line of defense system to be used by State and INS to ate-passed bill ensured these provisions against terrorism. verify that the person who received the would remain in effect as long as nec- Although my legislation designated visa is the same person at the border essary, the House voted to suspend the the State Department a ‘‘law enforce- crossing station trying to enter the bill’s provisions in 5 years. Ultimately, ment agency’’ for purposes of accessing country. the bill before us today includes a four the NCIC when processing any visa ap- Simply put, it requires the State De- partment and INS to jointly create an year sunset. While I believe the provi- plication, whether immigrant or non- electronic database which stores fin- sions of this bill will be needed to com- immigrant, a revised provision enacted gerprints, and that other agencies may bat terrorism beyond 4 years, it is fair in 1994 only provided the State Depart- use as well. When a foreign national re- to say Congress should review the pro- ment with free access for purposes of ceives a visa, a fingerprint is taken, visions and make an assessment of processing immigrant visas—dropping which then is matched against the fin- their effectiveness in 4 years. my requirement for non-immigrant gerprint taken by INS upon entry to Let me also say I am pleased to have visas eventually used by all 19 sus- the U.S. This is a common sense ap- worked in conjunction with Senator pected hijackers. Even that limited law proach that would take us one step BOND and Senator CONRAD in sup- was sunsetted in 1997 with a brief 6- closer to minimizing the threat and porting the Visa Integrity and Security month extension to 1998. maximizing our national security. Act. This bill addresses many of the Currently, U.S. posts check the look- The fact of the matter is fingerprint concerns we raised, such as the impor- out database called the Consular Look- technology, one part of the larger cat- tance of information sharing among out and Support System—Enhanced, or egory of biological factors that can be government law enforcement and intel- CLASS–E, prior to issuing any visa. used for identification known as bio- ligence agencies with the State Depart- CLASS–E contains approximately 5.7 metrics, is not new. In fact, the U.S. ment and tightening tracking controls million records, most of which origi- Government has already employed bio- on those entering the U.S. on student nate with U.S. embassies and con- metrics to verify identities at military visas, including those attending flight sulates abroad through the visa appli- and secret facilities, at ports-of-entry, schools. These are critical issues, and I cation process. The INS, DEA, Depart- and for airport security, among many commend both Senators for their ef- ment of Justice, and other federal others. forts, and I am pleased the bill before agencies also contribute lookouts to The bill before us includes a provi- us contains provisions from this bill on the system, however, this is voluntary. sion that requires the Attorney Gen- information sharing and the use of bio- To further fortify our front-line de- eral to report on the feasibility of en- metric technology for the entry and fenses against terrorism—to turn back hancing the FBI’s Integrated Auto- exit of aliens. terrorists at their point of origin—in- mated Fingerprint Identification Sys- With this legislation, we take reason- formation sharing should be manda- tem (IAFIS) or other identification able, constitutional steps to enhance tory, not voluntary. That is why I in- systems to identify visa holders who electronic and other forms of surveil- troduced a bill that would require that may be wanted in a criminal investiga- lance, without trampling on the rights law enforcement and the intelligence tion in the U.S. or abroad before they of Americans. We will also institute community share information with the are issued a visa or permitted entry or critical measures to increase informa- State Department and INS for the pur- exit to the U.S. tion sharing by mandating access to pose of issuing visas and permitting This surely doesn’t sound all that the FBI’s National Crime Information entry into the U.S. And while my bill much different than the legislation I Center, or NCIC, by the State Depart- would have gone farther than the legis- have proposed. I am pleased this bill at ment and INS. lation before us, by including the DEA, least starts us down the road toward Incredibly, while intelligence is fre- CIA, Customs and the Department of implementing biometric technologies, quently exchanged, no law requires Defense in the mandated information- and I hope this can be achieved as soon agencies like the FBI and CIA to share sharing network, I am pleased that this as possible. information on dangerous aliens with bill we are considering at least man- Although I would prefer an even the State Department or INS. While I dates access to the NCIC by INS and stronger bill and indeed worked toward am pleased the bill before us ensures the State Department. the inclusion of measures that would information sharing between the FBI, The bottom line is, if knowledge is have accomplished this goal, this legis- State Department and INS, I believe it power, we are only as strong as the lation negotiated by the House and does not go far enough as other crucial weakest link in our information net- Senate is vital to our national secu- agencies, such as the DEA, CIA, or work. Therefore, we must ensure that rity, and I am proud to support it. The

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11053 war on terrorism is a war on many U.S. society to allow him to pursue a multi- impediments that keep us from maximizing fronts. Some of the battles will be year appeal process. our defense against terrorism, and that great in scale, many will be notable by Just as unbelievable is the fact that, even means changing the prevailing system and after the 1993 attack on the World Trade what is not seen and by what doesn’t culture by re-focusing on the ‘‘Three C’s’’ of Center, membership in a terrorist organiza- coordination, communication and coopera- happen, namely, that individuals who tion in and of itself—with the exception of tion. The bottom line is, if knowledge is pose a serious threat to this nation the PLO—was not sufficient grounds for visa power, we are only as strong as the weakest never see these shores and never set denial. Rather, the Immigration Act of 1990 link in our information network—therefore, foot on our soil. required the government to prove that an in- we must ensure that the only ‘‘turf war’’ will Many of our greatest victories will be dividual either was personally involved in a be the one to protect American turf. In our measured by the attacks that never terrorist act, or planning one. This absurd fight against terrorism, we can do no less. happen, in battles we win before they threshold made it almost impossible to block The PRESIDING OFFICER. The Sen- individuals, such as Sheikh Rahman, from ator from Utah. ever have a name, in conflicts we pre- entering the country legally. Legislation I vent before they ever claim one Amer- introduced in 1993 removed that bureaucratic Mr. HATCH. Mr. President, I ask ican life. I hope we will pass and enact and legal obstacle—yet it took nearly three unanimous consent the time be divided legislation that will help make that more years to enact it as part of the Anti- equally between the distinguished possible, and urge my colleagues to Terrorism and Effective Death Penalty Act chairman and myself. join me in supporting this bill. of 1996. How much time remains? Mr. President, I ask unanimous con- Further, to respond to the trail of errors The PRESIDING OFFICER. Ten min- we uncovered, provisions from my bill were utes for each side. sent to have printed in the RECORD an enacted in a year later, in 1994, requiring op-ed from The Bangor Daily News. Mr. HATCH. Mr. President, as we modernization in the State Department’s an- wind down the debate and move to There being no objection, the mate- tiquated microfiche ‘‘lookout’’ system to rial was ordered to be printed in the keep dangerous aliens from entering the final passage, I want to continue my RECORD, as follows: United States. Recognizing the need to mate acknowledgment of those who worked [From the Bangor Daily News, Oct. 24, 2001] these new technologies with the need for the so hard and were instrumental in get- most comprehensive, current and reliable in- HOMELAND SECURITY AND THE ‘‘THREE C’S’’: ting this legislation enacted. I start formation, the bill also attempted to address COORDINATION, COMMUNICATION, AND CO- again by expressing my gratitude to the issue of access. Tellingly, after the State OPERATION Senators KYL and FEINSTEIN for their Department lost free access to the NCIC be- (By U.S. Senator Olympia J. Snow) efforts. No Senators have worked hard- cause of a 1990 Justice Department ruling er over the past few years in such a bi- This week, Congress is expected to send to that the State Department was not a ‘‘law the President landmark legislation for a new enforcement agency’’, the visa denial rate partisan manner on terrorist missions. era: a bill designed to bring the full re- for past criminal activities plunged a re- They have both done an excellent job. sources of the federal government to bear in markable 45 percent. Also, Senators BOB GRAHAM and our war against terrorism. One of the most Therefore, my 1993 bill also designated the SHELBY, who cosponsored this legisla- critical elements of this anti-terrorism pack- State Department a ‘‘law enforcement agen- tion, deserve credit for significant con- age—which also includes expanded authority cy’’ for purposes of accessing the NCIC as tributions. In the Intelligence Com- to hunt down and identify terrorist activity well as other FBI criminal records when mittee, of course, Senator SARBANES within our own borders—addresses the processing any visa application, whether im- ‘‘Three C’s’’ that have been lacking among migrant or non-immigrant. Unfortunately, a and Senator PHIL GRAMM are to be those federal agencies that are integral to revised provision also enacted in 1994 pro- praised for the money laundering pro- preventing terrorism: coordination, commu- vided the State Department with free access visions of the package. They developed nication, and cooperation. to these FBI resources only for purposes of that in this bill. I credit the hard work Incredibly, there is no provisions of cur- processing immigrant visas—dropping my re- of other fellow members of the Judici- rent law that mandates State Department quirement for non-immigrant visas eventu- ary Committee; in particular, Senators access to sources such as the FBI’s National ally used by all 19 of the suspected hijackers. Crime Information Center (NCIC). This sys- BIDEN and SCHUMER, who have devoted Even that limited law was allowed to expire, their energy to several of these pro- tem, which maintains arrest and criminal in- despite my legislation enacted in 1996 repeal- formation from a wide variety of federal, ing the requirement that visa applicants be posals. Their assistance was instru- state, and local sources as well as from Can- informed of the reason for a denial—a provi- mental in shaping this final product. ada, will be used by the State Department to sion that law enforcement agencies legiti- Next, I thank my dedicated staff and deny visas to dangerous aliens. Similar to mately believed could impede ongoing inves- my chief counsel and staff director, legislation I introduced in 1993, the bill pend- tigations, or reveal sources and methods. Makan Delrahim, who has been instru- ing in conference will finally make such in- Having introduced my own legislation mental in putting this bill together. I formation-sharing a requirement, and when after the attacks to mandate information also thank my crime policy counsels on combined with the new Office of Homeland sharing among all agencies such as the FBI, Security should help ensure that our federal CIA, DEA, Customs, INS and the State De- the Judiciary Committee: Jeff Taylor, agencies are as united in the effort against partment, I would have preferred that the re- whose background as a federal pros- terrorism as the American people. I urged cently-passed anti-terrorism bill go even fur- ecutor was crucial in crafting the conferees to further strengthen this require- ther. Nevertheless, re-instating State De- many technical provisions of this legis- ment, so both State and the Immigration partment access to the NCIC for both types lation, as well as Stuart Nash, another and Naturalization Service (INS) have access of visas is a critical step in ensuring that in- former federal prosecutor, and Leah to the full range of information gathered by formation sharing will no longer be vol- Belaire, each of whom has brought in- U.S. intelligence and law enforcement agen- untary and ad hoc. valuable expertise to this process; my cies. To further fortify our front-line defenses During my twelve years as ranking mem- against terrorism and turn back terrorists at lead immigration counsel, Dustin Pead, ber of the House Foreign Affairs Inter- their point of origin, I also proposed man- and our tireless legislative assistant, national Operations Subcommittee and dating information sharing by establishing Brigham Cannon, each has provided Chair of the subcommittee’s Senate counter- Terrorist Lookout Committees, comprised of critical assistance. I am also grateful part, I saw firsthand why removing impedi- the head of the political section of each em- to Elizabeth Maier on Senator KYL’s ments to a cooperative federal effort is a na- bassy and senior representatives of all U.S. staff, David Neal on Senator BROWN- tional imperative. Perhaps the most egre- law enforcement and intelligence agencies. BACK’s staff, and Esther Olavarria on gious example came to light in our inves- The committees would be required to meet tigations into the comings-and-goings of rad- on a monthly basis to review and submit Senator KENNEDY’s staff, for their ical Egyptian cleric Sheikh Omar Abdel names to the State Department for inclusion input on the immigration provisions. I Rahman, mastermind of the 1993 World in the visa lookout system. Unfortunately, also extend our thanks to Sharon Trade Center bombing. Senators did not reach agreement on amend- Prost, my former chief counsel who re- Astoundingly, we found that in the period ments that could be added to the anti-ter- cently was appointed by President since 1987 when Sheikh Rahman was placed rorism bill, so the package was ultimately Bush to serve as a Federal appellate on the State Department lookout list, he en- passed with no modifications. Consequently, judge, for her wise counsel on this leg- tered and exited the U.S. five times totally I will continue to work to pass this impor- islation. unimpeded. Even after the State Department tant measure separately. formally revoked his visa, INS granted him Clearly, the catastrophic events of Sep- In addition, I personally thank our permanent residence status. When he was fi- tember 11 have catapulted us into a different Chairman, Senator LEAHY. I reserve nally caught on July 31, 1991, reentering the era, and everything if forever changed. We that until the end. His staff deserve a U.S., he was immediately released back into must move heaven and earth to remove the lot of credit and I personally thank

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11054 CONGRESSIONAL RECORD — SENATE October 25, 2001 them for their long hard hours. I thank of the sworn oath of the office we hold, This new terrorist threat to Americans on personally his chief counsel and staff must do everything in his or her power our soil is a turning point in America’s his- director, Bruce Cohen, and other mem- to ensure that the heinous attacks of tory. It is a new challenge for law enforce- bers of his staff: Beryl Howell, Julie September 11 are never repeated. We ment. Our fight against terrorism is not solely or primarily a criminal justice en- Katzman, Ed Barron, Ed Pagano, Tim must never forget the more than 5,000 deavor—it is defense of our nation and its Lynch, David James, and John Eliff, innocent men, women, and children citizens. We cannot wait for terrorists to each of whose expertise I personally who lost their lives on American soil strike to begin investigations and take ac- found invaluable. I am grateful to them some 6 weeks ago. tion. We must prevent first, and prosecute for the many long hours they devoted I am grateful that I have been able to second. The anti-terrorism proposals that to drafting this bill and helping ensure work on this matter with the distin- have been submitted by the Administration that our final product has strong bipar- guished Senator from Vermont. I am and considered by the House and Senate rep- tisan support. I enjoyed working with grateful we have been able to pull to- resent careful, balanced, and long overdue gether, in a relatively short period of improvements to our capacity to combat ter- them and I certainly always enjoy rorism. working with Senator LEAHY and ap- time, an antiterrorism bill that really PROCESS preciate the good things we were able is going to make a difference in all our The Administration reached bipartisan to do. lives. So I urge my colleagues’ support for this important legislation, thank agreement with the leadership of the House The Department of Justice has been and Senate and the chairmen and ranking of great assistance to us in putting this my colleagues for all their help. members of the Senate and House Judiciary bill together. In particular, I would Mr. President. The Department of Committees on a bill which was passed by like to thank Attorney General John Justice has prepared an excellent and the House on October 24 by an overwhelming Ashcroft and his Deputy Larry Thomp- precise analysis of the legislation, with majority. son for their wise counsel, their leader- which I fully agree. I ask unanimous The Department of Justice strongly sup- ship, and their quick response to our consent that the analysis be printed in ports this bill and urges the Senate to act the RECORD. quickly so that these new authorities can be many questions and concerns. Michael made available to prosecutors and agents Chertoff, the Assistant Attorney Gen- There being no objection, the mate- rial was ordered to be printed in the who are working around the clock to prevent eral for the Criminal Division was a future attacks and to bring the perpetrators RECORD, as follows: frequent participant in our meetings, of September 11 to justice. Although the as was Assistant Attorneys General OVERVIEW compromises reflected in specific provisions Dan Bryant and Viet Dinh. Justice De- In the wake of the tragic, criminal act of of the bill do not in every case meet the Ad- violence perpetrated against the United ministration’s original goals, the bill does partment lawyers Jennifer Newstead, States on September 11, the Bush Adminis- John Yoo, John Elwood, Pat O’Brien, overall substantially achieve each and every tration proposed legislation that would pro- one of the Administration’s objectives. and Carl Thorsen were also important vide the Department of Justice with the DISCUSSION ON SUBSTANTIVE PROVISIONS and valuable participants in this proc- tools and resources necessary to disrupt, ess. weaken, and counter the infrastructure of Enhancing domestic security against terrorism The White House Counsel and Con- terrorist organizations, to prevent or thwart (title I) gressional Liaison staff provided essen- terrorist attacks, and to punish or defeat in These provisions would provide new fund- battle perpetrators of terrorist acts. ing and structural reforms in the fight tial contributions at all stages of this On October 24, the House passed a bill against terrorism. A counterterrorism fund process. Judge Al Gonzales, the White which contains a substantial number of the would be established to address terrorism House Counsel, provided key guidance key provisions originally requested by the issues within the Department of Justice with with the help of his gifted staff, includ- Administration. The Department of Justice regard to investigations and damage to com- ing Deputy White House Counsel Tim strongly supports this bill and urges the Sen- ponents as a result of terrorism (§ 101); dis- Flanagan and Associate Counsels ate to act quickly so that these new authori- crimination against Arab and Muslim Amer- Courtney Elwood, Brett Kavanaugh, ties can be made available to prosecutors icans is condemned (§ 102); additional funding and agents who are working around the would be provided for the FBI’s technical and Brad Berenson. clock to prevent future attacks and to bring The White House Congressional Liai- support center (§ 103); the National Elec- the perpetrators of September 11 to justice. tronic Crime Task Force Initiative would be son office, together with the Vice The events of September 11, 2001 dem- expanded (§ 105); and the military would be President’s office, worked nonstop to onstrate that terrorist acts are perpetuated authorized to assist state and local law en- keep this process moving forward and by expertly organized, highly coordinated, forcement in chemical weapons emergencies were critically responsive to any re- and well financed organizations, operating (§ 104). quests the Senate had. Nick Calio, Ziad without regard to borders, to advance their The President’s powers under the Inter- Ojakli, and Heather Wingate with the agendas. The fight against terrorism thus is national Economic Emergency Powers Act both a war to defend the security of our na- would be expanded in cases of military hos- White House, and Nancy Dorn and tion and our citizens against terrorism and a Candy Wolff with the Vice President’s tilities and regarding the use of classified in- unified criminal justice effort. formation (§ 106). President Bush signed a office, deserve our gratitude for all the Existing laws fail to provide our national new Executive Order under the International assistance they have given us. security authorities and law enforcement Emergency Economic Powers Act (IEEPA) Finally, Mr. President, I must recog- with certain critical tools they need to fight blocking the assets of, and transactions nize the diligence and invaluable as- and win the war against terrorism. Indeed, with, terrorist organizations and certain we have tougher laws for fighting organized sistance provided by leadership staff on charitable, humanitarian, and business orga- crime and drug trafficking than for com- nizations that finance or support terrorism. both sides of the aisle. bating the threat of terrorism. For example, At present, however, the President’s powers Mark Childress and Andrea Larue technology has dramatically outpaced our are limited to freezing assets and blocking with Majority Leader DASCHLE’s office, statutes. Many of our most important intel- transactions with such individuals and enti- and David Hoppe, Sharon Soderstrom, ligence gathering laws were enacted decades ties. Starving terrorist organizations of the ago, in and for an era of rotary telephones. and John Mashburn with Senator funds that sustain them requires that we do Meanwhile, our enemies use e-mail, the LOTT’s office, all deserve our collective more. When we encounter drug traffickers, Internet, mobile communications and voice thanks. These dedicated professionals for instance, we don’t just freeze assets, we mail. Until Congress provides law enforce- selflessly gave up their nights and seize assets. ment with the tools necessary to identify, weekends to facilitate passage of this dismantle and punish terrorist organiza- Enhanced surveillance procedures (title II) final product. Also, I take special pride tions, we are fighting an uphill battle. These provisions of the bill address gaps in in thanking Stewart Verdery, who now Making the fight against terrorism a na- the coverage of the federal electronic sur- works for Senator NICKLES but pre- tional priority must not and will not mean veillance statutes (particularly the wiretap viously worked on my Judiciary Com- that the rights and freedoms guaranteed to statute, the pen registers and trap and trace mittee staff, for his cooperation and as- all Americans under the Constitution will statute, and the Electronic Communications sistance in this process. become victims of this war. In this law en- Privacy Act). The key element that unites As we close debate on this legisla- forcement mission, as in all that we under- these provisions is the goal of making the take at the Department of Justice, the pro- statutes technology-neutral: that is, ensur- tion, I would like to note that the fun- tection of the rights and privacy of all Amer- ing that the same existing authorities that damental obligation of government is icans is the principle that guides us—the apply to telephones, for example, are made to protect our citizens from harm and outcome which, if not achieved, renders our applicable to computers and use of e-mail on every member of this Senate, by virtue efforts meaningless. the Internet. It is critically important to

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11055 note that in drafting these provisions, the Solution: The legislation would, for the Pen Register: Business Records; National Department’s goal was and remains ensuring conduct of electronic surveillance and phys- Security Letters that the scope of the authority remains the ical search against foreign terrorists and Problem: The ability of the FBI to obtain same—in other words, that no more or less spies, extend the duration of an approval basic records as a part of an international information as is currently obtainable order to 120-days with extension possible for terrorist or other intelligence investigation through a particular device (for example, a up to a year for electronic surveillance and has been hampered by cumbersome proce- pen register) on a telephone, is obtainable would extend the duration for searches from dures concerning pen registers, business from a computer. 45 to 90 days. (§ 207). This provision would records, and national security letters. As the Law enforcement must have intelligence sunset in four-years. current investigation of flight school records gathering tools that match the pace and so- Multi-Point Authority makes clear, our ability to gain quick access phistication of the technology utilized by Problem: Foreign terrorists and spies are to such information may be critical to an in- terrorists. Critically, we also need the au- trained to change mobile or ground-line vestigation. thority for law enforcement to share vital phones, hotel rooms, and restaurants in Solution: The legislation would enable the information with our national security and order to defeat surveillance. Currently, to ef- FBI to obtain toll, business, and other intelligence agencies in order to prevent fu- fect FISA coverage at a new facility, DOJ records more efficiently by eliminating the ture terrorist attacks. must develop and draft a new application, requirement of a showing that there is a Terrorist organizations increasingly take get it certified by the Director of FBI and nexus to a foreign power, and applying a advantage of technology to hide their com- signed by the Attorney General, and find and standard of relevance to an intelligence or munications from law enforcement. Today’s present it to a judge on the FISA Court. This counterintelligence investigation. This new terrorist communications are carried over delays or defeats our coverage of these tar- standard is limited to protection against multiple mobile phones and computer net- gets and impairs our ability to investigate international terrorism or clandestine intel- works—frequently by multiple telecommuni- and detect terrorism and espionage. ligence activities and may not be based sole- cations providers located in different juris- Solution: The bill would enable the FBI, in ly on First Amendment activities. (§§ 214, 215, dictions. To facilitate their criminal acts, response to such actions by FISA targets 216). Pen/trap provisions would also now terrorists do not discriminate among dif- that thwart coverage (§ 206), to serve an apply to Internet traffic, as well as telephone ferent kinds of technology. Regrettably, our order on a previously unidentified vendor or communications, while excluding Internet intelligence gathering laws don’t give law facility in order to maintain the coverage. Service Providers (ISPs) and other entities enforcement the same flexibility. complying with wiretap orders from liability The bill creates a technology-neutral Congress passed a similar provision for Title III a few years ago. These provisions will based on any surveillance under these provi- standard for intelligence gathering, ensuring sions. See also (§§ 201, 202, expanding predi- law enforcement’s ability to trace the com- sunset in four years. Mobility—Nationwide Search Warrants cates for obtaining surveillance authority). munications of terrorists over mobile These provisions are subject to the four-year As communications technology now pro- phones, computer networks and any new sunset. technology that may be developed in the vides significant mobility to its users, who coming years. can pass from jurisdiction to jurisdiction in Broadened Scope of Subpoenas for Records of We are not seeking changes in the protec- minutes, law enforcement and intelligence Electronic Communications and Sub- tions in the law for the privacy of law-abid- officers need that same flexibility. scriber Records ing citizens. The bill would streamline intel- The bill provides for nationwide search The bill would permit the disclosure of in- ligence gathering procedures only. Except warrants for voice mail (§ 209), e-mail (as formation such as means of payment for for under those circumstances authorized by long as the issuing court has jurisdiction electronic services, including bank account current law, the content of communications over the offense being investigated) (§ 220), and credit card numbers, pursuant to sub- would remain off-limits to monitoring. The and in investigations involving terrorism poena. The bill would treat cable companies information captured by this technology- (§ 219). acting in their capacity of providing Internet neutral standard would be limited to the Foreign Intelligence Information services the same as other ISPs and tele- phone companies in this regard, removing kind of information you might find in a Problem: Currently, as interpreted, the them from the protections of laws governing phone bill, such as the phone numbers dialed FISA requires that the FBI Director or other cable privacy, the intent of which was and is by a particular telephone. senior official certify that the collection of The Department strongly opposed the two- to prevent disclosure of shows watched in foreign intelligence is ‘‘the purpose’’ of the year ‘‘sunset’’ on these critical provisions in the privacy of one’s home not benign infor- FISA search or surveillance. As interpreted the original House version of the legislation. mation such as account numbers and forms by the FISA Court, that standard has hin- The President and the Attorney General of payment. (§ 225). ISPs would also be per- dered the Department’s ability to coordinate have stressed that the threat of terrorism mitted under the bill to disclose information multi-faceted responses to international ter- will not ‘‘sunset’’; rather the fight against of stored electronic communications where rorism, which involve foreign intelligence terrorism will be a long struggle, and law en- such communications indicate a risk of im- and criminal investigations and equities. forcement must have the necessary tools to Solution: The bill would change this stand- mediate death or injury. (§§ 210, 211, 212). fight this war over the long term. However, ard. The bill would require certification that Delayed Notice of Execution of Search law enforcement must have these tools now. the collection of foreign intelligence is ‘‘a Warrant To calm fears of a permanent authority, the significant purpose,’’ rather than ‘‘the pur- The bill would permit delayed notice of bill now includes a four-year ‘‘sunset’’ provi- pose,’’ of the FISA search or surveillance; execution of a search warrant in criminal in- sion for several provisions as noted during however, this provision is subject to the vestigations, for a reasonable time there- the discussion of the impacted provisions, at four-year sunset applicable to several FISA after, where notice of the execution would which time it is the Administration’s hope provisions. (§ 218). have an adverse result. (§ 213). that these changes in surveillance law will be made permanent. Foreign Intelligence Information Sharing International Money Laundering Abatement Problem: Currently, with few exceptions, and Anti-Terrorist Financing Act of 2001 (title Foreign Intelligence Surveillance Act (FISA) III) amendments (title II) criminal investigators may not share grand jury or Title III information with the intel- Title III of the bill is designed to impede These provisions sharpen the tools used by ligence agencies. Records obtained through the financing of terrorist activities. It ac- the FBI, CIA, and NSA for collecting intel- grand jury subpoenas and insights gained complishes that goal by allowing the govern- ligence on international terrorists and other through Title III remain inaccessible to ment to confiscate the assets of foreign ter- targets under FISA, 50 U.S.C. §§ 1801–63. The agencies that need such information in their rorist organizations, the terrorists them- amendments in this area would enable the operations and analysis. selves and those who aid them. In addition, agents and case officers of the FBI and CIA Solution: The bill would enable foreign in- it allows the United States government to and the analysts of NSA to respond more telligence information obtained in a crimi- restrain those assets after indictment but quickly and efficiently to crises and to oper- nal investigation, including information ob- before any final adjudication to ensure those ational opportunities against terrorists and tained through a grand jury or Title III, to assets are available to satisfy a judgment of other targets. be shared with intelligence and other federal forfeiture. Period of FISA Surveillance and Search officers, subject to the four-year sunset and Law enforcement must be able to ‘‘follow Orders would require the court to be notified after the money’’ in order to identify and neu- Problem: Currently, with limited excep- any such information sharing occurs in the tralize terrorist networks. tions, applications to the FISA Court for its case of grand jury information. (§ 203). In ad- The bill gives law enforcement the ability authorization to conduct electronic surveil- dition, the Attorney General must establish to seize the assets of terrorist organizations. lance and physical search must be renewed procedures for the release of information In addition, criminal liability is imposed on by the Court every 90 and 45 days, respec- when it pertains to a case against a United those who knowingly engage in financial tively. Applications to the Court for surveil- States citizen. Also, the FBI has been au- transactions—money laundering—involving lance and search against foreign terrorists thorized to expedite the hiring of translators the proceeds of terrorist acts. In addition, fi- and spies are noncontroversial but bog down capable of translating any information gath- nancial institutions are encouraged to par- the agencies and clog the Court. ered under these and other procedures (§ 205). ticipate in this endeavor by providing civil

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00067 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11056 CONGRESSIONAL RECORD — SENATE October 25, 2001 liability immunity to financial institutions in the United States. Under current law, the to the full force of our laws. Just as the law that disclose suspicious activity. (§ 314). The existing grounds for removal of aliens for currently regards those who harbor persons bill further includes financial institutions in terrorism are limited to direct material sup- engaged in espionage, the bill would make this endeavor by requiring them to have port of an individual terrorist. The bill the harboring of terrorists a criminal of- anti-money laundering programs. (§§ 314, 352). would expand these grounds for removal to fense. The bill also increases the penalties The bill would expand the scope of predi- include material support to terrorist organi- for conspiracy to commit terrorist acts to a cate money laundering offenses to include zations. (§ 412). serious level as we have done for many drug providing material support for terrorist or- To address the need for better border pa- crimes. ganizations. (§ 301). These offenses would fur- trol, additional border patrol officers would Key Provisions ther not be limited to conduct occurring be authorized, specifically on the northern within the United States, as long as the tools border which has, during the investigation Removing impediments to effective pros- of the offense are in or passed through the into the September 11th events, been shown ecution—elimination of statute of limita- United States. (§§ 302, 377). to be extremely problematic. (§§ 401, 402). To tions for offenses creating the risk of death Various common banking problems are aid INS agents, the FBI would also be re- or personal injury and extending the statute also addressed in the bill, such as shell quired to provide criminal records informa- for all other terrorism offenses to 8 years banks, correspondent accounts, and con- tion to those agents. (§ 403). (§ 809). centration accounts. (§§ 312, 313, 325). Treas- The bill addresses not only unwelcome sus- Removing impediments to effective inves- ury would be authorized to order special pected terrorist aliens but also immigrants tigation—single jurisdiction search war- measures be taken by financial institutions who may need additional consideration to rants; expanded jurisdiction to include ter- where they are involved in such accounts or stay within the United States where their rorism against U.S. facilities abroad. (§ 804). other primary money laundering concerns. loved ones were victims of terrorist activity. Strengthening substantive criminal law— (§ 311). Information would be made available (§§ 421–428). prohibition on harboring terrorists and on as to such crucial facts as the beneficial, as Removing obstacles to investigating terrorism material support of terrorists (§§ 803, 805, opposed to nominal, owner of a bank account (title V) 807); making terrorist crimes RICO predi- and minimum standards and policies would cates (§ 813); extending powers of asset for- The bill authorizes the Attorney General be put into effect to deal with correspondent feiture to terrorists’ assets (§ 806); including and Secretary of State to pay rewards re- and concentration accounts involving for- altering cyberterrorism offense (§ 814); ex- lated to terrorism investigations. It also pro- eign persons. (§§ 312, 313, 325, 326). panding the offense of possession of bio- vides for the DNA data collection from those Employee references would be permitted to weapons (prohibiting possession of biological convicted of terrorism offenses and the co- include reference to suspicious activity by toxins by felons and aliens) (§ 817); creating a ordination of Federal law enforcement agen- the employee without fear of liability and federal offense for attacking mass transpor- cies. (§§ 501, 502, 503, 504). other cooperation among financial institu- tation systems (§ 801); expanding definition of tions, law enforcement, and regulatory au- Providing for victims and public safety officers domestic terrorism and offenses of the crime thorities would be encouraged. (§§ 314, 330, (title VI) of terrorism, requiring a showing of coercion 355). The bill establishes procedures for expe- of government as an element of the offense These money laundering provisions are all dited payment of public safety officers in- (§§ 802, 808). subject to the four-year sunset. volved in the prevention, investigation, res- Strengthening criminal penalties—longer Protecting the border (title IV) cue or recovery efforts related to a terrorist prison terms and postrelease supervision of The legislation expands the grounds for attack, as well as providing increases to the terrorists (§ 812); higher conspiracy penalties deeming an alien inadmissible or deportable Public Safety Officer Benefit Program. for terrorists (§ 811); alternative maximum from the United States for terrorist activity, (§§ 611–614). sentences up to life for terrorism offenses provides for the mandatory detention of Increased information sharing (title VII) (§ 810). aliens whom the Attorney General certifies The bill would require information sharing Improved intelligence (title IX) pose a risk to the national security, and fa- among Federal, State and Local law enforce- cilitates information sharing within the U.S. The bill authorizes the Director of the CIA ment, thus, providing the necessary full pic- and with foreign governments. Current law to establish requirements and provide for the ture needed to address terrorism. (§ 711). allows some aliens who are threats to the na- collection of foreign intelligence. The Direc- tional security to enter and remain in the Substantive criminal law/criminal procedure: tor would also be asked to ensure proper dis- United States. The provisions in the bill cor- Strengthening the criminal law against ter- semination of foreign intelligence informa- rect those inadequacies and are necessary rorism (title VIII) tion. Only if the appropriate officials have tools to prevent detain and remove aliens These provisions reform substantive and all the relevant information will prevention, who are national security threats from the procedural criminal law to strengthen fed- investigation, and prosecution be fully func- United States. The Attorney General would eral law enforcement’s ability to investigate, tioning. The bill also would provide for the also have the authority to detain suspected prosecute, prevent, and punish terrorist tracking of terrorist assets as part of the terrorists who are threats to national secu- crimes. There are substantial deficits in each collection of information. (§§ 901, 905). rity, as long as removal proceedings or of these areas which impede or weaken our Miscellaneous (title X) criminal charges are filed within 7 days. antiterrorism efforts. (§ 412). In the rare cases where removal is de- We must make fighting terrorism a na- The bill would finally require the Depart- termined appropriate but is not possible, de- tional priority in our criminal justice sys- ment of Justice Inspector General to des- tention may continue upon a review by the tem. Current law makes it easier to pros- ignate an official to receive civil liberty and Attorney General every 6 months. (§ 412). The ecute members of organized crime than to civil rights complaints and report those com- bill further would expand the definition of crack down on terrorists who can kill thou- plaints to Congress. The presumption is that terrorists for purpose of inadmissibility or sands of Americans in a single day. The same such information will be used in determining removal to include public endorsement of is true of drug traffickers and individuals in- the continuing viability of the provisions in terrorist activity or provision of material volved in espionage—our laws treat these the bill subject to sunset in 2005. (§ 1001). support to terrorist organizations. (§ 411). criminals and those who aid and abet them Mr. HATCH. Mr. president, I also ask The bill further expands the types of weap- more severely than terrorists. unanimous consent that a section-by- ons the use of which can be considered ter- Our investigation has found that wide ter- section analysis be printed in the rorist activity. (§ 411). rorist networks, not isolated individuals, are RECORD. The ability of alien terrorists to move free- responsible for the September 11 attacks. ly across borders and operate within the Whether the members of these networks are There being no objection, the mate- United States is critical to their capacity to in the United States or in other countries, rial was ordered to be printed in the inflict damage on the citizens and facilities they and those who aid them must be subject RECORD, as follows: FINAL COUNTER-TERRORISM BILL SECTION-BY-SECTION ANALYSIS

Bill provision No. Bill description

1 ...... Title and table of contents. 2 ...... Construction and severability clause. 101 ...... Establishes a fund to reimburse DOJ components for costs incurred to rebuild facilities, investigate and prosecute terrorism, and to reimburse other Federal agencies for detaining individuals in foreign countries accused of terrorist acts. 102 ...... Sense of Congress condemning discrimination against Arab and Muslim Americans. 103 ...... Authorizes $200M for each of FY 2002, 2003 and 2004 for the FBI Technical Support Center (established by AEDPA). 104 ...... Broadens Attorney General’s authority to request assistance of Secretary of Defense in emergency situations involving weapons of mass destruction. 105 ...... Directs the Secret Service to develop a national network of electronic crime task forces modeled on the New York task force. 106 ...... Grants President the power to confiscate and take title to enemies’ property, when United States has been attacked or is engaged in military hostilities; also authorizes courts to consider classified evidence, with- out making it public, in lawsuits that challenge the government’s seizure of property. 201 ...... Adds terrorism statutes—including chemical weapons offenses under 18 U.S.C. 22—as predicate offenses for which Title III wiretap orders are available. 202 ...... Allows voice wiretaps in computer hacking investigations.

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Bill provision No. Bill description

203(a) ...... Permits sharing of grand jury information regarding foreign intelligence and counterintelligence with federal law-enforcement, intelligence, protective, immigration, national defense and national security personnel; must notify court that disclosure has taken place. Can share grand jury information with state officials upon court order. 203(b) ...... Sharing of wiretap information regarding foreign intelligence, counterintelligence, and foreign intelligence information with federal law-enforcement, intelligence, protective, immigration, national defense and na- tional security personnel. 203(c) ...... Requires AG to establish procedure for information sharing in 203(a) and (b). 203(d) ...... Permits sharing of information regarding foreign intelligence, counterintelligence, and foreign intelligence information with federal law-enforcement, intelligence, protective, immigration, national defense and na- tional security personnel notwithstanding other law. 204 ...... Assures that foreign intelligence gathering authorities are not disrupted by changes to pen register/trap and trace statute. 205 ...... Employment of translators by the FBI. 206 ...... Allows court to authorize roving surveillance under FISA where court finds that the actions of the target may have effect of thwarting the identification of a target. 207 ...... Initial authorization for surveillance and search of officers/employees of foreign powers changed to 120 days; can be extended for one year period. All other searches authorized for 90 day period. 208 ...... Increases the number of judges on the FISA Court to 11, no less than 3 of whom must live within 20 miles of Washington, D.C. 209 ...... Allows voice mail stored with a third party provider to be obtained with a search warrant, rather than a wiretap order. 210 ...... Broadens the types of records that law enforcement can subpoena from communications providers, including the means and source of payment. 211 ...... Clarifies that statutes governing telephone and internet communications (and not the burdensome provisions of the Cable Act) apply to cable companies that provide internet or telephone service in addition to television programming. 212 ...... Allows computer-service providers to disclose communications and records of communications to protect life and limb; and clarifies that victims of computer hacking can disclose non-content records to protect their rights and property. 213 ...... Amends 18 U.S.C. 3103a to permit delayed notice of search warrants where court determines that immediate notice would have an ‘‘adverse result’’; officers may seize property if court finds ‘‘reasonable neces- sity.’’ 214 ...... To get pen register/trap and trace order under FISA, must certify that information likely to be obtained is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities; investigations of US persons may not be conducted upon the basis of First Amendment protected activities. 215 ...... Business records provision allows any designee of FBI director no lower than Assistant Special Agent in Charge to apply to FISA court or a magistrate designated by Chief Justice for an ex parte order requiring production of any tangible things for an investigation to protect against international terrorism or clandestine intelligence activities; investigation must be conducted under AG Guidelines under EO 12333, and investigation of a US person cannot be based on First Amendment protected behavior; also requires semiannual reporting to Congress. 216 ...... Amends the pen register/trap and trace statute to apply to internet communications, and to allow for a single order valid across the country. 217 ...... Allows victims of computer-hacking crimes to request law enforcement assistance in monitoring trespassers on their computers; ‘‘computer trespasser’’ does not include persons who have a contractual relation- ship with the hacked computer’s owner. 218 ...... Allows law enforcement to conduct surveillance or searches under FISA if ‘‘a significant purpose’’ is foreign intelligence. 219 ...... Permits courts to issue search warrants that are valid nationwide for investigations involving terrorism. 220 ...... Permits courts to issue search warrants for communications stored by providers anywhere in the country; court must have jurisdiction over the offense. 221 ...... Authorizes President to impose sanctions relating to the export of devices that could be used to develop missiles or other weapons of mass destruction. Also expands President’s ability to restrict exports to the portions of Afghanistan controlled by the Taliban. 222 ...... Protects communications providers from having to develop or deploy new technology as a result of the Bill, and assures that they will be reasonably compensated. 223 ...... Creates a cause of action and authorizes money damages against the United States if officers disclose sensitive information without authorization. 224 ...... Provides that all changes in Title II sunset after four years (except sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222). 225 ...... Grants immunity from civil liability to persons who furnish information in compliance with a FISA order. 301 ...... Title of money-laundering act. 302 ...... Congressional findings. 303 ...... Sunset provision; money-laundering provisions will expire in 2005 if Congress enacts joint resolution. 311 ...... Authorizes the Treasury Secretary to require that financial institutions undertake a variety of special measures to prevent money laundering, such as recording certain transactions and obtaining information about correspondent accounts. 312 ...... Imposes special due diligence requirements for private banking and correspondent accounts that involve foreign persons. 313 ...... Prohibits domestic financial institutions from maintaining correspondent accounts with foreign shell banks. 314 ...... Requires Treasury Secretary to promulgate regulations to encourage cooperation among financial institutions, regulators, and law enforcement; allows financial institutions to share information regarding persons suspected of terrorism-related money laundering. 315 ...... Includes various foreign-corruption offenses—including bribery and smuggling—as ‘‘specified unlawful activities’’ under the money-laundering statute. 316 ...... Allows persons to contest confiscations of their property in connection with antiterrorism investigations. 317 ...... Authorizes long-arm jurisdiction over foreign money launderers; also allows courts to restrain foreign-money launderers’ assets before trial. 318 ...... Essentially a technical amendment, defines ‘‘financial institution’’ to include a ‘‘foreign bank.’’ 319 ...... Permits forfeiture of funds held in United States interbank accounts; upon the request of federal banking agencies, requires financial institutions to disclose information about anti-money laundering compliance. 320 ...... Authorizes the civil forfeiture of property related to certain offenses against foreign nations, including controlled-substances crimes, murder, and destruction of property. 321 ...... Includes various entities in the definition of ‘‘financial institution,’’ including futures commission merchants and the Commodity Futures Trading Commission. 322 ...... Provides that a statute preventing fugitives from using court resources in forfeiture actions, also applies to claims brought by corporations whose officers are fugitives. [typo in bill; refers to title 18; should be title 28] 323 ...... Allows courts to issue restraining orders to preserve the availability of property subject to forfeiture by a foreign government. 324 ...... Requires Treasury Secretary to report on the operation of this subtitle. 325 ...... Allows Treasury Secretary to issue regulations governing concentration accounts, to ensure that customers cannot secretly move funds. 326 ...... Requires Treasury Secretary to promulgate rules requiring financial institutions to verify the identities of persons opening accounts. 327 ...... Requires the government to consider financial institutions’ anti-money laundering record when deciding to approve various requests, including proposed mergers. 328 ...... Requires Treasury Secretary to cooperate with foreign governments to identify the originators of wire transfers. 329 ...... Imposes criminal penalties on government employee who is bribed in connection with his duties under the money-laundering title. 330 ...... Sense of Congress that the United States should negotiate with foreign nations to secure their cooperation in investigations of terrorist groups’ finances. 351 ...... Grants immunity to a financial institution that voluntarily discloses suspicious transactions; prohibits the institution from notifying the person who conducted the suspicious transaction that it has been reported. 352 ...... Directs financial institutions to establish anti-money laundering programs, and allows Treasury Secretary to prescribe minimum standards. 353 ...... Imposes civil and criminal penalties for violations of geographic targeting orders; extends the effective period for geographic targeting orders from 60 to 180 days. 354 ...... Requires the President’s national strategy on money laundering to include data regarding the funding of international terrorism. 355 ...... Allows financial institutions to disclose suspicious activity in employment references. 356 ...... Obliges Treasury Secretary to issue regulations that require securities brokers and commodities merchants to report suspicious activities. 357 ...... Requires Treasury Secretary to report on the administration of Bank Secrecy Act provisions. 358 ...... Makes various amendments to Bank Secrecy Act to enhance United State’s ability to fight international terrorism, including making information available to intelligence agencies. 359 ...... Requires reporting on the suspicious activities of underground banking systems. 360 ...... Instructs United States Executive Directors of international financial institutions to use their voice and vote to support loans to foreign countries that assist the United States’ fight against international terrorism. 361 ...... Establishes procedures and rules governing the Treasury Department’s Financial Crimes Enforcement Network. 362 ...... Requires Treasury Secretary to establish in the Financial Crimes Enforcement Network, a highly secure network that will allow the exchange of information with financial institutions. 363 ...... Increases civil and criminal penalties for money laundering. 364 ...... Authorizes the Federal Reserve to hire security personnel. 365 ...... Requires companies that receive more than $10,000 in currency in a transaction to file a report with the Financial Crimes Enforcement Network. 366 ...... Requires Treasury Secretary to study expanding exemptions from currency reporting requirements. 371 ...... Makes it a crime to smuggle more than $10,000 in currency into or out of the United States, with the intent of avoiding a currency reporting requirement, also authorizes civil forfeiture. 372 ...... Authorizes criminal and civil forfeiture in currency-reporting cases. 373 ...... Includes a scienter requirement for the crime of operating an unlicensed money transmitting business. 374 ...... Increases penalties for counterfeiting United States currency and obligations; clarifies the counterfeiting statutes apply to counterfeits produced by electronic means. 375 ...... Increases penalties for counterfeiting foreign currency and obligations. 376 ...... Designates a new predicate money-laundering offense: providing material support or resources to foreign terrorist organizations in violation of 18 U.S.C. § 2339B. 377 ...... Provides for extraterritorial jurisdiction over certain crimes of fraud in connection with access devices. 401 ...... Authorizes AG to waive caps on immigration personnel assigned to protect Northern Border. 402 ...... Triples the number of Border Patrol personnel, Customs Service personnel, and Immigration and Naturalization Service inspectors; also allocates an additional $50 million each to the Customs Service and the INS. 403 ...... Requires the FBI to share criminal-record information with the INS and the State Department for the purpose of adjudicating visa applications. 404 ...... One-time expansion of INS authority to pay overtime. 405 ...... Requires AG to report to Congress on feasibility of enhancing FBI’s Integrated Automated Fingerprint Identification System, or ‘‘IAFIS,’’ to prevent foreign terrorists from receiving visas and from entering United States. 411 ...... Broadens the Immigration and Nationality Act’s terrorism-related definitions. Expands grounds of inadmissibility to include persons who publicly endorse terrorist activity. Expands definition of ‘‘terrorist activity’’ to include all dangerous devices in addition to firearms and explosives. Expands definition of ‘’engaging in a terrorist activity’’ to include providing material support to groups that the person knows or should know that are terrorist organizations, regardless of whether the support’s purpose is terrorism related. 412 ...... Requires AG to detain aliens whom he certifies as threats to national security. AG must charge aliens with criminal or immigration offenses within seven days. AG must detain aliens until they are removed or until he determines that they no longer pose threat. Establishes D.C. Circuit as exclusive jurisdiction for appeals. 413 ...... Gives Secretary of State discretion to provide visa-records information to foreign governments, for the purpose of combating international terrorism or crime; gives certain countries general access to State Depart- ment’s lookout databases. 414 ...... Sense of Congress regarding need to expedite implementation of an integrated entry and exist data system. 415 ...... Provides that Office of Homeland Security shall participate in the entry-exit task force authorized by Congress in 1996. 416 ...... Requires AG to implement fully and expand the foreign student visa monitoring program authorized by Congress in 1996. 417 ...... Requires Secretary of State to enhance efforts to develop machine-readable passports. 418 ...... Obliges Secretary of State to review how consular officers issue visas to determine whether consular shopping is a problem. 421 ...... Grants special immigrant status to people who were in the process of securing permanent residence through a family member who died, was disabled, or lost employment as a result of the September 11 at- tacks. 422 ...... Provides a temporary extension of status to people who are present in the United States on a ‘‘derivative status’’ (the spouse or minor child) of a non-immigrant who was killed or injured on September 11. 423 ...... Provides that aliens whose spouses or parents were killed in the September 11 attacks will continue to be considered ‘‘immediate relatives’’ entitled to remain in the United States. 424 ...... Provides that aliens who turn 21 during or after September 2001 shall be considered children for 90 or 45 days, respectively, after their birthdays. 425 ...... Authorizes AG to provide temporary administrative relief, for humanitarian purposes, to any alien who is related to a person killed by terrorists. 426 ...... Requires AG to establish evidentiary guidelines for demonstrating that death or disability occurred as a result of terrorist activity. 427 ...... Provides that no benefits shall be given to terrorists or their family members.

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Bill provision No. Bill description

428 ...... Definitions. 501 ...... Enhances the AG’s authority to pay rewards in connection with terrorism. 502 ...... Enhances Secretary of State’s authority to pay rewards in connection with terrorism. 503 ...... Expands DNA sample collection predicates for federal offenders to include all offenses in 18 U.S.C. 2332b(g)(5)(B) list, all crimes of violence (as defined in 18 U.S.C. 16), and attempts and conspiracies to com- mit such crimes. 504 ...... Allows ‘‘federal officers’’ who conduct FISA surveillance or searches to coordinate efforts to investigate or protect against attacks, grave hostile acts, sabotage, international terrorism, or clandestine intelligence activities by foreign power. 505 ...... Allows FBI Deputy Assistant Director or higher (or Special Agent in Charge) to issue National Security Letters for telephone toll and transaction records, financial records, and consumer reports. 506 ...... Extends Secret Service’s jurisdiction (concurrently with FBI’s) to investigate offenses against government computers. 507 ...... Person not lower than Assistant AG can apply for an ex parte court order to obtain educational records that are relevant to an authorized investigation or prosecution of a grave felony or an act of domestic or international terrorism; must provide specific and articulable facts showing that records likely to contain information related to the offenses; AG required to issue guidelines to protect confidentiality. 508 ...... Eliminates restrictions on production of information from National Center for Education Statistics; allows person not lower than Assistant AG to collect information if there are specific and articulable facts that records are likely to contain information related to a grave felony or an act of domestic or international terrorism; AG required to issue guidelines to protect confidentiality. 611 ...... Provides for expedited payment of Public Safety Officer benefits in connection with terrorism. 612 ...... Technical amendments to Pub. L. 107–37. 613 ...... Raises base amount of Public Safety Officer benefits from $100K to $250K. 614 ...... Enhances authority of Assistant Attorney General for the Office of Justice Programs to manage OJP. 621 ...... Makes many minor changes in crime victims compensation program; one is: amounts received by the Crime Victims Fund from the $40B emergency fund are not subject to spending cap. 622 ...... Makes many minor changes in the crime victims compensation program. 623 ...... Makes many minor changes in the crime victims compensation program. 624 ...... Makes many minor changes in the crime victims compensation program; one expands use of its emergency reserve. 701 ...... Expands regional information-sharing system to enhance federal and state law-enforcement officers’ ability to respond to terrorist attacks. 801 ...... Makes it a crime to engage in terrorist attacks on mass transportation systems. 802 ...... Adds definition of ‘‘domestic terrorism’’ to 18 U.S.C. 2331 and makes conforming change in existing definition of ‘’international terrorism.’’ 803 ...... Makes it a crime to harbor a person where perpetrator knows or has reasonable grounds to believe that the person has committed or is about to commit one of several serious terrorism crimes; includes venue provision. 804 ...... Extends the United States’ special maritime and territorial jurisdiction to any offenses committed by or against U.S. nationals at foreign missions and related residences; excludes offenses by persons covered under 18 U.S.C. 3261(a) (which provides separate extraterritorial provision for persons accompanying the armed forces). 805 ...... Amends crime of providing material support to terrorists by deleting the ‘‘within the U.S.’’ restriction; adds some additional predicate offenses; and adds ‘‘monetary instruments’’ and ‘‘expert advice or assist- ance’’ as types of prohibited support. Also, adds material support of foreign terrorist organizations as money laundering predicate. 806 ...... Amends 18 U.S.C. 981(a)(1) to authorize civil forfeiture of all assets owned by persons engaged in terrorism. 807 ...... Clarifies that Trade Sanctions Reform and Export Enhancement Act of 2000 does not limit the prohibition on providing material support to terrorists or foreign terrorist organizations. 808 ...... Amends definition of ‘‘federal crime of terrorism’’ in 18 U.S.C. 2332b(g)(5)(B) to include a number of serious crimes that terrorists are likely to commit. Makes conforming amendment to 2332b(f) to avoid reduc- ing AG’s primary investigative jurisdiction. 809 ...... No statute of limitations for certain terrorism crimes that involve the occurrence or foreseeable risk of death or serious injury; other terrorism crimes subject to extended eight-year limitations period. 810 ...... Amends statutes defining various terrorism crimes (including arson and material support to terrorists) to provide base maximum prison terms of 15 or 20 years, and up to life imprisonment where death results. 811 ...... Amends statutes defining various terrorism crimes (including arson and killings in federal facilities) to add a prohibition on attempt and conspiracy; provides increased penalties for attempts and conspiracies that are equal to the penalties for the underlying offenses. 812 ...... Authorizes postrelease supervision periods of up to life for persons convicted of terrorism crimes that involved the occurrence or foreseeable risk of death or serious injury. 813 ...... Adds terrorism crimes listed in 18 U.S.C. 2332b(g)(5)(B) as predicates under RICO. 814 ...... Makes a number of amendments to the computer hacking law to clarify protection of protected computers, and to ensure adequate penalties for cyber-terrorists. 815 ...... Creates a defense for persons who disclose wire or electronic communications records in response to the request of a governmental entity. 816 ...... Requires AG to establish regional computer forensic laboratories to enhance cybersecurity. 817 ...... Broadens prohibition on possessing biological toxins: unlawful to possess toxins for anything other than a peaceful purpose; makes it a crime to possess a biological toxin in a quantity suggesting defendant had no peaceful purpose; provides that a small category of restricted persons (felons, illegal aliens and others) are disqualified from possessing biological toxins. 901 ...... Gives CIA Director responsibility to establish requirements and priorities for foreign intelligence information under FISA, and to assist AG in ensuring that information derived from FISA surveillance or searches is used effectively for foreign intelligence purposes. 902 ...... Includes international terrorist activities within the scope of foreign intelligence under the National Security Act. 903 ...... Sense of Congress on the need to establish intelligence relationships to acquire information on terrorists. 904 ...... Grants CIA Director temporary authority to delay submitting reports to Congress on intelligence matters. 905 ...... Requires AG to disclose to CIA Director any foreign intelligence acquired by a DOJ element during a criminal investigation; AG can provide exceptions for classes of information to protect ongoing investigations. 906 ...... Requires AG, CIA Director, and Secretary of the Treasury to report to Congress on feasibility of developing capacity to analyze foreign intelligence relating to terrorist organizations’ finances. 907 ...... Obliges Directors of FBI and CIA to report on the development of a ‘‘National Virtual Translation Center,’’ which will provide intelligence community with translations of foreign intelligence. 908 ...... Requires AG to establish a program to train government officials in the identification and use of foreign intelligence. 1001 ...... Directs DOJ Inspector General to review allegations that DOJ employees engaged in civil rights abuses. 1002 ...... Sense of Congress that Sikhs should not be subject to discrimination in retaliation for the September 11 attacks. 1003 ...... Defines ‘‘electronic surveillance’’ in FISA to exclude the acquisition of computer trespassers’ communications. 1004 ...... Provides that money laundering prosecutions may be brought in any district where the transaction occurred, or in any district the underlying unlawful activity could be prosecuted. 1005 ...... Requires AG to make grants to enhance states and local governments’ ability to respond to and prevent terrorism. 1006 ...... Provides that aliens who are engaged in money laundering may not be admitted to the United States. 1007 ...... Authorizes Drug Enforcement Administration funds for antidrug training in Turkey and in South and Central Asia. 1008 ...... Requires AG to study feasibility of using fingerprint scanner at overseas consular posts and points of entry into the United States. 1009 ...... Requires FBI to report to Congress on feasibility of providing airlines with names of passengers who are suspected to be terrorists. 1010 ...... Allows Defense Department to contract with state and local governments to provide security at military installations during Operation Enduring Freedom. 1011 ...... Enhances statutes making it unlawful to fraudulently solicit charitable contributions. 1012 ...... Restricts states’ ability to issue licenses to transport hazardous materials; Transportation Secretary must first determine that licensee poses no security risk. 1013 ...... Sense of the Senate that the United States should increase funding for bioterrorism preparedness. 1014 ...... Requires Office of Justice Programs to make grants to states to enhance their ability to prepare for and respond to terrorism involving weapons of mass destruction. 1015 ...... Expands and reauthorizes the Crime Identification Technology Act for antiterrorism grants to states and localities. 1016 ...... Establishes National Infrastructure Simulation and Analysis Center to protect United States’ critical infrastructure from terrorist attacks.

Mr. LEAHY. Mr. President, I thank counsel and assistance as we have CANTWELL. I also want to thank Bill the distinguished senior Senator from moved first the original Senate USA Jensen of the Legislative Counsel’s of- Utah for his comments. Senator HATCH Act, S. 1510, and now the House-passed fice. and I, over the last generation, have bill, H.R. 3162. Finally, I would like to thank my spent a great deal of time with each Many others also helped us: Senator own Judiciary Committee staff, espe- other on a many issues, on numerous HATCH and Senator SPECTER and Sen- cially Bruce Cohen, Beryl Howell, Julie committees, especially the Judiciary ator GRASSLEY and Senator DURBIN, Katzman, Ed Pagano, John Elliff, Committee. But we have spent so much Senator SCHUMER, Senator CANTWELL, David James, Ed Barron, Tim Lynch, time together on this, we even appear and so many others on the Judiciary Susan Davies, Liz McMahon, Manu to be coordinating wardrobes with gray committee. Bhardwaj, and Tara Magner. These are suits and blue shirts today. But I ap- I said many times we are merely con- people who are more than just accom- preciate his help. stitutional impediments to staff. plished Senate staffs, they are close I appreciate so many who helped on In particular, I want to thank Mark personal friends. crafting and moving forward with this Childress and Andrea LaRue on the I think of the way they have worked, legislation. I thank our leader, Senator staff of Majority Leader DASCHLE, and also, with personal office staff such as Daschle. It would have been impossible David Hoppe on the staff of Republican Luke Albee, J.P. Dowd, David Carle, for us to be here at this point without Leader LOTT. I would also like to and others. These are dear friends, but his steadfast commitment to the com- thank Markan Delrahim, Jeff Taylor, they are also people who bring such mittee system and his willingness to Stuart Nash, and Leah Belaire with enormous expertise—expertise they have the committee work diligently to Senator HATCH, the ranking member of had in their other careers before they improve the legislation initially pre- the Judiciary Committee, Melody came to the Senate, and how helpful sented by the Administration. On my Barnes and Esther Olavarria with Sen- this is. behalf and on behalf of the American ator KENNEDY, Neil McBride, and Eric Mr. President, we are about to vote people, I want to publicly acknowledge Rosen with Senator BIDEN, Bob Schiff and we will vote in a matter of min- his vital role in this legislation. Sen- with Senator FEINGOLD, and Stacy utes. I want us to think just for a mo- ator REID has also provided valuable Baird and Beth Stein with Senator ment why we are here. We have all

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00070 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY October 25, 2001 CONGRESSIONAL RECORD — SENATE S11059 shared the sadness, the horror of Sep- terribly, devastatingly. Who can forget We have so much in this country—so tember 11. We are seeing Members of the pictures we saw over and over much. But it is our rights and our Con- Congress and staffs threatened, tragic again on television? stitution that give us everything we deaths in the Postal Service, those who So I can understand the rush to do have, which allows us to use the genius died in the Pentagon, those who died at something, anything. But I used every of so many people who come from dif- the Twin Towers. bit of credibility I had as a Senator to ferent backgrounds and different parts It is also almost a cliche to say say, wait, let us take time. I applaud of the world. That makes us stronger. America under attack, but that is what people such as Senator DASCHLE who, We become weak if we cut back on it is. Each of us has a job helping to re- using his great power as majority lead- those rights. spond to that. We are not Republicans er, said we will take the time to do this We have had some difficult times in or Democrats in that, we are Ameri- right, and backed me up on this. Other our Nation where we have not resisted cans preserving our Nation and pre- Senators from both sides of the aisle the temptation to cut back. Here we serving our democracy. But, you know, said, OK, let’s work together. have. The American people will know we preserve it not just for today, we I know the Senator from Utah shared that this Congress has worked hard to preserve it for the long run. That pre- the same anger that I did at the terror- protect us with this bill. sents the kind of questions we have to ists, and perhaps had been reluctant at I will vote for this legislation know- answer in a bill such as this. first to join with me on that. But then ing that we will continue to do our I suspect terrorist threats against the Senator from Utah and I worked duty, and to follow it carefully to the United States will exist after all of day and night, weekends, evenings, and make sure that these new powers are us, all 100 of us, are no longer serving everything else to put together the used within our Constitution. in the Senate. It is a fact of life. It will best possible bill. I suggest that all time be yielded, come from people who hate our democ- We worked with our friends and our and that we be prepared to vote. I ask racy, hate our diversity, hate our suc- colleagues in both parties in the other for the yeas and nays. cess. But that doesn’t mean we are body. Ultimately, we do nothing to going to stop our democracy, our diver- protect America if we pass a bill which The PRESIDING OFFICER. Is there a sity, or our success. for short-term solutions gives us long- sufficient second? Think what we cherish in this Na- term pain by destroying our Constitu- There is a sufficient second. tion. Our first amendment, for exam- tion or our rights as Americans. The yeas and nays were ordered. ple, giving us the right to speak out There are tough measures in this leg- The PRESIDING OFFICER. The about what we want—as we want. How islation. Some may even push the enve- clerk will read the bill for the third many countries even begin to give that lope to the extent that we worry. That time. freedom? is why we put in a 4-year sunset. We The bill was read the third time. Also, in that same first amendment, have also built in constitutional The PRESIDING OFFICER. The bill the right to practice any religion we checks and balances within the court having been read the third time, the want, or none if we want. system and within even some of the question is, Shall the bill pass? The leaders of the Judiciary Com- same agencies that will be given new The clerk will call the roll. mittee, Senator HATCH and I, belong to enforcement powers. But we also will The assistant legislative clerk called different religions which we hold deep- not forget our rights and responsibil- the roll. ly. I think we gain a great deal of inner ities and our role as U.S. Senators. strength from our respective faiths. We will not forget our role and our Mr. REID. I announce that the Sen- But we know we are not judged by our responsibilities as Senators to do over- ator from Louisiana (Ms. LANDRIEU) is necessarily absent. religion. That is something we must sight. Senator HATCH and I are com- protect and hold. We are judged by how mitted to that. We will bring the best The PRESIDING OFFICER (Mr. well we do in representing our States people from both sides of aisle, across JOHNSON). Are there any other Sen- and our Nation. the political spectrum, to conduct ef- ators in the Chamber desiring to vote? Because we face terrible terrorist at- fective oversight. The result was announced—yeas 98, tacks today, we should not succumb to- I have notified Attorney General nays 1, as follows: morrow by giving up what makes us a Ashcroft and Director Mueller that we [Rollcall Vote No. 313 Leg.] great nation. That has been my bench- will do that to make sure these powers YEAS—98 mark throughout the work I have done are used within the constitutional Akaka Dorgan McCain in this bill. framework to protect all of us. I said Allard Durbin McConnell I spoke of the people who bring so earlier on this floor what Benjamin Allen Edwards Mikulski much to this. I was just talking with Franklin said: that the people who Baucus Ensign Miller Bayh Enzi Murkowski Beryl Howell, a brilliant lawyer, who, would trade their liberties for security Bennett Feinstein Murray with Bruce Cohen, has led our team on and deserve neither. Biden Fitzgerald Nelson (FL) all this. She is a former prosecutor. We will enhance our security in this Bingaman Frist Nelson (NE) How much she learned from her prior bill, but we will preserve our liberties. Bond Graham Nickles Boxer Gramm Reed experiences and how much she brought How could any one of us who have Breaux Grassley Reid here. Bruce Cohen, who was in private taken an oath of office to protect the Brownback Gregg Roberts practice and came here, probably is as Constitution do otherwise? Bunning Hagel Rockefeller Like the distinguished Presiding Of- Burns Harkin Santorum knowledgeable about Senate practice Byrd Hatch Sarbanes as anybody I know of, and he has ficer, I have held different elective of- Campbell Helms Schumer brought that knowledge here. There fices. As the distinguished Presiding Cantwell Hollings Sessions are so many others I could name. Officer knows, we take seriously our Carnahan Hutchinson Shelby Carper Hutchison Smith (NH) I have to think of my own case. Prob- duties and our roles in each of those. Chafee Inhofe Smith (OR) ably my 26 years here in the Senate, in He was a Member of the House and was Cleland Inouye Snowe many ways led up to this moment be- the Governor of one of the original 13 Clinton Jeffords Specter cause I have never brought more of my States. I was a prosecutor and am a Cochran Johnson Stabenow Collins Kennedy Stevens own experiences or knowledge to bear U.S. Senator from the 14th State. But Conrad Kerry Thomas than on this. all of us take this responsibility, be- Corzine Kohl Thompson There was a rush, an understandable cause none of us are going to be here Craig Kyl Thurmond Crapo Leahy Torricelli and even, some may say, justifiable forever. Daschle Levin Voinovich rush, to pass legislation immediately I want to be able to look back at my Dayton Lieberman Warner after these terrible events. I under- time in the U.S. Senate and be able to DeWine Lincoln Wellstone stand that, the United States having tell my children, my grandchildren, Dodd Lott Wyden Domenici Lugar been attacked within our borders for and my friends and neighbors in the first time, really, by an outside Vermont—the State I love so much— NAYS—1 power since the War of 1812—attacked that I came home having done my best. Feingold

VerDate Mar 15 2010 03:52 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00071 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S11060 CONGRESSIONAL RECORD — SENATE October 25, 2001 NOT VOTING—1 Food and Drug Administration, and re- tems, and to help move rural America Landrieu lated agencies. This bill was approved into the information age by promoting The bill (H.R. 3162) was passed. by the Appropriations Committee with- new technologies in the area of tele- Mr. COCHRAN. Mr. President, I move out dissent, and I hope it will receive communications and internet services. to reconsider the vote, and I move to the support of all Senators. I believe More and more, Americans are seeking lay that motion on the table. this bill strikes an appropriate balance relief from the congestion and sprawl The motion to lay on the table was of programs, consistent with the inter- of urban centers, and with the proper agreed to. ests of Senators, to meet the needs of tools, rural America holds great prom- the farm sector, the environment, and ise for viable job opportunity alter- f rural America generally; nutrition as- natives. Programs in this bill do much AGRICULTURE, RURAL DEVELOP- sistance to our Nation’s most vulner- to help rural communities provide the MENT, FOOD AND DRUG ADMIN- able citizens; provide adequate re- infrastructure necessary to create ISTRATION, AND RELATED sources to the Food and Drug Adminis- those jobs. AGENCIES APPROPRIATIONS tration for protection of our food sup- In addition, funding in this bill sup- ACT, 2002 ply and other aspects of public health; ports many nutrition and public health The PRESIDING OFFICER (Mr. and to support other national and related programs. These include the JOHNSON). Under the previous order, international priorities. food stamp, school lunch, and other nu- the Appropriations Committee is dis- This bill provides $73.9 billion in new trition assistance programs such as the charged from consideration of H.R. 2330 budget authority for both mandatory Women, Infants, and Children pro- and the Senate will proceed to its con- and discretionary programs under our gram—WIC. This bill also provides sideration. subcommittee’s jurisdiction, and is funding for the Food and Drug Admin- The clerk will report the bill by title. within our 302(b) allocation. This bill is istration, which includes an increase The assistant legislative clerk read $2.8 billion below the level provided for for the Office of Generic Drugs to help as follows: fiscal year 2001, and is $78 million make lower cost medications available A bill (H.R. 2330) making appropriations below the President’s request. Let me to Americans as quickly as possible. for agriculture, rural development, Food and restate, this bill is below the Presi- Funding for the Food and Drug Admin- Drug Administration, and related agencies dent’s request. istration, and other agencies, included programs for fiscal year ending September Although this bill is $2.8 billion in this bill will also help guarantee 30, 2002, and for other purposes. below the level provided last year, I that the food Americans eat is not only Mr. COCHRAN. Mr. President, I sug- should explain that the fiscal year 2001 the most nutritious and affordable in gest the absence of a quorum. bill included $3.6 billion in emergency the world, but that it is also the safest. The assistant legislative clerk pro- spending for natural disaster and mar- Assistance in this bill does not stop ceeded to call the roll. ket loss related assistance to farmers at our shores. This bill also includes a Mrs. MURRAY. Mr. President, I ask and rural communities. No emergency number of international programs such unanimous consent that the order for funding is provided in the bill now be- as Public Law 480, which provide hu- the quorum call be rescinded. fore the Senate, and when compared to manitarian food assistance to people in The PRESIDING OFFICER. Without the non-emergency spending for fiscal dire need around the world. This bill objection, it is so ordered. year 2001, we are providing an increase also supports international trade of approximately $850,000. That amount RECESS through a number of programs de- Mrs. MURRAY. Mr. President, I ask represents an increase of slightly more signed to open, maintain, and expand unanimous consent that the Senate than 1 percent from the previous year. markets for U.S. production overseas. Before I go any further, I want to stand in recess for 30 minutes. publicly thank my friend from Mis- Before I describe some of the specific There being no objection, the Senate, program included in this bill, let me sissippi, Senator COCHRAN, ranking at 2:31 p.m., recessed until 3:01 p.m., member on the Subcommittee, for his offer a few observations in view of re- and reassembled when called to order help and guidance. I also want to thank cent events. World headlines this past by the Presiding Officer (Mr. NELSON of his staff: Rebecca Davies, minority year have described the devastation to Florida). clerk for the subcommittee, Martha the rural sector of the United Kingdom AMENDMENT NO. 1969 Scott Poindexter, and Rachelle and other areas where foot and mouth Mr. KOHL. Mr. President, pursuant Schroder. Without their help and ex- disease outbreaks have raged out of to yesterday’s unanimous consent pertise, presentation of this bill to the control. Should such outbreaks occur agreement, I rise to offer the text of S. Senate today would not have been pos- in this country, the effect to the farm 1191 as reported by the Senate Appro- sible. I owe a great deal of gratitude to sector, and the general economy, would be staggering. Thankfully, this country priations Committee as a substitute Senator COCHRAN and his staff, as do amendment for H.R. 2330, the fiscal all Senators. has a strong set of safeguards to keep year 2002 appropriations bill for Agri- Mr. President, when someone refers our shores safe from problems such as culture, Rural Development, Food and to this bill simply as the ‘‘Agriculture’’ foot and mouth disease. But our safe- Drug Administration, and related agen- appropriations bill, one might be left guards are only as strong as the weak- cies. The text of S. 1191 is at the desk with the impression that it relates est part. and I ask for its immediate consider- only to programs important to the More recently, we all witnessed the ation. farming community. While this bill horrific events of September 11. Sud- The PRESIDING OFFICER. The does much to support our Nation’s denly, we were reminded that the sig- clerk will report the amendment. farmers, it also does much more. This nificant concerns were held, in regard The assistant legislative clerk read bill provides substantial funding for ag- to accidental introductions of exotic as follows: riculture research, including human pests and disease, may pale in compari- The Senator from Wisconsin [Mr. KOHL], nutrition research, biotechnology, en- son to what could befall this country for himself and Mr. COCHRAN, proposes an ergy alternatives, and many other im- by design. This is true for protection of amendment numbered 1969. portant areas of inquiry. It also pro- our food supply, and in order to ensure The PRESIDING OFFICER. Under vides increases in conservation pro- that our public health system has the the previous order, the amendment is grams that protect our soil, water, and resources for immediate response to agreed to. air resources, including examination of any threat at any time. (The text of the amendment is print- global change, and other critical as- Last week, events occurring in the ed in today’s RECORD under ‘‘Amend- pects of environmental protection. United States Senate, itself, reminded ments Submitted.’’) This bill also supports rural commu- us of the need to keep strong our na- Mr. KOHL. Mr. President, I am nities through economic development tion’s defenses in regard to public pleased to present to the Senate, the programs and assistance for basic health and safety. This bill, with juris- fiscal year 2002 appropriations bill for needs such as housing, electricity, safe diction for the food and Drug Adminis- agriculture, rural development, the drinking water and waste disposal sys- tration, the Food Safety Inspection

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