October 15, 2002 CONGRESSIONAL RECORD — SENATE S10425 Let us mark this anniversary—and ernment or an international terrorist fact that our law enforcement agencies all the sad anniversaries since Sep- organization, then you can involve the did not act quickly enough in order to tember 11—with a renewed sense of FISA Court, the special court, to ask obtain a FISA warrant against him. community, a renewed determination that court for a warrant to do a wire- The reason they did not is precisely be- to protect each other, and a renewed tap or to search a home or to search a cause of the difficulty of connecting resolve to preserve America’s strength computer, or whatever the case might him to a foreign country or a par- and spirit. be. ticular international terrorist organi- I yield the floor. I suggest the ab- Back in the 1970s, when this was first zation, which is what the FISA statute sence of a quorum. started, it was a fairly straightforward requires. The PRESIDING OFFICER. The proposition. If you thought, for exam- Now, bear in mind one of the ration- clerk will call the roll. ple, you might be dealing with a for- ales for being able to accelerate and The assistant legislative clerk pro- eign spy, somebody working for the short circuit the procedures here with ceeded to call the roll. then-Soviet Union, you could go to the a FISA warrant, as opposed to a reg- Mr. KYL. Mr. President, I ask unani- FISA Court and get a warrant for the ular title III type warrant, is you are mous consent that the order for the information you were seeking, and it dealing with a foreign country. You are quorum call be rescinded. was a little easier to obtain than not dealing with an American citizen. The PRESIDING OFFICER (Mr. JEF- through a regular court. You are dealing with a threat from FORDS). Without objection, it is so or- Secondly, the information was all without or an international terrorist dered. classified, secret; it did not have to be organization. So that is the theory. But in the case of someone such as f shared with anyone else, and these judges were cleared to receive that in- Zacarias Moussaoui, even though he AMENDING THE FISA LAW formation. So we were able to keep was a foreign person—not a United Mr. KYL. Mr. President, I would like these kinds of investigations classified, States citizen—we could not connect to speak in morning business for as and obviously that was a key element him with Algeria or France or any of long as I might consume to discuss to be able to prosecute these the other countries of the world. We some legislation Senator SCHUMER and counterterrorism types of cases. But thought his activities looked very sus- I have introduced and to discuss my in- back then the classical FISA target picious and that they could be ter- tention to seek to have that legislation would be either a Soviet agent or per- rorist-type planning, but not connected added to the conference of the intel- haps one of the sort of hierarchical ter- to a particular country. Nor was it pos- ligence authorization bill which, hope- rorist organizations such as the Bader- sible to connect him to al-Qaida. We fully, will come before this body for Meinhof gang in West Germany or the did not have information connecting our deliberation and acceptance by the Red Army faction or a group of that him to al-Qaida. We had some informa- tion that in an around-about way con- end of this week—again, hopefully. sort. Today, as you know, the situation nected him to terrorists in a particular This legislation not only will reau- is very different. thorize the intelligence community ac- We have in the world today amor- place but not an international terrorist tivities that are funded by the Con- phous terrorist groups that have spread organization. So here you had a situation where he gress, but also, perhaps, will include an throughout the entire world that are was talking to some terrorists, he agreement on an outside commission very loosely affiliated, sometimes not looked to be interested in engaging in that will later be established to look affiliated at all. It is not even clear fre- activity that could result in terrorism into the events prior to September 11. quently whether individual people are here in the United States, but the two So there are some important ele- directly connected to the terrorist requirements to get a warrant—either ments to this bill. One of the items I group or actually members of the ter- that he was involved in state-sponsored would like to add to it also deals with rorist group. And when we speak of terror with a particular country or a the subject of terrorism, the Schumer- ‘‘members of,’’ I am not even sure any- particular international terror organi- Kyl bill—that I will describe in just a body can define a member of a terrorist zation—could not be proved. And as a moment—which is a very small provi- organization. You do not pay dues and result, either legitimately or not le- sion in the so-called FISA law that have a card that identifies you as a gitimately, the FBI did not authorize a would be appropriately added in this member of al-Qaida or Hamas or warrant to search his computer, not- conference as an additional way we can Hezbollah or the Islamic Jihad or any withstanding the fact there were some help win the war on terror. of these other organizations. in our law enforcement community Let me begin by discussing just a lit- Now, it is true within the group who wished to do that. And, of course, tle bit what this legislation is and why there, you would have to be accepted as his computer was not searched until it is necessary, and then I will discuss someone they could trust, but I do not after September 11. a little bit further how we would like necessarily think they look at the peo- What the Schumer-Kyl bill does is to to have it considered. ple with whom they work as members correct this one little deficiency in the The bill number is S. 2568, called the of the organization. statute to bring it up to date, literally Schumer-Kyl bill. It would add three So we wrote a statute back in the from the time it was created back in words to the FISA legislation under 1970s for a different type of enemy than the cold war days, to today’s environ- which we are now able to gather infor- the enemy we face today. What we are ment in which you have amorphous mation that is useful in conducting our finding is sometimes it is very difficult terrorist groups floating around with war on terror. to connect up a particular terrorist ei- individuals freely associating amongst The Foreign Intelligence Surveil- ther with a foreign country or with a them, or perhaps even not at all with lance Act, or FISA, is a law which pro- particular terrorist organization. We them but engaged in terror. vides a special way of gathering this know there are state sponsors of ter- What it does is to correct this prob- evidence against terrorists, and its ori- rorism, and I suppose if we had evi- lem with the statute by adding just gins are back in the 1970s. But it deals dence somebody here in the United three words—‘‘or foreign person’’—to with a different situation today in ter- States was planning to commit an act the targets of the warrant. So an indi- rorism than it did back then. of terror, and they were employed by vidual would be the subject of a war- Let me just go back in time. The idea the Government of, let’s say, Iran, we rant if you could show you had prob- was if you were working for a foreign could probably get a FISA warrant be- able cause to believe the individual was government, we ought to have a little cause we could connect them pretty engaged in or planning to engage in an better ability to investigate you than easily to a foreign country that has act of terrorism and either was doing through the probable cause require- been known to conduct state terrorism. so on behalf of another country, an ments of the 4th amendment that we But it is a lot more difficult when you international terrorist organization, or would ordinarily apply in a title III have somebody such as Zacarias the person himself is a foreign person. court situation. So the FISA law was Moussaoui, for example, the alleged So you have the connection of two established to say if you have evidence 20th hijacker. His is an actual case in things. You have a potential act of ter- someone is working for a foreign gov- point used by many to demonstrate the ror and a foreign person. And that is

VerDate 0ct 09 2002 02:37 Oct 16, 2002 Jkt 019060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\A15OC6.021 S15PT1 S10426 CONGRESSIONAL RECORD — SENATE October 15, 2002 basically the same rationale that ex- the foreign persons provision we are Washington Post originally suggested, ists with respect to the rationale for adding, and you then could connect the that ultimately prevented the issuance the original FISA law and warrants au- individual to an international terrorist of a warrant. As a result, for 3 weeks thorized thereunder. organization or foreign power. That is prior to the September 11 attack, the By adding to the definition of ‘‘for- what eventually occurred with respect FBI was unable to search Moussaoui’s eign power,’’ a ‘‘foreign person,’’ ‘‘a to Moussaoui. computer or his papers. foreign person,’’ you include the kind The point is, we are no longer just After the trade center and Pentagon of case Moussaoui presented to us looking at the FISA warrant to pros- attacks, and largely because of them, where we knew we wanted to look into ecute someone for a crime that has the FBI received a criminal warrant to his affairs. We could not do so under been committed. The entire effort of search Moussaoui. Among other things, FISA because we couldn’t connect him the Congress, the intelligence commu- the information in his effects linked to a foreign power or terrorist organi- nity, and the administration after Sep- him to two of the actual hijackers and zation, and yet as the facts definitely tember 11 was to add a mission as a su- to a high-level organizer of the attacks indicated, it was somebody we should perior mission to the law enforcement recently arrested in Pakistan. have been able to, whose computer we after-the-fact-prosecution-of-crime Nobody can say whether this infor- should have been able to search prior mission of the FBI, and that new mis- mation necessarily would have allowed to September 11. sion was to try to prevent or preempt us to stop the September 11 conspiracy. Let me be a little more specific about crimes from occurring in the first in- But everyone would agree that access this case because there are those who stance. So the FBI has been reorga- to this information would have been will wonder whether or not maybe we nized to go out and seek information very helpful and could have enabled us are opening the FISA statute up to po- on potential terrorists and be able to to do more than we did. Once they had tential abuse of American citizens—the prevent the terrorist attack before it evidence that he was involved in inter- answer to that is no—by our definition, occurs. national terrorism, the full FISA tools or that guests of the United States, If it occurs, they can still do the sec- would have been available to them, re- foreign persons who were here on, let’s ond function, which is to prosecute gardless of whether they could be say, a nonimmigrant visa, such as after the fact. But the first object of linked to a particular group. But in- Moussaoui—that maybe their rights the game is to prevent it from hap- stead, the outdated and unnecessary would be violated. I want to make it pening in the first place. That is the requirement in the statute to link him clear that that would not be the case. way they have been reorganized. to a specific international group pre- We are familiar with the FBI special What they are now going to try to do vented the FBI agents from pursuing agent from Minneapolis, Coleen is, using statutes such as the FISA what turned out to be the very best Rowley, who wrote the famous memo statute, to uncover information with lead they had prior to the September 11 relating to Zacarias Moussaoui. She respect to people about to commit acts attacks. testified before the Intelligence and of terror and stop it from occurring. We have looked into this. We have Judiciary Committees that she be- But without the change in the Schu- had several people testify before our lieved this kind of additional authority mer-Kyl bill, we are leaving one great committee on behalf of the administra- not only was warranted but was nec- big loophole available to the terrorists. tion in support of this three-word essary for people like her in the field That is the terrorist who is either act- change to the FISA statute. Yet it has offices to do their work and she did not ing on his own or the terrorist who, been very difficult for us to get action. believe that would raise any additional while acting on behalf of an inter- It is true that the legislation has not questions; that it was an essential part national terrorist organization or been marked up in the Judiciary Com- of the tools the individuals in her posi- state, has not yet clearly signalled mittee, but, frankly, the chairman has tion would need. that to our law enforcement officials to not afforded us that opportunity. Not- Director Mueller of the FBI, as well, the point that we can succeed in get- withstanding the fact that we have had indicated in testimony that he believed ting a FISA warrant. testimony in several different hearings the current limited foreign power defi- Our change will enable us to get the of two different committees, we have nition would have made it difficult for warrant and then tie the individual to not been able to get the bill as a free- the FBI to secure a FISA warrant the international terrorist organiza- standing bill to the floor for consider- against any of the September 11 hijack- tion or foreign state, if that, in fact, is ation by the Senate. ers. And in fact he noted to the com- the state of information. There is an opportunity for us to at- mittee: Let me go on with respect to the tach it as an amendment. As I said, the Prior to September 11, of the 19 or 20 hi- Moussaoui case to illustrate how this best opportunity is the authorization jackers, we had very little information as to would work. The agent from the Min- bill of the intelligence community. any one of the individuals being associated neapolis FBI office described to the Ju- This is the perfect opportunity for us with a particular terrorist group. diciary and Intelligence Committees to do so. So what this amendment does is deal how that office opened the investiga- There will be those who will say the with two situations. The first is where tion of Moussaoui on August 15, 2001. bill has not gone through the regular you literally have the lone wolf, a ter- The dates are very important. This was order of the committees and, therefore, rorist acting on his or her own behalf a month before the attack on the it should not be included on the au- unconnected to an international ter- World Trade Center and the Pentagon. thorization bill of the intelligence rorist organization or foreign power The Minneapolis agents arrested community. but who is a foreign person in this Moussaoui on immigration charges at The response to that is twofold: First country planning to commit an act of that time and applied for a FISA war- of all, at this stage in the session, in terrorism against Americans. That is rant to search his belongings. these last few days, we will see hun- exactly what the FISA warrants are But as the FBI’s deputy general dreds of bills come through here, supposed to be getting at or are sup- counsel stated before the two commit- hotlined—the phrase we use—bills that posed to enable us to collect informa- tees, although Moussaoui was found to will be put at the desk. Members will tion on. Yet under the current statute have some association with Chechen be asked whether they have any objec- that would not be possible. This solves terrorists, the evidence was inadequate tion to these bills. If there are no ob- the lone wolf problem. to show that he served as an agent of jections, they will pass by unanimous It also solves the Moussaoui problem, that group or that he had any links consent bills that never saw a markup which is the case of an individual who whatsoever to al-Qaida. in committee. Some legislation will be you think is associated with terrorists So as the FBI deputy general counsel brought over from the House of Rep- but you cannot prove that, but you confirmed, it was the strength of resentatives that was not even consid- definitely have the probable cause to Moussaoui’s connection to the ered in a hearing in a Senate com- think there is an act of terror being Chechens, not a misunderstanding of mittee. That is the way at the end of planned and, therefore, you seek the whether they constituted a recognized the session a lot of legislation is dealt warrant. It would be authorized under foreign power for FISA purposes, as the with. There would be no reason for

VerDate 0ct 09 2002 02:37 Oct 16, 2002 Jkt 019060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\G15OC6.065 S15PT1 October 15, 2002 CONGRESSIONAL RECORD — SENATE S10427 something such as this not to be dealt American lives. We would not be able don’t have time now to fool around with in the same way. to look at ourselves in the mirror if with this and go through the delays The second reason I submit is, we are something similar to this happened that sometimes accompany the consid- in a war. Certainly we should not put again and we had failed to make this eration of legislation toward the end of form above substance in these cir- change. It is certainly not a prepos- a session. I need to know who, if any- cumstances. If we all agree that it terous thought that it could happen. It one, really does have an objection so I makes sense to do what the FBI and has already happened. can meet with that individual and try the Justice Department and the intel- Our law enforcement community and to assure her or him that there is no ligence community are asking for—to intelligence community have told us problem with this piece of legislation. add three words to the FISA statute so this is a problem in today’s environ- It has been vetted by the administra- that we don’t have another case like ment. It is no longer the cold war, tion. The administration supports it. It the Moussaoui case, so that we are able where you were just dealing with the has the support of those who have tes- to look at the effects of someone who Soviet Union or the Red Brigade. You tified before our committees. The Of- we believe is engaged in terrorism are dealing now with people who have fice of Legal Counsel has confirmed against Americans or is planning to be very loose affiliations—if any at all— that the amendment is well within the engaged in it, even though we can’t but they are still terrorists. Our law Constitution. I will quote that in a mo- connect them yet to a specific terrorist didn’t contemplate that when it was ment. organization—if we believe that that is written. So now we have to fix the law. So if there is any objection, we need a good thing, then we should find the There is no reason not to make this to know what it is. We intend to in- very first legislative vehicle we can to change. Violate American civil rights? clude it in the Intelligence Committee attach this amendment in order to ef- No. By its definition, it only applies to authorization bill, and, obviously, that fect that change. foreign persons. It cannot possibly vio- is a bill that must pass the Senate and Time is very short. We will have to late the constitutional rights of any the House. We don’t want it to be held get it over to the House of Representa- American—by its definition, it cannot. up because of somebody’s concern tives, which will have to act in the Are we concerned about the constitu- about our particular amendment. same truncated fashion in order to tional rights of a non-American? With regard to this question of con- send the bill to the President. We can Now, non-Americans do have certain stitutionality, I direct your attention do that if it is part of the intelligence rights in this country, but they do not to a July 31, 2002, letter presenting the authorization conference report be- have the right of the fourth amend- views of the U.S. Department of Jus- cause both bodies can approve the leg- ment search and seizure prohibitions in tice on S. 2586. It announces the De- islation at the same time and have it the context of a statute such as the partment’s support for the bill and pro- sent to the President and signed in a FISA statute, which has been upheld as vides ‘‘a detailed analysis of the rel- matter of days. So this is the best op- constitutional. evant fourth amendment case law in portunity for us to do that—unless we So as long as there is the foreign support of the Department’s conclusion are going to put form over substance. nexus there, and you are not talking that the bill would satisfy constitu- Let me make this sober point. A lot about a U.S. citizen, again, it is impos- tional requirements.’’ of our colleagues have pointed fingers sible to be violating somebody’s rights. So there is no reason for anyone to at different people in the intelligence The warrant request still has to be object to the bill on constitutional community. They have criticized pro- made to a judge. The judge still has to grounds, and, obviously, I can see no cedures and policies of the intelligence sign off on it. You still have to have other grounds on which anyone would community, and by that I mean our the evidence backing up your belief raise any questions. The Department of law enforcement community has been that the individual is planning to or is Justice, in particular, emphasized that criticized, even by name. in the act of engaging in an act of ter- ‘‘anybody monitored pursuant to the It has been said there was a massive ror. So this isn’t just some two-bit bill would be someone who, at the very intelligence failure prior to September street criminal you are talking about. least, is involved in terrorist acts that 11. I am part of a joint investigative It has to be somebody on whom you transcend national boundaries in terms committee looking into the events have some evidence with respect to ter- of the means by which they are accom- from an Senate Intelligence Committee rorism. It has to be a foreign person. If plished, the persons they appear in- standpoint—events prior to September that person is in the United States, and tended to coerce or intimidate, or the 11—as a member of the Senate Intel- if the terrorist act is focused on Ameri- locale in which the perpetrators oper- ligence Committee. cans, then you should have the right ate or seek asylum’’—50 U.S.C., section Almost every one of us has spoken at under the FISA statute to look further. 1801(c)(3). one time or another about what we be- That is all this statute does. It en- As a result, the Department says: lieve were defects in the way our law ables you to go to a judge and say: A FISA warrant would still be limited to enforcement and intelligence commu- Judge, will you please issue a warrant collecting forward intelligence for the inter- nity approached events prior to Sep- so that we can open up this guy’s com- national responsibilities of the United States tember 11. There has been enough in- puter and see whether he really is en- and the duties of the Federal Government to formation uncovered by now to know gaged in an act of terrorism against the States in matters involving foreign ter- that things could have been done bet- American citizens? rorists. ter. A lot of different people could have That is what we are talking about, That is the test supplied by U.S. v. done better than they did. and it is all we are talking about. I just Duggan, a Second Circuit case, 1984, Could we have prevented September ask any Member of this body who dis- which presents the relevant test. 11? Nobody has gone that far. We could agrees with me to please come down Therefore: have come a lot closer. The Zacarias here, if not tonight, then tomorrow or The same interests and considerations that Moussaoui case is a good example of it. the next day or approach me in the support the constitutionality of FISA as it Today, we are in a situation where the hallway or call my office and tell me now stands would provide the constitutional Moussaoui kind of case could easily be why they would not support us. justification for S. 2568. replicated tomorrow. It could be the What I don’t want to happen is that Mr. President, I think there is no situation that is underway right now. there is some anonymous objection—a question of constitutionality, there is It could be that someone such as this so-called hold—put on the bill, so that no question of need, and there is no plans an attack and, God forbid, even I have to try to track down who it is question about the timing requirement carries out an attack, and later people who anonymously objects to what we that we act now. Therefore, I urge my are going to ask the question: What are trying to do. This is too important colleagues to support the Schumer-Kyl could we have done about that? for the sake of America’s security. legislation to enable us to include it as If we don’t find a way to make this By the way, I have no idea that any part of the authorization bill for our change now, in the last very few days one of my colleagues necessarily ob- Intelligence Committee. If there is any of this legislative session, we are going jects to what I am trying to accom- question about whether or not their to be passing up an opportunity to save plish. But what I am saying is that we support would be there, bring that to

VerDate 0ct 09 2002 02:37 Oct 16, 2002 Jkt 019060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\G15OC6.068 S15PT1 S10428 CONGRESSIONAL RECORD — SENATE October 15, 2002 my attention at the earliest moment and (3) individuals who appear to be per- To wrap this up, there are three so that we won’t have an issue. sonally oriented toward terrorism but with words we would add to the FISA stat- I have assured Senator GRAHAM of whom there is no known connection to a for- ute: ‘‘or foreign person,’’ so that if you Florida, chairman of the Select Com- eign power. can prove the terrorist is either a ter- mittee on Intelligence, of my commit- Let me skip in the interest of time. rorist for an international terrorist or- ment to ensure that the authorization Agent Bowman goes on to say: ganization or is a terrorist for another bill is passed and not to allow anything During the decade-long Soviet/Afghan con- state, a country, or is acting for him- to interfere with that. At the same flict, anywhere from 10,000 to 25,000 Muslim self ‘‘or foreign person’’ are the words time, it seems to me our proposal here fighters representing some forty-three coun- we use—in other words, he is a ter- is so required, so commonsense, so tries put aside substantial cultural dif- rorist and a foreign person—any one of ferences to fight alongside each other in Af- those three circumstances enable you timely, that it is appropriate to in- ghanistan. The force drawing them together clude it in the legislation and that the was the Islamic concept of ‘‘umma’’ or Mus- to go to the judge and say: Here is our burden should be on someone who ob- lim community. In this concept, nationalism evidence that this individual is plan- jects to demonstrate to us why they is secondary to the Muslim community as a ning to engage in terrorism against object, if in fact they do. whole. As a result, Muslims from disparate people in the United States. Will you Mr. President, I ask unanimous con- cultures trained together, formed relation- give us a warrant to search his com- sent to print in the RECORD at the con- ships, sometimes assembled in groups that puter, to search his personal effects, clusion of my remarks two documents: otherwise would have been at odds with one his home, or to put a wiretap on his One is a Dear Colleague letter dated another and acquired common ideologies. telephone, whatever the case might be? ... September 26, 2002, that was sent by The judge will then make a decision Following the withdrawal of the Soviet under the law, whether it is authorized Senator SCHUMER and I to our col- forces in Afghanistan, many of these fighters leagues that describes in some detail S. returned to their homelands, but they re- or not. 2586; and the other document is a state- turned with new skills and dangerous ideas. If the court authorizes the issuance of the warrant, we can then look fur- ment for the RECORD of Marion E. They now had newly-acquired terrorist ‘‘Spike’’ Bowman, Deputy General training as guerrilla warfare was the only ther to determine what this individual is seeking to do. We may find out it is Counsel, the Federal Bureau of Inves- way they could combat the more advanced Soviet forces. an innocent situation or we may find tigation, in testimony before the Sen- out that the individual is just acting ate Select Committee on Intelligence, These are the forces that after the on his own but is a radical terrorist July 31, 2002. Soviets were defeated in Afghanistan meaning to do harm to Americans or The PRESIDING OFFICER. Without became a force that coalesced around, we may find, as in the case of Zacarias objection, it is so ordered. among others, Osama bin Laden, but (See exhibit 1.) not all of them associated specifically Moussaoui, that it turns out he is en- Mr. KYL. Mr. President, let me note with Bin Laden. I quote further: gaged as part of an international con- a little bit what the second document Information from a variety of sources re- spiracy with a specific organization, in is, and then I will conclude. What the peatedly carries the theme from Islamic this case al-Qaida, but we do not know Deputy General Counsel of the FBI tes- radicals that expresses the opinion that we that and cannot prove it going in. That tified before our committee was how just don’t get it. Terrorists world-wide speak is why the change we seek is so crit- terrorism has changed from the time of jihad and wonder why the western world is ical. focused on groups rather than on concepts the FISA statute was first enacted to I ask my colleagues to support the that make them a community. inclusion of this amendment as part of what we see today. Let me quote a lit- This is the way we have organized the authorization bill for the intel- tle bit from his statement: our statutes. What he is telling us is we ligence community, and if there is any When FISA was enacted, terrorism was problem that anybody sees, to bring it very different from what we see today. In the are not seeing it the way our enemies 1970s, terrorism more often targeted individ- see it. They do not organize in groups. to our attention so we can deal with uals, often carefully selected. This was the They do not have membership cards that prior to that bill coming to the usual pattern of the Japanese Red Army, the that say they are a member of al- floor because we do not want to slow Red Brigades and similar organizations list- Qaida. They have coalesced around an that bill down or stop it from being ed by name in the legislative history of idea, not a group. considered favorably on the Senate FISA. Today we see terrorism far more le- The agent concludes this way: floor. thal and far more indiscriminate than could The lesson to be taken from this is that al- Mr. President, I urge my colleagues have been imagined in 1978. It takes only the Qaida is far less a large organization than a to support our amendment. It is for the events of September 11, 2001, to fully com- facilitator, sometimes orchestrator of Is- good of the country, for our national prehend the difference of a couple of decades. lamic militants around the globe. These security, and I say this in conclusion: But there is another difference as well. militants are linked by ideas and goals, not If we fail to do this and it was our fault Where we once saw terrorism formed solely by organizational structure. around organized groups, today we often see that someone utilized our legal system individuals willing to commit indiscriminate He concludes by saying: to plan an act of terror against Ameri- acts of terror. It may be that these individ- The United States and its allies, to include cans, and Americans are killed or in- uals are affiliated with groups we do not see, law enforcement and intelligence compo- jured as a result of our failure, then we but it may be that they are simply radicals nents world-wide have had an impact on the would have nobody but ourselves to who desire to bring about destruction. terrorists, but they are adapting to changing blame. Mr. President, he goes on then to re- circumstances. Speaking solely from an I am going to try as hard as I can to late that to the legislation that Sen- operational perspective, investigation of get this done, but anyone who stands in these individuals who have no clear connec- ator SCHUMER and I introduced. Let me the way is going to have to stand ac- tion to organized terrorism, or tenuous ties quote a little more. What he says is: countable if, God forbid, something to multiple organizations, is becoming in- should happen and we are unable to get . . . we are increasingly seeing terrorist creasingly difficult. suspects who appear to operate at a distance The current FISA statute has served the this accomplished before we close our from these organizations. In perhaps an over- nation well, but the International Jihad session. simplification, but illustrative nevertheless, Movement demonstrates the need to consider I urge my colleagues to please sup- what we see today are (1) agents of foreign whether a different formulation is needed to port Senator SCHUMER and me in ensur- powers in the traditional sense who are asso- address the contemporary terrorist problem. ing we can get this important amend- ciated with some organization or discernible That is the end of that quotation, Mr. ment accomplished before we adjourn group (2) individuals who appear to have con- for the year. nections with multiple terrorist organiza- President. Of course, he and others rep- EXHIBIT 1 tions but who do not appear to owe alle- resenting the Department of Justice giance to any one of them, but rather owe al- went on to specifically endorse the U.S. SENATE, legiance to the International Jihad move- Schumer-Kyl legislation to bring our COMMITTEE ON THE JUDICIARY, ment—— current FISA statute up to date to con- Washington, DC, September 26, 2002. DEAR COLLEAGUE: We have introduced S. Parenthetically, Mr. President, form to this new challenge about which 2586—the Schumer/Kyl ‘‘Moussaoui excep- which is not a terrorist organiza- Agent Bowan testified. That is the tion’’ bill—as an amendment to the Home- tion—— change we are trying to make. land Security bill. S. 2586 would amend the

VerDate 0ct 09 2002 02:37 Oct 16, 2002 Jkt 019060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\CR\FM\G15OC6.078 S15PT1 October 15, 2002 CONGRESSIONAL RECORD — SENATE S10429 Foreign Intelligence Surveillance Act (FISA) received a criminal warrant to search Surveillance Act of 1978 (‘FISA’) to reach in- to reach any foreign visitor to the United Moussaoui. Among other things, the infor- dividuals other than United States persons States who is believed to be involved in mation in his effects linked Moussaoui to who engage in international terrorism with- international terrorism, regardless of wheth- two of the actual hijackers, and to a high- out affiliation with an international ter- er that person is known to be an agent of a level organizer of the attacks who was re- rorist group.’’ foreign government or terror group. The bill cently arrested in Pakistan. Additionally, we understand that a ques- is designed to make it easier for the FBI to No one can say whether this information tion has arisen as to whether S. 2586 would monitor suspected lone-wolf terrorists such would have allowed the FBI to stop the Sep- satisfy constitutional requirements. We be- as alleged 20th hijacker Zaccarias tember 11 conspiracy. But all must agree lieve that it would. Moussaoui. that the FBI should have access to this in- FISA allows a specially designated court The Senate Select Committee on Intel- formation. Once U.S. agents had evidence to issue an order approving an electronic ligence held a hearing on S. 2586 on July 31, that Moussaoui was involved in inter- surveillance or physical search, where a sig- 2002. The Department of Justice has endorsed national terrorism, the full tools of FISA nificant purpose of the surveillance or search the bill in a Statement of Administration should have been available to them—regard- is ‘‘to obtain foreign intelligence informa- Policy, which we have attached for your re- less of whether Moussaoui could be linked to tion.’’ Id §§ 1804(a)(7)(B), 1805(a). Given this view. Below is our explanation of the work- a particular group. Instead, this outdated purpose, the court makes a determination ings of the bill and an examination of those and unnecessary requirement blocked U.S. about probable cause that differs in some re- facts that we believe show that this change intelligence agents from pursuing their best spects from the determination ordinarily un- is necessary. We hope that you will join us in lead on the eve of the September 11 attacks. derlying a search warrant. The court need supporting this important legislation. Indeed, according to FBI Director Mueller, not find that there is probable cause to be- The Foreign Intelligence Surveillance Act the current standard probably would have lieve that the surveillance or search, in fact, requires that in order for a warrant to issue prevented the FBI from using FISA against will lead to foreign intelligence information, under that law, a court must find probable any of the September 11 hijackers. As the Di- let alone evidence of a crime, and in many cause to believe that the target of the war- rector noted in his testimony before the Ju- rant is either an agent of, or is himself, a instances need not find probable cause to be- diciary Committee earlier this year, ‘‘prior ‘‘foreign power’’—a term that is currently lieve that the target has committed a crimi- to September 11, [of] the 19 or 20 hijackers, * defined to only include foreign governments nal act. The court instead determines, in the * * we had very little information as to any or international terrorist organizations. Re- case of electronic surveillance, whether one of the individuals being associated with quiring a link to governments or established there is probable cause to believe that ‘‘the * * * * a particular terrorist group.’’ organizations may have made sense when target of the electronic surveillance is a for- Several congressional Committees have FISA was enacted in 1978; in that year, the eign power or an agent of a foreign power,’’ now conducted investigations and held hear- prototypical FISA target was a Soviet spy or id. § 1805(a)(3)(A), and that each of the places ings examining why our intelligence services a member of one of the hierarchical, mili- at which the surveillance is directed ‘‘is failed to prevent the September attacks. tary-style terror groups of that era, such as being used, or about to be used, by a foreign Those hearings and investigations uncovered West Germany’s Baader-Meinhof gang or the power or an agent of a foreign power,’’ id. a substantial defect in the current law—a de- Red Army Faction. Today, however, the § 1805(a)(3)(B). The court makes parallel de- fect that may have prevented the United United States faces a much different threat. terminations in the case of a physical States from stopping that conspiracy, and is We are principally confronted not by a spe- search. Id. § 1824(a)(3) (A), (B). cific group or government, but by a move- likely to hinder future investigations. Sim- The terms ‘‘foreign power’’ and ‘‘agent of a ment. This movement—of Islamist extrem- ply put, our laws are no longer suited to the foreign power’’ are defined at some length, ists—does not maintain a fixed structure or type of threat that we face. It is now incum- id. § 1801(a), (b), and specific parts of the defi- membership list, and its adherents do not al- bent on Congress to act on what it has nitions are especially applicable to surveil- ways advertise their affiliation with this learned. lances or searches aimed at collecting intel- We hope that you will join us in supporting cause. ligence about terrorism. As currently de- S. 2586 will help the United States to meet our ‘‘Moussaoui fix’’ amendment to the fined, ‘‘foreign power’’ includes ‘‘a group en- this threat by expanding FISA’s definition of Homeland Security bill, should a roll call gaged in international terrorism or activi- ‘‘foreign power.’’ In addition to governments vote on that amendment be required. ties in preparation therefor,’’ id. § 1801(a)(4) and organized groups, that term, under the If you have any questions, please contact (emphasis added), and an ‘‘agent of a foreign bill, would also include ‘‘any person, other Jim Flood in Senator Schumer’s office at 4– power’’ includes any person who ‘‘knowingly than a United States person, or group that is 7425 or Joe Matal in Senator Kyl’s office at engages in sabotage or international ter- engaged in international terrorism or activi- 4–6791. rorism or activities that are in preparation ties in preparation therefor.’’ With this Sincerely, therefor, for or on behalf of a foreign power,’’ change, U.S. intelligence agents would be CHARLES SCHUMER. id. § 1801(b)(2)(C). ‘‘International terrorism’’ able to secure a FISA warrant to monitor a JON KYL. is defined to mean activities that foreign visitor to the United States who is (1) involve violent acts or acts dangerous involved in international terrorism—even if U.S. DEPARTMENT OF JUSTICE, to human life that are a violation of the his links to foreign government or known OFFICE OF LEGISLATIVE AFFAIRS, criminal laws of the United States or of any terror groups remain obscure. Washington, DC, July 31, 2002. State, or that would be a criminal violation The role of the foreign-power requirement Hon. BOB GRAHAM, if committed within the justification of the in obstructing pre-September 11 investiga- Chairman, Select Committee on Intelligence, United States or any State; tions of Zaccarias Moussaoui was confirmed U.S. Senate, Washington, DC. (2) appear to be intended— in dramatic testimony before the House and Hon. RICHARD C. SHELBY, (A) to intimidate or coerce a civilian popu- Senate Intelligence Committees on Tuesday Vice-Chairman, Select Committee on Intel- lation; of this week. An agent from the Minneapolis ligence, U.S. Senate, Washington, DC. (B) to influence the policy of a government FBI office described to the Committees how DEAR MR. CHAIRMAN AND MR. VICE CHAIR- by intimidation or coercion; or that office opened an investigation of MAN: The letter presents the views of the (C) to affect the conduct of a government Moussaoui on August 15, 2001. Minneapolis Justice Department on S. 2586, a bill ‘‘[t]o by assassination or kidnapping; and agents arrested Moussaoui on immigration exclude United States persons from the defi- (3) occur totally outside the United States, charges and applied for a FISA warrant to nition of ‘foreign power’ under the Foreign or transcend national boundaries in terms of search his belongings. But as the FBI’s Dep- Intelligence Surveillance Act of 1978 relating the means by which they are accomplished, uty General Counsel stated on Tuesday be- to international terrorism.’’ The bill would the persons they appear intended to coerce fore the Committees, although Moussaoui extend the coverage of the Foreign Intel- or intimidate, or the locale in which their was found to have some associations with ligence Surveillance Act (‘‘FISA’’) to indi- perpetrators operate or seek asylum. Chechen terrorists, the evidence was inad- viduals who engage in international ter- Id. § 1801(c). equate to show that he served as an agent of rorism or activities in preparation therefor S. 2586 would expand the definition of ‘‘for- that group—or that he had any links to Al without a showing of membership in or affili- eign power’’ to reach persons who are in- Qaeda. (Thus, as the FBI’s Deputy General ation with an international terrorist group. volved in activities defined as ‘‘international Counsel has confirmed, it was the strength of The bill would limit this type of coverage to terrorism,’’ even if these persons cannot be Moussaoui’s connection to the Chechens— non-United States persons. The Department shown to be agents of a ‘‘group’’ engaged in not a ‘‘misunderstanding’’ of whether the of Justice supports S. 2586. international terrorism. To achieve this ex- Chechens constitute a ‘‘recognized’’ foreign We note that the proposed title of the bill pansion, the bill would add the following power for FISA purposes, as yesterday’s is potentially misleading. The current title italicized words to the current definition of Washington Post story suggested—that ulti- is ‘‘To exclude United States persons from ‘‘foreign power’’: ‘‘any person other than a mately prevented the issuance of a warrant.) the definition of ‘foreign power’ under the United States person who is, or a group that is, As a result, for three weeks prior to the Sep- Foreign Intelligence Surveillance Act of 1978 engaged in international terrorism or activi- tember 11 attacks, the FBI was unable to relating to international terrorism.’’ A bet- ties in preparation therefor.’’ search Moussaoui’s computer or his papers. ter title, in keeping with the function of the The courts repeatedly have upheld the con- After the Trade Center and Pentagon at- bill, would be something along the following stitutionality, under the Fourth Amend- tacks—and largely because of them—the FBI lines: ‘‘To expand the Foreign Intelligence ment, of the FISA provisions that permit

VerDate 0ct 09 2002 02:37 Oct 16, 2002 Jkt 019060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\CR\FM\A15OC6.044 S15PT1 S10430 CONGRESSIONAL RECORD — SENATE October 15, 2002 issuance of an order based on probable cause power’’ from the definition approved by the Amendment is whether they are ‘‘reason- to believe that the target of a surveillance or courts as the basis for a determination of able.’’ As the Supreme Court has discussed in search is a foreign power or agent of a for- probable cause under FISA as now written. the context of ‘‘special needs cases,’’ whether eign power. The question posed by S. 2586 According to this argument, because the pro- a search is reasonable depends on whether would be whether the reasoning of those posed definition would require no tie to a the government’s interests outweigh any in- cases precludes expansion of the term ‘‘for- terrorist group, it would improperly allow trusion into individual privacy interests. In eign power’’ to include individual inter- the use of FISA where an ordinary probable light of the efforts of international terrorists national terrorists who are unconnected to a cause determination would be feasible and to obtain weapons of mass destruction, it terrorist group. appropriate—where a court could look at the does not seem debatable that we could suffer The Second Circuit’s decision in United activities of a single individual without hav- terrible injury at the hands of a terrorist States v. Duggan, 743 F. 2d 59 (2d Cir. 1984), ing to assess ‘‘the interrelation of various whose ties to an identified ‘‘group’’ remained sets out the fullest explanation of the ‘‘gov- sources and types of information,’’ see Keith, obscure. Even in the criminal context, the ernmental concerns’’ that had led to the en- 407 U.S. at 322, or relationships with foreign- Court has recognized the need for flexibility actment of the procedures in FISA. To iden- based groups, see Duggan, 743 F.2d at 73; is cases of terrorism. See Indianapolis v. Ed- tify these concerns, the court first quoted where there need to be no inexactitude in the mond, 531 U.S. 32, 44 (2000) (‘‘the Fourth from the Supreme Court’s decision in United target or focus of the surveillance, see Keith, Amendment would almost certainly permit States v. United States District Court, 407 U.S. 407 U.S. at 322; and where the international an appropriately tailored roadblock set up to 297, 308 (1972) (‘‘Keith’’), which addressed activities of the United States are less likely thwart an imminent terrorist attack’’). Con- ‘‘domestic national security surveillance’’ to be implicated, see Duggan, 743 F.2d at 73. gress could legitimately judge that even a rather than surveillance of foreign powers However, we believe that this argument single international terrorist, who intends and their agents, but which specified the par- would not be well-founded. ‘‘to intimidate or coerce a civilian popu- ticular difficulties in gathering ‘‘security in- The expanded definition shall would be lation’’ or ‘‘to influence the policy of a gov- telligence’’ that might justify departures limited to collecting foreign intelligence for ernment by intimidation or coercion’’ or ‘‘to from the usual standards for warrants: the ‘‘international responsibilities of the affect the conduct of a government by assas- ‘‘[Such intelligence gathering] is often long United States, [and] the duties of the Fed- sination or kidnapping,’’ 50 U.S.C. § 1801(c)(2), range and involves the interrelation of var- eral Government to the States in matters in- acts with the power of a full terrorist group ious sources and types of information. The volving foreign terrorism.’’ Id. at 73 (quoting or foreign nation and should be treated as a exact targets of such surveillance may be Senate Report at 14). The individuals covered ‘‘foreign power’’ subject to the procedures of more difficult to identify than in surveil- by S. 2586 would not be United States per- FISA rather than those applicable to war- lance operations against many types of sons, and the ‘‘international terrorism’’ in rants in criminal cases. crime specified in Title III [dealing with which they would be involved would con- Thank you for the opportunity to present electronic surveillance in ordinary criminal tinue to ‘‘occur totally outside the United our views. Please do not hesitate to call cases]. Often, too, the emphasis of domestic States, to transcend national boundaries in upon us if we may be additional assistance. intelligence gathering is on the prevention terms of the means by which they are ac- The Office of Management and Budget has of unlawful activity or the enhancement of complished, the persons they appear in- advised us that from the perspective of the the government’s preparedness for some pos- tended to coerce or intimidate, or the locale Administration’s program, there is no objec- sible future crisis or emergency. Thus the in which their perpetrators operate or seek tion to submission of this letter. focus of domestic surveillance may be less asylum.’’ 50 U.S.C. § 1801(c)(3). These cir- Sincerely, precise than that directed against more con- cumstances would implicate the ‘‘difficulties DANIEL J. BRYANT, ventional types of crime.’’ , 743 F.2d of investigating activities planned, directed, Duggan Assistant Attorney General. at 72 (quoting Keith, 407 U.S. at 322). The Sec- and supported from abroad,’’ just as current ond Circuit then quoted a portion of the Sen- law implicates such difficulties in the case of STATEMENT FOR THE RECORD OF MARION E. ate Committee Report on FISA. ‘‘[The] rea- foreign intelligence services and foreign- (SPIKE) BOWMAN, DEPUTY GENERAL COUN- sonableness [of FISA procedures] depends, in based terrorist groups. Duggan, 743 F.2d at 73 SEL, FEDERAL BUREAU OF INVESTIGATION, part, upon an assessment of the difficulties (quoting Senate Report at 14). To overcome BEFORE THE SENATE SELECT COMMITTEE ON of investigating activities planned, directed, those difficulties, a foreign intelligence in- INTELLIGENCE, JULY 31, 2002 and supported from abroad by foreign intel- vestigation ‘‘often [will be] long range and ligence services and foreign-based terrorist involved[] the interrelation of various Mr. Chairman and members of the Com- groups. . . Other factors include the inter- sources and types of information.’’ Id. at 72 mittee, thank you for inviting me here today national responsibilities of the United (quoting Keith, 407 U.S. at 322). This informa- to testify on the legislative proposals con- States, the duties of the Federal Government tion frequently will require special handling, cerning the Foreign Intelligence Surveil- to the States in matters involving foreign as under the procedures of the FISA court, lance Act (FISA). Holding this hearing dem- terrorism, and the need to maintain the se- because of ‘‘the need to maintain the secrecy onstrates your collective and individual crecy of lawful counterintelligence sources of lawful counterintelligence sources and commitment to improving the security of and methods.’’ Id. at 73 (quoting S. Rep. No. methods.’’ Id. at 73 (quoting Keith, 407 U.S. at our Nation. The Federal Bureau of Investiga- 95–701, at 14–15, reprinted in 1978 322). Furthermore, because in foreign intel- tion greatly appreciates your leadership, and (U.S.C.C.A.N. 3973, 3983) (‘‘Senate Report’’). ligence investigations under the expanded that of your colleagues in other committees The court concluded: definition ‘‘[o]ften . . . the emphasis . . . on this very important topic. ‘‘Against this background, [FISA] requires [will be] on the prevention of unlawful activ- The Foreign Intelligence Surveillance Act that the FISA Judge find probable cause to ity or the enhancement of the government’s was written more than two decades ago. believe that the target is a foreign power or preparedness for some possible future crisis When adopted, the Act brought a degree of an agent of a foreign power, and that the or emergency,’’ the ‘‘focus of . . . surveil- closure to fifty years of discussion con- place at which the surveillance is to be di- lance may be less precise than that directed cerning constitutional limits on the Presi- rected is being used or is about to be used by against more conventional types of crime.’’ dent’s power to order electronic surveillance a foreign power or an agent of a foreign Id. at 73 (quoting Keith, 407 U.S. at 322). for national security purposes. A subsequent power; and it requires him to find that the Therefore, the same interests and consider- amendment brought physical search under application meets the requirements of ations that support the constitutionality of the Act. In keeping with our standards of [FISA]. These requirements make it reason- FISA as it now stands would provide the con- public governance, the proposals for the Act able to dispense with a requirement that the stitutional justification for the S. 2586. were publicly debated over a substantial pe- FISA Judge find probable cause to believe Indeed, S. 2586 would add only a modest in- riod of time, compromises were reached and that surveillance will in fact lead to the crement to the existing coverage of the stat- a statute eventually adopted. In the final gathering of foreign intelligence informa- ute. As the House Committee Report on analysis the standards governing when and tion.’’ FISA suggested, a ‘‘group’ of terrorist cov- how foreign intelligence surveillance or Id. at 73. The court added that, a fortiori, it ered by current law might be as small as two search would be conducted was a political ‘‘reject[ed] defendants’ argument that a or three persons. H.R. Rep. No. 95–1283, at pt. one because it involved weighting of impor- FISA order may not be issued consisted with 1, 74 and n. 38 (1978). The interest that the tant public policy concerns surrounding both the requirements of the Fourth Amendment courts have found to justify the procedures personal liberty and national security. That unless there is a showing of probable cause of FISA are not likely to differ appreciably is how it should be. to believe the target has committed a as between a case involving such a group of In the intervening years FISA has proved crime.’’ Id. at n.5. See also, e.g., United States two or three persons and a case involving a its worth on countless occasions in pre- v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987); single terrorist. venting the occurrence or the continuation United States v. Cavanagh, 807 F.2d 787, 790–91 The events of the past few months point to of harm to the national security. It has been (9th Cir. 1987) (per then-Circuit Judge Ken- one other consideration on which courts a very effective tool and time has proved nedy); United States v. Nicholson, 955 F. Supp. have not relied previously in upholding FISA that this cooperative effort of the three 588, 590-91 (E.D. Va. 1997). procedures—the extraordinary level of harm branches of government can serve to protect We can conceive of a possible argument for that an international terrorist can do to our the public without eroding civil liberties. In- distinguishing, under the Fourth Amend- Nation. The touchstone for the constitu- deed, the legislative history shows that Con- ment, the proposed definition of ‘‘foreign tionality of searches under the Fourth gress intended that the Executive Branch

VerDate 0ct 09 2002 04:02 Oct 16, 2002 Jkt 019060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\CR\FM\A15OC6.046 S15PT1 October 15, 2002 CONGRESSIONAL RECORD — SENATE S10431 keep a focus on civil liberties by giving great gained prominence on a global scale—Usama significant as it was the first public call for care and scrutiny every application before it Bin Liden. attacks on Americans, both civilian and is presented to a judge. We believe that in- Following the withdrawal of the Soviet military, and because it reflected a unified tent has been fulfilled. The fact that an Arti- forces from Afghanistan, many of these position among recognized leaders in the cle III judge is the final arbiter of compli- fighters returned to their homelands, but radical Sunni Islamic community. In es- ance serves to give additional confidence to they returned with new skills and dangerous sence, the fatwa reflected the globalization the public that the intent of the statute is ideas. They now had newly-acquired terrorist of radical Islam. fulfilled. training as guerrilla warfare was the only There is a terrorist network of extremists When FISA was enacted, terrorism was way they could combat the more advanced that has been evolving in the murky terrain very different from what we see today. In the Soviet forces. They also returned with new of Southwest Asia that uses its extremist 1970s, terrorism more often targeted individ- concepts of community that had little to do views of Islam to justify terrorism. His orga- uals, often carefully selected. This was the with nationalism. Those concepts of commu- nization, al Qaeda is but one example of this usual pattern of the Japanese Red Army, the nity fed naturally into opposition to the network. Red Brigades and similar organizations list- adoption, and toleration, of western culture. AL QAEDA ed by name in the legislative history of As a result, many of the Arab-Afghan return- Although Al-Qaeda functions independent FISA. Today we see terrorism as far more le- ees united, or reunited, with indigenous rad- of other terrorist organizations, it also func- thal and far more indiscriminate than could ical Islamic groups they had left behind tions through some of the terrorist organiza- have been imagined in 1978. It takes only the when they went to Afghanistan. These Arab- tions that operate under its umbrella or with events of September 11, 2001 to fully com- Afghan mujahedin, equipped with extensive its support, including: the Al-Jihad, the Al- prehend the difference of a couple of decades. weapons and explosives training, infused Gamma Al-Islamiyya (Islamic Group—led by But there is another difference as well. radicals and already established terrorist Sheik Omar Abdel Rahman and later by Where we once saw terrorism formed solely groups, resulting in the creation of signifi- Ahmed Refai Taha, a/k/a ‘‘Abu Yasser al around organized groups, today we often see cantly better trained and more highly moti- Masri,’’), Egyptian Islamic Jihad, and a individuals willing to commit indiscriminate vated cells dedicated to jihad. number of jihad groups in other countries, acts of terror. It may be that these individ- Feeding the radical element was the social including the Sudan, Egypt, Saudi Arabia, uals are affiliated with groups we do not see, fact that this occurred in nations where Yemen, Somalia, Eritrea, Djibouti, Afghani- but it may be that they are simply radicals there was widespread poverty and unemploy- stan, Pakistan, Bosnia, Croatia, Albania, Al- who desire to bring about destruction. That ment. The success of the Arab intervention geria, Tunisia, Lebanon, the Philippines, brings us to the legislation being considered in Afghanistan was readily apparent, so Tajikistan, Azerbaijan, the Kashmiri region today. when the Arab-Afghan returnees came home of India, and the Chechen region of Russia. The FBI uses investigative tools to try to they discovered populations of young Mus- Al-Qaeda also maintained cells and per- prevent acts of terrorism wherever we can, lims who increasingly were ready and even sonnel in a number of countries to facilitate but particularly to prevent terrorism di- eager to view radical Islam as the only via- its activities, including in Kenya, Tanzania, rected at Americans or American interests. ble means of improving conditions in their the United Kingdom, Canada, and the United Most of our investigations occur within the countries. Seizing on widespread dissatisfac- States. By banding together, Al-Qaeda pro- United States and, for the most part, focus tion with regimes that were brimming with posed to work together against the perceived on individuals. Historically, terrorism sub- un-Islamic ways, regimes that hosted foreign common enemies in the West—particularly jects of FBI investigation have been associ- business and foreign military, many young the United States which Al-Qaeda regards as ated with terrorist organizations. As a re- Muslim males became eager to adopt the an ‘‘infidel’’ state which provides essential sult, FBI has usually been able to associate successful terrorist-related activities that support for other ‘‘infidel’’ governments. Al- an individual with a terrorist organization had been successfully used in Afghanistan in Qaeda responded to the presence of United pled, for FISA purposes, as a foreign power. the name of Islam. It was only a matter of States armed forces in the Gulf and the ar- To a substantial extent, that remains true time before these young Muslin males began rest, conviction and imprisonment in the today. However, we are increasingly seeing to seek out the military and explosives United States of persons belonging to Al- terrorist suspects who appear to operate at a training that the Arab-Afghan returnees pos- Qaeda by issuing fatwas indicating that at- distance from these organizations. In per- sessed. tacks against U.S. interests, domestic and haps an oversimplification, but illustrative USAMA BIN LADEN foreign, civilian and military, were both nevertheless, what we see today are (1) Usama bin Laden gained prominence dur- proper and necessary. Those fatwas resulted agents of foreign powers in the traditional ing the Afghan war in large measure for his in attacks against U.S. nationals in loca- sense who are associated with some organi- logistical support to the resistance. He fi- tions around the world including Somalia, zation or discernible group, (2) individuals nanced recruitment, transportation and Kenya, Tanzania, Yemen, and now in the who appear to have connections with mul- training of Arab nations who volunteered to United States. Since 1993, thousands of peo- tiple terrorist organizations but who do not fight alongside the Afghan mujahedin. The ple have died in those attacks. appear to owe allegiance to any one of them, Afghan war was clearly a defining experience THE TRAINING CAMPS but rather owe allegiance to the inter- in his life. In a May, 1996 interview with With the globalization of radical Islam national Jihad movement and (3) individuals Time Magazine, UBL stated: ‘‘in our religion now well begun, the next task was gain ad- who appear to be personally oriented toward there is a special place in the hereafter for herents and promote international jihad. A terrorism but with whom there is no known those who participate in jihad. One day in major tool selected for this purpose was the connection to a foreign power. Afghanistan was like 1,000 days in an ordi- promotion of terrorism training camps that This phenomenon, which we have seen to nary mosque.’’ had long been established in Afghanistan. It be growing for the past two or three years, Although bin Laden was merely one leader is important to note, that while terrorist ad- appears to stem from a social movement among many during the Soviet-Afghan con- herents to what we have come to know as al that began at some imprecise time, but cer- flict, he was a wealthy Saudi who fought Qaeda trained in the camps, many others did tainly more than a decade ago. It is a global alongside the mujahedin. In consequence, his as well. For example, according to the con- phenomenon which the FBI refers to as the statute with the fighters was high during the victed terrorist Ahmed Ressam, representa- International Jihad Movement. By way of war and he continued to rise in prominence tives of the Algerian Armed Islamic Group background we believe we can see the con- such that, by 1998, he was able to announce (GIA) and its off-shoot the Salafi Groups for temporary development of this movement, a ‘‘fatwa’’ (religious ruling) that would be re- Call and Combat (GSPC), HAMAS, Hizballah, and its focus on terrorism, rooted in the So- spected by far-flung Islamic radicals. In the Egyptian Islamic Jihad (EIJ) and various viet invasion of Afghanistan. short, he stated that it is the duty of all other terrorists trained at the camps. BACKGROUND Muslims to kill Americans: ‘‘in compliance Ressam also reports that cells were During the decade-long Soviet/Afghan con- with God’s order, we issue the following formed, dependent, in part, on the timing of flict, anywhere from 10,000 to 25,000 Muslim fatwa to all Muslims: the ruling to kill the the arrival of the trainees, rather than on fighters representing some forty-three coun- Americans and their allies, including civil- any cohesive or pre-existing organizational tries put aside substantial cultural dif- ians and military, is the individual duty for structure. As part of the training, cleric and ferences to fight alongside each other in Af- every Muslim who can do it in any country other authority figures advised the cells of ghanistan. The force drawing them together in which it is possible to do it.’’ the targets that are deemed valid and proper. was the Islamic concept of ‘‘umma’’ or Mus- Bin Laden was not alone in issuing this The training they received included placing lim community. In this concept, nationalism fatwa. It was signed as well by a coalition of bombs in airports, attacks against U.S. mili- is secondary to the Muslim community as a leading Islamic militants to include Ayman tary installations, U.S. warships, embassies whole. As a result, Muslims from disparate Al-Zawahiri (at the time the leader of the and business interests of the United States cultures trained together, formed relation- Egyptian Islamic Jihad), Abu Yasr Rifa’i and Israel. Specifically included were hotels ships, sometimes assembled in groups that Ahmad Taha (Islamic Group leader) and holding conferences of VIPs, military bar- otherwise would have been at odds with one Sheikh Fazl Ur Rahman (Harakat Ul Ansar racks, petroleum targets and information/ another and acquired common ideologies. leader). The fawa was issued under the name technology centers. As part of the training, They were also influenced by radical spir- of the International Islamic Front for Jihad scenarios were developed that included all of itual and temporal leaders, one of whom has on the Jews and Christians. This fawa was these targets.

VerDate 0ct 09 2002 02:37 Oct 16, 2002 Jkt 019060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\CR\FM\A15OC6.048 S15PT1 S10432 CONGRESSIONAL RECORD — SENATE October 15, 2002 Ressam, who a not a member of al Qaeda, a creature of the modern world. He has ager responsible for reviewing judicial has stated that the cells were independent, spawned a global network of individuals with appointments in the Office of Policy but were given lists of the types of targets common, radical ideas, kept alive through Development. she has made great that were approved and were initiated into modern communications and sustained strides to ensure United States judges the doctrine of the international Jihad. through forged documents and money laun- Ressam explicitly noted that his own ter- dering activities on a global scale. While are fairly appointed to the bench, and I rorism attack did not have bin Laden’s bless- some may consider extremist Islam to be in am honored to have had the oppor- ing or his money, but he believed it would retreat at the moment, its roots run deep tunity to work so closely with here. have been given had he asked for it. He did and exceedingly wide. Those roots take The Department of Justice is a better state that bin Laden urged more operations many forms, one of which is the focus of this organization because of Mrs. Joy’s hard within the United States. hearing. work, and she can take great pride in THE INTERNATIONAL JIHAD In the final analysis, the International all she has accomplished during her We believe the suicide hijackers of Sep- Jihad movement is comprised of dedicated tenure. She is to be commended for her tember 11, 2001 acted in support of the 1998 individuals committed to establishing the umma through terrorist means. Many of integrity, dedication, and fairness in fatwa which, in turn describes what we be- reviewing judicial appointments. Mrs. lieve is the international jihad. During 1997 these are persons who attended university together, trained in the camps together, Joy has been an outstanding model of UBL described the ‘‘international jihad’’ as excellence to the numerous men and follows: traveled together. Al Qaeda and the inter- ‘‘The influence of the Afghan jihad on the national terrorists remain focused on the women she has worked with during her Islamic world was so great and it neces- United States as their primary target. The thirty five years with the Department sitates that people should rise above many of United States and its allies, to include law of Justice, and I am certain she will their differences and unite their efforts enforcement and intelligence components continue to set a fine example for oth- worldwide have had an impact on the terror- against their enemy. Today, the nation is ers to follow as she continues her ca- interacting well by uniting their efforts ists, but they are adapting to changing cir- cumstances. Speaking solely from an oper- reer. She is an excellent asset to the through jihad against the U.S. which has in American justice system, and I applaud collaboration with the Israeli government ational perspective, investigation of these led the ferocious campaign against the Is- individuals who have no clear connection to her for the positive impact she had lamic world in occupying the holy sites of organized terrorism, or tenuous ties to mul- made. the Muslims. . . . [A]ny act of aggression tiple organizations, is becoming increasingly It has been a privilege to have against any of this land of a span of the hand difficult. worked with such an outstanding lady. measure makes it a duty for Muslims to send The current FISA statute has served the Again, I want to thank Mrs. Joy for all a sufficient number of their sons to fight off nation well, but the International Jihad of her tireless efforts and for the that aggression.’’ Movement demonstrates the need to consider whether a different formulation is needed to friendship she has provided me during In May of 1988, UBL gave an interview in our many years of working together. I which he stated ‘‘God willing, you will see address the contemporary terrorism prob- our work on the news. . . .’’ The following lem. While I cannot discuss specific cases in wish Mrs. Joy and her three lovely August the East African embassy bombings a public hearing, the FBI has encountered in- children the best of luck in all future occurred. That was bin Laden speaking, but dividuals who cannot be sufficiently linked endeavors, and may the years to come it should be remembered that the call to to a terrorist group or organization as re- bring good health and happiness. quired by FISA. The FBI greatly appreciates harm America is not limited to al Qaeda. f Shortly after September 11 Mullah Omar the Committee’s consideration of this issue said ‘‘the plan [to destroy America] is going and looks forward to working with the Com- MASSACHUSETTS MEMORIAL ahead and God willing it is being imple- mittee to find the best approach for appro- SERVICE priate investigation of such individuals. mented. . . .’’ Sheikh Ikrama Sabri, a Pales- Mr. KENNEDY. Mr. President, I am tinian Mufti, said in a radio sermon in 1997, Mr. KYL. Mr. President, I suggest the honored to join all of you, the families ‘‘Oh Allah, destroy America, her agents, and absence of a quorum. of loved ones from across our Common- her allies! Cast them into their own traps, The PRESIDING OFFICER. The and cover the White House with black! ’’ Ali wealth who lost their lives last Sep- clerk will call the roll. tember 11. Khameine’i, in 1998, said ‘‘The American re- The assistant legislative clerk pro- gime is the enemy of [Iran’s] Islamic govern- We come to this birthplace of liberty ment and our revolution.’’ There are many ceeded to call the roll. to remember, to give honor, and to ex- other examples, but the lesson to be drawn is Mr. DASCHLE. Mr. President, I ask press our resolve. that al Qaeda is but one faction of a larger unanimous consent that the order for All around us in this historic place and very amorphous radical anti-western the quorum call be rescinded. are the images of famous leaders who network that uses al Qaeda members as well The PRESIDING OFFICER. Without brought life and nationhood to the as others sympathetic to al Qaeda’s ideas or objection, it is so ordered. that share common hatreds. ideals that were attacked a year ago, Information from a variety of sources re- f on a day whose dawn had seemed al- most uniquely American in its sunny peatedly carries the theme from Islamic MORNING BUSINESS radicals that expresses the opinion that we optimism. just don’t get it. Terrorists world-wide speak Mr. DASCHLE. Mr. President, I ask Etched on the wall around this stage of jihad and wonder why the western world is unanimous consent that the Senate are the names of heroes who gave their focused on groups rather than on the con- proceed to a period for morning busi- lives for our country on September 11, cepts that make them a community. One ness, with Senators permitted to speak 2001. The list is heartbreaking, and it place to look at the phenomenon of the for up to 10 minutes. ‘‘international jihad’’ is the web. Like many goes on and on. These heroes were fa- other groups, Muslim extremists have found The PRESIDING OFFICER. Without mous in a different way, famous to the Internet to be a convenient tool for objection, it is so ordered. their friends for their fabled jumpshot spreading propaganda and helpful hints for f in a neighborhood park, or prized in their followers around the world. Web sites their firms for a brilliance tempered by calling for jihad, or holy war, against the TRIBUTE TO SHEILA C. JOY laughter, or celebrated by their young West are not uncommon. Mr. THURMOND. Mr. President, I children as super-heroes, able to launch One of the larger jihad-related Internet of- rise today to pay tribute to my good them into the air with an easy toss, fers primers including ‘‘How Can I Train My- self for Jihad.’’ Traffic on this site, which is friend Sheila C. Joy for her devoted and always there to catch them. They available in more than a dozen languages, in- service to the United States Depart- expected to pass the ball again, to creased 10-fold following the attacks, accord- ment of Justice. make another trade or tell another ing to a spokesman for the site. Sheila C. Joy was born in Springfield, joke, to come home that night and read The lesson to be taken from this is that al MA, and graduated from the University a bedtime story. Qaeda is far less a large organization than a of Massachusetts. After two years of ci- Then they were gone, in the darkness facilitator, sometimes orchestrator, of Is- vilian service in the United States Air at mid-morning which succeeded that lamic militants around the globe. These Force, Mrs. Joy began her career with sunny dawn. We mourn them for the militants are linked by ideas and goals, not be organizational structure. The intent is es- the United States Department of Jus- years that were too few and the hopes tablishment of a state, or states ruled by Is- tice. Beginning as a Staff Assistant, that were unfulfilled. We praise them lamic law and free of western influence. Bin she successfully worked through the for the way they lived, and in so many Laden’s contribution to the Islamic jihad is ranks and is presently a program man- cases for the bravery in the way they

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