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Congressional Record—Senate S10425 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 You are quorum call be rescinded.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.
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