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

Mr. President, I think the Senator from Georgia has covered this area very well. I spoke to it yesterday. I know Senator Stevens is here to lay down some amendments. I will take a few minutes to add one primary thought to what the Senator from Georgia has said, and then quickly lay down three amendments, and then I will be done.

Let me make this one key point about what the Senator from Georgia is talking about. The 9/11 Commission did not recommend the board or the many different assistant directorships and other provisions, from an ombudsman to IGs and the like, that are included in the legislation that is before us today. I am going to tell you what the 9/11 Commission did recommend. What it recommended is what the President has done. What the committee did went far beyond that.

Our amendment does not eliminate all of that, but at least it cuts it back to some extent. That is what I want to explain. Senator Durbin discussed this privacy amendment at length yesterday. His primary point was that the 9/11 Commission recommended this, and therefore the committee did it, and therefore we ought to not amend it out. In fact, one of the things he said was the 9/11 Commission recommended this board, and following their recommendation, the legislation included it.

What exactly did the 9/11 Commission recommend? There were three specific recommendations. They take one and a half pages out of the entire report. I will paraphrase the first two because they are not directly on point:

As the President determines the guidelines for information

sharing among government agencies and by those agencies with

the private sector, he should safeguard the privacy of

individuals about whom information is shared.

Fine.

Two:

The burden of proof for retaining a particular governmental

power should be on the executive, to explain (a) that the

power actually materially enhances security and (b) that

there is adequate supervision of the executive's use of the

powers. . . .

And three, and this is the key:

At this time of increased and consolidated government

authority, there should be a board within the executive

branch to oversee adherence to the guidelines we recommend

and the commitment the government makes to defend our civil

liberties.

That is it. As the Senator from Georgia said, that is exactly what the President did in his Executive Order 13353. The Senator from Georgia described what that Executive order does. I have a full copy of all the entities involved in it, the instructions to that board to bring any credible information of possible violations of law to appropriate end, to undertake other efforts to protect the legal rights of all Americans, including freedoms, civil liberties, and information privacy guaranteed by Federal law, and so on.

In other words, what the 9/11 Commission recommended the President did. What is in this bill goes far beyond that. What I said yesterday with respect to risk aversion makes it clear that what the committee did not only goes far beyond what the 9/11 Commission recommended but will virtually guarantee that the risk aversion, which is a problem today, is exacerbated tenfold so that instead of being able to collect more intelligence and analyze that intelligence better and have people who are not involved in group-think, who are actually willing to think outside the box and not be intimidated by risks aversion, instead of that, we are going to get more of that because of all the layers of bureaucracy that is going to be looking over people's shoulders.

What the bill does is require two officers within the national intelligence authority, two out of six, one responsible for privacy, the other for civil rights and civil liberties. In addition, there is an inspector general within the national intelligence authority who, among other things, is to monitor and inform the director of violations of civil liberties and privacy.

There is an ombudsman, which I mentioned a moment ago. There is an independent privacy and civil liberties oversight board with extensive investigative authorities, which the Senator from Georgia talked about, and privacy and civil liberties officers within a long list of executive branch departments and agencies.

So what does the amendment we have offered do? It deletes sections 126 and 127 which require officers for privacy and civil liberties within the national intelligence authority because those already exist; it would strike section 212 requiring privacy and civil liberties officers within a long list of executive branch departments and agencies; and it would modify the privacy and civil liberties oversight board described in section 211. It does not eliminate it, so it would be duplicative of the board the President created.

There will be an executive branch board and an outside board, but this board would not have the authority to subpoena private individuals or documents and reports, accounts, and other evidence of private individuals, nor would it have the power to compel through subpoena, for example, a department or agency to present documents.

I am not even sure, by the way, this board would have the authority to do that under the Constitution. I am not sure that authority could be granted. In any event, that would be a very pernicious power granted to it when that power already exists in the ombudsman, in the inspector general, and the other privacy officers that exist. It is duplicative and unnecessary.

The net result of all these different entities that have the same responsibility is to basically tell intelligence agencies: If you want to get to the end of your career and have a pension at the end of it, you better watch over your shoulder because there are a whole lot of other people doing that. That is not the way to enhance our security.

Those are the additional points I wanted to make in addition to those I made yesterday with respect to this amendment. I hope before we vote on this amendment we will have an opportunity to present these arguments in short form with all of the Members in attendance.

Mr. President, I indicated to the chairman of the committee what I intend to do next. Therefore, since our procedure is to lay down one amendment at a time, I ask unanimous consent to lay down three amendments, and I will explain what they are.

Mr. President, the first is amendment No. 3926, which is at the desk, and I ask that amendment be read.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, this amendment would codify and tighten the procedures for personal interviews of people seeking temporary visas. Mr. President, 15 of the 19 hijackers who came here received these kinds of visas. I think in every case but one they were not interviewed as the State Department guidelines call for, as the statute assumes but does not make explicit. This amendment will do that.

If there are any issues or questions about it, I would be happy to talk with both the majority and minority. I am hopeful we can work that out.

Amendment No. 3881

(Purpose: To protect crime victims' rights)

Mr. President, the second amendment that I ask be read is at the desk. It is amendment No. 3881.

Mr. President, I recall in the Senate a vote of I think it was 97 to 1 or 90-something to 1, in any event, earlier this year that passed a proposed statute to guarantee crime victims certain rights. That bill is pending in the House.

What this does is take those exact rights and make them applicable to victims of terrorist attacks, terrorist crimes.

Again, I invite comments. I do not think it will be difficult. We will work that out.

Amendment No. 3724

(Purpose: To strengthen anti-terrorism investigative tools, promote information sharing, punish terrorist offenses, and for other purposes)

Mr. President, I am happy to go to my third amendment. This is amendment No. 3724.

Mr. President, I rise today to discuss an important amendment that I will offer to the 9/11 Commission bill. My amendment is substantially the same as S. 2679, the Tools to Fight Terrorism Act, a bill that I introduced earlier this year with several other members of the Judiciary Committee and the Senate leadership.

Since the terrorist attacks of September 11, congressional committees and executive agencies have conducted exhaustive reviews of our Nation's antiterrorism safety net. We have had scores of hearings in the House and Senate judiciary committees, a Joint Intelligence Committee Inquiry, the 9/11 Commission hearings and report, and the Justice Department has conducted extensive evaluations of its own antiterrorism capabilities. These hearings have uncovered numerous flaws and gaps in our antiterrorism system. We have found, for example, that in many cases antiterror investigators still have less authority to access information than do investigators of other crimes that, while serious, pale in comparison to the threat posed by international terrorism. We also have seen that some of the federal code's criminal offenses and penalties are far too light, or too narrow in their scope,

in light of the contemporary terrorist threat. Yet, despite all of these hearings and reports--and all of the gaps in our antiterror laws that have been identified--Congress has enacted no major antiterror legislation in almost three years.

This amendment addresses many of the problems that these hearings and reports have identified over the last few years. At the outset, I would like to emphasize 5 things about the amendment.

This amendment is not about the PATRIOT Act. This amendment does not reauthorize or extend the PATRIOT Act. Nor does it involve any of the supposedly ``controversial'' provisions of the PATRIOT Act.

Nothing in TFTA deals with Section 215 subpoenas, which some critics have complained can be used to access a terrorist's records of book withdrawals and computer use at a library.

Nothing in TFTA deals with delayed-notice searches, which some critics deride as ``sneak and peak'' searches, even though the PATRIOT Act only codified judicial standards that have been in place for decades.

Nothing in TFTA deals with roving wiretaps, which some critics mischaracterize as allowing taps of the telephones of anyone who fits a general description. This is not true. A roving wiretap can only be used for a particular person, though it applies to any phone that the person uses.

Nothing in TFTA deals with National Security Letters, which allow certain records to be subpoenaed and includes an automatic nondisclosure requirement.

I happen to support the PATRIOT and believe that it should not be allowed to expire. Nevertheless, with this amendment, I have deferred that debate. This amendment does not involve the PATRIOT Act or the debates about it. The only way that one can object to this amendment as ``controversial'' is if one is willing to define all antiterror legislation as ``controversial.'' In a post-9/11 world, with continuing threats to the U.S. homeland--and clear gaps in some of our antiterror laws--such a presumption against all antiterror legislation would be deeply irresponsible. Fixing obvious flaws in our laws, and giving antiterror investigators the tools that they need, should not be controversial.

Much of TFTA is also in the House of Representatives' 9/11 Commission bill. Approximately half of the provisions of TFTA already have been included by the House of Representatives in their bill implementing the recommendations of the 9/11 Commission. For example, the House bill already contains the ``Moussaoui fix,'' which allows FISA warrants for lone-wolf terrorists--Section 412 of TFTA and section 2001 of H.R. 10.; new offenses for hoaxes relating to terrorist crimes or the deaths of U.S. soldiers--Section 416 of TFTA and section 2021 of H.R. 10.; increased penalties for obstruction of justice in terrorism investigations--Section 417 of TFTA and section 2023 of H.R. 10.; authorization to share grand-jury information with state and local governments--Section 423(b) of TFTA and section 2191 of H.R. 10.; improvements to and expansion of the material-support statute--Section 424 of TFTA and section 2043 of H.R. 10.; a new offense targeted at those who receive military-type training in terrorist camps--Section 425 of TFTA and 2042 of H.R. 10.; expansion of the weapons-of-mass- destruction laws--Section 426 of TFTA and section 2052 of H.R. 10.; and new laws targeted at those who aid rogue states' nuclear proliferation--Section 427 of TFTA and section 2053 of H.R. 10.

In all these respects, my amendment is substantially identical to the House bill. The amendment thus helps to bring the Senate bill into line with the House bill, lessening the need for a protracted conference and avoiding delay in enacting this legislation.

TFTA directly implements a number of the key recommendations and addresses key concerns of the 9/11 Commission. The Report of the September 11 Commission recommends that Congress address a number of deficiencies in our nation's preparedness against a terrorist attack. The underlying bill that we are considering responds to many of those recommendations. This amendment addresses others.

The 9/11 Commission Report recommends action to address, among other things, the threat posed by weapons of mass destruction and their proliferation; the vulnerabilities of our seaports and mass-transit systems; the need for improved information sharing; the need to address terrorist finance; the threat posed by sanctuaries where terrorists operate training camps; and the need for improved information sharing. The report also discusses the problems created by terrorist hoaxes, and the legal barriers encountered in the pre-September 11 investigation of suspected hijacker Zacarias Moussaoui.

TFTA addresses every one of these 9/11 Commission recommendations.

TFTA's provisions and the matters that it address have been extensively reviewed in congressional hearings. Every provision of TFTA previously has either been introduced as a bill in the House or Senate or addresses a matter that has been the subject of a committee hearing. Collectively, the provisions of TFTA have been the subject of 9 separate hearings before House and Senate committees and have been the subject of 4 separate committee reports. In addition, the entire bill was reviewed at a September 13 hearing before the Senate Subcommittee on Terrorism. At that hearing, law professor Jonathan Turley testified that every one of TFTA's provisions would be upheld as constitutional by the U.S. Supreme Court.

TFTA primarily consists of all or part of 11 bills currently pending in the House and Senate. Collectively, as of July 19, 2004--the day that TFTA was introduced--the bills included in TFTA have been pending before Congress for 12 years, 10 months, and 28 days. No one can contend that TFTA and its provisions have been ``rushed through'' the Congress.

TFTA has the support of antiterrorism experts across the ideological spectrum. The Justice Department, in its September 13 testimony on TFTA before the Terrorism Subcommittee, expressed its strong support for the bill. Hearing witnesses Barry Sabin--the Chief of the Criminal Division's Counterterrorism Section--and Dan Bryant, the Assistant Attorney General for the Office of Legal Policy--made clear in their joint written testimony the Justice Department's view that the ``Tools to Fight Terrorism Act of 2004 makes well-considered, urgently needed changes to current law, and would greatly aid law enforcement and intelligence officials in their common mission to prevent terrorist attacks and prosecute those who would do us harm. The new tools provided by the TFTA will prevent--terrorist--attacks and will make America safer.''

At the Terrorism Subcommittee hearing on TFTA, support for the bill also was voiced by George Washington University law professor Jonathan Turley, a national-security expert who often has been critical of the Justice Department's conduct of the war on terror. In addition to a large number of academic works in the areas of national-security and constitutional law, Professor Turley has represented clients in a variety of high-profile national security cases in both criminal and civil courts, including espionage cases in both federal and military courts. In his testimony before my subcommittee, Professor Turley noted that he ``also [has] been a vocal critic of some of the measures taken after September 11th on constitutional and policy grounds.''

This is what Professor Turley had to say about the TFTA in his testimony:

The Tools to Fight Terrorism Act of 2004 . . . contains

many beneficial changes that will increase the ability of the

government to pursue terrorists while preserving necessary

guarantees for civil liberties.

* * * * *

While we must be cautious not to legislate out of a

reflective impulse, September 11th exposed a number of

vulnerabilities and gaps in our legal and intelligence

systems that remain only partially addressed. This Act

continues to work to close those gaps and to accommodate the

interests of the Executive Branch in pursuing, prosecuting,

and (hopefully) deterring terrorists.

* * * * *

The vast majority of the[] provisions [of TFTA] are matters

that, in my view, should receive general support as balanced

and necessary measures.

* * * * *

TFTA should be a matter for general consensus rather than

division among civil libertarians and advocates of national

security interests. . . . [W]e need to recognize the

improvements in this Act and the good-faith

changes that have been made by members seeking a fair balance

in the legislation.

In one part of his testimony before my subcommittee, Professor Turley also recommended a change to a part of the bill--in order to better protect civil liberties. He recommended that, if the FBI is given subpoena authority for terrorism investigations, it also be required to report on the use of that authority. The amendment that I offer today incorporates this recommendation--it would require the FBI to report to Congress on the number of subpoenas that it issues pursuant to this new authority, and the circumstances under which those subpoenas are issued.

I will next discuss the provisions of this amendment--and how they help to address the recommendations and concerns raised by the 9/11 Commission, and what others have said about these provisions.

The Moussaoui fix: The case of suspected 9/11 conspirator Zacarias Moussaoui is discussed extensively in the 9/11 Commission Report. Moussaoui, you will recall, is the Al Qaeda operative who was arrested by Minneapolis FBI agents several weeks before the September 11 attacks. That summer, instructors at a Minnesota flight school became suspicious when Moussaoui, with little apparent knowledge of flying, asked to be taught to pilot a 747. The instructors contacted the Minneapolis office of the FBI, which immediately suspected that Moussaoui might be a terrorist.

The hearings conducted by the 9/11 Commission raised some agonizing questions about the FBI's pursuit of Moussaoui. Commissioner Richard Ben-Veniste noted the possibility that the Moussaoui investigation could have allowed the United States to ``possibly disrupt the [9/11] plot.'' Commissioner Bob Kerrey even suggested that with better use of the information gleaned from Moussaoui, the ``conspiracy would have been rolled up.'' And Commissioner Jamie Gorelick followed up by asking whether more could have been done to allow FBI agents to ``break through the barriers'' to their investigation of Moussaoui.

After the September 11 attacks, when FBI agents finally were allowed to search Moussaoui, they discovered information in his belongings that linked him to two of the actual 9/11 hijackers, and to a high-level organizer of the attacks who later was arrested in Pakistan.

The 9/11 Commissioners are right to ask whether more could have been done to pursue this case. The problem is that, given the state of the law at the time, the answer to that question is probably no. In fact, given the state of the law today, the answer to the question still would be no.

FBI agents were blocked from searching Moussaoui because an outdated requirement of the 1978 FISA statute. FISA sets rules for searches conducted for intelligence investigations. As the 9/11 Commission Report notes, the FBI field office was unable to obtain a FISA warrant for Moussaoui because it lacked information linking him to a known terror group. As the Report states:

Minneapolis agents ``sought a special warrant under the

Foreign Intelligence Surveillance Act to [search Moussaoui].

To do so, however, the FBI needed to demonstrate probable

cause that Moussaoui was an agent of a foreign power, a

demonstration that [is] . . . a statutory requirement for a

FISA warrant. The agent did not have sufficient information

to connect Moussaoui to a foreign power.

Current law simply does not allow searches of apparent lone-wolf terrorists such as Zacarias Moussaoui--even if the FBI can show probable cause to believe that the person is involved in international terrorism.

My amendment would correct this problem. Section 412 gives the FBI clear authority to conduct a search or surveillance under FISA when it has probable cause to believe that the target is engaged in or preparing for international terrorism. This new authority would not require FBI to also link the suspect to a particular terrorist group.

It is inevitable that Islamist terrorists will try again to attack the United States. As agonizing as it is today to review why we did not prevent the September 11 attacks, imagine if it happened again. Imagine if another attack occurred--and another review commission found that critical FBI investigations again were undermined by the lack of FISA authority to monitor and search lone-wolf terrorists. We simply cannot let that happen. We must ensure that today's FBI agents are not hampered by the same unnecessary barriers that hurt the efforts of the Minneapolis agents in August of 2001.

Process: A bill that is substantially identical to section 412 first was introduced in the Senate by Senator Schumer and me on June 5, 2002. We reintroduced the same provision in the 108th Congress. That bill--S. 113--was unanimously reported by the Judiciary Committee in March 2003, and was approved by the full Senate by a vote of 90-4 in May 2003. A substantially identical provision also has been included in a House bill introduced by Chairmen Sensenbrenner and Goss--and is included in the House 9/11 Commission bill as section 2001. The Moussaoui fix also has been the subject of two hearings--one in the Senate Intelligence Committee on July 31, 2002, and one in the House Crime Subcommittee on May 18, 2004.

Section 412 is substantially identical to section 2001 of the House of Representatives' 9/11 Commission bill.

Weapons of Mass Destruction and Shoulder-Fired Antiaircraft Rockets: The 9/11 Commission Report notes that ``al Qaeda has tried to acquire or make weapons of mass destruction for at least ten years. . . . Preventing the proliferation of these weapons warrants a maximum effort.'' The Report also discusses ``Pakistan's illicit trade and [the] nuclear smuggling networks of Pakistani nuclear scientist A.Q. Khan.'' The Report recommends that the U.S. work with other nations ``to develop laws and an international legal regime with universal jurisdiction to enable the capture, interdiction, and prosecution of such smugglers by any state in the world.''

Sections 426 and 427 and subtitle B of my amendment all are directed at preventing terrorists from gaining access to weapons of mass destruction. Section 427 makes it a crime to participate in or provide material support to a nuclear-weapons program, or other weapons-of- mass-destruction program, of a designated terrorist organization or state sponsor of terrorism. There would be extraterritorial jurisdiction for an offense under this provision. Section 426 would amend the federal weapons-of-mass-destruction statute to cover attacks on property and would broaden the bases for federal jurisdiction under that statute. Subtitle B is designed to deter the unlawful possession and use of atomic weapons, radiological dispersal devices, shoulder- fired rockets, and the variola virus (the causative agent of smallpox).

In his testimony about these provisions before the Terrorism Subcommittee, Professor Jonathan Turley had this to say:

[Section 426, the WMD-statute provision] would close

current loopholes in the interest of national security and

does not materially affect civil liberty interests.

[Section 427] would criminalize the participation in

programs involving special nuclear material, atomic weapons,

or weapons of mass destruction outside of the United States.

This new crime with extraterritorial jurisdiction is an

obvious response to recent threats identified by this country

and other allies like Pakistan. The obvious value of such a

law would be hard to overstate. . . . It is important for the

purposes of our extraterritorial enforcement efforts to have

a specific crime on the books to address this form of

misconduct.

[With regard to subtitle B--the new shoulder-fired rockets

proscription], [g]iven the enormous threats to our country

from such weapons, these increased penalties are manifestly

reasonable. . . . While it is certainly possible that a

defendant could be in possession of a MANPADS as part of arms

trafficking or some other motive than terrorism, this is

clearly one of the most likely forms of terrorist conduct.

Process: Sections 426 and 427 of my amendment are identical to sections 2052 and 2053 of the House 9/11 Commission bill. These--and the new penalties for possession of shoulder-fired rockets and other dangerous weapons--also are identical to legislation that Senator Cornyn introduced earlier this year.

Mass-Transportation and Seaport Security: The 9/11 Commission Report recommends that the U.S. government ``identify and evaluate the transportation assets that need to be protected, set risk-based priorities for defending them, select the most practical and cost- effective ways of doing so, and then develop a plan . . . to implement the effort.'' While noting the continuing threat to aviation, the Report

also emphasizes that ``[o]pportunities to do harm are as great, or greater, in maritime or surface transportation''--and that ``railroads and mass transit'' are particularly difficult to protect against terrorism.

Subtitles C and D of my amendment address the unique challenges of providing security on mass-transportation systems and at seaports by updating current criminal offenses and creating new offenses that are tailored to these venues.

Here is what Professor Turley had to say about the seaport-security provision during the hearing on TFTA:

[Subtitle D] addresses a weakness in our domestic security

system that has been repeatedly criticized as perhaps the

country's single greatest threat: seaport security. While

much remains to be done in terms of real security

improvements at seaports, [subtitle D] represents one of the

most significant legal reforms in this area.

* * * * *

While many of [the acts of violence proscribed by TFTA] can

be currently prosecuted under other laws, [subtitle D] would

create a tailored series of offenses affecting seaports and

seagoing vessels. For example, one important addition would

be a crime for knowingly transporting dangerous material for

a terrorist operation or a terrorist. This new crime in

Section [455] will serve to increase the expected deterrent

for transporters. Currently, a transporter can be prosecuted

as a co-conspirator as well as charged with false statements

in many cases. However, Section [455] would define a crime

specifically with this type of opportunistic conduct in mind.

For a prosecutor, such a tailored law makes a case more

compelling for a jury.

* * * * *

These laws give the Executive Branch more flexibility and

options in dealing with misconduct at our seaports. It could

not be more timely or more justified given recent warnings

from security experts.

Process: Subtitles C and D are identical to bills introduced this year by Senators Sessions and Biden, respectively. The Sessions bill was the subject of a hearing before the Senate Judiciary Committee on April 8, 2004. The Senate Subcommittee on Terrorism held a hearing on the need to improve security at U.S. seaports on January 27 of this year.

Information Sharing: The 9/11 Commission Report recommends that ``information procedures should provide incentives for sharing, to restore a better balance between security and shared knowledge.'' The Report also recommends that the President ``coordinate the resolution of the legal, policy, and technical issues across agencies to create a `trusted information network' ''--and that this information-sharing network and the FBI ``build a reciprocal relationship, in which state and local governments understand what information they are looking for and, in return, receive some of the information being developed.''

Sections 422 and 423 of my amendment act on these recommendations by improving the FBI's ability to share intelligence information that has been obtained under existing authorities. Section 422 creates a uniform standard under which the FBI would disseminate intelligence information to other federal agencies. Under current law, several different statutes govern the circumstances under which the FBI may disseminate intelligence information to other federal agencies. Some of these statutes anomalously place restrictions on information sharing with other federal agencies that are greater than the restrictions applied to non-federal agencies. This section allows dissemination of intelligence information under uniform guidelines developed by the Attorney General.

Section 423 amends current law to make clear that national-security- related information may be shared with relevant Federal, State, and local officials regardless of whether the investigation that produced the information is characterized as a ``criminal'' investigation or a ``national security'' investigation. This section also would authorize the sharing of grand-jury information with appropriate state and local authorities.

I do not think one can overstate the importance of information sharing--of tearing down the walls that prevent different parts of the government from exchanging intelligence and working together in the war on terror.

A graphic illustration of the importance of tearing down the legal walls between different terror investigators is provided by another pre-September 11 investigation. Like the Moussaoui case, this investigation also came tantalizing close to substantially disrupting or even stopping the 9/11 plot--and also ultimately was blocked by a flaw in our antiterror laws. The investigation that I am talking about involved Khalid Al Midhar, one of the suicide hijackers of American Airlines Flight 77, which was crashed into the Pentagon, killing 58 passengers and crew and 125 people on the ground.

An account of the investigation of Midhar is provided in the 9/11 Commission's Staff Statement No. 10. That statement notes as follows:

During the summer of 2001 [an FBI official] . . . found [a]

cable reporting that Khalid Al Mihdhar had a visa to the

United States. A week later she found the cable reporting

that Mihdhar's visa application--what was later discovered to

be his first application--listed New York as his destination.

. . . The FBI official grasped the significance of this

information.

The FBI official and an FBI analyst working the case

promptly met with an INS representative at FBI Headquarters.

On August 22 INS told them that Mihdhar had entered the

United States on January 15, 2000, and again on July 4, 2001.

. . . The FBI agents decided that if Mihdhar was in the

United States, he should be found.

These alert agents immediately grasped the danger that Khalid Al Midhar posed to the United States--and immediately initiated an effort to track him down. Unfortunately, at the time, the law was not on their side. The Joint Inquiry Report of the House and Senate Intelligence Committees describes what happened next:

Even in late August 2001, when the CIA told the FBI, State,

INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and

two other ``Bin Laden-related individuals'' were in the

United States, FBI Headquarters refused to accede to the New

York field office recommendation that a criminal

investigation be opened, which might allow greater

resources to be dedicated to the search for the future

hijackers. . . . FBI attorneys took the position that

criminal investigators ``CAN NOT'' (emphasis original) be

involved and that criminal information discovered in the

intelligence case would be ``passed over the wall''

according to proper procedures. An agent in the FBI's New

York field office responded by e-mail, saying: ``Whatever

has happened to this, someday someone will die and, wall

or not, the public will not understand why we were not

more effective in throwing every resource we had at

certain problems.''

The 9/11 Commission staff report assesses the ultimate impact of these legal barriers:

Many witnesses have suggested that even if Mihdhar had been

found, there was nothing the agents could have done except

follow him onto the planes. We believe this is incorrect.

Both Hazmi and Mihdhar could have been held for immigration

violations or as material witnesses in the Cole bombing case.

Investigation or interrogation of these individuals, and

their travel and financial activities, also may have yielded

evidence of connections to other participants in the 9/11

plot. In any case, the opportunity did not arise.

Congress must do what it can now to make sure that something like this does not happen again--that arbitrary, seemingly minor bureaucratic barriers are not allowed to undermine our best leads toward uncovering an attack on the United States. Sections 422 and 423 of my amendment would do just that.

Process: Subsection (b) of section 423 is included in H.R. 10, the House of Representatives' 9/11 Commission bill. Sections 422 and 423 both are identical to a bill that has been introduced by Senator Chambliss.

Subpoena Authority: The bill that the Senate is now considering already authorizes subpoena authority. Section 141(f)(5) of the bill authorizes the National Intelligence Authority's Inspector General to issue subpoenas for his investigations. It also authorizes the Inspector to go to federal court to enforce his subpoenas if a recipient refuses to comply with them. Section 211(g) of the bill also authorizes the new Privacy and Civil Liberties Board to issue administrative subpoenas and to seek their judicial enforcement.

I agree with the bill's judgment that subpoena authority can be an important investigative tool. For this reason, section 415 of my amendment authorizes the Attorney General to issue judicially enforceable subpoenas in an ``investigation of a Federal crime of terrorism.''

Rachel Brand, the Principal Deputy Assistant Attorney General for the Justice Department's Office of Legal Policy, described the need for subpoena authority in terrorism investigations

in a hearing before my subcommittee on June 22 of this year. Ms. Brand noted:

Although grand jury subpoenas are a sufficient tool in many

investigations, there are circumstances in which an

administrative subpoena would save precious minutes or hours

in a terrorism investigation. For example, the ability to use

an administrative subpoena will eliminate delays caused by

factors such as the unavailability of an Assistant United

States Attorney to immediately issue a grand-jury subpoena,

especially in rural areas; the time it takes to contact an

Assistant United States Attorney in the context of a time-

sensitive investigation; the lack of a grand jury sitting at

the moment the documents are needed (under federal law, the

``return date'' for a grand-jury subpoena must be on a day

the grand jury is sitting); or the absence of an empaneled

grand jury in the judicial district where the investigation

is taking place, a rare circumstance that would prevent a

grand-jury subpoena from being issued at all.

To appreciate the potential importance of an administrative

subpoena in a terrorism case, consider the following

hypothetical example. On Friday afternoon, counter-terrorism

investigators learn that members of an al Qaeda cell have

purchased bomb-making materials from a chemical company. They

want to obtain records relating to the purchase that may

reveal what chemicals the terrorists bought, as well as

delivery records that might reveal the terrorists' location.

Investigators reach a prosecutor, who issues a grand jury

subpoena for those records. But because the grand jury is not

scheduled to meet again until Monday morning and the

recipient of a grand jury subpoena is not required to produce

the records until the next time the grand jury meets,

investigators may not be able to obtain the information for

three days during which time the al Qaeda cell may have

executed its plan. If investigators had the authority to

issue an administrative subpoena, they could obtain the

records immediately and neutralize the cell.

A recent paper issued by the Republican Policy Committee points out how anomalous it is that the FBI does not have subpoena authority for terrorism investigations. As that report notes, ``[c]urrent provisions of federal law grant [administrative-subpoena] authority to most government departments and agencies.'' Moreover, ``[t]hese authorities are not restricted to high-profile agencies conducting life-or-death investigations.'' As the paper notes, federal law currently authorizes postal inspectors to issue administrative subpoenas when investigating any ``criminal matters related to the Postal Service and the mails.'' Similarly, the Small Business Administration is empowered to use administrative subpoenas to investigate criminal activities under the Small Business Act, such as embezzlement and fraud. The Bureau of Immigration and Customs Enforcement has administrative-subpoena authority for investigations of violations of the immigration laws. And DEA agents have subpoena authority for criminal investigations under the Controlled Substances Act.

As the RPC Policy Paper concludes, ``One can hardly contend that federal investigators should be able to issue administrative subpoenas to investigate Mohammed Atta if they suspect that he broke into a mailbox--but should not have the same authority if they suspect he is plotting to fly airplanes into buildings.''

Professor Jonathan Turley also commented on TFTA's subpoenas provision in his testimony before the Terrorism Subcommittee. He stated:

There is little reason to believe that a [Judicially

Enforceable Terrorism Subpoena] provision would be

unconstitutional.

* * * * *

Much is made [by some critics] of the shift from a grand-

jury subpoena to a JETS system. However, the term grand-jury

subpoena is misleading in that it is not issued by a grand

jury but a federal prosecutor. ``[A] grand jury subpoena gets

its name from the intended use of the . . . evidence, not

from the source of its issuance.'' Doe v. DiGenova, 779 F.2d

74, 80 n.11 (D.C. Cir. 1985). Administrative subpoenas are

currently used in dozens of areas and they have been upheld

by the United States Supreme Court. It is extremely rare for

a federal prosecutor to deny such a request from the FBI and

the elimination of an Assistant United States Attorney from

the process is not likely to produce a significant change in

the level of review.

Professor Turley also added: ``I would strongly encourage the Senate to couple any JETS provision with a close oversight process to monitor the number and nature of subpoenas issued under the new law.'' As I previously noted, the amendment that I offer today implements this recommendation: it includes a requirement that the FBI report on the number of subpoenas that it employs under the new authority and the circumstances of their issue.

Terrorist Training Camps: The 9/11 Commission Report recommends that the U.S. government ``identify and prioritize actual or potential terrorist sanctuaries. For each, it should have a realistic strategy to keep possible terrorists insecure and on the run, using all elements of national power.'' The Report explains that such sanctuaries pose a threat because they provide terrorist groups with the ``opportunity and space to recruit, train, and select operatives''--and that the hospitable environment in the United States also allowed this country to be used for terrorist training and exercises.

Section 425 of my amendment would make it a federal offense to knowingly receive military-type training from or on behalf of a designated foreign terrorist organization. This provision applies extraterritorially to U.S. nationals, permanent residents, stateless persons whose habitual residence is the United States, or a person who is brought into or found in the United States.

The Justice Department testified in favor of this provision at the Terrorism Subcommittee's hearing on the TFTA. The joint statement of Messrs. Sabin and Bryant notes that:

It is critical that the United States stem the flow of

recruits to terrorist training camps. A danger is posed to

the vital foreign policy interests and national security of

the United States whenever a person knowingly receives

military-type training from a designated terrorist

organization or persons acting on its behalf. Such an

individual stands ready to further the malicious intent of

the terrorist organization through terrorist activity that

threatens the security of United States nationals or the

national security of the United States. Moreover, a trainee's

mere participation in a terrorist organization's training

camp benefits the organization as a whole. For example, a

trainee's participation in group drills at a training camp

helps to improve both the skills of his fellow trainees and

the efficacy of his instructors' training methods.

Additionally, by attending a terrorist training camp, an

individual lends critical moral support to other trainees and

the organization as a whole, support that is essential to the

health and vitality of the organization.

Professor Turley had the following to say about this provision of TFTA in his testimony before the Terrorism Subcommittee:

This proposal would fill a gap in our laws revealed by

recent cases, like that of Jose Padilla, where citizens have

trained at terrorist camps. . . . The proposed crime has

been narrowly tailored to require a clear knowledge element

as well as a reasonable definition of military-type training.

The United States has an obvious interest in criminalizing

such conduct and to deter citizens who are contemplating such

training. In my view, it raises no legitimate issue of free

association or free speech given the criminal nature of the

organization. Most importantly, given the use of these camps

to recruit and indoctrinate such citizens as Padilla and John

Walker Lindh, this new criminal offense is responsive to a

clear and present danger for the country.

Section 425 of my amendment is identical to section 2042 of the House of Representatives' 9/11 Commission bill.

Terrorist Hoaxes: The 9/11 Commission Report notes at several places that false information about terrorist threats influenced key events on September 11, 2001: possibly ``a false report of a third plane approaching'' influenced fire crews' decisions on the ground in New York City on that day, and crisis managers were forced to sort out ``a number of unnerving false alarms'' immediately after the attacks.

The Justice Department also has commented on the harm caused by false information and terrorist hoaxes. In its testimony on the TFTA, the Department noted:

Since September 11, hoaxes have seriously disrupted

people's lives and needlessly diverted law-enforcement and

emergency-services resources. In the wake of the anthrax

attacks in the fall of 2001, for example, a number of

individuals mailed unidentified white powder, intending for

the recipient to believe it was anthrax. Many people were

inconvenienced, and emergency responders were forced to waste

a great deal of time and effort. Similarly, in a time when

those in uniform are making tremendous sacrifices for the

country, several people have received hoax phone calls

reporting the death of a loved one serving in Iraq or

Afghanistan.

Section 416 of my amendment is intended to reduce the flow of false information about terrorist or national-security-related events by making it a criminal offense to knowingly convey false information about terrorist

crimes or the death or injury of a U.S. soldier during war--if such misinformation is conveyed under circumstances where it may reasonably be believed.

Professor Turley, at the Terrorism Subcommittee hearing on TFTA, commented that:

This new provision would create a serious deterrent to a

type of misconduct that routinely places the lives of

emergency personnel at risk and costs millions of dollars in

unrecouped costs for the federal and state governments. Since

a terrorist seeks first and foremost to terrorize, there is

precious [little] difference between a hoaxster and a

terrorist when the former seeks to shut down a business or

a community with a fake threat. . . . This provision

responds to the increase in this form of insidious

misconduct and correctly defines it as criminal conduct.

Process: A bill that is substantially identical to section 416 first was introduced almost three years ago by Representative Lamar Smith on November 11, 2001. That proposal was the subject of a hearing before the House Crime Subcommittee on November 7, 2001. The bill was reported by the House Judiciary Committee on November 29, 2001, which issued Report No. 107-306 for the bill. The Smith bill was then unanimously approved by the House of Representatives on December 12, 2001. Representative Smith reintroduced the bill in this Congress. The House Crime Subcommittee held another hearing on the proposal on July 10, 2003, and the Judiciary Committee issued Report No. 108-505 for the new Smith bill. Also, Senator Hatch has introduced a version of this proposal in the Senate.

Section 416 of my amendment is nearly identical to section 2022 of the House of Representatives' 9/11 Commission bill.

Financial and Material Support to Terrorists: The 9/11 Commission Report states in its recommendations that ``vigorous efforts to track terrorist financing must remain front and center in U.S. counterterrorism efforts.''

Subtitle E of my amendment, the ``Combating Money Laundering and Terrorist Financing Act,'' expands the list of predicate offenses for money laundering to include burglary and embezzlement, operation of an illegal money-transmitting business, and offenses related to alien smuggling, child exploitation, and obscenity that were enacted or amended by the Protect Act. It also amends current law to prohibit concealing having provided financing while knowing that it has been or will be provided to terrorists.

Section 424 of my amendment expands existing prohibitions on providing material support to terrorist groups. This provision makes it a crime to provide material support to any crime of international or domestic terrorism, and expands federal jurisdiction over such offenses.

The Justice Department emphasized the importance of the material- support statute in its joint statement on the TFTA before the Terrorism Subcommittee:

The TFTA . . . improves current law by clarifying several

aspects of the material support statutes. This is another key

tool in preventing terrorism. As the Department of Justice

has previously indicated, ``a key element of the Department's

strategy for winning the war against terrorism has been to

use the material support statutes to prosecute aggressively

those individuals who supply terrorists with the support and

resources they need to survive . . . . The Department seeks

to identify and apprehend terrorists before they can carry

out their plans, and the material support statutes are a

valuable tool for prosecutors seeking to bring charges

against and incapacitate terrorists before they are able to

cause death and destruction.''

The 9/11 Commission Report also emphasizes the need ``to ensure protection of civil liberties'' during the war on terrorism. In order to address concerns raised by some courts and litigants about the chilling effect of the current material-support statute, section 424 of the amendment clarifies what it means to provide ``training,'' ``personnel,'' and ``expert advice or assistance'' to a terrorist group.

Professor Turley, in his Terrorism Subcommittee testimony on TFTA, said of section 424 that ``[t]his proposal would actually improve the current federal law by correcting gaps and ambiguities that have led to recent judicial reversals. In that sense, the proposal can be viewed as a slight benefit to civil liberties by removing a dangerous level of ambiguity in the law.''

A provision identical to section 424 of my amendment appears in the House of Representatives 9/11 Commission bill as section 2043.

Presumption of No Bail for Terrorists: Section 413 of my amendment would add terrorists to the category of criminal defendants for whom there is a presumption of no bail. Under current law, a criminal suspect will be denied bail in federal court if the government shows that there is a serious risk that the suspect will flee, obstruct justice, or injure or threaten a witness or juror. The judge must presume this showing is present if the suspect is charged with a crime of violence, a drug crime carrying a potential sentence of ten years or more, any crime that carries a potential sentence of life or the death penalty, or the suspect previously has been convicted of two or more such offenses. Section 413 would add terrorist offenses to this list-- judges would be required to presume that facts requiring a denial of bail are present. This is only a presumption--the terror suspect still could attempt to show that he is not a flight risk or potential threat to jurors or witnesses.

The Justice Department testified as to the importance of this provision at the Terrorism Subcommittee hearing on TFTA:

Current law provides that federal defendants who are

accused of serious crimes, including many drug offenses and

violent crimes, are presumptively denied pretrial release

under 18 U.S.C. Sec. 3142(e). But the law does not apply

this presumption to those charged with many terrorism

offenses. To presumptively detain suspected drug traffickers

and violent criminals before trial, but not suspected

terrorists, defies common sense.

* * * * *

This omission has presented authorities real obstacles to

prosecuting the war on terrorism, as Michael Battle, U.S.

Attorney for the Western District of New York, testified

before this subcommittee on June 22. In the recent

``Lackawanna Six'' terrorism case in his district,

prosecutors moved for pre-trial detention of the defendants,

most of whom were charged with (and ultimately pled guilty

to) providing material support to al Qaeda. It was expected

that the defendants would oppose the motion. What followed

was not expected, however. Because the law does not allow

presumptive pre-trial detention in terrorism cases,

prosecutors had to participate and prevail in a nearly three-

week hearing on the issue of detention, and were forced to

disclose a substantial amount of their evidence against the

defendants prematurely, at a time when the investigation was

still ongoing. Moreover, the presiding magistrate judge did

in fact authorize the release of one defendant, who, it was

later learned, had lied to the FBI about the fact that he had

met with Osama bin Laden in Afghanistan.

The Lackawanna Six case illustrates the real-life problems

the absence of presumptive pre-trial detention has posed to

law enforcement. But this shortcoming in the law has also

enabled terrorists to flee from justice altogether. For

example, a Hezbollah supporter was charged long ago with

providing material support to that terrorist organization.

Following his release on bail, he fled the country.

The suspect described above eventually was recaptured by the United States 6 years after his escape. During that time, he was not a participant in a terrorist attack against the United States--but he could have been.

Jonathan Turley also commented on section 413 in his testimony at the Terrorism Subcommittee hearing on TFTA. He stated:

[Section 413] would create a presumption against bail for

accused terrorists. Under this amendment, such a presumption

could be rebutted by the accused, but the court would begin

with a presumption that the accused represents a risk of

flight or danger to society. This has been opposed by various

groups, who point to the various terrorist cases where

charges were dismissed or rejected, including the recent

Detroit scandal where prosecutorial abuse was strongly

condemned by the Court. I do not share the opposition to this

provision because I believe that, while there have been

abuses in the investigation and prosecution of terrorism

cases, the proposed change sought by the Justice Department

is neither unconstitutional nor unreasonable.

* * * * *

This proposal would not impose a categorical denial of bail

but a presumption against bail in terrorism cases. Congress

has a clearly reasonable basis for distinguishing terrorism

from other crimes in such a presumption. In my view, this

would be clearly constitutional.

While I have been critical of the policies of Attorney

General John Ashcroft, I do not share the view of some of my

colleagues in the civil liberties community in opposition to

this change. There is currently a presumption against

pretrial release for a variety of crimes in 18 U.S.C. Sec.

3142(e), including major drug crimes. It seems quite bizarre

to have such a presumption in drug cases but not terrorism

cases.

Use of FISA in immigration proceedings: The 9/11 Commission Report

recommends that the United States ``combine terrorist travel intelligence, operations, and law enforcement in a strategy to intercept terrorists, find terrorist travel facilitators, and constrain terrorist mobility.'' The report also states that ``[t]he challenge for national security in an age of terrorism is to prevent the very few people who may pose overwhelming risks from entering or remaining in the United States undetected.''

Section 419 of my amendment is designed to allow the federal government to more readily employ intelligence information to keep suspected terrorists out of the United States. The Foreign Intelligence Surveillance Act requires the government to provide notice when information obtained through FISA is used in any federal proceeding. In 1996, Congress created an exception to this requirement for alien- terrorist removal proceedings. This section would extend this exception to all immigration proceedings--the government would be able to use FISA information to deny an alien a particular immigration benefit, to bar his reentry, or to detain him on immigration charges, all without revealing that the information was obtained through FISA. Such authority would be useful because in many instances, notice that information was obtained through FISA would disclose to the alien that he or his associates have been the target of a FISA investigation--a disclosure that effectively would compromise an ongoing investigation.

Professor Turley addressed this provision in his testimony before the Terrorism Subcommittee on the TFTA:

This provision would change the current system in which the

government must notify parties in an immigration case that it

is using information obtained through FISA. . . .

Section [419] was criticized recently by the American

Immigration Lawyers Association (AILA) group as

``constitutionally dubious.'' Despite my respect for AILA and

its work, I must disagree with the suggestion that this

provision might be found unconstitutional. The government is

allowed to use secret evidence in such proceedings and the

only change here is the identification of the source of such

secret information. . . . This provision would, in my view,

pass constitutional muster.

. . . [T]he true legal change produced by Section [419] is

marginal. There are good-faith reasons for the government's

reluctance to acknowledge an on-going FISA investigation.

While I oppose FISA generally, this does not appear an

unreasonable request from the Justice Department.

Other provisions: lifetime post-release supervision, obstruction of justice, denial of benefits. In his testimony on TFTA before the Terrorism Subcommittee, Professor Turley also had the following to say about these provisions of TFTA:

[Section 414] This provision would make terrorists eligible

for lifetime post-release supervision. Under the current law,

certain individuals convicted of terrorist crimes are not

eligible for lifetime post-release supervision because the

underlying offense did not create a foreseeable risk of death

or serious injury. The Justice Department has objected to the

current language of 18 U.S.C. Sec. 3583 as too restrictive

since there are many individuals who knowingly support

terrorist activities, but do so through less overtly violent

means, such as computer-related crimes. The purpose is only

to make such individuals eligible for lifetime supervision.

This proposal seems facially reasonable in light of the

sophisticated web of supporting co-conspirators working with

groups like Al-Qaeda.

[Section 417] This provision increases the penalties for

obstruction of justice in terrorism cases. The Justice

Department believes that the increase from 5 to 10 years in

terrorism cases is needed to show the added severity of such

misconduct in this context. For the purpose of full

disclosure, I have represented defendants charged under false

statement provisions like 18 U.S.C. Sec. 1001 and I have been

a critic of the abusive use of false statement charges by the

Justice Department in non-terrorist cases. However, seeking

higher penalties for obstruction in the area of terrorism is

not an unreasonable demand and certainly would not raise any

immediate constitutional problems.

[Section 421] This provision would deny federal benefits to

convicted terrorists. The denial of such benefits is

currently allowed under the Controlled Substances Act and

makes obvious sense given the nature of these crimes.

In conclusion, I would simply remind my colleagues that every provision of TFTA has been fully explored in congressional committee hearings--the individual provisions of the bill have been the subject of nine separate hearings--and every provision of TFTA has the full support of the Department of Justice. These provisions address obvious and in some cases glaring gaps in our nation's antiterrorism safety net. We cannot allow these problems to continue to go unaddressed.

I urge my colleagues to support the amendment.

Mr. President, this is a controversial amendment. It is sometimes called the Tools for Terrorism Act. There are 20 specific provisions of this amendment. Some of them are very uncontroversial, some have become controversial. What I am proposing to do by laying this amendment down is begin a dialog with members of both the majority and the minority to see which of them we can agree to be adopted.

This was the most efficient way to do that rather than independently offering each one seriatim. But it is my intention to work out a unanimous consent agreement with both sides that would result in as much of this amendment as possible, from my perspective, but in any event, as much as we can agree upon, being agreed to without any further debate or votes if they are not necessary.

Mr. President, I thank the Senator for his statements about the Collins-Lieberman legislation and also thank him for the amendment. This looks to be exactly like the legislation the Senator and Senator Akaka introduced, which came out of our committee. This is the right moment, and it strengthens the bill. I thank him for his persistence in offering it. I am glad we added it.

I yield the floor.

Mr. President, I rise first to thank the Senator from Tennessee for taking the time to come to the Senate floor to express his thoughts, which he has talked to Senator Collins and me about earlier. I admire his focus on this area as well as the work and focus of the Senator from Ohio, Mr. Voinovich.

The fact is that this is one of those aspects of governmental process and procedure that never gets much public attention but has great consequences for the public, and in this case it is relevant to the underlying bill for national security. There is not much political plus in making this a matter one focuses on in the sense that it does not get headlines, but it is a critically important matter because, as the Senator says so well and eloquently, the delay caused in confirming the nominees has an effect on the quality of public service, in fact has an effect on the content of national security if people cannot be put into the positions where they are needed early enough.

So I thank the Senator. I encourage the Senator--although I probably do not have to--to stay aggressive, to make sure that not only the amendment the Senator from Tennessee and the Senator from Ohio sponsored yesterday that was adopted on the bill is put into place but, more generally, to make sure we fix this.

The Senator from Tennessee has some great anecdotes, too. It is pretty startling to have heard that Howard Baker, a great former Member of this body, spent more time filling out the forms, hiring people to help him fill out the forms, to be Ambassador to Japan than he was going to receive as a salary for the first year of his service. That ought not to happen. Obviously, one of the things that also does, which the Senator knows and has spoken to, is discourage people who may not have the resources to pay for that kind of consultation from going into public service where we need them.

I thank my friend from Tennessee.

I rise briefly to speak in support of the--Mr. President, I am going to hold this statement, which is of a timeless nature, so I can deliver it, I am sure, at any point in the day where there may be a lull. This time was devoted to Senator Byrd to offer an amendment. I did not realize he was here. I welcome him to the Chamber and look forward to hearing his statement.

Mr. President, needless to say, I thank the Senator from West Virginia, whom, as does everyone in the Chamber, I greatly admire. He is a real authority on this matter, so I speak both with respect and a certain sense of humility.

This recommendation that Senator Collins and I and our committee brought before the Senate rose out of reality. And the reality is that we have an intelligence community with a lot of extraordinary people and technological assets but, as the 9/11 Commission said, there is no one in charge. I repeat, it is like a football team with great players but no quarterback. In fact, some of the players, as great as they are, are playing in a different stadium than the one where the game is.

The 9/11 Commission has said to us that its foremost goal, the most urgent recommendation it makes to the Congress for what to do if we want to believe that we have done everything we can to prevent a terrorist attack of the scope of 9/11 from happening in this country again, is to create--establish a strong national intelligence director, a leader where there is no leader, a quarterback where there is no quarterback. That is what Senator Collins and I have done in our proposal.

A strong national director--but what is the element of strength? It is budget authority. It is the power to bring together the agencies under the director for a unity of effort, like the joint commands in our military which grew out of Goldwater-Nichols, after a period of time and a lot of opposition when they were first considered on the floor, not dissimilar to some of the opposition and anxiety that has been expressed about the national intelligence director in our time. They worked extremely well.

So we have created a strong director with budget authority to formulate budgets, to receive funds, to allocate them--with justification, not wantonly; to transfer budget, transfer funds to meet an emergency; to transfer personnel to achieve a national purpose.

In our deliberations in the Governmental Affairs Committee we see warning after warning that if you are going to do this right, you have to give this national intelligence director real power.

In this morning's paper, the Washington Post, Friday, October 1, an article by Charles Babington quotes from a press conference I presume by the Chair and Cochair of the 9/11 Commission, Governor Kean, former Republican Governor of New Jersey, and Congressman Hamilton, former Democratic Congressman from Indiana. Governor Kean says at one point, the story says:

Governor Kean meanwhile spoke sharply against House

provisions and proposed Senate amendments that would limit

the national intelligence director's authority over spending

and personnel decisions in agencies under them.

It goes on to say:

The House bill will keep more of that power in the

Pentagon.

Then Governor Kean says:

On behalf of the nonpartisan commission, this is not an

area where one can compromise. If you are not going to create

a strong national intelligence director with powers both

appointive and over the budget, don't do it.

I repeat:

If you are not going to create a strong national

intelligence director with powers both appointive and over

the budget, don't do it.

That is the advice we heard over and over again from former Directors of Central Intelligence, from experts in the field, from members of the Commission.

I say respectfully that the amendment which Senator Byrd and the distinguished list of cosponsors put before us this morning would have the effect of weakening the authority of the national intelligence director and, therefore, bring us back to the place where we were, where there wasn't a strong quarterback, where there wasn't a strong general, if you will, of our intelligence forces in the war against terrorism.

As I read it, it strikes the section that establishes accounts for the national intelligence program funds under the jurisdiction of the national intelligence director, and the national intelligence director would control the management, including the allotment of appropriated funds to the elements of the intelligence community.

I would like to have some discussion on this. But as I read one of the two parts of this which strike me as most troubling, it is the part that seems to say that our attempt in this bill--our clear intention stated in the bill--is to make sure that strange situation we have where 80 percent of the funding for intelligence, billions and billions of dollars, goes not to the intelligence community first but to the Department of Defense. The Department of Defense is a critical--in some sense, the largest--customer of intelligence, but it is not the only customer. The President of the United States is the No. 1 customer. The Department of State, the Department of Homeland Security, FBI--one could go on and on--they are also important users of intelligence.

We have said that the funds of the national intelligence program budget should go to the national intelligence director and give that person the authority that comes with the money to allocate those funds throughout the agencies underneath him, and give him thereby some clout to create unity of effort, to bring people together, to overcome the weaknesses.

As the 9/11 Commission Report describes it--and Senator Collins and I keep telling the story--George Tenet, former Director of Central Intelligence, in 1998, after a series of al-Qaida attacks on Americans and American targets abroad, declares war on terrorism. It was a classified document within the intelligence community and it is now public. It states the case very strongly. It says we have to devote all of our resources to it, and nothing happened.

Senator Byrd is a great student of the Bible. I so appreciate it. He brought it with him to the Senate floor yesterday. I take this opportunity to quote from the Bible. Perhaps it was from Corinthians. ``If the sound of the trumpet be uncertain, who will follow into battle?''

My worry here is that in this case, the trumpet is money. If the authority of the national intelligence director over the funds is uncertain, then I worry that the troops are not going to follow them into battle just as they didn't follow George Tenet when they declared war or terrorists and terrorism in 1998. We might have even been better off and maybe even have avoided 9/11 if something had happened in response to that.

This amendment seems to say that the money we want to go to the national intelligence director can't because in our attempt to establish accounts, we now, in this act of Congress--Senator Byrd is absolutely right, this is a congressional decision, but we are offering our colleagues that decision, which is to set up those accounts in the Treasury Department for the national intelligence director so that director can receive the funds and then allocate them.

Second, the two elements of authority for the national intelligence director as the general of our intelligence forces are to transfer personnel and funds. I appreciate the fact that this amendment does not take away that authority, and when Senator Collins and I started out, we worried people

would resist that authority altogether in the national intelligence director. So I appreciate that. But it does limit the authority of the director to transfer personnel and money in a way that I think weakens the director and undercuts the purpose we want and the reasons we want them to be powerful, to give this intelligence force the flexibility to focus, the agility to respond to realities in the world.

These terrorists are not only brutal, not only inhumane, not only don't value human life, not only convince themselves zealously that they are doing God's work by killing God's children wantonly, but they are agile. They will look for weaknesses in the system and move to attack. That is why the national intelligence director has to have the ability to move money quickly. It may be that there is a crisis area somewhere or a new kind of threat to the United States and the director decides he has to move funds to meet that threat.

This is not an authority that is unlimited or even beyond the control of the law today. Our bill makes sure that there is congressional oversight on the transfer of the funds. The amendment would limit the transfer of funds. It would have to be less than $100 million and less than 5 percent of the budget of the entity from which the money is being transferred unless the relevant department head concurs in the transfer.

I want to assure the Chamber and Senator Byrd that our amendment, though it does not put those limits on the transfer because we don't know what kind of threat may emerge and where the national intelligence director may feel in the national interest he wants to move those funds, makes sure there is congressional oversight. It provides that any transfer of funds by the national intelligence director must be carried out in accordance with the existing congressional notification procedures. Congress still has the right to approve.

Moreover, the national intelligence director is required to submit a report to the appropriate committees of Congress explaining the nature of the transfer and how it meets the relevant statutory requirements.

Finally, our bill also requires that any transfer of funds or personnel not exceed applicable ceilings established in law for such.

This means that while we are setting the standard for the national intelligence director, Congress each year as it adopts the budget reserves the right to put instructions in that. I might oppose it, but it includes the possibility of limiting the transfers, as has happened in the past. We wanted to make sure--in some sense to reassure ourselves and our appropriators--that this bill says that any transfer of funds or personnel would not exceed applicable ceilings established in law for such transfers.

We want to provide the national intelligence director with the necessary flexibility and force to respond with speed to a crisis, and not establish, therefore, permanent caps on this legislation that might hinder the director's ability to make those changes that are necessary.

Under the current system, the DCI lacks budget power. DOD controls 80 percent of the intelligence budget, whereas the director of central intelligence effectively only controls a budget of one agency, the CIA.

Secretary Powell commented on this current reality at our hearing on September 13, 2004, by saying:

The DCI was there before but the DCI did not have that kind

of authority, and in this town it's budget authority that

counts.

Chairman Kean and Vice Chairman Hamilton said in their testimony at our first hearing on July 30:

The national intelligence director would not be like other

czars who get the title but have no meaningful authority. He

will control national intelligence program purse strings.

For those reasons, respectfully, this amendment would seriously weaken the authority of the national intelligence director, and therefore, I believe, the director's ability to protect our national security in an age of terrorism.

I yield the floor.

Madam President, let me first thank the Senator from West Virginia for his kind words. The truth is, these are critically important matters we are debating. I feel a sense of responsibility and honor in having the opportunity to speak to them. But I must say, to be involved in a debate such as this with the Senator from West Virginia is in itself an honor.

We disagree on this particular amendment, but I so respect the core of his values that motivate him and guide him every day. I know he only wishes the best for our country and for our Congress. I don't say it lightly. I hope he understands these are not reflexive words and praise. It is an honor to be involved in this kind of debate with the Senator from West Virginia, who is a very vital Member of the Senate today but a part of Senate and American history. I thank him very much for caring enough about what we are doing to come here this morning and offer this amendment.

Of course, he is the man who carries the Constitution right by his heart and reminds us of what it requires of us. It is a founding document. It is in many ways a sacred document to all of us Americans. I assure him, with regard to the sections of the Constitution he read about the appropriate allocation of responsibility of the Congress and the executive branch regarding fiscal decisions, there is nothing in this bill Senator Collins and I bring to the Senate that would alter that balance in any way. I will speak to that in a bit.

There is an alteration of authority and power in this proposal Senator Collins and I have made, but it is not altering the existing, constitutionally based power relationship between Congress and the executive. It does alter the allocation of authority and money and, therefore, power between various agencies of the executive branch. But there is no change in the congressional-executive relationship.

Yes, there are some necessary changes in the relationship between the Department of Defense, CIA, FBI, and a new national intelligence director who gains power here. So some may have to give up a little bit, but that is in the national interest. That is the first point I want to assure the Senator on.

Senator Collins and I are not only devoted to the Constitution, we are devoted to the critical role the Constitution gives Congress in these matters. I want to assure the Senator, again, that we have done nothing to alter the authority of Congress.

I will read from page 28 of our bill, section (4). This is the section that goes to the transfer authority of the national intelligence director. On line 23, it reads:

Any transfer of funds under this subsection shall be

carried out in accordance with existing procedures applicable

to reprogramming notifications for the appropriate

congressional committees.

Then it goes on:

The National Intelligence Director shall promptly submit to

the appropriate committees of Congress a report on any

transfer of personnel made pursuant to this subsection.

Of course, there is a section in here that ``requires any transfer of funds or personnel not exceed applicable ceilings established in law for such transfers.'' So any succeeding Congress reserves the right to establish such limits in law, and they will not be altered by the Collins-Lieberman proposal.

The second thing to say is the authority we give the national intelligence director--that we believe so strongly that director needs--is not without control. No one is going to confuse this director with a god, even a god of intelligence. He will be a director of intelligence but he will be limited.

For instance, transfers of personnel and budget will be subject to the approval of the Office of Management and Budget.

So ultimately what does that mean? It means the Commander in Chief has to approve. If there is a fear that this national intelligence director may do some things that, let's say, the Secretary of Defense doesn't like, the Secretary of Defense can go right to the President and say I don't like this and please get the OMB director not to approve these transfers. The final responsibility for the decision goes to where it should be ultimately in our system, which is to the President.

We also require consultation with department heads before transfers of budget or money or personnel are made. We require that the transfers only be made for what we call a higher priority intelligence activity. We don't expect this to be done wantonly. We are not allowing it to be done wantonly, to override the appropriations of Congress. We are saying we want that director, though, to have the ability, if there is a crisis, to move money like a general moving troops to the point where the Army is being attacked. As I said earlier, the transfers have to occur within applicable ceilings established by law.

So I say this, finally, to my dear friend and respected colleague from West Virginia. There is an urgency here, which is the urgency of the terrorist threat that we face. The 9/11 Commission has been clear about this. They believe we are in a situation where still, today, no one is in charge of our intelligence community. We had testimony before our committee in terms of Osama bin Laden, that evil person who concocted and directed, or conceived and directed the attack against America on 9/11/01, killing almost 3,000 innocent civilians. Obviously, he is the No. 1 target for us today. In the hunt for Osama bin Laden, there is no one in charge. We have two or three agencies of our Government going at this, but there is no one in charge. The national intelligence director will put somebody in charge. That is the urgency, that we remain at war and we are not organized as well as we should be. The urgency is the urgency that a general in combat would feel is clear if the enemy is taking advantage of a particular vulnerability in his forces. He would move quickly to shore up that vulnerability. That is what we are doing as well.

In closing, families of the victims of September 11 have formed a group to advocate, in some ways, in the memory of their husbands, wives, fathers, mothers, and children who were lost on September 11, to make sure we do what they think we ought to do to protect other families from suffering. They sent a letter to Members of Congress a week or two ago in which they said:

Sufficient information necessary to make a decision as to a

new, improved structure for the Nation's intelligence

community is currently available to all Members of Congress.

Opinions may differ as to how improvements are best

accomplished, but those differences can be addressed within

the framework of the legislation being proposed. There is no

excuse for deferring decisionmaking, given the wealth of

information available.

Again, that is from families of the victims of September 11. I promised that would be the last word, but this will be the last word. I say to the Senator from West Virginia that the very introduction of this amendment and the discussion it engenders today between yourself, Senator Collins, and me, and hopefully other Members listening and involved is part of the process, similar to what we went through in our Committee. I think a lot of Members came to the Committee hearings and deliberations, and we went on for two days of markup. We had almost 50 amendments. We conducted a very open discussion. We listened and, in some cases, we altered language in the mark we laid down because we thought Members made good points. In other cases, we said it hurts the purpose of what is required. In the end, because everybody felt we worked together and learned a lot, we were very pleased to say the bill was reported out unanimously. I must say that one of the

members, when the roll was called, gave an answer that I had never heard before. Instead of saying yea or nay, he said ``barely yea.'' We got him just over the threshold.

My hope is that as a result of the discussion on this amendment, we get to a point at the end of the day, or next week, that we can have a similarly strong vote that will reflect a confidence that we have all together learned, that we have protected our values, constitutionally speaking, and our security, and done the best we could and will adopt this with a real sense of confidence.

I yield the floor.

Madam President, I thank my friend from Virginia, the chairman of the Senate Armed Services Committee whom I so respect and for whom I have such a feeling of personal affection. I probably should not say this for the record, Senator Warner, but my wife probably wouldn't be happy to hear that I was opposing you. She has all too much regard for your judgment and opinions. But nonetheless, I go forward.

Let me put this amendment in context. In response to the 9/11 Commission Report, Senator Frist and Senator Daschle sent it to our Governmental Affairs Committee to consider and then recommend, on the basis of that report, action to the Senate--which we have done. Senator Collins and I and the members of the committee essentially built a structure, a national intelligence director, a leader for our intelligence community where there is none now--what I called a quarterback for our intelligence team--where there is no quarterback, a general for our intelligence service.

There have been two amendments put forward, in now this fifth day of debate on the bill, that went at the architecture of the structure we have recommended. One was by Senator Specter, which would have dramatically altered, gone well beyond, what we had. Senator Warner knows, because he was good enough to come and speak against the amendment; it would have had the new NID in line control of all of these intelligence agencies, including those that are housed and will continue to be housed in the Defense Department. That was overwhelmingly rejected by the Senate.

Yesterday, there was a different kind of assault on the structure we are proposing from our committee in the amendment offered by the Senator from South Carolina which I believe and represent would have created in name a national intelligence coordinator but given that person no authority, no power. It would have been the status quo because it would have looked as if we had done something, but we would not have done anything.

That amendment was overwhelmingly defeated.

I am grateful for both of those votes.

The amendment which the Senator from Virginia proposes, as in some sense the amendment the Senator from West Virginia proposed earlier today, does not knock off the structure we have proposed but alters it in ways that I fear--certainly cumulatively--would weaken the structure and not allow the national intelligence director to play the role the 9/11 Commission and our committee wants it to play. Is it a big difference? No. But one element of strengthening this position of national intelligence director is to make the influence of the director over our national intelligence agencies--the National Security Agency, which deals with signal intelligence and communications that are heard in the interest of our national security, the National Reconnaissance Organization, which puts satellites up in the air, and the National Geospatial Agency, which has all of these remarkable capacities technologically to see ground imagery and help our military and other intelligence services to do what they have to do to protect us.

Here is the point: Those are national assets. Of course, they are used every

day by the military, by the Department of Defense. The DOD is a very important customer, maybe the most active customer, but not the only customer of these assets--of signal intelligence, image intelligence, and human intelligence.

The CIA, as Senator Collins indicated, depends on these satellites and the other systems for important intelligence. So does the State Department. So does now the Department of Homeland Security, even the

I certainly will.

Through the Chair, the Senator from Virginia is absolutely right. I do recall it.

Mr. President, if I may briefly respond to the Senator from Virginia, the case cited of the INR, the intelligence division at the State Department, is an interesting one. They came to a different opinion than some other constituent agencies of the American intelligence community with regard to, for instance, prewar WMD in Iraq. But that was a matter of analysis primarily, not collection. They looked at the data. Incidentally, some of the data they looked at were data they got from these three agencies. These are the three largest collection agencies and they are unique in that they serve the whole community.

There is certainly no intention to diminish the Secretary of Defense. The Secretary of Defense has a very powerful position and Senator Collins and I want to have the Secretary remain that powerful. We had very interesting testimony before our committee by a witness who said-- he had been in the Department of Defense and stepped out to work with a think tank where he watches all of this--over the years when there were conflicts or disagreements between the Secretary of Defense and the Director of Central Intelligence, the Secretary of Defense always wins because the Secretary of Defense has so much muscle. And that is the reality.

We are not trying to undercut the authority of the Secretary of Defense, and we are certainly not trying to alter the chain of command, but we are trying to give a little more authority to the national intelligence director so that director can really be in charge. One small piece of that is saying, Mr. Intelligence Director, you can, in consultation with the Secretary of Defense, make the suggestion for who ought to head these three agencies which, unlike any other intelligence agency within our Government, serve the entire community.

The Secretary of Defense, as I said before, is an important customer of what these three agencies produce--``user'' may be a better term than customer.

It was of great interest when General Hayden, head of the NSA, said he spends more time on the phone with the Director of the CIA than with the Secretary of Defense. We want to reflect that in this small movement of authority.

Mr. President, if I may speak on the amendment briefly, I thank the Senators from Rhode Island and Maryland for coming forward with the amendment. It certainly speaks directly to a critical national homeland security need. I want to take a little time to look at it and see how it fits into the overall picture with regard to the bill. I know this was reported out unanimously from the relevant committee. It has been held up perhaps only by one Senator as a result of an objection.

I don't want to have the underlying bill, which is so urgently needed, get caught in that kind of situation. But I would like to work with the sponsors of the amendment and perhaps with whoever is objecting to see if we can't find a way to put these together. This speaks to a real national need. It is consistent with other amendments that have been adopted on the underlying bill or were part of the bill initially and, of course, consistent with vulnerabilities that the 9/11 Commission spoke to.

I thank the sponsors and I look forward to working with them to see if we can work it out.

I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I do want to indicate that we have several other Senators who told us they would be coming over to the floor today to offer amendments: Senator Levin, Senator Roberts, Senator Kyl, and Senator Stevens. I urge them to come over as soon as is possible. We are open for business, and there is time available. The sooner the debates occur, the sooner we will be able to set these matters for votes on Monday.

Amendment No. 3807

In the meantime, Mr. President, I would like to take this opportunity to say a word about amendment No. 3807 which Senator McCain and I offered yesterday. This is another of the elements of the 9/11 Commission report that was part of legislation Senator McCain and I introduced the day after Labor Day as a way to guarantee that all elements of the 9/11 report would be before the Senate.

This one has to do with effective screening to keep terrorists out of America and away from vital infrastructure in America. It is a comment on the age in which we live, something we have taken for granted in America but has been a great asset of ours, and that is the size of our country, the size of our borders, and the welcome mat we generally have put out for people visiting our country.

That openness has been exploited--it certainly was prior to the attacks of September 11--exploited by those who, as someone else has said, hate us more than they love their own lives. They come in here and are prepared to blow themselves up to kill Americans. That demands that we not try to put a wall around America--we can never do that--but that we be aggressive and smart about raising our guard and requiring some standards of personal identification from people coming into America, something we have not required before.

We can do that without compromising unduly, unnecessarily, the openness of our country and the welcome we put out to both those who want to emigrate here and those who just plain want to visit.

The amendment Senator McCain and I offered has several parts to it. One is to simply help us obtain better information about the way in which terrorists move around, the way in which they intend to exploit our transportation systems, our existing laws, to do damage to us and our people. We want to better screen for terrorists in foreign countries long before they can reach our borders. We want to better train border personnel. We want to use the most sophisticated computer imaging equipment to detect fraudulent travel documents. We want to better screen at the borders and at points of access, as I say, to critical infrastructure, transportation particularly, and we want to do more to protect against

identity fraud and identity theft because so often these terrorists will assume new identities as a way to gain access to the country and access to places where they can inflict damage on us.

What it means to defend America has changed. In a different age, the age of serious conflict, it meant having the strongest military we could, having the most sophisticated weapons we could, to deter enemy attack, to be prepared to go to the battlefield, to deploy our forces to meet the enemy and defeat the enemy. Today, it involves homeland security in a way it never has before in our history, and this amendment would enable us to raise our homeland security in the best way possible.

In its analysis of the events leading up to September 11, 2001, the 9/11 Commission concluded that the terrorists are as reliant on travel documents as they ultimately are on weapons. To succeed, they have to travel clandestinely to meet, train, plan, case targets, look at targets, and gain access to sites they want to attack. They rely on networks of people to facilitate their travel, people they place within this country. Commonly, their travel documents have been tampered with.

The 9/11 Commission found that as many as 15 of the 19 9/11 hijackers could have been intercepted at the borders. Two of them actually entered the United States even though they were known as terrorists by at least one agency in the intelligence community of the United States. They were on a terrorist watch list. They had been heard at a meeting in Kuala Lumpur, kind of a world conference of terrorists, al-Qaida largely, where we now believe the attacks of 9/11 were planned. Two of them met that standard.

The point is we have to address the multiple opportunities to identify and stop the terrorists at every point along their travel routes long before they reach our entry points, at our border crossings. Once inside the country, we have to find ways to detect them.

The first thing this amendment does is seek to improve our intelligence about how terrorists travel. Before 9/11 and even today, there is no agency within the Federal Government that has the responsibility to consider this question. The Department of Homeland Security, therefore, would be directed by the amendment to work with the appropriate intelligence and law enforcement agencies in a coordinated effort to detect methods and patterns of travel, such as the use of specific routes. They would look for those who assist terrorists, be they human smugglers or corrupt government officials.

There is information--and I can describe it because it was mentioned in a newspaper; I saw it in the Washington Times earlier this week-- about terrorist elements, al-Qaida working with certain gangs, drug groups, who customarily smuggle people across our southern border to work with them to smuggle in terrorists. We cannot sit back and let that happen.

This amendment would also expand screening for terrorists long before they reach our borders. Federal agencies would be required to develop a plan for working with foreign countries to share information on terrorists and increase inspection at foreign airports, not just U.S. airports. The amendment would increase investment in new technologies that can detect false travel documents or those with certain indicators that are consistent with terrorist use based on patterns of what we know now, and would require both the Department of Homeland Security and the State Department to provide training about terrorist travel to our front-line border officials so they may better spot forged passports or other subtle clues that warrant further scrutiny.

The best available technology should also be provided to our embassies and consulates to detect doctored passports or other forms of false identification before the applicant is issued a visa, set up a kind of technological wall of identification, most specifically at visa-granting points around the world for visas to come to the United States. To improve screening at our borders, the 9/11 Commission recognized the need for a robust entry and exit system based on the use of biometric information. A system of this sort has been under development for over a year now, but it needs to be improved and accelerated. Our amendment requires the Department of Homeland Security to do just that.

The 9/11 Commission also recommended that we close the gaping hole in our border security created by policies allowing easy passage into the United States from Canada, Mexico, and the Caribbean; logical enough in years past, the natural neighborly tendency of the United States of America and Americans generally, but unfortunately it is a policy of openness that has been exploited and continues to be exploited by the terrorists.

Our lenient border policies with our neighbors to the north and south today constitute a vulnerability. Travelers may now cross these borders with no other proof of U.S. citizenship than a verbal statement. Individuals claiming to be Canadians enter our country from Canada without showing a passport. The policies are evidence of our good relations with our neighbors, but in the age of terrorism, that friendship must allow for better security for the benefit of both.

Our amendment would require biometric passports, or an identification document just as secure, for everyone crossing into the United States, even U.S. citizens and our closest neighbors.

As we make our borders more secure, we must not forsake the principles of openness and freedom that define us as a nation. This amendment therefore requires that the Department of Homeland Security consolidate and improve a registered travel program that allows previously screened and trusted travelers to go quickly across our borders so that officials may focus on those who might do us harm.

Finally, this amendment improves the way we issue key identification documents, such as driver's licenses, birth certificates, or personal identification cards that may be required before boarding a commercial airliner or requested by a law enforcement officer who has grounds to be suspicious. It would require minimum security standards for these documents and directs the Federal Government to work with the States to establish minimum standards for both the security features embedded in these documents and for the way in which the documents are issued.

By the way, a similar program is already in effect for issuing commercial driver's licenses. In this regard, I want to thank my cosponsor on this amendment, Senator McCain, and the Senator from Illinois, Mr. Durbin, for their long work together in the interest of establishing not a national identity card but minimum uniform standards for personal identification documents in the United States of America. We have no intention of usurping the State's role here, their capacity to design their own identification documents. The amendment specifies that the States retain the full authority to decide who qualifies, for example, for a driver's license. We would, in addition, provide grants to the States to help them implement these new standards.

For several decades, study after study has told us how easy it is to obtain a false identity in this country. As recently as 2002, GAO investigators used fraudulent identification made by commercially available computer software to obtain driver's licenses in several States. Of course, the driver's license is an entry card to a personal identification and clearance throughout the system.

We have known about this problem for decades, but after September 11 we can't wait any longer--and we are still waiting, since September 11, to do anything about it. This bill will push us forward.

The 9/11 Commission described a variety of loopholes and flaws and inadequacies in our current border security personal identity system. We must close and repair those; close those loopholes, repair those flaws, and put to an end, as best we can, to the terrorists' ability to continually reinvent themselves and escape detection. We are up to this. We are technologically up to this. The question is whether we have the will and the common sense to do so.

This amendment would help our border and law enforcement officials accomplish exactly that. For the sake of the safety of all Americans, I ask my colleagues to support this amendment.

I note with gratitude the presence on the floor of Senator Levin. I yield the floor to him at this time for the purpose of offering an amendment.

Mr. President, I thank my friend from Michigan, the distinguished member of our Governmental Affairs Committee, who has played a characteristically active, thoughtful, and constructive part in the markup of and consideration of the committee through the hearings, drafting, and markup of the bill last week, and he continues to with this amendment, an amendment somewhat like the one which the committee didn't agree on. We have worked together. This whole bill has had so many moments where I felt we were legislating, we were reasoning together and coming to agreements that will make the system we want established better. This is one of them. It is totally consistent with the intention Senator Collins and I have had in putting the bill together with the intention, in my opinion, of the September 11 Commission, which is to put somebody in charge of the intelligence community where there is not someone in charge now; to not simply encourage but to the best of their ability mandate collaboration among the component agencies of the intelligence community and make sure that one result of collaboration is not so-called group-think; that there is independent, competitive analysis going on.

The amendment of the Senator from Michigan, which is focused, does exactly that. It adds language to make clear that the national intelligence director shall establish collection and analysis requirements for the intelligence community based on input from consumers of that national intelligence which reflect their estimate of their need and requirements. That is plain common sense.

The director would also establish collection analysis requirements based on the needs of intelligence consumers in order to produce timely and relevant products, which is what this is all about.

Senator Levin's amendment also makes clear the director has the responsibility in setting analysis priorities to ensure that the elements of the intelligence community are able to conduct, as he has said, ``independent analyses so as to achieve to the maximum extent practicable competitive analysis.''

That, too, is not only sensible, but it is in the interest of our national security.

I thank the Senator from Michigan. I certainly support the amendment. I believe it has been cleared on both sides. But the Senator from Maine is not able to be on the floor right now. As soon as she can, I guess she will want to speak on this and we should adopt this by consent.

I thank the Chair. I yield the floor.

Mr. President, the Senator from Maine is on her way to the floor to speak about the amendment. I wonder if we might go into a quorum call for a moment until she does.

I note the presence of the very distinguished chairman of the Intelligence Committee. He will go next after we agree to this amendment.

In the meantime, I suggest the absence of a quorum.

Mr. President, I cannot thank the Senator from Kansas enough, chairman of the Intelligence Committee, for what he has said. It means everything to me and, I know, to Senator Collins. We were asked to take on this assignment in the Governmental Affairs Committee because we are the committee of jurisdiction over governmental reorganization. The Intelligence Committee clearly has the experience and expertise in matters of intelligence. Senator Roberts and Senator Rockefeller have contributed to the product we have turned out. But it is critically important to the success of what we have started here that our committee be working together with Senator Roberts and his committee.

I appreciate the effort and thoughtfulness that went into the many amendments that the Senator from Kansas is offering. Our staffs are looking them over. As Senator Collins said, I hope we can accept a number of them. They share the goals that we have together, and they will strengthen the bill. Then I look forward to Senator Roberts being on the conference committee and helping us to come up with a good result when we meet our friends from the House.

Most of all, I thank him, my friend. Together we are going to get something good done, not just for the intelligence community but for the reason for which our intelligence agencies exist, and that is for our national security.

I thank the Chair and yield the floor.

Mr. President, I appreciate the opportunity to take up this bill. It is under a unanimous consent agreement. Pursuant to that agreement, we are going to have some opening statements. I will take about 15 minutes and then Senator Schumer, the cosponsor of the amendment, will be presenting his remarks. After that, anyone who would like to speak for or against this bill can do so.

There will be two amendments in order. One will be an accepted amendment offered by the Senator from Wisconsin, Mr. Feingold, and another will be offered by Senator Feinstein of California on which there is, I believe, a total of 4 hours authorized for debate. I do not think we will need that much time, but when the time comes, I urge my colleagues to oppose and defeat the Feinstein amendment so we can go to final passage of this legislation.

I will briefly describe what the bill does and why we need it. Then I will get into some of the procedure involved. It is actually very simple. It involves an existing law that we passed in 1978 called the Foreign Intelligence Surveillance Act, known by the acronym FISA. FISA allows us to get warrants, among other things, and allows us to surveil people we suspect of committing acts of terrorism against us; for example, to get a warrant to search their computer or their home.

There are two instances where the law currently applies. The underlying predicate is that there has to be probable cause that somebody is committing, about to commit, or planning to commit some kind of criminal act, a terrorism kind of act. It applies to two kinds of people: somebody who is either working for a foreign government or somebody who is working for a foreign terrorist organization.

That leaves a little loophole because there are some terrorists who are not on the membership list, shall we say, or who are not card- carrying members of a foreign terrorist organization or a foreign government; people such as Zacarias Moussaoui, for example, whom we now believe to have been loosely involved in the al-Qaida attack of September 11.

At the time, it was not possible to prove that he was involved with a foreign intelligence organization. It may

well be that at the end of the day he was, in fact, a lone wolf, operating on his own, but very loosely affiliated with the radical Islamic movement which has underpinned a lot of the terrorism which threatens the United States and the rest of the world today.

The law as written in 1978 was intended to apply to a very specific group of people, the Soviet spies, for example, or the Baader-Meinhof gang or the Red Brigade or the Red Army. There were a lot of these organizations back then, and they were very tightly knit organizations. If somebody was involved in one of these groups, they were involved. But today's radical Islamic movement around the world that associates itself with terrorism is much more amorphous. As I factitiously said, these people do not have cards identifying themselves as members of these organizations. They are people who hate the West and the United States. They move in and out of the different countries of the world. They will take training in a certain place. They will affiliate a little while with a group and then move on to support some other group.

The bottom line is that it is very difficult, sometimes impossible, to prove that they are affiliated with a specific group. In some cases, they are not. They are simply acting on their own. But they are still terrorists. They are still foreign terrorists. They still mean to do us harm on the international stage and should be covered by the Foreign Intelligence Surveillance Act.

We close this loophole by providing that not only does it cover the person working for a foreign government, or who we can prove at that point is working for a foreign terrorist organization, it also includes the so-called lone wolf terrorist, or the individual we cannot yet prove is directly affiliated with one of these amorphous groups. That is really all the bill does.

I will give a specific example. I mentioned Zacarias Moussaoui. Remember all of the criticism. He was a person who was taking flying lessons. It was under very suspicious circumstances. We understood this prior to September 11. There were people who wanted to get a Foreign Intelligence Surveillance Act warrant to search his computer. It went to the FBI, and somebody in the FBI concluded that, yes, all of this information looked good in the warrant except that they could not specifically tie him to a specific international group. Quite a bit of time was used following up leads that led to some group of Chechen rebels, but that ended up to be kind of a dry hole. Meanwhile, the attack of September 11 occurred.

Immediately after that attack, we were able to get the warrant. His case is pending in Northern Virginia at this time. He was not able to hook up with the attackers of September 11, but clearly his is an example of a case to which this kind of provision should apply.

I will quote something from some of the testimony that we had with regard to the need for this legislation. Spike Bowman, who is the Deputy General Counsel of the FBI, testified at a Senate Select Committee on Intelligence hearing on the predecessor bill to the one that is before us right now. I will quote at length from his testimony. He said:

When FISA was enacted, terrorism was very different from

what we see today. In the 1970s, terrorism more often

targeted individuals, often carefully selected. This was the

usual pattern of the Japanese Red Army, the Red Brigades and

similar organizations listed by name in the legislative

history of FISA. Today we see terrorism far more lethal and

far more indiscriminate than could have been imagined in

1978. It takes only the events of the September 11, 2001, to

fully comprehend the difference of a couple of decades. But

there is another difference as well. Where we once saw

terrorism formed solely around organized groups, today we

often see individuals willing to commit indiscriminate acts

of terror. It may be that these individuals are affiliated

with groups that we do not see, but it may be that they are

simply radicals who desire to bring about destruction.

We are increasingly seeing terrorist suspects who appear to

operate at a distance from these organizations. In perhaps an

oversimplification, but illustrative nevertheless, what we

see today are (1) agents of foreign powers in the traditional

sense who are associated with some organization or

discernible group, (2) individuals who appear to have

connections with multiple terrorist organizations but who do

not appear to owe any allegiance to any one of them, but

rather owe allegiance to the International Jihad movement,

and (3) individuals who appear to be personally oriented

toward terrorism but with whom there is no known connection

to a foreign power.

This phenomenon which we have seen . . . growing for the

past two or three years, appears to stem from a social

movement that began some imprecise time, but certainly more

than a decade ago. It is a global phenomenon which the FBI

refers to as the International Jihad Movement. By way of

background we believe we can see the contemporary development

of this movement, and its focus on terrorism, rooted in the

Soviet invasion of Afghanistan.

During the decade-long Soviet/Afghan conflict, anywhere

from 10,000 to 25,000 Muslim fighters representing some

forty-three countries put aside substantial cultural

differences to fight alongside each other in Afghanistan. The

force drawing them together was the Islamic concept of

``umma'' or Muslim community. In this concept, nationalism is

secondary to the Muslim community as a whole. As a result,

Muslims from disparate cultures trained together, formed

relationships, sometimes assembled in groups and otherwise

would have been at odds with one another[,] and acquired

common ideologies. . . .

Following the withdrawal of the Soviet forces in

Afghanistan, many of these fighters returned to their

homelands, but they returned with new skills and dangerous

ideas. They now had newly acquired terrorist training as

guerilla warfare [had been] the only way they could combat

the more advanced Soviet forces.

Information from a variety of sources repeatedly carries

the theme from Islamic radicals that expresses the opinion

that we just don't get it. Terrorists world-wide speak of

jihad and wonder why the western world is focused on groups

rather than on concepts that make them a community.

The lesson to be taken from how [Islamic terrorists share

information] is that al-Qaida is far less a large

organization than a facilitator, sometimes orchestrator of

Islamic militants around the globe. These militants are

linked by ideas and goals, not by organizational structure.

The United States and its allies, to include law

enforcement and intelligence components worldwide[,] have had

an impact on the terrorists, but [the terrorists] are

adapting to changing circumstances. Speaking solely from an

operational perspective, investigation of these individuals

who have no clear connection to organized terrorism, or

tenuous ties to multiple organizations, is becoming

increasingly difficult. The current FISA statute has served

the Nation well, but the international Jihad movement

demonstrates the need to consider whether a different

formulation is needed to address the contemporary

terrorist problem.

Of course, the different way we are approaching it is by adding a third element to the FISA statute. If you are a non-United States person and otherwise we have probable cause to believe you are planning an act of or executing an act of terrorism, we have the right to seek a warrant in the FISA court to search you, surveil you, whatever the warrant might request.

That is the essence of this legislation. As I said, when FISA was enacted in 1978, this international movement around an idea had not yet evolved and we were focused on organizations. Now we need to add to the statute, in addition to nations and specific organizations, non-United States persons--in other words, foreign persons--who we believe are carrying out some terrorist plan with international roots, directed at the United States, sufficient to bring it under the aegis of the FISA statute.

It is the responsibility of Congress to adapt our laws to these changes. It is this challenge that Senator Schumer and I are attempting to address by this amendment.

I introduced this bill with Senator Schumer in the 107th Congress on June 5, 2002, so it has been around almost a full year. The current bill is the identical bill introduced in the previous Congress. We held a Select Committee on Interrogation hearing July 2002, the testimony from which I just quoted, and we heard testimony from six witnesses.

There was no Judiciary markup in the previous Congress, but in the 108th Congress, when we reintroduced the bill January 9, the Senate Judiciary Committee held a markup. This bill, by the way, was cosponsored by Chairman Hatch, Senators DeWine, Schumer, myself, Chambliss, Sessions, and there may be others of whom I am not aware.

March 6, the Judiciary Committee marked up the bill at an executive session and adopted a substitute amendment, which is the bill we have before the Senate now, rejected a Feingold amendment by a vote of 11 to 4, and voted to report the bill unanimously by a vote of 19 to 0 to the Senate. That is where we are today.

We hope to call anyone who has an interest in this to the floor to express their ideas. As I say, we are going to

accept one amendment and we will be debating a second amendment, which I hope we defeat. There will be a break in our consideration here for some other business in the middle of the day. We will return in midafternoon to complete the work on the bill. It should be done by the late afternoon.

Until Senator Schumer arrives, I make another point. There has been a worry on the part of some that this expands the Foreign Intelligence Surveillance Act to private American citizens. I make it crystal clear that is not true.

By definition, we could not do that. This is a law that is only justified because it relates to international terrorism. So if you come here from a foreign country, you are a non-U.S. person, you come from a foreign country, intending to do harm to Americans, as part of this international movement, whether you are a member of some specific organization or not, the act will be allowed to be used to determine whether we should take further action against you. It is not pertaining to U.S. citizens; it is only to non-U.S. citizens and only in this particular context.

Second, you cannot just do this willy-nilly, like every other warrant. Whether under FISA or not, we have to have probable cause. That requirement is not changed one iota. If anyone suggests there is anything improper, certainly it is not unconstitutional, but to the extent anyone suggests that we are ready to recite the reasons why, that is not true.

I note the Department of Justice has sent a letter announcing its support for this legislation. Among those testifying in favor of it, the U.S. Attorney General, the Director of the Bureau of Investigation, former CIA Director, and any number of officials in our intelligence and law enforcement community have endorsed the bill.

I direct Members' attention to a letter I will later put into the Record, dated July 31, 2002, which presented the Department of Justice's views on the bill and announced its support for the legislation. It provides a detailed analysis of this question about the fourth amendment and whether or not there would be any constitutional issues.

The Department concluded that the bill would satisfy constitutional requirements specifically related to the fourth amendment. In particular, the Department emphasized that anyone monitored pursuant to the bill would be someone who had at the very least been involved in terrorist acts that transcends national boundaries in term of the means they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which the perpetrators operate or seek asylum.

As a result, it would still be limited to collecting foreign intelligence for the international responsibilities of the United States and the duties of the Federal Government to the States in matters involving foreign terrorism, to wit, protecting the American citizens from people who come here to do us harm.

Let me conclude these remarks by noting that I have enjoyed the cooperation, as usual, of my colleague who serves on the Judiciary Committee, the Senator from New York, Mr. Schumer, who has been a strong advocate of this kind of provision for a long time and whose assistance in this matter has been extraordinarily helpful.

I yield the floor.

Mr. President, I ask unanimous consent that Senator DeWine be recognized at 1 p.m. for 15 minutes of morning business.

Mr. President, I ask unanimous consent that in the debate on the pending business involving the Foreign Intelligence Surveillance Act, a letter from the Department of Justice dated July 31, 2002, be printed in the Record.

Mr. President, I would like to advise Members that under the unanimous consent agreement for the consideration of this bill there is a period of 2 hours general debate and 4 hours equally divided on the Feinstein amendment. We would like to ask Members who have comments to make about this legislation to come to the floor and express themselves so that we can conclude this bill today under the unanimous consent. I will continue to discuss the bill. But if other Members would like to come, I will yield the floor to them. I would ask that those who have amendments that are authorized by the unanimous consent agreement to lay those amendments down so Members who wish to speak to those amendments could also address that.

In the meantime, let me continue some of the conversation Senator Schumer and I had before. We are talking about a bill which would plug a loophole in the existing law--the Foreign Intelligence Surveillance Act--which currently authorizes warrants to be obtained in two specific situations. We make it clear that there is a third situation as well. The two specific situations are where you either have somebody you suspect is involved in international terrorism because they work for a foreign government--that is a situation like the old Soviet spy--or they work for some international terrorist organization. Remember that this law was created at the time when we had organized groups such as the Red Brigade and the Meinhof gang, and those types of groups. That is why those two definitions in the statute were included in the way they were. What was not anticipated is that we would also have people coming from abroad to the United States to commit acts of terrorism against American citizens as part of this rather amorphus Islamic Jihad movement rather than an organization of people affiliated around a culture or an idea or a movement.

As a result, the statute needs to include that third group of people, as we know, after September 11. We have specific cases of people in which warrants were sought but were not obtained because we couldn't make that connection to either a specific country or a very specific terrorist organization. Instead, the individual had relationships with various people and organizations involved in terrorism but certainly we couldn't say he was a card-carrying member in the sense that the statute was originally drafted. So the same requirements, as Senator Schumer said, would pertain. It doesn't apply to U.S. citizens. It only applies to foreign terrorism. But it would include a person coming here from another country--not a U.S. citizen--and we have probable cause to believe is engaged in or about to engage in an act of terrorism.

In that case, the law enforcement authorities can go to the court and seek a warrant just as they do in any other criminal court. But the difference here is the Foreign Intelligence Surveillance Act. One of the reasons a special

court is set up for that is because the information which the Justice Department frequently presents is highly classified. Clearly, here you are dealing with foreign threats--either an international spy spying on us from another country or some kind of terrorist like Zacarias Moussaoui, and the information you have that enables the warrant to be sought was obtained obviously through intelligence work. You don't want to compromise either the sources or the methods of intelligence. As a result, you can't just file publicly in the regular court system for a warrant.

That is why the Foreign Intelligence Surveillance Act court was established. These are judges just like any other judge, but they have special intelligence clearances. They have been cleared to handle classified material. By the rules of the court, that material is kept in the court. Once allegations have been filed against people, then the matter can be debated in camera, which is to say in private--not in public hearings. Proceedings remain classified, at least until the matter is included; perhaps thereafter as well.

This is the way in which these highly sensitive intelligence matters are handled. It takes a special procedure and a special court to do that. But there is nothing antithetical to a constitutional right simply because we have to handle it that way.

There are other situations, as well, in which in our court system can handle things nonpublicly. There are sometimes sensitive matters between litigants that have to be handled in camera; that is to say, in effect in the judge's chambers and not out in public. Certainly, I think everybody can recognize that in some of the big spy cases and international terrorism cases you just can't take the evidence you gathered by the intelligence mechanism which we have and produce all of that information in open court. That is why you have these special procedures. But the underlying legal requirements to obtain the warrant remain essentially the same. They are slightly different in the classified court than in a regular court.

In all candor, they are a little bit easier to obtain. But the basic element of probable cause and belief that a crime is being committed or is about to be committed or is planned remains. Nothing is changed.

As Senator Schumer pointed out, our legislation doesn't change anything relating to the standard of proof, the burden of proof, or anything of that sort in the existing law that works so well. What we do is ensure that the warrant can be obtained not just against the spy for a specific country, or the terrorist whom you can identify as a member of a particular terrorist organization--sort of an anachronistic concept in today's terrorist situation--but also pertains to the non- U.S. citizen, a foreign person who comes here from abroad with the intent to commit some act of terrorism against U.S. citizens.

When you have those elements, you have the same foreign terrorist nexus to the law that our Constitution permits included within the Foreign Intelligence Surveillance Act for purposes of obtaining warrants or obtaining other surveillance of the individuals. That is all we do. That is all that is done by this legislation.

So those of us--including I think every one of us on the Judiciary Committee--who consider ourselves civil libertarians need not be concerned that this statute or that this legislation, in any way, would impact on our constitutional rights, nor that it would diminish the constitutional rights of non-U.S. persons who are not engaged in terrorism. But if we have probable cause to believe you are engaged in an act of terrorism, then, yes, you would be subject to provisions of this law.

This legislation has an interesting history, as I alluded to earlier, because it was assigned to the Intelligence Committee, and it was almost included as a part of the Intelligence Authorization Act of last year. And the chairman of the Intelligence Committee this year was kind enough to offer to include it in this year's legislation as well.

Since we were able to also have the bill marked up in the Judiciary Committee and brought to the floor as a result of that markup, that was not deemed necessary. That is why the bill is here--actually as a result of action by the Judiciary Committee.

So both the Intelligence Committee and the Judiciary Committee have been involved in this legislation, the former having a hearing and the latter having marked up the bill. Having been a member of the Intelligence Committee and sitting, as I do, on the Judiciary Committee, I can tell you it was also the subject of additional comments and hearings that were held for broader purposes of examining the terrorism issue. That is why I mentioned the fact that the legislation had actually been supported publicly by various Government officials who testified before either the full Judiciary Committee or the subcommittee I chair on terrorism and technology. They had testified before our committee on terrorism issues generally, and I specifically asked whether they supported the legislation in question; the response to the questions, of course, was that they did.

Another interesting hearing, which was a joint hearing, as I recall, between the Judiciary and the Intelligence Committees had testimony from Coleen Rowley, referred to by Senator Schumer earlier. You will recall, she was the agent from Indianapolis who was very exercised about the fact that she could not get a warrant against Zacarias Moussaoui and complained bitterly that the FBI headquarters had prevented her from doing that. She thought the conditions warranted the issuance of the warrant.

It is a debatable point. But it would not have been debatable if our proposal had been law. It would have been very clear. We had the probable cause. The only question was, Can we tie this person to some international terrorist organization? As I said before, we spent a lot of time and a lot of effort trying to run around tracing his contacts with Chechen rebels, and at the end of the day it just was not specific enough to be able to use the statute to get the warrant against him.

Right after 9/11, when essentially the same warrant was sent forward, then we had additional information of contacts this individual had, as a result of which the warrant was obtained. But that would not have occurred had September 11 not occurred--or at least it is doubtful it would have occurred. Let me put it that way.

Would that have prevented the September 11 attacks? No one knows for sure. I suspect not, but at least a plausible case can be made that we would have known a lot more about the planning of September 11 had we been able to get into Moussaoui's computers and questioned him and ascertained what he was up to and, furthermore, traced the contacts we were later able to trace from Moussaoui to others involved in the al- Qaida movement that would have painted a much clearer picture of what was being planned prior to September 11 than the information that we had.

The point is, we do not want to be in that position again. So whether it would have prevented 9/11 is really beside the point. We had the ability to get information which can protect the American people against acts of international terrorism. Why wouldn't we want to take advantage of that opportunity?

As I said, the Judiciary Committee unanimously voted this bill out of committee to send it to the floor so we could deal with that precise issue. I am certain my colleagues will agree that this is important to do and that we will do it a little bit later on this day. When we do, I think we can be very proud of the fact that this is another in a series of things we will have done to help prepare our country against the international terrorist threat.

We know that in the whole matter of homeland security you can only provide so much defense, that it really is about taking the fight to the enemy. Because our country is so big, it is so open, we have such broad freedoms in this country--and thankfully so--it is virtually impossible to absolutely protect us from a terrorist who would come here to do us harm. One of the ways we can help to protect against that is by getting good intelligence on people who come here from abroad and who we find out mean us ill. This provision today is a way to help us do that.

So this is a tool in the war on terror that will really help us ensure that we deal with as many of these threats as we possibly can. Are we always going to find out enough to even get a warrant? Not necessarily so. That is why

the efforts of the administration to go after these terrorists all around the world are so important.

But what has helped us in that regard is that we have had cooperation from other governments. And as much as we have been critical of some of our allies for not supporting us as we would like to have had them do-- such as the situation in Iraq--I will tell you, virtually every country in the world has been supportive in one way or another in supplying us with information about terrorists in their countries or terrorists of whom they are aware who might be affiliated in some way in this international movement that threatens us all.

One of the things we discovered, however, in talking to legislators and parliamentarians from these other countries, and intelligence officials, and law enforcement officials, is that they have legal inhibitions just like the United States does. Their laws only permit them to go so far in tracking down these terrorists in their country.

In the case of Germany, for example, which has been very helpful to the United States, they were able to change one of their laws to make it easier for them to go after these terrorists. There was another law they also needed to change, and at last count I do not recall whether they were able to get that done.

But the point is, if we are able to change our law, as we did with the Border Security Act and the USA Patriot Act, we can demonstrate a seriousness of purpose to these other countries to convince them that all of us need to make these kinds of changes in our laws so that we can go after these terrorists.

The analogy is, we won the war in Iraq in a most amazing way. We sent our troops with the best equipment and the best training ever in the history of the world. And I wish I could share some of that, the information about that equipment publicly. But I think we have all, through the embedded reporters, come to appreciate how just one American soldier, with all of the technology at his disposal, can make a tremendous difference.

We also have helped protect them. They have special flak vests, bulletproof vests that protect them against a lot of incoming. We try to protect them with the special chemical gear in the event of a chemical attack, and so on.

We want to send our troops into battle protected in the very best way and with the very best means of accomplishing their mission. Why would we deny our law enforcement and intelligence officials the very same kinds of weapons in the battle that we send them out to win?

I guarantee you that the next time there is a case like Zacarias Moussaoui or some other terrorist about whom we have some information but we don't go after strongly enough, and he does something to us, the recrimination will be great. Oh, the accusations will fly: Why didn't we do something about that when we could have?

So our response today is going to be: We did. We came together as a Senate and we enacted another law, another piece--it is a small piece, but it is an important piece--to help us fight this war on terror. We did not shirk our responsibility. When we became aware of the loophole in the law, we acted to fill it.

Now, we have to do that in order to be able to take this credit, obviously, but I believe strongly that the House of Representatives will act similarly and that we will be able to get this to the President's desk in very short order, so at the end of the day today we can say we have done something very important to advance our ability to fight the war on terror and protect the American people.

Again, I urge my colleagues, if there is no opposition--and I hope there isn't--that is fine. But anybody, either in opposition or in favor of the legislation, come forward so that we can have whatever debate is necessary. And I especially ask the proponents of amendments to come forward so that we can begin to debate them.

I will take this moment to press some of the comments that will be made about the two amendments.

Senator Feingold has proposed an amendment that we will accept and the Senate should accept which requires that the warrants obtained under this law generally--not just the provision we are talking about today, but if we obtain a warrant under either of the other provisions as well, that the information be compiled and shared with the Senate; specifically, that the information be sent to the Intelligence Committee--it is classified information, obviously--and that the cleared people on the Judiciary Committee who are appropriate to view the information have full access to that so we can evaluate whether these provisions are being used, abused, how often they are being used, how effectively, and so on. I believe his amendment calls for an annual report which we could examine. That is very useful information for us to have.

One thing we found was that prior to 9/11, this statute had not been used very often. It is not a particularly easy statute with which to comply. You do really have to have your information together before you seek the warrant because you don't ever want to be turned down. I don't believe the Justice Department ever was turned down. That is evidence of the fact that they were careful. Since 9/11, there have been a lot more cases in which this has been used. That information will be available to us, and therefore I will support Senator Feingold in offering the amendment.

The other amendment that is in order under the unanimous consent agreement, with all due respect to my great friend and colleague Senator Feinstein, would gut the bill and would be bad. It would really undermine the whole FISA process. We should reject it. I know she offers this amendment not for that purpose. Of all the people in the Senate with whom I have worked who share my strong conviction that we need to do everything we can to support our intelligence and law enforcement communities, Senator Feinstein is equaled by none. She is the ranking member of the Terrorism Subcommittee, and she and I have cosponsored numerous bills or amendments designed to enhance law enforcement and intelligence capabilities. She is a very strong advocate of giving our intelligence and law enforcement communities the very best tools possible.

She just has a different point of view about how this FISA warrant process should work. I will let her describe it. I will offer my view that it has no place in the FISA situation. What her amendment purports to do really might have some applicability in a court setting because it talks about a presumption. As lawyers know, presumptions arise when you have two parties to litigation and one party comes forward with a particular piece of evidence or allegation which then changes the burden of going forward with the evidence or the burden of proof in the case. A presumption is established, and then the other side has to overcome it. That has no place in an ex parte hearing where the Government is seeking a warrant against a party who is not even aware that the warrant is being sought. Obviously, you don't get a search warrant by notifying him that you are about to do that.

What her amendment pertains to does not really have application to the situation presented in an application for a FISA warrant and would seriously undermine the Government's ability to obtain it. You could either read it one of two ways. Either it would be totally meaningless--and I know that that is not intended--or else it would be very pernicious because it would create the suggestion in court that the material presented to it is not, is no more than a presumption, that it is not to be accepted on its face.

Specifically, the Government would be asserting that the person against whom the warrant is sought is a non-U.S. citizen, a foreign person under the definition of the statute. If that information is presented in sufficient form for a court to issue the warrant, it makes no sense at all to have the information merely a presumption that the individual is a foreign person. How does that advance the ball? How does it help the court? How does it protect anybody? The court is still going to have to answer the very same question: Do I believe the information the Government is presenting to me that this is a non-U.S. citizen? Either he is or he isn't. It is not a matter of a presumption.

If the court is not convinced that the Government's information is correct,

then the court is not going to issue the warrant. It would be improper to do so. If the court is convinced that the person is a non-U.S. citizen, then the court can issue the warrant if the other requirements are met. I don't believe Senator Feinstein attacks the other requirements.

Either you are a foreign-born person, or a non-U.S. person, or you are not. The court has to make that decision. And creating a presumption about it is really irrelevant to this particular process. If it is more than irrelevant, there is some kind of a problem. Obviously, you don't want the court to have to somehow independently verify the information that is presented to it by the Justice Department. That is not a part of; that is not the way the court works. The court does not do this sua sponte, or on its own. The court has the information before it, and it either has to accept the information or not. It doesn't have to accept the Justice Department's word for it. The Justice Department cannot simply make the assertion. It has to offer the proof. If the proof is not satisfactory, the warrant will not issue. Later, if it is found that the evidence was not satisfactory, then there is always some question about whether the evidence obtained, of course, could be used, say, in a later prosecution.

The bottom line is that that amendment does not help. It could seriously hurt the application of the entire FISA statute. It is not just limited to the amendment we are offering today. I urge my colleagues, when the time comes, to reject the Feinstein amendment, not because it is not well intended--I am confident that it is--but, rather, that its effects are ill understood at best and, at worst, would be pernicious to the application of the statute.

I have said all I need to say at this point on the legislation. I would note that time will run against the time allotted under the bill. Since both Senator Schumer and I control the time, anyone who wishes to come to speak to the legislation either for or against, I ask unanimous consent that if neither Senator Schumer nor I are here, they should be permitted to do so without specific acquiescence by Senator Schumer or myself.

Unless there is someone else who wishes to speak at this time, I ask unanimous consent that the time consumed in the quorum call be equally divided.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent to offer an amendment that affects the bill in more than one place. I have cleared this with the two managers.

Mr. President, I call up amendment No. 3845.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, I ask unanimous consent that the following Senators be added as cosponsors of my amendment: Senators Stevens, Inouye, Warner, Harkin, and Johnson.

Mr. President, first, I express my appreciation to the two managers for their courtesies that they never fail to extend. I also want to express my appreciation to the distinguished President pro tempore who is in the chair this morning, Senator Stevens, my soulmate on the Appropriations Committee.

In 2001, we witnessed the failure of our Government to utilize its intelligence capabilities to protect our Nation against a terrorist attack. For too long, the Congress has deferred to the executive branch on intelligence matters. Congress has failed to vigorously discharge its constitutional oversight responsibilities. I do not say that by way of finding fault with any Senator.

The 9/11 Commission illustrated the dangers of this practice. The consequence has been foreign policy failures, prison scandals, politicized intelligence that has led not only to a desperate state of affairs in Iraq but has also left our Nation vulnerable to further terrorist attacks. It is painfully clear that there are dire consequences when the Congress abdicates its constitutional duties to oversee the intelligence agencies within the executive branch.

Senators need to be reminded--I need to be reminded as well--that the Congress is a consumer of intelligence. Senators must have access to good intelligence to make informed decisions about our military, about our foreign policy, about the solemn charge to authorize war, and that remains a constitutional function, authorization of war.

I am sorry to say I did not hear anybody in last night's debate on either side mention the Constitution of the United States, not once. The Constitution gives Congress alone the power to declare war or authorize war. The Congress must ensure that it is fully and currently informed of all matters that may bear on the exercise of that constitutional authority. Senators ought to be cautious about intelligence reforms and ensure that the role of the Congress in intelligence matters is not undermined. Reform means fixing what has gone wrong, not giving the executive branch more authority to conduct end runs around the Congress.

When I speak of the executive branch, I speak generically, both when it is under Democratic control and Republican control. We must ensure that the top national security officials specified in this bill are subject to Senate confirmation so that they are held accountable to the elected representatives of the people.

The first three words in the preamble of the Constitution are, ``We the people. . . .'' ``We the people. . . .'' And yet, I say, that Constitution was not mentioned once last night.

We must ensure that Senators have access to information necessary to fulfill their Constitutional duties. We must ensure that the Congress does not codify loopholes through which the executive can deny the Congress relevant information. Perhaps most importantly, we must ensure that funds appropriated by the Congress cannot be rerouted without the consent of the people's representatives in Congress.

The Governmental Affairs Committee has ensured accountability to the Congress in many of these areas, but I believe more can be done.

This is an amendment which I have proposed, along with Senators Stevens, Inouye, Warner, Harkin, and Johnson to remove the qualifiers on Congressional access to information, to ensure that the Congress's role in intelligence matters is preserved, and to ensure that the American people are protected.

This amendment requires Senate confirmation of the following positions within the National Intelligence Authority and the Office of Management and Budget: four deputy national intelligence directors, the Officer for Civil Rights and Liberties, the Privacy Officer, and the Deputy Director of OMB for Information Sharing. It is vital that the Congress have access to these officials and be able to hold them accountable for their decisions, particularly in the area of civil liberties.

To further that goal, my amendment requires that the Inspector General of the National Intelligence Authority keep the congressional intelligence committees fully and currently informed of violations of law and civil liberties.

However, the greatest protection against abuse within the intelligence agencies is to monitor closely their budgets. The Congress should jealously guard its power of the purse, and, to do that, I have worked with Senators Stevens and Inouye to ensure that the authorities granted to the national intelligence director to transfer personnel and funding within the National Intelligence Program closely reflect current law.

Our amendment strikes language authorizing the Treasury Secretary to establish new budget accounts for the use of the national intelligence director. This is a function of the Congress, which has the authority to determine how accounts should be constructed to fund our national intelligence.

My amendment allows the national intelligence director, with the approval of the OMB Director, to transfer appropriated funds within the National Intelligence Program, and the heads of the departments and agencies to transfer personnel within the intelligence community for periods up to 1 year, under the following conditions:

A transfer of funds or personnel may be made only to an activity that is a higher priority; and unforeseen requirement; but not to the Reserve for Contingencies of the national intelligence director. The cumulative transfer in a single fiscal year must be less than $100 million and less than 5 percent of amounts available to such department, agency, or element; and the transfer of funds cannot terminate a program.

A transfer may be made without regard to the $100 million and 5 percent limitation if the transfer has the concurrence of the head of the department, agency, or entity concerned--provided, always, that the transfer conforms with the strict limitations set by the Congress each year in its annual appropriations acts.

Funds transferred shall remain available for the same period as the appropriations account to which transferred; and any transfer of funds or personnel shall be reported to the appropriate congressional committees, such as Appropriations, Judiciary, Armed Services, and Intelligence.

I am confident that if these qualifications are adhered to, the power of the purse will continue to rest safely in the hands of the people's elected representatives.

In addition, Senators should take note of Section 224(b)(3) of the pending bill, which would permit the national intelligence director, the Director of the National Counterterrorism Center, or the Director of a national intelligence center to withhold information requested by the Congress if the President certifies that such information will not be provided because the President is asserting a privilege pursuant to the United States Constitution.

It is unclear exactly which privilege the President would invoke, but, given the vague language contained in this provision, a bold and impulsive administration, much like the one currently

inhabiting the White House, could concoct nearly any excuse to invoke a so-called ``privilege'' to withhold documents requested by the Congress. Giving any administration an unrestrained green light to trump any and all forthcoming Congressional requests for information, based on some undefined and nefarious assertion of executive privilege as described in this provision, would be an unmitigated disaster. My amendment strikes that egregious language.

It is my hope, as well as the hope of my colleagues who cosponsored this measure with me, that this amendment will ensure that the Congress's Constitutional role in intelligence and foreign policy matters is safeguarded.

However, Senators should understand that the statutory authority to oversee our intelligence community means very little if it is not utilized. We must be vigilant in our oversight. We must be aggressive in our inquiries. We must not abdicate our Constitutional duties.

I urge the adoption of my amendment.

I yield the floor.

Walt Whitman said:

A man is a great thing upon the Earth, and through

eternity--but every jot of greatness of man is unfolded out

of woman.

So let me pay tribute to our Presiding Officer at this moment.

Madam President, I have the utmost respect for the two managers of this bill. I have the utmost respect for their

dedication and for the knowledge which they bring to bear upon this subject. I am not a member of the committee that has jurisdiction over the legislation before the Senate. So I salute them and tip my hat to them and bow to them.

So what I say is certainly in no fashion, in no way or form any criticism of them. They are doing the best they can do.

But the Constitution of the United States still lives. It still governs. Let's read this paragraph from section 9 of the U.S. Constitution:

No money shall be drawn from the Treasury, but in

Consequence of Appropriations made by Law; and a regular

Statement and Account of the Receipts and Expenditures of all

public Money shall be published from time to time.

Let these words sink in:

. . . and a regular Statement and Account of the Receipts and

Expenditures of all public Money shall be published from time

to time.

We have to keep that provision in mind.

The amendment I have offered today simply ensures that the national intelligence director spends money in accordance with the annual appropriations bills. It provides the flexibility that the director may require but limits that flexibility to the laws passed by Congress and to the knowledge that there is this provision:

. . . a regular Statement and Account of the Receipts and

Expenditures of all public money--

``All public money.''

. . . all public money shall be published from time to time.

We cannot allow this national intelligence director to spend the people's tax dollars without restraint, without some limitation, without some restraint. A $40 billion blank check? We cannot allow the national intelligence director to spend money without regard to Congress. There must be some limitations on his spending authority.

Without this amendment, the intelligence director, and not the Congress, will determine how certain appropriated moneys are spent. We must not remove all limitations on this new intelligence director. If we yield the power of the purse to this new intelligence director, then we have only limited means to rein him in if there are abuses of power.

My amendment limits the transfer of appropriations to $100 million and even allows the Department heads to waive that limitation as long as it is consistent with appropriations law. That, it seems to me, should be more than enough flexibility. We must retain some limitation. The intelligence director must not be allowed to write his own appropriations bill. That would elevate him above the Congress. That will elevate him, an intelligence director, above the people's elected representatives in Congress.

We talk about the trumpet that gives an uncertain sound. Yes. How can we be certain as to what we are doing when we are rushed and pressured into passing legislation as major as this legislation in such a limited time, which is hours? We are being pressured to pass this legislation before we adjourn sine die. This is massive legislation. It is far- reaching legislation. The Congress should not have to operate under a hammer, as we are being driven here.

Henry Kissinger came before the Appropriations Committee when Senator Stevens held those hearings. I compliment my chairman, Mr. Stevens, on having those hearings. Henry Kissinger, a man with vast experience, vast knowledge, advised us not to pass this gargantuan measure in such a hurry and under such pressure and during a Presidential campaign.

I say to my colleagues, we ought not bend to the lash of the whip on the part of the leadership, on the part of the administration, on the part of anyone else. We should take more time. We do not know what we are doing here. I am seeking to protect the people's representatives and the Congress from making what could be a major mistake.

We were rushed into passing legislation creating a Department of Homeland Security, were we not? I tried to get more time. I tried to get the leadership on both sides to listen. They would not listen. Now we find that there are major problems with that Department.

On that fateful occasion on October 11, when the Senate voted to shift the constitutional power to declare war from the Congress--not just one body of Congress, but both bodies of Congress--to one man, oh, what a terrible mistake that was, what a terrible error. We were told: Let's get it behind us. Let's get it behind us. Let's get it behind us. The idea was to get that legislation passed before that election. So the Senate passed that legislation in a hurry, on October 11 of that year.

Oh, we will always rue that day that the Senate bent to the urgings of the leadership, which said: Let's get it behind us. We have not gotten it behind us. We did not get it behind us. I said at the time we would not get it behind us. I said at the time that the President, Mr. Bush, would not let us get it behind us. That was what he wanted. He wanted the Senate to bend in that critical hour before an election so that the Senators who voted on that measure would be somehow conscious that there was an election down the road, and particularly those who were running would be under the whiplash of an election.

Oh, what a terrible mistake. I felt so ashamed. For the first time in my 46 years in this Senate, I felt ashamed that the Senate was knuckling under to the executive branch and making a mistake which is rued to this day and will be rued to the end of time. That blotch upon the escutcheon of this great body, the first time in my 46 years that I was ashamed, this Senate stood mute. It stood bowed. It was intimidated.

And we can make another mistake if we go and rush in too big a hurry. We are doing a big thing here. I do not set myself up as anyone who has the vast knowledge that Mr. Lieberman has or that Ms. Collins has over this subject matter. I am not on that committee. But I do know when we are being pressured to act in too big a hurry. This is a big bill. Why can't we wait until after the first of the year? Why can't we wait until a new Congress, perhaps with a new President--who knows?--a new Chief Executive? Why can't we wait and do the job right? This is a job that we ought to do right and not do it under the gun.

I do not know what is in this bill. I am not on the committee. I do not know what is in this bill. I do not claim to know what is in the bill. But I tell you, we must not remove all limitations on this new intelligence director. Why, this man is going to be God when it comes to appropriations and legislation and matters affecting the people.

This is the perfect example of how we are rushing through this intelligence bill without fully understanding what we are doing. I do not understand what we are doing, and I need to understand what we are doing. To properly represent the people from West Virginia, I need to understand what we are doing.

Now, fortunately, I have a good colleague on the Intelligence Committee, Senator Rockefeller. But I tell you, we are dealing with matters that go to the heart--the heart--of a free government.

Englishmen spilled their blood for centuries to wield the power of the purse away from monarchs in England. They shed their blood, yes, going all the way back to the Magna Carta, the great charter, in 1215. It was signed on the banks of the Thames River.

I think we ought to go a little slower. This is a perfect example of how we are rushing through this intelligence bill. I say it with all due respect to Senator Lieberman and Senator Collins. I admire them, but I admire the Constitution also. I think we ought to stop, look, and listen, and slow down a little bit here.

Without this amendment, the Congress will cede its power of the purse just as it ceded the authority to declare war 2 years ago. We owe it to the 9/11 families to get this right. I say to my staff all the time: If you don't do the job right, how are you going to find time to do it over? That applies in this instance, too. I say that with all due respect.

There is nothing to keep my colleague--my cherished friend, for whom I have great admiration--from coming back next year, from sitting in the driver's seat and doing this thing and doing it perhaps better than he has done it in the first instance. I have no doubt that he would go at it with a will.

In the long run, the victims of 9/11 will not forgive us if we give away the

power of the purse. And don't forget, it is not just that first sentence. There is more to it than the first sentence:

No money shall be drawn from the Treasury, but in

Consequence of Appropriations made by Law; and a regular

Statement and Account of the Receipts and Expenditures of

all--

Not just some, all--

public Money shall be published from time to time.

Better ponder that bit of verbiage before we get in too big a hurry here.

We will have some opportunities to talk further about this amendment. In sitting down, let me again pay homage to my friend, a public servant whom I long have admired, and this fine lady. I tell you, she is a stalwart. But God save the Constitution. God save it. Let's don't be in too big a hurry. Take a little more time and do it right.

I yield the floor.

Madam President, I have no intention of belaboring this today. I understand we are going to vote next week, on Monday at 3. I hope we will have an opportunity to debate this further on Monday.

The distinguished Senator, Ms. Collins, has said: What more do we need? What other witnesses do we need to hear? Let me name some witnesses who are represented by the distinguished Henry Kissinger when he appeared before the Appropriations Committee. What an impressive bipartisan array of national security experts pleading with Congress not to rush these reforms. The list is a list of stars from both sides of the aisle, as it were: David Boren, Bill Bradley, Frank Carlucci, William Cohen, Robert Gates, John Hamre, Gary Hart, Sam Nunn, Warren Rudman, George Shultz, as I have already mentioned, Henry Kissinger.

These men from both sides, both political parties, men who have held preeminent positions in this Government, Republicans and Democrats, appeared before the Appropriations Committee and said: Wait, don't act in too great a hurry. They have decades of knowledge and experience, and yet we stand ready to dismiss their concerns out of hand.

Let us not be rushed into this. I am not opposed to a national intelligence director. I am not opposed to that. Elections are a perfect time for a debate but a terrible time for decisionmaking. When it comes to intelligence reform, Americans should not settle for adjustments that are driven by the calendar instead of by common sense. They deserve a thoughtful, comprehensive approach to these critical issues.

I am not saying the distinguished members of that committee were not thoughtful. They were. But if, as seems likely, Congress considers it is essential to act now on certain structural reforms, we believe it has an obligation--I do--to return to this issue early next year in the 109th Congress to address these issues more comprehensively. It would seem to me that--let me say again--such a list, a list of stars, as former members of the Government are concerned: David Boren, Bill Bradley, Frank Carlucci, William Cohen--so you see, we have former Secretaries of Defense here--Roberts Gates, John Hamre, Gary Hart, Henry Kissinger, Sam Nunn, Warren Rudman, and George Shultz. These luminaries are asking for more time. These witnesses testified before the Appropriations Committee, and all of them said: Go slow; go slow.

Let me tell you who these people are.

Dr. John Hamre is the CEO at the Center for Strategic and International Studies. The others have services and titles that speak for themselves. I will not go into these. But I am simply saying we need to talk some more about this next week. I hope we will ponder carefully. I am not opposed to a national intelligence director, but I simply say we should have more time.

We saw, Madam President, the unwisdom of being in a hurry when it came to the invasion of Iraq. Our Government invaded. It won a short war, but it had not given proper thought to what would come after, had not given proper thought, it had not planned properly and carefully for a postwar Iraq. And now look at what is happening. Look at the terrible cost, the terrible price this Government is paying--paying with the blood of the sons and daughters of our country. Think of it.

Let's don't be in such a big hurry. Let's take more time.

Madam President, I shall have more to say at a later time. I thank the Chair, and I yield the floor.

Madam President, will the distinguished Senator yield?

Plato thanked the gods for having been born a man. He thanked the gods for having been born

a Greek. He thanked the gods for having let him live in the same age as Sophocles. And so I thank the benign hand of destiny for allowing me to live at a time and to serve at a time when the great Appropriations Committee of the Senate was chaired by the very distinguished Senator from the great State that is the mother of Presidents, the State of Virginia, a state from which comes the first President of this country, the first Commander in Chief of the Nation, George Washington.

I have always admired Senator Warner. He is a gentleman, first of all, and that goes a long way in this body. I thank him for his comments. I thank him for his cosponsorship of this amendment, and I look forward to what he has to say.

Right now, I should go to the Hart Building, where a woman who has been my wife for 67 years, 4 months, and 2 days, is waiting to see me. We are going to have lunch together, thank the Good Lord. So if all Senators will allow me to leave the Chamber now, I shall go.

If the Senator will yield, I thank him for his magnificent encomium to my better half, a woman who has guided me and who has served her country and her State so well. I thank the Senator for what he has just said.

Amendment No. 3877

Mr. President, I call up amendment No. 537.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, I rise to offer a substitute amendment to S. 113, the Kyl-Schumer FISA bill. I ask you to bear with me because the explanation goes on for a while.

I am also pleased that Senator Rockefeller, the ranking member on the Intelligence Committee, and Senator Leahy, the ranking member of the Judiciary Committee, are cosponsors of this amendment. I am pleased to also acknowledge that Senators Dodd, Edwards, Feingold, Boxer, and Wyden are also cosponsors of the amendment.

Let me try to briefly describe the difference between current law, S. 113, and my amendment.

S. 113 is the Kyl-Schumer FISA amendment. First, the Kyl-Schumer amendment only applies to non-U.S. persons. I want to make clear that it does not cover green card holders under that amendment.

Under current law, the FISA court may only grant a FISA application against a non-U.S. person if the Government can show probable cause that the target is working on behalf of a foreign power or a terrorist group. The Government also has to certify that it is seeking foreign intelligence information that can't be obtained by any other means.

As I understand the Kyl-Schumer bill, it drops a primary requirement for FISA warrants; that is, the individual or the target be agents of a foreign power. Under Kyl-Schumer, this prerequisite is gone. That is what the so-called lone wolf deals with.

This would then give the FISA court no discretion to deny applications for FISA orders against a true so-called lone wolf. These are alleged international terrorists operating completely on their own. This is confusing. In other words, current law gives the FISA court no discretion to grant FISA orders in closed cases. But S. 113--Kyl- Schumer--gives judges no discretion to deny FISA the FISA court application in closed cases. Both of these circumstances raise certain problems.

My amendment is essentially a compromise. It grants the court a presumption. So the FISA court may presume that a target is an agent of a foreign power, or the court may choose not to invoke that presumption. The bottom line is the court is given some discretion.

In other words, the court may choose to grant a FISA order despite a lack of evidence that a target is working on behalf of a foreign power. Similarly, the court may choose to deny an order against a true lone wolf. It is up to the court.Federal judges in title III criminal cases have similar discretion. Although the standard there is about whether the Government can show probable cause that a person has committed a crime or will commit a crime, that is a very different standard than under FISA. Federal judges have not abused that discretion and, in fact, in rare cases have been able to act as a check on the Government to prevent overreaching and abuse.

Why do the sponsors of S. 113 show less trust for FISA judges in the FISA content? In fact, such trust is even more warranted in the FISA content. Not only is the FISA process secret and hard to keep accountable, but the FISA court has only denied one FISA application in its 25-year history.

Such a lack of trust is even less necessary given the fact that even if the Government is unable to get a FISA order against a target, it remains completely free to use all the tools of the criminal process under title III to get search and wiretap orders against the target.

The bottom line is, our amendment preserves FISA's agent-of-a- foreign-power requirement without jeopardizing our security. Our amendment allows the Government to get FISA orders against suspected international terrorists even in close cases where the Government cannot show the target is working on behalf of a foreign power or terrorist group. However, unlike S. 113, the amendment also ensures the FISA court is more than a rubberstamp and has discretion to deny a FISA application if the Government overreaches by attempting to use FISA authority.

I now would like to discuss the issue in somewhat greater detail.

Mr. President, at times of crisis, it is possible the Government can overreach in both legislative and executive decisionmaking with respect to our criminal and intelligence laws. That can have unfortunate consequences for both our security and individual rights.

The Foreign Intelligence Surveillance Act, or FISA, was passed in 1978. It was the first statute ever passed in

the United States to provide a statutory procedure for the authorization of clandestine activities of our Government to obtain foreign intelligence.

Before it passed, then-Attorney General Griffin Bell testified in favor of the bill before Congress. He noted the ``delicate balance'' that needed to be struck between ``adequate intelligence to guarantee our Nation's security on the one hand and preservation of basic human rights on the other.''

He stated:

In my view this bill strikes the balance, sacrifices

neither our security nor our civil liberties, and assures

that the abuses of the past will remain in the past. . . .

Now, what does he mean by ``abuses of the past''? Decades earlier, America saw what happened in World War II with Japanese Americans who were removed from their homes, their businesses, and their schools, and placed in interment camps in violation of their rights. We do not want that to happen ever again in this country.

I am not saying this is an identically similar situation. I am concerned, however, about zealousness and overreach because now we are engaged in a global war on terror. In conducting this war, we must be careful that we not overreach when the temptations are so great.

This kind of war is unprecedented for the United States. It is unprecedented and unbelievable that anybody could fly four big planes, three into buildings, and kill 3,000 people. This is beyond our ken. America and Americans want to protect our homeland and our individuals, notwithstanding this is an entirely secret process and, as such, the laws that govern it must be balanced, must be carefully crafted, and must prevent it, lest someone use them to overreach. It has happened in the past, so you can assume it could well happen in the future. This is especially true, as I said, with FISA.

I supported reporting S. 113, the Kyl-Schumer FISA bill we are debating, in the Judiciary Committee. I agree with my colleagues--there is a clear problem here, needing a solution; namely, the potential difficulty the Government may have in obtaining FISA orders against certain international terrorist so-called ``lone wolves.'' These are people who have no affiliation with a terrorist group, no affiliation as an agent of a foreign power.

Under FISA, a ``foreign power'' is simply defined as ``two people conspiring,'' so it is a very easy goal and target. A problem arises in cases where the Government knows of a foreign individual who may be involved in terrorism but cannot yet prove a connection to foreign groups or governments. This problem stems from the proof requirement under FISA in current law.

To get a FISA order against a foreign visitor to the United States under current law, the Government needs to show two key things:

First, that the individual is a foreign power or an agent of a foreign power. Again, that is defined as two people working together. A foreign power could be a foreign government or an international terrorist group as defined.

And second, that it is seeking ``foreign intelligence information'' that cannot be obtained by other means.

This symbolizes the very purpose of FISA: to gather foreign intelligence. Criminal courts are for criminal cases, and the FISA court was set up specially to deal with cases where the Government wishes to obtain information or intelligence about the activities of foreign powers.

The problem is this: Under this current standard, it may well be difficult for the Government to meet the foreign power requirement if the Government does not yet have enough evidence of a connection to a foreign group, entity, or power. Some have described this problem as the ``false lone wolf'' problem, where you have an individual who may appear at first to be operating as a ``lone wolf,'' even though that individual is really an agent of a larger group.

That was one of the alleged problems with the pre-September 11 investigation into Zacarias Moussaoui. The FBI did not learn until after September 11 that Moussaoui had links to al-Qaida and may have been the intended 20th hijacker.

As a result, the Government may have been reluctant to request a FISA warrant because they did not think the intelligence they had could connect Moussaoui to an international group or government.

So there is no question in my mind that we need to amend FISA to fix this problem. And I applaud my colleagues, Senators Kyl and Schumer, for working so diligently to solve it. But the Kyl-Schumer bill also redefines ``agent of a foreign power'' to include any non-U.S. individual preparing to engage in international terrorism. In other words, it essentially eliminates the foreign power requirement altogether.

This change would allow the Government to get a FISA search or wiretap order against any foreign individual in the United States who is preparing to engage in international terrorism, regardless of whether the person is really an agent of a foreign government or terror group, and regardless of whether there is any potential to gather foreign intelligence.

Again, it is this foreign intelligence component that defines the very purpose of FISA. As a result, I believe this change goes too far.

Under S. 113, for the first time ever, the Government will be able to use FISA against any non-U.S. citizen preparing to engage in international terrorism--even individuals whom the Government knows have no connection at all to anyone else engaged in international terrorism.

There would be no check at all on the Government's use of FISA against many common criminals who just happen to be noncitizens and, therefore, the Government might be able to use this secret FISA court to obtain warrants that: (A) are easier to get; (B) last longer; and (C) are less subject to normal judicial scrutiny than criminal warrants under title III or regular criminal statutes.

FISA wiretap orders, for instance, are good for 4 times longer than normal criminal warrants--120 days versus 30 days--giving the Government a clear incentive to use this process even against common criminals. These orders can be reauthorized indefinitely each year for 1-year periods. The same is true for physical search orders under FISA, although these are good for 90 days, and 1-year extensions are subject to the requirement in current law that the judge find ``probable cause to believe that no property of any United States person will be acquired during the period.''

Under FISA, as modified by S. 113, the Government must show by probable cause only that a foreign national is engaged in international terrorism or preparation thereof. You might listen to that and you might think: What is wrong with that? We all want that. I want it, too. But in many instances, this probable cause standard will be easier to meet than the traditional criminal probable cause standard.

For example, for a title III wiretap, the Government must show that there is probable cause to believe an individual is about to commit or has committed an enumerated crime. To get a search order, the Government must show probable cause that the search will result in the discovery of offending items connected with the criminal activity. However, under S. 113, the Government need only show probable cause that the person is engaging in ``activities in preparation'' for international terrorism. Many ``activities in preparation'' for international terrorism are not crimes.

For example, a foreign visitor who bought a one-way airline ticket and a box cutter would arguably qualify as a person engaging in activities in preparation for international terrorism, even in the absence of other evidence that he or she might be an international terrorist.

However, these two activities, taken alone, would clearly not demonstrate probable cause that the person would commit a crime. These activities may be entirely innocent. As a result--and I don't believe this is anyone's intent--S. 113 could easily serve as a clarion call to all aggressive prosecutors who want to listen in on or search the homes of targets of investigation without ever having to prove that any crime may be committed or that foreign intelligence may be gathered.

By allowing FISA to be used against all solo suspected international terrorists, S. 113 runs counter to the whole purpose of FISA, which is to allow the Government to get foreign intelligence by searching and wiretapping people

working for other countries and groups against U.S. interests.

S. 113 essentially eliminates any discretion the FISA court has to turn down a case--this is my big problem with it--thus enabling the Government to overreach. I am not saying that it will overreach. But because it is a secret process, the laws we pass have to prevent that overreach.

By nullifying the requirement that the target of an investigation has some connection, any connection, to a foreign entity or government, this legislation essentially makes the FISA court a rubberstamp. The court will be required to grant a FISA order, even if there is no probable cause to indicate a connection to a foreign power; indeed, even if there is clear evidence that the individual is operating completely on their own. In fact, even if the Government admits that the terrorist is operating alone and that there is no foreign intelligence to be gathered, the FISA court must still grant the order under S. 113.

That is not what FISA is meant to be. Put simply: The legislation goes too far.

Let me be clear: We who are sponsoring this amendment are not trying to protect international terrorists, and our amendment does nothing to protect them. The vast resources of the Federal Government and the powerful tools of the criminal process remain available to target and investigate any terrorist against whom the Government is unable to get a FISA order.

What our amendment will do is retain the original purpose of FISA-- the seeking of foreign intelligence. S. 113 would not.

Our amendment is simple. Rather than simply eliminating the foreign power requirement altogether, our amendment would allow the FISA court judge to presume that a foreign terrorist is also an agent of a foreign power, even if there is no evidence supporting that presumption. On the other hand, under our amendment, the FISA court could also refuse to presume this connection in troubling cases of Government overreach. Thus, a FISA court judge would have some discretion.

What does this mean? In the Moussaoui case, for instance, even though the Government did not yet have evidence that Moussaoui was acting as an agent of a foreign power, both our amendment and S. 113 would allow the Government to get a warrant. The only difference is that our amendment would allow the judge to carefully look at the case and, if the court determined Moussaoui was clearly acting alone, the warrant could be denied.

I know some will argue that this casts too much doubt upon the outcome of cases and that, as a result, FISA orders will be too hard to obtain. But in most cases, if you think about it, the outcome will be exactly the same, whether under our amendment or the underlying bill.

Others may argue that this amendment might give liberal judges too much power to deny FISA orders in every case or, as Senator Schumer put it today, ``inject gray into the statute.'' But in reality, I believe these judges should have some discretion. This is an entirely secret process. By providing this presumption, we give judges that discretion. That is, in fact, a good thing.

Liberal judges can always find ways to deny a FISA order, even under S. 113, if they are determined to do so. For instance, a judge could simply decide there is no probable cause showing that an individual is engaged in international terrorism. That is a requirement in both S. 113 and our amendment.

The bottom line is that we can and should preserve the foreign power requirement of FISA without jeopardizing our security. Under either approach, the Government will be able to get FISA orders against international terrorists, even if the Government cannot meet the foreign power requirement.

Bottom line, again: The only difference between the two approaches is that our amendment preserves some limited discretion so the FISA court could stop the Government from overreaching against those individuals who have no connection to a foreign conspiracy. Let me say, if they have no connection to a foreign conspiracy, you can get the title III criminal warrant.

I urge my colleagues to support the amendment and, therefore, support the underlying purposes of FISA.

I yield the floor.

I yield such time as the Senator from Vermont, the ranking member of the Judiciary Committee, requires.

I am happy to yield as much time as the Senator requires.

Mr. President, I thank the distinguished Senator from Arizona for his personal comments. He knows I have thoroughly enjoyed working with him. It is unusual--as a matter of fact, I cannot remember in all these years when we have ever been on opposite sides of one of these questions.

Let me state to the Senator my great fear. We all forget beneath the surface this Government has tremendous power. When that power is exercised against a person in this country, alone as a visitor, has no rights, it is enormous what can happen. What my deep concern is that overzealous prosecutors will use this where they should use title III and get a criminal warrant instead of a FISA warrant because of the removal of the agent of the foreign power. We keep the connection with the basics of the FISA statute which is surveillance related to an agent of the foreign power. We keep that. That is the justification for FISA. We give the judge the ability to make that as a presumption-- ergo, giving the judge some discretion not to make it, and therefore the individual seeks the warrant--an FBI agent or whoever it is--goes to title III and gets a criminal warrant.

Once you get a FISA warrant, the benefits from the law enforcement side of the FISA warrant are much greater than the title III warrant.

It is a small protection. I don't believe, in my heart of hearts--and if this were to pass and the Senator from Arizona showed me that it did in any way prevent the FISA court from exercising its discretion just as you want it to, I will change it. I would be the first one to come back.

It prevents this misuse of a prosecutor who should be getting a title III warrant, who will come to the FISA court instead because the FISA court will be a rubberstamp, and because myself, a visiting Indian, Pakistani, Muslim, Frenchman, Italian, anybody in Los Angeles who happens to have in their pocket a one-way ticket and maybe a pocket knife--a box cutter may be out of date--and somebody has a suspicion, they do not have to prove anything. And they can surveil me, they can wiretap me, they can exert all of the surveillance powers that are used under FISA. They do not know whether I am going to commit a criminal act and they have no evidence of anything else. That is what title III is for. Title III has a little heavier cause burden, but as the Senator said, there is probable cause in both.

But the benefits of the FISA warrant are superior to the benefits of the title III warrant in their duration. So you can do all this to somebody for 90 days instead of 30 days and you do not have to come back and renew the warrant once every year. That is my concern.

As I read your legislation, there is no discretion. That is the problem I have with it. This is such a slight change, it is kind of a little tweak that a judge can say, hey, now, let's wait and see what you are doing here.

If the Senator would like to respond, I am happy to yield.

The presumption would be that the target or the individual would be an agent of a foreign power. Otherwise, you could have this against the Unabomber, Oklahoma City. Of course, they are American citizens, so I understand that does not apply, but that same kind of situation.

What I don't understand is why you do not want to give the judge that small bit of discretion with a presumption. The judge can presume it. We both know the history and the history is 100 percent if you include the appeal of FISA judges in granting warrants. So there will not be a problem there.

I am concerned about the overreach. I am concerned about the misuse. And the only way we could figure to counter that was to keep the agent a foreign power, provide this presumption that a judge could use in that one case.

Senator, neither you nor Senator Feingold nor I would ever know if there was an overreach. That is what makes this far more dangerous, the fact that it is so secret.

I will yield time, Mr. President, and I will be very happy to have Senator Feingold in this.

I think this is really the kind of discussion that we should be having. I welcome the free flow.

If I knew a better way of solving the problem Senator Kyl mentioned, I would do it. But my view and what Intelligence staff and others have said to me is that the way it is worded creates a rubberstamp out of a FISA judge, once you take out that agent of a foreign power connection. I guess the reason they believe that is that it puts them into the other side, the title III side.

If I could think of another way, I would. But it is one added guarantee against an overreach. You and I have both known zealous prosecutors. You and I have both known people who would misuse this. The question comes, How do we prevent misuse from happening?

I am happy to yield to Senator Feingold.

Mr. President, I suggest the absence of a quorum. I know Senator Rockefeller is on his way.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Through the Chair, I think we can yield back the remainder of our time, I say to the Senator, and hold the vote, if everybody so desires.

I ask for the yeas and nays.