Combating Money Laundering and Terrorist Financing Act of 2006

Mr. President, I rise today to introduce legislation to reform and strengthen the national security review process for foreign investments in the United States. I am very pleased to be joined by three of my colleagues--Senator Lieberman, Senator Coleman, and Senator Akaka--in introducing this legislation.

In a global economy, foreign investment in this country is becoming increasingly common. The national security and homeland security implications of those investments must be

scrutinized by the departments with responsibility for those critical matters.

The controversy over the Dubai ports transaction has exposed serious flaws and shortcomings in the current law and process that is used to review foreign investments in our country.

In 1988, Congress passed the Exon-Florio provision of the Defense Production Act to get the President the authority to suspend or prohibit any foreign acquisition, merger, or takeover of a U.S. corporation that is determined to threaten our national security.

Through an Executive order, the President gave a new committee--known as the Committee on Foreign Investment in the United States, often referred to as CFIUS--the responsibility of reviewing transactions pursuant to the Exon-Florio law and to make recommendations to the President.

The law is something of an anachronism because of what it doesn't say. It focuses on acquisitions of American companies that are either important to our military industrial base or have technology that could help a terrorist state develop weapons of mass destruction. Obviously, both of those concerns are very important. We do want to preserve our military industrial base, and we do want to safeguard technology that could help terrorists or anyone else develop weapons of mass destruction. But neither of those transactions or those requirements address transactions that could assist terrorists in threatening our security right here at home.

Obviously, there are other ways for terrorists to undermine our security that might be completely separate from the military industrial base issues or the technological issues related to weapons of mass destruction. In other words, the law is simply too narrow in its application. The current CFIUS process is not designed to analyze transactions that involve a port terminal or other critical infrastructures within our borders.

The Government Accountability Office, in a report issued last September, found that the Exon-Florio law's effectiveness in protecting U.S. national security may be limited--limited because the Department of Treasury, as the chairman of the Committee on Foreign Investment in the United States, narrowly defines what constitutes a threat to our national security. The Committee on Foreign Investment in the United States, CFIUS, focuses too much on the financial component and not enough on security.

I think that is what many of us concluded happened in the review of the Dubai ports transaction. The focus was on investment, needed investment in our ports, rather than being focused on the national security or homeland security implications that could possibly arise from that transaction. The committee is supposed to identify transactions that could affect our national security. It doesn't say ``harm'' our national security; it says ``affect'' our national security. That is supposed to be sufficient to trigger a full 45-day investigation. But, unfortunately, that is not initially what happened with the proposed Dubai ports transaction.

I would like to draw the attention of my colleagues to a broader issue, and that is the composition of CFIUS. Remember, this is supposed to be a national security review, but who chairs the committee? Not the Department of Homeland Security, not the Department of Defense, not the Department of Justice. The committee is chaired by the Department of the Treasury, and chairing this committee is meaningful because the chairman's interpretation of the law, including the provision that makes a 45-day investigation mandatory in the case of foreign government control to entities that could affect national security, tends to govern. In other words, what the chairman decides in interpreting whether the 45-day investigation is triggered tends to be what happens.

I suggest to you, and to my colleagues that the system is fundamentally flawed if it has the Secretary of Treasury, no matter how capable and well qualified he is--and I believe he is all of those things--chair a committee that is supposed to be looking at national security. Thus, I believe the CFIUS process has been weighed too much toward investment considerations and not sufficiently attentive to the national security and homeland security implications. Indeed, the GAO found that Treasury is ``reluctant to initiate investigations to determine whether national security concerns require a recommendation for possible Presidential action.'' That is what GAO found, and that certainly seems to be an accurate finding.

These are concerns which we simply cannot tolerate given today's threat environment, and that is why I am introducing legislation to abolish the CFIUS process and to create a new interagency, interdepartmental mechanism chaired by the Department of Homeland Security to analyze transactions for both their homeland security and national security implications. Our bill is designed to fix the process through the following changes:

First, the bill would establish a new committee, the Committee for Secure Commerce, to replace the old CFIUS. The Committee for Secure Commerce would be chaired by the Secretary of Homeland Security, and the Secretary of Defense would serve as the vice chairman. The Director of National Intelligence would be specifically designated as a standing member of the committee in order to ensure that important intelligence information is part of the deliberative process. The Department of Treasury will still be represented on the committee, but with respect to the other members, the President shall name the appropriate agencies and departments to sit on the committee. This is an important change because it helps ensure that the focus will, indeed, be national homeland security, and it corrects what I believe to be a major shortcoming in the composition of the current committee, and that is that the intelligence community is not represented. That is extraordinary, given the purpose of this committee.

Second, the bill would explicitly include homeland security among the factors the committee would evaluate in deciding whether to review or investigate a transaction.

Third, the Secretary of Homeland Security would establish a process by which the committee reviews transactions and would establish the role and responsibility of each member.

In addition, each member would establish the process and procedure by which each respective agency would conduct its review, sharing that with the other committee members. It is important that committee members each have a general understanding of the scrutiny being applied to a transaction both within their own agencies and across the government. Such understanding was not apparent in the current CFIUS process.

Should a transaction warrant an investigation, the bill would require the Director of National Intelligence to consolidate intelligence assessments.

Lastly, this legislation would strengthen the reporting requirements to Congress. The existing process lacks transparency and does not allow sufficient oversight. It may be appropriate for the reviews, which may involve proprietary data and classified information, to be conducted confidentially. However, it is wholly appropriate that Members of Congress be briefed in a timely manner.

The bill would also address the so-called Byrd amendment loophole, requiring an investigation where the entity would be controlled by a foreign-government. In looking at the plain language of the existing statute, a 45-day investigation should have taken place in the Dubai Ports World purchase of Peninsular & Oriental Steam Navigation Company. However, the Treasury Department interpretation of the statute for nearly 15 years has been contrary to congressional intent, and thus, Treasury found there was no need for the 45-day investigation. That so- called ambiguity has been clarified in our bill. The law requires a 45- day investigation in cases where an acquirer is controlled by a foreign government, as in the case of DP World, and the acquisition could affect the national security of the U.S.

It is important that Congress take action to reform the review process for foreign investment in the U.S. This bill provides a new structure, appropriately focused on national security and homeland security. I seek my colleagues support in moving this legislation forward.

The Dubai ports controversy may have temporarily or perhaps permanently been set aside, but that does not mean we should abandon the efforts to reform and strengthen the law to ensure a proper review of foreign transactions.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise to speak in support of a bill that I am introducing today, the Combating Money Laundering and Terrorist Financing Act of 2006.

I first introduced the Combating Money Laundering and Terrorist Financing Act in 2003 to address what I saw as a significant threat to the security of our Nation. Money laundering is an issue of profound importance to our national security because it undermines financial stability by infiltrating and using legitimate financial institutions to hide the illegitimate source of these funds. Money laundering also affects our national security simply because money is the motivating factor for so much of the criminal activities that affect our daily lives, from shoplifting and petty theft to drug trafficking and multi- million dollar stock frauds.

We also know that money laundering is a key tool for terrorist groups because it fuels their ability to spread murder, fear and destruction throughout the world. One of the 9/11 Commission Report recommendations stated that, ``Vigorous efforts to track terrorist financing must remain front and center in the U.S. counter-terrorism efforts.'' The Commission expressed its concerns about terrorist financing and ``the need to crack down on terrorist organizations and curtail their funding.'' I strongly share the Commission's concerns and support their recommendations that they provided in their final report.

However, I am very concerned about the 9/11 Commission's Final Report Card, released on December 5, 2005, which gave the U.S. Government an A- for our ``vigorous efforts against terror financing.'' After the release of the 9/11 Commission Report and nearly 4 years after the terrorist attacks on the World Trade Center and the Pentagon, our Government is still too ill-equipped and fraught with in-fighting to rate an A- for its efforts. While we have made significant strides in identifying the methods used to earn, store and move this money, we are still far behind the curve on shutting down the flow of illicit financing permanently.

Billions of dollars continue to be funneled to terrorist and criminal organizations after being laundered for these organizations around the world. Therefore, we must continue to increase the pressure we put on these organizations until we reach the point where their ever-changing money laundering methods are no longer convenient, profitable or effective.

The legislation I am introducing today includes several provisions that will strengthen our current money laundering laws by streamlining a number of statutes, clarifying language in the current law and closing loopholes that are often exploited by criminal organizations. As our new anti-money laundering laws have proven to be effective and make money laundering through traditional financial institutions more difficult, criminals are

forced to shift methods to launder their illegally gained funds. As these criminals change their tactics, so must we. Allow me to tell you about some of the key changes that this bill includes to meet these challenges.

To begin with, under current law there are over 200 ``specified unlawful activities'' or ``SUA's'' that serve as predicate offenses for money laundering charges. As criminals continue to alter their methods of laundering illegal funds, this list of required ``SUA's'' is sure to grow. My legislation will eliminate the need to continually update the statutes by consolidating the growing list of ``specified unlawful activities'' to include all offenses punishable by imprisonment for more than 1 year. This legislation also recognizes the global aspect of money laundering by including foreign offenses that would be illegal money laundering offenses had they occurred within U.S. jurisdiction.

This bill also simplifies current law by allowing the government to charge money laundering acts as a ``course of conduct.'' Currently, in most circuits, courts are required to charge each money laundering transaction as a separate count. This legislation allows, but does not require, courts to charge a series of money laundering offenses as a ``course of conduct.'' This change would reduce the time and expense currently incurred by courts that are required to charge and prosecute each separate violation of the money laundering laws.

As new laws have made money laundering through traditional financial institutions more difficult, criminals are turning to riskier methods of moving their money. One growing area is bulk cash smuggling, and as such, this bill increases the penalty for bulk cash smuggling to 10 years.

In addition, many ``money service businesses,'' or ``MSB's'' have also come under increased scrutiny because of their suspected role in moving funds from the United States to terrorist organizations throughout the world. Another provision of my legislation amends Section 373 of the USA PATRIOT Act regarding money service businesses to read ``illegal'' instead of ``unlicensed'' to ensure that the law covers any money service business that promotes unlawful activity as a course of business.

Another money laundering technique is for couriers to carry checks that are complete except for the dollar amount. Under this approach the couriers attempt to avoid U.S. Customs reporting requirements through the movement of monetary instruments that are in bearer form and are worth over $10,000. Even though the blank checks are in bearer form, they argue that the value being left blank is not over $10,000 and does not need to be reported. Once they and the blank check reach their destination, all they need to do is to fill in the amount, whatever that may be, and have it negotiated. This legislation removes any confusion as to whether this act is a violation of the reporting requirement. This bill would resolve this issue by clarifying that a check in bearer form, with an amount left blank shall be deemed to have a value equal to the highest amount in the bank account that it is drawn upon while the check was being transported, or when the blank check is cashed or intended to be cashed.

My legislation eliminates confusion or ambiguity about the definition of ``commingled funds,'' and structured transactions. ``Commingling of funds'' is a method often used by criminals to disguise illegal money from legal money by mixing the funds together in one account. ``Structured transactions'' is a method used to circumvent our monetary transaction reporting requirements by breaking monetary transactions into several smaller dollar amounts so as to avoid a Government reporting requirement if the transaction had been only one transaction with a value over $10,000. Plus, this legislation clarifies extraterritorial jurisdiction to include money laundering acts that have an effect in the United States.

Often, money couriers are intercepted before they reach the collection point but are released because they claim that they didn't know that the money was derived illegally. My bill ensures that the courier can no longer be released from responsibility in the money laundering chain by claiming ignorance about how the money was derived, which means the law enforcement agency can get both the courier and the money off the street.

Finally, this bill updates counterfeiting statutes to keep them current with new technology and devices, such as holograms, that are used to produce counterfeits of U.S. obligations and securities.

The battle against terrorism and organized criminal groups must be fought on many fronts--including the financial front. We know that we have made strides in this area as evidenced by the money launderers' use of different techniques. As important as it is to learn what techniques these criminals use, it is just as important to act upon this knowledge. If we can shut down the flow of illegal money, whether generated by drug sales or in support of terrorist activities, I believe we will make a significant impact on the demise of these criminal and terrorist groups. This bill is important to identifying particular criminal and terrorist financing operations and putting them out of business. I urge my colleagues to support my legislation and strengthen our national efforts against the continued threat of terrorist financing and financial crimes.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I ask unanimous consent that the text of a bill introduced by me today that may be cited as the ``Alternative Energy Extender Act'' be printed in the Record.

Mr. President, I am pleased to join Senator Collins and Senator Lieberman in introducing a bill to transfer the authority of reviewing foreign investment in the United States to the Department of Homeland Security and to impose additional structure and increase congressional oversight on the review process. There has been a failure in Government procedure that must be corrected, and this legislation will address those procedural failures.

I am concerned that our process to review acquisitions, mergers or takeovers of U.S. corporations by foreign entities that ``may'' pose a national security threat, did not trigger the Committee on Foreign Investment in the United States, CFIUS, to conduct a more thorough review. While the United Arab Emirates has supported the United States in the war against terrorism, its past activities related to terrorist groups should have triggered CFIUS to conduct a more thorough review.

More specifically, the act states that if there is an acquisition, merger, or takeover of a U.S. corporation by a foreign entity, then CFIUS, an interagency committee chaired by the Secretary of Treasury, reviews the deal to ascertain if there is any threat to our national security. In addition, in accordance with Section 837(a) of the National Defense Authorization Act for fiscal year 1993, called the Byrd amendment, amended Section 721 of the Defense Production Act, the Exon-Florio provision, a more extensive review should have been conducted on the Dubai Ports World deal, especially since certain members of CFIUS did have national security concerns about the acquisition.

Given the questionable interpretation by CFIUS on the Byrd amendment, I believe it is important for Congress to revisit the act and clarify the provisions that require CFIUS to conduct a thorough review of foreign acquisitions, mergers, and takeovers.

Our legislation removes any ambiguity by specifically requiring an investigation any time a foreign government-owned corporation is involved in a transaction. As ranking member on the Oversight of Government Management Subcommittee, it is my responsibility to evaluate governmental processes and develop solutions that ensure our national and homeland security while maintaining the favorable promotion of foreign investments in the United States.

I was pleased to work with Senator Collins and Senator Lieberman, chairman and ranking member of the Homeland Security and Government Affairs Committee, respectively, on drafting the legislation to address these process shortcomings, which will promote reasonable transparency and oversight within the foreign investment review process. The security of U.S. ports is of great concern to me because my home State of Hawaii receives 98 percent of its imports via sea-based transportation.

Given the national and homeland security implications of the proposed DP World takeover, I believe it is absolutely necessary for Congress to ensure that the executive branch performs a rigorous review of the transaction. Our bill ensures that Congress is informed of pending investigations that may impact national or homeland security prior to the President making a decision whether to disapprove the transaction. I believe that additional intelligence community resources should have been drawn upon before the President made his determination to support the transaction. There should have been a consolidated intelligence assessment, and this report should have been provided to all senior members of the review committee. The bill we introduce today requires consolidated intelligence assessments to be developed by the Director of National Intelligence and provided to all review committee members, thereby ensuring that all members are sufficiently informed.

I was also disturbed that two of the reviewing Departments--the Departments of Defense and Homeland Security--do not currently have internal written instructions on their review processes. How do we know that adequate reviews of foreign investment in the United States are being conducted by these two critical CFIUS members if a systematic and documented process, subject to audit, does not exist? Our legislation requires the development and documentation of internal procedures to ensure that all reviewing members use a standardized process while conducting their review of foreign investment proposals.

Mr. President, I am pleased that Dubai Ports World is attempting to address the concerns of the American public. However, this problem is bigger than just a single transaction, which is why we are introducing this legislation today. I am honored to cosponsor, with Senator Collins and Senator Lieberman, this bill which reforms the process of reviewing foreign investment in the United States.

Mr. President, I rise today to speak on behalf of legislation introduced by Senator Collins and myself that would create a new Committee for Secure Commerce at the Department of Homeland Security to review the proposed sale of U.S. properties to foreign investers. This Committee would replace the Committee on Foreign Investments in the United States, whose hasty approval of the Dubai Ports World acquisition of terminals at several U.S. ports led to a public outcry, which eventually led to DPW's withdrawal from the deal.

The entire affair has been poorly handled, from the original failure to conduct a thorough investigation to the failure to consult with and inform the Congress and the American public. Any proposed foreign investment in this country needs a thorough and fair review to ensure that our national security or homeland security is not jeopardized. I was not among those who called for the deal to be prohibited before a thorough investigation was conducted, because I felt that Dubai Ports World never got a chance to make a case that its ownership of port terminals in the U.S. would not jeopardize our homeland security. Because of the initial public outcry, they were condemned before they were allowed to stand trial, and I believed that violated this Nation's commitment to the rule of law. A required 45-day investigation of the deal should have been initiated. Congress should have been better informed of the proposed acquisition in the works. And the American people deserved a clear explanation from their President about why he thought the sale was in our interest.

National security must be the first consideration in the sale of U.S. property to foreign investors, especially at this period in our history, when the threat of terrorist attack is always present. Our legislation would ensure that foreign investments are scrutinized by the agencies most directly responsible for protecting this Nation.

That is the underlying purpose of our legislation.

Our bill would create the Committee for Secure Commerce within the Department of Homeland Security to review and investigate any mergers, acquisitions, or takeovers of assets within the U.S. by foreign companies.

Like CFIUS, the new Committee would have 30 days to conduct a review of transactions, but could also seek a longer, 45-day investigation as well. A 45-day investigation would be obligatory if a company controlled by a foreign government tries to purchase assets involved in U.S. interstate commerce. And if any member of the Committee objected to a proposed deal, the President would have the final say on whether it went forward, or whether a divestiture, or some other remedy, was necessary.

The Committee would be chaired by the Department of Homeland Security. The Defense Department would serve as a vice chair. Our bill also strengthens Congressional oversight by requiring immediate congressional notification of all mandatory investigations, and quarterly reports on all other transactions.

The Senate Committee on Homeland Security and Governmental Affairs received an illuminating briefing on the Dubai Ports World deal late last month. At that briefing, we learned that the Coast Guard had expressed some intelligence concerns about the transaction but that not all CFIUS members were informed of these concerns. Our legislation addresses this shortcoming by adding the Director of National Intelligence as a full member of the committee and ensuring all intelligence assessments are consolidated and shared with all Committee members and the President.

Our legislation is intended to directly address the concerns raised by the Government Accountability Office that CFIUS tended to focus more on investments issues rather than security issues--by placing DHS and DoD in charge, and by specifically including homeland security issues as factors to be considered by the new committee.

The rush to judgment on the DPW deal did not allow the company to stand or fall on its own merits. And

that is not how we do things in America. We do not judge people in our democracy by their race, nationality, religion, gender, sexual orientation, or age. We judge people on their merits.

I believe this legislation would establish a better process for judging the wisdom or folly of selling U.S. property to foreign owners by establishing that the Nation's security should be the pre-eminent consideration in foreign purchases of U.S. property and by ensuring that everyone's concerns about such sales get a fair hearing.

Mr. President, I ask unanimous consent that the text of a bill introduced by me today that may be cited as the ``Alternative Energy Extender Act'' be printed in the Record.