Mr. President, today we vote on the conference report on the intelligence reform bill, S. 2845/H.R. 10. As did the House, we will approve it and send it on to the President for his signature. I strongly believe that our intelligence…
Mr. President, today we vote on the conference report on the intelligence reform bill, S. 2845/H.R. 10. As did the House, we will approve it and send it on to the President for his signature.
I strongly believe that our intelligence community must be reformed and appreciate the hard work in support of that objective of those Senate and House Members who have worked on the problem.
Nonetheless, I have mixed feelings about this legislation. I am neither convinced that it will fix the core problems in our intelligence community, nor that it will do no harm. Particularly in time of war, prudence demands Congress fully understand the consequences, both positive and negative, of its actions, and be cautious about mandatory change. At the same time, there are some positive reforms that can be easily implemented. I note the inclusion in the conference report of a number of much-needed provisions, which will help to ensure we have the legal authorities and resources we need to effectively fight terror. In fact, title VI includes about half of the provisions of the Tools to Fight Terrorism Act, S. 2679, an omnibus antiterrorism bill that I introduced earlier this year with several other members of the Judiciary Committee and Senate leadership.
This is the second time the intelligence reform measure comes before the Senate. We previously considered the Senate version in October, prior to the Presidential election. I voted for it to ensure a modified version could be worked out in conference, and, in the interest of allowing it to move quickly, withdrew an amendment on privacy and civil liberties oversight about which I felt very strongly. I did so with great reservations because of the many deficiencies in the Senate bill, but was assured that my concerns would be addressed in the House-Senate conference. I know that a number of my Senate colleagues voted for the bill with a similar understanding.
Unfortunately, I don't believe that some of the commitments to address Members' concerns were fully honored, and I regret that our vote for the bill was used by Senate conferees to suggest almost unanimous Senate support in order to influence House conferees to support the Senate version. The Senator from Maine said the following on October 20: ``I'm very proud of the fact that the Senate produced a bill that passed with only two dissenting votes, and I hope that we can likewise produce a product from this conference that will be signed into law shortly.'' In retrospect, it would have been better to have voted against the flawed Senate bill so House conferees would have understood that it did not enjoy universal support.
Over the last 2 months, I pressed my case on privacy and civil liberties oversight and other issues with the Members of the conference committee, the White House, and others. I know that some of my colleagues have done the same. I have studied carefully the final product on which we will vote, and, though some changes have been made, I still have serious reservations that I will discuss today.
To summarize: Regarding the central thrust of the bill, reorganization does not necessarily equal reform. This bill does reorganize; but it remains to be seen whether this reorganization will improve or damage the system we currently have in place that gets timely intelligence to our warfighters on the ground. Second, though some changes have been made to the language originally adopted by the Senate, I continue to have serious concerns about the effect of the privacy and civil liberties oversight provisions on the ability of our intelligence officers to perform their missions. I am concerned that the manner in which this oversight will be conducted will exacerbate the problem of risk aversion identified by the 9/11 Commission and the Congressional inquiry on the 9/11 attacks. Third, while I am pleased that some House provisions to reform immigration, as well as a provision I offered as an amendment to the Senate bill, were included in the final conference report, I am very disappointed that we have passed up an opportunity to do more in this area to protect our country.
Fourth, while noting my concerns about the intelligence reorganization portion of this conference report, I do want to recognize the inclusion of some important provisions from my Tools to Fight Terrorism Act.
During the debate on the Senate version of the intelligence reform bill, I discussed in detail the shortcomings of the 9/11 Commission's recommendations, on which that bill and this conference report are based. Former Secretary of Defense James Schlesinger aptly summarized what I believe to be the key problem: ``[The Commission] has . . . proposed a substantial reorganization of the intelligence community-- changes that do not logically flow from the problems that the Commission identified in its narrative.''
A number of former officials also cautioned Congress from acting hastily to pass legislation without a complete understanding of the problems. For example, the Center for Strategic and International Studies released a statement before the original Senate vote on S. 2845, which warned: ``Rushing in with solutions before we understand all of the problems is a recipe for failure.'' The statement was endorsed by: former Senators David Boren, Bill Bradley, Gary Hart, Sam Nunn, and Warren Rudman; former Secretaries of Defense Frank Carlucci and William Cohen; former Deputy Secretary of Defense John Hamre; former Director of Central Intelligence Robert Gates; former Secretary of State and National Security Advisor Henry Kissinger; and former Secretary of State George Shultz.
In recent weeks, the editorial pages of several major papers, while not necessarily sharing the same substantive positions, have strongly urged Congress to begin a new process next year to pursue intelligence reform, rather than rush to pass legislation this year. The Wall Street Journal in a November 22 editorial commented: ``If this reform is really so vital, it will get done, but better to do it in a more considered fashion next year.'' Similarly, in response to Congress not considering the
conference report before Thanksgiving, the Washington Post ran an editorial which stated: ``. . . the legislation's failure strikes us as a benefit. More time and more careful deliberation is needed before such sweeping changes are enacted.'' And the Washington Times ran an editorial on November 30 which advised: ``Intelligence reform is necessary, and reasonable people can disagree on what constitutes a good bill without being insulted. Rather than getting it now, we urge Congress to focus on getting it right.''
I don't believe we can say with reasonable certainty that we are getting it right. In large part, this conference report sets up a new bureaucratic structure. It does not, however, tackle the more difficult issue of resolving cultural problems within the intelligence community, including risk aversion, group think, and a failure of leadership. These problems, along with other matters, like immigration reform and legal tools and resources for fighting terror, all identified by the 9/11 Commission, must be addressed if we are to improve our ability to predict and prevent future terrorist attacks. Indeed, those who say that this bill is needed to prevent another 9/11 can no more guarantee that result than those who advocate the status quo, reason being that neither scenario really gets at the core issues.
Additionally, and as I already mentioned, we should be mindful of the fact that we are making drastic changes to the structure of our intelligence community and the process by which it operates, while our country is fighting a war. I discussed these concerns on the floor of the Senate during the floor debate on S. 2845, the Senate version of the intelligence bill, stating:
In his testimony, Secretary Rumsfeld discussed in detail
his concerns about how intelligence community reorganization
could potentially adversely affect the Defense Department. He
expressed his strong reservations about the national
collection agencies--the NSA, NGA, and NRO--being removed
from the Defense Department (where they are now located) and
aligned under the direct leadership of the National
Intelligence Director. He stated:
``We wouldn't want to place new barriers or filters between
the military Combatant Commanders and those agencies when
they perform as combat support agencies. It would be a major
step to separate these key agencies from the military
Combatant Commanders, which are the major users of such
capabilities.''
The Defense Department worked tirelessly in the decade
after the first Gulf War to ensure that the speed and scope
of intelligence support to military operations would be
improved for future conflicts. It was General Schwartzkopf's
view that the national intelligence support during Desert
Storm was not adequate. Now, as we've seen from the success
of our military operations in Afghanistan, Iraq, and the
broader War on Terror, ``gaps and seams,'' as Secretary
Rumsfeld refers to them, have been drastically reduced.
General Myers, Chairman of the Joint Chiefs of Staff, also
expressed his concerns on the subject during his testimony to
the Senate Armed Services Committee, stating:
``. . . for the warfighter, from the combatant commander
down to the private on patrol, timely, accurate intelligence
is literally a life and death matter every day. . . . As we
move forward, we cannot create any institutional barriers
between intelligence agencies--and of course that would
include the National Security Agency, the National
Geospacial-Intelligence Agency, and the National
Reconnaissance office and the rest of the warfighting team.''
I am concerned that the reorganization package before the
Senate places this effective system in jeopardy.
In S. 2485, the NSA, NGA, and NRO remain within DOD; but
this is somewhat deceiving. These national collection
agencies will also be within the newly defined ``National
Intelligence Program.'' The Committee-reported bill would
essentially remove the Secretary of Defense from any
meaningful management role over these agencies.
First, the National Intelligence Director would have the
authority to appoint the heads of these agencies, albeit with
the concurrence of the Secretary of Defense. What makes this
unusual and potentially problematic? Well, consider the fact
that the Director of the National Security Agency, a General
Officer, is dual-hatted as the Deputy Commander for Network
Attack, Planning, and Integration at Strategic Command, or
that the Director of the National Reconnaissance Office also
serves as an Under Secretary of the Air Force. These
positions truly support the mission of the Defense
Department.
Second, the National Intelligence Director would have the
authority to execute the budgets of these agencies. It is one
thing to say that the NID should manage the entire budget for
the National Intelligence Program, and, therefore, to help
develop agencies' budgets and even receive their
appropriation. It is quite another to altogether remove the
Secretary of Defense from the loop by requiring that the NID
suballocate funding directly back to the agencies. This
effectively removes the Secretary from the management loop.
I have studied the Defense Secretary's testimony to the
Senate Armed Services Committee, as well as the testimony of
other experts. I am also aware that there were some good
amendments in the Committee mark-up to help preserve the
Defense Department's equities. But I am still not convinced
that we are doing no harm. As General Myers commented during
the course of the Senate Armed Services Committee's
discussion on the subject, ``[T]he devil's in the details.''
The chairmen of the House and Senate Armed Services Committees, as well as other Members of the House and Senate, have played a vitally important role in conference negotiations to make sure that intelligence support to our combatant commanders will not be disrupted. They worked tirelessly to see that changes, some of which the Chairman of the Joint Chiefs of Staff said were needed, would be included in the conference report. I applaud their efforts, and appreciate the changes that conferees were willing to make.
Many of the potential defense-related pitfalls of the reorganization that I discussed in the context of the Senate bill have been improved upon. One crucial change is the following provision intended to ensure that the military chain of command is protected: ``The President shall issue guidelines to ensure the effective implementation and execution within the executive branch of the authorities granted to the Director of National Intelligence by this title and the amendments made by this title, in a manner that respects and does not abrogate the statutory responsibilities of the heads of the departments of the United States Government concerning such departments . . .''
Despite the improvements that have been made, and the protections that have been added, I still believe that we simply don't know for sure how the changes we are making will affect the system we currently have in place to support our men and women in uniform. For that reason, we must commit to carefully monitor this legislation's implementation, specifically, the DNI's authority to transfer military personnel within the National Intelligence Program, authority to reprogram and transfer funds, and the role of the DNI in intelligence acquisition programs managed largely by the Defense Department--and be prepared to make changes if necessary.
Perhaps the key concern I have with this conference report is its privacy and civil liberties oversight provisions, which are totally extraneous to any problem related to 9/11 and will exacerbate the cultural problems in the intelligence community, in particular, the problem of risk aversion.
Risk aversion, which plays out not only in the intelligence community, but also in foreign policy decisionmaking, economics, business investments, and so on, is the tendency to avoid action which might be criticized after the fact because of a poor outcome. There are many potential causes a particular action might have adverse, unintended consequences, might get one into trouble with one's superiors, or might simply draw unwanted attention. When an individual or a Government acts, there is always a calculation of risk; but some Governments and some individuals are more willing to take chances than others. This is a product of both leadership and environment. Risk aversion has contributed to numerous intelligence failures, including the September 11 attacks, according to the 9/11 Commission.
One contributor to risk aversion is the belief that third parties, including congressional committees, will challenge decisions after the fact. The Privacy and Civil Liberties Oversight Board included in the Senate bill is just such an institution.
I introduced an amendment to the Senate bill which would have modified the privacy and civil liberties oversight provisions because I strongly believed that the bill would have exacerbated the problem of risk aversion by creating a redundant oversight bureaucracy and an unaccountable oversight Board with inappropriate authority over Government officials and private individuals. The bill went far beyond the recommendation of the 9/11 Commission, which was to create an executive branch board to oversee privacy and civil liberties and advise the
President. The President created such a board through Executive order in August.
In summary, the Senate bill would have established: two officers within the National Intelligence Authority, one responsible for privacy, the other for civil rights and civil liberties; an inspector general within the National Intelligence Authority, who, in part, would monitor and inform the National Intelligence Director of any violations of civil liberties and privacy; an Ombudsman within the National Intelligence Authority to protect against so-called ``politicization'' of intelligence; a Privacy and Civil Liberties Oversight Board with extensive investigative authorities; and privacy and civil liberties officers within the Departments of Justice, Defense, State, Treasury, Health and Human Services, and Homeland Security, the National Intelligence Authority, the Central Intelligence Agency, and any other department, agency, or element of the Executive Branch designated by the Privacy and Civil Liberties Oversight Board to be appropriate for coverage.
While I believe that privacy and civil liberties should be protected, I do not believe that oversight should be conducted in a manner that causes intelligence officers to be more worried about getting into trouble than about performing their missions. The question is whose civil liberties are jeopardized by improvement of our intelligence capabilities? The Taliban? Al-Qaida? Saddam Hussein? Not American citizens. The attacks of 9/11 were not caused by civil liberty deprivation; but by inadequate intelligence and immigration law deficiencies. So why hobble intelligence capabilities because of a perceived problem that has never been identified and was in no way involved in the 9/11 attacks? To the extent there is concern about laws such as the Patriot Act, they can be dealt with in the reauthorization of that Act. Such concerns have nothing to do with intelligence reorganization.
My amendment would have eliminated some of the redundancy, for example, by paring back the number of officers within the office of the National Director of Intelligence responsible for privacy and civil liberties oversight, and altered the power of the Privacy and Civil Liberties Oversight Board by eliminating subpoena authority and the Board's authority to compel executive branch compliance with its requests.
In the interest of allowing the intelligence bill to move forward quickly through the Senate, and noting that the House bill's provisions on the subject were more reasonable, I withdrew this amendment with a verbal understanding that my concerns would be addressed in the House- Senate conference. I pressed my case firmly in writing with the conferees, outlining my concerns and suggesting various ``fixes.''
Some improvements have been made in the conference report. For example, the conference report consolidates the positions within the office of the National Director of Intelligence responsible for privacy and civil liberties oversight into one. But the authorities of the Privacy and Civil Liberties Oversight Board, which was contained in the Senate bill but not in the House bill, remain problematic. Subpoena authority over private individuals, which would have been entirely inappropriate, particularly given the location of the Board in the Executive Office of the President, was removed, and the Board will now be accountable to the President. But the authority to compel executive branch compliance with Board requests remains. And this is the real problem.
Departments and agencies are required to comply with any Board request unless a waiver is exercised by the National Director of Intelligence or the Attorney General. This places an additional burden on two key officials, whose attention should be directed toward other issues, including preventing a future terrorist attack. It also will likely foster an environment in which our intelligence officers are increasingly cautious, or risk averse, about completing the very tasks that are required to fulfill their missions. Just because a Board request to a Department-head does not necessarily rise to the level of reasonably exercising a waiver does not mean that it does not act as a deterrent or a distraction to those serving honorably in the intelligence community.
Consider this example: The International Red Cross complains that terrorists captured in Pakistan are treated poorly and convinces the Civil Liberties Board to investigate. The Board demands that our CIA station chief in Pakistan testify about what he knows. The DNI demurs on grounds of national security, or doesn't. The hue and cry about ``secrecy'' and ``cover-up'' cause the DNI to allow the Board to interrogate the CIA official. Can anyone deny the national security implications, let alone the resulting risk aversion that would settle into the entire intelligence community? It would be disastrous.
I intend to monitor closely the action of this Board once it is put into place to ensure that its investigations and public reporting requirements do not adversely affect our intelligence community, and will urge further limitations on its authority. Fighting terrorists abroad means spying, gathering intelligence. Civil liberties for terrorists should not be high on the list of U.S. reforms for intelligence collection. Again, 9/11 was caused by intelligence failures, not insufficient attention to terrorists' civil rights. A sense of perspective would have eliminated the most egregious features of the conference report.
With regard to the immigration provisions included, or not included, in the final bill, I am pleased that a provision I authored requiring mandatory interviews for non-immigrant visa applicants was retained. I am also pleased that some other immigration reform provisions were included in the conference report, including an authorization for an increase in Border Patrol agents by 2,000 in each of fiscal years 2006- 2010; an increase of Immigration and Customs Enforcement agents by 800 in each of fiscal years 2006-2010; an increase in detention beds by 8,000 in each of fiscal years 2006-2010, with priority for the use of these beds to detain aliens charged with inadmissibility or deportability on security grounds.
I am also pleased that a requirement to develop and implement a plan to require a passport or other document, or combination of documents, sufficient to denote citizenship and identity for all travel into the U.S. by U.S. citizens and nationals from Western Hemisphere countries, for whom such requirements have previously been waived, is included in the conference report. And that a provision requiring a detailed plan from the Department of Homeland Security, within 180 days, about how to accelerate the full implementation of the biometric document requirement of the Border Security Act that Senators Feinstein, Kennedy, Brownback, and I authored, will be included. There are other good provisions.
I am very troubled, however, that many of the important immigration reform provisions included in the House-passed bill were either altered significantly or left out of the conference report. I understand that Members have been assured that such provisions will be considered next year. As the chairman of the Senate Judiciary Subcommittee on Terrorism and a senior member of the Immigration Subcommittee, I have witnessed many times the opportunities for real immigration reform slip through our fingers. This conference measure represents one example.
There is no real substantive reason that these important provisions, which were described as immigration reforms but can also be accurately be described as counterterrorism measures, should not have been included in the final bill. The primary goal of this legislation, is to better enable the U.S. Government to prevent future terrorist attacks like that which occurred on 9/11. Many of the House-passed immigration provisions ultimately excluded from the final conference report would have enhanced the Government's ability to prevent entry of, and find, terrorists who wish harm to our country.
The public and media debate about immigration reform and the intelligence conference report has focused on driver's license standards and whether States should be prevented from issuing such documents to illegal aliens. The answer is unequivocally yes, and I will discuss this matter again. There are additional important immigration/terrorism reforms that the conference negotiators refused to
accept, and by doing so, I believe the bill was seriously, dangerously weakened. I will mention only a handful of them.
Importantly, the House-passed bill included a section that would have required aliens in the United States to use only a Department of Justice- or Department of Homeland Security-issued document, or a valid passport, to establish identity to a U.S. Governmental official or worker. This would have effectively prohibited the use of the matricula consular identification card for identification purposes for Federal identification. The conference measure eliminated this section of the bill, and instead provides only for a process for determining minimum standards that passengers will have to present to board a commercial aircraft in the United States.
Additionally, the House would have expanded the use of expedited removal by requiring its use in the U.S. as well as along the U.S. border, currently expedited removal is used only at U.S. ports of entry. The conference measure strikes this provision.
The House-passed bill would also have overturned a Ninth Circuit precedent that has effectively barred immigration judges from denying asylum claims on the basis of credibility. The Government is barred from asking foreign governments what evidence they have about the terrorist activities of asylum applicants. So the only evidence the Government can use in opposing an asylum request is to argue that the applicant is lying. The Ninth Circuit precedent barring immigration judges from denying asylum claims on the basis of credibility would have been overturned if the conference report retained the House-passed provision; but it was eliminated from the conference measure.
Additionally, the Ninth Circuit has been granting asylum to applicants on the basis that their government believes they are terrorists, and, therefore, they deserve asylum because they are being persecuted on account of the political beliefs of the relevant terrorist organization. The House-passed bill overturned this precedent and would have required aliens to show they qualify for asylum based upon the currently protected grounds for receiving such, but conference negotiators refused to accept this provision.
Instead, what the final version of the bill included is a Government Accountability Office, GAO, study on the weaknesses in the U.S. asylum system that have been exploited by aliens connected to terrorism.
The House version of the bill included a provision to close an existing loophole in immigration law that allows foreign nationals whose visas or other travel documents have been revoked by the State Department on terrorism grounds, to remain in the United States until their visa, or DHS-approved time here, expires, despite the revocation. The current conference report retains that provision, which makes revocation of a visa on terrorism grounds a legal ground for the deportation of the visa holder. However, the conferees created another loophole through which a potential terrorist could remain in the United States despite a visa revocation, by adding language that would allow judicial appeal of any visa revocation decision. Allowing judicial appeal of such decisions will only create another avenue through which a potential terrorist can legally remain in the United States for an undetermined amount of time. Currently all decisions regarding visa issuance by Consular Officers are final, they are not subject to judicial review. The same should be true of visa revocation decisions. A number of Senators, including Senators Grassley, Sessions, Chambliss, Ensign, and I fully supported this provision and contemplated offering as a similar amendment during Senate consideration of the bill. I am disappointed to learn that language was added to allow individuals whose visas have been revoked on terrorism grounds to appeal the State Department's decision.
Finally, while increasing the number of Customs and Immigration enforcement officers is important and is accomplished in the conference report, another important House-passed provision, requiring that half of any new immigration investigators be focused on enforcing restrictions on illegal immigrants in the workforce, was not included in the final version of the bill.
As I mentioned in the beginning of my comments about the immigration- related sections, an important provision dealing with identity standards in the Federal context was struck from the conference measure. While that measure wasn't necessarily perfect, it certainly represented a good beginning for development of a necessary standard of identification in this country. The House-passed driver's license standards section also represented a very good attempt at eliminating the opportunity for illegal immigrants to obtain driver's licenses, which we all know allows illegal immigrants to live as though they were here legally.
While I would very much like to discuss the negative ramifications on the workplace, and States generally, of the illegal immigrant population having such easy access to driver's licenses and other documents that allow them to live as though they are here legally, I will instead focus on how important documentary validity is to preventing terrorists from entering and living in the United States. Both the House and Senate, after reviewing the 9/11 Commission's recommendation, voted to apply some form of standardization to the driver's license. The question really is, Is the Congress willing to get to the root of the problem and prevent illegal immigrants from obtaining such licenses? True, most of the 9/11 hijackers had ``valid,'' but improperly issued, visas. Hopefully, now, the State Department is following the law and making it harder for individuals who shouldn't possess U.S. visas from obtaining them. But that still leaves millions of individuals who enter the country illegally, some of whom could be terrorists, able to obtain the document that will allow them to blend easily into our neighborhoods, workplaces, churches, and mosques, let alone board airplanes or otherwise gain access to sensitive areas. The conference report only requires that States include the following: the person's full legal name; the person's date of birth; the person's gender; the person's driver's license or identification number; a digital photograph; the person's address of principal residence; and the person's signature. And a carve-out was included for States in order that any documentary requirements ``may not infringe on a State's power to set criteria concerning what categories of individuals are eligible to obtain a driver's license or personal identification from that State.'' The driver's license provision included in the final bill will not do much to better secure the license, and will continue to allow illegal immigrants to obtain such documentation.
As I have said, there are a number of immigration-related provisions in the conference report that will make a difference, including the section of the bill that requires in-person interviews of non-immigrant visa applicants, an authorization for an increase in consular officer positions, and others. But we also had an opportunity to include other security-related immigration reforms, and we failed. I will work in the 109th Congress to ensure their consideration, and the consideration of other important immigration reform measures. Such consideration is important to the future of our country, from a security perspective and from an economic perspective, and the course we take over the next year or two will, in part, contribute to our success at preventing future terrorist attacks and shape the future of our Nation. I will work to get it right and look forward to working with my colleagues on all of these important issues.
As I mentioned, one bright spot in the bill before us today is title VI, which provides new tools to law enforcement to investigate and prosecute terrorist crimes. Title VI includes about half of the provisions of the Tools to Fight Terrorism Act, S. 2679, an omnibus antiterrorism bill that I introduced earlier this year with several other members of the Judiciary Committee and the Senate leadership. Obviously, I am pleased that these important provisions are included in the final legislation.
Subtitles A and F through K of title VI of the conference report mirror parallel provisions in the Tools to Fight Terrorism Act. And TFTA itself consists of all or part of 11 other bills that currently are pending in the House and Senate. Collectively, these other bills 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 TFTA was reviewed in a September 13 hearing before the Senate Subcommittee on Terrorism, which heard testimony from Justice Department witnesses Barry Sabin, Chief of the counterterrorism Section of the Criminal Division, and Dan Bryant, Assistant Attorney General for the Office of Legal Policy, as well as George Washington University law professor Jonathan Turley.
These hearings and reports provide a substantial legislative backdrop to title VI of the present bill. The statement that follows is my attempt to provide some guide to navigating this legislative thicket. Of course, one might well ask whether it is an inherent contradiction to rely on legislative history supplied by a judicial conservative, since judicial conservatives tend not to believe in legislative history. The short answer would be that in moments of litigation crisis, every lawyer tends to believe in whatever talismans are available. One might as well help him find them. With that disclaimer, I offer the following effort to illuminate the origins and objectives of the TFTA provisions in title VI.
Subtitle A, section 6001, Lone-Wolf FISA Authority ``Moussaoui Fix,'' this section amends FISA to allow orders for surveillance of foreign visitors to the U.S. who appear to be involved in international terrorism but are not affiliated with a known terror group. The need for this provision is explained in Senate Committee Report No. 108-40, which accompanies a bill that Senator Schumer and I introduced at the beginning of this Congress. I quote the relevant passages from that report at length:
The September 11, 2001 terrorist attacks on the people of
the United States underscored the need for this legislation.
Several weeks before those attacks, federal law enforcement
agents identified one of the participants in that conspiracy
as a suspected international terrorist. These agents sought
to obtain a FISA warrant to search his belongings. One of the
principal factors that prevented the issuance of such a
warrant was FISA's requirement that the target be an agent of
a foreign power. Even if federal agents had been able to
demonstrate that this person was preparing to commit an act
of international terrorism, based on the suspicious conduct
that had first brought him to the attention of authorities,
the agents would not have been able to obtain a warrant to
search him absent a link to a foreign power. As a result,
these federal agents spent three critical weeks before
September 11 seeking to establish this terrorist's tenuous
connection to groups of Chechen rebels--groups for whom we
now know this terrorist was not working.
It is not certain that a search of this terrorist would
necessarily have led to the discovery of the September 11
conspiracy. We do know, however, that information in this
terrorist's effects would have linked him to two of the
actual September 11 hijackers, and to a high-level organizer
of the attacks who was captured in 2002 in Pakistan. And we
do know that suspending the requirement of a foreign-power
link for lone-wolf terrorists would have eliminated the major
obstacle to federal agents' investigation of this terrorist--
the need to fit this square peg into the round hole of the
current FISA statute.
FISA allows a specially designated court to issue an order
authorizing electronic surveillance or a physical search upon
probable cause that the target of the warrant is ``a foreign
power or an agent of a foreign power.'' 50 U.S.C. Sec.
1805(a)(3)(A), 1824(a)(3)(A). The words ``foreign power'' and
``agent of a foreign power'' are defined in 1801 of FISA.
``Foreign power'' includes ``a group engaged in international
terrorism or activities in preparation therefor,''
1801(a)(4), and ``agent of a foreign power'' includes any
person who ``knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor,
for or on behalf of a foreign power.'' 1801(b)(2)(C).
Requiring that targets of a FISA warrant be linked to a
foreign government or international terrorist organization
may have made sense when FISA was enacted in 1978; in that
year, the typical FISA target was a Soviet spy or a member of
one of the hierarchical, military-style terror groups of that
era. Today, however, the United States faces a much different
threat. The United States is confronted not only by specific
groups or governments, but by a movement of Islamist
extremists. This movement does not maintain a fixed structure
or membership list, and its adherents do not always advertise
their affiliation with this cause. Moreover, in response to
the United States' efforts to fight terrorism around the
world, this movement increasingly has begun operating in a
more decentralized manner.
The origins and evolution of the Islamist terrorist threat,
and the difficulties posed by FISA's current framework, were
described in detail by Spike Bowman, the Deputy General
Counsel of the FBI, at a Senate Select Committee on
Intelligence hearing on the predecessor to S. 113. Mr. Bowman
testified:
``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 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 we do not see, but it may be that they are simply
radicals who desire to bring about destruction.
``[W]e are increasingly seeing terrorist suspects who
appear to operate at a distance from these [terrorists]
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 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 at 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 that 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
guerrilla 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 Islamist 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.''
The Committee notes that when FISA was enacted in 1978, the
Soviet invasion of Afghanistan had not yet occurred and both
Iran and Iraq were considered allies of the United States.
The world has changed. It is the responsibility of Congress
to adapt our laws to these changes, and to ensure that law
enforcement and intelligence agencies have at their disposal
all of the tools they need to combat the terrorist threat
currently facing the United States. The Committee concludes
that enactment of S. 113's modification of FISA to facilitate
surveillance of lone-wolf terrorists would further Congress's
fulfillment of this responsibility.
[In a separate statement of additional views on S. 113,
Senator Feingold expresses concerns about the
constitutionality of allowing surveillance of lone-wolf
terrorists pursuant to FISA. He suggests that by allowing
searches of persons involved in international terrorism
without regard to whether such persons are affiliated with
foreign powers, S. 113 ``writes out of the statute a key
requirement necessary to the lawfulness of such searches.''
In order to address Senator Feingold's concerns, the
Committee attaches as Appendix E to this report a letter
presenting the views of the U.S. Department of Justice on S.
2586, the predecessor bill to S. 113.
The Department of Justice's letter provides a detailed
analysis of the relevant Fourth Amendment jurisprudence,
concluding that the bill's authorization of lone-wolf
surveillance would ``satisfy constitutional requirements.''
The Department emphasizes that anyone monitored pursuant to
the lone-wolf authority would be someone who, at the very
least, is involved in terrorist acts that ``transcend
national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to coerce or
intimidate, or the locale in which their perpetrators operate
or seek asylum.'' (Quoting 50 U.S.C. Sec. 1801(c)(3).)
Therefore, a FISA warrant obtained pursuant to this authority
necessarily would ``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.'' (Quoting
United States v. Dugan, 743 F.2d 59, 73 (2d Cir. 1984).) The
Department concludes ``the same interests and considerations
that support the constitutionality of FISA as it now stands
would provide the constitutional justification for S. 2568.''
The Department additionally notes that when FISA was enacted
it was understood to allow surveillance of groups as small as
two or three persons. The Department concludes that ``[t]he
interests that the courts have found to justify the
procedures of FISA are not likely to differ appreciably as
between a case involving such a group . . . and a case
involving a single terrorist.'']
A provision substantially the same as section 6001 first was introduced as a bill, S. 2586, by Senators Schumer and me on June 5, 2002. The Senate Intelligence Committee held a hearing on S. 2586 on July 31, 2002. Witnesses included James Baker, Counsel for Intelligence Policy with the Office of Intelligence and Policy Review, Department of State; Marion ``Spike'' Bowman, Deputy General Counsel, National Security Law Unit, Office of the General Counsel, FBI; and Fred Manget, Deputy General Counsel, CIA.
The same provision was reintroduced in the 108th Congress by me and Senator Schumer as S. 113 on January 9, 2003. S. 113 was unanimously reported by the Judiciary Committee on March 11, 2003. The Committee issued Report No. 108-40 for S. 113 on April 29, 2003. S. 113 was approved by the Senate by 90-4 on May 8, 2003. The same provision also was included in H.R. 3179, which was introduced by House Judiciary Chairman Sensenbrenner and House Intelligence Chairman Goss on September 25, 2003. The House Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on H.R. 3179 on May 18, 2004. Witnesses at the hearing included Dan Bryant, Assistant Attorney General, Office of Legal Policy, Department of Justice; Thomas Harrington, Deputy Assistant Director, FBI; and Bob Barr, former Congressman. The same provision also was introduced as H.R. 3552 by Representative King on November 20, 2003.
Subtitle F, section 6501, Sharing Grand-Jury Information With State and Local Governments, this section amends current law to authorize the sharing of grand-jury information with appropriate state and local authorities.
I do not think that 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 streamlined information sharing 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 to which I refer 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. Section 6501 is a substantial step in that direction.
The change made be section 6501 previously was enacted by the Homeland Security Act, but that change never went into effect because the Federal Rule of Criminal Procedure amended by the HSA was revised by the Supreme Court shortly after the enactment of the HSA, and the amendment made by HSA presupposed the earlier text of the Federal rule. The same provisions were introduced as part of S. 2599 by Senators Chambliss and me on June 24, 2004.
Subtitle G, sections 6602 and 6603, and section 5402, Receiving Military-Type Training from and Providing Material Support to Terrorists, section 6602 makes it a crime to receive military-type training from a foreign terrorist group, and section 5402 makes aliens who have received such training deportable from the United States. Section 6603 broadens the jurisdictional bases of the material-support statute. It also clarifies the definitions of the terms ``personnel,'' ``training,'' and ``expert advice or assistance'' in response to concerns expressed in recent court decisions. Furthermore, this section clarifies the knowledge required to violate the statute, and specifies that nothing contained in the statute shall be construed to abridge free-speech rights. All of these sections apply extraterritorially to U.S. nationals, permanent residents, stateless persons whose habitual residence is the United States, and persons who are brought into or found in the United States.
In the final version of this legislation, all immigration- and border-related provisions were placed in a new title V, and thus the part of the military-type-training provision making terror trainees deportable ended up in that title as well, as section 5402. The new 5402, rather than referencing the definition of military-type training in 6602, simply duplicates the key part of that definition, a precaution against the event that the now-distant 6602 be repealed or never enacted.
Nevertheless, despite their now far-flung nature, these sections still should be read together. Thus 2339D(c)'s definitions of ``serious bodily injury'' and ``critical infrastructure'' should guide the use of those terms in 5402, even though, unlike the definition of ``military type training,'' those definitions are not copied in the deportation section. The extraterritorial scope of 6602, as articulated in 2339D(b), also should
inform the application of 5402. The deportation provision is articulated in terms of conduct, which is the same thing everywhere-- rather than offenses--which are a particular creature of each jurisdiction. And obviously, Congress is just as anxious to remove from this country those aliens who trained at an al-Qaida camp in Afghanistan as those who trained in the United States.
In two key respects, however, the deportation provision operates differently than the criminal provision. First, the knowledge requirement imposed by the second sentence of 2339D(a) was not imposed in 5402. While scienter is a traditional part of a criminal offense, it was not thought a necessary consideration in deciding which alien visitors should be allowed to remain in this country. If someone trained at a terrorist camp, they should be removed forthwith, regardless of what they claim to have known about their host terror group. Second, 5402 will apply immediately at the time that deportation proceedings are initiated, regardless of the date of the triggering training. As the Supreme Court has noted, deportation ``looks prospectively to the respondent's right to remain in this country in the future.'' INS v. Lopez-Mendoza, 468 U.S. at 1038. Under 5402, the only thing that need have occurred ``at the time the training was received'' is that the training or sponsoring organization have been defined as a terrorist organization. Since there is no reasonable ``reliance'' on any U.S. law whatsoever in attending an al-Qaida or other terrorist training camp, 5402 applies regardless of when the training was received, so long as the group was defined at that time as a terrorist organization.
The animating example behind this provision is the alien visitor in the United States who is discovered to have attended an al-Qaida camp in Afghanistan in the summer of 2001. In the judgment of Congress, such a person is a danger to the United States. And under 5402, that person, once discovered, will be immediately deportable.
The Justice Department testified in favor of a provision similar to section 6602 at the Terrorism Subcommittee's hearing on the TFTA earlier this year. 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.
And George Washington University law professor Jonathan Turley had the following to say about TFTA's parallel provision to section 6602 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.
With regard to section 6603, the Justice Department had the following to say about the parallel provision in TFTA at the Terrorism Subcommittee hearing earlier this year:
The [provision] . . . 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.''
Professor Turley, in his Terrorism Subcommittee testimony on TFTA, said of the parallel section to 6603 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.''
The need for a stronger material-support statute and its application to terrorist training camps were the subject of a hearing before the Senate Judiciary Committee on May 5, 2004. Witnesses included Chris Wray, Assistant Attorney General, Criminal Division, Department of Justice; Dan Bryant, Assistant Attorney General, Office of Legal Policy, Department of Justice; Gary Bald, Assistant Director, Counterterrorism Division, FBI; David Cole, law professor, Georgetown University Law Center; and Paul Rosenzweig, Senior Legal Research Fellow, Heritage Foundation.
Subtitle G, Section 6604, Concealment of Terrorist Financing, this section amends current law to prohibit concealing having provided financing while knowing that it has been or will be provided to terrorists. This provision first appeared as part of S. 1837, which was introduced by Senator Grassley on November 6, 2003. The Senate Judiciary Committee held a hearing on the need to better combat terrorist financing on November 20, 2002. Witnesses included Robert J. Conrad, U.S. Attorney for the Western District of North Carolina; Jimmy Gurule, Under Secretary for Enforcement, Department of Treasury; David Aufhauser, General Counsel, Department of Treasury; Nathan Lewin, Lewin & Lewin, LLP; Allan Gerson, Professorial Lecturer In Honors, George Washington University; Jonathan Winer, Alston & Bird, LLP, member, Council on Foreign Relations; and Salam Al-Marayati, Executive Director, Muslim Public Affairs Council.
Subtitle H, section 6702, Punishment for Hoaxes about Terrorism or Deaths of U.S. Soldiers, this section imposes criminal penalties for conveying false or misleading information, perpetrating hoaxes, about terrorist crimes or the death or injury of a U.S. soldier under circumstances where such information may reasonably be believed.
The Justice Department has commented on the harm caused by false information and terrorist hoaxes. In its TFTA testimony on a parallel provision to 6702 earlier this year, 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.
And Professor Turley, also at the Terrorism Subcommittee hearing on TFTA, commented on the provision similar to 6702:
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.
The key elements of section 6702 were introduced as H.R. 3209 in the 107th Congress by Representative Lamar Smith on November 11, 2001. H.R. 3209 was the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security on November 7, 2001. Witnesses included
James Jarboe, Section Chief, Counterterrorism Division, Domestic Terrorism, FBI; and James Reynolds, Chief, Terrorism and Violent Crime Section, Criminal Division, Department of Justice. H.R. 3209 was reported by the House Judiciary Committee on November 29, 2001. The Judiciary Committee issued Report No. 107-306 for H.R. 3209 on the same day. H.R. 3209 was unanimously approved by the House of Representatives on December 12, 2001.
A provision similar to 6702 also was introduced as H.R. 1678 in the 108th Congress by Representative Lamar Smith on April 8, 2003. H.R. 1678 was the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security on July 10, 2003. Witnesses included Susan Brooks, the U.S. Attorney for the Souther District of Indiana; James McMahon, Superintendent, New York State Police; and Danny Hogg, a target of a war-time hoax about a family member serving in Iraq. H.R. 1678 was ordered reported by the House Judiciary Committee by voice vote on May 12, 2004. The Judiciary Committee issued Report No. 108-505 for H.R. 1678 on May 20, 2004. The key provisions of section 6702 also were introduced as S. 2204 by Senator Hatch on March 11, 2004.
Subtitle H, section 6703, Increased Penalties for Obstruction of Justice in Terrorism Cases, this section increases from 5 years to 8 years the penalty for obstruction of justice in terror investigations. It also instructs the Sentencing Commission to increase the guidelines range for making false statements in relation to a terrorism investigation. A provision similar to section 6703, albeit increasing the penalty to 10 years instead of just 8, has in the past been included as part of the above-described anti-hoax bills.
Subtitle I, sections 6802 and 6803, Expanded WMD Prohibitions, section 6802 expands the jurisdictional bases and scope of existing prohibitions on use of weapons of mass destruction, and includes chemical weapons within the prohibition for the first time. Section 6803 amends the Atomic Energy Act to more broadly prohibit directly and willfully participating in the development or production of any special nuclear material or atomic weapon outside of the United States. This section also 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. And the offense created by this provision applies extraterritorially.
In his TFTA testimony about parallel provisions to sections 6802 and 6803 before the Terrorism Subcommittee earlier this year, George Washington University law professor Jonathan Turley stated:
[Section 6802, the WMD-statute provision] would close
current loopholes in the interest of national security and
does not materially affect civil liberty interests.
[Section 6803] 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.
These sections are substantially the same as H.R. 2939, which was introduced by Representative Forbes on July 25, 2003, and S. 2665, which was introduced by Senator Cornyn on July 15, 2004.
Subtitle J, sections 6901-11, Prevention of Terrorist Access to Special Weapons, this subtitle is designed to deter the unlawful possession and use of certain weapons, Man-Portable Air Defense Systems, MANPADS, atomic weapons, radiological dispersal devices, and the variola virus, smallpox, whose potential misuse are among the most serious threats to homeland security. MANPADS are portable, lightweight, surface-to-air missile systems designed to take down aircraft. Typically they are able to be carried and fired by a single individual. They are small and thus relatively easy to conceal and smuggle. A single attack could kill hundreds of persons in the air and many more on the ground. Atomic weapons or weapons designed to release radiation, ``dirty bombs,'' could be used by terrorists to inflict enormous loss of life and damage to property and the environment. Variola virus is the causative agent of smallpox, an extremely serious, contagious, and often fatal disease. Variola virus is classified by the CDC as one of the biological agents that poses the greatest potential threat for public-health impact and has a moderate to high potential for large-scale dissemination. There are no legitimate private uses for these weapons.
Current law allows a maximum penalty of only 10 years in prison for the unlawful possession of MANPADS or an atomic weapon. No statute criminalizes mere possession of dirty bombs. Knowing, unregistered possession of the variola virus is subject only to a maximum penalty of 5 years.
Sections 6903-06 make unlawful possession of MANPADS, atomic weapons, radiological devices, or variola virus a crime with a mandatory minimum sentence of 25 years to life. Use, attempts to use, or possession and threats to use these weapons are a crime with a mandatory minimum sentence of 30 years to life. Use of these weapons resulting in death is subject to a mandatory minimum sentence of life imprisonment. These penalties should especially help to deter middlemen and facilitators who are essential to the transfer of these weapons.
Section 6907 amends current law to add the criminal offenses created by this subtitle as federal wiretap predicates. Section 6908 amends current law to include these new offenses in the definition of ``Federal crime of terrorism.'' Section 6909 amends current law to include these new offenses in the definition of ``specified unlawful activity'' for purposes of the money laundering statute. And section 6910 amends the Arms Export Control Act by adding the offenses created by this subtitle to the provision specifying crimes for which a conviction or indictment is a ground for denying an arms-export application.
In his Terrorism Subcommittee testimony on TFTA earlier this year, Professor Turley said the following about a provision parallel to subtitle J:
Given 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.
Subtitle J is the same as S. 2664, which was introduced by Senator Cornyn on July 15, 2004.
Subtitle K, section 6952, Presumption of No Bail for Terrorists, this section would add terrorist offenses to the list of offenses, such as drug crimes, that are subject to the statutory presumption of pretrial detention. 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 10 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. This section would add terrorist offenses that are subject to a maximum penalty of at least 10 years 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 Usama 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 six 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.
Law Professor Jonathan Turley also commented on the legislative ancestor of section 6952 in his testimony at the Terrorism Subcommittee hearing on TFTA. He stated:
[Section 6952] 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.
Section 6952 is substantially the same as the main provision of H.R. 3040, which was introduced by Representative Goodlatte on September 9, 2003. I introduced the same bill as S. 1606 on September 10, 2003. S. 1606 was the subject a hearing before the Senate Subcommittee on Terrorism, Technology, and Homeland Security on June 22, 2004. Witnesses included Rachel Brand, Principal Deputy Assistant Attorney General, Office of Legal Policy, Department of Justice; Michael Battle, U.S. Attorney, Buffalo, NY; and James K. Robinson, former Assistant Attorney General, Criminal Division, Department of Justice.
I have spent considerable time reviewing this conference report and thoughtfully considering its provisions. I have serious reservations and agree with the many experts in this field who have urged a more thorough study of the intelligence community's problems and, likewise, a careful matching of those problems to solutions. Though I appreciate the hard work of the 9/11 Commission to help Americans understand how 9/11 happened, the Commission's recommendations--on which it spent far less time than on the narrative it took some 18 months to assemble--are not the final answer to the intelligence community's problems.
I intend to support this conference package, noting the improvements that have been made since Senate consideration, but I intend to closely monitor its implementation. I also strongly believe that Congress needs to focus its attention next year on resolving the more difficult problems in the intelligence community and, more broadly in the homeland security arena, like immigration, not addressed in this legislation. I will work with my colleagues in the House and Senate to ensure this happens.