Congressional Record: February 24, 2000 (Senate)
Page S799-S820
                      



 
          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTION

      By Mr. SPECTER (for himself, Mr. Torricelli, Mr. Thurmond, Mr. 
        Biden, Mr. Grassley, Mr. Feingold, Mr. Helms, Mr. Schumer, and 
        Mr. Sessions):
  S. 2089. A bill to amend the Foreign Intelligence Surveillance Act of 
1978 to

[[Page S800]]

modify procedures relating to orders for surveillance and searches for 
foreign intelligence purposes, and for other purposes; to the Committee 
on the Judiciary.


               the counterintelligence reform act of 2000

  Mr. SPECTER. Mr. President, I have sought recognition to introduce 
legislation which would correct procedures under the Foreign 
Intelligence Surveillance Act. I offer this bill on behalf of Senator 
Torricelli, Senator Thurmond, Senator Biden, Senator Grassley, Senator 
Feingold, Senator Helms, Senator Schumer, and Senator Sessions.
  This is legislation which is designed to correct a very pressing 
problem. This bill refines the Foreign Intelligence Surveillance Act to 
enable the appropriate investigations of espionage to avoid the very 
serious mistakes which were made during the investigation of Dr. Wen Ho 
Lee. The references to Dr. Lee's investigation are made only for the 
purpose of illustrating the procedural problems which this legislation 
is designed to correct. The determination as to whether or not Mr. Wen 
Ho Lee is guilty will remain for the court of competent jurisdiction 
where he has been indicted.
  There was information released into the public domain at Mr. Lee's 
bail hearing which underscores the tremendous importance of this 
particular case. Dr. Stephen Younger, assistant laboratory director for 
nuclear weapons at Los Alamos, testified at Dr. Lee's bail hearing on 
December 13, 1999, and said:

       These codes and their associated databases and the input 
     file, combined with someone that knew how to use them, could, 
     in my opinion, in the wrong hands, change the global 
     strategic balance.

  It is hard to have any item of greater importance than changing the 
global strategic balance.
  Dr. Younger further testified:

       They enable the possessor to design the only objects that 
     could result in the military defeat of America's conventional 
     forces. . . They represent the gravest possible security risk 
     to . . . the supreme national interest.

  Again, it is hard to find more forceful language as to the 
seriousness of this particular matter than the potential military 
defeat of America's conventional forces.
  During the course of this investigation, there were very serious time 
lapses while the FBI sought to get a warrant on Dr. Lee under the 
Foreign Intelligence Surveillance Act.
  The FBI made the FISA request in June of 1997. It was refused by the 
Department of Justice on August 12, 1997, and then FBI Director Freeh 
sent FBI Assistant Director John Lewis to talk personally to Attorney 
General Reno. Attorney General Reno then appointed a Department of 
Justice subordinate named Daniel Seikaly, who reviewed the matter and 
rejected it. Attorney General Reno, as she conceded in testimony
presented to the Judiciary Committee on June 8, 1999, did not follow up 
on the matter, leaving this very important request rejected.
  The proposed legislation would require that when the Director of the 
FBI makes a request for a FISA warrant that the Attorney General 
personally must make the decision as to whether the FISA warrant 
request should be submitted to the court for action. The legislation 
further provides that when the Attorney General declines to submit the 
FISA application to the court, the rejection must be in writing. This 
would give the FBI Director a roadmap, so to speak, as to what 
additional information is necessary to have the warrant request 
submitted to the court.
  After the Department of Justice declined to submit the FISA warrant 
to the court, the FBI investigation of the case was inactive for some 
16 months. It took from August of 1997 to December of 1997 for the FBI 
Headquarters to send a letter regarding the FISA request to the FBI 
Albuquerque Field Office, where it lay dormant until November of 1998. 
From the time the FISA application was not forwarded to the court to 
the time the FBI office in Albuquerque finally acted, some 16 months 
elapsed. These 16 months were very crucial with respect to the 
activities of Dr. Lee.
  This legislation further provides that when the Attorney General 
rejects a FISA application in writing, the Director of the FBI has the 
obligation to personally supervise the matter.
  The Department of Energy then initiated a polygraph of Dr. Lee, in a 
very unusual way, that has since been criticized by the President's 
Foreign Intelligence Advisory Board. The Department of Energy 
represented that Dr. Lee passed the polygraph when, in fact, he had 
not. The Secretary of Energy even made an announcement on national 
television to the effect that Dr. Lee had passed the polygraph when, in 
fact, he had not. That threw the FBI off course, thinking that a passed 
polygraph exonerated the suspect. This legislation provides that an 
agency such as the Department of Energy may not take action on a 
polygraph, that these matters are to be left to the FBI, which has the 
paramount authority to investigate these matters.
  The FBI then conducted another polygraph, but not until February 10, 
1999, some 6 weeks after the polygraph he allegedly passed. Even though 
Dr. Lee failed this second polygraph, no action was taken to terminate 
Dr. Lee until March 8. In the interim, he deleted many of the files 
that are in issue. These deletions took place on January 20, February 
9, 11, 12, and 17, all to the potential prejudice of the United States. 
Dr. Lee did not have a search warrant executed until April 9, which is 
a very long lapse before any official action had been taken.
  The legislation further provides that when a suspect is left in place 
for the purpose of the investigation, the FBI must make this request in 
writing and that to that agency. The agency, such as the Department of 
Energy, must then formulate a plan within 30 days to structure how that 
suspect will be left in place while minimizing the exposure of 
classified information to that person.
  One of the reasons given by the Department of Justice in declining to 
go forward with the FISA application was that Dr. Lee was not 
``currently engaged'' in objectionable activities--to use mild words. 
This bill changes that requirement to probable cause on the totality of 
the circumstances.
  That is a brief summary of what this legislation would do. It is the 
view of the sponsors of this bill that it is very important for it to 
move forward so that on pending espionage investigations we do not have 
the lapses that occurred in this very important case.

  I am pleased to note that all the members of the Judiciary 
Subcommittee have joined in cosponsoring this legislation. I thank my 
colleague, Senator Torricelli, for his cooperation. Senator Thurmond, 
Senator Grassley, and Senator Sessions have all cosponsored among the 
Republican members, as have Senators Feingold and Schumer, in addition 
to Senator Torricelli. Senator Biden was consulted specially and is a 
cosponsor because he was the author of the Foreign Intelligence 
Surveillance Act back in 1978. Senator Helms has asked to be added as a 
cosponsor, which he has.
  The subcommittee has had some substantial difficulty in ``birth'' 
pains; it has not really been born, to the extent that the subcommittee 
has not been funded. We have worked really from our own personal 
staffs. We have had three fellows and one detailee. We have completed a 
very lengthy detailed report, some 65 pages, which is the product of 
extraordinary work by Mr. Doman McArthur of my staff, in collaboration 
with Senator Torricelli's staff and the staffs of others. We have gone 
through the 65-page report with a fine-tooth comb to be sure that it is 
precise, exact, and does not make any disclosures as to any classified 
information.
  The subcommittee has deferred holding hearings on the Wen Ho Lee 
matter, which had been scheduled for December, at the specific request 
of Director Freeh. Director Freeh met with Torricelli and myself and 
requested that the hearings on Dr. Lee not go forward substantively, 
which might cause some problem with the pending prosecution. We do have 
hearings scheduled on the legislation for March 7, 8 and 21. I have 
already informed FBI Director Freeh of our intentions to proceed with 
those hearings, which will be on the substance as to how the act should 
be reformed. We have given notice to Director Freeh that we would 
appreciate his presence as a witness. He has said he would be glad to 
attend.
  That is a very brief statement of a very complex matter. It is my 
hope we will have the final clearance from the

[[Page S801]]

Department of Justice to be able to file the full 65-page report which 
will elaborate upon the brief summary which I have presented.
  I am delighted to yield to my very distinguished colleague from New 
Jersey, Senator Torricelli, the ranking member of the subcommittee.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. TORRICELLI. Mr. President, I thank Senator Specter for yielding 
time to me. I also thank him for his perseverance and diligence in 
working on this issue over the course of the last several months.
  I also express particular thanks to Senator Biden who in reviewing 
this legislation made very important additions and allowed us to 
proceed on a bipartisan basis for what I think is an important and 
worthwhile change in the laws dealing with foreign intelligence 
surveillance.
  The origins of this legislation--part of the Judiciary Committee's 
oversight--is the question of how the Department of Justice handled 
allegations of Chinese espionage at our most important National 
Laboratories.
  The focus of this review, of course, had to do with the case of Dr. 
Wen Ho Lee, a scientist who was charged in December with 59 counts of 
illegally removing secrets from computer information at the Los Alamos 
Laboratory. It appears that Dr. Lee was the subject of interest or 
investigations for espionage for over 17 years. He was dealing with the 
most important weapons secrets possessed by his government critical to 
the security of the United States.
  It would be difficult for anyone in this Government to explain to the 
American people why, despite 17 years of investigation and some reasons 
for considerable doubt all during this time, he was permitted to 
continue with his job and retain access to highly classified 
information.
  Much is still to be learned about this case. A criminal case is 
proceeding and an investigation. That is for, in some instances, others 
to deal with. That does not mean we do not already know some things 
that can change the conduct in this Government and the laws under which 
we govern ourselves. We have learned through this investigation that 
this was all made possible by a series of procedural and investigative 
errors that gave Dr. Lee this opportunity to download this highly 
classified material to an unsecured computer.
  In truth, we do not yet know whether or not, when this unguarded 
material was in an unsecured computer, in fact it got to foreign agents 
or other interested parties other than people with proper clearance in 
the U.S. Government. We do not know. We may never know. But we do know 
this after interviewing many witnesses and thousands of documents: 
There was a startling, almost unbelievable failure of coordination and 
communication between the Department of Justice, the FBI, and the 
Department of Energy in dealing with this matter, and only through that 
lack of coordination was an allegation of possible espionage able to 
lead to 17 years of continued access and the possibility that this 
information was compromised.
  As early as 1982, the FBI was aware that Dr. Lee was engaged in 
suspicious activities. Yet both at that time and in the years that 
followed there was no action taken to limit access to classified 
material. The Department of Energy detected Dr. Lee transferring an 
inordinate number of systems from a secured system to an unsecured 
system in 1993 and 1994. Personnel responsible for reporting that 
information failed to do so.
  In 1997, the FBI had an opportunity to stop Dr. Lee, but they were 
stymied by the denial of the Department of Justice of a request 
submitted by the FBI for a warrant to further investigate Dr. Lee. It 
is this failure that brings us here today.
  The evidence supporting a FISA request for their warrant was 
overwhelming. It had been building for years. No single piece of 
evidence may have been sufficient to warrant a criminal case, but they 
were more than sufficient to raise a proper level of suspicion to 
support the issuing of a warrant.

  Now we know that the request for this warrant, a FISA application, 
was never even considered by the Attorney General of the United States. 
When the Director of the Federal Bureau of Investigation, Mr. Freeh, 
sent a personal representative to meet with the Attorney General to 
express his concern about the warrant application, which he was right 
and proper to do, the Attorney General delegated the matter to a 
subordinate who was unfamiliar with the matter and who had never 
processed a similar request--no experience, no knowledge, no 
involvement--and the final disposition of the matter, therefore, was 
predictable. The request was denied. The warrant was not issued, and an 
opportunity potentially to either apprehend someone committing a 
criminal act or to have prevented further damage, if any occurred, was 
lost.
  Unfortunately, this problem was compounded in that when the FBI was 
denied this warrant, in my judgment, the matter should have been 
appealed but it was allowed to languish, and then further hampered by 
the Department of Energy which conducted a polygraph of Dr. Lee, and 
then, incredibly, unbelievably incorrectly concluded that he had passed 
the test.
  It is a series of compounded errors of procedure and judgment. It is 
difficult for the Congress to legislate good judgment for the proper 
execution of responsibilities. If we cannot do so, we can at least 
design the laws to provide for greater accountability.
  That is, indeed, what is being done by my colleagues. Under the 
legislation we are now introducing, Senator Specter and I have written 
amendments to the Foreign Intelligence Surveillance Act to provide that 
upon the personal request of the Director of the FBI, the Attorney 
General must personally review the FISA requests--no subordinate, no 
uninformed associate. This is a matter of national security. The 
Attorney General has no greater responsibility than protecting the 
secrets of the U.S. Government. This matter belongs on the Attorney 
General's desk, and under this legislation that is where it will rest.
  There are those who may argue that making the Attorney General 
directly responsible will somehow provide an avalanche of work, that 
they will not be able to deal with all of these matters. Appropriately, 
the legislation has been designed so this provision is triggered only 
by the personal request from the Director of the FBI--no subordinate, 
no associate, no one else in the Government. So the number of cases 
will be extremely limited. But when asked by the Director of the FBI, 
one person, and one person in this Government alone, will have direct 
responsibility.
  Second, the legislation requires that if the Attorney General decides 
not to forward a FISA application to the court, that decision must be 
communicated in writing to the FBI Director along with specific 
recommendations as to what investigative steps should be undertaken to 
meet the probable cause requirements. Matters of national security on 
this level cannot fall in departmental cracks--not get lost somewhere 
between Justice and the FBI. This will ensure that in those cases when 
the Attorney General has personally rejected this request the reasons 
will be stated, the FBI will be told why and then given a chance to 
return having met the appropriate probable cause standard.
  Third, the legislation requires that the FBI Director must personally 
supervise the implementation of the Attorney General's recommendations 
to ensure once again that in the highest levels of the U.S. Government 
these unusual but critical cases of national security dealing with 
foreign espionage are dealt with not by subordinates, but that this 
Congress can hold people for which it has responsibility, oversight, 
and votes to confirm--such as the Attorney General and the FBI 
Director--directly accountable.
  I believe these are appropriate responses to what we have learned to 
date out of this investigation. But I conclude by saying both what this 
legislation is and what it is not.
  This legislation is not an attempt to lower the probable cause 
standard for what is required for a warrant and a FISA application. 
Probable cause is a standard of law. It should be taken seriously. The 
rights of no citizen should be violated by an intrusive or curious 
government. The standard remains.

  What is being changed here is accountability, not a lessening of 
civil

[[Page S802]]

liberties. We simply want to know that the standard which has always 
existed of probable cause will be used, that procedures will be 
followed, that people will be held accountable, not that the Government 
is any more or any less intrusive. The probable cause standard remains 
the cornerstone of American liberties to ensure that the Government has 
reason and merit as a matter of law to involve itself in the privacy of 
our citizens.
  I proudly offer this legislation with Senator Specter. I believe it 
is a good and appropriate response. I thank the Senator for his 
patience in the drafting. I listened to my colleagues, particularly on 
this side of the aisle, with relatively modest changes we have 
recommended, all of which the Senator has incorporated. I look forward 
to the committee and then the Senate enacting this legislation.
  Mr. BIDEN. FISA, the Foreign Intelligence Surveillance Act of 1978, 
is a very vital part of our arsenal to combat terrorism and espionage. 
For 20 years, it has enabled the FBI to keep track of major threats to 
our security while preserving the constitutional rights of Americans. 
Basically, it provides for a sort of super search warrant, allowing the 
FBI, under certain unique circumstances, to eavesdrop upon activities, 
after showing a probable cause to a Federal judge, without having to 
disclose this eavesdropping in ways that they would have to under a 
normal warrant for a wiretap or a physical search.
  FISA has been very useful to deal with terrorism, and also with 
espionage cases.
  Senator Specter has undertaken an effort to look into what may or may 
not have transpired at our National Laboratories in the celebrated case 
of Wen Ho Lee and others. This has been the subject of some very 
legitimate discussion, and occasionally some partisan discussion. But 
knowing Senator Specter as long as I have, I do not doubt his desire to 
look into these cases that have transpired, and the consequences of any 
leakage of classified information from any of our National 
Laboratories, for the primary purpose of seeing to it that it does not 
happen again, if in fact it did happen, as well as to determine what 
did happen.
  Senator Specter and Senator Torricelli have been looking into these 
recent cases, especially, as I said, the case of Wen Ho Lee at Los 
Alamos National Laboratory. As a result of that inquiry, Senator 
Specter is proposing what I think is a very important series of 
sensible amendments to this act we call FISA. I am pleased to cosponsor 
this bill, having been an original author of that legislation in 1978, 
along with Birch Bayh and others.
  The initial bill with which Senator Specter approached me and others 
had a few areas where I thought it could be improved. I wish to 
publicly thank Senator Specter for agreeing to the changes I suggested 
in his proposed legislation.
  One of the dilemmas that exists, in the debate about whether the 
Attorney General and the Justice Department and/or the FBI were reading 
from the same page in the hymnal on how to investigate the Wen Ho Lee 
case, is the issue of whether the FBI communicated enough information 
to the Attorney General so that, under the reading of the FISA law, the 
Attorney General could conclude that there was sufficient reason to get 
a search or electronic surveillance court order. There has been a 
little bit of disagreement, at a minimum, between the FBI and the 
Justice Department as to who said what, when, and what request was made 
when. It has led to a serious political controversy. I think it has 
also led, as a consequence, on both sides of the aisle, to some 
posturing and partisanship about a significant national security issue.
  One of Senator Specter's most important ideas in this bill, one which 
is going to seem commonsensical to most Americans, is to make it clear 
that if something is of such consequence that the Director of the FBI 
believes there should be a FISA hearing and authority granted to allow 
the FBI to use invasive measures to eavesdrop upon conversations and/or 
get records, for example, from computer data and the like, if it is 
that important, the FBI Director can, under this new amendment to FISA, 
put that request in writing to the Attorney General and the Attorney 
General, whoever that may be, then has to personally sign off or not 
sign off, so we avoid this debate that is taking place now about 
whether second level people or third level people made the right 
judgment or wrong judgment, and whether or not there was any 
malfeasance.
  So this is a very practical solution. If this legislation had been in 
place 3 years ago, 5 years ago, there would be no doubt as to what 
happened. Had the FBI said this is critical and this is national 
security, the Attorney General personally would have had to say yes or 
no. That is where the record is unclear in the Wen Ho Lee case. This 
bill would eliminate such doubt in future similar cases if and when 
they arise, and they surely will arise.
  Section 2 of this bill permits the judge to consider the past 
activities of the target of an investigation--that is, the person upon 
whom they want to eavesdrop and/or whose records they want to secretly 
examine. So, for example, the Attorney General would be able to say, in 
a closed FISA hearing: Your Honor, not only do we think this is 
justified because of some current activity, but we can show you 
evidence that in 1991 they were engaged in this suspicious activity, in 
1993 they were engaged in that, in 1995 they were engaged in this, 
therefore lending greater credibility to the argument that a FISA court 
order should be issued by the judge.

  Again, in this Wen Ho Lee case, and other cases that Senator Specter 
has examined, there has been discussion of the fact that sometimes 
these folks had been under investigation before. Would that not lend 
greater weight to the need for this FISA request to be granted? So we 
clear that up in this legislation, rather than only allowing the 
target's current activity to be brought up.
  Section 3 of this proposal requires the FISA court to be told if the 
target of a proposed search or surveillance has a relationship with a 
Federal law enforcement or intelligence agency. This came up in this 
case as well. The case is being investigated. It turns out at some 
point one of the persons in the past had been also a source for the 
FBI. The FBI had gone to this person and said: Will you be a source for 
us, looking into the possibility of some illegal activity? Then that 
very person becomes the target, and that very person is never able to 
tell, nor does the FBI or the CIA say: By the way, Your Honor, we were 
working with them. That is why they went ahead and did the following.
  Up to now, when the Federal Government has asked for a FISA court 
judge to give this surveillance authority, it has not been required to 
say: By the way, Your Honor, this person in the past had worked with us 
as a source, as a person cooperating with us.
  This is a new and useful protection for Americans, because the 
conduct that might seem suspicious could be a result of what the law 
enforcement agency had actually asked them to do. It seems only fair to 
the target to be able to have that information known to the judge.
  This is typical of the Senator from Pennsylvania, that he looks out 
for individual rights as well as the interests of law enforcement.
  There are several other interesting provisions in this bill, 
including some to improve relations between the FBI and other agencies, 
and I am sure there will be further refinements in this bill when it is 
considered by the Judiciary Committee. The important thing is that 
Senator Specter is working, I think effectively and in a bipartisan 
manner, to ensure that his inquiry into the Wen Ho Lee case leads to 
useful changes and not just to partisan recriminations. I compliment 
him on that, because the purpose of oversight is not only to find out 
who struck John but, in the national interest, to find the best way to 
prevent something such as this from happening again. So I compliment 
him and again thank him for acceding to the more than several changes I 
asked for in this legislation.
  I think the amendments to existing law that this bill will enact are 
good amendments. I think America will be well served, and I would argue 
that the individual rights of Americans will be in no greater jeopardy 
after this passes than they ever were. They are protected; they will 
continue to be protected; and some of these changes will

[[Page S803]]

even help to further protect the rights of individual Americans.
  I yield the floor.

106th CONGRESS

2d Session

S. 2089

To amend the Foreign Intelligence Surveillance Act of 1978 to modify procedures relating to orders for surveillance and searches for foreign intelligence purposes, and for other purposes.

IN THE SENATE OF THE UNITED STATES

February 24, 2000

Mr. SPECTER (for himself, Mr. TORRICELLI, Mr. THURMOND, Mr. BIDEN, Mr. GRASSLEY, Mr. FEINGOLD, Mr. HELMS, Mr. SCHUMER, and Mr. SESSIONS) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To amend the Foreign Intelligence Surveillance Act of 1978 to modify procedures relating to orders for surveillance and searches for foreign intelligence purposes, and for other purposes.

SECTION 1. SHORT TITLE.

SEC. 2. CIRCUMSTANCES ESTABLISHING PROBABLE CAUSE FOR ISSUANCE OF ORDERS FOR ELECTRONIC SURVEILLANCE UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

SEC. 3. ORDERS FOR ELECTRONIC SURVEILLANCE UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

SEC. 4. ORDERS FOR PHYSICAL SEARCHES UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

SEC. 5. DISCLOSURE FOR LAW ENFORCEMENT PURPOSES OF INFORMATION ACQUIRED UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

SEC. 6. COORDINATION OF COUNTERINTELLIGENCE WITH THE FEDERAL BUREAU OF INVESTIGATION.

SEC. 7. SEVERABILITY.