Congressional Record: October 15, 2002 (Senate)
Page S10425-S10432
AMENDING THE FISA LAW
Mr. KYL. Mr. President, I would like to speak in morning business for
as long as I might consume to discuss some legislation Senator Schumer
and I have introduced and to discuss my intention to seek to have that
legislation added to the conference of the intelligence authorization
bill which, hopefully, will come before this body for our deliberation
and acceptance by the end of this week--again, hopefully.
This legislation not only will reauthorize the intelligence community
activities that are funded by the Congress, but also, perhaps, will
include an agreement on an outside commission that will later be
established to look into the events prior to September 11.
So there are some important elements to this bill. One of the items I
would like to add to it also deals with the subject of terrorism, the
Schumer-Kyl bill--that I will describe in just a moment--which is a
very small provision in the so-called FISA law that would be
appropriately added in this conference as an additional way we can help
win the war on terror.
Let me begin by discussing just a little bit what this legislation is
and why it is necessary, and then I will discuss a little bit further
how we would like to have it considered.
The bill number is S. 2568, called the Schumer-Kyl bill. It would add
three words to the FISA legislation under which we are now able to
gather information that is useful in conducting our war on terror.
The Foreign Intelligence Surveillance Act, or FISA, is a law which
provides a special way of gathering this evidence against terrorists,
and its origins are back in the 1970s. But it deals with a different
situation today in terrorism than it did back then.
Let me just go back in time. The idea was if you were working for a
foreign government, we ought to have a little better ability to
investigate you than through the probable cause requirements of the 4th
amendment that we would ordinarily apply in a title III court
situation. So the FISA law was established to say if you have evidence
someone is working for a foreign government or an international
terrorist organization, then you can involve the FISA Court, the
special court, to ask that court for a warrant to do a wiretap or to
search a home or to search a computer, or whatever the case might be.
Back in the 1970s, when this was first started, it was a fairly
straightforward proposition. If you thought, for example, you might be
dealing with a foreign spy, somebody working for the then-Soviet Union,
you could go to the FISA Court and get a warrant for the information
you were seeking, and it was a little easier to obtain than through a
regular court.
Secondly, the information was all classified, secret; it did not have
to be shared with anyone else, and these judges were cleared to receive
that information. So we were able to keep these kinds of investigations
classified, and obviously that was a key element to be able to
prosecute these counterterrorism types of cases. But back then the
classical FISA target would be either a Soviet agent or perhaps one of
the sort of hierarchical terrorist organizations such as the Bader-
Meinhof gang in West Germany or the Red Army faction or a group of that
sort. Today, as you know, the situation is very different.
We have in the world today amorphous terrorist groups that have
spread throughout the entire world that are very loosely affiliated,
sometimes not affiliated at all. It is not even clear frequently
whether individual people are directly connected to the terrorist group
or actually members of the terrorist group. And when we speak of
"members of," I am not even sure anybody can define a member of a
terrorist organization. You do not pay dues and have a card that
identifies you as a member of al-Qaida or Hamas or Hezbollah or the
Islamic Jihad or any of these other organizations.
Now, it is true within the group there, you would have to be accepted
as someone they could trust, but I do not necessarily think they look
at the people with whom they work as members of the organization.
So we wrote a statute back in the 1970s for a different type of enemy
than the enemy we face today. What we are finding is sometimes it is
very difficult to connect up a particular terrorist either with a
foreign country or with a particular terrorist organization. We know
there are state sponsors of terrorism, and I suppose if we had evidence
somebody here in the United States was planning to commit an act of
terror, and they were employed by the Government of, let's say, Iran,
we could probably get a FISA warrant because we could connect them
pretty easily to a foreign country that has been known to conduct state
terrorism. But it is a lot more difficult when you have somebody such
as Zacarias Moussaoui, for example, the alleged 20th hijacker. His is
an actual case in point used by many to demonstrate the fact that our
law enforcement agencies did not act quickly enough in order to obtain
a FISA warrant against him. The reason they did not is precisely
because of the difficulty of connecting him to a foreign country or a
particular international terrorist organization, which is what the FISA
statute requires.
Now, bear in mind one of the rationales for being able to accelerate
and short circuit the procedures here with a FISA warrant, as opposed
to a regular title III type warrant, is you are dealing with a foreign
country. You are not dealing with an American citizen. You are dealing
with a threat from without or an international terrorist organization.
So that is the theory.
But in the case of someone such as Zacarias Moussaoui, even though he
was a foreign person--not a United States citizen--we could not connect
him with Algeria or France or any of the other countries of the world.
We thought his activities looked very suspicious and that they could be
terrorist-type planning, but not connected to a particular country. Nor
was it possible to connect him to al-Qaida. We did not have information
connecting him to al-Qaida. We had some information that in an around-
about way connected him to terrorists in a particular place but not an
international terrorist organization.
So here you had a situation where he was talking to some terrorists,
he looked to be interested in engaging in activity that could result in
terrorism here in the United States, but the two requirements to get a
warrant--either that he was involved in state-sponsored terror with a
particular country or a particular international terror organization--
could not be proved. And as a result, either legitimately or not
legitimately, the FBI did not authorize a warrant to search his
computer, notwithstanding the fact there were some in our law
enforcement community who wished to do that. And, of course, his
computer was not searched until after September 11.
What the Schumer-Kyl bill does is to correct this one little
deficiency in the statute to bring it up to date, literally from the
time it was created back in the cold war days, to today's environment
in which you have amorphous terrorist groups floating around with
individuals freely associating amongst them, or perhaps even not at all
with them but engaged in terror.
What it does is to correct this problem with the statute by adding
just three words--"or foreign person"--to the targets of the warrant.
So an individual would be the subject of a warrant if you could show
you had probable cause to believe the individual was engaged in or
planning to engage in an act of terrorism and either was doing so on
behalf of another country, an international terrorist organization, or
the person himself is a foreign person.
So you have the connection of two things. You have a potential act of
terror and a foreign person. And that is
[[Page S10426]]
basically the same rationale that exists with respect to the rationale
for the original FISA law and warrants authorized thereunder.
By adding to the definition of "foreign power," a "foreign
person," "a foreign person," you include the kind of case Moussaoui
presented to us where we knew we wanted to look into his affairs. We
could not do so under FISA because we couldn't connect him to a foreign
power or terrorist organization, and yet as the facts definitely
indicated, it was somebody we should have been able to, whose computer
we should have been able to search prior to September 11.
Let me be a little more specific about this case because there are
those who will wonder whether or not maybe we are opening the FISA
statute up to potential abuse of American citizens--the answer to that
is no--by our definition, or that guests of the United States, foreign
persons who were here on, let's say, a nonimmigrant visa, such as
Moussaoui--that maybe their rights would be violated. I want to make it
clear that that would not be the case.
We are familiar with the FBI special agent from Minneapolis, Coleen
Rowley, who wrote the famous memo relating to Zacarias Moussaoui. She
testified before the Intelligence and Judiciary Committees that she
believed this kind of additional authority not only was warranted but
was necessary for people like her in the field offices to do their work
and she did not believe that would raise any additional questions; that
it was an essential part of the tools the individuals in her position
would need.
Director Mueller of the FBI, as well, indicated in testimony that he
believed the current limited foreign power definition would have made
it difficult for the FBI to secure a FISA warrant against any of the
September 11 hijackers. And in fact he noted to the committee:
Prior to September 11, of the 19 or 20 hijackers, we had
very little information as to any one of the individuals
being associated with a particular terrorist group.
So what this amendment does is deal with two situations. The first is
where you literally have the lone wolf, a terrorist acting on his or
her own behalf unconnected to an international terrorist organization
or foreign power but who is a foreign person in this country planning
to commit an act of terrorism against Americans. That is exactly what
the FISA warrants are supposed to be getting at or are supposed to
enable us to collect information on. Yet under the current statute that
would not be possible. This solves the lone wolf problem.
It also solves the Moussaoui problem, which is the case of an
individual who you think is associated with terrorists but you cannot
prove that, but you definitely have the probable cause to think there
is an act of terror being planned and, therefore, you seek the warrant.
It would be authorized under the foreign persons provision we are
adding, and you then could connect the individual to an international
terrorist organization or foreign power. That is what eventually
occurred with respect to Moussaoui.
The point is, we are no longer just looking at the FISA warrant to
prosecute someone for a crime that has been committed. The entire
effort of the Congress, the intelligence community, and the
administration after September 11 was to add a mission as a superior
mission to the law enforcement after-the-fact-prosecution-of-crime
mission of the FBI, and that new mission was to try to prevent or
preempt crimes from occurring in the first instance. So the FBI has
been reorganized to go out and seek information on potential terrorists
and be able to prevent the terrorist attack before it occurs.
If it occurs, they can still do the second function, which is to
prosecute after the fact. But the first object of the game is to
prevent it from happening in the first place. That is the way they have
been reorganized.
What they are now going to try to do is, using statutes such as the
FISA statute, to uncover information with respect to people about to
commit acts of terror and stop it from occurring. But without the
change in the Schumer-Kyl bill, we are leaving one great big loophole
available to the terrorists. That is the terrorist who is either acting
on his own or the terrorist who, while acting on behalf of an
international terrorist organization or state, has not yet clearly
signalled that to our law enforcement officials to the point that we
can succeed in getting a FISA warrant.
Our change will enable us to get the warrant and then tie the
individual to the international terrorist organization or foreign
state, if that, in fact, is the state of information.
Let me go on with respect to the Moussaoui case to illustrate how
this would work. The agent from the Minneapolis FBI office described to
the Judiciary and Intelligence Committees how that office opened the
investigation of Moussaoui on August 15, 2001. The dates are very
important. This was a month before the attack on the World Trade Center
and the Pentagon. The Minneapolis agents arrested Moussaoui on
immigration charges at that time and applied for a FISA warrant to
search his belongings.
But as the FBI's deputy general counsel stated before the two
committees, although Moussaoui was found to have some association with
Chechen terrorists, the evidence was inadequate to show that he served
as an agent of that group or that he had any links whatsoever to al-
Qaida.
So as the FBI deputy general counsel confirmed, it was the strength
of Moussaoui's connection to the Chechens, not a misunderstanding of
whether they constituted a recognized foreign power for FISA purposes,
as the Washington Post originally suggested, that ultimately prevented
the issuance of a warrant. As a result, for 3 weeks prior to the
September 11 attack, the FBI was unable to search Moussaoui's computer
or his papers.
After the trade center and Pentagon attacks, and largely because of
them, the FBI received a criminal warrant to search Moussaoui. Among
other things, the information in his effects linked him to two of the
actual hijackers and to a high-level organizer of the attacks recently
arrested in Pakistan.
Nobody can say whether this information necessarily would have
allowed us to stop the September 11 conspiracy. But everyone would
agree that access to this information would have been very helpful and
could have enabled us to do more than we did. Once they had evidence
that he was involved in international terrorism, the full FISA tools
would have been available to them, regardless of whether they could be
linked to a particular group. But instead, the outdated and unnecessary
requirement in the statute to link him to a specific international
group prevented the FBI agents from pursuing what turned out to be the
very best lead they had prior to the September 11 attacks.
We have looked into this. We have had several people testify before
our committee on behalf of the administration in support of this three-
word change to the FISA statute. Yet it has been very difficult for us
to get action.
It is true that the legislation has not been marked up in the
Judiciary Committee, but, frankly, the chairman has not afforded us
that opportunity. Notwithstanding the fact that we have had testimony
in several different hearings of two different committees, we have not
been able to get the bill as a freestanding bill to the floor for
consideration by the Senate.
There is an opportunity for us to attach it as an amendment. As I
said, the best opportunity is the authorization bill of the
intelligence community. This is the perfect opportunity for us to do
so.
There will be those who will say the bill has not gone through the
regular order of the committees and, therefore, it should not be
included on the authorization bill of the intelligence community.
The response to that is twofold: First of all, at this stage in the
session, in these last few days, we will see hundreds of bills come
through here, hotlined--the phrase we use--bills that will be put at
the desk. Members will be asked whether they have any objection to
these bills. If there are no objections, they will pass by unanimous
consent bills that never saw a markup in committee. Some legislation
will be brought over from the House of Representatives that was not
even considered in a hearing in a Senate committee. That is the way at
the end of the session a lot of legislation is dealt with. There would
be no reason for
[[Page S10427]]
something such as this not to be dealt with in the same way.
The second reason I submit is, we are in a war. Certainly we should
not put form above substance in these circumstances. If we all agree
that it makes sense to do what the FBI and the Justice Department and
the intelligence community are asking for--to add three words to the
FISA statute so that we don't have another case like the Moussaoui
case, so that we are able to look at the effects of someone who we
believe is engaged in terrorism against Americans or is planning to be
engaged in it, even though we can't connect them yet to a specific
terrorist organization--if we believe that that is a good thing, then
we should find the very first legislative vehicle we can to attach this
amendment in order to effect that change.
Time is very short. We will have to get it over to the House of
Representatives, which will have to act in the same truncated fashion
in order to send the bill to the President. We can do that if it is
part of the intelligence authorization conference report because both
bodies can approve the legislation at the same time and have it sent to
the President and signed in a matter of days. So this is the best
opportunity for us to do that--unless we are going to put form over
substance.
Let me make this sober point. A lot of our colleagues have pointed
fingers at different people in the intelligence community. They have
criticized procedures and policies of the intelligence community, and
by that I mean our law enforcement community has been criticized, even
by name.
It has been said there was a massive intelligence failure prior to
September 11. I am part of a joint investigative committee looking into
the events from an Senate Intelligence Committee standpoint--events
prior to September 11--as a member of the Senate Intelligence
Committee.
Almost every one of us has spoken at one time or another about what
we believe were defects in the way our law enforcement and intelligence
community approached events prior to September 11. There has been
enough information uncovered by now to know that things could have been
done better. A lot of different people could have done better than they
did.
Could we have prevented September 11? Nobody has gone that far. We
could have come a lot closer. The Zacarias Moussaoui case is a good
example of it. Today, we are in a situation where the Moussaoui kind of
case could easily be replicated tomorrow. It could be the situation
that is underway right now. It could be that someone such as this plans
an attack and, God forbid, even carries out an attack, and later people
are going to ask the question: What could we have done about that?
If we don't find a way to make this change now, in the last very few
days of this legislative session, we are going to be passing up an
opportunity to save American lives. We would not be able to look at
ourselves in the mirror if something similar to this happened again and
we had failed to make this change. It is certainly not a preposterous
thought that it could happen. It has already happened.
Our law enforcement community and intelligence community have told us
this is a problem in today's environment. It is no longer the cold war,
where you were just dealing with the Soviet Union or the Red Brigade.
You are dealing now with people who have very loose affiliations--if
any at all--but they are still terrorists. Our law didn't contemplate
that when it was written. So now we have to fix the law.
There is no reason not to make this change. Violate American civil
rights? No. By its definition, it only applies to foreign persons. It
cannot possibly violate the constitutional rights of any American--by
its definition, it cannot.
Are we concerned about the constitutional rights of a non-American?
Now, non-Americans do have certain rights in this country, but they
do not have the right of the fourth amendment search and seizure
prohibitions in the context of a statute such as the FISA statute,
which has been upheld as constitutional.
So as long as there is the foreign nexus there, and you are not
talking about a U.S. citizen, again, it is impossible to be violating
somebody's rights. The warrant request still has to be made to a judge.
The judge still has to sign off on it. You still have to have the
evidence backing up your belief that the individual is planning to or
is in the act of engaging in an act of terror. So this isn't just some
two-bit street criminal you are talking about. It has to be somebody on
whom you have some evidence with respect to terrorism. It has to be a
foreign person. If that person is in the United States, and if the
terrorist act is focused on Americans, then you should have the right
under the FISA statute to look further.
That is all this statute does. It enables you to go to a judge and
say: Judge, will you please issue a warrant so that we can open up this
guy's computer and see whether he really is engaged in an act of
terrorism against American citizens?
That is what we are talking about, and it is all we are talking
about. I just ask any Member of this body who disagrees with me to
please come down here, if not tonight, then tomorrow or the next day or
approach me in the hallway or call my office and tell me why they would
not support us.
What I don't want to happen is that there is some anonymous
objection--a so-called hold--put on the bill, so that I have to try to
track down who it is who anonymously objects to what we are trying to
do. This is too important for the sake of America's security.
By the way, I have no idea that any one of my colleagues necessarily
objects to what I am trying to accomplish. But what I am saying is that
we don't have time now to fool around with this and go through the
delays that sometimes accompany the consideration of legislation toward
the end of a session. I need to know who, if anyone, really does have
an objection so I can meet with that individual and try to assure her
or him that there is no problem with this piece of legislation.
It has been vetted by the administration. The administration supports
it. It has the support of those who have testified before our
committees. The Office of Legal Counsel has confirmed that the
amendment is well within the Constitution. I will quote that in a
moment.
So if there is any objection, we need to know what it is. We intend
to include it in the Intelligence Committee authorization bill, and,
obviously, that is a bill that must pass the Senate and the House. We
don't want it to be held up because of somebody's concern about our
particular amendment.
With regard to this question of constitutionality, I direct your
attention to a July 31, 2002, letter presenting the views of the U.S.
Department of Justice on S. 2586. It announces the Department's support
for the bill and provides "a detailed analysis of the relevant fourth
amendment case law in support of the Department's conclusion that the
bill would satisfy constitutional requirements."
So there is no reason for anyone to object to the bill on
constitutional grounds, and, obviously, I can see no other grounds on
which anyone would raise any questions. The Department of Justice, in
particular, emphasized that "anybody monitored pursuant to the bill
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 the perpetrators operate or seek
asylum"--50 U.S.C., section 1801(c)(3).
As a result, the Department says:
A FISA warrant would still be limited to collecting forward
intelligence for the international responsibilities of the
United States and the duties of the Federal Government to the
States in matters involving foreign terrorists.
That is the test supplied by U.S. v. Duggan, a Second Circuit case,
1984, which presents the relevant test. Therefore:
The same interests and considerations that support the
constitutionality of FISA as it now stands would provide the
constitutional justification for S. 2568.
Mr. President, I think there is no question of constitutionality,
there is no question of need, and there is no question about the timing
requirement that we act now. Therefore, I urge my colleagues to support
the Schumer-Kyl legislation to enable us to include it as part of the
authorization bill for our Intelligence Committee. If there is any
question about whether or not their support would be there, bring that
to
[[Page S10428]]
my attention at the earliest moment so that we won't have an issue.
I have assured Senator Graham of Florida, chairman of the Select
Committee on Intelligence, of my commitment to ensure that the
authorization bill is passed and not to allow anything to interfere
with that. At the same time, it seems to me our proposal here is so
required, so commonsense, so timely, that it is appropriate to include
it in the legislation and that the burden should be on someone who
objects to demonstrate to us why they object, if in fact they do.
Mr. President, I ask unanimous consent to print in the Record at the
conclusion of my remarks two documents: One is a Dear Colleague letter
dated September 26, 2002, that was sent by Senator Schumer and I to our
colleagues that describes in some detail S. 2586; and the other
document is a statement for the Record of Marion E. "Spike" Bowman,
Deputy General Counsel, the Federal Bureau of Investigation, in
testimony before the Senate Select Committee on Intelligence, July 31,
2002.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. KYL. Mr. President, let me note a little bit what the second
document is, and then I will conclude. What the Deputy General Counsel
of the FBI testified before our committee was how terrorism has changed
from the time the FISA statute was first enacted to what we see today.
Let me quote a little bit from his statement:
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.
Mr. President, he goes on then to relate that to the legislation that
Senator Schumer and I introduced. Let me quote a little more. What he
says is:
. . . we are increasingly seeing terrorist suspects who
appear to operate at a distance from these organizations. In
perhaps an oversimplification, but illustrative nevertheless,
what we see today are (1) agents of foreign powers in the
traditional sense who are associated with some organization
or discernible group (2) individuals who appear to have
connections with multiple terrorist organizations but who do
not appear to owe allegiance to any one of them, but rather
owe allegiance to the International Jihad movement----
Parenthetically, Mr. President, which is not a terrorist
organization----
and (3) individuals who appear to be personally oriented
toward terrorism but with whom there is no known connection
to a foreign power.
Let me skip in the interest of time. Agent Bowman goes on to say:
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 was the only way they could combat the
more advanced Soviet forces.
These are the forces that after the Soviets were defeated in
Afghanistan became a force that coalesced around, among others, Osama
bin Laden, but not all of them associated specifically with Bin Laden.
I quote further:
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.
This is the way we have organized our statutes. What he is telling us
is we are not seeing it the way our enemies see it. They do not
organize in groups. They do not have membership cards that say they are
a member of al-Qaida. They have coalesced around an idea, not a group.
The agent concludes this way:
The lesson to be taken from this 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.
He concludes by saying:
The United States and its allies, to include law
enforcement and intelligence components world-wide have had
an impact on the terrorists, but they 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.
That is the end of that quotation, Mr. President. Of course, he and
others representing the Department of Justice went on to specifically
endorse the Schumer-Kyl legislation to bring our current FISA statute
up to date to conform to this new challenge about which Agent Bowan
testified. That is the change we are trying to make.
To wrap this up, there are three words we would add to the FISA
statute: "or foreign person," so that if you can prove the terrorist
is either a terrorist for an international terrorist organization or is
a terrorist for another state, a country, or is acting for himself "or
foreign person" are the words we use--in other words, he is a
terrorist and a foreign person--any one of those three circumstances
enable you to go to the judge and say: Here is our evidence that this
individual is planning to engage in terrorism against people in the
United States. Will you give us a warrant to search his computer, to
search his personal effects, his home, or to put a wiretap on his
telephone, whatever the case might be? The judge will then make a
decision under the law, whether it is authorized or not.
If the court authorizes the issuance of the warrant, we can then look
further to determine what this individual is seeking to do. We may find
out it is an innocent situation or we may find out that the individual
is just acting on his own but is a radical terrorist meaning to do harm
to Americans or we may find, as in the case of Zacarias Moussaoui, that
it turns out he is engaged as part of an international conspiracy with
a specific organization, in this case al-Qaida, but we do not know that
and cannot prove it going in. That is why the change we seek is so
critical.
I ask my colleagues to support the inclusion of this amendment as
part of the authorization bill for the intelligence community, and if
there is any problem that anybody sees, to bring it to our attention so
we can deal with that prior to that bill coming to the floor because we
do not want to slow that bill down or stop it from being considered
favorably on the Senate floor.
Mr. President, I urge my colleagues to support our amendment. It is
for the good of the country, for our national security, and I say this
in conclusion: If we fail to do this and it was our fault that someone
utilized our legal system to plan an act of terror against Americans,
and Americans are killed or injured as a result of our failure, then we
would have nobody but ourselves to blame.
I am going to try as hard as I can to get this done, but anyone who
stands in the way is going to have to stand accountable if, God forbid,
something should happen and we are unable to get this accomplished
before we close our session.
I urge my colleagues to please support Senator Schumer and me in
ensuring we can get this important amendment accomplished before we
adjourn for the year.
Exhibit 1
U.S. Senate,
Committee on the Judiciary,
Washington, DC, September 26, 2002.
Dear Colleague: We have introduced S. 2586--the Schumer/Kyl
"Moussaoui exception" bill--as an amendment to the Homeland
Security bill. S. 2586 would amend the
[[Page S10429]]
Foreign Intelligence Surveillance Act (FISA) to reach any
foreign visitor to the United States who is believed to be
involved in international terrorism, regardless of whether
that person is known to be an agent of a foreign government
or terror group. The bill is designed to make it easier for
the FBI to monitor suspected lone-wolf terrorists such as
alleged 20th hijacker Zaccarias Moussaoui.
The Senate Select Committee on Intelligence held a hearing
on S. 2586 on July 31, 2002. The Department of Justice has
endorsed the bill in a Statement of Administration Policy,
which we have attached for your review. Below is our
explanation of the workings of the bill and an examination of
those facts that we believe show that this change is
necessary. We hope that you will join us in supporting this
important legislation.
The Foreign Intelligence Surveillance Act requires that in
order for a warrant to issue under that law, a court must
find probable cause to believe that the target of the warrant
is either an agent of, or is himself, a "foreign power"--a
term that is currently defined to only include foreign
governments or international terrorist organizations.
Requiring a link to governments or established organizations
may have made sense when FISA was enacted in 1978; in that
year, the prototypical FISA target was a Soviet spy or a
member of one of the hierarchical, military-style terror
groups of that era, such as West Germany's Baader-Meinhof
gang or the Red Army Faction. Today, however, the United
States faces a much different threat. We are principally
confronted not by a specific group or government, but by a
movement. This movement--of Islamist extremists--does not
maintain a fixed structure or membership list, and its
adherents do not always advertise their affiliation with this
cause.
S. 2586 will help the United States to meet this threat by
expanding FISA's definition of "foreign power." In addition
to governments and organized groups, that term, under the
bill, would also include "any person, other than a United
States person, or group that is engaged in international
terrorism or activities in preparation therefor." With this
change, U.S. intelligence agents would be able to secure a
FISA warrant to monitor a foreign visitor to the United
States who is involved in international terrorism--even if
his links to foreign government or known terror groups remain
obscure.
The role of the foreign-power requirement in obstructing
pre-September 11 investigations of Zaccarias Moussaoui was
confirmed in dramatic testimony before the House and Senate
Intelligence Committees on Tuesday of this week. An agent
from the Minneapolis FBI office described to the Committees
how that office opened an investigation of Moussaoui on
August 15, 2001. Minneapolis agents arrested Moussaoui on
immigration charges and applied for a FISA warrant to search
his belongings. But as the FBI's Deputy General Counsel
stated on Tuesday before the Committees, although Moussaoui
was found to have some associations with Chechen terrorists,
the evidence was inadequate to show that he served as an
agent of that group--or that he had any links to Al Qaeda.
(Thus, as the FBI's Deputy General Counsel has confirmed, it
was the strength of Moussaoui's connection to the Chechens--
not a "misunderstanding" of whether the Chechens constitute
a "recognized" foreign power for FISA purposes, as
yesterday's Washington Post story suggested--that ultimately
prevented the issuance of a warrant.) As a result, for three
weeks prior to the September 11 attacks, the FBI was unable
to search Moussaoui's computer or his papers.
After the Trade Center and Pentagon attacks--and largely
because of them--the FBI received a criminal warrant to
search Moussaoui. Among other things, the information in his
effects linked Moussaoui to two of the actual hijackers, and
to a high-level organizer of the attacks who was recently
arrested in Pakistan.
No one can say whether this information would have allowed
the FBI to stop the September 11 conspiracy. But all must
agree that the FBI should have access to this information.
Once U.S. agents had evidence that Moussaoui was involved in
international terrorism, the full tools of FISA should have
been available to them--regardless of whether Moussaoui could
be linked to a particular group. Instead, this outdated and
unnecessary requirement blocked U.S. intelligence agents from
pursuing their best lead on the eve of the September 11
attacks. Indeed, according to FBI Director Mueller, the
current standard probably would have prevented the FBI from
using FISA against any of the September 11 hijackers. As the
Director noted in his testimony before the Judiciary
Committee earlier this year, "prior to September 11, [of]
the 19 or 20 hijackers, * * * we had very little information
as to any one of the individuals being associated with * * *
* a particular terrorist group."
Several congressional Committees have now conducted
investigations and held hearings examining why our
intelligence services failed to prevent the September
attacks. Those hearings and investigations uncovered a
substantial defect in the current law--a defect that may have
prevented the United States from stopping that conspiracy,
and is likely to hinder future investigations. Simply put,
our laws are no longer suited to the type of threat that we
face. It is now incumbent on Congress to act on what it has
learned.
We hope that you will join us in supporting our "Moussaoui
fix" amendment to the Homeland Security bill, should a roll
call vote on that amendment be required.
If you have any questions, please contact Jim Flood in
Senator Schumer's office at 4-7425 or Joe Matal in Senator
Kyl's office at 4-6791.
Sincerely,
Charles Schumer.
Jon Kyl.
____
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, July 31, 2002.
Hon. Bob Graham,
Chairman, Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Hon. Richard C. Shelby,
Vice-Chairman, Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Dear Mr. Chairman and Mr. Vice Chairman: The letter
presents the views of the Justice Department on S. 2586, a
bill "[t]o exclude United States persons from the definition
of `foreign power' under the Foreign Intelligence
Surveillance Act of 1978 relating to international
terrorism." The bill would extend the coverage of the
Foreign Intelligence Surveillance Act ("FISA") to
individuals who engage in international terrorism or
activities in preparation therefor without a showing of
membership in or affiliation with an international terrorist
group. The bill would limit this type of coverage to non-
United States persons. The Department of Justice supports S.
2586.
We note that the proposed title of the bill is potentially
misleading. The current title is "To exclude United States
persons from the definition of `foreign power' under the
Foreign Intelligence Surveillance Act of 1978 relating to
international terrorism." A better title, in keeping with
the function of the bill, would be something along the
following lines: "To expand the Foreign Intelligence
Surveillance Act of 1978 (`FISA') to reach individuals other
than United States persons who engage in international
terrorism without affiliation with an international terrorist
group."
Additionally, we understand that a question has arisen as
to whether S. 2586 would satisfy constitutional requirements.
We believe that it would.
FISA allows a specially designated court to issue an order
approving an electronic surveillance or physical search,
where a significant purpose of the surveillance or search is
"to obtain foreign intelligence information." Id
Sec. Sec. 1804(a)(7)(B), 1805(a). Given this purpose, the
court makes a determination about probable cause that differs
in some respects from the determination ordinarily underlying
a search warrant. The court need not find that there is
probable cause to believe that the surveillance or search, in
fact, will lead to foreign intelligence information, let
alone evidence of a crime, and in many instances need not
find probable cause to believe that the target has committed
a criminal act. The court instead determines, in the case of
electronic surveillance, whether there is probable cause to
believe that "the target of the electronic surveillance is a
foreign power or an agent of a foreign power," id.
Sec. 1805(a)(3)(A), and that each of the places at which the
surveillance is directed "is being used, or about to be
used, by a foreign power or an agent of a foreign power,"
id. Sec. 1805(a)(3)(B). The court makes parallel
determinations in the case of a physical search. Id.
Sec. 1824(a)(3) (A), (B).
The terms "foreign power" and "agent of a foreign
power" are defined at some length, id. Sec. 1801(a), (b),
and specific parts of the definitions are especially
applicable to surveillances or searches aimed at collecting
intelligence about terrorism. As currently defined, "foreign
power" includes "a group engaged in international terrorism
or activities in preparation therefor," id. Sec. 1801(a)(4)
(emphasis added), and an "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," id.
Sec. 1801(b)(2)(C). "International terrorism" is defined to
mean activities that
(1) involve violent acts or acts dangerous to human life
that are a violation of the criminal laws of the United
States or of any State, or that would be a criminal violation
if committed within the justification of the United States or
any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation
or coercion; or
(C) to affect the conduct of a government by assassination
or kidnapping; and
(3) occur totally outside the United States, or 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.
Id. Sec. 1801(c).
S. 2586 would expand the definition of "foreign power" to
reach persons who are involved in activities defined as
"international terrorism," even if these persons cannot be
shown to be agents of a "group" engaged in international
terrorism. To achieve this expansion, the bill would add the
following italicized words to the current definition of
"foreign power": "any person other than a United States
person who is, or a group that is, engaged in international
terrorism or activities in preparation therefor."
The courts repeatedly have upheld the constitutionality,
under the Fourth Amendment, of the FISA provisions that
permit
[[Page S10430]]
issuance of an order based on probable cause to believe that
the target of a surveillance or search is a foreign power or
agent of a foreign power. The question posed by S. 2586 would
be whether the reasoning of those cases precludes expansion
of the term "foreign power" to include individual
international terrorists who are unconnected to a terrorist
group.
The Second Circuit's decision in United States v. Duggan,
743 F. 2d 59 (2d Cir. 1984), sets out the fullest explanation
of the "governmental concerns" that had led to the
enactment of the procedures in FISA. To identify these
concerns, the court first quoted from the Supreme Court's
decision in United States v. United States District Court,
407 U.S. 297, 308 (1972) ("Keith"), which addressed
"domestic national security surveillance" rather than
surveillance of foreign powers and their agents, but which
specified the particular difficulties in gathering "security
intelligence" that might justify departures from the usual
standards for warrants: "[Such intelligence gathering] is
often long range and involves the interrelation of various
sources and types of information. The exact targets of such
surveillance may be more difficult to identify than in
surveillance operations against many types of crime specified
in Title III [dealing with electronic surveillance in
ordinary criminal cases]. Often, too, the emphasis of
domestic intelligence gathering is on the prevention of
unlawful activity or the enhancement of the government's
preparedness for some possible future crisis or emergency.
Thus the focus of domestic surveillance may be less precise
than that directed against more conventional types of
crime." Duggan, 743 F.2d at 72 (quoting Keith, 407 U.S. at
322). The Second Circuit then quoted a portion of the Senate
Committee Report on FISA. "[The] reasonableness [of FISA
procedures] depends, in part, upon an assessment of the
difficulties of investigating activities planned, directed,
and supported from abroad by foreign intelligence services
and foreign-based terrorist groups. . . Other factors include
the international responsibilities of the United States, the
duties of the Federal Government to the States in matters
involving foreign terrorism, and the need to maintain the
secrecy of lawful counterintelligence sources and methods."
Id. at 73 (quoting S. Rep. No. 95-701, at 14-15, reprinted in
1978 (U.S.C.C.A.N. 3973, 3983) ("Senate Report"). The court
concluded:
"Against this background, [FISA] requires that the FISA
Judge find probable cause to believe that the target is a
foreign power or an agent of a foreign power, and that the
place at which the surveillance is to be directed is being
used or is about to be used by a foreign power or an agent of
a foreign power; and it requires him to find that the
application meets the requirements of [FISA]. These
requirements make it reasonable to dispense with a
requirement that the FISA Judge find probable cause to
believe that surveillance will in fact lead to the gathering
of foreign intelligence information."
Id. at 73. The court added that, a fortiori, it
"reject[ed] defendants' argument that a FISA order may not
be issued consisted with the requirements of the Fourth
Amendment unless there is a showing of probable cause to
believe the target has committed a crime." Id. at n.5. See
also, e.g., United States v. Pelton, 835 F.2d 1067, 1075 (4th
Cir. 1987); United States v. Cavanagh, 807 F.2d 787, 790-91
(9th Cir. 1987) (per then-Circuit Judge Kennedy); United
States v. Nicholson, 955 F. Supp. 588, 590-91 (E.D. Va.
1997).
We can conceive of a possible argument for distinguishing,
under the Fourth Amendment, the proposed definition of
"foreign power" from the definition approved by the courts
as the basis for a determination of probable cause under FISA
as now written. According to this argument, because the
proposed definition would require no tie to a terrorist
group, it would improperly allow the use of FISA where an
ordinary probable cause determination would be feasible and
appropriate--where a court could look at the activities of a
single individual without having to assess "the
interrelation of various sources and types of information,"
see Keith, 407 U.S. at 322, or relationships with foreign-
based groups, see Duggan, 743 F.2d at 73; where there need to
be no inexactitude in the target or focus of the
surveillance, see Keith, 407 U.S. at 322; and where the
international activities of the United States are less likely
to be implicated, see Duggan, 743 F.2d at 73. However, we
believe that this argument would not be well-founded.
The expanded definition shall 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." Id. at 73 (quoting Senate Report at 14).
The individuals covered by S. 2586 would not be United States
persons, and the "international terrorism" in which they
would be involved would continue to "occur totally outside
the United States, to 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." 50 U.S.C.
Sec. 1801(c)(3). These circumstances would implicate the
"difficulties of investigating activities planned, directed,
and supported from abroad," just as current law implicates
such difficulties in the case of foreign intelligence
services and foreign-based terrorist groups. Duggan, 743 F.2d
at 73 (quoting Senate Report at 14). To overcome those
difficulties, a foreign intelligence investigation "often
[will be] long range and involved[] the interrelation of
various sources and types of information." Id. at 72
(quoting Keith, 407 U.S. at 322). This information frequently
will require special handling, as under the procedures of the
FISA court, because of "the need to maintain the secrecy of
lawful counterintelligence sources and methods." Id. at 73
(quoting Keith, 407 U.S. at 322). Furthermore, because in
foreign intelligence investigations under the expanded
definition "[o]ften . . . the emphasis . . . [will be] on
the prevention of unlawful activity or the enhancement of the
government's preparedness for some possible future crisis or
emergency," the "focus of . . . surveillance may be less
precise than that directed against more conventional types of
crime." Id. at 73 (quoting Keith, 407 U.S. at 322).
Therefore, the same interests and considerations that support
the constitutionality of FISA as it now stands would provide
the constitutional justification for the S. 2586.
Indeed, S. 2586 would add only a modest increment to the
existing coverage of the statute. As the House Committee
Report on FISA suggested, a "group' of terrorist covered by
current law might be as small as two or three persons. H.R.
Rep. No. 95-1283, at pt. 1, 74 and n. 38 (1978). The interest
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 of two or three persons and a case
involving a single terrorist.
The events of the past few months point to one other
consideration on which courts have not relied previously in
upholding FISA procedures--the extraordinary level of harm
that an international terrorist can do to our Nation. The
touchstone for the constitutionality of searches under the
Fourth Amendment is whether they are "reasonable." As the
Supreme Court has discussed in the context of "special needs
cases," whether a search is reasonable depends on whether
the government's interests outweigh any intrusion into
individual privacy interests. In light of the efforts of
international terrorists to obtain weapons of mass
destruction, it does not seem debatable that we could suffer
terrible injury at the hands of a terrorist whose ties to an
identified "group" remained obscure. Even in the criminal
context, the Court has recognized the need for flexibility is
cases of terrorism. See Indianapolis v. Edmond, 531 U.S. 32,
44 (2000) ("the Fourth Amendment would almost certainly
permit an appropriately tailored roadblock set up to thwart
an imminent terrorist attack"). Congress could legitimately
judge that even a single international terrorist, who intends
"to intimidate or coerce a civilian population" or "to
influence the policy of a government by intimidation or
coercion" or "to affect the conduct of a government by
assassination or kidnapping," 50 U.S.C. Sec. 1801(c)(2),
acts with the power of a full terrorist group or foreign
nation and should be treated as a "foreign power" subject
to the procedures of FISA rather than those applicable to
warrants in criminal cases.
Thank you for the opportunity to present our views. Please
do not hesitate to call upon us if we may be additional
assistance. The Office of Management and Budget has advised
us that from the perspective of the Administration's program,
there is no objection to submission of this letter.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
____
Statement for the Record of Marion E. (Spike) Bowman, Deputy General
Counsel, Federal Bureau of Investigation, Before the Senate Select
Committee on Intelligence, July 31, 2002
Mr. Chairman and members of the Committee, thank you for
inviting me here today to testify on the legislative
proposals concerning the Foreign Intelligence Surveillance
Act (FISA). Holding this hearing demonstrates your collective
and individual commitment to improving the security of our
Nation. The Federal Bureau of Investigation greatly
appreciates your leadership, and that of your colleagues in
other committees on this very important topic.
The Foreign Intelligence Surveillance Act was written more
than two decades ago. When adopted, the Act brought a degree
of closure to fifty years of discussion concerning
constitutional limits on the President's power to order
electronic surveillance for national security purposes. A
subsequent amendment brought physical search under the Act.
In keeping with our standards of public governance, the
proposals for the Act were publicly debated over a
substantial period of time, compromises were reached and a
statute eventually adopted. In the final analysis the
standards governing when and how foreign intelligence
surveillance or search would be conducted was a political one
because it involved weighting of important public policy
concerns surrounding both personal liberty and national
security. That is how it should be.
In the intervening years FISA has proved its worth on
countless occasions in preventing the occurrence or the
continuation of harm to the national security. It has been a
very effective tool and time has proved that this cooperative
effort of the three branches of government can serve to
protect the public without eroding civil liberties. Indeed,
the legislative history shows that Congress intended that the
Executive Branch
[[Page S10431]]
keep a focus on civil liberties by giving great care and
scrutiny every application before it is presented to a judge.
We believe that intent has been fulfilled. The fact that an
Article III judge is the final arbiter of compliance serves
to give additional confidence to the public that the intent
of the statute is fulfilled.
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 as 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. That brings us to the
legislation being considered today.
The FBI uses investigative tools to try to prevent acts of
terrorism wherever we can, but particularly to prevent
terrorism directed at Americans or American interests. Most
of our investigations occur within the United States and, for
the most part, focus on individuals. Historically, terrorism
subjects of FBI investigation have been associated with
terrorist organizations. As a result, FBI has usually been
able to associate an individual with a terrorist organization
pled, for FISA purposes, as a foreign power. To a substantial
extent, that remains true today. However, we are increasingly
seeing terrorist suspects who appear to operate at a distance
from these organizations. In perhaps an oversimplification,
but illustrative nevertheless, what we see today are (1)
agents of foreign powers in the traditional sense who are
associated with some organization or discernible group, (2)
individuals who appear to have connections with multiple
terrorist organizations but who do not appear to owe
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 to be 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.
BACKGROUND
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. They were also influenced by radical spiritual
and temporal leaders, one of whom has gained prominence on a
global scale--Usama Bin Liden.
Following the withdrawal of the Soviet forces from
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 was the only way they could combat the more
advanced Soviet forces. They also returned with new concepts
of community that had little to do with nationalism. Those
concepts of community fed naturally into opposition to the
adoption, and toleration, of western culture. As a result,
many of the Arab-Afghan returnees united, or reunited, with
indigenous radical Islamic groups they had left behind when
they went to Afghanistan. These Arab-Afghan mujahedin,
equipped with extensive weapons and explosives training,
infused radicals and already established terrorist groups,
resulting in the creation of significantly better trained and
more highly motivated cells dedicated to jihad.
Feeding the radical element was the social fact that this
occurred in nations where there was widespread poverty and
unemployment. The success of the Arab intervention in
Afghanistan was readily apparent, so when the Arab-Afghan
returnees came home they discovered populations of young
Muslims who increasingly were ready and even eager to view
radical Islam as the only viable means of improving
conditions in their countries. Seizing on widespread
dissatisfaction with regimes that were brimming with un-
Islamic ways, regimes that hosted foreign business and
foreign military, many young Muslim males became eager to
adopt the successful terrorist-related activities that had
been successfully used in Afghanistan in the name of
Islam. It was only a matter of time before these young
Muslin males began to seek out the military and explosives
training that the Arab-Afghan returnees possessed.
usama bin laden
Usama bin Laden gained prominence during the Afghan war in
large measure for his logistical support to the resistance.
He financed recruitment, transportation and training of Arab
nations who volunteered to fight alongside the Afghan
mujahedin. The Afghan war was clearly a defining experience
in his life. In a May, 1996 interview with Time Magazine, UBL
stated: "in our religion there is a special place in the
hereafter for those who participate in jihad. One day in
Afghanistan was like 1,000 days in an ordinary mosque."
Although bin Laden was merely one leader among many during
the Soviet-Afghan conflict, he was a wealthy Saudi who fought
alongside the mujahedin. In consequence, his statute with the
fighters was high during the war and he continued to rise in
prominence such that, by 1998, he was able to announce a
"fatwa" (religious ruling) that would be respected by far-
flung Islamic radicals. In short, he stated that it is the
duty of all Muslims to kill Americans: "in compliance with
God's order, we issue the following fatwa to all Muslims: the
ruling to kill the Americans and their allies, including
civilians and military, is the individual duty for every
Muslim who can do it in any country in which it is possible
to do it."
Bin Laden was not alone in issuing this fatwa. It was
signed as well by a coalition of leading Islamic militants to
include Ayman Al-Zawahiri (at the time the leader of the
Egyptian Islamic Jihad), Abu Yasr Rifa'i Ahmad Taha (Islamic
Group leader) and Sheikh Fazl Ur Rahman (Harakat Ul Ansar
leader). The fawa was issued under the name of the
International Islamic Front for Jihad on the Jews and
Christians. This fawa was significant as it was the first
public call for attacks on Americans, both civilian and
military, and because it reflected a unified position among
recognized leaders in the radical Sunni Islamic community. In
essence, the fatwa reflected the globalization of radical
Islam.
There is a terrorist network of extremists that has been
evolving in the murky terrain of Southwest Asia that uses its
extremist views of Islam to justify terrorism. His
organization, al Qaeda is but one example of this network.
al qaeda
Although Al-Qaeda functions independent of other terrorist
organizations, it also functions through some of the
terrorist organizations that operate under its umbrella or
with its support, including: the Al-Jihad, the Al-Gamma Al-
Islamiyya (Islamic Group--led by Sheik Omar Abdel Rahman and
later by Ahmed Refai Taha, a/k/a "Abu Yasser al Masri,"),
Egyptian Islamic Jihad, and a number of jihad groups in other
countries, including the Sudan, Egypt, Saudi Arabia, Yemen,
Somalia, Eritrea, Djibouti, Afghanistan, Pakistan, Bosnia,
Croatia, Albania, Algeria, Tunisia, Lebanon, the Philippines,
Tajikistan, Azerbaijan, the Kashmiri region of India, and the
Chechen region of Russia. Al-Qaeda also maintained cells and
personnel in a number of countries to facilitate its
activities, including in Kenya, Tanzania, the United Kingdom,
Canada, and the United States. By banding together, Al-Qaeda
proposed to work together against the perceived common
enemies in the West--particularly the United States which Al-
Qaeda regards as an "infidel" state which provides
essential support for other "infidel" governments. Al-Qaeda
responded to the presence of United States armed forces in
the Gulf and the arrest, conviction and imprisonment in the
United States of persons belonging to Al-Qaeda by issuing
fatwas indicating that attacks against U.S. interests,
domestic and foreign, civilian and military, were both proper
and necessary. Those fatwas resulted in attacks against U.S.
nationals in locations around the world including Somalia,
Kenya, Tanzania, Yemen, and now in the United States. Since
1993, thousands of people have died in those attacks.
the training camps
With the globalization of radical Islam now well begun, the
next task was gain adherents and promote international jihad.
A major tool selected for this purpose was the promotion of
terrorism training camps that had long been established in
Afghanistan. It is important to note, that while terrorist
adherents to what we have come to know as al Qaeda trained in
the camps, many others did as well. For example, according to
the convicted terrorist Ahmed Ressam, representatives of the
Algerian Armed Islamic Group (GIA) and its off-shoot the
Salafi Groups for Call and Combat (GSPC), HAMAS, Hizballah,
the Egyptian Islamic Jihad (EIJ) and various other terrorists
trained at the camps.
Ressam also reports that cells were formed, dependent, in
part, on the timing of the arrival of the trainees, rather
than on any cohesive or pre-existing organizational
structure. As part of the training, cleric and other
authority figures advised the cells of the targets that are
deemed valid and proper. The training they received included
placing bombs in airports, attacks against U.S. military
installations, U.S. warships, embassies and business
interests of the United States and Israel. Specifically
included were hotels holding conferences of VIPs, military
barracks, petroleum targets and information/technology
centers. As part of the training, scenarios were developed
that included all of these targets.
[[Page S10432]]
Ressam, who a not a member of al Qaeda, has stated that the
cells were independent, but were given lists of the types of
targets that were approved and were initiated into the
doctrine of the international Jihad. Ressam explicitly noted
that his own terrorism attack did not have bin Laden's
blessing or his money, but he believed it would have been
given had he asked for it. He did state that bin Laden urged
more operations within the United States.
The International Jihad
We believe the suicide hijackers of September 11, 2001
acted in support of the 1998 fatwa which, in turn describes
what we believe is the international jihad. During 1997 UBL
described the "international jihad" as follows:
"The influence of the Afghan jihad on the Islamic world
was so great and it necessitates that people should rise
above many of their differences and unite their efforts
against their enemy. Today, the nation is interacting well by
uniting their efforts through jihad against the U.S. which
has in collaboration with the Israeli government led the
ferocious campaign against the Islamic world in occupying the
holy sites of the Muslims. . . . [A]ny act of aggression
against any of this land of a span of the hand measure makes
it a duty for Muslims to send a sufficient number of their
sons to fight off that aggression."
In May of 1988, UBL gave an interview in which he stated
"God willing, you will see our work on the news. . . ." The
following August the East African embassy bombings occurred.
That was bin Laden speaking, but it should be remembered that
the call to harm America is not limited to al Qaeda. Shortly
after September 11 Mullah Omar said "the plan [to destroy
America] is going ahead and God willing it is being
implemented. . . ." Sheikh Ikrama Sabri, a Palestinian
Mufti, said in a radio sermon in 1997, "Oh Allah, destroy
America, her agents, and her allies! Cast them into their own
traps, and cover the White House with black! " Ali
Khameine'i, in 1998, said "The American regime is the enemy
of [Iran's] Islamic government and our revolution." There
are many other examples, but the lesson to be drawn is that
al Qaeda is but one faction of a larger and very amorphous
radical anti-western network that uses al Qaeda members as
well as others sympathetic to al Qaeda's ideas or that share
common hatreds.
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 the concepts that make them a community. One
place to look at the phenomenon of the "international
jihad" is the web. Like many other groups, Muslim extremists
have found the Internet to be a convenient tool for spreading
propaganda and helpful hints for their followers around the
world. Web sites calling for jihad, or holy war, against the
West are not uncommon.
One of the larger jihad-related Internet offers primers
including "How Can I Train Myself for Jihad." Traffic on
this site, which is available in more than a dozen languages,
increased 10-fold following the attacks, according to a
spokesman for the site.
The lesson to be taken from this is that al Qaeda 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 be
organizational structure. The intent is establishment of a
state, or states ruled by Islamic law and free of western
influence. Bin Laden's contribution to the Islamic jihad is a
creature of the modern world. He has spawned a global network
of individuals with common, radical ideas, kept alive through
modern communications and sustained through forged documents
and money laundering activities on a global scale. While some
may consider extremist Islam to be in retreat at the moment,
its roots run deep and exceedingly wide. Those roots take
many forms, one of which is the focus of this hearing.
In the final analysis, the International Jihad movement is
comprised of dedicated individuals committed to establishing
the umma through terrorist means. Many of these are persons
who attended university together, trained in the camps
together, traveled together. Al Qaeda and the international
terrorists remain focused on the United States as their
primary target. The United States and its allies, to include
law enforcement and intelligence components worldwide have
had an impact on the terrorists, but they 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 terrorism problem. While I cannot discuss
specific cases in a public hearing, the FBI has encountered
individuals who cannot be sufficiently linked to a terrorist
group or organization as required by FISA. The FBI greatly
appreciates the Committee's consideration of this issue and
looks forward to working with the Committee to find the best
approach for appropriate investigation of such individuals.
Mr. KYL. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DASCHLE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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