Congressional Record: May 21, 2004 (Senate)
Page S6096-S6099
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KYL (for himself, Mr. Miller, Mr. Cornyn, Mr. Sessions,
Mr. Chambliss, Mr. Graham of South Carolina, Mr. Nickles, Mr.
McConnell, Mr. Inhofe, and Mr. Roberts):
S. 2476. A bill to amend the USA PATRIOT Act to repeal the sunsets;
to the Committee on the Judiciary.
Mr. KYL. Mr. President, I rise today to introduce a bill that would repeal
Sec. 224 of the USA Patriot Act. Section 224 provides that 16 different
parts of the Patriot Act ``shall cease to have effect on December 31,
2005.'' The authorities subject to this sunset include some of the most
important provisions of the Act. They are sections 201, wiretapping in
terrorism cases; 202, wiretapping in computer fraud and abuse felony
case; 203(b) sharing wiretap information; 203(d), sharing foreign
intelligence information; 204, Foreign Intelligence Surveillance Act
(FISA) pen register/trap and trace exceptions; 206, roving FISA
wiretaps; 207, duration of FISA surveillance of non-United States
persons who are agents of a foreign power; 209, seizure of voice-mail
messages pursuant to warrants; 212, emergency disclosure of electronic
surveillance; 214, FISA pen register/ trap and trace authority; 215,
FISA access to tangible items; 217, interception of computer trespasser
communications; 218, purpose for FISA orders; 220, nationwide service
of search warrants for electronic evidence; 223, civil liability and
discipline for privacy violations; and 225, provider immunity for FISA
wiretap assistance.
Rather than praise the Patriot Act myself, I would like to quote
others who have done so. First, I would note that the President has
called on Congress to renew all parts of the Patriot Act that are
scheduled to expire next year. As he has emphasized, ``to abandon the
Patriot Act would deprive law enforcement and intelligence officers of
needed tools in the war on terror, and demonstrate willful blindness to
a continuing threat.''
FBI Director Robert Mueller, in a hearing before the Judiciary
Committee yesterday, also voiced strong support for renewing the
Patriot Act. As he noted, ``for over two and a half years, the PATRIOT
Act has proved extraordinarily beneficial in the war on terrorism and
has changed the way the FBI does business. Many of our counterterrorism
successes, in fact, are the direct results of provisions included in
the Act, a number of which are scheduled to `sunset' at the end of next
year. I strongly believe it is vital to our national security to keep
each of these provisions intact.''
Similarly, in an April 14 field hearing before the Judiciary
Committee, Deputy Attorney General James Comey stated that the Patriot
Act ``has made us immeasurably safer.'' He also responded to the
allegation, occasionally made by some critics, that the Patriot Act was
passed too quickly. He replied that ``the USA Patriot Act was not
rushed, it actually came 10 years too late.''
The importance of the Patriot Act to American security also has drawn
the attention of the 9/11 Commission. Former New Jersey Governor Thomas
Kean has noted that the Commission has had ``witness after witness tell
us that the Patriot Act has been very, very helpful, and if the Patriot
Act, or portions of it, had been in place before 9/11, that would have
been very helpful.''
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This praise has not been limited to the Republicans who have
participated in the Commission's proceedings. Former Attorney General
Janet Reno, for example, testified before the Commission that
``everything that's been done in the Patriot Act has been helpful.''
Nor is President Bush alone among the major candidates for President
this year in hailing the importance of the Patriot Act. Indeed, his
principal rival for the office, Senator Kerry, recently claimed that he
would go even further than the President. According to an April 25
story in the Los Angeles Times, Senator Kerry's spokesman insists that
``it is the challenger, not the president, who brings the most muscular
view of the Patriot Act into the race.'' Senator Kerry's presidential
campaign website even includes a ``Plan to Restore American Security,''
which lists as its number-one priority to ``improve intelligence
capabilities.'' Senator Kerry states that he ``understands that
intelligence information is the key to disrupting and dismantling
terrorist organizations and that we need to improve our intelligence
capabilities, both domestically and internationally, in order to win
the war on global terrorism.''
One reform implemented by the Patriot Act that Attorney General Reno
and others have particularly emphasized is its authorization for
information sharing. Because this part of the Patriot Act is often
praised but infrequently described in detail, I would like to quote the
following accounts of pre-Patriot barriers to information sharing, and
of the investigative successes that the removal of those barriers has
made possible.
The FISA Court of Review decision upholding the Patriot Act's
authorization for information sharing, In re: Sealed Case, 310 F.3d
717,
F.I.S. Ct. Rev. 2002 , describes the origins of the pre-Patriot
barriers:
Apparently to avoid running afoul of the primary purpose
test used by some courts, the 1995 [Attorney General]
Procedures [(``Procedures for Contacts Between the FBI and
the Criminal Division Concerning Foreign Intelligence and
Foreign Counterintelligence Investigations'')] limited
contacts between the FBI and the Criminal Division in cases
where FISA surveillance or searches were being conducted by
the FBI for foreign intelligence (FI) or foreign
counterintelligence (FCI) purposes. The procedures state that
``the FBI and Criminal Division should ensure that advice
intended to preserve the option of a criminal prosecution
does not inadvertently result in either the fact or the
appearance of the Criminal Division's directing or
controlling the FI or FCI investigation toward law
enforcement objectives.'' Although these procedures provided
for significant information sharing and coordination between
criminal and FI or FCI investigations, based at least in part
on the ``directing or controlling'' language, they eventually
came to be narrowly interpreted within the Department of
Justice, and most particularly by OIPR, as requiring OIPR to
act as a ``wall'' to prevent the FBI intelligence officials
from communicating with the Criminal Division regarding
ongoing FI or FCI investigations. Thus, the focus became the
nature of the underlying investigation, rather than the
general purpose of the surveillance. Once prosecution of the
target was being considered, the procedures, as interpreted
by OIPR in light of the case law, prevented the Criminal
Division from providing any meaningful advice to the FBI.''
In re: Sealed Case, 310 F.3d at 727-28 citations omitted.
FBI Director Mueller, in his testimony yesterday, provided a concrete
account of the impact that these information-sharing barriers had on
intelligence investigations:
Prior to September 11, an [FBI] Agent investigating the
intelligence side of a terrorism case was barred from
discussing the case with an Agent across the hall who was
working the criminal side of that same investigation. For
instance, if a court-ordered criminal wiretap turned up
intelligence information, the criminal investigator could not
share that information with the intelligence investigator--he
could not even suggest that the intelligence investigator
should seek a wiretap to collect the information for himself.
If the criminal investigator served a grand jury subpoena to
a suspect's bank, he could not divulge any information found
in those bank records to the intelligence investigator.
Instead, the intelligence investigator would have to issue a
National Security Letter in order to procure that same
information.
Chicago U.S. Attorney Patrick Fitzgerald, in an October 21, 2003
hearing before the Senate Judiciary Committee, described how these pre-
Patriot information-sharing limits undercut one potentially vital
terror investigation. Mr. Fitzgerald discussed the grand-jury testimony
of Wadih el Hage, a key member of the Al Qaeda cell in Nairobi who, in
September 1997, was apprehended while changing flights in New York
City. Federal prosecutors subpoenaed el Hage from the airport to
testify before a Federal grand jury in Manhattan. Mr. Fitzgerald
described how el Hage:
[P]rovided some information of potential use to the
intelligence community--including potential leads as to the
location of his confederate Harun and the location of Harun's
files in Kenya. Unfortunately, as el Hage left the grand-jury
room, we knew that * * * [because of pre-Patriot
restrictions] we would not be permitted to share the grand-
jury information with the intelligence community. * * *
Fortunately, we found a way to address the problem that in
most other cases would not work. Upon request, el Hage
voluntarily agreed to be debriefed by an FBI agent outside
the grand-jury room * * *. El Hage then repeated the essence
of what he told the grand jury to the FBI agent, including
his purported leads to on the location of Harun and his
files. The FBI then lawfully shared the information with the
intelligence community. In essence, we solved the problem by
obtaining the consent of a since-convicted terrorist. We do
not want to have to rely on the consent of al Qaeda
terrorists to address the gaps in our national security.
Mr. Fitzgerald went on to describe how, in August 1998, the American
Embassy in Nairobi was bombed by al Qaeda. Investigators quickly
learned that el Hage's associate Harun was responsible. In this
particular case, investigators had been able to work around
information-sharing limits because of an al Qaeda terrorist's
willingness to be interviewed by the FBI, and even with this
information U.S. agents were not able to stop a terrorist attack. The
pre-Patriot limits were not a decisive factor in blocking U.S.
intelligence agents from preventing the Kenya bombing. But they could
have been. As U.S. Attorney Fitzgerald concluded, ``we should not have
to wait for people to die with no explanation [other] than that
interpretations of the law blocked the sharing of specific information
that probably [c]ould have saved [American lives].''
As Attorney General Reno noted in her testimony before the 9/11
Commission, ``these restrictions [on information sharing] have now been
eliminated as part of the Patriot Act.'' Director Mueller, in his
Judiciary Committee testimony yesterday, described the impact of this
change:
The removal of the ``wall'' has allowed government
investigators to share information freely. Now, criminal
investigative information that contains foreign intelligence
or counterintelligence, including grand jury and wiretap
information, can be shared with intelligence officials. This
increased ability to share information has disrupted
terrorist operations in their early stages--such as the
successful dismantling of the ``Portland Seven'' terror
cell--and has led to numerous arrests, prosecutions, and
convictions in terrorism cases.
In essence, prior to September 11th, criminal and
intelligence investigators were attempting to put together a
complex jigsaw puzzle at separate tables. The Patriot Act has
fundamentally changed the way we do business. Today, those
investigators sit at the same table and work together on one
team. They share leads. They fuse information. Instead of
conducting parallel investigations, they are fully integrated
into one joint investigation.
These Patriot Act changes can directly be credited with some
important recent successes in the war on terror. For example, in
February 2003, Federal prosecutors arrested and indicted Sami Al-Arian
and seven other suspected terrorists. The 50-count indictment indicated
that Al-Arian was the financial director and the North American leader
of Palestinian Islamic Jihad, a terrorist group that has killed more
than 100 people in and around Israel, including two Americans. Al-Arian
wired money to groups in Israel that paid money to the families of
terrorists who carried out suicide bombings. He also founded three
organizations in Florida which, among other things, drafted final wills
and testaments for suicide bombers.
Incredibly, through much of the 1990s, Al-Arian was secretly watched
by two different sets of U.S. investigators. The FBI had been
conducting a criminal probe of Al-Arian since 1995. Meanwhile,
intelligence agents had monitored Al-Arian since the late 1980s.
Because of pre-Patriot restrictions, the two sets of investigators were
not able to share information and were not aware of the full extent of
each other's investigations. It was only after the FISA Court of Review
upheld Patriot
[[Page S6098]]
Act Sec. 203's information-sharing provisions in November 2002 that
intelligence officials were able to show their files to prosecutors.
Several months after this Patriot provision was upheld and made
effective, prosecutors arrested and indicted Al-Arian and put an end to
his activities.
Of course, the provisions of the Patriot Act subject to the Sec. 224
sunset include much more than just the three provisions that facilitate
information sharing. Although I will not discuss all of those
provisions in detail today--some of which have never been
controversial--I would like to discuss one provision that has been a
particular focus of attacks on the Patriot Act.
Section 215 of the Patriot Act allows the FBI to seek an order for
``the production of tangible things (including books, records, papers,
documents, and other items) for an investigation to obtain foreign
intelligence information.'' FISA defines ``foreign intelligence'' as
information relating to foreign espionage, foreign sabotage, or
international terrorism, or information respecting a foreign power that
relates to U.S. national security or foreign policy. Thus Sec. 215
cannot be used to investigate ordinary crimes or even domestic
terrorism. And in every case, a Sec. 215 order must be approved by a
judge.
Alhough Sec. 215 is basically a form of subpoena authority, like that
allowed for numerous other types of investigation indeed, it is more
tightly restricted than other types of subpoenas because it must be
pre-approved by a judge Sec. 215 has been heavily targeted by Patriot
Act critics. Chief among their complaints is that Sec. 215 could be
used to obtain records from bookstores or libraries. Some of these
critics have even alleged that Sec. 215 would allow the FBI to
investigate someone simply because of the books that he borrows from a
library.
Section 215 could in fact be used to obtain library records, though
neither Sec. 215 nor any other provision of the Patriot Act
specifically mentions libraries or is directed at libraries.
Nevertheless, Sec. 215 does authorize court orders to produce tangible
records--which could include library records.
Where the critics are wrong is in suggesting that a Sec. 215 order
could be obtained because of the books that someone reads or the
websites that he visits. Sec. 215 allows no such thing. Instead,
Sec. 215 allows an order to obtain ``tangible things'' as part of an
investigation to ``obtain foreign intelligence information''--
information relating to foreign espionage or terrorism or relating to a
foreign government or group and national security. By requiring a judge
to approve such an order, Sec. 215 ensures that these orders will not
be used for an improper purpose. And as an added protection against
abuse, the Patriot Act also requires that the FBI ``fully inform'' the
House and Senate Intelligence Committees on all use of Sec. 215 every
six months. These checks and safeguards leave FBI agents little room
for the types of witch hunts that Patriot Act critics conjure up.
Further, it bears mention that federal investigators already use an
authority very similar to Sec. 215 the grand jury subpoena--to obtain
bookstore records. As Deputy AG Comey recently emphasized in a letter
that he submitted to the editor of the New York Times, ``orders for
records under [Sec. 215] are more closely scrutinized and more
difficult to obtain than ordinary grand jury supoenas, which can
require production of the very same records, but without judicial
approval.'' Similarly, in a September 11, 2003 editorial, ``Patriot
(Act) Games,'' the Washington Post noted that investigative authority
to review library records ``existed prior to the Patriot Act; the law
extends it to national security investigations, which isn't
unreasonable.''
Finally, I would emphasize that an intelligence or criminal
investigation may have good and legitimate reasons for extending to
library or bookstore records. For example, in a recent domestic
terrorism case, Federal investigators sought to prove that a suspected
bomber had built a particularly unusual detonator that had been used in
several bombings. The investigators used a grand-jury subpoena to show
that the suspect had purchased a book giving instructions on how to
build such a detonator.
Moreover, we should not forget that terrorists and spies historically
have used libraries to plan and carry out activities that threaten U.S.
national security. We know, for example, that some terrorists have used
computers at public libraries to use the internet and communicate by
email. It would be unwise to place libraries and bookstores beyond the
scope of anti-terror investigations.
Andrew McCarthy, a former federal prosecutor who led the 1995
terrorism case against Sheik Omar Abdel Rahman, recently elaborated on
this point in a November 13, 2003 article in National Review Online,
``Patriot Act Under Siege'':
[H]ard experience--won in the course of a string of
terrorism trials since 1993--instructs us that it would be
folly to preclude the government a priori from access to any
broad categories of business record. Reading material, we now
know, can be highly relevant in terrorism cases. People who
build bombs tend to have books and pamphlets on bomb making.
Terrorist leaders often possess literature announcing the
animating principles of their organizations in a tone
tailored to potential recruits. This type of evidence is a
staple of virtually every terrorism investigation--both for
what it suggests on its face and for the forensic
significance of whose fingerprints may be on it. No one is
convicted for having it--jurors are Americans too, and they'd
not long stand for the odious notion that one should be
imprisoned for the mere act of thinking.
When a defendant pleads ``not guilty,'' however, he is
saying: ``I put the government to its proof on every element
of the crime, including that I acted with criminal purport.''
Prosecutors must establish beyond a reasonable doubt not only
that the terrorist engaged in acts but did so intending
execrable consequences. If an accused says the precursor
components he covertly amassed were for innocent use, is it
not relevant that he has just borrowed a book that covers
explosives manufacture? If he claims unfamiliarity with the
tenets of violent jihad, should a jury be barred from
learning that his paws have yellowed numerous publications on
the subject? Such evidence was standard fare throughout Janet
Reno's tenure as attorney general--and rightly so.
In his testimony yesterday, FBI Director Mueller also described the
importance to antiterror investigations of some of the other Patriot
Act authorities subject to expire under Sec. 224. For example, Director
Mueller noted that:
The PATRIOT Act gave federal judges the authority to issue
search warrants that are valid outside the issuing judge's
district in terrorism investigations. In the past, a court
could only issue a search warrant for premises within the
same judicial district--yet our investigations of terrorist
networks often span multiple districts. The PATRIOT Act
streamlined this process, making it possible for judges in
districts where activities related to terrorism may have
occurred to issue search warrants applicable outside their
immediate districts.
In addition, the PATRIOT Act permits similar search
warrants for electronic evidence such as email. In the past,
for example, if an Agent in one district needed to obtain a
search warrant for a subject's email account, but the
Internet service provider (ISP) was located in another
district, he or she would have to contact an AUSA and Agent
in the second district, brief them on the details of the
investigation, and ask them to appear before a judge to
obtain a search warrant--simply because the ISP was
physically based in another district. Thanks to the PATRIOT
Act, this frustrating and time-consuming process can be
averted without reducing judicial oversight. Today, a judge
anywhere in the U.S. can issue a search warrant for a
subject's email, no matter where the ISP is based.
[Further], the PATRIOT Act updated the law to match current
technology, so that we no longer have to fight a 21st-century
battle with antiquated weapons. Terrorists exploit modern
technology such as the Internet and cell phones to conduct
and conceal their activities. The PATRIOT Act leveled the
playing field, allowing investigators to adapt to modern
techniques. For example, the PATRIOT Act clarified our
ability to use court-ordered pen registers and trap-and-trace
devices to track Internet communications. The Act also
enabled us to seek court-approved roving wiretaps, which
allow investigators to conduct electronic surveillance on a
particular suspect, not a particular telephone this allows
them to continuously monitor subjects without having to
return to the court.
All of the authorities described by Director Mueller obviously are
critical to antiterrorism investigations--and all will expire next year
unless Congress acts to repeal Sec. 224.
In responding to some of the accusations of Patriot Act critics, I do
not mean to dismiss the importance of either civil liberties or of
independent oversight of the federal government. I would simply
emphasize that the Patriot Act is carefully crafted legislation that
both guarantees protection for civil liberties and is subject to ample
oversight. I would note, in this vein, that in a report filed in
January
[[Page S6099]]
2004, Department of Justice Inspector General Glenn A. Fine--an
appointee of President Clinton described the results of his
investigation of all recent civil-rights and civil-liberties complaints
received by the Justice Department. The Inspector General found no
incidents in which the Patriot Act was used to abuse civil rights or
civil liberties.
The Patriot Act's provisions for independent oversight of the new
authorities created by the Act were described in detail by Deputy AG
Comey in his April 14, 2004 testimony before the Judiciary Committee.
Mr. Comey noted:
First, the USA PATRIOT Act preserves the historic role of
courts by ensuring that the vital role of judicial oversight
is not diminished. For example, the provision for delayed
notice for search warrants requires judicial approval. In
addition, under the Act, investigators cannot obtain a FISA
pen register unless they apply for and receive permission
from federal court. The USA PATRIOT Act actually goes farther
to protect privacy than that Constitution requires, as the
Supreme Court has long held that law enforcement authorities
are not constitutionally required to obtain court approval
before installing a pen register. Furthermore, a court order
is required to compel production of business records, in
national security investigations.
Second, the USA PATRIOT Act respects important
congressional oversight by placing new reporting requirements
on the Department. Every six months, the Attorney General is
required to report to Congress the number of times section
215 has been utilized, as well as to inform Congress
concerning all electronic surveillance under the Foreign
Intelligence Surveillance Act. Under section 1001 of the USA
PATRIOT Act, Congress receives a semiannual report from the
Department's Inspector General detailing any abuses of civil
rights and civil liberties by employees or officials of the
Department of Justice. It is important to point out that in
the Inspector General's most recent report to Congress, he
reported that his office has received no complaints alleging
misconduct by Department employees related to the use of a
substantive provision of the USA PATRIOT Act.
Finally, the USA PATRIOT Act fosters public oversight of
the Department. In addition to the role of the Inspector
General to review complaints alleging abuses of civil
liberties and civil rights, the Act provides a cause of
action for individuals aggrieved by any willful violation of
Title III or certain sections of FISA. To date, no civil
actions have been filed under this provision.
The United States has had some important successes in the war on
terror so far. Worldwide, more than half of al Qaeda's senior
leadership has been captured or killed. More than 3,000 al Qaeda
operatives have been incapacitated. Within the United States, 4
different terrorist cells have been broken up--cells located in
Buffalo, Detroit, Seattle, and Portland. 284 individuals have been
criminally charged to date, and 149 individuals have been convicted or
pleaded guilty, including: shoe bomber Richard Reid, six members of the
Buffalo terrorist cell, two members of the Detroit cell, Ohio truck
driver Iyman Faris, and U.S.-born Taliban John Walker Lindh.
Patriot-aided criminal prosecutions also have contributed to U.S.
intelligence efforts to learn more about terrorist organizations.
Facing long prison terms, some apprehended terrorist have chosen to
cooperate with the U.S. government. So far, the Justice Department has
obtained plea agreements from 15 individuals who are now cooperating
with terror investigations. One individual has given the U.S.
information about weapons stored by terrorists in the United States.
Another cooperating terrorist has given U.S. investigators information
about locations in the U.S. that are being scouted or cased for
potential attacks by al Qaeda.
The Patriot Act has played a major role in what U.S. antiterror
investigations have accomplished so far. And it is clear that we will
continue to need the authorities created by the Patriot Act into the
foreseeable future. For these reasons, I am pleased to introduce today
with my colleagues a bill to repeal Sec. 224 and make the Patriot Act
permanent.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2476
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. REPEAL OF USA PATRIOT ACT SUNSETS.
Section 224 of the USA PATRIOT Act (18 U.S.C. 2510 note) is
repealed.
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