[Congressional Record: September 29, 2009 (Senate)]
[Page S9933-S9936]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KYL. (for himself and Mr. Cornyn):
S. 1726. A bill to reauthorize the expiring intelligence tools of the
USA PATRIOT Improvement and Reauthorization Act of 2005 and defend
against terrorism through improved classified procedures and criminal
law reforms, and for other purposes; to the Committee on the Judiciary.
Mr. KYL. Mr. President, earlier this month, we paid homage to those
who lost their lives in the terrorist attacks on September 11, 2001.
Those attacks changed our nation forever, including how we combat the
very real and continuing threat of terrorism. One of the most important
changes that we made in the wake of September 11 was the enactment of
the PATRIOT Act. That legislation, which had strong bipartisan support
in the Congress, provided for a number of common sense changes designed
to give our national security intelligence community the same tools our
police and FBI agents can use against drug dealers and organized crime.
Although many of the PATRIOT Act's provisions are now permanent, three
critical national security tools--the ``wiretap'' authority contained
in Section 206 of the PATRIOT Act; the ``business records'' authority
contained in Section 215 of the PATRIOT Act; and the ``lone wolf''
authority contained in Section 6001 of the Intelligence Reform and
Terrorism Prevention Act of 2004--will expire on December 31 of this
year.
The tools in the PATRIOT Act are as necessary today as they were when
first enacted. Just this month, the government confirmed that the
Foreign Intelligence Surveillance Act of 1978, FISA, which includes
PATRIOT Act provisions, was used to build a case against Najibullah
Zazi. Although many details remain classified, it appears as if
Najibullah Zazi was an al Qaeda associate who was planning to detonate
bombs within the U.S.
Similarly, it has been reported that the FBI likely used its roving
wiretap and business records authorities--two of the PATRIOT Act's
expiring provisions--to thwart a terrorist plot uncovered earlier this
year in New York, in which four former convicts who converted to
radical Islam plotted to use
[[Page S9934]]
explosives to blow up synagogues and shoot down airplanes with surface-
to-air missiles.
Those are two high-profile examples from just this year. There are no
doubt countless of other instances, not known to the public, where
PATRIOT Act authorities have been used by our national security
professionals to keep Americans safe. Recognizing the importance of
these tools, the Department of Justice has written the Chairman of the
Judiciary Committee to urge renewal of the expiring provisions of the
PATRIOT Act. In addition, FBI Director Mueller and David Kris, the
Assistant Attorney General for the National Security Division, both
expressed their strong support for these authorities in testimony
before the Judiciary Committee this month.
The reality is that the war on terrorism is not going to sunset.
Neither should the tools that our investigators and analysts rely upon
to prevent attack. That is why Mr. Cornyn and I are introducing today
the USA PATRIOT Reauthorization and Additional Weapons Against
Terrorism Act of 2009. This legislation permanently renews the three
expiring PATRIOT Act provisions and addresses other critical national
security needs.
I. Renewing the Roving Wiretap Authority
The roving wiretap authority allows the Government, in certain
circumstances, to focus surveillance efforts on monitoring a particular
target rather than a particular telephone number. Gone are the days
when you used only one phone at home or in the office. Cell phones are
ubiquitous. The point is to intercept the calls of a particular person,
not a particular phone. Even so, the Government may have such authority
only in limited circumstances. It must provide the FISA Court with
``specific facts'' indicating that the ``actions of the target of the
application may have the effect of thwarting the identification'' of
third parties necessary to accomplish the ordered surveillance. This
tool helps ensure that investigators and analysts may overcome a
target's efforts to avoid surveillance, for example, rapidly switching
cell phone numbers.
As the Department of Justice noted in its September 14, 2009, letter
to Chairman Leahy, the roving wiretap authority has ``proven an
important intelligence-gathering tool in a small but significant subset
of FISA electronic surveillance orders.'' The Department's letter
explains that the authority has been used judiciously--on average, only
22 applications for roving wiretaps have been made per year--and that
``the basic justification offered to Congress in 2001 for the roving
authority remains valid today. . . . Any effective surveillance
mechanism must incorporate the ability to rapidly address an
unanticipated change in the target's communications behavior.''
II. Renewing the Business Records Authority
The business records authority allows the FISA Court, under
appropriate circumstances, to compel the production of needed business
records. In its September 14 letter, the Department of Justice
expressed its strong support for the business records provision,
stating that it ``addresses a gap in intelligence collection
authorities and has proven valuable in a number of contexts.'' The
Department stated that some of the acquired ``orders were used to
support important and highly sensitive intelligence collection
operations, of which both Members of the Intelligence Committee and
their staffs are aware.'' Although some have questioned the scope and
use of this authority, it is important to acknowledge that no one has
challenged a business records order in court, even though an explicit
right to file such a challenge took effect in 2006. Such authority also
exists in at least 300 federal government investigative contexts.
III. Renewing the Lone Wolf Authority
The ``lone wolf'' provision fills a critical intelligence gap in
situations where the government can establish that a non-United States
person is engaged in international terrorism but cannot yet identify
the foreign power or terrorist group to which he belongs. Although this
authority has not yet been used, the Department of Justice made clear
in its September 14 letter that there are foreseeable situations in
which such an authority ``would be the only avenue to effective
surveillance.'' The Department stated that ``it is essential to have
the tool available for the rare situation in which it is necessary
rather than to delay surveillance of a terrorist in the hopes that the
necessary links are established.'' Had we had this authority at the
time, we could have examined the computer of Zacarias Moussaoui,
perhaps gaining enough information to provide some warning of 9/11.
Terrorists do not carry membership cards in organizations, but it does
not make them any less dangerous.
IV. Addressing Other National Security Needs
In addition to reauthorizing these important national security tools,
this legislation responds to several other national security needs. For
example, it clarifies what kind of information and disclosures trigger
the procedures of the Classified Information Procedures Act, CIPA. This
clarification is designed to resolve the difficulties created by the
Fourth Circuit's approach in United States v. Moussaoui. The
legislation also prohibits individuals from providing material
support--for example, providing money to support a suicide bomber's
family--to international terrorism efforts. It makes it illegal to
conspire to violate the current prohibition on receiving military-type
training from a foreign terrorist organization. It prohibits the use,
transfer, mass transfer, production, and trafficking of false travel
documents. Finally, it ensures that convicted terrorists and sex
offenders will not be released pending sentencing or appeal.
These are good, common sense provisions that all members should be
able to support. I look forward to working with my colleagues on both
sides to ensure that our national security professionals have the tools
they need to continue finding and apprehending terrorists before they
attack.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1726
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``USA
PATRIOT Reauthorization and Additional Weapons Against
Terrorism Act of 2009''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--USA PATRIOT REAUTHORIZATION ACT OF 2009
Sec. 101. Short title.
Sec. 102. USA Patriot Improvement and Reauthorization Act repeal of
sunset provisions.
Sec. 103. Repeal of sunset relating to individual terrorists as agents
of foreign powers.
TITLE II--CLASSIFIED INFORMATION PROCEDURES REFORM ACT
Sec. 201. Short title.
Sec. 202. Definitions.
Sec. 203. Ex parte authorizations under the Classified Information
Procedures Act.
Sec. 204. Application of Classified Information Procedures Act to
nondocumentary information.
Sec. 205. Interlocutory appeals under the Classified Information
Procedures Act.
TITLE III--ADDITIONAL GOVERNMENT WEAPONS AGAINST TERRORISM ACT
Sec. 301. Short title.
Sec. 302. Prevention and deterrence of material support for terrorist
suicide bombings.
Sec. 303. Prohibiting attempts and conspiracies to obtain military-type
training from a foreign terrorist organization.
Sec. 304. Prohibiting use of false travel documents.
Sec. 305. Preventing unwarranted release of convicted terrorists and
sex offenders pending sentencing or appeal.
TITLE I--USA PATRIOT REAUTHORIZATION ACT OF 2009
SEC. 101. SHORT TITLE.
This title may be cited as the ``USA PATRIOT
Reauthorization Act of 2009''.
SEC. 102. USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT
REPEAL OF SUNSET PROVISIONS.
Section 102(b) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C.
1805 note, 50 U.S.C. 1861 note, and 50 U.S.C. 1862 note) is
repealed.
SEC. 103. REPEAL OF SUNSET RELATING TO INDIVIDUAL TERRORISTS
AS AGENTS OF FOREIGN POWERS.
Section 6001(b) of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108-458; 50 U.S.C. 1801
note) is repealed.
[[Page S9935]]
TITLE II--CLASSIFIED INFORMATION PROCEDURES REFORM ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ``Classified Information
Procedures Reform Act of 2009''.
SEC. 202. DEFINITIONS.
(a) In General.--Section 1 of the Classified Information
Procedures Act (18 U.S.C. App.) is amended--
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following:
``(b) `Disclosure', as used in this Act--
``(1) means the release, transmittal, or making available
of, or providing access to, classified information to any
person (including a defendant or counsel for a defendant)
during discovery, or to a participant or member of the public
at any proceeding; and
``(2) does not include the release, transmittal, or making
available of, or providing access to, classified information
by the defendant to an attorney representing the defendant in
a matter who has received--
``(A) the necessary security clearance to receive the
classified information; and
``(B) if the classified information has been designated as
sensitive compartmented information or special access program
information, any additional required authorization to receive
the classified information, .''.
(b) Technical and Conforming Amendment.--Section 501(3) of
the Immigration and Nationality Act (8 U.S.C. 1531(3)) is
amended by striking ``section 1(b)'' and inserting ``section
1''.
SEC. 203. EX PARTE AUTHORIZATIONS UNDER THE CLASSIFIED
INFORMATION PROCEDURES ACT.
Section 4 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) in the second sentence--
(A) by striking ``may'' and inserting ``shall''; and
(B) by striking ``authorization in the form of a written
statement to be inspected'' and inserting ``authorization,
together with any argument in support of that request, in the
form of a statement made ex parte and to be considered''; and
(2) in the third sentence--
(A) by striking ``If the court enters an order granting
relief following such an ex parte showing, the'' and
inserting ``The''; and
(B) inserting ``, and the transcript of any argument and
any summary of the classified information the defendant seeks
to obtain,'' after ``text of the statement of the United
States''.
SEC. 204. APPLICATION OF CLASSIFIED INFORMATION PROCEDURES
ACT TO NONDOCUMENTARY INFORMATION.
Section 4 of the Classified Information Procedures Act (18
U.S.C. App.), as amended by section 203 of this Act, is
amended--
(1) in the section heading, by inserting ``and access to''
after ``of'';
(2) by inserting ``(a) In General.--'' before ``The court,
upon''; and
(3) by adding the following at the end the following:
``(b) Access to Other Classified Information.--(1) If the
defendant seeks access through deposition under the Federal
Rules of Criminal Procedure or otherwise to nondocumentary
information from a potential witness or other person which
the defendant knows or reasonably believes is classified, the
defendant shall notify the attorney for the United States and
the district court in writing. Such notice shall specify with
particularity the classified information sought by the
defendant and the legal basis for such access. At a time set
by the court, the United States may oppose such access to the
classified information.
``(2) If, after consideration of any objection raised by
the United States, including any objection asserted on the
basis of privilege, the court determines that the defendant
is legally entitled to have access to the information
specified in a notice made under paragraph (1), the United
States may request the substitution of a summary of the
classified information or the substitution of a statement
admitting relevant facts that the classified information
would tend to prove.
``(3) The court shall permit the United States to make an
objection to access to classified information under paragraph
(1) or a request for a substitution under paragraph (2) in
the form of a statement made ex parte and to be considered by
the court alone. The entire text of the statement of the
United States, and any summary of the classified information
the defendant seeks to obtain, shall be sealed and preserved
in the records of the court and made available to the
appellate court in the event of an appeal.
``(4) A court shall grant the request of the United States
to substitute a summary of the classified information or to
substitute a statement admitting relevant facts that the
classified information would tend to prove under paragraph
(2) if the court finds that the summary or statement will
provide the defendant with substantially the same ability to
make a defense as would disclosure of the specific classified
information.
``(5) A defendant may not obtain access to classified
information subject to this subsection except as provided in
this subsection. Any proceeding, whether by deposition under
the Federal Rules of Criminal Procedure or otherwise, in
which a defendant seeks to obtain access to classified
information subject to this subsection not previously
authorized by a court for disclosure under this subsection
shall be discontinued or may proceed only as to lines of
inquiry not involving the classified information.''.
SEC. 205. INTERLOCUTORY APPEALS UNDER THE CLASSIFIED
INFORMATION PROCEDURES ACT.
Section 7(a) of the Classified Information Procedures Act
(18 U.S.C. App.) is amended by adding the following at the
end: ``The right of the United States to appeal under this
subsection applies without regard to whether the order
appealed from was entered under this Act.''.
TITLE III--ADDITIONAL GOVERNMENT WEAPONS AGAINST TERRORISM ACT
SEC. 301. SHORT TITLE.
This title may be cited as the ``Additional Government
Weapons Against Terrorism Act of 2009''.
SEC. 302. PREVENTION AND DETERRENCE OF MATERIAL SUPPORT FOR
TERRORIST SUICIDE BOMBINGS.
(a) In General.--Chapter 113B of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 2339E. Providing material support to international
terrorism
``(a) Definitions.--In this section--
``(1) the term `facility of interstate or foreign commerce'
has the meaning given that term in section 1958;
``(2) the term `material support or resources' has the
meaning given that term in section 2339A;
``(3) the term `perpetrator of an act' includes any person
who--
``(A) commits the act;
``(B) aids, abets, counsels, commands, induces, or procures
the commission of the act; or
``(C) attempts, plots, or conspires to commit the act; and
``(4) the term `serious bodily injury' has the meaning
given that term in section 1365.
``(b) Prohibition.--Whoever, in a circumstance described in
subsection (c), provides, or attempts or conspires to
provide, material support or resources to the perpetrator of
an act of international terrorism, to a family member of the
perpetrator of an act of international terrorism, or to any
other person, with the intent to facilitate, reward, or
encourage that act or other acts of international terrorism,
shall be fined under this title, imprisoned not more than 15
years, or both, and, if death results, shall be imprisoned
for any term of years or for life.
``(c) Jurisdictional Bases.--A circumstance referred to in
this subsection is that--
``(1) the offense occurs in or affects interstate or
foreign commerce;
``(2) the offense involves the use of the mails or a
facility of interstate or foreign commerce;
``(3) an offender intends to facilitate, reward, or
encourage an act of international terrorism that affects
interstate or foreign commerce or would have affected
interstate or foreign commerce had the act been consummated;
``(4) an offender intends to facilitate, reward, or
encourage an act of international terrorism that violates the
criminal laws of the United States;
``(5) an offender intends to facilitate, reward, or
encourage an act of international terrorism that is designed
to influence the policy or affect the conduct of the United
States Government;
``(6) an offender intends to facilitate, reward, or
encourage an act of international terrorism that occurs in
part within the United States and is designed to influence
the policy or affect the conduct of a foreign government;
``(7) an offender intends to facilitate, reward, or
encourage an act of international terrorism that causes or is
designed to cause death or serious bodily injury to a
national of the United States while that national is outside
the United States, or substantial damage to the property of a
legal entity organized under the laws of the United States
(including any State, district, commonwealth, territory, or
possession of the United States) while that property is
outside of the United States;
``(8) the offense occurs in whole or in part within the
United States, and an offender intends to facilitate, reward,
or encourage an act of international terrorism that is
designed to influence the policy or affect the conduct of a
foreign government; or
``(9) the offense occurs in whole or in part outside of the
United States, and an offender is a national of the United
States, a stateless person whose habitual residence is in the
United States, or a legal entity organized under the laws of
the United States (including any State, district,
commonwealth, territory, or possession of the United
States).''.
(b) Technical and Conforming Amendments.--
(1) Table of sections.--The table of sections for chapter
113B of title 18, United States Code, is amended by adding at
the end the following:
``2339D. Receiving military-type training from a foreign terrorist
organization.
``2339E. Providing material support to international terrorism.''.
(2) Other amendment.--Section 2332b(g)(5)(B)(i) of title
18, United States Code, is amended by inserting ``2339E
(relating to providing material support to international
terrorism),'' before ``or 2340A (relating to torture)''.
[[Page S9936]]
SEC. 303. PROHIBITING ATTEMPTS AND CONSPIRACIES TO OBTAIN
MILITARY-TYPE TRAINING FROM A FOREIGN TERRORIST
ORGANIZATION.
Section 2339D(a) of title 18, United States Code, is
amended by inserting ``, or attempts or conspires to do so,''
after ``foreign terrorist organization''.
SEC. 304. PROHIBITING USE OF FALSE TRAVEL DOCUMENTS.
(a) In General.--Section 1028 of title 18, United States
Code, is amended--
(1) in the section heading, by inserting ``false travel
documents,'' after ``identification documents,'';
(2) in subsection (a)--
(A) in paragraph (1), by striking ``or a false
identification document'' and inserting ``false
identification document, or false travel document'';
(B) in paragraph (2), by striking ``or a false
identification document'' and inserting ``false
identification document, or false travel document'';
(C) in paragraph (3), by striking ``or false identification
documents'' and inserting ``false identification documents,
or false travel documents'';
(D) in paragraph (5), by inserting ``, false travel
document,'' after ``false identification document''; and
(E) in paragraph (8), by inserting ``false travel
documents,'' after ``false identification documents,'';
(3) in subsection (b)--
(A) in paragraph (1)(B), by striking ``or false
identification documents'' and inserting ``false
identification documents, or false travel documents''; and
(B) in paragraph (2)(A)--
(i) by striking ``document,,'' and inserting ``document,'';
and
(ii) by striking ``or a false identification document'' and
inserting ``a false identification document, or a false
travel document'';
(4) in subsection (c)(3)(B), by inserting ``false travel
document,'' after ``false identification document,'';
(5) in subsection (d)--
(A) in paragraph (11), by striking ``and'' at the end;
(B) in paragraph (12), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following:
``(13) the term `false travel document' means a document
issued for the use of a particular, identified individual and
of a type intended or commonly accepted for the purposes of
passage on a commercial aircraft or mass transportation
vehicle, including a ticket or boarding pass, that--
``(A) was not issued by or under the authority of a
commercial airline or mass transportation provider, but
appears to be issued by or under the authority of a
commercial airline or mass transportation provider; or
``(B) was issued by or under the authority of a commercial
airline or mass transportation provider, and was subsequently
altered for purposes of deceit.''; and
(6) in subsection (h), by inserting ``false travel
documents,'' after ``identification documents,''.
(b) Technical Amendment.--The table of sections for chapter
47 of title 18, United States Code, is amended by striking
the item related to section 1028 and inserting the following:
``1028. Fraud and related activity in connection with identification
documents, false travel documents, authentication
features, and information.''.
SEC. 305. PREVENTING UNWARRANTED RELEASE OF CONVICTED
TERRORISTS AND SEX OFFENDERS PENDING SENTENCING
OR APPEAL.
(a) In General.--Section 3145 of title 18, United States
Code, is amended by adding at the end the following:
``(d) Application.--No person shall be eligible for release
under subsection (c) based on exceptional reasons if the
person is being detained pending sentencing or appeal in a
case involving--
``(1) an offense under section 2332b of this title;
``(2) an offense listed in section 2332b(g)(5)(B) of this
title for which a maximum term of imprisonment of 10 years or
more is prescribed; or
``(3) an offense involving a minor victim under section
1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A,
2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2),
2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of
this title.''.
____________________
