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75–288 PDF 2001

ADMINISTRATION'S DRAFT ANTI-TERRORISM ACT

OF 2001

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

SEPTEMBER 24, 2001

Serial No. 39

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary

(II)

COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman

HENRY J. HYDE, Illinois

GEORGE W. GEKAS, Pennsylvania

HOWARD COBLE, North Carolina

LAMAR SMITH, Texas

ELTON GALLEGLY, California

BOB GOODLATTE, Virginia

STEVE CHABOT, Ohio

BOB BARR, Georgia

WILLIAM L. JENKINS, Tennessee

CHRIS CANNON, Utah

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOHN N. HOSTETTLER, Indiana

MARK GREEN, Wisconsin

RIC KELLER, Florida

DARRELL E. ISSA, California

MELISSA A. HART, Pennsylvania

JEFF FLAKE, Arizona

[VACANCY]

[VACANCY]

JOHN CONYERS, JR., MICHIGAN

BARNEY FRANK, Massachusetts

HOWARD L. BERMAN, California

RICK BOUCHER, Virginia

JERROLD NADLER, New York

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MAXINE WATERS, California

MARTIN T. MEEHAN, Massachusetts

WILLIAM D. DELAHUNT, Massachusetts

ROBERT WEXLER, Florida

TAMMY BALDWIN, Wisconsin

ANTHONY D. WEINER, New York

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel

PERRY H. APELBAUM, Minority Chief Counsel

(III)

C O N T E N T S

SEPTEMBER 24, 2001

OPENING STATEMENT

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress

From the State of Wisconsin, and Chairman, Committee on the Judiciary ... 1

WITNESSES

The Honorable John Ashcroft, Attorney General of the United States (accompanied by Mr. Larry D. Thompson, Deputy Attorney General of the United

States; Mr. Michael Chertoff, Assistant Attorney General in the Justice

Department for the Criminal Division; and Mr. Viet Dinh, Assistant Attorney General for Legal Policy)

Oral Testimony ..................................................................................................... 3

Prepared Statement ............................................................................................. 8

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress

From the State of Wisconsin, and Chairman, Committee on the Judiciary ... 2

APPENDIX

STATEMENTS SUBMITTED FOR THE RECORD

The Honorable John Conyers, Jr., a Representative in Congress From the

State of Michigan ................................................................................................. 49

The Honorable Bob Barr, a Representative in Congress From the State of

Georgia .................................................................................................................. 49

The Honorable Jim Ryan, Attorney General From the State of Illinois ............. 50

LPA, Inc.: LPA Testimony for Hearing on Administration’s Draft of the AntiTerrorism Act of 2001 .......................................................................................... 51

MATERIAL SUBMITTED FOR THE RECORD

The Honorable Spencer Bachus, a Representative in Congress From the State

of Alabama: Section-by-Section Analysis of the Anti-Terrorism Act of 2001 .. 54

(1)

ADMINISTRATION’S DRAFT ANTI-TERRORISM

ACT OF 2001

MONDAY, SEPTEMBER 24, 2001

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Committee met, pursuant to call, at 2:02 p.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr., (Chairman of the Committee) presiding.

Chairman SENSENBRENNER. The Committee will be in order. On

September 11, 2001, America was changed forever. Thousands of

lives were taken from us, and millions of Americans lost their innocence on that day. We watched in horror as terrorists attacked us

not once, but four times without provocation. We watched as they

attacked the heart and soul of America by targeting institutions

that protect our freedoms and vitalize our economy.

I have visited the sites and met many people whose lives have

been tragically altered by these events. This past weekend I saw

families and firefighters at the World Trade Center who are continuing to have hope that they still might find survivors of this attack. I saw the rubble and ruins of what was once a symbol of the

strength of the American work ethic. I hope that I never again

have to visit a site like that.

Today this Committee will hear from the Attorney General of the

United States regarding the need for us to expeditiously pass legislation to give the Department of Justice and our intelligence community needed prime fighting tools. From my conversations with

the Attorney General and other law enforcement officials, I believe

that there is an unquestionable need for such legislation. In fact,

I am convinced that our homeland security depends upon it. Consequently, I have been working with Ranking Member Conyers to

come to an agreement on a bipartisan bill. To that end, majority

and minority Committee staff have been working tirelessly to draft

such a bill, and I am hopeful that agreement is near.

I believe that such legislation must enhance law enforcement’s

ability to send convicted terrorists to prison or place them under

supervision for life. It must provide process changes and updates

to investigative definitions in order to address new technologies,

such as voice mail and disposable cell phones. It should also allow

the FBI to attain a search warrant from one court to investigate

crimes of terrorism, rather than requiring them to waste precious

investigative time going to 94 different Federal judicial districts.

Of equal importance, this bill should not do anything to take

away the freedom of innocent citizens. Of course, we all recognize

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that the fourth amendment to the Constitution prevents the government from conducting unreasonable searches and seizures. That

is why the legislation I hope to introduce shortly will not change

the United States Constitution or the rights guaranteed to citizens

of this country under the Bill of Rights.

I think it also is important to keep in mind that the Preamble

to the Constitution states that that document was ordained, ‘‘to establish justice, ensure domestic tranquility, provide for the common

defense and to promote the general welfare and to secure the blessings of liberty.’’ Let me tell you on September 11, our common defense was penetrated, and America’s tranquility, welfare and liberty were ruthlessly attacked. I urge the Members of this Committee to stand united together in recognition of the important purpose we must serve in preventing future terrorist attacks and prosecuting those who have already attacked us.

I also urge Members who have reservations about the Administration’s proposal to listen closely to the Attorney General and to

carefully examine the legislation that is subsequently introduced.

I truly believe you will find it fair and balanced and designed to

meet critical law enforcement needs.

Unfortunately, the threat of future terrorist attacks is real, and

we must do our part to eliminate this threat before there is another

devastating day like September 11, 2001. I welcome Attorney General Ashcroft here today to discuss the provisions of the Administration’s law enforcement package and the important purpose they

will serve in fighting terrorism in this country and abroad.

[The prepared statement of Mr. Sensenbrenner follows:]

PREPARED STATEMENT OF THE HONORABLE F. JAMES SENSENBRENNER, JR., A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN

On September 11, 2001, America was changed forever. Thousands of lives were

taken from us and millions in America lost their innocence on that day. We watched

in horror as terrorists attacked us not once, but four times without provocation. We

watched as they attacked the heart and soul of America by targeting institutions

that protect our freedoms and vitalize our economy.

I have visited the sites and met many people whose lives have been tragically altered by these events. This past weekend I saw families and firefighters at the

World Trade Center who continue to have hope that they might still find survivors

of this attack. I saw the rubble and ruins of what was once a symbol of the strength

of the American work ethic. I hope that I never again have to visit a site like that.

Today, this Committee will hear from the Attorney General of the United States

regarding the need for us to expeditiously pass legislation to give the Department

of Justice and our intelligence community needed crime-fighting tools. From my conversations with the Attorney General and other law enforcement officials, I believe

there is an unquestionable need for such legislation——in fact, I am convinced that

our homeland security depends on it. Consequently, I have been working with ranking member Mr. Conyers to come to agreement on a bipartisan bill. To that end,

majority and minority Committee staff have been working tirelessly to draft such

a bill and I am hopeful that an agreement is near.

I believe such legislation must enhance law enforcement’s ability to send convicted

terrorists to prison or place them under supervision for life. It must provide process

changes and updates to investigative definitions in order to address new technology

such as voice mail and disposable cell phones.

It should also allow the FBI to obtain a search warrant from one court to investigate crimes of terrorism rather than requiring them to waste precious investigative time going to 94 different federal districts.

Of equal importance: the bill should not do anything to take away the freedoms

of innocent citizens. Of course we all recognize that the 4th amendment to the Constitution prevents the government from conducting unreasonable searches and seizures—that is why the legislation I hope to introduce shortly will not change the

3

United States Constitution or the rights guaranteed to citizens of this country under

the Bill of Rights.

I think it is also important to keep in mind that the preamble to the Constitution

states that the Constitution was ordained to ‘‘establish justice, insure domestic tranquility, provide for the common defense, to promote the general welfare and to secure the blessings of Liberty.’’ Well, let me tell you, on September 11th our common defense was penetrated and

America’s tranquility, welfare and liberty were ruthlessly attacked. I urge the Members of this Committee to stand united together in recognition of the important purpose we must serve in preventing future terrorist attacks and prosecuting those who

have already attacked us.

I also urge members who have reservations about the Administration’s proposal

to listen closely to the Attorney General and to carefully examine the legislation

that is subsequently introduced. I truly believe you will find it fair and balanced

and designed to meet critical law enforcement needs. Unfortunately, the threat of

future terrorist attacks is real and must do our part to eliminate this threat before

there is another devastating day like September 11, 2001.

I welcome Attorney General Ashcroft here today to discuss the provisions of the

Administration’s law enforcement package and the important purpose they will

serve in fighting terrorism in this country and abroad.

Chairman SENSENBRENNER. In the absence of Mr. Conyers, I ask

unanimous consent that his opening statement be placed in the

record. Without objection, so ordered.

Chairman SENSENBRENNER. The way we will proceed today is the

Attorney General is only here until 3 o’clock, and then he has other

engagements. After his prepared remarks, I would like to split the

remaining time between then and 3 o’clock between myself and Mr.

Conyers equally to be yielded to Members on both sides.

Mr. Thompson, the Deputy Attorney General, will be able to

spend an extra half hour, and Mr. Dinh and Mr. Chertoff, Mr.

Chertoff being the head of the Criminal Division, an extra hour. So

after the Attorney General has left, we will proceed under the 5-

minute rule for questioning of the remaining officials of the Justice

Department, and, without objection, that will be the order.

Now, Mr. Attorney General, would you kindly introduce the

members of your team, and then will each of you stand to be sworn

in.

Attorney General ASHCROFT. Thank you, Mr. Chairman. I’m

pleased to have with me the Assistant Attorney General in the Justice Department for the Criminal Division, Michael Chertoff, who

is on my left. On my right is the Deputy Attorney General of the

United States of America, Mr. Larry Thompson. And to his right

is Viet Dinh, who is the Assistant Attorney General for Legal Policy. I’d be pleased now to take the oath.

Chairman SENSENBRENNER. Please raise your right hand.

[Witnesses sworn.]

Chairman SENSENBRENNER. Let the record show that each of the

witnesses have answered in the affirmative.

Mr. Attorney General, the floor is yours.

TESTIMONY OF JOHN ASHCROFT, UNITED STATES ATTORNEY

GENERAL, ACCOMPANIED BY LARRY D. THOMPSON, DEPUTY

ATTORNEY GENERAL; MICHAEL CHERTOFF, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION; AND VIET DINH, ASSISTANT ATTORNEY GENERAL FOR LEGAL POLICY

Attorney General ASHCROFT. Mr. Chairman, thank you for the

opportunity to appear before this Committee to discuss America’s

response to the criminal act of war perpetrated on the United

4

States of America on September 11. Mr. Chairman and Members

of the Committee, the American people do not have the luxury of

unlimited time in erecting the necessary defenses to future terrorist acts. The danger that darkened the United States of America

and the civilized world on September 11 did not pass with the

atrocities committed that day. They require that we provide law

enforcement with the tools necessary to identify, dismantle, disrupt

and punish terrorist organizations before they strike again.

Terrorism is a clear and present danger to Americans today. Intelligence information available to the FBI indicates a potential for

additional terrorist incidents. As a result, the FBI has requested

through the national threat warning system that all law enforcement agencies nationwide be on heightened alert.

When we have threat information about a specific target, we

share that information with appropriate State and local authorities. We have contacted several city and State officials over the last

13 days to alert them to potential threats. We also act on intelligence information to neutralize potential terrorist attacks using

specific methods.

Yesterday the FBI issued a nationwide alert based on information they received indicating the possibility of attacks using cropdusting aircraft. The FBI assesses the uses of this type of aircraft

to distribute chemical or biological weapons of mass destruction as

potential threats to Americans. We have no clear indication of the

time or place of any such attack.

The FBI has confirmed that Mohammed Atta, one of the suspected hijackers, was acquiring knowledge of crop-dusting aircraft

prior to the attacks on September 11th. A search of computers,

computer disks and personal baggage of another individual whom

we have in custody revealed a significant amount of information

downloaded from the Internet about aerial application of pesticides

or crop-dusting. At our request, the Federal Aviation Administration has grounded such aircraft until midnight tonight. In addition

to its own preventative measures, the FBI has strongly recommended that State and local and other Federal law enforcement

organizations take steps to identify crop-dusting aircraft in their

jurisdictions and ensure that they are secure. I also urge Americans to notify immediately the FBI of any suspicious circumstances

that may come to their attention regarding crop-dusting aircraft or

any other possible terrorist threat.

The FBI Web site is www.ifccfbi.gov—pardon me, .org. That’s

www.ifccfbi.org. Our toll-free telephone number is 866–483–5137.

866—that’s toll free. 866–483–5137.

The highly coordinated attacks of September 11 make it clear

that terrorism is the activity of expertly organized, highly coordinated and well-financed organizations and networks. These organizations operate across borders to advance their ideological agendas.

They benefit from the shelter and protection of like-minded regimes. They are undeterred by the threat of criminal sanctions,

and they are willing to sacrifice the lives of their members in order

to take the lives of innocent citizens of free nations.

This new terrorist threat to Americans on our soil is a turning

point in American history. It’s a new challenge for law enforcement. Our fight against terrorism is not merely or primarily a

5

criminal justice endeavor. It is defense of our Nation and its citizens. We cannot wait for terrorists to strike to begin investigations

and to take action. The death tolls are too high, the consequences

too great. We must prevent first. We must prosecute second.

The fight against terrorism is now the highest priority of the Department of Justice. As we do in each and every law enforcement

mission we undertake, we are conducting this effort with the total

commitment to protect the rights and privacy of all Americans and

the constitutional protections we hold dear.

In the past when American law enforcement confronted challenges to our safety and security from espionage, drug trafficking

and organized crime, we’ve met those challenges in ways that preserve our fundamental freedoms and civil liberties. Today we seek

to meet the challenge of terrorism within our borders and targeted

at our friends and neighbors with the same careful regard for the

constitutional rights of Americans and respect for all human

beings. Just as American rights and freedoms have been preserved

throughout previous law enforcement campaigns, they must be preserved throughout this war on terrorism.

This Justice Department will never waiver in its defense of the

Constitution nor relent in our defense of civil rights. The American

spirit that rose from the rubble in New York knows no prejudice

and defies division by race, ethnicity or religion.

The spirit which binds us and the values that define us will light

Americans’ path from this darkness. At the Department of Justice,

we are charged with defending American’s lives and liberties, and

we are asked to wage war against terrorism within our own borders. Today we seek to enlist your assistance, for we seek new laws

against America’s enemies, foreign and domestic.

As the Members of this Committee understand, the deficiencies

in our current laws on terrorism reflect two facts. First, our laws

fail to make defeating terrorism a national priority. Indeed, we

have tougher laws against organized crime and drug trafficking

than terrorism. Second, technology has dramatically outpaced our

statutes. Law enforcement tools created decades ago were crafted

for rotary telephones, not e-mail, the Internet, mobile communications and voice mail. Every day that passes with outdated statutes

and the old rules of engagement, each day that so passes is a day

that terrorists have a competitive advantage. Until Congress

makes these changes, we are fighting an unnecessarily uphill battle.

Members of the Committee, I regret to inform you that we are

today sending our troops into the modern field of battle with antique weapons. It is not a prescription for victory. The

antiterrorism proposals that have been submitted by the Administration represent careful, balanced, long overdue improvements to

our capacity to combat terrorism. It is not a wish list. It is a modest set of proposals, essential proposals, focusing on five broad objectives, which I will briefly summarize.

First, law enforcement needs a strengthened and streamlined

ability for our intelligence-gathering agencies to gather the information necessary to disrupt, weaken and eliminate the infrastructure of terrorist organizations.

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Critically, we also need the authority for our law enforcement to

share vital information with our national security agencies in order

to prevent further terrorist and future terrorist attacks. Terrorist

organizations have increasingly used technology to facilitate their

criminal acts and hide their communications from law enforcement.

Intelligence-gathering laws that were written for an era of landline telephone communications are ill-adapted for use in communications over multiple cell phones and computer networks, communications that are also carried by multiple telecommunications

providers located in different jurisdictions.

Terrorists are trained to change cell phones frequently, to route

e-mail through different Internet computers in order to defeat surveillance. Our proposal creates a more efficient, technology-neutral

standard for intelligence gathering, ensuring law enforcement’s

ability to trace the communications of terrorists over cell phones,

computer networks and the new technologies that may be developed in the years ahead. These changes would streamline intelligence-gathering procedures only. We do not seek changes in the

underlying protections in the law for the privacy of law-abiding

citizens. The information captured by the proposed technology-neutral standard would be limited to the kind of information you might

find in a phone bill, such as the phone numbers dialed by a particular telephone. The content of these communications in this setting would remain off limits to monitoring by intelligence authorities, except under the current legal standards where content is

available under the law which we now use.

Our proposal would allow a Federal court to issue a single order

that would apply to all providers in the communications chain, including those outside the region where the court is located. We

need speed in identifying and tracking down terrorists. Time is of

the essence. The ability of law enforcement to trace communications into different jurisdictions without obtaining an additional

court order can be the difference between life and death for American citizens. We’re not asking the law to expand, just to grow as

technology grows. This information has historically been available

when criminals used predigital technologies. This same information

should be available to law enforcement officials today.

Second, we must make fighting terrorism a national priority in

our criminal justice system. In a speech to the Congress, President

Bush said that Osama bin Laden’s terrorist group al Qaeda is to

terror what the Mafia is to organized crime. However, our current

laws make it easier to prosecute members of organized crime than

to crack down on terrorists who can kill thousands of Americans

in a single day.

The same is true of drug traffickers and individuals involved in

espionage. Our laws treat these criminals and those who aid and

abet them more severely than our laws treat terrorists.

We would make harboring a terrorist a crime. Currently, for instance, harboring persons engaged in espionage is a specific criminal offense, but harboring terrorists is not. Given the wide terrorist

network suspected of participating in the September 11 attacks,

both in the United States and in other countries, we must punish

anyone who harbors a terrorist. Terrorists can run, but they should

have no place to hide.

7

Our proposal also increases the penalties for conspiracy to commit terrorist acts to a serious level, as we have done for many drug

crimes.

Third, we seek to enhance the authority of the Immigration and

Naturalization Service to detain or remove suspected alien terrorists from within our borders. The ability of alien terrorists to move

freely across our borders and operate within the United States is

critical to their capacity to inflict damage on our citizens and facilities. Under current law, the existing grounds for removal of aliens

for terrorism are limited to direct material support of an individual

terrorist. We propose to expand these grounds for removal to include material support to terrorist organizations. We propose that

any alien who provides material support to an organization that he

or she knows or should know is a terrorist organization should be

subject to removal from the United States.

Fourth, law enforcement must be able to follow the money in

order to identify and neutralize terrorist networks. Sophisticated

terrorist operations require substantial financial resources. On

Sunday evening President Bush signed a new Executive Order

under the International Emergency Economic Powers Act, IEEPA,

blocking the assets of and the transactions of individuals and organizations with terrorist organizations and other business operations that support terrorism. President Bush’s new Executive

Order will allow intelligence, law enforcement and financially—financial regulatory agencies to follow the money trail to the terrorists and to freeze the money to disrupt their actions. This Executive Order means that the United States’ banks that have assets

of these groups or individuals must freeze their accounts, and

United States citizens or businesses are permitted—prohibited

from doing business with those accounts.

At present the President’s powers are limited to freezing assets

and blocking transactions with terrorist organizations. We need the

capacity for more than a freeze. We must be able to seize. Doing

business with terrorist organization must be a losing proposition.

Terrorists financiers must pay a price for their support of terrorism

which kills innocent Americans.

Consistent with the President’s action yesterday and his statements this morning, our proposal gives law enforcement the ability

to seize the terrorists’ assets. Further, criminal liability is imposed

on those who knowingly engage in financial transactions, money

laundering involving the proceeds of terrorist acts.

Finally, we seek the ability for the President of the United States

and the Department of Justice to provide swift emergency relief to

the victims of terrorists and their families.

Mr. Chairman, I want you to know that the investigation into

the act of September 11 is ongoing, moving aggressively forward.

To date, the FBI and INS have arrested or detained 352 individuals who remain—there are other individuals, 392 who remain at

large, because we think they have—and we think they have information that could be helpful to the investigation. The investigative

process has yielded 324 searches, 103 court orders, 3,410 subpoenas, and the potential tips are still coming into the Web site

and the 1–800 hotline. The Web site has received almost 80,000 potential tips; the hotline, almost 15,000.

8

Now it falls to us in the name of freedom and those who cherish

it to ensure our Nation’s capacity to defend ourselves from terrorists. Today I urge the Congress—I call upon the Congress to act,

to strengthen our ability to fight this evil wherever it exists, and

to ensure that the line between the civil and the savage, so brightly

drawn on September 11, is never crossed again.

Chairman SENSENBRENNER. Thank you very much, Mr. Attorney

General. At this point, without objection, all Members have heard

the statements, and that of the Attorney General will be included

in the record.

[The prepared statement of Mr. Ashcroft follows:]

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10

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Chairman SENSENBRENNER. There are 35 minutes left before you

have to leave; that means 171⁄2 minutes available on each side. And

I recognize the gentleman from Michigan.

Mr. CONYERS. Well, I thank you, Mr. Chairman. You’re recognizing me for the purpose of making an introductory statement as

you did; is that not correct?

Chairman SENSENBRENNER. You can use your 171⁄2 minutes however you want.

Mr. CONYERS. Well, that’s not exactly the question, sir. In this

Committee a process that started even before you arrived, we—the

Ranking Member and the Chairman customarily have 5 minutes

each, and I do not want my 5 minutes coming out of the time for

16 Members of this Committee to divide 17 minutes, and we ought

to get that straight right now.

13

Chairman SENSENBRENNER. Okay. The gentleman is recognized

for 5 minutes, but the Attorney General has to leave at 3 o’clock.

So that will reduce the time on each side to 15 minutes.

Mr. CONYERS. Well, it may, or it may not.

I want to just welcome the Attorney General, Mr. John Ashcroft,

and the Deputy Attorney General, Mr. Larry Thompson. Mr.

Chertoff and Mr. Dinh, we welcome you to these Committee proceedings.

And notwithstanding the opening comments that I made, I want

to report to you that myself and the Chairman of this Committee,

Mr. Jim Sensenbrenner, have been working very closely together.

As a matter of fact, different Members on both sides of this Committee, Democrats and Republicans, have been working over the

weekend, as our staffs have, and as we know you have as well.

Attorney General ASHCROFT. Well, we are grate—pardon me. We

are grateful for that, and we are aware of the time that our staff

has spent with yours, and we appreciate the cooperative relationship.

Mr. CONYERS. I thank you very much, and I just want you to

know that there is not a Member on this Committee that is not

pressed and committed to urgently produce the kinds of additional

legislation that is needed for this country and particularly for the

Office of the Attorney General to prosecute the tremendously important mission that is confronting you at this moment.

We’re coming to grips with the tragic events that have occurred

since September 11. The country appears more unified than ever

to confront the problem that we’re presented here in the United

States in the year 2001. But today we’re here to review the Attorney General’s emergency request for new authorities to combat terrorism, and I am gratified to report that the Minority Leader of

this House, Mr. Richard Gephardt, who is working, incidentally,

very closely with the Speaker, Mr. Hastert, and we have been reporting to him the progress and the activities going on on the Judiciary Committee, which has such a large responsibility in the legislative requests that you have made. And it’s to these points I would

like to bring to your attention how we’re going to proceed, or how

I hope we’ll proceed.

First of all, there has been a great deal of consensus forming

around a number of the provisions in your proposal that you’ve presented to us recently. As a matter of fact, I can state that we on

this side of the aisle, 16 of us in number, have agreed to ironically

16 of the provisions within your proposal, 16 of them. They’re before our drafting Committee, being put into a bill as we speak.

Now, we’re working hard. We’re willing to burn the midnight oil,

but it’s hard for me to understand how if the proposal offered by

our friend, the Chairman from this Committee, Mr. Sensenbrenner—how we will be able to employ a 10 a.m. markup on a

proposal that has never been explained before the Members.

These—and talked with among ourselves. In other words, we’re at

close agreement, Mr. Ashcroft, but we’ve got to see the writing, and

we’ve made some small changes, but I think that there are Members on both sides of this Committee, Democrats and Republicans

alike, who are prepared to move on 16 of these proposals incorporated in the draft of ideas that you’ve presented us with, and I

14

hope that we’ll be able to do that. It would expedite everything that

we’re doing quite rapidly.

But I think that you must also take into cognizance that there

are a number of provisions in your measure that give us constitutional trouble. Our lawyers, our witnesses that will follow you

today from the American Civil Liberties Union and several other

university organizations, are very deeply concerned and troubled

about the fact that the court has already, for example, told us that

indefinite detention is unconstitutional. We’ve got to get these

guys, but indefinite detention has not been allowed by the courts

up ’til now. So we know, without too much other discussion, that

we may have some problems here on this issue. And feel free to address any of the comments that I’m making as soon as I conclude.

Permitting information for illegal wiretaps performed abroad

against United States citizens to be used in the Federal courts, as

the Administration proposals—proposes, is—well, some have said

it’s unconstitutional on its face. Let me be more polite. We’re deeply troubled. We’re deeply troubled by it. And there are at least a

half dozen other sections that I don’t even know how I’m going to

go on them until I’ve discussed it with the distinguished Members

of this Committee and witnesses that we will be calling forward.

So what I want to assure you is that at the same time that we

want to rearm you with the tools that you need, and know that at

the same time you’re conducting the fight already, you can’t wait

for this legislation, I want to assure you that this Committee is

doing everything that it can possibly do to expedite that happening.

Now, know that the United States Senate has already indicated

that they may be weeks away from a resolution. I’m not trying to

slow you down, but there’s no point in us trying to mark up a

measure that we agree on tomorrow morning if it hasn’t come from

the printer, and we already know that the U.S. Senate Judiciary

Committee under the esteemed Chairman Leahy has already indicated that they’re talking about weeks. So this is a discussion between friends of how we get all this together and move forward in

the manner that you’ve described to us. And I thank you for your

kind attention.

Chairman SENSENBRENNER. Mr. Attorney General, the floor is

yours. Do you wish to respond?

Attorney General ASHCROFT. Well, frankly, I don’t know that I— it might be better to allow different Members to ask specific questions. I do want to recognize the fact that over the course of the

last maybe 10 days, I’ve been working with individuals from the

Minority Leader of the House to the Committee Chairman in the

Senate. We’ve had lots of time together. The Ranking Member and

I have spent time together. The Chairman and I have spent time

together. We’ve invited the leadership of Committees of both

Houses to confer with us about this measure, and we—we believe

that this is a measure that should—that is the result of collaborative effort and work, and so there is reason for us to have substantial agreements.

In regard to the areas where there are disagreements, I must say

that we are confident that we have carefully considered those, that

they are merited not only by the circumstances, but that they pass

constitutional muster, and that they will serve America well.

15

I would just indicate that in regard to the pace of things, I think

this is a time for leadership. I think we would be ill-advised to find

a reason that someone else might be slowing down and indicate

that we didn’t understand the urgency that was appropriate to the

ability to protect the American people. It’s our position at the Justice Department and the position of this Administration that we

need to unleash every possible tool in the fight against terrorism

and to do so promptly, because our awareness indicates that we are

vulnerable and this, our vulnerability, is elevated as long as we

don’t have the tools we need to have.

Chairman SENSENBRENNER. Mr. Attorney General, let me say

that I am very strongly opposed to breaking this bill apart into several pieces. There are some easy provisions in your submission, and

there are some difficult provisions. I think when we get the information, we should make a decision on the difficult provisions and

let the Committee procedure in the House of Representatives work

its will.

Let me also state that I have never been guided by how fast or

how slow the Senate wants to work. I know that you are an alumnus of that esteemed body, but sometimes they have much more

difficulty making up their mind than we do.

The gentleman from Pennsylvania, Mr. Gekas.

Mr. GEKAS. I thank the Chair.

We welcome you of course, General.

Attorney General ASHCROFT. Thank you.

Mr. GEKAS. You stated as part of your presentation that pursuant to an Executive Order issued by the President the other night,

that certain actions are being taken to freeze assets, et cetera.

Today the President announced a separate Executive Order, I believe, that is aimed toward charitable organizations or front organizations that could be funneling monies to terrorist organizations.

I’m wondering—I think this was aimed toward ostensibly a charitable organization, and the President wants that money blocked.

And I agree with him. I think most of us do. The question is, if the

donor believes that it truly is going for a hospital, but another arm

of this organization is dealing with dynamite and terrorist activities, that that person should be absolved from any complicity in

that.

My position is that every dollar that is given to a so-called charity frees up monies that could be used for terrorist activities. I am

wondering how you feel about this particular Executive Order and

in the context of what we’re trying to prepare here.

Attorney General ASHCROFT. Well, thank you very much, Congressman Gekas. Our measure does seek to remedy a problem

here, and let me just speak of it in two ways. Front organizations,

so-called NGOs, advertise themselves as charitable organizations,

but frequently divert very substantial assets to the perpetration of

terrorist acts or the maintenance of terrorist networks. We need to

be able to curtail the resources of those organizations. The President has taken the step to do so.

The President’s step is to freeze the assets of those organizations.

Now, when we encounter criminal organizations in the United

States, like drug trafficking, we don’t just freeze assets. We seize

assets, and we are in our legislation seeking to be able to seize the

16

assets, not just to freeze them, not just to curtail activity, but to

take those assets.

Number two, you mentioned if someone thinks they’re giving to

a charity, I think this is a serious question, but for individuals, in

our proposal, who know or should know, in other words, the evidence is clear, and there’s reason to know that this is not really

a charity, that this is a front organization, then the responsibility

would attach to such individuals.

So we’re concerned on two fronts that what the President now

has the capacity to do is to freeze the assets. We think that capacity should be elevated to the way the law enforcement deals with

the assets of drug dealers and the like, to seize the assets. And secondly, we think the standards should be actual knowledge or

should have known. That’s a pretty high standard, but we don’t

want people to be responsible if they actually thought they were

giving—appropriately thought they were giving to a charity.

Mr. GEKAS. But if they did know or had reason to know, then we

would——

Attorney General ASHCROFT. We should act against them.

Mr. GEKAS. That deportability enters into the picture?

Attorney General ASHCROFT. Yes.

Mr. GEKAS. Sanctions.

Attorney General ASHCROFT. Yes.

Chairman SENSENBRENNER. The gentleman from Michigan.

Mr. GEKAS. Can I inquire of the Chair how much time—— Chairman SENSENBRENNER. Well, we’re operating under—you

know, yielding of time equally on each side until the Attorney General departs.

Mr. GEKAS. Yes.

Chairman SENSENBRENNER. The gentleman from Michigan, to

whom do you yield time?

Mr. CONYERS. Thank you, Mr. Chairman. I yield now to the senior Member of the Committee, the gentleman from Massachusetts,

Mr. Barney Frank.

Chairman SENSENBRENNER. The gentleman is recognized.

Mr. FRANK. General, on one the procedural point, you submitted

legislation, I guess, last week, which represented your best effort.

And no one’s good will is in question here. We’re all trying very

hard to do jobs that, frankly, none of us feel fairly adequate to do.

This is a terrible task that none of us ever contemplated having to

do when we got here, and we’re doing our best. And I think it’s a

time when the collective wisdom is very likely to be better by far

than what any one of us could do. I certainly benefited from that.

The only point I would make is this: You have agreed, and the

Majority and Minority have agreed to several changes that have,

in my judgment, greatly improved the bill, A very effective law enforcement effort, while diminishing some of the concerns we would

have had, and we’ve been able to do that by working together between Thursday and today. Another week would make it do even

better.

It’s no criticism of your work product to know that no one can

excogitate the perfect bill here, and working together helped. We’ve

already been able to make some improvements and enhance the

area of agreement. I would ask urgently for another week to be

17

able to do more of that rather than have us rush to a premature

markup tomorrow.

And now let me just ask you a couple of substantive questions.

I think it is essential that we upgrade our law enforcement capacity. Technology has changed, and we have a set of fiendishly skillful set of opponents, and we have to arm law enforcement. But we

are aware of our own fallibility. I think every time we increase law

enforcement’s efficacy, as I want to do in many cases, we need to

make sure the safeguards are there for those cases when we can

make the mistakes.

First, with regard to increased surveillance, and I’m going to support increased surveillance to keep up with new electronic deals,

but one of the problems we’ve seen historically is the inappropriate

release of information garnered by surveillance, and one of the

worst instances in history was the savage campaign of defamation

waged by J. Edgar Hoover as head of the FBI against Dr. Martin

Luther King, taking information he gained from surveillance; having found nothing criminal, nothing subversive, nothing incriminating, he released inappropriately personal and intimate information.

I hope we will have in this bill a right for any individual about

whom such information is released in a context other than the

criminal or intelligence investigation, the right to go into Federal

court under the Federal Tort Claims Act before a Federal judge

and get damages from the Federal Government. We have got to

build into this a bureaucratic departmental incentive to crack down

on this kind of leaking, and I think if we are able to ensure people

that we have done the maximum to prevent the inappropriate disclosure of this information, there is less concern about being gathered.

Similarly, with regard to asset forfeiture, yes, there will be times

when we’ve got to get the assets. I hope we will have in this bill

procedures that are as prompt and people whose assets were being

taken having a chance to get them back, because we’re never going

to do it perfectly. You know we’re going to take some assets we

shouldn’t take, and the former Chairman of this Committee, the

gentleman from Georgia, the gentleman from Michigan and I collaborated on a bill dealing with asset forfeiture in general. So in

both cases, if you’re going to get increased surveillance, you’re

going to get it, let’s do the maximum. And I don’t want to say, oh,

it’s a criminal offense only if someone leaks, because the likelihood

of that criminal prosecution being successful against the law enforcement person before a jury probably isn’t that great. I want a

citizen to be able to go under the Federal Tort Claims Act against

the Federal entity that had that information and sue and get damages fairly easily, because we’ve got to get that disincentive along

with other factors.

Secondly, I want there to be in areas, for instance, such asset

procedure, as promptly as you can seize the assets, equally promptly an individual who has reason to argue that he was inappropriately the victim of that ought to be able to come back in. And,

frankly, it’s to be able to work these out to our mutual satisfaction

if we have an agreement, But I think we need more time. I’d be

glad to get a response.

18

Attorney General ASHCROFT. Well, in regard to the asset seizure,

I believe all the safeguards that you sought to—and put into the

law last year would apply in settings like this. So to the extent that

those are effective and work as well as we worked to develop those,

they would operate in this setting.

Mr. FRANK. What about the release of information, because that’s

really been where we’ve had historically a pattern of abuse in the

past, information gained for investigative purposes or intelligence

purposes being inappropriately disclosed by our law enforcement

people.

Attorney General ASHCROFT. I think the inappropriate leakage of

classified information and information that is the product of these

kinds of endeavors is a crime, and I know that there haven’t been

a lot of prosecutions in that respect, but that’s—this proposal does

not include private cause of action.

Mr. FRANK. Well, I would say, yes, it’s been a crime. As you

know, the Administration has been talking about and others have

been talking about broadening that for information in general.

I will close with this. I don’t want to broaden it for information

in general, but——

Chairman SENSENBRENNER. At the suggestion of the gentleman

from Michigan, the gentleman from Massachusetts’ time is expired.

Mr. FRANK. I want to say the individual ought to get that protection.

Chairman SENSENBRENNER. The gentleman from North Carolina

Mr. Coble.

Mr. COBLE. Thank you, Mr. Chairman.

General, two quick questions. The Administration’s bill includes

provisions for the prosecution of certain computer crimes as terrorist offenses. What about this type of offense that makes it necessary to include them in the definition of terrorism, A? And, B,

Mr. Attorney General, hypothetical question applying hindsight. Is

it your belief that we could have possibly prevented this—these

events of September 11 if the government had the authority that

the Administration is requesting in this legislation?

Attorney General ASHCROFT. Well, I thank the Congressman.

First, to the question as to whether computer crimes could rise

to the level of or could be categorized as terrorist acts, when you

think about the utilization of computers in terms of air traffic control, you can imagine the chaos that could come from the disruption

of that system if we had an assault launched through a computer

virus or some other infection in the computer infrastructure, not to

mention other very serious controls in our culture that relate to

other infrastructure, whether it be power grids, power generation

supplies and the like.

Mr. COBLE. Yeah. I wanted that on the record, General, because

some folks might think that was too far-reached. I just wanted it

on the record.

Attorney General ASHCROFT. Well, you and I obviously are on the

same page. We understand that these kinds of crimes can threaten

the lives and well-being of multitudes of individuals, and they are

far above the garden variety crime of—and I don’t mean to say

there’s something easy about car theft or personal assault, but

19

when you get into threatening systems and structure and infrastructure, it’s substantial.

The second—you asked something about—— Mr. COBLE. The hypothetical that applied hindsight, which is always 20/20, could it have been avoided had we had the authority

that the Administration is seeking?

Attorney General ASHCROFT. It—there is absolutely no guarantee

that these safeguards would have avoided the September 11 occurrence. We do know that without them, the occurrence took place,

and we do know that each of them would strengthen our ability to

curtail, disrupt and prevent terrorism. But we have absolutely no

assurance. And I cannot say to you that had we merely enacted

these in August, that we would have curtailed this activity in September. Nor can I assure this Committee that we won’t have terrorist attacks in the future. The mere fact that we can’t do everything should not keep us from doing what we can do, and I believe

these each are constructive, valuable tools to be used in the fight

against terrorism.

Mr. COBLE. And so do I. Thank you, General.

Thank you, Mr. Chairman.

Mr. CONYERS. Mr. Chairman?

Chairman SENSENBRENNER. Okay. The gentleman from Michigan.

Mr. CONYERS. Before I call on our colleague Mr. Berman, I’m just

reminded, Mr. Attorney General, and to the distinguished Deputy

Attorney General, Larry Thompson, that in our last week’s meeting, it was you, Mr. Attorney General, that assured me and us on

four different occasions that you would operate within the Constitution of the United States in making these laws. Is that not correct?

Attorney General ASHCROFT. I’m not prepared to say whether it

was three or four times, but I assured you and I am willing to say

to you that it is my conviction that these laws operate within the

constitutional confines—the parameter of the Constitution.

Mr. CONYERS. Thank you.

And, Mr. Thompson, Deputy Attorney General, I counted you as

assuring me three times to that same effect, that we’d work within

the parameters of the United States Constitution, right?

Mr. THOMPSON. I don’t remember the exact number of—Mr.

Chairman—Mr. Congressman, I don’t remember the exact number

of times, but I did assure you that, in my judgment, none of these

provisions crossed any kind of constitutional divide.

Mr. CONYERS. Thank you very much.

I’m pleased to recognize Howard Berman, the distinguished colleague of ours from California.

Chairman SENSENBRENNER. The gentleman from California is

recognized for 4 minutes.

Mr. CONYERS. Well, wait a minute. We can show the times, if

that’s okay with you.

Chairman SENSENBRENNER. I’ve been keeping track, Mr.

Conyers—— Mr. CONYERS. Yes, but you—— Chairman SENSENBRENNER. You’ve taken 11 minutes——

Mr. CONYERS. We will divide the time among ourselves.

20

Chairman SENSENBRENNER. You have 4 minutes left total.

Mr. CONYERS. Thank you.

Mr. BERMAN. Very quickly, a number of compelling recommendations. The notion that a grand jury investigation could produce information about a planned attack like the one that we saw on September 11 and you—and you cannot share that with——

Mr. ISSA. We cannot hear you.

Mr. BERMAN [continuing]. And you cannot share that with intelligence agencies, that law needs to be changed.

Two things stirring around of concern. One is that in your proposal, terrorist crimes are defined so broadly that any act of violence or any threatened act of violence not for financial gain is

deemed a terrorist act. I’d like your reaction to that criticism. And

secondly, that under this proposal, even though you never decide

to prosecute, and you never decide to deport, you give—this proposal gives you or people you designate an ability to detain in perpetuity people in detention without limit, without requirement of

deportation, without requirement of prosecution.

I’d just like the Justice Department reaction to those two criticisms from the public.

Attorney General ASHCROFT. First of all, I don’t believe that our

definition of terrorism is so broad as is represented there, and it

is broad enough to include things like the assaults on computers

and the assaults that are designed to change the purpose of government, the nature of government, and assaults that obviously

have objectives other than financial or property objectives.

Secondly, I don’t believe that the law provides for an indefinite

ability to maintain people in custody without deportation. Now, in

emergencies it requires—it allows for a prolonged, but that would

be subject to judicial supervision and subject to the safeguards that

would be provided in the judicial system.

Mr. CONYERS. Thank you very much.

Mr. Chairman—I mean, Senator Ashcroft—I mean, Attorney

General Ashcroft, as you realize, can calculate, there are 11 Members on our side who haven’t said a single word. Could I appeal to

you and your kind consideration and your very difficult schedule to

accommodate at least these Members for a couple of minutes of observation or question?

Chairman SENSENBRENNER. Had the gentleman from Michigan

arrived at the beginning of the hearing and in time to make his

opening statement, the Chair announced that the Attorney General

has to leave at 3 o’clock, and that the time from 2:30, which is

when you concluded your delayed opening statement, until 3 o’clock

would be divided in half between the Republicans and the Democrats.

Chairman SENSENBRENNER. The Chair further announced that

Mr. Thompson would be able to spend an extra half hour and Mr.

Chertoff and Mr. Dinh an extra hour and that this part of the hearing would conclude at 4 o’clock. And nobody had any objection to

that, and I do think that we are lucky to have the Attorney General here for an hour; and he’s here because we agreed to accommodate his schedule, because he is in charge of conducting probably

the largest law enforcement operation in the history of the world

21

with the horrific acts that occurred in New York and at the Pentagon. So the other——

Mr. CONYERS. Mr. Chair, I addressed my appeal to the witness,

not to you, sir.

Chairman SENSENBRENNER. Well, Mr. Conyers, you knew what

the Attorney General’s time frame was. Nobody——

Mr. CONYERS. I still address it to the witness, sir. If you’d let him

respond, please.

Chairman SENSENBRENNER. Well, Mr. Attorney General, would

you like to answer Mr. Conyers?

Attorney General ASHCROFT. Thank you, Mr. Chairman. I do

have a responsibility that I’m required to meet at 3 o’clock. I have

asked that these three individuals accompany me. Frankly, they

are individuals of great expertise in all the areas here, and they

are the individuals with whom we have been working over the

course of the last 10 days or so to fashion these. They are expert

to the extent that I am not. They are better at the technical aspects

of this than I am, and I gladly confess that because they are persons of that talent. They are all individuals appointed by the President, confirmed by the United States Senate. They have line and

substantive responsibility here, and I am pleased that they are

available and willing to be here. Mr. Thompson has another compelling responsibility at 3:30. The others can stay later.

Chairman SENSENBRENNER. Mr. Smith of Texas will ask the last

question of you, Mr. Attorney General.

Mr. SMITH. Thank you Mr. Chairman. Mr. Attorney General, I

have two questions. The first is prompted by an article in yesterday’s Washington Post which described an individual with connections with radical Islamic extremists——

My mike is on, I don’t know why it’s not working.

Mr. Attorney General, let me repeat that. My first question is

prompted by an article in yesterday’s Washington Post. And let me

read some of the excerpts from it. It describes an individual who

had connections with radical Islamic extremists, possibly trained at

terrorist camps in Afghanistan, had links to Osama bin Laden, and

who enrolled in a flight school that grew suspicious when he wanted to fly a Boeing 747, having never flown even a single-engine

plane and only wanted to know how to steer the plane, not to take

off or land. The owner of the flight school was so concerned he

called the FBI.

Unfortunately, under our current laws, they would not—the law

enforcement officials were not able to obtain a search warrant. Is

the Administration considering any measures that would allow for

a search warrant in the future in that type of circumstance?

Attorney General ASHCROFT. We have not proposed an amendment to the standard for search warrants in this proposed legislation.

Mr. SMITH. Given the threat that an individual like that posed,

that is something the Administration might want to consider.

Mr. Attorney General, my second question goes to wiretap. And

that is, as you may know, as I have been told that next month is

going to—disposable cellular phones are going to be widely available in the United States. What is the Administration proposing in

22

the changing of wiretap authority to address the kind of problem

that that poses?

Attorney General ASHCROFT. Well, obviously, as individuals use

cell phones and throw them away, and some of them are—it depends on how much you want to spend. You can make your phone

disposable now. And some drug dealers do that. They don’t use a

phone very long, and they throw it away and they get another one.

And we believe that that’s the reason we want to have this ability

for the surveillance authority not to be attached to a specific phone

which ends up in a garbage can, but to be—the surveillance authority to cover the communications of a specific person. And not

only should it be—follow the person, regardless of what phone the

person is using, but it should be able to follow the person across

jurisdictional lines.

And I think these are some of the things in the bill that have

pretty broad support, because technology has simply rendered antiquated our weapons in this kind of surveillance.

Mr. SMITH. Okay. Thank you, Mr. Attorney General.

Chairman SENSENBRENNER. Thank you very much, Mr. Attorney

General. Thank you for spending the hour that you have spent

with us. I really appreciate your carving time out of the schedule

that I know is crushing you. All of the Members of the Committee

and our staffs on both sides of the aisle look forward to working

with you as we try to put together legislation that will protect the

American public from a future terrorist attack.

Mr. CONYERS. May I add my compliments as well, Attorney General.

Attorney General ASHCROFT. Thank you Mr. Conyers. Thank

you.

Chairman SENSENBRENNER. Thank you very much. Now, Mr. Attorney General, you can go off on your way, and Messrs. Dinh,

Thompson, and Chertoff will continue on. Pursuant to the announcement that the Chair made and by unanimous consent with

the Committee, we will consider questions of the three remaining

witnesses under the 5-minute rule, and the Chair will announce

that he will not recognize those that asked questions directly of the

Attorney General. Everybody was here on time today, or most everybody, so the next up will be the gentleman from New York, Mr.

Nadler, who is recognized for 5 minutes.

Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, the

World Trade Center is in the middle of my district, and I’ve been

rather concerned, to put it mildly. I’ve been going back and forth

from Washington like a yo-yo for the last 2 weeks, and the devastation is incredible. I’m certainly very sympathetic and supportive of

legitimate and reasoned attempts, (A) to destroy the people who

did that and who may do it in the future and, (B) to improve our

legislation, our law, so that we can protect ourselves. But I’m also

mindful of the fact that emergencies very often, and hasty consideration during emergencies of legislation, far-reaching legislation,

very often leads to unfortunate results that we regret later.

For example, many of the immigration provisions of the Anti-Terrorism Act of 1996 enacted in the aftermath of the Oklahoma City

bombing—which it turned out, unknown to us at that time, had

nothing to do with immigration—came from a domestic terrorist.

23

Let me ask you—and I want to join in urging that this legislation—that we be given a couple of weeks and not try to mark it

up tomorrow, because we have to get out the language that we

haven’t seen yet. Our public groups outside this body ought to have

a time to review, send us their comments. We ought to have time

to consider it so that we act judiciously, and there’s no reason we

can’t have legislation on the books in a few weeks. But we have to

have a couple—a week or two to do it right.

But let me ask you this. The Attorney General said something

I think that was incorrect a few minutes ago. I have two questions

for you. One, he said that this didn’t—that this bill did not authorize indefinite detention without a hearing before a judge.

I refer to section 202 of the bill: The Attorney General shall

maintain custody of any such alien until such alien—the Attorney

General shall take into custody any alien who is certified—this is

subparagraph 3. Paragraph 3 says the Attorney General may certify an alien to be an alien, he has reason to believe, no evidence,

just reason to believe, may commit further or facilitate acts described in section, et cetera, or engage in any other activity that

endangers the national security of the United States.

In other words, the Attorney General decides he has reason to

believe that this guy is a terrorist, or may be a terrorist. Doesn’t

have to show a judge any evidence of that. He has reason to believe

that, and then he shall maintain custody of any such alien until

such alien is removed from the United States. Such custody shall

be maintained irrespective of any relief from removal the alien may

be eligible for or granted until the AG deems such alien—until the

Attorney General deems such alien is no longer an alien and may

be certified pursuant to paragraph 3. The Attorney General under

this provision has carte blanche to decide that someone, until he

can be removed—even if someone says he shouldn’t be removed—

should stay in jail forever, with no evidence before a judge.

Now, the next paragraph says that habeas corpus may only—

that judicial review may only be had by habeas corpus in the U.S.

District Court for the District of Columbia. But the judicial review

would seem to be only with respect to the question of whether the

Attorney General has reason to believe. And there’s no standards.

So that’s question number one. And that would seem to indicate

that the Attorney General has basically carte blanche, with only

ministerial judicial review, to put someone in jail and keep them

there forever with no evidence.

My second question is section 152 of the bill, according to your

summary which I’m reading from, allows the issuance of a generic

order to law enforcement officials so they can pursue investigations

in many places, without having to return to the FISA court to get

an order naming specified persons who can assist in the investigation, e.g., custodians, landlords, or telephone companies.

I’d like to know how you square that provision with language

that says no warrant shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place

to be searched and the persons or things to be seized. That’s the

fourth amendment to the United States Constitution. Those are my

two questions.

24

Mr. DINH. Yes, Mr. Chairman. If I may, I will take the first part

of the first question of the Congressman, because I have obviously

significant personal experience and some professional experience

with the immigration laws of this country. And then I would defer

to my colleagues, Mr. Thompson and Mr. Chertoff, with respect to

their experience under the FISA statute.

Under current law, a person who is removable, deportable, or excludable for terrorist activity is subject to mandatory detention.

That is current law.

Mr. NADLER. Excuse me. But who decides that he is removable

for terrorist activity? According to this, it will be the Attorney General, with no evidence necessary whatsoever.

Mr. DINH. This does not, this does not affect that current law

with respect to removability for terrorist activity. What this does,

however, is that for the class of aliens who are removable for other

purposes, for other reasons, be they out of status, have committed

a crime that makes them subject to removability, for those aliens

who would go be in front of an immigration law judge and be detained in the normal course, where the Attorney General has reason to believe that that alien poses a threat to national security or

is likely to commit a terrorist act, he may certify so, and therefore

that alien may be detained.

Mr. NADLER. But he doesn’t—but the Attorney General can certify it because he doesn’t—because he happens to dislike this person, because there’s no requirement of any evidence given to a

judge to justify the certification.

Mr. DINH. He cannot certify the grounds for removability, Congressman. He can certify the threat to national security that

would—— Mr. NADLER. But that threat to national security is solely by his

dictate, doesn’t have to be before a judge, and enables him to hold

that person indefinitely.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The machine’s not working properly.

Mr. DINH. Let me just clarify one thing. It is not indefinite. It

is only pending the removal proceedings. If at the end of those removal proceedings the person is found to be not removable, then

that person goes free. Pendency of that proceeding, there is still judicial review via habeas corpus, as you have mentioned, Mr. Congressman, and during that period that review would be under the

normal judicial and constitutional habeas procedure.

Mr. NADLER. But there is no requirement in here of a removal

proceeding.

Mr. DINH. Under current law there is. Well, if there is no removal proceeding, if the alien is not removable, the INS commissioner cannot institute removal proceedings in the first place, so it

would not be——

Chairman SENSENBRENNER. Mr. Nadler, your time has expired

and——

Mr. NADLER. It’s important to get the question answered, Mr.

Chairman.

Chairman SENSENBRENNER. I know, but it’s also important that

as many Members as possible be able to ask questions before 4

o’clock. The gentleman from——

25

Mr. NADLER. That just shows the problem with rushing this legislation so fast. Shouldn’t we find out what it says and what its implications are? Is our only requirement that we meet the clock, or

are we trying to do something responsible here?

Chairman SENSENBRENNER. No, we are not beating the clock.

The procedure that we are following now is at the specific request

of Mr. Conyers, who asked if officials from the Justice Department

could testify for a period of time after the Attorney General has to

leave. We have officials from the Justice Department for 2 hours.

We will then have the panel which the Democrats have asked for

an hour and a half, from 4:30 until six o’clock. The Chair is trying

to do his best to have as many Members as possible ask questions,

which means that running on after the 5 minutes takes away from

one’s colleagues’ time. And I haven’t asked any questions and don’t

intend to.

Mr. CONYERS. Thank you, Mr. Chairman. I want to agree with

you in part, but point out that it was the witness that was speaking when the time expired. It wasn’t the Member on the Committee. And he was merely concluding his response to the question

that had been timely posed.

Chairman SENSENBRENNER. Well, there were a couple of followup questions, and that’s where the problem comes.

Gentleman from Virginia, Mr. Goodlatte.

Mr. GOODLATTE. Thank you, Mr. Chairman. Deputy Attorney

General Thompson, gentlemen, all, we very much appreciate your

taking this extra time. And I also want to say that I strongly support this legislation, with some concerns that some elements of it

need some fine-tuning, and I’d like to address some of those.

As you know, under your current authority, to engage in obtaining what are called pen register information and trap and trace information. With regard to telephones, the information you get with

a pen register is the telephone numbers that are dialed to from the

call. With trap and trace, it is incoming information. With pen register, it’s outgoing information, as I understand it.

With regard to the use of this authority, when we expand it as

this legislation does to the Internet and in particular to e-mail messages, it raises some gray areas; because the information that can

be obtained can have a number of different gradations.

Do you expect that the proposed expanded pen register and trap

and trace authority would allow content such as header information; that is, the subject line of the e-mails, which gives you more

information than just a telephone number, would be captured by

these devices?

And what about URLs for Web surfing? Would you be capturing

that information? You’re going beyond just getting somebody’s email address when you obtain those pieces of information without

going through all of the other procedures you have to go through

to get a court order for a wiretap, which obviously entails a much

greater burden on you but would allow you to get, you know, substantive information about the nature of conversations.

Mr. THOMPSON. With respect to the header information, I do not

believe it would apply there to the proposal. And, Congressman,

with respect to—the question was asked to us by Congressman

Nadler, a very fundamental point that needs to be made with reVerDate 11-MAY-2000 13:52 Nov 13, 2001 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6601 G:\WORK\FULL\092401\75288.000 HJUD2 PsN: HJUD2
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spect to that. Section 152 covers FISA, FISA orders. FISA orders

are subject to foreign powers or agents of foreign powers. They do

not implicate U.S. citizens, Congressman, so your concerns there

would not apply.

Mr. GOODLATTE. I’m not concerned about what you are gathering

outside of the realm of communications by United States citizens.

But I’m concerned that the terms ‘‘routing’’ and ‘‘addressing’’ need

to be clarified to show that the intention of acquiring information

about each message is limited to the destination or the termination

of such communication, as it is with telephone communications

rather than going beyond that.

Mr. THOMPSON. Mr. Chertoff will answer that direct question.

Mr. CHERTOFF. Congressman, let me see if I can answer it without getting excessively detailed. What that provision is designed to

do is to really have technological neutrality to do in the area of email what we do in the area of telephone with respect to trap and

tracing and pen register. What we’re looking for is addresses and

information that tells us who sent the material and where the

sender is addressing the material. We’re not looking to get into content. Everybody understands that if you want to get into the area

of content, you have to go and get a title III order.

So, as we understand this provision, it’s not going to alter the

fundamental legal distinction between getting a pen and trap for

addressing information and getting a title III for content. We’re not

looking to get subject lines. We’re not looking to get into the specifics of what somebody read when they were on the Internet, without going to get a title III.

Mr. GOODLATTE. I take it from that, that you would be willing

to work with the Committee to make sure that the language in the

legislation is clear in that regard.

Mr. CHERTOFF. I’m sure we would, yes.

Mr. GOODLATTE. One more question. Some have suggested that

the legislation should be limited to terrorist activities and not affect crimes in general. Is there any problem with such a limitation?

Mr. CHERTOFF. Again, Congressman, I understand the impulse

behind that. But let me say that often when you commence a criminal investigation, it doesn’t come labeled terrorist or nonterrorist.

In fact, this provision, and a number of the provisions really address inconsistencies in the law where under one type of technology

we are able to do one thing, but emerging technology has created

a gap in the law. There’s no change in the privacy protection substantively. We’re trying to just even the playing field.

As to those types of issues, there’s no reason to limit it to terrorist activities. And, in fact, it will often be the case that terrorist

groups engage in other kinds of criminal activities to finance or

support their terrorism. So I think if we’re going to be comprehensive and make sure we are not merely locking the barn door for the

last horse, but we’re locking the barn door for the next horse, we

have to address some of these technological gaps right now.

Mr. GOODLATTE. That’s a fair answer.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from Virginia, Mr. Scott.

Mr. SCOTT. Thank you Mr. Chairman. And I too want to express

my frustration about the time limitations. The terrorists could not

27

undermine our freedoms, but as we consider this legislation that

might be exactly what we’re doing.

Americans have an expectation of privacy. They don’t expect government officials to be listening in on their private conversations.

They have a belief and a presumption of innocence. And we know

that many innocent people will have their conversations listened

into, and not by computers, but by people that may be their neighbors, friends, coworkers. You go to a PTA meeting and somebody

may be a government official who may be—may have just listened

in on private conversations. You don’t know.

And that’s why we want to limit the use of these investigatory

powers to those where they’re definitely needed. And this bill contains significant changes in wiretap law, significant changes in civil

and criminal law, immigration law; they apply to everything, not

just terrorism. They’re not limited to terrorism. Some of these are

fairly easy and straightforward. We could agree and get them

passed.

But doing this on such an accelerated basis causes significant

problems. For example, we’re going back and forth between intelligence gathering and criminal law, and there are differences. Intelligence gathering, you don’t need any predicate criminal trial. You

just want to get the information, but it’s limited to people that

aren’t citizens.

On the criminal side, you have to actually be investigating a

crime. Now, when you start going back and forth, you just may be

gathering information. And so we have to be very, very, very careful. Now, whatever process we use will cover guilty people as well

as innocent people. And in that light, if someone—if someone has

the foreign equivalent name of John Smith, and you put somebody

on this list with secret evidence and it turns out it’s not the same

John Smith, how and when can they get their property back if

you’ve taken their property?

Mr. Thompson.

Mr. THOMPSON. Congressman, the ability of the Intelligence

Community to share information with law enforcement authorities

and vice versa is critical to our fight against terrorism. The situation is the left hand has to know what the right hand is doing. This

is a problem with respect to our foreign intelligence investigations.

This is a problem that has really plagued some of our cases that

the Department of Justice has.

Mr. SCOTT. I’m sorry, Mr. Thompson, I only have less than 5

minutes, and I just want a specific question. If someone has their

property taken, they’re the wrong person, how and when do they

get their property back?

Mr. THOMPSON. Well, nothing in this provision forestalls the constitutional—the right of a citizen to sue the Federal Government

or law enforcement officials for doing something wrong in violation

of the Constitution, pursuant to Bivens.

Mr. SCOTT. In this case, have there been cases of mistaken identity?

Mr. THOMPSON. I’m not aware of any case of a mistaken identity

in connection with the foreign surveillance. But, Congressman,

these——

28

Mr. SCOTT. Well, I mean there’s news reports that say that some

people have been identified as people that were on the plane, subsequently determined to be people of the same name as others.

Mr. THOMPSON. This is not—this does not arise in the—this does

not arise in the Foreign Intelligence Surveillance Act.

Mr. SCOTT. And my question is, if you have a businessman who

is conducting his business, gets put on the list because he has the

same name as a terrorist, and disrupts his business because you

have taken his property, my question is how and when does he get

his property back?

Mr. THOMPSON. You would not be taking his property. What you

would be doing is sharing information with authorities so that if

perhaps this person is a terrorist, you will be able to prevent or

disrupt that kind of activity. Heretofore, without this kind of— without this kind of legislative change, it’s going to—it has been

very difficult—— Mr. SCOTT. Okay. Well I don’t think you’re understanding the

question, because you’re suggesting that you are not taking people’s property if their name is on the list.

Let me ask you another question. Maybe I can get answer to that

one. When you want the search wiretap warrant to go with the person and not with the particular phone, what is the protocol to make

sure that someone else unrelated to the terrorism, unrelated to the

drug dealer or anything else, who uses the same phone, a pay

phone, for example, what is the protocol to make sure you are not

listening in on those conversations?

Mr. CHERTOFF. I think, Congressman, it’s the same protocol we

use now. I mean when we go up on wiretap on the telephone in

a house, let’s say, under title III there are instructions that are

given concerning making sure that if someone else uses the phone,

you are not listening to that person for an extended period of time.

What I think is important about these provisions is none of them

is a revolution in the law. All of these are techniques and principles that we have been applying for 20 or 30 years in some context. We are simply trying to apply them across the board so we

don’t have gaps in the coverage. And I think it’s the gaps in the

coverage that you see in the press and you see even Congress itself

has noted in the past as creating problems in terms of our ability

to address a potential terrorism.

I should also say that although, Congressman, you have made

reference to the notion that people are going to be put on a list and

have their property taken, as I understand this legislation, you—

we’re talking about forfeitures after conviction; we’re not talking

about putting people’s names on a list and taking their property.

So that I don’t think is a dramatic change in the way the law operates. It doesn’t change the balance between law enforcement and

privacy. What it tries to do is make it more efficient and to make

it more streamlined.

Chairman SENSENBRENNER. The gentleman’s time has expired.

Gentleman from Ohio, Mr. Chabot.

Mr. CHABOT. Thank you, Mr. Chairman. As President Bush has

said before, the vicious terrorist attacks of September 11 represented nothing less than a declaration of war against our country. To win this war, we must use every investigative law enforceVerDate 11-MAY-2000 13:52 Nov 13, 2001 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 G:\WORK\FULL\092401\75288.000 HJUD2 PsN: HJUD2
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ment and military resource at our disposal to find and punish the

individuals or governments responsible for these terrible crimes.

In my hometown of Cincinnati, just as in the rest of the Nation,

there’s shock, there’s outrage that anyone could have perpetrated

such unspeakably evil acts. People want the full power of the

United States to be used against the cowards who carry out these

attacks against innocent men, women, and children; and people

want a reasoned examination of what additional steps can be taken

to combat terrorism and enhance public safety.

As we move forward with efforts to combat future terrorist attacks, we must remember that freedom is the foundation of our Nation. The terrorists want to change our way of life. They want to

put fear in our minds and they want to suspend our liberties. We

must not cave in to their demands by suspending or weakening our

constitutional rights. Our goal must be to eliminate terrorism and

make sure that all nations and the supporters of terrorism understand that an attack on the United States brings grave consequences. At the same time, we must protect the freedoms that we

as representatives of the people have been entrusted to defend, the

freedoms that thousands of American men and women have sacrificed their lives to defend those freedoms—we should always keep

that in mind—the freedoms that make the United States of America the greatest country on the earth.

I do support many of the proposals that the Attorney General

has put forward. However, I also have concerns over some of the

provisions, as many of my other colleagues, both on the Democrats

and Republicans have, which could have a real impact on our citizens’ individual liberties. The freedoms that we enjoy as Americans

and the limitations on the government that our system provides

were won at a real cost.

With that in mind I just have a couple of questions. Section 107

of the proposed bill would expand the range of records that law enforcement officials may compel communications companies to make

available without a court order, such as credit card information.

The example used in the consultation draft pertains to credit card

records as a means to determine the user’s true identity.

What types of transactions or purchases would the Department

of Justice deem to necessitate such an order? Specifically, what

products or services would subject a consumer to the scrutiny of

the Federal Government? And secondly, how would the DOJ insure

that the financial privacy of innocent law-abiding citizens is protected, especially given the potentially wide array of purchases

which may be subject to such an order?

Mr. CHERTOFF. Let me see if I can answer both of those briefly.

The reason we’re interested in credit card information is because

often people who are engaged in criminal activity are not using

their real name, or they may be moving from place to place. And

we want the credit card information to determine who is paying for

the service. In other words, who’s paying Yahoo or AOL or whomever it is. This is not a provision that would get into the substantive purchasing that people engage in over the Internet.

Secondly, I should say with respect to the subpoenas, this is all

confidential information that’s held by law enforcement. It’s not

30

material which would be made public and therefore it would safeguard people’s financial privacy.

Mr. THOMPSON. Congressman, may I just add that—and I understand your concerns. And as we have tried to fashion this—this legislation, what we have considered is really how the terrorist acts

in today’s world. The terrorist acts globally. The terrorist acts

across the country. The terrorist acts smartly and quickly. And

what this legislation is designed to do is to give the Department

of Justice and law enforcement officials tools to react to that kind

of way of doing business that the terrorist has engaged in; to not

only allow us to catch them and bring them to justice, but to disrupt and prevent their activity. And if we’re going to do that, if

we’re going to be engaged in disruption and prevention, we’re going

to need to have all the information we possibly and reasonably can

and we are going to need to be able to react quickly. And that’s

what this proposed legislation is designed to do.

Mr. CHABOT. Thank you. Yield back the balance of my time, Mr.

Chairman.

Chairman SENSENBRENNER. The gentlewoman from California,

Ms. Lofgren.

Ms. LOFGREN. Thank you, Mr. Chairman. Yesterday I, along with

several other Members of the House, went to New York City. And

I must say that to be there at the site of the former World Trade

Center and to look at the damage done and the pictures of thousands of people who are lost, and probably forever, is an overwhelming experience. And I found myself today attempting to temper the anger that I feel, and I think all Americans feel, at this

assault on our country. Because if we damage the Bill of Rights in

the process of pursuing the wrongdoers, the terrorists will have

won. And so we need to make sure that we preserve and defend

the Constitution of the United States and the Bill of Rights that

gives us our freedom.

Now, frankly, looking at this draft, I think there are some things

here that all of us agree about and that we could do very quickly.

I think there are some areas that with some further working we

might quickly come to an agreement. And I think there are some

areas that have serious flaws.

And without getting into a debate, I do have a very strong concern, Mr. Dinh—and I didn’t have a chance to talk about this over

the weekend—but the—that the indefinite detention is a real issue,

because there is no time line during which the deportation proceedings must be undertaken. And so the effect really, I mean, and

the Court’s been very clear, and even recently in terms of those

who cannot be deported because of persecution or failure of the origin country to accept the deportee, that you can’t keep someone in

indefinite detention and be constitutional. So we are going to need

to work through those issues.

Chairman SENSENBRENNER. If the gentlewoman will yield at this

point, Mr. Thompson’s time has expired, but yours has not. So you

are excused, and Messrs. Chertoff and Dinh will stay.

Ms. LOFGREN. All right. The question I had next was for Mr.

Thompson, but perhaps we’ll have another opportunity to visit

that.

31

A lot of concern has been expressed in some circles about the

search warrant and wiretap provisions that will become nationwide

in scope. On the other hand, we also know with the mobility that

exists in this society and the disposable phones, that there’s a technology issue that also needs to be dealt with.

I’m wondering if in your judgment, section 152, the FISA Court

roving wiretaps, section 108, the nationwide search warrant section, and section 351 might achieve your goals and yet be markedly

assisted in terms of civil liberties by requiring that the court with

jurisdiction actually would have original jurisdiction in that the offense or the person was present, number one; and number two,

that the Court might be asked to produce a finding and additional

order that the scope be nationwide; that that wouldn’t just be an

assumption that there would be some representation and judicial

finding as to the nationwide scope of the order.

Would that—wouldn’t that solve some of the concerns and also

achieve your goals?

Mr. CHERTOFF. Congresswoman, I think, you know, we were very

sensitive to that when we put together the legislation. As I understand the proposal, it would require that we go to a court which

does have jurisdiction over the offense.

Ms. LOFGREN. It does, but it doesn’t appear to be in each one of

those sections.

Mr. CHERTOFF. Well, I think if that were to be an issue, I think

we could probably address that. And the point is we’re not looking

to shop to find a court somewhere that’s unrelated. We want to

pick a court that is in fact connected with the offense. I think,

though, that once we have done that, there is no element of civil

liberties that is sacrificed by allowing that court to exert nationwide process. We already do that in other areas and I think this

would just be consistent.

Ms. LOFGREN. The concern that has been raised by some in the

civil liberties community has been the particularity requirement

that might be dealt with by the court order. But without going further, I wanted—and maybe you can answer that, perhaps only Mr.

Thompson could. It seems to me, I mean there are serious flaws in

some of the immigration-related provisions. But I want to ask

about what we could do now in the administration of the laws that

really don’t require a change in the law.

For example, and I—you know, just in what’s in the paper, it appears that the individuals who are the subject of concern entered

in most cases, upon inspection they were on watch lists. They got

visas, and apparently there has been a failure of communication

and computer communication. And I’m wondering what we might

do to upgrade the biometrics, the computer sharing of information

relative to inspected entry.

Mr. DINH. Congresswoman, thank you very much and rest assured that our colleague, Jim Ziegler, is working hard as is everybody at the INS in order to meet the enhanced threat. Whatever

we can do administratively, we are already doing or exploring ways

of doing.

That said, there are things that we need your help on legislatively. For example, in two of the provisions with respect to—specifically to the watch list, we proposed that that watch list be—to

32

have the ability to share with our partners, our multilateral partners, in the ability for them to help us in looking out for these individuals; likewise, with respect to the sharing of some of our criminal record information, so the INS can enhance ability to——

Ms. LOFGREN. And you notice I’ve not asked about those provisions.

Chairman SENSENBRENNER. The gentlewoman’s time has expired. The gentleman from Georgia, Mr. Barr.

Mr. BARR. Thank you, Mr. Chairman. The question I have is a

very fundamental one and we’ve touched on it a number of times

today, and I still don’t have a satisfactory answer to it. The essence

of the question is if we are interested in proposing here changes

to criminal law and criminal procedure to attack international terrorism, why is it necessary to propose a laundry list of changes to

criminal law generally and criminal procedure generally to cast

such a wide net, and why is it necessary to rush this through?

Does it have anything to do with the fact that the Department

has sought many of these authorities on numerous other occasions,

has been unsuccessful in obtaining them, and now seeks to take

advantage of what is obviously an emergency situation to obtain

authorities that it has been unable to obtain previously, even

though the government cannot tell us in the Congress, with any degree of certainty or with any specific examples, that had these authorities been available to the government prior to September 11,

they have some confidence that these events could have been prevented.

If you look, for example, as examples of my concern and I think

the concern of another—a number of other Members on both sides

of the aisle, we see many, many provisions in the Administration’s

proposal that have nothing specifically to do with fighting terrorism, but yet apply generally to all criminal offenses or all criminal procedures.

This proposal would seek to institutionalize and justify the government’s use of Project Carnivore, for example, not limited to

fighting terrorists. Expanded dissemination of wiretap information

to any government employee is not limited to terrorist information.

Use of wiretap information from foreign governments is not limited

to antiterrorist or terrorist information or activity, but would provide, I think, a gaping loophole through which our government

could use information which, if gathered directly by our government, would be unconstitutional and therefore inadmissible if a foreign government collects it.

Multipoint roving wiretap authority is not limited to incidents of

or investigations involving terrorist activity, but applies generally.

The lower standard—lowered standard for foreign intelligence surveillance would not apply simply to terrorist or antiterrorist information. Broad access by administrative subpoenas, which for the

public means subpoenas issued not by a judicial officer, but simply

by an administrator in the Department of Justice and therefore,

with no judicial oversight, would apply across the board, not just

to terrorists or antiterrorist activities.

The authority to conduct secret searches, so-called black bag operations, where contemporaneous notice is not given, which is the

33

norm currently, would be authorized; not limited to terrorist or

antiterrorist cases.

I really would appreciate something more than just generalities,

if you all could. Why it is necessary, without proper hearings, without due deliberation and input, to dramatically change provisions

of U.S. criminal law and criminal procedure across the board simply to attack the problem of terrorism; and why would the Department not agree to simply address those provisions that do relate

to terrorism, which we can all agree on—there are some gaps in

the government’s current arsenal to fight terrorism—but allow us

somewhat more deliberative process to address these other fundamental concerns and across-the-board changes.

Mr. CHERTOFF. I’m—I don’t think I’m going to have the time to

address each one of those items. But I do want to try to address

some of them and talk generally. I think the Department was very

careful when we put this together not to engage in the temptation

to treat it as a laundry list of all the things we wished we could

have. At the same time, I’m confident in saying that every one of

the provisions we have put in here is extremely important in fighting terrorism.

That’s not to say that they don’t have relevance in some instances to other kinds of crime. But they’re, all of them, related

quite specifically to what we need to do to be more effective in

fighting terrorism.

And let me address some of the issues that you’ve raised, Congressman. You’ve talked about the need to share FISA information,

foreign intelligence surveillance information. Well, by definition,

that involves national security information, either terrorism or espionage, and I think we can all agree that those are critical threats

to the United States. What we’re trying to do is, as Mr. Thompson

said, is make sure one hand knows what the other——

Mr. BARR. But foreign intelligence is much broader than terrorism.

Mr. CHERTOFF. It includes espionage, for example, as well.

Mr. BARR. Which is already against the law and for which the

government already has plenary authority to investigate and prosecute.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentlewoman from Texas, Ms. Jackson Lee.

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. It is obvious by the extended questioning of the Members that this is not

enough time, though I do want to thank the gentlemen, thank General Ashcroft, who I wish could have stayed, and thank the deputy

Attorney General, Mr. Thompson, as well.

My opening remarks will simply be I ask that you take a message back. I believe some 4 or 5 years ago, when we entered into

this process, in 1996 I believe, we had 4 days of markup. I would

ask that the message be taken back that there are many of us who

want to do the right thing. We want to do it collaboratively. We

want to do it in a bipartisan way that respects the rule of law.

Let me briefly say that I’m probably going to give you a number

of issues that I hope are instructive, and then probably will have

to receive some of these answers by way of independent communication. Yesterday in an open ceremony that was held in New

34

York, one of the religious leaders indicated that we should not consider that 6,000-plus people died as much as we should consider

6,000 times one. One person died, 6,000 times. The reason is the

impact on the loved ones of that one person should be something

that we never, never forget. And I agree with that.

And I hope this process in this hearing room does not suggest to

you that we diminish what you have to do. But at the same time,

this room should represent what it is, the Judiciary Committee,

with oversight on the rule of law, the Constitution and the Bill of

Rights that all of us cherish and want to protect.

My first question is, I understand that the Attorney General has

said you have detained 352 individuals. Can I quickly get an answer as to whether they’re still detained and whether they were detained under current law?

Mr. CHERTOFF. I think the answer is that everybody who has

been detained has, of course, been, as far as I understand it, detained under current law. And they’re all working their way

through the process under the existing law and regulations.

Ms. JACKSON LEE. And are they presently still detained?

Mr. CHERTOFF. I can’t tell you as we speak here, because I have

often found that between 1 hour and the next the situation

changes.

Ms. JACKSON LEE. Thank you very much. I would want to pursue

that in terms of the current law that you use to detain these individuals. I think that is key.

Let me also say that I understand through the spring of 2001,

that there were several indicators that the FBI had that something

was awry. The question that I’m going to want to hear, whether

I have time to hear it from you now, is when the FBI gathers such

material, where do they translate that material and what kind of

actions are then translated?

Let me thank the FBI and the Department of Justice for what

you have thwarted. But I do think there is something wrong with

the system in communicating information. Particularly, my interest, serving on the Immigration Subcommittee, is where that information gets translated into the INS and how it does.

Let me give my list of questions, and I might have to subject myself to not getting your answers right now, particularly on the

question of visas. Visas are handled by the State Department. INS

has the authority of oversight once they’re here. Have you presented anything in collaboration with the State Department that

we might change that process, whether we put it all under one operation, whether there is more dialogue? That’s where the question

came. Some of these people, the 19 that are on the original list,

were here legally. I want to raise that question. The Mexican border, I understand, from where I come from, has stringent enhanced

security. My question is, what’s happening at the Canadian border?

And I understand there is some. But we have looked at what we

might have to change with respect to the Canadian border and as

well the Canadian immigration procedures that are of concern to

all of us.

What my points are in making—raising these issues, and I’m

going to quickly finish so I can get to the immigration, so you can

answer those questions, is we need time to deliberate. You have a

35

situation where you’re holding someone responsible for contributing

to a group that may have been legal 5 years ago. Suppose it’s the

Christians for Democracy in Ireland? What do you do? Hold that

person as a terrorist?

My last question would be, do you see the viability of an expedited court review system throughout all of these changes? Because

I agree with Mr. Barr as to whether or not we’re just trying to

change the criminal code or we’re trying to ferret out terrorists, we

need to do this in a deliberative manner.

I would appreciate greatly if you would answer the immigration

questions and the cross-pollination of sharing information, because

I feel that is where we had more than a lot of trouble, as I acknowledge the work you’ve done. I yield to the gentleman.

Mr. CHERTOFF. I appreciate that, Congresswoman. I’m going to

let Mr. Dinh speak to the immigration issue, but I’d like to speak

to the cross-pollination issue, because I think you’ve put your finger on exactly one of the problems we’re trying to address here,

which is making sure one hand knows what the other one is doing.

It is wonderful to collect information. But if we can’t make use

of it, it is a colossal waste of time. One of the critical cornerstones

of this legislation is designed to make an amendment in the language of the Foreign Intelligence Surveillance Act that we believe

restores the original intent, that allows us to use court-ordered

electronic surveillance to get information on potential terrorists,

people who are agents of a foreign power, and make sure it gets

communicated in a timely fashion to those criminal justice authorities who can arrest people and incapacitate them so that they are

no longer out on the street, available to plant a bomb or hijack a

plane.

Unfortunately, the way the courts have interpreted the law up

to now, they have made it very difficult to bridge that gap. And

we’ve been in the unenviable position of sometimes having intelligence information in the possession of the FBI that the law appears to prohibit them from sharing with the people who would go

out and make the case and make the arrest and incapacitate these

people.

That is why section 153 of this legislation is critically important.

It restores what I think is the original intent of the law, to make

sure that there is adequate protection, court protection against surveillance, but a reasonable sharing of information.

With that, I’ll let Mr. Dinh address the immigration matters.

Mr. DINH. If you will notice, of the list that we have proposed

for the information sharing in sections 103, 154 and 354, that list

is limited to specified individuals. The individuals listed include

national security, national defense, law enforcement, intelligence

and, importantly for your question, immigration individuals, precisely for the reason that you have highlighted. When we have information that is critical in wiretap situations, in FISA situations,

or in grand jury situations, we do not have the capacity in order

to share that information with key individuals, especially in the

immigration or consular activities, so as to prevent this type of— exactly the type of situation you have highlighted, Congresswoman.

Ms. JACKSON LEE. I thank you. I know I have additional questions, but I thank you, Mr. Chairman.

36

Chairman SENSENBRENNER. The gentlewoman’s time has expired. Gentleman from Utah, Mr. Cannon.

Mr. CANNON. Thank you, Mr. Chairman. I first want to express

first my frustration with the terrorists and their lack of concern

over our deliberative process here. Secondly, I’d like to point out

this is a complex measure, with many issues, and I appreciate you

and your staff for having been willing to work with me and my

staff to improve this bill. And thirdly, I’d like to encourage our colleagues to engage with you, Mr. Chairman, and your staff, so that

we can improve this bill in a timely fashion. And I hope that we

can produce a bill that I and others can vote for.

I would like to just make one comment that is, frustratingly, not

dealt with here very well. That is, we are talking about technology

neutral as we approach the law. And in fact, that doesn’t make

sense unless you’re dealing in the context of DOJ not being limited

by technological transformation. There are differences between email and telephones and between e-mail and written letters. And

if I might just bore everyone by pointing out this, so that we have

it in front us, a telephone conversation is evanescent in that they

may be able to capture a conversation if it has certain words in it.

Someone who’s wiretapping may listen for an appropriate period of

time to determine if it’s a relevant phone conversation, and if it’s

not, under the current guidelines we don’t pursue that. But an email stays there forever. And that means that it can be—once you

have the content without reading it, without searching the way you

would search a telephone conversation, you can identify information in that e-mail as long as it’s available. As between e-mail and

their headers and the pen register kind or trap and trace kinds of

things we’re talking about doing, technology changes the nature of

communication. They were not staying technologically neutral.

You have people—when you have a conversation on the telephone, you may place multiple calls and have a conference call, but

that’s actually fairly rare in our society. Whereas, with e-mails you

may have networks of people. And finally, as we move into the next

phase of technology, where pier-to-pier, and broadband-tobroadband enables pier to pier, the nature of who the targets of

these subpoenas would be are much greater and different.

Therefore, I think that we need to have a real and serious

sunsetting provision so we can reevaluate what we do here in context, after we’ve a little bit of experience with it.

That said, I do have some questions, recognizing that any question is very narrow compared to the complexity of this issue. Under

section 103 of the proposed legislation, as written, the sharing of

informing produced by law enforcement investigation with others

in the executive branch appears to be unlimited. Now, we’ve talked

a little bit about that. But in particular, how do you propose to

limit that sharing to only relevant persons in the intelligence community?

Mr. CHERTOFF. I think in the period of time since the draft was

prepared, I think we have agreed that we would somewhat more

narrowly frame the people who could receive—— Mr. CANNON. Let me just—I have a couple of questions, so what

we’ll do is we’ll look at the draft as to that particular point, if you

have addressed it. That may be sufficient. Do any current laws govVerDate 11-MAY-2000 13:52 Nov 13, 2001 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 G:\WORK\FULL\092401\75288.000 HJUD2 PsN: HJUD2
37

erning the sharing of information in the executive branch apply

here?

Mr. CHERTOFF. They would, to the extent information would be

shared in the executive branch. I don’t think this would change it

except to the extent that the legislation specifically indicates.

Mr. CANNON. Okay. Would you support some sort of independent

review to insure that such information sharing is appropriately

limited?

Mr. CHERTOFF. Well, I think we have existing standards. I mean

there are restrictions on the dissemination of classified information, confidential law enforcement information, things of that sort,

which would apply here as well.

Mr. CANNON. But I don’t think that addressed the issue of some

kind of independent review to see whether that inappropriate

things happen.

Mr. CHERTOFF. Well, I mean, I’m not quite sure, Congressman,

what you mean by independent review. I know for example under

title III for wiretap information, unauthorized disclosure of that information is not only a criminal offense, but it can give rise to civil

liability, and there have been cases in fact where people have been

prosecuted or sued for that, as I understand it. So I don’t know

that there’s any—I mean that is an independent check. I don’t

know that we would want to engraft some independent actor here.

Mr. CANNON. Thank you. Just one final question. Under sections

108 and 351 of the Anti-Terrorism Act, you have a nationwide warrants proposal. What existing mechanisms, or ones that you would

propose, could prevent forum shopping by prosecutors for warrantfriendly judges?

Mr. CHERTOFF. Well, it has to be the case, first of all, that the

issuing court would be one which is—one in which the crime occurred. So that obviously limits you to one of a comparatively small

number of jurisdictions. Secondly, of course, you go to whatever

judge the particular district has as the duty judge during that period of time. We don’t have the ability to control the judges. There’s

usually, in my experience, some kind of rotation that the court

itself sets up. So I don’t think as a practical matter, there’s any

possibility of shopping for a particular friendly judge.

Mr. CANNON. Let me just follow up and ask, when you’re talking

about where the crime is committed, what if you have a wiretap

in northern Virginia, not a wiretap, but you have—you have got a

trap and trace in northern Virginia on an e-mail which may have

been sent from southern California to Wisconsin? Do you have—

where is the crime when you do that?

Mr. CHERTOFF. Well, for example, in this case, northern Virginia

where we had an explosion at the Pentagon, or New York, the

southern District of New York where there was a crash in the

World Trade towers, those would be two places that would be permitted under law. We wouldn’t simply go to, let’s say, to Montana

or to Utah and pick those arbitrarily simply because some portion

of the electronic communication may have originated there or

ended up there.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentlewoman from California, Ms. Waters.

38

Ms. WATERS. Thank you very much. Mr. Chairman and Members, many of us have bent over backwards to show unity and to

give support to this President. We all recognize that this is a very

difficult time, that something very terrible has happened, and we

voted for $40 billion to deal with this. We have voted to give the

President the authority to do what he needs to do to apprehend

those responsible. We’ve supported an extraordinary amount of

money to the airlines to make sure that they are operating, and on

and on and on.

And I’m hopeful that because of this mood that we’re in, and we

have to be in, that we are not placed in the situation where we are

being asked to do things that normally we would have a long debate on and a tremendous fight, just based on where we’re coming

from philosophically.

Civil libertarians are afraid of being rushed on this kind of legislation. And many of us feel very strongly about the Constitution.

And while we have been very cooperative and we have bent over

backwards, we’re going to draw the line. We have to draw the line.

And we cannot be rushed into allowing this tragic moment that

we’re in at this time to cause us to support violation of privacy and

the Constitution.

I’m not going to ask you any particular questions because I don’t

think you can answer them at this point. It’s just too much. And

the way we’ve been doing this today does not lend itself to the kind

of work that could get us serious results. I don’t really know what

your definition is of the intelligence community. Does that include

the CIA, the FBI and the DEA? And who’s in charge even of this

investigation?

We know that the CIA gave to the FBI specific information about

individuals who had been identified as associated with terrorist activities, and the FBI dropped the ball. Who calls the shots and

who’s calling the shots now? We don’t know how it all works, and

I certainly would like to know more about that. How is terrorism

defined? I’m really worried. You know, we’ve got some young people

who feel very strongly about globalization, and many of them protest. They wanted to be here in Washington protesting. They’re not

terrorists, they’re young people from all over the world who believe

that globalization and the WTO is creating serious problems for little people and working people. Are they going to get caught up in

this web and be identified as terrorists and all that goes along with

that?

The other thing with this roving surveillance, we know that in

this new technology we have, maybe we will have more disposable

telephones, et cetera, et cetera. But when you attach the surveillance to an individual, and this individual now is living with—in

their mama’s house for 6 months or a year, now the mama’s telephone becomes the object of the surveillance, and the friends and

the workplace, and it never stops. It just goes on and on and on.

You don’t have to go back and get an order. You don’t have to tell

anybody anything.

Do you have a time certain? Do you want to do this for 6 months,

12 months, 10 years? I mean, in perpetuity? How does this all

work? This is dangerous.

39

Also, let me just say, the Attorney General referred to how well

the conspiracy laws are working as it relates to drugs. Those laws

are not working well. We have innocent people that are caught up

in these conspiracy laws, and a lot of women who happen to be the

mates sometimes of individuals that are involved with drugs, and

because they’re in the telephone call, that somebody determines

wording was used where the woman should have known what the

man was talking about, or she happened to be in the car when a

drug stop is made, didn’t know—and she’s ending up in prison,

with long prison terms.

And now you want to change the law where you have specific

prison terms for conspiracy in this area to what you call the same

as what the eventual law that you would consider broken would

dictate. So that, you know, you’re moving from, you know, 10 years

to 20 years or 30 years or life, et cetera, et cetera.

Also, you know one thing about the intelligence community that

I’ve determined, we’ve had some laws on the books as it related to

drugs. One—and when I took a very close look at what was done,

when the United States was involved in the conflict with Nicaragua and trying to support the contras, the intelligence community had a memorandum of understanding where it waived its own

laws. A memorandum of understanding between—— Chairman SENSENBRENNER. The gentlewoman’s time has expired.

Ms. WATERS. Well, I find myself agreeing with Mr. Barr, and

that’s unusual, ordinarily, and certainly not expected from me. You

are much too into violation of the Constitution.

Chairman SENSENBRENNER. The Chair will stipulate to a conspiracy between the two Members. The gentleman from Alabama,

Mr. Bachus.

Mr. BACHUS. Thank you, Mr. Chairman. First of all, the Attorney

General said that really the purpose of this legislation is to, number one, take care of new technology; in other words, update our

statutes because of modern technology. And we all understand

where you have mobile phones, e-mails, computer activities, you

need to be able to track those people and their activities. And I

think we all agree that we need to update antiquated statutes.

He also said that this is to confront the uniqueness of the terrorist threats that we have today. Well, I mean I’m going to accept

that, having accepted those things, we all understand that and I

think support it. I want to direct your attention to two specific proposals.

Mr. BACHUS. One is section 352. Now, what section 352 deals

with is simply the circumstances in which the government can

search someone’s home without a search warrant; is that right?

Mr. CHERTOFF. No, it’s not actually. What section 352 does is it

says when you get a search warrant, the judge can allow you to

delay giving notice to the people who have been searched. So, for

example—— Mr. BACHUS. Right. Well, isn’t that—and I’m looking at your Justice Department draft on notice, and what it says here is you’re

going to establish a uniform standard for all searches without notice. Well, I think what the statute says is this, and, frankly, there

are courts already that have ratified this. What you say right now

40

is that there’s presently a mix of inconsistent rules and practices

varying from jurisdiction to jurisdiction, but that what you want to

do is establish a statutory uniform standard for all notice.

Mr. CHERTOFF. That’s correct. We want the rule to be clear

that——

Mr. BACHUS. Now, this doesn’t just involve terrorist activities.

This involves all Americans. In other words, before you issue a notice that you’re going to search their home, you have to comply

with the standard, and that that—you’re going to adopt the present

standard applicable to stored communications to all cases.

Mr. CHERTOFF. Let me see if I can make this clear. This doesn’t

mean that in every case notice will be delayed. It means that when

a judge makes a finding——

Mr. BACHUS. Right. Let me tell you what that finding is. It says

that you can notify—you don’t have to notify in the case where an

immediate notice of execution of a search warrant would either,

number one—and this is you all’s wording, not mine—would jeopardize an ongoing investigation, and I would say notice would always probably jeopardize—I mean, it would probably have a tendency always to jeopardize an ongoing investigation—or, two, might

otherwise interfere with law enforcement activities. I would think

anything—any time—I would think any time you give a notice,

you’re interfering with law enforcement activities. In fact, that’s

why you go to court and get a notice.

Mr. CHERTOFF. Let me try to shed light on this by giving you a

real——

Mr. BACHUS. We need to see why those are good law enforcement

activities.

Mr. CHERTOFF. Well, let me give you a real practical example of

something that happened. There was an investigation

involving——

Mr. BACHUS. No. And let me say this. I know you can always

take an example where this is called for, but, you know, the fourth

amendment says we don’t search someone’s house until they’re

given notice. Otherwise——

Mr. CHERTOFF. Actually, I have to——

Mr. BACHUS. Well, and there are exceptions to that.

Mr. CHERTOFF. I have to——

Mr. BACHUS. But you’re going to give—there are going to basically be two exceptions under this new proposal.

Mr. CHERTOFF. Well, let me see if I can try and address this for

a couple moments. First, in title III, which is, of course, something

that has to comply with the fourth amendment as it relates to electronic surveillance, Congress has already enacted a provision that

allows delayed notice. I can tell you from my own personal experience that there are circumstances in which you need to be able to

go into a location and search——

Mr. BACHUS. Absolutely.

Mr. CHERTOFF [continuing]. But you cannot give notice or wind

up alerting people who may be very dangerous, and that has arisen

in terrorist cases. All we’re asking to do is to give the judge the

ability to delay notice; not eliminate notice, but delay notice.

41

Mr. BACHUS. Well, okay, and if that’s what you’re doing, but

you’re applying this to all cases where you want to search someone’s home.

Mr. CHERTOFF. Well—— Mr. BACHUS. And you’re asking for uniform standard, and that

standard is that you don’t have to give notice, which the Constitution normally says you have to give, if it would jeopardize an investigation, or if it would interfere with the law enforcement activity.

That’s pretty broad.

Now, let me go on to the other one, and I’m going to just submit

this for the—this is from page 14 of what you all have given me.

The other one is section 406, which deals with seizing people’s

property, seizing a citizen’s property without a hearing. That’s pretty fundamental, and presently there are different standards. And

what you say in this draft you’ve given me is that you want to

amend the Controlled Substance Act, because all other provisions

governing criminal forfeiture are incorporated by statute—I mean,

that the Controlled Substance Act is basically the statute that all

other criminal forfeiture acts draw from. But you’re changing it in

all cases. You’re not limiting it to terrorism.

So my question there, you’ve got the seizure of a citizen’s property without—you know, before a trial, without a hearing, and

you’re not limiting it to terrorist activities. I just think these two— and I’m going by what you’re saying. Your reason why you’re saying you amended the Controlled Substance Act was because the

provisions governing criminal forfeitures in drug cases are incorporated by statute into all other criminal forfeiture statutes. And

my question is, you’re changing all pretrial seizure of property.

Mr. CHERTOFF. Well, actually I think, Congressman, what we’re

doing is, again, we’re trying to eliminate inconsistencies and gaps

in the law where due to unanticipated—either changes in technology or other changes or unanticipated developments, there now

appear to be inconsistencies in the law. All of these things—— Mr. BACHUS. I’m not sure the mobile phones——

Chairman SENSENBRENNER. The gentleman’s time has expired.

Mr. BACHUS. Let me just close, if I can have 10 seconds. I’m just

saying that these new changes in technologies I don’t think should

cause us to totally change our laws to notice of searching someone’s

house or seizing their property. And yet you’re going—you know,

it appears with these two—and I support 90 percent of what you’re

doing, but I’d just say take a look at section 352 and 406. I mean,

I think they—you’re changing our fundamental laws as opposed to

seizing someone’s property pretrial without a hearing, searching

their home without a notice, which are important fourth amendment guarantees against unreasonable search and seizures.

Chairman SENSENBRENNER. And the gentleman’s time is expired.

Mr. Chertoff and Mr. Dinh, let me thank you very much for

spending this extra time with us. I think that you’ve been most

helpful in clarifying many of the issues.

Before adjourning this hearing, let me make an announcement.

A week ago Sunday, the Attorney General on one of the Sunday

morning talk shows announced that he was going to be submitting

an anti-terrorist package to Congress. We received a consultation

draft on Wednesday, which is the material that has been included

42

in the Members’ packets for this hearing. Since that time, the Majority and Minority staff have been negotiating nonstop. I cancelled

my trip back to Wisconsin this weekend to drop by those negotiations and to make sure that the negotiations were continuing on

track.

The Justice Department was consulted at every stage of the negotiation, and I can say that many, but not all, of the concerns that

were addressed by Members on both sides of the aisle today have

been addressed, and there has been language that has been proposed that is at the present time being vetted. And I think I can

say that we are close to reaching an agreement on a bill that can

be bipartisan sponsorship, pass the House of Representatives by a

huge bipartisan majority, and I want to continue that process.

Mr. CONYERS. Would the Chairman yield?

Chairman SENSENBRENNER. Let me finish my statement first.

I want to continue that process. For that reason, you know, let

me say that because we are so close, it is my intention not to have

a markup tomorrow on this legislation, but I would like to have a

markup on this legislation and hopefully an agreed-upon bill sometime next week. So that will give us an additional week to attempt

to bridge the gap and to reach an agreement so that we can

present a bill by the Judiciary Committee which will have overwhelming support on both sides of the aisle.

Having said that, let me say that throughout this process, since

the Attorney General’s first statements on television 8 days ago, I

have been insistent upon following the regular legislative order and

having a hearing and the markup, for which I have been criticized

as attempting to slow down the process. I would point out that neither the $40 billion emergency supplemental appropriation, the

war powers resolution and the airline bailout bill, which have been

previously passed, went through the regular Committee process.

And I think we will find out that because of that failure, the Congress is going to have to fix up at least two of the three items that

have previously been considered by the Congress. I am very fearful

that if this bill is put on a slow roll, all of a sudden we will lose

as a Committee our right to make improvements and to attempt

to reach a bipartisan process to present to the House of Representatives, and we will have another bill that is written by the bipartisan and bicameral leadership which will be presented to the

House of Representatives for an up-or-down vote.

That means that everybody who is a participant in this process,

whether it’s the Justice Department, the Majority Party, the Minority Party and the bipartisan leadership, is going to have to bend

a bit, because a compromise by definition is something that gets

the job done, but doesn’t make everybody completely happy. So I

think that we’ve got to work on a goal of dealing with a markup

next week on this bill to reach a conclusion of a markup on this

bill, and that means that in the week between now and the time

that the markup will take place, these negotiations have to go on

and, in my opinion, have to reach an amicable and successful conclusion. Otherwise all of the efforts that all of us have put into this

legislation may go for naught.

The gentleman from Michigan.

43

Mr. CONYERS. Well, Mr. Chairman, the length and accuracy and

sincerity of your comments make mine very brief indeed. First of

all, I want to thank you on behalf of nearly half the colleagues

here. I think you’re right. I think that no one in this body can accuse you of trying to slow down the process, and you’ve pointed out

correctly that our jurisdiction differs from the two other Committees that have acted previously. Why? Because we have jurisdiction

over the Constitution. The Constitution cannot be rushed, and

there’s no one on this Committee trying to slow this down. But I

think because Yom Kippur is coming very shortly, and if you chose

to take the—tomorrow’s schedule and make it a conference in

which we could talk over the 16 points taken out of the Ashcroft

proposal that is now being reduced to legislative language, I think

we’d be able to move this thing along remarkably well and meet

the accommodations of our leadership on both sides.

I would also ask unanimous consent to include the clarification

of the 16 provisions taken out of Ash—the Ashcroft plan.

[The information referred to follows:]

There are a number of provisions which we can agree to today:

109 CLARIFICATION OF SCOPE

Law enforcement must have the capability to trace, intercept, and obtain records

of the communications of terrorists and other criminals with great speed, even if

they choose to use a cable provider for their telephone and Internet service. This

section amends the Cable Communications Policy Act (‘‘Cable Act’’) to clarify that

when a cable company acts as a telephone company or an Internet service provider,

it must comply with the same laws governing the interception and disclosure of wire

and electronic communications that apply to any other telephone company or Internet service provider. The Cable Act, passed in 1984 to regulate various aspects of

the cable television industry, could not take into account the changes in technology

that have occurred over the last seventeen years. Cable television companies now

often provide Internet access and telephone service in addition to television programming. Because of perceived conflicts between the Cable Act and the laws that

govern law enforcement’s access to communications and records of communications

carried by cable companies, cable providers have refused to comply with lawful court

orders, thereby slowing or ending critical investigations.

110 EMERGENCY DISCLOSURE OF ELECTRONIC COMMUNICATIONS

Existing law contains no provision that allows providers of electronic communications service to disclose the communications (or records relating to such communications) of their customers or subscribers in emergencies that threaten death or serious bodily injury. This section amends 18 U.S.C. § 2702 to authorize such disclosures if the provider reasonably believes that an emergency involving immediate

danger of death or serious physical injury to any person requires disclosure of the

information without delay.

Current law also contains an odd disconnect: a provider may disclose the contents

of the customer’s communications in order to protect its rights or property but the

current statute does not expressly permit a provider to voluntarily disclose non-content records (such as a subscriber’s login records). 18 U.S.C. § 2702(b)(5). This problem substantially hinders the ability of providers to protect themselves from cyberterrorists and criminals. Yet the right to disclose the contents of communications

necessarily implies the less intrusive ability to disclose non-content records. In order

to promote the protection of our nation’s critical infrastructures, this section’s

amendments allow communications providers to voluntarily disclose both content

and non-content records to protect their computer systems.

151 PERIOD OF ORDERS OF ELECTRONIC SURVEILLANCE

This section reforms a critical aspect of the Foreign Intelligence Surveillance Act

(FISA). It will enable the Foreign Intelligence Surveillance Court (FISC), which presides over applications made by the U.S. government under FISA, to authorize the

search and surveillance in the U.S. of officers and employees of foreign powers and

44

foreign members of international terrorist groups for up to a year. Currently, the

FISC may only authorize such searches and surveillance for up to 45 days and 90

days, respectively. The proposed change would bring the authorization period in line

with that allowed for search and surveillance of the foreign establishments for

which the foreign officers and employees work. The proposed change would have no

effect on electronic surveillance or physical searches of U.S. citizens or permanent

resident aliens.

206 INTERAGENCY DATA SHARING

This amendment to the Immigration and Nationality Act (INA) would recognize

that the interagency cooperation provided for in INA Section 105 now serves a

broader border security function, and would enhance that function by improving

consular officers’ access to crime information. This is consistent with the fact that

securing the borders of the U.S. against the entry of international terrorists, traffickers in narcotics, weapons or persons, international organized crime members,

and illegal entrants is not the responsibility of any single federal agency. Consular

officers abroad must facilitate legitimate travel while preventing the travel of individuals who present security or other threats to U.S. government interests. These

officers need electronic access to information from border security and law enforcement agencies that will assist in identifying high-risk travelers, including information maintained by the FBI on aliens suspected of committing crimes in the U.S.

(e.g., information contained in the NCIC-III and Wanted Persons File databases).

Without this information, a consular officer could unknowingly grant a visa to a

known or suspected criminal.

353 DNA IDENTIFICATION OF TERRORISTS

The statutory provisions governing the collection of DNA samples from convicted

federal offenders (42 U.S.C. § 14135a(d)) are restrictive, and do not include persons

convicted for the crimes that are most likely to be committed by terrorists. DNA

samples cannot now be collected even from persons federally convicted of terrorist

murders in most circumstances. For example, 49 U.S.C. § 46502, which applies to

terrorists who murder people by hijacking aircraft, 18 U.S.C. § 844(i), which applies

to terrorists who murder people by blowing up buildings, and 18 U.S.C. § 2332,

which applies to terrorists who murder U.S. nationals abroad, are not included in

the qualifying federal offenses for purposes of DNA sample collection under existing

law. This section addresses the deficiency of the current law in relation to terrorists

by extending DNA sample collection to all persons convicted of terrorism crimes.

356 DEFINITION EXTENDING MARITIME JURISDICTION

This amendment would explicitly extend the special and maritime criminal jurisdiction of the United States to U.S. diplomatic and consular premises and related

private residences overseas, to the extent an offense is committed by or against a

U.S. national. When offenses are committed by or against a U.S. national abroad

on U.S. government property, the country in which the offense occurs may have little interest in prosecuting the case. Unless the United States is able to prosecute

such offenders, these crimes may go unpunished. This section clarifies inconsistent

caselaw to establish that the United States may prosecute offenses committed in its

missions abroad, by or against its nationals.

401 LAUNDERING THE PROCEEDS OF TERRORISM

Money-laundering under 18 U.S.C. § 1956 involves conducting or attempting to

conduct a financial transaction knowing that the property involved represents the

proceeds of an unlawful activity specified in subsection (c)(7) of the statute. Violations of 18 U.S.C. § 2339A, which prohibits providing material support to terrorists

within the United States, are already included as specified unlawful activities. This

section provides more complete coverage of money-laundering related to terrorism

by adding as a further predicate offense 18 U.S.C. § 2339B, which prohibits providing material support or resources to foreign terrorist organizations.

402 MATERIAL SUPPORT FOR TERRORISM

18 U.S.C. § 2339A prohibits providing material support to terrorism. Under the

statute’s definitional subsection, the prohibited forms of support include (among

many other things) ‘‘currency or other financial securities.’’ This section adds an explicit reference to ‘‘monetary instruments’’ to the definition. The purpose of the

amendment is to make it clear that the definition is to be taken expansively to encompass any and all forms of money, monetary instruments, or securities.

45

403 ASSETS OF TERRORISTS ORGANIZATIONS

Current law does not contain any authority tailored specifically to the confiscation

of terrorist assets. Instead, currently, forfeiture is authorized only in narrow circumstances for the proceeds of murder, arson, and some terrorism offenses, or for

laundering the proceeds of such offenses. However, most terrorism offenses do not

yield ‘‘proceeds,’’ and available current forfeiture laws require detailed tracing that

is quite difficult for accounts coming through the banks of countries used by many

terrorists.

This section increases the government’s ability to strike at terrorist organizations’ economic base by permitting the forfeiture of its property regardless of the source

of the property, and regardless of whether the property has actually been used to

commit a terrorism offense. This is similar in concept to the forfeiture now available

under RICO. In parity with the drug forfeiture laws, the section also authorizes the

forfeiture of property used or intended to be used to facilitate a terrorist act, regardless of its source. There is no need for a separate criminal forfeiture provision because criminal forfeiture is incorporated under current law by reference. The provision is retroactive to permit it to be applied to the events of September 11, 2001.

404 TECHNICALLY CLARIFICATION RELATING TO MATERIAL SUPPORT

The Trade Sanctions Reform and Export Enhancement Act of 2000, Title IX of

Public Law 106–387, creates exceptions in the nation’s Trade Sanctions Programs

for food and agricultural products. This section makes it clear that the Trade Sanctions Reform and Export Enhancement Act of 2000 does not limit 18 U.S.C.

§§ 2339A or 2339B. In other words, the exceptions to trade sanctions for these items

does not prevent criminal liability for the provision of these items to support terrorist activity or to foreign terrorist organizations as described in 2339A and 2339B.

This is not a change from existing law, but rather serves to foreclose any possible

misunderstanding or argument that the Act in some manner trumps or limits the

prohibition on providing material support or resources to terrorism.

407 TRADE SANCTIONS REFORM ACT CLARIFICATION

The Trade Sanctions Reform Act of 2000 requires the President to end unilateral

agricultural and medical sanctions with respect to foreign entities and governments.

This section would authorize Presidential control of agricultural and medical exports

to all designated terrorists and narcotics entities wherever they are located. The section would authorize the President to retain sanctions with respect to exports of agricultural commodities, medicine and medical devices to designated terrorist entities.

408 EXTRATERRITORIAL JURISDICTION OVER FINANCIAL CRIMES

Financial crimes admits of no border, utilizing the integrated global financial network for ill purposes. This provision would apply the financial crimes prohibitions

to conduct committed abroad, so long as the tools or proceeds of the crimes pass

through or are in the United States.

501 OFFICE OF JUSTICE PROGRAMS BENEFITS TO DISABLED PEACE OFFICERS

This provision provides benefits to public safety officers disabled as a result of the

September 11 attacks, as well as grants to the States for victim assistance. Consistent with 42 U.S.C. § 3796(b), the Department of Justice’s FY2001 appropriations act places an aggregate cap of $2.4 million on the benefits that may be paid to public safety officers who have become totally disabled. A similar cap is found in both

House and Senate FY2002 bills. Section 501 removes all caps with respect to officers

who were totally disabled as a result of the September 11 attacks. This would authorize OJP annually to pay approximately $120,000 to each totally-disabled officer

for life or while he remains totally disabled. In the same way, the Department of

Justice’s existing grant programs to assist States in aiding crime victims provide

mechanisms to respond to the attacks, 42 U.S.C. § 10603b, but the amounts available to meet the need are insufficient. Section 501 would authorize the spending of

up to $700 million from balances in the Crime Victims Fund (currently $1.4 billion)

to assist States in their victim-relief efforts. The $700 million could be dispatched

almost immediately to the States affected by the terrorist attacks, providing them

with resources to supplement their own expenditures in aid of the victims.

Current law limits OJP’s authority to work directly with service providers (as opposed to governments) under the circumstances created by the September 11 attacks, and to coordinate and manage emergency-response and other activities of its

various components. 42 U.S.C. § 10603b(b). The law also is unclear as to proper exeVerDate 11-MAY-2000 13:52 Nov 13, 2001 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 G:\WORK\FULL\092401\75288.000 HJUD2 PsN: HJUD2
46

cution of certain aspects of the Public Safety Officers Benefits program. Section 501

would amend OJP’s authorities in these areas, specifically by authorizing OJP to

work directly with service providers, in addition to governmental entities, to expedite terrorism victim relief efforts, by enhancing its authority to co-ordinate and

manage emergency-response and other activities of its various components, and by

clarifying provisions governing the provision of public safety officer benefits.

502 ATTORNEY GENERALS AUTHORITY TO PAY REWARDS

Section 106 of the FY2001 DOJ appropriations act places a per-reward cap of $2

million (and a $10 million annual aggregate cap) on rewards that the Attorney General may offer. A similar cap is found in both House and Senate FY2002 bills. Given

the increasing sophistication of terrorist acts, these limitations may hamper the

Justice Department’s ability to bring the guilty to justice. Section 502 therefore

would remove these caps. It would authorize the Attorney General to offer or pay

rewards of any amount he or the President determines to be necessary for information or assistance.

503 LIMITED AUTHORITY TO PAY OVERTIME

For the past several years the Department of Justice Appropriations Acts have

included provisions whereby Immigration and Naturalization Service funds could

not be used to pay employees overtime pay in an amount in excess of $30,000 during

a calendar year. In light of recent national emergencies, this section will lift this

cap in order to give the Attorney General flexibility in determining whether to authorize overtime if necessary. The Department anticipates that the Attorney General will issue Departmental guidance regarding when it is appropriate to authorize

overtime pay in an amount that would exceed the limitations that have been lifted.

504 SECRETARY OF STATE’S AUTHORITY OF PAY REWARDS

This section amends section 36 of the State Department’s Basic Authorities Act

of 1956 to enhance the ability of the Department of State to pay rewards to assist

in bringing terrorists to justice. The section would expand the bases for which the

Department could authorize payment of terrorism rewards, eliminate the overall

limitation on the amount of funds that can be appropriated to the Department to

carry out the rewards program, and eliminate the requirement that the Department

distribute funds equally for the purpose of preventing acts of international terrorism

and narcotics trafficking. This section also raises the amount the Department could

offer and pay under the program from $5M to $10M and allows the Secretary to

authorize payment of an award larger than $10M if the Secretary determines that

doing so would be important to the national security interests of the United States.

505 ASSISTANCE TO COUNTRIES COOPERATING AGAINST INTERNATIONAL TERRORISM

Subsection (a) of this provision would give important new extraordinary authority

for five years to the President to provide assistance or take other beneficial actions

in favor of countries that support U.S. efforts to fight international terrorism. Subsection (b) would allow the President to provide anti-terrorism assistance to entities,

as well as countries, without being subject to any restrictions. Subsection (c) allows

the President to provide assistance for non-proliferation and export control activities

without restrictions.

Other provisions, I believe require more study and cannot be considered hastily.

Chairman SENSENBRENNER. The material will be inserted in the

record.

Mr. CONYERS. Thank you.

Chairman SENSENBRENNER. Let me say that those are the easy

provisions, and if we uncouple the easy provisions from the difficult

provisions, the difficult provisions are much less likely to reach an

agreement and will fall off the table.

There being no further business——

Mr. BACHUS. Mr. Chairman?

Chairman SENSENBRENNER. Well——

Mr. BACHUS. I ask unanimous consent to introduce the Justice

Department draft——

47

Chairman SENSENBRENNER. Well, without objection, the consultation draft will be included in the hearing as well.

Chairman SENSENBRENNER. The gentleman from New York.

Mr. NADLER. Yes. Thank you.

Let me also express my appreciation to the Chairman for this— for this decision. It’s a very good decision, and I think it will help

the Committee do its work properly. I gather that means there will

be no markup in the Constitution Subcommittee?

Chairman SENSENBRENNER. The Chair intends that this legislation will be dealt with in the full Committee.

Mr. NADLER. And I just would urge that the markup be next

Wednesday or Thursday so it would give us enough time, especially

because some of us are going to be completely out Wednesday and

Thursday because of Yom Kippur.

Chairman SENSENBRENNER. That is a very worthwhile suggestion. That—great minds work in the same direction, but having

said this, I would hope that when we come back here Monday and

Tuesday of next week, we have the informal discussions that I

think are necessary to reach an agreement.

Mr. NADLER. That’s the point. That’s why I urge that——

Chairman SENSENBRENNER. That means that Tuesday and—is

not going to be a free day.

Mr. NADLER. No. I said this week, Wednesday and Thursday

is——

Chairman SENSENBRENNER. All right.

The gentleman from Texas.

Ms. JACKSON LEE. Mr. Chairman, as you know, one of the questions I asked was with respect to the 352 detainees, I think, under

the INS. I asked whether they were under current law. I only

raised that point, because I think you know, because you’ve been

working on the INS restructuring, immigration is a very large

piece of this. It might be worthwhile that as we look at the immediacy of the request, that the Justice Department has asked that

if we have any suggestions, if we’re writing legislation, that we

might offer them as well, because immigration is so large a piece

of this, particularly the border issues that we’re looking at.

Chairman SENSENBRENNER. I would ask that the Republican

Members put their suggestions through Kiko, Steve Pinkos, Jay

Apperson and Will Moschella on our staff, and that the Democratic

Members channel theirs through Perry Apelbaum and whomever

else Mr. Conyers designates, and that way we get the matters on

the table this week.

Ms. JACKSON LEE. Thank you for the extra time.

Chairman SENSENBRENNER. There will be a briefing at 4:30 that

has been requested by the Minority Party. The briefing will be

open to the public, but will not be a formal hearing. So this hearing

is adjourned, and the Members are encouraged to be back at 4:30.

[Whereupon, at 4:10 p.m., the Committee was adjourned.]

(49)

A P P E N D I X

STATEMENTS SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

Our nation is still coming to grips with the tragic events of September 11. Thousands of families have been waiting in a silent vigil for almost two weeks, hoping

for good news about missing loved ones.

The country is unified in this fight against the terrorists and so is the Congress.

Today, we are here to review the Attorney General’s emergency request for new authorities to combat terrorism.

I am gratified to report that the Minority Leader has indicated to me that the

Speaker is in no hurry to move this bill hastily and recognizes that this Committee

needs to take its time and do its job right.

We must also be careful not to bite off more than we can chew. Past experience

has taught us that today’s weapon against terrorism may be tomorrow’s weapon

against law abiding Americans.

Just as I have seen an inspiring unity in the American people, I have seen other

signs that are less encouraging. Hate crimes are on the rise and are reaching epidemic levels against Arab-Americans. We’ve also heard disturbing stories of ethnic

profiling occurring at our nation’s airports and abusive behavior by our own FBI.

Our job is to make sure that these precious civil rights and civil liberties are not

turned into another casualty of the terrorists.

And, while the Department of Justice has proposed some useful changes to current anti-terrorism law, numerous provisions are crafted far too broadly.

If we quickly cast aside our constitutional form of government then the enemy

will not be the terrorists, it will be us. The terrorists will have accomplished in a

‘‘slow burn’’ what the fires of the World Trade Center could not—the destruction of

our democratic form of government.

So, today, I want to urge all of the Members of the Committee to work through

this issue in this time of tragedy in a bipartisan manner. These are difficult issues

that require balance and caution. We are all motivated by our love of country, both

the need to protect it from attack and the need to protect it from intrusions on its

citizens civil liberties.

PREPARED STATEMENT OF THE HONORABLE BOB BARR, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF GEORGIA

In the wake of the September 11th attacks, the Congress and the Administration

rightly need to examine current laws, and the implementation of the authorities

they convey on our federal government, to address why and how the United States

government was unable to prevent the attacks from occurring. If there are gaps in

federal law and regulation that need to be addressed, we should do so.

It is clear we do need to upgrade and strengthen certain laws and procedures. We

must do what we can to untie the hands of our military and intelligence leaders

to deal swiftly with serious and recognized threats to our national security. When

international terrorist leaders, such as the ones who directed, supported, or caused

these attacks, take the lives of American civilian and servicemen, it is entirely appropriate for us to remove them by any means necessary, without arbitrarily limiting our options. To that end, I introduced legislation, H.R. 19, the ‘‘Terrorist Elimination Act,’’ to repeal those portions of executive orders purporting to prohibit the

government from directly eliminating terrorist leaders.

50

Furthermore, we must understand how and why our intelligence community

failed to have knowledge or warning of such a well-planned, multi-faceted strategic

attack. The Congress provides billions of dollars each year to ensure the safety of

our country and its citizens. For us to have had no knowledge ahead of time is simply unacceptable, and I fully expect—and we must demand—steps be taken to understand the source of these problems and immediately correct them.

Above all, what we must avoid, however, is the impulse move hastily on wholesale

changes to search and seizure laws, and other constitutionally protected civil liberties, in an understandable but misguided attempt to thwart future attacks. Our

immediate reaction must not be to blindly expand law enforcement’s investigative

and enforcement authority, but to examine how and why execution of current authority was not successful. Before we begin dismantling carefully crafted, constitutionally protected safeguards and eradicating fundamental rights to privacy, we

should first examine why last week’s incidents occurred.

The draft legislative proposal in its current form contains a number of provisions

which I support. These provisions are narrowly focused and carefully limited to filling in identifiable gaps in current criminal laws relating to fighting terrorism. They

do not sweep too broadly, they do not purport to change all criminal law or procedure, and they are reasonable.

However, the proposal also includes a number of provisions that, frankly, we just

do not have enough information to make any determination as to their necessity or

impact; and still other provisions contained in the draft proposal I believe are so

fundamentally flawed, and sweep so broadly, they are not supportable. These problematic provisions were highlighted in a letter from a number of Committee Members, including me, to Chairman Sensenbrenner and Ranking Member Conyers.

These provision dismantle constitutionally protected safeguards, eradicate fundamental rights to privacy, and intrude on civil liberties. Such provisions require significant further review, further clarification and further public debate. The Department of Justice needs to provide a more thorough explanation as to why such

sweeping new statutory authorities are needed in these areas, why current authority is insufficient, and what are the consequences of enacting such language. Following this, the Committee and the Congress as a whole need sufficient time to examine and debate these proposals.

I urge the Chairman, the Committee and the Administration not to be wedded

to the ‘‘fast-track’’ approach for this proposal. While some limited non-controversial

provisions may be expedited, we will not be serving the American people well if we

rush this proposal through without clear and convincing evidence legislative

changes are needed.

Terrorism poses a serious threat, requiring a serious response. Now is the time

for us to thoughtfully examine the long-term, fundamental way in which the United

States intends to combat the forces of terror; but keeping in mind these changes and

these powers will remain with us, as part of our legal system and our way of life,

long after the terrorists who attacked America on September 11th, are in their

graves.

Mr. Chairman, we are living in a new era, where we no longer face a single, powerful enemy. How the United States responds to this week’s terrorist attacks in New

York and Washington will define who we are as a nation not just for the immediate

future, but for the foreseeable future. Let us legislate for the long haul, not the

short run.

PREPARED STATEMENT OF JIM RYAN

The Comprehensive Anti-Terrorism Act of 2001 provides Illinois with every possible resource to protect Illinois citizens against the threat of terrorism by severely

punishing acts of terrorism, by preventing acts of terrorism through sophisticated

intelligence tools and by extinguishing terrorist groups by cutting off their financial

lifelines. The President has called upon the states to serve a vital role in the war

against terrorism. This Act will allow Illinois to work closely and effectively with

the Office of Homeland Security, the United States Department of Justice and other

federal agencies to ensure the safety of citizens in Illinois and throughout the

United States.

The Act creates the offense of terrorism, defined as any act that endangers human

life or property and is intended to intimidate or coerce a civilian population, influence government policy or affect government conduct. The crime of terrorism is a

class X felony, carrying a sentence of 20 years to natural life imprisonment, with

the entire sentence to be served under Illinois’ truth-in-sentencing laws. An act of

terrorism which results in loss of human life carries a mandatory sentence of natVerDate 11-MAY-2000 13:52 Nov 13, 2001 Jkt 000000 PO 00000 Frm 00054 Fmt 6601 Sfmt 6621 G:\WORK\FULL\092401\75288.000 HJUD2 PsN: HJUD2
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ural life in prison, with no possibility of parole. The act also makes terrorism an

aggravating factor for first degree murder, meaning that a terrorist who takes an

innocent life will be eligible for the death penalty.

As our nation mobilizes against the murky face of terrorism, this law will allow

us to be proactive against this ever-changing threat. The strict intent provision requires that an act of terrorism be committed with the hope of bending the will of

our citizens or our government. At the same time, the law means that any scheme

to do that will be severely punished.

Recognizing that loosely-organized terrorists rely on sympathetic supporters for

everything from financial aid to falsified identification docu ments to expert knowledge in critical areas, this law addresses those who choose to participate in the

atrocities of terrorism from behind the scenes. Persons who solicit or provide such

support for terrorism will face substantial mandatory prison terms.

Those who attempt to shield or protect known terrorists will also be held accountable. Under this law, hindering prosecution of terrorism is a Class X offense, with

a mandatory prison sentence. The law also carries significant penalties for those

who threaten acts of terrorism.

Our most urgent responsibility is to prevent these depraved acts before they

occur. Therefore, we must equip our law enforcement community with the ability

to identify and investigate those bent on attempting to terrorize our nation. This

law helps law enforcement officials discover terrorists’ plans before they can unleash

their terror. The law simplifies procedures for obtaining search warrants to investigate terrorists and allows monitoring of communication between terrorists. The

law preserves our cherished freedoms, by continuing to require court approval before such surveillance activities. But the law streamlines the processes for obtaining

that approval. Given the suddenness and swiftness with which the recent attacks

on our nation occurred, these changes could save thousands of innocent lives. The

law would also permit the use of conversations recorded on an emergency basis

without prior court approval to be used in the prosecution of terrorists. Such use

would only be allowed after a full court hearing.

This law will also suffocate terrorist organizations by attacking their financial

support. It incorporates civil forfeiture provisions, allowing judges to strip terrorists

and terrorist groups of money and other property used or intended to be used in

acts of terrorism. The law allows prosecutors to obtain court orders to freeze assets

of suspected terrorist groups upon a showing of reasonable suspicion of terrorist activities. At the same time, the law strengthens provisions of Illinois’ Charitable Solicitation and Charitable Trust acts, making it easier to identify organizations that

are fronting as charities and stopping them from funneling money to terrorists.

The entire legislative package drafted by the Office of the Attorney General is

being forwarded to prosecutors, law enforcement officials and government leaders

throughout the state for their review and input. The final legislative product will

be presented to the Illinois General Assembly when it re-convenes in November.

PREPARED STATEMENT OF LPA

Mr. Chairman and Members of the Committee:

LPA applauds the bipartisan efforts of this committee and the Congress to make

prompt and appropriate changes to federal investigative and law enforcement authority to effectively detect, combat and stop terrorism against the United States.

Our members stand ready to assist the Committee, Congress and the Bush Administration to do our part to prevent terrorist attacks from occurring on U.S. soil and

elsewhere around the globe. We are pleased to submit this testimony to provide our

members’ perspectives on how these initiatives relate to employer communications

networks, the fight against cyberterrorism, and the monitoring of workplace communications.

LPA is an association of the senior human resource executives of more than 200

leading corporations in the United States. LPA’s purpose is to ensure that U.S. employment policy supports the competitive goals of its member companies and their

employees. LPA member companies employ more than 12 million employees, or 12

percent of the private sector workforce. Our members have a substantial interest

in how criminal law, such as the Electronic Communication Privacy Act, also known

as the Wiretap Act, affects their policies with respect to their telephone and computer networks and facilitates their ability to cooperate with law enforcement officials where necessary.

52

1 American Management Association, 2001 AMA Survey: Workplace Monitoring & Surveillance: Policies and Practice, Aug. 2001, available at <http://www.amanet.org/research/pdfs/

emsfu—short.pdf>.

Preventing Cyberterrorism Against Employers

LPA recently held discussions with its members regarding the employment-related issues that arose in the aftermath of the Attack on America. One of the questions raised was how employers should deal with the threat of cyberterrorism. As

you know, the terrorists that perpetrated the attacks were computer savvy, and it

is not unrealistic to speculate that terrorists may look to attack computer networks

at some point in the future.

Recent news articles have indicated that the proposed anti-terrorism legislation

would make it easier for federal law enforcement authorities to access the voice mail

and e-mail messages of suspected terrorists. In addition to this authority, LPA

members would appreciate any assistance that the federal government could provide

in detecting and eliminating the threat of cyberterrorism. Although our members

are sophisticated and have elaborate computer security procedures, it would be helpful if the government could set up a clearinghouse employers could access for unclassified information on cyberterrorism. It would also be helpful if victims of

cyberterrorism could request help from federal investigative authorities when electronic foul play is suspected.

We understand from news accounts that there is a limited provision along these

lines in the legislation drafted by the Justice Department. LPA urges the committee

to review this issue either now or at some point in the future to prevent an attack

that could have severe economic implications for individual companies and the country as a whole. Working together the private sector and the federal government can

be a formidable force against terrorist acts.

Expanded Wiretap Authority and Electronic Monitoring by Employers

The news articles describing the anti-terrorism legislation also have indicated

that the legislation would allow investigators to monitor the suspect’s Internet or

e-mail provider anywhere in the country by securing the approval of a judge in one

jurisdiction. Presumably, an employer that maintains a voice mail, e-mail and Internet service that its employees use for business would be considered an Internet or

e-mail provider under the legislation, meaning that employers may be required to

provide access to their electronic systems in the interest of law enforcement. The

need for such authority is understandable following the atrocities of September 11.

However, LPA wants to ensure that in the course of providing investigators access

to this vital information, the anti-terrorism legislation does not impose unnecessary

burdens on an employer’s ability to monitor workplace communications. We do not

believe that now is the time to engage in such a debate. Additionally, statistical and

anecdotal information demonstrates that there is no need for such requirements.

Employers monitor their employees’ use of workplace electronic communications

primarily to protect against legal liability. According to a 2001 American Management Association survey,1 62 percent of employers engage in some type of computer

and Internet monitoring and 68 percent of those monitor to protect against legal liability, especially liability based on sexual harassment. Employers also monitor to

protect the security of company assets and maintain productivity. Defense contractors monitor to protect against leaks of classified information, and other employers

seek to eliminate online gambling, excessive day trading, and participation in online

auctions. Employers have even found employees running separate businesses using

company-provided Internet service.

According to the AMA survey, nearly 90 percent of employers who monitor their

employees give them notice. Employer notice helps educate employees about the employer’s policy and reduces improper use of the employer’s computer and telephone

systems. In addition, this notice ensures that employees do not have false expectations of privacy.

Although the vast majority of employers provide their employees with notice of

their monitoring practices, there have been recent legislative attempts to impose

limits on how employers may monitor their employees. It would be unfortunate if,

in the rush to complete action on the terrorism legislation, the committee also added

language that imposed unnecessary burdens on employer monitoring practices. LPA

believes instead that Congress should focus on the task at hand: completing the terrorism legislation and grappling with the other issues raised by the September 11

attacks.

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CONCLUSION

Mr. Chairman, LPA supports your efforts to provide the tools needed by federal

law enforcement and intelligence agencies to eliminate the threat of terrorism in the

United States. We recommend that either now or in the near future, you look for

ways to provide useful information and resources to employers on cyberterrorism.

We also urge you to pursue your objective without imposing unnecessary burdens

on employers’ current workplace monitoring practices. LPA stands by to do our part

in this important effort and in the larger war against terrorism.

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MATERIAL SUBMITTED FOR THE HEARING RECORD

CONSULTATION DRAFT OF SEPTEMBER 20, 2001

ANTI-TERRORISM ACT OF 2001

SECTION-BY-SECTION ANALYSIS

TITLE I—INTELLIGENCE GATHERING

SUBTITLE A: ELECTRONIC SURVEILLANCE

Section 101. Modification of Authorities Relating to Use of Pen Registers And Trap

And Trace Devices

This section authorizes courts to grant pen register/trap and trace orders that are

valid anywhere in the nation, and subjects Internet communications to the same

rules as telephone communications. At present, the government must apply for new

pen/trap orders in every jurisdiction where an investigation is being pursued. Hence,

law enforcement officers tracking a suspected terrorist in multiple jurisdictions

must waste valuable time and resources by obtaining a duplicative order in each

jurisdiction.

In greater detail, the section amends 18 U.S.C. § 3123(a) by allowing courts to

grant orders that are valid ‘‘anywhere within the United States.’’ Thus, the government would be able to obtain one pen register/trap and trace order that could be

applied to any communications provider in the chain of providers carrying the suspects’ communications. This amendment would increase tracing efficiency by eliminating the current need to apply for new orders each time the investigation leads

to another jurisdiction. The section also includes a number of provisions which ensure that the pen/trap provisions apply to facilities other than telephone lines (e.g.,

the Internet). These amendments will promote effective tracing regardless of the

media employed.

Section 102. Seizure of Voice Mail Messages Pursuant to Warrants

This section enables law enforcement personnel to seize suspected terrorists’ voice

mail messages pursuant to a search warrant. At present, 18 U.S.C. § 2510(1) anomalously defines ‘‘wire communication’’ to include ‘‘any electronic storage of such communication,’’ meaning that the government must apply for a Title III wiretap order

before it can obtain unopened voice mail messages held by a service provider. The

section amends the definition of ‘‘wire communication’’ so that it no longer includes

stored communications. It also amends 18 U.S.C. § 2703 to specify that the government may use a search warrant (instead of a wiretap order) to compel the production of unopened voicemail, thus harmonizing the rules applicable to stored voice

and non-voice (e.g., e-mail) communications.

Section 103. Authorized Disclosure

This section facilitates the disclosure of Title III information to other components

of the intelligence community in terrorism investigations. At present, 18 U.S.C.

§ 2517(1) generally allows information obtained via wiretap to be disclosed only to

the extent that it will assist a criminal investigation. One must obtain a court order

to disclose Title III information in non-criminal proceedings. Section 109 would modify the wiretap statutes to permit the disclosure of Title III-generated information

to a non-law enforcement officer for such purposes as furthering an intelligence investigation. This will harmonize Title III standards with those of the Foreign Intelligence Surveillance Act (FISA), which allows such information-sharing. Allowing

disclosure under Title III is particularly appropriate given that the requirements for

obtaining a Title III surveillance order in general are more stringent than for a

FISA order, and because the attendant privacy concerns in either situation are similar and are adequately protected by existing statutory provisions.

Section 104. Savings Provision

This provision clarifies that the collection of foreign intelligence information is

governed by foreign intelligence authorities rather than by criminal procedural statutes, as the current statutory scheme envisions.

Section 105. Use of Wiretap Information From Foreign Governments

Under current case law, federal prosecutors appear to have the ability to use electronic surveillance conducted by foreign governments in criminal proceedings. As

criminal law enforcement becomes more of a global effort, such information will

come to play a larger role in federal prosecutions. To ensure uniformity of federal

55

practice, this section codifies the principle that United States prosecutors may use

against American citizens information collected by a foreign government even if the

collection would have violated the Fourth Amendment. Under the proposal, such information may not be used if it was obtained with the knowing ‘‘participation’’ or at the direction of American law enforcement personnel, if gathered in violation of

constitutional protections. In addition, the provision allows the use of information

obtained in compliance with the law of the country in which it was obtained.

Section 106. Interception of Computer Trespasser Communications

Current law may not allow victims of computer trespassing to request law enforcement assistance in monitoring unauthorized attacks as they occur. Because

service providers often lack the expertise, equipment, or financial resources required

to monitor attacks themselves as permitted under current law, they often have no

way to exercise their rights to protect themselves from unauthorized attackers.

Moreover, such attackers can target critical infrastructures and engage in

cyberterrorism. To correct this problem, and help to protect national security, the

proposed amendments to the wiretap statute would allow victims of computer attacks to authorize persons ‘‘acting under color of law’’ to monitor trespassers on

their computer systems in a narrow class of cases.

Section 107. Scope of Subpoenas for Records of Electronic Communications

Current law allows the government to use a subpoena to compel communications

providers to disclose a small class of records that pertain to electronic communications, limited to such records as the customer’s name, address, and length of service.

18 U.S.C. § 2703(c)(1)(C). Remarkably, investigators cannot use a subpoena to obtain

such records as credit card number or other form of payment. In many cases, users

register with Internet service providers using false names, making the form of payment critical to determining the user’s true identity. Under current law, this information can only be obtained by the slower and more cumbersome process of a court

order.

In fast-moving investigation such as terrorist bombings—in which Internet communications are a critical method of identifying conspirators and in determining the

source of the attacks—the delay necessitated by the use of court orders can often

be important. Obtaining billing and other information can identify not only the perpetrator but also give valuable information about the financial accounts of those responsible and their conspirators. Therefore, the proposed amendments to

§ 2703(c)(1)(C) in this section would update and broaden the class of records that

law enforcement authorities may obtain with a subpoena.

Section 108. Nationwide Service of Search Warrants for Electronic Evidence

Current law requires the government to use a search warrant to compel a provider to disclose unopened e-mail. 18 U.S.C. § 2703(a). Because Federal Rule of

Criminal Procedure 41 requires that the ‘‘property’’ to be obtained be ‘‘within the

district’’ of the issuing court, however, the rule may not allow the issuance of

§ 2703(a) warrants for e-mail located in other districts. Thus, for example, where an

investigator in Boston is seeking electronic e-mail in the Yahoo! account of a suspected terrorist, he may need to coordinate with agents, prosecutors, and judges in

the Northern District of California, none of whom have any other involvement in

the investigation. This electronic communications information can be critical in establishing relationships, motives, means, and plans of terrorists. Moreover, it is

equally relevant to cyber-incidents in which a terrorist motive has not (but may well

be) identified. Finally, even cases that require the quickest response (kidnappings,

threats, or other dangers to public safety or the economy) may rest on evidence

gathered under § 2703(a). To further public safety, this section accordingly authorizes courts with jurisdiction over investigations to compel evidence directly, without

requiring the intervention of their counterparts in the districts where major Internet service providers are located.

Section 109. Clarification of Scope

Law enforcement must have the capability to trace, intercept, and obtain records

of the communications of terrorists and other criminals with great speed, even if

they choose to use a cable provider for their telephone and Internet service. This

section amends the Cable Communications Policy Act (‘‘Cable Act’’) to clarify that

when a cable company acts as a telephone company or an Internet service provider,

it must comply with the same laws governing the interception and disclosure of wire

and electronic communications that apply to any other telephone company or Internet service provider. The Cable Act, passed in 1984 to regulate various aspects of

the cable television industry, could not take into account the changes in technology

56

that have occurred over the last seventeen years. Cable television companies now

often provide Internet access and telephone service in addition to television programming. Because of perceived conflicts between the Cable Act and the laws that

govern law enforcement’s access to communications and records of communications

carried by cable companies, cable providers have refused to comply with lawful court

orders, thereby slowing or ending critical investigations.

Section 110. Emergency Disclosure of Electronic Communications

Existing law contains no provision that allows providers of electronic communications service to disclose the communications (or records relating to such communications) of their customers or subscribers in emergencies that threaten death or serious bodily injury. This section amends 18 U.S.C. § 2702 to authorize such disclosures if the provider reasonably believes that an emergency involving immediate

danger of death or serious physical injury to any person requires disclosure of the

information without delay.

Current law also contains an odd disconnect: a provider may disclose the contents

of the customer’s communications in order to protect its rights or property but the

current statute does not expressly permit a provider to voluntarily disclose non-con- tent records (such as a subscriber’s login records). 18 U.S.C. § 2702(b)(5). This problem substantially hinders the ability of providers to protect themselves from cyberterrorists and criminals. Yet the right to disclose the contents of communications

necessarily implies the less intrusive ability to disclose non-content records. In order

to promote the protection of our nation’s critical infrastructures, this section’s amendments allow communications providers to voluntarily disclose both content

and non-content records to protect their computer systems.

SUBTITLE B: FOREIGN INTELLIGENCE SURVEILLANCE

Section 151. Period of Orders of Electronic Surveillance of Non-United States Persons Under Foreign Intelligence Surveillance

This section reforms a critical aspect of the Foreign Intelligence Surveillance Act

(FISA). It will enable the Foreign Intelligence Surveillance Court (FISC), which presides over applications made by the U.S. government under FISA, to authorize the

search and surveillance in the U.S. of officers and employees of foreign powers and

foreign members of international terrorist groups for up to a year. Currently, the

FISC may only authorize such searches and surveillance for up to 45 days and 90

days, respectively. The proposed change would bring the authorization period in line

with that allowed for search and surveillance of the foreign establishments for

which the foreign officers and employees work. The proposed change would have no

effect on electronic surveillance or physical searches of U.S. citizens or permanent

resident aliens.

Section 152. Multi-Point Authority

This provision expands the obligations of third parties to furnish assistance to the

government under FISA. Under current FISA provisions, the government can seek

information and assistance from common carriers, landlords, custodians and other

persons specified in court-ordered surveillance. Section 152 would amend FISA to

expand existing authority to allow, ‘‘in circumstances where the Court finds that the

actions of the target of the application may have the effect of thwarting the identification of a specified person,’’ that a common carrier, landlord, custodian or other

person not specified in the Court’s order be required to furnish the applicant information and technical assistance necessary to accomplish electronic surveillance in

a manner that will protect its secrecy and produce a minimum of interference with

the services that such person is providing to the target of electronic surveillance.

This would enhance the FBI’s ability to monitor international terrorists and intelligence officers who are trained to thwart surveillance by rapidly changing hotel accommodations, cell phones, Internet accounts, etc., just prior to important meetings

or communications. Under the current law, the government would have to return

to the FISA Court for an order that named the new carrier, landlord, etc., before

effecting surveillance. Under the proposed amendment, the FBI could simply

present the newly discovered carrier, landlord, custodian, or other person with a generic order issued by the Court, and could then effect FISA coverage as soon as

technically feasible.

Section 153. Foreign Intelligence Information

Current law requires that FISA be used only where foreign intelligence gathering

is the sole or primary purpose of the investigation. This section will clarify that the

certification of a FISA request is supportable where foreign intelligence gathering

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is ‘‘a’’ purpose of the investigation. This change would eliminate the current need

continually to evaluate the relative weight of criminal and intelligence purposes,

and would facilitate information sharing between law enforcement and foreign intelligence authorities which is critical to the success of anti-terrorism efforts.

Section 154. Foreign Intelligence Information Sharing

This section provides that foreign intelligence information obtained in criminal investigations, including grand jury and electronic surveillance information, may be

shared with other federal government personnel having responsibilities relating to

the defense of the nation and its interests.

With limited exceptions, it is presently impossible for criminal investigators to

share information obtained through a grand jury (including through the use of

grand jury subpoenas) and information obtained from electronic surveillance authorized under Title III with the intelligence community. This limitation will be very

significant in some criminal investigations. For example, grand jury subpoenas often

are used to obtain telephone, computer, financial, and other business records in organized crime investigations. Thus, these relatively basic investigative materials are

inaccessible for examination by intelligence community analysts working on related

transnational organized crime groups. A similar problem occurs in computer intrusion investigations: grand jury subpoenas and Title III intercepts are used to collect

transactional data and to monitor the unknown intruders. The intelligence community will have an equal interest in such information, because the intruder may be

acting on behalf of a foreign power.

Section 155. Pen Register And Trap And Trace Authority

When added to FISA two years ago, the pen register/trap and trace section was

intended to mirror the criminal pen/trap authority defined in 18 U.S.C. § 3123. The

FISA authority differs from the criminal authority in that it requires, in addition

to a showing of relevance, an additional factual showing that the communications

device has been used to contact an ‘‘agent of a foreign power’’ engaged in international terrorism or clandestine intelligence activities. This has the effect of making the FISA pen/trap authority much more difficult to obtain. In fact, the process

for obtaining FISA pen/trap authority is only slightly less burdensome than the

process for obtaining full electronic surveillance authority under FISA. This stands

in stark contrast to the criminal pen/trap authority, which can be obtained quickly

from a local court, on the basis of a certification that the information to be obtained

is relevant to an ongoing investigation. The amendment simply eliminates the

‘‘agent of a foreign power’’ prong from the predication, and thus makes the FISA

authority more closely track the criminal authority.

Section 156. Business Records

The ‘‘business records’’ section of FISA (50 U.S.C. §§ 1861 and 1862) requires a

formal pleading to the Court and the signature of a FISA judge (or magistrate). In

practice, this makes the authority unavailable for most investigative contexts. The

time and difficulty involved in getting such pleadings before the Court usually outweighs the importance of the business records sought. Since its enactment, the authority has been sought less than five times. This section would delete the old authority and replace it with a generic ‘‘administrative subpoena’’ authority for documents and records. This authority, modeled on the administrative subpoena authority available to drug investigators pursuant to Title 21, allows the Attorney General

to compel production of such records upon a finding that the information is relevant.

Section 157. Miscellaneous National Security Authorities

At the present time, National Security Letter (NSL) authority exists in three separate statutes: the Electronic Communications Privacy Act (for telephone and electronic communications records), the Financial Right to Privacy Act (for financial

records), and the Fair Credit Reporting Act (for credit records). Like the FISA pen

register/trap and trace authority described above, NSL authority requires both a

showing of relevance and a showing of links to an ‘‘agent of a foreign power.’’ In

this respect, they are substantially more demanding than the analogous criminal

authorities, which require only a certification of relevance. Because the NSLs require documentation of the facts supporting the ‘‘agent of a foreign power’’ predicate

and because they require the signature of a high-ranking official at FBI headquarters, they often take months to be issued. This is in stark contrast to criminal

subpoenas, which can be used to obtain the same information, and are issued rapidly at the local level. In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The section would streamline the process of

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obtaining NSL authority, and also clarify that the FISA Court can issue orders compelling the production of consumer reports.

Section 158. Disclosure of Educational Records

The government believes that there may be information contained in student education records maintained by educational agencies and institutions and in education

surveys reported to the National Center for Education Statistics that could be important in the criminal investigation of the terrorist attack of September 11, 2001,

as well as to national security. However, section 408 of the National Statistics Act

clearly prohibits disclosure of such information to appropriate Federal officials for

these purposes; and, of equal importance, section 408 criminalizes the disclosure of

any such prohibited information. This section will effectively override section 408 for

this limited purpose.

Section 444 (Protection of the Rights and Privacy of Students and Parents, commonly referred to as FERPA) of the General Education Provisions Act generally prohibits the release of personally identifiable information from student education

records without the consent of the student (or, in the case of a minor, the student’s parents). While there are certain exceptions to this prohibition, it is not clear that

these exceptions are fully applicable to the pressing need to share such information

from student education records relating to terrorism with the appropriate Federal

officials for the purpose of criminal investigation and prosecution and ensuring national security. This section will effectively override section 444 for this limited purpose.

Section 159. Presidential Authorities

This section is designed to accomplish two principal objectives. First, the section

restores to the President, in limited circumstances involving armed hostilities or attacks against the United States, the power to confiscate and vest in the United

States the property of enemies during times of national emergency, which was contained in the Trading with the Enemy Act, 50 App. U.S.C. § 5(b) (TWEA) until 1977.

Until the International Economic Emergency Act (IEEPA) was passed in 1977, section 5(b) permitted the President to vest enemy property in the United States during time of war or national emergency. When IEEPA was passed, it did not expressly include a provision permitting the vesting of property in the United States,

and section 5(b) of TWEA was amended to apply only ‘‘[d]uring the time of war.’’

50 App. U.S.C. § 5(b).

This new provision tracks the vesting language currently in section 5(b) of TWEA

and permits the President, only in the limited circumstances when the United

States is engaged in military hostilities or has been subject to an attack, to confiscate property of any foreign country, person, or organization involved in hostilities

or attacks on the United States. Like the original provision in TWEA, it is an exercise of Congress’s war power under Article I, section 8, clause 11of the Constitution

and is designed to apply to unconventional warfare where Congress has not formally

declared war against a foreign nation.

The second principal purpose of this amendment to IEEPA is to ensure that reviewing courts may base their rulings on an examination of the complete administrative record in sensitive national security or terrorism cases without requiring the

United States to compromise classified information. New subsection (c) would authorize a reviewing court, in the process of verifying that determinations made by

the executive branch were based upon substantial evidence and were not arbitrary

or capricous, to consider classified evidence ex parte and in camera. This would ensure that reviewing courts have the best and most complete information upon which

to base their decisions without forcing the United States to choose between compromising highly sensitive intelligence information or declining to take action against

individuals or entities that may present a serious threat to the United States or its

nationals. A similar accommodation mechanism was enacted by Congress in the

Anti-Terrorism and Effective Death Penalty Act of 1996, 8 U.S.C. § 1189(b)(2).

TITLE II—IMMIGRATION

Section 201. Definitions Relating to Terrorism

The Alien Terrorist Removal Court is the only mechanism available to the government in which classified evidence can be used as part of an affirmative case to remove an alien involved in terrorism. In existence since 1996, it has never been used,

in part because of the narrow definition of ‘‘terrorist’’ which limits the applicability

of the Court. The current definition is limited to individuals who provide material

support for a ‘‘terrorist activity.’’ This section broadens that definition to include

anyone who affords material support to an organization that the individual knows

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or should know is a terrorist organization, regardless of whether or not the purported purpose for the support is related to terrorism. These revised definitions will

apply in all types of removal proceedings (before the Alien Terrorist Removal Court,

immigration courts, and the INS). This legislation seeks to stop the provision of support to terrorist organizations through sham non-terrorist activities. The legislation

further defines terrorist organization and provides a mechanism for the designation

and redesignation of groups as terrorist organizations.

Section 202. Mandatory Detention of Suspected Terrorists

Currently, persons deportable or inadmissible for terrorism-related reasons must

be detained. This section expands this mandatory detention to those individuals the

Attorney General determines pose a threat to national security, whether or not the

alien is eligible for or is granted relief from removal. The Attorney General is vested

with the discretion to make these time-sensitive decisions and to detain individuals

who are found to pose a threat to national security until they are actually removed

or until the Attorney General determines the person no longer poses a threat.

Section 203. Habeas Corpus and Judicial Review

Under current law, determinations to remove or detain terrorists have generally

been deemed by the courts to be reviewable by habeas corpus proceedings which can

be brought in any applicable federal jurisdiction nationwide. The availability of multiple jurisdictions for review creates the potential for inconsistent standards to be

developed by reviewing courts, which interferes with the government’s ability to

pursue detention and removal under a known and consistent standard. The proposed provision would not limit the scope of judicial review, but would vest exclusive

judicial review of detention and removal proceedings with respect to aliens certified

by the Attorney General as national security risks in the federal courts for the District of Columbia. The reservation of all alien terrorist cases to the District of Columbia conforms to general principles of administrative law, and to the existing provisions of the Immigration and Nationality Act. It is common for judicial review of

agency action to be confined to a single court, and the Immigration and Nationality

Act already limits challenges to expedited removal and Alien Terrorist Removal

Court cases to the District of Columbia.

Section 204. Applicability

This provision makes it clear that this legislation will apply to all aliens regardless of when they entered the United States or when they committed the terrorist

activity.

Section 205. Multilateral Cooperation Against Terrorists

This section will enhance our ability to combat terrorism and crime worldwide by

providing new exceptions to the laws regarding disclosure of information from visa

records. Under current law the Secretary of State may only disclose such information when doing so is directly related to the administration or enforcement of U.S.

laws or a court makes the request. Often these showings are difficult to make in

responding to an information request from a foreign government due to constraints

of time or foreign procedure which preclude the involvement of a foreign court. This

section grants the Secretary of State discretion to provide such information to foreign officials on a case-by-case basis for the purpose of fighting international terrorism or crime. It would also allow the Secretary to provide countries with which

he negotiates specific agreements to have more general access to information from

the State Department’s lookout databases where the country will use such information only to deny visas to persons seeking to enter its territory.

Section 206. Interagency Data Sharing

This amendment to the Immigration and Nationality Act (INA) would recognize

that the interagency cooperation provided for in INA Section 105 now serves a

broader border security function, and would enhance that function by improving

consular officers’ access to crime information. This is consistent with the fact that

securing the borders of the U.S. against the entry of international terrorists, traffickers in narcotics, weapons or persons, international organized crime members,

and illegal entrants is not the responsibility of any single federal agency. Consular

officers abroad must facilitate legitimate travel while preventing the travel of individuals who present security or other threats to U.S. government interests. These

officers need electronic access to information from border security and law enforcement agencies that will assist in identifying high-risk travelers, including information maintained by the FBI on aliens suspected of committing crimes in the U.S.

(e.g., information contained in the NCIC-III and Wanted Persons File databases).

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Without this information, a consular officer could unknowingly grant a visa to a

known or suspected criminal.

TITLE III—CRIMINAL JUSTICE

SUBTITLE A: SUBSTANTIVE CRIMINAL LAW

Section 301. No Statute of Limitations For Prosecuting Terrorism Offenses

This section amends 18 U.S.C. § 3286 to provide that terrorism offenses may be

prosecuted without limitation of time. This will make it possible to prosecute the

perpetrators of terrorist acts whenever they are identified and apprehended.

The section expressly provides that it is applicable to offenses committed before

the date of enactment of the statute, as well as those committed thereafter. This

retroactivity provision ensures that no limitation period will bar the prosecution of

crimes committed in connection with the September 11, 2001 terrorist attacks. The

constitutionality of such retroactive applications of changes in statutes of limitations

is well-settled. See, e.g., United States v. Grimes, 142 F.3d 1342, 1350–51 (11th Cir.

1998); People v. Frazer, 982 P.2d 180 (Cal. 1999).

Existing federal law (18 U.S.C. § 3282) bars prosecuting most offenses after five

years. 18 U.S.C. § 3286, as currently formulated, extends the limitation period for

prosecution for certain offenses that may be committed by terrorists—but only to

eight years. While this is a limited improvement over the five-year limitation period

for most federal offenses, it is patently inadequate in relation to the catastrophic

human and social costs that frequently follow from such crimes as destruction of aircraft (18 U.S.C. § 32), aircraft hijackings (42 U.S.C. §§ 46502, 46504–06), attempted

political assassinations (18 U.S.C. §§ 351 , 1116, 1751), or hostage taking (18 U.S.C.

§ 1203). These are not minor acts of misconduct which can properly be forgiven or

forgotten merely because the perpetrator has avoided apprehension for some period

of time. Anomalously, existing law provides longer limitation periods for such offenses as bank frauds and certain artwork thefts (18 U.S.C. §§ 3293–94) than it does

for the crimes characteristically committed by terrorists.

In many American jurisdictions, the limitation periods for prosecution for serious

offenses are more permissive than those found in federal law, including a number

of states which have no limitation period for the prosecution of felonies generally.

While this section does not go so far, it does eliminate the limitation period for prosecution of the major crimes that are most likely to be committed by terrorists (‘‘Federal terrorism offenses’’), as specified in section 309 of this bill.

Section 302. Alternative Maximum Penalties For Terrorism Crimes

Under existing law, the maximum prison terms for federal offenses are normally

determined by specifications in the provisions which define them. These provisions

can provide inadequate maxima in cases where the offense is aggravated by its terrorist character or motivation. This section accordingly adds a new subsection (e)

to 18 U.S.C. § 3559 which provides alternative maximum prison terms, including imprisonment for any term of years or for life, for crimes that are likely to be committed by terrorists. This is analogous to the maximum fine provisions of 18 U.S.C.

§ 3571(b)-(c)—which supersede lower fine amounts specified in the statutes defining

particular offenses—and will more consistently ensure the availability of sufficiently

high maximum penalties in terrorism cases. As in several other provisions of this

bill, the list of the serious crimes most frequently committed by terrorists set forth

in section 309 of the bill (‘‘Federal terrorism offenses’’) is used in defining the scope

of the provision.

This section affects only the maximum penalty allowed by statute. It does not

limit the authority of the Sentencing Commission and the courts to tailor the sentences imposed in particular cases to offense and offender characteristics.

Section 303. Penalties For Terrorist Conspiracies

The maximum penalty under the general conspiracy provision of federal criminal

law (18 U.S.C. § 371) is five years, even if the object of the conspiracy is a serious

crime carrying a far higher maximum penalty. For some individual offenses and

types of offenses, special provisions authorize conspiracy penalties equal to the penalties for the object offense—see, e.g., 21 U.S.C. § 846 (drug crimes)—but there is

no consistently applicable provision of this type for the crimes that are likely to be

committed by terrorists.

This section accordingly adds a new § 2332c to the terrorism chapter of the criminal code—parallel to the drug crime conspiracy provision in 21 U.S.C. § 846—which

provides maximum penalties for conspiracies to commit terrorism crimes that are

equal to the maximum penalties authorized for the objects of such conspiracies. This

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will more consistently provide adequate penalties for terrorist conspiracies. As in

various other provisions in this bill, the relevant class of offenses is specified by use

of the notion of ‘‘Federal terrorism offense,’’ which is defined in section 309 of the

bill.

Section 304. Terrorism Crimes as Rico Predicates

The list of predicate federal offenses for RICO, appearing in 18 U.S.C. § 1961(1),

includes none of the offenses which are most likely to be committed by terrorists.

This section adds terrorism crimes to the list of RICO predicates, so that RICO can

be used more frequently in the prosecution of terrorist organizations. As in various

other provisions, the list of offenses in section 309 of the bill (‘‘Federal terrorism offenses’’) is used in identifying the relevant crimes.

Section 305. Biological Weapons

Current law prohibits the possession, development, acquisition, etc., of biological

agents or toxins ‘‘for use as a weapon.’’ 18 U.S.C. § 175. This section amends the

definition of ‘‘for use as a weapon’’ to include all situations in which it can be proven

that the defendant had any purpose other than a prophylactic, protective, or peaceful purpose. This will enhance the government’s ability to prosecute suspected terrorists in possession of biological agents or toxins, and conform the scope of the

criminal offense in 18 U.S.C. § 175 more closely to the related forfeiture provision

in 18 U.S.C. § 176. Moreover, the section adds a subsection to 18 U.S.C. § 175 which

defines an additional offense of possessing a biological agent or toxin of a type or

in a quantity that, under the circumstances, is not reasonably justified by a prophylactic, protective or other peaceful purpose. The section also enacts a new statute,

18 U.S.C. § 175b, which generally makes it an offense for a person to possess a listed biological agent or toxin if the person is disqualified from firearms possession

under 18 U.S.C. § 922(g).

The section further provides that the Department of Heath and Human Services

enhance its role in bioterrorism prevention by requiring registration of all research

and public health laboratories and manufacturing facilities that possess certain hazardous microorganisms and toxins (the ‘‘Select Agents’’) that have a high national

security risk; requiring all such registered laboratories and manufacturing facilities

to meet regulatory standards regarding the physical environment within which such

Select Agents are maintained or used; specifying the qualifications of individuals authorized to work with such Select Agents; and specifying the institutional procedures for access to such Select Agents or the facilities in which they are maintained

or used.

Section 306. Support of Terrorism Through Expert Advice or Assistance

18 U.S.C. § 2339A prohibits providing material support or resources to terrorists.

The existing definition of ‘‘material support or resources’’ is generally not broad

enough to encompass expert services and assistance—for example, advice provided

by a person with expertise in aviation matters to facilitate an aircraft hijacking, or

advice provided by an accountant to facilitate the concealment of funds used to support terrorist activities. This section accordingly amends 18 U.S.C.§ 2339A to include

expert services and assistance, making the offense applicable to experts who provide

services or assistance knowing or intending that the services or assistance is to be

used in preparing for or carrying out terrorism crimes. The section also amends 18

U.S.C. § 2339A to conform its coverage of terrorism crimes to the more complete list

specified in section 309 of the bill (‘‘Federal terrorism offenses’’).

Section 307. Prohibition Against Harboring Terrorists

18 U.S.C. § 792 makes it an offense to harbor or conceal persons engaged in espionage. There is no comparable provision for terrorism, though the harboring of terrorists creates a risk to the nation readily comparable to that posed by harboring

spies. This section accordingly amends 18 U.S.C. § 792 to make the same prohibition

apply to harboring or concealing persons engaged in federal terrorism offenses (as

defined in section 309 of the bill).

Section 308. Post-Release Supervision of Terrorists

Existing federal law (18 U.S.C. § 3583(b)) generally caps the maximum period of

post-imprisonment supervision for released felons at 3 or 5 years. Thus, in relation

to a released but still unreformed terrorist, there is no means of tracking the person

or imposing conditions to prevent renewed involvement in terrorist activities beyond

a period of a few years. The drug laws (21 U.S.C. § 841) mandate longer supervision

periods for persons convicted of certain drug trafficking crimes, and specify no upper

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limit on the duration of supervision, but there is nothing comparable for terrorism

offenses.

This section accordingly adds a new subsection to 18 U.S.C. § 3583 to authorize

longer supervision periods, including potentially lifetime supervision, for persons

convicted of terrorism crimes. This would permit appropriate tracking and oversight

following release of offenders whose involvement with terrorism may reflect lifelong

ideological commitments. As in other provisions in this bill, the covered class of

crimes is federal terrorism offenses, which are specified in section 309 of the bill.

This section affects only the maximum periods of post-release supervision allowed

by statute. It does not limit the authority of the Sentencing Commission and the

courts to tailor the supervision periods imposed in particular cases to offense and

offender characteristics, and the courts will retain their normal authority under 18

U.S.C. § 3583(e)(1) to terminate supervision if it is no longer warranted.

Section 309. Definitions

This section adds a new § 25 to title 18 of the United States Code, which defines

the term ‘‘Federal terrorism offense.’’ The term is used in various provisions in this

bill. The definition is designed to cover the major crimes which are most frequently

involved in or associated with terrorism. The definition in the new 18 U.S.C. § 25

is largely based on an existing listing of terrorism-related offenses in 18 U.S.C.

§ 2332b(g)(5)(B). The section also adds to 18 U.S.C. § 2331 a definition of ‘‘domestic

terrorism,’’ a term used in a number of the bill’s provisions.

SUBTITLE B: CRIMINAL PROCEDURE

Section 351. Single-Jurisdiction Search Warrants For Terrorism

Rule 41(a) of the Federal Rules of Criminal Procedure currently requires a search

warrant to be obtained within a district for searches within that district. The only

exception is for cases in which the property or person is presently within the district

but might leave the district before the warrant is executed.

The restrictiveness of the existing rule creates unnecessary delays and burdens

for the government in the investigation of terrorist activities and networks that

span a number of districts, since warrants must be separately obtained in each district. This section resolves that problem by providing that warrants can be obtained

in any district in which activities related to the terrorism may have occurred, regardless of where the warrants will be executed.

Section 352. Notice

The law that currently governs notice to subjects of warrants, where there is a

showing to the court that immediate notice would jeopardize an ongoing investigation or otherwise interfere with lawful law-enforcement activities, is a mix of inconsistent rules, practices, and court decisions varying widely from jurisdiction to jurisdiction across the country. This greatly hinders the investigation of many terrorism

cases and other cases.

This section resolves this problem by establishing a statutory, uniform standard

for all such circumstances. It incorporates by reference the familiar, court-enforced

standards currently applicable to stored communications under 18 U.S.C. § 2705,

and applies them to all instances where the court is satisfied that immediate notice

of execution of a search warrant would jeopardize an ongoing investigation or otherwise interfere with lawful law-enforcement activities.

Section 353. DNA Identification of Terrorists

The statutory provisions governing the collection of DNA samples from convicted

federal offenders (42 U.S.C. § 14135a(d)) are restrictive, and do not include persons

convicted for the crimes that are most likely to be committed by terrorists. DNA

samples cannot now be collected even from persons federally convicted of terrorist

murders in most circumstances. For example, 49 U.S.C. § 46502, which applies to

terrorists who murder people by hijacking aircraft,

18 U.S.C. § 844(i), which applies to terrorists who murder people by blowing up

buildings, and 18 U.S.C. § 2332, which applies to terrorists who murder U.S. nationals abroad, are not included in the qualifying federal offenses for purposes of DNA

sample collection under existing law. This section addresses the deficiency of the

current law in relation to terrorists by extending DNA sample collection to all persons convicted of terrorism crimes.

Section 354. Grand Jury Matters

This section makes changes in Rule 6(e) of the Federal Rules of Criminal Procedure, relating to grand jury secrecy, to facilitate the sharing of information with fedVerDate 11-MAY-2000 13:52 Nov 13, 2001 Jkt 000000 PO 00000 Frm 00066 Fmt 6601 Sfmt 6621 G:\WORK\FULL\092401\75288.000 HJUD2 PsN: HJUD2
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eral law enforcement, intelligence, protective, national defense, and immigration

personnel in terrorism and national security cases. The section is in part complimentary to section 154 of the bill, relating to sharing of foreign intelligence information, and reflects a similar purpose of promoting a coordinated governmental response to terrorist and national security threats.

Section 355. Extraterritoriality

Under existing law, some terrorism crimes have extraterritorial applicability, and

can be prosecuted by the United States regardless of where they are committed—

for example, 18 U.S.C. §§ 175 (biological weapons offense) and 2332a (use of weapons of mass destruction), contain language which expressly contemplates their application to conduct occurring outside of the United States. However, there are no explicit extraterritoriality provisions in the statutes defining many other offenses

which are likely to be committed by terrorists. This section helps to ensure that terrorist acts committed anywhere in the world can be effectively prosecuted by specifying that there is extraterritorial jurisdiction for the prosecution of all federal terrorism offenses.

Section 356. Definition.

This amendment would explicitly extend the special and maritime criminal jurisdiction of the United States to U.S. diplomatic and consular premises and related

private residences overseas, to the extent an offense is committed by or against a

U.S. national. When offenses are committed by or against a U.S. national abroad

on U.S. government property, the country in which the offense occurs may have little interest in prosecuting the case. Unless the United States is able to prosecute

such offenders, these crimes may go unpunished. This section clarifies inconsistent

caselaw to establish that the United States may prosecute offenses committed in its

missions abroad, by or against its nationals.

TITLE IV—FINANCIAL INFRASTRUCTURE

Section 401. Laundering The Proceeds of Terrorism.

Money-laundering under 18 U.S.C. § 1956 involves conducting or attempting to

conduct a financial transaction knowing that the property involved represents the

proceeds of an unlawful activity specified in subsection (c)(7) of the statute. Violations of 18 U.S.C. § 2339A, which prohibits providing material support to terrorists

within the United States, are already included as specified unlawful activities. This

section provides more complete coverage of money-laundering related to terrorism

by adding as a further predicate offense 18 U.S.C. § 2339B, which prohibits providing material support or resources to foreign terrorist organizations.

Section 402. Material Support For Terrorism

18 U.S.C. § 2339A prohibits providing material support to terrorism. Under the

statute’s definitional subsection, the prohibited forms of support include (among

many other things) ‘‘currency or other financial securities.’’ This section adds an explicit reference to ‘‘monetary instruments’’ to the definition. The purpose of the

amendment is to make it clear that the definition is to be taken expansively to encompass any and all forms of money, monetary instruments, or securities.

Section 403. Assets of Terrorist Organizations

Current law does not contain any authority tailored specifically to the confiscation

of terrorist assets. Instead, currently, forfeiture is authorized only in narrow circumstances for the proceeds of murder, arson, and some terrorism offenses, or for

laundering the proceeds of such offenses. However, most terrorism offenses do not

yield ‘‘proceeds,’’ and available current forfeiture laws require detailed tracing that

is quite difficult for accounts coming through the banks of countries used by many

terrorists.

This section increases the government’s ability to strike at terrorist organizations’

economic base by permitting the forfeiture of its property regardless of the source

of the property, and regardless of whether the property has actually been used to

commit a terrorism offense. This is similar in concept to the forfeiture now available

under RICO. In parity with the drug forfeiture laws, the section also authorizes the

forfeiture of property used or intended to be used to facilitate a terrorist act, regardless of its source. There is no need for a separate criminal forfeiture provision because criminal forfeiture is incorporated under current law by reference. The provision is retroactive to permit it to be applied to the events of September 11, 2001.

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Section 404. Technical Clarification Relating to Provision of Material Support to

Terrorism

The Trade Sanctions Reform and Export Enhancement Act of 2000, Title IX of

Public Law 106–387, creates exceptions in the nation’s Trade Sanctions Programs

for food and agricultural products. This section makes it clear that the Trade Sanctions Reform and Export Enhancement Act of 2000 does not limit 18 U.S.C.

§§ 2339A or 2339B. In other words, the exceptions to trade sanctions for these items

does not prevent criminal liability for the provision of these items to support terrorist activity or to foreign terrorist organizations as described in 2339A and 2339B.

This is not a change from existing law, but rather serves to foreclose any possible

misunderstanding or argument that the Act in some manner trumps or limits the

prohibition on providing material support or resources to terrorism.

Section 405. Disclosure of Tax Information in Terrorism And National-Security Investigations

Taxpayer records maintained by the Internal Revenue Service (IRS) are subject

to strict rules regarding disclosure to other Government agencies, detailed in 26

U.S.C. § 6103. Although the law currently allows for the disclosure of such information to non-Treasury personnel in emergency circumstances, there is no terrorismspecific exception. This section amends § 6103 to permit disclosure of IRS-maintained information to any Federal agency investigation or responding to terrorist

acts, and to State and local law enforcement agencies that are part of a joint investigative team with the Federal agency.

There is currently no mechanism for the release of tax information to Department

of Justice personnel involved in counterterrorism investigations, nor a mechanism

to allow those Treasury Department components involved in counterterrorism analysis to disseminate such information to the intelligence community. This section further amends § 6103 to allow for the release of tax information to Department of Justice and Department of Treasury personnel involved in counterterrorism investigations and analysis, and to permit this information to be disseminated to the intelligence community.

Section 406. Restraint of Property Subject to Criminal Forfeiture

Following the conviction in a criminal case, a court may order the forfeiture of

property traceable to the offense, or it may enter a judgment in favor of the government for the value of that property if the traceable property is unavailable. United

States v. Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999) (criminal forfeiture order

may take several forms: money judgment, directly forfeitable property, and substitute assets). To make such post-conviction remedies effective, it is necessary for

the court to be able to restrain assets pre-trial so that they are available, in the

event of conviction, to satisfy the forfeiture judgment.

This section slightly expands the scope of the property that may be restrained

pre-trial to ensure that there are sufficient assets to satisfy a judgment. Although

some courts interpret current law to allow pre-trial restraint of non-traceable assets,

see In Re Billman, 915 F.2d 916 (4th Cir. 1990), others only permit the government

to restrain assets themselves traceable to the offense, see United States v. Gotti, 155

F.3d 144 (2d Cir. 1998). The proposed amendment would recognize that many assets

are ‘‘fungible,’’ and assist the government’s ability to deprive terrorists of their assets without proving the assets they are able to locate are themselves traceable to

the offense. Without this amendment, in courts that take the narrower view of the

law, the government is unable to preserve the assets of major crime figures during

the trial to ensure that they are available to satisfy a judgment in the event of a

conviction. See Gotti, supra (vacating pre-trial order restraining assets of organized

crime leader).

This section would permit pretrial restraint of substitute assets only in criminal

forfeiture cases, and only after a grand jury has found probable cause to believe an

offense giving rise to a forfeiture has been committed. The property can actually be

forfeited to the government only after a petit jury has found the offense proved beyond a reasonable doubt and returned a judgment of conviction. The amendment is

made to the Controlled Substances Act because the provisions governing criminal

forfeitures in drug cases are incorporated, by statute, into all other criminal forfeiture statutes. 28 U.S.C. § 2461(c).

Section 407. Trade Sanctions Reform Act of 2000

The Trade Sanctions Reform Act of 2000 requires the President to end unilateral

agricultural and medical sanctions with respect to foreign entities and governments.

This section would authorize Presidential control of agricultural and medical exports

to all designated terrorists and narcotics entities wherever they are located. The secVerDate 11-MAY-2000 13:52 Nov 13, 2001 Jkt 000000 PO 00000 Frm 00068 Fmt 6601 Sfmt 6621 G:\WORK\FULL\092401\75288.000 HJUD2 PsN: HJUD2
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tion would authorize the President to retain sanctions with respect to exports of agricultural commodities, medicine and medical devices to designated terrorist entities.

Section 408. Extraterritorial Jurisdiction

Financial crimes admits of no border, utilizing the integrated global financial network for ill purposes. This provision would apply the financial crimes prohibitions

to conduct committed abroad, so long as the tools or proceeds of the crimes pass

through or are in the United States.

TITLE V—EMERGENCY AUTHORIZATIONS

Section 501. Office of Justice Programs

This provision provides benefits to public safety officers disabled as a result of the

September 11 attacks, as well as grants to the States for victim assistance. Consistent with 42 U.S.C. § 3796(b), the Department of Justice’s FY2001 appropriations act places an aggregate cap of $2.4 million on the benefits that may be paid to public safety officers who have become totally disabled. A similar cap is found in both

House and Senate FY2002 bills. Section 501 removes all caps with respect to officers

who were totally disabled as a result of the September 11 attacks. This would authorize OJP annually to pay approximately $120,000 to each totally-disabled officer

for life or while he remains totally disabled. In the same way, the Department of

Justice’s existing grant programs to assist States in aiding crime victims provide

mechanisms to respond to the attacks, 42 U.S.C. § 10603b, but the amounts available to meet the need are insufficient. Section 501 would authorize the spending of

up to $700 million from balances in the Crime Victims Fund (currently $1.4 billion)

to assist States in their victim-relief efforts. The $700 million could be dispatched

almost immediately to the States affected by the terrorist attacks, providing them

with resources to supplement their own expenditures in aid of the victims.

Current law limits OJP’s authority to work directly with service providers (as opposed to governments) under the circumstances created by the September 11 attacks, and to coordinate and manage emergency-response and other activities of its

various components. 42 U.S.C. § 10603b(b). The law also is unclear as to proper execution of certain aspects of the Public Safety Officers Benefits program. Section 501

would amend OJP’s authorities in these areas, specifically by authorizing OJP to

work directly with service providers, in addition to governmental entities, to expedite terrorism victim relief efforts, by enhancing its authority to co-ordinate and

manage emergency-response and other activities of its various components, and by

clarifying provisions governing the provision of public safety officer benefits.

Section 502. Attorney General’s Authority to Pay Rewards

Section 106 of the FY2001 DOJ appropriations act places a per-reward cap of $2

million (and a $10 million annual aggregate cap) on rewards that the Attorney General may offer. A similar cap is found in both House and Senate FY2002 bills. Given

the increasing sophistication of terrorist acts, these limitations may hamper the

Justice Department’s ability to bring the guilty to justice. Section 502 therefore

would remove these caps. It would authorize the Attorney General to offer or pay

rewards of any amount he or the President determines to be necessary for information or assistance.

Section 503. Limited Authority to Pay Overtime

For the past several years the Department of Justice Appropriations Acts have

included provisions whereby Immigration and Naturalization Service funds could

not be used to pay employees overtime pay in an amount in excess of $30,000 during

a calendar year. In light of recent national emergencies, this section will lift this

cap in order to give the Attorney General flexibility in determining whether to authorize overtime if necessary. The Department anticipates that the Attorney General will issue Departmental guidance regarding when it is appropriate to authorize

overtime pay in an amount that would exceed the limitations that have been lifted.

Section 504. Secretary of State’s Authority to Pay Rewards

This section amends section 36 of the State Department’s Basic Authorities Act

of 1956 to enhance the ability of the Department of State to pay rewards to assist

in bringing terrorists to justice. The section would expand the bases for which the

Department could authorize payment of terrorism rewards, eliminate the overall

limitation on the amount of funds that can be appropriated to the Department to

carry out the rewards program, and eliminate the requirement that the Department

distribute funds equally for the purpose of preventing acts of international terrorism

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and narcotics trafficking. This section also raises the amount the Department could

offer and pay under the program from $5M to $10M and allows the Secretary to

authorize payment of an award larger than $10M if the Secretary determines that

doing so would be important to the national security interests of the United States.

Section 505. Assistance to Countries Cooperating Against International Terrorism

Subsection (a) of this provision would give important new extraordinary authority

for five years to the President to provide assistance or take other beneficial actions

in favor of countries that support U.S. efforts to fight international terrorism. Subsection (b) would allow the President to provide anti-terrorism assistance to entities,

as well as countries, without being subject to any restrictions. Subsection (c) allows

the President to provide assistance for non-proliferation and export control activities

without restrictions.

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