MR. LEAHY. Today we begin consideration of the
"Uniting and Strengthening of America Act" or "USA Act of
2001," one month after the attacks and weeks ahead of Senate action
following the destruction of the Federal Building in Oklahoma City in
1995. Working with Chairman Sensenbrenner, Congressman Conyers and the
Republican and Democratic leaders in the House, Congress can and should
act swiftly to enact this measure. Some may be concerned that if we go to
conference it could take a year or more to resolve these issues. I will
work to complete a conference in short order. The American people and the
members of this body deserve fast and final action.
PROCESS. Last Thursday, October 4, I was pleased to
introduce with the Majority Leader, Senator Daschle, and the Chairmen of
the Banking and Intelligence Committees, as well as the Minority Leader,
Senator Lott, and Senator Hatch and Senator Shelby, the United and
Strengthening America, or USA Act. This is not the bill that I, or any of
the sponsors, would have written if compromise was unnecessary. Nor is the
bill the Administration initially proposed and the Attorney General
delivered to us on September 19, at a meeting in the Capitol.
We were able to refine and supplement the
Administration’s original proposal in a number of ways. The
Administration accepted a number of the practical steps I had originally
proposed on September 19 to improve our security on the Northern Border,
assist our Federal, State and local law enforcement officers and provide
compensation to the victims of terrorist acts and to the public safety
officers who gave their lives to protect ours. This USA Act also provides
important checks on the proposed expansion of government powers that were
not contained in the Attorney General’s initial proposal.
In negotiations with the Administration, I have done my
best to strike a reasonable balance between the need to address the threat
of terrorism, which we all keenly feel at the present time, and the need
to protect our constitutional freedoms. Despite my misgivings, I have
acquiesced in some of the Administration’s proposals because it is
important to preserve national unity in this time of crisis and to move
the legislative process forward.
The result of our labors still leaves room for
improvement. Even after the Senate passes judgment on this bill, the
debate will not be finished. We will have to consider the important
judgments made by the House Judiciary Committee in the version of the
legislation making its way through the House. Moreover, I predict that
some of these provisions will face difficult tests in the courts and that
we in Congress will have to revisit these issues at some time in the
future when, as we all devoutly hope, the present crisis has passed. I
also intend as Chairman of the Judiciary Committee to exercise careful
oversight of how the Department of Justice, the FBI and other executive
branch agencies are using the newly-expanded powers that this bill will
give them. I know that other members of the Judiciary Committee –
including Senator Specter, Senator Grassley, and Senator Durbin –
appreciate the importance of such oversight.
Negotiations. The negotiations on this bill have not
been easy. Within days of the September 11 attacks, I instructed my staff
to begin work on legislation to address security needs on the Northern
Border, the needs of victims and State and local law enforcement, and
criminal law improvements. A week after the attack, on September 19, the
Attorney General and I exchanged the outlines of the legislative proposals
and pledged to work together towards our shared goal of putting tools in
the hands of law enforcement that would help prevent another terrorist
attack.
Let me be clear: No one can guarantee that Americans
will be free from the threat of future terrorist attacks, and to suggest
that this legislation – or any legislation – would or could provide
such a guarantee would be a false promise. I will not engage in such false
promises, and those who make such assertions do a disservice to the
American people.
I have also heard claims that if certain powers had
been previously authorized by the Congress, we could somehow have
prevented the September 11 attacks. Given this rhetoric it may be
instructive to review efforts that were made a few years ago in the Senate
to provide law enforcement with greater tools to conduct surveillance of
terrorists and terrorist organizations. In May 1995, Senator Lieberman
offered an amendment to the bill that became the Antiterrorism and
Effective Death Penalty Act of 1996 that would have expanded the
government’s authority to conduct emergency wiretaps to cases of
domestic or international terrorism and added a definition of domestic
terrorism to include violent or illegal acts apparently intended to
"intimidate, or coerce the civilian population." The consensus,
bipartisan bill that we consider today contains a very similar definition
of domestic terrorism.
In 1995, however, a motion to table Senator Lieberman’s
amendment was agreed to in a largely party-line vote, with Republicans
voting against the measure. In fact, then Sen. Ashcroft voted to table
that amendment, and my good friend from Utah, Senator Hatch, spoke against
it and opined, "I do not think we should expand the wiretap laws any
further." I recall Senator Hatch’s concern then that "We must
ensure that in our response to recent terrorist acts, we do not destroy
the freedoms that we cherish." I have worked very hard to maintain
that balance in negotiations concerning the current legislation.
Following the exchange on September 19 of our
legislative proposals, we have worked over the last two weeks around the
clock with the Administration to put together the best legislative package
we could. I share the Administration’s goal of providing promptly the
legal tools necessary to deal with the current terrorist threat. While
some have complained publicly that the negotiations have gone on for too
long, the issues involved are of great importance, and we will have to
live with the laws we enact for a long time to come. Demands for action
are irresponsible when the road-map is pointed in the wrong direction. As
Ben Franklin once noted, "if we surrender our liberty in the name of
security, we shall have neither".
Moreover, our ability to make rapid progress was
impeded because the negotiations with the Administration did not progress
in a straight line. On several key issues that are of particular concern
to me, we had reached an agreement with the Administration on Sunday,
September 30. Unfortunately, within two days, the Administration announced
that it was reneging on the deal. I appreciate the complex task of
considering the concerns and missions of multiple federal agencies, and
that sometimes agreements must be modified as their implications are
scrutinized by affected agencies. When agreements made by the
Administration must be withdrawn and negotiations on resolved issues
reopened, those in the Administration who blame the Congress for delay
with what the New York Times described last week as "scurrilous
remarks," do not help the process move forward.
Hearings. We have expedited the legislative process in
the Judiciary Committee to consider the Administration’s proposals. In
daily news conferences, the Attorney General has referred to the need for
such prompt consideration. I commend him for making the time to appear
before the Judiciary Committee at a hearing September 25 to respond to
questions that Members from both parties have about the Administration’s
initial legislative proposals. I also thank the Attorney General for
extending the hour and a half he was able to make in his schedule for the
hearing for another fifteen minutes so that Senator Feinstein and Senator
Specter were able to ask questions before his departure. I regret that the
Attorney General did not have the time to respond to questions from all
the Members of the Committee either on September 25 or last week, but
again thank him for the attention he promised to give to the written
questions Members submitted about the legislation. We have not received
answers to those written questions yet, but I will make them a part of the
hearing record whenever they are sent.
The Chairman of the Constitution Subcommittee, Senator
Feingold, also held an important hearing on October 3 on the civil
liberties ramifications of the expanded surveillance powers requested by
the Administration. I thank him for his assistance in illuminating these
critical issues for the Senate.
Rule 14. To accede to the Administration’s request
for prompt consideration of this legislation, the Leaders decided to hold
the USA Act at the desk rather than refer the bill to the Committee for
mark-up, as is regular practice. Senator Hatch specifically urged that
this occur, and I support this decision. Indeed, when the Senate
considered the anti-terrorism act in 1995 after the Oklahoma City bombing,
we bypassed Committee in order to deal with the legislation more promptly
on the floor.
Given the expedited process that we have used to move
this bill, I will take more time than usual to detail its provisions.
VICTIMS. The heart of every American aches for those
who died or have been injured because of the tragic terrorist attacks in
New York, Virginia, and Pennsylvania on September 11th. Even now, we
cannot assess the full measure of this attack in terms of human lives, but
we know that the number of casualties is extraordinarily high.
Congress acted swiftly to help the victims of September
11th. Within 10 days, we passed legislation to establish a Victims
Compensations Program, which will provide fair compensation to those most
affected by this national tragedy. I am proud of our work on that
legislation, which will expedite payments to thousands of Americans whose
lives were so suddenly shattered.
But now more than ever, we should remember the tens of
thousands of Americans whose needs are not being met – the victims of
crimes that have not made the national headlines. Just one day before the
events that have so transformed our nation, I came before this body to
express my concern that we were not doing more for crime victims. I noted
that the pace of victims legislation had slowed, and that many
opportunities for progress had been squandered. I suggested that this
year, we had a golden opportunity to make significant progress in this
area by passing S.783, the Leahy-Kennedy Crime Victims Assistance Act of
2001.
I am pleased, therefore, that the antiterrorism package
now before the Senate contains substantial portions of S.783 aimed at
refining the Victims of Crime Act of 1984 (VOCA), and improving the manner
in which the Crime Victims Fund is managed and preserved. Most
significantly, section 621 of the USA Act will eliminate the cap on VOCA
spending, which has prevented more than $700 million in Fund deposits from
reaching victims and supporting essential services.
Congress has capped spending from the Fund for the last
two fiscal years, and President Bush has proposed a third cap for fiscal
year 2002. These limits on VOCA spending have created a growing sense of
confusion and unease by many of those concerned about the future of the
Fund.
We should not be imposing artificial caps on VOCA
spending while substantial unmet needs continue to exist. Section 621 of
the USA Act replaces the cap with a self-regulating system that will
ensure stability and protection of Fund assets, while allowing more money
to be distributed to the States for victim compensation and assistance.
Other provisions included from S.783 will also make an
immediate difference in the lives of victims, including victims of
terrorism. Shortly after the Oklahoma City bombing, I proposed and the
Congress adopted the Victims of Terrorism Act of 1995. This legislation
authorized the Office for Victims of Crime (OVC) to set aside an emergency
reserve of up to $50 million as part of the Crime Victims Fund. The
emergency reserve was intended to serve as a "rainy day" fund to
supplement compensation and assistance grants to States to provide
emergency relief in the wake of an act of terrorism or mass violence that
might otherwise overwhelm the resources of a State’s crime victim
compensation program and crime victim assistance services. Last month’s
disaster created vast needs that have all but depleted the reserve.
Section 621 of the USA Act authorizes OVC to replenish the reserve with up
to $50 million, and streamlines the mechanism for replenishment in future
years.
Another critical provision of the USA Act will enable
OVC to provide more immediate and effective assistance to victims of
terrorism and mass violence occurring within the United States. I proposed
this measure last year as an amendment to the Justice for Victims of
Terrorism Act, but was compelled to drop it to achieve bipartisan
consensus. I am pleased that we are finally getting it done this year.
These and other VOCA reforms in the USA Act are long
overdue. Yet, I regret that we are not doing more. In my view, we should
pass the Crime Victims Assistance Act in its entirety. In addition to the
provisions that are included in today’s antiterrorism package, this
legislation provides for comprehensive reform of Federal law to establish
enhanced rights and protections for victims of Federal crime. It also
proposes several programs to help States provide better assistance for
victims of State crimes.
I also regret that we have not done more for other
victims of recent terrorist attacks. While all Americans are numbed by the
heinous acts of September 11th, we should not forget the victims of the
1998 embassy bombings in East Africa. Eleven Americans and many Kenyan and
Tanzanian nationals employed by the United States lost their lives in that
tragic incident. It is my understanding that compensation to the families
of these victims has in many instances fallen short. It is my hope that
OVC will use a portion of the newly replenished reserve fund to remedy any
inequity in the way that these individuals have been treated.
HATE CRIMES. We cannot speak of the victims of the
September 11 without also noting that Arab-Americans and Muslims in this
country have become the targets of hate crimes, harassment, and
intimidation. I applaud the President for speaking out against and
condemning such acts, and visiting a mosque to demonstrate by action that
all religions are embraced in this country. I also commend the FBI
Director for his periodic reports on the number of hate crime incidents
against Arab-American and Muslims that the FBI is aggressively
investigating and making clear that this conduct is taken seriously and
will be punished.
The USA Act contains, in section 102, a sense of the
Congress that crimes and discrimination against Arab and Muslim Americans
are condemned. Many of us would like to do more, and finally enact
effective hate crimes legislation, but the Administration has asked that
the debate on that legislation be postponed. One of my greatest regrets
regarding the negotiations in this bill was the objections that prevented
the Local Law Enforcement Enhancement Act, S. 625, from being included in
the USA Act.
State AND LOCAL LAW ENFORCEMENT. The Administration’s
initial proposal was entirely focused on Federal law enforcement. Yet, we
must remember that state and local law enforcement officers have critical
roles to play in preventing and investigating terrorist acts. I am pleased
that the USA Act we consider today recognizes this fact.
As a former State prosecutor, I know that State and
local law enforcement officers are often the first responders to a crime.
On September 11th, the nation saw that the first on the scene were the
heroic firefighters, police officers and emergency personnel in New York
City. These New York public safety officers, many of whom gave the
ultimate sacrifice, remind us of how important it is to support our State
and local law enforcement partners. The USA Act provides three critical
measures of Federal support for our State and local law enforcement
officers in the war against terrorism.
First, we streamline and expedite the Public Safety
Officers’ Benefits application process for family members of fire
fighters, police officers and rescue workers who perish or suffer a
disabling injury in connection with prevention, investigation, rescue or
recovery efforts related to a future terrorist attack.
The Public Safety Officers’ Benefits Program provides
benefits for each of the families of law enforcement officers,
firefighters, and emergency response crew members who are killed or
disabled in the line of duty. Current regulations, however, require the
families of public safety officers who have fallen in the line of duty to
go through a cumbersome and time-consuming application process. In the
face of our national fight against terrorism, it is important that we
provide a quick process to support the families of brave Americans who
selflessly give their lives so that others might live before, during and
after a terrorist attack.
This provision builds on the new law championed by
Senator Clinton, Senator Schumer and Congressman Nadler to speed the
benefit payment process for families of public safety officers killed in
the line of duty in New York City, Virginia, and Western Pennsylvania, on
September 11.
Second, we have raised the total amount of Public
Safety Officers’ Benefit Program payments from approximately $150,000 to
$250,000. This provision retroactively goes into effort to provide
much-needed relief for the families of the brave men and women who
sacrificed their own lives for their fellow Americans during the year.
Although this increase in benefits can never replace a family ’s tragic
loss, it is the right thing to do for the families of our fallen heros. I
want to thank Senator Biden and Senator Hatch for their bipartisan
leadership on this provision.
Third, we expand the Department of Justice Regional
Information Sharing Systems Program to promote information sharing among
Federal, State and local law enforcement agencies to investigate and
prosecute terrorist conspiracies and activities and authorize a doubling
of funding for this year and next year. The RISS Secure Intranet is a
nationwide law enforcement network that already allows secure
communications among the more than 5,700 Federal, State and local law
enforcement agencies. Effective communication is key to effective law
enforcement efforts and will be essential in our national fight against
terrorism.
The RISS program enables its member agencies to send
secure, encrypted communications – whether within just one agency or
from one agency to another. Federal agencies, such as the FBI, do not have
this capability, but recognize the need for it. Indeed, on September 11,
2001, immediately after the terrorist attacks, FBI Headquarters called
RISS officials to request "Smartgate" cards and readers to
secure their communications systems. The FBI agency in Philadelphia called
soon after to request more Smartgate cards and readers as well.
The Regional Information Sharing Systems Program is a
proven success that we need to expand to improve secure information
sharing among Federal, State and local law enforcement agencies to
coordinate their counter-terrorism efforts.
Our State and local law enforcement partners welcome
the challenge to join in our national mission to combat terrorism. We
cannot ask State and local law enforcement officers to assume these new
national responsibilities without also providing new Federal support. The
USA Act provides the necessary Federal support for our State and local law
enforcement officers to serve as full partners in our fight against
terrorism.
I am deeply troubled by continuing reports that
information is not being shared with state local law enforcement. In
particular, the testimony of Baltimore Police Chief Ed Norris before the
House Government Reform Committee last week highlighted the current
problem.
NORTHERN BORDERS. The unfolding facts about how the
terrorists who committed the September 11 attack were able to enter this
country without difficulty are chilling. Since the attacks many have
pointed to our northern border as vulnerable to the entry of future
terrorists. This is not surprising when a simple review of the numbers
shows that the northern border has been routinely short-changed in
personnel. While the number of border patrol agents along the southern
border has increased over the last few years to over 8,000, the number at
the northern border has remained the same as a decade ago at 300. This
remains true despite the fact that Admad Ressam, the Algerian who planned
to blow up the Los Angeles International Airport in 1999, and who has been
linked to those involved in the September 11 attacks, chose to enter the
United States at our northern border. It will remain an inviting target
until we dramatically improve our security.
The USA Act includes my proposals to provide the
substantial and long overdue assistance for our law enforcement and border
control efforts along the Northern Border. My home state of Vermont has
seen huge increases in Customs and INS activity since the signing of NAFTA.
The number of people coming through our borders has risen steeply over the
years, but our staff and our resources have not.
I proposed – and this legislation authorizes in
section 402 – tripling the number of Border Patrol, INS inspectors, and
Customs Service employees in each of the States along the 4,000-mile
Northern Border. I was gratified when 22 Senators – Democrats and
Republicans – wrote to the President supporting such an increase, and I
am pleased that the Administration agreed that this critical law
enforcement improvement should be included in the bill. Senators Cantwell
and Schumer in the Committee and Senators Murray and Dorgan have been
especially strong advocates of these provisions and I thank them for their
leadership. In addition, the USA Act, in section 401, authorizes the
Attorney General to waive the FTE cap on INS personnel in order to address
the national security needs of the United States on the northern border.
Now more than ever, we must patrol our border vigilantly and prevent those
who wish America harm from gaining entry. At the same time, we must work
with the Canadians to allow speedy crossing to legitimate visitors and
foster the continued growth of trade which is beneficial to both
countries.
In addition to providing for more personnel, this bill
also includes, in section 402(4), my proposal to provide $100 million in
funding for both the INS and the Customs Service to improve the technology
used to monitor the Northern Border and to purchase additional equipment.
The bill also includes, in section 403(c), an important provision from
Senator Cantwell directing the Attorney General, in consultation with
other agencies, to develop a technical standard for identifying
electronically the identity of persons applying for visas or seeking to
enter the United States. In short, this bill provides a comprehensive
high-tech boost for the security of our nation.
This bill also includes important proposals to enhance
data sharing. The bill, in section 403, directs the Attorney General and
the FBI Director to give the State Department and INS access to the
criminal history information in the FBI’s National Crime Information
Center (NCIC) database, as the Administration and I both proposed. The
Attorney General is directed to report back to the Congress in two years
on progress in implementing this requirement. We have also adopted the
Administration’s language, in section 413, to make it easier for the
State Department to share information with foreign governments for aid in
terrorist investigations.
CRIMINAL JUSTICE IMPROVEMENTS. The USA Act contains a
number of provisions intended to improve and update the federal criminal
code to address better the nature of terrorist activity, assist the FBI in
translating foreign language information collected, and ensure that
federal prosecutors are unhindered by conflicting local rules of conduct
to get the job done. I will mention just a few of these provisions.
FBI Translators. The truth certainly seems self-evident
that all the best surveillance techniques in the world will not help this
country defend itself from terrorist attack if the information cannot be
understood in a timely fashion. Indeed, within days of the September 11,
the FBI Director issued an employment ad on national TV by calling upon
those who speak Arabic to apply for a job as an FBI translator. This is a
dire situation that needs attention. I am therefore gratified that the
Administration accepted my proposal, in section 205, to waive any federal
personnel requirements and limitations imposed by any other law in order
to expedite the hiring of translators at the FBI.
This bill also directs the FBI Director to establish
such security requirements as are necessary for the personnel employed as
translators. We know the effort to recruit translators has a high
priority, and the Congress should provide all possible support. Therefore,
the bill calls on the Attorney General to report to the Judiciary
Committees on the number of translators employed by the Justice
Department, any legal or practical impediments to using translators
employed by other Federal, State, or local agencies, on a full, part-time,
or shared basis; and the needs of the FBI for specific translation
services in certain languages, and recommendations for meeting those
needs.
Federal Crime of Terrorism. The Administration’s
initial proposal assembled a laundry list of more than 40 Federal crimes
ranging from computer hacking to malicious mischief to the use of weapons
of mass destruction, and designated them as "Federal terrorism
offenses," regardless of the circumstances under which they were
committed. For example, a teenager who spammed the NASA website and, as a
result, recklessly caused damage, would be deemed to have committed this
new "terrorism" offense. Under the Administration’s proposal,
the consequences of this designation were severe. Crimes on the list would
carry no statute of limitations. The maximum penalties would shoot up to
life imprisonment, and those released earlier would be subject to a
lifetime of supervised release. Moreover, anyone who harbored a person
whom he had "reasonable grounds to suspect" had committed, or
was about to commit, a "Federal terrorism offense" – whether
it was the Taliban or the mother of my hypothetical teenage computer
hacker – would be subject to stiff criminal penalties. I worked closely
with the Administration to ensure that the definition of
"terrorism" in the USA Act fit the crime.
First, we have trimmed the list of crimes that may be
considered as terrorism predicates in section 808 of the bill. This
shorter, more focused list, to be codified at 18 U.S.C. §2332(g)(5)(B),
more closely reflects the sorts of offenses committed by terrorists.
Second, we have provided, in section 810, that the
current 8-year limitations period for this new set of offenses will remain
in place, except where the commission of the offense resulted in, or
created a risk of, death or serious bodily injury.
Third, rather than make an across-the-board,
one-size-fits-all increase of the penalties for every offense on the list,
without regard to the severity of the offense, we have made, in section
811, more measured increases in maximum penalties where appropriate,
including life imprisonment or lifetime supervised release in cases in
which the offense resulted in death. We have also added, in section 812,
conspiracy provisions to a few criminal statutes where appropriate, with
penalties equal to the penalties for the object offense, up to life
imprisonment.
Finally, we have more carefully defined the new crime
of harboring terrorists in section 804, so that it applies only to those
harboring people who have committed, or are about to commit, the most
serious of federal terrorism-related crimes, such as the use of weapons of
mass destruction. Moreover, it is not enough that the defendant had
"reasonable grounds to suspect" that the person he was harboring
had committed, or was about to commit, such a crime; the government must
prove that the defendant knew or had "reasonable grounds to
believe" that this was so.
McDade Fix. The massive investigation underway into who
was responsible for and assisted in carrying out the September 11 attacks
stretches across state and national boundaries. While the scope of the
tragedy is unsurpassed, the disregard for state and national borders of
this criminal conspiracy is not unusual. Federal investigative officers
and prosecutors often must follow leads and conduct investigations outside
their assigned jurisdictions. At the end of the 105th Congress, a legal
impediment to such multi-jurisdiction investigations was slipped into the
omnibus appropriations bill, over the objection at the time of every
member of the Senate Judiciary Committee.
I have spoken many times over the past two years of the
problems caused by the so-called McDade law, 28 U.S.C. § 530B. According
to the Justice Department, the McDade law has delayed important criminal
investigations, prevented the use of effective and traditionally-accepted
investigative techniques, and served as the basis of litigation to
interfere with legitimate federal prosecutions. At a time when we need
federal law enforcement authorities to move quickly to catch those
responsible for the September 11th attacks, and to prevent further attacks
on our country, we can no longer tolerate the drag on federal
investigations and prosecutions caused by this ill-considered legislation.
On September 19th, I introduced S.1437, the
Professional Standards for Government Attorneys Act of 2001, along with
Senators Hatch and Wyden. This bill proposes to modify the McDade law by
establishing a set of rules that clarify the professional standards
applicable to government attorneys. I am delighted that the Administration
recognized the importance of S.1437 for improving federal law enforcement
and combating terrorism, and agreed to its inclusion as section 501of the
USA Act.
The first part of section 501 embodies the traditional
understanding that when lawyers handle cases before a Federal court, they
should be subject to the Federal court’s standards of professional
responsibility, and not to the possibly inconsistent standards of other
jurisdictions. By incorporating this ordinary choice-of-law principle, the
bill preserves the Federal courts’ traditional authority to oversee the
professional conduct of Federal trial lawyers, including Federal
prosecutors. It thus avoids the uncertainties presented by the McDade law,
which potentially subjects Federal prosecutors to State laws, rules of
criminal procedure, and judicial decisions which differ from existing
Federal law.
Another part of section 501 specifically addresses the
situation in Oregon, where a state court ruling has seriously impeded the
ability of Federal agents to engage in undercover operations and other
covert activities. See In re Gatti, 330 Or. 517 (2000). Such activities
are legitimate and essential crime-fighting tools. The Professional
Standards for Government Attorneys Act ensures that these tools will be
available to combat terrorism.
Finally, section 501 addresses the most pressing
contemporary question of government attorney ethics — namely, the
question of which rule should govern government attorneys’
communications with represented persons. It asks the Judicial Conference
of the United States to submit to the Supreme Court a proposed uniform
national rule to govern this area of professional conduct, and to study
the need for additional national rules to govern other areas in which the
proliferation of local rules may interfere with effective Federal law
enforcement. The Rules Enabling Act process is the ideal one for
developing such rules, both because the Federal judiciary traditionally is
responsible for overseeing the conduct of lawyers in Federal court
proceedings, and because this process would best provide the Supreme Court
an opportunity fully to consider and objectively to weigh all relevant
considerations.
The problems posed to Federal law enforcement
investigations and prosecutions by the McDade law are real and urgent. The
Professional Standards for Government Attorneys Act provides a reasonable
and measured alternative: It preserves the traditional role of the State
courts in regulating the conduct of attorneys licensed to practice before
them, while ensuring that Federal prosecutors and law enforcement agents
will be able to use traditional Federal investigative techniques. We need
to pass this corrective legislation before more cases are compromised.
Terrorist Attacks Against Mass Transportation Systems.
Another provision of the USA Act that was not included in the
Administration’ s initial proposal is section 801, which targets acts of
terrorism and other violence against mass transportation systems. Just
last week, a Greyhound bus crashed in crashed in Tennessee after a
deranged passenger slit the driver's throat and then grabbed the steering
wheel, forcing the bus into the oncoming traffic. Six people were killed
in the crash. Because there are currently no federal laws addressing
terrorism of mass transportation systems, however, there may be no federal
jurisdiction over such a case, even if it were committed by suspected
terrorists. Clearly, there is an urgent need for strong criminal
legislation to deter attacks against mass transportation systems. Section
801 will fill this gap.
Cybercrime. The Computer Fraud and Abuse Act, 18 U.S.C.
§ 1030, is the primary federal criminal statute prohibiting computer
frauds and hacking. I worked with Senator Hatch in the last Congress to
make improvements to this law in the Internet Security Act, which passed
the Senate as part of another bill. Our work is included in section 815 of
the USA Act. This section would amend the statute to clarify the
appropriate scope of federal jurisdiction. First, the bill adds a
definition of "loss" to cover any reasonable cost to the victim
in responding to a computer hacker. Calculation of loss is important both
in determining whether the $5,000 jurisdictional hurdle in the statute is
met, and, at sentencing, in calculating the appropriate guideline range
and restitution amount.
Second, the bill amends the definition of
"protected computer," to include qualified computers even when
they are physically located outside of the United States. This
clarification will preserve the ability of the United States to assist in
international hacking cases.
Finally, this section eliminates the current directive
to the Sentencing Commission requiring that all violations, including
misdemeanor violations, of certain provisions of the Computer Fraud and
Abuse Act be punished with a term of imprisonment of at least six months.
Biological Weapons. Borrowing from a bill introduced in
the last Congress by Senator Biden, the USA Act contains a provision in
section 802 to strengthen our federal laws relating to the threat of
biological weapons. Current law prohibits the possession, development, or
acquisition of biological agents or toxins "for use as a
weapon." 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 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. This section also contains a new statute,
18 U.S.C. § 175b, which generally makes it an offense for certain
restricted persons, including non-resident aliens from countries that
support international terrorism, to possess a listed biological agent or
toxin.
Of greater consequence, section 802 defines another
additional offense, punishable by up to 10 years in prison, of possessing
a biological agent, toxin, or delivery system "of a type or in a
quantity that, under the circumstances," is not reasonably justified
by a peaceful purpose. As originally proposed by the Administration, this
provision specifically stated that knowledge of whether the type or
quantity of the agent or toxin was reasonably justified was not an element
of the offense. Thus, although the burden of proof is always on the
government, every person who possesses a biological agent, toxin, or
delivery system was at some level of risk. I am pleased that the
Administration agreed to drop this portion of the provision.
Nevertheless, I remain troubled by the subjectivity of
the substantive standard for violation of this new criminal prohibition,
and question whether it provides sufficient notice under the Constitution.
I also share the concerns of the American Society for Microbiology and the
Association of American Universities that this provision will have a
chilling effect upon legitimate scientific inquiry that offsets any
benefit in protecting against terrorism. While we have tried to prevent
against this by creating an explicit exclusion for "bona fide
research," this provision may yet prove unworkable, unconstitutional,
or both. I urge the Justice Department and the research community to work
together on substitute language that would provide prosecutors with a more
workable tool.
Secret Service Jurisdiction. Two sections of the USA
Act were added at the request of the United States Secret Service, with
the support of the Administration. I was pleased to accommodate the Secret
Service by including these provisions in the bill to expand Electronic
Crimes Task Forces and to clarify the authority of the Secret Service to
investigate computer crimes.
The Secret Service is committed to the development of
new tools to combat the growing areas of financial crime, computer fraud,
and cyberterrorrism. Recognizing a need for law enforcement, private
industry and academia to pool their resources, skills and vision to combat
criminal elements in cyberspace, the Secret Service created the New York
Electronic Crimes Task Force (NYECTF). This highly successful model is
comprised of over 250 individual members, including 50 different Federal,
State and local law enforcement agencies, 100 private companies, and 9
universities. Since its inception in 1995, the NYECTF has successfully
investigated a range of financial and electronic crimes, including credit
card fraud, identity theft, bank fraud, computer systems intrusions, and
e-mail threats against protectees of the Secret Service. Section 105 of
the USA Act authorizes the Secret Service to develop similar task forces
in cities and regions across the country where critical infrastructure may
be vulnerable to attacks from terrorists or other cyber-criminals.
Section 507 of the USA Act gives the Secret Service
concurrent jurisdiction to investigate offenses under 18 U.S.C. § 1030.
relating to fraud and related activity in connection with computers. Prior
to the 1996 amendments to the Computer Fraud and Abuse Act, the Secret
Service was authorized to investigate any and all violations of section
1030, pursuant to an agreement between the Secretary of Treasury and the
Attorney General. The 1996 amendments, however, concentrated Secret
Service jurisdiction on certain specified subsections of section 1030. The
current amendment would return full jurisdiction to the Secret Service and
would allow the Justice and Treasury Departments to decide on the
appropriate work-sharing balance between the two. This will enable the
Secret Service to investigate a wide range of potential White House
network intrusions, as well as intrusions into remote sites (outside of
the White House) that could impact the safety and security of its
protectees, and to continue its missions to protect the nation’s
critical infrastructure and financial payment systems.
Counter-terrorism Fund. The USA Act also authorizes,
for the first time, a counter-terrorism fund in the Treasury of the United
States to reimburse Justice Department for any costs incurred in
connection with the fight against terrorism.
Specifically, this counter-terrorism fund will :
(1) reestablish an office or facility that has been damaged as the
result of any domestic or international terrorism incident; (2) provide
support to counter, investigate, or prosecute domestic or international
terrorism, including paying rewards in connection with these activities;
(3) conduct terrorism threat assessments of Federal agencies; and (4) for
costs incurred in connection with detaining individuals in foreign
countries who are accused of acts of terrorism in violation of United
States law.
I first authored this counter-terrorism fund in the S.
1319, the 21st Century Department of Justice Appropriations Authorization
Act, which Senator Hatch and I introduced in August.
ENHANCED SURVEILLANCE PROCEDURES. The USA Act provides
enhanced surveillance procedures for the investigation of terrorism and
other crimes. The challenge before us has been to strike a reasonable
balance to protect both security and the liberties of our people. In some
respects, the changes made are appropriate and important ones to update
surveillance and investigative procedures in light of new technology and
experience with current law. Yet, in other respects, I have deep concerns
that we may be increasing surveillance powers and the sharing of criminal
justice information without adequate checks on how information may be
handled and without adequate accountability in the form of judicial
review.
The bill contains a number of sensible proposals that
should be not be controversial.
Wiretap Predicates. For example, sections 201 and 202
of the USA Act would add to the list of crimes that may be used as
predicates for wiretaps certain offenses which are specifically tailored
to the terrorist threat. In addition to crimes that relate directly to
terrorism, the list would include crimes of computer fraud and abuse which
are committed by terrorists to support and advance their illegal
objectives.
FISA Roving Wiretaps. The bill, in section 206, would
authorize the use of roving wiretaps in the course of a foreign
intelligence investigation and brings FISA into line with criminal
procedures that allow surveillance to follow a person, rather than
requiring a separate court order identifying each telephone company or
other communication common carrier whose assistance is needed. This is a
matter on which the Attorney General and I reached early agreement. This
is the kind of change that has a compelling justification, because it
recognizes the ease with which targets of investigations can evade
surveillance by changing phones. In fact, the original roving wiretap
authority for use in criminal investigations was enacted as part of the
Electronic Communications Privacy Act (ECPA) in 1986. I was proud to be
the primary Senate sponsor of that earlier law.
Paralleling the statutory rules applicable to criminal
investigations, the formulation I originally proposed made clear that this
roving wiretap authority must be requested in the application before the
FISA court was authorized to order such roving surveillance authority.
Indeed, the Administration agrees that the FISA court may not grant such
authority sua sponte. Nevertheless, we have accepted the Administration’s
formulation of the new roving wiretap authority, which requires the FISA
court to make a finding that the actions of the person whose
communications are to be intercepted could have the effect of thwarting
the identification of a specified facility or place. While no amendment is
made to the statutory directions for what must be included in the
application for a FISA electronic surveillance order, these applications
should include the necessary information to support the FISA court’s
finding that roving wiretap authority is warranted.
Search Warrants. The USA Act, in section 219,
authorizes nationwide service of search warrants in terrorism
investigations. This will allow the judge who is most familiar with the
developments in a fast-breaking and complex terrorism investigation to
make determinations of probable cause, no matter where the property to be
searched is located. This will not only save time by avoiding having to
bring up-to-speed another judge in another jurisdiction where the property
is located, but also serves privacy and Fourth Amendment interests in
ensuring that the most knowledgeable judge makes the determination of
probable cause. The bill, in section 209, also authorizes voice mail
messages to be seized on the authority of a probable cause search warrant
rather than through the more burdensome and time-consuming process of a
wiretap.
Electronic Records. The bill updates the laws
pertaining to electronic records in three primary ways. First, in section
210, the bill authorizes the nationwide service of subpoenas for
subscriber information and expands the list of items subject to subpoena
to include the means and source of payment for the service.
Second, in section 211, the bill equalizes the standard
for law enforcement access to cable subscriber records on the same basis
as other electronic records. The Cable Communications Policy Act, passed
in 1984 to regulate various aspects of the cable television industry, did
not take into account the changes in technology that have occurred over
the last fifteen years. Cable television companies now often provide
Internet access and telephone service in addition to television
programming. This amendment clarifies that a cable company must comply
with the laws governing the interception and disclosure of wire and
electronic communications just like any other telephone company or
Internet service provider. The amendments would retain current standards
that govern the release of customer records for television programming.
Finally, the bill, in section 212, permits, but does
not require, an electronic communications service to disclose the contents
of and subscriber information about communications in emergencies
involving the immediate danger of death or serious physical injury. Under
current law, if an ISP’s customer receives an e-mail death threat from
another customer of the same ISP, and the victim provides a copy of the
communication to the ISP, the ISP is limited in what actions it may take.
On one hand, the ISP may disclose the contents of the forwarded
communication to law enforcement (or to any other third party as it sees
fit). See 18 U.S.C. §2702(b)(3). On the other hand, current law does not
expressly authorize the ISP to voluntarily provide law enforcement with
the identity, home address, and other subscriber information of the user
making the threat. See 18 U.S.C. §2703(c)(1)(B),(C) (permitting
disclosure to government entities only in response to legal process). In
those cases where the risk of death or injury is imminent, the law should
not require providers to sit idly by. This voluntary disclosure, however,
in no way creates an affirmative obligation to review customer
communications in search of such imminent dangers.
Also, under existing law, a provider (even one
providing services to the public) may disclose the contents of a customer’s
communications — to law enforcement or anyone else — in order to
protect its rights or property. See 18 U.S.C. §2702(b)(5). However, the
current statute does not expressly permit a provider voluntarily to
disclose non-content records (such as a subscriber’s login records) to
law enforcement for purposes of self-protection. See 18 U.S.C.
§2703(c)(1)(B). Yet the right to disclose the content of communications
necessarily implies the less intrusive ability to disclose non-content
records. Cf. United States v. Auler, 539 F.2d 642, 646 n.9 (7th Cir. 1976)
(phone company’s authority to monitor and disclose conversations to
protect against fraud necessarily implies right to commit lesser invasion
of using, and disclosing fruits of, pen register device) (citing United
States v. Freeman, 524 F.2d 337, 341 (7th Cir. 1975)). Moreover, as a
practical matter providers must have the right to disclose the facts
surrounding attacks on their systems. When a telephone carrier is
defrauded by a subscriber, or when an ISP’s authorized user launches a
network intrusion against his own ISP, the provider must have the legal
ability to report the complete details of the crime to law enforcement.
The bill clarifies that service providers have the statutory authority to
make such disclosures.
PEN REGISTERS. There is consensus that the existing
legal procedures for pen register and trap-and-trace authority are
antiquated and need to be updated. I have been proposing ways to update
the pen register and trap and trace statutes for several years, but not
necessarily in the same ways as the Administration initially proposed. In
fact, in 1998, I introduced with then-Senator Ashcroft, the E-PRIVACY Act,
S. 2067, which proposed changes in the pen register laws. In 1999, I
introduced the E-RIGHTS Act, S. 934, also with proposals to update the pen
register laws.
Again, in the last Congress, I introduced the Internet
Security Act, S. 2430, on April 13, 2000, that proposed (1) changing the
pen register and trap and trace device law to give nationwide effect to
pen register and trap and trace orders obtained by Government attorneys
and obviate the need to obtain identical orders in multiple federal
jurisdictions; (2) clarifying that such devices can be used for computer
transmissions to obtain electronic addresses, not just on telephone lines;
and (3) as a guard against abuse, providing for meaningful judicial review
of government attorney applications for pen registers and trap and trace
devices.
As the outline of my earlier legislation suggests, I
have long supported modernizing the pen register and trap and trace device
laws by modifying the statutory language to cover the use of these orders
on computer transmissions; to remove the jurisdictional limits on service
of these orders; and to update the judicial review procedure, which,
unlike any other area in criminal procedure, bars the exercise of judicial
discretion in reviewing the justification for the order. The USA Act, in
section 216, updates the pen register and trap and trace laws only in two
out of three respects I believe are important, and without allowing
meaningful judicial review. Yet, we were able to improve the
Administration’s initial proposal, which suffered from the same problems
as the provision that was hastily taken up and passed by the Senate, by
voice vote, on September, 13, 2001, as an amendment to the Commerce
Justice State Appropriations Act.
Nationwide Service. The existing legal procedures for
pen register and trap-and-trace authority require service of individual
orders for installation of pen register or trap and trace device on the
service providers that carried the targeted communications. Deregulation
of the telecommunications industry has had the consequence that one
communication may be carried by multiple providers. For example, a
telephone call may be carried by a competitive local exchange carrier,
which passes it at a switch to a local Bell Operating Company, which
passes it to a long distance carrier, which hands it to an incumbent local
exchange carrier elsewhere in the U.S., which in turn may finally hand it
to a cellular carrier. If these carriers do not pass source information
with each call, identifying that source may require compelling information
from a host of providers located throughout the country.
Under present law, a court may only authorize the
installation of a pen register or trap device "within the
jurisdiction of the court." As a result, when one provider indicates
that the source of a communication is a carrier in another district, a
second order may be necessary. The Department of Justice has advised, for
example, that in 1996, a hacker (who later turned out to be launching his
attacks from a foreign country) extensively penetrated computers belonging
to the Department of Defense. This hacker was dialing into a computer at
Harvard University and used this computer as an intermediate staging point
in an effort to conceal his location and identity. Investigators obtained
a trap and trace order instructing the phone company, Nynex, to trace
these calls, but Nynex could only report that the communications were
coming to it from a long-distance carrier, MCI. Investigators then applied
for a court order to obtain the connection information from MCI, but since
the hacker was no longer actually using the connection, MCI could not
identify its source. Only if the investigators could have served MCI with
a trap and trace order while the hacker was actively on-line could they
have successfully traced back and located him.
In another example provided by the Department of
Justice, investigators encountered similar difficulties in attempting to
track Kevin Mitnick, a criminal who continued to hack into computers
attached to the Internet despite the fact that he was on supervised
release for a prior computer crime conviction. The FBI attempted to trace
these electronic communications while they were in progress. In order to
evade arrest, however, Mitnick moved around the country and used cloned
cellular phones and other evasive techniques. His hacking attacks would
often pass through one of two cellular carriers, a local phone company,
and then two Internet service providers. In this situation, where
investigators and service providers had to act quickly to trace Mitnick in
the act of hacking, only many repeated attempts – accompanied by an
order to each service provider – finally produced success. Fortunately,
Mitnick was such a persistent hacker that he gave law enforcement many
chances to complete the trace.
This duplicative process of obtaining a separate order
for each link in the communications chain can be quite time-consuming, and
it serves no useful purpose since the original court has already
authorized the trace. Moreover, a second or third order addressed to a
particular carrier that carried part of a prior communication may prove
useless during the next attack: in computer intrusion cases, for example,
the target may use an entirely different path (i.e., utilize a different
set of intermediate providers) for his or her subsequent activity.
The bill would modify the pen register and trap and
trace statutes to allow for nationwide service of a single order for
installation of these devices, without the necessity of returning to court
for each new carrier. I support this change.
Second, the language of the existing statute is
hopelessly out of date and speaks of a pen register or trap and trace
"device" being "attached" to a telephone
"line." However, the rapid computerization of the telephone
system has changed the tracing process. No longer are such functions
normally accomplished by physical hardware components attached to
telephone lines. Instead, these functions are typically performed by
computerized collection and retention of call routing information passing
through a communications system.
The statute's definition of a "pen register"
as a "device" that is "attached" to a particular
"telephone line" is particularly obsolete when applied to the
wireless portion of a cellular phone call, which has no line to which
anything can be attached. While courts have authorized pen register orders
for wireless phones based on the notion of obtaining access to a
"virtual line," updating the law to keep pace with current
technology is a better course.
Moreover, the statute is ill-equipped to facilitate the
tracing of communications that take place over the Internet. For example,
the pen register definition refers to telephone "numbers" rather
than the broader concept of a user’s communications account. Although
pen register and trap orders have been obtained for activity on computer
networks, Internet service providers have challenged the application of
the statute to electronic communications, frustrating legitimate
investigations. I have long supported updating the statute by removing
words such as "numbers ... dialed" that do not apply to the way
that pen/trap devices are used and to clarify the statute’s proper
application to tracing communications in an electronic environment, but in
a manner that is technology neutral and does not capture the content of
communications. That being said, I have been concerned about the FBI and
Justice Department’s insistence over the past few years that the
pen/trap devices statutes be updated with broad, undefined terms that
continue to flame concerns that these laws will be used to intercept
private communications content.
The Administration’s initial pen/trap device proposal
added the terms "routing" and "addressing" to the
definitions describing the information that was authorized for
interception on the low relevance standard under these laws. The
Administration and the Department of Justice flatly rejected my suggestion
that these terms be defined to respond to concerns that the new terms
might encompass matter considered content, which may be captured only upon
a showing of probable cause, not the mere relevancy of the pen/trap
statute. Instead, the Administration agreed that the definition should
expressly exclude the use of pen/trap devices to intercept
"content," which is broadly defined in 18 U.S.C. 2510(8).
While this is an improvement, the FBI and Justice
Department are short-sighted in their refusal to define these terms. We
should be clear about the consequence of not providing definitions for
these new terms in the pen/trap device statutes. These terms will be
defined, if not by the Congress, then by the courts in the context of
criminal cases where pen/trap devices have been used and challenged by
defendants. If a court determines that a pen register has captured
"content," which the FBI admits such devices do, in violation of
the Fourth Amendment, suppression may be ordered, not only of the pen
register evidence by any other evidence derived from it. We are leaving
the courts with little or no guidance of what is covered by
"addressing" or "routing."
The USA Act also requires the government to use
reasonably available technology that limits the interceptions under the
pen/trap device laws "so as not to include the contents of any wire
or electronic communications." This limitation on the technology used
by the government to execute pen/trap orders is important since, as the
FBI advised me June, 2000, pen register devices "do capture all
electronic impulses transmitted by the facility on which they are
attached, including such impulses transmitted after a phone call is
connected to the called party." The impulses made after the call is
connected could reflect the electronic banking transactions a caller
makes, or the electronic ordering from a catalogue that a customer makes
over the telephone, or the electronic ordering of a prescription drug.
This transactional data intercepted after the call is
connected is "content." As the Justice Department explained in
May, 1998 in a letter to House Judiciary Committee Chairman Henry Hyde,
"the retrieval of the electronic impulses that a caller necessarily
generated in attempting to direct the phone call" does not constitute
a "search" requiring probable cause since "no part of the
substantive information transmitted after the caller had reached the
called party" is obtained. But the Justice Department made clear that
"all of the information transmitted after a phone call is connected
to the called party ... is substantive in nature. These electronic
impulses are the ‘contents’ of the call: They are not used to direct
or process the call, but instead convey certain messages to the
recipient."
When I added the direction on use of reasonably
available technology (codified as 18 U.S.C. 3121(c)) to the pen register
statute as part of the Communications Assistance for Law Enforcement Act (CALEA)
in 1994, I recognized that these devices collected content and that such
collection was unconstitutional on the mere relevance standard.
Nevertheless, the FBI advised me in June, 2000, that pen register devices
for telephone services "continue to operate as they have for
decades" and that "there has been no change ... that would
better restrict the recording or decoding of electronic or other impulses
to the dialing and signaling information utilized in call
processing." Perhaps, if there were meaningful judicial review and
accountability, the FBI would take the statutory direction more seriously
and actually implement it.
Judicial Review. Due in significant part to the fact
that pen/trap devices in use today collect "content," I have
sought in legislation introduced over the past few years to update and
modify the judicial review procedure for pen register and trap and trace
devices. Existing law requires an attorney for the government to certify
that the information likely to be obtained by the installation of a pen
register or trap and trace device will be relevant to an ongoing criminal
investigation. The court is required to issue an order upon seeing the
prosecutor’s certification. The court is not authorized to look behind
the certification to evaluate the judgement of the prosecutor.
I have urged that government attorneys be required to
include facts about their investigations in their applications for
pen/trap orders and allow courts to grant such orders only where the facts
support the relevancy of the information likely to be obtained by the
orders. This is not a change in the applicable standard, which would
remain the very low relevancy standard. Instead, this change would simply
allow the court to evaluate the facts presented by a prosecutor, and, if
it finds that the facts support the government’s assertion that the
information to be collected will be relevant, issue the order. Although
this change will place an additional burden on law enforcement, it will
allow the courts a greater ability to assure that government attorneys are
using such orders properly.
Some have called this change a "roll-back" in
the statute, as if the concept of allowing meaningful judicial review was
an extreme position. To the contrary, this is a change that the Clinton
Administration supported in legislation transmitted to the Congress last
year. This is a change that the House Judiciary Committee also supported
last year. In the Electronic Communications Privacy Act, H.R. 5018, that
Committee proposed that before a pen/trap device "could be ordered
installed, the government must first demonstrate to an independent judge
that ‘specific and articulable facts reasonably indicate that a crime
has been, is being, or will be committed, and information likely to be
obtained by such installation and use ... is relevant to an investigation
of that crime." (Report 106-932, 106th Cong. 2d Sess., Oct. 4, 2000,
p. 13). Unfortunately, the Bush Administration has taken a contrary
position and has rejected this change in the judicial review process.
COMPUTER TRESPASSER. Currently, an owner or operator of
a computer that is accessed by a hacker as a means for the hacker to reach
a third computer, cannot simply consent to law enforcement monitoring of
the computer. Instead, because the owner or operator is not technically a
party to the communication, law enforcement needs wiretap authorization
under Title III to conduct such monitoring. I have long been interested in
closing this loophole. Indeed, when I asked about this problem, the FBI
explained to me in June, 2000, that:
"This anomaly in the law creates an untenable
situation whereby providers are sometimes forced to sit idly by as they
witness hackers enter and, in some situations, destroy or damage their
systems and networks while law enforcement begins the detailed process of
seeking court authorization to assist them. In the real world, the
situation is akin to a homeowner being forced to helplessly watch a
burglar or vandal while police seek a search warrant to enter the
dwelling."
I therefore introduced as part of the Internet Security
Act, S. 2430, in 2000, an exception to the wiretap statute that would
explicitly permit such monitoring without a wiretap if prior consent is
obtained from the person whose computer is being hacked through and used
to send "harmful interference to a lawfully operating computer
system."
The Administration initially proposed a different
formulation of the exception that would have allowed an owner/operator of
any computer connected to the Internet to consent to FBI wiretapping of
any user who violated a workplace computer use policy or online service
term of service and was thereby an "unauthorized" user. The
Administration’s proposal was not limited to computer hacking offenses
under 18 U.S.C. 1030 or to conduct that caused harm to a computer or
computer system. The Administration rejected these refinements to their
proposed wiretap exception, but did agree, in section 217 of the USA Act,
to limit the authority for wiretapping with the consent of the
owner/operator to communications of unauthorized users without an existing
subscriber or other contractual relationship with the owner/operator.
SHARING CRIMINAL JUSTICE INFORMATION. The USA Act will
make significant changes in the sharing of confidential criminal justice
information with various Federal agencies. For those of us who have been
concerned about the leaks from the FBI that can irreparably damage
reputations of innocent people and frustrate investigations by alerting
suspects to flee or destroy material evidence, the Administration’s
insistence on the broadest authority to disseminate such information,
without any judicial check, is disturbing. Nonetheless, I believe we have
improved the Administration’s initial proposal in responsible ways. Only
time will tell whether the improvements we were able to reach agreement on
are sufficient.
At the outset, we should be clear that current law
allows the sharing of confidential criminal justice information, but with
close court supervision. Federal Rule of Criminal Procedure 6(e) provides
that matters occurring before a grand jury may be disclosed only to an
attorney for the government, such other government personnel as are
necessary to assist the attorney and another grand jury. Further
disclosure is also allowed as specifically authorized by a court.
Similarly, section 2517 of title 18, United States Code
provides that wiretap evidence may be disclosed in testimony during
official proceedings and to investigative or law enforcement officers to
the extent appropriate to the proper performance of their official duties.
In addition, the wiretap law allows disclosure of wiretap evidence
"relating to offenses other than specified in the order" when
authorized or approved by a judge. Indeed, just last year, the Justice
Department assured us that "law enforcement agencies have authority
under current law to share title III information regarding terrorism with
intelligence agencies when the information is of overriding importance to
the national security." (Letter from Robert Raben, Assistant Attorney
General, September 28, 2000).
For this reason, and others, the Justice Department at
the time opposed an amendment proposed by Senators Kyl and Feinstein to S.
2507, the "Intelligence Authorization Act for FY 2001 that would have
allowed the sharing of foreign intelligence and counterintelligence
information collected from wiretaps with the intelligence community. I
deferred to the Justice Department on this issue and sought changes in the
proposed amendment to address the Department's concern that this provision
was not only unnecessary but also "could have significant
implications for prosecutions and the discovery process in
litigation", "raises significant issues regarding the sharing
with intelligence agencies of information collected about United States
persons" and jeopardized "the need to protect equities relating
to ongoing criminal investigations." In the end, the amendment was
revised to address the Justice Department's concerns and passed the Senate
as a free-standing bill, S. S. 3205, the Counterterrorism Act of 2000. The
House took no action on this legislation.
Disclosure of Wiretap Information. The Administration
initially proposed adding a sweeping provision to the wiretap statute that
broadened the definition of an "investigative or law enforcement
officer" who may receive disclosures of information obtained through
wiretaps to include federal law enforcement, intelligence, national
security, national defense, protective and immigration personnel and the
President and Vice President. This proposal troubled me because
information intercepted by a wiretap has enormous potential to infringe
upon the privacy rights of innocent people, including people who are not
even suspected of a crime and merely happen to speak on the telephone with
the targets of an investigation. For this reason, the authority to
disclose information obtained through a wiretap has always been carefully
circumscribed in law.
While I recognize that appropriate officials in the
executive branch of government should have access to wiretap information
that is important to combating terrorism or protecting the national
security, I proposed allowing such disclosures where specifically
authorized by a court order. Further, with respect to information relating
to terrorism, I proposed allowing the disclosure without a court order as
long as the judge who authorized the wiretap was notified as soon as
practicable after the fact. This would have provided a check against
abuses of the disclosure authority by providing for review by a neutral
judicial official. At the same time, there was a little likelihood that a
judge would deny any requests for disclosure in cases where it was
warranted.
On Sunday, September 30, the Administration agreed to
my proposal, but within two days, it backed away from its agreement. I
remain concerned that the resulting provision will allow the
unprecedented, widespread disclosure of this highly sensitive information
without any notification to or review by the court that authorizes and
supervises the wiretap. This is clearly an area where our Committee will
have to exercise close oversight to make sure that the newly-minted
disclosure authority is not being abused.
The Administration offered three reasons for reneging
on the original deal. First, they claimed that the involvement of the
court would inhibit Federal investigators and attorneys from disclosing
information needed by intelligence and national security officials.
Second, they said the courts might not have adequate security and
therefore should not be told that information was disclosed for
intelligence or national security purposes. And third, they said the
President’s constitutional powers under Article II give him authority to
get whatever foreign intelligence he needs to exercise his national
security responsibilities.
I believe these concerns are unfounded. Federal
investigators and attorneys will recognize the need to disclose
information relevant to terrorism investigations. Courts can be trusted to
keep secrets and recognize the needs of the President.
Current law requires that such information be used only
for law enforcement purpose. This provides an assurance that highly
intrusive invasions of privacy are confined to the purpose for which they
have been approved by a court, based on probable cause, as required by the
Fourth Amendment. Current law calls for minimization procedures to ensure
that the surveillance does not gather information about private and
personal conduct and conversations that are not relevant to the criminal
investigation.
When the Administration reneged on the agreement
regarding court supervision, we turned to other safeguards and were more
successful in changing other questionable features of the Administration’s
bill. The Administration accepted my proposal to strike the term
"national security" from the description of wiretap information
that may be shared throughout the executive branch and replace it with
"foreign intelligence" information. This change is important in
clarifying what information may be disclosed because the term
"foreign intelligence" is specifically defined by statute
whereas "national security" is not.
Moreover, the rubric of "national security"
has been used to justify some particularly unsavory activities by the
government in the past. We must have at least some assurance that we are
not embarked on a course that will lead to a repetition of these abuses
because the statute will now more clearly define what type of information
is subject to disclosure. In addition, Federal officials who receive the
information may use it only as necessary to the conduct of their official
duties. Therefore, any disclosure or use outside the conduct of their
official duties remains subject to all limitations applicable to their
retention and dissemination of information of the type of information
received. This includes the Privacy Act, the criminal penalties for
unauthorized disclosure of electronic surveillance information under
chapter 119 of title 18, and the contempt penalties for unauthorized
disclosure of grand jury information. In addition, the Attorney General
must establish procedures for the handling of information that identifies
a United States person, such as the restrictions on retention and
dissemination of foreign intelligence and counterintelligence information
pertaining to United States persons currently in effect under Executive
Order 12333.
While these safeguards do not fully substitute for
court supervision, they can provide some assurance against misuse of the
private, personal, and business information about Americans that is
acquired in the course of criminal investigations and that may flow more
widely in the intelligence, defense, and national security worlds.
Disclosure of Grand Jury Information. The wiretap
statute was not the only provision in which the Administration sought
broader authority to disclose highly sensitive investigative information.
It also proposed broadening Rule 6(e) of the Federal Rules of Criminal
Procedure to allow the disclosure of information relating to terrorism and
national security obtained from grand jury proceedings to a broad range of
officials in the executive branch of government. As with wiretaps, few
would disagree that information learned in a criminal investigation that
is necessary to combating terrorism or protecting the national security
ought to be shared with the appropriate intelligence and national security
officials. The question is how best to regulate and limit such disclosures
so as not to compromise the important policies of secrecy and
confidentiality that have long applied to grand jury proceedings.
I proposed that we require judicial review of requests
to disclose terrorism and foreign intelligence information to officials in
the executive branch beyond those already authorized to receive such
disclosures. Once again, the Administration agreed to my proposal on
Sunday, September 30, but reneged within two days. As a result, the bill
does not provide for any judicial supervision of the new authorization for
dissemination of grand jury information throughout the executive branch.
The bill does contain the safeguards that I have discussed with respect to
law enforcement wiretap information. However, as with the new wiretap
disclosure authority, I am troubled by this issue and plan to exercise the
close oversight of the Judiciary Committee to make sure it is not being
abused.
Foreign Intelligence Information Sharing. The
Administration also sought a provision that would allow the sharing of
foreign intelligence information throughout the executive branch of the
government notwithstanding any current legal prohibition that may prevent
or limit its disclosure. I have resisted this proposal more strongly than
anything else that still remains in the bill. What concerns me is that it
is not clear what existing prohibitions this provision would affect beyond
the grand jury secrecy rule and the wiretap statute, which are already
covered by other provisions in the bill. Even the Administration, which
wrote this provision, has not been able to provide a fully satisfactory
explanation of its scope.
If there are specific laws that the Administration
believes impede the necessary sharing of information on terrorism and
foreign intelligence within the executive branch, we should address those
problems through legislation that is narrowly targeted to those statutes.
Tacking on a blunderbuss provision whose scope we do not fully understand
can only lead to consequences that we cannot foresee. Further, I am
concerned that such legislation, broadly authorizing the secret sharing of
intelligence information throughout the executive branch, will fuel the
unwarranted fears and dark conspiracy theories of Americans who do not
trust their government. This was another provision on which the
Administration reneged on its agreement with me; it agreed to drop it on
September 30, but resurrected it within two days, insisting that it remain
in the bill. I have been able to mitigate its potential for abuse somewhat
by adding the same safeguards that apply to disclosure of law enforcement
wiretap and grand jury information.
"SNEAK AND PEEK" SEARCH WARRANTS. Another
issue that has caused me serious concern relates to the Administration’s
proposal for so-called "sneak and peek" search warrants. The
House Judiciary Committee dropped this proposal entirely from its version
of the legislation. Normally, when law enforcement officers execute a
search warrant, they must leave a copy of the warrant and a receipt for
all property seized at the premises searched. Thus, even if the search
occurs when the owner of the premises is not present, the owner will
receive notice that the premises have been lawfully searched pursuant to a
warrant rather than, for example, burglarized.
Two circuit courts of appeal, the Second and the Ninth
Circuits, have recognized a limited exception to this requirement. When
specifically authorized by the issuing judge or magistrate, the officers
may delay providing notice of the search to avoid compromising an ongoing
investigation or for some other good reason. However, this authority has
been carefully circumscribed.
First, the Second and Ninth Circuit cases have dealt
only with situations where the officers search a premises without seizing
any tangible property. As the Second Circuit explained, such searches are
"less intrusive than a conventional search with physical seizure
because the latter deprives the owner not only of privacy but also of the
use of his property." United States v. Villegas , 899 F.2d 1324, 1337
(2d Cir. 1990).
Second, the cases have required that the officers
seeking the warrant must show good reason for the delay. Finally, while
the courts have allowed notice of the search may be delayed, it must be
provided within a reasonable period thereafter, which should generally be
no more than seven days. The reasons for these careful limitations were
spelled out succinctly by Judge Sneed of the Ninth Circuit: "The mere
thought of strangers walking through and visually examining the center of
our privacy interest, our home, arouses our passion for freedom as does
nothing else. That passion, the true source of the Fourth Amendment,
demands that surreptitious entries be closely circumscribed." United
States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).
The Administration’s original proposal would have
ignored some of the key limitations created by the caselaw for sneak and
peek search warrants. First, it would have broadly authorized officers not
only to conduct surreptitious searches, but also to secretly seize any
type of property without any additional showing of necessity. This type of
warrant, which has never been addressed by a published decision of a
federal appellate court, has been referred to in a law review article
written by an FBI agent as a "sneak and steal" warrant. See K.
Corr, "Sneaky But Lawful: The Use of Sneak and Peek Search
Warrants," 43 U. Kan. L. Rev. 1103, 1113 (1995). Second, the proposal
would simply have adopted the procedural requirements of 18 U.S.C.
§ 2705 for providing delayed notice of a wiretap. Among other
things, this would have extended the permissible period of delay to a
maximum of 90 days, instead of the presumptive seven-day period provided
by the caselaw on sneak and peek warrants.
I was able to make significant improvements in the
Administration’s original proposal that will help to ensure that the
government’s authority to obtain sneak and peek warrants is not abused.
First, the provision that is now in section 213 of the bill prohibits the
government from seizing any tangible property or any wire or electronic
communication or stored electronic information unless it makes a showing
of reasonable necessity for the seizure. Thus, in contrast to the
Administration’s original proposal, the presumption is that the warrant
will authorize only a search unless the government can make a specific
showing of additional need for a seizure. Second, the provision now
requires that notice be given within a reasonable time of the execution of
the warrant rather than giving a blanket authorization for up to a 90-day
delay. What constitutes a reasonable time, of course, will depend upon the
circumstances of the particular case. But I would expect courts to be
guided by the teachings of the Second and the Ninth Circuits that, in the
ordinary case, a reasonable time is no more than seven days.
FISA. Several changes in the Foreign Intelligence
Surveillance Act (FISA) are designed to clarify technical aspects of the
statutory framework and take account of experience in practical
implementation. These changes are not controversial, and they will
facilitate the collection of intelligence for counterterrorism and
counterintelligence purposes. Other changes are more significant and
required careful evaluation and revision of the Administration’s
proposals.
Duration of Surveillance. The USA Act, in section 207,
changes the duration of electronic surveillance under FISA in cases of an
agent of a foreign power, other than a United States persons, who acts in
the United States as an officer or employee of a foreign power or as a
member of an international terrorist group. Current law limits court
orders in these cases to 90 days, the same duration as for United States
persons. Experience indicates, however, that after the initial period has
confirmed probable cause that the foreign national meets the statutory
standard, court orders are renewed repeatedly and the 90-day renewal
becomes an unnecessary procedural for investigators taxed with far more
pressing duties.
The Administration proposed that the period of
electronic surveillance be changed from 90 days to one year in these
cases. This proposal did not ensure adequate review after the initial
stage to ensure that the probable cause determination remained justified
over time. Therefore, the bill changes the initial period of the
surveillance 90 to 120 days and changes the period for extensions from 90
days to one year. The initial 120-day period provides for a review of the
results of the surveillance or search directed at an individual before
one-year extensions are requested. These changes do not affect
surveillance of a United States person.
The bill also changes the period for execution of an
order for physical search under FISA from 45 to 90 days. This change
applies to United States persons as well as foreign nationals. Experience
since physical search authority was added to FISA in 1994 indicates that
45 days is frequently not long enough to plan and carry out a covert
physical search. There is no change in the restrictions which provide that
United States persons may not be the targets of search or surveillance
under FISA unless a judge finds probable cause to believe that they are
agents of foreign powers who engage in specified international terrorist,
sabotage, or clandestine intelligence activities that may involve a
violation of the criminal statutes of the United States.
FISA Judges. The bill, in section 208, seeks to ensure
that the special court established under FISA has sufficient judges to
handle the workload. While changing the duration of orders and extensions
will reduce the number of cases in some categories, the bill retains the
court’s role in pen register and trap and trace cases and expands the
court’s responsibility for issuing orders for records and other tangible
items needed for counterintelligence and counter terrorism investigations.
Upon reviewing the court’s requirements, the Administration requested an
increase in the number of federal district judges designated for the court
from seven to 11 of whom no less than 3 shall reside within 20 miles of
the District of Columbia. The latter provision ensures that more than one
judge is available to handle cases on short notice and reduces the need to
invoke the alternative of Attorney General approval under the emergency
authorities in FISA.
Agent of a Foreign Power Standard. Other changes in
FISA and related national security laws are more controversial. In several
areas, the bill reflects a serious effort to accommodate the requests for
expanded surveillance authority with the need for safeguards against
misuse, especially the gathering of intelligence about the lawful
political or commercial activities of Americans. One of the most difficult
issues was whether to eliminate the existing statutory "agent of a
foreign power" standards for surveillance and investigative
techniques that raise important privacy concerns, but not at the level
that the Supreme Court has held to require a court order and a probable
cause finding under the Fourth Amendment. These include pen register and
trap and trace devices, access to business records and other tangible
items held by third parties, and access to records that have statutory
privacy protection. The latter include telephone, bank, and credit
records.
The "agent of a foreign power" standard in
existing law was designed to ensure that the FBI and other intelligence
agencies do not use these surveillance and investigative methods to
investigate the lawful activities of Americans in the name of an undefined
authority to collect foreign intelligence or counterintelligence
information. The law has required a showing of reasonable suspicion, less
than probable cause, to believe that a United States person is an
"agent of a foreign power" engaged in international terrorism or
clandestine intelligence activities.
However, the "agent of a foreign power"
standard is more stringent than the standard under comparable criminal law
enforcement procedures which require only a showing of relevance to a
criminal investigation. The FBI’s experience under existing laws since
they were enacted at various time over the past 15 years has been that, in
practice, the requirement to show reasonable suspicion that a person is an
"agent of a foreign power" has been almost as burdensome as the
requirement to show probable cause required by the Fourth Amendment for
more intrusive techniques. The FBI has made a clear case that a relevance
standard is appropriate for counterintelligence and counterterrorism
investigations, as well as for criminal investigations.
The challenge, then, was to define those
investigations. The alternative proposed by the Administration was to
cover any investigation to obtain foreign intelligence information. This
was extremely broad, because the definition includes any information with
respect to a foreign power that relates to, and if concerning a United
States person is necessary to, the national defense or the security of the
United States or the conduct of the foreign affairs of the United States.
This goes far beyond FBI counterintelligence and counterterrorism
requirements. Instead, the bill requires that use of the surveillance
technique or access to the records concerning a United States person be
relevant to an investigation to protect against international terrorism or
clandestine intelligence activities.
In addition, an investigation of a United States person
may not be based solely on activities protected by the First Amendment.
This framework applies to pen registers and trap and trace under section
215, access to records and other items under section 215, and the national
security authorities for access to telephone, bank, and credit records
under section 506. Lawful political dissent and protest by American
citizens against the government may not be the basis for FBI
counterintelligence and counterterrorism investigations under these
provisions.
A separate issue for pen registers and trap and trace
under FISA is whether the court should have the discretion to make the
decision on relevance. The Administration has insisted on a certification
process. I discussed this issue as it comes up in the criminal procedures
for pen registers and trap and trace under title 18, and my concerns apply
to the FISA procedures as well.
The Purpose of FISA. The most controversial change in
FISA requested by the Administration was the proposal to allow
surveillance and search when "a purpose" is to obtain foreign
intelligence information. Current law requires that the secret procedures
and different probable cause standards under FISA be used only if a
high-level executive official certifies that "the purpose" is to
obtain foreign intelligence formation. The Administration’s aim was to
allow FISA surveillance and search for law enforcement purposes, so long
as there was at least some element of a foreign intelligence purpose. This
proposal raised constitutional concerns, which were addressed in a legal
opinion provided by the Justice Department, which I insert in the record
at the end of my statement.
The Justice Department opinion did not defend the
constitutionality of the original proposal. Instead, it addressed a
suggestion made by Senator Feinstein to the Attorney General at the
Judiciary Committee hearing to change "the purpose" to "a
significant purpose." No matter what statutory change is made even
the Department concedes that the court’s may impose a constitutional
requirement of "primary purpose" based on the appellate court
decisions upholding FISA against constitutional challenges over the past
20 years.
Section 218 of the bill adopts "significant
purpose," and it will be up to the courts to determine how far law
enforcement agencies may use FISA for criminal investigation and
prosecution beyond the scope of the statutory definition of "foreign
intelligence information."
In addition, I proposed and the Administration agreed
to an additional provision in Section 505 that clarifies the boundaries
for consultation and coordination between officials who conduct FISA
search and surveillance and Federal law enforcement officials including
prosecutors. Such consultation and coordination is authorized for the
enforcement of laws that protect against international terrorism,
clandestine intelligence activities of foreign agents, and other grave
foreign threats to the nation. Protection against these foreign-based
threats by any lawful means is within the scope of the definition of
"foreign intelligence information," and the use of FISA to
gather evidence for the enforcement of these laws was contemplated in the
enactment of FISA. The Justice Department’s opinion cites relevant
legislative history from the Senate Intelligence Committee’s report in
1978, and there is comparable language in the House report. .
IMMIGRATION. The Administration initially proposed that
the Attorney General be authorized to detain any alien indefinitely upon
certification of suspicion to links to terrorist activities or
organizations. Under close questioning by both Senator Kennedy and Senator
Specter at the Committee hearing on September 25, the Attorney General
said that his proposal was intended only to allow the government to hold
an alien suspected of terrorist activity while deportation proceedings
were ongoing. In response to a question by Senator Specter, the Attorney
General said: "Our intention is to be able to detain individuals who
are the subject of deportation proceedings on other grounds, to detain
them as if they were the subject of deportation proceedings on
terrorism." The Justice Department, however, continued to insist on
broader authority, including the power to detain even if the alien was
found not to be deportable.
I remain concerned about the provision, in section 412,
but I believe that it is has been improved from the original proposal
offered by the Administration. First, the Justice Department must now
charge an alien with an immigration or criminal violation within seven
days of taking custody, and the Attorney General’s certification of an
alien under this section is subject to judicial review. Second, if an
alien is found not to be removable, he must be released from custody.
Third, the Attorney General can only delegate the power to certify an
alien to the Deputy Attorney General, ensuring greater accountability and
preventing the certification decision from being made by low-level
officials. Despite these improvements, I would have preferred that this
provision not be included, and I would urge the Attorney General and his
successors to employ great discretion in using this new power.
In addition, the Administration initially proposed a
sweeping definition of terrorist activity and new powers for the Secretary
of State to designate an organization as a terrorist organization for
purposes of immigration law. We were able to work with the Administration
to refine this definition to limit its application to individuals who had
innocent contacts with non-designated organizations. We also limited the
retroactive effect of these new definitions. If an alien solicited funds
or membership, or provided material support for an organization that was
not designated at that time by the Secretary of State, the alien will have
the opportunity to show that he did not know and should have known that
his acts would further the organization’s terrorist activity. This is
substantially better than the administration’s proposal, which by its
terms, would have empowered the INS to deport someone who raised money for
the African National Congress in the 1980s.
Throughout our negotiations on these issues, Senator
Kennedy provided steadfast leadership. Although neither of us are pleased
with the final product, it is far better than it would have been without
his active involvement.
TRADE SANCTIONS. I was disappointed that the
Administration’s initial proposal authorizing the President to impose
unilateral food and medical sanctions would have undermined a law we
passed last year with overwhelming bipartisan support.
Under that law, the President already has full
authority to impose unilateral food and medicine sanctions during this
crisis because of two exceptions built into the law that apply to our
current situation. Nevertheless, the Administration sought to undo this
law and obtain virtually unlimited authority in the future to impose food
and medicine embargoes, without making any effort for a multi-lateral
approach in cooperation with other nations. Absent such a multi-lateral
approach, other nations would be free to step in immediately and take over
business from American firms and farmers that they are unilaterally barred
from pursuing.
Over 30 farm and export groups, including the American
Farm Bureau Federation, the Grocery Manufacturers of America, the National
Farmers Union, and the U.S. Dairy Export Council, wrote to me and
explained that the Administration proposal would "not achieve its
intended policy goal."
I worked with Senator Enzi, and other Senators, on
substitute language to give the Administration the tools it needs in this
crisis. This substitute has been carefully crafted to avoid needlessly
hurting American farmers in the future, yet it will assure that the U.S.
can engage in effective multilateral sanctions.
This bipartisan agreement limits the authority in the
bill to existing laws and executive orders, which give the President full
authority regarding this conflict, and grants authority for the President
to restrict exports of agricultural products, medicine or medical devices.
I continue to agree with then-Senator Ashcroft, who argued in 1999 that
unilateral U.S. food and medicine sanctions simply do not work when he
introduced the "Food and Medicine for the World Act." As
recently as October 2000, then-Senator Ashcroft pointed out how broad,
unilateral embargoes of food or medicine are often counterproductive. Many
Republican and Democratic Senators made it clear just last year that the
U.S. should work with other countries on food and medical sanctions so
that the sanctions will be effective in hurting our enemies, instead of
just hurting the U.S. I am glad that with Senator Enzi’s help, we were
able to make changes in the trade sanctions provision to both protect our
farmers and help the President during this crisis.
MONEY LAUNDERING. Title III of the USA Act consists of
a bipartisan bill that was reported out of the Banking Committee on
October 4, 2001. I commend the Chairman and Ranking Member of that
Committee, Senators Sarbanes and Gramm, for working together to produce a
balanced and effective package of measures to combat international money
laundering and the financing of terrorism.
I am pleased that the Chairman and Ranking Member of
the Banking Committee agreed to our inclusion in the managers’ amendment
of a small change to another provision of title III, section 319, relating
to forfeiture of funds in United States interbank accounts. As reported by
the Banking Committee, this provision included language suggesting that in
a criminal case, the government may have authority to seek a pretrial
restraining order of substitute assets. In fact, as all but one of the
circuit courts to consider the issue have held, the government has no such
authority. The managers’ amendment strikes the offending language from
section 319.
Another provision added as part of the Banking
Committee title – section 351 – is far more troubling. Section 351
creates a new Bank Secrecy Act offense involving the bulk smuggling of
more than $10,000 in currency in any conveyance, article of luggage or
merchandise or container, either into or out of the United States. The
obvious purpose of this section is to circumvent the Supreme Court’s
decision in United States v. Bajakajian, 118 S. Ct. 2029 (1998), which
held that a "punitive" forfeiture violates the Excessive Fines
Clause of the Eighth Amendment if it is grossly disproportional to the
gravity of the offense it is designed to punish.
In fact, the crime created in section 351 – willfully
evading a currency reporting requirement by "concealing" and
transporting more than $10,000 across a U.S. border – is no different
than the crime at issue in Bajakajian – willfully evading a currency
reporting requirement by transporting more than $10,000 across a U.S.
border. A forfeiture that is "grossly disproportional" with
respect to the latter will inevitably be found "grossly
disproportional" with respect to the former. The new element of
"concealment" does little or nothing to bolster the government’s
claim to forfeiture of the unreported currency, since this element is
already implicit in the current crime of evasion: It is hardly likely that
a person who is in the process of willfully evading the currency reporting
requirement will be waiving his currency around for all the world to see.
CONCLUSION. I have done my best under the circumstances
and want to thank especially Senator Kennedy for his leadership on the
Immigration parts of the bill. My efforts have not been completely
successful and there are a number of provisions on which the
Administration has insisted with which I disagree. Frankly, the agreement
of September 30, 2001 would have led to a better balanced bill. I could
not stop the Administration from reneging on the agreement any more than I
could have sped the process to reconstitute this bill in the aftermath of
those breaches. In these times we need to work together to face the
challenges of international terrorism. I have sought to do so in good
faith.
# # # # #
